The URL can be used to link to this page

Home My WebLink About FULL PACKET_2017-07-05MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA JUNE 20, 2017 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA 5:19 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor (5:21 P.M.) MICHELE MARTINEZ, Mayor Pro Tem VICENTE SARMIENTO JOSE SOLORIO JUAN VILLEGAS r PUBLIC COMMENTS - None COUNCILMEMBERS Absent: P. DAVID BENAVIDES SAL TINAJERO STAFF Present: CYNTHIA J. KURTZ, Interim City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council COUNCIL RECESSED to Room 147 for Closed Session discussion at 5:20 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: 1. Tony Camargo v. City of Santa Ana, Orange County Superior Court Case No. 30-2016-00872027-CU-PO-CJC CITY COUNCIL MINUTES 1 JUNE 20, 2017 10A-1 2. Jerry Phillip Van Buskirk v. City of Santa Ana, Orange County Superior Court Case No. 30-2016-00867270-CU-PO-CJC 2. PUBLIC EMPLOYEE APPOINTMENT, EMPLOYMENT, AND/OR EVALUATION OF PERFORMANCE, pursuant to Section 54957(b)(1) of the Government Code: Title: City Manager/ Interim City Manager CLOSED SESSION REPORT - See Item 19A for any reportable actions. ADJOURNED THE CLOSED SESSION MEETING AT 6:05 P.M. AND CONVENED TO THE REGULAR OPEN MEETING. CITY COUNCIL MINUTES 2 JUNE 20, 2017 10A-2 CALLED TO ORDER ATTENDANCE PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS REGULAR OPEN MEETING COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:05 P.M. COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor MICHELE MARTINEZ, Mayor Pro Tem P. DAVID BENAVIDES (6:46 P.M.) VICENTE SARMIENTO JOSE SOLORIO SAL TINAJERO (8:56 P.M.***) JUAN VILLEGAS COUNCILMEMBERS Absent: NONE STAFF Present: CYNTHIA J. KURTZ, Interim City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council MAYOR PULIDO BOB BARNETT, POLICE CHAPLAIN • CITY TILE presented by MAYOR PULIDO recognizing Wendy Tobiska for her Commitment and outstanding service as a member of the Board of Recreation and Parks. • CERTIFICATE OF RECOGNITION presented by MAYOR PULIDO recognizing Chaplain Sharlotte Druex for her outstanding service to the community. • PROCLAMATION presented by MAYOR PRO TEM MARTINEZ recognizing National Homeownership Month. • CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER SOLORIO to ComLink Neighborhood Association for their outstanding contributions to the community: Carl Benninger; Evangeline Gawronski; Peter A. Katz; Irma Macias; Ed Marashie; Terry McCall. CITY COUNCIL MINUTES 3 JUNE 20, 2017 10A-3 • CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER SOLORIO to Dino Perez for his outstanding artistic contributions to the community. • CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER VILLEGAS to Hybrid Studios for establishing their new business in Santa Ana. CLOSED SESSION REPORT - See item 19A for any reportable actions PUBLIC COMMENTS — None CONSENT CALENDAR ITEMS MOTION: Approve staff recommendations on the following Consent Calendar items 10A through 31 B, with the following modifications: • Mayor Pro Tem Martinez pulled the following items for separate action: 20A, 23A, 25F, 25G, 25J; and 31B. MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Martinez, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Tinajero (2) ate action or modified are highlighted. Si Ut:votes are adopted as partofthe conse ADMINISTRATIVE MATTERS MINUTES 10A. MINUTES FROM THE REGULAR MEETING OF JUNE 6, 2016 {STRATEGIC PLAN NO. 5, 11 — Clerk of the Council Office MOTION: Approve Minutes. CITY COUNCIL MINUTES 4 JUNE 20, 2017 10A-4 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 OF FINAL TRACT MAP NO. 17982 BY CITY ENGINEER (1406 N. HARBOR BLVD) {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 settlements as follow: Tony Camargo v. City of Santa Ana, Orange County Superior Court Case No. 30-2016-00872027-CU-PO-CJC; Motion by Councilmember Solorio, Seconded by Councilmember Villegas to settle in the amount of $225,000 approved by 5-0 (Benavides and Tinajero absent). Jerry Phillip Van Buskirk v. City of Santa Ana, Orange County Superior Court Case No. 30-2016-00867270-CU-PO-CJC; Motion by Councilmember Solorio, Seconded by Councilmember Villegas to settle in the amount of $30,000 approved by 4-0-1 (Pulido abstained and Benavides and Tinajero absent). 19B. EXCUSED ABSENCES — NONE 19C. STRATEGIC PLAN MONTHLY REPORT FOR MAY 2017 {STRATEGIC PLAN NO. 5, 1) — City Manager's Office MOTION: Receive and file. BUDGETARY MATTERS APPROPRIATION ADJUSTMENT CITY COUNCIL MINUTES 5 JUNE 20, 2017 10A-5 MOTION: continue consideration of matter to the July 5, 2017 City Council Meeting. MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Martinez, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Tinajero (2) 2013. APPROPRIATION ADJUSTMENT TO RECOGNIZE AND APPROPRIATE GRANT FUNDS FROM THE NATIONAL RECREATION AND PARK ASSOCIATION TO IMPLEMENT A HEALTHY EATING AND PHYSICAL ACTIVITY PROGRAM {STRATEGIC PLAN NO. 5, 6C} — Parks, Recreation and Community Services Agency MOTION: Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2017-147 - Recognize $25,000 in grant revenue from the National Recreation and Park Association and appropriate $25,000 into the corresponding expenditure accounts to implement a Healthy Eating and Physical Activity Program. SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES 22A. SPEC. NO. 17-028 - CONTRACT AWARD TO VERITIV OPERATING COMPANY FOR REPROGRAPHIC PAPER AND ENVELOPES {STRATEGIC PLAN NO. 7, 5E} — Finance and Management Services Agency MOTION: Award a contract to Veritiv Operating Company for reprographic papers and envelopes for a one-year period expiring June 30, 2018, with provision for three one-year renewals exercisable by the City Manager, in an annual amount not to exceed $80,000, subject to non - substantive changes approved by the City Manager and City Attorney. 22B. SPEC. NO. 17-036 - CONTRACT AWARD TO CNC TRAILERS, INC. FOR TWO ENCLOSED CARGO TRAILERS {STRATEGIC PLAN NO. 1, 2 & 6} — Finance and Management Services Agency CITY COUNCIL MINUTES 6 JUNE 20, 2017 10A-6 22C. MOTION: Authorize a one-time purchase and payment of purchase order to CNC Trailers, Inc. for the purchase of two enclosed cargo trailers for Community Emergency Response Team use in an amount not to exceed $60,850 plus a $3,000 contingency amount for a total amount not to exceed $63,850, subject to non -substantive changes approved by the City Manager and City Attorney. SPEC. NO. 17-044 - CONTRACTS AWARD FOR AMMUNITION {STRATEGIC PLAN NO.1, 51 — Finance and Management Services Agency MOTION: Authorize a one-time purchase and payment of purchase order for ammunition for a total aggregate amount not to exceed $98,901, subject to non -substantive changes approved by the City Manager and City Attorney, with the following vendors below: Vendor: Amount: Dooley Enterprises, Inc. $5,891 LC Action Police Supply $69,098 San Diego Police Equipment $23,912 22D. SPEC. NO. 17-058 - CONTRACT AWARD TO GOLDEN STAR TECHNOLOGY, INC. FOR HEWLETT PACKARD SERVERS, FIBER SWITCHES AND STORAGE {STRATEGIC PLAN NO. 6, 2} — Finance and Management Services Agency MOTION: Authorize a one-time purchase and payment of purchase order to Golden Star Technology, Inc. for the purchase of Hewlett Packard servers, fiber switches and storage in the total amount of $154,740, subject to non -substantive changes approved by the City Manager and City Attorney. 22E. SPEC. NO. 17-039 - CONTRACT AWARD TO ALL AMERICAN MECHANICAL CONTRACTORS, INC. FOR REPLACEMENT OF WATER HEATERS {STRATEGIC PLAN NO. 6, 1 B} — Finance and Management Services Agency MOTION: 1. Reject the bid from R. T. Contractor Corp. as nonresponsive. Vendor did not include all required documents in the bid. 2. Authorize a one-time purchase and payment of purchase order to All American Mechanical Contractors, Inc. for replacement of two water heaters at the Salgado Community Center in an amount not to exceed $37,357 plus a 5% contingency of $1,868 for a total amount of $39,225, CITY COUNCIL MINUTES 7 JUNE 20, 2017 10A-7 PROJECTS subject to non -substantive changes approved by the City Manager and City Attorney. J OF BRISTOL STREET IMPROVEMENTS, WATER MAIN, IMPROVEMENTS FROM WASHINGTON' (PROJECT NOS. 11-6740,17:6.472, & 17-6473)_{STRAl MOTION: 1. Award a contract and authorize the City Manager and the Clerk of the Council to execute a construction contract with Los Angeles Engineering, Inc., the lowest responsible bidder, in accordance with the base bid in the amount of $4,871,476, for the term beginning upon execution of the contract and ending upon project completion, for construction of the Bristol Street Improvements, Water Main, and Sewer Main Improvements 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 $6,135,644, which includes the contract bid amount, administration, inspection and testing, and an authorized contingency of $777,190. MOTION: Martinez SECOND: Sarmiento VOTE: AYES: Martinez, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Tinajero (2) 23B. AWARD CONTRACT TO PAVEMENT COATINGS CO. FOR CONSTRUCTION OF LOCAL STREET SLURRY SEAL FY 2016-2017 (PROJECT NO. 17-6882) {STRATEGIC PLAN NOS. 6, 1 B; 1 C; 1 G) — Public Works Agency MOTION: 1. Award a construction contract and authorize the City Manager and Clerk of the Council to execute a contract with Pavement Coatings Co., CITY COUNCIL MINUTES 8 JUNE 20, 2017 10A-8 the lowest responsible bidder, in accordance with the base bid in the amount of $862,862, for the term beginning upon execution of the contract and ending upon project completion, for the construction of Local Street Slurry Seal FY 2016-2017 project, 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 $962,862, which includes the contract bid amount, administration, inspection, testing, and an authorized contingency of $50,000. 3. Amend the Fiscal Year 2014-15 Capital Improvement Program and approve the reallocation of $412,862 in Measure M2 Local Fairshare funds from Project No. 15-6839 to Project 17-6882. AGREEMENTS 25A. AMENDMENT TO AGREEMENTS FOR FEDERAL AND STATE GOVERNMENT LIAISON SERVICES {STRATEGIC PLAN NOS. 1-7} — City Manager's Office MOTION: 1. AGMT NO. 2017-145 - Authorize the City Manager and Clerk of the Council to execute an amendment to the agreement with Holland and Knight of Washington, D.C. for federal government liaison services, extending the term of the agreement to a month-to-month basis, beginning July 1, 2017, for a period of up to 12 months for a total amount not to exceed $117,600, exercisable by the City Manager, subject to non -substantive changes approved by the City Manager and City Attorney. 2. AGMT NO. 2017-146 - Authorize the City Manager and Clerk of the Council to execute an amendment to the agreement with Townsend Public Affairs, Inc. for state government liaison services, extending the term of the agreement to a month-to-month basis, beginning July 1, 2017, for a period of up to 12 months, for a total amount not to exceed $60,000, exercisable by the City Manager, subject to non -substantive changes approved by the City Manager and City Attorney. 25B. AGMT NO. 2017-147 - AGREEMENT WITH CESAR VARGAS AND ASSOCIATES FOR TRANSLATION SERVICES {STRATEGIC PLAN NO. 5, 1} — Clerk of the Council Office CITY COUNCIL MINUTES 9 JUNE 20, 2017 10A-9 MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Cesar Vargas and Associates for a three-year, July 1, 2017 through June 30, 2020, in the total amount not to exceed $75,000 subject to non -substantive changes approved by the City Manager and City Attorney. 25C. AGMT NO. 2017-148 - RENEWAL TO THE ACTUARIAL VALUATION SERVICES FOR OTHER POST -EMPLOYMENT BENEFITS (OPEB) AGREEMENT WITH BICKMORE {STRATEGIC PLAN NO. 4, 1} — Finance and Management Services Agency MOTION: Authorize the City Manager and Clerk of the Council to execute the renewal of the existing one-year agreement, extending the period from June 20, 2017 through June 30, 2019, and increasing the contract amount to $15,950 with Bickmore, for a not to exceed agreement of $29,497, subject to non -substantive changes approved by the City Manager and City Attorney. 25D. AGMT NO. 2017-149 - AGREEMENT AMENDMENT WITH NORA SANCHEZ TO PROVIDE RECREATIONAL CLASS INSTRUCTION {STRATEGIC PLAN NO. 2, 2A} — Parks, Recreation and Community Services Agency MOTION: Authorize the City Manager and Clerk of the Council to execute an amendment to the agreement with Nora Sanchez to provide recreational class instruction by increasing the agreement amount by $5,000 for a total agreement amount not -to -exceed $30,000 for the term of the agreement, subject to non -substantive changes approved by the City Manager and City Attorney. 25E. AGMT NO. 2017-150 - AGREEMENT WITH COMMUNITY SENIORSERV INC. FOR SENIOR MEALS PROGRAMS {STRATEGIC PLAN NO. 5, 6E} — Parks, Recreation and Community Services Agency MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Community SeniorServ, Inc. for Senior Meals Programs in the amount of $90,290 for the period July 1, 2017 through June 30, 2018, subject to non -substantive changes approved by the City Manager and City Attorney. 25F. AGMT NO. 2017-151 - AGREEMENT WITH MILLER MENDEL, INC. FOR POLICE DEPARTMENT BACKGROUND SOFTWARE {STRATEGIC PLAN NO.1, 1 i} —Police Department CITY COUNCIL MINUTES 10 JUNE 20, 2017 10A-10 MOTION. Authorize the City Manager and Clerk of the Council to execute the attached three-year agreement with Miller Mendel, Inc. for the purchase of subscription entries and maintenance of ESOPH software for the Police Department, for the period of June 21, 2017 through June 20, 2020, in the amount of $44,014.50, plus a $5,985.50 contingency for a total not to exceed in the amount of $50,000, subject to non -substantive changes approved by the City Manager and City Attorney. MOTION: Martinez SECOND: Solorio VOTE: AYES: Martinez, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Tinajero (2) MOTION. Authorize the City Manager and Clerk of the Council to execute a one-year agreement with Linear Systems, with two optional one-year extensions, for the maintenance and support of the Digital Imaging Management System (DIMS), for the period of July 1, 2017 through June 30, 2018, in an amount not to exceed $33,000, including a $10,000 contingency, subject to non -substantive changes approved by the City Manager and City Attorney. MOTION: Martinez SECOND: Villegas VOTE: AYES: Martinez, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Tinajero (2) SPACE PLANNING AND IMPLEMENTATI kTEGIC PLAN 1\10: T,' 5) , Public Works Aaei CITY COUNCIL MINUTES 11 JUNE 20, 2017 10A-11 MOTION: 1. AGMT NO. 2017-153 - Authorize the City Manager and Clerk of the Council to execute an agreement with Culver-Newlin/McMahan Business Interiors, for the one-year term beginning June 21, 2017, through June 20, 2018, to provide Space Planning and Implementation services for the Public Works Agency City Yard offices, in an amount not to exceed $159,000, including a 15 percent contingency, subject to non -substantive changes approved by the City Manager and City Attorney. 2. Reject the sole bid for Space Planning and Implementation services for the Public Works Ross Annex offices and reissue a new Request for Proposals for the same service. MOTION: Martinez VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Villegas Martinez, Pulido, Sarmiento, Solorio, Villegas (5) None (0) None (0) Benavides, Tinajero (2) 251. AGMT NO. 2017-154 - AGREEMENT WITH TETRA TECH, INC., TO PROVIDE DESIGN AND ENGINEERING SERVICES FOR REHABILITATION OF WELL NO. 32 BID NO. 16-113 (PROJECT NO. 13-6433) {STRATEGIC PLAN NO. 6, 1 C) - Public Works Agency MOTION: Authorize the City Manager and Clerk of the Council to execute an agreement with Tetra Tech, Inc., to provide design engineering services for Well No. 32 Rehabilitation, for a three-year period from June 21, 2017, through June 20, 2020, with provisions for one two-year renewal option exercisable by the City Manager and City Attorney, in an amount not to exceed $777,700 for the term of the contract, subject to non -substantive changes approved by the City Manager and City Attorney. DiviI INL). zul1-1 bb - TENANT -INTEREST PURCHASE AGREEMENT RISTOL.,STREET IMPROVEMENTS, PHASE 3A (PROJ.NO. 136792 ENERAL. FUND) {STRATEGIC PLAN NOS. 6. 1G: 3. 2Cl - Puhlic CITY COUNCIL MINUTES 12 JUNE 20, 2017 10A-12 MOTION: Authorize the City Manager and Clerk of the Council to execute purchase agreement of Tenant Interest in the property listed below and goodwill (if any) with the following property owner/ tenant, subject to non - substantive changes approved by the City Manager and City Attorney: No. Property Owner/ Property commonly Acquisition Amount Tenant known as / location Type 1 Ana Porcile MOTION: Solorio VOTE: AYES: NOES ABSTAIN Total Nutrition 1111 N Bristol Street Suite G (APN 405-274-10) SECOND: Villegas Tenant $15,872 Interest Pulido, Sarmiento, Solorio, Villegas (4) Martinez (1) None (0) ABSENT: Benavides, Tinajero (2) 25K. AGREEMENTS WITH OCEAN BLUE ENVIRONMENTAL SERVICES, INC., AND UNITED STORM WATER, INC., FOR SPILL RESPONSE AND STORM DRAIN FACILITY CLEANING {STRATEGIC PLAN NO. 6, 1C} — Public Works Agency MOTION: Authorize the City Manager and the Clerk of the Council to execute agreements with the following to provide Spill Response and Storm Drain Facility Cleaning for a two-year term beginning June 20, 2017, and expiring on June 19, 2019, with provisions for two one-year extensions exercisable by the City Manager and City Attorney, for a total amount not to exceed $250,000 per year for each agreement, subject to non -substantive changes approved by the City Manager and City Attorney. AGMT NO. 2017-156 - Ocean Blue Environmental Services, Inc., AGMT NO. 2017-157 - United Storm Water, Inc., 25L. AGMT NO. 2017-158 - REPROGRAM FUNDS FROM THE ADDRESSING MAINTENANCE ENHANCING SERVICE PROGRAM; AND APPROVE AGREEMENT WITH ACCO ENGINEERED SYSTEMS FOR HVAC AIR - HANDLING SYSTEMS REPLACEMENT AT SANTA ANA REGIONAL TRANSPORTATION CENTER PROJECT 17-6008 {STRATEGIC PLAN NO. 6, 1 G & 2A}— Public Works Agency CITY COUNCIL MINUTES 13 JUNE 20, 2017 10A-13 MOTION: 1. Authorize reprogramming $650,000 in the Addressing Maintenance Enhancing Service Program, from SARTC general deferred maintenance to SARTC HVAC system replacement. 2. Authorize the City Manager and Clerk of the Council to execute an agreement with ACCO Engineered Systems, for the term beginning June 20, 2017 and continuing through December 31, 2017, to provide replacement of HVAC air -handling systems at the Santa Ana Regional Transportation Center, in an amount not to exceed $650,000, subject to non -substantive changes approved by the City Manager and City Attorney. This Agreement may be extended by the City Manager and City Attorney. MISCELLANEOUS BUDGETARY ITEMS 29A. DONATION AGREEMENT WITH VARIOUS ORGANIZATIONS TO SUPPORT COMMUNITY EVENTS AND PROGRAMS {STRATEGIC PLAN NO. 5,4} — City Manager's Office MOTION: Authorize the City Manager and Clerk of the Council to execute agreements with various organizations in support of their community events and programs, subject to non -substantive changes approved by the City Manager and the City Attorney, as follow: 1. Segerstrom High School Football Booster Club Inc. to support the Jaguar Prawl 5K event at Segerstrom High School, in the amount of $500 (Councilmember Benavides); 2. Orange County Burrito Project, as fiscal sponsors for Downtown Inc., to support the Hack for Health event, in the amount of $1,000 (Mayor Pro Tem Martinez); 3. Charitable Ventures Orange County Inc., as fiscal sponsor for Project Kinship, to support on-going the transitional age youth leadership summit, in the amount of $1,000 (Councilmember Sarmiento); 4. Community Partners, as fiscal sponsors for Media Arts Santa Ana, to support a youth cinema program, in the amount of $1,000 (Councilmember Sarmiento); 5. Delhi Center to support the summer day camp program, in the amount of $1,000 (Councilmember Sarmiento); CITY COUNCIL MINUTES 14 JUNE 20, 2017 1 OA -14 6. Madison Park Neighborhood Association to support the Aspire, Learn, Mentor, Achieve Science Academy at Madison Elementary School, in the amount of $500 (Councilmember Sarmiento); 7. Mariners Church Lighthouse Community Centers, as fiscal sponsor for Cornerstone Village Neighborhood Association, to support the annual community fair, in the amount of $1,000 (Councilmember Sarmiento); 8. Orange County Community Foundation, as fiscal sponsor for the Santa Ana Police Athletic & Activity League, in support of on-going youth educational and athletic program, in the amount of $500 (Councilmember Sarmiento); 9. Orange County Children's Therapeutic Arts Center in support of the youth arts enrichment program, in the amount of $500 (Councilmember Sarmiento); 10.Santa Ana Unidos Boxing Club to support on-going youth athletic programming, in the amount of $1,0000 (Councilmember Sarmiento); 11.Santa Ana Senior Center Advisory Board to support the Santa Ana Senior Center on-going programs for the elderly, in the amount of $550 in city service credit (Councilmember Sarmiento); 12.Achievement Institute of Scientific Studies to support the INSPIRES program that provides Santa Ana students with STEM activities, workshops, and introductions to businesses within that field, in the amount of $1,200 (Councilmember Solorio); 13.131ackbook Sessions Inc., as fiscal sponsor for the Santa Ana Community Artist Coalition, to support on-going restorative art programs, in the amount of amount of $1,500 (Councilmember Solorio); 14.Charitable Ventures of Orange County Inc., as fiscal sponsor for Riverview West Neighborhood Association, in support of the community movie night event at Rosita Park, in the amount of $500 (Councilmember Solorio); 15.Santa Ana Athletic Foundation, as fiscal sponsor for the Elizabeth G. Macias Legal Studies Academy at Santa Ana High School, which promotes education in in the area of law, in the amount of $500 (Councilmember Solorio); 16.Santa Ana Pony Baseball Inc. to support on-going youth athletic program and annual event, in the amount of $2,000 (Councilmember Tinajero); CITY COUNCIL MINUTES 15 JUNE 20, 2017 10A-15 17. Charitable Ventures of Orange County Inc., as fiscal sponsor for Saint Peter Evangelical Lutheran Church, in support of the Willard Neighborhood clean-up initiative, in the amount of $500 (Councilmember Villegas); and 18. Orange County Community Foundation, as fiscal sponsor for the Santa Ana Police Athletic & Activity League, in support of on-going youth education and athletic program, in the amount of $500 (Councilmember Villegas). LAND USE MATTERS CONDITIONAL USE PERMITS / VARIANCES 31 A. CONDITIONAL USE PERMIT NO. 2017-10 TO ALLOW THE SALE OF ALCOHOLIC BEVERAGES FOR ON -PREMISE CONSUMPTION AT DO LUNCH DELI RESTAURANT LOCATED AT 901 WEST CIVIC CENTER DRIVE, UNIT 150 — BRIAN C. DOYLE, APPLICANT {STRATEGIC PLAN NO. 3, 2) — Planning and Building Agency Planning Commission approved matter by a vote of 7:0, at their regularly scheduled meeting held on May 22, 2017. MOTION: Receive and file the staff report approving Conditional Use Permit No. 2017-10. 60 -FOOT TALL WIRELESS FACILITY,FOR-AMERICAN TOWER LOCA' 2802 SOUTH FLOWER STREET JOHN BITTERLY, APPLIG TRATRr,Ir: PI AN N(1S 4 7 5l—PInnninn nnri:RiiilAinn Anonry -- Planning Commission approved matter by a vote of 7:0, at their regularly scheduled meeting held on May 22, 2017. MOTION: Receive and file the staff report approving Conditional Use Permit No. 2017-15 as conditioned. MOTION: Solorio SECOND: Sarmiento VOTE: AYES: Pulido, Sarmiento, Solorio, Villegas (4) NOES: Martinez (1) ABSTAIN: None (0) CITY COUNCIL MINUTES 16 JUNE 20, 2017 10A-16 ABSENT: Benavides, Tinajero (2) **END OF CONSENT CALENDAR** BUSINESS CALENDAR ITEMS ORDINANCE I FIRST READING 50A. AMEND YOUTH COMMISSION COMPENSATION {STRATEGIC PLAN NO. 5, 1) — Clerk of the Council MOTION: 1. Compensate Youth Commission members as follow: Regular members at $50.00, Alternate members at $25, and Associate members at $10 per meeting. 2. Place ordinances on first reading and authorize publication of title. ORDINANCE NO. NS -2917 - ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING SECTION 2-325 TO THE SANTA ANA MUNICIPAL CODE RELATED TO COMPENSATION FOR YOUTH COMMISSION MEMBERS MOTION: Martinez VOTE: AYES: NOES: ABSTAIN: ABSENT: RESOLUTION SECOND: Villegas Martinez, Pulido, Sarmiento, Solorio, Villegas (5) None (0) None (0) Benavides, Tinajero (2) 55A. RESOLUTION ESTABLISHING THE APPROPRIATION LIMIT OF THE CITY OF SANTA ANA FOR FY 2017-18 {STRATEGIC PLAN NO. 4, 1D) — Finance and Management Services Agency MOTION: Adopt a resolution. CITY COUNCIL MINUTES 17 JUNE 20, 2017 1OA-17 RESOLUTION NO. 2017-043 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE CITY'S STATEMENT OF INVESTMENT POLICY MOTION: Solorio SECOND: Martinez VOTE: AYES: Martinez, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Tinajero (2) REPORTS 65A. LEAGUE OF CALIFORNIA CITIES VOTING DELEGATE (STRATEGIC PLAN NO. 5, 1) — Clerk of the Council Office MOTION: Designate Mayor Pro Tem Michele Martinez as a voting delegate and select up to two alternates for the League of California Cities' Annual Conference's General Assembly scheduled for September 15, 2017. MOTION: Sarmiento VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Villegas Martinez, Pulido, Sarmiento, Solorio, Villegas (5) None (0) None (0) Benavides, Tinajero (2) *Councilmember Benavides joined the meeting at 6:46 p.m. 65B. AUTHORIZE INITIATION OF A NEW SOLID WASTE SERVICES CONTRACT PROCESS AND AMEND AND RESTATE EXISTING SOLID WASTE AGREEMENT {STRATEGIC PLAN NO. 4, 1} - Public Works Agency The following spoke on the matter: • Chip Monaco, representing USA Waste of California, Inc., opined that elements should be considered and not term of the contract as a driving force on negotiation matter. • George Urch, representing Ware Disposal, support matter as proposed. CITY COUNCIL MINUTES 18 JUNE 20, 2017 10A-18 • Jeff Snow, representing Republic Disposal, support matter as proposed. Council discussion ensued. Councilmember Sarmiento, requested summary report. Fred Mousavipour, Executive Director of Public Works, provided highlight of current provider; noted that consultant hired to draft request for proposal and estimated timeline established. Mayor Pro Tem Martinez, questioned the transfer to general fund of surcharge to subscribers; requested clarification on compliance with enterprise fund transfers. Councilmember Benavides, amended motion to allow for flexibility from one- year extension. City Attorney Carvalho, commented on Proposition 218 (Prop. 218); City currently addressing matter. Councilmember Solorio,, support Smart Program and Request for Proposal process; need to address all Prop. 218 matters; council direction to include all sister contracts. Mayor Pulido, requested that all affiliated contracts be considered with same terms. Staff confirmed that motion includes said provisions. AMENDED MOTION: 1. Authorize staff to start negotiation of a one-year extension or as otherwise recommended by staff of the current agreement with USA Waste of California, Inc. (dba Waste Management of Orange County) and return to Council with results within 90 days for further consideration and direction. 2. Direct staff to initiate a Request for Proposals process for solid waste services concurrently with said actions and upon approval of matter to be effective upon the completion of the one-year extension negotiation. 3. Approve the proposed Amended and Restated Solid Waste Services Agreement with USA Waste of California, Inc. (dba Waste Management of Orange County). MOTION: Benavides SECOND: Solorio CITY COUNCIL MINUTES 19 JUNE 20, 2017 10A-19 VOTE: AYES NOES: ABSTAIN: ABSENT: PUBLIC HEARINGS Benavides, Martinez, Pulido, Sarmiento, Solorio, Villegas (6) None (0) None (0) Tinajero (1) *Mayor Pulido abstained on Agenda Item 75A due to potential conflict of interest due to campaign contributions 75A. ORDINANCE AMENDMENT NO. 2017-01 TO AMEND CERTAIN SECTIONS OF CHAPTER 18 AND 21 OF THE SANTA ANA MUNICIPAL CODE (MEDICAL MARIJUANA COLLECTIVES/COOPERATIVES AND LICENSES) — CITY OF SANTA ANA, APPLICANT {STRATEGIC PLAN NOS. 3, 2; 3, 5) - Planning and Building Agency Legal Notice published in the Orange County Reporter on May 26, 2017. Item continued from the June 6, 2017 City Council Meeting by a 5-0 vote (Benavides and Sarmiento absent). Mayor Pulido opened the Hearing. The following spoke on the matter: • Jayson Quinones, support matter as proposed; willing to work with neighborhood; suggested hours of operation be amended as follow: 7 a.m. to 11 P.M. • Ilya Tseglin, spoke of use of medical marijuana for illnesses. • Robert Tseglin, support less regulations on uses of medical marijuana. There were no other speakers and the Hearing closed. Council discussion ensued. Councilmember Sarmiento, request matter be reviewed periodically and adjust as needed; signage, financial audit and other deliverables; hours of operation amended as proposed by speaker; thanked staff for removing testing and development component; issue on cultivation and research forthcoming; proposed ordinance amendments will create economic development opportunities; staff to review ancillary businesses. Councilmember Solorio, noted that issues approved by voters in the City and now industry regulated; expected to generate $1.5 million annually in revenues; Code Enforcement to cite illegal establishment in Floral Park neighborhood area; matter has been considered by Public Safety Council Committee. CITY COUNCIL MINUTES 20 JUNE 20, 2017 1 OA -20 Councilmember Benavides, commented that initially opposed to matter, but City has properly regulated growing industry; revenue generator; Proposition 64 legalized marijuana urged all to review State regulations. Councilmember Villegas, does not support use, but acknowledges that regulations are needed; staff to continue working on illegal operators. Mayor Pro Tem Martinez, questioned cost recovery component; asked if expanding the number of businesses needed to recover cost of regulating; — need resources; plan important as well as recovery of all costs. MOTION: Place amended ordinance extending the hours of operation from 7 a.m. to 11 p.m. on first reading and authorize publication of title ORDINANCE NO. NS -2918 - ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CERTAIN SECTIONS OF CHAPTER 18 AND CHAPTER 21 OF THE SANTA ANA MUNICIPAL CODE PERTAINING TO MEDICAL MARIJUANA COLLECTIVES (SECTION 18-611, SECTION 18-613, SECTION 18-617.5, SECTION 18-618, SECTION 18-620, SECTION 18-621, AND SECTION 18-622 OF ARTICLE XIII OF CHAPTER 18), AND ADDING SECTION 21-131 OF ARTICLE XII OF CHAPTER 21 OF THE SANTA ANA MUNICIPAL CODE MOTION: Sarmiento SECOND: Solorio VOTE: AYES: Benavides, Martinez, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAINED Pulido (1) AND NOT PRESENT: ABSENT: Tinajero (1) 75B. ADOPT AN ORDINANCE TO REGULATE MOBILE FOOD VENDING VEHICLES {STRATEGIC PLAN NO 5, 41 - Planning and Building Agency and City Attorney) Legal Notice published in the Orange County Reporter and the Orange County Register on May 26, 2017; published in La Opinion on May 26, 2017; and notices mailed to mobile vendors on May 26, 2017. CITY COUNCIL MINUTES 21 JUNE 20, 2017 1 OA -21 75C. Item continued from the June 6, 2017 City Council Meeting by a 5-0 vote (Benevides and Sarmiento absent). MOTION: Continue consideration of matter to the July 5, 2017 City Council Meeting, at the request of staff. MOTION: Benavides VOTE: AYES: NOES: ABSTAIN: SECOND: Solorio Benavides, Martinez, Pulido, Sarmiento, Solorio, Villegas (6) None (0) None (0) ABSENT: Tinajero (1) ADOPTION OF CITY BUDGET FISCAL YEAR 2017-2018 {STRATEGIC PLANO NO. 4, 2A} — Finance and Management Services and City Manager's Office Legal Notice published in the Orange County Reporter on May 26, 2017 and June 2, 2017. Item continued from the June 6, 2017 City Council Meeting by a 5-0 vote (Benavides and Sarmiento absent). Mayor Pulido opened the Hearing. The following spoke on the matter: • Kim McPeck, representing SEIU 721, opposed the budget as proposed; employee union members have experienced extensive cuts over the year. • Mike Lopez, representing SEIU 721, urged a "No" vote on the proposed budget; past deficits were projected when employees have not received raises and continue to contribute to pension costs; union members seek equitable pay. • Victor Madrigal, representing SEIU 721, request that budget include salary increases for dedicated employees. • Tony Carrillo, representing SEIU 721, noted that union membership has dropped from over 1,000 to 400; City needs remain the same; part-time members have increased. • Mark Kiss, representing SEIU 721, spoke of respect toward long term, dedicated employees that need to be recognized. • Monica Suter, representing SEIU 721, opined that furloughs in the past have significantly impacted union members. • Jonathan Hernandez, request additional funding for youth programs; opposed to police officer pay increases. CITY COUNCIL MINUTES 22 JUNE 20, 2017 1 OA -22 • Albert Castillo, request copy of financial audit; troubled that Interim City Manager appointed Acting Police Chief Valentine without community input. • Moises Vazquez, support youth programs; open school grounds (school joint use partnerships). • Claudia Perez, opposed to blame game; allocate funds that will assist youth and future of our community. • Sergio Barragan, opposed to funding law enforcement; need prevention programs and investment in youth. • David Celedon, noted that 53% of budget on public safety instead of deterrent programs. Ignacio Rios, Jr., consider funding review all programs holistically. a youth services department that will • Perla Dionicio, request mental health and other social programs that will assist youth in our community. Council discussion ensued. Councilmember Benavides, important to prioritize all programs that will assist our residents; reasonable requests heard and should be considered; propose to amend the budget to include youth coordinator. Mayor Pro Tem Martinez, noted that City of Richmond is very similar to Santa Ana; PERS rates are expected to increase; spoke of past service cuts. Councilmember Sarmiento, reservations impact if item #2 not considered; jail reuse the other half of the jail administration; consider some comments tonight. Councilmember Benavides.... Interim City Manager..... Councilmember Solorio, with some line items; $3.7 million study underway to consider use for consider continuing to July 5th and Matter suspended to allow Councilmember Tinajero to participate in the meeting on Agenda Item 80A. TELECONFERENCE - Pursuant to Government Code Section 54953(b), Councilmember Tinajero participated in a portion of the meeting via teleconference from Holiday Inn Hotel in Birmingham -Airport, 5000 Richard Arrington Jr Blvd N, Birmingham, AL 35212 at 8:56 p.m.. The Agenda for said meeting was posted at said location as required by the Brown Act.*** JOINT ITEM OF THE CITY COUNCIL AND HOUSING AUTHORITY CITY COUNCIL MINUTES 23 JUNE 20, 2017 1OA-23 80A. JOINT ITEM - DISCUSSION ON AFFORDABLE HOUSING DEVELOPMENT PROJECTS, APPROVAL OF CITY FINANCIAL ASSISTANCE, AND APPROVAL OF APPROPRIATION ADJUSTMENT {STRATEGIC PLAN NO. 5, 3C} - Community Development Item continued from the June 6, 2017 City Council Meeting by a 5-0 vote (Benevides and Sarmiento absent). OPTIONS FOR CITY COUNCIL CONSIDERATION: As recommended by the Ad Hoc Committee, discuss the various Affordable Housing Development projects requesting City financial assistance and seek City Council direction on the allocation of current and available affordable housing development funds. Following are options for City Council discussion and consideration: A) Santa Ana Arts Collective, Meta Housing Corporation: Option #1: Amend the project's original award by an additional amount up to $2.9 million per Keyser Marston Associates gap analysis report. Option #2: Amend the project's original award by an additional amount up to $1,481,215, per CSG Advisors gap analysis report. City financial assistance to be negotiated by CSG Advisors and Meta Housing. Option #3: Take no additional action to fund the project at this time. B) First Street Apartments, AMCAL Multi -Housing: Option #1: Award of affordable housing development funds for an amount up to $8,522,740, per CSG Advisors gap analysis report. Option #2: Award of affordable housing development funds for an amount up to $8,795,000, per Keyser Marston Associates gap analysis report. Option #3: Take no additional action to fund the project at this time. C) Aqua Housing, Community Development Partners: Option #1: Amend the original project award with an additional 31 project -based vouchers. Option #2: Take no additional action to fund the project at this time. D) Tiny Tim Plaza, Community Development Partners: CITY COUNCIL MINUTES 24 JUNE 20, 2017 1 OA -24 Option #1: Commit to a future award of affordable housing funds for an amount up to $11.7 million per CSG Advisors gap analysis report. Award of funds to follow the approval of the project by the Planning Commission and City Council pending the availability of funds. Option #2: Take no action to fund the project at this time. The following speakers spoke on the matter: • Joy Torres, have issues with affordable housing, propose homeless housing and social service programs. • Larry Haynes, noted that some projects have been earmarked for homeless; proposal is a transfer of funds coming from Housing and Urban Development Department • Ruben A Barreto, representing Santa Ana Building Heathy Community, submitted letter for support for the record. • Mario Turner, represent a developer; support proposal. Council discussion ensued. Councilmember Sarmiento, support affordable housing project. Councilmember Tinajero, echoed comments; supports projects. Councilmember Solorio, merit to having a process that was considered on this project; project is a loan; need to be consistent and have a Request for Proposal process for future projects. Councilmember Benavides, support competitive process; decision based on merit; supports matter. Mayor Pro Tem Martinez, concerned with process; requested matrix; asked which projects were subject to RFP, what criteria, how much funds, requested background information of each proposal (staff highlighted matrix with said information); concerned with lack of transparency and consistency in how projects were selected. JOINT MOTION: 1. Staff recommends the approval of option A1, option B1, option C1, and option D1.** 2. Direct staff to develop a policy and criteria for the allocation of future affordable housing development funds. CITY COUNCIL MINUTES 25 JUNE 20, 2017 1 OA -25 3. Approve a conditional pre -loan commitment, pending the approval of the Site Plan Review by the Planning Commission and City Council for the Tiny Tim Plaza project, as follow: Housing City Council - Development Project Successor Inclusionary Agency Funds Housing Funds Tiny Tim Plaza $4,700,000 $1,300,000 CITY COUNCIL MOTION: 1. Staff recommends the approval of the following actions regarding loan documents and commitment letters: a. Direct staff to amend the Inclusionary Housing loan agreement for the Santa Ana Arts Collective project for an additional amount not to exceed $2,900,000 in Inclusionary Housing funds and provide for City Council consideration at the July 5, 2017 meeting. 2. Approve an appropriation adjustment. (Requires five affirmative votes). APPROPRIATION ADJUSTMENT NO. 2017-148 - Recognizing the Inclusionary Housing Fund balance in the amount of $4,200,000 in revenue account (no. 41718002-50001) and appropriating same to the Inclusionary Housing Fund's Loans and Grants expenditure account no. (41718820-69152) for the Santa Ana Arts Collective project and conditional pre -loan commitment for the Tiny Tim Plaza project. HOUSING AUTHORITY MOTION: 1. Staff recommends the approval of the following actions regarding loan documents and commitment letters: a. Approve a pre -loan commitment in an amount not to exceed $8,522,740 for the First Street Apartments project. b. Approve an award of 31 additional project based vouchers to Community Development Partners with Mercy Housing Living Centers as the service provider for the Aqua Housing project and authorize the Executive Director of the Housing Authority to execute an amendment to the Agreement to Enter into a Project -Based Vouchers Housing Assistance Payments contract for an additional 31 vouchers for the Aqua Housing project. 3. Approve an appropriation adjustment. (Requires five affirmative votes). APPROPRIATION ADJUSTMENT NO. 2017-149 - Recognizing the Housing Successor Agency's fund balance in the amount of $8,633,785 CITY COUNCIL MINUTES 26 JUNE 20, 2017 1 OA -26 in revenue account no. (60718002-50001) and appropriating same to the Low and Moderate Income Housing Asset Fund's Loans and Grants expenditure account no. (60718830-69152) for the First Street Apartments project's pre -loan commitment and conditional pre -loan commitment for the Tiny Tim Plaza project. MOTION: Sarmiento SECOND: Tinajero VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Tinajero, Villegas (6) NOES: Martinez (1) ABSTAIN: None (0) ABSENT: None (0) **Mayor Pulido dissented on option 131 part of Joint Motion item #1. CITY COUNCIL RECESSED AT 9:30 P.M. TO THE HOUSING AUTHORITY MEETING AND RECONVENED AT 9:31 P.M. WITH SAME MEMBERS PRESENT *Councilmember Tinajero left the meeting at 9:30 p.m. 75C. CONTINUATION OF ADOPTION OF CITY BUDGET FISCAL YEAR 2017-2018 {STRATEGIC PLANO NO. 4, 2A) — Finance and Management Services and City Manager's Office Councilmember Sarmiento, support motion and include direction for staff to add a resolution of budget continuity in the event the second reading of ordinance not approved at the following meeting. Councilmember Benavides, proposed adding two positions — Youth Services Coordinator and Economic Development Manager; investment in community important. Councilmember Solorio, not supportive of adding positions, but if focused on youth internship program may be open; need to include scope of work prior to approval. Interim City Manager, suggested staff can come back with more information on positions including funding source. CITY COUNCIL MINUTES 27 JUNE 20, 2017 1 OA -27 City Attorney Carvalho, proposed staff prepare a resolution to carry over current budget, i.e. continuity resolution; Charter provision allows for additional revisions to the proposed budget up until adopted. Mayor Pulido, concerned with addition of two new positions; motion bifurcated at the request of Mayor Pro Tem Martinez. MOTION: Approve the fiscal year 2017-18 City Budget, which includes the following recommended actions: 1. Authorize the use of fund balance from the general fund in the amount of $9.3 million for fiscal year 2017-18. (Requires five affirmative votes, per Fiscal Policy) MOTION: Sarmiento VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Benavides Benavides, Pulido, Sarmiento, Solorio, Villegas (5) Martinez (1) None (0) Tinajero (1) 2. Direct staff to transition from a Type II Jail Facility to a Holding Facility during fiscal year 2017-18. MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Benavides, Martinez, Pulido, Sarmiento, Solorio, Villegas (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Tinajero (1) 3. Adopt an ordinance appropriating funds for the fiscal year commencing July 1, 2017; place ordinance on first reading and authorize publication of title; include funding for two new positions — a youth services coordinator and a position to support economic development department and allow the budget to be revised as deemed advisable pursuant to Charter § 607. (Requires five affirmative votes, per Fiscal Policy) CITY COUNCIL MINUTES 28 JUNE 20, 2017 1 OA -28 ORDINANCE NO. NS -2919 - ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROPRIATING MONIES TO THE SEVERAL OFFICES, AGENCIES, AND DEPARTMENTS OF THE CITY FOR FISCAL YEAR BUDGET PERIOD COMMENCING JULY 1, 2017 MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Villegas (5) NOES: Martinez (1) ABSTAIN: None (0) ABSENT: Tinajero (1) 75D. GENERAL PLAN AMENDMENT NO. 2017-01 AND AMENDMENT APPLICATION NO. 2017-01 FOR THE AQUA SUPPORTIVE HOUSING PROJECT AT 317 EAST SEVENTEENTH STREET — COMMUNITY DEVELOPMENT PARTNERS, APPLICANT {STRATEGIC PLAN NO. 5, 31 — Planning and Building Agency Legal Notice published in the Orange County Reporter on June 9, 2017. Mayor Pulido opened the Hearing. There were no speakers and the Hearing closed. Council discussion ensued. MOTION: 1. Approve and adopt Negative Declaration, Environmental Review No. 2017-24. 2. Adopt a resolution approving General Plan Amendment No. 2017-01. RESOLUTION NO. 2017-044 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING NEGATIVE DECLARATION, ENVIRONMENTAL REVIEW NO. 2017-24 AND GENERAL PLAN AMENDMENT NO. 2017-01 FOR THE PROPERTY LOCATED AT 317 EAST SEVENTEENTH STREET 3. Place ordinance Amendment Application No. 2017-01 for Specific Development No. 91 on first reading and authorize publication of title. ORDINANCE NO. NS -2920 - ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AMENDMENT APPLICATION NO. 2017-01 REZONING THE PROPERTY LOCATED AT 317 EAST CITY COUNCIL MINUTES 29 JUNE 20, 2017 1 OA -29 SEVENTEENTH STREET FROM COMMUNITY COMMERCIAL (C-1) AND MULTIPLE -FAMILY RESIDENCE (R-3) TO SPECIFIC DEVELOPMENT NO. 91 (SD -91) (AA NO. 2017-01) AND ADOPTING SPECIFIC DEVELOPMENT NO. 91 (SD -91) FOR SAID PROPERTY MOTION: Solorio SECOND: Villegas VOTE: AYES: Benavides, Pulido, Solodo, Villegas (4) NOES: Martinez (1) ABSTAIN: None (0) ABSENT: Sarmiento, Tinajero (2) RECESSED AT 9:46 P.M. AND RECONVENED AT 10:00 P.M. MAYOR PRO TEM MARTINEZ LEFT THE MEETING AND NOT PRESENT FOR THE BALANCE OF THE MEETING. 75E. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 1023 NORTH BRISTOL STREET (PROJECT NO. 136792) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3, 2C) - Public Works Agency Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. The following spoke on the matter: • Chris Peterson, Peterson Law Group, represents interest of property owners; look forward to working with Eminent Domain counsel since resolution not reached. There were no other speakers and the Hearing closed. City Attorney Carvalho, noted that Eminent Domain items require City Council to confirm material received and require independent determination on findings into the record. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. CITY COUNCIL MINUTES 30 JUNE 20, 2017 1 OA -30 MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-029 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 1023 N. BRISTOL STREET (APN 405-262-33) FOR THE BRISTOL STREET WIDENING PROJECT MOTION: Solorio SECOND: Villegas VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) 75F. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 1302 WEST 11TH STREET (PROJECT NO. 136792) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3, 2C} Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. The following spoke on the matter: • Leticia Carrillo, owner of property, working with City to resolve the issue, has operated office for 13 years at mixed-use site; able to pay her mortgage, offer for home and building too low, concerned that other sites do not have mixed-use; no comparison for this property; would like the members of City Council to consider matter in her perspective. There were no other speakers and the Hearing closed. Council discussion ensued. Mayor Pulido, acknowledged unique situation, look at income, value of property and income generated. City Attorney Carvalho, agreed with Mayor, work with property owner. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. CITY COUNCIL MINUTES 31 JUNE 20, 2017 1 OA -31 MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-030 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 1302 W. 11th STREET (APN 004-111-22) FOR THE BRISTOL STREET WIDENING PROJECT MOTION: Solorio VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Villegas Benavides, Pulido, Sarmiento, Solorio, Villegas (5) None (0) None (0) Martinez, Tinajero (2) 75G. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 1027 NORTH BRISTOL STREET (PROJECT NO. 136792) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3, 2C} Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. There were no speakers and the Hearing closed. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-031 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 1027 N. BRISTOL STREET (APN 405-274-09) FOR THE BRISTOL STREET WIDENING PROJECT MOTION: Benavides VOTE: AYES: SECOND: Sarmiento Benavides, Pulido, Sarmiento, Solorio, Villegas (5) CITY COUNCIL MINUTES 32 JUNE 20, 2017 1 OA -32 NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) 75H. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 2205 SOUTH BRISTOL STREET (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3, 2C) Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. The following spoke on the matter: Chris Peterson, Peterson Law Group, representing property owners; look forward to working with eminent domain counsel on matter. There were no other speakers and the Hearing closed. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. MOTION: Adopt a resolution. (Requires rive affirmative votes) RESOLUTION NO. 2017-032 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 2205 S. BRISTOL STREET (APN 015-194-24) FOR THE BRISTOL STREET WIDENING PROJECT MOTION: Villegas SECOND: Benavides VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) 751. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 2201 SOUTH BRISTOL CITY COUNCIL MINUTES 33 JUNE 20, 2017 1 OA -33 STREET (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3, 2C} Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. The following spoke on the matter: • Chris Peterson, Peterson Law Group, representing property owners; look forward to working with eminent domain counsel on matter. There were no other speakers and the Hearing closed. City Attorney Carvalho, indicated that if legal counsel consents to having same testimony entered into the record for Agenda Items 751, 75J, 75K, 75L, 75M, and 75Q they City Council may take one motion on all matters. Representative Peterson concurred. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-033 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 2201 S. BRISTOL STREET (APN 015-194-23) FOR THE BRISTOL STREET WIDENING PROJECT 75J. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 2209 SOUTH BRISTOL STREET (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1G; 3,2C} Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-034 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 2209 S. BRISTOL STREET (APN 015-194-25) FOR THE BRISTOL STREET WIDENING PROJECT 75K. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 2105-2109 SOUTH BRISTOL CITY COUNCIL MINUTES 34 JUNE 20, 2017 1 OA -34 STREET (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3, 2C) Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-035 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 2105-2109 S. BRISTOL STREET (APN 015-194-41) FOR THE BRISTOL STREET WIDENING PROJECT 75L. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 2240 SOUTH BRISTOL STREET (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1G; 3, 2C) Notice of He letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-036 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 2240 S. BRISTOL STREET (APN 408-471-06) FOR THE BRISTOL STREET WIDENING PROJECT 75M. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 2102 SOUTH BRISTOL STREET (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1G; 3,2C) Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-037 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 2102 S. BRISTOL STREET (APN 408-471-01) FOR THE BRISTOL STREET WIDENING PROJECT CITY COUNCIL MINUTES 35 JUNE 20, 2017 1 OA -35 MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) 75N. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 2120-2130 SOUTH BRISTOL STREET (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1G; 3,2C} Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. The following spoke on the matter: • Luca Giovanardi, represent property owners, submitted letter into the record; object to necessity of property. There were no other speakers and the Hearing closed. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-038 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF A PORTION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 2120-2130 S. BRISTOL STREET (APN 408-471-17) FOR THE BRISTOL STREET WIDENING PROJECT MOTION: Benavides VOTE: AYES: NOES: ABSTAIN: SECOND: Sarmiento Benavides, Pulido, Sarmiento, Solorio, Villegas (5) None (0) None (0) CITY COUNCIL MINUTES 36 JUNE 20, 2017 1 OA -36 ABSENT: Martinez, Tinajero (2) 750. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 1241 WEST SAINT ANNE PLACE (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1G; 3,2C} Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. There were no speakers and the Hearing closed. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-039 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF A PORTION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 1241 W. ST. ANNE PLACE (APN 015-215-10) FOR THE BRISTOL STREET WIDENING PROJECT MOTION: Villegas SECOND: Solorio VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) 75P. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 1301 WEST CAMDEN PLACE (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1G; 3,2C} Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. The following spoke on the matter: CITY COUNCIL MINUTES 37 JUNE 20, 2017 1 OA -37 • Andro Chavez, Real Estate Broker, work with City on matter. There were no other speakers and the Hearing closed. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. MOTION. Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-040 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 1301 W. CAMDEN PLACE (APN 408-334-18) FOR THE BRISTOL STREET WIDENING PROJECT MOTION: Benavides SECOND: Sarmiento VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) 75Q. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 2231 SOUTH BRISTOL STREET (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1 G; 3,2C) Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. The following spoke on the matter: • Chris Peterson - see notes above item 751.' There were no other speakers and the Hearing closed. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-041 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC CITY COUNCIL MINUTES 38 JUNE 20, 2017 1 OA -38 INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 2231 S. BRISTOL STREET (APN 015-194-36) FOR THE BRISTOL STREET WIDENING PROJECT MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) 75R. RESOLUTION DETERMINING PUBLIC INTEREST AND NECESSITY FOR THE ACQUISITION OF REAL PROPERTY AT 2223 SOUTH BRISTOL STREET (PROJECT NO. 116741) (NON -GENERAL FUND) {STRATEGIC PLAN NOS. 6, 1G; 3, 2C) Notice of Hearing letter regarding acquisition of real property by eminent domain mailed to property owners on June 1, 2017. Mayor Pulido opened the Hearing. The following spoke on the matter: • Javier Mendez, opined that value not comparable to other property sites; has been at location for over 20 years and not paid in full; request reassessment of property. • Elba Bonia, spoke on property not related to site. There were no other speakers and the Hearing closed. Councilmembers confirmed receipt of staff report and findings on this all other eminent domain items on said agenda. MOTION: Adopt a resolution. (Requires five affirmative votes) RESOLUTION NO. 2017-042 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FINDING AND DETERMINING THAT THE PUBLIC INTEREST, CONVENIENCE AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY LOCATED WITHIN THE CITY OF SANTA ANA AT 2223 S. BRISTOL STREET (APN 015-194-28) FOR THE BRISTOL STREET WIDENING PROJECT MOTION: Villegas SECOND: Benavides CITY COUNCIL MINUTES 39 JUNE 20, 2017 1 OA -39 VOTE: AYES: Benavides, Pulido, Sarmiento, Solorio, Villegas (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) COMMENTS 'Councilmember Sarmiento left the meeting at 10:30 p.m. before leaving indicated he went on a family vacation to Quime, Bolivia and received a proclamation on behalf of council. PUBLIC COMMENTS • Steve Rocco: claims fraud by the mayor • Joshua Loeper, St. Joseph Church, proposed 4 -way stop at intersection of Civic Center and Lacy; concern for public safety, friend Charlene Hanson died Saturday July 17. • Daniel Nau, St. Joseph Church, echoed comments from Joshua Loeper. 90A. CITY MANAGER'S COMMENTS - NONE 90B. CITY COUNCILMEMBER COMMENTS Councilmember Solorio: • Asked staff that medians and trees be addressed during warmer weather; • Encouraged outreach and proactive communication on fireworks; • Thanked the PD on addressing homeless issues along the riverbed; and • Thanked Interim City Manager on selecting Acting Police Chief Valentin - wished him well. Councilmember Villegas: • Welcomed new Acting Police Chief Valentin; and • Thanked staff for hard work on today's agenda. Councilmember Benavides: • Thanked staff for efforts on budget; • Spoke of recent tragedy that killed a pedestrian; need; staff to consider increasing crossing guards at key locations; also, government to assist those willing to volunteer with such efforts; • Encouraged all to support local businesses; CITY COUNCIL MINUTES 40 JUNE 20, 2017 1 OA -40 • Fourth of July celebration coming up — invited all to attend event; and • Thanked Deputy Police Chief Schnabl for his service as Acting Police Chief and welcomed Acting Police Chief Valentin. Mayor Pulido: • Recounted story of him losing chess game to a to blind -folded master; committee to consider bringing such competition to Fourth of July festivities; • Welcomed incoming Acting Police Chief Valentin; and • Adjourned meeting in memory of Charlene Hanson. ADJOURNED- 10:55 P.M. - The next meeting of the City Council is scheduled for Wednesday, July 5, 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, Santa Ana, California. ADJOURNED MEETING IN MEMORY OF CHARLENE HANSON Maria D. Huizar, Clerk of the Council FUTURE AGENDA ITEMS • Community Engagement Program • Labor Contracts CITY COUNCIL MINUTES 41 JUNE 20, 2017 1 OA -41 1 OA -42 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: ORDINANCE SECOND READING - AMEND YOUTH COMMISSION COMPENSATION (STRATEGIC PLAN NO. 5. 11 RECOMMENDED ACTION Place ordinance on second reading and adopt. CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 15' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER On June 20, 2017, the following ordinance was introduced for first reading and City Council authorized publication of title by a vote of 5-2 (Benavides and Tinajero absent): ORDINANCE NO. NS -2917 - ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING SECTION 2-325 TO THE SANTA ANA MUNICIPAL CODE RELATED TO COMPENSATION FOR YOUTH COMMISSION MEMBERS 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 EXHIBIT: Ordinance No. NS -2917 11 A-1 11 A-2 ORDINANCE NO. NS-XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING SECTION 2-325 TO THE SANTA ANA MUNICIPAL CODE RELATED TO COMPENSATION FOR YOUTH COMMISSION MEMBERS THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City's budget challenges and the potential impacts on the City's ability to preserve high quality core services to the public has lead the City Council to evaluate the current structure of the City's appointive boards and their cost. B. The City agencies which staff the various boards and commissions have reviewed all costs associated with providing support to the appointive boards including materials and supplies, training and travel, staff time, and member compensation. C. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter Section 2. Section 2-325 of the Santa Ana Municipal Code is hereby amended such that It reads as follows: Sec. 2-325. Compensation for members of boards, commissions. The members of the following boards and commissions of the City shall receive the compensation as set forth herein: (a) Community Redevelopment and Housing Commission, fifty dollars ($50.00) per meeting, three (3) meetings maximum per month, plus twenty dollars ($20.00) per month automobile allowance. (b) Personnel Board, fifty dollars ($50.00) per meeting. (c) Planning Commission, fifty dollars ($50.00) per meeting, three (3) meetings maximum per month, plus fifty dollars ($50.00) per month automobile allowance. Ordinance No. NS-XXXX Page 1 of 3 11 A-3 (d) Historic Resources Commission, fifty dollars ($50.00) per meeting, two (2) meetings maximum per month. (e) Board of Recreation and Parks, fifty dollars ($50.00) per meeting, two (2) meetings maximum per month. (f) Environmental and Transportation Advisory Committee, fifty dollars ($50.00) per meeting, two (2) meetings maximum per month. (g) Youth Commission, one (1) meeting per month, three (3) special meetings maximum per year with the compensation of fifty dollars ($50.00) per meeting for regular commission members, twenty-five dollars ($25.00) per meeting for alternate members, and ten dollars ($10.00) per meeting for associate members. Section 3. If any section, subsection, sentence, clause, 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, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this _ day of .201 . APPROVED AS TO FORM: Sonia Carvalho, City Attorney By: Laura Rossini, Senior Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: ABSENT: Councilmembers: Ordinance No. NS-XXXX Page 2 of 3 Miguel A. Pulido Mayor 11 A-4 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 -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Maria D. Huizar Clerk of the Council City of Santa Ana Ordinance No. NS -2795 Page 3 of 3 11 A-5 11 A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: ORDINANCE SECOND READING - AMENDMENT NO. 2017-01 TO AMEND CERTAIN SECTIONS OF CHAPTER 18 AND 21 OF THE SANTA ANA MUNICIPAL CODE (MEDICAL MARIJUANA COLLECTIVES / COOPERATIVES AND LICENSES) — CITY OF SANTA ANA, APPLICANT {STRATEGIC PLAN NOS. 3, 2; 3, 51 RECOMMENDED ACTION Place ordinance on second reading and adopt. CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 si Reading ❑ Ordinance on 2 n Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER DISCUSSION On June 20, 2017, the following ordinance was introduced for first reading and City Council authorized publication of title by a vote of 5-0 (Pulido abstained and Tinajero absent): ORDINANCE NO. NS -2918 - ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CERTAIN SECTIONS OF CHAPTER 18 AND CHAPTER 21 OF THE SANTA ANA MUNICIPAL CODE PERTAINING TO MEDICAL MARIJUANA COLLECTIVES (SECTION 18-611, SECTION 18-613, SECTION 18-617.5, SECTION 18-618, SECTION 18-620, SECTION 18-621, AND SECTION 18-622 OF ARTICLE XIII OF CHAPTER 18), AND ADDING SECTION 21-131 OF ARTICLE XII OF CHAPTER 21 OF THE SANTA ANA MUNICIPAL CODE 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 imp/act associated with this action. n�Ye Maria D. Huizar, Clerk of the Council EXHIBIT: Ordinance No. NS -2918 11 B-2 LS 7.5.17 ORDINANCE NO. NS-XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CERTAIN SECTIONS OF CHAPTER 18 AND CHAPTER 21 OF THE SANTA ANA MUNICIPAL CODE PERTAINING TO MEDICAL MARIJUANA COLLECTIVES (SECTION 18-611, SECTION 18-613, SECTION 18-617.5, SECTION 18-618, SECTION 18-620, SECTION 18-621, AND SECTION 18-622 OF ARTICLE XIII OF CHAPTER 18), AND ADDING SECTION 21-131 TO ARTICLE XII OF CHAPTER 21 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. On November 4, 2014, Santa Ana voters approved Santa Ana's Medical Marijuana Regulatory Program ordinance ("Measure BB") allowing up to twenty (20) medical marijuana retail cannabis collectives/cooperatives ("dispensaries"). B. Following the adoption of Measure BB, the provisions of the measure were codified in Chapters 18 and 21 of the Santa Ana Municipal Code. The City also established an implementation plan, enforcement program, administrative policies, and best practices. C. In May 2016, following initial implementation of the ordinance, the City held a roundtable discussion that invited stakeholders, dispensary owners, and members of the medical marijuana industry to meet with City staff regarding the implementation of Measure BB. A second roundtable was held in February 2017. Participants of the roundtable discussions voiced opinions on various aspects of the regulatory program and provided their recommendations for future policy level consideration. D. Following these roundtable discussions, staff prepared options to streamline Measure BB and create more business -friendly conditions for the existing collectives/cooperatives. E. The City of Santa Ana proposes to amend Chapter 18 to allow the following modifications to the existing medical marijuana ordinance/Measure BB: 1. Increased signage opportunities, 2. Increased hours of operation, 3. Eliminate cash reserve limits, 4. Allow delivery services, 5. Amend financial audit requirements, 6. Adopt by ordinance certain administrative procedures, 7. Add definitions to the ordinance, 8. Allow Transferability of Collective/Cooperative Business License, as well as general updating of the ordinance. Ordinance No. NS-XXXX Page 1 11 B-3 F. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Pursuant to the California Environmental Quality Act ("CEQA") and the state CEQA Guidelines, the adoption of this Ordinance is exempt from CEQA review pursuant to California Code of Regulations section 15061(b)(3), which is applicable if it can be seen with certainty that there is no possibility that the project may have a significant effect on the environment. As a result, a Notice of Exemption will be filed upon the adoption of this ordinance. Section 3. Section 18-611, subdivisions (r), (s) and (t) are hereby added to Article XIII of Chapter 18 of the Santa Ana Municipal Code to read in full as follows: Sec. 18-611. - Definitions. (Not in alphabetical order) (a) "Cultivation" and/or "Cultivate" shall mean the planting, growing, harvesting, drying, processing, or storage of one (1) or more marijuana plants or any part thereof. (b) "Medical marijuana collective" or "cooperative" or "collective" means any facility or location where medical marijuana is made available and/or distributed by or to one (1) or more of the following: a primary caregiver, a qualified patient or a person with an identification card in strict accordance with California Health and Safety Code Section 11362.5 et seq., as sometimes amended. A "medical marijuana collective" shall not include the following uses, as long as the location of such uses are otherwise regulated by this Code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as such use complies strictly with applicable law including, but not limited to, Health and Safety Code Section 11362.5 et seq. (c) 'Identification card" shall have the same definition as that contained in Health and Safety Code § 11362.7 et seq., as sometimes amended. (d) "Manager" means any person responsible for the establishment, organization, supervision, or oversight of the operation of a Collective, including but not limited to members who perform the functions of president, vice-president, director, operating officer, financial officer, secretary, or treasurer. Ability to control one (1) or more of the following functions shall be prima facie evidence that such person is a manager: (1) To hire, select, or separate employees or staff, including volunteers; (2) To acquire facilities, furniture, equipment or supplies other than occasional replenishment of stock; Ordinance No. NS-XXXX Page 2 11 B-4 (3) To disburse funds of the business other than occasional expenditures for replenishment of stock; or (4) To make, or participate in making, policy decisions relative to the operations of the business. (e) "Marijuana' shall have the same definition as that contained in Health and Safety Code § 11018 as sometimes amended. (f) "Medical marijuana' shall have the same definition as that contained in Health and Safety Code § 11362.5 et seq., as sometimes amended. (g) 'Primary caregiver" shall have the same definition as that contained in Health and Safety Code § 11362.5 and 11362.7, as sometimes amended. (h) "Qualified patient' shall have the same definition as that contained in Health and Safety Code § 11362.5 as sometimes amended. (i) 'Private Residence" shall have the same definition as that contained in Health and Safety Code section 11362.2(5). (j) 'Premises" means a single, legal parcel of property. Where contiguous legal parcels under common ownership or control, such contiguous legal parcels shall constitute a single "premises' for purposes of this chapter. (k) 'Parcel' means property assigned a separate parcel number by the Orange County assessor. (1) "Marijuana Products' shall have the same definition as that contained in Health and Safety Code section 11018.1. (m) "Marijuana Accessories' shall have the same definition as that contained in Health and Safety Code section 11018.2. (n) "Personal Cultivation" shall mean the planting, cultivating, harvesting, drying, or processing of marijuana plants for personal use within a private residence or accessory structure to a private residence. (o) "Commercial Cultivation" shall mean the planting, cultivating, harvesting, drying, or processing of marijuana plants in any structure other than a private residence. (p) "Outdoor Cultivation" shall mean the planting, cultivating, harvesting, drying, or processing of marijuana plants in any location within the City of Santa Ana that is not within a fully enclosed and secure structure. (q) "Fully enclosed and secure structure' means a space within a building, greenhouse or other structure which has a complete roof enclosure supported by connecting walls extending from the ground to the roof, which is secure against unauthorized entry, provides complete visual screening, and which is accessible only through one or more lockable doors. (r) "Delivery" means the commercial transfer of medical cannabis or medical cannabis products from a dispensary, up to an amount determined to be authorized by the State of California, or any of its departments or divisions, to qualified patients and their caregivers. "Delivery" also includes the use by a dispensary of any technology platform owned, controlled, and/or licensed by the dispensary, or independently licensed by the State of California under the State law (as amended from time to time), that enables anyone to arrange for or facilitate the Ordinance No. NS-XXXX 11B-5 Page 3 commercial transfer by a licensed dispensary of medical cannabis or medical cannabis products. For the purposes of this article, "delivery" does not include distribution or purchase of cannabis from a licensed cultivator, and cannabis products from a licensed manufacturer, for sale to a licensed dispensary or a wholesale establishment. (s) "Dispensary" means a premises where medical cannabis or medical cannabis products, or devices for the use of medical cannabis or medical cannabis products are offered, either individually or in any combination, for retail sale, including an establishment that delivers, pursuant to Business and Professions Code § 19340, medical cannabis and medical cannabis products as part of a retail sale. (t) 'Responsible person" means any of the following: (1) A person who causes a Code violation to occur. (2) A person who maintains or allows a Code violation to continue, by his or her action or failure to act. (3) A person whose agent, employee, or independent contractor causes a Code violation by its action or failure to act. (4) A person who is the owner of, and/or a person who is a lessee or sub lessee with the current right of possession of, real property where a property -related Code violation occurs. (5) A person who is the on-site manager of a business who normally works daily at the site when the business is open and is responsible for the activities of such premises. For the purposes of this section "person" includes a natural person or legal entity, and the owners, majority stockholders, corporate officers, trustees, and general partners of a legal entity. Section 4. Section 18-613 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby amended to read in full as follows: Sec. 18-613. - Operating Standards. (a) At all times the collective is open, a collective shall provide at least one security guard who is licensed, possesses a valid Department of Consumer Affairs "security guard card", and has a valid Santa Ana Business License. (b) The security guard and collective personnel shall monitor the site and the immediate vicinity of the site to assure that patrons immediately leave the site and not consume medical marijuana in the vicinity of the collective or on the property or in the parking lot. (c) Exterior signage shall comply with Article XI of Chapter 41 of the Santa Ana Municipal Code and may not be externally or internally illuminated. Interior signage or advertising may not be visible from the exterior. Collectives and dispensaries must comply with the advertising and marketing provisions of Business and Professions Code §§ 26150-26155. (d) No recommendations from a doctor for medical marijuana shall be issued on-site. (e) There shall be no on-site sales of alcohol or tobacco products, and no on-site consumption of food, alcohol, tobacco or marijuana by patrons. Ordinance No. NS-XXXX Page 4 11 B-6 (f) Hours of operation shall be limited to: 7:00 a.m. to 11 p.m. daily. No licensed dispensary/collective shall be open to the public between the hours of 11:01 p.m. and 6:59 a.m. of any day. (g) The property provides a sufficient odor absorbing ventilation and exhaust system so that odor generated inside the property is not detected outside the property, anywhere on adjacent property or public rights-of-way, or within any other unit located within the same building as the collective. (h) A collective shall only dispense medical marijuana to qualified patients and their caregivers as defined by California Health and Safety Code § 11362.5 (Proposition 215). This shall include possession of an original valid doctor's recommendation, not more than one (1) year old, for medical marijuana use by the patient. (i) A collective shall notify patrons of the following both verbally and through posting of a sign in a conspicuous location: (1) Use of medical marijuana shall be limited to the patient identified on the doctor's recommendation. Secondary sale, barter or distribution of medical marijuana is a crime and can lead to arrest. (2) That loitering on and around the collective site is prohibited by California Penal Code § 647(e) and that patrons must immediately leave the site and not consume medical marijuana in the vicinity of the collective or on the property or in the parking lot. (3) Forgery of medical documents is a felony crime. (4) A warning that patrons may be subject to prosecution under federal marijuana laws. (5) That the use of medical marijuana may impair a person's ability to drive a motor vehicle or operate machinery. 0) A collective shall not provide marijuana to any individual in an amount not consistent with personal medical use. (k) Reserved. (1) No one under twenty-one (21) years of age shall be permitted to enter establishment, unless such person is a qualified patient and is accompanied by his or her primary caregiver, licensed attending physician, parent(s) or documented legal guardian. (m) A collective shall provide the name and phone number of an on-site staff person to the police department and the Code Enforcement Division of the Planning and Building Agency for notification if there are operational problems with the establishment. (n) Each collective operator(s) and employees shall complete a criminal background check. Employees, managers or volunteers may not have been convicted of, or plead guilty/no- contest to a felony or misdemeanor drug charge within the past four (4) years. (o) Marijuana shall not be grown or cultivated at collective sites, except that cuttings of the marijuana plant may be kept or maintained on-site for distribution to qualified patients and primary caregivers as follows: (1) The cuttings shall not be utilized by a collective as a source for the provision of marijuana for consumption on-site, however, upon provision to a qualified patient or primary caregiver, that person may use the cuttings to cultivate marijuana plants off-site for their Ordinance No. NS-XXXX Page 5 11 B-7 own use and they may also return marijuana from the resulting mature plant for distribution by the collective. (2) For the purposes of this paragraph, the term "cutting" shall mean a rootless piece cut from a marijuana plant, which is no more than six (6) inches in length, and which can be used to grow another plant in a different location. (p) A collective shall comply with applicable provisions of the California Health and Safety Code §§ 11362.5 through 11362.83, inclusive. (q) If food is distributed, the collective shall comply with all relevant state laws and city ordinances pertaining to the preparation, distribution and sale of food. (r) The location, interior and exterior, shall be monitored at all times by web -based closed-circuit television for security purposes. The camera and recording system must be of adequate quality, color rendition and resolution to allow the ready identification of any individual committing a crime anywhere on or adjacent to the location. The recordings shall be maintained for a period of not less than ninety (90) days. The police department may request the recordings in connection with an investigation. If the recordings are not voluntarily provided, the police department may seek a warrant or court order for the recordings. (s) The location shall have a centrally -monitored fire and burglar alarm system and the building or the portion of the building where the collective is located shall contain a fire -proof safe. (t) No manufacture of concentrated cannabis in violation of California Health and Safety Code section 11379.6 is allowed. (u) No collective shall operate for profit. Cash and in-kind contributions, reimbursements, and reasonable compensation provided by members towards the collective's actual expenses of the growth, cultivation, and provision of medical marijuana shall be allowed provided that they are in strict compliance with State Law. All such cash and in-kind amounts and items shall be fully documented. (v) If the collective operator is not the owner of the property where the collective is to operate, the operator shall provide evidence that the property owner(s) consent to the operation of a collective on the property. (w) Collectives must obtain and maintain a valid City business license at all times as a condition for receiving, renewing, and maintaining their regulatory safety permit. (x) Occupancy shall not exceed that required under the Uniform Building Code and Uniform Fire Code, and the maximum occupancy load shall be posted at the main entrance. Section 5: Section 18-615 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby amended to read as follows: Sec. 18-615. - Zones permitted. Collectives. No collective shall operate within a residential (R-1, R-2, R-3, R-4, RE, CR) zone, Professional (P) zone, Arterial Commercial (C-5) zone, Planned Shopping Center (C-4) zone, Specific Development (SD), Specific Plan (SP) or Agricultural (A-1) zone. A Collective may only operate in an Industrial zone (M-1, M-2) in accordance with this article. Ordinance No. NS-XXXX Page 6 11 B-8 Section 6: Section 18-617.5 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby amended to read as follows: Sec. 18-617.5. - Audits. Annual audits. No later than June 30 of every year, each collective shall file with the City an audit or financial review of its operations of the previous calendar year. The form and contents of the document shall be specified by the Executive Director of Finance and Management Services, or his/her designee. Section 7: Section 18-618 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby amended to read in full as follows: Sec. 18-618. - Inspection and enforcement responsibilities. The Code Enforcement Division of the Planning and Building Agency may enter and inspect the location of any collective between the hours of 7:00 a.m. and 11:00 p.m., or at any reasonable time, to ensure compliance with this article. In addition, a designated unit within the police department may enter and inspect the location of any collective and the recordings and records maintained as required by this article, except that the inspection and copying of private medical records shall be made available to the police department only pursuant to a properly executed search warrant, subpoena, or court order. It is unlawful for any owner, responsible person, landlord, lessee, member (including but not limited to a member engaged in the management), or any other person having any responsibility over the operation of the collective to refuse to allow, impede, obstruct or interfere with an inspection, review or copying of records and closed-circuit monitoring authorized and required under this article, including but not limited to, the concealment, destruction, and falsification of any recordings, records, or monitoring. Section 8: Section 18-620 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby amended to read in full as follows: Sec. 18-620. - Compliance with this article and state law. (a) It is unlawful for any person to: (i) Cause, permit or engage in the cultivation, possession, distribution or giving away of marijuana, or (ii) Own establish, operate, use or permit the establishment or operation of a medical marijuana collective or cooperative, or to participate as an employee, contractor, agent, responsible person or volunteer of a collective or cooperative, except as provided in this article, and pursuant to any and all other applicable local and state laws. (iii) The prohibition in subsection (ii) above includes, renting, leasing, or otherwise permitting a medical marijuana business to occupy or use a location, vehicle, or other mode of transportation. Ordinance No. NS-XXXX Page 7 11 B-9 (b) It is unlawful for any person to cause, permit or engage in any activity related to medical marijuana except as provided in Health and Safety Code Sections 11362.5 et seq., and pursuant to any and all other applicable local and state laws. (c) It is unlawful for any person to knowingly make any false, misleading or inaccurate statements or representations in any forms, records, filings or documentation required to be maintained, filed or provided to the City under this article, or to any other local, state or federal government agency having jurisdiction over any of the activities of collectives. (d) It shall be the sole responsibility of the members engaged in the management of the collective to ensure that the collective is at all times operating in a manner compliant with all applicable state laws and this article. Nothing in this article shall be construed as authorizing any actions which violate state law with regard to the cultivation, transportation, provision, and sale of medical marijuana. (e) Cultivation of Marijuana. (1) Personal Cultivation. Individuals 21 years of age or older may plant, cultivate, harvest, dry, or process up to (6) living marijuana plants for personal use in a private residence or accessory structure to a single private residence in the City of Santa Ana and must comply with the following requirements: (i) The marijuana cultivation area shall be located indoors within a private residence or accessory structure on a single parcel of property; (ii) No more than six (6) living marijuana plants is permitted for indoor personal cultivation; (iii) Marijuana in excess of 28.5 grams produced by plants kept for indoor personal cultivation must be kept in a locked space on the grounds of the private residence not visible from the public right -of way. (iv) There shall be no exterior visibility or evidence of marijuana cultivation outside the private residence from the public right-of- way, including but not limited to any marijuana plants, equipment used in the growing and cultivation operation, or any light emanating from the cultivation; or (v) The cultivation may not violate any California Building, Electrical or Fire Codes or any other health and safety standards. (2) Commercial Cultivation. Commercial cultivation of marijuana or medical marijuana is prohibited anywhere in the City. No person, including a qualified patient or primary caregiver, shall engage, permit, or participate in the commercial cultivation of marijuana in the City. (3) Outdoor Cultivation. Outdoor cultivation of marijuana or medical marijuana is prohibited anywhere in the City. No person, including a Ordinance No. NS-XXXX Page 8 11B-10 qualified patient or primary caregiver, shall engage, permit, or participate in the outdoor cultivation of marijuana in the City. (4) Nuisance. (i) It is hereby declared to be unlawful, a public nuisance, and a violation of this Chapter for any person owning, leasing, occupying, or having charge or possession of any parcel within the City to cause or allow such parcel to be used for the cultivation of marijuana, unless the person is authorized by state law to grow marijuana within a private residence, and such authorized person is complying with all requirements of this Chapter. (5) Public Nuisance Prohibited. (i) It is hereby declared to be unlawful and a public nuisance for any person owning, leasing, occupying, or having charge or possession of any parcel within the City to create a public nuisance in the course of cultivating marijuana plants or any part thereof in any location, indoor or outdoor. A public nuisance may be deemed to exist, if such activity produces: (1) Odors which are disturbing to people of reasonable sensitivity residing or present on adjacent or nearby property or areas open to the public; (2) Repeated responses to the parcel by law enforcement personnel; (3) A repeated disruption to the free passage of persons or vehicles in the neighborhood, excessive noise which is disturbing to people of normal sensitivity on adjacent or nearby property or areas open to the public; (4) Any other impacts on the neighborhood which are disruptive of normal activity in the area including, but not limited to, grow lighting visible outside the dwelling, excessive vehicular traffic or parking occurring at or near the dwelling, and excessive noise emanating from the dwelling. (5) Outdoor and Commercial growing and cultivation of marijuana. (f) A permitted medical marijuana dispensary may deliver medical marijuana only to a qualified patient or caregiver. Medical marijuana delivery services by dispensaries possessing regulatory safety permits must comply with Business and Professions Code §19340. Delivery of cannabis from a dispensary permitted pursuant to this Chapter can only be made in a city or county that does not expressly prohibit it by ordinance. Delivery services by dispensaries not in possession of regulatory safety permits is expressly prohibited. Section 9: Section 18-621 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby amended to read in full as follows: Ordinance No. NS-XXXX Page 9 11B-11 Sec. 18-621. - Violation and enforcement. A. Violation/enforcement Each and every violation of this article shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by this Code. Additionally, as a nuisance per se, any violation of this article shall be subject to injunctive relief, revocation of the collective's registration, revocation of the certificate of occupancy for the location, disgorgement and payment to the City of any and all monies unlawfully obtained, costs of abatement, costs of investigation, attorney fees, and any other relief or remedy available at law or equity. The City may also pursue any and all remedies and actions available and applicable under local and state laws for any violations committed by the collective and persons related or associated with the collective. B. Suspension or revocation. When the Chief of Police finds that any person holding a regulatory safety permit under the provisions of Chapter 18 has violated the provisions of this chapter or is found guilty of conduct which would form the basis of denial of the regulatory safety permit as set forth in Article XIII of Chapter 18, s/he may revoke or suspend the permit. No such revocation shall become effective until the regulatory safety permit holder has been notified in writing by certified mail of the right to appeal the revocation decision pursuant to the provisions or Chapter 3 of this Code. If a timely appeal is filed, the revocation shall be effective only upon decision of the City Council. Otherwise, the revocation shall become effective after the timely appeal period has passed. Section 10: Section 18-622 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby added to read in full as follows: Sec. 18.622. — Transfer of Ownership. A. Upon the transfer of any interest in a collective/cooperative, the regulatory safety permit shall be null and void. Any person, firm or entity desiring to own or operate the collective/cooperative shall make a new application. Prior to or concurrent with the submission of said application the transferee shall obtain all required business licenses, post all required security deposits, acquire all necessary, certificates, permits or other licenses allowing the doing of any act which the person paying or holding the same would not otherwise be entitled to do; and any permit, license, variance or other instrument of approval or evidence that any conditions exist as required by any other section of this Code or by any statute or code provisions of the state must first be obtained or complied with before the doing of any act or thing for which it is required. A fee as established by resolution of the City Council shall be payable for each such application involving transfer of any interest in an existing collective/cooperative. The provisions of section 18-617.1 and 18-617.2 of this chapter shall apply to any person, firm, or entity applying for a regulatory safety permit for premises previously used as such establishment. B. Any such transfer of any interest in an existing collective/cooperative or any application for an extension or expansion of the building or other place of business of the Ordinance No. NS-XXXX Page 10 11B-12 collective/cooperative shall require inspection and compliance with section 18-618 of this chapter. C. The owner or operator of a collective/cooperative shall be responsible for notifying the City of any intention to rename, change management, or convey the business to another person/entity. Notification to the City must be made a minimum of sixty (60) days prior to such transfer. Section 11: Section 18-622-649 of Article XIII of Chapter 18 of the Santa Ana Municipal Code is hereby amended to read in full as follows: Secs. 18.623-18-649. - Reserved. Section 12: Section 21-131 is hereby added to Article XII of Chapter 21 of the Santa Ana Municipal Code and shall read as follows: Sec. 21-131. — Transferability of Collective/Cooperative Business License Section 21-67 of this chapter notwithstanding, business licenses issued to Collective/Cooperatives pursuant to this article shall be transferable or assignable upon presentation of a valid regulatory safety permit issued in the name of the transferee or assignee. Section 13. If any section, subsection, sentence, clause, 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, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Ordinance No. NS-XXXX 11B-13 Page 11 ADOPTED this day of APPROVED AS TO FORM Sonia R. Carvalho, City Attorney Lisa Storck Assistant City Attorney AYES Miguel A. Pulido Mayor Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: 2017. 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- to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXXX Page 12 11B-14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: ORDINANCE SECOND READING: ADOPTION OF CITY BUDGET FISCAL YEAR 2017-18 AND ADOPT RESOLUTION TO AMEND THE CITY'S BASIC CLASSIFICATION AND COMPENSTATION PLAN {STRATEGIC PLAN NO. 4, 2A} / RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1a' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Place ordinance (Exhibit 1) on second reading and adopt the fiscal year 2017-18 City Budget as amended by the City Council (Exhibit 2). 2. Adopt a resolution to amend and reestablish the City's basic classification and compensation plan (Exhibit 3). 3. Approve Carry -forward resulting from Contractual/Project savings during FY 2016-17 within the General Fund in the amount of $65,000 as result of the inclusion of the Legal Defense Fund program 4. Increase the City and General Fund Budget in the amount of $35,000 as a result of the inclusion for the formation of the Police Department Oversight Commission Alternative Option: Adopt a resolution to approve continued funding for fiscal year 2017-2018 equal to the expenditures from June of fiscal year 2016-2017. DISCUSSION On June 20, 2017, the City Council conducted the required public hearing regarding the Proposed Fiscal Year 2017-18 City Budget (Budget) and approved the first reading of the budget ordinance. The City Budget for FY 2017-18 totals $510,713,778 which includes appropriation in the amount of $234,235,795 for the City's General Fund. Public comments were received and City Council discussed additions and modification to the budget. Staff has developed a list of the requested changes for consideration by the City Council (Exhibit 2). The following is a summary of those changes. 11C-1 Ordinance — Second Reading: FY 17-18 Budget July 5, 2017 Page 2 Direction was given to explore the addition of the Youth Services position. This position would be under the Parks Recreation and Community Services Agency. In order to complete this request, Staff has included the title of a Youth Services Supervisor to the City's Basic Classification and Compensation Plan (Exhibit 3). Funding for this position has been identified within the existing Agency budget from Part -Time salaries. Inclusion of this position will provide a central resource for youth activities across all City departments. The position of Economic Development Specialist II to the Community Development Agency has been included in the budget and is funded through salary savings from the vacant Community Development Agency Executive Director. This position would allow the City to provide a robust economic development program, and assist with attraction, retention and expansion of businesses. The City Attorney has expressed interest, with concurrence from the City Council, to have flexibility to utilize funds in the Contractual Services account to be available in the salaries account to add an additional Assistant City Attorney position. The position would allow for increased enforcement of marijuana enforcement. This service is currently provided by contract law firms. The City Council also provided input on including seed money for Legal Defense Fund for immigration resources. These funds would be identified from general fund carry forward and assigned to the Non -Departmental account. Funding has also been included to investigate options to assist Council in making decisions regarding the possible formation of a police review or oversight board. Funds would be included in the City Attorney's Office budget. Staff received a request to include the budget principles outlined in Management Partners' Budget Stabilization Study. Upon direction from the City Council, staff will review the budget principles and the inclusion into the City's Fiscal Policy/Principles. This would ensure that the City's policies/principles reflect best practices in public financial management. Alternative Option -No Budget Approval In accordance with Section 607 of the Santa Ana City Charter (Charter), the City Council is required to adopt a budget for the ensuing fiscal year on or before July 31. As an alternative; in the event the second reading of the budget ordinance is not approved and thus no Budget is adopted. It will be necessary for the City Council to adopt the said Resolution (Exhibit 4) to ensure continued orderly operation of City Business. Specifically, Section 607 of the Charter allows for appropriations to be in the amounts equal to the expenditures of the several departments and/or divisions during the month of June (e.g. June 2017). Additionally, approval of this resolution will establish a moratorium in hiring new personnel, and prevents the City from entering into new contractual obligations. 11C-2 Ordinance — Second Reading: FY 17-18 Budget July 5, 2017 Page 3 Furthermore, the following ordinance was introduced for first reading and City Council authorized publication of title by a vote of 5-1 (Martinez dissented and Tinajero absent): ORDINANCE NO. NS -2919 - ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROPRIATING MONIES TO THE SEVERAL OFFICES, AGENCIES, AND DEPARTMENTS OF THE CITY FOR FISCAL YEAR BUDGET PERIOD COMMENCING JULY 1, 2017 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #4 — City Financial Stability, Objective #2 (provide a reliable five-year financial forecast that ensures financial stability in accordance with the strategic plan), Strategy A (adopt a budget that is in alignment with the financial forecast and strategic plan). FISCAL IMPACT The addition of the City Attorney's Office budget to investigate Police Department oversight options will increase both the City and General Fund Budgets respectively in the amount of $35,000. The expenditure increase is offset by a corresponding increase in the revenue account of Earnings on Investment (01102002-58000) to $753,000. The increase in revenue is as a result of a recent increase by the Federal Government of interest rates which impact the City's investment portfolio in a positive manner. With the approval of the Second Reading, the proposed fiscal year 2017-18 budget in the amount of $510,713,778 will be appropriated to the City's various funds, departments, programs and enterprise activities. Of those amounts, $234,235,795 will be appropriated to the various General Fund operating departments. Francisco Gutierrez Executive Director Finance and Management Services Agency EXHIBITS: 1. Ordinance No. NS -2919 2. City Council Requested Modifications to FY 17-18 Budget 3. Resolution (City's Basic Classification and Compensation Plan) 4. Resolution (Interim funding for fiscal year 2017-18) 11C-3 11C-4 LS 6(6117 ORDINANCE NO. NS-XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROPRIATING MONIES TO THE SEVERAL OFFICES, AGENCIES, AND DEPARTMENTS OF THE CITY FOR FISCAL YEAR BUDGET PERIOD COMMENCING JULY 1, 2017 THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines, and declares as follows: A. The City Manager has prepared and submitted to the City Council, pursuant to Section 605 of the City Charter, a proposed budget for expenditures for the fiscal year commencing July 1, 2017. B. In accordance with Section 606 of the City Charter, a public hearing has been held upon the proposed budget of expenditures after notice of such public hearing had been published in the manner prescribed in Section 606 of the City Charter. C. The proposed budget of expenditures duly submitted and considered as herein stated, together with any supplemental revisions and amendments thereto, was approved, adopted, and fixed by the City Council as the budget of the City for fiscal year 2017-2018, commencing July 1, 2017, in the amounts and for the funds, purposes, functions, department activities, and programs as therein set forth, including the Seven -Year Capital Improvement Program Plan update per Orange County Transportation Authority .Measure M2 eligibility requirement. The adopted budget, including any supplemental revisions and amendments, together with a copy of the appropriation ordinance, shall be placed in the official files of the Clerk of the Council. Section 2. There are hereby appropriated to the several offices, agencies, and departments of the City, being the respective object and purposes specified in that certain document entitled " Fiscal Year 2017-2018 City Budget", a copy of which is on file in the Office of the Clerk of the Council, out of the various funds of the City for fiscal year 2017-2018, the several amounts stated as proposed expenditures from such funds, respectively, in those columns of the Budget that are headed "FY 17-18". Each aggregate of expenditures so specified in the Budget for the fiscal year for each program shall be deemed to be an appropriation for a single object and purpose within the meaning of Section 609 of the City Charter, except that as to any office, department, Exhibit 1 Ordinance No. NS - Page 1 of 4 11C-5 or agency of the City for which more than one program is designated in Section 2 (General Fund Operating Budget) of the Budget, the aggregate expenditure authorized for all programs in Section 2 of each such office, department, or agency shall be deemed to be an appropriation for a single object and purpose within the meaning of Section 609 of the City Charter. Section 3. The appropriations hereby made shall constitute the maximum expenditures authorized for the several offices, agencies, and departments opposite which the amounts of such appropriations are shown in the Budget. Section 4. No warrant shall be issued or indebtedness incurred for any purpose that exceeds the unexpended balance of the appropriations established by this ordinance, unless such appropriation shall have been amended or supplemented by the City Council in the manner set forth in Section 609 of the City Charter. The City Manager is hereby authorized to make revisions between the items included -within any such appropriation if, in his/her opinion, such revisions are necessary and proper. Section 5. In accordance with Governmental Accounting Standards Board Statement 54, the City Manager or his/her designee is hereby authorized, as of the date of this ordinance, to allocate assigned governmental funds' balances to specific programs and activities as deemed necessary and proper. Section 6. The Executive Director of Finance and Management Services is hereby authorized to transfer monies in accordance with the Interfund Transfers listed in the Budget in such amounts and at such times during the fiscal year as he/she may determine necessary to the competent operation and control of City business, except that no such transfer shall be made in contravention of State law or City ordinance or exceed in total the amount stated herein or as amended by the City Council. Section 7. One certified copy of this appropriation ordinance together with a certified copy of each amendment thereto shall be transmitted by the Clerk of the Council to the Executive Director of Finance and Management Services. Section 8. The City Council of the City of Santa Ana hereby adopts the updated Seven -Year Capital Improvement Program, as set forth in the 2017-2018 City Budget. Section 9. Upon and from the effective date of this ordinance, expenditures of monies appropriated hereby are authorized beginning July 1, 2017. Section 10. The Clerk of the Council shall cause the title of this ordinance to be published as required by law. Section 11. All presently applicable documentation pertaining to the number, titles, qualifications, powers, duties, or compensation of officers or employees of the City, which has been previously approved by resolution or order of the City Council and Ordinance No. NS - Page 2 of 4 11C-6 which is currently on file with the Executive Director of Personnel Services, is incorporated herein and is hereby approved. The City Manager is authorized to create, alter, or abolish any position of employment, or the number, title, qualifications, powers, duties, or compensation thereof, when such action is appropriate to promote the efficiency of the City administrative organization; provided, however, that no such action shall be effective unless and until approved by resolution or order of the City Council. ADOPTED this day of 2017. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: L Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Ordinance No. NS - Page 3 of 4 11C-7 Miguel A. Pulido Mayor CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted 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. Date Ordinance No. NS - Page 4 of 4 Clerk of the Council City of Santa Ana 11C-8 City Council Requested Modifications to Fiscal Year 2017-2018 Budget No. Position/Service Agencv Cost Budget Impact Funding Source A. Youth Services Supervisor Parks, $88,382* $0 Funding from Recreation, Part -Time salaries Community within Agency Services Agency B. Economic Development Community $92,600* $0 Savings resulting Specialist II Development from Executive Agency Director vacancy C. Assistant City Attorney City Attorney's $240,000 $0 Funding from Office existing contractual services D. Legal Defense Fund Non- $65,000 $0 Carryforward Departmental from prior Fiscal City Manager's Year Office E. PD Oversight Formation City Attorney's $35,000 $35,000 Increase in Office Investment Income revenues * For budgeting estimates, the fully burdened costs for the position has a start date of October 1. Exhibit 2 11C-9 LAR 7.5.17 RESOLUTION NO. 2017 -XX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO AMEND RESOLUTION NO. 2015-026 TO EFFECT CERTAIN CHANGES TO THE CITY'S BASIC CLASSIFICATION AND COMPENSATION PLANS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council hereby finds, determines and declares as follows: A. Section 1004, Article X of the City Charter of the City of Santa Ana requires the City Manager to prepare, install and maintain a position classification and pay plan subject to civil service rules and regulations and the approval of the City Council. B. The City Council has amended and reestablished the Basic Classification and Compensation Plan on numerous occasions since adoption. C. On June 16, 2015, the City Council adopted Resolution No. 2015-026 amending and re-establishing the Basic Classification and Compensation Plan for all Full -Time and Part -Time Classifications of Officers and Employees of the City of Santa Ana. D. It is the City's practice to assign job titles that reflect the duties and responsibilities of the classification and are consistent with other classifications within the City's organizational structure as well as comparable job titles in the labor market, while maintaining internal pay equity relationships and attracting and retaining qualified candidates. E. On June 20, 2017, as part of the discussion regarding consideration of the budget for fiscal year 2017-2018, the City Council voted to add two positions to the budget to assist in coordinating the City's youth program and services and to strengthen economic development efforts. Staff has recommended adding a Youth Services Supervisor—position to the Parks,. Recreation and Community Services Agency and an Economic Development Specialist II position to the Community Deve of pment Agency. The Economic Development Specialist II was already part of the City's classification and compensation plan but the Youth Services Supervisor position needs to be added to the City's classification and compensation plan. Exhibit 3 Resolution 2017 -XXX Page 1 of 3 11C-11 11C-12 G. It is now desired to amend Council Resolution No. 2015-026, as amended, in order to effect these changes, as shown below: Section 2: The Santa Ana City Council amends Resolution No. 2015-026, Exhibit "F" as follows: A. Adding the following full time classification titles at the monthly seven -step salary rate range indicated: 7 -Step Salary Rate Range Effective 07/01/16 Monthly Salary Classification Title SSR Minimum -Maximum Youth Services Supervisor 680 $5,776.41-$7,742.31 Section 3: All salary rate range classifications are set forth in the City's "Salary Schedule' as periodically updated. Section 4: That except as amended by this Resolution, all other provisions of Resolutions No. 2015-026 shall remain in full force and effect. Section 5: This Resolution is operative from and after the date upon which it is adopted. ADOPTED this 5th day of July, 2017, APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: sawa, Laura A. Rossini Senior Assistant City Attorney Miguel A. Pulido Mayor 11C-13 Resolution 2017 -XXX Page 2 of 3 11C-14 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- to be the original Resolution adopted by the City Council of the City of Santa Ana on July 5, 2017. Date: Resolution 2017 -XXX Page 3 of 3 11C-15 Clerk of the Council City of Santa Ana 11C-16 jmf 6/21/17; revised src 6/22/17 RESOLUTION NO. 2017 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING INTERIM FUNDING FOR FISCAL YEAR 2017-18 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 Sections -604,-605, and-606=of==the=Santa-Ana-C-ity=C-harter--set=forth=a-process— - - - to present a budget to the City Council, which includes holding a public hearing. B. The City Manager has considered estimates of revenue from all sources and estimates of expenditures required for the proper conduct of the -activities of the City of Santa Ana for Fiscal Year 2017-18 and has submitted to the City Council a proposed budget for Fiscal Year 2017-18 in accordance with the City Charter. C. On June 20, 2017, the City Council held the required public hearing on the budget and approved the first reading of the ordinance adopting the proposed budget for Fiscal Year 2017-18, but also requested from staff additional changes to the budget for consideration at the second reading at the July 5, 2017 meeting. D. On July 5, 2017, the City Council held further budget discussions, but determined that additional time is necessary for the evaluation and approval of the 2017- 18 budget. E. Section 607 of the Santa Ana City Charter directs that the City Council shall adopt a budget for the ensuing fiscal year on or before July 31, but the July 18, 2017 City Council meeting has been cancelled, and the City Council will not meet again until August 1, 2017. F. Accordingly, it is the intention of the City Council to grant interim spending authority to permit the continued orderly operations of the City through August 31, 2017, or until a budget is approved for Fiscal Year 2017-18, whichever comes first. Section 2. To permit the continued orderly operations of the City, interim spending authority is hereby granted through August 31, 2017, or until a budget is approved by the City Council for Fiscal Year 2017-18, whichever comes first. If a budget has not been approved by August 31, 2017, an extension of such authority shall be considered by the City Council. Exhibit 4 Resolution No. 2017 -XXX Page 1 of 3 11C-17 jmf 6/21/17; revised src 6/22117 Section 3. All amounts necessary for the continued operation of the City for the period specified in Section 2 are hereby appropriated for expenditure. In accordance with Section 607 of the City Charter, on a monthly basis, such appropriations shall be in amounts of money equal to the expenditures of the several offices, departments, and divisions of the City during the month of June 2017. Section 4. 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 day of APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: / ^VL- hn M. Funk Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: Councilmembers Councilmembers Councilmembers Councilmembers Miguel A. Pulido Mayor 11C-18 2017. Resolution No. 2017 -XXX Page 2 of 3 jmf 6/21/17; revised src 6/22/17 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of the Council, do hereby certify the attached Resolution No. 2017- to be the original resolution adopted by the City Council of the City of Santa Ana on .2017. Date: Clerk of the Council City of Santa Ana 11C-19 Resolution No. 2017 -XXX Page 3 of 3 11 C-20 REQUEST FOR COUNCIL ACTION LvArLi•1a.0011111 t=1=kiI M -BYA t=9 JULY 5, 2017 TITLE: ORDINANE SECOND READING: GENERAL PLAN AMENDMENT NO. 2017-01 AND AMENDMENT APPLICATION NO. 2017-01 FOR THE AQUA SUPPORTIVE HOUSING PROJECT AT 317 EAST SEVENTEENTH STREET — COMMUNITY DEVELOPMENT PARTNERS, APPLICANT (STRATEGIC PLAN 5,3) CI MANAGER RECOMMENDED ACTION Place ordinance on second reading and adopt. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER On June 20, 2017, the following ordinance was introduced for first reading and City Council authorized publication of title by a vote of 4-1 (Martinez dissented, Sarmiento and Tinajero absent): ORDINANCE NO. NS -2920 - ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AMENDMENT APPLICATION NO. 2017-01 REZONING THE PROPERTY LOCATED AT 317 EAST SEVENTEENTH STREET FROM COMMUNITY COMMERCIAL (C-1) AND MULTIPLE - FAMILY RESIDENCE (R-3) TO SPECIFIC DEVELOPMENT NO. 91 (SD -91) (AA NO. 2017-01) AND ADOPTING SPECIFIC DEVELOPMENT NO. 91 (SD -91) FOR SAID PROPERTY 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. aaozz- Maria D. Huizar, �0 Clerk of the Council EXHIBIT: Ordinance No. NS -2920 11D-1 11 D-2 ORDINANCE NO. NS-XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AMENDMENT APPLICATION NO. 2017-01 REZONING THE PROPERTY LOCATED AT 317 EAST SEVENTEENTH STREET FROM COMMUNITY COMMERCIAL (C-1) AND MULTIPLE - FAMILY RESIDENCE (R-3) TO SPECIFIC DEVELOPMENT NO. 91 (SD -91) (AA NO. 2017-01) AND ADOPTING SPECIFIC DEVELOPMENT NO. 91 (SD -91) FOR SAID PROPERTY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Amendment Application No. 2017-01 has been filed with the City of Santa Ana to change the zoning designation of the parcel located at 317 East Seventeenth Street from Community Commercial (C-1) and Multiple -Family Residence (R-3) to Specific Development No. 91 (SD -91) zoning designation Street (legal description of parcel attached hereto as Exhibit A). General Plan Amendment No. 2017-01 was filed concurrently with the Amendment Application for consistency with the General Plan. B. The zoning designation of the Specific Development No. 91 (SD -91) would allow the development of a 57 -unit supportive housing project with private community space and supportive service offices and bring the rezoned property into consistency with the General Plan land use designation of Urban Neighborhood (UN). C. On May 22, 2017, the Planning Commission held a duly noticed public hearing and voted to recommend that the City Council adopt an ordinance approving Amendment Application No. 2017-01 which is consistent with the General Plan, as amended by General Plan Amendment No. 2017-01. The Planning Commission added one condition that the Applicant shall submit revised architectural elevations with additional colors, materials, windows, or recessed areas subject to the review and approval of the Planning Manager. D. The City Council has reviewed applicable general plan policies and has determined that this proposed rezoning is consistent with the purpose of the general plan. Exhibit 1 Ordinance No. NS-XXXX Page 1 of 4 11 D-3 E. The City Council, prior to taking action on this ordinance, held a duly noticed public hearing on June 20, 2017. F. The City Council also adopts as findings all facts presented in the Request for Council Action dated June 20, 2017 accompanying this matter. G. For these reasons, and each of them, Amendment Application No. 2017- 01 is hereby found and determined to be consistent with the intent and purpose of Chapter 41 of the Santa Ana Municipal Code, thus changing the zoning district is found to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare. Section 2. The Planning Commission of the City of Santa Ana recommends that the City Council adopt an ordinance rezoning the real property located at 317 East Seventeenth Street from Community Commercial (C-1) and Multiple -Family Residence (R- 3) to Specific Development No. 91(SD-91), (AA No. 2017-01) Amended Sectional District Map number 6-5-9 showing the above described change in use district designation, is hereby attached hereto as Exhibit B and incorporated by this reference as though fully set forth herein. This recommendation is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Council Action dated June 20, 2017, and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. Section 3. The City Council has reviewed and considered the information contained in the Negative Declaration (Environmental Review No. 2017-24) prepared with respect to this project. The City Council has, as a result of its consideration of the record as a whole and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act (CEQA) and the State CEQA Guidelines, Environmental Review No. 2017-24 meets all the requirements of CEQA. Section 4. The real property located at 317 East Seventeenth Street in Santa Ana is hereby reclassified from Community Commercial (C-1) and Multiple -Family Residence (R-3) to Specific Development No. 91(SD-91). An amended Sectional District Map, showing the above described changes in use district designation, is hereby approved and attached hereto as Exhibit B and incorporated by this reference as though fully set forth herein. Section 5. Specific Development No. 91 (SD -91) attached hereto as Exhibit C and incorporated by this reference as though fully set forth herein is approved and adopted in its entirety. Section 6. This ordinance shall not be effective unless and until Resolution No. 2017- (Environmental Review No. 2017-24 and General Plan Amendment No. 2017-01) and Ordinance No. 2017- (Amendment Application No. 2017-01) are adopted and become effective. If either resolution and/or ordinance are for Ordinance No. NS-XXXX Page 2 of 4 11 D-4 any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this ordinance shall be null and void and have no further force and effect. Section 7. If any section, subsection, sentence, clause, 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 the 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, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional. Section 8. 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. ADOPTED this _ day of , 2017. APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Miguel A. Pulido Mayor 11D-5 Ordinance No. NS-XXXX Page 3 of 4 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- to be the original ordinance adopted 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. Date: Clerk of the Council City of Santa Ana 11 D-6 Ordinance No. NS-XXXX Page 4 of 4 The land referred to in this Commitment is situated in the City of Santa Ana, County of Orange, State of California, and is described as follows: PARCEL1: BEGINNING AT A POINT ON THE EASTERLY LINE OF SPURGEON STREET, DISTANT NORTHERLY 410.00 FEET FROM THE INTERSECTION OF SAID EASTERLY LINE WITH THE NORTHERLY LINE OF SEVENTEENTH STREET AS SHOWN ON OFFICIAL MAP NO. 1 OF A PORTION OF THE CITY OF SANTA ANA, RECORDED IN BOOK 2, PAGE 24 OF OFFICIAL RECORDS, RECORDS OF ORANGE COUNTY, CALIFORNIA, SAID POINT BEING THE SOUTHWEST CORNER OF LAND DESCRIBED IN A DEED TO HORACE L. SKILES, AND WIFE, RECORDED SEPTEMBER 28, 1955 IN BOOK 3225, PAGE 336 OF OFFICIAL RECORDS; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF SAID LAND OF HORACE L. SKILES AND ITS EASTERLY PROLONGATION 167.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTHERLY PARALLEL WITH THE EASTERLY LINE OF SAID SPURGEON STREET, 70.00 FEET TO THE NORTHERLY LINE OF LAND DESCRIBED IN A DEED TO SARAH COULTER, RECORDED OCTOBER 25, 1909 IN BOOK 168, PAGE 182 OF DEEDS; THENCE EASTERLY ALONG SAID NORTHERLY LINE, 72.75 FEET TO THE SOUTHWESTERLY LINE OF THE SOUTHERN PACIFIC RAILROAD RIGHT OF WAY; THENCE SOUTHEASTERLY ALONG SAID SOUTHWESTERLY LINE, 112.16 FEET TO THE NORTHEASTERLY CORNER OF LAND DESCRIBED IN A DEED TO GEO. B. MACGILLIVRAY, RECORDED DECEMBER 5, 1898 IN BOOK 41, PAGE 21 OF DEEDS; THENCE WESTERLY TO THE NORTHWESTERLY CORNER OF SAID LAND OF GEO. B. MACGILLIVRAY; THENCE SOUTHERLY ALONG THE WESTERLY LINE OF SAID LAND OF GEO. B. MACGILLIVRAY TO THE NORTHEAST CORNER OF LAND DESCRIBED IN A DEED TO DUNWARD F. BENDER AND WIFE, RECORDED FEBRUARY 26, 1941 IN BOOK 1084, PAGE 52 OF OFFICIAL RECORDS; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID LAND OF DUNWARD F. BENDER, 112.00 FEET; THENCE NORTHERLY PARALLEL WITH THE EASTERLY LINE OF SAID SPURGEON STREET, 50.00 FEET TO A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 10.00 FEET FROM THE EASTERLY PROLONGATION OF THE SOUTHERLY LINE OF SAID LAND OF HORACE L. SKILES; THENCE EASTERLY ALONG SAID PARALLEL LINE, 7.00 FEET; THENCE NORTHERLY, PARALLEL WITH THE EASTERLY LINE OF SAID SPURGEON STREET, 10.00 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 2: AN EASEMENT FOR INGRESS AND EGRESS AND PUBLIC UTILITIES OVER A STRIP OF LAND10.00 FEET WIDE, THE NORTHERLY LINE OF SAID 10.00 FOOT STRIP BEING DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EASTERLY LINE OF SPURGEON STREET DISTANT NORTHERLY 410.00 FEET FROM THE INTERSECTION OF SAID EASTERLY LINE WITH THE NORTHERLY LINE OF SEVENTEENTH STREET AS SHOWN ON OFFICIAL MAP NO. 1 OF A PORTION OF THE CITY OF SANTA ANA, RECORDED IN BOOK 2, PAGE 24 OF OFFICIAL RECORDS, RECORDS OF ORANGE COUNTY, CALIFORNIA, SAID POINT BEING THE SOUTHWEST CORNER OF LAND DESCRIBED IN A DEED TO HORACE L. SKILES AND WIFE, RECORDED SEPTEMBER 28, 1955 IN BOOK 3225, PAGE 336 OF OFFICIAL RECORDS; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF SAID LAND OF HORACE L. SKILES AND ITS EASTERLY PROLONGATION, 167.00 FEET. EXHIBIT A 11 D-7 PARCEL 3: THE WEST 50 FEET OF THE SOUTH 180 FEET OF THE FOLLOWING: BEGINNING 15.53 CHAINS EAST OF THE SOUTHWEST CORNER OF SECTION 6, TOWNSHIP 5 SOUTH, RANGE 9 WEST, SAN BERNARDINO BASE AND MERIDIAN; THENCE EAST 3.52 CHAINS, MORE OR LESS, TO THE WESTERLY LINE OF THE SOUTHERN PACIFIC RAILROAD RESERVATION; THENCE NORTHWESTERLY ALONG SAID RESERVATION TO A POINT 6.21 CHAINS DUE NORTH OF THE SOUTH LINE OF SAID SECTION 6, THENCE WEST 0.5 OF A CHAIN; THENCE SOUTH 6.21 CHAINS TO THE POINT OF BEGINNING. PARCEL 4: THAT PORTION OF THE LAND ALLOTTED TO GLASSELL AND CHAPMAN, IN DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK B OF JUDGEMENTS OF THE 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, AND DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE LAND DESCRIBED IN DEED TO JASPER FARNEY AND WIFE, RECORDED JANUARY 23, 1948 IN BOOK 1614, PAGE 124 OF OFFICIAL RECORDS, BEING ON THE SOUTH LINE OF SECTION SIX, TOWNSHIP FIVE SOUTH, RANGE NINE WEST, IN SAID RANCHO AND DISTANT EASTERLY 1074.98 FEET FROM THE SOUTHWEST CORNER OF SAID SECTION SIX; THENCE SOUTH 89° 18'00" EAST 8.00 FEET ALONG THE SOUTH LINE OF SAID SECTION SIX; THENCE NORTH 0° 25' 00" WEST 170.00 FEET; THENCE SOUTH 89° 18'00" EAST TO THE WESTERLY LINE OF THE SOUTHERN PACIFIC RAILROAD RESERVATION; THENCE NORTHWESTERLY ALONG SAID RESERVATION TO A POINT 409.86 FEET NORTH OF THE SOUTH LINE OF SAID SECTION SIX; THENCE WEST 33.00 FEET; THENCE SOUTH 0° 25'00" EAST 229.86 FEET ALONG THE WESTERLY LINE OF LAND DESCRIBED IN DEED TO CHARLES A. MANNING AND WIFE, RECORDED JUNE 3, 1941 IN BOOK 1095, PAGE 346 OF OFFICIAL RECORDS, TO THE NORTHWEST CORNER OF LAND DESCRIBED IN DEED TO CHARLES LINGER AND OTHERS, RECORDED APRIL 30, 1953 IN BOOK 2495, PAGE 476 OF OFFICIAL RECORDS; THENCE SOUTH 89° 18'00" EAST 50.00 FEET TO THE NORTHEAST CORNER OF SAID LAND OF CHARLES LINGER; THENCE SOUTH 00 25'00" EAST 180.00 FEET ALONG THE EAST LINE OF SAID LAND OF CHARLES LINGER AND ITS SOUTHERLY PROLONGATION TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THE SOUTH 40.00 FEET THEREOF INCLUDED WITHIN SEVENTEENTH STREET. ALSO EXCEPTING FROM PARCELS 3 AND 4 THOSE PORTIONS INCLUDED WITHIN PARCELS 1A AND 1B AS DESCRIBED IN THAT CERTAIN FINAL ORDER OF CONDEMNATION, SUPERIOR COURT CASE NO. 160974, A CERTIFIED COPY OF WHICH WAS RECORDED DECEMBER 13, 1972 IN BOOK 10469, PAGE 332 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. APN: 003-153-48 11 D-8 AV AS R1 ! ' 3 Al Al imrA xu a. Al RI R1 f lDaxA R1 IT 3 sR pn.. s A M11 R1 R13 2 R1 RT !1 R1 l RS RI RS AT suu -len> ry R1 R1 R A] �' R1 UFF R+ pvsrnm sv "Iq3, enmory RI PI AVatw av "AT IT R1 Rt <ATwx.A Ao R1 R1 Y R1 R1 A ilv v S 2 R+ RC IN Fi �j RI aMp R1 3 P1 RI p ; Rt R1 R a R1 R1 ct slo c1 -x csIloR Iron GENERAL AGRICULTURAL c5 � ,. et R2 TWO-FAMILYRESIDENCE -S 17TH ST c1 cl e+ C1 COMMUNITY COMMERCIAL GC ce I ce W3 In gps MULTPLE- FAMILY RESIDENCE -OZ SI CMD COMMUNITY COMMERCIALS MUSEUM DIST. MI LIGHT INDUSTRIAL ZONING DISTRICTS FAIRHAVEN AV T. C+ 'Au In cs PI -P 3 i P+ '-amFWOWn� cs RM12 CS In. i8 ! RI Oelc`WODo ;W000 Al RT ASren IT R1 SANTA CLARA AV 'a q� R1 eus Ai Avg CS - z R1 Rt i 2 11.1 S, i ziRI!! R1 R Al GENERAL AGRICULTURAL CSM SOUTH MAN STREET COMMERCIAL DIST. R2 TWO-FAMILYRESIDENCE -S PARKNGMODFICATION C COMMUNITY COMMERCIAL GC GOVERNMENT CENTER R3 MULTPLE- FAMILY RESIDENCE -OZ OVERLAY ZONE CMD COMMUNITY COMMERCIALS MUSEUM DIST. MI LIGHT INDUSTRIAL RI SUBURBAN APARTMENT PLANNEORESDEMTIAL PRO DEVELOPMENT C2 GENERAL COMMERCIAL M2 HEAVY INDUSTRIAL RE RESIDENTIAL ESTATE CI PLANNED SHOPPNGCENTER 0 OPENSPACE SO SPECIFICOEVELOPMENT -HD2 HEIGHT DISTRICT II C5 ARTERIAL COMMERCIAL P PROFESSIONAL SP SPECFICPLAN CR COMMERCIAL RESIDENTIAL Rl SINGLE- FAMILY RESIDENCE SECTIONAL DISTRICT MAP: 6-5-9 e CITY OF SANTA ANA, CALIFORNIA SPECIFIC DEVELOPMENT PLAN NO. 91 Aqua Permanent Supportive Housing Project SECTION 1 — APPLICABILITY OF ORDINANCE The Specific Development zoning district No. 91 (SD -91) for the Aqua permanent supportive housing project site is authorized by Chapter 41, Division 26 Section 41-593 et seq. of the Santa Ana Municipal Code. SD No. 91 contains the specific standards and regulations contained in the residential district, as herein amended, for the purpose of establishing land use regulations and standards. All other applicable chapters, articles, and sections of the Santa Ana Municipal Code are in effect unless expressly superseded by regulations contained in this ordinance. SECTION 2 — PURPOSE The Specific Development Plan No. 91 for the Aqua permanent supportive housing project consists of standards and regulations established for the purpose of protecting the health, safety, and general welfare of the people of the City of Santa Ana by promoting and enhancing the value of property and encouraging the orderly development of the property. The objectives of the Aqua permanent supportive housing project specific development plan include provision of the following: Development of a residential project in an area identified by the 2014- 2021 Housing Element as an opportunity area for infill residential projects. 2. Promotion of the City's image as providing high-quality residential projects for individuals and families of all income groups. A clean and safe environment for the City's residents, workers, and visitors. 4. A visually harmonious development as viewed both internally and externally. Flexibility in development in response to market conditions while achieving overall City and community goals. SECTION 3 — Uses permitted in Specific Development No. 91 The following uses are permitted in the SD -91 district: (a) Fifty-six (56) multiple -family dwelling units for supportive housing and one (I) onsite manager's unit. EXHIBIT C 11D-10 (b) Ancillary onsite community -serving or social service uses. The lobby will be accessible 24-hour a day to residents and staff. (c) Home occupations, pursuant to section 41-192.1 of the Santa Ana Municipal Code. SECTION 4 — Uses subject to a conditional use permit in Specific Development No. 91 (a) Childcare facilities caring for more than eight (8), but no more than fourteen (14) children. SECTION 5 — Maximum permitted floor area ratio (FAR) The maximum authorized building intensity for the Aqua permanent supportive housing project is a floor area ratio (FAR) of 1.3, including residential areas, community -serving areas (e.g., laundry room, office, gym and community room), parking garage and interior corridors. SECTION 6 — Minimum lot area in Specific Development No. 91 The developable lot for the project shall have a minimum lot area of .90 acres. SECTION 7 — Minimum street frontage in Specific Development No. 91 Developable lots shall have a minimum street frontage of at least 58 feet. SECTION 8 — Building height in Specific Development No. 91 No structure shall exceed 45 feet in height, as measured from the lowest adjacent grade of a structure to the top of the structure. SECTION 9 — Development standards in Specific Development No. 91 The Aqua permanent supportive housing project shall be built as shown on the approved project plans included as attachments to the SD. The plans shall govern in the event there is a conflict between the SD with the project plans. In addition, the following standards are applicable to the project: (a) Setbacks. (1) A minimum setback of twelve (12) feet three (3) inches shall be provided between the property line and buildings on Seventeenth Sheet (2) A minimum setback of ten (10) feet shall be provided between the west side property lines and buildings (3) A minimum setback of zero (0) feet shall be provided between the east side property lines and buildings (4) A minimum setback of ten (10) feet nine (9) inches shall be provided between the rear property line and buildings 11D-11 (b) Parking. The minimum off-street parking requirements for the project are as follows: (1) 36 total parking spaces, of which: a. 8 parking spaces shall be tuck -under parking b. 28 parking spaces shall be provided in an enclosed garage (2) A minimum of ten (10) bicycle spaces shall be provided onsite. The design and materials shall comply with the approved materials board submitted for the project during building plan check. (3) Prior to occupancy a parking management plan shall be submitted to the Planning Division for review, identifying parking per unit, services provider parking and guest parking. The plan is subject to approval of the Planning Manager. (c) Pedestrian Walkways and Open Space. The project will provide a minimum of 15% open space in the form of common, landscaped open space areas, deck, courtyard and lobby, mailroom, interior community room, dining room, gym, computer room, laundry rooms, service provider offices and onsite resident services office. (d) Walls/Fences. A solid block wall with a minimum height of six feet shall be constructed along the east, north, and west property lines. The block wall shall be designed to contain a decorative cap, regularly -spaced decorative pilasters, and a decorative finish in accordance to the design provisions contained within the most recent version of the City's design guidelines. (e) Landscaping Detailed landscaping plans shall be submitted to and be approved by the City of Santa Ana Planning Division prior to issuance of a building permit and installed as required in the approved plans. (1) Project Landscaping: a. Landscaping shall be compliant with the City of Santa Ana's Landscape Water Conservation Ordinance. b. All landscape areas shall have a fully automatic irrigation system (including spray or drip) as required by the City of Santa Landscape Water Conservation Ordinance. (2) All meters shall be appropriately screened from public view with trellis work and vines or hedge -type shrub, or be incorporated into the residential structure. (3) The building wall along the easterly property line shall be planted with vines. 11D-12 (4) Maintenance: All plant material shall be maintained per Section 41-609 of the Santa Ana Municipal Code. (f) Architectural and Design Features. (1) Exterior materials. Prior to building plan check the applicant shall submit revised architectural elevations with additional colors, materials, windows, or recessed areas to previously flat facades, subject to the review and approval of the Planning Manager. Exterior materials and finishes for the project shall comply with the approved materials board submitted for the project during building plan check. All trash enclosures and similar ancillary structures shall match the texture, material and color of the building. (2) Hardscapee materials. Enhanced paving materials shall be installed at the driveway entrance and the pedestrian walkway along the main driveway. The actual paving materials shall be approved by the Planning Division. (3) Lighting standards/fixtures. The light fixtures are to integrate design elements of the building and landscape architecture. Lighting is to be designed to confine the direct rays of the artificial lighting within the boundaries of the development. Specifications of light standards/fixtures and photometrics plan shall be submitted to Planning Division for approval. (g) Mechanical Equipment Appurtenances and Conduits All mechanical equipment and all supporting appurtenances and conduits shall be screened from view within designated rooms, inside walls, behind parapets, or through a combination of landscape and hardscape materials. (h) Trash Enclosures Trash bins shall be stored in designated trash enclosures. There shall be an onsite designated trash staging areas only be used on service days and the staging area and bins shall not disrupt vehicular use of the driveway. The minimum requirements needed to service the location shall be clearly indicated on the plans and subject to the approval of the Public Works Agency. (i) Easements Prior to the issuance of building permits all easements shall be relocated or quitclaim within the boundary of the project and building footprints. (j) Maintenance The property shall be maintained free for trash, debris and graffiti. Graffiti shall be removed within ten (10) days after its appearance in accordance with Section 10-227 of the Santa Ana Municipal Code. 11D-13 11D-14 CITY OF SANTA ANA PUBLIC SAFETY AND NEIGHBORHOOD IMPROVEMENT CITY COUNCIL COMMITTEE CANCELLATION NOTICE The City Council Public Safety, Code Enforcement and Neighborhood Empowerment Special Meeting scheduled for Tuesday, June 27, 2017 at 5:30PM has been cancelled. Next Regularly Scheduled Meeting: Tuesday, July115F3QP__, City Hall Ross Annex Conference Room 1600 20 Civic Center Plaza Santa Ana, California 92702 13A-1 13A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: RECEIVE AND FILE CERTIFICATION AND APPROVAL OF FINAL TRACT MAP NO. 17786 BY CITY ENGINEER (520 SOUTH HARBOR BOULEVARD) (ST EGIC LAN NO. 3, 2) CI MANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER This action informs the City Council of the imminent approval of the subdivision based upon the Subdivision Map Act and meeting all of the conditions of approval set by the City. The City Engineer has received Final Tract Map No. 17786 (City Tract Map No. 2015-01) for 520 South Harbor Boulevard (Exhibit 1) from the current owner, KB Home Coastal Inc., a California corporation, and is in the process of reviewing the map for final approval. This map approves subdividing an existing parcel into 35 individual lots for single-family residences, and 10 lettered lots for common areas and private streets. The subdivision is located in the Harbor Mixed Use Transit Corridor Specific Plan (SP -2) zoning district. The Tentative Map No. 17786 was approved by the City Council on August 4, 2015. Pursuant to Section 34-183 of the Santa Ana Municipal Code, the City Engineer shall approve or disapprove this map within 10 days after the City Council meeting of July 5, 2017. 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 imeatT—as�ociated with this action Fred Mousavipo Executive Director Public Works Agency Exhibit 1: Map 17A-1 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: PUBLIC WORKS AGENCY STATUS OF PROJECTS - MONTHLY CAPITAL IMPROVEMENT PROGRAM EXECUTIVE REPORT FOR JUNE 2017 (STRATEGIC PLAN NO. 5, 1} CITNAIANAGER RECOMMENDED ACTION Receive and file. DISCUSSION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1n Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER The June 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 fiscal impact associated with this item. r.H-,, re Mousavipo Executive Director Public Works Agency FM:Io Exhibit 1: Capital Improvement Program — Executive Summary Schedule 19C-1 19C-2 N y E � Ids 9 0 a= 0 NCF i W J � 'a N m oa � m a J o Lu E d F Y N o N V W W 'ate Q Z O O QF d cO 0 Ny8 O OS M Nti NpppO NpN NpN NpyNy NpN Npm �O pNNO 0ppO S8N Np8 p O NO 0NpppO pmOm�Gp^ p„pMNm+OSmN00pT Np SOQ O OOpp ” NN pOTNNp8 N dSNANN M Q F 6 Z OYYW B� NpO�papp W6 g 0 Lu Lq A N N N N A N N w N ~ N N Q •e Y J N Y 6 9 Y Y q Y g E > ti g N O 9 t _0 G L 9 4 O T 6 9 �Qt u S a ,Q pp 2 0 g ✓c ; i m y ; N g' N Y_ a G 3 Y 0 C m 9 i �qn oo uv ya EM ap.�p� D yQQ� y6y 2 E g g- E m °n° q c° V 'Y n C d 6 N y 9 y .� E C d E Y d t N g N C q 6 C C r N O 9 m 6 Y H G M E 'y' A V V L V E Y92 6 Y q N p g Y Y p N Y Y' 9 i N « O T 6 &9 F aN 54 m`u'u 'u rLLr i3O m�N o`�3u w oY _zOa3�°nmm u`m,"�33 PY O N V 01 N b y T O n gM 1` g 1m0 9 y� E 16 i ... IT 1� N uF F 9 C. 9 pz 0 aF F cLL W J ° Q J -X�-7 F - - - - - - - - - - - - - - - - - V W W oz IL LL O1O _ c 088 88888$$888888888888---88888888888 88 " Z C C o O o C C o C o o Z sss Q�ssgs ss O ci s$�sNo qop a�sss qQg "s Q F a n« N M N N N Z' M N NNN NN NN N NNN � NN r.�N VI W i N E= C C c tl ti f] M LL Y y u Y u Y - u u �. u u u .. .. ul u J z Q o E c c Q E E E u a `m E 2 E u c z c a c c D$ m x u E JE ' E cE mEgO en i to 5�. —cn ffiE : t`Y E ..i c " E �'. o u=« E IL t c a to 9 .E E« o u .. a t a Eg 3 n o m E N c c c c `o °o off. E E E LL a 2 t« c E 2 E " o c ,'c io n o n o a g E% o a i 3 `ns g o_ w u" 5 Eo u E E d u o •"• �' + o i.. o a c=" E N M n Y z a �a oo EEn t cE °oJ„vinu Sc'0 �`�a o 3 aa�E E y Mw J yy ur"ci epi�0 i"n3 prc 'a uQi y3 yb s3pyNE NUNe �c"nN o_'m u'�3a as"spm .p^y mac° 0 � 3 E E gi 16 NA AA lb .o w16 .n n lL AAe�SS 19C-4 f 3 0 a= e oa R. of a Z 8" w J � W a o F V m N o< W , Q Z J "aE E IA N 0 P: 0 J X Z O III d OBaa a _ - cc c so o s'ss s8ssps8spsssppss a O Z oo8s8so8a O O O O O O O s O n T P Nm os8ss'8a.....ps8ss88opo8a8g O N N O O C 0 0 0 0 0 0 Oa a c Oc m O O O O O p O p O pOp K M N m T M O O 1 O 0 M 0 M^ N N n$ w N O 8 O8 8 O8 a 8 8 H N yy O eOi O M O N F a L 0 N M N N m m N r` N N N N N N M N p N N Q N N rj N O O b O n'1 N N N ti N N 4 4 S �' S S S S S O W C$ ID J J J J '�' '�' •1 i i i .r� uS o f y C 3 J F c 5 a a a o u a`a'^nE gSte°E A i ��w6 0 €el Eo9 o u }om « vi 0 E E m$ tie 9 � Y -NN N i i L Z g N N l Y gi y i 2 Y m -yy =� .� l� a c Z E dzfi"c F` n (p g N N m� 0 N Y V 1 CU `� C Y� N a C C C C i 9 d A i •i 6 i W m q 5 y c o�L �.aY-:-Y°8a ELL V+yr C ys; y S£NG i OM._= a r x' .n' C �';� u egyy aQgm g3g3 g �� $$ ggqgq gi d�ndd .nd+�oevbd dddddw wd�N3�d |! ,,....,.■.. � 19C-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: RECEIVE AND FILE REPORT ON CALIFORNIA DRINKING WATER CONSUMER CONFIDENCE REPORT (STRATEGIC PLAN NO. 5, 6) C MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1� Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the 2016 Consumer Confidence Report (CCR). DISCUSSION The Safe Drinking Water Act and the California Health and Safety code require that water systems distribute to their customers an annual consumer confidence report by July 1St of each year. The requirement includes information on source water, detected contaminants, and compliance with drinking water regulations. This requirement is necessary to educate consumers about the sources, quality, and delivery of their drinking water, and to increase their involvement in decisions regarding their drinking water. The report also offers the opportunity to promote water use efficiency and build community trust. The 2016 report depicts that Santa Ana's drinking water continues to meet all State of California, Department of Health Services, and the United States Environmental Protection Agency's drinking water regulations. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 — Community Health, Livability, Engagement & Sustainability, Objective #6 (focus projects and programs on improving the health and wellness of all residents). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. 19D-1 Public Hearing — 2016 Consumer Confidence Report July 5, 2017 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. j5nt^ �iYtil r Fred Mousavipour Executive Director Public Works Agency FM/NS/RR Exhibit 1: 2016 Consumer Confidence Report 19D-2 REPORT This report details the quality of your e drinking water and we're pleased to+, report Santa Ana upholds the highest{ \� standards year i 1 after year. As stewards of this precious resource, we're concerned about water availability for generations to come, which is why smarter water use is so important. Remember, doing your part to save water will make a huge difference for us all. 13 a c ca o �,cvm m c o9 Ja a a'in LOmaNOda� i m5 •>,a� Oq_�a ,_,= O d "- d T N= pU E C 3 3$ c �i T o c` b`¢ .E B p Y E g 3 5 a i w N w a m `o y� E. E v� a£ o� E S n c uaa�°1�i� rc� ayQwcm o..�5c v mE�c nO mom` ;VmwoEg'w ��mm9Natu '^m yaao,� C 'q V O➢ N g q O O V a t C nooLaOmG'�C N j 3 n i J c O> 3 C T R -L CO O O O p y g W O O d a n v o 5 V i j 3c a m a m c q¢ c c ^� E E 3 ep C p v y c3 cc SZE F -f oS i.E8..mm`EH�o v°ir¢noaoa3 En�`o `w °qi m a E v i g c$ E ,° m � J i E v C o$ W E c v: q.^ N 3 c o N v ut CAL' oAvat.DE L E v g E E o a v �` oE�mua'`3 �' °mimv�3�n ic-n u`.waV mmi 52 a'in LOmaNOda� ¢ > C g d q m T J p OO O U! m .n W ^ 0 3 w v a o 0 .0 m E Y t o Ti o T N= pU E C 3 3$ c �i T o c` b`¢ .E B p Y E g 3 5 a i w N w a m `o ac E S� a_ a r E. E v� a£ o� E S n c uaa�°1�i� rc� ayQwcm o..�5c E J-- - m¢ n n w 4 E v c °: w o 0 ;VmwoEg'w ��mm9Natu '^m yaao,� i'f Et?cn"c E.S�a �W E 9 EE p J m a w>° o v 5 c c t o a m w o w r o a, m u O> 3 C T R -L CO O O O p y g W O O d a n v o 5 V i j 3c a m a m c q¢ c c ^� E E 3 V E a o a o O a a i N m g y h5m qq p v y c3 cc SZE F -f oS i.E8..mm`EH�o v°ir¢noaoa3 En�`o `w °qi m a E v i g c$ E ,° m � J i E v C o$ W E c .c E a s u T c q.^ N 3 c o N `E E�� na°EiSa CAL' oAvat.DE L E v g E E o a v �` p o. w e a N 3 V a a a N o z v k i m f E w q 5r¢2E qq> ° a£ °3m t5w E -°p. 4 E. O� A E a 'q^ y a �'„cao-�cm$ r m -u-.o .m m ° c?¢ La'�v'R J- a"iNnE�y.N vna '�q5`o' c,m �'-n°;=>a m<acgaN4�o .v.comGS°anm Ylr .r 1^..�>. mfb oyo a ram �¢ c t4 E 166 qs o.cm"�z nL.m `vc oVno J c _ a o o- W O o n E w o q '� v3 =3 m niv� ��n o m a o t4v E m ¢O E n..3 �3!_^� 3 ns5 O N v$ n�_££ d C N- N L O E v A V q l °'e v m q C¢ y T O u m°oao nE o ov mtNZ. c'oo N 3a v?:i Z`o v.. v ,c�� ca Nc oa m.__ c nc E c E,v P a s O E C n n E c c ro s u m E'`p-• of N a E ^ o m o E �� = o E o� L `o m a: 0— —EE u'wcavNwm vat°°' G3LL a cm c. c v o L? a c a i a i c E E 'o v L a t c o m u o c J” n c a: n y o g j m uc.. c E c w A m° o g w .q w y E i.c o_ 3_ u5v8m rC;E c E m n c G m o =^ m F, 'o. 3ac�'0 E p p v5 Ems= 'c" u2`: W? d L T v Y N a E°'C A L> A g O O N N E t O = d C 3 c d L d E p p'd mmi o C 41 O TL L o G o E Nd>>� E Q r p v x J— T O C d N w L3 9D-4 mmi v© c o Q un`oN EE qA C aE E Y 01c yva m E la'�� E° m�f ma '° ry`J, aa'o EN c `omo J?? m `yZ,r c $yi:aq�a; Nino �cBm m� £.°1. °' c vG E- E Sv p E m J �i w h c i g j a N c so u° N E m ri q° o a N 3 A° o a o E A m w 9 LCNoAywi s_ « cm E H �� m Ear E ca c'o^wc cam Ovi is °$J'8„-'�mo o _>. mi $? cw`�c E m c... o c mo Q ° r .�. � OE�� q o c vi c�$1E'`m Jc Ana 3-�`n mEnm�,E _c oE£�t' °° wq _ED'S my �o i i,caq canEg+mEc c :9Gi 9��c�'c s' 'Cann. 1- G yYw ao�t g ma OWN 9oL os.c PNE4 uaE2 V °dEvE mm� iLggt c`°JmE wmoo O `w� °0� aJC. aim uE`o wwc �G"nc c mN >o o'Qao �« 3E mL o�Cog amber .Eck;..? 9�rc E�g�.GM�� Gqn DO v� owmaci 303 �$ ,v 2�c �.a o�oo�= �`°vEa _°a a mmJi Jo�yn a�a =w N m £o gime w'Np Oc°�:b = j c&c 3N??!s^ E q3 im cion 3n a oqL�" O9 �c ne'om$ nRc A Vi O 3 m 3m 3 m�'i� EL..- X00 63g�-cum£ Cl) = 0 H d W =D W O m Q 0 0 \,} c a O mu°m- `cm _q co mb c d wm V£�NtRg 3aJ_ EU � > cs u3ti,a 1O°�e w cF Vga vaiV m r �a w; �t}r �vo�so�� aiww E�JE'iigm LuVO c�`o wit o£ Ob ZJc_yt riE`^wt nm�� c `„°m w O N d n�uwvaoE iso a J" E J 3 E o a° E n �V�OHL ��y m—SIO V9 inW WOw p" g m c i° E i c o"£& E.S E e c o N L t v u o mL�Jw EOso OuoNmL adv°i� T�a�N rv��•e0pm c�o a`° No c $'�ow La+ W Oa e2. -q r.� cw�EmaP �`mwcoc25Aw= 3O�Du of �5gn5c ooEE v �Jc .°1�.E:v r 5ni2i Ea3o Rv-mVt uP aJin . 20 v._ 'o�gHq m cm O E t o�V Ao c °fi 3uc 3 `o�d� ov�V ` ED Em mea �a� 4y oa i3�m9i e0 w'-GEm�'N'-oa.°. 7y of c.%moo'0o0° Ca2 ay��'�ttvi EN E` n c c = e XEo j? E.c2 '^ctim3. V �� 'x 3ooLE�wmq� T 0 o�aOo°1iv c'^$ ww E� E �m N°v vw -gw c ?av'ca '^a J�JV L.. '^w s$ c ��s npi y�y3�c �2o p El�e'OOA Era`°na djN i ma H,mi oD,m w' Jo-�c�Jo� L'^t. �aioo Yot �pD c� m Eo3L mcQ gDmg.�Rmm'io L nooGccoE�c LNy q Z` rd�g�vJ w aE N o c 0 �a 33Cc ao E 35 z a o � t cama5$wc 3 N i�E �Eo E, 8E ° ni nm I U Seo&qq£'� N E p o g➢ C a nso a vc�oc Fm� U i�a8iuogmE m y N Sac i o m E Oc�p3r=Nbn w o "C ui �oo 2,os A� N>.�rN EVLc mas E>-996 ro ..amu a o c �c mry Mm,t �p °i g m Q do v 0. �M ot�3a6oc� �tc E E�TJx a m�-.Nath PLLcEoac wy �3 3�cd is vl 03 m� c `08+ mm._�a oL°go L by^3�nO 33N wg.a 3� d`�oaa i9 a o- r° E S i N= m$ m r c E I� S o d z 12 m a Q c., N: w 6 • N f h . C v 2Eq '5 mEc� ow��gvmaq�my c g aq�dmcc c �t �go9moa�m' 'd'ma�8iga"ca�dE C o`$'$g000E oa 3EL c cis 3�noaa�oa�� d EcQo-''ovimcEGa'b naE SEc « n�p iso a d`o`om m rv?a`�a?Vo2. '^ c.._ mG c$ o d os'"o-r m '^Eco mxi Ev`d ¢ N N L d a O V YL q d at E o 3m Ep¢p._ m cvam c caco�3a wL°i �yqb'o :omE;a�Ntao$m �w S.�a'o^io o.a n$«v"'ia5'cOd o a c'c0a v.c o nvno09 LT �EomacL Q{Yy��im�i ��°JJ�°W,Qa`a c�NC2.N CvJo]N vWOV'C«NH3COE a aL �Nd C'n VL dC•l'�H�yOdCN3 NSX m£E cZ,cm o N..c °.E a a mmm£o co.c c oa`aoN E oi.a mo °coc'ac Egn ouia of tc-G EL �cE �'^' yVppc �E�ti d a°�x3 5 a`u :iO3aa-cnc t 39 LL= a��3�nSEgcg.'O.0 Euro` F.- r AvQ 2$«O ucou vQ Gdi ^a�BacaE�'v �C ggg�' maN 2.v cE °'co` vaE dj �' 6'h. E,N Y S o o m E w '- �£'^LoS �io2Ltr O -n� ,3e �: g..5_', ��O-E q�2 �a�EdE E. oc^ O_cAacm3 ?D q a m m m E o 3 miR `o o E�adVo"9 �c woc�c oma' i v mem`m Necg n 3m a`oG$oi c E n o E EYALe EE Aa¢ V c Bim t c c No� EE E9 `u_ zG�:� �$Bi ua9oaodo oaa;:°. hiry -^y ._oc ada_ c5 o�ny n°:v oa aa�-cLz a o•• Eam iry A"o o5y `od v 2 g «a«oc nmc° E;5E�a m oaE >d Emoi a 'o c oaoc n¢n`t ho Lr N 6 J °v u`i c N �i u 2 3 °V c °V > N W w c L C �wa mmh d0� �i CC� E�Swo nE35a 'a � aoNn ig, m o"� a p o L o E ��EAiyo q .. `d,33<mS5mo gya .. tcc; '^c �c �Edf vOi5 ��i=°oa$ o v 9 e HSS a m- Va��rvE amAavmE'�iq�N N S 0 H d W 0 ar co m Q E o N N E ronE� q >oa'EV� I.SavaEB A vG�L $°'3o3m 0 E E c« a v E�9o3"3a 19D-6 v O — C N C CV o E � o 'o E o£ w q cm o m m� E c 3 c .o. � .� aawicooy ov°p-2.2.$Lo m o$QaC0wc-A onc°Emc 16 S v m m a t m n 5_`mt vcoga oo cit m'7 ��'c EDgrtn��at�~si doE�°a 'ye' a O Ti �. C L C a0 N �. L E N W m? g q C W j 6 Q mP C v c cit"= ao"$ N w? 03 ££ m o EoE a�a�mc�`� v eoaw3EmE �n4 of nL Aoo i °�E mt �.� o-oxa o c o a QC+ E a syy E c o a g i 0 5 a pL''ofi oa&o'-° aw D po 00 oDq ^'ao pop "c �E �`�'co�a �.n pSp t.oa q �pp aNN n..i `. QgLCDC�aE KTSSS n ��`rLWN<<��U'C N�WAO�N�V10]n a o�caoE3°moycwm9DD gqa O a 2 u ea n m'a q ME $a�a� ow�aL mho 47, oa gawm3, ,E`�nq r"9v�E m�v t g a c E o m o c o Zi�E3g'a�mZ, coo e,c 9 -9 -Its. E c a'N EaNc¢` m5me Nc°a mGS m�. °ic dao y w a o a E$ Eqcc iso �.q.@�E �`oE ° ns E�'E o 8.93 v �.._ - N � 2'.b v c o l o ¢g q E c a o" a r E E y u E :3�£cNyoc w9=�'a�qc� oEooaonyg �a ¢oci`q a��3w�o a�L'iffis Sr"4c' jO�OOOcc �$'oo E'-No0oaL.'o cOyry o EmV� Tgmm ...�a'�Hv �% g 22al AL 'ESLo LES-� 63'x rmEo.`w.,v m3v'i o�A=`amfc o. Egv'c��;g9v a x f m ry m °1 m o i L g i g o v a C E c a c a E E E y c u N J d... W d y�j q W D 30 J d N N H L L L N O O t gS�COLD��xa UC SUCgVV...iw OO 19D-7 Mor 3 'cp L N y W d N 3 u vm c Pcmy�vct wEJD SAu aAu •L� .� mDgE Be c�oa oomEVt3q�o T 9 p�..J ff—. oAwEo _ omov�5 .'",`m,m _ `tj E o v° a o c t o.� 'o T~ c._ E° t '^ n NaVw cm tg 0--yfl2oo_EooVo v '_'��cw°'Eu ooAmn m cm c�mw �cc3md tmc n'sDc > wsrt ua�q .7 o=Zia>.Eo ocoao-Vy m` O tcocau� ED``m, ad¢ -ycoow i$mv3� nd m3oDEv > oaq�o�� puaaq 4, T oa D'.•a c t..c Glu n C E m ._�y OaciSVEm ~my mto °mc"zc8� 3"�•m ns U.n o¢"0< ..4 =a o_�m>m m cn i i o o :° ¢ i a .9- v t y 'o^ V N t= v a o w v U LL c o O c r Si 1°m o vN �` _ Em6 �nrvd vi nL° w ?A H m v c=c cL v �g'�c..o mE" co N i >1 Q) Vii > 7 wA�wmwaE m m.%v m wEm:a'mO E i" %i G O 3 N N t6 Ea` �E niH;¢a'3�° y` m��.�a="a oE��mo i'.mo E s+ ��-p> odr o9°_E mqi Dmic au E'y 3oma Etwv°v ° <c m m a�G31p EUM. o°Nq a y-wo�E°i` 'i°'•cZ'o i2.o3nt �omH�'i O m 3 w�NO'L'Nurac�9mT""° �Qn3 va;t5 o�aa�"` ell 7. Ed `cmmn va 3v-Ni E$�acO O d�OM o�msm J z,. a �`w�ncm. Emwacw m 3 m 4� i U a a 5 c J E wgBi ,mo �c,E Cm m¢wcm a+ C O` 7 j V o0m ctA L _ er Dt °Jm'c vc w ma mac'ycyumaoov°'i� Q O_L 'O cr a o 2 v c -. w I --W =O W _ U J � w Cf) Z MO 19D-8 u- O � 0 � � a kj 0 m 41 < o m CQ L o o a � L m Z a P R � a 'cp L N y W d N 3 u vm c Pcmy�vct wEJD SAu aAu •L� .� mDgE Be c�oa oomEVt3q�o T 9 p�..J ff—. oAwEo _ omov�5 .'",`m,m _ `tj E o v° a o c t o.� 'o T~ c._ E° t '^ n NaVw cm tg 0--yfl2oo_EooVo v '_'��cw°'Eu ooAmn m cm c�mw �cc3md tmc n'sDc > wsrt ua�q .7 o=Zia>.Eo ocoao-Vy m` O tcocau� ED``m, ad¢ -ycoow i$mv3� nd m3oDEv > oaq�o�� puaaq 4, T oa D'.•a c t..c Glu n C E m ._�y OaciSVEm ~my mto °mc"zc8� 3"�•m ns U.n o¢"0< ..4 =a o_�m>m m cn i i o o :° ¢ i a .9- v t y 'o^ V N t= v a o w v U LL c o O c r Si 1°m o vN �` _ Em6 �nrvd vi nL° w ?A H m v c=c cL v �g'�c..o mE" co N i >1 Q) Vii > 7 wA�wmwaE m m.%v m wEm:a'mO E i" %i G O 3 N N t6 Ea` �E niH;¢a'3�° y` m��.�a="a oE��mo i'.mo E s+ ��-p> odr o9°_E mqi Dmic au E'y 3oma Etwv°v ° <c m m a�G31p EUM. o°Nq a y-wo�E°i` 'i°'•cZ'o i2.o3nt �omH�'i O m 3 w�NO'L'Nurac�9mT""° �Qn3 va;t5 o�aa�"` ell 7. Ed `cmmn va 3v-Ni E$�acO O d�OM o�msm J z,. a �`w�ncm. Emwacw m 3 m 4� i U a a 5 c J E wgBi ,mo �c,E Cm m¢wcm a+ C O` 7 j V o0m ctA L _ er Dt °Jm'c vc w ma mac'ycyumaoov°'i� Q O_L 'O cr a o 2 v c -. w I --W =O W _ U J � w Cf) Z MO 19D-8 u- O � N o a $N m n E c� 0 b .o C ] v o �Pc a._ �i Hoc MbS N a D� 6 z E 'aaw f m`mo a n n 3 y$ .1 .X9ga a E p 1 O p O d 'O O T p L o y= p y N V r N O y Es«t), u a 00w'o ma L dvE N ,EP yt i� t�i Ew E nw mwc pw a '�5 dp E N R� N� N Vq Baa 'aE w qd�A� 'e ww�a 3£S.o. �' u�' u�' 0. 8. ?E$ t?E�mb EA£ Z15 E N Ec -ol�i c w C .Y qc 2O6 5, a— g'L E oc k; v 6 C L Y J L c J w > _ q V L> a L O C N 'C Nq Q E A d Y c a 002 �a;y Z� syg9E qn d yooyE WEr <Q U 0 w VI o Edta a_ cufzzzzzz N q,= w II II 11 II 11 II II P X o`r£Em nJr3i5 °8 ar3oE ��£3E Q ai�f22zZi2 ict`g .�a� �y Lwn No wb O J > y q w -89 G o- a 3 w.- ♦+ o mn`�r na Z.0 -NqE i o2£E c��u�hjq ti cq �°'2`c_ 'a 'wao c a 3000 c v a c g 3 r c '" E E El m d2 E8 q C 0 $•q q C V L O~ 9 y J d L L O 0:2 D d b g O p t Y �v0E80m o 1\il v i m s a m o« m u d a w E .24 c v; a �i c ny E r; ��.a uo 9o wE .20. m uowH £ Pv Y vi 0-0-0 a0Y9 Y � c_ U l L N 5 Co N Y IV w w N bAC N Z)-0 ♦O V d' (v-0 -0 Y ° 19D-9 H Q a w ___ a Z D O l7 Q z Q Q H z kAQ LL O U O N CJD a�}W T" UJ m N Q Q Q c 'a N o a q O q O Tpy C to > da c o w d > c� CON V EE p r E � `a � a ada 9 � � c j�� o� nd z ? i 3 Q � jf� ry 9 8 w^ffiR N3 �alx� „x3a a gznb&°a° �8 a n Y ;" -a5ss5 Bga Fla g, aesag aaaaEaa �Ra s§§ - - -'- - - _- =-=rasa= - • t q;gea� t6� • ii off: 8 „R�� m"s � &BrRr z A rx"- NSP- - ^9 � +i • SA g N� e� x 1311 E �� ; ..SS a�➢x xY E $ ��$�E�� a� y1a[a[ 66jj!! CJD a�}W T" UJ m N Q Q Q c 'a N o L q O q O Tpy C to > da c o w d > c� CON V EE p r E � `a � a ada 9 � � c j�� o� nd i ? i 3 Q CJD a�}W T" UJ m N Q Q Q c 'a N o L q O q O Tpy C to > da E =. E — OD O CON V EE p r E � `a i� �.•.m ada 9 � r9 j�� q3a i ? i 3 a E CJD a�}W T" UJ m N Q Q Q c fi 0 ea 6 9 � exgy' 9p� � jf� ry 9 8 w^ffiR N3 fi 0 ea V) W H O Z W F O� _vQ £L N D 25 N w o UJ LLI 3a W Z I -- H!5 H J Za 00 a OLL uj 2:;;, ,�o ix W N H D O Ul wmL �`y vada a �.d,m o m 22o `o c'�a�° aEEEcvc ?�iy�.°.D� lo t 8i 29a E:c�p� pypau V cY'-R.�uONo co zONLCOuS:srogco Evm N n ovE nen old '^ gu�ia gi ig9 v '3 wEu ng S�^°1 LL�4L°-°-;�°% u'E°p'�w�E if ii q vw -E o E=ppN v O d r 9 d L E v; 'q p 9 L i y3 uEa �b E�"i5 gguv ac'o°E�'o-cc3 — ° a5g5 t— Aoo3cE s �c m a y E o E- m o B �E VoEO�sy Vjyuoop f; u°fig cu8yi E E i i u x£ g E E d gcc c£ `v 4 c"A Z E E •f0• c° a 3 v o o m c C t E� o m v m �, Wm °O�AnNCau=Vt°`V SOL 2nq3ryUu.waeVa+';O=6yo Sw cqv •pp✓mry aEno'.v+p E= E 00 F a< N O U mS N N C J VA L t��uRpp O a �O < t E u s xiiN� 0 0� ^qY R RRRRR i� „x3 a5�x zzzz EE4 kk33 8 _��p zesE�� _oeoYeCCeefyRSR R 9 N 9 �G P C SSSyy� S�o�yy2�i R �� ss Hca oxaaa£aa3g¢yg £ S$$Q£��$ a2aL i • a9 < a�CE R€ E2'2'2'�22 2222222'2 '2 E_ Tp •��ff$ i b � a �' R ---oo • ��m�� S a �'C �, � o E.ciq n a` crva nZ O N O Q a q. E a$ w O n 194 6 �n O 80 O O L O ? C T L c d oAG a �0 3 0`°.ry: L ,p p J 6 ry ary �n V pp wCN N W D W 0 6 C E E L 1paL"3ooE y° i.y mE 3 N Ec�wO'n c °%y no a 3 vi i t gawmd�c� mwy 3s w o L.. .°ted; a E ;� t4 45 c!" >mam'.zL&x Eo ; xd�0 m3L$0 E o�p 'o o°° ab I $O6cz n z i Eis °oc m mm� J ry `. mdo oq on9 o�oa aoc9�v 3bw C ry A .0 YY E Y G c,m Lpd a �`o grvo Sof �n L -'VV ES�a C a E.` gaq$nn �..n d nm go Eia�� o ogE "d w``w.o o;^ nN E yuzozoLN2 mgdonp cmcoa 9- 3: 92 oi3�adiLt eEdn'6 s urvi NNS u L A j E O d N N w C ;p t L�5 min- doff° m ara Lyon E ,m, ££YE E i N E t w` n '" t E o 5- v E 9` 3 x E m D ,cc S vYix 3 i'oms v e �Q n °mod° a Xaa of E E '� o m o m N c cc" a R w m- m P E E i ° Aauo NE;��o c -- c -m �mv 2v��- a pcc5 N:9 ` ° g1O o °.a;ag 5 moa cEZ' i"o"'N ._ ionm co gcmL Q,c.<o pu v yc 6 59g"md L"amyw„ coa o.c 3$�E�mcVo ;Ec°h�� c,Eaq 0c m`0o `oag dq yy o a'E="�^, ct moo 3�m Nz�Av n. Ee- 005 a; o�E�pp E '^aa a Eu m -...o EE3 �i vc �� E yLm cTv°, D, �o E�iai .Wi t°o£c cc Y a -at -��'° z �3NN 60 Tipp CVS C'p^— mr1SCOuuC N STj Od EOgapp Y moa $�d E q�oarvo gEo.^Lmov �'�O� q Aa pd �'�� c c u d y� E o s.a' wwdDt '^�.�.— FEOES�R£ c'simtF�n £a„i.9 o` 33ag; Omo e m u 19D-12 v � av C ' � mos Cow r K N vv �q O N N m m c E ° E; w Y T� y d 'cOwo rip L,a C 3 YY �� r� m3 c L qv _VUo d j a ii 23 d; E°.m .m O N NVN N� d pgp't`-0 p 8Oy C N 02A Nyd 3 a CO NomLY,. E„ E LL Eb— ` fS v d 'j e nca'oEt� an o d 0 m ° ;c d ooi "Ea mv°O ✓ o ; .. `w v, TEc „wN �n� m N E v v ��`o 2- vL c°icw mq Z5 uo 6 E ES w: y,p '°; acy V ZO qoq pda o� �� 'm'ao yt'^ Qu o'romv oZo'Eo z 3 m zc za` _ a ¢w� m`i t avamw i'E E o i `w a Q tt1 dmaa d.. r�5 0 oa: �c b° v ma m 3t o E.ciq n a` crva nZ O N O Q a q. E a$ w O n 194 6 �n O 80 O O L O ? C T L c d oAG a �0 3 0`°.ry: L ,p p J 6 ry ary �n V pp wCN N W D W 0 6 C E E L 1paL"3ooE y° i.y mE 3 N Ec�wO'n c °%y no a 3 vi i t gawmd�c� mwy 3s w o L.. .°ted; a E ;� t4 45 c!" >mam'.zL&x Eo ; xd�0 m3L$0 E o�p 'o o°° ab I $O6cz n z i Eis °oc m mm� J ry `. mdo oq on9 o�oa aoc9�v 3bw C ry A .0 YY E Y G c,m Lpd a �`o grvo Sof �n L -'VV ES�a C a E.` gaq$nn �..n d nm go Eia�� o ogE "d w``w.o o;^ nN E yuzozoLN2 mgdonp cmcoa 9- 3: 92 oi3�adiLt eEdn'6 s urvi NNS u L A j E O d N N w C ;p t L�5 min- doff° m ara Lyon E ,m, ££YE E i N E t w` n '" t E o 5- v E 9` 3 x E m D ,cc S vYix 3 i'oms v e �Q n °mod° a Xaa of E E '� o m o m N c cc" a R w m- m P E E i ° Aauo NE;��o c -- c -m �mv 2v��- a pcc5 N:9 ` ° g1O o °.a;ag 5 moa cEZ' i"o"'N ._ ionm co gcmL Q,c.<o pu v yc 6 59g"md L"amyw„ coa o.c 3$�E�mcVo ;Ec°h�� c,Eaq 0c m`0o `oag dq yy o a'E="�^, ct moo 3�m Nz�Av n. Ee- 005 a; o�E�pp E '^aa a Eu m -...o EE3 �i vc �� E yLm cTv°, D, �o E�iai .Wi t°o£c cc Y a -at -��'° z �3NN 60 Tipp CVS C'p^— mr1SCOuuC N STj Od EOgapp Y moa $�d E q�oarvo gEo.^Lmov �'�O� q Aa pd �'�� c c u d y� E o s.a' wwdDt '^�.�.— FEOES�R£ c'simtF�n £a„i.9 o` 33ag; Omo e m u 19D-12 NW ct . m 3aaq td✓c�c o -v y vaE �tim Jor oEO o a -$Opi _ E m>;a% aocE > o >umy toad C _ _ EdOOp gOtO T� oV> OOvdE Y b V 0 L Tyi� — g C i a O E''o53Z. o Jc�LN JXLU iw�z UJJ 3Qaa Q W O n Wma W ��os�adg O V N O C E D C O O N V1N �jd `p �U o anw a, o q E 3 19D-13 0 yq 3 NN i Em or_ca; C L v0 S d D s V v n d v on y.0 W~ d N c�a 5-E" Eq Cd.c'.occ °rn' 3 ar'o'm c 1i n'UO S a - A N V L O O� dlO C O d N J" y O °y �j °� 3Hii o on'dv 3La oioa tl ti tO.gz mo -3 dddov-O_ H ca�.�won d✓3 ZD K ??d ddLDL V V 'O �iNao adESd=ae >o53mmaa 3am�Y-Sm�S�_ © Q� NW o� w a LLI ¢ Y o Wir Y c U O U) co tai 0 �17, ov a �x w '•Em u =coq r�on cm C BSE n°g mac d d C L C L m L C 4 E v E U W Yv�1 obi o2SLga w _'og2 �wm �¢c mco�a •i ` EEEa J E idih N r0 T _w m °v C °V NW v��yvy m� E E w v _ '` �v v ny�mN o35 'nHo '�d"Smg p`p� " n�0 £v m 3m °0"E vos u9 3 m:� Lc � �y mw...-�� .�5$B'm-maa a'_ YOL ,mssntom' .E r, ° �.`o ga'mvfn� L°1. i• ao`3�$ov '"'5 ��c 09�-�°tmn o `il n `n°m RE�4.�'.° mr Em�t o+�-Bio �.3'Eo•g€�uiary a EEca3o zma •-na n cm �q5-=y a� 0 $o� �-°'-"apr ca c�L23 l T� �n'3mo �Nti 8�a 3 m�Z'gywn�EE `a L"oa4.o oL 'n .°�'^a Z'w c` ac `o r°i L8 £Tv'O oa Eos tw5 - p� _ o£ o ml�`L ? Ea %aY&'Oo net NL a�9 �Y �o as Sc is E ., yOoo oaf cEvE-5l,bgp m3md� at=oc � r > -_�t.o "SE 0m0.2 cc .9 cc5 FEwo&co£ >2 0 L. z �? v 4 q q°, 2•o'Eoc We8p3a�E aYY-D9D N sn .�9q r radii �b'avmL ET -5 L cSy-EC� Eg-C Ell E r c cJr' � 5 3 o E g �" g q v m u c ; o C o c i �9 E o iD ms°E „`o € „ of Dim �0 w m c ycy C E+ E°nE ua`SagSEo m9� E°oE.'O.E �r $Ga og -E�v E�=_O°' H`° °=m� 00 ..-amm ic r 19D-14 �L � 3 a a me a ,v,m�oo Na 0-�'o opm o o 30S,N—= «oazQM. v C Q O d tg y v S L N P'o E 2,u£ m �c vim. b0 i C 'i N m nv v a`� ns N C V¢ i V m 01 j C v O E c v E o T N OO'O � Ol v >• 3 CC v L o E o C aov E'c 5_b m m '^ me y cv am LL vOi m O OIL- L � Ou o� a O o s c C W O Y U W Yv�1 C� H d N a vii c ¢ p C`q" y 17� idih G. 'o dip E oog" oo ocm� EA v��yvy m� E E w v _ '` �v v ny�mN o35 'nHo '�d"Smg p`p� " n�0 £v m 3m °0"E vos u9 3 m:� Lc � �y mw...-�� .�5$B'm-maa a'_ YOL ,mssntom' .E r, ° �.`o ga'mvfn� L°1. i• ao`3�$ov '"'5 ��c 09�-�°tmn o `il n `n°m RE�4.�'.° mr Em�t o+�-Bio �.3'Eo•g€�uiary a EEca3o zma •-na n cm �q5-=y a� 0 $o� �-°'-"apr ca c�L23 l T� �n'3mo �Nti 8�a 3 m�Z'gywn�EE `a L"oa4.o oL 'n .°�'^a Z'w c` ac `o r°i L8 £Tv'O oa Eos tw5 - p� _ o£ o ml�`L ? Ea %aY&'Oo net NL a�9 �Y �o as Sc is E ., yOoo oaf cEvE-5l,bgp m3md� at=oc � r > -_�t.o "SE 0m0.2 cc .9 cc5 FEwo&co£ >2 0 L. z �? v 4 q q°, 2•o'Eoc We8p3a�E aYY-D9D N sn .�9q r radii �b'avmL ET -5 L cSy-EC� Eg-C Ell E r c cJr' � 5 3 o E g �" g q v m u c ; o C o c i �9 E o iD ms°E „`o € „ of Dim �0 w m c ycy C E+ E°nE ua`SagSEo m9� E°oE.'O.E �r $Ga og -E�v E�=_O°' H`° °=m� 00 ..-amm ic r 19D-14 �L � 3 a a me a ,v,m�oo Na 0-�'o opm o o 30S,N—= «oazQM. v C Q O d tg y v S L N P'o E 2,u£ m �c vim. b0 i C 'i N m nv v a`� ns N C V¢ i V m 01 j C v O E c v E o T N OO'O � Ol v >• 3 CC v L o E o C aov E'c 5_b m m '^ me y cv am LL vOi m O OIL- L � Ou Vj F— W Fz� U w Wo 11) =) LL a Q) a r T- Q a Eyc E t �acn� niq� �yT_3NG 12 3 of Z'E m¢ -y£A fi Z'oo co - a - E o t w c o- ai Ez ytq v�ov g'v$o$ is mt 25.v EE o w o_ a d 3 3 i 3: E= t w mmma meq N , C_ a E N '� b0 m VI N N Cin C Y N 7- N �' VI p v C O 7O�y L L N _ �n O ra p Y 7 "O p 3 L N@= N d a Tal VI N 3 0-0 0= -C L V d C O C 7 C 5' N 7 0 N p C 7 C D -- Y pp v a M O v' ut � -O ai -�n O O H !� Q J Y O w VI m Y N O O_ 19D-15 05 1 U 3 0�0 3 W O C Q J u_ avers < 6 Y a� �i Q: 1 E ro c 7 ,�., ¢ Ovi u N vv�o�v8v N O F u E2 u ,R r a E. o 3ac0) mc"cEa �G L C Q) j v 5agw�Lw�ma E °t a=a E oy .. N o a � � `Q O 7 YooNEvo °'2 NN '. �3o a'o,w .. 2t L y v��AN L'G a m a�Gsa o 3t L.LCEEi Emir o.c65 oom 9m nr �'co-who mpm C Vf O •`o•ms °E'aa;�om .. a m mgc do i=oZ�m� oyc .L Qj NH a�unE'c^�mN� m y a�5 EZ Esq °ioogg E va M L 7 w m N o a"��w..—o 0 3' n a o o.... � p1 E m Q7i >`= mE 2co°—'mv � o. 2' =cN D" oA' Em n oyc a) tp oe n.. f;e o_ o Cy oa E.. a lld�= ��H$_'�ia9 E E w a m0 LL3o° Y �y L Fn ma i V— C N C m o a` y 'pNyC v � c R O 0o uo m c c v � � v. 3 oc v9 6 Q C 19D-16 �WN 3ig A" L t CO 3 J q A p O 'n O t V ppa O O d 6 r cc': °'� Dorvm 3c c c E c E a c � Ao ?S, Hca w�uan or Aa12g3 ��m.. VB c Ooa m�i'a ia:!ia Vm� w._imaa a3 LEaoo �WN 3ig A" TC C A i C a.+ U- 7 7 UJ W N o n d a LL v a 2 w a 'CIOG/ L ZL H m v o.M o 0LL W>- C 0 s >zo o E o._ c m �gaagf m.. new ``o E o Vit. onA c Frv��E�ij`o O t4 a m p m 0O C O G V ao�ovgv 3=ora_, 0� m a 3 ; < °``o E qc Ec�y�i N OL�Z.`�OW O ~ EE nY vE�',��.. F�EaEa a' T O Nov Mc L 3:. N O T O 9 O5 E ��xn E.. 3: "E E ,S z N .3 v_EaNgA 3y E�$qc 3 t5 — m y J �dEPaaa ;aaa 19D-17 Aim nQ2E o a one O O O x � 0+ A 4'O vi- °'mcE£ PM o v a c o y e ma3r3Ea3?2c �53d'o `w Ncacq c L c v E ry; y'a 3 m N r J d C y d w C a N oo.-a v o�5 eog 'c^Emm p meNcv E d a C 3 V d ry C 32 E.v` r V N T W 03vo3i33nmY o �. a v Le Exac O o m c E n c c c c- ti two moEov�Ci vAEn6 3 '"<E P:a ym�o otic E mp `oc 3`v COa3�o2 mac „qTq v €d v xC, E i BiovQc; nG i E n e 1 d O J v` iy rm aV°EAwdr $ai L dt'C d Oho 0E3b � 3Hm �oE�mSo o v d .� d C I- ` =air^. �maCAm"� v m E d r rc me vvD oq ��'' `r os an o cow cN`a?J°MBi �o LOcc �cm cO o m q M .° v � 'v°" m E o o$ n o c o ma. c r t a o y> N -�'._ o- i c a E N E= E v 5 a o- o 2 o m w 5_ 3 N a i o a °)coma EuNavO= tc o a`mEa n5 ca Tq wcadc 2 doarc AzEtaav�a� 0' t4 3w8:9 moa 'd"Ty oc iiia m�Em Eoa= r aw'"c oa aoz.$o3s °1 oo. 63 m. 25`v c5 m'"��'O a °L'' -O c3wm 3°°Ep 1. a vL E o LB E53�c T,m,-�' o E v0Mt drR, m �cE qa..- dr p 8ivm o me E o q 'Q$"-_ T '� w„ m i E n o r S o A. y- 7 d m g c m; m E y m 6 E E g c c? i°= a c t _ we E c c c E w m m y E o c r E n i v > > re5«to E ma Bt P'L �°.J Sognos`o maw 'cgomo`�oam '"d3� vma..o Eo� VEo m�-o Om ai$3d nra.w. c --m3 Nc m°"a E i m c y v 2 n v c E a c c a r? c >>t m E" v r E t E `m o ry E c o r o 3 m ami 5 E w> > d ._ E33wE 3: 442 ma �E ,232?Hoo 35333vtg°3H 5i5un °ma�Gwiv�n y,. r.=� Q J w I O LLJ Z U LU �LLJ I- ll OU F- y Z z n Q Q m d E t°n qq rc c L `y N 6 rO 000 J E d Q c r S m o c n m g >''^ ov 3'c+o 'q ``d,mE3n 3 cys aam Edna v°A 3cda �a `o_ c�iE c �nEay-o Gtt EE n o � 2 A v E y c a y E:5 E m v y y E m o a a a- E 3Ewow o'.° may. 55Ey nop�E c o o w 3 E 3; c c °i t 3 a c- N a E oq& L o EE oo2 mo -=Ea mo w� EE c'a mNc..v��y c a g c i o E m c N v E y °.v v E. .- 3 a Eu O h3 'gym m£c=i.�osc„v 9�va `oN En'w"q..o ` 0 c cN'^Gmmz a_ m v0-mnm._b2-c::O 2E -ma a°o t3 ��r Aar as a v aE I t o. c^ a `o m `o , o � '^ c" n m m � v a a� a dao 'r EZ a! 2ne�E?i`$m x0 ¢`nsE'm Ea-mmoE mOH_c 'ga m�'d^ a�3"mEoS c �Ean�aL2r'-.o o3acE i �`tv n��; n r N n ti 5 V O O 0 Eao Z,L gnEc c 83 oo m- T -%YjE o?J N p ��°3tNgav� E3`^° vv Ta$ eOTo o ^'na wE'N E3 yy cwa �;oc �3 s'ca TPi�a °'c o c E o rn r rv° o o E m _rvo:v Eiu_wO- EIEwo >� c`oc oa M E c v+ E$ 3 n �a a t d c 0 0 u S o� a 2 o in ac N'N nmp'trim�m�i momma ..mo V Pcme E.. d ; vu c aaac m�ry E�Op>=AE_v__ �+NO ycc4q�NLmcO o vc y iO� L m mon 12 E �aa x✓t viw3 Eo,.,v 3mao 30 �c 3ry 030._nmN 19D-18 LU FL y U s 3 ° o I -- U) F— N z aN � Lu w J C 3 0 19 Z Z r N L) U W F-N}� W CO W m U I-- F--ZLU �� aU 0O Z N O H U r MI y a a!w`d3Lmi 3c 'c3 �� c o"° di .mac. am c23 SEN ac- �N A`a`'c a a: E EE = m L c Ecrvc��o3Ei "o cvo-z c o r m N z o D o c � 3 W ¢oma NA"a�a�n� noo mF3 v.kc ia��nont 5. dVj oi='+m.a. d a d o 3 v E t m i d wwc fe i p L V T d !� U u TL E O y0�j d T b 0 B. V" V C VV m viCo._ OVC O d <UO g' mu°..'o me E� o0OV 'L" CL =NdE ac C LCS�C C)T T2 °aiwEt omdun oa'o i.d.3E � oom33m d N N O C 0 s 3 ° o F o c d C 3 0 19 3 Y O w m Z �r0 O K ¢ U � 0 ° T U O v c Nno�$ �ac�Lmo Cm 32�c oc mnE"Oyv to Ei i�Q Z Z W Z C ,. W = O Nm�ym;a_o`a�c OL W r C q T j w E w E 00 rg3P; do;C 9;nEa �;2 39 � 0'- v q o N L ym; a0O—d6' L L N d C �Oo °ouAc3v� moa '"L =9o3Lv.�N;��vi `v eon oa ° C u O .: O q°� O; 15 E c°C C4+�+OL 0g ° d;a a5 —5a3w mivai 3wa v WE 0�.3 eNf. mac rt me Ncc ongin� r'a _qo u9'ca3 ,gog .apt "vm -vy my c n 3c3nc_ N C C L N t(1 O 6 T JT i E c O= CO C d O pp y d C�2 O J O d Lo c" fgieEa° No a=N=EES 9 vi3aa 7vniA i%i Eao awn �.�'"° mv�v NN.a �c nAow 4 a.$t m r c m N V -540 ; v m Op ioi aTA oL 3 r vy ov= ai N c E O p l V 19D-20 DOLC1+ 'Op W A n" 2_ N N COD 1Y a 3A8 aV ENFN Ea"m d c0 N; .. 00- q C d E C� O oa"c am v'Oi 3 '^r 33 C om E C ,. W = O Nm�ym;a_o`a�c OL W r C q T j w E w E 00 rg3P; do;C 9;nEa �;2 39 � 0'- v q o N L ym; a0O—d6' L L N d C �Oo °ouAc3v� moa '"L =9o3Lv.�N;��vi `v eon oa ° C u O .: O q°� O; 15 E c°C C4+�+OL 0g ° d;a a5 —5a3w mivai 3wa v WE 0�.3 eNf. mac rt me Ncc ongin� r'a _qo u9'ca3 ,gog .apt "vm -vy my c n 3c3nc_ N C C L N t(1 O 6 T JT i E c O= CO C d O pp y d C�2 O J O d Lo c" fgieEa° No a=N=EES 9 vi3aa 7vniA i%i Eao awn �.�'"° mv�v NN.a �c nAow °a a.$t Y••va` aamy N c E O p l V 19D-20 v COC d T n C N L CO 9 N `S -uq 2 o ZR: E of E o_ Yo£An > O q P.EC EG„ �� oh'Qva Ea�£c" �Eu o°'maEam_i nPo N i:t cw.Eo u TE9� 9j'Q aTL v300d JV° TJ�JO V9�0 Ov ti L CL -E Eom Oa Jo''rE 0nY, 3 Z, �E o9Od ="� gJnn 'Kdg3 3a . m = DTdO na V=T -N L C.^ 0000 5 JJ0 O O BOO d-dC0 qJ0 W V a aa N b O T T V p ,2 3ozw qx La Eac0o H ¢` E o�c .o q d -_ c $ ,d„ q° `o w a t o tgq°m Ta-°cO�Doc moo= E-_vaSY� Ev mf` -i a `a; gca°$y5 d_ ,,q""'S D meq- am cat'"��2- ``d,o nc c Sia C w u y E o J o -60��i.wt o W a eau �"gE e_ YE=oo `° c q o�c°:3 mJo• -a°c 8�c�aC �qq w�iwc`o2 wa mt� Tom E" w ded O J nm -v�d qn vv La. -o �E°.>°. ��a o n aea gENaBdm .d.on 'Oa my n$°.NEE-_dL3 qa °,C ._mea Sin �cd :'Aq qcq C gc3a qa LTt. iv dd-d c` �oniJ a nqw 3 TAET�P qON �u N'O�O LCq T-WOWN�C >0 �CEH 3 . O Q T V O c d y u d 0 oVw i 5To wa m .y�oa c odyEti ya $ E3 ix m9 dw gwom�o.Ga o dt q^ m 2E H N p ai m y.>_>pJpgo, ga V p N O O O Q q> T d 6 a Ota L� v O WNq-°u S H vn NO�q�C c v.. ao _cnmcDE ; m�.;w� ao�.y N r q `o y E E G Y `° a n m d a d u Ja S °w0u'�c aim ad d t wtm J $o,T Lo a�>�g^'wwg grgCE �m �L mo �a'o wn mmo¢.`'hNo o En miioy Tot a.amiq Eno oa� 0 E&dE t.O50mEEA n,a°-,3 d>E>•mo�o.et mAEq-' oE'.., yE m$ a� _ AAvEE E r3 ma3$o 6 3 i 5n_ E om q L E V o 953 Ed o m t4o c �,o o E 9> °,v_ E i2 _3 = gSE o o= O;�N q omaA= mz E9 y D N„`oq a n`o EE aaV vm ° �mom3 an c� a v- MNN N,�o V Y LCO >L TC _ni yv9� 020 .y% vm TOS p S ` C v Y N V q d.3 C EB �+ 5 3 >3 .'B 5'q Y. a q a o E o a u 9 N C do n d� t Y� o f O o 'n N N �° D do c ac of Nd = o `oom9 d'q o� ac E:?q cam= a dac m c .0a vQ T o� o e. t cD c N c ^ o0 a n n '^a oCd w o g E C 'av Hoq 0 o T a u 0 oy u u E `E -'LL ant cE i$ n c a as°�. 3n is c c Eq- 3 ° `oE v°imvi m$Dy Em: E ;a Dm j q 2.°z E i s i°'Ery H UJ UH c U t3sawE o o U 3Da O ¢ 5 E d vii LU W w QC O.O O O D aoa 1-21 ®® N d la _ 0A N - H C 01 _ - _ y N O O - V C d _ V - W L 09 _ S L - °LL w e — a I. C - la _ 0A N - • C 01 _ O y N O O - - 19D -j3 v v a 3 C O y N mN E o E t n i d E c E Y — Z O C , M C r O b E y N v N E n m w o'co v i V E v u d o w 2 n O n a° aO0 m c c o c a+ ? c o E j m N O t d a — � O C O O lD O O �D N dJ O (d O y w v Em cm 3m oN cm Em �'m km Zm V "o � moi: vi: '�� moi: W n '"� n �n Nn v `odao a` 19D-23 atlI You can request a copy of the most recent summary of the Watershed Sanitary Surveys and the Source Water Assessment by calling MWD at 213-217-6000. For a copy of the complete assessments for Santa Ana's distribution system and groundwater, call the Santa Ana Water Resources Division at 714-647-3320. If you have questions about your water quality, contact: City of Santa Ana, Water Resources Division "'dill ,abye t'1 Water Resources Manager Cesar Barrera P.E Principal Civil Engineer Robert Hernandez Acting Water Services Quality Coordinator 220 South Daisy Avenue Bldg A, Santa Ana, California 92703 phone: 714-647-3320 fax: 714-647-3345 web: santaanaccr.org Este informe contiene informaci6n muy importante sobre su agua potable. Traduzcalo o hable con alguien clue to entienda bien. CM b l niy "I quart trgnq. xm nhd ngua• dick the qey H. Daimmam tshaj tawm no muaj lus tseemceeb txog koj cov dej haus. Tshab txhais nws, los yog tham nrog tej tug neeg uas totaub txog nws. 1t B it * 4x A4 E >k H 6.IA ill R iF A � 811.811! 401590■%%Mums. Mahalaga ang impormasyong ito. Mangyaring ipasalin ito. QUESTIONS ABOUT YOUR ITER QUALITY REPORT? REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: CONTRACT AMENDMENTS FOR FOR CHAIN LINK FENCE RENTALS (SPEC. NO. 16-059) (STRATEGIC PLAN NO. 5,4) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Amend the amount of the citywide chain link fence rentals contracts by $50,000 for a new total annual amount not to exceed $117,000, subject to nonsubstantive changes approved by the City Manager and City Attorney, with the following vendors: Vendor Location United Site Services, Inc. EI Monte Quality Fence Co., Inc. Paramount DISCUSSION The Public Works and Parks, Recreation & Community Services agencies require temporary fencing to ensure public safety and reduce liability around City -owned propertiesron an as needed basis. Fencing is rented on a month-to-month, six-month, or annual basis to provide immediate public safety and/or to protect property. Over the last twelve months, the Public Works Agency procured approximately 37 properties along Bristol Street for street improvements and anticipates acquiring 12 additional properties by the middle of 2018. Fencing is required immediately after the City takes possession of the properties. On September 20, 2016, the City Council awarded a two-year contract to United Site Services, Inc., and Quality Fence Co, Inc., with provisions for three one-year renewals for citywide chain link fence rentals, in an annual aggregate amount not to exceed $67,000, which included $7,000 for portable restroom rentals. As a result of the above mentioned activities, the annual not -to -exceed amount allocated to the Public Works Agency in the original contract will be exceeded. As such, staff recommends approval of the recommended action to allow continuous service through the end of the current contract term. 22A-1 Contract Amendments for Chain Link Fence Rentals July 5, 2017 Page 2 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 Funds for the additional amount of $50,000 will be budgeted and made available in FY 2017- 18 for the second year of the contract as follows: -• • 11-6741 •Is Z LG 03217663-66220 MEW-AillLoll] 11674103168 $30,000 13-6792 03217663-66220 13679203168 $5,000 11-6740 03217662-66220 11674003168 $15,000 TOTAL: $50,000 02 F•�• Fred Mousavipour Executive Director Public Works FM/sm/sp APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez ` Executive Director Finance and Management Services Agency 22A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: CONTRACT AWARD TO DAY MANAGEMENT CORP. FOR BRIDGEWAVE WIRELESS SYSTEMS AND MAINTENANCE SUPPORT (SPEC. NO. 17-045) (STRATEGIC PLAN NO. 6,1FV J RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1"Reading ❑ Ordinance on 2ndReading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize a one-time purchase and payment of purchase order to Day Management Corporation for the purchase, installation, and maintenance support of two BridgeWave wireless systems in the amount of $37,000, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The City utilizes micro -wave based wireless data communication systems between City Hall and the Police Department and between City Hall and the Corporate Yard. Throughout the years these systems have proved to be very reliable in providing data links from one city facility to the other. The current wireless systems were installed over seven years ago and have reached their end of life for manufacture support. Maintaining reliable data links to these facilities is crucial in conducting daily City business. This purchase will replace the two wireless systems whereby preserving the links that support City agencies such as the Police Department, Finance and Management Service Agency, the Public Works Agency and the Parks, Recreation and Community Services Agency. In addition to the purchase and install of the systems, a three year maintenance and support contract is essential for preserving the fitness and maintaining the service levels with an 8 -hour business day, 5 days a week, with next -business -day (NBD) delivery. The notice inviting bids was advertised on May 23, 2017 and offers were solicited. A mandatory job walk was conducted and three vendors attended. A summary of the bids and offers received is as follows: 2213-1 Contract Award for BridgeWave wireless systems July 5, 2017 Page 2 412 Vendors were notified 19 Vendors downloaded the bid 0 Bids received from a Santa Ana vendor 2 Bids received Bids were received and opened on June 13, 2017. The bid received from Day Management Corporation is responsive to the specifications and meets the City's requirements. STRATEGIC PLAN ALIGNMENT Approval of these 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 F (perform periodic measurements to monitor and update each asset's condition and ensure adequate funding for repair, and /or replacement costs in future budgets). FISCAL IMPACT Funds in the amount of $37,000 are available in FY 2016-17 Council Special Projects — Information Systems Data Center equipment account (no. 05010024-66400). Jacl iulla Chi Technology Innovations Officer Information Technology Department JUEG APPROVED AS TO FUNDS AND ACCOUNTS: > Francisco Gutierrezpv Executive Director Finance and Management Services Agency 22B-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: AWARD CONTRACT TO GENTRY GENERAL ENGINEERING, INC., FOR CONSTRUCTION OF RESIDENTIAL STREET REPAIR PROGRAM (PROJECT NOS. 17-7522 & 15-6836) (STRATEGIC PLAN NOS. 6, 113; 1C; 1G) � a CJTY MANAGER 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 Award a contract and authorize the City Manager and the Clerk of the Council to execute a construction contract with Gentry General Engineering, Inc., the lowest responsible bidder, in accordance with the base bid in the amount of $568,300, for the term beginning upon execution of the contract and ending upon project completion, for construction of the Residential Street Repair Program projects, subject to nonsubstantive changes approved by the City Manager and the City Attorney. Approve the Project Cost Analysis for a total estimated construction delivery cost of $738,790, which includes the contract bid, administration, inspection and testing, and an authorized contingency of $85,245. DISCUSSION The purpose of the Residential Street Repair program is to rebuild neighborhood streets throughout the City. Typically, local residential streets have no other dedicated source of revenue besides Gas Tax. By combining residential streets under one contract, the City is able to receive favorable pricing due to economy of scale. The local street segments which make up this project are located in neighborhoods throughout the city (Exhibit 1), and these segments have been identified as a high priority for rehabilitation by the City's pavement management system. These segments have pavement which have deteriorated due to weather, age, and weekly use by heavy refuse trucks, as well as occasional access by other heavy trucks. 23A-1 Award Contract for Construction of Residential Street Repair Program July 5, 2017 Page 2 The improvements consist of localized concrete pavement removal, concrete pavement, reconstruction, and replacement of damaged concrete curbs, gutters, sidewalks, cross gutters, and curbs ramps. Once completed, these improvements will enhance the ride quality, surface drainage, and appearance of the neighborhoods. A Notice Inviting Bids was advertised on March 17 and 22, 2017, and bids were opened on April 5, 2017. The following is a summary of the bid invitations made and the bids received: Contractor Participation Data Santa Ana contractors receiving notices 29 Contractors requesting bidding documents 12 Bids received 6 Bids received from Santa Ana contractors 0 Bid Results Summary RANK BIDDER'S NAME LOCATION BASE BID 1 Gentry General Engineering, Inc. Rancho Cucamonga, CA $568,300 2 EBS General Engineering, Inc. Corona, CA $574,150 3 Vido Samarzich, Inc. Alta Loma, CA $665,275 4 Kalban, Inc. Santa Clarita, CA $723,850 5 All American Asphalt Corona, CA $724,569 6 Griffith Company Santa Fe Springs, CA $931,178 A total of six bids were received and all bids were deemed responsive. Gentry General Engineering, Inc., submitted the lowest responsive bid in the amount of $568,300 Based on the bid analysis and a contractor's reference check, staff recommends awarding the construction contract to Gentry General Engineering, Inc., in the amount of $568,300 (Exhibit 2). 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 B (equitably maintain existing streets and associated assets in a state of good repair so they are clean, safe, and aesthetically pleasing for all users); Strategy C (invest resources and technology to extend the service life of existing infrastructure to protect the City's 23A-2 Award Contract for Construction of Residential Street Repair Program July 5, 2017 Page 3 investment and support a high quality of life standard); and Strategy G (develop and implement the City's Capital Improvement Program in coordination with the Community Investment Plan). ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended actions are exempt from further review. Categorical Exemption Environmental Review No. 2017-028 was filed for these projects. FISCAL IMPACT As indicated in the Cost Analysis (Exhibit ), the estimated total construction delivery cost of the project is $738,790, which includes construction, contract administration, inspection, testing, surveying, and contingencies. $588,835 is available in the Community Development Block Grant (CDBG) Fund (Account No.13518783-66220, Project No.17-7522) and $149,955 is available in the Select Street Construction Fund (Account No.05917663-66220, Project No.15-6836). All funds are available for expenditure in Fiscal Year 2017-2018. d tZ Fred Mousavipour Executive Director Public Works Agency FM/EWG/TC Exhibits: 1. Location Map 2. Construction Contract 3. Cost Analysis APPROVED AS TO FUNDS & ACCOUNTS: Francisco Gutierrez � os5�(fg,) Executive Director Finance & Management Services Agency 23A-3 23A-4 11D tt i LJ 1 �=��It I LEGEND: ® PROPOSED IMPROVEMENTS. SANTA ANA City C.OUnCIl Agenda nate Project No. 17-7522 & 15-6836: POB[ICWOIINSRGENCY June 20, 2017 Residential Street Repair Program R;E, t'J 23A-6 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT NO. 17-7522 & 15-6836 RESIDENTIAL STREET REPAIR PROGRAM This CONSTRUCTION CONTRACT is made and entered into this 20`s day of June, 2017 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 "CITY"), and Gentry General Engineering, Inc. (hereinafter "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 Residential Street Repair Program 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 Five Hundred Sixty -Eight Thousand Three Hundred Dollars and No Cents ($568,300.00), as set forth and identified in the BID PROPOSAL, which is attached hereto and incorporated herein as Exhibit "A."' The BID PROPOSAL contains a schedule of unit price(s) or lump sum(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. Exhibit 2 rev. 12/20/2016 23q_7 Page 1 of 23A-8 4. CONTRACTOR agrees to complete the WORK OF AvIPROVEMENT 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. 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. 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 Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of Ten Thousand Dollars ($10,000) or Twenty Percent (20%) of the final contract price. For projects above Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of One Hundred Thousand Dollars ($100,000) or Ten Percent (10%) of the final contract price. 8. 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. 23A-9 Page 2 of 3 23A-10 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: 40' t t0. JOHN M. FUNK Assistant City Attorney RECOMMENDED FOR APPROVAL: FRED MOUSAVIPOUR Executive Director Public Works Agency CITY OF SANTA ANA ROBERT CORTEZ Deputy City Manager CONTRACTOR: Gentry General Engineering, Inc. BRENTON GENTRY President 23A-11 Page 3 of 3 23A-12 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: 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 furnish all material and do all the work required to complete the said work in accordance with said plans (if any) and the specifications for the unit price(s) or lump sum(s) set forth in the following schedule: Item Description Qty Unit Unit Price Amount 1 Unclassified Excavation* 250 CY aP. eo 2 AC Pavement* 40 TN $ , -0-6 3 Aggregate base* 100 TN $ I O'(} CO $ to, 66-6 4 Removal of 6" PCC at Various Locations* 750 CY $ 75— °{j $ 5% i2 -5Z �O 5 6" PCC with (3 -day) Cure 750 Cy S 115 $ 'l.�:1) ((M" IncludingConstruct 6 Crack Seal with Deery Super Gray* 30,000 LF $ , "�' $ 31) 5-66 °n 7 Construct PCC Sidewalk(T=4")* 5,900 SF $ Q 67.) $ t// -I �, )�66c9 9 Construct PCC Driveway Approach (T=6")* 2,500 SF $ $ 9 Construct PCC Curb Ramp 2,700 SF �1 ,. d -n 5-q/ 6 Jbo 10 Construct PCC Curb and Gutter(A-2-6)* 100 LF $ 1 ev CC7 $ 0? p6-6 c0 11 Construct PCC Curb and Gutter(B-1)* 300 SF $ S co $ La, 5 `A 12 Construct PCC Cross-Gutter(Local Street) 2,400 SF $ 3e� n' $ 7a 666 co 13 Grind PCC 100 LF $ SV $ od0 eD 14 Root Shave 5 EA $ l 1157,zfO $ 7' �(JU N � Exhibit . A 23A-13 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM Item Description Qty Unit Unit Price Amount 15 Adjust Sewer Manhole Frame and Cover to 2 EA $ ev (J $ 1 oa l Finished Grade 16 Furnish and Install Water Valve Frame and 4 EA $ to $ Cover to Grade 17 Signing and Striping 1 LS $ / l �" $ I 5-D 18 Project Advertising Sign 2 EA $ �6V $ TOTAL BASE BID Is �6'8 13 G0 The lowest responsible bidder shall 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. ''( This bid item is considered a Specialty Item per Section 2-3.2 of the Standard Specifications. TIME FOR COMPLETION OF IMPROVEMENTS AND LIQUIDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within fifty (50) working days after the commencement date stated in the Notice to Proceed. The bidder also proposes to continue in a diligent and workman -like manner without interruption, and to complete the construction thereof within the time specified above. The liquidated damages amount, in lieu of the amount specified in Subsection 6-9 of the Standard Specifications, shall be $800 per calendar day. Name of Firm G2 Signature of BIDDER 1n �( Title I' 'rC5 ti nt (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.) P-2 of P-16 23A-14 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 San Bernardino On April 4, 2017 before me, Andrea Scarbrough, Notary Public (insert name and title of the officer) personally appeared Brenton Gentry who proved to me on the basis of satisfactory evidence to be the persor[ 4whose nameN is/pa subscribed to the within instrument and acknowledged to me that he&+,& kley executed the same his/k authorized capacity(, and that by hislh&t W signatureM on the instrument the person(, or the entity upon behalf of which the person(M 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. ANDREASCARBROUGH WITNESS my hand and official seal. Notery.pume •CerHornie Oen Oermrdlno coonty CeilntN sim • 2144223 jNL61 COnim. E' Ir» Feb 27 2020 Signatur (Seal) i 23A-15 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM 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 funds, 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 due 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 quantities 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 perjury that the foregoing is true and correct. NameofFirm V'l�h'iY�� ('A'C j "((y;,1 Pnq1hr?fy)nq Inc. _ v J Signature of BIDDER Title (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.) P-3 of P-16 23A-16 CITY OF SANTA ANA PROPOSAL PROJECT NO,: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM CONTRACTOR'S LICENSING AND REGISTRATION STATEMENT The undersigned contractor, or corporate officer, declares under 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: Business Address: Business E -Mail Address: v1 n -i -n e 2n n Genn hti� Telephone: qu C1 — 3?J b — � � 2,Q7 v State Contractor's License No. and Class: License Expiration Date: N State Dept. of Industrial Relations (DIR) Registration No.: � 0 C) 0 () o a LI State Dept. of Industrial Relations (DIR) Registration Expiration Date: Signed:/` - Title: P -4P 16 23A-17 CITY OF SANTA ANA PROPOSAL PROJECT NO,: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM 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 foregoing is true and correct. NameofFirm &e )�NQ ElfV\eT0,\ `Ghq yrCeY�hG Y� Signature of BIDDER --S;�;zazkn Title �,fcska ll� (if an individual, so state) P-5 of P-16 23A-18 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM OWNERSI41P AFFIDAVIT STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS: CITY OF SANTA ANA ) Oren bn b�'i� 1�� being duly sworn, deposes and says: ❑ INDIVIDUAL That heiskois 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 for the co -partnership by: who constitute fire other members of the co -partnership. ,CORPORATION T}t t he is of: C. -t P ITt-V ❑ JOINT VENTURE That he is of: one of the parties making 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 making 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. �_C� Signature of Bidder Subscribed nd sworn to before me tlri da of 20n -officer a ��'f'� (� �1Z1 �1/ Signatur&of ing Oath (No6x ubl Pic) P-6 of P-16 23A-19 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 San Bernardino ) On April 4, 2017 before me, Andrea Scarbrough, Notary Public (insert name and title of the officer) personally appeared Brenton Gentry who proved to me on the basis of satisfactory evidence to be the persono whose name( is/0 subscribed to the within instrument and acknowledged to me that he/s'wt 4 executed the same in hisitnerJtl�'r authorized capacity(tg4 and that by his/be sic signature(p) on the instrument the person(}, 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. WITNESS my hand and official seal. ANDREA9CA8BHCUGH � Notary public • California Can 9orrrordlno County i Comm111lon Ar 2144293 A Comm. Ea Ino Fab 27 9fl2nir (Seal) _ 23A-20 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 Bond No. CSBA-4622 RESIDENTIAL STREET REPAIR PROGRAM KNOW ALL PRESENT that, Gentry General Engineering Inc. as BIDDER, and Developers Surety and Indemnity Company as SURETY, are held and firmly bound unto the CITY OF SANTA ANA, as AGENCY, in the penal sum of Ten Percent of Amount Bid Dollars ($10% ), 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 4th day of April __12017 . BIDDER* _Gentry General Engineering, Inc. 9277 Archibald Avenue, Rancho Cucamonga, CA 91730 _ /— (909)912-5253 SURETY* Developers Surety and Indemnity Company 500 S. Kraemer Blvd., Suite 300, Brea CA 92821 (714) 784-5660 ®lam Dwight Reilly, orney-in-Fact 1411 N. Batavia St., Suite 201, Orange, CA 92867 (714) 516.1232 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-7 of P-16 23A-21 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 April 4. 2017 before me, Karen L. Ritlo, Notary Public (insert name and title of the officer) personally appeared Dwight Reilly who proved to me on the basis of satisfactory evidence to be the person(H) whose name(s) is/am subscribed to the within instrument and acknowledged to me that he%be(flJW executed the same in hiskxxAbeix authorized capacity0es), and that by his/beddtleiKsignature(x) 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. KAREN L RITTO WITNESS my hand and official seal. _ comm. 02138527 M COMM. r;; Notary Public-Calitornia C 5e;• ORANGE COUNTY My Comm. Expires Dec 30, 2019 L'I Signature (Seal) Karen L. Ritto 23A-22 Bond No. CSBA-4622 POWER OF ATTORNEY FOR, DEVELOPERS SURETY AND INDEMNITY COMPANY INDEMNITY COMPANY OF CALIFORNIA PC Bax 19725, IRVINE, CA92623 (949) 253-3300 MOWALL BY THESE PRESENTS that except as expressly limited, DEVELOPERS SURETYAND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, do each hereby make, wnsitute and appdnt "'Andrew Waterbury, Shaunna Rozelle Ostrom, Michael Castaneda, Dwight Reilly, Daniel Huckabay, Arturo Ayala, Jointly or severally' as their We and lawful Atiomay(s)-h-Fact, to make, execute, deliver and acknowledge, for and on behaff of add corporations, as sureties, bonds, undertakings and contracts of suretyship giving and granting unto said Atamay(s)-n-Fadfull power and authority to do and to perform every ad necessary, requisite or proper to be done In connection therewith as each of said corporations could do, but reserving to each of said corporations full power of subsganim and revacadon, and all of the ads of said Attomey(s}In-Fact, pursuant to these presents, are hereby ratified and confirmed. This Power of Abamey, is granted and Is signed by famlMle under and by authority of the following resolutions adopted by the respective Boards of Directors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of January 1st, 2008. RESOLVED, that a combination of any two of the Chairman of the Board, the President, Executive Vice-PresldenL SenlorMCe-Presfdant or any Vice President cf the corporations be, and that each of them hereby is, authorized to execute this Paver of Atlomey, qualifying the attomey(s) named In the Power of Attorney to execute, an behalf of the corporations, bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of either of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney; RESOLVED, FURTHER, that the signatures of such officers may he affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the cerpaagon when so affixed and In the future with respect to any bond, undertaking or contract of suretyship to which his attached. IN WITNESS WHEREOF, DEVELOPERS SURETY 41D INDEMNITY COMPANY and INDEW ITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by their reepe06we CMUM and attested by their respective Secretary erAmlsont Secretary this 6th day of February, 2617. By! rrp�7'I i✓iL^+f tw•nNo:,yO,'%yt,PANYO� Daniel Young, Senior Vice -President ! J"od ,h, PPORy Cv ¢' 1936 r� ocr.3 By, L5.� s'••"'tuF0m?':`as.8 Mark Landon, Vlce-President 'V'p'• ' *x�,•• ............... A notary public or other offcar oompleling this certificate verifies only the Identity of the Individual who signed the dam ment to which this certificate is attached, and not the truthfulness, acmracy, a validity of that document. State of California County of Orange On February 6 2017 before me, Lucille Raymond Notary Public U. Hmal,neN Nemo ud tela citlw Ofloer personegy appeared Daniel Youna and Marr Landon N-.(.) mav,eb) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Were, subscribed to the within Instrument and acknowledged to me Uat hefshelfhey executed the same In hisfneflheir authorized capacity(les), and that by h6terAtheir signature(s) on the InsWment the persm(s), or the entity upon behalf of LUCILLE RAYMOND which the person(s) acted, executed the instrument. Commission dr 2081945 $ Notify Public• California $ I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is i Orange Caunlytrue and corned My Comm.ig Ires Oct 13, 2018+ WITNESS my hand andcfidal seal. Place Notary Seal Above Slgnatura 1. LucKV6yifiond, Notary Public IF CERTIFICATE The undersigned, as Secretary orAssistznt Secretary of DEVELOPERS SURETYAND INDEMNITY COMPANY or INDEMNITY COMPANY OF CALIFORNIA, does hereby certify thatthe foregoing Power ofAttony remains in full force and has not been revoked and, furthermore, that the provisions of the resolution of the respective Boards of Directors of said corporation set forth N the Power of Attorney are In force as of the date of this CerlAcale. muu,n, This Ceh4flcate h executed in the City of Irvine, California, this 4th day of April , 2017• ,•` 1y!N0,4',"%• Oq�bpAOYq J74:.�FaRj•• Fir'' 'i V,_ ?Nl„Y By: et� -uvti.ea •w.�• 61. 1936 1 Lamle J mom, A exam SecIpbary ATS -1002 (02117) 23A-23 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 San Bernardino On April 4, 2017 before me, Andrea Scarbrough, Notary Public (insert name and title of the officer) personally appeared Brenton Gentry who proved to me on the basis of satisfactory evidence to be the person(owhose name(*is/ate subscribed to the within instrument and acknowledged to me that heValfh4y executed the same in his1fW4tt>t4r-authorized capacity0ot), and that by hlSAli6r iesignature(5) on the instrument the person(, or the entity upon behalf of which the person(P 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. jA1NL)REASCA1RB:RoVGHBROUGH CaliforniaWITNESS my hand and official seal. o Countyz2142"�17'ab 27, 2020 Signature (Seal) 23A-24 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM 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: %z% of the bid or $10,000, whichever is greater o Buildings, parks, or other projects: ''/s% 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 t).: License #/Exp. DIR Reg.#/Exp. Location Phone A Amount $ Name License 4/Exp. DIR Reg.#/Exp. License # Location Phone Type Of Work Amount $ Name License #/Exp. DIR Reg.#/Exp. License # Location Phone Type Of Work Amount $ '7.e / .I— Signature of Bidder 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 9/Exp. DIR Reg. #/Exp. License # _ Location _ Phone Type Of Work Amount $ iof P L6 �/"►5 e CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM 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. 1. Liu o{ Fon.icxna 8 53 Surra, Air. Fohtanu(% 33s Name a Address of Owner. lo -ern Toinle (9fia)-ze i - 3Ng -i- Name and Teleplione Number of person familiar with project. 441/i3-:�n RAtmki< ivnnrmmyve"+ T�n� aol\.r) Contract Amount Type of WoZ Date Completed 2. r;4,u p-� aa..\Awin jlarV- Poci,R( Kvje•1balekoln Puvk CIR atmb l,�ame and Address of owner. la+nn E;t�+j�rVe� (lo�l�l-813-555 Name and Telephone Number of person familiar with project. ,96DI-Iji-ao Nl tc WAu Rypnsmctihn S'pk • Ulla Contract Amount ' Typ6 of Work Date Completed 3. Ciku ok Vivo-cWky SI I I 6Cni•tn Si-- kAof\vclair GYM M3 N jZvn�.9 Atltlress of owner. I 5S cty�tDll (A0 Naive and Telephone Number of person familiar with project. SI-c3,lOvg KL410&1i�()n Roie4 beCe bfr a01l� Contract Amount I Type of Work V Date Completed The following are the names, addresses, and telephone numbers of all brokers and sureties from P-9 of P-16 23A-26 N CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM ADDITIONAL REFERENCES The following are the names, addresses, and telephone numbers for THREE public agencies for which the BIDDER or Subcontractor has performed similar work in the past five years. I. <•I-� �:4- i n � �-nz�,,� Ic,�..E,a._:. ...nom ,., , � �o�, 2. L,w d G3 - 5 118 Names d Tele hone Number offp�ep� rson�fami Contract Amount Type 1� (o Dae Completed Name and Address of owner. " Name and Tele1 hone Number of peW on famillar with project. fuC,�= F I,w� 1 +- Contract Amount Type of Work Dae Completed 3. (1;'!h cV f3wl-1 st�� T cid Name and Address of owner. " Name and Telephone Number of person familiar with project. W OL- � 911�6 Sh:24 !+� ILLL�'tn e� 12U. Contract Amount Type 6TWork 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. P-10 ofP-16 23A-27 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM NON -COLLUSION AFFIDAVIT (Title 23 United States Code Section 112 and Public Contract Code Section 7106) In conformance with Title 23 United States Code Section 112 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 other 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 all 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. BIDDERS are cautioned that making a false certification may subject the certifier to criminal prosecution. Signed i✓ p J /�-- �'— State of Calornia County of ma611 Subscribed andsavor to (or affirmed) before me on this _ day of , 201, by t.'l proved to me on the basis of satisfactory ev dente to be the persons) who appeared efore me 1otar Pub'te Signature 1 (otaryPublic Seal g P-11 of P-16 23A-28 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 validityofthatdocument. State of California County of San Bernardino On April 4, 2017 before me, Andrea Scarbrough, Notary Public (insert name and title of the officer) personally appeared Brenton Gentry who proved to me on the basis of satisfactory evidence to be the person whose name(�)-is/We subscribed to the within instrument and acknowledged to me that he/st4641;A-y executed the same in his/hsr/tW authorized capacitypoA, and that by his/hor3Wr signature(d) on the instrument the personal, or the entity upon behalf of which the person(4) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Seal) 23A-29 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM 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 Secretary of Labor: 5. 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, and 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. P-12 of P-16 23A-30 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15.6836 RESIDENTIAL STREET REPAIR PROGRAM 7. 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 works violating this Section is subject to all the penalties imposed for a violation of the Chapter. Signed:�- Title: �(PSlcleb� Firm: 'Iaei►a-1 C2{�2rA� �h��lYiiei�Yl6i �Y1Q Date: `f I "1 Ir� P-13 ofP-16 23A-31 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM 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: 1. 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 fund 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 contractors, except contractors not signatory to the trust agreement shall pay a like amount to the California Apprenticeship Council. Signed: :�5`21i�h1� Title; Firm: I`I�G1�j\Vy koe r 24 "WN (1. Date: P-14 of P-16 23A-32 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM STATEMENT REGARDING "ANTI -KICKBACK" REQUIREMENTS 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 (18 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 construction or repair of public work, to give up any part of the compensation to which he/she is otherwise entitled. Signed:j iL✓t i . i --- Title: Firm: Date: P-15 ofP-16 23A-33 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 17-7522 AND 15-6836 RESIDENTIAL STREET REPAIR PROGRAM PUBLIC CONTRACT CODE SECTION 10162 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 1 If the answer is yes, explain the circumstances in the following space. P-16 of P-16 23A-34 4152017 Account Activaled''i S' sem to4Awatd-an gement Username R - M 11' Name: Brenton entry Account Activated - Confirmation Confirmation Wed Apr 05 12:24:34 EDT 2017 Password Log In Forgot Password? Create an Accoun[ Thank you for activating your SAM accountl You will he taken to the User Dashboard page. Once on the User Dashboard, you will have the option to migrate an account from a legacy system. Use the Done button to continue. Search Records Data Access Check Status About Help IOM c1.P.64 .01703301550 4'AVkVi 'PRIA"I � ONE ® F.4P71S.gov Disclaimers GSA.gov/lAE Accessibility GSA.gov Privacy Policy USA,gov httpslAvww.sam.gov/portal/SAmnnavigaticnalstate=JBPNS_rOOABXdcACJg1'XZfieC5m4NVNlcy5wb3JOhGVOYn1pZGdl UNUQVRFXOIEAAAAAQApdmlldzo0... 1!1 41512017 un iUpdate Welcome Brenton GentN I Sign out dun&brad street Update User Profile Transaction History Business Credit Basis FAQs Contact Us iHome s Rl date Main Menu P > !Update Main Menu Note: Dun & Bradstreet does not charge businesses to update their company Information. Reviewing your Dun & Bradstreet Information and providing updates l on your company via iUpdate is an important part of maintaining your business profile and a service Dun b Bradstreet is proud to offer for free. The following companies are associated with your profile. Select the company you would Ilke. to review, then select an option from the menu Company Address, City, State rO-U-N-SN TERRA A PKWY APT 62, RANCHO ' CO)11131 1053653061 GENTRY GENERAL ENGINEERING CUCAMONGA, CA ry Start Update Process a,> Submit Financial Statement %> Data Update Policies and FAQs View Print Company Report (> Investigate Payment Experience t> f User Profile zL...✓ ® Dun b Bradstreet, Inc., 2000-2015. All rights reserved. Get a D-U-N-Sa Number I Business Directory I Business Credit Basics I FAQs I Contact Us I Privacy Policy httpsafiupdate.dnb.com[iUpdat&mainPage.htm 23A-36 ill EX]EIIBIT 1 City of Santa Ana Section 3 Contract Clause These Clauses are to be inserted in all contracts A. The work to be performed under this contract number 14— ate. by and between the City of Santa Ana, hereinafter referred to as "City" and t l G hereinafter referred to as "Contractor", is subject to the requirements of Section S of the Housin and Ur an 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 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. 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 under no contractual or other constraint 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 an 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 the notice 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 and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. D. The Contractor agrees to include a Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, upon a finding that the subcontractor is in 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 (1) after the Contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not to circumvent the Contractor's obligations under 24 CFR part 135. F. Noncompliance with regulations in 24 CFR Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted projects. The Contractor by this signature affixed hereto declares under penalty of perjury: Contractor has read City requirements and accepts all its requirements contained therein for all of his/her operations within the City of Santa Ana. " a , - 3/3 Signature of Contractor Print Name and Titl Date 5?-`{`9�- A 5_3(a5_30W Contractor License Number & Designation Federal DUNS Number 23A-37 Project Name: �(s� Project Location: V. Street Contractor Name: EXHIBIT 2 City of Santa Ana Section 3 New Hire Calculation Form M State Contractor Contact: Contractor Telephone Number: �� 0`1� ,�,�b- ay dr, Contractor Email Address:El fan "�` i e !' vv-, t Total number of Section 3 resident new hires necessary to comply with contract: 2 _ Signature of Contractor 3/st�i�T Date 23A-38 . edI Contractor's Section 3 Affirmative Action Plan -75 2,- 1A Project Number and Title The undersigned contractor agrees to implement the following affirmative action steps directed at increasing the utilization of lower income residents and business concerns located within the County of Orange. 1. Take affirmative action to ensure that employees or applicants for employment or training are not discriminated against because of race, color, religion, sex or national origin. 2. Send a notice of the contractor's Section 3 commitment to each labor organization or representative of workers and post a copy of the notice at a conspicuous place available to employees and applicants for employment or training. 3. To the greatest extent feasible, make a good faith effort to recruit for employment or training lower income residents from the County, and to award contracts to business concerns which are located in or owned in substantial part by persons residing in the County through use of: local advertising media, signs placed at the project site and notification to community organizations and public or private institutions operating within or serving the project area such as Service Employment and Redevelopment (SER), Opportunities Industrialization Center (OIC), Urban League, Contracted Employment Program, U.S. Employment Service, Chamber of Commerce, labor unions, trade associations and business concerns. 4. Maintain a file of all low-income area residents who applied for employment or training either on their own or on referral from any source, and the action taken with respect to each area resident. 5. Maintain a file of all business concerns located in the County who submitted a bid for work on the project, and the action taken with respect to each bid. 6. Maintain records, including copies of correspondence, memoranda, etc., which document that affirmative action steps have been taken. 7. Incorporate the Section 3 clause provisions in all subcontracts, and require subcontractor(s) to submit a Section 3 Affirmative Action Plan. Compan Name ✓✓ Signature of Contractor "Ia;� "),LJ Jao f � e A- UP`tf4A Z� Address: Street, City, State, Zi�eit4M PrintedName 5-3� �,3oc�� ere-bt4elv+ DUNS Number Title 23A-39 EXHIBIT 9 City of Santa Ana Section 3 Contract Award Consideration Bidder's Name: �J �, t�erx l r5tW M" , I\e—. Please check the numbered statement that is applicable to your business: My business qualifies as a Section 3 business concern: If you have checked statement NUM ER 1 please read the attached Section 3 Business Concern Preference - Bidding Requirements. (Please check the applicable qualificationfor statement number 1) 51% owned by Section 3 residents; or Permanent, full-time employees include at least 30% Section 3 residents; or Will subcontract more than 25% of the dollar award of all subcontracts to be awarded to business concem(s) that meet either of the two preceding qualifications. Note: You are required to list all subcontractors and owner -operators in your bid statement, 2. �My business does not qualify as a Section 3 business concern. Note: Section 3 business concern definitions are located in this project's Contract Documents & Specifications Manual within the section titled Section 3 Economic Opportunities Plan. Si nature of Business Owner Date Print Name 23A-40 EXHIBIT 12 WOMEN OWNED/MINORITY BUSINESS OWNED ENTERPRISES (W/MBE) GOOD FAITH EFFORTS Project Name: Project Number: 1'5— 6 Project Location: Iy oG �r Pursuant to 24 CFR Part 85 § 85.36 (e) of Code of Federal Regulations, contractor must take all necessary affirmative steps to assure that minority business firms, women's business enterprises and labor surplus firms are used whenever possible. Contractor shall submit the following information to demonstrate that a goof faith effort has been made to comply with the above section of the Code of Federal Regulations. Submittal of this form, in and of itself, may not provide sufficient documentation to demonstrate that goof faith effort was made. Documentation such as copies of advertisement, letters of solicitation, telephone logs, rejected quotes, etc. should accompany this form. 1. The names and dates of advertisement of each newspaper, trade paper, and minority -focus paper in which a request for W/MBE participation for this proj ect was placed by the bidder: Names of Newspaper Date of Advertisement 2. The names and dates of written notices sent to W/MBE soliciting bids for this project and methods used for following up initial solicitation to determine with certainty whether the W/MBE were interested. es of Dates of WAMDSolicited Solicitation Follow-up Methods and Dates I `i I— 1 m -. 1 !2! e 3. The items of work which the bidder made available to W/MBE firms, including, where appropriate, any breaking down of the contracts into economically feasible units to facilitate W/MBE participation, and the information furnished to W/MBE such as plans, specifications, and requirements for the work. Items of Work: S 64 �l �` � + ��7 r�'u�g t e �p/ir Bre-^ Breakdown of Items: Information Furnished: �il Wi1� -Sec4oni5pe¢.00C 23A-41 4/52077 Amercian Engineering Laboratories American Engineering Laboratories. Inc. Rovidmg GW and structural Enginoering. Geotechnical 8 Geological Services, Censuuctlon Inspection. Materials Tasting, and Forensic Science s'ercices to govemmental agencies, developers, institutional clients and national Firms with development noeds in Southern California. American Erginaering lihumtrnies, is o minority ovmed. Smell Business Enterprise. Offices thmughaut Southern California provide service to the Coastal, Vollay, (Nand Empire and High Desert Regions. We nlaintann our =1 laboratory Frcititles and direclly control our own hold -tasting Intl explanation equipment. Questions or need a quote, call us: (562) 697.4000 or at (888) 287-0875. ^c .hors anaat.q tobn111.0. inn. 700-4 ICONTACT http:Uwww.aelinspector.wm/ 23A-42 in 4/92017 Gmail - AEL Fee Schedules for (Residential Street Repair Program) Gmail Brenton Gentry <gentrygeneral@gmail.com> AEL Fee Schedules for (Residential Street Repair Program) 1 message Laura@aelinspector.com <laura@aelinspector.com> To: gentrygeneral@gmail.com Cc: aida@aelinspector.com, laura@aelinspectoccom, zack@aelinspector.com Hi Robert, Wed, Apr 5, 2017 at 10:32 AM American Engineering Laboratories (AEL) is pleased to submit our Fee Schedule for Prevailing Wage for the Residential Street Repair Program project. Please note affective 07/01/17 the rate will go up by $2.00. Please feel free to contact us if you have questions. We may be reached at (562) 6974000. We thank you for this opportunity of working with you. Thank you, Laura Elazurto AMERICAN ENGINEERING LABORATORIES INC 205 W. La Habra blvd I La Habra, CA 90631 Toll Free (888)287-0875 1 Office (562)697-4000 Fax (562) 697-4009 Laura@aelinspectoccom I www.AEL!nspector.com 2 attachments .� Fee Schedule Proposal _Prevailing Wage 2017.pdf 90K Fee Schedule Proposal _Prevailing Wage 2017.pdf 90K httpsl/mail.google.com/mail/u/0/7ui=2&ik=5oe59O5ce3&view=pt&search'R 3th'i5b3f7cfc5aab700&siml=15b3f2cfc5aab700 to .: Prevailing Wage and Fee Schedule 2017 7777771 American Engineering Laboratories, Inc. MATERIALS TESTING AND INSPECRTION SERVICES ITEM UNIT PRICE U/M Geotechnical Engineer $ 120.00 Hour Engineering Geologist $ 120.00 Hour Civil Engineer $ 115.00 Hour Submittal Review, Civil $ 100.00 Each Soil Technician $ 82.50 Hour Inspector ICC (concrete/masonry/fireproofing) $ 82.50 Hour Batch Plant Inspector $ 82.50 Hour ACI Concrete Technician $ 82.50 Hour Shop Welding Fabrication Inspection (AWS/CWI) $ 82.50 Hour Field Welding Inspection (AWS/CWI) $ 82.50 Hour Ultrasonic Testing Technician (UT) $ 84.50 Hour Non Destructive Testing Technician (NCIT) $ 84.50 Hour Sample Coring Technician $ 82.50 Hour Concrete Coring $ 155.00 Hour Concrete/Masonry Coring Travel (2 -man crew) $ 100.00 Hour Technician & Rebound Hammer $ 82.50 Hour Ground Penetrating Radar (GPR) $ 125.00 4&8 X -Ray (Film Sheets Not Included) Quote Sample Pick -Up $ 65.00 Trip Secretarial, File Search No Charge LABORATORY ITEM UNIT PRICE U/M CONCRETE Compressive Strength Specimen, 6 x 12 Cylinder $ 18.00 Each Compressive Strength Specimen, 4 x 8 Cylinder $ 18.00 Each Strength, Concrete Core (Does not include sample preparation, If required) $ 35.00 Each Concrete Trial Mix $ 280.00 Each Molding, Curing & Testing (per specimen) $ 50.00 Each Mix Design Review & Certification $ 150.00 Each Dry Unit Weight (Light Weight Concrete) $ 50.00 Each MASONRY Mortar Compressive Strength $ 35.00 Each Grout Compressive Strength $ 35.00 Each Specimen Preparation, If Required $ 35.00 Each Masonry Core, Compressive Strength $ 50.00 Each Masonry Core, Shear Test $ 45.00 Each Masonry Assembled Prisms - up to 8 x16 $ 95.00 Each 23A-44 f' Prevailing Wage and Fee Schedule 2017 ITEM UNIT PRICE U/M Masonry Core, Preparation, If Required $ 35.00 Each Unit Moisture Content & Absorption (3) $ 130.00 Each Unit Weight & Measurements $ 60.00 Each Mortar Mix Design (Excludes Aggregate Tests) $ 100.00 Each Grout Mix Desing (Excludes Aggregae Tests) $ 100.00 Each REINFORCED STEEL- WELDED OR COUPLED SPECIMENS Slippage & Tensile Test (Caltrans 52-108C) $ 125.00 Each Tensile Test: Mechanical Splice #11 & Smaller $ 85.00 Each Tensile Test: Mechanical Splice #14 $ 100.00 Each Tensile Test: Mechanical Splice #18 $ 115.00 Each Tensile Test: Welded #11 & Smaller $ 40.00 Each Tensile Test: Welded #14 $ 95.00 Each Tensile Test: Welded #18 $ 100.00 Each Weld: Macrotech $ 70.00 Each REINFORCED STEEL - ASTM A615 Tensile/Bend Test #11 and Smaller $ 60.00 Each Tensile/Bend Test Larger Than #11 $ 90.00 Each High Strength Bolt, Nut & Washer A325 (conformance test) $ 125.00 Each High Strength Bolt, Nut & Washer A490 (conformance test) $ 125.00 Each Sampling & Tagging $ 40.00 Hour Mechnical Coupler Slip Test $ 125.00 Each AGGREGATES Sieve Analysis, Coarse $ 160.00 Each Sieve Analysis, Fine & Wash $ 135.00 Each Specific Gravity & Absorption - Fine $ 80.00 Each Specific Gravity & Absorption - Coarse $ 100.00 Each Unit Weight - Per Cubic Feet $ 70.00 Each Abrasion Resistance Quote Sodium Sulfate Soundness Quote Cleanliness Value - Material Finer Than 75 Micros $ 125.00 Each Durability Index $ 125.00 Each Lightweight Pieces $ 110.00 Each Flat & Elongated Pieces $ 165.00 Each Moisture Content $ 35.00 Each Potential Reactivity, Chemical Quote ASPHALTIC CONCRETE Asphaltic Content & Gradation $ 175.00 Each Marshall Resistance to Plastic Flaw $ 160.00 Each Marshall Maximum Density $ 150.00 Each Bulk S.P.G. of Compacted Specimens, Cores $ 50.00 Each Marshall Mix Design Quote 23A-45 Prevailing Wage and Fee Schedule 2017 ITEM UNIT PRICE U/M Maximum Density & Optimum Moisture D1557 $ 145.00 Each Sieve Analysis, Coarse & Fine Combined 0136 $ 55.00 Each Sieve Analysis, Fine & Wash C117 $ 55.00 Each Visual Classification D2488 $ 35.00 Each Ring (In -Situ) Density ASCE $ 40.00 Each Moisture Content D2216 $ 35.00 Each Plasticity Index D4318 $ 85.00 Each Sand Equivalent D2419 $ 75.00 Each Potential Expansion UBC $ 110.00 Each Consolidation Test, One Dimensional D2345 $ 215.00 Each Direct Shear, Three Point D3080 $ 250.00 Each "R" Value D2844 $ 275.00 Each Sample Preparation $ 35.00 Each Foundation Investigation CBC -1804 Contract OVERTIME Please Note: Overtime will billed at the following rate. Monday - Friday 11/2 (after 8 hours) x Above Rates Saturdays 11/2 (and 2X after 12 hours) x Above Rates Sundays 2 x Above Rates Holidays 3 x Above Rates Mimimum Hours: Hourly Minimum Charges for Inspectors and Technicians: Two-hour minimum show -up charge if no work is performed, then four-hour minimum charge for work up to four hours. Work in excess of four hours will incur actual hour charges. This estimate has been prepared for the GENERAL PREVAILING WAGE DETERMINATION MADE BY THE DIRECTOR OF INDUSTRIAL RELATIONS PURSUANT TO CALIFORNIA LABOR CODE PART 7, CHAPTER 1, ARTICLE 2, SECTIONS 1770, 1773 AND 1773.1. DETERMINATION: SC -23-63-2-2014-2D. 23A-46 Los Angeles County One Gateway. Plaza p Metropolitan Transportation Authority Los Angeles, CA 90012-2952 Metm CALIFORNIA UNIFIED CERTIFICATION PROGRAM Feburary 3, 2015 Eduardo Anaya JLE Broker, Inc. DBA Anaya's Trucking 11840 S. Woodruff Ave Downey, California 90241 RE: Disadvantaged Business Enterprise Certification Dear Mr. Anaya: 213.922.z000 Tel metro.net A` CUCP #42558 Metro File # 6776 We are pleased to advise you that after careful review of your application and supporting documentation, the Los Angeles County Metropolitan Transportation Authority (Metro) has determined that your firm meets the eligibility standards to be certified as a Disadvantaged Business Enterprise (DBE) as required under the U.S. Department of Transportation (U.S. DOT) Regulation 49 CFR Part 26, as amended. This certification will be recognized by all of the U.S. DOT recipients in California. Your firm will be listed in the California Unified Certification Program (CUCP) database of certified DBEs under the following specific areas of expertise that you have identified on the NAILS codes form of the application package: NAICS (2007 Description -084320 5 ecialized Freight (except Used Goods Trucking, Local 484110 1 General Freight Trucking Local Your DBE certification applies only for the above codes. You may review your fine's information in the CUCP DBE database which can be accessed at the CUCP's website at www.californiauco.orp. Any additions and revisions must be submitted to Metro for review and approval. In order to ensure your continued DBE status, you are required to submit an annual No Change Declaration Form (which will be sent to you) along with supporting documentation. If no changes are noted, then your DBE status remains current If there are changes, Metro will review to determine continued DBE eligibility, Please note, your DBE status remains in effect unless Metro notifies you otherwise. Should any changes occur that could affect your certification status prior to receipt of the No Change Declaration Form, such as changes in your firm's name, business/mailing address, ownership, management. or control, or failure is ma..t the applic=able business size standards .or personal net worth standard, please notify Metro immediately. Failure to submit forms and/or change of information will be deemed a failure to cooperate under Section 26.109 of the Regulations. Metro reserves the right to withdraw this certification if at any time it Is determined that it was knowingly obtained by false, misleading, or incorrect information. Your DBE certification is subject to review at any time. The firm thereby consents to the examination of its books, records and documents by Metro. Congratulations, and thank you for your interest in the DBE program. Should you have any questions, please contact us at 213-922-2600. For information on Metro contracting opportunities, please visit our website at www.metro.net. Sincerely, Marl n White Certification Consultant —HSW Services Diversity & Economic Opportunity Department .'11.N IinL.,/a..l:M l.._i T..:q Feu tl I.:M.tL➢:.Ipmvi tinz1114usim•>s Qniiim"wn Unix Om• 4:na+a: M., OUiI tin,p rH)-e-1. be.ln� •la, C:1 mUI! aa�t •son 1'h'1l �-J43-:CiU Paso •l l: -e 22-:6td1 23A-47 EXHIBIT 12 (cont.) 4. Efforts made to assist W/MBE in obtaining bonding, lines of credit or insurance, and any technical assistance related to the plans, specifications and requirements for the work which was provided to W/MBE: 5. Any additional data to support a demonstration of good faith effort, such as contracts with W/MBE assistance agencies: I declare under penalty ofperjzuy that the foregoing information is true and correct to the best of my knowledge. I understand that the City of Santa Ana and/or the U.S. Department of Housing and Urban Development may verify the information provided herein in connection with W/MBE compliance evaluation/audit activities and that failure to fully and truthfully complete this form may result in economic or other sanctions. Signature; Name: v. Title: tBe, Date: I "-7- Name of Contractor/Subcontractor: CSV ,\ S Contractor/Subcontractor Identification Number: 9 -7 2 G Address (Street, City, State, Zip): ^14s L l ;-M lA IWO I-HxIO(x cn-.yt�31 Business Racial/Ethnic/Gender Code: Circle the numeric code which indicates the racial/ethnic/gender character of the owner(s) and controller(s) of 51% of the business. When 51% or more is not owned and controlled by any single racial/ethnicity/gender category, circle the code which seems most appropriate. (l"- White Americans 2 = Black Americans 3 = Native Americans Woman Owned Business: 4 = Hispanic Americans 5 = Asian/Pacific Americans 6 = Hasidic Jews Circle One: Yes or No F.M005\PROnVCBWUOFORtdS\MBU5B04AMB - 9ec11oOS�.00C 23A-48 To the City of 0 rlh EXHIBIT 15 NONCOLLUSION AFFIDAVIT (Title 23 United States Code Section 112 and Public Contract Code Section 7106) DEPARTMENT OF PUBLIC WORKS In accordance with Title 23 United States Code Section 112 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 other 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 all 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. Name of ConMotor VV Address Signature and Title Date F.1D0CMPRCPSVCMUDF0RM51M U5B04A B-&d1.3Spea.000 23A-49 EXIIIBIT 16 FEDERAL LOBBYIST REQUIREMENTS CERTIFICATION Name of Firm: Date: 'i &12=:L)i-q Address: 6l ^� Ard/r7' L M_, 1 t 330.11 ag State: Zip Code: r�310 Telephone: Acting on behalf of the above-named firm as its Authorized Official, I make the following Certification to the Department of Housing and Urban Development (HUD) and the Community Development Commission, County of Los Angeles: 1) No Federal appropriated funds have been paid, by or on behalf of the above-named firm to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, loan, or cooperative agreement, and any extension, continuation, renewal, amendment, or modification thereof; and 2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee or 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 above-named firm shall complete and submit Standard Form—LLL, "Disclosure Form to Report Lobbying" in accordance with its instructions; and 3) The above-named firm shall require that the language of this certification be included in the award documents for all sub -awards at all tiers (including subcontracts, sub -grants, and contracts under grants, loans, and cooperative agreements) and that all sub -recipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into the transaction imposed by Section I352 Title 31 U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Authorized Official: Name: tS� "" �' "'\ Title: Signature: 7P,�,,Zz Vcn Date: `I AQ/�aq- F:10DCS1PRDPSVCSIHUDFORM MBU5004AMB-S..U0n3S"=D0C 23A-50 17 CERTIFICATION OF UNDERSTANDING AND AUTHORIZATION Project Name: &4"?, V aw4,- Project Number. 1-7 —f� P -P— i s 693rn This is to certify that the principals and the authorized payroll officer, below, have read and understand the labor standards clauses pertaining to the subject project. The following person(s) is designated as the payroll officer for the undersigned and is authorizcd to sign the Statement of Compliance, -which will accompany our weekly certified payroll reports for this project: Payroll Officer's Name Payroll Officer'b,,Signature Contractodgubcontractor by Signature Printed Name Title 4'6s an Date °I --�`I � Contractor/Subcontractor License No. 53 G 6-30 1 DUNS Number P:kWCMPNOPSVOMUDFOWS�MBU5e04AM6-Se dMZSjI8L DOG 23A-51 A fc:J 1' nr CJ y—' yy ` 23A-52 COST ANALYSIS CONSTRUCTION OF THE PROJECT NO. 17-7522 & 15-6836: RESIDENTIAL STREET REPAIR PROGAM Construction Contract $ 568,300.00 Contract Administration $ 38,970.00 Inspection and Testing $ 46,275.00 Contingencies $ 85,245.00 TOTAL ESTIMATED CONSTRUCTION COSTS $ 738,790.00 EXHIBIT 3 23A-53 23A-54 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: AGREEMENTS WITH JOHNSON -FRANK & ASSOCIATES, INC., HUITT-ZOLLARS, INC., AND D. WOOLLEY & ASSOCIATES FOR ON- CALL CONSTRUCTION SURVEYING SERVICES (STRATEGIC PLAN NO. 61 1G) y , CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on tat Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute agreements with Johnson -Frank & Associates, Inc., Huitt-Zollars, Inc., and D. Woolley & Associates to provide On -Call Construction Surveying Services for the two-year term beginning July 5, 2017, and expiring on July 4, 2019, with provisions for two one-year extensions exercisable by the City Manager and City Attorney, for a total amount not to exceed $250,000 for each firm over the entire term of the agreement, including any renewals, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The Public Works Agency (PWA) is responsible for providing construction surveying for the City's capital improvements projects to ensure that the improvements are built in the locations, elevations, and alignments shown on the plans. In addition, as required by the Business and Professional Code of the State of California, PWA is also responsible for restoring survey monuments and street centerline records if they are disturbed by construction activities. Since there is only one surveyor in Public Works, it is necessary to retain the services of engineering and/or land surveying firms for on-call survey services. Outsourcing these services will allow the City to keep up with construction project workloads and ensure performance of the survey tasks required by the Code. The cost of these services is recognized as a construction management activity and is reimbursable from the various grants which the City is awarded. On March 20, 2017, the Public Works Agency released a Request for Proposals (RFP) on the City's website and notified qualified consulting firms to provide On -Call Construction Surveying Services. Eight proposals were received and evaluated by a review committee from the Public Works Agency. Each firm was rated according to its organization, credentials, resumes, references, and fees to provide the services. The list of the firms and their respective scores are listed below: FIRM SCORE Johnson -Frank & Associates, Inc. 89 Huitt-Zollars, Inc. 86 D. Woolley & Associates 80 KDM Meridian 78 Consultant Agreements with Johnson -Frank, Huitt-Zollars & D. Woolley for On -Call Construction Surveying Services July 5, 2017 Page 2 FIRM SCORE Towill, Inc. 76 CASC Engineering & Consulting 75 Joseph C. Truxaw & Associates 70 IMEG Engineers 62 Based on their ratings and experience with the City, staff recommends that the firms of Johnson -Frank & Associates, Inc., Huitt-Zollars, Inc., and D. Woolley & Associates be retained for the services. These services will be used on as -needed basis. Each agreement will be in the amount not to exceed $250,000 for each firm over the entire term of the agreement, including any renewals (Exhibits 1, 2, and 3). Public Works will use a task -order system to ensure tasks are equitably allocated to all the firms. However, since the survey services are oftentimes needed on short notice, it may be the firm's availability that is the determining factor. On June 22, 2017, staff held a Meet and Confer with representatives from Service Employees International Union 721 to discuss the proposed services as required under the terms of the Memorandum of Understanding. 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). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact at this time. Prior to utilizing of any of these on-call services, Public Works staff must receive Finance & Management Services Agency approval of funding and accounts to ensure that funds are available under the authorization and aggregate limit of these agreements. Fred Mousavipour Executive Director Public Works Agency FM/EWG/TC/MG Exhibits: 1. Agreement with Johnson -Frank, Inc. 2. Agreement with Huitt-Zollars, Inc. 3. Agreement with D. Woolley & Associates 25A-2 AGREEMENT TO PROVIDE CONSTRUCTION SURVEYING SERVICES ON AN ON-CALL BASIS THIS AGREEMENT is made and entered into this 5th day of July, 2017 by and between Johnson -Frank & Associates ("Contractor"), 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 March 20, 2017, the City issued Request for Proposal No. 17-009, by which it sought Contractors to provide On -Call Construction Surveying Services for the City of Santa Ana Public Works Agency. B. Contractor submitted a responsive proposal that was among those selected by the City. Contractor represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 17-009 and attached as Exhibit A. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor Linder this Agreement will be per£onned in compliance with such standards as may reasonably be expected from a professional contracting 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, Contractor shall perform the services that are described in Exhibit A. Contractor's proposal is incorporated by reference as though fully set forth herein. When the need for services arises, City may initiate services through use of a task or similar order issued to Contractor. 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Contractor under this Agreement. Contractor shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. Contractor is one of three Contractors selected to provide construction surveying services on an as needed basis under RFP No. 17-009. The total compensation for Contractor, as one of the selected contractors, for services provided under RFP No. 17-009, shall not exceed $250,000 during the term of the Agreement, including any extension periods. b. Payment by City shall be made within forty-five (45) days following receipt of Page 1 of 12 26A4 proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and continue for two (2) years, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for up to two (2) one-year extensions upon a writing executed by the City Manager and the City Attorney, 4. PREVAILING WAGES Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, 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. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. 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. 5. INDEPENDENT CONTRACTOR Contractor 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 Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and 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. 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 Contractor under this Agreement ("Documents & Data'). Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive Page 2 of 12 25A-4 and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor 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. G/MMMMMIR Mere)M Prior to undertaking performance of work under this Agreement, 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 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 Contractor'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 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. Worker's Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commnencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $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 $1,000,000 per claim with $2,000,000 in the aggregate. C. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: Page 3 of 12 25A-5 (i) Contractor 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 famished to the City upon execution of this Agreement and shall be approved by the City. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. (iv) Contractor shall supply City with a fully executed additional insured endorsement. f. If Contractor 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 forthwith terminate this Agreement. 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. 8. INIDEMNIFICATION Contractor agrees to defend, and shall indemnify 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 negligent operations of the Contractor or its contractors, 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 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 Contractor further agrees to indenmify, 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. Notwithstanding the foregoing, to the extent Contractor'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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. Page 4 of 12 25A-6 9. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Contractor to the City pursuant to this Agreement. 10. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor 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 Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor 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. Contractor 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 Contractor under this Agreement. 11. CONFIDENTIALITY If Contractor receives fi-om the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of thus 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 Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 12, CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of services. Conflicts may be further specified in Certifications — Exhibit C, attached hereto and incorporated in this Agreement, by reference. Page 5 of 12 25A-7 13. NOTICE Any notice, tender, demand, delivery, or other coammnication 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 Executive Director Public Works Agency City of Santa Ana 24 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 Fax: 714-647-5635 To Contractor: Johnson -Frank & Associates Attn: Alan D. Frank 5150 E. Hinter Ave, Anaheim, CA 92807 Fax: 714-777-1641 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 Contractor regarding the subject matter herein, 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 Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the teras and conditions hereof, shall not Page 6 of 12 25A-8 bind or obligate Contractor or the City. Each party to this Agreement aelmowledges 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 Contractor, Contractor 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 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 or 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, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services perfonned by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor 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 Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 18. NON-DISCRIMINATION Contractor shall not discriminate because of race, color, creed, relation, 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. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations and as finther specified in Certifications — Exhibit C, attached hereto and incorporated in this Agreement by reference. Page 7 of 12 25A-9 19. 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 Couzity, 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. 20. PROFESSIONAL LICENSES 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 required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor 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. 21. 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 Clerk of the Council Signatures continued on next page CYNTHIA J. ICURTZ Interim City Manager Page A of 12 25A-10 APPROVED AS TO FORM SONIA R. CARVALHO CONTRACTOR City Attorney Ey: J061M. Funk Name: Assistant City Attorney Title: FOR APPROVAL FRED MOUSAVIPOUR Executive Director Public Works Agency Page 9 of 12 25A-11 EXHIBIT A SCOPE OF SERVICES Page 10 of 12 25A-12 10:RIr:rr�a Appendix ATTACHMENT 1 SCOPE OF WORK CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR CONSTRUCTION SURVEYING SERVICES RFP NO.: 17-009 Introduction and Background: The City desires to engage qualified firms to provide On -Call Construction Surveying and Map Checking Services, Description of Work: Construction Surveying Services In general, the Consultant shall perforin monument preservation and construction staking for various City projects on an as -needed basis. A California -licensed land surveyor shall be in responsible charge of all survey work performed under the agreement. The Consultant's services shall include, but not be limited to, the following: A. Research existing County and City records for survey monuments within the project area. B. Prior to any clearing, removal, or excavation efforts, perform a diligent search for property line monuments, street centerline monuments, and benchmarks within the project area, recording their identities and precise locations in reference to monuments or witness monuments that will not be disturbed during construction. The records of these monuments and references shall conform to Section 8771 of the Business and Professions Code of the State of California. After completion of the construction, any monument disturbed or removed during construction shall be reset; conforming to Section 8771. Each centerline intersection shall be drawn on a single Corner Record showing local tic points and tie distances. A pdf copy of the final receded Corner Record shall be submitted to the City. C. Provide construction staking for project improvements. Records of the line and grade stakes (cut sheets) shall be on forms provided by the City, and the originals shall become the property of the City upon completion of each survey request. The City will provide digital construction plans and specifications for each project. D. Set line and grade stakes in accordance with the plans and specifications. Notify the City immediately of any discrcpancies or clesign errors discovered on the plans during staking or when verifying the line and grade of existing improvements atjoin points. City of Santa Ana RFP 17-009 Page Al -1 25A-13 E. Complete the construction staking within rite time frame specified on the Survey Request Form, or (given minimum notice) commence the staking no later than two working days from the receipt of the request, providing continuous service until the request is complete. F. Furnish all office support, labor, materials, equipmont, tools, and incidentals necessary to complete the specified surveys. The costs for these items shall be included in the hourly or Iump stun costs and no additional compensation will be allowed therefore. G. Attend meetings with City's staff as required. Map Checking Services A. Information furnished by the City for checking will be roughly as follows: 1 set of Exhibits, title reports, reference documents (Beed, Parcel Map, Tract Map, etc.), traverse closures, and improvement plans. B. Review Exhibits for technical correctness and completeness, consistency with the City guidelines and requirements, compliance with the Subdivision Map Act, and acceptance for recording. C. Review title report and existing easements for correct plotting and references. B. Review improvement plans associated with the project to ensure the Exhibits correctly identify the limits and location as shown on the improvement plans. E. Provide a set of redline check prints showing the redlined comments, and required corrections and information. F. Provide a check letter covering the major required comments, and corrections and instruction for future submittals. G. Provide a timesheet at the end of every review to include, but is not limited to, project name, review number, dates, review hours, hourly rate, and total cost. Miscellaneous Services A. Provide survey services as requested. A detailed scope of work will be outlined when specific project is assigned to the consultant. Services shall include, but are not limited to, cross-sections, intersection grids, centerline determination, digital terrain models (dun), right of way determination, utility profiles and exhibits. B. Generate a computer drawing in Microstation V8 format as well as the sample survey drawing on the City of Santa Ana website listed in iters K below. C. All survey needs to be prepared to the satisfaction or the City's Surveyor and meet the following standards: City of Santa Ana RPP 17-009 Page Al -2 25A-14 D. Horizontal control shall be based on the 1983 North American Datum (NAD83), tied to a minimum of two proximate County of Orange, CCS83, Zone VI, 1991.35 Epoch Adjustment control points. Project coordinate values shall be provided in U.S. Survey Feet. The County control points shall determine the Basis of Bearing for the project. E. Vertical control shall be based on the North American Vertical Datum of 1988 (NAVD88), tied to a minimum of two proximate County of Orange bench marks. Project elevations shall be provided in U.S. Survey Feet. F. Horizontal alignments) for the project shall be tied to the survey centerline monuments within the project area. G. With the coordinate values, a full location and detailed description, including point character with reference(s), shall be provided for all found and set monuments for the project. For this purpose, a sketch of the control network is required. 11. Copies of all survey field notes and raw data files shall be provided along with a listing of the final coordinates for all surveyed points. The digital file format for the listing shall be: point number, northing, casting, elevation, description (comma delineated with no spaces, one point per line), The coordinate precision shall be one hundredth of a foot. I. At any given time the City may need to mobilize survey crews to different project sites, the consultant shall have a minimum of three (3) survey crews for mobilization. J. All City CADD standards as well as Microstation configuration files are located at: K. http://wwGv.santa-ana,org/pwa/EngineeringServices.asp Consultant Responsibilities: Consultant Audit and Review Process: Prior to awarding the contract, the selected Consultant shall be subject to an audit or review by Caltrans' Audits and Investigations (A&I), other state audit organizations, or the federal government. The selected Consultant shall complete Exhibit 10-K — Consultant Certification Contract Costs and Financial, in the Appendix of this RFP as Attachment 4. City Responsibilities: 1. Furnish construction plans and specifications to the consultant, 2. Coordinate with the contractor regarding work schedule and notify the consultant 24 hours in advance for the required inspections and tests. Fee Proposal: In addition to Section IILB.3 (Submittal Requirements: Fee Proposal) fee schedule shall be structured as follows: * For Caltrans funded projects, reference LAPM Exhibit 10-H (sample cost proposal) and is include in Attachment 4. City of Santa Ana RFP 17.009 Page Al -3 25A-15 The City does not guarantee the quantity of the work to be performed by the selected firm. The consultant shall be paid for the actual services provided for the project according to the proposed hourly rates and unit costs, In addition to the FEE SCHEDULE, the proposer shall submit another fee proposal to Include construction surveying services that can be provided by the proposer but are not included in the FEE SCHEDULE. This fee proposal should be included in the aforementioned envelope. Special Requirements Attachment4: Compliance with Requirements of Funding A eley; This agreement may be funded, in part through Federal and Measure M? funds , therefore requiring compliance with all requirements of Caltrans and OCTA. Proposer shall comply with all requirements as they pertain to the use of these funds; refer to Appendix Attachment 4. • LAPM Exhibit I0 -H: Sample Cost Proposal • LAPM Exhibit. 10-I : Notice to Proposers. DBE Information • LAPM Exhibit 10-01; Consultant Proposal DBE Commitment • LAPM Exhibit 10-K: Consultant Certification of Contract Costs and Financial management System IT SHALL BE THE KESPONSPILITY OF THE CONSULTANT TO VERIFY THAT THE LATEST VERSION OF THESE DOCUMENTS IS USED IN THE PROPOSAL, LATEST FORMS CAN BE FOUND CALTANS WEBSITE, CHAPTER 10: www.dot.cn gavlhglLocalPragranis(lam/CH IO,htm If the project will be financed, in park, by federal funds all services rendered shall meet all required federal requirements included in this request for proposal, Consultants are advised that, as required by federal law, the City of Santa Ana is implementing the new Race Conscious Disadvantaged Business Enterprise (DBE) Program. The DBE goal for this contract is 00/0. Consultants under contract with the City of Santa Ana will provide support to City of Santa Ana staff or their designee on an as -needed basis. The Consultants shall be thoroughly familiar with the Scope of Work prior to submitting a response to this Request for Proposal (RFP). • The Consultant shall perform work to produce a high quality, professional and complete work product. • Consultant must have experience with State and Federal funded projects. All work shall. be performed in conformance with all applicable regulations, policies, procedures and standards. • The Consultant shall carry out the instructions received from the City and shall cooperate with the City and other agencies. • The Consultant has total responsibility for the accuracy and completeness of the work produced. The work will be reviewed by the City for conformity with the requirements of the Agreement. Reviews by the City may NOT include a detailed review for the accuracy of items submitted. The responsibility for accuracy and completeness of such items remains solely that of the Consultant. City of Santa Ana RFP 17.000 Page A1.4 25A-16 • The Consultant shall be responsible for coordination and supervision of all work performed by its sub consultants. The Consultant shall review all work performed by its sub -consultants and the responsibility for accuracy and completeness of work performed remains solely that of Consultant. • The Consultant shall diligently work on each assignment and complete each task in accordance with the schedule and accommodate the City's needs. • The Consultant's work will be subject to inspection and audit by City, County, State and Federal representatives. • Project files including copies of all correspondences, reports, documents, and electronic files shall be submitted to the City when requested and electronically updated monthly. • All work, including reports, analysis, data, and intellectual properties developed during the life of the Agreement shall become the properties of the City. • The Consultant will receive written notification of the award of the contract, Upon on such notification, the Consultant will proceed with the services required by the Agreement. • This agreement is subject to compliance, monitoring and enforcement by the State of California Department of Industrial Relations. Consultants are required to inform themselves fully of the conditions relating to labor under which the work will be performed. In accordance with the California State Labor Code, prevaiting wage rates apply per the following link, httoWwwwAinca. ov/public-w rks4pgblicyyorks.htmI City of Santa Ana RFP 17-000 Page Al -5 25A-17 EXHIBIT B FEE SCHEDULE (OR) RATES AND CHARGES Page I 1 of 12 25A-18 On -Call Land Surveying Services The City of Santa Ana Alternative Schedule of Hourly Rates for Services Performed by our Company for the City of Santa Ana June 2017 to May 2020 Licensed Surveyor/ Survey Manager Senior Technician Technician/CAD/GIS Operator One Person Survey Party w/equipment Two Person Survey Party w/equipment Three Person Survey Patty w/equipment Clerical/Delivery Sub -consultants (GPSi Photograrmnctry and LiDAR) and Reimbursable Items GPS Equipment (I unit per person included in above crew rates) 3D Lasa Scanner $ t 74.00 $129,00 $117.00 $157.00 $260.00 $347.00 Included in Overhead Cost $100/unit/day $1,250/day Authorized overtime shall be charged at L5 times the regular rate except for Sundays and/or holidays. Rates for Sunday and for holidays shall be 2.0 times the regular rates. Daily overtime billing tot, field survey work during Monday through Friday does not commence until 8 hours of on-site work has been completed. Rates may only be changed by mutual consent. Note: However, if the CaYfrans calculated rate suvcture is required, see tile'follo'wing calculation tables. 5150 E. Hunter Ave. Anaheim CA 92807 (714) 777-8877 alanfrank@johnson-frank.com PAX: (714) 777-1641 25A-19 EXHIBIT C CERTIFICATIONS Page 12 of 12 25A-20 EXHIBIT C Appendix A.TFACFUMENT3-1;NO.."-COLLUSIONAFFIDAVIT CERTIFICATIONS NO-COLLUSIONA'FFIDAV[T (Title 23 Unitcd States Code Section 112 and Public Contract Code Secllon 7106) To the CITY or SANTA ANA DEPARTMENT OF PUBLIC WORKS In accordance with Tide 23 United States Code Section 112 and Public Contract Code 7106 the BIDDER declares that the bid is nor made in the interest of, or on behalf of, nny undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or shah; 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 BIDMR or anyone else to put to 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 all statements contained in the bill 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 thoratn, or paid, and will not pay, any fee to any corporation, parmership, 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 pact of the Proposal. Signing this Proposal on the signature portion thereot'shall also constitute signature ot'this ;'Jon -collusion AFfdavh. BIDDERS aur, cautioned that making a false certification may sabicct the, certifier to criminal prosecution, Signed State of California County of-0-1^006k� Subscribed and sworn to (or affirmed) before me on this )O' day of i�y_, 20t-1, by tow O � Part , proved to the on the basis of satisfactory evidence to be the persons) who appeared before me. BaYppptpONO MEflARMDHFR YpaepprlaBpp� APU ON00N NOTARY PU6Utl• Cow%t02I291 ng ✓' l l '.YS �rs ORANGE�,✓ COUNTExOAI.IFOitNIA w hly Car;mission pires i9,'Sn9 a tlpC9pay pp BY<i BP epBaap9pY Ypq pappaa BeYYA Afvy�Publ tgnature Notary Public Seal City of Santa Ana RFP Page A3.1 25A-21 ATTACMIENT 3-2: NON -LOBBYING CERTIFICATION The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her know edge and belief, that: 1. No federal appropriated funds have been paid or will be paid, by or on behalf of 'Are undersigned, to any person for influencing or attempting to influence an officer or, employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Meutber of Congress in connection with tic awarding of any fWoml 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 (dderal contract, gran, loan, or cooperative agreement, 2_ If any finds odicrlhau federal appropriaiud funds have been paid or will be paid to any person for influencing or attempting to influence anv officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of Member of Congress in connection faith thus federal contract, grant loan, loan or cooperative agreement, the undersigned shall complete andsubmit a`°Disclosure of Lobbying Activities". This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into, Submission of this certiffeatlon is a prerequisite for making or entering into this transaction Imposed by Section 1352, Title 31, U.S. Code. Any person who fails to Pile the requhvd certification shall be subject to a civil penalty o£not less than 510,000 and not more than $100,000 for each such Allure. The prospective participant also agrees by submitting bis or her bid or proposal that he or she shall require that the language ofthis certification be included in all lower tier subcontracts, which exceed S 100,000 and that all such sub rmipients shall certify and disclose accordingly. Fitrn Signed and Printed Name: F c / 14. A,. 6 F -CA � Titlefi Date t 41142- 01 City of Santa Ana RFP Page A3-2 25A-22 Appendix AT'I'ACHMLrNT 3-3: NON-DISCRIM INATION CERTIT,ICATION CERTIFICATIONS The undersigned consultant or corporate officer, during the performance of this contract, certifies as follows: 1, The Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Consultant shall take affirmative action to ensure that applicants are employed, and that employees rine treated diving employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, but nut be limited to, the following: employment, upgrading, domotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant 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 Consultant shall, in all solicitations or advertisements for employees placed by or on behalf of the Consultant state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 3. The Consultant 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 Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Coustdtant shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. s. The Consultant 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, and 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 Consultant'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 Consultant may be declared ineligible for further Governmont contracts or federally assisted construction contracts in accordance with procedures authorized in Execution Order 11246 of Septomber 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, 7. The Consultant shall include the portion of the sentence immediately preceding paragraph (1) and Cha provisions of paragraphs (1) through (7) in every suboantra.ot or purchase order unless exempted City of Santa Ana RFP Page AM 25A-23 by rules, regulations, or orders of the Secretary of Labor Issued pursuant to Section 204 of Executive Order 11246 of September 24, 19651 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, howevor, that in the event the Consultant becomes involved in, or is threatened with, litigation with a sub-eonsuitant or vendor as a result of such direction by the administering agency, the Consultant may request that the United States enter into such litigation to protect the interests of the United States. &, Pursuant to California Labor Code Section 1735, as added by Chapter 643 stats. 1939, and as amended, No discrimination shalt 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 consultant of public works violating this Section is subject to all the penalties imposed for a violation of the Chapter. Signed: __�/✓�� Title: Y FS, a t:I-r ._ Firm; _ Jara_Ws��t�— n ,u�... .xgar°r Date: y tr 20 j City of Santa Ana RFP Page A3.4 25A-24 AGREEMENT TO PROVIDE CONSTRUCTION SURVEYING SERVICES ON AN ON-CALL BASIS THIS AGREEMENT is made and entered into this 5t" day of July, 2017 by and between Huitt- Zollars, Inc. ("Contractor"), 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 March 20, 2017, the City issued Request for Proposal No. 17-009, by which it sought Contractors to provide On -Call Construction Surveying Services for the City of Santa Ana Public Works Agency. B. Contractor submitted a responsive proposal that was among those selected by the City. Contractor represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 17-009 and attached as Exhibit A. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting 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, Contractor shall perforin the services that are described in Exhibit A. Contractor's proposal is incorporated by reference as though fully set forth herein. When the need for services arises, City may initiate services through use of a task or similar order issued to Contractor. 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Contractor under this Agreement. Contractor shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. Contractor is one of three Contractors selected to provide construction surveying services on an as needed basis under RPP No. 17-009. The total compensation for Contractor, as one of the selected contractors, for services provided under RFP No. 17-009, shall not exceed $250,000 during the tern of the Agreement, including any extension periods. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting Page 1 of 12 2�3KU276 proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City, 3. TERM This Agreement shall commence on the date first written above and continue for two (2) years, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for up to two (2) one-year extensions upon a writing executed by the City Manager and the City Attorney. 4. PREVAILING WAGES Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage haws"), which require the payment of prevailing wage rates and the perfornance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total connpensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws, 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. 5. INDEPENDENT CONTRACTOR Contractor 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 constnied 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 Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and 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. 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 Contractor under this Agreement ("Documents &: Data"). Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive Page 2 of 12 25A-26 and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor 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 perfonnance of work under this Agreement, 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 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 Contractor'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) nae the CITY, its officers, employees, m agents, volunteers and representatives as additional insured(s); (b) be primary 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 riot less than $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 California Labor Code, Contractor, if Contractor 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, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $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 $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: Page 3 of 12 25A-27 (i) Contractor 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 by the City. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. (iv) Contractor shall supply City with a fully executed additional insured endorsement. 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 Agreement. 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. 8. INDEMNIFICATION Contractor agrees to defend, and shall indemnify 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 negligent operations of the Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of flus Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terns 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 Contractor 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. Notwithstanding the foregoing, to the extent Contractor'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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. Page 4 of 12 25A-28 9. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Contractor to the City pursuant to this Agreement. 10. RECORDS Contractor shall keep records and invoices in connection with the work to be performed tinder this Agreement. Contractor shall maintain coinplete 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 Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor 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. Contractor 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 Contractor under this Agreement. 11. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose Bach information except in the performance of this Agreement, and finther 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 Contractor disclosed in a. publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any mariner with performance of services. Conflicts may be further specified in Certifications — Exhibit C, attached hereto and incorporated in this Agreement, by reference. Page S of 12 25A-29 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 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 Fax; 714-647-5635 To Contractor: Huitt-Zollars, Inc. Attn: Marc Haslinger 2603 Main Street Suite 400 Irvine, CA 92614 Fax: 949.988-5820 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 Contractor regarding the subject matter herein, 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 Page 6 of 12 25A-30 of Contractor. 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 Contractor 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 Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assigrnnent, 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 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, tight or remedy. No waiver of any breach, failure or 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 artless the writing so specifies. EUI Y Dl NiYih/Y Ilk�7►1 This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor 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 Contractor consents to the City's use thereof for such purposes as the City deems appropriate. Payment need not be made for work which fails to rneet the standard of performance specified in the Recitals of this Agreement. 18. NON-DISCRIMINATION Contractor shall not discriminate because of race, color, creed, relation, 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. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable Page 7 of 12 25A-31 federal, state and local laws and regulations and as further specified in Certifications — Exhibit C, attached hereto and incorporated in this Agreement by reference. 19. JURISDICTION -VENUE This Agreement has been executed mud 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. 20, PROFESSIONAL LICENSES 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 required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor 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, 21. 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. I-IUIZAR Clerk of the Council Signatures continued on next page CYNTHIA J. KURTZ Interim City Manager Page 8 of 12 25A-32 SONIA R. CARVALHO CONTRACTOR City Attorney By: Jo M, Funk Name: Assistant City Attorney Title: RECOMMENDED FOR APPROVAL FRED MOUSAVIPOUR Executive Director Public Works Agency Page 9 of 12 25A-33 EXI3IBIT A SCOPE OF SERVICES Page 10 of 12 25A-34 EXHIBIT A Appendix -------- ATTACHMENT I SCOPE OF WORK CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR CONSTRUCTION SURVEYING SERVICES RFP NO.: 17-009 Introduction and Background: The City desires to engage qualified firms to provide On -Call Construction. Surveying and Map Checking Services. Description of Work: Construction Surveying Services In general, the Consultant shall perform monument preservation and construction staking for various City projects on an as -needed basis. A California -licensed land surveyor shall be in responsible charge of all survey work performed tinder the agreement. The Consultant's services shall include, but not be limited to, the following: A, Research existing County and City records for survey monuments within the project area. B. Prior to any clearing, removal, or excavation efforts, perform a diligent search for property line monuments, street centerline monuments, and benchmarks within the project area, recording their identities and precise locations in reference to monuments or 11 witness morutments that will not be disturbed during construction. The records of these monuments and references shall conform to Section 8771 of the Business and Professions Code of the State of California. After completion of the construction, any monument disturbed or removed during construction shall be reset, conforming to Section 8771. Each centerline intersection shall be drawn on a single Corner Record showing local tie points and tie distances. A pdf copy of the final receded Corner Record shall be submitted to the City. C. Provide construction staking for project improvements. Records of the line and grade stakes (cut sheets) shall be on forms provided by the City, and the originals shall become the property of the City upon completion of each survey request. The City will provide digital construction plans and specifications' For each project. D. Set line and grade stakes in accordance with the plans and specifications. Notify the City immodiate-ly of' lily discrepancies or design errors discovered on the plans during staking or when verifying the line and grade of existing improvements atjoin points. City of Santa Ana RFP 17-009 Page Al -1 25A-35 E. Complete the construction staking within the time frame specified on the Survey Request Form, or (given minimum notice) commence the staking no later than two working days from the receipt of the request, providing continuous service until the request is complete. F. Furnish all office support, labor, materials, equipment, tools, and incidentals necessary to complete the specified surveys. The costs for these items shall be included in Elie hourly or lump swn costs and no additional compensation will be allowed therefore. G. Attend nieetingas with City's staff as required. Mal) ) Checking Services A. Information furnished by the City for checking will be roughly as follows: I set of Exhibits, title reports, reference documents (Deed, Parcel Map, Tract Map, etc.), traverse closures, and improvement plans, 13. Review Exhibits for technical correctness and completeness, consistency with the City guidelines and requirements, compliance with the Subdivision .Map Act, and acceptance for recording. C. Review title report and existing easements for correct plotting and references. D. Review improvement plans associated with the project to ensure the Exhibits correctly identify the limits and location as shown on the improvement plans. E, Provide a set of redline check prints showing the redlined comments, and required corrections and information. F. Provide a check letter covering the major required comments, and corrections and instruction for future submittals. G. Provide a timesheet at the end of every review to include, but is not limited to, project name, review number, dates, review hours, hourly rate, and total cost. Miscellaneous Services A. Provide survey services as requested. A detailed scope of work will be outlined when specific project is assigned to the consultant. Services shall include, but are not limited to, cross-sections, intersection grids, centerline determination, digital terrain models (dull), right of way determination, utility profiles and exhibits. R. Generate a computer drawing in Microstation V& format as well as the sample survey drawing on the City of Santa Ana website listed in item K below. C. All survey needs to be prepared to the satisfaction of the City's Surveyor and meet the Following standards: City of Santa Ana RPP 17-009 Page Al -2 25A-36 D. Horizontal control shall be based on the 1983 North American Datum (NAD83), tied to it minimum of nvo proximate County of Orange, CCS83, Zone VI, 1991.35 Epoch Adjustment control points. Project coordinate values shall be provided in U.S. Survey Feet, The County control points shall determine the Basis of Bearing for the project. E. Vertical control shall be based on the North American Vertical Datum of 1988 (NAVD88), tied to a minimum of two proximate County of Orange bench marks, Project elevations shall be provided in U.S. Survey Feet. F. Horizontal alignment(s) for the project shall be tied to the survey centerline monuments within the project area, & With the coordinate values, a full location and detailed description, including point character with reference(s), shall be provided for all found and set monuments for the project. For this purpose, a sketch of the control network is required, 1-1, Copies of all survey field notes and raw data files shall be provided along with a listing of the final coordinates for all surveyed points. The digital file format for the listing shall be: point number, northing, casting, elevation, description (comma delineated with no spaces, one point per line). The coordinate precision shall be one hundredth of a foot, 1. At any given time the City may need to mobilize survey crews to different project sites, the consultant shall have a minimum of three (3) survey crews for mobilization. J. All City CADD standards as well as Microstation configuration files are located at: K. http://Hryvw.santa-ana.ora./pwa/EtigineeringSet-vices.asp Consultant Responsibilities: Consultant Audit and Review Process: Prior to awarding the contract, the selected Consultant shall be subject to an audit or review by Caltrans' Audits and Investigations (A&I), other state audit organizations, or the federal government. The selected Consultant shall complete Exhibit 10-K — Consultant Certification Contract Costs kind Financial, in the Appendix of this RFP as Attachment 4. Citv Responsibilities: 1. Finnish construction plans and specifications to the consultant. 2. Coordinate with the contractor regarding work schedule and notify the consultant 24 hours in advance for the required inspections and tests, Fee Proposal: In addition to Section III.B.3 (Submittal Requirements: Fee Proposal) fee schedule shall be structured as follows: • For Caltrans funded projects, reference LAPM Exhibit 10-14 (sample cost proposal) and is include in Attachment 4. City of Santa Ana RPP 17-009 Page Al -3 25A-37 The City does not guarantee the quantity of the work to be performed by the selected firm. The consultant shall be paid for the actual services provided for the project according to the proposed hourly rates and unit costs. In addition to the PEE SCHEDULE, the proposer shall submit another fee proposal to include construction surveying services that can be provided by the proposer but are not included in the. FEE SCHEDULE. This fee proposal should be included in the aforementioned envelope. Special Requirements fAttacbment 41: Compliance with Requirements of Funding Agency: This agreement may be funded, in part through Federal and Measure M2 funds , therefore requiring compliance with all requirements of Caltrans and OCTA, Proposer shall comply with all requirements as they pertain to the use of these funds; refer to Appendix Attachment 4. LAPM Exhibit 10-H: Sample Cost Proposal • LAPM Exhibit 10-1 : Notice to Proposers, DRE Information • LAPM Exhibit 10-01: Consultant Proposal DBE Commitment • LAPM Exhibit 10-K: Consultant Certification of Contract Costs and Financial management System IT SHALL BE THE, RESPONSPILITY OF THE CONSULTANT TO VERIFY THAT THE LATEST VERSION OF THESE DOCUMENTS IS USED IN THE PROPOSAL. LATEST FORMS CAN BE FOUND CALTANS WEBSITE, CHAPTER 10: v�qv.dot.oa.eav/hglL,ocall?rograms/lamlCH l O.htm If the project will be financed, in part, by federal funds all services rendered shall meet all required federal requirements included in this request for proposal. Consultants are advised that, as required by federal law, the City of Santa Ana is implementing the new Race Conscious Disadvantaged Business Enterprise (DBE) Program. The DBE goal for this contract is 0%. Consultants under contract with the City of Santa Ana will provide support to City of Santa Ana staff or their designee on an as -needed basis. The Consultants shall be thoroughly familiar with the Scope of Work prior to submitting a response to this Request for Proposal (RFP). C The Consultant shall perform work to produce a high quality, professional and complete work product. Consultant must have experience with State and Federal funded projects. All vvork shall be performed in conformance with all applicable regulations, policies, procedures and standards. • The Consultant shall carry out the instructions received from the City and shall cooperate with the City and other agencies. The Consultant has total responsibility for the accuracy and completeness of the work produced. The work will be reviewed by the City for conformity with the requirements of the Agreement. Reviews by the City may NOT include a detailed review for the accuracy of items submitted. The responsibility for accuracy and completeness of such items remains solely that of the Consultant. City of Santa Ana RFP 17.009 Page Al -4 25A-38 • The Consultant shall be responsible for coordination and supervision of all work performed by its sub -consultants. The Consultant shall review all work performed by its sub -consultants and the responsibility for accuracy and completeness of work performed remains solely that of Consultant. • The Consultant shall diligently work on each assignment and complete each task in accordance with the schedule and accommodate the City's needs. • The Consultant's work will be subject to inspection and audit by City, County, State and Federal representatives. • Project files including copies of all correspondences, reports, documents, and electronic Files shall be submitted to the City when requested and electronically updated monthly. • All work, including reports, analysis, data, and intellectual properties developed during the life of the Agreement shall become the properties of the City. • The Consultant will receive written notification of the award of the contract. Upon oil such notification, the Consultant will proceed with the services required by the Agreement. • This agreement is subject to compliance, monitoring and enforcement by the State of California Department of Industrial Relations. Consultants are required to inform themselves filly of the conditions relating to labor under which the work will be perftvmed. In accordance with the California State Labor Code, prevailing wage rates apply per the following link. h ttp^/hvww.d i r.cagov/uu bl i e-woti:s! nub I icwo rks. htm I City of Santa Ana RFP 17.009 Page Al -5 25A-39 EXHIBIT B PEE SCHEDULE (OR) RATES AND CHARGES Page 11 of 12 25A-40 EXHIBIT B City of Santa Ana On Call 2017 HOURLY RATE SHEET Engineering/Architecture Survey Principal -In -Charge $ 235.00 Survey Manager $ 195.00 QA Manager $ 215.00 Sr. Project Surveyor $ 170.00 Sr, Project Manager $ 215.00 Project Surveyor $ 140.00 Project Manager $ 180A0 Survey Technician $ 115.00 Sr. Civil Engineer $ 195.00 Sr. Structural Engineer $ 200.00 Survey Crews Sr. Mechanical Engineer $ 180,00 Sr. Electrical Engineer $ 185.00 1 -Person Survey Crew $ 160.00 Civil Engineer $ 155.00 2 -Person Survey Crew $ 215.00 Structural Engineer $ 165.00 3 -Person Survey Crew $ 260.00 Mechanical Engineer $ 165.00 Electrical Engineer $ 165.00 Construction Plumbing Engineer $ 165.00 Engineer Intern $ 120.00 Construction Manager $ 175.00 Sr. Designer $ 180.00 Resident Engineer $ 160.00 Designer $ 145.00 Sr, Project Representative $ 120.00 Sr. CADD Technician $ 9.25.00 Resident Project Representative $ 95.00 CADD Technician $ 100.00 Reimbursable Exognses Administrative Consultants Cost + 10% Sr. Project Support $ 100.00 Other Direct Costs Cost + 10% Project Support $ 65.00 Mileage IRS Standard Business Mileage Rate 25A-41 EXHIBIT C CERTIFICATIONS Page 12 of 12 25A-42 EXHIBIT G Appendix ATTACHMENT 3-1: NON -COLLUSION AFFIDAVIT CERTIFICATIONS NQ -COLLUSION, AFFIDAVI Ir (Title23 United States Code Section 112and Public ContractCode Section 7106) To the CITY OF SANTA ANA DEPARTMENT OF PUBLIC WORDS In accordance with Title 23 United States Code Section 112 and Public Contract Code 7106 the BIDDER declares that the bid is not trade 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 asham bid, or that anyone shall retrain from bidding; that the .BIDDER has not in any matmer, 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, orto secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all 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 ordata relative thereto, or paid, and will not pay, any fecto any corporation, partnership, company association, organization, bid depository, orto any member or agent theroofto effectuate a collusive or sham bid, Note; The above Non-colluslon Affidavit is part of the Proposal. Signing this Proposal on the signature portion thereof shatialso aonstituto. tahtreofthis 'Non-collusionAf'fidavit. BIDDER5are cautioned that makings falsecottificationp�nysnl the certitiertocriminal prpsocutiorv. r Signed State of California County0(_A?4 IG - Subscribed and sworn to (or affirmed) before me Notary Public Signature by satisfactory evidence to be //the person(s) who appeared 4&j (�� Notary Public Seal City of Santa Ana RFP P@ga A3-1 25A-43 CAMFORNIA JURAT WITH AFFIANT STATE8f1NNT GOVERNMENT OODE 6 8202 se Attached Dooument (Notary to cross out lines 1-6 below) C] See Statement Below (Lines 1-6 to be completed only by document signer[s], not Notary) Signature of Oocument Signor No, f Signature of r)ocument Signer No. 2 (if any) A notary public or other officer completing this certificate verlfles 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 r� Subscribed and sworn to (or affirmad) before me y County of _�dYi on this day of by pate Merrill Year JENNIFER KINN�IE (and cammisslon #+2071062 Names) of Signer(s) Notary Public. oil amid Orange Oouraiyy M Eamm, Ex Iras Be 2 2816 proved to me on tite basis of 00tisfan#�ary e donoo. to be the persons pea f b ore me. SlignOtUr t nOf Notary Public seal Place Notary Seal Above OPTIONAL, Though this section is optional, completing this Information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: -gj'64 u ,�n,kl Z ' t Ui 'Document Date; { �% Number of Pages:._ SIgner(s) Other Than Named Above: WWW; C+.�.�-"�v=43e s=&XA.nF,Y CWSs .: ,Lid>w,4ac:k`rss:42:2.4.49r1w^G=.c^s&wke e k^v. SJ: iYk`4?c'eAGxx'G;.¢Y,.6iJfC3f�lSNaw �`n 9'm'rWYv.CYXGfi`zft 02014 National NotaryAssociation • wwwAationalNotary,org - 1 -800 -US NOTARY (1-800-878.6827) Item 1IB010 25A-44 Appendix ATT'ACHMEN7' 3-2: NON•.L.011RYING CERTIFICATION CERTII+ICA'rION5 The prospective participant certifies, by signing and submitting this bid or proposal, to the best ofhis or her knowledge and belief, that: I. No federal appropriated fundshavebeen paid orwill be paid, by or on behalf oftheundersigned, to any person for Influencing or attempting to Influence an officer or employee of any federat agency, a Member of Congress, an officer in connection with the awarding of any federal contract, the making ofany federal grant, the making ofany federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment ormodificationofanyfederalcontract,grant, loan,orcooperativeagreement. 2. Ifany funds other than federal appropriated flmdshave been paid or will be paid to any person to] - Influencing or attempting to influence any officer or employee of any federal 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, loan or cooperative agreement, the undersigned shalt complete and subm its"Disclosure ofGobbyingActivities". This oertification is amaterial representation of fact upon which reliance was placed whenthis transaction was made or entered Into. Submission ofthiscertification Isalimi quisheformakingorenteringintothistransactionimposed by Section 1352, Title 31, U.S. Code, Any person who fails to file the required certification shall be subject to acivil penalty ofnot less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agreesby submitting his or her bid or proposal that he or she shalt require that the language ofthis certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly. City of Santa Ana RPF Page A3.2 25A-45 _._... _. Appendix ..._._....�._...._ ___. ATTACHMENT 3-3: NON-DISCRIMIMUON CEIi'ICIFICATION CCRTMCATIONS _ _• _ __ _ The undersigned consultant or corporate oflioor, during the performance of this contract, certifies as follows: 1, The Consultant shall not disortminate against any employoo or applicant for employment because of race, color, religion, sex, or national origin, The Consultant shall take affirmative action to onsuro that applicants arc employed, and that employees are treated daring employment without, regard to their race, color, religion, sex, or national origin, Such action shalt Include, but not be limited to, the following: employment, upgrading, dometion, or transfer; recruitment or recruitment advertising; layoff or termination, rates of pay or other forms of compensation; and selection for training, including appronticoship, The Consultant agrees to post In conspicuous places, available to employees arid applicants for employment, notices to be providod setting forth the provisions of this nondiscrimination clause, 2, Tho Consultant shall, In all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualilledapplicants will receive consideration for employment without regard to race, color, religion, sax, or national origin. 3. The Consultant shall send to each labor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding, it notice to be provided advising the said labor unloo or workers' representatives of the Consultant's commitments tinder this section, and shalt post copies of the notice in conspicuous phrcoa availablo to employeos and applicants for employment, 4. The Consultant shall comply with all provisions of Rxceutivo Order 11246 of September 24, 1965, and of the rules, regulations, and relovant orders of the Secretary of Labor. 5, The Consultant shalt furnish ail information and reports required by lixecutive 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/trey books, records, and accounts by the administering agency and the Socrotory of Labor for purposos of Investigation, to a.soertain compliance with such rules, regulations, and orders, 6, ht the event of the Consultant'snon-complisnae with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspondod in whole or in part and the Consultant may be declared Ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorizer) in Bxcoution 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, 7. The Consultant shall include the portion of the sentence Immediately proeeding paragraph (1) and the provisions of paragraphs (1) through (7) In every subcontract of purchase order unless exempted UFR Santa Ana RFP Page A3-3 25A-46 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 Consultant becomes involved in, or Is threatened with, litigation with a sub-consuttant or vendor as a result of such direction by the administering agency, the Consultant may request that the United States enter into suoh 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, montal condition, marital stators, or sox of such persons, except as provided in Section 1420, and any consultant of public works violating tills Section 1s subject to all the penalties imposed for a violation of tha Chapter, Signcd; Title: Date: ___...A.lkl!_ City Page A3.4 25A-47 25A-48 AGREEMENT TO PROVIDE CONSTRUCTION SURVEYING SERVICES ON AN ON-CALL BASIS THIS AGREEMENT is made and entered into this 5th day of July, 2017 by and between D. Woolley & Associates, Inc. ("Contractor"), 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 March 20, 2017, the City issued Request for Proposal No. 17-009, by which it sought Contractors to provide On -Call Construction Surveying Services for the City of Santa Ana Public Works Agency. B. Contractor submitted a responsive proposal that was among those selected by the City. Contractor represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 17-009 and attached as Exhibit A. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terns 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, Contractor shall perform the services that are described in Exhibit A. Contractor's proposal is incorporated by reference as though fully set forth herein. When the need for services arises, City may initiate services through use of a task or similar order issued to Contractor. 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Contractor tinder this Agreement. Contractor shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. Contractor is one of three Contractors selected to provide construction surveying services on an as needed basis under RPP No. 17-009. The total compensation for Contractor, as one of the selected contractors, for services provided under RFP No. 17-009, shall not exceed $250,000 during the term of the Agreement, including any extension periods. b. Payment by City shall be made within forty-five (45) days following receipt of Page 1 of 12 26A649 proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. 3. TERM. This Agreement shall commence on the date first written above and continue for two (2) years, unless terminated earlier in accordance with. Section 17, below. The term of this Agreement may be extended for up to two (2) one-year extensions upon a writing executed by the City Manager and the City Attorney. 4. PREVAILING WAGES Contractor is aware of the requirements of California Labor Code Section 1720, at seq., and 1770, at seq., as well as California Code of Regulations, Title $, Section 16000, at seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. 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. S. INDEPENDENT CONTRACTOR Contractor 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 Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries acid 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 Contractor under this Agreement ("Documents & Data"). Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive P1ge 2 o1712 25A-50 and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor 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, 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 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 Contractor'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 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. Worker's Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor 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, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $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 $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: Page 3 of 12 25A-51 (i) Contractor 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 by the City. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. (iv) Contractor shall supply City with a fully executed additional insured endorsement. f. 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 Agreement 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. 8. INDEMNIFICATION Contractor agrees to defend, and shall indemnify 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 negligent operations of the Contractor or its contractors, 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 due by reason of the terms of or effects arising from this Agreement, Thus 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 terns of, or effects, arising from this Agreement. The Contractor 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 selectedby 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. Notwithstanding the foregoing, to the extent Contractor'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 of, perta'i'n to, or relate to the negligence, recklessness, or willful misconduct of the Contractor, Page 4 of 12 25A-52 9. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Contractor to the City pursuant to this Agreement. 10. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor 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 Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor 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. Contractor shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years fi-om the date of final payment to Contractor under this Agreement. 11. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor 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 Contractor disclosed in a publicly available source; (e) is in rightfiil possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interest and shall not have interests, direct or indirect, which world conflict in any manner with performance of services. Conflicts may be further specified in Certifications — Exhibit C, attached hereto and incorporated in this Agreement, by reference. Page 5 of 12 25A-53 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 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 Fax: 714-647-5635 To Contractor: D. Woolley & Associates, Inc. Attn: Trevor D. Rice 2832 Walnut Ave. Suite A Tustin, CA 92780 Fax: 714-508-7521 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. 1.4. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor regarding the subject matter herein, 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 teens 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 Contractor. The parties agree that any terms or conditions of any purchase order or other Page 6 of 12 25A-54 instrument that are inconsistent with, or in addition to, the terns and conditions hereof, shall not bind or obligate Contractor 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. 1.5. ASSIGNMENT Inasmuch as this Agreement 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 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 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 or 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, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor 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 Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 18. NON-DISCRIiMINATION Contractor shall not discriminate because of race, color, creed, relation, 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, Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations and as further specified in Certifications — Exhibit Page 7 of 12 25A-55 C, attached hereto and incorporated in this Agreement by reference. 19. 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. 20. PROFESSIONAL LICENSES 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 required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor 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. 21. 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 feet, 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 Cleric of the Council Signatures continued on next page CYNTHIA J. KURTZ Interim City Manager Page S of 12 25A-56 APPROVED AS TO FORM SONIA R. CARVALHO CONTRACTOR City Attorney By: %1� VN 7 i M. Funk Name: Assistant City Attorney Title: RECOMMENDED FOR APPROVAL FRED MOUSAVII'OUR Executive Director Public Works Agency Page 9 of 12 25A-57 EXHIBIT A SCOPE OF SERVICES Page 10 of 12 25A-58 EXHIBIT A Appendix ATTACHMENT I SCOPE OF WORK CITY OF SANTA ANA R.I,QUEST FOR PROPOSALS FOR CONSTRUCTION SURVEYING SERVICES RFP NO.: I7-009 Introduction and Background: The City desires to engage qualified firms to provide On -Call Construction Surveying and Map Checking Services. Description of Work: Construction Survcyin,¢ Services [n general, the Consultant shall perform monument preservation and construction staking for various City projects on an as -needed basis. A California -licensed land surveyor shall be ht responsible charge of all survey work performed under the agreement. The Consultant's services shall include, but not be limited to, the following: A. Research existing County and City records for survey monuments within the project area. B. Prior to any clearing, removal, or excavation efforts, perform a diligent search for property line monuments, street centerline monuments, and benchmarks within the project area, recording their identities and precise locations in reference to monuments or witness monuments that will not be disturbed during construction. The records of these monuments and references shall conform to Section 8771 of the Business and Professions Code of the State of California. After completion of the construction, any monument disturbed or removed during construction shall be reset, conforming to Section 8771. Each centerline intersection shall be drawn on a single Corner Record showing local tie points and tie distances. A pelf copy of the final receded Corner Record shall be submitted to the City. C. Provide constriction staking for project improvements. Records of the line and grade stakes (cut sheets) shall be on forms provided by the City, and the originals shall become the property of the City upon completion of each survey request. The City will provide digital construction plans and specifications for each project. D. Set Zine and grade stakes in accordance with the plans and specifications. Notify the City immcdiatcly of any discrepancies or design errors discovered on the plans during staking or when verifying the line and grade of existing improvements atjoin points. City of Santa Ana RFP 17.009 Page Al -1 25A-59 E. Complete the construction staking within the time frame specified on the Survey Request Porm, or (given minimum notice) continence the staking no later than two working days from the receipt of the request, providing continuous service until the request is complete. F. furnish all office support, labor, materials, equipment, tools, and incidentals necessary to complete the specified surveys, The costs for these items shall be included in the hourly or lump sam costa and no additional compensation will be allowed therefore. G. Attend meetings with City's staff as required. Map Checking Services A. Information furnished by the City for checking will be roughly as follows: I set of Exhibits, title reports, reference documents (Deed, Parcel Map, Tract Map, eta), traverse closures, and improvement plans. B. Review Exhibits for technical correctness and completeness, consistency with the City guidelines and requirements, compliance with the Subdivision Map Act, anis acceptance for recording. C. Review title report and existing easements for correct plotting and references. D. Review improvement plans associated with the project to ensure the Exhibits correctly identify the limits anis location as shown on the improvement plans. E. Provide a set of redline check prints showing the redlined comments, and required corrections and information. F. Provide a check letter covering the major required comments, and corrections and instruction for future submittals. G, Provide a timesheet at the end of every review to include, but is not limited to, project name, review number, dates, review hours, hourly rate, and total cost. Miscellaneous Services A. Provide survey services as requested. A detailed scope of work will be outlines( when specific project is assigned to the consultant. Services shall include, but are not limited to, cross-sections, intersection grids, centerline determination, digital terrain models (dtm), right of way determination, utility profiles and exhibits. B. Generate a computer drawing in Microstation V8 format as well as the sample survey drawing on the City of Santa Ana website listed in item Ix below. C. All survey needs to be prepared to the satisfaction of' the City's Surveyor and meet the following standards: City of Santa Ana RFP 17-009 Page Al -2 25A-60 D. Horizontal control shall be based on the 1983 North American Datum (NAD83), tied to a minimum of two proximate County of Orange, CCS83, Zone VI, 1.991.35 Epoch Adjustment control points. Project coordinate values shall be provided in U.S. Survey Feet, The County control points shall determine the Basis of Bearing for the project. E. Vertical control shall be based on the North American Vertical Datum of 1988 (NAVD88), tied to a minimum of two proximate County of Orange bench marks. Project elevations shall be provided in U.S. Survey Feet. F. horizontal alignment(s) for the project shall be tied to the survey centerline monuments within the project area. G. With the coordinate values, it full location and detailed description, including point character with reference(s), shall be provided for all found and set monuments for the project. For this purpose, it sketch of the control network is required. 1-1. Copies of all survey field notes and raw data files shall be provided along with a listing of the final coordinates for all surveyed points. The digital file format for the listing shall be: point number, northing, casting, elevation, description (comma delineated with no spaces, one point per line). The coordinate precision shall be one hundredth of a foot. 1. At any given time the City may need to mobilize survey crews to different project sites, the consultant shall have a minimum of three (3) survey crews for mobilization. J. All City CADD standards its well as Microstation configuration files are located at: K. http://www.santa-ana.org/pwa/Engitleei-ingServices.isp Consultant Responsibilities: Consultant Audit and Review Process: Prior to awarding the contract, the selected Consultant shall be subject to an audit or review by Caltrans' Audits and Investigations (AM), other state audit organizations, or the federal government. The selected Consultant shall complete Exhibit 10-K — Consultant Certification Contract Costs and Financial, in the Appendix of this RFP as Attachment 4, City Responsibilities: 1. Furnish construction plans and specifications to the consultant, 2. Coordinate with the contractor regarding work schedule and notify the consultant 24 hours in advance for the required inspections and tests, Fee Proposal: In addition to Section 11113.3 (Submittal Requirements: Fee Proposal) fee schedule shall be structured as follows: For Caltrans funded projects, reference LAPM Exhibit 10-H (sample cost proposal) and is include in Attachment 4. City of Santa Ana RFP 17-009 Page Al -3 25A-61 The City does not guarantee the quantity of the work to be performed by the selected firm. The consultant shall be paid for the actual services provided for the project according to the proposed hourly rates and unit costs. In addition to the FEE SCHEDULE, the proposer shall submit another fee proposal to include construction surveying services that can be provided by the proposer but are not included in the FEE SCHEDULE. This fee proposal should be included in the aforementioned envelope. Special Reguirentents (Attachment 4): Compliance with Requirements of Funding Agency: This agreement may be funded, in part through Federal and Measure M2 funds , therefore requiring compliance with all requirements of Caltrans and OCTA. Proposer shall comply with all requirements as they pertain to the use of these funds; refer to Appendix Attachment 4. • LAPNI Exhibit 10-H: Sample Cost Proposal LAPM Exhibit 10-1 : Notice to Proposers, DBE Information LAPM Exhibit 10-01: Consultant Proposal UBC Commitment LAPM Exhibit 10-K: Consultant Certification of Contract Costs and Financial management System IT SHALL BE THE RESPONSPILITY OF THE CONSULTANT TO VERIFY THAI' TI IE LATEST VERSION OF THESE DOCUMENTS IS USED IN THE PROPOSAL. LATEST FORMS CAN BE FOUND CALTANS WEBSITE, CHAPTER 10: www.dotca.eov/h /Local-Programs/lam/Cl-110:1tm If the project will be financed, in part, by federal funds all sorvices rendered shall meet all required federal requirements included in this request for proposal. Consultants are advised that, as required by federal law, the City of Santa Ana is implementing the new Race Conscious Disadvantaged Business Enterprise (DBE) Program. The DBE goal for this contract is 0%. Consultants under contract with the City of Santa Ana will provide support to City of Santa Ana staff or their designee on an as -needed basis. The Consultants shall be thoroughly familiar with the Scope of Work prior to submitting a response to this Request for Proposal (RFP). The Consultant shall perform work to produce a high quality, professional and complete work product. • Consultant must have experience with State and Federal funder( projects. All work shall be performed in conformance with all applicable regulations, policies, procedures and standards. • ']'he Consultant shall cavy out the instructions received from the City and shall cooperate with the City and outer agencies. • The Consultant has total responsibility for the accuracy and completeness of the work produced. The work will be reviewed by the City for conformity with the requirements of the Agreement. Reviews by the City may NOT include a detailed review for the accuracy of items submitted. The responsibility for accuracy and completeness of such items remains solely that of the Consultant. City of Santa Ana RFP 17-000 Page Al -4 25A-62 • The Consultant shall be responsible for coordination and supervision of all work performed by its sub -consultants. The Consultant shall review all work performed by its sub -consultants and the responsibility for accuracy and completeness of work performed remains solely that of Consultant. • The Consultant shall diligently work on each assignment and complete each task in accordance with the schedule and accommodate the City's needs. • The Consultant's work will be subject to inspection and audit by City, County, State and Federal representatives. • project files including copies of all correspondences, reports, documents, and electronic Piles shall be submitted to the City when requested and electronically updated monthly. • All work, including reports, analysis, data, and intellectual properties developed during the life of the Agreement shall become the properties of the City, • The Consultant will receive written notification of the award of the contract, Upon on such notification, the Consultant will proceed with the services required by the Agreement, • This agreement is subject to compliance, monitoring and enforcement by the State of California Department of Industrial Relations. Consultants are required to inform themselves fully of the conditions relating to labor under which the work will be performed. In accordance with the California State Labor Code, prevailing wage rates apply per the following link. lhtdp;//wwtv.Liir.ca,Lov/public-works/pt blicworks.htrnl CityofSanta Ana RFP 17.009 ----- Page Al -5 25A-63 MR!".M. FEE SCHEDULE (OR) RATES AND CHARGES Page 11 of 12 25A-64 Schedule of Hourly Rates for Services EXHIBIT B Survey Manager Professional Land Surveyor Senior Technician Technician/CAD Operator One Person Survey Partyve/equipment Two Person Survey Party w/equipment '11xree Person Survey Partyw/equipment Labor Compliance Officer Expert Witness/Deposition Clerical $165M $180.00 $130,00 $120,00 $180.00 9275.00 $365,00 $135.00 $350,00 Included .in Overhead Prints, research material & other incidental supplies: Cost + 5% 1. Overtituc, evening„ or Sacurdaywork authorized by the client will he charged at 1.4 times the rate as shown 2. Work on Sundays, holiclaps or after 12 hours onsite, as authorized by the client, will be charged at 2 times the rates as shown 3, A minimum of A survey hours will be charged for field crews. 4, Fees charged by cities and other agencies for permits, checking and filing will be billed at cost plus 50,6 handling fee, 5. Outside consultants, such as engincering or photogrammetty will be billed at cost plus 5% handling fee. Rates are subject to change: on October 1st of each year. Tic City of Santa Ana has requested that consultants include a Project Fee Schedule. 'Ihe RFP does not outline any specific projects. We can provide a general estimate for the; services described in Attachment 1— Scope of Work. D, Woolley& Associates, l tic. 2832 Walent A,,enue, Suite A Email: yia,yq±t;�`ehYs2sl�5k',.�!dCn "Tustin, California, 92780 Phone: 714.734,3462 1 MONI.JMLNTIIEIUII:',TIJfI'TI.ON We cannot precisely determine a cost per monument. This due to variables of the site conditions. For instance, monuments that are not on the surface need to be dug up -which can take 10-30 minutes - as compared to a monument existing on the surface. A monument than has 4 existing ties only requires us to verify the ties - tagging thein if they are not currently tagged. Conversely, a monument that has no existing ties will requires us to set lead ties with Lead, tack and tag which will need to then be measured. Our firm has performed these types of projects in the past. We realize that when working with this many monuments in widely varying conditions we will have wide variations in the existing conditions. The worst case scenario is most of the monuments are buried from previous paving projects and the existing ties are no longer srh place. Considering all of these variables including filing of Corner records we are comfortable with it per monument unit cost which will allow us to complete any monument perpetuation project according to the scope outlined. $550.00 per monument to be perpetuated. Once a specific project is isschcd we can provide a more accurate rate to the City. Construction Staking 2,000+/- Linear feet per day depending on site conditions. S2,475for one day with a Two -Man Crew Mapcbecking Survey Manager 5165.00/flour 1). Woolley & Asmici arcs, I tic, 2832 Walnutmi c,Suitu A �aao�l liFi 714,34 &a62 . ... .... .. _._ /etc �Phone: ---- EXHIBIT C CERTIFICATIONS Page 12 of 12 25A-67 EXHIBIT C Appendix ATTACHMENT 3-1: NON -COLLUSION AFFIDAVIT CERTIFICATIONS NONnCOLLUS10N AEEPAM (Title 23 iJnited States Code Section 1.12 and Public Contract Code Section 7106) 'I'a the CITY OF SANTA ANA DEPARTMENT OP PUBLIC WORKS In accordance with Title 23 United. States Code Section 112 and Public Contract Code 7106 the BIDDER declares that the bid is not inade 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 anyono 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 all 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, partnersltip, 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 portion thereof shall also constitute signature of this Non -collusion Affidavit. BIDDERS are cautioned that making afalse_gertification aiay subject the certifier to criminal prosecution, Signed 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 State of California County of Orancie subscribed and sworn to (or affirmed) before me on this 13 day of April 20 17 , by Trevor D. Rice proved to me on the basis of satisfactory evidence to be person(s) who appeared before me. COMM. fl X29'9 4 NGYARY pUnIIC�"'IPOANIA z k`? ORANGE COUNTY My C^omm. Exp, June t, 2011 Signature i 1 oT Y vE,r rt City of Santa Ana RFP Page A3.1 25A-68 Appendix ATTACHMENT 3-2: NON -LOBBYING CERTIFICATION CLiRTITUATIONS The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: I. 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 any federal 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 malting of tiny federal grant, the making of any federal loan, the entering into of cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement, 2. if any funds other than federal appropriated ftmds have been paid or will be paid to any person for influencing or attempting to influence any officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or au employee of a Member of Congress in connection with this federal contract, grant loan, loan or cooperative agreement, the undeisigned shall complete and submit a "Disclosure of Lobbying Activities". This certification is a material representation of fact upon which reliance was placed whanthis transaction was made or entered into. Submission of this certification is a prerequisite' for making or entering Into this transaction imposed by Section 1352, Title 31, U. S, Code. Any person who tails to file the required certification shall be subject to a civil penalty of not less than $10,000 raid not more than $100,000 for each such failure. The prospective participant also agrees by submitting his or tier bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $ l OM00 and that all such sub recipients shall certify and disclose accordingly, Firm D. Woolley & Associates, Inc. Signed and Printed Name: �VdaGi _ Title Vice-Prosident Date April 13, 2017 s City of Santa Ana RFP s e Page A3.2 25A-69 Appendix ATTACHMENT 3.3: NON-DISCRIMINATION CERTII+ICATION CERTIFICATIONS The undersigned consultant or corporate officer, during the performance of this contract, certifies as follows: 1. The Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin, Tito Consultant 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 Consultant 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 Consultant shall, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin, 3, The Consultant 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 Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to entployees and applicants for employment, 4. The Consultant shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the riles, regulations, and relevant orders of the Secretary of Labor. S. The Consultant 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, and 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 Consultant's non-compliance. with lite 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 Consultant 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 remodles involved 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, 7. The Consultant 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 M eQim City of Santa Are RFP Page AM 25A-70 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 Stich provisions will be binding upon each subcontract or purchase order as the administering agency may direct as means of enforcing Stich provisions, including sanctions for noncompliance; provided, however, that in the event the Consultant becomes involved in, or is threatened with, litigation with a sub -consultant or vendor as it result of Stich direction by the administering agency, the Consultant may request that the United States enter into Snob 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 consultant of public works violating this Section is subject to all the penalties imposed for a violation of the Chapter. Signed: ;2- —2— Title: _... Title: Vice President Firm: D. Woolley & Associates, Inc. [late. April 13, 2017 City of Sant77 aRFP Page A3-4 25A-71 25A-72 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: EXECUTE AN AGREEMENT WITH GOVERN MENTJOBS.COM, INC. (d/b/a "NEOGOV") FOR ONBOARDING SERVICES (STRATEGIC PL N NO. 7, 5A) s% a CI MANAGER Ia*010IT, IIT, r4LTD) o F_ QiC�7Tl CLERK OF COUNCIL USE ONLY: 501••:• __N, ❑ As Recommended ❑ As Amended ❑ Ordinance on 13` 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 NEOGOV for an annual reoccurring amount of $13,558 plus a one-time set up, implementation and training fee of $5,500 for an amount not to exceed $73,290 for "OnBoarding," a Human Resource OnBoarding Platform service for three (3) years for the period of July 1, 2017 through June 30, 2020 and with the option of two (2) one year renewals, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION In alignment with the City Strategic Plan, which promotes innovation and efficiency, staff recommends adopting an agreement with NEOGOV, the City's current vendor for Applicant Tracking; in order to implement an employee onboarding platform service called "OnBoarding." The agreement will help automate business processes for greater efficiency and process improvement. The platform will allow employees to transition from applicant to employee, complete required new hire forms online and to provide employees information on benefit enrollment. It will also help staff with workflow processes and efficiency. The City obtained information and quotes from other companies but determined that there are no other companies that offered software that could link to the current applicant tracking software and can transmit data directly to OnBoarding. Currently, the process is being done manually and through personal email which is not an efficient way to communicate information to new employees. It also requires, hours of staff time along with having to print out all documentation. Onboard enables new hires to become more productive from their first day on the job by streamlining new hire paper work, processes and training. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #7 — Team Santa Ana, Objective #5 (Create a culture of innovation and efficiency within the organization), Strategy A (Promote the use of new technology to improve the delivery of services and information to staff and the community). 25B-1 Agreement with Government Jobs.com July 5, 2017 Page 2 FISCAL IMPACT The agreement is for three years from July 1, 2017 to June 30, 2020 at a cost of $19,058 for fiscal year 2017-2018 and $13,558 per subsequent fiscal years for a total of $46,174. There are two (2) one year options for renewal. If all options are exercised, the agreement would last five years for a total agreement amount of $73,290. Funds will be budgeted in the Personnel Services Benefit Account (no. 08109053-62300) in FY 2017-2018, FY 2018-2019 and FY 2019-2020 with the following distribution: Edward Raya Executive Director Personnel Services Department tr^ JacCiulla Chi f Technology Innovations Officer Information Technology Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Frio I Executive Director Finance and Management Svcs Agency Exhibit: 1. GovernmentJobs.com, Inc. (d/b/a "NEOGOV") Service Agreement 25B-2 Fiscal Year/Account Three Year Agreement Personnel Services Contractual Services 08109053 62300 Total Amount FY 2017-2018 $19,058 $19,058 FY 2018-2019 $13,558 $13,558 FY 2019-2020 $13,558 $13,558 Two Year Renewal Option FY 2020-2021 $13,558 $13,558 FY 2021-2022 $13,558 $13,558 TOTAL $73,290 Edward Raya Executive Director Personnel Services Department tr^ JacCiulla Chi f Technology Innovations Officer Information Technology Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Frio I Executive Director Finance and Management Svcs Agency Exhibit: 1. GovernmentJobs.com, Inc. (d/b/a "NEOGOV") Service Agreement 25B-2 (:JOV Service Agreement THIS ONLINE SERVICES AGREEMENT (this "Agreement") is made and entered into this clay of 2017, by and between GovernmentJobs.com, Inc., a California corporation (d/b/a "NEOGO V"), and the City of Santa Ana (CA) a public entity acting by and through its duly appointed representative ("Customer"). 1. Provision of Online Services. (a) Customer hereby engages NEOGOV, and NEOGOV hereby agrees (subject to the terms and conditions set forth herein), to provide the services (the "Services") more fully described in this Agreement and in Exhibit A (Order Form). Customer hereby acknowledges and agrees that NEOGOV's provision and performance of the Services is dependent and conditioned upon Customer's full performance of its duties, obligations and responsibilities hereunder. (b) NEOGOV shall implement and maintain a Project Change process and associated Change Control Document (CCD) to nhanage and approve any changes to the Order Corm and'or Order Details as herein described. "Ilhe CCD will include the reason lior tlhe change, a complete description of w wk to be performed, an estimate of time to complete the task, associated costs. a completion date for the CCD Statement of Work and an impact anaMk indicating ranuftcations or impacts to the overall prolect. No work within the CCD shall be performed by NLOGOV without C LIAomer approval. 2. Additional NEOGOV Responsibilities. In connection with the performance of this Agreement, NEOGOV shall be responsible for the following: (a) NEOGOV shall provide all required hosting and operations support for the applications provided through this Agreement. (b) NEOGOV shall follow those support, maintenance and other procedures and shall provide those support, maintenance and other services to Customer more fully described in this Agreement. (c) Where "Deliverables" means any software or other material created pursuant to NEOGOV services, Deliverables will be considered accepted when: (i) Customer provides NEOGOV written notice of acceptance; or (ii) thirty (30) days after access commenced if Customer has not first provided NEOGOV with written notice of rejection. Customer may reject a Deliverable only in the event it materially deviates from the specifications and requirements listed in the applicable Scope of Work and only via written notice setting forth the nature of such deviation. 3. Customer Resnonsibilities. In connection with the performance of this Agreement and the provision of the Services, Customer shall be responsible for the following: (a) Customer shall be responsible for ensuring that Customer's use of the Services and the performance of Customer's other obligations hereunder comply with all laws applicable to Customer. (b) Customer shall be responsible, as between NEOGOV and Customer, for the accuracy and completeness of all records and databases provided by Customer in connection with this Agreement for use on NEOGOV's system. NEOGOV will have no responsibility or liability for the accuracy of data entered into or uploaded to the system by Customer, including without limitation Customer Data and any other data uploaded or htput by users. ('c) Acceptable Use Customer will comply with the Scope of Work associated with this agreement and refrain from: (i) providing System passwords or other log -in information to any third party except those specifically authorized to access the services in this agreement; (ii) share non-public System features or content with any third party; or (iii) access the System in order to build, assist, or facilitate the assembly of a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that NEOGOV suspects any breach of the requirements provided in Section 3(c), including by way of Users of Customer's system, NEOGOV may suspend Customer's access to the system, in addition to other lawful remedies as required Nothing in this Agreement shall require NEOGOV to take any action regarding the limitations set forth in Section 3(c). (d) Unawhorized Access The Parties will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log -in information. The Parties will notify each otter immediately of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach. Exhibit 1 NEOGOV 25B-3 Page 1 of 16 OGOV r 4. Ownership, Protection and Security. (a) The parties agree that the NEOGOV ~narks and selective Customer utarks may both be displayed on and through NEOGOV's system(s). (b) Ownership of any graphics, text, data or other information or content materials and all records and data supplied or furnisher/ by Customer or its applicants hereunder for incorporation into or delivery through tha application(s) described in this Agreement shall remain with Customer, and NEOGOV shall cease use of all such material upon termination of this Agreement. NEOGOV's logos, including the "powered by" logo, will appear on the "employment opportunities", "job description" and other NEOGOV hosted pages, (c) Customer acknowledges and agrees that nothing in this Agreement or any other agreement grants Customer any licenses or other rights with respect to NEOGOV's software system (source code or object code) other than the right to receive Services as expressly provided herein. NEOGOV shall retain all ownership in the intellectual property and all other proprietary rights and interests associated with NEOGOV's software system and Services and all components thereof and associated documentation, except as expressly provided herein. Customer receives no nights to the Licensed Software other than those specifically granted in Exhibit A. Without limiting Exhibit A, Customer will not (i) modify, create derivative works from, distribute, publicly display, publicly perforin, or sublicense the Licensed Software; or (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Licensed Software's source code. (d) NEOGOV grants to Customer a limited license during the terra of this Agreement to use and reproduce NEOGOV's trademarks and logos for purposes of including such trademarks and logos in advertising and publicity materials and links solely as permitted hereunder. All uses of such trademarks and logos shall conform to Customer's standard guidelines and requirements for use of such trademarks and logos. 5. NEOGOV Itenresentations and Warranties. (a) Service Perjint?rance Tfart-anty. NEOGOV warrants chat it will perform the Services in a rium er consistent with industry standards reasonably applicable to the performance thereof. (b) No Other Warranly, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S USE OF THE SERVICES IS AT ITS OWN RISK. NEOGOV DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, , NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEOGOV DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR -FREE, OR COMPLETELY SECURE. (c) Disclaimer of Actions Caused by and/or Under the Control of Third Parties. NEOGOV DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE NEOGOV SYSTEM AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES, AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH NEOGOV WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, NEOGOV CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, NEOGOV DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS, 6. Publicity, Following execution of this Agreement, the parties hereto may issue a press release, the form and substance of which shall be mutually agreeable to the parties, announcing the relationship created by this Agreement. Except as expressly contemplated hercin, neither party shall issue any additional press release which mentions the other party or the transactions contemplated by this Agreement without the prior consent of the other party, which consent shall not be unreasonably withheld. 7, Nondisclosure. Through exercise of each party's rights under this Agreement, each party may be exposed to the other party's technical, financial, business, marlccthrg, planning, and other information and data, in written, oral, electronic, magnetic, photographic and/or other forms, including but not limited to (i) oral and written communications of one party with the officers and staff of the other party which are marked or identified as confidential or secret or similarly marked or identified and (ii) other communications which a reasonable person would recognize from the surrounding facts and circumstances to be confidential or secret ("Confidential Information") and trade secrets. In recognition of the other party's need to protect its NEOGOV 25B-4 Page 2 of 16 0r]( a ma:.t �, legitimate business interests, each party hereby covenants and agrees that it shall regard and treat each item of information or data constituting a trade secret or Confidential Information of the other party as strictly confidential and wholly owned by such other party and that it will not, without the express prior written consent of the other party or except as required by law including the public Records Act of Che State of California, redistribute, market, publish, disclose or divulge to any other person, firm or entity, or use or modify for use, directly or indirectly in any wayfor any person or entity (i) any of the other party's Confidential Information during the term of this Agreement and for a period of three (3) years afier the termination of this Agreement or, if letter, From the last date Services (including any warranty work) are performed by the disclosing party hereunder; and (ii) any of the other patty's trade secrets at any time during which such information shall constitute it Made secret under applicable law. In association with NEOGOV's concern for the protection of trade secrets, Confidential Information, and fair market competition, Customer acknowledges all photos, "screen captures", videos, or related media of NEOGOV products, pages, and related documentation shall be approved by NEOGOV prior to any publicly accessible disclosure of such media. S. Liability Limitations. (a) If promptly notified fn writing of any action brought against Customer based on a claim that NEOGOV's Services infringe a United States patent, copyright or trademark right of it third party (except to the extent such claim or infringement relates to any third patty software incorporated into NEOGOV's applications), NEOGOV will defend such action at its expense and will pay any and all fees, costs or damages that may be finally awarded in such action or any settlement resulting from such action (provided that Customer shall permit NEOGOV to control the defense of such action and shall not make any compromise, admission of liability or settlement or take any other action impairing the defense of such claim without NEOGOV's prior written approval). (b) Customer acknowledges and agrees: (i) that NEOGOV has no proprietary, financial, or other interest in the goods or services that may be described in or offered through Customer's web site; and (it) that except with respect to any material supplied by NEOGOV, Customer is solely responsible (as between NEOGOV and Customer) for the content, quality, performance, and all other aspects of the goods or services and the information or other content contained in or provided through Customer's web site. (c) OTHER THAN THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, NEOGOV DOES NOT MAKE ANY WARRANTIESTo CUSTOMER OR ANY OTHER PERSON OR ENTITY, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR) WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. NEOGOV SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY OTHER PERSON OR ENTITY, UNDER ANY CIRCUMSTANCE OR DUE TO ANY EVENT WHATSOEVER, FOR CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LEMITATTON, LOSS OF PROFIT, LOSS OF USE OR BUSINESS STOPPAGE. (d) Under no circumstances shall NEOGOV's total liability to Customer or any other person, regardless of the nature of the claim or fornt of action (whether arising in contract, tort, strict liability or otherwise), exceed the aggregate amount of fees and revenue received by NEOGOV hereunder for the Initial Temi(s) and restrictions provided in Exhibit A (Order Form); provided, however that the foregoing limitations set forth in this Section S(d) shall not apply to actions brought under 8(a) above or to any injury to persons or damages to property arising out of NEOGOV's gross negligence or willful, gross misconduct. 9. Term and Termination. (a) This Agreement shall commence as of the date hereof and remain in effect in accordance with the terms) and restrictions in Exhibit A (Order Form), unless terminated by either party as set forth herein ("Initial Term"). (b) Subject to a material breach of contract and righI to cure: (i) NEOGOV reserves the right to terminate this Agreement immediately if the Services provided hereunder become illegal or contrary to any applicable law, rule, regulation, public policy. (it) Customer shall have the right to terminate this Agreement only upon expiration of the then -current license term. The term shall renew automatically for two successive one-year terms for it total of three years unless Customer provides written notice of its intent not to renew to the other party at least thirty (30) days before the expiration of the then -current license term. Customer acknowledges that failure to give notice prior to 30 days of the termination date will constitute agreement to the subsequent term. City will have the option of two one year renewals. NEOGOV 25B-5 Page 3 of 16 0 i }`',;t 10, Pavirients. (a) Initial Term. See Exhibit A (Order Form). (b) Renewal Term(s). For each Renewal Term, NEOGOV will continue to provide Customer with the Services, and will provide maintenance and support services as described herein, provided Customer renews this Agreement and pays NEOGOV in advance the annual recurring charges then in effea if there is an increase in annualmaintenance and support charges, NEOGOV shall give Customer written notice of such increase at least thirty (30) days prior to the expiration of (lie applicable term. (c) NEOGOV acknowledges that all invoices shall be delivered to the stated "Bill To" panty on the Order Form in. Exhibit A. In the event that NEOGOV does not receive payment in accordance with the terms herein, including but not limited to the net due dates, Customer acknowledges and agrees that it shall be liable for any outstanding payment to NEOGOV, or either party may terminate this Agreement as applied to Section 9. (d) Customer will pay all taxes, duties and levies imposed by all foderal, state and local authorities (including, without limitation, export, sales, use, excise, and value-added taxes) based on the transactions or payments under this Agreement, except those taxes imposed or based on NEOGOV's net income, or those exempt by state law. Customer shall provide NEOGOV within ten (10) days of request of such exemption. (e) Renewal Price. Subject to the specific terms and conditions of this Agreement, Exhibit A (Order Form), and the mutual agreement between parties for a Renewal Term, the Annual Recurring Cost of this agreement will not increase more than five percent (5%) or the annual United States Consumer Price Index (CPI) rate, whichever is lower, from the previous Tenn period. The CPI rate shall be the Consume Price Index (CPI -U) — All Urban Consumers, All Items, U.S. City Average during the one year period ending on April 30 immediately preceding such calendar year, any published by the Bureau of Labor Statistics of the U.S. Department of Labor, or of any revised or successor index hereafter published by the Bureau of Labor Statistics or other agency of the United States Government succeeding to its functions. 11. Insurance, NEOGOV will maintain not less than $1,000,000 in professional liability insurance coverage including coverage for cyber terrorism, hacking, and data breach. Failure to do so shall be grounds for immediate termination of Agreement by City. NEOGOV will provide proof of such insurance coverage on a form approved by the City Attorney. 12, Force Majeure. NEOGOV shill not be liable for any damages, costs, expenses or other consequences incurred by Customer or by any other person or entity as a result of delay in or inability to deliver any Services due to circumstances or events beyond NEOGOV's reasonable control, including, without limitation: (i) acts of God; (ii) changes in or in the interpretation of any law, rule, regulation or ordinance; (iii) strikes, lockouts or other labor problems; (iv) transportation delays; (v) unavailability of supplies or materials; (vi) fire or explosion; (vii) riot, military action or usurped power; or (viii) actions or failures to act on the part of a governmental authority, 13. Pie ey .back Clause. It is understood and agreed by Customer and NEOGOV that any governmental entity may purchase the services specified herein in accordance with the prices, terms, and conditions of this Agreement. It is also understood and agreed that each local entity will establish its own contract with NEOGOV, be invoiced therefrom and make its own payments to NEOGOV in accordance with the terms of the contract established between the new governmental entity and NEOGOV. It is also hereby mutually understood and agreed that Customer is not a legally bound party to any contractual Agreement made between NEOGOV and any entity other than Customer. 14. Miscellaneous. (a) Either party may not assign its rights or obligations tinder this Agreement without the prior written consent of the other pity. This Agreement may not be modified or attended (and no rights hereunder may be waived) except through a written instrument signed by the party to be bound. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and shall be governed by and construed in accordance with the, haws of tine State of California, without giving effect to conflict of law rules. Customer acknowledges and agrees that this Agreement is not intended to be and shall not be construed to be it tianchise or business opportunity. NEOGOV r Page 4 of 16 (b) Severabilil'il. if any provision of this Agreement is found void or unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. If any remedy provided is detennined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth in the Limited Warranty shal I remain in full force and effect. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized officers as of the date set forth above. Customer Signature Cynthia Kurtz Print Name Interim City Manager Title Date ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By Laura A. Rossini Senior Assistant City Attorney NEOGOV 25B-7 NEOGOV Print Name Title Date RECOMMENDED FOR APPROVAL: Edward Raya Executive Director, Personnel Services Page 5 of 16 Order Form ('ncfnmvre EXHIBIT A — ORDER FORM Rill To: 1E )V' City of Santa Ana (CA) Name: City of Santa Ana Attn: Carrie Hanes Attn: Carrie Hanes 20 Civic Center Plaza, M/S M-34 Address:20 Civic Center Plaza, M/S M-34 Santa Ana, CA 92701 Santa Ana, CA 92701 714-647-6967 Phone: 714-647-6967 CFlanes@,'sama-ana.org 2. Email: CHanes@Santa-ana.org Quote Date: 3/21/17 Valid To: 6/30/17 GJC License 3 years, with the City's option of 2 Requested Service Date: TBD Initial Term: one year renewals up to a maximum of 5 years. Order Summary Annual Recurring Fees Llne Descr flout Annual RecurringCost 1. Insight Enterprise Edition (IN) IN License NA 2. GovemmentJobs.eom Job Posting Subscription (GJC) GJC License NA 3. Perform (PP,) _ PE License NA 4. Onboard (ON) ON License4 3b sA $13,558.00 S. NEOGOV Integrations Integration Maintenance from Onboard to HRIS/FRP System TBD Sub Total: $13;558.00 NEOGOV Page 6 of 16 r Order Form Nan -Recurring Fees Line Description' Non -Recurring Tees NEOGOV Set -vices 6, Insight (IN) Setup and Implementation -- _ NA Training NA Setup and Implementation NA Training --- — --- NA Onboard (ON) - Setup and Implementation $3,500.00 Training $2,000.00 — Onboard form building as Professional Service NA NEOGOV Integrations from Onboard to FIRIS/ERP System Setup and Configuration TBD Sub Total: $5500.00, Order Total: I $19 058.00 'More detailed descriptions of the services are contained in the order detail for each service, which are incorporated herein and made a part hereof by this reference. Note. Rums designated an Not Applicably (N A, NA) on the Summary Form are not InCluded. CLr5tOcIeN may request aquota for ibese ser1iees at their discretion through the term of tri, contract. 'NEOGOV ON includes 19 and W4 standard forms that are regularly updated by NEOGOV. Additional forms or form maintenance are available by NEOGOV Professional services at the following cost: • Background forms $295 per form • Dynamic Forms $195 per form • Updates to existing forms $200 an hour Additionally, during the term of any subscription hcense, the Customer will be provided: Customer Support - Provided to the Customer both on-line and by telephone Monday- Friday, 6:00 ANI - 6:00 PM PT (excluding NEOGOV holidays). Product Upgrades to Licensed Software - Customer shall receive all product upgrades to purchased package, Product upgrades are automatic and available upon the next login following a product upgrade rollout. NEOGOV 25B-9 Page 7 of 16 Order Form Order Detail Notes: Items d<,t�nated as Not Applicnblc tN A, NA) on the Summary form are not included. C: ustotuer: may requcst a quote Cor these services at their discretion through the Iran of this conu'act. LO Insight Enterprise (IN) License Subscription to NEOGOV IN The Customer's subscription to the insight platform includes the following'ftmctionatity: Recruitment • Online job application • Online job announcements and descriptions • Automatic ontinejob interest cards • Recruitment and examination planning Selection • Configurable supplemental questions • Define unique scoring plans • Test analysis and pass -point setting • Score, rank, and refer applicants Applicant'I'racking • Email and hardcopy notifications • EEO Data collection and reports • Track applicants by step/hurdle • Schedule written, oral, and other exams • Candidate Self Service Portal for scheduling and application status Reporting and Analysis • 90 standard system reports • Ad Hoc reporting too[. HR Automation • Create and route job requisitions for approval • Certification/eligible Iists 2.0 GovernmentJobs.com ,Job Posting Subscription (GJC) License Subscription • Enablcs o ranizations to udccrns; thcir,lob po^ tin _a created in Insight on dte Gocernmcnttobs.eom ece•bsite. • %lati add an uutitrnQd number ofpostiogs Noce: jobs advertised on the promotional and transfer webpages are not advertised on GovermuentJobs.eom as these are typically for internal employees. NEOGOV 25B-10 Page 8 of 16 Order Form 3.0 NEOGOV Perform (PE) License Subscription to NEOGOV PE 1.. dY r ,. The amoral license for the NEOGOV Performance Evaluations Software includes the fallowing: • Configurable Performance Evaluations • Goal Library • Shareable Competency Content • Development Plans • Configurable Process Worldlows • Ability to build Content sections for re -use • Configurable Rating Scales • Ability to build Library of Writing Assistants • 360 Reviews e Configurable Email Notifications • Automatic Evaluation Creation • Ability to perform actions in bulk for Employees & Evaluations 4.0 NEOGOV Onboarding (ON) License Subscription to NEOGOV ON • Electronic Employee File • W4 • 19 • Configurable Workflow • Task Manager • Employee data upload • Attachments • Build your own Onboarding forms* *NEOGOV ON includes 19 and W4 standard forms that are updated by NEOGOV. Additional forms or form maintenance is available by NEOGOV Professional services at the following cost: • Background forms $295 per form • Dynamic Forms $195 per fora • Updates to existing forms $200 an hour 5.0 NEOGOV Integrations NEOGOV offers Standard Integrations as well as platform APIs for 3rd party system integration(s). Standard Integrations include: • Conduct project scope, review integration plan, discuss timeline, and set schedule for required meetings • Annual Maintenance By NEOGOV Note: NEOGOV APIs are to be configured directly by Customer staff using NEOGOV documentation. If required, Professional Services may be included by NEOGOV to help define and validate scope, business requirements, timelines, and associated costs (if applicable). NEOGOV 25B-11 Page 9 of 16 Order Form 6.0 NEOGOV Services " )v , NEO Setup and Provisioning The following activities arc conducted as part ofthe NEOGOV implementation: • Customer to review the project kick-off tutorial for information on the project titnchric, deliverables, and establish project expectations. • NEOGOV will establish the Customer's production environment Training NEOGOV training is available online (web -based, pre -built, content) unless otherwise proposed as included in the Order Pone. All custonhers have full access to the demoltraining environment setup for Ghsight. • NEOGOV's pre -built, online gaining consists of a series of web courses as well as a series of hands-on exercise designed to introduce the standard features and functions and may be used as reference material by the staff following training to conduct day-to-day activities, The pre -built, online training includes exercises that are designed to be flexible enough to allow Customer led training sessions internally to introduce user -specific requirements and processes for staff to learn the system as closely as possible to the customer's actual recruitment processes after go -live. NEOGOV 25B-12 Page 10 of 16 Scope of Work NEOGOV SCOPE OF WORK — EXHIBIT B EOCJ )V 1. OVERVIEW NEOGOV's mission is to improve the services public sector agencies deliver to society. We do this by working with agencies to improve the ways they attract, lure, and retain the best and the most qualified employees. NEOGOV's platforms are the leading workforce management solution specifically designed for public sector. The configurable solutions go beyond simple recruitment or applicant tracking to incorporate alt aspects of HR and their associated business requirements. Each NEOGOV platform includes many time, effort, and cost saving features and capabilities such as class specifications online, accept applications online, create and route requisitions online, scan hardcopy application materials which are read directly into the database to eliminate manual data entry, refer certified lists online, and gather and report on key hiring metrics as well as associated reports for gathering key metrics across the HR organization. 2. SCOPE OF WORK (Standard) Subject to the services purchased, the project will consist of the following components: • Conduct a project kick off meeting to review the project timeline, deliverables, and establish project expectations. • Working with Agency staff to understand the existing processes as well as other workforce business practices where applicable. • NEOGOV will provide access to all proposed user training. Agency staff may deliver training that can incorporate the Agency's existing business rules combined with new processes that are enabled by using the NEOGOV product suite. • Following training, the Agency may conduct additional user sessions led by the solution's Administrator(s) which will allow the Agency users to familiarize themselves with the system. • Subject to the services purchased, between the training and go -live, NEOGOV will complete the following activities: o Provide guidance and support to Agency in testing the new solution prior to Go Live. o Establish the Agency's Onboard (ON) production environment • Following production rollout, NEOGOV and the Agency will conduct two post go -live conference call(s) (if scheduled) to ensure that the rollout was completed successfully and that any production questions are addressed promptly. 1 SERVICE OVERVIEW A. System Design NEOGOV solutions are web -based. There is no need for Agency to buy and maintain additional hardware, software, or bandwidth. Upgrades are included and occur in real time, ensuring that Agency always has the most up-to-date functionality. Insight Enterprise is designed to address five major areas of Human Resource activities including recruitment, selection, applicant tracking, reporting and analysis, and FIR automation. Insight Enterprise enables agencies to post class specifications online, post Job announcements on the agency website, accept online applications, conduct applicant tracking including EEO and other statistical analysis, create entail/hardcopy applicant notices, complete item analysis, create/route/and approve requisitions online, and certify eligible lists electronically. Onboard is designed to facilitate the onboarding process for new hires. NEOGOV maintains standard forms as part of the annual license. Agencies shall maintain any custom forms created by Agency. NEOGOV Perforin (PE) is designed to address the major areas of Human Resource activities centered around employee performance management. PE includes built-in workflow for business processes, configurable tasks, performance evaluations and reports. NEOGOV Page 11 of 16 25B-13 Scope of Work 13. Implementation and Integration / Installation NEOGOV" NEOGOV solutions are implemented offsite and consist of all activities outlined in Section 2 — Scope of World (above). The agency may integrate with other systems using standard NEOGOV integration tools, export data from Insight using web services and/or flat files to integrate with other systems, but the specifications and scope must be defined prior to agreeing to a timeline or price. C. Training NEOGOV training is unlimited onlino training. Training consists of a system walk-t(Uough and then a series of hands-on exercises. D. Maintenance All system maintenance to licensed features is covered in the license price. Since NEOGOV offers a !roster{ solution and fullyweb-based, new features and functions are released and available upon next login by the user. System software and hardware maintenance is completed by NEOGOV. 4. IMPLEMENTATION - INTEGRATION (Standard) (IN) The agency can export data from Insight to integrate with other systems, as outlined below. As part of each integration, NEOGOV shall: o Conduct project scope, renew integration plan, discuss timeline, and set schedule for required meetings Develop New Hire Export Interface Develop Position Control Import Interface Provide Integration Worksheets and/or guides 5. LICENSING Your NEOGOV Annual license includes the following items: • Unlimited access to all system functionality and enhancements to the items listed in the capabilities section of this document Free participation in NEOGOV hosted customer conference calls 6. MEETINGS Implementation is conducted remotely and will consist of weekly phone implementation meetings throughout the implementation. The agency and NFOGOV will also have (if proposed) scheduled meetings following go live to ensure a successful rollout and address any new questions/issues. 7. CUSTOMER SERVICE NEOGOV offers unlimited customer support and support is provided via the NEOGOV customer support help desk from 6:OOAM — 6:OOPM M -F PST (excluding NEOGOV holidays) and online though the Help Center 24 X 7. Customer support is also provided throughout the entire implementation, Additionally, conference call attendance and on-line training attendance is included in the annual license. S. MAINTENANCE & SUPPORT NEOGOV maintains the entire hardware/software infrastructure and is responsible for maintaining server operation, software delivery, and security. Available customer support is addressed in Section 7 — Customer Service (above). 9. TRAINING A. Customer Education / Training Methodology NEOGOV 25B-14 Page 12 of 16 Scope of Work NEOGOV delivers access to online user training to Agency recruiters and technicians. We provide the Training Exercises electronically as well is access to the complete User's. Guide online. Following the training, your agency will have access to the associated environment. Additionally, your agency has full access to our Customer Support Help Desk during tine training to help new users fully utilize the system(s). All dedicated system training is designed by NEOGOV to introduce the most common features and functions in an organized fashion which will be used by the snuff following training to conduct thein day -to -clay activities. NEOGOV training is available online (web -based, pre -built, content) unless otherwise proposed as included in the Order Form. All customers shall have full access to the associated environment for the proposed platform. NEOGOV's pre -built, online training consists of a series of web courses and hands-on exercises designed to introduce the standard features and functions. All training items may be used as reference material to conduct day-to-day activities. The pre -built, online training includes materials designed to allow CLuuomer led training sessions. B. Training Media Selection Electronic C. Training Schedule Unlimited online raining is available. D. Training Delivery Hardware (If applicable) The training environment should be a training room with Internet access, conference phone, projector, and screen, one computer for each attendee with a NEOGOV supported web browser Adobe Reader, and MS Word. It. Software Web Browser, Adobe Reader, and MS Word III. Custom Design Applications None Irl. SOFTWARE MODULES OVERVIEW A. Insight Enterprise Insight Enterprise includes the following functionality: Recruitment • Online job application • Online applications integration with current Customer website • Online job announcements and descriptions • Automatic online job interest cards • Recruitment and examination planning Selection • Configurable supplemental questions • Define unique scoring plans • Test analysis and pass -point setting • Score, rank, and refer applicants NEOGOV 25B-15 Page 13 of 16 Scope of Work Applicant Tracking • Email and hardcopy notifications • EEO Data collection and reports • Track applicants by step/hurdle • Schedule written, oral, and other exams • Candidate Self -Service Portal for scheduling and application status Reporting and Analysis • 90 standard system reports • Ad Hoc reporting tool FFR Automation • Create and route position requisitions for approval • Certification/eligible lists B. NEOGOV Onboard NEOGOV Onboard (ON) includes the following functionality: • Electronic Employee File • W4 • 19 • Configurable Workflow • Task Manager • Employee data upload • Attachments • Build your own Onboarding forms* NE0(?"")"'/'" *NEOGOV ON includes 19 and W4 standard forms that are updated by NEOGOV. Additional forms or form maintenance is available by NEOGOV Professional services at an additional cost. C. NEOGOV Perform (PE) The amwal license For the NEOGOV Performance Evaluations Software includes the following: • Configurable Performance Evaluations • Goal Library • Shareable Competency Content • Development Plans • Configurable Process Worlcflows • Ability to build Content sections for re -use • Configurable Rating Scales • Ability to build Library of Writing Assistants • 360 Reviews • Configurable Email Notifications • Automatic Evaluation Creation • Ability to perform actions in bulk for Employees & Evaluations '"Note: Additional forms erre available at additional cost, 11. PRODUCT UPGRADES All product upgrades to licensed modules are included in the associated NEOGOV annual license. Product upgrades occur in real time and are available upon nextlogin, NEOGOV 25B-16 Page 14 of 16 Scope of Work 12, REQUIRENIENTS PUT UPON THE AGENCY A. Technical or Otherwise 0 1( )\/ The agency Hit staff is considered "level 1 support", meaning that the agency should designate the NEOGOV Administrator as the point of contact for any NEOGOV platform related questions or issues. Ir the Administrator cannot answer the question, they should contact the NEOGOV Customer Support Help Desk. 13, DOCUMENT OF WEB INTERFACE (IN) NEOGOV will integrate the Insight website pages into the agency's existing web pages using the standard NEOGOV career pages. 14. NIAINTENANCE & SUPPORT A. Service Types I, Base Maintenance and Update Support Software Upgrades At[ product upgrades to licensed modules and Insight Enterprise are included in the associated NEOGOV annual license. Product upgrades occur in real time and are available upon next login. • Phone Support Phone support is available from 6:OOAM — 6:OOPM PT Monday — Friday, excluding NEOGOV holidays. • Remote Connectivity Support Online support is available 24 x 7. Any cases logged online during off hours wilt be responded to the next business morning. + Response Times Both phone and online case receipt are confirmed immediately. The length of time for a resolution is fully dependent on the type of case (i,e., High/Medium/how priority, question, enhancement request). High priority issues such as system down are addressed immediately and resolved ASAP. When any other cases are logged (that are not system down) those cases are reviewed internally by NEOGOV, and then discussed and reviewed with the customer to identify priority and resolution timeline. 11. Preventative System Maintenance Preventive system maintenance is conducted by the NEOGOV staff and is addressed in a variety of methods including scalable architecture and infrastructure, log checking, pert mnance maintenance, and other preventative tasks. The agency is not responsible for system maintenance. Order form Terms and Conditions: (1) The Customer hereby orders and GoverttmentJobs.com, Inc. (d/b/a NEOGOV, Inc., hereafter "NEOGOV") agrees to provide the services described in this Order Form. THE SERVICES ARE PROVIDED PURSUANT TO THE TERMS AND CONDITIONS OF TFIIS ORDER FORM AND THE SERVICE AGREEMENT BETWEEN NEOGOV AND THE CUSTOMER. (2) The Customer agrees that the payment schedule is as follows: Provide all required software and Licenses e One hundred percent (100%) of the annual license price (including any Integrations) is payable within thirty (30) days of execution of this Order Form and Service Agreement. ($13,558.00) NEOGOV 25B-17 Page 15 of 16 Scope of Work NEOGOV" Training • One bundred percent: (100%) of the training price are to be paid to NEOGOV within thirty (30) clays of the execution of this Order Form and Service Agreement. ($3,500.00) Software Implementation • One hundred percent (100%n) of the non-recurring costs are to be paid to NEOGOV within thirty (30) days of the execution of this Order Form and Service Agreement. ($2,000.00) (3) Neither the Customer nor NEOGOV will be bound by this Order Form until it has been signed by authorized representatives of both parties. (4) Charges or alterations to this Order Form will not be accepted unless mutually agreed upon in writing by both parties. THERE ARE SIGNIFICANT ADDITIONAL TERMS AND CONDITIONS, WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS CONTAINED IN THE SERVICE AGREEMENT BETWEEN THE CUSTOMER AND NEOGOV. DO NOT SIGNTHIS ORDER CORM BEFORE YOU HAVE READ THF. SERVICE AGREEMENT IN ITS ENTIRETY. YOUR SIGNATURE BELOW INDICATES F14AT YOU HAVE READ THE SERVICE AGREEMENT AND AGREE'TO BE BOUND BY ITS PROVISIONS, Customer Signature Cnthil Kurtz _ Print Name Interim. Cit Manager Title Date ATTEST: Maria D. Huizar Cleric of the Council APPROVED AS TO FORM: Sonia R, Carvalho City Attorney Laura A, Rossini Senior Assistant City Attorney NEOGOV 25B-18 NEOGOV Signature Print Name Title Date RECOMMENDED FOR APPROVAL.: Edward Rays Executive Director, Personnel Services Page 16 of 16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: MEMORANDUM OF UNDERSTANDING - SANTA ANA POLICE OFFICERS ASSOCIATION (SAPOA) (STRATEGIC PLAN NO. 7,4&6) TY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 011=i1TV ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 s 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 Memorandum of Understanding with the Police Officers Association, subject to non -substantive changes approved by the City Manager and City Attorney, regarding wages and other terms and conditions of employment for a one-year period ending June 30, 2018. DISCUSSION The City and the SAPOA recently completed contract negotiations resulting in a new one-year Memorandum of Understanding (MOU). The MOU covers July 1, 2017 through June 30, 2018. The terms reflect direction given to staff by City Council on June 6, 2017. the SAPOA voted and approved these terms on June 13, 2017. The major provisions of this agreement include: 1. Term: A one-year term, from July 1, 2017 through June 30, 2018. 2. Salary: Effective July 1, 2017, the base salary of employees covered by this MOU shall be increased by two -three quarters percent (2.75%). Effective January 1, 2018, the base salary of employees covered by this MOU shall be increased by two -three quarters percent (2.75%). 3. Career Development Program: Effective July 1, 2017 Career Development pay for non -sworn SAPOA members will be to increase base pay from 2.5% to 5% for an AA degree, from 5% to 7.5% for a BS degree and a third level of 10% for a Master's Degree shall be added. This shall only apply to classifications which do not require a degree. 4. Longevity Pay: Implementation of a new section which provides for a Longevity Program for sworn employees. Sworn employees will be paid 2.5% above his or her base monthly salary step for the completion of 15 years of service through 19 years of service and at the completion of 20 years of service or more, sworn employees will be paid 2.5% above his or her base monthly salary step. 25C-1 Retiree Health Insurance: Effective July 1, 2017, the base salary of employees covered by this MOU such as they are on that date shall be increased by one percent (1%). Effective July 1, 2017, all employees will contribute two percent (2%) of their base salary plus pay additives through payroll deduction to a fund maintained by the Santa Ana Police Officers Association for the purpose of providing retiree health insurance premium reduction assistance. This payroll deduction for retiree health insurance premium reduction assistance will continue until such time as the parties may mutually agree to end said reduction. 6. Shift Differential: Effective July 1, 2017 each employee covered by this Agreement who is continuously and regularly assigned to a schedule of work that requires that he or she actually work a minimum of four and one-half (4 ''/z) hours between the hours of 5:00 P.M. and 7:00 A.M. will be paid a shift differential at a rate set at 2.5% above his or her base monthly salary of Step E, Range 695, Police Officer. 7. Presidents Leave: The POA Association President cost shall be paid one hundred percent (100%) of salary including any salary additives, such as career incentive pay, benefit costs and pension cost. All Association members shall donate one floating holiday annually to the City as reimbursement for 100% of the cost of the Association President salary, additives, such as career incentive pay, pension and benefit costs. This language clarifies an existing agreement. 8. Union Leave: The City agrees to grant up to a total of sixty hours (60) per fiscal year on a non -cumulative basis to enable the POA members, officers, worksite leaders/stewards, to conduct Union business and assist other bargaining unit employees in processing grievances under the Grievance Review Procedure; provided, however, that such POA members officers, worksite leaders/stewards and aggrieved employees shall make advance arrangement with their supervisors prior to absenting themselves for such purpose. The officers, worksite leaders/stewards and aggrieved employees shall be required by the City to record and report to their supervisors the work time spent in assisting other bargaining unit employees pursuant to this provision of the MOU. 9. PERS Contribution: Effective January 1, 2018 all Safety employees who do not qualify as "New Members" under PEPRA shall pay twelve percent (12%) of their reportable salary to pay for the employer portion of the City's CalPERS contribution. This payment shall be paid in accordance with Government Code Section 20516.5" 10. Health Insurance: The City shall cap its' contribution to SAPOA for Health Insurance at itsI current rate. 11. Reopeners: The City and SAPOA agree that upon request of the City the contract will be reopened to discuss the following subjects: 1. Modifications to the departmental schedules as outlined in Article III of the MOU 2. Changes to the Article XVII and related changes to City Charter and/or the Municipal Code referencing the Personnel Board process including but not limited to the use of a Hearing Officer. 25C-2 STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #7 — Team Santa Ana, Objective #4, Establish employee compensation that attracts and retains a highly qualified workforce and Objective #6, Provide a positive workplace environment that supports the health of its employees and celebrates its success. FISCAL IMPACT The gross value of the Police Officers Association (POA) Memorandum of Understanding (MOU) for the period July 1, 2017 through June 30, 2018 totals $3,867,551. A combination of offsets/adjustments in the MOU are estimated at $1,791,453, and reallocations of positions or programs are projected to be $2,076,098. Staff will monitor the realization for the above -referenced offsets and program savings / reallocations. If the projected plan savings are not realized, a recommendation will be made to fund any shortfalls with additional use of one-time monies or additional funding sources during the mid -year budget review process. APPROVED AS TO FUNDS AND ACCOUNTS Edward a %r Franc co Gutierrez Executive Director Executive Director Personnel Services Agency Finance and Management Svcs Agency Attachment: SAPOA MOU for July 1, 2017 through June 30, 2018 25C-3 25C-4 JULY 1, 2017 -JUNE 30, 2018 MEMORANDUM OF UNDERSTANDING CITY OF SANTA ANA BONN SANTA ANA POLICE OFFICERS ASSOCIATION 25C-5 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF SANTA ANA AND THE SANTA ANA POLICE OFFICERS ASSOCIATION FOR FISCAL YEARS 2017-18 TABLE OF CONTENTS ARTICLE I RECOGNITION ARTICLE II NON-DISCRIMINATION CLAUSE ARTICLE III ATTENDANCE, WORK PERIOD, WORK SCHEDULE & WORKDAY ARTICLE IV SALARIES ARTICLE V ASSIGNMENT AND OTHER SPECIAL PAY ADDITIVES ARTICLE VI CAREER DEVELOPMENT PROGRAM ARTICLE VII TRAINING AND EDUCATIONAL ASSISTANCE PROGRAM ARTICLE VIII OVERTIME ARTICLE IX HOLIDAYS ARTICLE X VACATION ARTICLE XI OTHER LEAVES OF ABSENCE ARTICLE XII EMPLOYEE INSURANCE ARTICLE XIII RETIREMENT ARTICLE XIV RELEASE TIME FOR ASSOCIATION REPRESENTATIVE ARTICLE XV SAFETY ARTICLE XVI RESIDENCY ARTICLE XVII DISCIPLINE ARTICLE XVIII GRIEVANCE REVIEW PROCEDURE ARTICLE XIX DUES DEDUCTION AND INDEMNIFICATION ARTICLE XX CITY RIGHTS ARTICLE XXI STRIKES AND WORK STOPPAGES ARTICLE XXII LAYOFFS ARTICLE XXIII MISCELLANEOUS PROVISIONS ARTICLE XXIV SOLE AND ENTIRE AGREEMENT ARTICLE XXV WAIVER OF BARGAINING DURING THE TERM OF THIS MOU ARTICLE XXVI SEPARABILITY PROVISION ARTICLE XXVII TERM OF MOU ARTICLE XXVIII RATIFICATION AND EXECUTION EXHIBIT A BASIC SALARY AND WAGE SCHEDULE MATRIX EXHIBIT B UNIFORM ALLOWANCE BY CLASSIFICATION 2 25C-6 3 4 5 9 14 19 25 27 35 37 41 49 50 53 55 55 56 57 59 59 61 61 62 63 63 63 64 65 I ARTICLE I 1.0 RECOGNITION 1.1 Pursuant to the provision of the Meyers-Milias-Brown Act, Government Code Section 3500, et seq., the City of Santa Ana (hereinafter called the "City") has recognized the Santa Ana Police Officers Association (herein called the "Association") as the recognized representative of the bargaining unit which includes full-time police department employees in the swom, "safety -member" classifications and assignments of Police Officer, Police Sergeant, and full-time police department employees in the non -sworn, "miscellaneous - member" classifications and assignments of Animal Service Officer I and II, Background Investigator, Communications Services Officer, Correctional Officer, Correctional Supervisor, Crime Research Aide, Crime Research Analyst, Emergency Operations Coordinator, Firearms Examiner, Forensic Services Supervisor, Forensic Specialist I and II, Parking Control Officer, Police Athletic/Activities League Assistant Director, Police Communications Supervisor, Police Community Services Specialist, Police Evidence and Supply Specialist, Police Evidence and Supply Supervisor, Police Investigative Specialist, Police PhotoNideo Specialist, Police Property and Evidence Supervisor, Police Recruit, Police Service Officer, Police Services Dispatcher, Range Master, Senior Parking Control Officer, and Traffic Services Specialist, as well as such classifications as may be added hereafter by resolution of the City Council. All other classifications not specifically listed are excluded from representation by the Association. 25C-7 ARTICLE II 2.0 NON-DISCRIMINATION CLAUSE 2.1 The City and Association agree that they shall not discriminate against any employee in violation of State or Federal law. The City and the Association shall reopen any provision of this MOU for the purpose of complying with any order of a Federal or State agency or court of competent jurisdiction requiring a modification or change in any provisions of this MOU in compliance with State or Federal anti -discrimination laws. 2.2 Whenever reference is made to the masculine gender it shall be understood to include the feminine gender, unless expressly stated otherwise. ,l 25C-8 ARTICLE III 3.0 ATTENDANCE, WORK PERIOD, WORK SCHEDULE & WORKDAY 3.1 Attendance. Employees covered by this MOU shall be in attendance at their work location during hours prescribed by the Police Chief or his designee(s) and shall not absent themselves during prescribed hours without approval of the Police Chief or his designee(s). 3.2 Definitions. A. Standard Work Period. The Standard Work Period shall consist of a consecutive seven (7) day, 168 hour period. B. Alternative Work Period -207(k) Exempt Employees, The Alternative World Period shall apply to all members of the Association who are peace officers, correctional officers or correctional supervisors who are exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) pursuant to Section 207(1). The 207(k) employees' Work Period shall consist of a consecutive 28 day, 672 hour time period. In conformance with the FLSA, members who are peace officers, correctional officers, or correctional supervisors shall not be eligible for FLSA overtime, as defined under the FLSA for employees assigned to the Alternate Work Period until they have worked in excess of 171 hours in the Alternate Work Period. Nothing in this section shall prevent a peace officer, correctional officer or correctional supervisor from earning overtime and being compensated for overtime based on the overtime provisions as stated in Article VIII of this MOU. All overtime shall be paid at one and one-half (1 1/2) times the regular rate of pay. Regular Rate of Pay: Shall mean the base rate of pay and any Assigunent and Other Special Pay Additives, Career Development Program Pay, Call -Back -Dully a nd Court Appearance pay as listed in Article V, VI and VIII. C. Work Hours. Work hours are the regularly scheduled hours of work as determined by the Police Chief or his designee. A "day" is defined as any consecutive 24 hour period. D. World Schedules. At this time, the Police Chief has established the following work schedules. These schedules may be changed by the Police Chief subject to the provisions of the Meyers-Milias-Brown Act. Unless exigent circumstances exist, the Police Chief, or his designee, shall inform the Association prior to the changing of the below designated Work Schedules. Standard World Period Schedules. a. 5/40 Work Schedule. Employees shall work five (5) eight hour workdays per seven (7) consecutive days, 168 hour Standard Work Period. Each workday shall consist of eight (8) hours of work and a 30 minute unpaid meal period. 25C-9 b. 4/10 Work Schedule. Employees shall work four (4) 10 hour days per seven (7) consecutive days, 168 hour Standard Work Period. Each workday shall consist of 10 hours of work, and either a 30 minute or one (1) hour unpaid meal period. The determination as to a 30 minute or one (1) hour unpaid meal period shall be made by the Police Chief or his designee. C. 9/80 Work Schedule. Employees shall work four (4) nine hour days and one (1) four hour day in each seven (7) consecutive days, 168 hour Standard Work Period. Each nine (9) hour workday shall consist of nine (9) hours of work and either a 30 minute or one (1) hour unpaid meal period. The eight hour workday shall consist of four (4) hours applied to the first seven (7) day period and four (4) hours applied to the second seven (7) day period divided by either a 30 minute or one (1) hour unpaid meal period. The determination as to a 30 minute or one (1) hour unpaid meal period shall be made by the Police Chief or his designee. d. 12/40 Work Schedule. Employees shall work three (3) 12 hour and 30 minute workdays and one (1) four hour workday in each seven (7) consecutive day,168 hour Standard Work Period. Each workday shall consist of 11 hours and 30 minutes of work, and a one (1) hour meal period, 30 minutes of which shall be paid and 30 minutes of which shall be unpaid, for a total of 12 hours and 30 minutes. The four (4) hour workday shall consist of four (4) hours of work. 2. Alternate Work Period Schedules -207(k) Exempt Employees. a. 207(k) 3/12.5 Work Schedule — Patrol/Canine. Employees shall work thirteen 12 hour and 30 minute workdays in each 28 day FLSA Work Period. Of the 13 workdays, an employee assigned to this schedule shall be required to work one (1) 12 hour and 30 minute "payback" day each 28 day FLSA Work Period, scheduled or assigned pursuant to the Department's work schedule policy. Each workday shall consist of 12 hours of work and a30 minute paid meal period. During each 28 day FLSA Work Period, employees shall work 162.5 hours. Upon completion of this work schedule, employees will cam an additional two (2) hours and 30 minutes of vacation time, provided they do not take leave without pay during that Work Period. Employees assigned to this schedule are compensated for their meal periods. Consequently, if an employee is unable to take his or her meal period, or is interrupted during his or her meal period, he or she shall not receive further compensation. b. 207(k) 7/12.5 Work Schedule - Detention. Employees shall work three (3) 12 hour and 30 minute workdays in one (1) seven day period and four (4) 12 hour and 30 minute workdays in the next 25C-10 seven (7) day period, or alternatively, four (4)12 hour and 30 minute workdays in the first seven (7) day period and three (3) 12 hour and 30 minute workdays in the following seven (7) day period. This cycle shall be repeated twice each 28 day FLSA Work Period. Each workday shall consist of I I hours and 30 minutes of work and a one (1) hour meal period, 30 minutes of which shall be paid and 30 minutes of which shall be unpaid, for a total of 12 hours and 30 minutes. During each 28 day FLSA Work Period, employees assigned to the 207(k) 7/12.5 Work Schedule shall earn one (1) hour of vacation time if they do not take leave without pay during that Work Period. Correctional Officers will be compensated at the time and a half overtime rate for all time worked in excess of their regular work shift of 12.5 hours per workday. The overtime compensation will apply only to actual time worked beyond the regular shift and calculated in increments of six (6) minutes. C. 207(k) 4/10.5 Work Schedule -Detention Administration. Employees shall work seven (7) ten hour and 30 minute workdays and one (1) ten hour workday during each two (2) week period. This pattern will recur twice during the 28 day FLSA Work Period. Each 10 hour and 30 minute workday shall consist of 10 hours and 30 minutes of work and either a 30 minute or one (1) hour unpaid meal period. The 10 hour workday shall consist of 10 hours of work and either a 30 minute or one (1) hour unpaid meal period. The determination as to a thirty (3 0) minute or one (1) hour unpaid meal period shall be made by the Police Chief or his designee. d. 207(k) 4/10 Work Schedule. Employees shall work 16 ten hour workdays in each 28 day FLSA Work Period. Each workday shall consist of 10 hours of work and either a 30 minute or one (1) hour unpaid meal period. The determination as to a 30 minute or one (1) hour unpaid meal period shall be made by the Police Chief or his designee. e. 207(1) 9/80 Work Schedule. Employees shall work five (5) nine hour workdays in one (1) seven (7) day span and three (3) nine hour workdays and one (1) eight hour workday in the second seven (7) day span, or alternatively three (3) nine hour workdays and one (1) eight hour workday in the first seven (7) day span and five (5) nine hour workdays in the second span. This cycle shall be repeated twice each 28 day FLSA Work Period. Each nine (9) hour workday shall consist of nine (9) hours of work and either a 30 minute or one (1) hour unpaid meal period. The eight (8) hour workday shall consist of eight (8) hours of work and either a 30 minute or one (1) hour unpaid meal period. The determination as to a 30 minute or 25C-11 one (1) hour unpaid meal period shall be made by the Police Chief or his designee. 207(k) 9/81 Work Schedule. Employees shall work 81 hours in a consecutive 14 day, 336 hour period. This cycle shall be repeated twice each 28 day FLSA Work Period. Employees shall work five (5) nine hour workdays in one (1) seven (7) day span and four (4) nine hour workdays in the second seven (7) day span. Each nine hour workday shall consist of nine (9) hours of work and either a 30 minute or one (1) hour unpaid meal period. While assigned to the 9/81 schedule, an officer shall earn two (2) hours of overtime during each 28 day FLSA Work Period, unless he or she takes leave without pay during the 28 day, 672 hour period. During the term of this agreement upon request from the City the Union agrees to a reopener to discuss changes to the schedules listed above. 3.3 Part Time Employment. During the term of this MOU, no presently existing full-time positions will be eliminated as the result of the use of part-time employee(s) and, to the extent possible, when the workload of any one or more part-time employee(s) would justify the addition of a full-time position or positions, the parties will meet and confer regarding the addition of a full-time position or positions, subject to City Council approval. 3.4 Code Seven. Except for those employees assigned to Patrol, other employees whose meal periods are interrupted by the performance of job related duties, will receive another full, uninterrupted lunch period or will be compensated for their lunch period at their overtime rate of pay at time and one-half their regular rate of pay. For purposes of this section, "interrupted" shall mean a significant interruption of more than a few minutes (de minimus). For employees who receive a one-hour lunch period (half of which is paid) overtime compensation shall apply only to the unpaid half-hour. Unless exigent circumstances exist beyond the Department's control, employees assigned to Patrol shall be provided a 30 minute paid meal period. Should an employee's meal period be interrupted, every effort shall be made to allow the affected employee to resume his/her meal period for the remaining unused time, not to exceed the 30 minute total meal period. 3.5 DETECTIVE REDEPLOYMENT All employees assigned as detectives (investigators) shall work one (1) day per month in the patrol function of the Field Operations Bureau pursuant to a schedule as determined by the Chief of Police or his designee. Once each calendar year the Chief of Police shall conduct a review of the organization of the Police Department to determine whether positions and assignments currently in the Investigations Bureau represent a deployment of resources that best enables the department to provide police services to the city. 25C-12 The Chief of Police may, as a result of this review, remove positions and assignments from the Investigations Bureau and assign them, and the individuals who occupy them, to other bureaus or eliminate them and assign the individuals who occupy them to other positions and assignments in the department. The annual review and any re -assignment made as a result of the review shall be completed, including the appeal thereof outlined below, sufficiently in advance of the annual patrol deployment sign-up to enable those who will be assigned to Patrol to make use of their seniority when choosing patrol shifts and days off, Any employee who is informed that he or she will be removed from the Investigations Bureau and lose the Investigations assignment pay differential may appeal to the Chief of Police. Said appeal constitutes the sole administrative appeal of the Chiefs decision, shall be conducted in an informal manner and the decision of the Chief shall be final. ARTICLE IV 4.0 SALARIES 4.1 Basic Compensation Plan. There is hereby established a basic compensation plan for all members of the Santa Ana Police Officers Association who are now employed or will in the future be employed in any of the designated classifications of employment listed in this MOU and its attachments. 4.2 Salary Schedule. The basic salary schedule, attached hereto in a matrix format as Exhibit "A", and made a part hereof as though set forth in full herein, provides numerous salary rate ranges, each comprised of five (5) steps or rates of pay. The respective rate ranges are identified by a three (3) digit number. The steps within each range are identified by the letters "A" through "E" inclusive, with the "A" step being the lowest step in the range. The purpose of each step and the length of service required for advancement to the next higher step within a particular salary rate range is summarized as follows: Step A Normal beginning pay rate Step B Automatic Increase — After 6 months' service in next lower step. Also optional hiring rate Step C Automatic Increase — After 12 months' service in next lower step. Also maximum hiring rate Step D Automatic Increase — After 12 months' service in next lower step. Step E Merit Rate — After 12 months' service in next lower step. Specific regulations governing advancement within salary rate ranges are set forth in Section 4.8 of this MOU. The assignment of classes to salary rate ranges is listed in the City's salary schedule and class and compensation plan as periodically amended. 25C-13 4.3 Salary Adjustments. A. The base salaries of Sworn employees covered by this MOU shall be adjusted as follows: Effective July 1, 2017, the base salary of employees covered by this MOU shall be increased by 2.75%. Effective January 1, 2018, the base salary of employees covered by this MOU shall be increased by 2.75%. B Retiree Health Contribution. Effective July 1, 2017, the base salary of employees covered by this MOU such as they are on that date shall be increased by one percent 0%). Effective July 1, 2017, all employees covered by this MOU will contribute two percent (2%) of their base salary plus pay additives through payroll deduction to a fund maintained by the Santa Ana Police Officers Association for the purpose of providing retiree health insurance premium reduction assistance. This payroll deduction for retiree health insurance premium reduction assistance will continue until such time as the parties may mutually agree to end said reduction. Additionally, effective October 1, 2017, and each October I" thereafter, the City shall contribute an amount equal to three-quarters percent (.75%) of the bargaining unit's annual base salary, including pay additives (excluding overtime), to a fund maintained by the Santa Ana Police Officers Association for the purpose of providing retiree health insurance premium reduction assistance. 4.4 Longevity Pay. Effective July 1, 2017 Sworn employees will be paid 2.5% above his or her base monthly salary step for the completion of 15 years of service through 19 years of service. At the beginning of 20 years of service or more, sworn employees will be paid an additional; 2.5% above his or her base monthly salary step. 4.5 Application of Basic Compensation Plan. The salary rate ranges and steps contained in Exhibit A are monthly salary rates. All officers and employees working in classifications of employment covered by this MOU shall be compensated at a monthly rate, except that an employee hired for temporary work in a position which has an anticipated duration of less than six (6) months shall be paid at a rate per hour for actual time spent in the performance of the duties of his or her employment. Any hourly rate of pay, defined as the regular hourly rate of pay, shall be computed by dividing the monthly salary rate plus pay additives by 173.33. In determining the hourly rate as herein provided, computation shall be made to the nearest whole cent and a computation resulting in exactly one-half cent or higher shall fix the rate at the next higher whole cent. 4.6 Beginning Rates. A new employee of the City of Santa Ana shall be paid the rate shown as Step "A" in the salary rate range allocated to the class of employment for which he or she has been hired. In special instances where such new employee possesses unique and exceptional education, training and/or experience qualifications, the department head 10 25C-14 under whom the employee will serve, may submit a written request and justification to the City Manager for authorization to place such new employee on Step "B" or Step "C" within the allocated salary rate range, provided that such employee shall be assigned such salary step upon the commencement of his or her service in the classification of employment to which the salary rate range applies and such assignment having once been made shall remain in effect until the said employee shall be entitled to advance to the next salary step in accordance with the further provisions of this Article. 4.7 Service. The word "service" as used in this MOU shall be deemed to mean continuous, full-time service in the classification in which the officer or employee is being considered for salary advancement, service in the higher classification or service in a classification allocated to the same salary rate range and having generally similar duties and requirements. Employees hired after the first (1st) working day of the month shall not be credited with "time -in-service" for that month when detenriining the length of service required for salary step advancement. A lapse of service by an officer or employee for a period of time longer than thirty (30) calendar days by reason of resignation, quit, or discharge, shall serve to eliminate the accumulated length of service time of such officer or employee for the purpose of this MOU and any such officer or employee reentering the service of the City shall be considered as a new officer or employee, except that he or she may be reappointed within one (1) year and may be placed in the same salary step in the appropriate salary range as he or she was at the time of termination of employment. 4.8 Advancement Within Ranges. The following regulations shall govern salary advancement within rate ranges: A. Length of Service Advancements. After the salary of an officer or employee has been first established and fixed under this plan, such officer or employee shall be advanced from Step "A" to Step "B" or from Step "B" to Step "C" or from Step "C" to Step "D," whichever is the next higher step to that on which the officer or employee has been previously paid, effective the first day of the month following the date of completion of the length of service for such advancement as provided in Section 4.2 of this MOU. B. Merit Advance. An officer or employee shall be considered for advancement from Step "D" to Step "E" upon the completion of 12 months' the required length service as provided in Section 4.2 of this MOU. The effective date of such merit increase, if granted, shall be on the first day of the month following the completion of 12 months' service. Advancement to Step "E" may be granted only for continued meritorious and efficient service and continued improvement by the officer or employee in the effective performance of the duties of his or her position. Such merit advancement shall require the following: There shall be on file in the office of the chief personnel officer a copy of each periodic efficiency or performance report required to be made on the officer or employee by the Santa Ana Municipal Code and/or the City Manager during the period of service time of such officer or employee subsequent to this last salary advancement. 11 25C-15 2. The Police Chief, at least twenty (20) calendar days prior to the anticipated completion of such officer's or employee's required length of service, shall file with the City Manager a statement recommending the granting or denial for the merit increase and supporting such recommendations with specific reasons therefore. No advancement in salary above Step "D" shall become effective until approved by the City Manager, except when placement on a salary step above Step "D" results from promotion under the provisions of Section 4.10 of this Article. C. Length of Service Required When Advancement Denied. When an officer or employee has not been approved for advancement to the merit step E, he or she may be reconsidered for such advancement after the completion of three (3) months of additional service and shall be reconsidered for such advancement after the completion of six (6) months of additional service. This reconsideration shall follow the same steps and shall be subject to the same actions as provided in Subparagraphs B (2) and B (3) of this Section. 4.9 Reduction in Salary Stens. Any officer or employee who is being paid on merit step E may be reduced to Step "D" of the appropriate salary range, upon the recommendation of the Police Chief, and the approval of the City Manager. Procedure for such reduction shall follow the same procedure as outlined for merit advancements in Section 4.8 above, and such officer or employee may be considered for re -advancement under the same provisions as contained in Subsection C of Section 4.8. 4.10 Promotional Salary Advancement. When an officer or employee is promoted to a position in a higher classification from a position in a lower classification in the same occupational career ladder, he or she shall be reassigned to Step "A" in the appropriate salary rate range for the higher classification; provided however, that if the base salary step currently being paid such officer or employee is already equal to or higher than said Step "A," he or she will be placed in the lowest step in the appropriate salary rate range as will grant that officer or employee an increase of at least one (1) salary step (approximately 5%) over his or her current base salary step including all assignment pay, pay additives, and premiums in place at the time of promotion. Pay additives which the employee is currently receiving and for which the employee is eligible in the new classification shall not be included in determining the starting point. 4.11 Demotion. When an officer or employee is demoted to a position in a lower classification, his or her salary rate shall be fixed in the appropriate salary rate range for the lower classification in accordance with the following provisions: A. The salary rate shall be reduced by at least one (1) step. B. The new salary rate must be within the appropriate salary rate range. 12 25C-16 C. The new salary rate shall not be higher than the salary step to which the officer or employee would have been entitled had his or her service time in the higher classification been spent in the lower classification. D. If the salary rate recommended by the Police Chief is lower than the maximum step permissible under Subsection C above, such recommendation shall be considered a reduction in pay in addition to the demotion and shall be handled in accordance with the provisions for salary reductions (Section 4.9, above). 4.12 Reallocation of Salary Rate Ranges. Any officer or employee who is employed in a classification which is reallocated to a different salary rate range from that previously assigned shall be retained in the same salary step in the new salary rate range as he or she had previously held in the prior rate range and shall retain credit for length of service in such step towards advancement to the next higher step. 4.13 Deferred Compensation. If, during the term of this MOU, the City agrees to match employee Deferred Compensation contributions for members of any other bargaining unit, then employees covered by this MOU shall receive the same benefit. 4.14 Joint Labor Management Study — Salary Schedule. The parties agree that at any time during the term of this MOU either the City or the Association may ask the other party to meet and negotiate over the implementation of a new salary schedule. 13 25C-17 ARTICLE V 5.0 ASSIGNMENT AND OTHER SPECIAL PAY ADDITIVES 5.1 Assignment Pay Differentials. Assignment pay differentials, as listed herein and throughout the contract, will, in each case, be added individually and separately to the employee's base salary. In no event shall one assignment pay differential be added to the employee's base salary as a basis for the calculation of an additional pay differential. A. An incumbent in the class of Police Services Dispatcher who is continuously and regularly assigned to and actually performing in a lead supervisory and trainer capacity over an assigned shift of Police Services Dispatchers will be paid at a rate set ten (10) salary rate ranges (approximately 5,0%) above his or her then current base monthly salary step. B. Personnel in the class of Forensic Specialist I, who are regularly and continuously assigned to and actually performing duties in a "lead" supervisory capacity over a primary functional unit of Forensic Specialist I employees, will be paid at a rate set ten (10) salary rate ranges (approximately 5.0%) above their then current base monthly salary step. C. An incumbent in the class of Police Officer who is continuously and regularly assigned to and actually performing duties of a Corporal will be paid at a rate set five (5) salary rate ranges (approximately 2.5%) above his or her then current base monthly salary step. If a Corporal is assigned to lead a work unit without a Sergeant, he or she will be paid an additional five (5) salary rate ranges (approximately 2.5%) above his or her base monthly salary step for such assignment. At the present time, Directed Patrols and Civic Center Patrol units are examples of such assignments. D. An incumbent in the class of Correctional Officer who is continuously and regularly assigned to and actually performing duties of a Senior Correctional Officer will be paid at a rate set five (5) salary rate ranges (approximately 2.5%) above his or her then current base monthly salary step. E. The Police Chief at his discretion and based on the department's need may assign sworn officers to standby status for non -work days or other days as determined by the Police Chief. Officers thus assigned will be compensated at the rate of two (2) hours of straight time per day of standby duty. Officers assigned to standby status on non -work days will not lose their standby pay when called to duty, if they have been on call for at least six (6) hours when called. If officers on standby status are called to duty after having been on call for less than six (6) hours, they will be paid for their response to work, but not for their standby status. II 25C-18 F. An employee who is continuously and regularly assigned as a Training Officer working in Field Operations, the Detention facility, or as a Forensic Specialist II will be paid at a rate set five (5) salary rate ranges (approximately 2.5%) above his or her then current base monthly salary step. G. An employee who is continuously and regularly assigned to and actually performing duties of an Internal Affairs Officer will be paid at a rate set five (5) salary rate ranges (approximately 2.5%) above his or her then current base monthly salary step. H. An employee who is continuously and regularly assigned to perforin training functions as a Parking Control Officer will be paid at a rate set five (5) salary rate ranges (approximately 2.5%) above his or her then current base monthly salary step. I. An incumbent in the class of Police Officer who is continuously and regularly assigned as a Canine Officer will be paid at a rate set ten (10) salary rate ranges (approximately 5%) above his or her then current base monthly salary step. This pay shall be considered compensation for the care and feeding of the dog and will be in lieu of the thirty (30) minutes of time each day currently provided for such purpose. An incumbent in the class of Police Officer who is continuously and regularly assigned to and actually performing duties of a Motor Officer assigned to the Traffic Division will be paid at a rate set five (5) salary rate ranges (approximately 2.5%) above his or her then current base monthly salary step. K. An incumbent, identified by the Police Department, who is continuously and regularly assigned to and actually performing duties of a Detective/Investigator assigned to the Investigations Division or Special Investigations Units as well as Police Investigative Specialist, Background Investigator, Collision Investigator, and Graffiti Task Force Investigator, will be paid at a rate set five (5) salary rate ranges (approximately 2.5%) above his or her then current base monthly salary step. L. Employees in the class of Correctional Officer or Correctional Supervisor, who is continuously and regularly assigned to either the 207(k) 7/12.5 Corrections Work Schedule, or the 4/10.5 Corrections Administration Work Schedule, shall be paid at a rate set six (6) salary rate ranges (approximately 3%) above his or her then current base monthly salary step. This assignment pay is compensation for the additional 30 minutes work or briefing time each day. CaIPERS has detennined this pay additive does not qualify as special compensation under CCR 571(a) and as such, is not reportable as final compensation when calculating retirement benefits. M. Personnel in the class of Firearms Examiner who are regularly and continuously assigned to and actually performing duties in a "lead" supervisory capacity over a primary functional unit, will be paid at a rate set ten (10) salary rate ranges (approximately 5.0%) above their then current base monthly salary step. 15 25C-19 N. Notwithstanding the specific provisions of Article V, Section 5.1, A —M, supra, an incumbent who is regularly and continuously assigned to lead a functional unit which includes positions in the same or lower classifications as the incumbent, may be compensated for said duties upon mutual agreement of the City and POA and approval of the Police Chief and the Executive Director of Personnel Services. This compensation shall be referred to as "lead pay." O. An incumbent in the class of Forensic Specialist I or Forensic Specialist lI who is continuously and regularly assigned as a Tenprint — AFIS Technician will be paid at a rate set five (5) salary rate ranges (approximately 2.5%) above his or her then current base monthly salary step. P. An incumbent in the class of Forensic Specialist I or Forensic Specialist II who is continuously and regularly assigned as a Fingerprint Analyst will be paid at a rate set five (5) salary rate ranges (approximately 2.5%) above his or her then current base monthly salary step. In no event shall an incumbent receive more than ten (10) salary rate ranges (approximately 5%) more than his or her then current base monthly salary step for performing the duties of both the Tenprint — AFIS Technician and Fingerprint Analyst. 5.2 Shift Differential, A. Non -Sworn Personnel. Each employee in the classes of Animal Service Officer I, Animal Service Officer II, Forensic Specialist I, Crime Research Analyst, Forensic Specialist II, Police Communications Supervisor, Police Investigative Specialist, Police Property & Evidence Specialist, Police Service Officer, Police Evidence and Supply Specialist, Police Services Dispatcher, Communications Services Officer, Correctional Officer, Correctional Supervisor and Parking Control Officer who is continuously and regularly assigned to a schedule of work which requires that he or she actually work a minimum of four and one-half (4 1/2) hours between the hours of 5:00 P.M. and 7:00 A.M. will be paid a shift differential at a rate set ten (10) salary rate ranges (approximately 5.0%) above his or her then current base monthly salary step. B. Effective July 1, 2017 each Sworn employee covered by this Agreement who is continuously and regularly assigned to a schedule of work that requires that he or she actually work a minimum of four and one-half (4 %z) hours between the hours of 5:00 P.M. and 7:00 A.M. will be paid a shift differential at a rate set at 2.5% above his or her base monthly salary. 5.3 Bilingual Pav. Qualified employees who meet the following criteria shall be paid a monthly pay differential, above his or her base monthly salary step, as follows: A. Assignment by the Police Chief or his designee to a position requiring bilingual capability in both English and any other languages designated by the Orange County Registrar of Voters as necessary for official voting information and or Federal Voting Rights Act; and 16 25C-20 B. Certification by the chief personnel officer as having satisfactorily demonstrated the required level of fluency in both languages. C. Sworn: Street Level Proficiency in Spanish. A Police Officer or Sergeant who successfully demonstrates the required level of bilingual fluency as determined by the chief personnel officer shall be paid a bilingual pay differential in an amount equal to the product obtained by multiplying the Step "E" base salary rate of Police Officer by five (5) salary rate ranges (approximately 2.5%). Employees receiving "Street Level Proficiency" incentive pay may be required, as a condition of continued eligibility to receive such incentive pay, to successfully complete an eight (8) hour refresher course once every twelve months from the date of initial certification. D. Sworn: Complex Level Proficiency in Designated Languages. A Police Officer or Police Sergeant who successfully demonstrates the required level of bilingual fluency as determined by the chief personnel officer shall be paid a bilingual pay differential in an amount equal to the product obtained by multiplying the Step "E" base salary rate of Police Officer by ten (10) salary rate ranges (approximately 5%). E. Non -Sworn: Secondary Level Proficiency in Designated Languages. A non-swom employee who successfully demonstrates the required level of bilingual fluency as determined by the chief personnel officer shall be paid a monthly differential of forty dollars ($40) above his or her then current base monthly salary step. Nan -Sworn: Primary Level Proficiency in Designated Languages. A non -sworn employee who successfully demonstrates the required level of bilingual fluency as determined by the chief personnel officer shall be paid a monthly differential of one hundred seventy-five dollars ($175) above his or her then current base monthly salary step. 5.4 All assignments to positions set forth in Sections 5.1, 5.2, 5.3 above of sworn and non - sworn personnel shall be made or revolted in a fair manner at the discretion of the Police Chief. 5.5 Temporary Upgrade Assignment Pay. The parties acknowledge that from time to time it may be necessary for the department to fill a temporarily vacant, full-time budgeted, higher-level position due to the temporary absence of the incumbent. The parties agree that such a position may be filled by an eligible unit member for an initial period of up to six (6) months, and at the discretion of the Chief of Police, for an additional six (6) months; and that the employee assigned to fill such a position shall receive Temporary Upgrade Assignment Pay as set forth below: A. Eli ibili . Full-time employees shall be assigned to fill a vacant, full-time budgeted, higher- level position, and shall receive Temporary Upgrade Assignment Pay for filling 17 25C-21 that position, when the occupier of that position is not performing the duties of that position for a period of two (2) consecutive calendar weeks or more. An employee filling a position under this section who is absent for two (2) days or less during the two (2) consecutive calendar week period will not lose his or her eligibility for Temporary Upgrade Assignment Pay; however, the days of absence shall not be counted in the computation of the two week period. In computing qualifying service or temporary upgrade assignment pay only full days of actual duty shall be included. Partial days shall not be combined to make full days unless they are holiday hours. Holiday time off will be included in computing actual duty days. Employees holding the position immediately subordinate to the vacant, full-time, budgeted, higher-level position to be filled shall be given first consideration to said position consistent with the operational needs of the department. When there is more than one (1) employee holding the position immediately subordinate to the vacant, full-time, budgeted, higher-level position to be filled, the most senior employee holding one of the immediately subordinate positions shall be assigned to said position consistent with the operational needs of the department. Non -permanent employees (probationary, part-time, seasonal, etc.) and employees performing work above their regular class in a training capacity shall not be assigned to a vacant, full-time, budgeted, higher-level position in accordance with this section unless specifically authorized by the City Manager. B. Compensation. After an employee has served two (2) consecutive calendar weeks in a vacant, fill -time, budgeted, higher-level position, lie shall be compensated at the Temporary Upgrade Assignment Pay rate for each full day that he is assigned to the higher-level position, retroactive to the first (11C day of said assignment. 2. An employee serving in a Temporary Upgrade Assignment will be paid a temporary assignment pay premium at a rate set ten (10) salary rate ranges (approximately 5%) above their then current base monthly salary step. An employee assigned to a vacant, full-time budgeted, higher-level position not represented by this bargaining unit will retain all fringe benefits afforded to members of this bargaining unit, if the employee remains eligible for such pay while in the temporary assignment, in accordance with this MOU, but will not be eligible for any benefits afforded to members of the bargaining unit for the position to which he or she is temporarily assigned. 4. An employee assigned to a vacant, fill -time, budgeted, higher-level position will continue to accrue, and have recorded, general, special, or normal salary step increases in the employee's permanent position; 18 25C-22 however, such salary increase will be paid only to maintain the minimum ten (10) salary rate range (approximately 5%) differential required by this section. ARTICLE VI 6.0 CAREER DEVELOPMENT PROGRAM 6.1 Definitions. For the purpose of clarifying the criteria for the Police Career Development Program designations set forth in Sections 6.2 through 6.8 of this Article, the following definitions apply. It is the responsibility of the employee regardless of rank or classification, to notify the police department human resources of the completion of any Career Development Pay requirements and to provide the required proof of completion or eligibility. Any Career Development pay additive shall not commence until the department is notified by the employee of obtaining eligibility and all required proof of eligibility is received by the department. A. Educational Units. One (1) completed "semester" unit in an academic course of instruction approved by the Police Chief and in an accredited college or university shall equal one (1) educational unit. One (1) "quarter" unit achieved in an educational institution as above shall equal two-thirds (2/3) of an educational unit. "Trimester" units or other standards of measurement used as a basis in awarding scholastic credits will be accorded the same evaluation and weight as provided by the respective accredited college or university. Only completed coursework credited with a letter grade "C" or better or a grade of "Pass" when evaluated by the "Pass/Fail" method will be accepted. If such ratings are not rendered for a specific course, then a certificate of successful completion must be submitted. B. Training Units. Twenty (20) classroom hours or its equivalent of approved police training shall equal one unit. Regular, periodic, on-the-job training programs shall not be considered as fulfilling this requirement. Neither shall the special training required for Crime Scene Investigators and Advanced Officers or other similar mandatory training (e.g., First Aid, C.P.R. Recertification, etc.) nor the basic introductory training or similar training given an employee during his or her probationary period be given credit for the awarding of training units. When college credit is awarded for special training in police work, such units of credit may be counted for either training units or educational units as the officer may select. 2. Training units may be earned by the assignment to and performance of sworn police officer duties (other than uniformed field patrol work in Field Operations Division) with one (1) full and continuous month of such assignment equal to one (1) training unit. Credit for experience in 19 25C-23 assignments other than patrol work in Field Operations shall not be given, unless at least three (3) full and continuous months of such assignment have been completed. Not more than six (6) units of training through assignment to non -patrol duties may be earned in any one (1) year and not more than fifteen (15) such training units by assignment shall be used in meeting the criteria for the Police Career Development Program designations as set out in this Article. 6.2 Crime Scene Investigator (C.S.I.). Any sworn, safety -member Police Officer who attains the following educational and experience requirements and the approval as set out below shall be paid an additional five (5) salary rate ranges (2.5%) above his or her then current base monthly salary step. The criteria for such designation shall be as follows: A. Completion of two (2) years of experience as a sworn Police Officer, at least one of which shall be in the Santa Ana Police Department. B. Completion (acquisition) of at least thirty (3 0) educational and/or training units. C. Assignment to and actual performance of the duties and responsibilities of a C.S.I. D. Completion of a special training course for Crime Scene Investigators as developed and administered by the Santa Ana Police Department or such alternative course as designated for such purpose by the Police Chief. E. Approval of the Police Chief. The number of such designations as C.S.I. shall be no larger than the requirements of the department as determined by the Police Chief, 6.3 Senior Police Officer I. Any sworn, safety -member Police Officer, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Officer I and shall be paid at a rate set fifteen (15) salary rate ranges (approximately 7.5%) above his or her then current base monthly salary step. The criteria for such designation shall be as follows: A. Completion of five (5) years of municipal police experience in the Police Officer classification, of which thirty (30) months must be with the Santa Ana Police Department. B. Completion (acquisition) of at least sixty (60) educational and/or training units. C. Approval of the Police Chief. 6.4 Senior Police Officer II. Any swom, safety -member Police Officer, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Officer II and shall be paid at a rate set twenty-five (25) salary rate ranges (approximately 12.5%) above his or her then current base monthly salary step in the Police Officer classification. The criteria for such designation shall be as follows: 20 25C-24 A. Completion of seven (7) years of municipal police experience in the Police Officer classification, of which thirty (30) months must be with the Santa Ana Police Department. B. Completion (acquisition) of at least ninety (90) educational/training units; or possession of an Associate of Arts degree from an accredited college with an additional thirty (3 0) or more educational/training units. C. Approval of the Police Chief, 6.5 Senior Police Officer III. Any swom, safety -member Police Officer, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Officer III and shall be paid at a rate set thirty (30) salary rate ranges (approximately 15%) above his or her then current base monthly salary step in the Police Officer classification. The criteria for such designation shall be as follows: A. Completion of nine (9) years of municipal police experience in the Police Officer classification, of which thirty (30) months must be with the Santa Ana Police Department. B. Completion (acquisition) of at least one hundred twenty (120) educational/training units; or possession of an Associate of Arts degree from an accredited college with an additional sixty (60) or more educational/training units. C. Approval of the Police Chief. 6.6 Senior Police Sergeant I. Any officer holding the rank of Police Sergeant in the Santa Ana Police Department, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Sergeant I and shall be paid at a rate set fifteen (15) salary rate ranges (approximately 7.5%) above his or her then current base monthly salary step. The criteria for such designation shall be as follows: A. Completion of five (5) years of municipal police experience and be eligible for "E" step of the base salary rate range of the Police Sergeant class. "Eligible" as defined only for Section 6.6(A) means that a Police Sergeant shall be considered for advancement from Step "D" or "E" to Senior Police Sergeant I upon the completion of the required length of service as provided in Section 4.2 and Exhibit A of this MOU; the effective date of such increase shall be on the first day of the month following completion of such required length of service. B. Completion (acquisition) of at least sixty (60) educational and/or training units. C. Approval of the Police Chief. 21 25C-25 6.7 Senior Police Sergeant II. Any officer holding the rank of Police Sergeant in the Santa Ana Police Department, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Sergeant II and shall be paid at a rate set twenty-five (25) salary rate ranges (approximately 12.5%) above his or her then current base monthly salary step in the Police Sergeant class. The criteria for such designation shall be as follows: A. Completion of seven (7) years of municipal police experience and be eligible for "B" step of the base salary rate range of the Police Sergeant class. "Eligible" as defined only for Section 6.7(A) means that a Police Sergeant shall be considered for advancement from Step "D" or "E" to Senior Police Sergeant II upon the completion of the required length of service as provided in Section 4.2 and Exhibit A of this MOU; the effective date of such increase shall be on the first day of the month following completion of such required length of service. B. Completion (acquisition) of at least ninety (90) educational and/or training units; or possession of an Associate of Arts academic degree from an accredited college with an additional thirty (3 0) or more education or training units. C. Approval of the Police Chief. 6.8 Senior Police Sergeant III. Any officer holding the rank of Police Sergeant in the Santa Ana Police Department, regardless of duty assignment, who fulfills the requirements established in this section shall be designated as a Senior Police Sergeant III and shall be paid at a rate set thirty (30) salary rate ranges (approximately 15%) above his or her then current base monthly salary step in the Police Sergeant class. The criteria for such designation shall be as follows: A. Completion of nine (9) years of municipal police experience and be eligible for "E" step of the base salary rate range of the Police Sergeant class. "Eligible" as defined only for Section 6.8(A) means that a Police Sergeant shall be considered for advancement from Step "D" or "E" to Senior Police Sergeant III upon the completion of the required length of service as provided in Section 4.2 and Exhibit A of this MOU; the effective date of such increase shall be on the first day of the month following completion of such required length of service. B. Completion (acquisition) of at least one hundred twenty (120) educational/training units; or possession of an Associate of Arts academic degree from an accredited college with an additional sixty (60) or more educational/training units. C. Approval of the Police Chief. 6.9 Career Development Program - Non -Sworn. An incumbent in one of the classes designated as "non -sworn" covered by this MOU shall earn as additional amount as follows: 22 25C-26 A. Upon attainment of an Associate in Arts Degree and five (5) years' experience with the City of Santa Ana, said employee will be paid at a rate set ten (10) salary rate ranges (approximately 5%) above his or her then current base monthly salary step. This shall only apply to classification which do not require a degree for any employee hired after July 1, 2017. B. Upon attainment of a Bachelor of Arts or Science Degree and with five (5) years' experience with the City of Santa Ana, said employee will be paid at a rate set an additional (15) salary rate ranges (approximately 7.5%)) above his or her then current base monthly salary step. If said employee obtains a Bachelor's Degree without attaining an Associate in Arts Degree, he or she will be paid at a rate set ten (10) salary rate ranges (approximately 5%) above his or her then current base monthly salary step., This shall only apply to classification which do not require a degree for any employee hired after July 1, 2017. C. Upon attainment of a Masters in Arts Degree and five (5) years' experience with the City of Santa Ana, said employee will be paid at a rate set twenty rate ranges (approximately 10%) above his or her then current base monthly salary step. This shall only apply to classification which do not require a degree for any employee hired after July 1, 2017. 6.10 Career Development Pay -Sworn Sworn Employees hired on or after January 1, 2014 shall be eligible to receive Career Development Pay as follows: A. Level One - Upon attainment of an Associate in Arts Degree and five (5) years of municipal police experience in the Police Officer or Police Sergeant classification, of which thirty (30) months must be with the City of Santa Ana Police Department, and attainment of `B" step, said employee will be paid at a rate set ten (10) salary rate ranges (approximately 5%) above his or her then current base monthly salary step. B. Level Two - Upon attainment of an Associate in Arts Degree and an additional thirty (30) educational units toward a declared Bachelor's degree, and seven (7) years of municipal police experience in the Police Officer or Police Sergeant classification, of which thirty (30) months must be with the City of Santa Ana Police Department, and attainment of `E" step, said employee will be paid at a rate set an additional (10) salary rate ranges (approximately 5%) for a total of 20 salary rate ranges (approximately 10 %) above his or her then current base monthly salary step. If said employee obtains a Bachelor's Degree without attaining an Associate in Arts Degree, he or she will be paid at a rate set twenty (20) salary rate ranges (approximately 10%) above his or her then current base monthly salary step. 23 25C-27 C. Level Three. Upon attaimnent of a Bachelor of Arts or Science Degree and nine (9) years of municipal police experience in the Police Officer or Police Sergeant classification, of which thirty (30) months must be with the City of Santa Ana Police Department and attainment of "E" step, said employee will be paid at a rate set an additional (10) salary rate ranges (approximately 5%) for a total of 30 salary rate ranges (approximately 15 %) above his or her then current base monthly salary step. 21 25C-28 ARTICLE VII 7.0 TRAINING AND EDUCATIONAL ASSISTANCE PROGRAM 7.1 Purpose. A. To encourage the employees of the City of Santa Ana to take college courses and special training courses which will better enable them to perform their present duties and prepare them for increased responsibilities. B. To provide financial assistance to eligible employees for education and training. C. To establish eligibility requirements, conditions and procedures whereby such assistance may be provided. 7.2 Elieibility. A. Applications for tuition reimbursement will be considered only from full-time, permanent City employees who have completed probation. B. Reimbursement is not authorized for courses for which the employee is receiving financial assistance from other sources such as G.I. Bill, scholarships, etc. C. Applications will be approved only for courses directly related to the employee's job or directly related to a promotional position in the employee's occupational specialty. D. Courses not ostensibly related to the employee's job, but which are required to qualify for a degree that is directly related to his or her job may be reimbursable only after all required occupationally related courses have been completed. E. Prior to receiving tuition reimbursement, employees must submit documentary proof of having received a grade of not less than "C" for the course. If objective ratings are not rendered for a specific course, then a certificate of successful completion must be submitted. F. Approval will be limited to courses given by accredited colleges and universities, city colleges or adult education courses under the sponsorship of the various Boards of Education. Workshops, seminars, conferences and similar activities not identifiable as a formal course of instruction within the curriculum of a recognized educational institution, do not fall within the purview of this program but may be authorized and funded by the interested department without coordination with the Personnel Services Department. G. When an employee is required by the Police Chief to attend a particular course or seminar, the expense shall be bome entirely by the City. 25 25C-29 H. For specifics regarding this Article, please refer to Santa Ana Police Department Training Bulletin 02-07 - Scheduling of Training Days and Travel Time Compensation. 7.3 Reimbursement. A. Reimbursement will be based on the cost of tuition or registration fees and all required texts, eBooks and related material for each course. Additional expenses such as meals and parking fees are not reimbursable. B. Costs for required texts and eBooks are eligible for one hundred percent (100%) reimbursement subject to the following conditions: For textbooks: a duplicate of the required textbook(s) was unavailable for loan from the departmental libraries prior to the commencement of coursework; 2. For textbooks: any textbook(s) purchased by the City shall be submitted to the employee's respective departmental library in order that such text(s) may be made available to all employees. C. Tuition or registration costs of one hundred dollars ($100.00) or less are eligible for one hundred percent (100%) reimbursement. Tuition costs in excess of one hundred dollars ($100.00) are eligible for seventy-five percent (75%) reimbursement. Maximum tuition reimbursement per semester is five hundred dollars ($500.00) with a maximum of $1,500 a year. NOTE: Summer and winter sessions shall be counted as separate "semesters" for purposes of the program. D. Employees shall be limited, for purposes of tuition reimbursement, to a maximum of two (2) collegiate level courses of not more than a total number of units which is equivalent to six (6) "semester" units per semester. One (1) "quarter" unit shall equal two-thirds (2/3) of one (1) "semester" unit. 7.4 Procedures. A. An employee who desires to seek tuition reimbursement under the provisions of this Article must complete an Application for Training and Educational Assistance form and submit it to the Police Chief. B. The Police Chief will recommend approval or disapproval and forward the application to the Personnel Services Department. It is advisable that the applicant accomplish the procedures so far described prior to the inception of the course or disbursement of personal funds in order to ascertain the eligibility of the intended course of instruction for reimbursement under the provisions of this policy. 26 25C-30 C. Within three months after he/she has completed the course and received his/her final grade, the employee must include official verification of his/her final grade with appropriate receipts for tuition and textbook costs to the Personnel Services Department. These will be returned to the employee upon request. Applications not submitted to the Personnel Services Department within three months following completion of the course become void. D. Upon receipt of the required documentation, the Personnel Services Department will determine whether the completed course of instruction is compatible with the provisions of Sections 2 and 3 of this Article. If found to be compatible, the Personnel Services Department will compute the amount of reimbursement, authenticate the application, and forward it to the Police Chief. E. The Police Chief will then authorize the Finance and Management Services Department to reimburse the employee the approved amount out of the budget of the Police Department. ARTICLE VIII 8.0 OVERTIME 8.1 General Policy for Overtime Work. Whenever it shall be determined to be in the public interest for employees to perforin overtime work, or in an emergency situation, the City Manager, the Police Chief, or an authorized representative of the City Manager or Police Chief, may require an employee to perform overtime work. 8.2 Definition. A. Standard Work Period Overtime. Overtime for those employees assigned to the Standard Work Period shall be authorized or required time worked in excess of those hours assigned to their particular Standard Work Period Schedule workday or hours in excess of 40 hours per Work Period However, subject to Article 8.3 below, if an employee uses sick leave or personal necessity leave as provided for in this MOU in the same Standard Work Period in which he/she works hours in addition to his/her regular hours, the sick leave and/or personal necessity leave shall not count as work hours which shall mean that the additional hours worked shall be paid at straight time if they are less than or equal to the number of sick leave or personal necessity leave hours used in the Standard Work Period. The use of such leave hours shall not affect overtime earned in accordance with Article 8.16 of this MOU. B. Alternative Work Period Overtime. Pursuant to this MOU, employees assigned to the Alternate Work Period shall cam overtime for authorized or required time worked in excess of those hours assigned to their particular Alternative Work 27 25C-31 Period Schedule workday or hours in excess of his or her Alternative Work Period Schedule hours in a consecutive 28 day, 672 hour period. However, subject to Article 8.3 below, if an employee uses sick leave or personal necessity leave as provided for in this MOU in the same Alternative Work Period in which he/she works hours in addition to his/her regular hours, the sick leave and/or personal necessity leave shall not count as work hours which shall mean that the additional hours worked shall be paid at straight time if they are less than or equal to the number of sick leave or personal necessity leave hours used in the Alternative Work Period. The use of such leave hours shall not affect overtime earned in accordance with Article 8.16 of this MOU. 8.3 Computation of a Workday and Work Period. Paid leave for holidays, vacation, and other time off with pay, except for sick leave and personal necessity, shall be credited towards the total time worked in computing a regular workday, and/or a work period, as defined herein. Sick leave and personal necessity shall not count as hours worked towards the total time worked in computing a regular workday and/or a work period. Work amounting to less than six (6) minutes shall not be considered time worked. Overtime worked for six (6) or more minutes shall be calculated in six (6) minute intervals. Leave without pay shall not be credited towards the total time worked in computing a regular workday, and/or a work period, as defined herein. 8.4 Compensation for Overtime. A. The preferable method by which overtime shall be compensated is by monetary payment, at one and one-half (11/2) times the employee's regular rate of pay. B. Should the Police Chief determine that the best interests of the City will be served thereby, he or his designee may permit an employee to be compensated for overtime work by earning compensatory time off at the rate of one and one-half (1 1/2) hours for each hour of overtime worked. This time, hereinafter identified as "comp time" shall be accrued as set forth below. C. There are two Comp Time banks. The first bank is the Non-FLSA Comp -Time Bank established under the 2013-2015 MOU. Those employees hired after July 1, 2015 or those employees with less than 100 hours of Comp -Time at the time the banks were created will not have a Non-FLSA Comp -Time Bank. The second bank is the FLSA Comp -Time Bank. The Non-FLSA Comp Time Bank can never have hours added to it. The hours in that bank can only be used as leave time and when using such leave will not cause the City to have to pay another employee overtime to fill behind the employee using the leave. The comp time in this bank cannot be cashed out during employment, only at the time the employee leaves City employment. If an employee uses the comp time in this bank during employment and exhausts the entire accrual in this bank, the employee's Non-FLSA Comp Time Bank will be closed as no additional hours may accrue into this bank. 28 25C-32 2. The FLSA Comp Time Bank has a maximum accrual of one -hundred (100) hours. An employee who has 100 hours in this bank will earn overtime paid at time and one half the employee's regular rate of pay for overtime earned in accordance with this MOU. An employee who works overtime and who has less than 100 hours in his/her FLSA Comp Time Bank may be able to accrue hours (at the rate of 1.5 hours for each hour of overtime worked) in accordance with subdivision (B) above. The Comp time in this bank can be cashed in accordance with the provisions detailed below. Each affected employee who has accrued comp time credits in the FLSA Comp Time Bank, may elect to convert up to twenty (20) hours of such accrued time each calendar year quarter to the cash equivalent thereof, to a maximum of eighty (80) hours per calendar year. D. Use of Comp Time from the FLSA Comp Time Bank. When an employee submits a request for time off using accrued compensatory time, and that employee has found a qualified replacement, the time off request will be granted. A qualified replacement means that the replacement officer or employee is able to fulfill the requirements of the position to which the requesting officer is assigned. a. Compensatory time off requests made for consideration during the monthly scheduling meetings will be treated as any other time off and granted only on the basis of seniority. b. Pursuant to the 3-12 Operating Rules, officers may trade work days with other officers within the 28 -day deployment period. Any trades must be approved by the affected Commanders and the Field Operations Bureau Commander. 2. When an employee submits a request to take time off using accrued compensatory time and the officer deployment is above minimmn staffing for the day requested, then the request will be granted without further conditions. However, if the number of officers scheduled to work on the days) of the request is at or below minimum staffing as defined by the department, the compensatory time off request will be granted only if a qualified replacement has volunteered and committed to work the assignment left open by the request for time off. The volunteer may exchange days off with the requesting employee within the 28 -day deployment period, whichever applies, or may elect to receive overtime compensation. Requests for use of compensatory time off during holidays as defined by this MOU, must be submitted in time to be considered during the monthly scheduling meeting held by bureau and division commanders for the upcoming month. These requests will be considered by seniority and will 29 25C-33 be granted only if officer deployment is above minimum staffing. The policy of the department has been, and will continue to be, that compensatory time off requested during a City -designated holiday will be treated as any other time off request and will be granted in order of seniority as long as minimum staffing levels are met. The replacement policy in 8.4 DA below will not apply to compensatory time off requests submitted for consideration during monthly scheduling meetings. 4. Although it is always preferable for the officer to find a qualified replacement when requesting the use of compensatory time off, if provided sufficient notice of a request for time off, the department will work with employees to find a qualified replacement. Sufficient notice and reasonable period will be defined as follows: a. Seventy-two (72) hours' notice for one (1) day or less of time off requested. b. Five (5) calendar days' notice for more than one (1) workday.up to one (1) workweek. C. Fourteen (14) calendar days' notice for more than one (1) week compensatory time off request. If an employee has provided sufficient notice of a compensatory time off request, the department will work with the employee to find a qualified replacement in the following manner: a. The watch commander will maintain a calendar of time off that has been requested in accordance with the guidelines listed above. Qualified employees will be allowed to volunteer to work these shifts. In the future, the department may develop, at its own discretion, an automated schedule that will contain this information. b. If an employee volunteers and signs up to work for another employee who has requested compensatory time off, that volunteering employee will be held responsible for working that full shift without further reminder. Employees who do not show up to work, or retract their offer to replace another officer, may be subject to disciplinary action and may not be permitted to volunteer to work in this manner in the future. 6. The watch commander shall send out an e-mail message to all officers requesting a volunteer to cover the shift by switching days off or working on overtime. When a compensatory time off request is made in a manner that does not comply with this policy, and granting that request would unduly disrupt the 30 25C-34 operations of the department, the department may deny that request. 8.5 Incremental Usage. Time off with pay to compensate for overtime worked may be taken in increments as small as one-half (1/2) hour. 8.6 Excess Usage. If compensatory time off is used in excess of that available, such excess compensatory time off will first be deducted from any available comp time bank, vacation benefits and finally, deducted from the next scheduled wage or salary payment. 8.7 No Effect on Other Benefits. Overtime work shall not apply to the earning of employee benefits (retirement, holidays, vacation accrual, sick leave accrual and employee insurance benefits), toward the completion of probationary period or to progression within a salary rate range. 8.8 Overtime Work to be Apportioned. To the extent that he is reasonably able to do so, the Police Chief shall arrange work programs to minimize overtime work; necessary overtime work shall be apportioned among employees of like classification and assignment. 8.9 Advance Compensation for Overtime. Time off with pay as compensation for overtime may not be granted or taken in advance of the overtime work for which the time off compensates. Before compensatory time off with pay may be taken, as herein provided, the overtime worked must have been recorded on official payroll records at or about the time the overtime work was performed. In the absence of such recording, no compensatory time off with pay will be permitted. 8.10 Compensation for Overtime: Exclusions. Overtime pay or comp time shall be allowed an employee for attendance at conventions, conferences, seminars or the like, as long as prior authorization is received. Overtime pay or comp time pay shall be permitted only for attendance which is ordered on such employee's normal days off or for time beyond a normal workday's duration. Please refer to Santa Ana Police Department Training Bulletin 02-07 for details. 8.11 Call -Back -Duty. A. Employees who are on call during their off-duty time due to their assignment (i.e., Homicide Investigators, Internal Affairs Sergeants, Crimes Against Persons Sergeants, etc.) and are called back to work will be paid for their travel time at the overtime rate from the time they leave their home until the time they return home, or until their regularly scheduled shift begins. Only that period of time devoted to work will be compensated. B. Employees who are ordered back to work while off-duty because of an emergency or other unforeseen event will be paid for travel time at the overtime rate from the time they leave their home until they return home, or until their regularly scheduled shift begins. Only that period of time devoted to work will be compensated. 31 25C-35 C. Employees who are called at home and offered voluntary overtime work, and elect to accept the offer, will not be compensated for travel time in any manner. Similarly, employees who sign up for voluntary overtime, or who have advance notice that they will have to work during their off-duty time on an overtime basis, will not be compensated for travel time. 8.12 Accrued Overtime Paid Upon Promotions or Upon Separation. Upon an employee's appointment to a position in which overtime may not be earned or upon an employee's separation from employment with the City by resignation, retirement, layoff or otherwise, he or she shall forthwith be compensated for any overtime accumulated to the time immediately preceding such promotion or separation. 8.13 Court Appearance. Compensation for court appearance by personnel covered by this MOU shall be as follows: A. For each required court appearance made by an employee during his or her off-duty time in regard to City business, employees shall be paid overtime for the period of time from their arrival at court until they are released from court or the court session closes for that day. However, in no case, shall an employee receive less than two (2) hours overtime for a court appearance. If court appearances are made both in the morning and afternoon of a particular day, two (2) hours overtime will be allowed for each session attended. If the employee is not released and must remain available for afternoon court, the employee shall be paid overtime for all hours the court is in session that day. The employee must provide a copy of the subpoena requiring his or her attendance to initiate payroll procedures. B. A subpoenaed employee scheduled to appear in court on City business during off- duty time may be placed on stand-by status by the Police Chief or his authorized representative if the employee can respond to the court, if called, within 60 minutes of the employee's notification. In the event such off-duty employee is on stand-by status during any court session and is not required to appear in court, such employees shall be compensated two (2) hours on a straight time basis, for each court session. Such employee may elect, in lieu of paid time, two (2) hours of comp time off for standby time and not appearing in court, with the approval of the Police Chief. If such off-duty employee on stand-by actually appears in court, he or she shall be compensated as provided in Subsection A, supra. C. Employees assigned to the 3/12.5 or 7/12.5 Work Schedule who appear in court during their regularly scheduled workweek, and as a result do not receive adequate rest, will be allowed to flex their scheduled shift start time up to four hours, with the approval of the employee's immediate supervisor and watch commander, or immediate supervisor and section commander. Alternatively, the employee may be allowed to use up to four hours from his/her "Comp Time Banks" at the beginning of their scheduled shift to ensure adequate rest. 32 25C-36 An employee whose work shift ends or starts within thirty minutes of a mandatory court appearance shall be compensated for those thirty minutes at an overtime rate. 2. Employees assigned to a Watch 3 who are required to appear in court following the end of his/her shift will have the option of remaining on duty or ending their shift. Employees that continue active duty will be compensated at time and one half while on duty. Employees that end their shift will be unpaid prior to their court appearance. D. Employees who are on call for court during off-duty time, and who are called to testify, will be paid at the overtime rate of time and a half of their regular hourly rate, to include actual travel time from their home to court and back, or until their regularly scheduled shift begins. Travel time will be limited to a maximum of one (1) hour each way. Only that period of time devoted to work will be compensated. Time spent on personal pursuits or other non -work related activity will not be compensated. E. Those employees who have advance notice of their required appearance in court, have arranged an appearance time with the District Attorney's Office, or who otherwise have advance notice of mandatory court appearances, will not be compensated for travel time in any manner. F. Employees who appear in court during off-duty hours may elect to start their normal work shift early as specified herein. G. A subpoenaed employee scheduled to appear in court on City business during off- duty time and placed on standby status by the Police Chief or his authorized representative will be compensated two (2) hours on a straight time basis if he or she is not advised of the cancellation of his or her appearance within five (5) Court business days of said appearance. 8.14 Creation of Association Comp Time Bank. A. Any member of the Association who works overtime, or has accrued but unused holidays, can designate that he or she will contribute the value of such time to a bank for use by members of the Association for the purposes and subject to the restrictions provided herein. B. Any member of the Association may receive time off for the welfare of officers, community service and any lawful activity of the Association with pay drawn from the bank described in Subsection A of this Section, provided that said employee first gains approval for said use by the executive board of the Association in the manner specified by its rules as adopted from time to time, and subject to the approval or disapproval of the Police Chief consistent with the operational needs of the Police Department. 33 25C-37 C. No withdrawal or use of such bank may be made by or on behalf of an employee ordered to take time off without pay for discipline imposed by the Police Chief or his designee. D. The City agrees to provide the SAPOA with a quarterly accounting (at the end of March, June, September and December) of all Association Comp Time accrued and used. 8.15 Declaration of State of Emergency. Emergencies shall be governed by the provisions of Santa Ana Municipal Code Section 9-194. 8.16 Compensation of Voluntary Contract Overtime. Exclusive of other provisions of this Article, except Section 8.7 (No Effect on Other Benefits) supra, Police Officers and Police Sergeants who voluntarily agree to perform contract security services at games, parades, dances and similar public events shall be compensated at the rate of one and one-half (1 1/2) times the employee's regular rate of pay. The Police Chief shall determine how many off-duty police officers should serve as security officers at each event. Police Officers and Sergeants represented by the Association shall be given first opportunity to volunteer for said off-duty assignments. If, after areasonable period of time, an insufficient number of police officers have volunteered to work such assignments, the Police Chief may offer the remaining "openings" to any person(s) he deems capable of performing the work at whatever straight -time pay rate the City considers to be appropriate. 311. 25C-38 ARTICLE IX 9.0 HOLIDAYS 9.1 Legal holidays observed by full-time permanent and probationary employees covered by this MOU are as follows: • January 1st - New Year's Day. • Third (3rd) Monday in January - In observance of Martin Luther King Jr.'s Birthday. • Third (3rd) Monday in February - In observance of Presidents' Day. • Last Monday in May - In commemoration of Memorial Day. • July 4th - In observance of Independence Day. • First (1st) Monday in September - In observance of Labor Day. • November 11th - In observance of Veteran's Day. • Fourth (4th) Thursday in November - In observance of Thanksgiving Day. • The Friday immediately following Thanksgiving Day. • December 25th - In observance of Christmas Day. • Last working day before Christmas Day, unless Christmas falls on a Thursday, in which instance, the day following Christmas Day shall be observed in lieu thereof. • One (1) Floating Holiday - Any workday selected by the employee with prior permission of the employee's supervisor. • Everyday proclaimed by the Mayor of the City as a holiday for City employees. Any holiday which falls on a Sunday will be observed on the following Monday. Any holiday which falls on a Saturday will be observed on the Friday preceding the Holiday. 9.2 Full-time, permanent and probationary employees covered by this MOU shall be entitled to receive 96 hours off dining the calendar year in lieu of the twelve (12) holidays specified in Section 9. 1, supra. Said hours, up to a maximum of 80 hours, may be carried over from one calendar year to the next and shall be cashed out upon separation from employment, not to exceed a maximum of 160 hours. An employee required to work on a City observed "legal" holiday shall be paid at his or her straight time rate. 35 25C-39 However, if an employee who separated from the service of the City has taken time off for holidays in advance of the date or day the holiday actually occurred, he or she must pay the City the cash value for such used but unearned holiday time off benefits prior to or at the time of separation. Holiday Leave Carryover - The parties agree to modify the maximum annual holiday leave benefit carryover as follows: In 2014, 160 hours; 2015, 140 hours; 2016, 120 hours; in 2017, 100 hours; in 2018, 80 hours. By January 1, 2018, the maximum annual holiday leave benefit carryover shall revert back to that as set forth in subsection "9.2", above, and that any accumulated holiday leave benefits in excess of that maximum allowable carryover limit not used prior to December 315' each year, shall be forfeited. Said hours shall be cashed out upon separation from employment, not to exceed a maximum as follows: In 2014, 248 hours; 2015, 228 hours; 2016, 208 hours; 2017, 188 hours; 2018, 168 hours. 9.3 Cash Option. Employees covered by this MOU shall be given an option twice per calendar year to receive cash compensation ("cash out") computed on a straight time basis in exchange for eighty (80) hours of their annual holiday leave benefits set forth in Section 9.2 above. Specifically, employees may cash out up to 40 hours of holiday leave benefits in April of each calendar year and an additional 40 hours of holiday leave benefits in November of each calendar year. An employee that does not cash out holiday leave benefits in April may cash out a maximum of 80 hours of holiday leave benefits in November. Such option may be eliminated or modified to the extent it is construed as overtime under Department of Labor guidelines implementing provisions of the Fair Labor Standards Act (FLSA). 9.4 All employees must actually work at least one day preceding the day a holiday listed in Section 9. 1, supra, actually occurs in order to receive credit for such holiday. The employee will then be credited with all remaining holidays in the year occurring after the appointment. An employee separating from the service of the City must actually work at least one day following the day a holiday listed in Section 9.1, supra, actually occurs in order to receive credit for that holiday. A newly -appointed employee must complete six (6) months of continuous, full-time service in order to receive credit for the Floating Holiday listed in Section 9.1 above. 9.5 This "time off," as defined in Article X, Section 10.6, may be taken in increments as small as one half (1/2) hour, with fractional usage rounded upward to the next higher multiple of one half (1/2) hour. 9.6 A maximum of one (1) year of Holiday benefits may be carried over from one calendar year to the next. An employee terminating employment with the City may cash out accumulated, unused Holiday leave benefits, not to exceed a maximum of 160 hours. 36 25C-40 ARTICLE X 10.0 VACATION 10.1 Purpose. It is the policy of the City to grant employees vacation leave in order to provide them with a break in their regular work schedule, and this purpose will be used as a guide in the administration of the provisions of this Article. 10.2 Vacation. A. Effective January 1, 2016, the regular and longevity vacation accruals of bargaining unit members shall be combined into one single vacation bank. The accrual rates will remain the same. However, after January 1, 2016 there will no longer be a reference to longevity vacation. Longevity vacation earned but not advanced in 2015 will be credited to the employee's vacation bank effective January 1, 2016. Thereafter, members shall accrue the combined vacation with pay on a monthly basis as set forth in the following table. Beginning Years Annual Vacation Accrued Monthly Accrual'. Rate 1 80 6.67 . . 2 80 6'.67 3 120 moo •. 4 120 10.00 5 120 10.00 6 124 10.33 7 128 10.67 - a 132 11.00.' 9 136 11.33 10 140 11.67 11 144 12.00 . 12 148 12.33 13 152 12.67 14 156 13.00 15 160 13.33 16 168 14.00 17 176 14.67 18 184 15.33 19 192 16.00 20 or more 200 16.67 37 25C-41 B. An employee who has completed less than one year's service during the calendar year shall receive a proportionate fraction in accordance with the amount of service to his or her credit during the year; provided, however, no employee shall be entitled to, or receive payment for, any vacation until he or she has completed six (6) months of continuous service. C. On or after the fust (Ist) day of the month following completion of six (6) months of continuous full-time service, an employee may be allowed to take all or a proportionate fraction of his or her earned vacation, subject to scheduling approval of the employee's supervisor. D. Absence on sick leave for a period in excess of fifteen (15) consecutive calendar days shall not be considered as service for vacation accrual purposes. E. Computation of Vacation. In computing vacation, each municipal holiday that occurs during the vacation, and that falls on a day which the employee would have worked had he or she not been on vacation, shall be deducted from the computation so that ten (10) additional hours of vacation shall be allowed to the employee unless deparhnental practice provides some other manner of compensating for municipal holidays. Should an employee be confined to a hospital for sickness or injury while on authorized vacation, each full day of such confinement, when confirmed by a physician's statement and approval of the Police Chief, may be deducted from the computation of vacation expended and charged against the employee's accumulated sick leave. 2. A period of earlier service does not apply toward vacation accumulation when an employee has had a break in continuous service, unless the break in service is concluded by reappointment, as provided in Section 9-114 of the Santa Ana Municipal Code or by reemployment from layoff within one (1) year. Leave of absence without pay, as provided in Article XI, Section IE (Sick Leave -Extended) and Section 11.8 (Authorized Absence Without Pay - Long Tenn), Section 11.11 (Catastrophic Leave Donation) herein, does not constitute a break in continuous service as used in this section; however, the leave of absence period shall not be applied toward the accumulation of longevity vacation. Absence on military leave followed by reinstatement, as provided in Section 9-143 of the Santa Ana Municipal Code does not constitute a break in service, and the period of absence on such military leave shall be applied toward the accumulation of longevity vacation. F. Vacation Buy -Back Employees covered by this MOU are eligible to require the City to buy-back up to sixty (60) hours of their banked vacation, computed on a straight time basis, once per calendar year. 38 25C-42 Additionally, any member who has taken a minimum of eighty (80) hours of vacation time off during the calendar year (not including the sixty (60) hours of allowed vacation cash -out) shall have the ability to require the City to buy-back an additional forty (40) hours of their banked vacation, computed on a straight time basis, once during the same calendar year that the leave is taken. 10.3 Limitation on Vacation. A. With the exception of a retiring employee, no employee is granted, and no employee shall be allowed to take, any vacation leave with pay in excess of 400 hours in any one year. 10A Vacation Carry -Over. A. No employee may carry over from one (1) calendar year to the next, more than the maximum vacation carryover as set forth in the following table. Any vacation not used beyond the maximum carryover amount from year to year is forfeited, meaning that no pay shall be received for such unused vacation at any time. With respect to any vacation forfeited in this manner, this provision constitutes a waiver of any rights to vested vacation benefits under California Labor Code Section 227.3. Completed Years Max Carryover into 2017 Max Carryover into 2018 Max Carryover into 2019 1 80 80 80 2 160 160 160 3 280 280 280 4 320 320 320 5 1 1 360 360 360 6 364 364 364 7 372 372 372 8 382 381 380 9 392 390 388 10 402 399 396 11 412 408 404 12 422 417 412 13 432 426 420 14 442 435 428 1s 452 444 436 16 466 457 448 17 484 474 464 18 504 492 480 19 524 510 496 20 544 528 512 39 25C-43 21 556 538 520 22 560 540 520 23 560 540 520 24 560 540 520 25 560 540 520 B. Notwithstanding the foregoing, for any affected employee who is in jeopardy of losing vacation because of department staffing needs, may with approval of the Police Chief, Executive Director of Personnel and City Manager, receive a 30 -day extension beyond the normal cutoff date so that such employee will not lose vacation time 10.5 Excess Usaee. If vacation time off is used in excess of that available, such excess vacation time off will be, first, deducted from any available compensatory time off accrual; finally, deducted from the next scheduled wage or salary payment. 10.6 Time Off Banks. Employee Time Off Banks exist for each employee in the unit. Time off will be computed on an annual basis. Separate banks will be maintained for vacation, holidays, and compensatory time, respectively, based on existing policies applicable to each. Time off from each bank may be taken in increments as small as one half (1/2) hour, with fractional usage rounded upward to the next higher multiple of one half (1/2) hour. Each affected employee shall be afforded the opportunity to submit time off selection(s) and the Police Chief or his designee shall make every reasonable effort to accommodate the employee's preference(s). The time at which an employee shall take his or her leave time shall be determined by the Police Chief, with due regard for the wishes of the employee and particular regard for the needs of the service. NOTE: All other policies and procedures described in Article VIII, "Overtime", Article IX, "Holidays", and Article X, "Vacation" will apply to the Time Off Banks. However, no employee will be allowed to cant' a negative balance in any Time Off Bank. t,0 25C-44 ARTICLE XI 11.0 OTHER LEAVES OF ABSENCE 11.1 Sick Leave. A. Definition. Except as otherwise provided below, sick leave shall be deemed to mean absence from duty of an employee because of non -industrial illness or injury that prevents the employee from performing the duties of his or her position and shall be deemed to include time in quarantine resulting from non -duty related exposure to a contagious disease. B. Accrual. Each employee shall be entitled to, and shall earn, eight (8) hours of sick leave for each full calendar month of service in which he or she is employed by the City with full pay; provided, however, any absence on sick leave for a period of time greater than fifteen (15) consecutive calendar days in any one (1) calendar month shall not be considered to be service entitling an employee to earn sick leave as aforesaid. Subject to the other provisions in this Article, sick leave shall accrue to the credit of each employee to the extent that it is not used. Notwithstanding the foregoing, employees on leave of absence for service -connected illness or injury who are covered by the provisions of Labor Code Section 4850, shall continue to accumulate eight (8) hours of sick leave for each full calendar month of service for which he or she is employed by the City with full pay during said absence for service -connected illness or injury. C. Authorized Only When Necessary. Use of sick leave by City employees shall be authorized as follows: 1. Sick leave is not a right which an employee mayuse at his or her discretion, but shall be allowed only in cases of necessity and actual sickness or disability, or as authorized in Subsection J below. 2. With respect to "miscellaneous -member" employees covered by this MOU, when such an employee's absence is caused by an industrial illness or injury, for which benefits are required to be provided under the State Workers' Compensation Insurance and Safety Act, the City shall pay 100% of salary for the first three (3) days of such absence and sick leave shall not be debited. D. Limit. The maximum total accumulation of sick leave with pay shall be 1600 hours. Sick leave usage of less than a full day shall be charged in minimum increments of one-half (1/2) hour, with fractional usage rounded upward to the next higher multiple of one-half (1/2). E. Extended. The City Manager may grant leave up to six months without pay to an employee who has exhausted all of his or her accrued sick leave if a licensed 41 25C-45 physician designated by the City Manager indicates that the employee will be sufficiently recovered to return to his or her employment within a six (6) months period. Prior to the expiration of the additional time, the employee may return to his or her position provided that he or she has a certificate from one of the above mentioned physicians stating that the employee is able to perform all the duties of his or her position without qualification. In addition to the above, the City Manager may grant a further extension not to exceed a total of one (1) year without pay. F. Extension by Use of Vacation. After an employee's sick leave has been exhausted, he or she may be granted permission to take any earned vacation he or she may have accrued. G. Notice. The employee taking sick leave shall notify his or her immediate supervisor not less than one (1) hour prior to the time he or she is scheduled to report for duty. When the absence is more than three (3) consecutive working days, the employee must present to the Police Chief a physician's certificate stating that, in the physician's opinion, the employee could not report to work because of illness or injury and that the employee is sufficiently recovered to safely return to work. Such certificate shall be transmitted to the chief personnel officer with the report of the return of the employee to work. A physician's certificate or other satisfactory written evidence of actual illness or injury may be required after an absence of any duration of less than three (3) days. H. Denial. No employee shall be entitled to sick leave with pay while absent from duty because of sickness or injury purposely self-inflicted or caused by willful misconduct; or sickness or disability sustained while engaged in employment other than employment by the City, for monetary gain or other compensation, or by reason of engaging in business or activity for monetary gain or other compensation. Excess Usage. If sick leave is used in excess of that due and available to an employee, such excess sick leave, will first be deducted from any available compensatory time off benefit; second, from any available vacation leave benefit; third, from any available holiday leave benefits; and finally, deducted from the next scheduled wage or salary payment. J. Personal Necessity Leave. Each employee shall be afforded the opportunity to use up to 66 hours of sick leave per calendar year, on a non -cumulative basis, as personal necessity leave. All of this personal necessity leave may be used to attend to an illness of a child, parent, spouse or registered domestic partner of the employee. As used in this section, "child" means a biological, foster, or adopted child, a stepchild, a legal ward, or a child of a person standing in loco parentis; and "parent" means a biological, foster, adoptive parent, a stepparent, or a legal guardian. Up to three (3) days of this personal necessity leave may be. used: (a) to attend to a serious accident to members of the employee's immediate family; (b) childbirth; 42 25C-46 (c) to cope with imminent danger to the employee's home or other valuable property; or (d) when the existence of external circumstances beyond the employee's control make it impractical for him or her to report for duty. For the purposes of this section only, a "day" shall be defined as the number of hours of work that an employee is required to work according to his or her specific workday schedule. K. Payment for Unused Sick Leave, Definition. All employees, except for those involved in disciplinary termination, shall be entitled to payment under the following provisions: 1. After ten (10) years of cumulative full-time service with the City, each qualified employee shall be entitled to payment for one-third (1/3) of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 427 hours, at the rate of pay in effect on the date of such termination. a. At his or her option, an employee may convert the above lump sum payment option into health insurance or long term care insurance premiums to the extent necessary to provide the employee and his or her designated eligible dependents, if any, with benefits under the health insurance program maintained by the Association. The City's obligation to pay such premiums shall be terminated when the sum of premiums paid equals one -hundred fifty percent (150%) of the amount of the lump sum payment that the employee would have received for unused sick leave benefits had this option not been elected, not to exceed a maximum of 640 hours. 2. After 15 years of cumulative full-time service with the City, each qualified employee shall be entitled to credit for two-thirds (2/3) of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 1,066 hours, calculated at the rate of pay in effect on the date of such termination. This credit shall be applied toward monthly health insurance premiums or toward long-term care insurance premiums, beginning on the effective date of termination. The City's obligation to pay such premiums to the Association on behalf of the employee shall be terminated when the total credit as described above has been exhausted. 3. After 20 years of cumulative full-time service with the City, each qualified employee shall be entitled to one of two options: (a) payment for 1/3 of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 533 hours, at the rate of pay in effect on the date of such termination, or (b) credit for 2/3 of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 1,066 hours, as 43 25C-47 defined in' 2" above. 4. After 25 years of cumulative full-time service with the City, each qualified employee shall be entitled to one of two options: (a) payment for 2/3 of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 1,066 hours, at the rate of pay in effect on the date of such termination, or (b) credit for 2/3 of the total sick leave benefit credited to his or her account upon the effective date of such termination, not to exceed a maximum limit of 1,066 hours, as defined in' 2" above. 5. A lump sum payment shall be made to the beneficiaries of any eligible employee whose death occurs while such employee is an active employee of the City, such payment to be in the amount of 1/3 of the total sick leave benefit credited to the employee's account at the time of his or her death, and at the rate of pay effective on the date of death. 6. Upon the death of any retired employee receiving a benefit under this provision said benefit will continue to be provided on behalf of said retired employee to his or her beneficiary. 11.2 Bereavement Leave. An employee shall be granted up to three (3) days leave without loss of pay in case of death of a member of the employee's immediate family. For purposes of this Section only, a "day" shall be defined as the number of hours of work that an employee is required to work according to his/her specific workday schedule. Such leave is designated as bereavement leave. "Immediate family" as used in this section is limited to: A. Any relative by blood or marriage who is a member of the employee's household; B. A parent, parent -in-law, stepparent, spouse, registered domestic partner, child, brother, stepbrother, sister, stepsister, grandparent or grandchild of the employee, regardless of residence; C. Any other relative of the employee by blood or marriage where it can be established by the employee that as a result of such relative's death, the employee's presence is required. 11.3 Military Leave. A. Proof of Orders and Reinstatements. An employee shall be granted military leave if he or she furnishes the Chief Personnel Officer satisfactory proof of his or her orders to report for duty. Upon return and upon showing proof of actual service pursuant to such orders, he or she will be reinstated as provided in Section 9-143 of the Santa Ana Municipal Code. B. Temporary. Members of the reserve forces of the United States, or the National Guard, granted temporary leave when ordered to duty, in accordance with the 44 25C-48 Military and Veterans Code and Section 9-144 of the Santa Ana Municipal Code, will be granted leave with pay not to exceed thirty (30) working days in each calendar year after one year's service with the City upon presenting satisfactory proof of orders to and from such temporary active duties. 11.4 Jury and Witness Leave. When an on -duty employee is called to serve as a juror or a non- party witness in any court action he or she shall be allowed leave for the time actually required for such service, without loss of pay. Each on -duty employee called for such service shall present to the Police Chief for examination the subpoena calling him or her to such service and shall pay into the City Treasury the fees collected for such service, with the exception of reimbursement for transportation expenses, if any. Refer to Departmental Order 396 - Jury Duty for specifics. 11.5 Examination Leave. Employees participating in examinations conducted during their normal working hours for positions in the competitive service of the City of Santa Ana will be granted leave with pay for the time actually required, without loss of any accrued vacation or compensatory time off benefits. 11.6 Unauthorized Absence. Unauthorized absence from duty for any duration of time may be considered cause for dismissal. Absence from duty without leave for five (5) consecutive working days shall be deemed a resignation from the service; provided, however, if upon return to duty the person so absenting himself makes an explanation satisfactory to the Police Chief of the cause of his absence, the Police Chief may restore him to his position, with the City Manager's approval. 11.7 Authorized Absence Without Pay. Absence without pay not to exceed five (5) consecutive working days, may be authorized by the Police Chief. Absence without pay not to exceed fifteen (15) calendar days may be authorized by the department with the approval of the City Manager. Such absences may be authorized only if in the judgment of the Police Chief they serve the best interest of the City. 11.8 Authorized Absence Without Pay - Long Term. Upon receipt of a written request from an employee having permanent status plus action by the Police Chief recommending approval of the request, the City Manager may grant a leave of absence for up to six (6) months. An employee returning to duty with the City shall inform the Police Chief and chief personnel officer of his or her intention at least thirty (30) calendar days prior to the expiration of the six (6) months period or shorter period if the full six (6) months is not taken. Upon receipt of such notice, the Police Chief will take steps necessary to restore the employee to his or her former position. 11.9 Adnunistrative Leave. The City Manager is authorized to grant, at his discretion, administrative leave with or without pay for permanent employees if, in his opinion, such a leave is in the interests of the City. 4,5 25C-49 11.10 Industrial Leave. A. Each "safety member" employee covered by the provisions of Labor Code Section 4850 who is compelled to be absent from duty because of an illness or injury covered by the State of California Workers' Compensation Insurance and Safety Act shall, in lieu of temporary disability compensation payable under the aforementioned Act, continue to be paid his or her normal salary and accrue other benefits in accordance with the provisions of Labor Code Section 4850. B. Any period of time during which an employee is required to be absent from his or her position by reason of an industrial injury or industrial illness for which he or she is entitled to receive compensation shall not be considered a break in continuous service for the purpose of his or her right to salary adjustment or to the accrual of vacation and seniority. 11.11 Catastrophic Leave Donation. In order to assist employees otherwise granted leave of absence without pay by the City Manager because of a catastrophic, non -industrial medical condition or injury, the City and Association agree to implement a Catastrophic Leave Donation Program. A. Guidelines. It shall be understood that all donations under this procedure are voluntary and subject to taxation for the recipient. Employees may donate vacation or compensatory time or holiday leave time to the eligible employee. In no event shall sick leave be donated. 2. Employees shall be provided a two-week period to submit donations. Donations received after this two-week period shall not be processed. The two-week period for each case shall be designated by the Police Chief or his designee as provided herein below. If all previous time donated has been exhausted, the recipient may request a new donation period be designated by the Police Chief or his designee as provided herein below. 3. All vacation, compensatory time or holiday leave time donations must be made in two (2) hour increments. There is no limit on the amount of the donation that can be made. 4. Any authorization of donations not made in accordance with the procedures outlined in Section C, subparagraph 2 below, will not be processed. 5. All donations shall be irrevocable. 6. In the event the recipient returns to work before leave donations have been exhausted, any balance on the books shall be accrued by the recipient and designated as sick leave and may be used pursuant to Article XI, Sections 11.1A through 11.lK above. 46 25C-50 B. El4dbility. Full-time employees shall be eligible for catastrophic leave donations if the following criteria are met: When it is reasonably foreseeable that all accrued time on the books, such as sick leave, compensatory time, vacation, and in lieu holidays, will be exhausted and the employee's illness will continue past the time when the employee will be on paid status. 2. The Police Chief or his designee has approved a written request for donations accompanied by a medical statement from the employee's attending physician. The attending physician's statement must verify the employee's need for an extended medical leave and an estimate of the time the employee will be unable to work. C. Procedure. 1. Upon receipt of a valid request for donations from an eligible employee, the Police Chief or his designee shall post a notice of the eligible employee's need for donations on bulletin boards accessible to employees. No confidential medical information shall be included in the posted notice. 2. Employees wishing to donate time to an eligible employee must sign his or her authorization of the transfer of such donated time and provide: a. His or her name, department name, and employee number; b. The number of hours of compensatory, holiday or vacation time of the donation within the limitations of Section A, subparagraph 3 above; G. The name, department, and employee number of the recipient; d. A statement indicating that the donor understands such donation of time is irrevocable. At the close of the two-week donation period, the department shall verify that each donating employee has accrued vacation, holiday and/or comp time balances sufficient to cover the designated donation. 4. The department shall submit all approved donation authorizations for an eligible employee at one time for processing. No donation authorizations for the eligible employee will be processed after this period. However, employees who receive donations under this procedure and who exhaust all donated hours may request an additional donation period subject to the provisions of Section A, herein. <47 25C-51 5. The City shall add the donated time to the recipient's sick leave account. D. Upon the death of any active employee receiving a benefit under this provision, the City agrees to pay any unused Catastrophic Leave Donations remaining on the books to the surviving beneficiary. E. For those current employees with unused catastrophic leave on the books, the City agrees to convert said unused catastrophic leave to sick leave for use in accordance with the provisions of Article XI, Sections 11.1 A through 11.1 K above. 11.12 Assignment Denarhnental Seniority Employees covered by this MOU who are authorized to be on an unpaid medical leave for twelve (12) weeks or less shall continue to accrue seniority related to their particular assignment, as it relates to the badge number list or for any other purpose concerning Police Department Operations for which seniority is considered. Once such leave of absence exceeds twelve (12) weeks, the employee will no longer accrue seniority (for all purposes, including, but not limited to his/her classification, assignment or rank). While such employee will not lose any of the seniority he/she has previously earned, by not continuing to accrue seniority at that point, others who previously were less senior may become more senior than such employee for seniority purposes in the Department. 48 25C-52 ARTICLE XII 12.0 EMPLOYEE INSURANCE 12.1 During the term of this MOU the City will contribute toward the payment of premiums for health, dental and long-term disability insurance plans administered by the Association for the benefit of the employees represented by the Association as follows: A. Medical Insurance. The City will contribute $1,510.00 per month to the Santa Ana Police Officers Association Medical Insurance Trust Fund for each affected employee enrolled in medical insurance plans provided by the Association for its bargaining unit members and their eligible dependents. Any contributions necessary to maintain benefits under the plans in excess of the aforementioned amount per month shall be borne entirely by the Association and/or the enrollee. B. Life Insurance. The City shall maintain in effect for the term of this MOU its existing life insurance plan for employees covered by this MOU on the same basis as said plan was offered to employees as of December 31, 1988 except the term life insurance coverage for each affected employee will be in the amount of twenty thousand dollars ($20,000), plus twenty thousand dollars ($20,000) accidental death and dismemberment (AD + D) coverage, at no cost to the employee. 12.2 Retiree Health Insurance Plan. Members retiring on or after July 1, 1997, may be provided health insurance premium reduction assistance. All bargaining unit employees and the Association shall hold the City harmless, defend and indemnify the City for any claims regarding the administration of, or the payment of, claims under any Association designed retiree health insurance benefit plan. 12.3 Employees on unpaid leave of more than fifteen (15) calendar days shall not receive the City's contribution toward any insurance coverage. The Police Department will notify the Association of all employees on unpaid leave or who separate from City employment within three (3) working days. The City will continue the payment of contribution for insurance coverage until the end of the month in which the Association had received notice from the City of the employee's separation from employment. 49 25C-53 ARTICLE XIII 13.0 RETIREMENT 13.1 General. The City shall continue to make contributions to the California Public Employees' Retirement System (CaIPERS) in accordance with its contract with CalPERS for employees covered by said contract as amended. 13.2 Deferred Retirement. The City shall continue to make payment to CalPERS on behalf of each employee covered by this MOU in accordance with the following schedule: A. With respect to Safety employees covered by this MOU who do not qualify as "New Members" under the California Public Employees' Pension Reform Act of 2013 (PEPRA), the City shall pay an amount equal to nine -ninths (9/9ths) of his or her individual employee retirement contribution. B. With respect to Miscellaneous employees covered by this MOU who do not qualify as "New Members" under the California Public Employees' Pension Reform Act of 2013 (PEPRA) the City shall pay an amount equal to eight -eighths (8/8ths) of his or her individual employee retirement contribution. Such payments shall be credited to the individual employee's CaIPERS account Such payments are not increases in base salary and no salary rate range applicable to any of the employees covered by this MOU shall be changed or deemed to have been changed by reason thereof. As a result, the City will not treat these payments as ordinary income and thus, will not withhold federal or state income tax from said payments. The City has received an opinion or ruling from the Internal Revenue Service confirming that these payments are deferred compensation, not ordinary income. In the event that the City receives a subsequent ruling from the Internal Revenue Service that such payments are ordinary income of the employees instead of deferred compensation, the City's obligation to make such payments shall discontinue and in place thereof the base salary of each affected employee shall forthwith be increased by eighteen (18) salary rate ranges (9.0%) for Sworn Safety employees who do not qualify as "New Members" and sixteen (16) salary rate ranges (8.0%) for Miscellaneous employees who do not qualify as "New Members" covered by this MOU. For the purpose of reporting an employee's compensation to CalPERS, the City shall include these payments as if they were apart of the employee's base salary. 13.3 CaIPERS Fourth Level of 1959 Survivors Benefits. The City will provide CalPERS fourth level of. 1959 Survivors Benefit to all eligible employees in the unit. >0 25C-54 13.4 CalPERS Pre -Retirement Optional Settlement 2 Death Benefit. The City shall provide the Ca1PERS Pre -Retirement Optional Settlement 2 Death Benefit to all employees covered by this MOU. 13.5 Military Service Credit as Public Service. Safety employees, and Miscellaneous employees, respectively, may elect to purchase up to four (4) years of service credit for any continuous active military or merchant marine service prior to employment. The employee must contribute an amount equal to the contribution for current and prior service that the employee and the employer would have made with respect to that period of service. The City agrees that, as soon as practicable following Council approval of this MOU and amendment to the CalPERS contract, employees who elect to purchase service credit may do so on a "pre-tax" basis. 13.6 3% at 50 Service Retirement Benefit for Safety employees. The City contracts with CalPERS to provide Safety employees who do not qualify as "New Members" under PEPRA with the 3% at 50 Service Retirement benefit. All Safety employees who do not qualify as "New Members" under PEPRA shall pay nine percent (9%) of their salary to pay for the employer portion of the City's Ca1PERS contribution. Effective January 1, 2018 all Safety employees who do not qualify as "New Members" under PEPRA shall pay twelve percent (121/6) of their reportable salary to pay for the employer portion of the City's CalPERS contribution. This payment shall be paid in accordance with Government Code Section 205160. Pre -Taxable Benefit. To the extent permitted by CalPERS and Internal Revenue Service regulations, the City shall make the above employee deductions pre-tax contributions. 13.7 2.7% (a 57 Service Retirement Benefit for "New Member" Safety employees. The Citv a egr es to provide Safety employees who are defined as "New Members" within the meaning of the California Public Employees' Pension Reform Act (PEPRA) of 2013 with the 2.7% @ 57 Service Retirement benefit. PEPRA went into effect on January 1, 2013. The parties agree that if there is any other clean up or other retirement legislation which goes into effect during this MOU and if there are provisions of that legislation which, by law, automatically goes into effect, either party may request to negotiate over the legislation, including over the impact. Final compensation will be based on the highest annual average compensation eamable during the 36 consecutive months immediately preceding the effective date of his or her retirement, or some other 36 consecutive month period designated by the member. Employees covered under the 2.7% @ 57 retirement formula shall pay one half of the normal cost rate as established by CalPERS. For the fiscal year 16-17, CalPERS established that one half of the normal cost rate is 12.25%. The rate for fiscal year 17-18 is still to be determined by CalPERS. 51 25C-55 Pre -Taxable Benefit. To the extent permitted by CalPERS and Internal Revenue Service regulations, the City shall make the above employee deductions pre-tax contributions. 13.8 2.7% at 55 Service Retirement Benefit for Miscellaneous employ. The City contracts with CalPERS to provide Miscellaneous employees who do not qualify as "New Members" under PEPRA with the 2.7% at 55 Service Retirement benefit. The employee's contribution rate for Miscellaneous employees who do not qualify as "New Members" under PEPRA will be to eight (85/6) percent of their salary. All employee contributions for retirement benefits are paid to the employer portion of the City's CalPERS contribution. This payment shall be paid in accordance with Government Code section 205160. Pre -Taxable Benefit. To the extent permitted by CalPERS and Internal Revenue Service regulations, the City shall make the above employee deductions pre-tax contributions. 13.9 2% 0, 62 Service Retirement Benefit for "New Member" Miscellaneous employ The City agrees to provide Miscellaneous employees covered by this MOU who are defined as "New Members" within the meaning of the California Public Employees' Pension Reform Act (PEPRA) of 2013 with the 2% @ 62 Service Retirement benefit PEPRA went into effect on January 1, 2013. The parties agree that if there is any other clean up or other retirement legislation which goes into effect during this MOU and if there are provisions of that legislation which, by law, automatically goes into effect, either party may request to negotiate over the legislation, including over the impact. Final compensation will be based on the highest annual average compensation eamable during the 36 consecutive months immediately preceding the effective date of his or her retirement, or some other 36 consecutive month period designated by the member. Employees covered under the 2% @ 62 retirement formula shall pay one half of the normal cost rate as established by CalPERS. For the fiscal year 16-17, CalPERS established the rate as 5.5%. The rate for fiscal year 17-18 is still to be determined by CalPERS. Pre -Taxable Benefit. To the extent permitted by CalPERS and Internal Revenue Service regulations, the City shall make the above employee deductions pre-tax contributions. 13.10 Credit for Unused Sick Leave. All employees covered by this MOU can have unused accumulated sick leave at the time of retirement converted to additional service credit, pursuant to regulations prescribed by PERS. The City must report only those hours of unused sick leave that were accrued by the employee during the normal course of employment. This section applies to members whose effective date of retirement is within four (4) months of separation from employment. 52 25C-56 ARTICLE XIV 14.0 RELEASE TIME FOR ASSOCIATION REPRESENTATIVE During the term of this MOU, the City agrees to grant fiill-time release from duty for one (1) Association representative for the conduct of Association affairs subject to the following: 14.1 The POA Association President cost shall be paid one hundred percent (100%) of salary including any salary additives, such as career incentive pay, confidential premium pay, benefit costs and pension cost. All Association members shall donate one floating holiday annually to city as reimbursement for 100% of the cost of the Association President salary, additives, such as career incentive pay, pension and benefit costs. A. The City shall pay the POA President a "Confidential Premium" in lieu of 20 hours per pay period at time and one-half. This premium is contained in the California Public Employees' Retirement Law (PERL) and is described as "compensation to rank and file employees who are routinely and consistently assigned to sensitive positions requiring trust and discretion." The parties agree that the value of this premium shall be equivalent to 28 hours of pay at straight time per payperiod. The rate paid shall be tied to the incumbent's rank. The POA agrees that the acceptance of said compensation as described in section E as "PERSable" is subject to PERS approval and if it is determined that said compensation is not "PERSable" the City is not obligated to provide additional benefits. B. The Police Chief shall allow on -duty time, (up to three days) for five board members, once per year, to attend the Peace Officers' Memorial. The Police Chief shall allow on -duty time (up to four days) for five board members, once per year, to attend the Fraternal Order of Police ("FOP") training. POA will pay for all costs for the board members attendance at said events, including per diem, travel, hotel, etc. If the Memorial or FOP falls on a board members normal day off, they will not receive on -duty pay for attendance. C. The City agrees to grant up to a total of sixty hours (60) per fiscal year on a non- cumulative basis to enable the POA members, officers, worksite leaders/stewards, to conduct Union business and assist other bargaining unit employees in processing grievances under the Grievance Review Procedure; provided, however, that such POA members officers, worksite leaders/stewards and aggrieved employees shall make advance arrangement with their supervisors prior to absenting themselves for such purpose. The officers, worksite leaders/stewards and aggrieved employees shall be required by the City to record and report to their supervisors the work time spent in assisting other bargaining unit employees pursuant to this provision of the MOU. 14.2 The Association shall provide an insurance policy or policies, or certificate of such insurance, naming the City of Santa Ana, its officers, employees and agents as insured or 53 25C-57 additional insured, which provides coverage against liability for any and all claims and/or suits for damages or injuries to persons or property resulting from or arising out of any act or omission of said Association representative. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than the following minimum amounts: One million dollars ($1,000,000.00) combined single limit or its equivalent. Said policy or policies shall also contain a provision that no termination, cancellation or change of coverage of insured or additional insured shall be effective until thirty (30) days' notice thereof has been given in writing to the City of Santa Ana. 14.3 The Association shall provide the City of Santa Ana with an insurance certificate from a workers' compensation insurance carrier certifying that it carries primary workers' compensation insurance on behalf of said Association representative and the policy shall not be cancelled nor the coverage reduced except upon ten (10) days' prior notice to the City of Santa Ana. 14.4 The Association shall indemnify and save harmless the City of Santa Ana, its officers and employees, from and against any and all damage to property or injuries to or death of any person or persons, including property and employees or agents of the City of Santa Ana, and shall defend, indemnify and save harmless the City of Santa Ana, its officers and employees, from any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers' compensation claims, resulting from or arising out of the negligent acts, errors, or omissions, or arising out of the intentional or malicious acts of Association's representative. 14.5 The Association and the City of Santa Ana agree that the Association's representative will not be required to carry out any peace officer's duties during such time that the Association's representative is on such full-time release from duty. The Association's representative will be required to comply with the Rules and Regulations of the Santa Ana Police Department as they apply to off-duty employees, except such representative will not be required to report for duty for any purpose. 14.6 Upon return to duty from such full-time release, the Association's representative shall be restored to the same position without loss of any benefits as he or she would have occupied or accrued if there had been no disruption in duty status. The Association agrees that since the Association representative does not report for duty or account to the City for his or her sick leave or vacation time, that vacation and sick leave accruals shall be treated as follows: A. The Association representative shall accrue eight (8) hours of sick leave each month until the accrued sick leave total reaches a maximum of 1600 hours. B. Vacation shall be accrued pursuant to Article X of the POA MOU. 54 25C-58 ARTICLE XV 15.0 SAFETY 15.1 The City and the employees of the City agree to comply with all applicable federal, state and local laws, and City of Santa Ana regulations, which relate to health and safety. ARTICLE XVI 16.0 RESIDENCY 16.1 To the extent possible, the City shall perform any and all acts necessary to remove limitations upon where employees reside who are covered by this MOU. At the discretion of the Police Chief, selected special duty assignments may be designated as rapid response assignments. In those instances, the Police Chief may apply specific residency requirements upon members assigned to those positions. [This space intentionally left blank] 5.5 25C-59 ARTICLE XVII 17.0 DISCIPLINE 17.I A. Any permanent employee covered by this MOU may only be disciplined in accordance with the standards and procedures and subject to all rights of appeal set forth in Santa Ana Municipal Code Sections 9-9, 9-10, 9-118.1, et seq. Any probationary employee covered by this MOU may be disciplined in accordance with the standards and procedures set forth in Santa Ana Municipal Code Sections 9-90, 9-91, 9-118, and subject to review in accordance with the grievance review procedure contained in this MOU. B. Upon request from the City the Union agrees to a reopener to Meet and Confer over changes to the Disciplinary Hearing process including but not limited to the use of a Hearing Officer and changes to the City Charter and/or the Municipal Code referencing the Disciplinary hearing process and the Personnel Board. 17.2 In addition, a new section shall be added to the Municipal Code to provide as follows: A. In the event an employee is ordered to absent himself from the job based on probable cause and it is subsequently determined by the Police Chief, the City Manager, Personnel Board or a court of competent jurisdiction, that cause did not exist for the ordered absence, the employee shall have restored to him any paid leaves of absence against which such absence may have been charged, and he shall be granted a retroactive leave of absence with pay for the time during which he was prohibited from performing the duties of his position, less any compensation paid to him by the City during such ordered absence unless such employee waives his/her rights to retroactive pay. B. In the event an employee is reduced, suspended and/or discharged, and upon appeal the City Manager, Personnel Board or a court of competent jurisdiction does not sustain such reduction, suspension, and/or discharge, the employee shall be entitled to his base rate or salary including all additives, vacation, and sick leave as if such unsustained reduction, suspension, or discharge had not been invoked. However, in no event shall an employee be entitled to any salary or credit for vacation and sick leave for any period of time covered by a suspension sustained on appeal or for any period of time waived by the employee as a condition to the granting of a continuance of any hearing on appeal. C. If, during an absence for which an employee is paid pursuant to this Section, he earned any money which he would not have earned had he continued to perforin the duties of his position, such sum shall be deducted from the salary otherwise payable to him pursuant to this Section. 56 25C-60 ARTICLE XVIII 18.0 GRIEVANCE REVIEW PROCEDURE 18.1 Definition of Grievance. A grievance shall be defined as a timely complaint by an employee or group of employees or the Association concerning the interpretation or application of specific provisions of this MOU, or of the rules and regulations governing personnel practices or working conditions of the City; except, however, those matters specifically assigned to the jurisdiction of the City Personnel Board by provision of the City Charter and the Civil Service Rules and Regulations, No employee shall suffer any reprisal because of filing or processing of a grievance or participating in the Grievance Review Procedure. 18.2 Informal Process. A. An employee must first attempt to resolve the grievance on an informal basis through discussion with his or her immediate supervisor without undue delay, but in no case, beyond a period of ten (10) calendar days after the occurrence of the alleged incident giving rise to the grievance, or when the grievant knew or should have reasonably become aware of the facts giving rise to the grievance. If the employee's grievance is directed against the actions of his or her immediate supervisor, the employee may initiate his or her grievance with his or her Division Commander. In such cases, the employee shall file his or her grievance directly with the Division Commander within ten (10) calendar days of the event. Response time lines will continue as designated for Division Commander and above. If the grievance is directed toward the Division Commander, the employee may file directly with the Bureau Commander. B. The Supervisor will respond to the grievance within seven (7) calendar days of receiving the grievance. C. If the grievance is not resolved at the immediate supervisor level, the employee, within ten (10) calendar days of the supervisor's response, will attempt to resolve the grievance on an informal basis through discussion with his or her Division Commander. The Division Commander will respond to the grievance within seven (7) calendar days of receiving the employee grievance. D. Every effort shall be made to find an acceptable solution to the grievance through this informal process. E. If the grievance is not resolved at the infornal level, the employee shall then set forth the grievance in writing, indicate the nature of the action desired, sign it, and submit it in duplicate to his or her Bureau Commander. At this point, the grievance review process becomes formal. Should the grievant fail to file a written grievance, and in the manner specified above, within ten (10) calendar days after receiving the 57 25C-61 response from his or her Bureau Commander, the grievance shall be barred and waived. 18.3 Formal Process. A. If the grievance is not resolved through the informal process, and a written grievance is filed within the time limits set forth above, the grievant's immediate supervisor and Division Commander will add their comments and any justification they consider proper, sign it, and forward it to their Bureau Commander without undue delay, or in no case, more than seven (7) calendar days after receiving the formal grievance. A copy shall be provided to the employee. B. The Bureau Commander, after study of the case, shall attach his or her decision and reasons therefore, and return them to the employee within seven (7) calendar days after receipt of the written grievance. C. If no satisfactory settlement has been reached at the division level, the employee may, within seven (7) calendar days after receipt of the Bureau Commander's decision may, in writing, request a meeting with the Police Chief to pursue the employee's grievance.. Failure of the grievant to take this action will constitute a waiver and bar to the grievance, and the grievance will be considered settled on the basis of the Bureau Commander's response. D. If the grievant files a written grievance to the Police Chief in the matter and within the time limits specified in "C" above, then a conference shall be held at the request of the employee or the Police Chief. E. The Police Chief shall inform the employee of his action within fourteen (14) calendar days of the filing of the written grievance with the Police Chief or the date the conference is held between the employee and the Police Chief. F. If no satisfactory settlement has been reached at the departmental level, the employee may, within seven (7) calendar days after being informed by the Police Chief of his decision on the matter, and the reasons thereof, submit the grievance in writing to the City Manager, or his duly authorized representative, for determination. Failure of the grievant to take this action will constitute a waiver and bar to the grievance, and the grievance will be considered settled on the basis of the Police Chief's response. The City Manager, or his representative, after careful review, shall render a final decision on the merits of the grievance, in writing, and return it to the grievant within twenty-one (21) calendar days after receiving the grievance. A copy of the written grievance to the City Manager, and of the City Manager's decision, shall be filed in the Personnel Records of the department and the grievant's personnel jacket maintained in the Personnel Services Department. 58 25C-62 G. After the procedure set forth in this Article has been exhausted, the grievant, the Association, and the City shall have all rights and remedies to pursue said grievance under the law. ARTICLE XIX 19.0 DUES DEDUCTION AND INDEMNIFICATION 19.1 Dues Deduction. The City shall deduct dues, on a regular basis, from the pay of all employees recognized to be represented by the Association, who voluntarily authorize such deduction, in writing, on a form to be provided for this purpose by the City. The City shall remit such funds to the Association within thirty (30) days following their deduction. 19.2 Indemnification. The Association agrees to hold the City harmless and indemnify the City against any claims, causes of actions, or lawsuits instituted by a member or members of the Association arising out of the deductions or transmittal or such funds to the Association, except the intentional failure of the City to transmit, to the Association, monies deducted from the employees pursuant to this Article. ARTICLE XX 20.0 CITY RIGHTS 20.1 The City reserves, retains, and is vested with, solely and exclusively, all rights of Management which have not been expressly abridged by specific provision of this MOU or by law to manage the City, as such rights existed prior to the execution of this MOU. The sole and exclusive rights of Management, as they are not abridged by this MOU or by law, shall include but not be limited to the following rights: A. To manage the City generally and to determine the issues of policy. B. To determine the existence or non-existence of facts which are the basis of the Management decision. C. To determine the necessity of organization of any service or activity conducted by the City and expand or diminish services. D. To determine the nature, manner, means, and technology, and extent of services to be provided to the public. E. To determine methods of financing. To determine types of equipment or technology to be used. 59 25C-63 G. To determine and/or change the facilities, methods, technology, means, and size of the work force by which the City operations are to be conducted. H. To determine and change the number of locations, relocations, and types of operations, processes, and materials to be used in carrying out all City functions including, but not limited to, the right to contract for or subcontract any work or operation of the City. I. To assign work to and schedule employees in accordance with requirements as determined by the City, and to establish and change work schedules and assigmnents. J. To relieve employees from duties for lack of work or similar non -disciplinary reason, subject to the provisions of the City Charter, Municipal Code, federal and state law and this MOU, K. To establish and modify productivity and performance programs and standards. L. To discharge, suspend, demote, or otherwise discipline employees for proper cause in accordance with the provisions and procedures set forth in the City Charter and Santa Ana Municipal Code. M. To determine job classifications and to reclassify employees. N. To hire, transfer, promote, and demote employees for non -disciplinary reasons in accordance with this MOU. O. To determine policies, procedures, and standards for selection, training, and promotion of employees. P. To establish employee performance standards including, but not limited to, quality and quantity standards and to require compliance therewith. Q. To maintain order and efficiency in its facilities and operations. R. To establish and promulgate and/or modify rules and regulations to maintain order and safety in the City which are not in contravention with this MOU. S. To take any and all necessary action to carry out the mission of the City in emergencies. 20.2 Except in emergencies, or where the City is required to make changes in its operations because of the requirements of law, whenever the contemplated exercise of Management's rights shall impact on a significant number of employees of the bargaining unit, the City agrees to meet and confer in good faith with representatives of the Association regarding the impact of the contemplated exercise of such rights prior to exercising such rights, unless the matter of the exercise of such rights is provided for in the MOU. 60 25C-64 The City and Association agree that upon the expiration of this contract and during the good faith negotiations for a subsequent contract, salary and benefits shall continue at the then current rate. ARTICLE XXI 21.0 STRUCES AND WORK STOPPAGES 21.1 Prohibited Conduct. A. The Association, its officers, agents, representatives, and/or members agree that during the term of this MOU, they will not cause or condone any unlawful strike, walkout, slowdown, sick-out or any other unlawful job action by withholding or refusing to perform services. B. Any employee who participates in any conduct prohibited in Subsection A above shall be subject to suspension, demotion or dismissal by the appointing authority. C. In addition to any other lawful remedies or disciplinary actions available to the City, if the Association fails, in good faith, to perform all responsibilities listed below in Section 21.2, Association Responsibility, the City may suspend any and all rights and privileges, accorded to the Association in this MOU, including but not limited to suspension of the Grievance Review Procedure and dues deduction. 21.2 Association Responsibility. In the event that the Association, its officers, agents, representatives, or members engage in any of the conduct prohibited in Section 21.1A of this Article, Prohibited Conduct, the Association shall immediately instruct any persons engaging in such conduct that their conduct is in violation of this MOU and unlawful, and they must immediately cease engaging in conduct prohibited in said Section 21.1A, and return to work. ARTICLE XXII 22.0 LAYOFFS 22.1 All layoffs within the competitive service occasioned by abolishment of a position, the combination of duties of two (2) or more positions, or the reduction in numbers of employees in a given class, shall be governed by seniority in the class. Reemployment shall be in reverse order of layoff. 22.2 Any promotional probationary employee laid off under these procedures who held permanent status in a lower class shall retain seniority rights in the previously held classification provided that it is still listed in the City's current basic classification and compensation plan. 61 25C-65 22.3 Any permanent, fill -time employee laid off render the above provisions may request a demotion to a position in a lower class provided he/she meets reasonably related qualifications required for placement in the class and the position is vacant. 22.4 In lieu of layoff, an employee may elect to work in a lower level classification, in which he or she has served, providing that classification is within the same job family/career ladder. In that event, the employee's length of service in the next lower classification will be added to his or her length of service in the affected classification, and said combined seniority shall be used to bump down into the next lower classification. This method of combining seniority shall be applied to subsequent lower classifications. 22.5 For positions that were advertised in the Police Department as "open and promotional" or "promotional only" which are open to Police Department employees only, there will be created a "job ladder" such that those employees in positions to be eliminated through layoff shall be entitled to return to the POA job classification in the Police Department from which they promoted, "bumping" any employee in that job class with less cumulative years of service in that job class than the bumping employee had in that job class prior to promotion. 22.6 Notice of Service. On request, a laid off employee shall receive a statement certifying that his/her services have been satisfactory. Layoff shall not be used in lieu of a disciplinary dismissal. ARTICLE XXIII 23.0 MISCELLANEOUS PROVISIONS 23.1 Reovener. The Association and City mutually agree to re -open the MOU to meet and confer on the subjects of: A. The use of body cameras; and B. Implementation of the Lexipol Policy Manual. 23.2 Uniform Allowance. With respect to Safety and Miscellaneous employees who do not qualify as "New Members" under the California Public Employees' Pension Reform Act (PEPRA), the City shall report to Ca1PERS the monetary value of uniforms and uniform maintenance for those employees required to wear uniforms. The monetary value by classification is listed in Exhibit B, entitled "Uniform Allowance by Classification." The value of the Uniform Allowance shall be determined by the City and will be reported to the California Public Employees' Retirement System (CaIPERS) for retirement purposes only. Under CCR 57l(a), Uniform allowance is defined as "Compensation paid or the monetary value for the purchase, rental and/or maintenance of required clothing, including clothing 62 25C-66 made from specially designed protective fabrics, which is a ready substitute for personal attire the employee would otherwise have to acquire and maintain. This excludes items that are solely for personal health and safety such as protective vests, pistols, bullets and safety shoes. ARTICLE XXIV 24.0 SOLE AND ENTIRE AGREEMENT 23.1 It is the intent of the parties hereto that the provisions of this MOU shall supersede all prior agreements and memoranda of agreement, or memoranda of understanding, or contrary salary and/or personnel rules and regulations or administrative codes, provisions of the City, oral and written, expressed or implied, between the parties, and shall govern the entire relationship and shall be the sole source of any and all rights which may be asserted hereunder. This MOU is not intended to conflict with federal or state law or the City Charter. 23.2 The City will continue to administer its employee relations and its personnel policies and procedures in accordance with duly -adopted ordinances and resolutions, and the affected employees will continue to be governed thereby during the term of this MOU. ARTICLE XXV 25.0 WAIVER OF BARGAINING DURING THE TERM OF THIS MOU 25.1 During the tern of this MOU, the parties mutually agree that they will not seek to negotiate or bargain with regard to wages, hours, and terms and conditions of employment, whether or not covered by the MOU or in the negotiations leading thereto, unless required by specific provisions of this MOU, and irrespective of whether or not such matters were discussed or were even within the contemplation of the parties hereto during the negotiations leading to this MOU. Regardless of the waiver contained in this Article, the parties may, however, by mutual agreement, in writing, agree to meet and confer about any matter during the term of this MOU. ARTICLE XXVI 26.0 SEPARABILITY PROVISION 26.1 Should any provision of this MOU be found to be inoperative, void, or invalid by a court of competent jurisdiction, all other provisions of this MOU shall remain in full force and effect for the duration of this MOU, provided that if any such affected provisions invalidate or void any benefits of employees covered hereunder, the parties shall forthwith commence negotiations to replace the invalidated benefits with benefits of comparable value. fib 25C-67 ARTICLE XXVII 27.0 TERM OF MOU 27.1 The term of this MOU shall be from July 1, 2017 through June 30, 2018. [This space intentionally left blank] 64 25C-68 ARTICLE XXVIII 28.0 RATIFICATION AND EXECUTION 28.1 The City and the Association have reached an understanding as to certain recommendations to be made to the City Council for the City of Santa Ana and have agreed that the parties hereto will jointly urge said Council to adopt a new wage and salary resolution which will provide for the changes contained in said joint recommendations. The City and the Association acknowledge that this Memorandum of Understanding shall not be in full force and effect until ratified by the membership of the Association and adopted by the City Council of the City of Santa Ana. Subject to the foregoing, this Memorandum of Understanding is hereby executed by the authorized representatives of the City and the Association and entered into this 5`h day of July, 2017. CITY OF SANTA ANA, a Municipal Corporation of the State of California Dated: By: MAYOR Dated: By: INTERIM CITY MANAGER Dated: By: EXECUTIVE DIRECTOR - PERSONNEL SERVICES ATTEST: CLERIC OF THE COUNCIL APPROVED AS TO FORM: &'�' K. v"','� (1,,,A, CITY ATTORNEY 65 25C-69 This MOU has been ratified by the membership of the Santa Ana Police Officers Association. Dated: SANTA ANA POLICE OFFICERS ASSOCIATION LH Gerry Serrano PRESIDENT 66 25C-70 EXHIBIT A BASIC SALARY AND WAGE SCHEDULE 25C-71 I 0 1 2 3 4 5 6 7 8 9 41 1542 1549 1557 1565 1573 1580 1588 1596 1604 1612 42 1619 1627 1635 1643 1651 1659 1668 1676 1684 1693 43 1700 1708 1717 1725 1734 1742 1751 1760 1769 1778 44 1785 1793 1802 1811 1820 1830 1839 1848 1857 1866 45 1874 1883 1892 1902 1911 1921 1930 1940 1950 1960 46 1968 1977 1987 1997 2007 2017 2027 2037 2048 2058 47 2066 2076 2086 2097 2107 2118 2128 2139 2150 2160 48 2169 2179 2190 2201 2212 2223 2234 2246 2257 2268 49 2277 2288 2299 2311 2322 2334 2346 2357 2369 2381 50 2391 2402 2414 2427 2439 2451 2463 2475 2488 2500 51 2511 2523 2536 2548 2561 2574 2587 2600 2613 2626 52 2637 2650 2663 2676 2690 2703 2717 2730 2744 2758 53 2769 2782 2796 2810 2824 2838 2853 2867 2881 2896 54 2907 2921 2936 2950 2965 2980 2995 3010 3025 3040 55 3052 3067 3082 3098 3113 3129 3144 3160 3176 3192 56 3205 3221 3237 3253 3269 3285 3302 3318 3335 3352 57 3365 3381 3398 3415 3432 3449 3467 3484 3501 3519 58 3533 3550 3568 3586 3604 3622 3640 3658 3676 3695 59 3710 3728 3747 3765 3784 3803 3822 3841 3861 3880 60 3896 3915 3935 3954 3974 3994 4014 4034 4054 4074 61 4091 4111 4132 4152 4173 4194 4215 4236 4257 4278 62 4296 4317 4339 4360 4382 4404 4426 4448 4470 4493 63 4511 4533 4556 4579 4601 4624 4648 4671 4694 4718 64 4741 4764 4787 4810 4834 4858 4882 4906 4930 4954 65 4978 5002 5026 5051 5076 5101 5126 5151 5176 5201 66 5226 5252 5278 5304 5330 5356 5382 5408 5434 5461 67 5488 5515 5542 5569 5596 5623 5650 5678 5706 5734 68 5762 5790 5818 5847 5876 5905 5934 5963 5992 6021 69 6050 6080 6110 6140 6170 6200 6230 6260 6291 6322 67 25C-71 I 70 6353 6384 6415 6446 6478 6510 6542 6574 6606 6638 71 6670 6702 6735 6768 6801 6835 6869 6903 6937 6971 72 7005 7039 7073 7107 7141 7176 7211 7247 7283 7319 73 7355 7391 7427 7463 7499 7535 7571 7609 7647 7685 74 7723 7761 7799 7837 7875 7913 7951 7989 8029 8069 75 8109 8149 8189 8229 8269 8309 8349 8389 8431 8473 76 8515 8557 8599 8641 8683 8725 8767 8809 8853 8897 77 8941 8985 9029 9073 9117 9161 9205 9250 9296 9342 78 9388 9434 9482 9529 9577 9625 9673 9721 9770 9819 1 79 9857 9906 9955 10005 10055 10105 10156 10207 10258 10309 80 10350 10401 10453 10506 10558 10611 10664 10717 10771 10825 81 10868 10922 10976 11031 11086 11142 11198 11254 11310 11366 82 11411 11468 11525 11583 11640 11699 11757 11816 11875 11934 ! 83 11982 12041 12102 12162 12223 12284 12345 12407 12469 12532 84 12581 12643 12707 12770 12834 12898 12963 13027 13093 13158 85 13210 13275 13342 13409 13476 13543 13611 13678 13748 13816 86 13871 13939 14009 14079 14150 14220 14292 14362 14435 14507 87 14565 14636 14709 14783 14858 14931 15007 15080 15157 15232 88 15293 15368 15444 15522 15601 15678 15757 15834 15915 15994 68 25C-72 EXHIBIT B UNIFORM ALLOWANCE BY CLASSIFICATION Job Title Monthly Uniform Allowance Animal Service Officer I $15.42 Animal Service Officer II $15.42 Communications Services Officer $14.58 Correctional Officer $14.34 Correctional Supervisor $14.34 Forensic Specialist I $14.34 Forensic Specialist II $14.34 Parking Control Officer $14.58 Police Communications Supervisor $14.58 Police Community Services Specialist $14.58 Police Investigative Specialist $14.58 Police Property & Evidence Supervisor $14.58 Police Recruit $14.58 Police Officer $20.84 Police Sergeant $20.84 Police Officer (with Motor Officer Premium) $24.16 Police Sergeant (with Motor Officer Premium) $24.16 Police Service Officer $14.58 Police Services Dispatcher $14.58 Senior Parking Control Officer $14.58 Traffic Services Specialist $14.58 69 25C-73 25C-74 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 rt111i44 INVESTING IN THE ARTIST GRANT PROGRAM FISCAL YEAR 2017-2018 (STRATEGIC PLAN NO. 5, 5B) i r f� c� CITY ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Approve the Arts and Culture Commission's recommendations for Fiscal Year 2017-2018 Investing in the Artist Grant Opportunity in the amount of $67,500. 2. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute agreements with artists and art organizations awarded funds as part of the approved program, subject to non -substantive changes approved by the City Manager and City Attorney. ARTS AND CULTURE COMMISSION At its regular meeting on June 15, 2017, the Arts and Culture Commission (ACC) directed staff to transmit funding recommendations for the Investing in the Artist Grant Opportunity for fiscal year 2017-2018 to the City Council by a vote of 6:0 (Orozco absent). DISCUSSION The Investing in the Artist Grant Opportunity is intended to assist emerging and established artists and arts organizations who live and/or create work that enriches the Santa Ana arts community. The goal of the grant is to distribute small but impactful funds to artists, and arts and culture nonprofit organizations in Santa Ana. Funding will be provided through reimbursements for eligible Investing in the Artist grant expenses and will be awarded in the amounts of either $2,500 or $5,000 for individual artists, and $5,000 or $10,000 for arts organizations. A total of $70,000 is available to be awarded to selected artists and arts and culture nonprofit organizations. Depending on the proposal, grant funding for artists may be applied towards project expenses (including time, travel and research), equipment and supplies, and grant funding for organizations may be applied towards special events, special projects, equipment and supplies. 2513-1 INVESTING IN THE ARTIST GRANT PROGRAM FISCAL YEAR 2017-2018 July 5, 2017 Page 2 The Investing in the Artist Grant Opportunity is entering the 3rd year in 2017-2018. Applications were accepted between March 1, 2017 and May 1, 2017. Staff conducted two information sessions on March 16, 2017 and March 30, 2017. A total of 14 artists and 7 arts organizations applied. An outside panel consisting of artists, arts leaders and arts educators reviewed and rated a total of 21 applications. The applications were evaluated on the following criteria based on the applicant group: Artists (1) Project Merit - 40% (2) Artist Portfolio - 30% (3) Potential Community Impact - 20% (4) Individual Need - 10% Art Organizations (1) Project Merit - 50% (2) Organization Need - 25% (3) Potential Community Impact - 25% The rating results for both individual artists and art organizations are summarized below. Organizations: Applicant •Project Funding Requested Funding Recommended Expiration 82.0 Create a sculpture for Downtown $5,000 $5,000 Requested Funding Date Orange County $5,000 Summer intensive music camp for workshops Children's 90 youth offering string and $10,000 $10,000 6/30/2018 Therapeutic Arts woodwind instrument lessons. Center OCCTAC) Artwalk: Free public monthly Downtown Inc. 85,8 event featuring performances, $10,000 $10,000 6/30/2018 interactive exhibits and art activities. Summer youth arts camp offering Delhi Center 84.2 visual and performing arts $10,000 $10,000 6/30/2018 lessons. Santa Ana Unidos /Youth Arts 81.7 Community engagement arts $10,000 $10,000 6/30/2018 Collaborative/Faces events with youth and families. of Santa Ana TOTAL $40,000 Artists: Applicant Score Project Funding Requested 1 Recommended Funding Date Diana Markessinis 82.0 Create a sculpture for Downtown $5,000 $5,000 6/30/2018 Gene Jimenez 80.2 Free playwriting & theatre -making $5,000 $5,000 6/30/2018 workshops Priscila Hernandez 78.7 Free Community Art and Culture $5,000 $5,000 6/30/2018 Festival 25D-2 INVESTING IN THE ARTIST GRANT PROGRAM FISCAL YEAR 2017-2018 July 5, 2017 Paae 4 Grantees will be required to submit an interim and final report on outcomes achieved. The first payment will be disbursed at the commencement of the grant period and the second payment will be disbursed after completion of an interim report. Interim and final reports will require documentation for expenses paid, such as receipts, to support grant expenditures. Grantees will also be required to submit a worksheet detailing the date, time, and location of the workshop/event. Staff will provide the details of the workshops/events to City Council as they become available. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal 5 -Community Health, Livability, Engagement & Sustainability, Objective 5 (Promote a strong arts and culture infrastructure), Strategy B (Generate public and private support and resources to strengthen, expand and stabilize finding for the arts). FISCAL IMPACT Funds in the amount of $67,500 are anticipated to be available in the FY 2017-2018 Community Development Agency Strategic Plan Projects Loans and Grants account (no. 05218018-69152). c Robert C. Cortez Deputy City Manager City Manager's Office JG/gc Exhibits: 1. Draft Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Qb Executive Director Finance and Management Services Agency 25D-3 Series of paintings: A family's Dino Perez 76.3 migration $5,000 $5,000 6/30/2018 Rebecca Chernow 76.2 Decorative Plate Community Project $2,500 $2,500 6/30/2018 Bud Herrera 73.8 Create a mobile wall for public art $5,000 $5,000 6/30/2018 installations TOTAL $27,500 Grantees will be required to submit an interim and final report on outcomes achieved. The first payment will be disbursed at the commencement of the grant period and the second payment will be disbursed after completion of an interim report. Interim and final reports will require documentation for expenses paid, such as receipts, to support grant expenditures. Grantees will also be required to submit a worksheet detailing the date, time, and location of the workshop/event. Staff will provide the details of the workshops/events to City Council as they become available. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal 5 -Community Health, Livability, Engagement & Sustainability, Objective 5 (Promote a strong arts and culture infrastructure), Strategy B (Generate public and private support and resources to strengthen, expand and stabilize finding for the arts). FISCAL IMPACT Funds in the amount of $67,500 are anticipated to be available in the FY 2017-2018 Community Development Agency Strategic Plan Projects Loans and Grants account (no. 05218018-69152). c Robert C. Cortez Deputy City Manager City Manager's Office JG/gc Exhibits: 1. Draft Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Qb Executive Director Finance and Management Services Agency 25D-3 25D-4 ARTS AND CULTURE ARTIST GRANT PROGRAM AGREEMENT BETWEEN THE CITY OF SANTA ANA AND This Artist Grant Agreement ("Agreement") is made and entered this _ day of 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 ("City"), and (individual Artist/Organization Name) ("Grantee") and, collectively with City, the "Parties", is for the purpose of providing grant funding pursuant to the Arts and Culture Artist Grant Program. RECITALS: A. On June 15, 2017, the Arts and Culture Commission reviewed all applicants and recommended that Grantee be awarded an artist grant based on its Application for its artwork ("Project") attached hereto and incorporated herein as Exhibit A. B. On July 5, 2017, the City Council approved the grant funding for Grantee and authorized the execution of this Agreement. C. In undertaking the performance pursuant to this Agreement, Grantee represents that it is skilled and knowledgeable in the arts and culture arena and that the Project created or performed hereunder will be created or performed in compliance with such standards as may reasonably be expected from an artist. 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. 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. 2. Funding. 2.1, Subject to Grantee's performance of all required actions under this Agreement, City shall provide funding, in one or more disbursements, as reasonably determined by City, of 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 individuals or institutions for grant awards and an individual's or institution's business relationship or potential business relationship with City. 3. Grant Activities. Grantee agrees: 3.1. To perform the activities described in the Grant Application and Timeline submitted to City for consideration dated , a copy of which is attached as Exhibit A and incorporated into this Agreement as if set out in full. 3.2. To submit all reports (each, a "Report"), which shall include, at a minimum, the items set forth as required by the Application. No personally identifiable information shall be included in 2501-5 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 is 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. 3.3. 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. 3.4. 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 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. 3.5. Grantee shall ensure that any areas utilized for the Project are maintained and restored to a well-maintained, safe, sanitary, and clean condition, and kept free of any hazardous waste at all times. All equipment associated with the installation of the artwork, trash and debris shall be removed and cleaned up on a daily basis. Grantee shall place a drop cloth or similar barrier on the ground below the artwork while installation Is underway, which barrier shall be removed each day upon completion of an installation session. 3.6. The Project may not contain advertising, religious art, sexual content, negative or violent imagery, convey political partisanship or include any hidden, subliminal or camouflaged messages or statements of any kind or nature. 3.7. The Project may not include any breach of intellectual property, trademarks, brands, or images of illegal activity, and that the Grantee is the copyright holder for the Project. 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 25D-6 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, and 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 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. 6.3. 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. General Provisions. 7.1. Grantee shall acquire prior written permission from City for any use of the City name or logo in association with its Project. 7.2. 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. 7.3. 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. 7.4. Grantee shall comply with all governmental requirements which may now or in the future become applicable to its activities under this Agreement. 7.5. 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. 25D-7 7.6. 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 either party or its right at any time thereafter to require exact and strict compliance with provisions of this Agreement. 7.7. 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 7.8. This Agreement is subject to all applicable local, State and Federal laws. 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. 7.9. 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. 25D-8 7.10, 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. 7.11. Grantee grants to City a non-exclusive, irrevocable, transferable, royalty free, worldwide license to use, reproduce, display, distribute, and prepare derivative works, in any form or media at the discretion of the City for the Project conceived, performed or created as a result of this Agreement. 7.12. Grantee and any of the Grantee's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of the City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, work's compensation benefits, injury leave or other leave benefits. 7.13. Neither party shall assign any rights or obligations under this Agreement. 7.14. 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, 7.15. 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. 7.16. 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. 7.17. 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, {Signatures on following page} 25D-9 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 Manager's Office CITY OF SANTA ANA Cynthia J. Kurtz Interim City Manager E7 Z12 aq tall 9 Name: Title: 2501-10 ARTS AND CULTURE ARTIST GRANT PROGRAM APPLICATION 2501-11 25D-12 Name of Applicant: Amount Requested: Category: Score: Orange County $10,000 Organization 90.0 — 1St Therapeutic Arts Center Description of Project: OCCTAC is requesting a $10, 000 grant to continue to provide very talented at -risk youth from Santa Ana, with limited musical access and financial resources, an Intensive Summer Music Camp 5 days a week, 3 hours each day during one entire month. The students will learn and/or expand their musical skills during this intensive Summer Camp, and engage in community performances that will continue to build their self- esteem, community pride while creating beautiful music together! Our Summer Intensive Music Camp started last year, as an expansion of our Classical Music program, where students learned to play a string instrument of their choice (violin or viola) and/or a woodwinds instrument (flute, clarinet or saxophone). It was a great success and we enrolled close to 100 students in the program! This year, we propose to have the intensive camp again, and add one more string instrument (Cello) since we have received Cello donations for our agency! All students will have the opportunity to attend the camp 5 days per week, 3 hours each day for one entire month during the Summer; and engage in 3 rotations, of 45 minutes - 1 hour long rotations. The students will be divided into skill levels: 1) Beginner or intermediate Strings and/or Woodwinds Class, 2) Music Theory/Rhythm Class, and Ensemble work (Performing Class) with OCSA and Chamber Music group coaching, as well as individual Practice pullout sessions, and with the help of OCSA students and college volunteers/interns supporting our program. We plan to enroll 50 - 100 students again, and will be working closely this year with the OC School of the Arts volunteers, as well as other college volunteers. In addition, Chamber Music OC will once again provide music appreciation/history workshops and perform for our students, as part of their Community Outreach and Educational efforts! Community Benefit: This project will educate and enrich our Santa Ana students and their families about the beauty and richness of Chamber and Orchestral Music. Also, it will enrich the Santa Ana arts and culture community by bringing together professional musicians to perform in Santa Ana with our student population, and provide our community with this wonderful arts and cultural activity. 25D-13 Name of Applicant: Amount Requested: Category: Score: Downtown Inc. $10,000 Organization 85.8 — 2"d Description of Project: Since 1999, the "First Saturday" Artwalk in Downtown Santa Ana has been an epicenter of creativity, expression and inspiration for artists, art enthusiasts and those who simply want to engage in a vibrant, living city filled with culture. The event is the single best night of the month for Santa Ana artists and galleries because of the 4,000+ monthly attendees visiting around 20 galleries/museums, arts and artisan street vendors, live art performances and special events going on downtown simultaneously. Currently, Downtown Inc. holds the special event permit and covers insurance for the event, books the art vendors, live art and music on the Artists Village Promenade, hires a videographer and a photographer to document it, shares the event on social media and prints a downtown - wide event map each month. We have also helped coordinate with local artists and institutions like Santa Ana Unified School District and Santa Ana College who want to plug into Artwalk, or a specific business/gallery on Artwalk. However, it's important to note that the main engine behind Artwalk is the "unwritten" pact of dozens of special events and arts openings happening on the first Saturday of the month. That being said Downtown Inc. is Artwalk's primary facilitator and we view First Saturday Artwalk as a critical arts and culture engine for downtown that we support with approximately $15-20,000 or 15-20% of our annual budget, plus additional resources we've leveraged including the City of Santa Ana arts grant we received last year. Community Benefit: Artwalk is Santa Ana's monthly celebration of our shared, organic arts and culture scene. It's a chance for the arts community, arts institutions and creatives to encounter local families, visiting artists, art buyers and spectators. We believe Artwalk contributes to downtown being recognized as one of the top places for artists and creatives to work and visit in Orange County. Despite the presence of great artwalks in Laguna Beach, Huntington Beach and Fullerton -- Downtown Santa Ana's First Saturday Artwalk consistently wins "Best Artwalk" by OC Weekly editors and readers' choice. Lastly, our ability to hire and showcase local artists at Artwalk leads to real tangible opportunities for artists to further their craft and stay in Santa Ana to thrive. We would not be able to have made all this happen without the support of the City of Santa Ana's Investing in the Artist Grant 2501-14 Name of Applicant: Amount Requested: Category: Score: Delhi Center $10,000 Organization 84.2 — 3rd Description of Project: The Delhi Center Summer Arts Camp will provide challenging enrichment and cultural art lessons for 60 to 100 participants ages 6-18 including classes in singing, acting and improvisation, musical theater, hip hop, breakdance, popping, ballet, ballet folklorico, and art and illustration. Participants will have several different activities to choose from each week so that they are exposed to different art forms and artistic disciplines in order to increase their awareness and appreciation of the arts. The program will provide high-quality, personalized learning and instruction. Classes will be divided into different age groups and/or skill levels to ensure success for all students. The curriculum begins with foundational skills and progresses towards greater levels of complexity, creativity, and achievement. Lesson plans include developing teamwork and working with partners as well as independent practice. Students learn to follow instructions and become more self-confident by having the opportunity to master skills in a supportive environment. Program Leaders will assist instructors by supervising participants during non -class hours and will manage the free lunch program. The Summer Arts Camp will be conducted Monday through Friday from 7:30 am to 5:30 pm for 5 weeks from July 10 through August 11. A minimum of two classes per hour for a total of 10 classes per day will be conducted during the first 3 weeks and rehearsals and preparation for the Extravaganza will take place the final two weeks, with the production to be held during the last week. The Extravaganza will include a dance and singing recital, a musical theater rendition of a popular book or play, an art gallery, and a video presentation. The Delhi Center Summer Arts Camp is modeled after a pilot program that was conducted in the summer of 2016. The lessons learned last summer have been used to develop a more focused program that is expected to achieve greater participation and success. A video of the summer will be produced and presented during the end -of - summer Extravaganza and a second video of the Extravaganza itself will be produced to be presented at various events in the community as well as on the Delhi Center website and other social media sites. The Camp provides a way to achieve cultural equity, access, and inclusion in cultural arts programming by taking advantage of existing facilities that are underutilized that will be made available to the community for a wide range of artistic endeavors. The proposed program improves the quality of life of residents by engaging them in 25D-15 creative activities that are accessible in terms of affordability and location. It addresses the barriers that often prevent participation in the arts by ensuring involvement despite the inability to pay. The program encourages social and active participation in the arts, and provides an opportunity for children to showcase their accomplishments to the community. Community Benefit: The proposed project will enrich the Santa Ana arts and culture community by engaging young people in the arts and providing them with a variety of arts classes to give them maximum exposure to different visual and performing artistic genres to help them develop a long-term passion and commitment to the arts. The project will also serve as a vehicle to celebrate and share the artistic accomplishments of the students with their families and the community. The program provides a way to achieve cultural equity, access and inclusion in cultural arts programming for a community that has long been undeserved and faced with accessibility barriers to participation in creative opportunities. The program takes advantage of existing facilities that are underutilized that can be made available to the community for a wide range of arts activities that will increase awareness of the arts. A variety of visual and performing arts classes will be offered during the summer while children are out of school and can dedicate quality time to trying out different art genres, learning new skills, and identifying where their interests lie. Classes will be offered in a wide variety of visual and performing arts to provide maximum exposure to the arts. Also, parents will be asked to volunteer, which will bring more exposure to and participation in the arts to the entire family. Throughout the program, opportunities will be identified to conduct performances for the seniors and others who participate in Delhi Center programs, such as the Community Building Initiative Resident Leader Group and Delhi Neighborhood Association. This will provide a venue for program participants to engage in dress rehearsals while showcasing their talents for different community groups who can provide positive feedback. The end -of -summer Extravaganza will join the entire community in a celebration of the artistic accomplishments of participants. This will help promote the importance the arts play in the achievement of young people in our community. The program will demonstrate how the arts can help young people learn creativity, develop leadership skills, learn self-discipline, and develop self-esteem, and participants will receive recognition for their artistic endeavors. 25D-16 Name of Applicant: Amount Requested: Category: Score: Santa Ana $10,000 Organization 81.7 — 4t" Unidos/Youth Arts Collaborative/Faces of Santa Ana Description of Project: The Youth Arts Collaborative is a youth arts organization that works in collaboration with Santa Ana artists and local neighborhood to promote positive social change through the creation of community public art. Working side-by-side with Santa Ana artists, creative youth teams produce engaging works of art/public art events that are meaningful to both the teens and the neighborhood. Our goal is to collaborate, create art and impact community. We empower individuals and communities to create positive change through the visual arts and other art forms that embraces and celebrate communities. The Collaborators are Brian Peterson/Faces of Santa Ana (FOSA), Vicky Otero/Inspyr Arts, Joey Linnert/New Earth Life (NEL), Nellie LeGaspe —First American Arts Foundation (FAAF), and Johnathan Hernandez/Santa Ana Unidos Arts. Other artists will be recruited to work with key collaborators and to engage and inspire community participants. The Youth Art Collaborative (YAC) will facilitate youth and their families to create mural paintings on canvas at community art engagement events. The creative process of creating the murals, masks and portraits are also part of the project. A large canvas roll will be provided for participants to paint in silhouettes and other images connecting/intersecting one another. Participants will use colors, patterns, shapes and lines that represent their pride, roots, experiences, hopes dreams etc. Roses will be adorned around and in the mural to represent the beautiful possibilities of the Santa Ana's youth. Participants will write about their artistic contribution to the mural and it's meaning. The result will be six 5' x 9' youth murals representative of various Santa Ana neighborhoods. The intersecting silhouettes represents our connection with our neighbors and communities. Brian Peterson/Faces of Santa Ana will paint five portraits of faces of Santa Ana. The art carries the power to love, humanize, and share stories that support positive support for our residents. Brian will befriend and paint portraits that will reveal the beauty and underappreciated assets of our city. We draw our inspiration from the Tupac Shakar poem called The Rose that Grew from Concrete, "Did you hear about the rose that grew from a crack in the concrete?... Long live the rose that grew from concrete when no one else ever cared." The five portraits will be displayed at our final presentation event with stories. 25D-17 Joey Linnert will create living art sculptures at the final event form organic materials gathering from local neighborhoods and presented at the final presentation. Nellie LeGaspe that will engage residents to create masks using materials from the neighborhood to celebrate the diverse cultural roots of residents. Unidos will document the creative process by photographing and videotaping it. The resulting art and creative process will unify Santa Ana Neighborhoods using art and working with local artists to connect art with our neighbors and communities. At the final event, the masks, murals, portraits and living art on display. Each artist will present their result and the stories behind them. Participants will be asked to share their experience revealing the roses that grew from concrete. Community Benefit: The project is experiential and embraces Henri -Robert -Marcel Duchamp and the Da Da movement. The exhibition will be an active and interactive piece of art that explores and captures the faces of Santa Ana where they live, work and play. The city reveals itself through paintings, murals and photographs and video. The project will impact not only the Santa Ana art and cultural community but it will grow out from its community roots embracing the art and making it theirs. Everyone benefits. It will demonstrate the power art carries in storytelling and demonstrate that we can use our gifts to give back to others. The "Connected" portion of the Rose in the Concrete event will be a great way to engage youth from all over Santa Ana and provides them with a kinesthetic, artistic, creative way to voice their unique neighborhoods and cultures. This will be an enriching opportunity for the Santa Ana Arts community as it helps create a Santa Ana youth led public art display. The living art reveals the aesthetic value and beauty of art grown and gathered from the neighborhood and turned into art. It is art that continues to grow and rooted in the community at the same time and nurtured and then blossoms to unveil messages to live healthy which is a strategic goal of the City. These traditional ways harken to indigenous cultural customs from around the world. Connecting with the earth facilitates connection with one's roots. One practices the art of living by creating living art installations. Our project will have city residents stop and appreciate the roses in concrete in our city. Our mural can travel and be exhibited and can be used to promote the arts to the neighborhoods and involve them. More important, we are making a statement of change and transformation. Often, we focus on the violence or crimes in our city. We ignore the good things that goes unrecognized. The project is a creative act declaring that Art cares, Art is revolution, Art is culture, and Art is healing. 25D-18 Name of Applicant: Amount Requested: Category: Score: Diana Markessinis $5,000 Artist 82.0 — 1St Description of Project: The downtown area would benefit greatly from a sculptural element, a marker, a point of reference, a place to meet and to create a wider variety of public art. With only a few three-dimensional works in the downtown area, we are in need of a tall, attractive sculpture to enhance our city as well as welcome visitors. I would create a piece specific to a site chosen, some ideas are the corner of 4th & French St, the roundabout at Bush st. & 3rd., the promenade by the Yost, and the entry to the city along Santa Ana Blvd. One very interesting and powerful affect of public art is that it can shed new light or new perspective within the area it is placed, I look forward to exploring various locations with the arts commission. Community Benefit: Public art adds to our environment, relating to it on a human scale, and relating to the architecture around it has the ability to enhance or draw attention to the general area or even a specific building. This may create a new appreciation for the viewer and possibly be an invitation to engage in dialog with other people how they feel about the sculpture and the area around it. 25D-19 Name of Applicant: Amount Requested: Category: Score: Gene Jimenez $ 5,000 Artist 80.2 — 2nd Description of Project: I seek to create a comic book about a superhero graffiti writer that uses his gifted powers to protect the city he loves. Batman had Gotham, Superman had Metropollis, and now'Burner' has Santa Ana. Community Benefit: As stated, Batman had Gotham, and now our hero, 'Burn' has the eclectic and historic 'downtown' Santa Ana city as his backdrop for standing up to evil doers and the corrupt that may want to take over this gothic metropolis. RARELY does the comic book world get to witness an actual city featured as the background in a heroic story. It will shine a light on the city as a prideful place that believes in justice, the arts and most of all, its people. 25D-20 Name of Applicant: Amount Requested: Category: Score: Priscila Hernandez $ 5,000 Artist 78.7 _ 3rd Description of Project: Art and Culture Festival in Santa Ana, free community event held in October at the 4th Street Plaza. A day of Art Workshops, Cultural entertainment, activities and community engagement. Community Benefit: This project enriches the community by getting artists to share their ideas and skills directly with the community thru gratuitous workshops and demonstrations. Families together, and people of all ages, can learn and enjoy the cultural performances, art and craft making at this event. Artists and community members engage directly, network and continue to build up in spaces like these. 25D-21 Name of Applicant: Amount Requested: Category: Score: Dino Perez $ 5,000 Artist 76.3 — 411 Description of Project: To create a series of paintings that will explore the migration my family made from Mexico to Santa Ana, exploring identity being of first generation Mexican American and exploring my coming of age in Santa Ana. Paintings to be on display at OCCCA. Community Benefit: This project will enrich the community because it will give a voice to many who grew up like me having parents born in Mexico and having to navigate through two different worlds. 25D-22 Name of Applicant: Amount Requested: Category: Score: Rebecca Chernow $ 2,500 Artist 76.2 — 5th Description of Project: My project aims to stimulate compassion, inclusivity, and togetherness through the collaborative mediums of art and a shared meal. I would like to ask between 40 and 50 individuals from different communities, cultures, socio-economic backgrounds, and ages all currently residing within the city of Santa Ana to visually map out their goals, dreams, and hopes for the future (all the things they "have on their plate") on the surface of plain, cafeteria -style plates that will ultimately be used as dinnerware for an outdoor communal meal in the center of downtown Santa Ana. As project leader, I will provide small, personalized workshops on how to visualize and draw out abstracted ideas, but will leave plenty of space for each person to develop their own style of expression. For one month the decorated plates will be displayed in a centrally located public viewing space in Grand Central Art Center's project gallery that will also be open for additional community members to participate in the project, and return for the potluck at the close of the show. The meal will be held in front of Grand Central, in the public space near the fountain for one afternoon, and all those in attendance will be asked to bring a small dish to pass. At the end of the meal, each person is invited to take their plate home with them and keep it for future use. The project is a means to shed light on the concurrent realities that fellow citizens of a singular municipal locality experience, but may never have the opportunity to overlap. It is also an invitation for relative strangers to sit down and eat a meal together in public space to share ideas, time, and home -cooked food. Community Benefit: To execute the project, I plan on renting Nancy Alcala's ceramic kiln to fire the enamel onto the plates, and in doing so will be supporting a local artist who has their own community outreach program. I will be utilizing Grand Central Art Center's exhibition space, and will be bringing in individuals who might not otherwise visit Grand Central or downtown Santa Ana. The potluck is also a visual reference to the public meals that have been held in Santa Ana over the years, but contrasts in its more modest size and potluck style. The project itself will bring a vibrant blend of individuals from the creative community, student population, long-time residents of Santa Ana, individuals from what are often considered marginalized socio-economic backgrounds, and families from diverse cultures all into one space, and to one table together, if only for an afternoon. As part of the documentation of the project, I plan on creating a small visual chapbook (with the help of local published author and friend Sarah Garcia) to distribute to the participants, as well as have copies available for purchase through local venues like Libromobile and Grand Central Art Center after the project is complete. 25D-23 The project's exhibition and the printed documentation will give the public an opportunity to view the anonymous innermost thoughts and extremely personal narratives of a spectrum of individuals who form the textured fabric that is the unseen community of Santa Ana. Through this unique way of knowing one another-- either through the participation in the project, the experience of the exhibition as a viewer, or the sharing of the community meal-- compassion for others is cultivated, and a pathway for a kinder, more understanding worldview is opened by looking through the prism that is Santa Ana, CA. 25D-24 Name of Applicant: Amount Requested: Category: Score: Bud Herrera $ 5,000 Artist 73.8 — 6t" Description of Project: To create a Mobile Wall that can be painted and utilized as a public mural art installation. Throughout my experience one of the ongoing factors that is a constant challenge is finding open walls where artist can paint. Often landowners are not to open to offer their walls as a public canvas. As a local to the downtown Santa Ana community, and an artist who is living working and thriving in this space, I would like to propose a mobile wall to open windows and opportunities for artist to exercise and perfect their craft. Along with, the youth that is constantly in this area, I would like to create a safe place for them to paint legally. As a professional muralist, I would say majority of the question is "How did you get that permission? How did you get that space?" The reality is that there are no spaces here in the artist village in Santa Ana where the community has access to create freely. Places like Venice beach public walls, or North Dakotas Art alleys have created safe havens for artist to paint legally with permission. As Santa Ana continues to grow and create a dynamic and thriving art space of its own, I would like you to consider the Youth and art as an investment as well. Many artist travel to Los Angeles, known as the mural capital of the world because of its abundance and embracement to public murals. Therefore, I am confident that by granting me the ability to create a Wall structure and curating the artist who will paint on this space will create a bridge between Santa Ana and its artist community. Community Benefit: It will open windows for free mural workshops. Along with opportunities for youth and artist who need a space to practice or create larger scale artwork. Providing free access to quality revolving murals in the downtown of the city creating a vibrant and cultural hip art scene. 25D-25 25D-26 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: APPROVE FIRST AMENDMENT TO THE EXCLUSIVE NEGOTIATION AGREEMENT WITH CARIBOU INDUSTRIES FOR THE THIRD STREET AND BROADWAY DEVELOPMENT PROJECT (STRATEGIC PLAN NO. 3, 5A) /uc ITY MAN RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve First Amendment to the Exclusive Negotiation Agreement (ENA) with Caribou Industries for the Third and Broadway Development which provides for a sixty (60) day extension, ending August 25, 2017, with the option of extending an additional sixty (60) days pending the City Manager's approval. DISCUSSION On March 21, 2017, the City Council authorized the City Manager and Clerk of the Council to enter into an Exclusive Negotiation Agreement (ENA) and Reimbursement Agreement to be executed with Caribou Industries Inc. for the Third and Broadway Development Project (Project), including 29 deal points for the proposed scope of the Project, subject to non -substantive changes approved by the City Manager and City Attorney. On April 4, 2017, staff met with the Developer to discuss the terms of the ENA and the 29 conditions of the proposed scope of said Project. The result of the meeting was that of the 29 conditions of the proposed scope of the Project, both City Staff and the Developer agreed on 8 conditions that were proposed. On April 27, 2017, staff met with Developer and the result of the meeting was the execution of the ENA and Reimbursement Agreement, which triggered the commencement of the 60 -day negotiation period. On May 3, 2017, staff met with Developer to discuss the remaining conditions proposed by the Developer. While some progress has been made in reaching an agreement, more discussion is required before returning to the City Council. The Developer requested a 60 -day extension of the ENA given that it was due to expire on June 26, 2017. A written request was submitted on June 19, 2017. 25E-1 Approve Amendment to the Exclusive Negotiation Agreement with Caribou Industries for the Third Street & Broadway Development Project July 5, 2017 Page 2 At this time, Developer is requesting a 60 -day extension of the ENA period in order to continue discussions. Approval of the 60 -day extension will set the ENA negotiation period to expire on August 25, 2017. Staff recommends the 60 -day extension of the ENA period with an option of extending the ENA term for an additional sixty days pending the City Manager's approval (see Exhibit 1). During the extension period, staff will engage Kosmont Companies, a financial advisory and economic development services firm, to conduct a financial feasibility analysis for the Project. The financial feasibility analysis is expected to be completed in 30 -days following the receipt of financials and information from the Developer. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objective #5 (Leverage private investment that results in tax base expansion and job creation citywide), Strategy A (Identify and market underutilized properties for new development that will create new jobs and expand the City's tax base). FISCAL IMPACT There is no fiscal impact associated with this action at this time. V Candida Neal Acting Executive D r for Planning and Building Agency SM:rb rb\reports\sm\3`tland BroadwayU pdate. CC.7. 5.17 EXHIBIT: 1. First Amendment to ENA 25E-2 FIRST AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT This First Amendment to Exclusive Negotiation Agreement is made and entered into this 5"' day of July, 2017, by and between the CARIBOU INDUSTRIES, INC., a Nevada corporation ("Developer"), 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. The City and Developer entered into Agreement No. A-2017-058, dated April 27, 2017, in order to provide a specified period of time to attempt to negotiate a disposition and development agreement ("said Agreement"), B. In accordance with the tens and conditions of said Agreement, the Parties desire to amend the Term of Agreement section to extend the Negotiation Period for an additional sixty (60) days, until August 25, 2017, with the option of extending an additional sixth (60) days pursuant to City Manager and Developer approval. 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: Section 2, Term of Agreement, subsection (a), shall be amended to extend the Negotiation Period for an additional sixty (60) days, until August 25, 2017, 2. Section 2, Term of Agreement, shall be amended to add subsection (c) to read as follows: "The Negotiation Period may be extended upon the mutual written agreement of the City Manager and the Developer for no more than one (1) additional consecutive sixty (60) calendar day period. Except as hereinabove modified, all terms and conditions of said Agreement shall remain in full force and effect. EXHIBIT 1 Page 1 of 2 25E-3 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Exclusive Negotiation Agreement the date and year first above written, CITY OF SANTA ANA ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City M RECOMMENDED FOR APPROVAL: ROBERT C. CORTEZ Deputy City Manager Community Development Agency CYNTHIA J, KURTZ Interim City Manager DEVELOPER: Caribou Industries, Inc. By: President Dated: Page 2 of 2 25E-4 CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: AGREEMENT FOR INSPECTION SERVICES WITH J LEE ENGINEERING INC., HAYER CONSULTANTS INC., BUREAU VERITAS NORTH AMERICA INC., JAS PACIFIC, INTERWEST CONSULTING GROUP, AND AMERICAN ENGINEERING LABORATORIES INC. {STRATEGIC PLAN NO. 3,3) / h1/_I1UTC91:1 CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreements with J Lee Engineering Inc., Hayer Consultants Inc., Bureau Veritas North America Inc., JAS Pacific, Interwest Consulting Group, and American Engineering Laboratories Inc. for expedited inspection services with an aggregate amount not to exceed $1,000,000, for a three year term expiring on July 5, 2020, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION Development activity in the City has been trending upward since 2011 and will continue to do so for the foreseeable future. There has been a negative impact on inspection turnaround time as the inspection staffing has not kept pace with said activity for 24 hour response time to as much as 3 weeks. The effects of which are: • Overall delayed construction timelines which is particularly detrimental to medium to large commercial, industrial, or mixed-use projects as delays drive up construction costs and retards revenue to the general fund. ■ Constant service requests by developers for expedited inspections or dedicated inspectors for their projects which is currently non-existent other than through in-house staff overtime which is unsustainable. • Rogue construction due to contractors not able to afford waiting for inspections that will have life -safety implications and will necessitate costly future remediation. • Reduction in the quality of inspections due to unrealistic staff workloads. • A service level not in synch with the cost allocated for said service based on the 2008- 2009 fee study it was assayed. 25F-1 Request to Approve Selected Vendor Contracts for Expedited Building Inspection Services July 5, 2017 Page 2 Securing contract inspection staffing will provide a means by which projects may be expeditiously serviced without having to wait up to three weeks. Moreover, it will assist in reducing response time for inspection of general work load by permanent in-house staff. This expedited service will be funded via an additional pass through service fee based on contract rates established and agreed upon by the successful Consultant(s) and the City. There is also the added benefit of previewing potential staff in the event that permanent future positions are made available. Building and Safety received 12 proposals for the Expedited Building Inspections RFQ. A selection committee consisting of senior building staff was composed to review the proposals. The criteria to select the firms were based on the firms' expertise, length of time in the industry, specialties, and cost. Of the 12 the selection committed selected 6. Although the RFQ stated 4 top firms would be selected. The selection committee agreed that the 6 firms selected were comparable in all the criteria used for selection. In addition it would benefit the City to have the additional 2 firms as it provides more resources and a larger pool of qualified inspectors to choose when assigning expedited inspections. On June 22, 2017, staff held a Meet and Confer with representatives from Service Employees International Union 721 to discuss the proposed program as required under the terms of the Memorandum of Understanding. Approval from the City Council to authorize the City Manager and the Clerk to execute the attached agreements will allow staff to administer these contracts and additional service. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's effort to meet Goal #3 - Economic Development; Objective #3 (Promote a solution -based customer focus in all efforts to facilitate development and investment in the community). FISCAL IMPACT Expedited inspection fees paid to the City by the applicant for each project contracted out for inspections will fully fund the consultants cost to perform the inspection. Effective July 1, 2017 these amounts will be deposited by the applicant into expedited inspection services account no. 05316002-53618 prior to the consultant commencing any work. Fees paid to the consultant will be recorded from account no. 05316021-62300. Funds will be budgeted in FY 2017/18 and subsequent fiscal years in the following account for the specified years of the term: Accounting Unit FY 17/18 FYI 8/19 FY19/20 no. Ub3lb021462300) 25F-2 M Request to Approve Selected Vendor Contracts for Expedited Building Inspection Services July 5, 2017 Page 3 Candida Neal, Al6pr 7 Acting Executive Director Planning and Building Agency SM:rb S:Admin\RFCAWCA-Expedited Building Inspection 7-05-17 APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance and Management Services Exhibits: 1. Agreement with J Lee Engineering Inc. 2. Agreement with Hayer Consultants Inc. 3. Agreement with Bureau Veritas North America Inc. 4. Agreement with Jas Pacific 5. Agreement with Interwest Consulting Group 6. Agreement with American Engineering Laboratories Inc. 25F-3 25F-4 CONSULTANT AGREEMENT THIS AGREEMENT made and entered into this Slia day of July 2017, by and between J LEE ENGINEERING 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 (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of municipal site and building inspection services. B. Consultant represents that Consultant is able and willing to provide such services to the City. 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 f"4481lu tri nyi/iP cvn ail. i�y� iy,2n.-4'6'.1 1Si$8�@n LIP&t� t%..1;"' 'Cnlltd s Director of the Planning and Building Agency, as set forth in Exhibit A, attached hereto and incorporated herein by this reference. Consultant shall deliver to City all work product resulting from the services provided. Said work product shall be submitted in a hard copy and in a form compatible with City's computer system, as agreed between the Executive Director and Consultant. In regard to copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings and computer programs, Consultant agrees and shall ensue that all of Consultant's affected officers, employees, agents, contractors, and volunteer workers agree that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty - free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. Exhibit 1 1 25F-5 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. Consultant is one of six Consultants selected to provide on-call municipal expedited site/building/inspection services on an as needed basis pursuant to the Request for Council Action (RFCA) dated March 7, 2017, the teens of which are incorporated herein. The total compensation for services provided by all contractors selected under the RFCA is a collective amount not to exceed $1,000,000 during the tenn of the Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate three (3) years from said commencement date on July 5, 2020, unless terminated earlier in accordance with provisions, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR 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. 5. 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 which 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 z 25F-6 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, and $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. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 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 obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, subject to $1,000,000.00 aggregate. d. 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 �rie�svi�itten•i;eties�t�rtl2e-�rt�. e. 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 ptooured 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. 6. INDEMNII+ICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, darnages, 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 direct or indirect operations of the Consultant or its contractors, 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 fi•om this Agreement. This indemnity and hold harmless agreement applies to all claims 25F-7 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. 7. CONFIDENTIALITY I£ 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 without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without S. 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 performance of services specified under this Agreement. 9. 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 telefaesimile 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 927 02-1 98 8 Facsimile (714) 647-6956 4 25F-8 Copies to: Executive Director of Planning and Building Agency Building Safety Division City of Santa Ana 20 Civic Center Plaza (M-19) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-5897 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 To Consultant: J Lee Engineering Inc. Jae Lee, President 430 S. Garfield Avenue, Suite 301 Alhambra, California 91801 Facsimile (626) 2848907 A party may change its address by giving notice in writing to the other party. If sent by mail, connnunication 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 nnn mr , lTt�S GSI."�4 v v. yCi 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, Coimty or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, 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 either Consultant or the City. Each party to this Agreement aelmowledges 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. 25F-9 11. ASSIGNMENT hiasmuch 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. 12. 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, the Executive Director 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 which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION 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. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. 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. 15. 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 25F-10 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. 16. MISCELLANEOUS PROVISIONS a. 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 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. HUIZAR Clerk of the Council SONIA R. CARVALHO City Attorney Lisa Storck Assistant City Attorney RECOMMEND APPROVAL: Executive Director Planning & Building Agency CITY OF SANTA ANA CYNTHIA J. KURTZ Interim City Manager J LEE ENGINEERING, INC. JAE President Tax ID# 25F-11 LEE, PE, CPE, CASP 95-4748307 r j LEE Exhibit A, — Scope of Work According to the Request for Qualifications (RFQ), the scope of services to be provided includes, but not limited to, the following: 1. Provide accelerated building inspection services on an as -needed basis. 2. Provide building inspection services for residential, commercial and government buildings and structures for verification of compliance with the most current adopted versions of the California Building Standards Code, City of Santa Ana Municipal Code, relevant State and Federal Laws, the approved construction documents, and coordination between City agencies, designers, and builders in the community. 3. Provide in-house temporary staffing, 430 S. Garfield Ave., SedPe 301, Alhambra, CA 91801 + Phone.- (626) 284-8906 25F-12 r Fax: (626) 284-8907 City of Santa Ana, RFQ #17-030 [CONFIDENTIAL.] J LEE f`IG IN kkNIN4 INC Exhibit B — Fee Schedule The following, is Schedule of Fixed Hourly Rates for the Scope of Work listed in the Request for Qualification (City of Santa Ana, Request for Qualifications #17-030, Building Inspection Services); Hourly Rates for Building Inspection Services• Senior Inspector $ 85.00 Inspector $ 75.00 Administration service $ 45.00 Sr. Plan Check Engineer $ 105.00 Plan Check Engineer $ 95.00 Sr. Plan Examiner Rin" P'..i.l ' $ 95.00 0 Permit Technician ed' $ 60.00 430 S Cur(ielrl Ave., Sulte 301, Alhantbr r, CA 91801 w Phone: (626) 284-8966 • rax: (626) 284-8907 25F-13 25F-14 CONSULTANT AGREEMENT THIS AGREEMENT made and entered into this 51" day of July 2017, by and between I-IAYER CONSULTANTS INC., a California corporation (hereinafter "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 (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of municipal site and building inspection services. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services perfonned 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 Consultant shall provide expedited inspection services on request of the Executive Director of the Planning and Building Agency, as set forth in Exhibit A, attached hereto and incorporated herein by this reference. Consultant shall deliver to City all work product resulting from the services provided. Said work product shall be submitted in a hard copy and in a form compatible with City's computer system, as agreed between the Executive Director and Consultant. In regard to copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings and computer programs, Consultant agrees and shall ensure that all of Consultant's affected officers, employees, agents, contractors, and volunteer workers agree that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty, free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. Exhibit 2 25F-15 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. Consultant is one of six Consultants selected to provide on-call municipal expedited site/building/inspection services on an as needed basis pursuant to the Request for Council Action (RFCA) dated March 7, 2017, the terms of which are incorporated herein. The total compensation for services provided by all contractors selected under the RFCA is a collective amount not to exceed $1,000,000 during the term of the Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. lr�7olsffl This Agreement: shall commence on the date first written above and terminate three (3) years fi-om said commencement date on July 5, 2020, unless terminated earlier in accordance with provisions, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 4. 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 ernployer-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. 5. 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 which 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 perfonnance of this Agreement, including, without limitation, acts involving vehicles. The `a 25F-16 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, and $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. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 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 obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident, c. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, subject to $1,000,000,00 aggregate. d. 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. e. 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 shalt 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. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) ibr 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 direct or indirect operations of the Consultant or its contractors, 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 25F-17 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. 7. 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 without 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. 8. 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 performance of services specified under this Agreement. 9. 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 telefacsimile 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 Facsimile (714) 647-6956 25F-18 Copies to: Executive Director of Planning and Building Agency Building Safety Division City of Santa Ana 20 Civic Center Plaza (M-19) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-5897 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 To Consultant: Hayer Consultants Incorporated Navdeep `Soni' K. Hayer, Vice President 4067 Hardwick St., PMB 250 Lakewood, California 90712 Facsimile (562) 377-1640 A party may change its address by giving notice in writing to the other party. 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 telefacsimile, 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. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, 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 terns 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 tetras and conditions hereof, shall not bind or obligate either 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. 11. ASSIGNMENT 25F-19 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. 12. 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 perfornied by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. Asa condition of such payment, the Executive Director 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 which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION 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. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. 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 inay be brought or arise out of, in connection with or by reason of this Agreement. 15. 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 heret.mder 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. 25F-20 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. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of fire terms of this Agreement, and shall indemnify City hilly, 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. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: r Lisa Storck Assistant City Attorney RECOMMEND APPROVAL: M Executive Director Planning & Building Agency CITY OF SANTA ANA CYNTHIA J. KURTZ Interim City Manager HAYER CONSULTANTS INC. Navdeep `Soni' K. Hayer Vice President Tax ID# 95-4542509 25F-21 HAYER. CONSULTANTS INC. 4067 HARDWICK STREET, PMB 250, LAKEWOOD, CA 90712 PHONE (562) 377-1678 • FAX (562) 377-1640 . EMAIL: hayer@hcipc.com Exhibit A Scope of Services To provide City of Santa Ana, Planning and Building Agency, Building Division with building inspection services and customer assistance as detailed in the request for qualification through the contracting of ICC Building Inspectors. Said services to align with the City's intent to minimize response time and improve customer service by supplementing in-house staff with consulting services for Building Inspection Services. 25F-22 HAYER CONSULTANTS INC. 4067 HARDWICK STREET, PM13 250, LAKEWOOD, CA 90712 PHONE (562) 377-1678 • FAX (562) 377-1640 • EMAIL: haver(@,hcil)c.com Exhibit B INSPECTOR RATE STRUCTURE Inspector Rate Structure: a. HCI Senior Commercial Building hispector Fee during normal business hours: $85-$95 per hour b. HCI Combination Building Inspector Fee during normal business hours: $75-$85 per hour c. HCI Residential Building Inspector Fee during normal business hours: $70-$75 per hour d. HCI Code Enforcement Inspector Fee during normal business hours: $65470 per hour e. HCI Fee outside regular business hours: 1.5 times the hourly rates charged above. f. Overtime charges: a) Over 8 hours in one day or 40 hours in one week or Saturdays - time and a half (1.5x). b) Sundays and holidays - double time (2x). g. Mileage charges for inspection&ode enforcement duties: if using HCI vehicle per IRS mileage charges or per City rates. If using City vehicle there will be no mileage charge. 25F-23 25F-24 CONSULTANT AGREEMENT THIS AGREEMENT made and entered into this 5" day of July 2017, by and between BUREAU VERITAS NORTH AMERICA , INC., a Delaware corporation (hereinafter "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 (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of municipal site and building inspection services. B. Consultant represents that Consultant is able and willing to provide such services to the City. 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: I. SCOPE OF SERVICES Consultant shall provide expedited inspection services on request of the Executive Director of the Planning and Building Agency, as set forth in Exhibit A, attached hereto and incorporated herein by this reference. Consultant shall deliver to City all work product resulting from the services provided. Said work product shall be submitted in a hard copy and in a form compatible with City's computer system, as agreed between the Executive Director and Consultant. In regard to copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings and computer programs, Consultant agrees and shall ensure that all of Consultant's affected officers, employees, agents, contractors, and volunteer workers agree that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty - free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. Exhibit 3 25F-25 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. Consultant is one of six Consultants selected to provide on-call municipal expedited site/building/inspection services on an as needed basis pursuant to the Request for Council Action (RFCA) dated March 7, 2017,.the terms of which are incorporated herein. The total compensation for services provided by all contractors selected under the RFCA is a collective amount not to exceed $1,000,000 during the tern of the Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. This Agreement shall commence on the date first written above and terminate three (3) years from said commencement date on July 5, 2020, unless terminated earlier in accordance with provisions, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR 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 mamier 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. 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 which 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 25F-26 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, and $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. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 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 obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. e. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, subject to $1,000,000.00 aggregate. d. 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 e. 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. 6. INDEMNIFICATION Consultant agrees to and shall indemnify 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 direct or indirect operations of the Consultant or its contractors, 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 fiom this Agreement. This indemnity and hold harmless agreement applies to all claims 3 25F-27 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 terns of, or effects, arising fiorn 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. 7. CONFIIDENTIALITY 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 per£onnance 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 without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without 8. 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 performance of services specified under this Agreement. 9. 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 telefacsimile 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 Facsimile (714) 647-6956 4 25F-28 Copies to: Executive Director of Planning and Building Agency Building Safety Division City of Santa Ana 20 Civic Center Plaza (M-19) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-5897 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 To Consultant: Bureau Veritas North America, Inc. I ioaDuong,VicePresident 1665 Scenic Avenue, Ste. 200 Costa Mesa, California 92626 Facsimile (714) 825-0685 A party may change its address by giving notice in writing to the other party. 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 f i _abav�m••et,-.�s;.<T-�l r ile�u»ati®sn-•sn, i r�,faski�........_. .._. 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. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terns 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 teens and conditions hereof, shall not bind or obligate either 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. 25F-29 11. 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. 12, 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, the Executive Director 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 which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION 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. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. 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. 15. 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 25F-30 immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall because for termination of this Agreement.. 16. MISCELLANEOUS PROVISIONS a. 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 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. HUIZAR Clerk of the Council SONIA R. CARVALHO City Attorney By. c" -- Lisa Storck Assistant City Attorney RECOMMEND APPROVAL: Executive Director Planning & Building Agency CITY OF SANTA ANA CYNTHIA J. KURTZ Interim City Manager BUREAU VERITAS NORTH AMERICA, INC. KHOA DUONG, PE Vice President Tax ID# 06-1689244 25F-31 Exhibit A Scope of Work Plan Review When notified by the jurisdiction, Bureau Veritas North America, Inc. (BVNA) shall perform plan review services. Plan review services shall consist of the review of plans and documents for compliance with jurisdiction adopted or enforced codes and regulations. Plan review services will be provided in accordance with accepted standards of practice for governmental plan review and in conformance with the policies, procedures, interpretations, and practices of the jurisdiction. Plan review services covered under this agreement will be performed in the offices of BVNA, unless otherwise authorized by the jurisdiction. Plan review can be provided as full review, partial review, or discipline specific, as requested by the jurisdiction for each project. Plan review services may include the review of: Non-structural fire and life safety plans examination Structural plans examination Electrical, mechanical, & plumbing code plans examination Disabled access code plans examination Green building code plans examination Energy code pians examination Fire sprinkler and alarm plans examination Fire code compliance Plan review services shall e r enti ie in the project task order and corresponding rate sc e u e, dditional services can be negotiated between BVNA and the jurisdiction, if needed. If corrections are required, BVNA will prepare comment or correction letters. The correction letter shall describe each required correction or addition, and reference the applicable code section. Letters will be distributed as directed by the jurisdiction. If plans are recommended for approval, BVNA shall transmit to the jurisdiction the required number of sets of plans and associated documents with the plans stamped "Reviewed for Code Compliance" to Indicate that the plans have been reviewed by BVNA and found to be in substantial compliance with applicable codes, Electronic Plan Review Atthe request of the jurisdiction, BVNA can provide electronic plan reviews. BVNA can utilize the system preferred by the jurisdiction, or can provide electronic review simply using PDF software. Third Party Review This is an optional method to accomplish the plan review for applicants that desire preliminary plan reviews or have expediting needs due to project time constraints. This method allows the designer to work with plan review staff early in the design process to avoid code problems that could lead to extensive redesign of completed plans. it also allows the permit applicant to pay for review services directly to BVNA, independent of the normal jurisdiction plan review fee. Move Forward with Confidence 25F-32 With approval of the Building Official, BVNA can provide third -party plan reviews/inspections. BVNA shall be solely responsible for the collection of any third -party fees. Inspection Services When notified by thejurisdiction, Bureau Veritas NorthAmerica, Inc. (BVNA) shall perform site inspection services to verify substantial compliance with approved plans and jurisdiction adopted codes and regulations. Inspection services will be provided in accordance with accepted standards of practice for governmental inspection and in conformance with the policies, procedures, interpretations, and practices of the jurisdiction. Inspection services may include the following elements: Non-structural fire and life safety Structural Electrical, mechanical, & plumbing Disabled access Green building Energy Fire sprinkler and alarm Fire code compliance Inspection services can be provided on a full-time, part-time, or as -needed basis in accordance with the requirements of the jurisdiction. Building Inspectors provided by Bureau Veritas North America, Inc. shall perform the following services: 1. Become familiar with approved project plans and documents prior to inspection. 2. Conduct site inspection using safe work practices. en ar as o non -comp lance. 4. Prepare correction notice and/or discuss non -complying items and solutions with jobsite superintendent. 5. For serious violations, notify Building Official and issue stop work notice in accordance with jurisdiction policies and procedures. 6. Provide reinspections as necessary to address non -complying items. 7. Provide inspection records in accordance with jurisdiction policies and procedures. S. When requested by the jurisdiction, coordinate inspections with fire, health, and other government agencies, as applicable to the project. Move Forward with Confidence 25F-33 URI VSE RiTAS j Exhibit B Fee Schedule Below are the proposed fees for our services: Classification Houfiy Rate Building Official $160 Senior Structural Engineer $135 MEP Engineer $115 Certified Plans Examiner $95 Senior Building Inspector $95 Building Inspector $85 Administrative Technician/ Counter Technician $70 The rates listed above are effective through the term of the contract. Reimbursable Expenses Reimbursable expenses shall include, but not be limited to, the following: Mileage: per current IRS rate Professional Reimbursement The hourly billing rates include the cost of salaries of the Bureau Veritas employees, plus sick leave, vacation, holiday and other benefits. The percentage added to salary costs includes indirect overhead costs and fee (profit). All employees classified as "non-exempt" by the U.S Department of Labor will be compensated at 1'/z times salary, as per state and federal wage and hour laws. Billing rates will be calculated accordingly for these overtime hours. Move Forward with Confidence 25F-34 CONSULTANT AGREEMENT THIS AGREEMENT made and entered into this 5111 day of July 2017, by and between JASON ADDISON SMITH CONSULTING SERVICES, INC., (DBA JAS PACIFIC), a California corporation (hereinafter "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 (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of municipal site and building inspection services. B. Consultant represents that Consultant is able and willing to provide such services to the City, 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 Consultant shall provide expedited inspection services on request of the Executive Director of the Planning and Building Agency, as set forth in Exhibit A, attached hereto and incorporated herein by this reference. Consultant shall deliver to City all work product resulting from the services provided. Said work product shall be submitted in a hard copy and in a form compatible with City's computer system, as agreed between the Executive Director and Consultant. In regard to copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings and computer programs, Consultant agrees and shall ensure that all of Consultant's affected officers, employees, agents, contractors, and volunteer workers agree that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty - free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. Exhibit 4 25F-35 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. Consultant is one of six Consultants selected to provide on-call municipal expedited site/building/inspection services on an as needed basis pursuant to the Request for Council Action (RFCA) dated March 7, 2017, the terms of which are incorporated herein. The total compensation for services provided by all contractors selected under the RFCA is a collective amount not to exceed $1,000,000 during the term of the Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement sball commence on the date first written above and terminate three (3) years from said commencement date on July 5, 2020, unless terminated earlier in accordance with provisions, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR 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 maturer 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. 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 which 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 25F-36 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, and $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. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 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 obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, subject to $1,000,000,00 aggregate. d. 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 l�r�y'(�'8)'slays'prie�swr-ttterr-rre4i�e=te Ekt®Eit�. e. 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. 6. INDEMNIFICATION Consultant agrees to and shall indemnify 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 direct or indirect operations of the Consultant or its contractors, 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 terns of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims 25F-37 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 terns 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. 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 without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without ---�'N@f�rc„GW `mna`roN�'Eierr� 8. 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 performance of services specified under this Agreement. 9. 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 telefacshnile 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 Facsimile (714) 647-6956 25F-38 Copies to: Executive Director of Planning and Building Agency Building Safety Division City of Santa Ana 20 Civic Center Plaza (M-19) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-5897 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 To Consultant: JAS Pacific Jason A, Smith, CEO P.O. Box 2002 Upland, CA 91785 Facsimile (909) 605-0319 A party may change its address by giving notice in writing to the other party. 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 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. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, 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 rnay 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 either 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. 25F-39 11. 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. 12, 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, the Executive Director 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 which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION 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. Consultant affinms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. 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. 15. 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 25F-40 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. 16. MISCELLANEOUS PROVISIONS a. 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 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, HUIZAR Clerk of the Council SONIA R. CARVALHO City Attorney By. c_.� - Lisa Storck Assistant City Attorney RECOMMEND APPROVAL: M Executive Director Planning & Building Agency CITY OF SANTA ANA CYNTHIA J. KURT2 Interim City Manager JAS PACIFIC JASON A. SMITH, CEO Tax ID# 33-0604465 25F-41 EXHIBIT A - SCOPE OF WORK i JAS Pacific Is prepared to provide the City with seamless quality building. inspection services within exceptional timeframes, Our service procedures are thorough meeting all expectations including great customer servlce and efficient response times, without compromising quality. As part of JAS Pacific's overarching goal to attain customer satisfaction, a tailored service delivery system is developed, service models are effective and efficient, and procedures adapted to meettheCity's requirements. We are confident that we can accommodatethe City'sfinancial needs as well as provide the desired level of customer service. Additionally, because of our available resources, we have the ability to alterthe levels and types of service to address Increased workloads and customer needs. JAS Pacific will ensure that all structures are equal to or exceed the applicable City, State, and Federal regulations. JAS Pacific understands the City's needs and we have the resources to provide timely deployment. With limited City resources, contracting with JAS Paclfic will afford the City more flexibility in the allocation of such resources. Assigned personnel will provide building and safety support and related services as -needed ensuring compliance with the most recent adopted version of California Building Codes, including the following: ✓ California Residential Code ✓ California Green Building Code ✓ California Mechanical Code ✓ California Plumbing Code ✓ California Electrical Code ✓ State Title 24 Accessibility ✓ State Title 24 Energy Conservation ✓ State Title 25 Acting on behalf of the City, JAS Pacific will provide superior levels of customer service, consistent code application, and develop seamless working relationships with City staff. Contracting with JAS Pacific will provide the City with a cost-effective alternative to a fully Internally staffed department and allow the City to focus on other critical municipal matters. JAS Pacific will perform applicable functions as an extension of City staff and will follow all City procedures and directives. JAS Pacific understands the importance of excellent customer service not only to the City but to the clients we serve. We strive to meet and exceed all client expectations and we will create a cooperative work environment with the City and the clients we serve. Staff will not only Identify building code issues within the standards. JAS Pacific will support the City in attaining Its goal of providing timely, efficient, and effective services. Our understanding and approach to the proposed services is detailed below. Building Inspector Duties and Responsibilities: ✓ Provide inspection services for commercial, Industrial, residential, and tenant Improvements on an as -needed basis. ✓ Conduct inspections ensuring construction projects are in conformance to the approved plans and all applicable code and City ordinances including: building, electrical, plumbing, and mechanical codes; zoning ordinances, energy conservation; and disabled access requirements. ✓ Read and study project specifications, plans, reports, and calculations to become familiar with projects prior to inspection, and ensuring compliance with all applicable requirements. ✓ Attend grievance hearings and the like to resolve disputes with developers, homeowners, commercial and office owners and the public. ✓ Provide appropriate and timely follow up on and resolution to complaints, and non -permitted work. ✓ Prepare inspection notices of noncompliance on incorrect construction methods or materials found during Inspection; confer with contractor or representative regarding construction methods and procedures as they relate to compliance with plans and specifications. 23-,A",P;V1e1, 25F-42 ✓ Approve certain changes in building, plumbing, mechanical, electrical, and related work consistent with code and ordinance requirements. ✓ Participate in reviews with technical consultants, fire, health, and other government agency inspectors, as well as owners. ✓ Assist in the coordination of job site conferences with technical consultants, engineers, architects, representatives of the owner, equipment manufacturers, and subcontractors to review project requirements, and clarify or resolving any questions or problems prior to commencing work. ✓ Maintain a record of non -complying items and follow up to achieve resolution of such Items. Record all significant construction related activities and events such as work completed to provide a chronological and factual history of inspection on assigned construction projects. ✓ Inspect buildings alleged to be substandard, unsafe, or unsightly to ensure the timely compliance with building codes and other ordinances and regulations, or the demolition of such structures. ✓ Maintain accurate records. ✓ Respond to telephone inquiries about code requirements and inspection procedures relating to assigned projects. ✓ Handle resident inquiries and resolve complaints. ✓ Perform other related duties, as required. 25F-43 CA J JAS Pacific can provide the City with additional services that include permit Issuance, plan review, code adoption, Our service procedures are thorough meeting all expectations Including great customer service and efficient response times, without compromising quality. As part of JAS Pacific's over arching goal to attain customer satisfaction, a tailored service delivery system is developed, service models are effective and efficient, and procedures adapted to meet the City's requirements. We are confident that we can accommodate the City's financial needs as well as provide the desired level of customer service. Additionally, because of our available resources, we have the ability to alter the levels and types of service to address increased workloads and customer needs. Personel Superior Level of Cstomer Service Expertise Staffing Resources Contract Costs Consistent Code Application Flexibility to Meet Various Levels of Demand Expenses are Consitentwith Revenues 1AS Pacific can provide the Jurisdiction with plan review services both off-site and on. Off-site services will be provided in a timely manner and will be seamless, as our team members are accessible to promptly respond to all inquiries. Upon contract award, JAS pacific will analyze the Jurisdiction's needs and propose the appropriate service level striking a balance between desired services and cost efficiency. Training JAS Pacific is committed to the continuous education of all staff through both in-house and external training. Mr. Fady Matter and Mr. Stuart Tom are ICC certified Instructors and have provided training to various clients on the building and other codes and regulations: Mr. Mattar's area of Instruction Includes plumbing, mechanical, green building, energy and residential fire -sprinkler systems topics. Mr. Stuart's area of instruction includes the California Building and Residential Codes, emergency response, fire and other related topics. Mr, Mattar has worked with various JAS clients and Industry related organizations providing instruction on a range of topics. He was the Training Coordinator for the County of Los Angeles Building Dlvislon, creating the training programs for entry-level inspectors, as well as on-going training for Inspectors, plan review staff, permit technicians and district office managers, Mr. Mattar prepared and created training booklets and PowerPoint presentations for training on the California Mechanical and Plumbing Codes, Green Building Code and Residential Fire Sprinklers then conducted tralnings for ICC orange Empire, LA Basin, Foothill, Hi Desert, Coachella Valley, and Ventura Chapters of ICC. He hasalso presented training on code update to jurisdictions including the Cities of Los Angeles, Long Beach, 25F-44 Beverly Hills, Santa Monica, EI Monte and the County of Los Angeles. Mr. Mattar has also conducted code classes for UCLA Extension Program and for organizations such as ICC, IAPMO and PHCC. Counter JAS Pacific will provide the City withpermit issuance/counter services for on-site grading, erosion control, building, electrical, mechanical, and plumbing work on an as needed basis to supplement the City's full -time Senior Building Permit Technician, through the contracting of Permit Technicians. All Permit Technicians meet all qualifications, education, and certification/licensing requirements including an ICC Permit Technician certification, two years experience performing technical building and safety support functions, high school diploma, and strong solution - oriented customer service as detailed in the request for proposals. Basic services shall Include public counter services such as processing automated and manual permits, receiving plan submittals, preparing reports, cashiering, handling customer needs over the phone and in person, and maintaining records in locations throughout the City. Detailed - duties and responsibilities are further discussed below and services shall be provided based on service demand. Code Adoption At the request of the City, JAS Pacific can perform research of the City's Municipal Code and provide draft documents for review by the City Attorney and other responsible departments for the adoption of the codes, along with any desired City amendments to these codes. Once these documents are approved, JAS Pacific can help schedule the required hearings before the City Council, testify before the City Council, and answer questions regarding proposed amendments, JAS Pacific personnel has extensive experience in area of code adoption and can assist the City in future local adoptions. Code Enforcement JAS Pacific can provide code enforcement seryices by proactively identifying conditions that threaten the health and _.. ..r.., 4, y community problems, and promote community pride and stability. In order to enhance and sustain the highest quality of life standard, we will provide exceptional customer service and rapid and effective responses. CASA JAS Pacific can provide CASA certified inspections and plan review with staff knowledgeable the requirements of the State Senate Bill. Our staff not only can perform these duties but are available to City staff for further clarification on various issues that arise with the bill's implementation. 25F-45 Exhibit B rlt w c g Ny s', n �:.,. L , is 25F-46 BUILDING INSPECTOR 1 $75.00 / HOUR BUJILDING INSPECTOR 11 $85.00 / HOUR BUILDING INSPECTOR III $95.00 / HOUR 25F-46 CONSULTANT AGREEMENT THIS AGREEMENT made and entered into this 51" day of July 2017, by and between INTERWEST CONSULTING GROUP, a Colorado corporation (hereinafter "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 (hereinafter "City"), RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of municipal site and building inspection services. B. Consultant represents that Consultant is able and willing to provide such services to the City. 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 Director of the Planning and Building Agency, as set forth in Exhibit A, attached hereto and incorporated herein by this reference. Consultant shall deliver to City all work product resulting from the services provided. Said work product shall be submitted in a hard copy and in a form compatible with City's computer system, as agreed between the Executive Director and Consultant, In regard to copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings and computer programs, Consultant agrees and shall ensure that all of Consultant's affected officers, employees, agents, contractors, and volunteer workers agree that (a) other such material may not be copyrighted without prior review from the City, anti (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty - free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. Exhibit 6' 25F-47 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Consultant under tivs Agreement. Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. Consultant is one of six Consultants selected to provide on-call municipal expedited site/building/inspection services on an as needed basis pursuant to the Request for Council Action (RFCA) dated March 7, 2017, the terms of which are incorporated herein. The total compensation for services provided by all contractors selected under the RFCA is a collective amount not to exceed $1,000,000 during the term of the Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City, 3. TERM This Agreement shall commence on the date first written above and terminate three (3) years from said commencement date on July 5, 2020, unless terminated earlier in accordance with provisions, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 4. INDEPENDENT CONTRACTOR 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. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shalt 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 which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting thereftom 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 2 25F-48 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 arnount of $1,000,000 per occurrence, and $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. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 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 obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, subject to $1,000,000.00 aggregate. d. 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 e. 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. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employces, 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 direct or indirect operations of the Consultant or its contractors, 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 25F-49 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. 7. 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 infonnation 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 infonnation, 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 without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without r ' n-disslesed-13 8. 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 performance of services specified under this Agreement. 9. 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 telefacsimile 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 Facsimile (714) 647-6956 25F-50 Copies to: Executive Director of Planning and Building Agency Building Safety Division City of Santa Ana 20 Civic Center Plaza (M-19) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-5897 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 To Consultant: Interwvest Consulting Group Ron Beehler, SE, CBO 15140 Transistor Lane Huntington Beach, CA 92649 Facsimile (714) 899-9039 A party may change its address by giving notice in writing to the other party. 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 rF .. t 1.� a 1�'��.��__sicai�36�t�13—Ell�ll-1•?®—Pe£�C-+t'�4xLim�1� 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. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, 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 teens 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 teens and conditions hereof, shall not bind or obligate either 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. 25F-51 It. 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. 12. 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, the Executive Director 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 which fails to meet die standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION 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, tennination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. 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. 15. PROFESSIONAL LICENSES Consultant shall, throughout the terra 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 6 25F-52 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. 16. MISCELLANEOUS PROVISIONS a. 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 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. HUIZAR Clerk of the Council SONIA R. CARVALHO City Attorney CITY OF SANTA ANA CYNTHIA J. KURTZ Interim City Manager By: Lisa Storck Assistant City Attorney RECOMMEND APPROVAL: INTERWEST CONSULTING GROUP RON BEEHLER, SE, CBO Principal -in -Charge Executive Director Tax ID# 73-1630909 Planning & Building Agency 25F-53 EXHIBIT - A SCOPE OF SERVICES Building Inspection Services Interwest Consulting Group's staff of ICC certified inspectors has performed inspection services on a wide variety of construction projects including many large custom homes, new residential developments, commercial buildings, essential service buildings and industrial projects such as power plants and electrical wind turbines. When necessary for large or fast-track projects, multiple inspectors are available. All inspection personnel provided for services will be ICC and/or CASp certified as required. Our inspectors are able to read, understand and Interpret construction documents, truss drawings and calculations, prepare and maintain accurate records and reports, communicate effectively orally and in writing and work effectively with contractors, the public and City staff. Inspectors will possess knowledge of modern methods of construction, materials, tools and safety procedures utilized for building inspection. Inspections performed by Interwest Consulting Group's inspectors will be performed in accordance with the City's adopted version of the California Building Code, California Residential Code, California Green Building Code, California Mechanical Code, California Plumbing Code and the California Electrical Code. Projects will also be Inspected for conformance with the accessibility, noise and energy conservation requirements as mandated by State of California Title 24 and all applicable ordinances. Interwest Consulting Groups inspectors Wilf inspect projects Wconformance wit 1approved drawings and specifications which will include review of the permit documents to verify that onsite conditions are consistent with the approved documents for square footage, setbacks, heights and any other applicable conditions. At the completion of inspections, Interwest Consulting Group's inspectors will complete all necessary City forms, computer entries and documentation as required providing seamless service, Interwest's inspection staff will report directly to the Building official or other City designated person, 25F-54 Axmllyfflu FEES FOR SERVICES CLASSIFICATION HOURLY BILLING RATE BuildingInspector Services..................................................................................................................... $80.95 CASpSpecialist........................................................................................................................................... si10 Inspection Overtime ........................................... ......... 22S%ofAbove Listed Hourly Rates Mileage.............................................................................. ........................Current IRS Rate The variation In building inspector rates is based on the individual qualifications and experience of candidates, to be agreed upon prior to assignment. Hourly services are invoiced monthly. Mileage for personal vehicle use within the City will be charged at the current IRS vehicle mileage rate. Interwest Consulting Group will work with the City to supply all necessary billing information. 25F-55 25F-56 CONSULTANT AGREEMENT THIS AGREEMENT made and entered into this 51h day of July 2017, by and between AMERICAN ENGINEERING LABORATORIES, INC. (aka AEL), a California corporation (hereinafter "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 (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of municipal site and building inspection services. B. Consultant represents that Consultant is able and willing to provide such services to the City. 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 Consultant shall provide expedited inspection services on request of the Executive Director of the Planning and Building Agency, as set forth in Exhibit A, attached hereto and incorporated herein by this reference. Consultant shall deliver to City all work product resulting from the services provided. Said work product shall be submitted in a hard copy and in a form compatible with City's computer system, as agreed between the Executive Director and Consultant. In regard to copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings and computer programs, Consultant agrees and shall ensure that all of Consultant's affected officers, employees, agents, contractors, and volunteer workers agree that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, awed to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty - free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. Exhibit ea 25F-57 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. Consultant shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. Consultant is one of six Consultants selected to provide on-call municipal expedited site/building/inspection services on an as needed basis pursuant to the Request for Council Action (RFCA) dated March 7, 2017, the terns of which are incorporated herein. The total compensation for services provided by all contractors selected under the RFCA is a collective amount not to exceed $1,000,000 during the term of the Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate three (3) years from said commencement date on July 5, 2020, unless terminated earlier in accordance with provisions, below. The tort of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. a. INDEPENDENT CONTRACTOR 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 aid shall be responsible for all applicable withholding taxes. 5. 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 which 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 2 25F-58 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, and $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. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 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 obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, subject to $1,000,000.00 aggregate. d. 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 119�if�-t6�ttll�-�kt34-- e. 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. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold hanrrless 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 direct or indirect operations of the Consultant or its contractors, 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 25F-59 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. CONFIDENTIALITY If Consultant receives front 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 without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without S. 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 performance of services specified under this Agreement. 9. 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 telefacsimile or other telegraphic communication in the mamzer 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 Facsimile (714) 647-6956 25F-60 Copies to: Executive Director of Planning and Building Agency Building Safety Division City of Santa Ana 20 Civic Center Plaza (M-19) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-5897 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 To Consultant: American Engineering Laboratories, Inc. Carey Klingfus, Vice President 205 W. La Habra Blvd. La Habra, California 90631 Facsimile (562) 697-4009 A party may change its address by giving notice in writing to the other party. 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 m 4i 1 17 h 4' 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. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terns of this Agreement and any attachments hereto, the terns 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 terns and conditions hereof, shall not bind or obligate either 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, 5 25F-61 11. 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, 12. 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, the Executive Director 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 which fails to meet the standard of performance specified in the Recitals of this Agreement. 13, DISCRIMINATION 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. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. 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. 15. 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 Califoriia, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City 25F-62 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. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow 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. ATTEST: MARIA D. HUIZAR Clerk of the Council SONIA R. CARVALHO City Attorney Lisa Storeekk Assistant City Attorney RECOMMEND APPROVAL: CITY OF SANTA ANA CYNTHIA J. KURTZ Interim City Manager AMERICAN ENGINEERING LABORATORIES, INC. (aka AEL). Aida Klingfus By: President/CEO Executive Director Tax ID# 37-1419164 Planning & Building Agency 25F-63 Qualifications For Building Inspection Services RFQ 917-030 City of Santa Ana EXHIBIT A -SCOPE OF WORK American Engineering Laboratories, Inc. (AEL) is a C -Corporation registered in the State of California, and has business license #27889 in the City of La Habra. Our main office is located at 205 W. La Habra Blvd., La Habra, CA, 90631. AEL is pleased to submit our Scope of Work to the City of Santa Ana RFQ #17-030 to provide Building Inspection Services for the inspection of construction projects, Our proposed Scope of Work is as follows, but not limited to on how AEL will fulfill the requirements and expectations of the City: 1. Perform all building and safety inspections required by the City Provide accurate daily inspection sheets/reports and note all discrepancies, cite code violations, and issue correction or stop -work notices if needed Perform all inspections in accordance with the City's adopted version of the California Building Code, California Residential Code, California Green Building Code, California Mechanical Code, California Plumbing Code, California Electrical Code, and the Accessibility, Noise and Energy Conservation requirements as mandated by State Title 24 and all applicable codes; and 4. Review permit packages to verify that onsite conditions are consistent with the that may be applicable. 25F-64 EXHIBIT B Qualifications "JARNK W-1 For Building Inspection Services RFQ #17.030 City of Santa Ana FEE SCHEDULE AEL HOURLY FEE SCHEDULE IS OUTLINED BELOW FOR BUILDING INSPECTOR SERVICES. EQUIPMENT UTILIZED FOR BUILDING INSPECTION SERVICES INCLUDE, BUT ARE NOT LIMITED TO, PERSONAL LAB TOP, CELL PHONE, TABLET, EMAIL CAPABILITIES, LEVEL, TAPE MEASURE, AND PERSONAL VEHICLE. HOURLY RATES BELOW INCLUDE THE RATE FOR INSPECTORS EQUIPMENT UTILIZED ON THE JOB. Inspector Names Douglas Somers Job Title Building Inspector Hourly Rate $60.00 Richard Fesler Building Inspector $60.00 Roy Torres Building Inspector .__....___.._....._____-- George Robinson Robinson mm Building Inspector --$60.00 Moe Vale Building Inspector $60,00 Eugene Benson Building Inspector $60.00 Samuel Thomas Building Inspector _ $60.00 25F-65 25F-66 CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: AGREEMENT WITH CROSSTOWN ELECTRICAL & DATA, INC., FOR ON-CALL REPAIR SERVICES OF ADVANCED TRAFFIC MANAGEMENT AND COMMUNICATION SYSTEMS {STRATEGIC PLAN NO. 6, 1C} a CITY ANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl 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 Crosstown Electrical & Data, Inc., to provide on-call repair services and routine maintenance for the advance traffic management and communication system, for a three-year period beginning July 5, 2017, and expiring July 4, 2020, with provision for two one-year extensions exercisable by the City Manager, in an amount not to exceed $50,000 annually, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Traffic Management Center (TMC) is a computerized traffic signal system that controls all traffic signals and Closed Circuit Television cameras in the city. This system utilizes twisted pair cables, fiber optic cables, wireless, and other methods to provide communication between the TMC and field equipment. These communication systems require routine maintenance and emergency repairs due to malfunctions or damage that occurs during unauthorized access, traffic collisions, or construction activities. A Request for Proposals (RFP) was issued on March 23, 2017, but only one proposal was received. The RFP was re -issued on May 25, 2017, and two proposals were received and evaluated by a four -member review panel comprised of Public Works Agency staff. The scores were based on firm experience, service record performing requested repair services, responsiveness to the RFP requirements, and completeness of the proposal. The summary of proposal scores are as follows: Crosstown Electrical & Data Inc. 92.8 Aegis ITS 82.3 25G-1 Agreement for On -Call Repair Services for Traffic Management & Communication Systems July 5, 2017 Page 2 Based on the RFP results, staff recommends that the on-call contract for advanced traffic management system and communication systems repair services be awarded to Crosstown Electrical & Data, Inc. This contractor will serve as the only vendor authorized by the City for the term of this agreement. 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). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Upon approval of the Fiscal Year 2017-18 Annual Budget, funds in the amount of $50,000 will be available in the Traffic Signal Maintenance Account (No. 02917620-62321) for expenditure in FY 2017-18. Subsequent funding of $50,000 annually will be budgeted in FY 2018-19, FY 2019-20, and FY 2020-2021, and in FY 2021-22 and FY 2022-23, if the renewal options are exercised. Fred Mousavipour Executive Director Public Works Agency FM/WEG/CR Exhibit: 1. Agreement APPROVED AS TO FUNDS & ACCOUNTS: Francisco Gutierrez Executive Director /W Finance & Management Services Agency 25G-2 AGREEMENT TO PROVIDE ON-CALL ADVANCED TRAFFIC MANAGEMENT COMMUNICATION SYSTEM REPAIRS WITH CROSSTOWN ELECTRICAL & DATA, INC. THIS AGREEMENT is made and entered into this 5th day of July, 2017 by and between. Crosstown Electrical & Data, Inc., a California Corporation, ("Contractor"), 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 May 25, 2017, the City issued Request for Proposal No. 17-033, by which it sought Contractors to provide On -Call Advanced Traffic Management Communication System Repair Services for the City of Santa Ana Public Works Agency. B. Contractor submitted a responsive proposal that was selected by the City, Contractor represents that it is able and willing to provide the services described in the scope of work that was included in RFP No. 17-033 and attached as Exhibit A. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional contracting frnn 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, Contractor shall perform the services that are described in Exhibit A. Contractor's proposal is incorporated by reference as though fully set forth herein. When the need for services arises, City may initiate services through use of a task or similar order issued to Contractor. 2. COMPENSATION a. City neither warrants nor guarantees any minimum or maximum compensation to Contractor under this Agreement. Contractor shall be paid only for actual services performed under this Agreement at the rates and charges identified in Exhibit B. The total annual sum to be expended under this Agreement shall not exceed $50,000 during the term of the Agreement, including any extension periods. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting Exhibit 1 25G-3 procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and continue for three (3) years, unless terminated earlier in accordance with Section 17, below. The term of this Agreement may be extended for up to two (2) one-year extensions upon a writing executed by the City Manager and the City Attorney 4. PREVAILING WAGES Contractor is aware of the requirements of California Labor Code Section 1720, et seq„ and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, 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. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. 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. S. INDEPENDENT CONTRACTOR Contractor 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 Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and 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. 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 Contractor under this Agreement ("Documents & Data"). Contactor 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 Page 2 of 9 25G-4 Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all Documents & Data. Contractor makes no such representation and warranty in regard to Documents & Data which were provided to Contractor 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, 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 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 Contractor'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 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. Worker's Compensation Insurance. In accordance with the California Labor Code, Contractor, if Contractor 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 tinder this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $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 $1,000,000 per claim with $2,000,000 in the aggregate. C. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: Page 3 of 9 25G-5 (i) Contractor 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 by the City. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect, by consultant, without thirty (30) days prior written notice to the City. (iv) Contractor shall supply City with a fully executed additional insured endorsement. 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 Agreement. 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, 8. INDEMNIFICATION Contractor agrees to defend, and shall indemnify and hold handless 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 negligent operations of the Contractor or its contractors, 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 Contractor 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. Notwithstanding the foregoing, to the extent Contractor'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 of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. Page 4 of 9 25G-6 9. INTELLECTUAL PROPERTY INDEMNIFICATION Contractor shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Contractor to the City pursuant to this Agreement. 10. RECORDS Contractor shall keep records and invoices in connection with the work to be performed under this Agreement. Contractor 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 Contractor under this Agreement. All such records and invoices shall be clearly identifiable. Contractor 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. Contractor 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 Contractor under this Agreement. 11. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor 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 Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement Page 5 of 9 25G-7 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 Scction, 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 Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 Fax 714-647-5635 To Contractor: Crosstown Electical & Data, Inc. Attn: David P, Heermance 5154 Diaz Street Irwindale, CA 91706 Fax 626-869-0192 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. I£ 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 Contractor regarding the subject matter herein, 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 Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the tenns and conditions hereof, shall not bind or obligate Contractor 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. Page 6 of 9 25G-8 15. ASSIGNMENT Inasmuch as this Agreement 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 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 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 or 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, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor 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 Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 18. NON-DISCRIMINATION Contractor shall not discriminate because of race, color, creed, relation, 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, tennination or other employment related activities or in connection with any activities under this Agreement. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. Page 7 of 9 25G-9 19. 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 patties 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. 20. PROFESSIONAL LICENSES Contractor 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. Contractor 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. 21. 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. 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 CYNTHIA J. I{URTZ Cleric of the Council Interim City Manager -- signatures continued on next page -- Page 8 of 9 25G-10 APPROVED AS TO FORM CROSSTOWN ELECTRICAL & DATA, INC. SONIA R. CARVALHO City Attorney By: J M. Funk Name: Assistant City Attorney Title: RECOMMENDED FOR APPROVAL FRED MOUSAVIPOUR Executive Director Public Works Agency Page 9 of 9 25G-11 Exhibit A - Contractor Agreement with Crosstown Electrical & Data Appendix ATTACHMENT SCOPE OF WORK CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR ADVANCE TRAFFIC MANAGEMENT SYSTEM AND COMMUNICATION SYSTEMS ON-CALL REPAIR SERVICES RFP NO.: 17-033 A. DESCRIPTION Santa Ana's Advanced Traffic Management System (AIMS) monitors and controls all of the traffic signals and CCTV's within the City. ATMS encompasses three major subsystems, Traffic Signal System, Closed Circuit Television (CCTV) system and the Transportation Information System (TIS), Communication between the Traffic Management Center (TMC) and the field equipment are established via fiber optic, twisted -pair interconnect, wireless broadband and limited use of telephone (T1) lines. The main equipment for the City's AIMS is located in the TMC in City Hall. The City also maintains a Remote TMC in adjacent Rosa Annex building. The TMC has a dedicated local area network that consists of computer servers, computer workstations, managed switches and routers, video processing units, hardwire interconnects and fiber optic patch panels, The City's current traffic signal system is Telvent Management Information System for Transportation (MIST). The City's Closed Circuit Television (CCTV) System consists of Cohu and Axis cameras and video encoders, The City's Video Management System is Milestone XProtect Corporate. The City's communication infrastructure consists of twisted pair cable, single mode fiber optic cable, wireless broadband antennas, Tl equipment and other communication equipment. The hardwire interconnect and fiber optic cables are usually in dedicated conduit from the TMC to controller cabinets and corm amication HU'B's in the field. The City AIMS layout, equipment and general schematic of the system communications are shown in Exhibit 1. B. SCOPE OF WORK In general, the on-call Contractor will perform emergency repairs due to malfunctions or damages to the systems and communication equipment and cables. Majority of the work are anticipated for field equipment repairs. The scope of work includes but not limited to the followings: The Contractor is required to troubleshoot, repair and procure replacement or upgraded equipment to re-establish and/or improve the performance and reliability of the communication and networking systems, The networldng system includes fiber optic Ethernet switches, routers, firewalls and associated equipment/computers that make up the uetworlc, The Contractor is required to procure and assist in integrating networking and communication hardware on an as needed basis for the TMC. City of Santa Ana RFP 17-033 Page Al -1 25G-12 • The Contractor is required to perform field communication system repairs that include installing conduit and cables; splicing of fiber optic and hard interconnect cables and installing new or replacing old splice kits. Fiber optic splicing shall be by fission method and Hardwire Interconnect splice shall be done using weather resistant connector (AMP Picabond Connector) • The Contractor is required to troubleshoot/repair and/or install CCTV cameras. • The Contractor is required to troubleshoot/repair and/or install wireless communication equipment. • The Contractor shall furnish all tools, equipment, apparatus, facilities, labor, services and materials to perform all work necessary to maintain/repair the ATMS and communication systems. • The contractor may utilize subcontractors and/or manufacturers with specific communication, network or related expertise to provide the needed services, • Work to be done is either based on time acid material or lump sum per task, to be determined prior to each authorization, C. LICENSES The Contractor must possess or obtain a valid California Class C-10 Electrical Contractor license prior to the scheduled award date of this contract. D. SERVICE PERSONNEL The Contractor shall provide qualified service personnel or subcontractor to maintain and to service all ATMS equipment as described. Personnel shall have at least a year of, experience of maintaining and troubleshooting ATMS equipment and networking equipment such as Ethernet switches, routers and firewalls. The Contractor shall include the ATMS maintenance personnel's qualifications in the bid. The City will notify the Contractor in the City's sole opinion; personnel proposed for any AIMS maintenance are not qualified to work on these systems, Within thirty (30) days after City makes the determination the Contractor shall hire qualified Sub -Contractors) specialized in ATMS equipment and networking for troubleshooting and repair without any additional compensation from the City, E, EQUIPMENT The Contractor shall have access to lift/boom truck with a mininuun of 50 -foot reach capability to access cameras, pan/tilt mets. F. WORKING HOURS The Contractor's activities shall be confined to the following hours: From 7:00 am. to 5:00 pain., Monday through Friday, within work areas having either no lane closures or having continuous lane closures, i.e. 24-hour closures lasting more than one day. City of Santa Ana RFP 17-033 2P� IA 3 From 9:00 a.m. to 3:00 p.m„ Monday through Friday, for work requiring temporary lane closures, i.e. those having less than a 24-hour duration, and for work at r aq or intersections. Deviation from these hoauu/days shall not be permitted without the prior consent of the Engineer, except in emergencies involving inunediate hazard to be persons or property, or as specified otherwise G. CITY RESPONSIBILITIES The City will provide as -built plans and any other material related to the ATMS and Communication Systems to facilitate the repair work. H. FEE SCIIEDULE In addition to Section III.13.3 (Submittal Requirements: Fee Proposal) fee schedule shall be structured per Attachment 4 Proposal Item Pricing. City of Santa Ana RFP 17-033 Page Al -3 25G-14 Exhibit B - Contractor Agreement with Crosstown Electrical & Data Appendix ATTACHMENT 4 PROPOSAL ITEM PRICING CITY OF SANTA ANA REQUEST FOR PROPOSALS FOR ADVANCE TRAFFIC MANAGEMENT SYSTEM AND COMMUNICATION SYSTEMS ON-CALL REPAIR SERVICES RFP NO.: 17-033 Certification - I certify that I have read, understand and agree to the terns azul conditions of this Request for Proposal, 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 air responsible for reporting any errors, omissions or discrepancies to the City for clarification prior to the submission of my proposal, Proposal Item Pricing - Pricing shall be based on an hourly cost, tine and materials basis or for completing the task for services described in Attachment 1 Scope of Work, Fee must be inclusive of all costs, including but not limited to, direct and indirect costs for labor, overhead, incidental supplies, travel, mileage, and fuel, Any special materials will be purchased by the Contractor only atter discussed and authorized by the City Projects Manager or designee in writing. A. Material: Contractor's cost for the supply phis (+) 15 /q per Section 2.04.19 of the "°Greenbook" Standard Specifications for Public Worics Constructions, latest edition. B. Labor: Contractor's rates (including all fringe benefits, markup, over heads, etc,) for all job classifications, List additional staff or equipment as necessary including minimum hourly charged per call out trip if applicable. _ TteTir —D_escki tion — _ p Straight Time Overtime 1. Lead'Pochnician $ 125.00 /br, $ 155.00 thr. 2. Technician $ 120.40 /lm $150.00 /hr, 3. Boom Ladder/Truck $ 25.00 nm. $ 25.00 /lir. 4. 50' Height Boom Tnwk $ 45.00 /ill $_f5 0_0 /hr. 5. Single -mode fiber fusion splice $ 38.00 / per fiber. 6. Fiber Optic Technician $ 140.00 /hr, $ 1-60.00 /Im. 7, �PGbtnl�;an i� Stint 'CrvLK. $.,._��,uo $ IO,Oe /hr. s. $ _Jin•. $ nrr. 9. $ /hn City of Santa Ana RFP 17-033 Page A4-1 25G-15 10. $ /hr. 11. $ /hr, 12. 13. $ /hr. 14. $ /hr. CROSSTOWN ELECTRICAL & DATA, INC. 626-813-6693, FAX 626-869-0192 LEGAL NAME OF COMPANY PHONE AND FAX NUMBER 5454 DIAZ ST., IRWINDALE, CA 91706 BUSINESS ADDRESS DAVID P, HEERMANCE PRESIDENT AGENT i�%% »4c, 6/12/17 DAVE@CROSSTOWNDATA.COM OF AUT ORIZBD AGENT DATE E-MAIL ADDRESS 22-3611877 756309 FEDERAL IDENTIFICATION NUMBER CONTRACTOR LICENSE NUMBER. (IF APPICABLE) (IF APPICABLE) City of Santa Ana RFP 17-033 Page A4-2 25G-16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: INSURANCE RENEWALS WITH BIG INDEPENDENT CITIES EXCESS POOL, PUBLIC ENTITY PROPERTY INSURANCE PROGRAM AND CALIFORNIA STATE ASSOCIATION OF COUNTIES {STRATEGIC PLAN NO. 4, 1} r /7 cr CITY MAIAGER i l • CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Approve the City's continued membership in the Big Independent Cities Excess Pool Liability Program from July 1, 2017 to July 1, 2018 at an estimated premium cost not to exceed $3,300,000. 2. Approve the City's continued membership in the Big Independent Cities Excess Pool Workers' Compensation Program from July 1, 2017 to July 1, 2018 at an estimated premium cost not to exceed $404,000. 3. Approve the City's continued participation in the Public Entity Property Insurance Program from July 1, 2017 to July 1, 2018 at an estimated premium cost not to exceed $650,000. 4. Approve the City's continued participation in the California State Association of Counties — Excess Insurance Authority's Crime Bond Program from July 1, 2017 to July 1, 2018 at an estimated premium cost not to exceed $12,000. DISCUSSION The City is a member of Big Independent Cities Excess Pool (BICEP) Joint Powers Authority which was formed in September 1988. The current member cities include Santa Ana, Huntington Beach, San Bernardino, Oxnard, West Covina, and Ventura. The purpose of BICEP is to provide insurance coverage for its members, shielding them from financial debt due to large liability claims, judgments, and settlements. Additionally, participation in a pool provides rate stability and can offer broader coverage. The BICEP excess liability insurance premium for the July 1, 2017 to July 1, 2018 period will not exceed $3,300,000, an increase over last year's premium of $1,516,256. This increase is due to the hardening of the Police Liability market. The excess liability program covers liability claims from $1,000,000 to $27,000,000 per occurrence with a $1,000,000 self-insured retention (SIR) which functions like a deductible. 29A-1 Insurance Renewals with Big Independent Cities Excess Pool, Public Entity Property Insurance Program and California State Association of Counties July 5, 2017 Page 2 The BICEP workers' compensation insurance premium for the July 1, 2017 to July 1, 2018 period will not exceed $404,000, which is a slight increase over last year's premium of $350,000. The workers' compensation program provides statutory excess workers' compensation insurance coverage with a $1,000,000 SIR. The Public Entity Property Insurance Program (PEPIP) was established in May 1993 with seventeen public agencies including the City of Santa Ana. The purpose of PEPIP is to provide public agencies with group purchasing strength. Since 1993, PEPIP has grown to include over 6,400 members in 45 states, which has allowed the group to purchase property insurance at affordable premiums. The estimated $650,000 premium, a decrease from last year's premium of $668,535, will provide $1,000,000,000 of coverage for insured City properties from July 1, 2017 to July 1, 2018. PEPIP will provide the City with $100,000,000 for boiler and machinery damage and $82,500,000 in coverage for flood damage (coverage is limited to $50,000,000 in Flood Zone A.) This cost includes the purchase of earthquake insurance. The earthquake coverage provides coverage up to $25,000,000 per occurrence and annual aggregate with a deductible of 5% per unit ($100,000 Minimum). The City joined the California State Association of Counties — Excess Insurance Authority (CSAC-EIA) Crime Bond Program on April 1, 2004. The renewal premium from July 1, 2017 to July 1, 2018 remains at $12,000. 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). FISCAL IMPACT Funds are budgeted in the proposed 2017-18 Liability & Property Insurance account (account no. 08009051-64010) for an estimated premium cost not to exceed $3,962,000 and Workers' Compensation account (account no. 08209054-64010) for an estimated premium cost not to exceed $404,000. L EcNvard Raya Executive Director Personnel Services APPROVED AS TO FUNDS AND ACCOUNTS: `a\Is �L �M0 1 Francisco Gutierrezy�j Executive Director Finance & Management Services Agency 29A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: RECEIVE AND FILE STAFF REPORT APPROVING CONDITIONAL USE PERMIT NO. 2017-16 TO ALLOW CONTINUED USE OF A 60 -FOOT HIGH WIRELESS COMMUNICATION FACILITY FOR T -MOBILE WEST LOCATED AT 3308 WEST WARNER AVENUE — SMARTLINK LLC., APPLICANT (STRATEGIC PLAN NO. 3,2) Z'7 CITY ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: r�a7:Ti1TT4W ❑ As Recommended ❑ As Amended ❑ Ordinance on 15' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2017-16 as conditioned. PLANNING COMMISSION ACTION At its regular meeting on June 12, 2017, by a vote of 6:0, the Planning Commission adopted a resolution approving Conditional Use Permit No. 2017-16 as conditioned to renew the entitlements of an existing 60 -foot high mono -pole major wireless communication facility located at 3308 West Warner Avenue located in the Light Manufacturing (M-1) zoning district. The Planning Commission made no changes to the recommendation outlined in the attached staff report (Exhibit A). DISCUSSION Smartlink, LLC. is proposing to renew the entitlements of an existing 60 -foot high wireless communications facility. In addition, the applicant will remove and replace three antennas and the radome from the mono -pole and install three new remote radio units (RRU's) within the existing 160 -square foot equipment building. The mono -pole and equipment enclosure are located within a screened shelter on the southwest corner of the property, adjacent to the Union Pacific railroad line and set back approximately 200 -feet from Warner Avenue. Aesthetically, the mono -pole will continue to be stealthed as a light standard. The applicant will landscape an existing planter along the Warner Avenue frontage, re -stripe and re -slurry the parking lot as needed, and re -paint the wireless communications facility enclosure to ensure that the subject facility and site continue to comply with all SAMC requirements. 31A-1 CUP No. 2017-16 –T -Mobile West Wireless Facility at 3308 West Warner Avenue July 5, 2017 Page 2 In processing wireless communications facilities, the City of Santa Ana must consider provisions contained within Section 6409(a) of the Middle Class Tax Relief Act [47 U.S.C. § 1455(a)], which limits the ability of local agencies to impose additional conditions of approval when cell phone tower permits are renewed. These limits include seismic retrofits, which, according to a study by the City of Los Angeles, cost as much as constructing a new tower. However, the City will condition all new communication facilities to comply with an Importance Factor of 1.5, which is the building standard for public safety facilities. This will ensure telecommunication facilities are functional and provide cell coverage in the event of 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). FISCAL IMPACT There is no fiscal impact associated with this action. Candida Neal, AICP —� Planning Manager Planning & Building Agency JG:rb S:PIanning Commission\02-12-17\CUP No. 2017-16.cc Exhibit: A. Planning Commission Staff Report 31A-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: JUNE 12, 2017 TITLE: PUBLIC HEARING - CONDITIONAL USE PERMIT NO. 2017-16 TO ALLOW CONTINUED USE OF A 60 - FOOT HIGH WIRELESS COMMUNICATION FACILITY FOR T -MOBILE WEST LOCATED AT 3308 WEST WARNER AVENUE — SMARTLINK LLC., APPLCIANT {STRATEGIC PLAN NO. 3,2) Prepared by Jerry C_Guevara r��u � ecutiv irector RECOMMENDED ACTION PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO Planning nager Adopt a resolution approving Conditional Use Permit No. 2017-16 as conditioned. Executive Summary Smartlink, LLC., representing T -Mobile West, LLC., is requesting approval of a conditional use permit (CUP) to renew an existing 60 -foot high major wireless ("mono -pole") communication facility located at 3308 West Warner Avenue. 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 is currently developed with the subject mono -pole and a communication equipment enclosure, as well as a 26,000-sqaure foot tilt up industrial building. Table 1: Project and Location Information Item Information Pro ect Address 3308 West Warner Avenue Nearest Intersection Warner Avenue and Susan Street General Plan Designation Industrial (IND) Zoning Designation Light Manufacturing (M-1) Surrounding Land Uses North Industrial East Industrial South Industrial West Industrial Property Size 1.5 acres Existing Site Development The site is developed with a t 26,000 -square foot concrete tilt up industrial building. Use Permissions Allowed with a conditional useermit CUP Zoning Code Sections Affected Use SAMC Section 41-198.3 b Operational Standards SAMC Section 41-198 Wireless Communication Facilities) EXHIBIT A 31A-3 Conditional Use Permit No. 2017-16 June 12, 2017 Page 2 Project Description Smartlink, Ll -C. is proposing to renew the entitlements of an existing 60 -foot high wireless communications facility. In addition, the applicant is proposing to remove and replace three antennas and the radome from the mono -pole and install three new remote radio units (RRU's) within the existing 160 -square foot equipment building. The mono -pole and equipment enclosure are located within a screened shelter on the southwest corner of the property, adjacent to the Union Pacific railroad line and set back approximately 200 -feet from Warner Avenue. Aesthetically, the mono -pole will continue to be stealthed as a light standard. The applicant will landscape an existing planter along the front fagade of the main building that fronts Warner Avenue, re -stripe and re -slurry the parking lot as needed, and re -paint the wireless communications facility enclosure to ensure that the subject facility and site continue to comply with all SAMC requirements. Table 2: Development Standards Standards -1 by SAMC" Provided-' Stealth Design Concealed Structure Stealth as a Light Standard Site Selection Areas that will minimize aesthetic The wireless facility is located at the Intrusion southwest corner of the property and set back approximately 200 -feet from Warner Avenue. Maximum Facility Height _ 60 feet 60 feet Landscaping Groundcover at the base of the Applicant will provide landscape at facility and one 24 inch box tree the front of the main building to comply with this requirement. Equipment Screening Decorative fencing such as wrought The wireless community facility is iron or block around the wireless currently screened by a six foot high facility CMU wall and the equipment is housed within a 14 foot high building. In January 2005, the Planning Commission approved CUP No. 2004-33 to allow the construction of the subject mono -pole (stealth as a light standard) 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 current 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. Proiect 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 the T -Mobile West facility are required to have a stealth design and to be located in an area that provide the greatest amount of visual screening. Further, these major facilities require 31A-4 Conditional Use Permit No. 2017-16 June 12, 2017 Page 3 the approval of a CUP. Staff has reviewed the applicant's request to continue operation of a major wireless communication facility at this location and has determined that the following analysis warrants staff's recommendation of approval for the CUP. The existing mono -pole is compatible with the surrounding area and will not adversely affect the economic viability in the area as the mono -pole has a stealth design that will maintain the appearance of a light standard. In addition, due to its location at the rear of an industrial site and surrounded by industrial uses, the facility will not have any negative visual impacts nor adverse impacts to the surrounding properties. As part of the development review of the project, staff worked closely with the applicant to identify improvements to enhance the overall appearance of the site. As part of this application, the applicant will install additional landscape to an existing planter along the front facade of the main building that fronts Warner Avenue, re -stripe the parking lot to meet current parking standards, fill in pavement cracks with a layer of slurry seal as needed, and re -paint the wireless communications facility enclosure. These improvements will bring the site into compliance with Section 41-194.4 of the SAMC. Pursuant to provisions contained within Section 6409(a) of the Middle Class Tax Relief Act [47 U.S.C. § 1455(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 the requested site improvements are in accordance with this the Middle Class Tax Relief Act. In addition, the wireless facility will be maintained to comply with the California Building Code Section 3108, which sets the standards for the construction of telecommunication and broadcast towers. Furthermore, this location is optimal to provide the coverage necessary for existing and expanding service. The existing facility will continue to benefit the immediate community by assisting in closing service gaps and providing additional calling capacity for T -Mobile in order to Offer high quality coverage for residents and businesses In the City. 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). 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. 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. Table 3• CEQA Strategic Plan Alignment and Public Notification & Community Outreach CEQA Strategic Plan Alignment, and Public Notification & Community Outreach CEQA CEQA T e General Rule Section 15061 (b) t3)1 Document T e General Rule Exemption (ER No. 2015-85) Reason(s) Exempt or Analysis 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. This is an existing wireless communication facility and no alterations are being proposed at this time. Furthermore, the facility wi11 comply with FAA and FCC re Mations. 31A-5 Conditional Use Permit No. 2017-16 June 12, 2017 Page 4 CE(�tegic Plan Alignment, and Public Notification & Communit Outreach L _ strategic Plan Alignment Goal(s) and Policy(s) 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) Public Notification & Community Outreach ; Required Measures A ublic noticed was posted on the project site on June 1 2017 Notification by mail were mailed to all property owners and occupants within 500 feet of the ro'ect site on June 1, 2017 News a er ostin was ublished in the Oran e Count Reporter on June 1, 2017 The sub'ect si#e is not located within the boundaries of a nei hborhood association Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve CUP No. 2017-16 as conditioned. Jerry C. Guevara Assistant Planner I JG:sb MAConditlonal Use Per[TA2017CUP No, 2017-18 at 3308 W. Warner Ave=P No. 2017-16.pGAM Exhibits: 1 — Resolution 2 — Vicinity Map 3 — Land Use Map 4 — Site Photo 5—Site Plan 6 — Enlarged Site Plan 31A-6 6.12.17 LS RESOLUTION NO. 2017 -XX A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2017-16, AS CONDITIONED, TO ALLOW CONTINUED USE OF A 60 -FOOT HIGH WIRELESS FACILITY ON THE PROPERTY LOCATED AT 3308 WEST WARNER AVENUE 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. Smartlink, LLC. ("Applicant"), representing T -Mobile West, LLC., is requesting approval of Conditional Use Permit No. 2017-16 to renew the entitlements of an existing 60 -foot high mono -pole major wireless communications facility located at 3308 West Warner Avenue. 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. On January 10, 2005, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2004-33 to approve a new60-foot mono -pole wireless communication facility. The applicant was approved at a 5-1 vote. E. As the current facility's entitlements are now over its 10 year timeframe, the Applicant is required to apply for a new CUP in order to maintain the entitlements of the facility current. F. On June 12, 2017, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2017-16. G. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a conditional use permit upon making certain findings: Resolution No. 2017-xx Page 1 of 6 31A-7 1. The proposed use will 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 which will 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. 2. The proposed use under the circumstances of the particular case will not 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 3308 West Warner Avenue 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. The proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. The existing mono -pole will be compatible with the surrounding area and will not adversely affect the economic viability in the area as the mono -pole has a stealth design that will maintain the appearance of a light standard. In addition, due to its location at the rear southwest corner of an industrial site and setback approximately 200 -feet from Warner Avenue, it is not expected to create any adverse economic impacts for the surrounding properties. 4. The proposed use will 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. Additional on-site improvements will bring the site into closer compliance with SAMC standards. Resolution No. 2017-xx Page 2 of 6 31A-8 5. The proposed use will not 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 -pole. In addition, Goals 3 and 5 require preservation of neighborhood character and integrity as well as mitigation of development impacts. The mono -pole'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. H. In accordance with the California Building Code Section 3108, the subject telecommunication facility will 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. 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. 2015-85 will be filed for this project. Section 3. 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. Resolution No. 2017-xx Page 3 of 6 31A-9 Section 4. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2017-16 as conditioned in Exhibit A, attached hereto and incorporated herein, for the project located at 3308 West Warner Avenue. 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 June 12, 2017, and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. ADOPTED this 12th day of June, 2017. AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: Lyn nette Verino Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, SARAH BERNAL, Commission Secretary, do hereby attest to and certify the attached Resolution No. 2017-xx to be the original resolution adopted by the Planning Commission of the City of Santa Ana on June 12, 2017. Date: Commission Secretary City of Santa Ana 31A-10 Resolution No. 2017-xx Page 4 of 6 EXHIBIT A Conditions of Approval for Conditional Use Permit No. 2017-16 Conditional Use Permit No. 2017-16 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. 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. 7. Conditional Use Permit No. 2017-16 expires 10 years from the date of City Council approval. Resolution No. 2017-xx Page 5 of 6 31A-1 1 8. The following on-site improvements shall be conducted prior to the release of this resolution: a. The parking lot shall be restriped in accordance to Sec. 41-1303 of the SAMC. Parking stalls shall be double striped and shall not be less than eight (8) feet six (6) inches wide and eighteen (18) feet long. b. Fill in pavement cracks with a layer of slurry seal as needed. C. Repaint equipment building and shelter. d. Install landscape to the existing planter along the front fapade of the main building that fronts Warner Avenue, as noted on the approved plans. Once the conditions and improvements have been addressed, contact the case planner to schedule an inspection. The case planner will verify that all conditions and improvements have been met and will release the resolution to the applicant. 9. In the event of graffiti markings, applicant shall eliminate all such graffiti within twenty four (24) hours, with or without notice from the City, as a condition of the permit. Resolution No. 2017-xx Page 6 of 6 31A-12 ml he/ M Rl of z . R1 Mi Ml Mi RI FORor.M 1 '�. Rl MOE� F3 Al Ml M1 Mi Ri R3 Rl M1 M1 M1 RR R1." kR1 °E Rl PENDLE- AV M1 MI .Ml R1 �p j RI Al =E- R4 l M1 Mi e \ + M1 do+..o C4 WARNER Au IITI R2-PRD PRO ECTS[iE M1 ? / F dRiap CE- R4 J M1 M1 "PR1 m Z m R1 w m M1 i l7 = I I I I SEGERSTROM AVE. Al GEJ LAGRCULTURAL} CR CCMMFUALR 3DBAPAL Ri SNGLEFAMILYRBDEN7AL -B PARKNGMODI9CAl10N �MEAT0BTER R2 TVVID AMILYFODIEN E CSM OCMMHNOALSOUTH MAIN M1 LICNTINDUSFRAL m MULIAFLEDEASTYMULTIPLE C1 COMMUNNYCOMME AL M2 HFAVYINDL Al_ FAMILYRE3DBdCE Ci-MD COMM. CCMMFTTAAlJMU531M DISRACT MO MILITAR(OFB2ATTONS RA S. IEUREANAFARTMBNM C2 G]NEALOCMNI SAL 0 OP SFAC RE FESDENTALRAATE C3 GENTRALBASNESS P PRDFF90NAL YcOHCDE OPMENT C1A CENTRAL BASNESSARBSTMLIAGE FCD PANN®COMMUNITYDEVO.O%NBAT S° SPEGBCP N CA %ANND)SiOP%NGCSAIIIR PANNEDFE9DRNTALDE 0PMBJT C5 AWMALOOMMDdCAL CUP 2017-16 At- MONO -POLE WIRELESS FACILITY cw 3308 WEST WARNER AVENUE — — = 500 FEET 1" = 1000 FEET 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 p22 J MAYS � J CUP 2017-16 >. MONO -POLE WIRELESS FACILITY 3308 WEST WARNER AVENUE �qy 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 LAND USE MAP EXHIBIT 3 31A-14 N� Q — RI L N E INDUS RIAL Pv�NV ER � Lu INDUS r 4 s.f Q w IND STRIAE ¢ CENTRAL AVE. LL v CENTRAL AVE. } � O D z Z J ADAMS ST. � INDUSTRIAL J a ~ w F v > z lwi Z V w _ SEG ERSTRO M AVENUE CUP 2017-16 >. MONO -POLE WIRELESS FACILITY 3308 WEST WARNER AVENUE �qy 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 LAND USE MAP EXHIBIT 3 31A-14 e, .. - 5A d \ EXI3DNr PARKING LOr ;7 1 E - Lt IT T_ IE ET,Il E, IT IT-, I`, - � I -[L 41tFILL.E I E TF WITH 4 LA�E` 'F - IIEEJZl. I,E LI',F r I T LLE �E 1,1,TE 'EE NEET ATE -'I IE, H - '-E CAB Aid? Ea IDING BUILDING 'El "A It,", L T, " I I I tl.W, FILL, I 'Iffli LF EIL R;F 1101� pil 0" Awl: I IIII j I _EXISTING"P-MOBILE FACILIM AND LOCATION Or PROPOSED MODIMATIQNS 4'r CUP 2017-17 MONO -POLE WIRELESS FACILITY 3308 WEST WARNER AVENUE EXHIBIT 5 SITE PLAN 31A-16 I UD '-L I l' ILI I T I CUP 2017-16 MONO -POLE WIRELESS FACILITY 3308 WEST WARNER AVENUE EXHIBIT 6 ENLARGED SITE PLAN 31A-17 6.12.17 LS RESOLUTION NO. 2017-23 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2017-16, AS CONDITIONED, TO ALLOW CONTINUED USE OF A 60 -FOOT HIGH WIRELESS FACILITY ON THE PROPERTY LOCATED AT 3308 WEST WARNER AVENUE 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. Smartlink, LLC. ("Applicant"), representing T -Mobile West, LLC., is requesting approval of Conditional Use Permit No. 2017-16 to renew the entitlements of an existing 60 -foot high mono -pole major wireless communications facility located at 3308 West Warner Avenue. 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. On January 10, 2005, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2004-33 to approve a new 60 -foot mono -pole wireless communication facility. The applicant was approved at a 5-1 vote. E. As the current facility's entitlements 10 year timeframe, the Applicant is required to apply for a new CUP in order to maintain the entitlements of the facility current. F. On June 12, 2017, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2017-16. G. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a conditional use permit upon making certain findings: Resolution No. 2017-23 Page 1 of 6 31A-18 1. The proposed use will 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 which will 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. 2. The proposed use under the circumstances of the particular case will not 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 3308 West Warner Avenue 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. The proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. The existing mono -pole will be compatible with the surrounding area and will not adversely affect the economic viability in the area as the mono -pole has a stealth design that will maintain the appearance of a light standard. In addition, due to its location at the rear southwest corner of an industrial site and setback approximately 200 -feet from Warner Avenue, it is not expected to create any adverse economic impacts for the surrounding properties. 4. The proposed use will 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. Additional on-site improvements will bring the site into closer compliance with SAMC standards. Resolution No. 2017-23 Page 2 of 6 31A-19 5. The proposed use will not 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 -pole. In addition, Goals 3 and 5 require preservation of neighborhood character and integrity as well as mitigation of development impacts. The mono -pole'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. H. In accordance with the California Building Code Section 3108, the subject telecommunication facility will be designed, constructed, and/or maintained in accordance with the provisions of TIA-222, which is a set of nationally recognized standards for the construction of telecommunication and broadcast towers. Section 2. 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. 2015-85 will be filed for this project. Section 3. 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. Resolution No. 2017-23 Page 3 of 6 31A-20 Section 4. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2017-16 as conditioned in Exhibit A, attached hereto and incorporated herein, for the project located at 3308 West Warner Avenue. 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 June 12, 2017, and exhibits attached thereto; and, the public testimony, written and oral, all of which are incorporated herein by this reference. ADOPTED this 12th day of June, 2017, AYES: Commissioners: Alderete, Bacerra, Contreras -Leo, McLoughlin, Mendoza, Verino (6) NOES: Commissioners: None (0) ABSENT: Commissioners: Nguyen (1) ABSTENTIONS: Commissioners: None (0) Lynnette Verino Chairperson APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney �Nairi��y_�rxQ y_l 11r.11 F_�li.�i.r_��iz.»r�rn_�� I, ROSA BARELA, Acting Recording Secretary, do hereby attest to and certify the attached Resolution No. 2017-23 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on June 12, 2017. Date: Acting Recording Secretary City of Santa Ana 31A-21 Resolution No. 2017-23 Page 4 of 6 Conditions of ADDroval for Conditional Use Permit No. 2017-16 Conditional Use Permit No. 2017-16 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. 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. 7. Conditional Use Permit No. 2017-16 expires 10 years from the date of City Council approval. Resolution No. 2017-23 Page 5 of 6 31A-22 8. The following on-site improvements shall be conducted prior to the release of this resolution: a. The parking lot shall be restriped in accordance to Sec. 41-1303 of the SAMC. Parking stalls shall be double striped and shall not be less than eight (8) feet six (6) inches wide and eighteen (18) feet long. b. Fill in pavement cracks with a layer of slurry seal as needed. C. Repaint equipment building and shelter. d. Install landscape to the existing planter along the front fagade of the main building that fronts Warner Avenue, as noted on the approved plans. Once the conditions and improvements have been addressed, contact the case planner to schedule an inspection. The case planner will verify that all conditions and improvements have been met and will release the resolution to the applicant. 9. In the event of graffiti markings, applicant shall eliminate all such graffiti within twenty four (24) hours, with or without notice from the City, as a condition of the permit. Resolution No. 2017-23 Page 6 of 6 31A-23 31A-24 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: RESOLUTION APPROVING ADDENDA NOS. 1 AND 2 TO THE SANTA ANA - GARDEN GROVE FIXED GUIDEWAY REA/FEIR OC STREETCAR (SCH# 2010051060) (PROJECT NO. 17-6766) (NONGENERAL FUND) {STRATEGIC PLAN NOS. 3,2C AND 413; RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution approving Addenda Nos. 1 and 2 to the Santa Ana -Garden Grove Fixed Guideway Project REA/FEIR (SCH# 2010051060). DISCUSSION On January 20, 2015, City Council adopted a resolution certifying the Santa Ana — Garden Grove Fixed Guideway Project Revised Environmental Assessment/Final Environmental Impact Report (REA/FEIR) (SCH# 2010051060) (Exhibit 1). Subsequent to the adoption of the REA/FEIR, the Orange County Transportation Authority (OCTA) became the lead agency for the implementation of the project. In July 2016, Addendum No. 1 (Exhibits 2 and 3) to the REA/FEIR was prepared by OCTA to address minor design modifications to the project resulting upon 30 percent completion of design engineering. This environmental re-evaluation, which included noise and vibration, cultural and historic, visual impact, and traffic analysis, concluded that the design modifications would not result in any new significant environmental effects that were not previously analyzed as part of the approved REA/FEIR. A second addendum, Addendum No. 2 (Exhibits 4 and 5), was prepared in February 2017 to address additional minor design modifications that were identified upon advancing to 60 percent completion of design engineering. Similar to Addendum No. 1, Addendum No. 2 concluded that there were no new significant environmental effects that were not previously analyzed as part of the approved REA/FEIR. A summary of design modifications that were analyzed in the two addenda are listed below: 55A-1. Resolution Approving Addenda Nos. 1 and 2 to the Santa Ana -Garden Grove Fixed Guideway Project REA/FEIR July 5, 2017 Page 2 - Shifted track alignment to the center of the former Pacific Electric ROW (PE ROW) to avoid noise and vibration impacts to adjacent residential properties; - Expanded project footprint to include minor street and sidewalk improvements, resulting in an expansion of the Project Area of Potential Effects for Cultural and Historic Resources environmental analysis; - Modified train operating speed (45 to 44 miles per hour) in the PE ROW; - Implementation of additional traffic signal priority along the project route at the Main Street, Broadway, and Bristol Street intersections; and - Revised location of Traction Power Substation No. 4 to the north side of the parking structure at SARTC formerly proposed at the northeast corner of Santa Ana Boulevard/North Garfield Avenue. Staff recommends the City Council adopt the resolution (Exhibit 6) approving the two addenda to the REA/FEIR in accordance with the California Environmental Quality Act (CEQA) requirements. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet the following Strategic Plan Goals: 1. 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). 2. 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). 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.). 55A-2 Resolution Approving Addenda Nos. 1 and 2 to the Santa Ana -Garden Grove Fixed Guideway Project REA/FEIR July 5, 2017 Page 3 ENVIRONMENTAL IMPACT On January 20, 2015, by Resolution No. 2015-004 and following a duly noticed public hearing, the City Council certified the Revised Environmental Assessment/Final Environmental Impact Report for the Santa Ana -Garden Grove Fixed Guideway Project, otherwise known as the "OC Streetcar" project. California Environmental Quality Act (CEQA) Section 15164(d) requires City Council to adopt a resolution approving any addenda to the Final Environmental Impact Report. FISCAL IMPACT There is no fiscal Impact associated with this action. Fred Mousavipour Executive Director Public Works Agency FM/EWG/ST Exhibits 1-6 are available at https://cosa.sharefile.com/d-s3efb15180864de3a: 1. Santa Ana -Garden Grove Fixed Guideway Project REA/FEIR 2. Addendum One - Executive Summary 3. Addendum One - Technical Studies 4. Addendum Two - Executive Summary 5. Addendum Two - Technical Studies 6. Resolution 55A-3 55A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: RESOLUTION RECOGNIZING SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS (SLAG) GRANT REVENUE, APPROPRIATION ADJUSTMENT AND REVISED REQUEST FOR PROPOSAL (RFP) FOR PLANNING CONSULTANTS FOR GENERAL PLAN UPDATE (STRATEGIC PLAN NO. 3,2A; 5, 6) (— a /— CITY/MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 18' Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Adopt a resolution accepting the Southern California Association of Governments (SCAG) Sustainability Planning Grant in the amount of $325,000 for consulting services to update the City of Santa Ana General Plan to promote sustainable development and practices. 2. Approve an appropriation adjustment recognizing $325,000 in the PBA Southern California Association of Governments (SCAG) Grant fund revenue account (no. 40316002-52001) and appropriate same in the SCAG Sustainability Planning Grant expenditure account (no. 40316570-62300). 3. Authorize the Planning and Building Agency to release the revised Request for Proposals to qualified consulting firms to provide planning and technical services related to land use buildout, urban design, sustainability, and community outreach materials to support preparation of the comprehensive General Plan Update for the City of Santa Ana. DISCUSSION In February 2017, the City of Santa Ana was awarded a Sustainability Planning Grant for $325,000 by the Southern California Association of Governments (SCAG) through a regionally competitive process. The grant monies will be used to hire consulting firms to support preparation of a General Plan Update that is economically, socially and environmentally sustainable. By way of the attached resolution (Exhibit 1), the City of Santa Ana formally accepts the SCAG grant that will augment the City Council's prior commitment of $2 million allocated to the comprehensive update of the General Plan with $437,742 spent in Fiscal Year 2015-16 and 2016-17. To date, $1 million 5513-1 Resolution for SCAG General Plan Grant Program July 5, 2017 Page 2 has been allocated towards the work effort with an additional $1 million to be provided by City Council when needed. Currently $562,258 are remaining in the General Plan Update fund (05016018) for the project with anticipated completion in early 2019. Because the grant is federally funded, the City must recruit and hire technical consultants in a manner that meets federal regulations. Although a Request for Proposals (RFP) for general plan consultant work was approved by City Council earlier this year, a revised RFP drafted in compliance with federal regulations is attached for City Council review and approval (Exhibit 2). STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's effort 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), Strategy A (Complete a comprehensive update of the City's General Plan including the development of policies and implementation measures that directly relate to equitable economic development); and Goal #5 - Community Health, Livability, Engagement & Sustainability, and Objective #6 (Focus projects and programs on improving the health and wellness of all residents). FISCAL IMPACT The appropriation adjustment will recognize grant revenue in the amount of $325,000 in the PBA SCAG Grant revenue account (no. 40316002-52001) and appropriate same in the FY 2017-18 SCAG Sustainability Planning Grant expenditure account (no. 40316570-62300). Candida Neal, AICP Acting Executive Director Planning & Building Agency MM:rb S:RFCA\07-05-17\RFCA-SCAG Integrated. Exhibit: 1. Resolution 2. Request for Proposals APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 55B-2 L5 7.5.17 RESOLUTION NO. 2017-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE RECEIPT OF GRANT FUNDS OR SERVICES FROM THE SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS (SCAG) FOR THE SUSTAINABILITY PLANNING GRANT PROJECT FOR GENERAL PLAN UPDATE EFFORTS 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 Southern California Association of Governments (SCAG) has allocated funds for projects that promote the policies and programs of the 2016-2040 Regional Transportation Plan/Sustainability Communities Strategy (2016 RTP/SCS) and established the Sustainability Planning Grant. B. SCAG has evaluated, ranked and awarded proposals submitted for Projects under the Program and the City of Santa Ana was awarded $325,000. C. The grant requires a resolution certifying the approval of the application by the applicant's governing body before receipt of awards. D. The City of Santa Ana will receive funds for consulting services to assist in the General Plan update to promote sustainable development and practices. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 2. The receipt of the award of the $325,000 grant for the Sustainability Planning Grant Program is hereby approved. Section 3. The City Council of the City of Santa Ana hereby authorizes and empowers the City Manager or her/his designee to execute in the name of the City of Santa Ana all necessary applications, contracts, agreements, or amendments with SCAG related to the Sustainability Planning Grant. Section 4. The Mayor or his designee, is hereby authorized to affix his/her signature to this Resolution signifying approval of the City Council of the City of Santa Ana for application and award of grant funds, and the City Clerk, or his/her duly appointed deputy, is directed to attest thereto. 55B-3 LS 7.5 17 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 ____ day of 2017. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: e-- !�-C Lisa Storck 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 2017. Date: Clerk of the Council City of Santa Ana 55B-4 REQUEST FOR PROPOSAL (RFP) Comprehensive General Plan Update and Envisioning Sustainability Together City of Santa Ana, CA Issued: July 7, 2017 Existing Land Use and Build -Out Analysis (PS1) General Plan Videos (PS5) Market and Fiscal Analysis (PS2) Community Engagement (PS6) Green and Complete Public Realm (PS3) Urban Design (PS7) Equitable Approaches to Sustainability Analysis (PS4) Graphic Design and Support (PS6) DEADLINE FOR SUBMISSION OF PROPOSALS: July 27, 2017 by 5:00 p.m. SEND HARD COPY RESPONSE TO: City of Santa Ana Planning Division Attention: Melanie McCann, AICP 20 Civic Center Plaza, Santa Ana, CA 92702 55B-5 RFP No. 16-xxx I. SCOPE OF SERVICES The City of Santa Ana is requesting proposals from planning and environmental consulting firms for preparation of a number of individual planning studies as detailed below. The planning studies and services included in this RFP are being funded through a sustainability grant awarded to the City of Santa Ana by the Southern California Association of Governments (SCAG) using federal funds. The planning studies and services will assist in the preparation of the City's General Plan Update (as described in attachment on page 13) and to support a sustainable policy framework. These planning efforts will also provide the existing baseline conditions for future General Plan environmental documentation, consistent with established guidelines provided by the Office of Planning and Research General Plan Guidelines and California Environmental Quality Act (CEQA). To the extent possible, the General Plan Update is intended to be "self -mitigating" by way of incorporating mitigation measures as policies and programs. (Separate, independent scope and budget for each planning study or service) Existing Land Use and Build -Out Analysis (PS1) Assist City staff in refining existing land use inventory for the conceptual Land Use Envisioning map that presently includes approximately 2,300 acres http://www.santa- ana.org/pba/planning/VisioningMaps.asp. The City's existing land use data base is organized by assessor parcel number, address and Transportation Analysis Zone JAZ) within the Santa Ana Property Information Network (SAPIN) building permit database. This task will also include City staff training of consultant staff to oversee and research assessor parcel numbers that are outdated based on City GIS resources. SAPIN final building permit reports shall also be reviewed for updated existing land use data (building square feet and number of residential units) from 2000 through present. The refined existing land use data will be organized into an EXCEL table to be used for GIS analysis and mapping, in a format that will allow the information to be uploaded to SAPIN. The existing land use research is to include an option for a windshield survey within the boundaries of the Land Use Visioning map area to confirm research data. Buildout Tasks include 1) Using agreed upon buildout assumptions provided by City staff, calculate conceptual build -out numbers within the Land Use Visioning map focus and corridor areas for residential and non-residential development in terms of housing units, square feet, and employment. 2) Prepare synthesized Draft Preferred Land Use Plan Alternative buildout from the input and results of the analysis and public feedback. Also organize Preferred Land Use Alternative by individual focus and/or corridor area for further vetting with the General Plan Advisory Group and the public. 6/15/17 55B-6 RFP No. 16-xxx 3) Develop a build -out model/spreadsheet and analysis for FOUR land use alternatives for the Land Use Visioning focus and corridor areas. These alternatives will include buildout of: the existing General Plan Land Use Plan, the Preferred Land Use Plan Alternative, and two other Land Use Scenario Alternatives. The SCAG Scenario Planning Model may be utilized, as feasible, to determine impacts such as Average Daily Trips, Vehicle Miles Traveled, as well as utility and public service and facility demands. 4) The model and analysis shall be dynamic and capable of adjustment and modification by City staff, and include a written methodology for use and training of City staff. 5) Preparing visual simulations, illustrative, and/or massing diagrams of existing and future for up to EIGHT (8) Land Use Scenarios for select corridor/ areas. The visualizations are to include building massing, scale, infrastructure, public realm, and transportation improvements. Sample Land Use Scenario Corridors may include: • Seventeenth Street • Bristol Street • Main Street • Grand Avenue • Tustin Avenue • Santa Ana Boulevard • First Street • Redhill/ Alton/ Warner Avenue 6) Provide recommendations for base map layout in GIS and corresponding graphic layout for 8'/2 by 11 and/or 11 by 17 inch exhibits for General Plan Update document. Market and Fiscal Analysis (PS2) Analyze existing baseline market conditions, the market need for various land use types, and anticipated fiscal impacts and viability proposed Land Use Visioning Map areas to transition from non-residential to residential uses. Identify potential innovative land use mixes and market forces to consider for long term economic sustainability. Provide subjective analysis of fiscal impacts of selected Preferred Land Use Alternatives. Green & Complete Public Realm (PS3) 1) Conduct a literature search of best practices for "green", sustainable, complete corridors, and public realm plans. Summarize results and identify sources. 2) Building on literature search, create a Public Realm Plan Resource Guide and template to facilitate the creation of future public realm plans used by Santa Ana City staff. This will include but not limited to eco -friendly swales in parkways, a menu of corridor design features supporting walkability, biking, transit and non -motorized travel, as well as landscape and design solutions that promote active streets, a scenic 6/15/17 3 55B-7 RFP No. 16-xxx corridor, and a sense of place. Specifically, the Resource Guide will include a menu of images and descriptions for hardscape design and materials, sidewalk pavement, streetscape furnishings applicable for various land use intensities, landscaping (California Friendly plant palette), fighting, LID best practices, wayfinding, bike parking, rest stops/benches, transit stop designs, the integration of art, and other amenities that encourage pedestrian safety and enhance the streetscape. 3) Utilize the Public Realm Resource Guide and template to update the existing Metro East Public Realm Plan or create a new Public Realm Plan for one selected Land Use Corridor. Equitable Approaches to Sustainability Analysis (PS4) Conduct a literature search to identify the best practices and programs that mitigate impact of potential displacement caused by new infill housing and mixed use development along transit corridors, and offer pathways to affordable housing and business success for existing residents and businesses. Provide written summary of analysis and anti -displacement policy recommendations. The consultant to participate in a least one focus group and/or community roundtable to present policy recommendations. Community Engagement (PS5) City staff to collaborate with the General Plan Advisory Group (GPAG) to guide future community engagement for the General Plan Draft policy document. The General Plan Community Engagement Plan will identify communication methods, key stakeholders, community focus, and strategies for engaging the community and underserved populations. The Consultant, in coordination with the City, will create community outreach materials that will be distributed to local business groups, religious organizations, residents, local schools, etc. The City will post information about workshops and applicable information on the City website and social media. 6/15/17 Anticipated Outreach Events and Meetings: • Neighborhood Ward Workshops • Pop Ups at community events • City Boards and Commissions • Santa Ana ComLink • Business community Advertising Materials/ Products: • Design meeting notice flyer for Neighborhood Ward Meetings (English, Spanish and Vietnamese) • Design General Plan Element Summary Sheets - color copy, two sided design, 6 individual Summary Sheets English, Spanish and Vietnamese) • Infographic of Process Approval for General Plan adoption (English, Spanish) • Vinyl banner for Pop Ups (English, Spanish) 55B-8 RFP No. 16-xxx General Plan Videos (PS6) Create four (4) separate videos to summarize various General Plan work efforts. Each video to be three to five minutes in length. While General Plan Video image and video clips and/or interviews to be provided by consultant, existing City photo and images to be made available to consultant. Spanish and Vietnamese subtitles are to be provided for each video production. Urban Design (PS7) Provide graphic support to illustrate proposed Urban Design policies and programs. Graphic Design and Document Support (PS8) Provide graphic design support for General Plan document layout and graphics. Under the direction of staff, assist in refining the General Plan layout, graphics and text editing; as well as suggestions for visually interesting content for the General Plan webpage to promote community engagement and understanding of the General Plan Update. The Consultant shall provide technical and planning services under the direction of City staff. The Consultant will be expected to provide experienced and knowledgeable professional staff. The Consultants' Project Manager and staff shall be responsive and maintain excellent working relationships with City staff, project applicant, property owners, and/or developer. The Consultant shall be committed to provide adequate staffing levels at all times in order to adhere to established schedules. The Consultant shall be knowledgeable and expected to be familiar with federal, state and local regulations, policies and procedures as they pertain to all planning studies. In addition, all documentation shall remain consistent with established guidelines provided by the. Office of Planning and Research (OPR. It shall be the responsibility of the selected consultant to prepare the planning study or service that complies with the OPR General Plan Guidelines, as appropriate. As part of the proposed General Plan and Envisioning Sustainability planning studies and documentation, the following shall be addressed. . A. Initiation of the Project/Kick-Off: Attend a kick-off meeting to discuss the project with City staff within five working days of receiving a notice to proceed. At this time, staff will present any additional information about the project, discuss any project constraints and issues, and refine the scope and responsibilities. B. Attendance at Meetings: The scope of services requires the selected consultant to work closely with staff in preparing the planning studies and draft element document. The consultant shall budget (at minimum) attendance at the following meetings: One (1) Kick-off meeting with City staff Progress site meetings and progress conference call meetings every other week (as needed based on project scope) In addition, consultants assisting with the Existing Land Use and Build Out Analysis (PS1) and/or Market and Fiscal Analysis (PS2) and Green and Complete Public Realm 6/15/17 55B-9 RFP No. 16-xxx (PS3) are to budget attendance at the following: One (1) General Plan Advisory Group meeting One (1) Planning Commission General Plan & Zoning subcommittee meeting or study session One (1) Planning Commission hearing One (1) City Council hearing C. Deliverables (per submittal): Five (5) Printed Administrative drafts of all documents (planning studies, graphic concepts, maps, etc.) One (1) Printed Final draft of all documents (and electronic version) One (1) Electronic files (USB flash drive or CD including print quality PDF, web ready PDF, editable file) of all final public drafts, and final public planning reports in both Microsoft Word format and editable PDF format. GIS shapefiles for all mapping to be included as applicable. Meeting Notes for all site and conference call meetings, upon request. Prior to start of work, software and programs used for data collection, documentation and mapping shall be approved by City staff to affirm compatibility with City systems. D. Schedule and Timing: Provide a project schedule to identify the staffing and cost estimate to complete the above Planning Studies and Services Land Use Buildout Analysis (PSI) and Market and Fiscal Analysis (PS2) and Equitable Approached to Sustainability Analysis (PS4) by November 30, 2017. The other technical and planning services and studies to be completed by January 31, 2018 in preparation for the completion of the General Plan Administrative Draft in March of 2018. IL GENERAL INFORMATION The term of the consultant will begin when the contract is approved by the City Council. A. When appropriate, the City will furnish information in its possession relevant to preparation of the technical studies and environmental documentation. B. The Consultant shall be responsible for retaining data, records and documentation for the preparation of the planning studies and appropriate environmental documentation. These materials shall be made available to the City upon acceptance of the final draft text or at the request of the City. Page 13 of this proposal contains a preliminary list identifying Reference Material including planning documents and resources. C. In an effort to promote the hiring and utilization of local businesses/merchants, when selecting a consultant to perform the tasks identified in the following sections, local companies shall be given preference. 6/15/17 55B-10 RFP No. 16-xxx D. This RFP does not commit the City to pay costs incurred in preparation of a response. The City reserves the right to accept or reject the combined or separate components of this proposal in part or in its entirety. E. All data, documents, shapefiles, and other products used or developed during preparation of the planning studies and environmental documentation will become property of the City. All responses to the RFP shall become property of the City. F. All costs incurred in the preparation of the proposal, the submission of additional information and/or any aspect of a proposal prior to award of a written contract will be borne by the respondent. The City will provide only the staff assistance and documentation specifically referred to herein and will not be responsible for any cost or obligation of any kind, which may be incurred by the respondent. G. The City reserves the right to reject and replace any and all subcontractors, and reserves the right to approve all subcontractors. H. Progress review meetings shall be held at intervals deemed appropriate by the City. COORDINATION Coordination with the City, other consultants, and agencies will be required to achieve satisfactory and timely delivery of the final work product. ADDENDA Any subsequent changes in RFP from the date of preparation to date of submittal will result in an addendum by the issuing office. PRIME CONSULTANT RESPONSIBLITIES The selected Consultant will be required to assume responsibilities for all services in their proposal. The selected Consultant will be the sole point of contact with regard to contractual matters, including payment of any and all charges resulting from the Agreement. RULES FOR PROPOSALS The signer of the RFP must declare in writing that the only person, persons, company or parties interested in the proposal as principals are named therein; that the proposal is made without collusion with any other person, persons, company or parties submitting a proposal; that it is in all respects fair and in good faith without collusion or fraud; and, that the signer of the proposal has full authority to bind the principal proposer. 6/15/17 7 55B-11 RFP No. 16-xxx IILGENERAL REQUIREMENTS All work shall be performed in conformance with the latest City of Santa Ana, State Office of Planning and Research, State Department of Transportation, Southern California Association of Governments, Orange County Transportation Authority and other involved agencies' policies, procedures, standards and guidelines. The documents and plans furnished under the Agreement shall be of a quality acceptable to the City of Santa Ana. The criteria for acceptance shall be a product of professional appearance, well organized, technically and grammatically correct, checked, dated, and having the author and editor identified. The minimum standard of appearance, organization and content of the documents shall be that of similar types produced by the City and set forth in related City of Santa Ana and other involved agencies' manuals. The Consultant shall modify its work as necessary to meet the level of acceptability defined by the criteria above. IV. PERFORMANCE PERIOD The contract shall begin upon approval by the City Council, and the Consultant shall commence work after notification to proceed by the City. Unless extended by contract amendment, the contract shall terminate on September 30, 2019. The Consultant is advised that any recommendation for contract award is not binding on the City until the Agreement and all pertinent paperwork are fully executed and approved by the City Council. VII. SUBMITTAL INFORMATION AND DEADLINE Proposals are due to the City of Santa Ana Planning Division, M-20, 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, CA 92702 on July 27, 2017 by 5:00 p.m., and made attention to Melanie McCann, AICP, Senior Planner. Proposals received after the date and time specified in this RFP will be rejected by the Agency as non-responsive. Melanie McCann can also be contacted at (714) 667-2746 or via email at MMcCann(a Santa-ana.orq for additional information. Hard copies of the proposals are required; electronic submittals will not be accepted. Note, if a proposal is submitted the consultant team shall make themselves available on August 14, 2017 for interviews at City Hall offices, as needed. VIII. SUBMITTAL REQUIREMENTS The RFP is intended to assess and evaluate each firm's capabilities as they apply to the proposed project. Each firm must address each of the following items in their response to the RFP. A. Statement of Qualifications - In order to maintain uniformity with each Consultant, the Statement of Qualifications must be limited to a maximum of 20 pages (two- sided - excluding front and back covers, section dividers and resumes). The page limitation includes all appendixes, attachments and supplemental information. The following information is required: 6/15/17 55B-12 RFP No. 16-xxx 1) Cover Letter: A letter signed by a principal or authorized officer who may make legally binding commitments for the entity. 2) Firm and Personnel Experience: A profile of the firm's experience in producing similar technical studies for environmental documents. The Project Manager/Principal Agent's contact information for the proposed work shall be identified, the associates in -charge when the Project Manager/Principal Agent is absent, and for that of other key personnel. An organization chart identifying only those who will perform work for the proposed project and their brief resume is also required. The project manager shall be the primary contact person to represent your firm and will be the person to conduct the presentation, if invited for an interview. The Consultant shall list the time availability of the project manager and the key personnel on a percentage basis to provide the services requested. Subconsultants, if any, shall be identified and are subject to the same requirements as for the prime Consultant. 3) Submittal of Proposal: a. Five (5) copies of the response to the RFP shall be signed by a company official with the power to bind the company. b. Structure your proposal to include the Scope of Services, Methodologies and Work Products, General Time Schedule and Fees. 4) List of projects: Project list which your firm or personnel have completed within the last five (5) years, similar to the proposed project. Project information should include project description, year completed, client name, along with a person to contact and their telephone number. 5) References: The Consultant shall submit a list of references comprised of a listing of work similar to that identified in the RFP. 6) Special Suggestions/Concerns: Statement containing any suggestions or special concerns that the City should be made aware of, including a project approach necessary for the successful completion of a public project. 7) Accuracy: The proposal must be completely responsive to the RFP B. Fee Schedule 6/15/17 The Consultant shall furnish a fee schedule for the planning and environmental services. The fee schedule shall depict the hourly rates for the consultant and any sub consultants with an hourly billing rate for each personnel category to be used on the project, respective number of hours by task. Personnel hourly rates shall reflect all costs for office overhead, including phones, cellular phones, vehicles, mileage and other direct and indirect costs. This fee schedule shall reflect all anticipated fee increases. See Attachment B. 55B-13 RFP No. 16-xxx C. The City reserves the right to reject any or all proposals submitted and no representation is made hereby that any contract will be awarded pursuant to this RFP or otherwise. IX. PROJECT CONTROL Control of the project shall remain the total responsibility of the City of Santa Ana. X. CONSULTANT SELECTION The City of Santa Ana may designate a Consultant Selection Committee, which will evaluate each proposal based on technical criteria, staffing and qualifications listed within the RFP and make a selection per the following: Related Experience of Firm (20%); Related Experience of Key Personnel (15%); Proposal Responsiveness (10%); Experience in Santa Ana (5%); Proposed Work Plan (25%); Proposal Thoroughness (15%); Key Personnel Assignments/ Staffing (10%). Final approval of the consultant will be given by the City Council. XI. METHOD OF PAYMENT The Consultant shall submit a monthly invoice to the City for the services rendered in that month. The invoice shall include a summary, as well as a detailed breakdown of the services, the project title, the tasks, the hours, and hourly rates. XII. PROFESSIONAL SERVICES AGREEMENT The RFP and the consultant's proposal will be attached and become part of the agreement as exhibits. XIII. INSURANCE REQUIREMENTS General liability, automotive, worker's compensation and professional liability insurance are required. The certificate shall include the City of Santa Ana and its officers and employees as insured or additional insured. XIV. DELAYS The City reserves the right to delay scheduled dates if it is to the advantage of the City. XV. AFFIRMATIVE ACTION PROGRAM The City has an affirmative action program. Qualified firms including small businesses and businesses owned by Women, Minorities and Disabled persons are encouraged to submit bids or proposals. Contractors shall agree to comply with the City's ordinances and regulations regarding Affirmative Action and Equal Employment Opportunity. 6/15/17 10 55B-14 RFP No. 16-xxx REFERENCE DOCUMENTS The following are some of the planning documents and resources available for reference: 1) City of Santa Ana General Plan http://www.ci.santa-ana.ca.us/peneralplan/default. asp 2) City of Santa Ana General Plan Land Use Environmental Impact Report (1998). Available Upon Request, Planning Division - EIR No. 97-01 (SCH # 97971058) 3) City of Santa Ana General Plan Circulation Element Update Environmental Impact Report (1998). Available Upon Request, Planning Division - EIR No. 97-02 (SCH # 97971055) 4) Transit Zoning Code (June 20 10) http://www.ci.santa-ana.ca.us/pba/planning/transit zoninq code index.asp 5) Metro East Overlay Zone and Public Realm Plan (March 2007) 6) Harbor Mixed Use Transit Specific Plan Document and EIR (November 2014) http://www.ci.santa-ana.ca.us/harborplan/documents/web HCP Adopted Oct2014.pdf 7) Santa Ana and Garden Grove Transit Vision and Go Local Project Concept Study (May 2008) Fixed Guideway EIR and Supplement http://santaanatransitvision.comleir.html 8) Santa Ana Climate Action Plan (December 2015) http://www.santa- ana.org/climateactionplan/documents/climate action plan.pdf 9) City of Santa Ana Citywide Design Guidelines http://www.ci.santa-ana.ca.us/pba/planning/Design Guidelines.asp 10) Orange County Projections (OCP) 2014 Modified Santa Ana's Employment, Housing and Population by Transportation Analysis Zones (TAZ) Available Upon Request, Planning Division 11) Draft Santa Ana Sewer Master Plan (City Public Works Agency, September 2016) Available Upon Request. 12) Santa Ana Water Master Plan (City Public Works Agency, update underway) Available Upon Request. 13) Storm Drain Master Plan (City Public Works Agency, update underway) Available Upon Request. 14) Santa Ana Strategic Plan (2014/15-2018/19) http://www.santa-ana.org/strategic- planning/default. asp 6/15/17 11 55B-15 RFP No. 16-xxx 15) Santa Ana Arts and Culture Master Plan (2016) http://www.santa ana. orp/cda/artsma sterp/an. asp 16) City of Santa Ana Consolidated Plan http://www.santa- ana orp/cda/documents/ConsolidatedP/an2015-2019mergedtoprint.pdf 17) Draft Economic Development Strategic Plan July 7, 2016 http://www.santa ana. orp/cda/edsp. asp 18) Safe Mobility Santa Ana Plan http://www.santa-ana.orpIsmsa/ 19) Santa Ana Downtown Complete Streets Plan http://www.santa- ana. orp/completestreets/Downtown TransitZoneCompleteStreetPlan.asp 20) Santa Ana Central Complete Streets Plan http://www.santa- ana. orp/completestreets/CentralSantaAnaCompleteStreetsPlan. asp 21) The Heritage EIR http.-//www.ci.santa-ana.ca.us/pba/planninp/TheHeritage.asp 6/15/17 12 55B-16 RFP No. 16-xxx Revised Elements: 1) Land Use Element: Modifications to existing land uses will place focus on sustainable infill development along commercial and transit corridors. As part of the early stages of the comprehensive General Plan, Planning Division staff has identified key areas of the City with potential to accommodate future growth as identified in the Land Use Visioning Maps. These conceptual study areas have been incorporated into a visual map which can be located on the City's website: http://www.santa-ana.org/pba/planning/VisioningMaps.asp. 2) Economic Development Element 3) Education, Arts & Culture Element 4) Noise Element 5) Open Space, Recreation & Public Facilities Element 6) Safety Element (includes Seismic Safety) 7) Sustainability Element (Health, Conservation, Water & Energy Management) 8) Urban Design & Architecture Element (Includes Scenic Corridor) New Elements: 9) Human Services Element 10) Historic Preservation Element Other Elements: 11) Circulation (Mobility) Element: The Circulation Element update is anticipated to be completed and adopted in Summer 2018 prior to the completion of the comprehensive General Plan Update. This element was initiated in 2014 and was placed on hold until the recent completion of the Santa Ana Safe Mobility Plan that identifies additional street re -designations which promote safe travel and implementation of complete street measures. 12) Housing Element: An updated Housing Element will be adopted in the coming years separate from this comprehensive General Plan Update as the current Housing Element was adopted in 2014 with a planning horizon year of 2021. Unlike other elements, California law requires the Housing Element to be updated every seven years. 6/15/17 13 55B-17 RFP No. 16-xxx ATTACHMENT B 6/15/17 14 55B-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: APPROVAL OF LOAN AGREEMENTS, RESOLUTION, AND APPROPRIATION ADJUSTMENT FOR THE SANTA ANA ARTS COLLECTIVE (STRATEGIC PLAN NOS. 5,3A; 5,3C) c NTERIM CI MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Authorize the City Manager and the Clerk of the Council to execute an amended and restated Community Development Block Grant and Inclusionary Housing Funds loan agreement with Santa Ana Arts Collective, L.P. for an additional $2,900,000 in Inclusionary Housing Funds as approved by City Council on June 20, 2017 for a total loan amount not to exceed $5,275,000, 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 loan agreement with Santa Ana Arts Collective, L.P. for $2,219,760 in HOME Investment Partnerships Program funds as approved by City Council on November 3, 2015, subject to non -substantive changes approved by the City Manager and City Attorney. 3. Authorize the City Manager and the Clerk of the Council to adopt a resolution authorizing the City Manager to enter into an agreement with the State of California Department of Housing and Community Development (HCD) for Affordable Housing and Sustainable Communities (AHSC) program grant funding, subject to non -substantive changes approved by the City Manager and City Attorney. 4. Authorize the City Manager and the Clerk of the Council to execute a Subordination Agreement with Bank of America, N.A. for the amended and restated Inclusionary Housing and Community Development Block Grant loan agreement and the HOME Investment Partnerships Program loan agreement, subject to non -substantive changes approved by the City Manager and City Attorney. 5. Approve an appropriation adjustment recognizing Affordable Housing and Sustainable Communities Program grant funds in the amount of $1,288,000 in revenue account no. (41818002-52025) and appropriating same to the Affordable Housing Sustainable Communities Program expenditure account no. (41818832-66220) for the Bush Street Bicycle Boulevard project. 55C-1 Approval of Loan Agreements, Resolution, and Appropriation Adjustment Santa Ana Arts Collective Project July 5, 2017 Page 2 DISCUSSION On June 1, 2015, staff issued a Request for Proposals (RFP) soliciting applications for the development of affordable housing. The RFP indicated that the City would consider proposals for new construction and/or acquisition and rehabilitation projects. It also indicated that the City had approximately $1,875,000 in Inclusionary Housing funds; $500,000 in Community Development Block Grant (CDBG) funds; $830,000 in federal HOME Program funds to be committed by July 31, 2016; $1,430,000 in federal HOME Program funds to be committed by July 31, 2017; and 24 Project -Based Vouchers would be available. Following the RFP, on November 3, 2015, City Council awarded Meta Housing Corporation (Developer) a pre -loan commitment of Inclusionary Housing Funds, Community Development Block Grant (CDBG) and HOME Investment Partnerships Program (HOME) funds, not to exceed $4,635,000, for an affordable housing project called the Santa Ana Arts Collective (Project) located at 1666 N. Main Street (Exhibit 1). On February 3, 2016, the loan agreement for the CDBG and Inclusionary Housing Funds was approved by City Council. On September 6, 2016, City Council adopted a resolution to approve the Relocation Plan for the Project. On June 20, 2017, City Council directed staff to amend the Inclusionary Housing loan agreement for an additional amount not to exceed $2,900,000 in Inclusionary Housing funds and provide for City Council consideration at the July 5, 2017 meeting. The purpose of the amended and restated Community Development Block Grant and Inclusionary Housing Funds loan agreement is to provide an additional $2.9 million to the Project which allows the Project to be feasible following a request submitted by the Developer in December 2016 due to a financial gap created by lower tax credit equity pricing and rising interest rates (Exhibit 2). The loan agreement with the Developer for $2,219,760 in HOME Investment Partnerships Program (HOME) funds follows a pre -commitment of $2,260,000 in HOME funds approved by City Council on November 3, 2015 (Exhibit 3). Under the federal regulations for the HOME Program, the City is not able to enter into a HOME loan agreement until the Developer obtains all of their other financing for the project. If the amended and restated Community Development Block Grant and Inclusionary Housing Funds loan agreement is approved by City Council, the Developer will have obtained all of their other financing and therefore the City may now enter into the HOME loan agreement for the project. Following a review of our total HOME Loan amount and the 2016 HOME maximum per- unit subsidies published by the Housing and Urban Development Department, the HOME Loan amount committed to the Project was reduced from $2,260,000 to $2,219,760. On June 7, 2016, City Council adopted a resolution authorizing submittal of a funding application as a joint applicant with Meta Housing Corporation for the Affordable Housing and Sustainable Communities Program (AHSC) in the amount not to exceed $12,028,626. Of that amount, $7,833,126 was requested as a loan for Affordable Housing Development and $1,288,000 was requested as a grant for a Sustainable Transportation Infrastructure Project for the Santa Ana Arts Collective Project, and $22,500 was requested as a grant to support the Southern California Association of Govemments' (SCAG) Go Human program. The application was submitted and on 55C-2 Approval of Loan Agreements, Resolution, and Appropriation Adjustment Santa Ana Arts Collective Project July 5, 2017 Page 3 November 21, 2016, the City and Meta Housing Corporation was awarded $12,028,626 in AHSC funds, which was later reduced to $9,139,630 in accordance with regulatory restrictions upon acceptance of competitive 9% low income housing tax credits. In addition, $2,885,000 in housing - related grant funds were not accepted because the programmatic requirements resulted in an increased funding gap. The Resolution (Exhibit 4) will allow both Meta Housing Corporation to receive the funds to develop the Project and the City to construct the public improvements linked to the Project. The $1,288,000 Sustainable Transportation Infrastructure Project is a bicycle boulevard treatment along Bush Street from 17th Street to Civic Center Drive connecting to the existing treatments that are being installed this summer. The bicycle boulevard treatment includes green shared lane markings in the roadway with accompanying signage and eight landscaped neighborhood traffic circles along the corridor, connecting the Project with a low -stress bikeway to Downtown Santa Ana. The $22,500 funding contribution for SCAG's Go Human program will be paid directly by the Developer. Regarding the Subordination Agreement with Bank of America, N.A., the City of Santa Ana's total loan for this project is approximately 21 % of the total Project cost (Exhibit 5). As a subordinate loan for a large affordable housing project such as this, it is not uncommon for a more senior lender to request a subordination agreement for the City's smaller loan agreements that allow the senior lender to complete their underwriting and commit their private market financing. As such, this Subordination Agreement will allow Bank of American, N.A. to commit their private market financing for the Project. The State of California AHSC Program will be providing a loan to the Developer in the amount of $4,944,130 for the development of the Project. Under the regulatory requirements for the State, the State's loan must be repaid through residual receipts similar to the City's loans. As such, the 50% of the residual receipts due and payable to the City will be pro -rated between the State and the City based upon the total amount of subsidy provided by each. This is standard for projects such as this that are receiving public subsidies from multiple sources of public financing. 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), Strategy A (Continue to explore options Citywide regarding the re -use of commercial or industrial buildings that are currently underutilized or vacant for mixed-use residential projects), and 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). 55C-3 Approval of Loan Agreements, Resolution, and Appropriation Adjustment Santa Ana Arts Collective Project July 5, 2017 Page 4 FISCAL IMPACT Funds for the HOME Program loan were previously identified from prior year grant funds, and the additional Inclusionary Housing funds were identified as part of the Inclusionary Housing Fund balance in FY 2016-17. Both program funds for the Santa Ana Arts Collective project loans will be carried forward to the FY 2017-18 budget for expenditure in FY 2017-18: Funding Source Account No. Amount HOME Program 13018780-69152 $2,219,760 Inclusionary Housing 41718820-69152 $2,900,000 Totals $5,119,760 Approval of the appropriation adjustment will recognize $1,288,000 in the Affordable Housing Sustainable Communities Program revenue account (no. 41818002-52025) and increase the Affordable Housing Sustainable Communities Program expenditure account no. (41818832- 66220) by the same amount in the FY 2017-18 budget for the Bush Street Bicycle Boulevard project. Expenditure for this project is anticipated to be: Account No. FY 2017-18 FY 2018-19 1 Total 41818832-66220 $168,000 $1,120,000 $1,288,000 Robert C. Cortez Acting Executive Director Community Development Agency F - Fred Mousavipour Executive Director Public Works Agency AS TO FUNDS AND ACCOUNTS: Francisco` wAierrez Executive Director Finance and Management Services Agency Exhibits: 1. Location Map 2. Amended and Restated CDBG and Inclusionary Housing Funds Loan Agreement 3. HOME Investment Partnerships Program Loan Agreement 4. AHSC Resolution 5. Subordination Agreement with Bank of America, N.A. 55C-4 EXHIBIT 1 PROJECT LOCATION 1666 NORTH MAIN STREET a FE SI NAL � u O COMMERCIAL COMM RCIAL � 17TH COMMERCIAL J J Q H w J Q V G K V W O lL U 15TH � W W K F Ln W CC O Q u } LA EXHIBIT 1 55C-5 STREET k cw J H V p w W K V W lL w cc O Ln L U 16TH STREET COMM. J U C w J = z U VI Q O LL W W m STREET k cw 55C-6 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] FIRST AMENDED AND RESTATED LOAN AGREEMENT by and between the CITY OF SANTA ANA, and SANTA ANA ARTS COLLECTIVE, L.P. (1666 N. Main Street, Santa Ana, California) Dated: July P, 2017 Exhibit 2 55C-7 FIRST AMENDED AND RESTATED LOAN AGREEMENT INCLUSIONARY HOUSING PROGRAM/CDBG FUNDS THIS FIRST AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of July 5a', 2017, is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation ("City") and Santa Ana Arts Collective, L.P. ("Developer") with reference to the following: RECITALS: A. The City is the recipient of Community Development Block Grant ("CDBG") funds from HUD pursuant to Tile I of the Housing and Community Development Act of 1974, as amended ("Act") and 24 CFR 570 ("CDBG Regulations"), Catalog of Federal Domestic Assistance (CFDA) Number 14.218, and Federal Award Identification Number (FAIN) B -15 -MC -06-0508 in the amount of $5,434,375. B. The City is authorized by the CDBG Regulations to expend funds to increase the supply of low- and moderate -income housing available at affordable housing costs. C. The Housing Opportunity Ordinance, Santa Ana Ordinance No. NS -2881, established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to Santa Ana Municipal Code ("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. D. In order to utilize money in the Inclusionary Housing Fund, the City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all applications, the Developer's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. E. Developer is entering into this agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a fifty-eight (58) unit multi -family residential housing development, with live/work units and a possible commercial art studio, as well as a community room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The CDBG funds referenced herein shall assist in the rehabilitation only and the Inclusionary Housing funds will assist in the construction and soft costs of said Project. F. In furtherance of the Inclusionary Housing Program and CDBG guidelines, Developer has applied to the City for a loan with which to: 55C-8 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. G. The City, on certain terms and conditions, desires to make such loan ("City 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. H. 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: 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 570. "Affordability Restrictions on Transfer of Property" means that certain documents affecting real property benefiting the City, attached hereto 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 U.S. Department of Housing and Urban Development (HUD), or by the California Tax Credit Allocation Committee, as applicable. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. 55C-9 "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. "CDBG 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 CDBG Promissory Note. "CDBG Loan" means the CDBG funds that will be awarded to the Developer under this agreement that must be repaid through residual receipts. "CDBG Promissory Note" means that certain Promissory Note in the original principal amount of $500,000 in the form attached hereto as Exhibit F, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the City Loan through residual receipts as further described in the CDBG Promissory Note. Loan. "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 Loan" means, collectively, the CDBG Loan and the Inclusionary "City Project Manager" shall mean the City Manager and/or his/her designee. "Close of Escrow" shall mean the date upon which the Loan Agreement and City 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. "Community Development Block Grant" or "CDBG" has the meaning set forth in Recital "A" above. partnership. "County" means the County of Orange, California. "Developer" means Santa Ana Arts Collective, L.P., a California limited 55C-10 "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 HUD. "Event of Default" has the meaning set forth in Section 20.1. "General Partner" means the Santa Ana Arts Collective, LLC, a California limited liability company, and WCH Affordable XVIII, 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 seci., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "Housing Opportunity Ordinance" means the Santa Ana Ordinance No. NS -2881, and as such terms may be amended by the Santa Ana City Council in the future. "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, 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 Promissory Note. "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 Loan" means the Inclusionary Funds that will be awarded 55C-11 to the Developer under this agreement that must be repaid through residual receipts. "Inclusionary Promissory Note" means that certain Promissory Note for Inclusionary Funds in the original principal amount of $4,775,000.00 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). "Loan Documents" means, collectively, this Agreement, the Inclusionary Promissory Note, the Inclusionary Deed of Trust, CDBG Promissory Note, CDBG Deed of Trust, Affordability Restrictions on Transfer of Property, Project Budget, Scope of Work / Schedule of Performance, 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 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 "AMP'. "Partnership Agreement" means the Second Amended and Restated Agreement of Limited Partnership of Santa Ana Arts Collective, L.P., dated as of July 2017. 55C-12 "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and AHSC Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing, which shall include all title exceptions set forth on City's title policy, all documents evidencing the State of California Housing and Community Development loan to encumber the Property and the TCAC Regulatory Agreement. "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, which shall include all title exceptions set forth on City's title policy, all documents evidencing the State of California Housing and Community Development loan to encumber the Property and the TCAC Regulatory Agreement. "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 G, 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 1666 N. Main 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 H. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note and its successors and assigns. The initial Senior Lender will be Bank of America, N.A and California Community Reinvestment Corporation is projected to become the Senior Lender after conversion of the loan to permanent status. "Senior Loan" means a loan from any Senior Lender(s) in a position superior to the City Loan. "Senior Loan Deed of Trust" means any deed(s) of trust securing any Senior Loan by encumbering the Property. 55C-13 "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 HUD. 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 H. 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 of such work. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit G (the '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. 55C-14 Notwithstanding the foregoing, the City's approval of a change order shall not be required unless the approval of the Senior Lender is required with respect to such change order. 4. [RESERVED] 5. CITY LOAN: The Inclusionary Loan shall be evidenced by the Inclusionary Promissory Note and the CDBG Loan shall be evidenced by the CDBG Promissory Note in the forms attached hereto as Exhibit D and Exhibit E. The Inclusionary Loan and the CDBG Loan shall be secured by the Inclusionary Deed of Trust and CDBG Deed of Trust, respectively, in the forms attached hereto as Exhibit C and Exhibit F. The terms and conditions of the City Loan are as set forth in the Inclusionary Promissory Note and CDBG Promissory Note. The term of affordability for the Project is fifty-five years from the receipt of Certificate of Occupancy for the Project, or repayment of the City Loan, whichever is longer. A. INCLUSIONARY HOUSING FUNDS: 1. 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 $4,775,000.00 for the construction and other costs of the Project. B. CDBG FUNDS: 1. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan of CDBG funds to Developer in the principal amount of up to $500,000.00 solely for the property rehabilitation -related costs of the Project. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent. City's obligation to disburse the loan is subject to the satisfaction, or waiver by the City Project Manager, of the following conditions precedent: (a) Loan Documents. 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) this Loan Agreement; (ii) the Inclusionary Promissory Note ($4,775,000); (iii) the Inclusionary Deed of Trust; 55C-15 (iv) CDBG Promissory Note ($500,000); (v) CDBG Deed of Trust; and (vi) the Affordability Restrictions on Transfer of Property. (b) Title Insurance. City shall have received an ALTA Extended (LP - 10) Loan Policy (6-17-06), 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 total City Loan Amount, showing Developer as the fee owner of the Property and insuring the hiclusionary Deed of Trust and CDBG Deed of Trust to be valid priority liens on the Property. This Agreement, the Inclusionary Promissory Note, Inclusionary Deed of Trust, CDBG Promissory Note, and CDBG Deed of Trust shall all be subordinate to any Senior Loan Note and Senior Loan Deed of Trust and to the AHSC Loan Documents. (c) Affordability Restrictions on Transfer of Proyerty. 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 Code of Federal Regulations ("CFR") section 92.252 or 92.254 and California Health and Safety Code ("H&S") sections 50052.5 and 33334.3, as applicable. City's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated. (d) Documents Recorded. This Loan Agreement, the Inclusionary Deed of Trust, CDBG 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"). (f) 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. (g) 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. (h) No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of 55C-16 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. 6.2 Disbursement Procedures for Loan(s). The City Loan proceeds shall be disbursed through Escrow to finance the acquisition and construction of the Project (as evidenced in Exhibit G). The City 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). However, CDBG Funds shall only be used for property rehabilitation -related costs of the Project. 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) General Contractor. If the City Project Manager has not yet approved the General Contractor, the City Project Manager shall have approved the identity and qualifications of the General Contractor. (b) Contract for construction. The City Project Manager must have reviewed and approved the contract for construction. 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) or waived by the City Project Manager, 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 Anv 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, based on his/her own inspections or other reliable information that the construction is progressing satisfactorily in conformance with all applicable laws and other requirements (including the City's Inclusionary Housing guidelines and CDBG federal regulations). (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 Propertye(e., 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 55C-17 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. (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 55C-18 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 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 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 together with any other available construction sources is or may be insufficient to pay all construction of the Project that may be payable under the City 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 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 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 or Senior Lender from which withdrawals may be made only with the consent of the City Project Manager or Senior Lender but which will be exhausted prior to any further disbursement for 55C-19 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 or Senior Lender 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. 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 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 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 condition 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(s) 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; 55C-20 (2) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; (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 unit for the onsite manager). The Project shall consist of approximately fifty-eight (58) residential units. Enforceability of restrictions on the fifty- seven (57) 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, initial rents, and levels of affordability are as follows: The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income adjusted for family size appropriate to the unit, and (2) the 55C-21 30% AMI 35% AMI 40% AMI 60% AMI Unit Size No. Rent Units 1 NO' Rent Units NO' Rent Units No. Units Rent Total 1 Bedroom 14 $587 6 $685 6 $783 26 2 Bedroom 2 $704 --- --- --- --- 12 $1,408 14 3 Bedroom 4 $813 --- --- --- --- 13 $1,627 17 Total 20 6 6 25 57 The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income adjusted for family size appropriate to the unit, and (2) the 55C-21 maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. 7.3 Rent Increases: On an annual basis, the City shall provide the Developer with the maximum allowable schedule of rents for the Property that shall be no less than the rents set forth by TCAC. hr 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 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 perforin 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 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 (3 0) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) 55C-22 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 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 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. Santa Ana Arts Collective, 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. 9.2 Execution and Performance of Loan Documents. 9.2.1 Developer has all requisite authority to execute and perform its obligations under the 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; 55C-23 (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 City 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 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 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 Loans (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 fumished 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 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 55C-24 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. 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. 55C-25 9.12 Nonliability of City Officials and Emplovees. 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, or as otherwise provided in the Note or Deed(s) 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. 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 Change Orders. The contract for construction shall not be modified except pursuant to change orders which require City consent pursuant to this Agreement. All change orders: 55C-26 (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 City Project Manager's prior written approval. 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice, 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 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 fmancial assistance for housing and community development programs be targeted toward low- and very low- income persons. Whenever HUD assistance generates opportunities for employment or contracting, state and local grantees, as well as other recipients of HUD housing assistance funds must, 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. 1701u ("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 at 24 CFR part 135, which implement Section 3. As evidenced by 55C-27 their execution of this contract, the parties to this contract certify that they are under 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 violation of the regulations 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. (0 Noncompliance with HUD's regulations in 24 CFR part U5 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. 55C-28 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 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 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 thereof, (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. 11. FEDERAL - CDBG COVENANTS 11.1 Contract Provisions for Non -Federal Entity Contracts Under Federal Awards. Developer shall comply with the requirements at Appendix II to Part 200. 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 570, and 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 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 CDBG Program; 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 Use of Debarred, Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of 55C-29 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, as applicable of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), Lead Safe Housing Rule, and implementing regulations at 24 CFR 35. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by 24 CFR 92.351 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 24 CFR 92.350. Developer must also follow the requirements of Health and Safety Code section 33435. 11.11 Property Standards. Developer shall cause the Property to meet the housing quality standards set forth in 24 CFR 882.109, 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. 11.12 Displacement and Relocation. Developer acknowledges and agrees that, pursuant to 24 CFR 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 construction. Furthermore, to the extent feasible, residential tenants must be provided a reasonable opportunity to lease and occupy a suitable, decent, safe, sanitary and affordable dwelling unit on the Property upon completion of the construction. 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 City Project Manager in connection therewith. All applicable state guidelines must also be followed. 11.13 Other Program Requirements. Developer shall carry out each activity in compliance with all federal laws and regulations described Subpart K 24 CFR 570, except that Developer does not assume City's responsibilities for environmental review in 24 CFR 570.604 or the intergovernmental review process in 24 CFR 570.612. 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. 55C-30 11.15 Eligible Costs. Developer shall use CDBG 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 City Project Manager 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 each of the assisted units on the Property as required by the Program 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. (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. 11.21Other CDBG Program Requirements. Developer shall comply with all other applicable requirements of the CDBG Program. 11.22 City Requirements. Developer shall comply with 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. 55C-31 (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 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. 11.23 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 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 the following provision: 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 55C-32 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 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). 12.3.2 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, in accordance with 24 CFR 92.508. 12.4 [Intentionally Omitted] 12.5 Proiect Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account"). Until the Certificate of Completion is issued, withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved 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 interest-bearing replacement reserve depository account ("Replacement Reserve Account") upon the conversion of the Senior Loan to permanent status. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with the Senior Loan Documents, 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 as set forth in the Senior Loan Documents. If no Senior 55C-33 Loan is in effect, 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: (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 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 55C-34 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 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 "Indemnities ") 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 Indemnities directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the Inclusionary Promissory Note, Inclusionary Deed of Trust, CDBG Promissory Note, or CDBG 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 Developer's managing and administrative general partners 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 and CDBG Deed of Trust as valid deeds of trust to the Senior Deeds 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: 55C-35 (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 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 Inclusionary Deed of Trust and CDBG Deed of Trust; to subject to the Deed(s) of Trust any property intended by the terms of any Loan Document(s) to be covered by the Inclusionary Deed of Trust and CDBG Deed of Trust or otherwise to carry out the purposes of the 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 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 55C-36 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 I and incorporated herein. 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 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 2020. 16. OTHER COVENANTS While any obligation of Developer under the Inclusionary Promissory Note, Inclusionary Deed of Trust, CDBG Promissory Note, or CDBG 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, 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 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 55C-37 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 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 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. 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 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 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; 55C-38 (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 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; (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 in 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, 55C-39 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 (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. 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 55C-40 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 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 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section. Notwithstanding the foregoing, so long as the Property complies with the Senior Lender's insurance requirements, the City Attorney will not require additional insurance coverage unless (i) such additional insurance is required by applicable law or (ii) if not required by additional law, such additional insurance shall only be required if it is readily available on commercially reasonable terms and the cost thereof can be borne by the Borrower from available Borrower revenues without causing the Borrower to default under the Senior Loan or the Partnership Agreement. 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. Subject to the rights of any Senior Lender, 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 of Senior Lender, if any, or if there is not a Senior Lender, the City, 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 in the Senior Loan Documents, provided if there is no Senior Loan then 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 55C-41 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 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 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. (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. (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 of the Senior Loan, or the City, as applicable. 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 Senior Lender if any or by City against any obligations to Senior Lender or City, as applicable, 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 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 its sole and absolute discretion. 55C-42 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. 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 55C-43 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 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; (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), provided that the same do not, in the aggregate and in the City's reasonable judgment, threaten to delay the completion of the construction 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 55C-44 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 (j) (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) an Event of Default occurs under the Senior Loan Documents and the Senior Lender declares that a default has occurred. In addition, if an Event of Default occurs hereunder, prior to taking any remedy under this Agreement or any other document evidencing or securing the Loan, City shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the City that Limited Partner must remove and replace the general partner or general partners of Developer, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. 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: (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, 55C-45 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 hiclusionary Housing and CDBG 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. NHSCELLANEOUS 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. 55C-46 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: Santa Ana Arts Collective, L.P. c/o Meta Housing Corporation 1640 Sepulveda Blvd, Ste. 425 Los Angeles, CA 90025 Attention: President With a copy: Bank of America CDC Special Holding Company, Inc. Community Development Banking MAI -225-02-02 225 Franklin Street Boston, MA 02110 With a copy to: Bank of America, N.A. MAI -225-02-02 225 Franklin Street Boston, MA 02110 Attention: Asset Management With a copy to: WCH Affordable XVIII, LLC Attn: Graham Espley-Jones 151 Kalmus Drive, #J5 Costa Mesa, CA 92626 Fax: (714) 597-8320 If to City: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager 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 55C-47 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. 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 55C-48 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 Nouliability of ON 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 under the terms of this Agreement. 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 herein below 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. 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 constitute a default or an Event of Default under this Agreement or the Loan Documents or accelerate the maturity of the City 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. 55C-49 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: CITY OF SANTA ANA Maria D. Huizar Cynthia J. Kurtz Clerk of the Council Interim City Manager APPROVED AS TO FORM Sonia R. Carvalho FOR APPROVAL: Robert C. Cortez Acting Executive Director Community Development Agency (Signatures continue 077f01101Vi71gpage) 55C-50 DEVELOPER: Santa Ana Arts Collective, L.P., a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner M Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner In Graham P. Espley-Jones, President EXHIBITS A. Legal Description B. Affordability Restrictions on Transfer of Property C. Inclusionary Housing Deed of Trust D. Inclusionary Housing Promissory Note E. CDBG Deed of Trust F. CDBG Promissory Note G. Project Budget H. Scope of Work / Schedule of Performance I. Form of Residual Receipts Report 55C-51 Exhibit Ae. Legal Description 55C-52 EXHIBIT A PARCEL A THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE LAND ALLOCATED TO JACOB ROSS IN DECREE OF PARTITION OF THAT RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK "B" OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 12, BEING ALSO THE INTERSECTION OF THE CENTER LINES OF SEVENTEENTH STREET AND MAIN STREET AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 11 PAGE 18 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, NORTH 89° 56' 40" WEST 289.89 FEET, THENCE SOUTH 00 16'25" WEST 230.00 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, SOUTH 89- 56'40" 9°56'40" EAST 289.78 FEET TO THE EASTERLY LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID EASTERLY LINE NORTH 00 16'40" EAST 230.00 FEET TO THE POINT OF BEGINNING. EXCEPT THE NORTHERLY 40.00 FEET THEREOF. ALSO EXCEPT THE EASTERLY 35.00 FEET THEREOF. PARCEL B: NON-EXCLUSIVE EASEMENTS FOR VEHICLE INGRESS, EGRESS, PARKING AND INCIDENTAL PURPOSES, AS MORE PARTICULARLY SET FORTH IN THAT CERTAIN "DECLARATION OF EASEMENT FOR VEHICLE INGRESS, EGRESS AND PARKING" RECORDED OCTOBER 04, 2005 AS INSTRUMENT NO. 2005000786645 OF OFFICIAL RECORDS. APN: 005-153-19 (Affects a portion of said land) 005-153-20 (Affects a portion of said land) 55C-53 Exhibit Be. Affordability Restrictions on Transfer of Property 55C-54 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Clerk of the Council FIRST AMENDED AND RESTATED AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY {Address: 1666 N. Main Street, Santa Ana, CA) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between Santa Ana Arts Collective, LP, a California limited partnership ("Owner") and the City of Santa Ana, a charter city and municipal corporation (the "City"). RECITALS: A. The City is the recipient of Community Development Block Grant ("CDBG") funds from HUD pursuant to Tile I of the Housing and Community Development Act of 1974, as amended ("Act") and 24 CFR 570 ("CDBG Regulations") , Catalog of Federal Domestic Assistance (CFDA) Number 14.218, and Federal Award Identification Number (FAIN) B -15 - MC -06-0508 in the amount of $5,434,375. B. The City is authorized by the CDBG Regulations to expend funds to increase the supply of low- and moderate -income housing available at affordable housing costs. C. The Housing Opportunity Ordinance, Santa Ana Ordinance No. NS -2881, established standards and procedures to encourage the development of housing that is affordable to a range of households with varying income levels. Pursuant to Santa Ana Municipal Code ("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. D. In order to utilize money in the Inclusionary Housing Fund, the City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all 55C-55 applications, the Developer's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. E. Developer is entering into this agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a fifty-eight (58) unit multi -family residential housing development, with live/work units and a possible commercial are studio, as well as a community room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The CDBG funds referenced herein shall assist in the rehabilitation only and the Inclusionary Housing funds will assist in the construction and soft costs of said Project. F. In furtherance of the Inclusionary Housing Program and CDBG guidelines, Developer has applied to the City 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. G. The City, on certain terms and conditions, desires to make such loan ("City 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. H. 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. I. Owner and the City are concurrently entering into that certain CDBG and Inclusionary Housing Loan Agreement. The Loan Agreement, CDBG Deed of Trust, CDBG Promissory Note, Inclusionary Deed of Trust, and Inclusionary Promissory Note, dated concurrently herewith (collectively the "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 CDBG and Inclusionary Funds regulations and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing the AHSC Loan encumbering the Property. 55C-56 "AHSC Loan Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 570. "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 U.S. Department of Housing and Urban Development (HUD), or by the California Tax Credit Allocation Committee, as applicable. "Agreement" means this Affordability Restrictions on Transfer of Property between the City and the Owner affecting real property. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD, awarded to and the sole responsibility of Borrower, administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust"' means the any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the CDBG Funds and 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 I 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. "CDBG Deed of Trust' means the deed of trust encumbering the Property, in the form attached as Exhibit E to the Loan Agreement, to be executed by Owner pursuant to Section 5.B.2 in order to secure the CDBG Loan Note. 55C-57 "CDBG Loan" means the CDBG funds that will be awarded to the Owner in the principal amount of Five Hundred Dollars ($500,000.00) in accordance with the Loan Agreement. "CDBG Promissory Note" means that certain Promissory Note in the original principal amount of $500,000 in the form attached as Exhibit F to the Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the CDBG Loan through residual receipts as further described in the CDBG Promissory Note. "Close of Escrow" shall mean the date upon which the Loan Agreement and City Deed of Trust are 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. "Owner" means Santa Ana Arts Collective, LP, a California limited partnership. "Owner's Representative" shall mean the officer of the General Partner of Owner 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 HUD. "Event of Default" has the meaning set forth in Section 20.1. "General Partner(s)" means the Santa Ana Arts Collective, LLC, a California limited liability company and WCH Affordable XVIII, 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 sem., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "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 4 55C-58 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 as Exhibit C to the Loan Agreement, to be executed by Owner pursuant to Section 5.B.2 in order to secure the Inclusionary Loan Note. "Inclusionary Loan" means the Inclusionary Funds that will be awarded to the Owner under the Loan Agreement that must be repaid through residual receipts. "Inclusionary Promissory Note" means that certain Promissory Note for Inclusionary Funds in the original principal amount of $4,775,000.00 in the form attached as Exhibit D to the 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 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 Agreement" means the Loan Agreement regarding the loan of CDBG and Inclusionary funds between the City and the Owner, and any attachments thereto. "Loan Documents" means, collectively, the Loan Agreement, the CDBG Promissory Note, the CDBG Deed of Trust, 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 HUD. 55C-59 "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 Second Amended and Restated Agreement of Limited Partnership of Santa Ana Arts Collective, LP., dated in July 2017. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and AHSC Loan Documents 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, collectively, the Senior Loan Deed of Trust and AHSC Loan Documents 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 Loan Agreement, as modified from time to time in accordance with the 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 1666 N. Main 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/Schedule of Performance" means the detailed statement of the work to be performed by Owner 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 as Exhibit H to the Loan Agreement. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note and its successors and assigns. The initial Senior Lender will be Bank of America, N.A and California Community Reinvestment Corporation is projected to become the Senior Lender after conversion of the loan to permanent status. "Senior Loan" means a loan from any Senior Lender(s) in a position superior to the City Loan. "Senior Loan Deed of Trust" means any deed(s) of trust securing any Senior Loan by encumbering the Property. 55C-60 "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 HUD. 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 Extremely Low and Very Low Income households, as provided in the Loan Agreement and these Restrictions. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE 1471TOWWW4 3.1 Use Covenants and Restrictions. a. Owner agrees and covenants, which covenants shall run with the land and bind Owner, its successors, its assign and every successor in interest to the Property that Owner 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 fifty-eight (58) units of which there will be twenty-six (26) one -bedroom units, fifteen (15) two-bedroom units and seventeen (17) three-bedroom units. There will be twenty (20) units with incomes at or below 30% AMI, six (6) units for households with incomes at or below 35% AMI; six (6) units for housholdes with incomes at or below 40% AMI; twenty-five (25) units for households with incomes at or below 60% AMI; and the remaining unit will be reserved for the on-site manager. C. The proposed unit mix, initial rents, and levels of affordability are as follows: 55C-61 30% AMI 35% AMI 40% AMI 60% AMI Unit Size No. Rent Units No. Rent Units No. Rent Units No. Rent Units Total 1 Bedroom 14 $587 6 $685 6 $783 26 2 Bedroom 2 $704 --- --- --- --- 12 $1,408 14 3 Bedroom 4 $813 --- --- --- --- 13 $1,627 17 Total 20 6 6 25 57 55C-61 The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. HOME Assisted Units Unit Type Level of # of HOME HOME Share of Total # of Units Description/No No. of BlIs Affordability Assisted Units Unit Type tes 26 1 Bed 1 30%AMI 5 19.23% 14 2 Bed 2 2 14.29% 17 3 Bed 3 4 23.53% (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low HOME rent as published by HUD, as amended from time to time. (2) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME floating units. (3) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of all assisted units, including the HOME -assisted units, to verify compliance with affordability requirements. For the HOME assisted -units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (ICAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. 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 and income tables as published by HUD. 3.2 Rent Increases: A. On an annual basis, the City shall provide the Owner with the HUD maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units) for the Property. B. Owner, 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 HUD. The Housing 55C-62 Manager shall notify Owner in writing of the adjusted allowable maximum incomes and rents. 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 and Very Low Income households; (b) Are reasonably related to program eligibility and 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 (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 (24 CFR 92.351). B. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 982 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based rental 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. 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): 55C-63 (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; (i) 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 [24CFR 92.504 (c)(6)] 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 55C-64 Housing 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 Housing 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 Housing 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 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 Proiected 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 Housing Manager. The budget and cash flow shall be in a form that is acceptable to the Housing 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, 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 (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 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. Owner shall not request disbursement of City 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 55C-65 is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreements and these Restrictions [24 CFR 92.504 (c)(10)]. K. Owner 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. Owner shall file with the City an Annual Report (herein referred to as the "Annual Report") within one hundred fifty (150) days following the end of each calendar year, commencing the Calendar Year following the issuance of the Certificate of Completion. The Annual Report shall contain a certification by Owner as to such information as the City Project Manager 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 4.G. (c) of the this Agreement which shall include an audited 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 audited financial statement shall be prepared in accordance with generally accepted accounting practices. (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 Owner 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 the CDBG and Inclusionary Housing 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, for the required period of affordability. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the CDBG Deed of Trust and Inclusionary Deed of Trust, with a loss payable endorsement naming the City as a loss payee together with other approved lenders (as their interests may appear), with a 'Replacement Cost Endorsement" in amount sufficient to prevent Owner 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 Agreements. 55C-66 (8) Termite reports pertaining to the Property every fifth (5w) year. (9) Such other information as may be reasonably required by the City Manager or his/her designee. b. Records and Audits. 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 that the project meets the property standard specified in 24 CFR 92.251; (2) records, for each Restricted 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 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; (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 date on which Owner obtained ownership of the Property; (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; 55C-67 (9) records of certifications of contractor qualifications as they relate to the debarment 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 NSP 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 (24 CFR 92.508). 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, 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 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. C. 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. f. 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. Owner shall reasonably cooperate with City in performing such audit. g. 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 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. 55C-68 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 [24 CFR 92.504 (c) (13)]. 55C-69 IN WITNESS WHEREOF, the parties hereto have executed these Affordability Restrictions on Transfer of Property as of the date and year fust stated above. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM RECOMMENDED FOR APPROVAL: Robert C. Cortez Acting Executive Director Community Development Agency CITY OF SANTA ANA Cynthia J. Kurtz Interim City Manager 55C-70 OWNER: Santa Ana Arts Collective, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, A California limited liability company, its administrative general partner Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company its managing general partner Graham P. Espley-Jones, President 55C-71 Exhibit Co. Inclusionary Housing Deed of Trust 55C-72 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Clerk of the Council FIRST AMENDED AND RESTATED INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS FIRST AMENDED AND RESTATED INCLUSIONARY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 5"' day of July, 2017, by between Santa Ana Arts Collective, LP , a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (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 1666 N. Main 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 CDBG and Inclusionary Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; 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 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 55C-73 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 chattels and personal property as are ever used or fiunished 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 FOUR MILLION SEVEN HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($4,775,000.00) (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: 1. The Agreement. This Deed of Trust is executed and delivered, along with the Inclusionary Promissory Note and 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 Deed of Trust, the Beneficiary would not enter into the Agreement or Inclusionary 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 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 and AHSC Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place with respect to the Senior Loan and subordinate with respect to the AHSC Loan. 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 Trustor'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 which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor 55C-74 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 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 famish 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 55C-75 take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attomeys' 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 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 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 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025 with a copy to Bank of America CDC Special Holding Company, Inc. Community Development Banking,MAI-225-02-02, 225 Franklin Street, Boston, MA 02110 and WCH Affordable XVIII, LLC Attn: Graham Espley-Jones, 151 Kahnus Drive, #J5, Costa Mesa, CA 92626, (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 Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. 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. 4 55C-76 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. 17. Cautions. 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 (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Trustor's Amended and Restated 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 purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, (v) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 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 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) 55C-77 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 seMc ., 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. In addition, if an Event of Default occurs hereunder or under the Note, prior to taking any remedy under this Deed of Trust or any other document evidencing or securing this Note, Beneficiary shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the Beneficiary that Limited Partner must remove and replace the general partner or general partners of Trustor, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. 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. Truster'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) 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 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. 55C-78 21. Reconvevance. 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 Liabilitv. 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. (Signatures on Following Page) 55C-79 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner In Graham P. Espley-Jones, President 55C-80 Exhibit Do. Inclusionary Housing p romissory Note 55C-81 FIRST AMENDED AND RESTATED INCLUSIONARY HOUSING FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1666 N. Main Street) $4,775,000.00 July 5`h, 2017 Santa Ana, California 1. Principal Amount of Loan FOR VALUE RECEIVED, Santa Ana Arts Collective, LP, 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 FOUR MIILLION SEVEN HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($4,775,000.00) or so much thereof as shall be disbursed hereunder, with three percent simple interest (3%) commencing upon filing of Notice of Completion, pursuant to the CDBG and Inclusionary Program Loan Agreement (said "Agreement') between Borrower and the City dated concurrently herewith, which are both incorporated herein by this reference. 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, CDBG Deed of Trust, CDBG Promissory Note, 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, CDBG Promissory Note, CDBG Deed of Trust 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 of Santa Ana. 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, 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, Att: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 55C-82 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 Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing athe AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. ;"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 U.S. Department of Housing and Urban Development (HUD). Also may be referred to as "AMI" herein. "Borrower" means Santa Ana Arts Collective, LP, a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "Inclusionary Loan" 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 aggregate percentage of thirty point thirteen percent (30.13%) of the total Residual Receipts from the Property, which shall be applicable to the HOME Loan, CDBG Loan, and Inclusionary Loan, 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 55C-83 transactions in the irmnediate 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 Refmancing, 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" (Inclusionary) 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. 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. Gross Revenues shall not include capital contribution and loan proceeds received by borrower from any source. "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) general partner fee and tax credit investor management fees pursuant to the Borrower's amended and restated partnership agreement ("Partnership Agreement"); (iii) the cost of any supportive services provided to tenants of the Property, including fees and reimbursements payable to the provider or coordinator of such supportive services; (iv) debt service payments (excluding debt service due from residual receipts or surplus cash of the Property) on senior loan obligations associated with the Property, and approved by Lender; (v) tax credit adjustment payments payable to Maker's tax credit investor pursuant to Borrower's Partnership Agreement; (vi) payments made on loans advanced by any partner or member of Borrower for the purpose of paying operating expenses of the Property; 55C-84 (vii) a property management fee equal to 8% of gross rents; (viii) Owner Administration Fee of 5% of gross rents; (ix) deposits into required reserves; (x) any deferred developer fee; (xi) 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 the Santa Ana, 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"). "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 HUD. "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. rd 55C-85 "Inclusionary Assisted Units" shall mean those rental units purchased and rehabilitated on the Property 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 1666 N. Main 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. Notwithstanding the projected sale of the senior permanent loan on the Project to California Community Reinvestment Corporation (`CCRC") and any subsequent transfer of the loan in whole or in part by CCRC shall not be deemed a Refinancing for purposes hereof. "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 loans made to Borrower, for payment of acquisition and/or rehabilitation/construction 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 loan from the State of California Department of Housing and Community Development to Borrower, but in no event shall the Term end later than July 1, 2075. 55C-86 "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 HUD. 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. Operating Capital Imnrovement 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 150,' 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 a City Loan payment then due. c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of interest and then to 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 City Loan has been fully repaid. d. Borrower shall retain fifty percent of the Residual Receipts. The other fifty percent shall be used to repay the other public agency loans according to the table below: SOURCE PERCENTAGE CDBG Loan 2.01% HOME Loan 8.92% 55C-87 Inclusionary Housing Loan 19.200 State of California Housing and Community 19.87% Development Affordable Housing Loan TOTAL 50.00% 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 interest and then the principal balance of the loan. 6. Loan Repayment from Refinancine 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 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 and AHSC 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 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 Borrower 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 interest and then 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. 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 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 full the balance remaining on the Senior Loan and AHSC 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 total Sale Proceeds, 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 Borrower 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 interest and 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. 8. Accelerated Loan Payment. 55C-88 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 City Loan, the City approves such sale in the exercise of its reasonable discretion 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 full the City Loan, the City approves such Refinancing in the exercise of its reasonable discretion 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, AHSC 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 expiration of the Term 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 City 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. 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, 55C-89 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 or the AHSC 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 Meta Housing Corporation or a limited liability wholly owned by Meta Housing Corporation 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 and AHSC 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 shall be repaid to the City at the time of each Refinancing or partial Refinancing. 9 55C-90 c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (and it shall not be deemed a Sale) (i) a transfer of a 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 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 Borrower. 14. Event of Default. Subject to the provisions of Section 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; or (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 Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion). 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 and subject to the provisions of Section 21 hereof, 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. 10 55C-91 16. Attornev Fees. If this City 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. 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 City 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 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. 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 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 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. 11 55C-92 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. 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. g. In addition, if an Event of Default occurs hereunder, prior to taking any remedy under this Note or any other document evidencing or securing this Note, City shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the City that Limited Partner must remove and replace the general partner or general partners of Borrower, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. 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 City Loan in balance and rebuild the 12 55C-93 Property in a manner that provides adequate security to City for repayment of the City 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 City Loan in a manner that provides adequate security for repayment of the remaining balance of the City 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; 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. 13 55C-94 This City Promissory Note is hereby agreed to and executed on the date first set forth above. :O.CO./ SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner 0 Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner IM Graham P. Espley-Jones, President 14 55C-95 Exhibit Ee. CDBG Deed of Trust 55C-96 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Clerk of the Council FIRST AMENDED AND RESTATED CDBG DEED OF TRUST AND ASSIGNMENT OF RENTS THIS FIRST AMENDED AND RESTATED CDBG DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 5t' day of July, 2017 between Santa Ana Arts Collective, LP , a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (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 1666 N. Main 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 CDBG 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 CDBG and Inclusionary Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; 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 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 55C-97 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 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 Five Hundred Thousand Dollars ($500,000.00) (the "CDBG 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 CDBG Promissory Note and 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 Deed of Trust, the Beneficiary would not enter into the Agreement or CDBG 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 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 and AHSC Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place with respect to the Senior Loan and subordinate with respect to the AHSC Loan. 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 Trustor'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 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 2 55C-98 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 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 55C-99 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 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 CDBG 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 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 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025 with a copy to Bank of America CDC Special Holding Company, Inc. Community Development Banking,MAI-225-02-02, 225 Franklin Street, Boston, MA 02110 and WCH Affordable XVIII, LLC Attn: Graham Espley-Jones, 151 Kahnus Drive, 05, Costa Mesa, CA 92626, (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 Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. 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. 4 55C-100 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 CDBG 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. 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 CDBG 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 (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner") of its rights upon a default by a general partner under the Trustor's Amended and Restated 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 purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, (v) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 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 CDBG 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) 55C-101 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 sem., 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. In addition, if an Event of Default occurs hereunder or under the Note, prior to taking any remedy under this Deed of Trust or any other document evidencing or securing this Note, Beneficiary shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the Beneficiary that Limited Partner must remove and replace the general partner or general partners of Trustor, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. 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 CDBG 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 Trustor'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 parry 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. 55C-102 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 CDBG 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 Liabilitv. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, CDBG 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. (Signatures on Following Page) 55C-103 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner By: Graham P. Espley-Jones, President 55C-104 Exhibit F4.p CDBG Promissory Note 55C-105 FIRST AMENDED AND RESTATED CDBG FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1666 N. Main Street) $500,000.00 July 5, 2017 Santa Ana, California 1. Principal Amount of Loan FOR VALUE RECEIVED, Santa Ana Arts Collective, LP, 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 FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) or so much thereof as may be advanced by the City to the Borrower, due and payable with 3% interest by residual receipts over the fifty-five (55) year term, pursuant to the CDBG and Inclusionary Program Loan Agreement (said "Agreement') between Borrower and the City dated concurrently herewith, which are both incorporated herein by this reference. 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 "CDBG 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, Inclusionary Promissory Note, CDBG 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, Inclusionary Promissory Note, CDBG Deed of Trust 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 of Santa Ana. 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 CDBG Loan of CDBG Funds attributable to the 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, Art: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 55C-106 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 Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD, awarded to and the sole responsibility of Borrower, administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing the AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the Community Development Block Grant Program, and the CDBG Funds. "Area Median Income" means the median income figures for Orange County as published by the U.S. Department of Housing and Urban Development (HUD). Also may be referred to as "AMI" herein. "Borrower" means Santa Ana Arts Collective, LP, a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "CDBG Loan" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the CDBG Deed of Trust. "City's Percentage" with reference to the Residual Receipts, shall mean aggregate percentage of thirty point thirteen percent (30.13%) of the total Residual Receipts from the Property, which shall be applied to the HOME Loan, CDBG Loan, and Inclusionary Loan, as further described in Section 5 hereof. "Closing Costs" shall mean: 55C-107 G) 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. "CDBG Program" (CDBG) 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. 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. Gross Revenues shall not include capital contribution and loan proceeds received by borrower from any source. "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) general partner fee and tax credit investor management fees pursuant to the Borrower's amended and restated partnership agreement ("Partnership Agreement"); (iii) the cost of any supportive services provided to tenants of the Property, including fees and reimbursements payable to the provider or coordinator of such supportive services; (iv) debt service payments (excluding debt service due from residual receipts or surplus cash of the Property) on senior loan obligations associated with the Property, and approved by Lender; (v) tax credit adjustment payments payable to Maker's tax credit investor pursuant to Borrower's Partnership Agreement; (vi) payments made on loans advanced by any partner or member of Borrower for the purpose of paying operating expenses of the Property; 55C-108 (viii) Owner Administration Fee of 5% of gross rents; (ix) deposits into required reserves; (x) any deferred developer fee; (xi) 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 the Santa Ana, 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"). "CDBG Deed of Trust" shall mean the CDBG Deed of Trust in favor of the City, securing the CDBG Loan, substantially in the form attached to the Agreement as Exhibit E, 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 HUD. "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. "CDBG Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. 55C-109 "CDBG Funds" shall mean the money provided under the CDBG Program for the rehabilitation of the rental units hereunder. "Propert 'shall mean that property located at 1666 N. Main 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. Notwithstanding the projected sale of the senior permanent loan on the Project to California Community Reinvestment Corporation (`CCRC") and any subsequent transfer of the loan in whole or in part by CCRC shall not be deemed a Refinancing for purposes hereof. "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/construction 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 loan from the State of California Department of Housing and Community Development to Borrower, but in no event shall the Term end later than July 1, 2075. "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 HUD. 55C-110 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. 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 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 1501' 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 a City Loan payment then due. c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment interest and then to 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 City Loan has been fully repaid. d. Borrower shall retain fifty percent of the Residual Receipts. The other fifty percent shall be divided according to the table below: SOURCE PERCENTAGE CDBG Loan 2.01% HOME Loan 8.92% Inclusionary Housing Loan 19.20% State of California Housing and Community Development Affordable Housing Loan 19.87% TOTAL 50.00% 55C-111 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 interest and then 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 tern of this Note (other than refinancing of the conventional lender acquisition and 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 and AHSC 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 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 interest and then 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. 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 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 full the balance remaining on the Senior Loan and AHSC 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 total Sale Proceeds, 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 interest and 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 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; 55C-112 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 in the exercise of its reasonable discretion 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 full the City Loan, the City approves such Refinancing in the exercise of its reasonable discretion 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 AHSC 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 expiration of the Term 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 City 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. 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 55C-113 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. Securitv 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 or the AHSC 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 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 and AHSC 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 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 (and it shall not be deemed a Sale) (i) a transfer of a 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 9 55C-114 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 (3 0) 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 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 Borrower. 14. Event of Default. Subject to the provisions of Section 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; or (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 Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion). 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 and subject to the provisions of Section 21 hereof, 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 City 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, 10 55C-115 reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 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 City 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 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. 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 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 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 11 55C-116 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. 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 (180) days after the first notice of default is given. g. In addition, if an Event of Default occurs hereunder, prior to taking any remedy under this Note or any other document evidencing or securing this Note, City shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the City that Limited Partner must remove and replace the general partner or general partners of Borrower, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. 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 City Loan in balance and rebuild the Property in a manner that provides adequate security to City for repayment of the City 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 12 55C-117 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 City Loan in a manner that provides adequate security for repayment of the remaining balance of the City Loan. 23. Force Mai eure. 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; 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. Assienments. 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. 13 55C-118 This City Promissory Note is hereby agreed to and executed on the date first set forth above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner 0 Graham P. Espley-Jones, President 14 55C-119 Exhibit Go. Project Budget 55C-120 EXHIBIT G Santa Ana Arts Collective Project Budget 55C-121 ReSltlemlel Re.I CoCosts t Coati COrtvmm2el Component C.. ToWl Devel0pimnt Cvsb Stele-HCO µ3C Pmgm AHORLOen FUNDING SOURCES 0%t...ditiLmal PMa[e CCRC-Penn Tax OixREqulty ClVd8anlam. Ima1MTm61 De PtlVab Qelx�ed' �ewkyn Fee $.IHCD AHSCCrVt Fund, -M& Pm. SOURCES TOTAL L.&Iand COmar VSlue 83,095,812 wo.l. #,135,. IS M.812 339.108 $3,195.000 LOJa18 Cbsilg Ccsb $33,229 8421 533.650 IGGS4 5621 831850 C3 Co. '8203.040 52.50c $206An #04,428 8206428 rfable Yblolel 1 33,3321009 W.1SS #,375,01e 30 133,220 #,05,812 #6545] w SO 51375,070 i55 0.m mvemmb C¢atfr1,2IeCb 853.375 Sa.2]0,0.N $317,S71.53.896.940 553.5]5 _ $4,2]0.00 ONe[ a 401 1 $0 Total Acquisition 1),548,814 #8.800 3].665.0]e Sp 1350.Po6. SS.B06.I0 SNDdiR $0 # S).6a9.0]0 RELOCATION PNTY.n¢l.dOficn St... $11612 $1.673,00 814)3.00 31,4]3,000 NEWRebmtlen if.4.5yse0 sb,4tz Et,ar3,000 S0 'f0 f0 516]3.000. 50 30 sLdi;WO CONSTRUCTION Off -Site lmpmvemems .S125a.oW 81,225,00 EL203.039 51,200.00 Sile WOM .dm55 540.00 509 moll $40,50] $40."00 $500 EW,SW SWttma i m99 511128."93 5186.106 513.203.20] $6.961.13] .$].601.;4]8. .$S000V9 $168.0]8. _ 519.292 R0] Om.IR YremBMa 51,9126Po 510018 §1.3ID,229 51,31?809 518.818 $L329,229 Cmlmdar Ove�M1md -$28B]]I00 IOAV, .1 5282430I I #Au` #0,630 Canl2mor PMRE2w,. $.1 1 53.859 8292,430 UMMILlabiIK Imunnc0 I #5300 531248253.126 5250."110 I T. 1, 124 T., NBW COmiNNOn I 15.S9d" 1191)69 .310.788.906 Sd.W.1J0 $9,BBI,e08 #OO , 5196,z]J w 51,200,00 516,700,009 ARCHITECTURAL Deli n r $821531 311.753 5940254 $590.169 1 $960.250 $Y ISIOn 1 .5151 ,08 51.011 5152iil020 "" SS2.920. 1152020 T.IAmM1RetlunlCmb E1,0]9,Sb S13,W 51.08,86 fit 3530,i5J W 886.1,011 30 # $1,00,174 SURVEY & ENGINEERING E 1 SlI.S. $12.89 51.031,091 51018,302 512.009 41.031081 Total Soho 8En Inmtln IRMSS02 S12A09 $1,031,001 RI SIM8,202 w $12,O0 IS IS $143101 .. . I 51001064 312,T211 $1017,705 S1.W4806 812121 31.01]]05 .RCOSI COnR ¢ nCOab $25])12 83302 5200916 _ #57712 CID #SAT. Tetel Contin On CONSTRUCTION 51.282.696 815.807 SI,P0,61D 50 512#,BBB 50 E15,98J Sv m E1,TlBB79 PERIOD EXPENSES Can 01I,n LOen lnl¢!61 $515.53] SS.SR E#2.050. 5515.539 56,520 $522.059 OII ImtivnFm 1 5162.]80 52091 $100.827 $162.786 52.061 PRR4A27 Cm1R EnM1encemmlBA _Faa #9.025 5315 Sb,W3 #8.825 S115 830.00 Te+v Dull COnSlNppn ,$162.0]] 51.)96 516105 516,07] 81,]85 $149.0)5 Prevail) Wa .Monitor SO $0 EO Imuanm Dun ConsWNon #12912 5,000 $211000 #12,312 52.808 #15,000 TNeaW Re min Fed $50253 5750 88000 $59.250 3]50. &u.. ONC COnslmdbn Lmnl nIiNW POY CNO 8750563 5013) 5355.00" 5350.563 y,,49] #88."09 Tela)Cenelmdlon Ez n $1Arz.1z0 $1e,SR f1.490,re1 50 31."72,128 50 518,05 SO b E1,d90A Imn On Ire11onF SJ15T 5000 #0.,7] SJt9]] 5400 $91.98 TgAoI $iBTO 5250 SID.00. 810.]0 .5250 Per Tele) Flnancln nenl #1731 5850 551 .DIi 50 555.321 50 5550 50 # 851.9P LEGAL FEES CoM1.N .n L¢ndttL aI Ex..$lB.WO 51.03 #c.00 $19,00. $1.00 $60,00 5 mrL IFem .888]0 $'.240 sloaDV $98.750 51250 5100030 TOte1 Le el Feae1 CAPITALIZED RESERVES 1177140 #RSO E1B0p00 f0 8177."50 50 #150 .1 518000 O li Reserve ..5168.084 $14904 8168.06 516806 TObI Ce IbIIIOtl Re98rvOa f16D.006 30 5149.080 $0 5140.084 $0 S9 $0 $0 S14BRm REPORTS L STUDIES A , r W.Mll 534 S2.i0 #.666 $94 #170 .II.Stwy I 521182 5262 S2L450 E2ll02 #60 $21650 Emimnmemal Sludim #1]0 5300 520.00 $2170 5300 #4,00 Dmc AAvAlt .$101588 E1,312 810500 582.50 52290 810500 Tot61 Rv !b 65Ndlve 5161139 $1914 $159,150 b 868,540 # Se3,102 SO SII,500 5153,150 iCACA .IAlbc./ManilarFm 509658 $N0.090 SWe We 5140,098 LOBI P¢mlll 1. #32561 $1576 #5511] #B?541 53.576 $206.11) AHSC Eligible (mp,dFed: $9 DRIN 0 518.30 8204 518,546 $10340. .5206 '$10.566 Pa*s B Rem®tian S 906 $?001 $232,#5 $229,004 #871 $231535 SUvdYSI nolo 50 EO G, W S0 T2I(CFmY 5289693 E3.)SS #03,6¢2 #8900 53.)09, 8283.602 Wesle Walm $253.261 SIRS #58401 $253.261 W.I. #3040] Wetw Fecilil :558.80 3733 559.3]0 56550 "' 5733 _ 888.338 ONttlm dFem NOmAHSC EIi This ".fII11c8 W.I. $95,204 $1]3,10¢ 12,156 ST]S_ FumtNi a 5345.625 STAR #5000 MaWO 5350,000 Mad¢II 5138250 51.>BO 8160,00 $140.00 510.00 OIFO1 Otili F¢d 8339.110 53027 #62137 $239,110 IGM7 $24213] O-Reimbursmblm 553:325 SS]5 $84.00 '550.00 55680 TONI O[M1el Costa S2.zH.411 33e1Y1 #.z55,]B] EO 81,710,311 W SSOB.Sz2 30 SO 52353.)83 SUBTOTAL #3,189,754 H0p32 531508/08 9,904,130 $10.682]00 #.4W.r00 51172607 $O SLN0.500 SOAN.70. Dweb DEVELOPER FeNOveeM1mNPm ft MOR 81.875,00 82100 #.0080 313]100 525.LYYI Ffi0.00 #00.00 reoeta 32ms,a9d S2s,am #,B99,m9 sit 513]s,BBe sit sa,ddB see9.9m Po sz,em,B99 TOTAL DEVELOPMENT LO3T #S.b1.]54 142302 #S I.M." 51941130 3101O42rOB 17,494.70 #.1%,BW 500.000I iA,RN,0e 55C-121 Exhibit He. Scope of Work /Schedule of Performance 55C-122 SCOPE OF WORK & SCHEDULE OF PERFORMANCE I. SCOPE OF DEVELOPMENT: The property address of the site subject to this agreement is 1666 North Main Street, at the signalized intersection of 17th Street and Main Street, in the Midtown Specific Plan Zoning District (SP -3). The development site consists of two parcels held as one, of 48,399 square feet total (or 1.11 acres). The development site is currently improved with a five -story office building, one level of subterranean parking, and approximately 0.5 acre of surface parking. The office building was built in 1968 and has 62,724 rentable square feet. In November 2014, the Santa Ana City Council approved an adaptive reuse ordinance, which provides alternative building and fire standards in order to convert non-residential buildings built before 1974 into dwelling units, guest rooms or joint living and work quarters. 1666 North Main Street qualifies for this ordinance because of the building's age, non-residential use, and location in the Midtown Specific Plan Zoning District. The development is a fifty-eight (58) unit affordable housing development that would adaptively reuse the five -story office building as forty-eight (48) residential flats, and newly construct ten (10) additional residential lofts, townhomes, and flats on the office building's former surface parking area. A mix of twenty-six (26) 1 -bedroom, fifteen (15) 2 -bedroom, and seventeen (17) 3 -bedroom units will be spread throughout the adaptively reused office building and ground -level new construction. Building heights range from two (2) stories in the former surface parking areas to five (5) stories in the adaptively reused building. An existing subterranean parking garage will be restriped for 113 parking spaces. Parking will be accessed via the existing drive aisle from North Sycamore Street to the west. The 1968 office building is constructed of reinforced concrete panels with tinted window panels, in the international style of architecture, which has its roots in the modernist design movement of the twentieth century. The new development would preserve the former office building's clean, contemporary lines and add new, modem lofts and townhomes to complement the character of the office building and more broadly Midtown. To complement and sustain the proposed artist concept, Meta Housing Corporation has included approximately 5,992 square feet of community space distributed throughout the development. That space is proposed to be allocated to the following uses: a community art gallery, art garden, maker spaces, music room, rehearsal room, community room with community kitchen, computer room, property management office, services office, common laundry facility, a courtyard, and tot lot. The approximate 1300 square foot community art gallery, art garden, and maker spaces will be located on North Main Street. 55C-123 II. SCHEDULE OF PERFORMANCE: IW67010M.11II 1. Insurance. Developer shall furnish or cause to be furnished As a Condition Precedent to appropriate certificates of insurance and/or endorsements to disbursement of any portion of City which meet all requirements of the Agreement. the loan, but no later than ten days after close of escrow. B. PROJECT FINANCING Submission of Evidence of Financing. Developer shall submit Not later than thirty (30) days to City evidence of financing for the Project after allocation of tax credit financing by CTCAC. 2. Receipt of All Funding Commitments Necessary to Complete Not later than thirty (30) days Construction of the Improvements. Developer shall use its best before Construction Close. and good faith efforts to secure irrevocable funding commitments from TCAC, Senior Lender, and other available funding sources which when combined with the Loans shall equal no less than the total cost to construct the Improvements, as set forth in the approved Project Budget. Developer shall submit such commitments to City for review. 3. Approval of Developer's Evidence of Financing. City must Not later than twenty (20) approve Developer's evidence of financing as required by business days after receipt of a the Agreement. complete submittal from Developer C. CONSTRUCTION OF IMPROVEMENTS 1. Design Development Drawings. Developer shall prepare and Within seven (7) months submit Design Development Drawings to City for review and following the date of the approval. Loan Agreement. 2. Approval of Design Development Drawings. City Housing Within fourteen (14) days of staff shall review and approve, approve with conditions, or Developer's complete disapprove the Design Development Drawings. submittal of the Design Development Drawings. 55C-124 Revision to Design Development Drawings. Developer shall revise and resubmit Design Development Drawings to address conditions or disapproval to the satisfaction of City. 4. Management Plan. Developer shall submit its proposed Management Plan to City for review and approval. 5. Approval of Management Plan. City shall review and approve, approve with conditions, or disapprove the Management Plan. 6. Revision to Management Plan. Developer shall revise Management Plan if conditionally approved or disapproved by City. 7. Approval of Revised Management Plan. City shall review and approve, approve with conditions, or disapprove revised Management Plan. 8. Progress Payments. During construction Developer shall prepare monthly written progress reports and submit to City Manager. Within fourteen (14) days of conditional approval or disapproval, subject to extension based upon extent of revisions requested. Not later than twenty (20) business days after receipt of a complete submittal from Developer Within fourteen (14) days of receipt of a complete submittal from Developer. Within fourteen (14) days of receipt of disapproved Management Plan from City. Within fourteen (14) days of receipt of a complete submittal of revised Management Plan from Developer, but not later than 120 days prior to project completion. Commencing thirty (30) days after start of the Construction work through completion. 9. Commencement of Construction of the Improvements. No later than July 28, 2017 Developer shall cause the Construction of the Improvements to be commenced by Contractor. 10. Completion of Construction of the Improvements. Developer On or before November 1, shall complete all work of the Construction of the 2018 (subject to extension by Improvements. City based upon substantial progress toward completion of construction by Developer). 11. Release of Construction Covenants. City to furnish Developer Within thirty (30) days of with a Release of Construction Covenants. receipt of Developer request and only after Developer's satisfactory completion of the Construction of the Improvements. 55C-125 The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing between Developer and the City Manager or his/her designee ("City Manager"), and City Manager is authorized on behalf of City to agree to make such revisions as he deems reasonably necessary. The City Manager, in his/her sole discretion, may elect to bring to the City Council for consideration and action any modifications to this Schedule of Performance. It is understood that the Schedule of Perfolmance is subject to all of the telcos and conditions set forth in the text of the Agreement. The summary of the items of perfolmance in the Schedule of Performance is not intended to supersede or modify the more complete description in the text of the Agreement; in the event of any inconsistency between the Schedule of Performance and the text of the Agreement, the text shall govern. In the event the City Manager deems it necessary to bring to City Council for consideration one or more modifications to this Schedule of Performance, the discretion to do so is expressly reserved to the City Manager. The time periods set fol lh herein for City approval of plans and drawings and other submittals that are submitted to City by Developer shall only apply and commence upon Developer' s complete submittal of all the required information. In no event shall an incomplete submittal by Developer trigger any City obligations of review and/or approval hereunder; provided, however, that City shall notify Developer of an incomplete submittal as soon as is practicable and in no event later than the applicable time set forth for City action on the particular item in question. If any of the foregoing performance measurements are not met then it will be deemed a default as defined in Section 20 and any remedies shall be cured according to said Section of the Agreement. 55C-126 Exhibit I: Form of Residual Receipts Report 55C-127 EXHIBIT I FORM OF RESIDUAL RECEIPTS REPORT Community Development 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. 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 n2linclude 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) Operatine 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 55C-128 (1) (2) (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 ofthe 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. 55C-129 55C-130 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] • 1 UOTRONFET4161=3l L 1 by and between the •INU. .►: and SANTA ANA ARTS COLLECTIVE, L.P., a California limited partnership (1666 N. Main Street, Santa Ana, California) Dated: July 5, 2017 Exhibit 3 55C-131 HOME LOAN AGREEMENT THIS HOME LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of July 5, 2017, is made and entered into by and between the CITY OF SANTA ANA, a charter city and municipal corporation ("City") and SANTA ANA ARTS COLLECTIVE, L.P., a California limited partnership ("Developer"), with reference to the following: RECITALS: A. The City has received an allocation of funds from the United States Department of Housing and Urban Development ("HUD") under the HOME Investment Partnerships Program ("HOME Program") (42 U.S.C. § 12701, et seq.) to be used in accordance with applicable statutory requirements and regulations ("HOME Regulations")(24 CFR 92); B. 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; C. The City is authorized by the HOME Regulations to expend funds to increase the supply of very low and low-income housing available at affordable housing costs. D. The City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all applications, the Developer's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. E. Developer is entering into this Agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a fifty-eight (58) unit multi -family residential housing development, with live/work units and a possible commercial art studio, as well as a community room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The HOME funds referenced herein shall assist in the acquisition, rehabilitation, construction, and soft costs of said Project. F. In furtherance of the HOME Program, Developer has applied to the City for a loan with which to: 55C-132 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. G. The City, on certain terms and conditions, desires to make such loan ("HOME 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. H. 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 housing operated in accordance with the requirements of 24 CFR 92.252 and the rents governed by California Health and Safety Code Section 50052.5. "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the City, attached hereto 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 U.S. Department of Housing and Urban Development (HUD), or by the California Tax Credit Allocation Committee, as applicable. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing athe AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. 55C-133 "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 30. "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. "Close of Escrow" shall mean the date upon which the 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. "Construction" means the demolition and construction activities required to construct, until Certificate of Completion, the Project. "County" means the County of Orange, California. "Developer" means Santa Ana Arts Collective, L.P., a California limited partnership. "Developer's Representative" shall mean an officer of the General Partner of Developer or his/her designee. "Event of Default" has the meaning set forth in Section 20.1. "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 HUD. "General Partner(s)" means the Santa Ana Arts Collective, LLC, a California limited liability company, and WCH Affordable XVIII, 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. 55C-134 "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 seq., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "HOME Compliance Period" means twenty (20) years from the issuance of the Certificate of Completion or until payment of principal and all accrued interest on the HOME Loan, whichever comes last. "HOME Loan" means the loan with principal amount of TWO MILLION, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) to be made to Developer by City from HOME funds pursuant to Article 5 of this Agreement. "HOME Loan 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 5.13.2 in order to secure the HOME Loan Promissory Note. "HOME Loan Promissory Note" means that certain promissory note in the original principal amount of TWO MILLION, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) 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 HOME Loan. "HOME Program" has the meaning set forth in Recital "A" above "HOME Regulations" has the meaning set forth in Recital "A" above. "HOME Units" means the eleven (11) affordable units assisted with HOME funds. "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, 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 55C-135 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). "Limited Partner" means the Limited Partners of Developer, and their successors and assigns. "Loan Documents" means, collectively, this Agreement, the HOME Loan Note, the 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 Second Amended and Restated Agreement of Limited Partnership of Santa Ana Arts Collective, L.P., dated in July 2017. "Permitted Encumbrances for the Affordable Housing Restrictions" means, collectively, the Senior Loan Deed of Trust and AHSC Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing, which shall include all title exceptions set forth on City's title policy, all documents evidencing the State of California Housing and Community Development loan to encumber the Property and the TCAC Regulatory Agreement. "Permitted Encumbrances for the HOME 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 which shall include all title exceptions set forth on City's title policy, all documents evidencing the State of California Housing and Community Development loan to encumber the Property and the TCAC Regulatory Agreement. 55C-136 "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 1666 N. Main 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. "Section 504" means section 504 of the federal Rehabilitation Act of 1973, codified at 29 U.S.C. § 701 et seq., and its implementing regulations located at 24 CFR 8. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note and its successors and assigns. The initial Senior Lender will be Bank of America, N.A and California Community Reinvestment Corporation is projected to become the Senior Lender after conversion of the loan to permanent status. "Senior Loan" means a loan from any Senior Lender(s) in a position superior to the HOME Loan. "Senior Loan Deed of Trust" means any deed(s) of trust securing any Senior Loan(s) 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 HUD. 55C-137 1.2 Singular and Plural Terms. Any defined term used in the plural in this Agreement or any other 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 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] SCOPE OF WORK/ PROJECT BUDGET A Scope of Work and Budget for the Project is attached hereto as Exhibit F. Any material change to the Scope of Work/Budget 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 E (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. Notwithstanding the foregoing, the City's approval of a change order shall not be required unless the approval of the Senior Lender is required with respect to such change order. 4. COMPLIANCE WITH REHABILITATION ACT OF 1973 The design and construction of the Project shall at all times comply with Section 504. A. Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan of HOME funds to Developer in the principal amount of up to TWO MILLION, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) (the "HOME Loan") for the acquisition, rehabilitation, construction, and soft costs of said Project. 55C-138 B. HOME Promissory Note and Deed of Trust. The HOME Loan shall be evidenced by the HOME Loan Promissory Note in the form attached hereto as Exhibit D. The HOME Loan shall be secured by the HOME Loan Deed of Trust in the form attached hereto as Exhibit C. The HOME Deed of Trust shall be a deed of trust encumbering the Property, subordinate to the Senior Loan(s) made to Developer. C. HOME Loan Terms. The terms and conditions of the HOME Loan are as set forth in the HOME Loan Promissory Note which is a residual receipts note. The HOME Loan Promissory Note shall be subordinate to the Senior Loan, and shall continue in full force and effect for the entire HOME Compliance Period. 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 6.1 Conditions Precedent. City's obligation to disburse the Loan Amount(s) is subject to the satisfaction, or waiver by the Executive Director, of the following conditions precedent: (a) Loan Documents. 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) this Loan Agreement; (ii) the HOME Loan Promissory Note; (iii) the HOME Deed of Trust; (iv) the Affordability Restrictions on Transfer of Property, and; (v) the Notice of Affordability. (b) Title Insurance. City shall have received an ALTA Extended (LP -10) Loan Policy (6-17-06), 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 total HOME Loan Amount, showing Developer as the fee owner of the Property and insuring the HOME Deed of Trust to be valid priority liens on the Property. This Agreement, the HOME Promissory Note, and the HOME Deed of Trust, shall all be subordinate to any Senior Loan Note and Senior Loan Deed of Trust and to the AHSC Loan Documents. (c) Affordability Restrictions on Transfer of Pronertv. 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 Code of Federal Regulations ("CFR") section 92.252 or 92.254 and California Health and Safety Code ("H&S") sections 50052.5 and 33334.3, as applicable. Except as may be required in connection with the AHSC Loan, the City's 55C-139 Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated. (d) Documents Recorded. This Loan Agreement, the HOME Loan Deed of Trust, the Notice of Affordability 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"). (f) 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. (g) 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 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. 6.2 Disbursement Procedures for Loan. The HOME Loan proceeds shall be disbursed through Escrow to finance the acquisition and construction of the Project (as evidenced in Exhibit E). The HOME 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 Construction 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 Contract. If the Executive Director has not yet approved the Construction Contract, the Executive Director shall have approved the Construction Contract. 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) City is not in default under this Agreement, City may terminate this Agreement without any further liability on its part by giving 55C-140 written notice of termination to Developer. Upon the giving of such notice, all principal, interest and other amounts owing under the HOME Loan Promissory Note 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 Loan (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 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 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 Constriction 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 HOME 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 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 Executive Director, in order for final disbursement to occur. (c) Lien Free. At least one of the following shall have occurred: 55C-141 (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 material man'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 Executive Director 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, Borrower shall deliver to City a draw request ("Draw Request"), and all required supporting information as set forth in the 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 any 55C-142 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 together with any other available construction sources is or may be insufficient to pay all construction of the Project that may be payable under the 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 funds from a source other than the HOME 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 (c) deposit an amount equal to the Excess Cost in a non-interest bearing account (the "Overrun Account") with City or Senior Lender from which withdrawals may be made only with the consent of the Executive Director or Senior Lender 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 or Senior Lender 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 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. 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 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. 55C-143 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 a condition to all further disbursements until fulfilled. 6.15 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 Contract. 6.16 Other Terms and Conditions of Loan. A. The Promissory 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) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; (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 PROPERTY 7.1 Use Covenants and Restrictions. A. The HOME restrictions for the eleven (11) HOME assisted units shall be enforced until the date that is fifteen (15) years after the date on which the Certificate of Completion is issued or until payment of principal and all accrued interest on the HOME Loan, whichever comes last. B. Upon expiration of the HOME Compliance Period, the City will enforce affordability of said units with the same income and rent restrictions as the other units, pursuant to California Health and Safety Code. C. The Project shall consist of fifty-seven (57) income restricted units. There shall be eleven (11) HOME assisted units. The HOME assisted units will be floating units and shall be distributed throughout the complex with comparable amenities to the other units. 55C-144 D. The maximum incomes of residential tenants eligible to rent the Units shall be determined on the basis of the Area Median Income ("AMP') for the Orange County, California PMSA, published approximately annually by the United States Department of Housing and Urban Development ("HUD"). E. Affordable rents charged to tenants shall be governed by the HOME Regulations 24 CFR section 92.2. 7.2 Affordability Levels/Unit Mix: The proposed unit mix, initial rents, and levels of affordability are as follows: The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. HOME Assisted Units Unit Type 30% AMI 35% AMI 40% AMI 60% AMI Total # of Units Description/No Unit Size No. Rent Units NO' Rent Units No. Rent Units No. Rent Units Total 1 Bedroom 14 $587 6 $685 6 $783 26 2 Bedroom 2 $704 --- --- --- 12 $1,408 14 3 Bedroom 4 $813 --- --- --- 13 $1,627 17 Total 20 6 6 25 57 The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. HOME Assisted Units Unit Type Total # of Units Description/No No. of BRs Level of # of HOME HOME Share of Affordability Assisted Units Unit Type tes 26 1 Bed 1 30% AMI 5 19.23% 14 2 Bed 2 2 14.29% 17 3 Bed 3 4 23.53% (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low HOME rent as published by HUD, as amended from time to time. (2) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME floating units. (3) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of all assisted units, including the HOME -assisted units, to verify compliance with affordability requirements. For the HOME assisted -units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income 55C-145 adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. 7.3 Rent Increases: On an annual basis, the City shall provide Developer with the maximum allowable schedule of rents for the Property in accordance with changes in allowable rent and income tables published by HUD and the California Tax Credit Allocation Committee, provided however that the rent for the HOME units shall in no event be higher than the rent for the equivalent non -HOME assisted unit within the Project. In no event can Developer charge any tenant more than such amount. 7.4 Maintenance of the Proyerty. 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. 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, religion, disability, 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 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 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 party shall give written notice of default to the party in default, specifying the default complained of by the injure 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 55C-146 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 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 right 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 Nonrecourse Liability. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached Note(s) and Deed(s) 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. Developer (a) is a limited partnership, 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. 55C-147 9.2.1 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 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 HOME 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 under the 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 of Developer of, and the performance by Developer of its obligations under, 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 Loans (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 55C-148 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 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 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. 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 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 55C-149 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 Nonliiability 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 and 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 Executive Director (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by an investor limited partner of Developer to an affiliate, or as otherwise provided in the Note or Deed(s) of Trust. 9.14 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and California state laws 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 development of the Property. 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 55C-150 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 Change Orders. The contract for construction shall not be modified except pursuant to change orders which require City consent pursuant to this Agreement. 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 prior written approval. 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice, 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 Compliance with Section 3 Clause. Section 3 of the Housing and Urban Development act of 1968, 12 U.S.C. 1701 u, 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 assistance generates opportunities for employment or contracting, state and local grantees, as well as other recipients of HUD housing assistance funds must, 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. 1701u ("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. 55C-151 (b) The parties to this contract agree to comply with HUD's regulations in 24 CFR 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under 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 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 violation of the regulations in 24 CFR 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 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 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR 135. (f) Noncompliance with HUD's regulations in 24 CFR 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, 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 Information. From time to time during the course of the construction, but in no event more often than monthly, within ten (10) Business Days following City's written 55C-152 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 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. 11. FEDERAL (HOME PROGRAM) COVENANTS 11.1 Contract Provisions for Non -Federal Entity Contracts Under Federal Awards. Developer shall comply with the requirements at Appendix 11 to Part 200. 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 and 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 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 Construction 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. 55C-153 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, as applicable of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), Lead Safe Housing Rule, and implementing regulations at 24 CFR 35. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by 24 CFR 92.351 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 24 CFR 92.350. 11.11 Property Standards. Developer shall cause the Property to meet the housing quality standards set forth in 24 CFR 882.109, 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. 11.12 Displacement and Relocation. Developer acknowledges and agrees that, pursuant to 24 CFR 92.353 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 construction. Furthermore, to the extent feasible, residential tenants must be provided a reasonable opportunity to lease and occupy a suitable, decent, safe, sanitary and affordable dwelling unit on the Property upon completion of the construction. Developer agrees to cooperate fully and completely with City in meeting the requirements of 24 CFR 92.353 and shall take all actions and measures reasonably required by the City Project Manager in connection therewith. All applicable state guidelines must also be followed. 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, 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 52. 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. The amount of each request shall be limited to the amount needed. 11.15 Eligible Costs. Developer shall use HOME Funds only to pay costs defined as "eligible costs" pursuant to 24 CFR 92.206. 55C-154 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 annual inspections of the HOME assisted units on the Property as required by the Program 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 thirty (30) days of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. The City shall monitor, on an ongoing basis, any affordable housing. 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 (5a') 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. 11.21 Other HOME Program Requirements. Developer shall comply with all other applicable requirements of the HOME Program. 11.22 City Requirements. Developer shall comply with 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. 55C-155 (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 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. 11.23 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 Complianee. 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 55C-156 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 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). 12.1.3.1.1 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 [Intentionally Omitted] 12.5 Proiect Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account"). Until the Certificate of Completion is issued, withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Budget, as it may be revised from time to time with 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 interest-bearing replacement reserve depository account ("Replacement Reserve Account") upon the conversion of the Senior Loan to permanent status. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with the Senior Loan Documents, 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 as set forth in the Senior Loan Documents. If no Senior Loan is in effect, Developer may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the City. 55C-157 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, religion, disability, 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 ("Restrictions"), (b) run with the land, and (c) remain effective for the term of the Restrictions (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, disability, sex, marital status, 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 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 pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 55C-158 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. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the HOME Loan Promissory 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 and administrative general partners 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 HOME Deed of Trust as a valid subordinate deed of trust to the Senior Deed(s) 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 Project or 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; 55C-159 (b) any dispute between Developer and a Governmental Authority relating to the Property/Project, the adverse determination of which might materially affect the Property/Project; (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 and/or the Project. 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 HOME 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 HOME Deed of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. 15.5 Annual Financial Statements. Developer shall deliver to City, within one hundred fifty (15 0) 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/Project 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 represent Developer's financial condition, (iii) show all material liabilities, direct and contingent, and, (iv) fairly represent the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other 55C-160 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, 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 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's) year beginning January 2020. 16. OTHER COVENANTS While any obligation of Developer under the HOME Promissory Note or 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 Property. Unless and until Developer has received a Certificate of Completion for the construction 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 may be withheld in the Executive Director'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 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 (3 0) 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 the General Partners pursuant to the purchase option, as 55C-161 provided for in the Partnership Agreement; (iii) Any Transfer of the Limited Partner's under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of Developer. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction 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. 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, 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 estimated 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 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 55C-162 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 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; (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 HOME Promissory Note, release and reconveyance of the HOME Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. 18.2.1.1 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 (20) days after City gives written demand to Developer and shall be secured by the HOME Deed(s) of Trust. Such reimbursement obligations shall survive the cancellation of the Loan Promissory Note, release and reconveyance of the HOME Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement. 55C-163 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 Raring 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 until 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; which said insurance shall expressly include damage or loss by flood or storm; (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; which said insurance shall expressly include damage or loss by flood or storm; (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 reasonable 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" (Form 438BFU) in form and substance satisfactory to City, showing the City as encumbrance. The City shall be named as additional insured(s) 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 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 City evidence of renewal or replacement of such policy reasonably satisfactory to City Attorney. 55C-164 19.2 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section. Notwithstanding the foregoing, so long as the Property complies with the Senior Lender's insurance requirements, the City Attorney will not require additional insurance coverage unless (i) such additional insurance is required by applicable law or (ii) if not required by additional law, such additional insurance shall only be required if it is readily available on commercially reasonable terms and the cost thereof can be home by the Borrower from available Borrower revenues without causing the Borrower to default under the Senior Loan or the Partnership Agreement. 19.3 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property/Project, 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. Subject to the rights of any Senior Lender, 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 of Senior Lender, if any, or if there is not a Senior Lender, the City, 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 in the Senior Loan Documents, provided if there is no Senior Loan then 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 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 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 55C-165 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. (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 the then customary disbursement procedures and related provisions of the Senior Loan, or the City, as applicable. 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 Senior Lender if any or by City against any obligations to Senior Lender or City, as applicable, 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 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. 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 actual or threatened condemnation or other proceeding. 55C-166 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. 19.9 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 HOME Loan Note(s) 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 ninety (90) 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 (3 0) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other 55C-167 deity, strikes or other causes beyond Developer's reasonable 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 beyond the required completion date set forth in this Agreement and the Schedule of Performance; (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, 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 (j) 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 Executive Director's prior written consent, or (ii) an Event of Default occurs under the Senior Loan Documents and the Senior Lender declares that a default has occurred. In addition, if an Event of Default occurs hereunder, prior to taking any remedy under this Agreement or any other document evidencing or securing the Loan, City shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the City that Limited Partner must remove and replace the general partner or general partners of Developer, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default. 55C-168 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: (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/Project, 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 HOME funds if Developer fails to comply with any term or condition 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. 55C-169 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. 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: Santa Ana Arts Collective, L.P. c/o Meta Housing Corporation 1640 Sepulveda Blvd, Ste. 425 Los Angeles, CA 90025 Attention: President With a copy to: Bank of America CDC Special Holding Company, Inc. Community Development Banking MAI -225-02-02 225 Franklin Street Boston, MA 02110 Bank of America, N.A. MAI -225-02-02 225 Franklin Street Boston, MA 02110 Attention: Asset Management WCH Affordable XVIII, LLC Attn: Graham Espley-Jones 151 Kalmus Drive, 05 Costa Mesa, CA 92626 Fax: (714) 597-8320 If to City: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager 55C-170 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. 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(s) 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. 55C-171 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 Nonliabilitv 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 under the terms of this Agreement. 21.15 Plans and Data. Should Developer not proceed with the work and construction of the Property, and upon termination of this Agreement for any reason, Developer shall deliver to City any and all plans and data concerning the Property/Project, 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 55C-172 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. 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 constitute a default or an Event of Default under this Agreement or the Loan Documents or accelerate the maturity of the HOME 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. 21.19 Subsequent Approvals. Except where otherwise indicated, all subsequent approvals identified in this Agreement, other than approvals by the City Council of the City of Santa Ana, shall not be unreasonably withheld, delayed or conditioned. 55C-173 IN WITNESS WIIEREOF, 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 RECOMMENDED FOR APPROVAL: Robert C. Cortez Acting Executive Director Community Development Agency (Signatures continue on followingpage) CITY OF SANTA ANA Cynthia J. Kurtz Interim City Manager 55C-174 DEVELOPER: Santa Ana Arts Collective, L.P., a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its general partner 0 Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner 0 Graham P. Espley-Jones, President EXHIBITS A. Legal Description B. Affordability Restrictions on Transfer of Property C. HOME Deed of Trust D. HOME Promissory Note E. Project Budget F. Scope of Work / Schedule of Performance G. Form of Residual Receipts Report 55C-175 Exhibit A: Legal Description 55C-176 EXHIBIT A PARCEL A: THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A PORTION OF THE LAND ALLOCATED TO JACOB ROSS IN DECREE OF PARTITION OF THAT RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK "B" OF JUDGEMENTS OF 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 12, BEING ALSO THE INTERSECTION OF THE CENTER LINES OF SEVENTEENTH STREET AND MAIN STREET AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 11 PAGE 18 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, CALIFORNIA; THENCE ALONG THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, NORTH 89° 56' 40" WEST 289.89 FEET; THENCE SOUTH 00 1625" WEST 230.00 FEET; THENCE PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, SOUTH 89- 56'40" 9°56'40" EAST 289.78 FEET TO THE EASTERLY LINE OF SAID NORTHEAST QUARTER; THENCE ALONG SAID EASTERLY LINE NORTH 00 1640" EAST 230.00 FEET TO THE POINT OF BEGINNING. EXCEPT THE NORTHERLY 40.00 FEET THEREOF. ALSO EXCEPT THE EASTERLY 35.00 FEET THEREOF. PARCEL B: NON-EXCLUSIVE EASEMENTS FOR VEHICLE INGRESS, EGRESS, PARKING AND INCIDENTAL PURPOSES, AS MORE PARTICULARLY SET FORTH IN THAT CERTAIN "DECLARATION OF EASEMENT FOR VEHICLE INGRESS, EGRESS AND PARKING" RECORDED OCTOBER 04, 2005 AS INSTRUMENT NO. 2005000786645 OF OFFICIAL RECORDS. APN: 005-153-19 (Affects a portion of said land) 005-153-20 (Affects a portion of said land) 55C-177 Exhibit Be. Affordability Restrictions on Transfer of Property 55C-178 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Clerk of the Council AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (Address: 1666 N. Main Street, Santa Ana, CA) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into by and between Santa Ana Arts Collective, LP, a California limited partnership ("Owner") and the City of Santa Ana, a charter city and municipal corporation (the "City"). RECITALS: A. The City has received an allocation of funds from the United States Department of Housing and Urban Development ("HUD") under the HOME Investment Partnerships Program ("HOME Program") (42 U.S.C. § 12701, et seq.) to be used in accordance with applicable statutory requirements and regulations ("HOME Regulations")(24 CFR 92); B. 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; C. The City is authorized by the HOME Regulations to expend funds to increase the supply of very low and low-income housing available at affordable housing costs. 55C-179 D. The City issued a Request for Proposals on June 1, 2015, seeking affordable housing projects. After reviewing all applications, the Owner's project was selected and approved for funding by the Santa Ana City Council on November 3, 2015. E. Owner is entering into this Agreement to acquire and, subject to entitlement approvals, develop an adaptive reuse project consisting of a fifty-eight (58) unit multi -family residential housing development, with live/work units and a possible commercial art studio, as well as a community room (the "Project") located at 1666 N. Main Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the "Property"). The HOME funds referenced herein shall assist in the acquisition, rehabilitation, construction, and soft costs of said Project. F. In furtherance of the HOME Program, Owner has applied to the City 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. G. The City, on certain terms and conditions, desires to make such loan ("HOME Loan") to Owner in order to make possible the rehabilitation and construction of the Project, thereby expanding the supply of decent, safe, sanitary and affordable housing. H. 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. I. Owner and the City are concurrently entering into that certain HOME Loan Agreement. The Loan Agreement, HOME Deed of Trust, and HOME Promissory Note, dated concurrently herewith (collectively the "Loan Agreements") are entered into for the purpose of providing for affordable extremely low and very low income residential rental units in the City of Santa Ana pursuant to the HOME Program regulations and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: Definitions "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing the AHSC Loan encumbering the Property. 55C-180 "AHSC Loan Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and the rents governed by California Health and Safety Code Section 50052.5. "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 U.S. Department of Housing and Urban Development (HUD), or by the California Tax Credit Allocation Committee, as applicable. "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 30. "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. "Close of Escrow" shall mean the date upon which the HOME Loan Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase and sale of the Property pursuant to the Purchase Contract. "Construction" means the demolition and construction activities required to construct, until Certificate of Completion, the Project. "County" means the County of Orange, California. "Event of Default" has the meaning set forth in Section 20.1. "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 HUD. "General Partner(s)" means the Santa Ana Arts Collective, LLC, a California limited liability company and WCH Affordable XVIII, 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. 55C-181 "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 seq., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "HOME Compliance Period" means twenty (20) years from the issuance of the Certificate of Completion or until payment of principal and all accrued interest on the HOME Loan, whichever comes last. "HOME Loan" means the loan with principal amount of TWO MILLION, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) to be made to Owner by City from HOME funds pursuant to Article 5 of this Agreement. "HOME Loan Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit C to the Loan Agreement, to be executed by Owner pursuant to Section 5.13.2 in order to secure the HOME Loan Promissory Note. "HOME Loan Promissory Note" means that certain promissory note in the original principal amount of TWO MILLION, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) in the form attached hereto as Exhibit D, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the HOME Loan. "HOME Program" has the meaning set forth in Recital "A" above "HOME Regulations" has the meaning set forth in Recital "A" above. "HOME Units" means the eleven (11) affordable units assisted with HOME funds. "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, 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). 55C-182 "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). "Limited Partner" means the Limited Partners of Owner, and their successors and assigns. "Loan Documents" means, collectively, this Agreement, the HOME Loan Note, the 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". "Owner" means Santa Ana Arts Collective, L.P., a California limited partnership. "Owner's Representative" shall mean an officer of the General Partner of Owner or his/her designee. "Partnership Agreement" means the Second Amended and Restated Agreement of Limited Partnership of Santa Ana Arts Collective, L.P., dated in July 2017. "Permitted Encumbrances for the Affordable Housing Restrictions" means, collectively, the Senior Loan Deed of Trust and AHSC Loan Documents and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Permitted Encumbrances for the HOME Loan Deed of Trust" means, collectively, the Senior Loan Deed of Trust and AHSC Loan Documents and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. 55C-183 "Project Budget" means the line -item budget for the Project attached as Exhibit E to the Loan Agreement, 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 1666 N. Main 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 Owner 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 as Exhibit F to the Loan Agreement. "Section 504" means section 504 of the federal Rehabilitation Act of 1973, codified at 29 U.S.C. § 701 et seq., and its implementing regulations located at 24 CFR 8. "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 any Senior Lender(s) in a position superior to the HOME Loan. "Senior Loan Deed of Trust" means any deed(s) of trust securing any 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 HUD. 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 Extremely Low and Very Low Income households, as provided in the Loan Agreement and these Restrictions 55C-184 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions. a. Owner agrees and covenants, which covenants shall run with the land and bind Owner, its successors, its assign and every successor in interest to the Property that Owner 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 eleven (11) HOME assisted units shall be enforced until the date that is twenty (20) years after the date on which the City reports the Project as complete to HUD. Upon expiration of the twenty (20) year HOME compliance period, the City will enforce affordability of the eleven (11) units with the same income and rent restrictions as the other forty-six (46) units operated on the Property, pursuant to the California Health and Safety Code. C. The Project shall consist of approximately fifty-eight (58) units of which there will be twenty-six (26) one -bedroom units, fifteen (15) two-bedroom units and seventeen (17) three-bedroom units. There will be twenty (20) units for households with incomes at or below 30% AMI, six (6) units for households with incomes at or below 35% AMI, six (6) units for households with incomes at or below 40% AMI, twenty-five (25) units for households with incomes at or below 60% AMI; and the remaining unit will be reserved for the on-site manager. d. The proposed unit mix, initial rents, and levels of affordability are as follows: The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. HOME Assisted Units 30% AMI 35% AMI 40% AMI 60% AMI Unit Size No. Rent Units No. Rent Units No. Units Rent No. Rent Total Units 1 Bedroom 14 $587 6 $685 6 $783 26 2 Bedroom 2 $704 --- --- ------ 1 Bed 1 12 $1,408 14 3 Bedroom 4 $813 --- --- --- 13 $1,627 17 Total 20 6 6 1 25 57 The remaining unit will be a 2 -bedroom unit reserved for the onsite manager. HOME Assisted Units 55C-185 Unit Type Level of # of HOME HOME Share of Total # of Units Description/No No. of BRs Affordability Assisted Units Unit Type tes 26 1 Bed 1 30% AMI 5 19.23% 14 2 Bed 2 2 14.29% 17 3 Bed 3 4 23.53% 55C-185 (1) In no event shall the rent charged to the HOME assisted units be more than that amount of the low HOME rent as published by HUD, as amended from time to time. (2) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the HOME floating units. (3) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of all assisted units, including the HOME -assisted units, to verify compliance with affordability requirements. For the HOME assisted -units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. The affordable rents charged at the Project must comply with the standards set forth by California Tax Credit Allocation Committee (TCAC). Notwithstanding anything to the contrary contained in this Agreement, the Affordability Restrictions on Transfer of Property, and other than HOME assisted units, restricted (as to both income and rent levels) at 30% of AMI, in the event of a foreclosure, or delivery of deed in lieu of foreclosure, of any Senior Loan, then the (1) the maximum qualifying tenant household income shall be increased to 60% of Area Median Income adjusted for family size appropriate to the unit, and (2) the maximum annual affordable rent shall be increased to 30% of 60% of Area Median Income, as adjusted for family size appropriate to the unit. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The City of Santa Ana will provide the utility allowances based on the HUD Utility Schedule Model. e. 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 income tables as published by HUD. 3.2 Rent Increases: A. On an annual basis, the City shall provide the Owner with the maximum allowable schedule of incomes and rents (less utility allowance appropriate for the Restricted Units) for the Property. B. Owner, 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 HUD. The Housing Manager shall notify Owner in writing of the adjusted allowable maximum incomes and rents. 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 and Very Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; 55C-186 (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 (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, 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 (24 CFR 92.351). B. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 982 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based rental 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. 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 55C-187 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 [24CFR 92.504 (c)(6)] 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 Housing 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 Housing 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 Housing 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 shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. 55C-188 (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 Housing Manager. The budget and cash flow shall be in a form that is acceptable to the Housing 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, 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 (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 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. Owner 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 Agreements and these Restrictions [24 CFR 92.504 (c)(10)]. K. Owner 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. Owner shall file with the City an Annual Report (herein referred to as the "Annual Report") within one hundred fifty (150) days following the end of each calendar year, commencing the Calendar Year following the issuance of the Certificate of Completion. The Annual Report shall contain a certification by Owner as to such information as the City Project Manager may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and 55C-189 Project Cash Flow report required by Section 4.G. (c) of this Agreement which shall include an audited 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 audited financial statement shall be prepared in accordance with generally accepted accounting practices. (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 Owner 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, for the required period of affordability. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the HOME Deed of Trust, with a loss payable endorsement naming the City as a loss payee together with other approved lenders (as their interests may appear), with a "Replacement Cost Endorsement" in amount sufficient to prevent Owner 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 Agreements. (8) Termite reports pertaining to the Property every fifth (5h) year. (9) Such other information as may be reasonably required by the City Manager or his/her designee. b. Records and Audits. 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 that the project meets the property standard specified in 24 CFR 92.251; (2) records, for each HOME Assisted Unit, which demonstrates that the 55C-190 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 Owner'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 date on which Owner obtained ownership of the Property; (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 debarment 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 must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). 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, the Office of 55C-191 the Inspector 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 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. 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, or HUD, on reasonable prior notice, for the purpose of examination or audit. f. 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. Owner shall reasonably cooperate with City in performing such audit. g. 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 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 HOME Note and the HOME 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 [24 CFR 92.504 (c) (13)]. 55C-192 IN WITNESS WHEREOF, the parties hereto have executed these Affordability Restrictions on Transfer of Property as of the date and year first stated above. ATTEST: CITY OF SANTA ANA Maria D. Huizar Cynthia J. Kurtz Clerk of the Council Interim City Manager APPROVED AS TO FORM Sonia R—Carvalho 0 City FOR APPROVAL: Robert C. Cortez Acting Executive Director Community Development Agency 55C-193 OWNER: Santa Ana Arts Collective, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, A California limited liability company, its administrative general partner 0 Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company its managing general partner I� Graham P. Espley-Jones, President 55C-194 Exhibit Co. HOME Deed of Trust 55C-195 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 (M-30) Santa Ana, California 92702 Attn: Clerk of the Council HOME DEED OF TRUST AND ASSIGNMENT OF RENTS THIS HOME DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust") made this 50' day of July, 2017, by and between Santa Ana Arts Collective, LP, a California limited partnership (the "Trustor"), AmeriNat, a Minnesota corporation (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 1666 N. Main 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 HOME 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 HOME Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith (the "Agreement"), which Agreement is on file with the Beneficiary as a public record; 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 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 chattels and personal property as are ever used or furnished in operating a building, or the activities 55C-196 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, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) (the "HOME 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 HOME Promissory Note and the Agreement, to benefit the Property. A copy of the Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference. Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or HOME 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 HOME 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 and AHSC Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place with respect to the Senior Loan and subordinate with respect to the AHSC Loan. 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 Trustor'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 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 of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor 55C-197 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 fiunish 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. 55C-198 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 HOME 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 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 Assims 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 HOME Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 1640 Sepulveda Blvd, Suite 425, Los Angeles, California, 90025 with a copy to Bank of America CDC Special Holding Company, Inc. Community Development Banking, MAI -225-02-02, 225 Franklin Street, Boston, MA 02110 and WCH Affordable XVIII, LLC Attn: Graham Espley-Jones, 151 Kalmus Drive, #J5, Costa Mesa, CA 92626, (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 Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to Trustee at 8121 E. Florence Avenue, Downey, California 90240. 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 HOME Loan Note conflicts with applicable law, such conflict will not affect other provisions of this 4 55C-199 Deed of Trust or the HOME Promissory Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the HOME Loan Note are declared to be severable. 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 Trustees breach of any covenant or agreement of Trustor in this Deed of Trust or the HOME 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 (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner") of its rights upon a default by a general partner tinder the Trusters Amended and Restated 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 purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, (v) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 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 HOME 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 55C-200 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 sem., 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. In addition, if an Event of Default occurs hereunder or under the Note, prior to taking any remedy under this Deed of Trust or any other document evidencing or securing this Note, Beneficiary shall fust give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the Beneficiary that Limited Partner must remove and replace the general partner or general partners of Trustor, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default,.. 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 HOME 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 Trustor'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 6 55C-201 and the HOME 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, HOME 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. (Signatures on Following Page) 55C-202 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner Graham P. Espley-Jones, President 55C-203 Exhibit Do. HOME p romissory Note 55C-204 HOME FUNDS PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1666 N. Main Street) $2.219.760.00 July 5, 2017 Santa Ana, California 1. Principal Amount of Loan FOR VALUE RECEIVED, Santa Ana Arts Collective, LP, a California 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, TWO HUNDRED AND NINETEEN THOUSAND, SEVEN HUNDRED AND SIXTY DOLLARS ($2,219,760.00) or so much thereof as shall be disbursed hereunder, with three percent simple interest ( 3%) commencing upon filing of Notice of Completion, pursuant to the HOME Loan Agreement (said "Agreement") between Borrower and the City dated concurrently herewith, which is incorporated herein by this reference. This loan is made pursuant to the HOME Investment Partnerships Program with money funded through the Program as "HOME 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, HOME 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 HOME 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 Agreement. This Note evidences the obligation of Borrower to the City for the repayment of the HOME Loan of HOME Funds attributable to the 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, Art: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. LEGAL_US_W N 90423673.1 55C-205 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 HOME Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "AHSC Loan" means a permanent loan of Affordable Housing and Sustainable Communities program funds from HCD administered by the California Strategic Growth Council in the amount of $4,944,130 "AHSC Deed of Trust" means the any deed(s) of trust securing athe AHSC Loan encumbering the Property. "AHSC Documents" means, collectively, the loan agreement governing the AHSC, the AHSC Note, the AHSC Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the AHSC Loan. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the HOME Investment Partnerships Program, and the HOME Funds. "Area Median Income" means the median income figures for Orange County as published by the U.S. Department of Housing and Urban Development (HUD). Also may be referred to as "AMI" herein. "Borrower" means Santa Ana Arts Collective, LP, a California limited partnership. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "City's Percentage" with reference to the Residual Receipts, shall mean thirty point thirteen percent (30.13%) of the total Residual Receipts from the Property, which shall be applicable to the HOME Loan, CDBG Loan, and Inclusionary Loan, 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. LEGAL -US -W # 90423673.1 55C-206 (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. "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 HUD. "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. 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. Gross Revenues shall not include capital contribution and loan proceeds received by borrower from any source. "HOME Assisted Units" shall mean those rental units purchased and rehabilitated on the Property which are subject to the term of affordability. "HOME Deed of Trust" shall mean the HOME Deed of Trust in favor of the City, securing the HOME Loan, substantially in the form attached to the Agreement as Exhibit C, which is incorporated herein by this reference. "HOME Funds" shall mean the money provided under the HOME Program for the rehabilitation of the rental units hereunder. "HOME Loan" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the HOME Deed of Trust. "HOME Investment Partnerships Program" (HOME) has the meaning set forth in the Recitals above. "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. "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); LEGAL_US_W 9 90423673.1 55C-207 (ii) general partner fee and tax credit investor management fees pursuant to the Borrower's amended and restated partnership agreement ("Partnership Agreement"); (iii) the cost of any supportive services provided to tenants of the Property, including fees and reimbursements payable to the provider or coordinator of such supportive services; (iv) debt service payments (excluding debt service due from residual receipts or surplus cash of the Property) on senior loan obligations associated with the Property, and approved by Lender; (v) tax credit adjustment payments payable to Maker's tax credit investor pursuant to Borrower's Partnership Agreement; (vi) payments made on loans advanced by any partner or member of Borrower for the purpose of paying operating expenses of the Property; (vii) a property management fee equal to 8% of gross rents; (viii) Owner Administration Fee of 5% of gross rents; (ix) deposits into required reserves; (x) any deferred developer fee; (xi) 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 the Santa Ana, California area. LEGAL_US_W # 90423673.1 4 55C-208 (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"). "Provert ' shall mean that property located at 1666 N. Main 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. Notwithstanding the projected sale of the senior permanent loan on the Project to California Community Reinvestment Corporation (`CCRC") and any subsequent transfer of the loan in whole or in part by CCRC shall not be deemed a Refinancing for purposes hereof. "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 loans made to Borrower, for payment of acquisition and/or rehabilitation/construction 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 loan from the State of California Department of Housing and Community Development to Borrower, but in no event shall the Term end later than July 1, 2075. "Term of Affordability" the term of affordability shall be fifty-five (55) years. LEGAL_US_W # 90423673.1 55C-209 "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. 3. Loan Repavment. 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. 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 payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repavment/ 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 150'h 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 a HOME Loan payment then due. c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of interest and then to 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 HOME Loan has been fully repaid. d. Borrower shall retain fifty percent of the Residual Receipts. The other fifty percent shall be divided according to the table below: SOURCE PERCENTAGE CDBG Loan 2.01% HOME Loan 8.92% Inclusionary Housing Loan 19.20% State of California Housing and Community 19.87% LEGAL_US_W # 90423673.1 55C-210 Development Affordable Housing Loan TOTAL 1 50.00% 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 interest and then to 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 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 and AHSC 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 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 Borrower 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 interest and then 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 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 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 full the balance remaining on the Senior Loan and AHSC 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 total Sale Proceeds, 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 Borrower 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 interest and 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. 8. Accelerated Loan Payment. LEGAL_US_W # 90423673.1 55C-211 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 HOME Loan, the City approves such sale in the exercise of its reasonable discretion and the purchaser assumes the balance of the HOME 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 HOME Loan, the City approves such Refinancing in the exercise of its reasonable discretion 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 and AHSC 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 expiration of the Term 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 HOME 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. 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 LEGAL_US_W H 90423673.1 55C-212 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 or the AHSC 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 Meta Housing Corporation or a limited liability wholly owned by Meta Housing Corporation is a general partner, or to a corporation or limited liability company LEGAL_US_W # 90423673.1 55C-213 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 and AHSC 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 HOME Loan 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 (and it shall not be deemed a Sale) (i) a transfer of a 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 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 Borrower. 14. Event of Default. Subject to the provisions of Section23 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; or (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 Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion). 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 and subject to the provisions of Section 21 hereof, 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 LEGAL -US -W # 90423673.1 10 55C-214 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 HOME 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. 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 HOME 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 HOME Loan or for any other amounts under any of the documentation evidencing, securing or describing the HOME Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the HOME 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. LEGAL -US -W # 90423673.1 11 55C-215 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 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. 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. g. In addition, if an Event of Default occurs hereunder, prior to taking any remedy under this Note or any other document evidencing or securing this Note, City shall first give notice of the occurrence of such Event of Default to the Limited Partner and the Limited Partner shall have not less than 30 days to cure such Event of Default, provided if in order to cure such Event of Default the Limited Partner gives notice to the City that Limited Partner must remove and LEGAL_US_W # 90423673.1 12 55C-216 replace the general partner or general partners of Borrower, Limited Partner shall have until 30 days following the effective date of such removal and replacement to cure such Event of Default,. 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 HOME Loan in balance and rebuild the Property in a manner that provides adequate security to City for repayment of the HOME 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 HOME Loan in a manner that provides adequate security for repayment of the remaining balance of the HOME Loan. 23. Force Mai cure. 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; 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. LEGAL_US_W # 90423673.1 13 55C-217 This City Promissory Note is hereby agreed to and executed on the date first set forth above. SANTA ANA ARTS COLLECTIVE, LP, a California limited partnership By: Santa Ana Arts Collective, LLC, a California limited liability company, its administrative general partner Kasey Burke, Vice President By: WCH Affordable XVIII, LLC, a California limited liability company, its managing general partner Un Graham P. Espley-Jones, President LEGAL_US_W # 90423673.1 14 55C-218 Exhibit Ee:Project Budget 55C-219 EXHIBIT E Santa Ana Arts Collective Project Budget ACQUISITION Lessn of laM CDoor Value 753,085.812 830]88 FUNDING SOURCES 9,.5,812 533,180' StMVbHCp 9%bacmdite Labl I PPNOo vebale Stab,HCO Resltlon[bl U21 $33650 $33.229 3421 Rental Conemwlol TONT "NO PP, C[0.0-pemf pefam0d AIISL GIN, $OORCES Component Cangwnml D.Velopmont AHD,RLwn T.C,6CIEeulE1 C11,MSaaYAne lwntelTrve! 0.1,afee Pon11C."M TOTAL COeb Cot C.M. "'moo. Da 41,37&028 Pham ACQUISITION Lessn of laM CDoor Value 753,085.812 830]88 53,135000 9,.5,812 533,180' 53,135,000 Lagar a Clwing Cosa $33220 U21 $33650 $33.229 3421 533.060 Venable Ca in Cmts $2031M 52580 $2VSQ. $2..28 $20&428 5ubleNl 1 "'moo. Si 41,37&028 30 55)0228 53,.5.012 526&OS $9 Sp 53,3]6.78 E1191 m amallb CaN $4:21&625 $533]5 E4,2]B4O%, 5317,817 ,53.893,848 553,3]5 $4P0.000 ONeY, aebilV EO $0 TOLOACOUI.G.n f1.s49.514 595,684 5],80.9,." SB Si E&%4.180 MIA12 $0 $0 S].615AT8 Pafman[M ftdoolbn $,.454588. 51&412 $t,q3 [00 g1A13.C. S1,W30W TWO Relowtlon NEW CONSTRUCTION K'Slo80 $18,412 51,473,000 30 SO f0 51.473..0 50 f9 51,413.000 OH�SBe Im m- SL288.. $1,280.0 51:4...3 51,28 IT Sita Wafk naN msa Sao.00a 5500 540.500 $x0.800 5500 IN S4o,500 Slwden M1 io msle 519.12&033 5700,10, E13.2PG181 '$4.9,$1311 $7.681.470 5500,030 $188,878 $13,292.28] GelILRIR Yr.meonb 9,31z,6W 518.619 $1,329.229 $1.312.809 $18.619 $1,320,229 COIfI2L10r OV[1M1PO 520&]7,.00 E3658W $282.430 $28&774 So AN $282.430 Comacmr Pmft U...774 $3,058 $202,30 $289714 SCONE $282430 Gmmdl Liability InwmPt,s '.5250,000 n..124 $253.124 VOSON) MI. 5253+24 Total NOW Constwd[on 570,594290 $183.]4. $18,788,000 $a.". Kiio,m0 5S.= $+04,233 To $14MON0 - SIB.7So ON Dain I 5928501 811153 SBM254 _85ISPG _ .. $41¢001 $940.254 51.911 $152820 _ 5152.020 $152620 TBbl Mchltadurel Owb SURVEY & ENGINEERING $1.019,510 S13,664 S1,W3,1]4 SO S9g103 SO 55431111 S0 So S1,W3174 E Inmtl513069 s10Jt,C9+ 51,01&202 54.889 51.031.081 TONI Sury &Englneetlng E1.M8,202 $12,669 51.031.x1 SO 51.0+&202 f0 SII.ew 50 b 510.1,00+ CONTINGENCY COSTS Mata CaSl Conlln en $1..4,184 512II1 $t.a.45$1.2 SdICnl Cumin en _ $251.]12. 53.282 E200..d $257;712. .$3,282 5289..4 Cefb 51,282..8 515.983 51.7]0,870 59 51383,.0 SO S1s.903 50 b 51,27x..9 CONSTRUCTION STRUCO COnSWdiOR Lmnl nittal .. $515.533 $8.528 $522.0 $4+3.533 38,628 $s22As9 On i.SNFea I 5182786MW7. $184,.1 $162,700 $2.1 $104.027 Credit Enhancemml&A .Fm .828,825 $.0,, $20828 5315 SNOW Tixn OW LonsWdbn Et42.W] EV38>5 g+42,.] SL]08 $143.0]5 P -Tin Wa aMoat., So 50 w In. POOL, CMSINNM $212312 $215.0 ! $212312 CIA. $215,9Oo TNeenoRmaNi Fea .559.250 EN 539350 $]W EB0.0. ONCG .G.n teaa lme4 P. CofO .$350.583 5355.0 &150583. 3,,437 S35i.0 TONT Con9WNOn Ex n 51.472.120 51,490.101 5o SIA]3,138 f8 51&835 f0 $0 $1,4Po,]81 PERMANENT FINANCING EXPENSES L8]n Ori I.IbnF 531b71 $400 $31.0]] g3L5>] 5400 $31,9)7 M TNeaRanNin $19.750. _R50 E20,.p X.,IO $250 E2OA. TONI Pamenenl Flnancln 551,321 ..I V,0P SO $51331 fe 5850 50 $9 $51,0]7 LEGAL FEES Con GJNOTLeNuLeOXbxmoas $TDON ol, SPU,.O gr9..0 510.3 US ON 5 nmrL al Fan SLb.]50 $1.250 $100.0 $.50,7 $+,2`A 5100.000 Tew Le al Fees CAPITALIZED RE SERVES 51]].150 52,350 6160.00 f0 5111.150 f0 52850 f0 SO 5180,000 O p E14B.d $f 99.093 $140,.4 5140.084 es 1& 5110,88, f0 $148.080 50 5110.00, f0 50 50 59 51,8.00, REPORT STUDIES AppRowl3 r 52.fifi8 334 g2. ]00 9.8x5 $3, $2.IW NaMH stwV I521.182 g2Be $21 A50 $21,102 g?e8 $21.450 Emimnmmlel Sludlbo 323.]. 53. 524030 RJ). Sl. 524.0. OfM1C Aft,oI I $82.500 5225. 5105000 TeNIRs OHs&SNtllea 5+5198 51,014 5133150 S0 HI,%0 SO 563102 50 SILO. 5153.1. TCACA /AlbcrMonito7Fina s14APo0 $140688 s149,S0Ol 51,9,588 Inbl Permit F[n 3252.1 $3,518 S30A 117 IA..' 33578 $285.117 AHBCEII iblalm ,Fan: f SO ma 51&3x0 U04 516544 $10.340 5204 $,..A. Recreallw 5229804 USx1 .32 SO $220804 Sz,Br1 52]2535 S1]adwsi rals $0 50 $0. 50 89 T2ff[F. 5 mC. 51]08 $203.2 $289,fi93 $5,]89 Wea+e Water I.a., W.I. $256M7 $.3245 53,+w $258,M] WaterFaclity WON sn3 E6B, 330 $.,I. $733 55..a. ONelm ,Fen N.AHSCEF ible 'Sf]31C0 52 .156 $113284 $1]3108 5215$ $175244 FYIn19M1 9 1 5345825 S,,o. $350,.0 S3i.W0 5350 ..0 IM..rM $4383. 5,150 $140.0 $106000 5140.000 Vn2f Ulili Fea $3301,0 SUPS, - $2411 7 $2304110 53021 5142.13] OM,r RmMCUbeablos &53.325 W75 5`.0.47 O rOba morcode S33zv.O+ Sao= S2.23s1a3 S0 5114&n+ f8 f.5os22 f0 50 522..1. suerorAL PER COSTS 1 573.180.]54 fw0.m2 53259x,786 34x.1136 51&0.,108 $7,401160 $3,112,817DEVEL so s111a.50o S13seB.leB Ow• d.PXFNO,,h PmM .51.603.3 526.0 S2,o...0 x+:575.0 s2s.o. gSCo.000 sz.C..O. T., OBVem rCoab s+,a]s,aoo s8,m0 $2.B0o.B0o b 51.315,000 s9 s AC,, 1.0.000 50 52000,0.: TOTAL OEVELOPME.. COST 95.161]60 425032 836549788 ..."S0 510,02]00 $7,094,760 A,1%,WI 5E.A00 51,310.500 S3s$BB]BB 55C-220 Exhibit Fee Scope of Work /Schedule of Performance 55C-221 F*IWIrI_I_.TM SCOPE OF WORK & SCHEDULE OF PERFORMANCE I. SCOPE OF DEVELOPMENT: The property address of the site subject to this agreement is 1666 North Main Street, at the signalized intersection of 17th Street and Main Street, in the Midtown Specific Plan Zoning District (SP -3). The development site consists of two parcels held as one, of 48,399 square feet total (or 1.11 acres). The development site is currently improved with a five -story office building, one level of subterranean parking, and approximately 0.5 acre of surface parking. The office building was built in 1968 and has 62,724 rentable square feet. In November 2014, the Santa Ana City Council approved an adaptive reuse ordinance, which provides alternative building and fire standards in order to convert non-residential buildings built before 1974 into dwelling units, guest rooms or joint living and work quarters. 1666 North Main Street qualifies for this ordinance because of the building's age, non-residential use, and location in the Midtown Specific Plan Zoning District. The development is a fifty-eight (58) unit affordable housing development that would adaptively reuse the five -story office building as forty-eight (48) residential flats, and newly construct ten (10) additional residential lofts, townhomes, and flats on the office building's former surface parking area. A mix of twenty-six (26) 1 -bedroom, fifteen (15) 2 -bedroom, and seventeen (17) 3 -bedroom units will be spread throughout the adaptively reused office building and ground -level new construction. Building heights range from two (2) stories in the former surface parking areas to five (5) stories in the adaptively reused building. An existing subterranean parking garage will be restriped for 113 parking spaces. Parking will be accessed via the existing drive aisle from North Sycamore Street to the west. The 1968 office building is constructed of reinforced concrete panels with tinted window panels, in the international style of architecture, which has its roots in the modernist design movement of the twentieth century. The new development would preserve the former office building's clean, contemporary lines and add new, modern lofts and townhomes to complement the character of the office building and more broadly Midtown. To complement and sustain the proposed artist concept, Meta Housing Corporation has included approximately 5,992 square feet of community space distributed throughout the development. That space is proposed to be allocated to the following uses: a community art gallery, art garden, maker spaces, music room, rehearsal room, community room with community kitchen, computer room, property management office, services office, common laundry facility, a courtyard, and tot lot. The approximate 1300 square foot community art gallery, art garden, and maker spaces will be located on North Main Street. 55C-222 II. SCHEDULE OF PERFORMANCE: A. GENERAL 1. Insurance. Developer shall furnish or cause to be furnished appropriate certificates of insurance and/or endorsements to City which meet all requirements of the Agreement. B. PROJECT FINANCING Submission of Evidence of Financine. Developer shall submit to City evidence of financing for the Project As a Condition Precedent to disbursement of any portion of the loan, but no later than ten days after close of escrow. Not later than thirty (30) days after allocation of tax credit financing by CTCAC. 2. Receipt of All Funding Commitments Necessary to Complete Not later than thirty (3 0) days Construction of the Improvements. Developer shall use its best before Construction Close. and good faith efforts to secure irrevocable funding commitments from TCAC, Senior Lender, and other available funding sources which when combined with the Loans shall equal no less than the total cost to construct the Improvements, as set forth in the approved Project Budget. Developer shall submit such commitments to City for review. 3. Approval of Developer's Evidence of Financing. City must Not later than twenty (20) approve Developer's evidence of financing as required by business days after receipt of a the Agreement. complete submittal from Developer C. CONSTRUCTION OF IMPROVEMENTS 1. Design Development Drawings. Developer shall prepare and Within seven (7) months submit Design Development Drawings to City for review and following the date of the approval. Loan Agreement. 2. Approval of Design Development Drawings. City Housing Within fourteen (14) days of staff shall review and approve, approve with conditions, or Developer' s complete disapprove the Design Development Drawings. submittal of the Design Development Drawings. 55C-223 3. Revision to Design Development Drawings. Developer shall Within fourteen (14) days of revise and resubmit Design Development Drawings to conditional approval or address conditions or disapproval to the satisfaction of City. disapproval, subject to extension based upon extent of revisions requested. 4. Management Plan. Developer shall submit its proposed Not later than twenty (20) Management Plan to City for review and approval. business days after receipt of a complete submittal from Developer 5. Anoroval of Management Plan. City shall review and approve, Within fourteen (14) days of approve with conditions, or disapprove the Management Plan. receipt of a complete submittal from Developer. 6. Revision to Management Plan. Developer shall revise Within fourteen (14) days of Management Plan if conditionally approved or disapproved by receipt of disapproved City. Management Plan from City. 7. Approval of Revised Management Plan. City shall review and Within fourteen (14) days of approve, approve with conditions, or disapprove revised receipt of a complete submittal Management Plan. of revised Management Plan from Developer, but not later than 120 days prior to project completion. 8. Progress Payments. During construction Developer shall Commencing thirty (30) days prepare monthly written progress reports and submit to City after start of the Construction Manager. work through completion. 9. Commencement of Construction of the Improvements. No later than July 28, 2017 Developer shall cause the Construction of the Improvements to be commenced by Contractor. 10. Completion of Construction of the Improvements. Developer On or before November 1, shall complete all work of the Construction of the 2018 (subject to extension by Improvements. City based upon substantial progress toward completion of construction by Developer). 11. Release of Construction Covenants. City to furnish Developer Within thirty (30) days of with a Release of Construction Covenants. receipt of Developer request and only after Developer' s satisfactory completion of the Construction of the Improvements. 55C-224 The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing between Developer and the City Manager or his/her designee ("City Manager"), and City Manager is authorized on behalf of City to agree to make such revisions as he deems reasonably necessary. The City Manager, in his/her sole discretion, may elect to bring to the City Council for consideration and action any modifications to this Schedule of Performance. It is understood that the Schedule of Perfolmance is subject to all of the telms and conditions set forth in the text of the Agreement. The summary of the items of perfolmance in the Schedule of Performance is not intended to supersede or modify the more complete description in the text of the Agreement; in the event of any inconsistency between the Schedule of Performance and the text of the Agreement, the text shall govern. In the event the City Manager deems it necessary to bring to City Council for consideration one or more modifications to this Schedule of Performance, the discretion to do so is expressly reserved to the City Manager. The time periods set fol lh herein for City approval of plans and drawings and other submittals that are submitted to City by Developer shall only apply and commence upon Developer' s complete submittal of all the required information. In no event shall an incomplete submittal by Developer trigger any City obligations of review and/or approval hereunder; provided, however, that City shall notify Developer of an incomplete submittal as soon as is practicable and in no event later than the applicable time set forth for City action on the particular item in question. If any of the foregoing performance measurements are not met then it will be deemed a default as defined in Section 20 and any remedies shall be cured according to said Section of the Agreement. 55C-225 Exhibit Go. Form of Residual Receipts Report 55C-226 EXHIBIT G FORM OF RESIDUAL RECEIPTS REPORT Community Development 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. 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 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 55C-227 (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 ofthe 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. 55C-228 ROH — 07/05/17 RESOLUTION NO. 2017 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER TO ENTER INTO AGREEMENTS WITH THE STATE OF CALIFORNIA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT (HCD) FOR AFFORDABLE HOUSING AND SUSTAINABLE COMMUNITIES (AHSC) PROGRAM GRANT FUNDING 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 Strategic Growth Council ("SGC") and the State of California Department of Housing and Community Development ("HCD") issued a Notice of Funding Availability dated January 29, 2016 ("NOFA") under the Affordable Housing and Sustainable Communities ("AHSC") Program. B. On June 7, 2016, The City Council of the City of Santa Ana adopted a resolution authorizing submittal of a funding application as a joint applicant with Meta Housing Corporation for AHSC Program funds in an amount not to exceed $12,028,626, of which $7,833,126 was requested as a loan with Meta Housing Corporation for Affordable Housing Development, $1,288,000 was requested for a grant to the City for a Sustainable Transportation Infrastructure Project for the Santa Ana Arts Collective Project, and $22,500 was requested for a grant to Meta Housing Corporation to support the Southern California Association of Governments' Go Human program. C. On November 21, 2016, the City and Meta Housing Corporation were awarded $12,028,626 in AHSC funds, which included $1,288,000 in grant funds to the City. The total award was reduced to $9,139,630 in accordance with regulatory restrictions upon Meta Housing Corporation's acceptance of competitive 9% low income housing tax credits. Additionally, Meta Housing Corporation did not accept $2,885,000 in housing -related grant funds because their programmatic requirements resulted in an increased funding gap rather than in a reduction. Exhibit L! Resolution No. 2017 -XXX 55C-229 Page 1 of 3 D. Meta Housing Corporation and the City of Santa Ana are Eligible Applicants/Sponsors under the AHSC Program and were awarded an AHSC Program loan in an amount not to exceed $4,944,130 ("AHSC Loan") and an AHSC Program grant in an amount not to exceed $1,310,500 ("AHSC Grant") under the above described NOFA for an aggregate amount not to exceed $6,254,630 under the above described NOFA. Section 2. The City Council of the City of Santa Ana hereby authorizes and directs the City to incur an obligation for the AHSC Loan and AHSC Grant. That in connection with the AHSC Loan and AHSC Grant, the City Manager, or his/her designee(s), is authorized and directed to enter into, execute, and deliver, subject to approval by the City Attorney's Office, the AHSC Loan Standard Agreement in an amount not to exceed $4,944,130, the AHCS Grant Standard Agreement in an amount not to exceed $1,310,500, and any and all other documents required or deemed necessary or appropriate to carry into effect the full intent and purpose of the above resolution, in order to evidence the AHSC Loan and AHSC Grant, the City's obligations related thereto, and HCD's security therefore; including, but not limited to, a subordination agreement, a disbursement agreement, a covenant and certain other documents required by HCD as security for, evidence of or pertaining to the AHSC Loan and AHSC Grant, and all amendments thereto (collectively, the "AHSC Documents"). Section 3. The City shall be subject to the terms and conditions as specified in the Standard Agreements. Funds are to be used for allowable capital asset project expenditures to be identified in Exhibit A of the Standard Agreements. The application in full is incorporated as part of the Standard Agreements. Any and all activities funded, information provided, and timelines represented in the application are enforceable through the Standard Agreement. The City hereby agrees to use the funds for eligible capital asset(s) in the manner presented in the application as approved by HCD and in accordance with the NOFA, Program Guidelines and application package. Section 4. 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. Resolution No. 2017 -XXX 55C-230 Page 2 of 3 ADOPTED this 5w day of July, 2017. APPROVED AS TO FORM: SONIA R.Sy4RVALHO, City Attorney AYES: Councilmembers NOES �� NOT PRESENT: Councilmembers Councilmembers Councilmembers Miguel A. Pulido Mayor 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 Date: Clerk of the Council City of Santa Ana 55C-231 Resolution No. 2017 -XXX Page 3 of 3 55C-232 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Paul Hastings LLP 515 South Flower Street Twenty -Fifth Floor Los Angeles, CA 90071 Attn: Kenneth Krug, Esq. SUBORDINATION AGREEMENT (City of Santa Ana) THIS SUBORDINATION AGREEMENT (this "Agreement") is entered into as of July 5, 2017 by and among (i) BANK OF AMERICA, N.A. (the "Senior Lender"), (ii) the CITY OF SANTA ANA, a charter city and municipal corporation ("Subordinate Lender"), and (iii) SANTA ANA ARTS COLLECTIVE, a California limited partnership (the `Borrower"). Recitals A. The Senior Lender has made or is making a loan (the "First Mortgage Loan") to the Borrower in the original principal amount of $[ j. The First Mortgage Loan is or will be secured by a first mortgage lien (the "First Mortgage") on certain real property more fully described in Exhibit A attached hereto and the multifamily housing project to be constructed thereon (collectively, the "Property"). The Borrower's obligation to repay the First Mortgage Loan is evidenced by a Note dated as of July jam, 2017 (the "First Mortgage Note"). B. Subordinate Lender is making (i) a subordinate loan of Inclusionary Housing funds to Borrower in the amount of $4,775,000 (the "Inclusionary Loan"), (ii) a subordinate loan of Community Development Block Grant funds to Borrower in the amount of $500,000 (the "CDBG Loan") and (iii) a subordinate loan of HOME Investment Partnerships Program funds to Borrower in the amount of $2,219,760 (the "HOME Loan", and together with the Inclusionary Loan and the CDBG Loan, the "Subordinate Loan"). Subordinate Lender is securing the Subordinate Loan by, among other things, recording the Subordinate Mortgage (as hereinafter defined) in the Official Records of Orange County, California (the "Official Records") substantially concurrently herewith. C. Subordinate Lender has agreed to specifically and unconditionally subordinate the Subordinate Loan and the Subordinate Loan Documents (specifically excluding the Regulatory Agreement, as defined below) to the liens and charges of the First Mortgage Loan and First Mortgage Loan Documents and shall at all times and in all respects be wholly subordinate and inferior in claim and right to the First Mortgage Loan and First Mortgage Loan Documents. (Page -1) LEGAL -US -W# 90345775.4 Exhibit 5 55C-233 E. If Borrower satisfies the "Conversion Conditions" contained in that certain Loan Purchase Agreement of even date herewith by and among Borrower, Senior Lender and California Community Reinvestment Corporation, a California nonprofit public benefit corporation ("CCRC"), CCRC will purchase a portion of the Loan, and the First Mortgage Loan will convert to a term loan ("Conversion"). NOW, THEREFORE, in order to induce the Senior Lender to permit the Subordinate Lender to make the Subordinate Loan to the Borrower and to place a subordinate mortgage lien against the Property, and in consideration thereof, the Senior Lender, the Subordinate Lender and the Borrower agree as follows: 1. Defmitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual controlled by, under common control with, or which controls such Person (the term "control" for these purposes shall mean the ability, whether by the ownership of shares or other equity interests, by contract or otherwise, to elect a majority of the directors of a corporation, to make management decisions on behalf of, or independently to select the managing partner of, a partnership, or otherwise to have the power independently to remove and then select a majority of those individuals exercising managerial authority over an entity, and control shall be conclusively presumed in the case of the ownership of 50% or more of the equity interests). "Borrower" means the Person named as such in the first paragraph of this Agreement and any other Person (other than the Senior Lender) who acquires Borrower's interest in the Property after the date of this Agreement. "Business Day" means any day other than Saturday, Sunday or a day on which the Senior Lender or Subordinate Lender is not open for business. "Default Notice" means: (a) a copy of the written notice from the Senior Lender to the Borrower stating that a First Mortgage Loan Default has occurred under the First Mortgage Loan; or (b) a copy of the written notice from the Subordinate Lender to the Borrower stating that a Subordinate Loan Default has occurred under the Subordinate Loan or the Regulatory Agreement. Each Default Notice shall specify the default upon which such Default Notice is based. LEGAL_US W # 90345775.4 (Page -2) 55C-234 "First Mortgage Loan" means the senior loan described in Recital A hereof, and following Conversion, the Permanent Loan. "First Mortgage Loan Default" means the occurrence of an "Event of Default" as that term is defined in the First Mortgage Loan Documents. "First Mortgage Loan Documents" means (i) the First Mortgage Note and all other documents evidencing, securing or otherwise executed and delivered in connection with the First Mortgage Loan; and (ii) following Conversion, the Permanent Loan Documents. "Permanent Loan" means the First Mortgage Loan after Conversion. "Permanent Loan Documents" means the Permanent Note, the First Mortgage and all other documents evidencing, securing, purchased for, or otherwise executed and delivered in connection with, the Permanent Loan. "Permanent Note" means the First Mortgage Note, as it may be modified in connection with Conversion. "Person" means an individual, estate, trust, partnership, corporation, limited liability company, limited liability partnership, governmental department or agency or any other entity which has the legal capacity to own property. "Regulatory Agreement" means, collectively, that certain Affordability Restrictions on Transfer of Property executed by and between the Subordinate Lender and Borrower in connection with the CDBG Loan, that certain Affordability Restrictions on Transfer of Property executed by and between the Subordinate Lender and Borrower in connection with the HOME Loan, and that certain that certain Affordability Restrictions on Transfer of Property executed by and between the Subordinate Lender and Borrower in connection with the Inclusionary Loan, each encumbering the Property and to be recorded in the Official Records substantially concurrently herewith. "Senior Lender" means the Person named as such in the first paragraph on page I of this Agreement. When any other Person becomes the legal holder of the First Mortgage Note or of the Permanent Loan Documents, such other Person shall automatically become the Senior Lender. Upon purchase of the First Mortgage at Conversion and Borrower's satisfaction of the Conversion Conditions, CCRC shall become Senior Lender hereunder. "Subordinate Lender" means the Subordinate Lender and any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Agreement" means, collectively, that certain First Amended and Restated Loan Agreement dated as of July 5, 2017, by and between Subordinate Lender and LEGAL -US _W#90345775.4 (Page -3) 55C-235 Borrower in connection with the Inclusionary Loan, that certain HOME Investment Partnerships Program Loan Agreement dated as of July 5, 2017, by and between the Subordinate Lender and Borrower in connection with the HOME Loan, and that certain First Amended and Restated Loan Agreement dated as of July 5, 2017, by and between the Subordinate Lender and Borrower in connection with the CDBG Loan. "Subordinate Loan Default" means a default by the Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents or Regulatory Agreement to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents or Regulatory Agreement for curing the default. "Subordinate Loan Documents" means the Subordinate Loan Agreement, Subordinate Note, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan, but excluding the Regulatory Agreement. "Subordinate Mortgage" means, collectively, that certain Inclusionary Deed of Trust and Assignment of Rents executed by Borrower for the benefit of Subordinate Lender encumbering the Property and to be recorded in the Official Records substantially concurrently herewith to secure the Inclusionary Loan, that certain CDBG Deed of Trust and Assignment of Rents executed by Borrower for the benefit of Subordinate Lender encumbering the Property and to be recorded in the Official Records substantially concurrently herewith to secure the CDBG Loan, and that certain Deed of Trust executed by Borrower for the benefit of Subordinate Lender encumbering the Property and to be recorded in the Official Records substantially concurrently herewith to secure the HOME Loan. "Subordinate Note" means, collectively, that certain Inclusionary Housing Funds Promissory Note Secured by Subordinated First Amended and Restated Deed of Trust dated as of July 5, 2017, made by Borrower in favor of the Subordinate Lender to evidence the Inclusionary Loan, that certain CDBG Funds Promissory Note Secured by Subordinated Deed of Trust dated as of May 1, 2016, made by Borrower in favor of the Subordinate Lender to evidence the CDBG Loan, and that certain Promissory Note Secured by Subordinated Deed of Trust dated as of July 5, 2017, made by Borrower in favor of the Subordinate Lender to evidence the HOME Loan. 2. Permission to Place Mortgage Lien Against Property. The Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Property contained in the First Mortgage Loan Documents or the Permanent Loan Documents, and subject to the provisions of this Agreement, to permit the Subordinate Lender to record or retain the Regulatory Agreement, the Subordinate Mortgage and other recordable Subordinate Loan LEGAL_US_W # 90345775.4 (Page -4) 55C-236 Documents against the Property (which, with the exception of the Regulatory Agreement, shall be subordinate in all respects to the lien of the First Mortgage) to secure the Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of the Borrower to the Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is true and correct on the date of this Agreement. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 3 is not true and correct on the date of this Agreement, the provisions of the First Mortgage Loan Documents and/or the Permanent Loan Documents applicable to unpermitted liens on the Property shall apply. 3. Borrower's and Subordinate Lender's Representations and Warranties. The Borrower and Subordinate Lender (except with respect to Section 3(e), which is only made by Borrower) each makes the following representations and warranties to the Senior Lender: (a) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (b) Term. The term of the Subordinate Note does not end before the term of the First Mortgage Note or the Permanent Note. (c) Subordinate Loan Documents. The executed Subordinate Loan Documents are substantially in the same forms as those reviewed by Senior Lender prior to the date of this Agreement. Upon execution and delivery of the Subordinate Loan Documents, Borrower shall deliver to Senior Lender an executed copy of each of the Subordinate Loan Documents, certified to be true, correct and complete. (d) First Mortgage Loan Documents. The executed First Mortgage Loan Documents will be substantially in the same forms as those reviewed by Subordinate Lender prior to the date of this Agreement. Upon execution and delivery of the First Mortgage Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the First Mortgage Loan Documents, certified to be true, correct and complete. 4. Terms of Subordination. (a) Agreement to Subordinate. The Senior Lender and the Subordinate Lender agree that: (i) the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement to the prior payment in full of the indebtedness evidenced by the First Mortgage Loan Documents, and (ii) the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, LEGAL -US W # 90345775.4 (Page -5) 55C-237 covenants and conditions of the First Mortgage and the other First Mortgage Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the First Mortgage and the other First Mortgage Loan Documents (including but not limited to, all sums advanced for the purposes of (1) protecting or further securing the lien of the First Mortgage, curing defaults by the Borrower under the First Mortgage Loan Documents or for any other purpose expressly permitted by the First Mortgage, or (2) constructing, renovating, repairing, funrishing, fixturing or equipping the Property). (b) Subordination of Subrogation Rights. The Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of the Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents, it acquires by right of subrogation or otherwise a lien on the Property which (but for this subsection) would be senior to the lien of the First Mortgage, then, in that event, such lien shall be subject and subordinate to the lien of the First Mortgage. (c) Payments Before First Mortgage Loan Default. Until the Subordinate Lender receives a Default Notice of a First Mortgage Loan Default from the Senior Lender, the Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After First Mortgage Loan Default. The Borrower agrees that, after it receives notice (or otherwise acquires knowledge) of a First Mortgage Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. The Subordinate Lender agrees that, after it receives a Default Notice from the Senior Lender with written instructions directing the Subordinate Lender not to accept payments from the Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorney's fees, or any other sums secured by the Subordinate Mortgage) without the Senior Lender's prior written consent. If the Subordinate Lender receives written notice from the Senior Lender that the First Mortgage Loan Default which gave rise to the Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by the Senior Lender, the restrictions on payment to the Subordinate Lender in this Section 4 shall terminate, and the Senior Lender shall have no right to any subsequent payments made to the Subordinate Lender by the Borrower prior to the Subordinate Lender's receipt of a new Default Notice from the Senior Lender in accordance with the provisions of this Section 4(d). (e) Remitting Subordinate Loan Payments to Senior Lender. If, after the Subordinate Lender receives a Default Notice from the Senior Lender in accordance with subsection (d) above, the Subordinate Lender receives any payments under the Subordinate LEGAL -US W # 90345775.4 (Page -6) 55C-238 Loan Documents, the Subordinate Lender agrees that such payment or other distribution will be received and held in trust for the Senior Lender and unless the Senior Lender otherwise notifies the Subordinate Lender in writing, will be promptly remitted, in kind to the Senior Lender, properly endorsed to the Senior Lender, to be applied to the principal of, interest on and other amounts due under the First Mortgage Loan Documents in accordance with the provisions of the First Mortgage Loan Documents. By executing this Agreement, the Borrower specifically authorizes the Subordinate Lender to endorse and remit any such payments to the Senior Lender, and specifically waives any and all rights to have such payments returned to the Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by the Subordinate Lender, and remitted to the Senior Lender under this Section 4, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to the Senior Lender waive any Subordinate Loan Default which may arise from the inability of the Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. (f) Intentionally Omitted. (g) Affordability Restrictions Following Foreclosure of First Mortgage. Subordinate Lender agrees that, although the Regulatory Agreement remains senior to the lien of the First Mortgage Loan Documents, in the event title to the Property is transferred as a result of a foreclosure, a deed in lieu of foreclosure or other realization upon the Property under the First Mortgage Loan Documents, notwithstanding anything to the contrary contained in the Regulatory Agreement, fifty-seven (57) of the units subject to restriction under the Regulatory Agreement shall be restricted for rental to and occupancy by households whose income does not exceed 60% of the area median income for the Orange County, California PMSA, adjusted for household size, as published by the U.S. Department of Housing and Urban Development, and rent in such units shall be restricted to the product of thirty percent (30%) of sixty percent (60%) of the area median income adjusted for family size appropriate for the unit. 5. Default Under Subordinate Loan Documents. (a) Notice of Default and Cure Rights. The Subordinate Lender shall deliver to the Senior Lender a Default Notice within five (5) Business Days in each case where the Subordinate Lender has given a Default Notice to the Borrower. Failure of the Subordinate Lender to send a Default Notice to the Senior Lender shall not prevent the exercise of the Subordinate Lender's rights and remedies under the Subordinate Loan Documents, subject to the provisions of tins Agreement. The Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default within ninety (90) days following the date of such notice; provided, however that the Subordinate Lender shall be entitled, during such 90 -day period, to continue to pursue its rights and remedies under the Subordinate Loan Documents to the extent permitted under Section 5(b). All amounts paid by the Senior Lender in accordance with the First Mortgage Loan Documents to cure a Subordinate Loan LEGAL_US_W # 90345775.4 (Page -7) 55C-239 Default shall be deemed to have been advanced by the Senior Lender pursuant to, and shall be secured by the lien of, the First Mortgage. (b) Subordinate Lender's Agreement to Standstill. If a Subordinate Loan Default occurs and is continuing, the Subordinate Lender agrees that it will not accelerate the Subordinate Loan, commence foreclosure proceedings with respect to the Property, collect rents, appoint (or seek the appointment of) a receiver or institute any other collection or enforcement action specifically related to the enforcement of any terms of the Subordinate Loan Documents or the Regulatory Agreement without first giving at least ninety (90) days' notice of a default under the Subordinate Loan and Subordinate Lender's intent to exercise one of the preceding actions; provided, however, that such limitation on the remedies of Subordinate Lender shall not derogate or otherwise limit Subordinate Lender's rights, following an event of default under the Subordinate Loan Documents to (a) compute interest on all amounts due and payable under the Subordinate Loan at the default rate described in the Subordinate Loan Documents, (b) compute prepayment premiums and late charges, (c) enforce against any person, other than Borrower and any guarantors or indemnitors under the Senior Loan Documents, any guaranty of the obligations of Borrower under the Subordinate Loan, and (d) seek specific performance to enforce covenants and agreements of Borrower relating to income, rent, or affordability restrictions contained in the Regulatory Agreement, and (e) appear in, defend or bring an action in connection with the Property in Subordinate Lender's capacity as a municipal authority to the extent required by law. (c) Cross Default. The Borrower and the Subordinate Lender agree that a Subordinate Loan Default shall constitute a First Mortgage Loan Default under the First Mortgage Loan Documents and the Senior Lender shall have the right to exercise all rights or remedies under the First Mortgage Loan Documents in the same manner. as in the case of any other First Mortgage Loan Default. If the Subordinate Lender notifies the Senior Lender in writing that any Subordinate Loan Default of which the Senior Lender has received a Default Notice has been cured or waived, as determined by the Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Property pursuant to its rights under the First Mortgage Loan Documents, any First Mortgage Loan Default under the First Mortgage Loan Documents arising solely from such Subordinate Loan Default shall be deemed cured, and the First Mortgage Loan shall be reinstated, provided, however, that the Senior Lender shall not be required to return or otherwise credit for the benefit of the Borrower any default rate interest or other default related charges or payments received by the Senior Lender during such First Mortgage Loan Default. 6. Default Under First Mortgage Loan Documents. (a) Notice of Default and Cure Rights. The Senior Lender shall deliver to the Subordinate Lender a Default Notice within five (5) Business Days in each case where the LEGAL_US_W # 90345775.4 (Page -8) 55C-240 Senior Lender has given a Default Notice to the Borrower. Failure of the Senior Lender to send a Default Notice to the Subordinate Lender shall not prevent the exercise of the Senior Lender's rights and remedies under the First Mortgage Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such First Mortgage Loan Default as provided below. Subordinate Lender may have up to thirty (30) days from the date of the Default Notice to cure any monetary default under the First Mortgage Loan Documents; provided, however, that the Senior Lender shall be entitled during such 30 -day period to continue to pursue its remedies with respect to the Property. Subordinate Lender may have up to sixty (60) days from the date of the Default Notice to cure a non -monetary default if during such 60 -day period Subordinate Lender keeps current all payments required by the First Mortgage Loan Documents. In the event that such a non -monetary default creates an unacceptable level of risk relative to the Property, or Senior Lender's secured position relative to the Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 60 -day period all available rights and remedies to protect and preserve the Property and the rents, revenues and other proceeds from the Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a First Mortgage Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. The Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a First Mortgage Loan Default shall not constitute a default under the Subordinate Loan Documents if no other default occurred under the Subordinate Loan Documents until either (i) the Senior Lender has accelerated the maturity of the First Mortgage Loan, or (ii) the Senior Lender has taken affirmative action to exercise its rights under the First Mortgage to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the First Mortgage. At any time after a First Mortgage Loan Default is determined to constitute a default under the Subordinate Loan Documents, the Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time the Borrower cures any First Mortgage Loan Default to the satisfaction of the Senior Lender, as evidenced by written notice from the Senior lender to the Subordinate Lender, any default under the Subordinate Loan Documents arising solely from such First Mortgage Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such First Mortgage Loan Default had never occurred. 7. Conflict. The Borrower, the Senior Lender and the Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the First Mortgage Loan Documents, the Subordinate Loan Documents and the terns of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of the LEGAL -US W # 90345775.4 (Page -9) 55C-241 Senior Lender and the Subordinate Lender in the Property; (b) the timing of the exercise of remedies by the Senior Lender and the Subordinate Lender under the First Mortgage and the Subordinate Mortgage, respectively; and (c) solely as between the Senior Lender and the Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which the Senior Lender and the Subordinate Lender have agreed to as expressly provided in this Agreement. Borrower acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Borrower's time to cure any First Mortgage Loan Default or Subordinate Loan Default, as the case may be; give the Borrower the right to notice of any First Mortgage Loan Default or Subordinate Loan Default, as the case may be other than that, if any, provided, respectively under the First Mortgage Loan Documents or the Subordinate Loan Documents; or create any other right or benefit for Borrower as against Senior Lender or Subordinate Lender. S. Rights and Obligations of the Subordinate Lender Under the Subordinate Loan Documents and of the Senior Lender under the First Mortgage Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. The Subordinate Lender shall not, without the prior written consent of the Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that the Subordinate Lender shall have the right to advance funds to cure First Mortgage Loan Defaults pursuant to Section 6(a) above and advance funds pursuant to the Subordinate Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. In the event of: a taking or threatened taking by condemnation or other exercise of eminent domain of all or a portion of the Property (collectively, a "Taking"); or the occurrence of a fire or other casualty resulting in damage to all or a portion of the Property (collectively, a "Casualty"), at any time or tunes when the First Mortgage remains a lien on the Property the following provisions shall apply: (1) The Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Taking and/or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Taking or a Casualty shall be and remain subordinate in all respects to the Senior Lender's rights under the First Mortgage Loan Documents with respect thereto, and the Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Taking or a Casualty made by the Senior Lender; provided, however, this subsection and/or anything contained in this Agreement shall not limit the rights of the Subordinate LEGAL—US W 9 90345775.4 (Page -10) 55C-242 Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Taking and/or Casualty, and (2) all proceeds received or to be received on account of a Taking or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the First Mortgage Loan) in the manner determined by the Senior Lender in its sole discretion; provided, however, that if the Senior Lender elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the First Mortgage Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the First Mortgage Loan shall be paid to, and may be applied by, the Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, the Senior Lender agrees to consult with the Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between the Senior Lender and -the Subordinate Lender over the application of Casualty proceeds, the decision of the Senior Lender, in its sole discretion, shall prevail. (c) No Modification of Subordinate Loan Documents. The Borrower and the Subordinate Lender each agrees that, until the principal of, interest on and all other amounts payable under the First Mortgage Loan Documents have been paid in full, it will not, without the prior written consent of the Senior Lender in each instance, increase the amount of the Subordinate Loan, increase the required payments due under the Subordinate Loan, decrease the term of the Subordinate Loan, increase the interest rate on the Subordinate Loan, or otherwise amend the Subordinate Loan terms in a manner that creates an adverse effect upon the Senior Lender under the First Mortgage Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents or assignment of the Subordinate Lender's interest in the Subordinate Loan without the Senior Lender's consent shall be void ab initio and of no effect whatsoever and Subordinate Lender agrees that it shall not transfer or assign the Subordinate Loan or the Subordinate Loan Documents without the prior written consent of the Senior Lender. 9. Conversion, Modification or Refinancing of First Mortgage Loan. The Subordinate Lender consents to any agreement or arrangement in which the Senior Lender waives, postpones, extends, reduces or modifies any provisions of the First Mortgage Loan Documents, including any provision requiring the payment of money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to the Permanent Loan Documents, as well as to any new mortgage debt which is for the purpose of refinancing all or any part of the First Mortgage Loan (including reasonable and necessary costs associated with the closing and/or the refinancing) so long as the new mortgage debt does not increase the maximum principal amount of the First Mortgage Loan and, in the event of new mortgage debt, Subordinate Lender shall execute and deliver to Senior Lender a new subordination agreement on the same terns and LEGAL -US -W # 90345775.4 (Page -11) 55C-243 conditions as this Subordination Agreement. Notwithstanding anything to the contrary in this Section 9, or in Section 4(a) above, the Senior Lender shall not, without the prior written consent of the Subordinate Lender in each instance, which shall not be unreasonably withheld, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the First Mortgage Loan Documents, increasing the required payments due under the First Mortgage Loan, decreasing the term of the First Mortgage Loan, or increasing the interest rate on the First Mortgage Loan, except that the Senior Lender shall have the right to advance funds to cure Subordinate Loan Defaults pursuant to Section 5(a) above and advance funds pursuant to the First Mortgage for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Property and curing other defaults by the Borrower under the First Mortgage Loan Documents. Following Conversion, all the terms and covenants of this Agreement shall inure to the benefit of any holder of the Permanent Loan; and all references to the First Mortgage Loan, the First Mortgage Note and the First Mortgage Loan Documents shall mean, respectively, the Permanent Loan, the Permanent Note and the Permanent Loan Documents. 10. Default by the Subordinate Lender or Senior Lender. If the Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non -defaulting lender shall have the right to all available legal and equitable relief. 11. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if. (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER (Prior to Conversion): Bank of America, N.A. Community Development Banking CA4-702-02-29 2001 Clayton Road, 2nd Floor Concord, CA 94520 LEGAL -US W # 90345775.4 0i7t. WGIVAR) Santa Ana Arts Collective, L.P. c/o Meta Housing Corporation 1640 S. Sepulveda Blvd., Suite 425 Los Angeles, CA 90011 Attention: President (Page -12) 55C-244 Attention: Loan Administration Manager SENIOR LENDER (After Conversion): California Community Reinvestment Corp. 100 West Broadway, Suite 1000 Glendale, California 91210 Attention: President With a copy to: WCH Affordable XIX, LLC 151 Kalmus Drive, Suite J-5 Costa Mesa, California 92626 Attention: President SUBORDINATE LENDER: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, CA 92702 Attention: Housing Manager Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 12. General. (a) Assignment/Successors. This Agreement shall be binding upon the Borrower, the Senior Lender and the Subordinate Lender and shall inure to the benefit of the respective legal successors and assigns of the Senior Lender and the Subordinate Lender. (b) No Partnership or Joint Venture. The Senior Lender's permission for the placement of the Subordinate Loan Documents does not constitute the Senior Lender as a joint venturer or partner of the Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. (c) Senior Lender's and Subordinate Lender's Consent. Wherever the Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever the Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by the Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. The Subordinate Lender, the Senior Lender and the Borrower each agree, at the Borrower's expense, to execute and deliver all additional LEGAL -US W # 90345775.4 (Page -13) 55C-245 instruments and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the First Mortgage, or to further evidence the intent of this Agreement. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties hereto. (f) Governing Law. This Agreement shall be governed by the laws of the State in which the Property is located. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Term. The tern of this Agreement shall commence on the date hereof and shall continue until the earliest to occur of the following events: (i) the payment of all of the principal of, interest on and other amounts payable under the First Mortgage Loan Documents; (ii) the payment of all of the principal of, interest on and other amounts payable under the Subordinate Loan Documents, other than by reason of payments which the Subordinate Lender is obligated to remit to the Senior Lender pursuant to Section 4 hereof; (iii) the acquisition by the Senior Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the First Mortgage; or (iv) the acquisition by the Subordinate Lender of title to the Property pursuant to a foreclosure or a deed in lieu of foreclosure of, or the exercise of a power of sale contained in, the Subordinate Mortgage, but only if such acquisition of title does not violate any of the terms of this Agreement. (i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one and the same instrument. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] LEGAL_US_W # 90345775.4 (Page -14) 55C-246 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. SENIOR LENDER: BANK OF AMERICA, N.A. By: Name: Title: LEGAL -US W # 90345775.4 (Signature Page -1) 55C-247 SUBORDINATE LENDER: ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM Sonia R_ Carvalho By: R rk 0.1 AssistV#t City RECOMMENDED FOR APPROVAL: Robert C. Cortez Acting Executive Director Community Development Agency LEGAL -US -W # 90345775.4 CITY OF SANTA ANA Cynthia J. Kurtz Interim City Manager (Signature Page -2) 55C-248 BORROWER: SANTA ANA ARTS COLLECTIVE, L.P., a California limited partnership By: Name: Title: LEGAL -US -W # 90345775.4 (Signature Page -3) 55C-249 LEGAL—US—W # 90345775.4 EXHIBIT A Legal Description (Exhibit A) 55C-250 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: ADOPT A RESOLUTION APPROVING THE CITY'S INVESTMENT POLICY WITH MINOR MODIFICATIONS (STRATEGIC PLAN NO. 4, 1) 1 /a CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 16' Reading ❑ Ordinance on 2 n Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a Resolution approving the City's Investment Policy, which includes the following minor modifications: A. Sets out requirement to establish written investment procedures in accordance with current industry standards. B. Allows the City to sell a security for the purpose of pre -paying a debt or contribution servicing obligation when it is financially advantageous (for the City) to do so. C. Amends existing language to comply with current statutory changes, changes in industry terminology, and recommended best practices. DISCUSSION In accordance with state law the Finance and Management Services Agency (FMSA) has annually submitted the City's Investment Policy (Policy) to the City Council. AB 2853 amended Section 53646 of the Government Code making the requirement to render a Statement of Investment Policy to the City Council permissive rather than mandatory. However, FMSA believes it to be both prudent and in keeping with the spirit of the City's Sunshine Policy that such documents continue to be regularly provided. The Executive Director of FMSA, as chief fiscal officer and ex officio City Treasurer, continues to render to the City Council an annual Statement of Investment Policy for approval and adoption by City Council resolution (Exhibit 1). The Statement of Investment Policy outlines the City's investment guidelines, rules, and practices. The primary goals of the City's investment policy are: 1) To assure compliance with all Federal, State, and local laws governing investment of monies. 55D-1 Annual Statement of Investment Policy July 5, 2017 Page 2 2) To provide the safety of principal and sufficient liquidity. 3) To provide an investment return within the parameters of the Statement of Investment Policy and Investment Portfolio guidelines. The Policy applies to all financial assets of the City, with the exception of Bond Proceeds. Finance and Management Services Agency Treasury and Customer Service ("Treasury") staff continually analyze the portfolio and act to maximize earnings while safeguarding assets and maintaining liquidity. Annually, Treasury staff conducts an evaluation of the City's Policy document to determine compliance with applicable Federal and State regulations and with industry standards and best practices to determine 9 any enhancements or newly adopted rules and regulations are required to be incorporated within the document. Based on these regular staff evaluations periodic updates and revisions to the investment policy are recommended. On June 14, 2014, the City was awarded a Certificate of Excellence Award from The Association of Public Treasurers of United States of America & Canada ("Association"). The award reflects the City's success in developing a comprehensive written investment policy in accordance with industry best practices. The Association's Investment Policy Certification Committee recommends recertification of member cities' investment policies after a three year interval. As a result of Treasury staffs annual review process, only minor updates have been recommended for the 2017-18 Annual Statement of Investment Policy (Exhibit 2). The recommended minor modifications reflected in the proposed updated Policy are as follows: A. The amended Policy language reflects current state language updating the current "Prudent Person" standard of care to the higher "Prudent Investor" standard and conforms to industry standards of care as promulgated by the Association and the California Municipal Treasurers Association (CMTA). B. The Policy amendments relating to when the City may sell a security allows for the City to explore pre -paying certain obligations such as CaIPERS annual expenditures if it is financially advantageous for the City to do so. C. Minor miscellaneous amendments addressing: removal of superseded securities language relating to Government Sponsored Enterprises; increases in allowable percentages regarding purchases related to Commercial Paper and Medium Term Notes; updated reference to Bond indentures together with updating of industry terminology relating to Collateral/Security for Deposit of Public Funds; and clarification of the requirement for the City Council to adopt the Investment Policy by resolution at a public meeting serve to bring the City's Policy into full 55D-2 Annual Statement of Investment Policy July 5, 2017 Page 3 accordance with current state law and industry best practices including the Association and CMTA. Future modifications to the Policy will be presented to the Economic Development, Infrastructure, Budget and Technology Council Committee for review and consideration. 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). FISCAL IMPACT There is no fiscal impact associated with this action. Francisco Gutierrez 0 Executive Director / City Treasurer Finance and Management Services Agency Exhibit: 1. Resolution - Investment Policy 2. Annual Statement of Investment Policy WH:RP 55D-3 55D-4 Exhibit 1 RESOLUTION NO. 2017 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE CITY'S STATEMENT OF INVESTMENT POLICY BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of Santa Ana hereby finds, determines and declares as follows: A. California Government Code §53646, provides that each city may have a written statement of investment policy to govern investment of the City's monies. B. Pursuant to §53646, the City Treasurer shall annually submit a Statement of Investment Policy for City Council consideration. C. The City Treasurer has submitted the attached Statement of Investment Policy to this Council at its regular meeting of July 5, 2017, for its consideration. Section 2. The City Council of the City of Santa Ana has duly considered and approves the City's statement of investment policy submitted by the City Treasurer. Section 3. The City Treasurer shall submit quarterly reports to the City Council stating all investments made in the preceding quarter and that such investments have been made in conformance with the City's investment policy. Section 4. 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 day of 2017. Miguel A. Pulido Mayor Resolution No. 2017 -XXX Page 1 of 2 5501-5 APPROVED AS TO FORM: Sonia Carvalho, City Attorney By: T/1ti c¢ Lisa Storck Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Resolution No. 2017 -XXX Page 2 of 2 Clerk of Council City of Santa Ana 55D-6 JUNE 20, 2017 g UDU EXHIBIT 2 • I a,%- ■ . .INVESTMENT POLICY STATE MENT.2017-18 s 0 CITY OF SANTA ANA ANNUAL STATEMENT OF INVESTMENT POLICY JULY 2017 INTRODUCTION: This statement is intended to outline the policies for prudent investment of idle City funds by providing guidelines for suitable investments while maximizing the efficiency of the City's Cash Management Program. Under the direction of the Executive Director, Finance and Management Services (FMSA), the responsibility for the day to day investment of the City's funds is delegated to the Treasury and Customer Services Manager and/or Assistant Finance Director only. The investment policy applies to all financial assets of the City which are pooled in an actively managed portfolio. The investment pool or portfolio will be referred to as the "Fund" throughout this document. Bond proceeds shall be invested in accordance with requirements and restrictions outlined in the bond documents. Bond proceeds are not considered part of the Fund nor subject to this Investment Policy. The City's Cash Management Program is designed to accurately monitor and forecast expenditures and revenues, thus enabling the investment of funds to the fullest extent possible. Maturities are matched as close as possible to coincide with cash requirements. The investment policies and practices of the City of Santa Ana are based upon Federal, State and Local law and prudent money management. The primary goals of these policies are: To assure compliance with all Federal, State and Local laws governing the investment of monies. 2. To provide for the safety of principal and sufficient liquidity. 3. To provide an investment return within the parameters of this Statement of Investment Policy. Officers and employees involved in the investment process shall refrain from personal business activity that could conflict with the proper execution and management of the investment program, or that could impair their ability to make impartial decisions. Employees and investment officials shall disclose any material interests in financial institutions with which they conduct business. They shall further disclose any personal financial/investment positions that could be related to the performance of the investment portfolio. Employees and officers shall refrain from undertaking personal investment transactions with the same individual with whom business is conducted on behalf of the City. 55D-8 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 2 OBJECTIVES: SAFETY OF PRINCIPAL - Safety of principal is the foremost objective of the City of Santa Ana. Each investment transaction shall be undertaken in a manner that seeks to ensure preservation of capital in the overall portfolio. The objective will be to mitigate credit risk and interest rate risk. A. Credit Risk Credit Risk is the risk of loss due to the failure of the security issuer or backer to redeem the outstanding debt at the stated maturity date. Credit risk also applies to the overall market perception of the financial strength and capacity of the issuer. Credit risk may be mitigated by: - Limiting investments to the safest types of securities; - Pre -qualifying the financial institutions, broker/dealers, intermediaries, and advisors with which the City will do business; and - Diversifying the investment portfolio so that potential losses on individual securities will be minimized. B. Market or Interest Rate Risk Market or interest rate risk is the risk that the market value of securities in the portfolio may fall due to changes in general interest rates. Market or interest rate risk may be mitigated by: - Structuring the Fund so that securities mature to meet cash requirements for ongoing operations, thereby avoiding the need to sell securities on the open market prior to maturity, and - By investing operating funds primarily in shorter -term securities. The cash Flow is updated on a daily basis and will be considered prior to the investment of securities, which will reduce the necessity to sell investments for liquidity purposes. 2. LIQUIDITY - The investment portfolio shall remain sufficiently liquid to meet all operating requirements that may be reasonably anticipated. This is accomplished by structuring the portfolio so that securities mature concurrent with cash needs to meet anticipated demands (static liquidity). Furthermore, since all possible cash demands cannot be anticipated, the portfolio should consist largely of securities with active secondary or resale markets (dynamic liquidity). 55D-9 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017—JUNE 30, 2018 Page 3 3. YIELD - The City's Fund shall be designed with the objective of attaining a market -average rate of return throughout budgetary and economic cycles taking into account the investment risk constraints and liquidity needs. The market -average rate of return is defined as the average return on three-month U.S. Treasury Bills. Return on investment is of least importance compared to the safety and liquidity objectives described above. The core of investments is limited to relatively low risk securities in anticipation of earning a fair return relative to the risk being assumed. It is the general policy of the City to hold investments until market value equals or exceeds amortized cost or book value of the security. Securities shall not be sold prior to maturity with the following exceptions: 1) a declining credit security could be sold early to minimize loss of principal; 2) a simultaneous purchase of a security and the sale of another (security swap) to enhance the quality, yield, or target duration in the portfolio; or 3) general liquidity needs of the portfolio require that the security be sold; 4) prepayment of a specific City debt or contribution servicing obligation (when. financially advantageous to City); and 5) a sale of a specific security prior to its maturity and a capital gain or loss recorded in order to improve the credit quality, liquidity, or rate of return of the portfolio in response to market conditions and/or City risk preferences. The City strives to maintain one hundred percent (100%) investment of idle funds after consideration for a compensating balance to cover the cost of services provided by the bank. The funds available for investment are determined by cash flow projections updated daily. Investments are monitored so that legal limits on types of investments are not exceeded. PRUDENT INVESTOR STANDARD: The City investment program shall be managed in a professional and prudent manner worthy of the public trust and review. The standard of prudence to be used by City investment officials shall be the "prudent investor rule" standard and shall be applied in the context of managing the overall investment portfolio. The "prudent investor rule" provides, pursuant to California Government Code Section 53600.3, that investments shall be made with judgment and care. When investing, reinvesting, purchasing, acquiring, exchanging, selling, or managing public funds, a trustee shall act with care, skill, prudence, and diligence under the circumstances then prevailing, including, but not limited to, the 55D-10 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 4 general economic conditions and the anticipated needs of the agency, that a prudent person acting in a like capacity and familiarity with those matters would use in the conduct of funds of a like character and with like aims, to safeguard the principal and maintain the liquidity needs of the agency. Within the limitations of this section and considering individual investments as part of an overall strategy, investments may be acquired as authorized by law. The City is governed by the California Government Code, Sections 16429.1 and Title 5, Division 2, Part 1, Chapter 4, entitled Financial Affairs, commencing with section 53630. Each investment transaction and the entire portfolio must comply with California Government Code, Sections 53600 and 53635 et seq. and this policy. City investment officials/officers shall establish written investment procedures consistent with this investment policy for the operation of the investment program. Procedures should include but not be limited to: authorized personnel, segregation of duties, internal controls, wire transfer agreements, daily cash flow review, basis for awarding bids, portfolio inventory, and reporting. The procedures document is intended to provide guidance for staff and provide continuity in the event of an interruption of services of investment officials/officers. ALLOWABLE INVESTMENT INSTRUMENTS — STATE LAW: California Government Code Section 53601 establishes allowable investment instruments applicable to all local agencies along with maximum maturities, maximum specified percentages of total portfolio, and minimum quality requirements. Section 53601.1 authorizes local agencies to invest in financial futures or financial option contracts in any of the allowable investment categories enumerated in section 53601. INELIGIBLE INVESTMENTS - STATE LAW: Certain investments, however, are prohibited by California Government Code Section 53601.6. Accordingly, the City shall not invest in any inverse floaters, range notes, or mortgage derived, interest -only strips. In addition, the City shall not invest any funds in any security that could result in zero interest accrual if held to maturity. However, prohibited securities that are in the City's portfolio, as of the date of this policy adoption, may be held until their maturity dates. DISALLOWED INVESTMENTS - HIGHER PERCEIVED RISK: Besides investments prohibited by statute, this policy disallows investments in the following due to a higher perceived risk: 55D-11 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 5 • Asset-backed securities (ABS) — securities supported by pools of installment loans or leases or by pools of revolving lines of credit; Derivatives — financial instruments which have a principal and/or interest payment subject to uncertainty as to timing and/or amount including financial instruments whose return profile is linked to, or derived from, the movement of one or more underlying index or security, and may include a leveraging factor, or financial contracts based upon notional amounts whose value is derived from an underlying index or security (interest rates, foreign exchange rates, equities or commodities); • Investment agreements — contracts regarding funds deposited by an investor often separated into those offered by banks and those offered by insurance companies commonly known as Guaranteed Investment Contracts (GICs) or Guaranteed Investment Agreements (GIAs); • Mortgage-backed securities — securities created when a mortgage or purchaser of residential real estate mortgages creates a pool of mortgages and markets undivided interests or participation in the pool, including principal only strips; • Repurchase and Reverse Repurchase agreements — agreements involving the borrowing of cash from a financial institution for the purchase of securities in which a financial asset is instead pledged as a collateral for a loan and reverse purchase agreements in which the roles of borrower and lender are reversed. • Securities lending agreements — agreements allowing local agencies to earn incremental income on their investment portfolio by loaning securities in their portfolio to financial services companies for a limited time; AUTHORIZED INVESTMENTS: Santa Ana further restricts permitted investments to those listed below. Within this scope, the City diversifies its investments by maturity dates and types of investments. Concentration limits are indicated for all investment categories except Treasury securities, which are considered the safest investments. A. United States Treasury Bills, Notes, and Bonds, for which the full faith and credit of the United States are pledged for payment of principal and interest. Purchases of this category shall not exceed five years to maturity. There is no percentage limit in this category. 55D-12 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 6 B. Obligations issued by a Federal Agency or a United States Government Sponsored Enterprise. Federal Agency Issues include, but are not limited to GNMA (Government National Mortgage Association), FFCB (Federal Farm Credit Bank), FHLB (Federal Home Loan Bank), FHLMC (Federal Home Loan Mortgage Corporation), FNMA (Federal National Mortgage Association), FHA (Federal Housing Administration), and TVA (Tennessee Valley Authority). Although there is no percentage limitation on these issues, purchases of this category shall not exceed five years to maturity and the "prudent investor" rule shall apply for a single agency name as U.S. Government backing is implied rather than guaranteed. C. Supranational Obligations in United States dollar denominated senior unsecured unsubordinated obligations issued or unconditionally guaranteed by the International Bank for Reconstruction and Development, International Finance Corporation, or Inter -American Development Bank, with a maximum remaining maturity of five years or less, and eligible for purchase or sale within the United States. Investments under this subdivision shall be rated "AA" or better by an NRSRO and shall not exceed 30 percent of the cost value of the Fund. D. Bills of exchange or time drafts drawn on and accepted by a commercial bank, otherwise known as banker's acceptances, which are eligible for purchase by the Federal Reserve System. Purchases of banker's acceptances may not exceed one hundred, eighty (180) days or forty percent (40%) of the cost value of the Fund which may be invested pursuant to this section. However, no more than thirty percent (30%) of the City's cost value of the Fund may be invested in the banker's acceptances of any one commercial bank pursuant to this section. E. Commercial paper of "prime" quality of the highest ranking or of the highest letter and number rating as provided for by a nationally recognized statistical rating organization (NRSRO). The entity that issues the commercial paper shall be organized and operating within the United States, as a general corporation, shall have total assets in excess of five - hundred, million dollars ($500,000,000), and has debt other than commercial paper, if any, that is rated 'W or higher by NRSRO The entity is organized within the United States as a special purpose corporation, trust, or limited liability company; has program wide credit enhancements including, but not limited to: over -collateralization, letters of credit, or a surety bond; has commercial paper that is rated "A-1" or higher, or the equivalent, by an NRSRO Eligible commercial paper shall have a maximum maturity of two -hundred seventy (270) days or less. The City may purchase no more than ten percent (10%) of the outstanding commercial paper of any single corporate issue. Purchases of commercial paper may not exceed forty percent (40%) of the surplus money which may be invested. 55D-13 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 7 F. Negotiable certificates of deposit issued by a nationally or state -chartered bank, a savings association or a federal association (as defined by Section 5102 of the Financial Code), a state or federal credit union or by a state -licensed branch of a foreign bank. However, the City shall not invest in negotiable certificates of deposit issued by a state or federal credit union if a member of the City Council or any City personnel with investment decision making authority also serves on the board of directors, or any committee appointed by the board of directors, or the credit committee or the supervisory committee of the state or federal credit union issuing the negotiable certificates of deposit. The City's investment in negotiable certificates of deposit may not exceed thirty percent (30%) of the cost value of the Fund. The amount so invested shall be subject to the limitations of Government Code Section 53638 which generally provides that the deposit shall not exceed the shareholder's equity of any depository bank, or the total net worth of any depository savings association or federal association, or the total of the unimpaired capital and surplus of an insured industrial loan company. Purchases of this category shall not exceed five years to maturity. G. Local Agency Investment Fund - State Pool - the City may invest in the Local Agency Investment Fund (LAIF) established by the State Treasurer under California Government Code Section 16429.1 for the benefit of local agencies. LAIF provides daily liquidity; therefore, there is no final stated maturity for this investment category. Although there is no percentage limitation on this fund, the "prudent investor" rule shall apply for a single agency name. Investments in LAIF shall not exceed $65 million per account unless a greater deposit limit for regular accounts is authorized by the State Treasurer during the term of this Statement of Investment Policy, in which case City LAIF investments may increase up to that limit. H. Bonds issued by the City or agency of the City including bonds payable solely out of the revenues from a revenue-producing property owned, controlled, or operated by the City or agency of the City. The City shall at all times adhere to restrictions and limitations of the bond indenture. Purchases of this category shall not exceed five years to maturity. There is no percentage limit in this category. I. Other State of California Local Agency bonds, notes, warrants or other evidence of indebtedness of any local agency within this state, including bonds payable solely out of the revenues from a revenue-producing property owned, controlled, or operated by the local agency, or by a department, board, agency, or authority of the local agency. Purchases of this category shall not exceed five years to maturity. There is no percentage limit in this category. 55D-14 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017—JUNE 30, 2018 Page 8 Medium Term Corporate Notes (MTN) defined as all corporate and depository institution debt securities with a maximum remaining maturity of five years or less, issued by corporations organized and operating within the United States or by depository institutions licensed by the United States or any state and operating within the United States. Notes eligible for investment shall be rated in a rating category of "A" or its equivalent or better by a nationally recognized rating service. Purchases in this category shall not exceed five (5) years to maturity or thirty percent (30%) of the cost value of the Fund. Purchases in a single issuer in this category shall not exceed five percent (5%) of the cost value of the Fund. K. Shares of beneficial interest issued by diversified management companies that are money market funds registered with the Securities and Exchange Commission under the Investment Company Act of 1940. The company shall have met either of the following criteria: Attain the highest ranking or the highest letter and numerical rating provided by not less than two NRSROs, and 2. Retained an investment adviser registered or exempt from registration with the Securities and Exchange Commission with not less than five (5) years' experience investing in the securities and obligations authorized by subsection (a) to (k), inclusive, and subdivisions (m) to (o), inclusive, of Section 53601 of the Government Code and with assets under management in excess of five -hundred, million dollars ($500,000,000). The purchase price of shares of beneficial interest, (mutual funds) purchase pursuant to this subdivision shall not include any commission that these companies may charge. Investments in this category shall be restricted to money market mutual funds that seek to maintain a Net Asset Value of $1. Money market mutual funds provide daily liquidity; therefore, there is no final stated maturity for this investment category. Investments in mutual funds shall be restricted to Funds that have the highest ranking or the highest letter and numerical rating provided by not less than two of the following nationally recognized statistical rating organizations: Moody's, Standard & Poor's or Fitch. Purchases in this category shall not exceed 20% of the book value of the Portfolio. Purchases in a single mutual fund shall not exceed 10% of the book value of the Portfolio. 55D-15 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 9 COLLATERAUSECURITY FOR DEPOSIT OF PUBLIC FUNDS: Money must be deposited in state or national banks, state or federal savings associations or state or federal credit unions in the State of California. It may be in inactive deposits, active deposits or interest-bearing active deposits. The deposits cannot exceed the amount of the bank's or savings and loan's paid up capital and surplus. The bank or savings and loan must secure the active and inactive deposits with eligible securities having a market value of one -hundred, ten percent (110%) of the total amount of the deposits. State law also allows as an eligible security, first trust deeds having a value of one -hundred, fifty percent (150%) of the total amount of the deposits. A third class of collateral is letters of credit drawn on the Federal Home Loan Bank (FHLB). The Treasurer may waive, at his discretion, security for that portion of a deposit which is insured pursuant to federal law. Currently, the first two -hundred, fifty -thousand dollars ($250,000) of a deposit is federally insured. It is to the City's advantage to waive this collateral requirement for the first $250,000 because we receive a higher interest rate. QUALIFIED DEALERS AND INSTITUTIONS: The City shall transact business only with banks, savings and loans and registered investment securities dealers. The purchase by the City of any investment other than those purchased directly from the issuer, shall be purchased either from an institution licensed by the State as a Broker -Dealer, as defined in Section 25004 of the Corporations Code and registered with Financial Industry Regulatory Authority (FINRA), or a member of a Federally regulated securities exchange, a National or State -Chartered Bank, a Federal or State Association (as defined by Section 5102 of the Financial Code), or a brokerage firm designated as a Primary Government Dealer by the Federal Reserve Bank, and who is registered with FINRA. The City's investment staff shall investigate all institutions which wish to do business with the City as a Qualified City of Santa Ana Broker -Dealer, in order to determine if they are adequately capitalized, make markets in securities appropriate to the City's needs, and agree to abide by the conditions set forth in the City of Santa Ana Annual Statement of Investment Policy. This will be done by having the Financial Institutions complete and return the appropriate City of Santa Ana Broker -Dealer Questionnaire, along with their most current FINRA Report and Audited Financial Statement (available within one -hundred, twenty (120) days of the Institution's fiscal year-end). The Treasury and Customer Services Manager shall maintain a list of Financial Institutions authorized to provide investment services to the City, along with their FINRA Report. Financial Institutions previously certified as Qualified City of Santa Ana Broker -Dealers shall complete and return the appropriate City of Santa Ana Broker -Dealer Questionnaire bi-annually, but shall be subject to the Audited Financial Statement and FINRA annual reporting requirements. However, if the 55D-16 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017—JUNE 30, 2018 Page 10 interaction with the Broker -Dealer is limited to investment trades through an electronic trading platform, then the Broker -Dealer is exempt from completion of a questionnaire. In selecting external Broker -Dealers, past performance, stability, financial strength, reputation, area of expertise, and willingness and ability to provide the highest investment return at the lowest cost to the City within the parameters of this Investment Policy and the California Government Code shall be primary considerations. Investment staff will only conduct business with registered representatives of broker-dealers that have a minimum of three (3) years continuous experience working for a primary dealer or five (5) years continuous experience working for a non -primary dealer. Investment staff will only purchase or sell securities from registered representatives that possess an active Series 7 license, an active Series 66 license, or an active Series 63 license, and who submit a FINRA form U4 (employment history) and a current FINRA form U5 Disclosure Statement and have completed the City's Broker -Dealer questionnaire. SAFEKEEPING OF SECURITIES: In accordance with California Government Code Section 53601, to protect against potential losses caused by collapse of individual securities dealers, all securities owned by the City except securities used as collateral for repurchase agreements, shall be kept in safekeeping with "perfected interest" by the City's custodial bank or a third party bank trust department, acting as agent for the City under the terms of a custody agreement executed by the bank and by the City. All securities, excepting investments in the State Pool or money market mutual funds, will be received and delivered using standard delivery versus payment. INTERNAL CONTROLS: The Executive Director for FMSA is responsible for establishing and maintaining an internal control structure designed to ensure that the assets of the entity are protected from loss, theft or misuse. The Executive Director for FMSA has developed a system of internal investment controls and a segregation of responsibilities of investment functions in order to assure an adequate system of internal control over the investment function. Internal control procedures address wire controls, separation of duties, delivery of securities to a third party for custodial safekeeping, and written procedures for placing investment transactions. Cash balances are reconciled daily by non -investment employees and reconfirmed by the City's accounting staff. In addition, the City's accounting staff also verifies investment activities and holdings on a monthly basis. The Executive Director for FMSA, at his/her discretion, shall establish a process for annual independent reviews by an external auditor to the extent contemplated by generally accepted auditing standards. 55D-17 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 11 REPORTING: Government Code Section 53646 previously mandated that annual investment policies and quarterly reports be rendered to the legislative body (for the City of Santa Ana - the City Council). AB 2853 amended Government Code Section 53646 making these requirements permissive rather than mandatory. Although the Annual Investment Policy and Quarterly Reports to City Council are no longer required, we believe it to be both prudent and in keeping with the spirit of the City's Sunshine Policy that these documents continue to provided. The Executive Director for FMSA shall therefore continue to render to the City Council a statement of investment policy and a report to the City Council and City Manager containing detailed information on all securities, investments, and moneys of the City. The report will be submitted on at least a quarterly basis and provided to the Council within thirty (30) days following the end of the quarter. The report will contain the following information on the funds that are subject to this investment policy: 1) Type of investment (name of the issuer) 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 report 6) Source of the market value information 7) Any funds, investments or programs, including loans, under the management of contracted parties In addition, a description of the City's compliance with the Statement of Investment Policy shall be provided along with a statement denoting the City's ability to meet its expenditure requirements for the next six months. 55D-18 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 12 POLICY REVIEW & ADOPTION: This investment policy shall be reviewed at least annually to ensure its consistency with the overall objectives of preservation of PRINCIPAL, LIQUIDITY, AND YIELD and its relevance to current law, financial and economic trends, and to meet the needs of the City of Santa Ana. The Executive Director for FMSA shall annually render this Statement of Investment Policy to the City Council and City Manager. The City Council shall annually review and adopt this Statement of Investment Policy by resolution at a public meeting. Submitted to the City of Santa Ana City Council for approval, this 5th day of July, 2017. Francisco Gutierrez Executive Director / City Treasurer Finance & Management Services Agency WH:RP 55D-19 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 13 APPENDIX APPENDIX—TABLE OF CONTENTS .................................... CORPORATIONS CODE SECTION 25004 .......................... FINANCIAL CODE SECTION 5102..... GOVERNMENT CODE SECTION 16429.1 ....................................... GOVERNMENT CODE SECTION 53630 ............................ GOVERNMENT CODE SECTION 53635 ........................... GOVERNMENT CODE SECTION 53601 ........................... GOVERNMENT CODE SECTION 53601.1 ..................................... GOVERNMENT CODE SECTION 53601.6 ........................ GOVERNMENT CODE SECTION 53638 ........................... GOVERNMENT CODE SECTION 53646 ........................................ TABLES LOCAL AGENCY INVESTMENT GUIDELINES ALLOWABLE INVESTMENT INSTRUMENTS PER STATE GOVERNMENT CODE (AS OF JANUARY 1, 2016) APPLICABLE TOO ALL LOCAL AGENCIES (FIGURE 1) - LOCAL AGENCY INVESTMENT GUIDELINES .................. ALLOWABLE INVESTMENT INSTRUMENTS TABLE OF NOTES FOR FIGURE 1 - LOCAL AGENCY INVESTMENT GUIDELINES...... 55D-20 Page i Page ii CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 14 CORPORATIONS CODE - CORP TITLE 4. SECURITIES [25000 - 315161 ( Title 4 added by Stats. 1949, Ch. 384. ) DIVISION 1. CORPORATE SECURITIES LAW OF 1968 [25000 - 257071 ( Division 1 repealed and added by Stats. 1968, Ch. 88. ) PART 1. DEFINITIONS [25000 - 250231 ( Part 1 added by Stats. 1968, Ch. 88. ) CORPORATIONS CODE SECTION 25004. (a) "Broker-dealer' means any person engaged in the business of effecting transactions in securities in this state for the account of others or for his own account. 'Broker-dealer' also includes a person engaged in the regular business of issuing or guaranteeing options with regard to securities not of his own issue. `Broker- dealer' does not include any of the following: (1) Any other issuer. (2) An agent, when an employee of a broker-dealer or issuer. (3) A bank, trust company, or savings and loan association. (4) Any person insofar as he buys or sells securities for his own account, either individually or in some fiduciary capacity, but not as part of a regular business. (5) A person who has no place of business in this state if he effects transactions in this state exclusively with (A) the issuers of the securities involved in the transactions or (B) other broker-dealers. (6) A broker licensed by the Real Estate Commissioner of this state when engaged in transactions in securities exempted by subdivision (f) or (p) of Section 25100 or in securities the issuance of which is subject to authorization by the Real Estate Commissioner of this state or in transactions exempted by subdivision (e) of Section 25102. (7) An exchange certified by the Commissioner of Corporations pursuant to this section when it is issuing or guaranteeing options. The commissioner may by order certify an exchange under this section upon such conditions as he by rule or order deems appropriate, and upon notice and opportunity to be heard he may suspend or revoke such certification, if he finds such certification, suspension, or revocation to be in the public interest and necessary and appropriate for the protection of investors. (b) For purposes of this section, an agent is an employee of a broker-dealer under paragraph (2) of subdivision (a) when the agent is employed by or associated with the broker-dealer under all of the following conditions: (1) The agent is subject to the supervision and control of the broker-dealer. (2) The agent performs under the name, authority, and marketing policies of the broker-dealer. (3) The agent discloses to investors the identity of the broker-dealer. 55D-21 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 15 (4) The agent is reported pursuant to subdivision (c) of Section 25210 and the rules adopted thereunder. (Amended by Stats. 2004, Ch. 461, Sec. 1. Effective January 1, 2005.) 55D-22 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 - JUNE 30, 2018 Page 16 FINANCIAL CODE - FIN DIVISION 2. SAVINGS ASSOCIATION LAW [5000 - 100091 ( Division 2 repealed and added by Stats. 1983, Ch. 1091, Sec. 2. ) CHAPTER 1. Short Title, General Definitions, and General Provisions [5000 - 5330] ( Chapter 1 added by Stats. 1983, Ch. 1091, Sec. 2. ) ARTICLE 2. General Definitions 15100 - 5124] ( Article 2 added by Stats. 1983, Ch. 1091, Sec. 2. ) FINANCIAL CODE SECTION 5102. (a) "Association" or "savings association" means a mutual or stock savings association, savings and loan association or savings bank subject to the provisions of this division, but excluding a federal association. (b) "Federal association" means a savings and loan association or federal savings bank that is chartered by the Office of Thrift Supervision under Section 5 of the Home Owners' Loan Act of 1933 (12 U.S.C. Sec. 1464), as amended. (Amended by Stats. 1990, Ch. 1118, Sec. 8.) 55D-23 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 17 GOVERNMENT CODE - GOV TITLE 2. GOVERNMENT OF THE STATE OF CALIFORNIA [8000 - 22980] ( Title 2 enacted by Stats. 1943, Ch. 134. ) DIVISION 4. FISCAL AFFAIRS [16100 - 177001 ( Division 4 added by Stats. 1945, Ch. 119. ) PART 2. STATE FUNDS [16300 - 16649.95] ( Part 2 added by Stats. 1945, Ch. 120. ) CHAPTER 2. Special Funds [16346 - 16429.4] ( Chapter 2 added by Stats. 1945, Ch. 120. ) ARTICLE 11. Local Agency Investment Fund [16429.1 - 16429.4] ( Article 11 added by Stats. 1976, Ch. 730. ) GOVERNMENT CODE SECTION 16429.1. (a) There is in trust in the custody of the Treasurer the Local Agency Investment Fund, which fund is hereby created. The Controller shall maintain a separate account for each governmental unit having deposits in this fund. (b) Notwithstanding any other law, a local governmental official, with the consent of the governing body of that agency, having money in its treasury not required for immediate needs, may remit the money to the Treasurer for deposit in the Local Agency Investment Fund for the purpose of investment. (c) Notwithstanding any other law, an officer of any nonprofit corporation whose membership is confined to public agencies or public officials, or an officer of a qualified quasi -governmental agency, with the consent of the governing body of that agency, having money in its treasury not required for immediate needs, may remit the money to the Treasurer for deposit in the Local Agency Investment Fund for the purpose of investment. (d) Notwithstanding any other law or provision of this section, a local agency, with the approval of its governing body, may deposit in the Local Agency Investment Fund proceeds of the issuance of bonds, notes, certificates of participation, or other evidences of indebtedness of the agency pending expenditure of the proceeds for the authorized purpose of their issuance. In connection with these deposits of proceeds, the Local Agency Investment Fund is authorized to receive and disburse moneys, and to provide information, directly with or to an authorized officer of a trustee or fiscal agent engaged by the local agency, the Local Agency Investment Fund is authorized to hold investments in the name and for the account of that trustee or fiscal agent, and the Controller shall maintain a separate account for each deposit of proceeds. (e) The local governmental unit, the nonprofit corporation, or the quasi -governmental agency has the exclusive determination of the length of time its money will be on deposit with the Treasurer. (f) The trustee or fiscal agent of the local governmental unit has the exclusive determination of the length of time proceeds from the issuance of bonds will be on deposit with the Treasurer. 55D-24 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 18 (g) The Local Investment Advisory Board shall determine those quasi -governmental agencies which qualify to participate in the Local Agency Investment Fund. (h) The Treasurer may refuse to accept deposits into the fund if, in the judgment of the Treasurer, the deposit would adversely affect the state's portfolio. (i) The Treasurer may invest the money of the fund in securities prescribed in Section 16430. The Treasurer may elect to have the money of the fund invested through the Surplus Money Investment Fund as provided in Article 4 (commencing with Section 16470) of Chapter 3. 0) Money in the fund shall be invested to achieve the objective of the fund which is to realize the maximum return consistent with safe and prudent treasury management. (k) All instruments of title of all investments of the fund shall remain in the Treasurer's vault or be held in safekeeping under control of the Treasurer in any federal reserve bank, or any branch thereof, or the Federal Home Loan Bank of San Francisco, with any trust company, or the trust department of any state or national bank. (1) Immediately at the conclusion of each calendar quarter, all interest earned and other increment derived from investments shall be distributed by the Controller to the contributing governmental units or trustees or fiscal agents, nonprofit corporations, and quasi -governmental agencies in amounts directly proportionate to the respective amounts deposited in the Local Agency Investment Fund and the length of time the amounts remained therein. An amount equal to the reasonable costs incurred in carrying out the provisions of this section, not to exceed a maximum of 5 percent of the earnings of this fund and not to exceed the amount appropriated in the annual Budget Act for this function, shall be deducted from the earnings prior to distribution. However, if the 13 -week Daily Treasury Bill Rate, as published by the United States Department of the Treasury on the last day of the state's fiscal year is below 1 percent, then the above -noted reasonable costs shall not exceed a maximum of 8 percent of the earnings of this fund for the subsequent fiscal year, shall not exceed the amount appropriated in the annual Budget Act for this function, and shall be deducted from the earnings prior to distribution. The amount of the deduction shall be credited as reimbursements to the state agencies, including the Treasurer, the Controller, and the Department of Finance, having incurred costs in carrying out the provisions of this section. (m) The Treasurer shall prepare for distribution a monthly report of investments made during the preceding month. (n) As used in this section, "local agency,' "local governmental unit," and "local governmental official" includes a campus or other unit and an official, respectively, of the California State University who deposits moneys in funds described in Sections 89721, 89722, and 89725 of the Education Code. (Amended by Stats. 2014, Ch. 28, Sec. 39. Effective June 20, 2014.) 55D-25 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 19 GOVERNMENT CODE - GOV TITLE 5. LOCAL AGENCIES [50001 - 575501 ( Title 5 added by Stats. 1949, Ch. 81. ) DIVISION 2. CITIES, COUNTIES, AND OTHER AGENCIES [53000 - 55821] ( Division 2 added by Stats. 1949, Ch. 81. ) PART 1. POWERS AND DUTIES COMMON TO CITIES, COUNTIES, AND OTHER AGENCIES [53000 - 54999.71 ( Part 1 added by Stats. 1949, Ch. 81. ) CHAPTER 4. Financial Affairs [53600 - 53997] ( Chapter 4 added by Stats. 1949, Ch. 81. ) ARTICLE 2. Deposit of Funds [53630 - 53686] (Article 2 added by Stats. 1949, Ch. 81. ) GOVERNMENT CODE SECTION 53630. As used in this article: (a) "Local agency' means county, city, city and county, including a chartered city or county, a community college district, or other public agency or corporation in this state. (b) "Treasurer" means treasurer of the local agency. (c) "Depository' means a state or national bank, savings association or federal association, a state or federal credit union, or a federally insured industrial loan company, in this state in which the moneys of a local agency are deposited. (d) "Agent of depository' means a trust company or trust department of a state or national bank located in this state, including the trust department of a depository where authorized, and the Federal Home Loan Bank of San Francisco, which is authorized to act as an agent of depository for the purposes of this article pursuant to Section 53657. (e) "Security" means any of the eligible securities or obligations listed in Section 53651. (f) "Pooled securities" means eligible securities held by an agent of depository for a depository and securing deposits of one or more local agencies. (g) "Administrator" means the Administrator of Local Agency Security of the State of California. (h) "Savings association or federal association" means a savings association, savings and loan association, or savings bank as defined by Section 5102 of the Financial Code. 55D-26 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 20 (i) "Federally insured industrial loan company" means an industrial loan company licensed under Division 7 (commencing with Section 18000) of the Financial Code, the investment certificates of which are insured by the Federal Deposit Insurance Corporation. 0) "Corporation" includes a limited liability company. (Amended by Stats. 2004, Ch. 118, Sec. 19.7. Effective January 1, 2005.) GOVERNMENT CODE SECTION 53635. (a) This section shall apply to a local agency that is a county, a city and county, or other local agency that pools money in deposits or investments with other local agencies, including local agencies that have the same governing body. However, Section 53601 shall apply to all local agencies that pool money in deposits or investments exclusively with local agencies that have the same governing body. This section shall be interpreted in a manner that recognizes the distinct characteristics of investment pools and the distinct administrative burdens on managing and investing funds on a pooled basis pursuant to Article 6 (commencing with Section 27130) of Chapter 5 of Division 2 of Title 3. A local agency that is a county, a city and county, or other local agency that pools money in deposits or investments with other agencies may invest in commercial paper pursuant to subdivision (h) of Section 53601, except that the local agency shall be subject to the following concentration limits: (1) No more than 40 percent of the local agency's money may be invested in eligible commercial paper. (2) No more than 10 percent of the total assets of the investments held by a local agency may be invested in any one issuer's commercial paper. (b) Notwithstanding Section 53601, the City of Los Angeles shall be subject to the concentration limits of this section for counties and for cities and counties with regard to the investment of money in eligible commercial paper. (Amended by Stats. 2008, Ch. 709, Sec. 10.7. Effective January 1, 2009.) 55D-27 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 21 GOVERNMENT CODE SECTION 53601. This section shall apply to a local agency that is a city, a district, or other local agency that does not pool money in deposits or investments with other local agencies, other than local agencies that have the same governing body. However, Section 53635 shall apply to all local agencies that pool money in deposits or investments with other local agencies that have separate governing bodies. The legislative body of a local agency having moneys in a sinking fund or moneys in its treasury not required for the immediate needs of the local agency may invest any portion of the moneys that it deems wise or expedient in those investments set forth below. A local agency purchasing or obtaining any securities prescribed in this section, in a negotiable, bearer, registered, or nonregistered format, shall require delivery of the securities to the local agency, including those purchased for the agency by financial advisers, consultants, or managers using the agency's funds, by book entry, physical delivery, or by third -party custodial agreement. The transfer of securities to the counterparty bank's customer book entry account may be used for book entry delivery. For purposes of this section, "counterparty" means the other party to the transaction. A counterparty bank's trust department or separate safekeeping department may be used for the physical delivery of the security if the security is held in the name of the local agency. Where this section specifies a percentage limitation for a particular category of investment, that percentage is applicable only at the date of purchase. Where this section does not specify a limitation on the term or remaining maturity at the time of the investment, no investment shall be made in any security, other than a security underlying a repurchase or reverse repurchase agreement or securities lending agreement authorized by this section, that at the time of the investment has a term remaining to maturity in excess of five years, unless the legislative body has granted express authority to make that investment either specifically or as a part of an investment program approved by the legislative body no less than three months prior to the investment: (a) Bonds issued by the local agency, including bonds payable solely out of the revenues from a revenue- producing property owned, controlled, or operated by the local agency or by a department, board, agency, or authority of the local agency. (b) United States Treasury notes, bonds, bills, or certificates of indebtedness, or those for which the faith and credit of the United States are pledged for the payment of principal and interest. (c) Registered state warrants or treasury notes or bonds of this state, including bonds payable solely out of the revenues from a revenue-producing property owned, controlled, or operated by the state or by a department, board, agency, or authority of the state. (d) Registered treasury notes or bonds of any of the other 49 states in addition to California, including bonds payable solely out of the revenues from a revenue-producing property owned, controlled, or operated by a state or by a department, board, agency, or authority of any of the other 49 states, in addition to California. (e) Bonds, notes, warrants, or other evidences of indebtedness of a local agency within this state, including bonds payable solely out of the revenues from a revenue-producing property owned, controlled, or operated by the local agency, or by a department, board, agency, or authority of the local agency. (f) Federal agency or United States government-sponsored enterprise obligations, participations, or other instruments, including those issued by or fully guaranteed as to principal and interest by federal agencies or United States government-sponsored enterprises. 55D-28 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 22 (g) Bankers' acceptances otherwise known as bills of exchange or time drafts that are drawn on and accepted by a commercial bank. Purchases of bankers' acceptances shall not exceed 180 days' maturity or 40 percent of the agency's moneys that may be invested pursuant to this section. However, no more than 30 percent of the agency's moneys may be invested in the bankers' acceptances of any one commercial bank pursuant to this section. This subdivision does not preclude a municipal utility district from investing moneys in its treasury in a manner authorized by the Municipal Utility District Act (Division 6 (commencing with Section 11501) of the Public Utilities Code). (h) Commercial paper of "prime" quality of the highest ranking or of the highest letter and number rating as provided for by a nationally recognized statistical rating organization (NRSRO). The entity that issues the commercial paper shall meet all of the following conditions in either paragraph (1) or (2): (1) The entity meets the following criteria: (A) Is organized and operating in the United States as a general corporation. (B) Has total assets in excess of five hundred million dollars ($500,000,000). (C) Has debt other than commercial paper, if any, that is rated "A" or higher by an NRSRO. (2) The entity meets the following criteria: (A) Is organized within the United States as a special purpose corporation, trust, or limited liability company. (B) Has program wide credit enhancements including, but not limited to, overcollateralization, letters of credit, or a surety bond. (C) Has commercial paper that is rated "A-1" or higher, or the equivalent, by an NRSRO. Eligible commercial paper shall have a maximum maturity of 270 days or less. Local agencies, other than counties or a city and county, may invest no more than 25 percent of their moneys in eligible commercial paper. Local agencies, other than counties or a city and county, may purchase no more than 10 percent of the outstanding commercial paper of any single issuer. Counties or a city and county may invest in commercial paper pursuant to the concentration limits in subdivision (a) of Section 53635. (i) Negotiable certificates of deposit issued by a nationally or state -chartered bank, a savings association or a federal association (as defined by Section 5102 of the Financial Code), a state or federal credit union, or by a federally licensed or state -licensed branch of a foreign bank. Purchases of negotiable certificates of deposit shall not exceed 30 percent of the agency's moneys that may be invested pursuant to this section. For purposes of this section, negotiable certificates of deposit do not come within Article 2 (commencing with Section 53630), except that the amount so invested shall be subject to the limitations of Section 53638. The legislative body of a local agency and the treasurer or other official of the local agency having legal custody of the moneys are prohibited from investing local agency funds, or funds in the custody of the local agency, in negotiable certificates of deposit issued by a state or federal credit union if a member of the legislative body of the local agency, or a person with investment decision-making authority in the administrative office manager's office, budget office, auditor -controller's office, or treasurer's office of the local agency also serves on the board of directors, or any committee appointed by the board of directors, or the credit committee or the supervisory committee of the state or federal credit union issuing the negotiable certificates of deposit. 55D-29 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 23 (j) (1) Investments in repurchase agreements or reverse repurchase agreements or securities lending agreements of securities authorized by this section, as long as the agreements are subject to this subdivision, including the delivery requirements specified in this section. (2) Investments in repurchase agreements may be made, on an investment authorized in this section, when the term of the agreement does not exceed one year. The market value of securities that underlie a repurchase agreement shall be valued at 102 percent or greater of the funds borrowed against those securities and the value shall be adjusted no less than quarterly. Since the market value of the underlying securities is subject to daily market fluctuations, the investments in repurchase agreements shall be in compliance if the value of the underlying securities is brought back up to 102 percent no later than the next business day. (3) Reverse repurchase agreements or securities lending agreements may be utilized only when all of the following conditions are met: (A) The security to be sold using a reverse repurchase agreement or securities lending agreement has been owned and fully paid for by the local agency for a minimum of 30 days prior to sale. (B) The total of all reverse repurchase agreements and securities lending agreements on investments owned by the local agency does not exceed 20 percent of the base value of the portfolio. (C) The agreement does not exceed a term of 92 days, unless the agreement includes a written codicil guaranteeing a minimum earning or spread for the entire period between the sale of a security using a reverse repurchase agreement or securities lending agreement and the final maturity date of the same security. (D) Funds obtained or funds within the pool of an equivalent amount to that obtained from selling a security to a counterparty using a reverse repurchase agreement or securities lending agreement shall not be used to purchase another security with a maturity longer than 92 days from the initial settlement date of the reverse repurchase agreement or securities lending agreement, unless the reverse repurchase agreement or securities lending agreement includes a written codicil guaranteeing a minimum earning or spread for the entire period between the sale of a security using a reverse repurchase agreement or securities lending agreement and the final maturity date of the same security. (4) (A) Investments in reverse repurchase agreements, securities lending agreements, or similar investments in which the local agency sells securities prior to purchase with a simultaneous agreement to repurchase the security may be made only upon prior approval of the governing body of the local agency and shall be made only with primary dealers of the Federal Reserve Bank of New York or with a nationally or state -chartered bank that has or has had a significant banking relationship with a local agency. (B) For purposes of this chapter, "significant banking relationship" means any of the following activities of a bank: (i) Involvement in the creation, sale, purchase, or retirement of a local agency's bonds, warrants, notes, or other evidence of indebtedness. (ii) Financing of a local agency's activities. (iii) Acceptance of a local agency's securities or funds as deposits. (5) (A) "Repurchase agreement' means a purchase of securities by the local agency pursuant to an agreement by which the counterparty seller will repurchase the securities on or before a specified date and 55D-30 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 24 for a specified amount and the counterparty will deliver the underlying securities to the local agency by book entry, physical delivery, or by third -party custodial agreement. The transfer of underlying securities to the counterparty bank's customer book -entry account may be used for book -entry delivery. (B) "Securities," for purposes of repurchase under this subdivision, means securities of the same issuer, description, issue date, and maturity. (C) "Reverse repurchase agreement' means a sale of securities by the local agency pursuant to an agreement by which the local agency will repurchase the securities on or before a specified date and includes other comparable agreements. (D) "Securities lending agreement" means an agreement under which a local agency agrees to transfer securities to a borrower who, in turn, agrees to provide collateral to the local agency. During the term of the agreement, both the securities and the collateral are held by a third party. At the conclusion of the agreement, the securities are transferred back to the local agency in return for the collateral. (E) For purposes of this section, the base value of the local agency's pool portfolio shall be that dollar amount obtained by totaling all cash balances placed in the pool by all pool participants, excluding any amounts obtained through selling securities byway of reverse repurchase agreements, securities lending agreements, or other similar borrowing methods. (F) For purposes of this section, the spread is the difference between the cost of funds obtained using the reverse repurchase agreement and the earnings obtained on the reinvestment of the funds. (k) Medium-term notes, defined as all corporate and depository institution debt securities with a maximum remaining maturity of five years or less, issued by corporations organized and operating within the United States or by depository institutions licensed by the United States or any state and operating within the United States. Notes eligible for investment under this subdivision shall be rated "A" or better by an NRSRO. Purchases of medium-term notes shall not include other instruments authorized by this section and shall not exceed 30 percent of the agency's moneys that may be invested pursuant to this section. (1) (1) Shares of beneficial interest issued by diversified management companies that invest in the securities and obligations as authorized by subdivisions (a) to (k), inclusive, and subdivisions (m) to (q), inclusive, and that comply with the investment restrictions of this article and Article 2 (commencing with Section 53630). However, notwithstanding these restrictions, a counterparty to a reverse repurchase agreement or securities lending agreement is not required to be a primary dealer of the Federal Reserve Bank of New York if the company's board of directors finds that the counterparty presents a minimal risk of default, and the value of the securities underlying a repurchase agreement or securities lending agreement may be 100 percent of the sales price if the securities are marked to market daily. (2) Shares of beneficial interest issued by diversified management companies that are money market funds registered with the Securities and Exchange Commission under the Investment Company Act of 1940 (15 U.S.C. Sec. 80a-1 et seq.). (3) If investment is in shares issued pursuant to paragraph (1), the company shall have met either of the following criteria: (A) Attained the highest ranking or the highest letter and numerical rating provided by not less than two NRSROs. (B) Retained an investment adviser registered or exempt from registration with the Securities and Exchange Commission with not less than five years' experience investing in the securities and obligations authorized 55D-31 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 25 by subdivisions (a) to (k), inclusive, and subdivisions (m) to (q), inclusive, and with assets under management in excess of five hundred million dollars ($500,000,000). (4) If investment is in shares issued pursuant to paragraph (2), the company shall have met either of the following criteria: (A) Attained the highest ranking or the highest letter and numerical rating provided by not less than two NRSROs. (B) Retained an investment adviser registered or exempt from registration with the Securities and Exchange Commission with not less than five years' experience managing money market mutual funds with assets under management in excess of five hundred million dollars ($500,000,000). (5) The purchase price of shares of beneficial interest purchased pursuant to this subdivision shall not include commission that the companies may charge and shall not exceed 20 percent of the agency's moneys that may be invested pursuant to this section. However, no more than 10 percent of the agency's funds may be invested in shares of beneficial interest of any one mutual fund pursuant to paragraph (1). (m) Moneys held by a trustee or fiscal agent and pledged to the payment or security of bonds or other indebtedness, or obligations under a lease, installment sale, or other agreement of a local agency, or certificates of participation in those bonds, indebtedness, or lease installment sale, or other agreements, may be invested in accordance with the statutory provisions governing the issuance of those bonds, indebtedness, or lease installment sale, or other agreement, or to the extent not inconsistent therewith or if there are no specific statutory provisions, in accordance with the ordinance, resolution, indenture, or agreement of the local agency providing for the issuance. (n) Notes, bonds, or other obligations that are at all times secured by a valid first priority security interest in securities of the types listed by Section 53651 as eligible securities for the purpose of securing local agency deposits having a market value at least equal to that required by Section 53652 for the purpose of securing local agency deposits. The securities serving as collateral shall be placed by delivery or book entry into the custody of a trust company or the trust department of a bank that is not affiliated with the issuer of the secured obligation, and the security interest shall be perfected in accordance with the requirements of the Uniform Commercial Code or federal regulations applicable to the types of securities in which the security interest is granted. (o) A mortgage pass-through security, collateralized mortgage obligation, mortgage-backed or other pay - through bond, equipment lease -backed certificate, consumer receivable pass-through certificate, or consumer receivable -backed bond of a maximum of five years' maturity. Securities eligible for investment under this subdivision shall be issued by an issuer having an "A" or higher rating for the issuer's debt as provided by an NRSRO and rated in a rating category of "AA" or its equivalent or better by an NRSRO. Purchase of securities authorized by this subdivision shall not exceed 20 percent of the agency's surplus moneys that may be invested pursuant to this section. (p) Shares of beneficial interest issued by a joint powers authority organized pursuant to Section 6509.7 that invests in the securities and obligations authorized in subdivisions (a) to (q), inclusive. Each share shall represent an equal proportional interest in the underlying pool of securities owned by the joint powers authority. To be eligible under this section, the joint powers authority issuing the shares shall have retained an investment adviser that meets all of the following criteria: (1) The adviser is registered or exempt from registration with the Securities and Exchange Commission 55D-32 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 26 (2) The adviser has not less than five years of experience investing in the securities and obligations authorized in subdivisions (a) to (q), inclusive. (3) The adviser has assets under management in excess of five hundred million dollars ($500,000,000). (q) United States dollar denominated senior unsecured unsubordinated obligations issued or unconditionally guaranteed by the International Bank for Reconstruction and Development, International Finance Corporation, or Inter -American Development Bank, with a maximum remaining maturity of five years or less, and eligible for purchase and sale within the United States. Investments under this subdivision shall be rated "AX or better by an NRSRO and shall not exceed 30 percent of the agency's moneys that may be invested pursuant to this section. (Amended by Stats. 2014, Ch. 59, Sec. 1. Effective January 1, 2015.) GOVERNMENT CODE SECTION 53601.1. The authority of a local agency to invest funds pursuant to Section 53601 includes, in addition thereto, authority to invest in financial futures or financial option contracts in any of the investment categories enumerated in that section. (Added by Stats. 1983, Ch. 534, Sec. 3.) 55D-33 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 27 GOVERNMENT CODE SECTION 53601.6. (a) A local agency shall not invest any funds pursuant to this article or pursuant to Article 2 (commencing with Section 53630) in inverse floaters, range notes, or mortgage -derived, interest -only strips. (b) A local agency shall not invest any funds pursuant to this article or pursuant to Article 2 (commencing with Section 53630) in any security that could result in zero interest accrual if held to maturity. However, a local agency may hold prohibited instruments until their maturity dates. The limitation in this subdivision shall not apply to local agency investments in shares of beneficial interest issued by diversified management companies registered under the Investment Company Act of 1940 (15 U.S.C. Sec. 80a-1 at seq.) that are authorized for investment pursuant to subdivision (1) of Section 53601. (Amended by Stats. 2009, Ch. 332, Sec. 68.1. Effective January 1, 2010.) GOVERNMENT CODE SECTION 53638. (a) The deposit shall not exceed the shareholders equity of any depository bank. For the purposes of this subdivision, shareholder's equity shall be determined in accordance with Section 463 of the Financial Code, but shall be deemed to include capital notes and debentures. (b) The deposit shall not exceed the total of the net worth of any depository savings association or federal association, except that deposits not exceeding a total of five hundred thousand dollars ($500,000) may be made to a savings association or federal association without regard to the net worth of that depository, if such deposits are insured or secured as required by law. (c) The deposit to the share accounts of any regularly chartered credit union shall not exceed the total of the unimpaired capital and surplus of the credit union, as defined by rule of the Commissioner of Financial Institutions, except that the deposit to any credit union share account in an amount not exceeding five hundred thousand dollars ($500,000) may be made if the share accounts of that credit union are insured or guaranteed pursuant to Section 14858 of the Financial Code or are secured as required by law. (d) The deposit in investment certificates of a federally insured industrial loan company shall not exceed the total of the unimpaired capital and surplus of the insured industrial loan company. (Amended by Stats. 2015, Ch. 190, Sec. 64. Effective January 1, 2016.) GOVERNMENT CODE SECTION 55D-34 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017 — JUNE 30, 2018 Page 28 53646. (a) (1) In the case of county government, the treasurer may annually render to the board of supervisors and any oversight committee a statement of investment policy, which the board shall review and approve at a public meeting. Any change in the policy shall also be reviewed and approved by the board at a public meeting. (2) In the case of any other local agency, the treasurer or chief fiscal officer of the local agency may annually render to the legislative body of that local agency and any oversight committee of that local agency a statement of investment policy, which the legislative body of the local agency shall consider at a public meeting. Any change in the policy shall also be considered by the legislative body of the local agency at a public meeting. (b) (1) The treasurer or chief fiscal officer may render a quarterly report to the chief executive officer, the internal auditor, and the legislative body of the local agency. The quarterly report shall be so submitted within 30 days following the end of the quarter covered by the report. Except as provided in subdivisions (e) and (0, this report shall include the type of investment, issuer, date of maturity, par and dollar amount invested on all securities, investments and moneys held by the local agency, and shall additionally include a description of any of the local agency's funds, investments, or programs, that are under the management of contracted parties, including lending programs. With respect to all securities held by the local agency, and under management of any outside parry that is not also a local agency or the State of California Local Agency Investment Fund, the report shall also include a current market value as of the date of the report, and shall include the source of this same valuation. (2) The quarterly report shall state compliance of the portfolio to the statement of investment policy, or manner in which the portfolio is not in compliance. (3) The quarterly report shall include a statement denoting the ability of the local agency to meet its pool's expenditure requirements for the next six months, or provide an explanation as to why sufficient money shall, or may, not be available. (4) In the quarterly report, a subsidiary ledger of investments may be used in accordance with accepted accounting practices. (c) Pursuant to subdivision (b), the treasurer or chief fiscal officer shall report whatever additional information or data may be required by the legislative body of the local agency. (d) The legislative body of a local agency may elect to require the report specified in subdivision (b) to be made on a monthly basis instead of quarterly. (e) For local agency investments that have been placed in the Local Agency Investment Fund, created by Section 16429.1, in National Credit Union Share Insurance Fund -insured accounts in a credit union, in accounts insured or guaranteed pursuant to Section 14858 of the Financial Code, or in Federal Deposit Insurance Corporation -insured accounts in a bank or savings and loan association, in a county investment pool, or any combination of these, the treasurer or chief fiscal officer may supply to the governing body, chief executive officer, and the auditor of the local agency the most recent statement or statements received by the local agency from these institutions in lieu of the information required by paragraph (1) of subdivision (b) regarding investments in these institutions. (f) The treasurer or chief fiscal officer shall not be required to render a quarterly report, as required by subdivision (b), to a legislative body or any oversight committee of a school district or county office of 55D-35 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 1, 2017—JUNE 30, 2018 Page 29 education for securities, investments, or moneys held by the school district or county office of education in individual accounts that are less than twenty-five thousand dollars ($25,000). (g) In recognition of the state and local interests served by the actions made optional in subdivisions (a) and (b), the Legislature encourages the local agency officials to continue taking the actions formerly mandated by this section. However, nothing in this subdivision may be construed to impose any liability on a local agency that does not continue to take the formerly mandated action. (Amended by Stats. 2009, Ch. 332, Sec. 68.5. Effective January 1, 2010.) 55D-36 FIGURE 1 ALLOWABLE INVESTMENT INSTRUMENTS PER STATE GOVERNMENT CODE (AS OF JANUARY 1, 2017) A APPLICABLE TO ALL LOCAL AGENCIES See 'Table of Notes for Figure 1' on the next page for footnotes related to this figure. INVESTMENTTYPE MAXIMUM SPECIFIED MINIMUM QUALITY' MATURITY PORTFOLIOMAXIMUM % OF R Local Agency Bonds 5 years None None U.S. Treasury Obligations 5 years None None State Obligations — CA And Others 5 years None None CA Local Agency Obligations 5 years None None U.S Agency Obligations 5 years None None Bankers' Acceptances 180 days 40%E None Highest letter and number Commercial Paper— Pooled Funds' 270 days 40% of the agency's money c rating by an NRSRO H Commercial Paper— Non -Pooled Highest letter and number Funds F 270 days 25% of the agency's money c rating by an NRSRO H Negotiable Certificates of Deposit 5 years 30% None Non-negotiable Certificates of Deposit 5 years None None 30% K (inclusive of placement service Placement Service Deposits 5 years CDs) None 30% K Placement Service Certificates of (combined with placement Deposit 5 years service deposits) None Repurchase Agreements 1 year None None Reverse Repurchase Agreements and 20% of the base value of the Securities Lending Agreements 92 days L portfolio None m Medium -Term Notes N 5 years 30% "A" Rating Mutual Funds And Money Market Mutual Funds N/A 20% ° Multiple P'n Collateralized Bank Deposits 5 years None None Mortgage Pass–Through Securities 5 years 20% "AA" Rating Category R County Pooled Investment Funds N/A None None Joint Powers Authority Pool N/A None Multiple s Loral Agency Investment Fund (LAIF) N/A None None Voluntary Investment Program Fund' N/A None None Supranational Obligations u 5 years 30% "AA" Rating Page LOCAL AGENCY INVESTMENT GUIDELINES 55D-37 Page ii ^ Sources: Sections 16340, 16429.1, 53601, 53601.8, 53635, 53635.2, 53635.6, and 53638. a Municipal Utilities Districts have the author- ity under the Public Utilities Code Section 12871 to invest in certain securities not ad- dressedhere. Section 53601 provides that the maximum tens of any investment authorized under this section, unless otherwise slated, is five years. However, the legislative body may grant express authority to make investments either specifically or as a part of an invest- ment program approved by the legislative body that exceeds this five year maluntylimit. Such approval must be issued no less than three months prior to the purchase of any se- curity exceeding the rive -year maturity limit ° Percentages apply to all portfolio Invest- ments regardless of source of funds. For Instance, cash from a reverse repur- chase agreement would be subject to the restrictions. Reverse repurchase agreements or securi- ties lending agreements may exceed the 92 -day term it the agreement includes a written codicil guaranteeing a minimum earning or spread for the entire period be- tween the sale of a security using a reverse repurchase agreement or securities lending agreement and the final maturity dates of the same security. " Reverse repurchase agreements must be made with primary dealers of the Federal Re- serve Bank of New York or with a nationally or state chartered bank that has a significant relationship with the local agency. The local agency must have held the securities used for the agreements for at least 30 days. " "Medium-term notes" are defined in Section 53601 as "all corporate and depository in- stitution debt securities with a maximum re- maining maturity of live years or less, Issued by corporations organized and operating within the United Stales or by depository in- stitutions licensed by the United States orany state and operating within the United States" ' No more than 30 percent of the agency's money may be in bankers' acceptances of No more than f0 percent invested in any anyone commercial bank. one mutual fund. ` "Select Agencies" are defined as a "city, a district, or other local agency that dolesl not pool money in deposits or Investment with other local agencies, other than local agen- cies that have the same governing body." ° Local agencies, other than counties or a city and county, may purchase no more than 10 percent of the outstanding commercial pa- per o1 any single issuer. " Issuing corporation must be organized and operating within the U.S., have assets in ex- cess of $500 million, and debt other than commercial paper must be rated A" or the issuing corporation must be organized within the U.S. as a special purpose corporation, trust, or LLC, has program wide credit en- hancements, andhas commercialpaper that is rated "A-1" or higher, or the equivalent, by a nationally recognized rating agency. "Other Agencies" are counties, a city and county, or other local agency "that pools money in deposits or investments with other local agencies, including local agencies that have the same governing body." Local agencies that pool exclusively with other to - cat agencies that have the same governing body must adhere to the limits set for "Se- lect Agencies," above. ' No more than 30 percent of the agency's money may be in negotiable certificates of deposit that ate authorized under Section 53601(0. " No more than 30 percent of the agency's moneymaybe irwestedin deposits, including certificates of deposft through a placement service (excludes negotiable certificates of deposit authorized underSeclion 53601(1)). ' A mutual fund must receive the highest rank- ing by not less than two nationally recog- nized rating agencies or the fund must retain an investment advisor who is registered with the SEC (or exempt from registration), has as- sets under management in excess of $500 million, and has of least five years experience investing in instruments authorized by Sec- tions 53601 and 53635. A money market mutual fund must receive the highest ranking by not less than two nationally recognized statistical rating or- ganizations or retain an investment advisor registered with the SEC or exempt from registration and who has not less than five years experience investing in money market Instruments with assets under management in excess of $500 million. " Issuer must be rated 'A' or higher as provid- so by nationally recognized rating agency. ' A joint powers authority pool must retain an Investment advisor who is registered with the SEC (or exempt from registration), has as- sets under management in excess of $500 million, and has of least five years experience investing in Instruments authorized by Sec- tion 53601, subdivisions (a) to (o). T Local entities can deposit between $200 million and $10 billion into the Voluntary Investment Program Fund, upon approval by their governing bodies. Deposits in the fund will be invested in the Pooled Money Investment Account. ° Ontythoseobligationsissuedorunwndition- ally guaranteed by the International Bank for Reconstruction and Development (IBRD), International Finance Corporation (IFC), and Infer -American Development Bank (IADB). LOCAL AGEN&SDSTA iaT GUIDELINES Also, while not expressly prohibited by State law, unregistered securities, such as Rule 144A securities, may not be purchased by local agencies because local agen- cies do not meet the Securities and Exchange Commission definition of Qualified Institutional Buyers (QIB). Page iii LOCALAGENg'MM19T GUIDELINES 55D-40 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 05, 2017 TITLE: APPROVED APPROPRIATION ADJUSTMENT AND ❑ As Recommended As RESOLUTION ACCEPTING L1Or Amended ❑ Ordinance on 151 Reading DEPARTMENT OF ALCOHOLIC ❑ Ordinance on 2ntl Reading BEVERAGE CONTROL FUNDS ❑ Implementing Resolution (STRATEGIC PLAN NO. 1, 3B) ❑ Set Public Hearing For CONTINUED TO FILE NUMBER CITY WNAGER RECOMMENDED ACTION 1. Adopt a resolution authorizing the City Manager and Chief of Police to enter into a one- year agreement with the Department of Alcoholic Beverage Control (ABC), and execute any assurances and/or documents required for said agreement for the purpose of financing the ABC Grant Assistance Program (GAP) to fund the ABC Grant program, for the period of July 1, 2017 through June 30, 2018, for an amount not exceed $100,000. 2. Appropriation adjustment recognizing $100,000 in revenue for the Alcoholic Beverage Control Grant Assistance Program and allocating the same to the various expenditure accounts. DISCUSSION The Santa Ana Police Department was successful in obtaining a FY 2017-18 Department of Alcoholic Beverage Control (ABC) Grant Assistance Program (GAP) grant to mitigate alcohol related crime and provide a safer environment in the areas around licensed establishments. The City of Santa Ana has 419 active retail licenses issued by the Department of Alcoholic Beverage Control (ABC). The funds provided by the grant will allow the Santa Ana Police Department to accomplish the following goals: 1. Reduce the number of alcohol related crimes within the City 2. Identify and successfully prosecute ABC licensed establishments that violate the law 3. Provide a safer environment in the areas around licensed establishments for residents and visitors 4. Reduce the demand on limited resources caused by alcohol related incidents throughout the City These goals will be attained by working in conjunction with our local ABC office and conducting programs which have proven successful in cities throughout California in deterring alcohol related offenses. These programs encompass working with ABC licensed establishments to educate them on how to reduce alcohol related crimes at their place of business. 55E-1 Department of Alcoholic Beverage Control Grant July 5, 2017 Page 2 The grant will also provide funds for SAPD problem oriented policing officers to hold meetings with different neighborhood communities in order to uncover possible problems related to ABC licensed establishments and discuss enforcement strategies. The services funded by this grant will be completed primarily by the SAPD Special Enforcement Team and will not affect normal patrol functions. The one-year agreement will commence on July 1, 2017 and end June 30, 2018. The $100,000 will be used for officer overtime ($92,500), training ($2,500), and operating materials and supplies ($5,000). STRATEGIC PLAN ALIGNMENT Approval of these items assists the City in meeting Goal #1 Community Safety, Objective #3 (promote fiscal accountability to ensure financial responsibility at all levels of the organization), Strategy B (promote ongoing efforts to obtain grant funding for activities that will assist in preventing, enforcing and reducing criminal activity and traffic collisions). FISCAL IMPACT The appropriation adjustment approved in the resolution will recognize $100,000 in Department of Alcoholic Beverage Control Grant funds in revenue account (no. 12814002 52025), and appropriating same to expenditure accounts (nos. 12814415- various), for FY 2017-18. D in Acting Chief of Police Santa Ana Police Department Exhibits 1. Agreement 2. Resolution APPROVED AS TO FUNDS AND ACCOUNT: Francisco Gutierrez, `� r. Executive Director Finance and Management Services Agency 55E-2 STATE OF CALIFORNIA STANDARD AGREEMENT STO 213 (Rev Waal 1. This Agreement Is entered Into between the Stale DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL Exhibit 1 AGREEMENTNUMBER 17C-LA44 REGISTRATION NUMBER City of Santa Ana through the Santa Ana Police Department 2. The term of this July 1, 2017 through June 30, 2018 Agreement Is: 3. The maximum amount $ 100,000 of this Agreement is: 4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement. Exhibit A– Scope of Work 4 page(s) Exhibit B – Budget Detail and Payment Provisions Exhibit C'– General Terms and Conditions Check mark one item below as Exhibit D: ®Exhibit - D Special Terms and Conditions (Attached hereto as part of this agreement) Exhibit - D' Special Terms and Conditions Exhibit E – Additional Provisions 3 page(s) GTC 610 1 page(s) page(s) Items shown with an Asterisk (J, are hereby incorporated by reference and made part orthis agreement as if attached hereto. These documents can be viewed of www dns ca oov/ols/Resources/SrandardConfractLenouane asox IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto. CONTRACTOR CONTRACTOR'S NAME Flalharlhan an ladWwt afar, who/her a carp,,rjw. partnarshiA alc.) City of Santa Ana through the Santa Ana Police Department I IV SIGNING James Schnahl, Acting Chief 60 Civic Center Plaza Santa Ana, CA 92702 STATE OF CALIFORNIA AGENCY NAME Department of Alcoholic Beverage Control Chief, Business Management Branch 3927 Lennanc Drive, Suite 100, Sacramento CA 95834 A=DTO lairl Bogosian Assistant City Attorney —,,pd Cynthia Kurtz Interim City Manager 55E-3 Use Only ® Exempt par: SCM 4.04.(A)(3) Maria D. Huizar Clerk of the Council Exhibit A SCOPE OF WORK The Santa Ana Police Department (SAPD) serves the City of Santa Ana which has a population of approximately 342,930. The Department serves a densely populated community with a median age of 29.1 years old according to the 2010 Census. This is the youngest median age of any city over 250,000 people in the state. Currently, our agency consists of 314 sworn officers, led by the Chief of Police, Carlos Rojas, and 3 Deputy Chiefs, 13 commanders, 36 sergeants, 51 corporals and 210 officers. We also operate our own 512 bed jail, staffed by 78 non -sworn full and 18 part-time Correctional Officers. The Department has four bureaus (Administration, Investigations, Field Operations, and Jail) and the Office of the Chief of Police. We have a Special Enforcement Team (SET) comprised of 15 officers that focuses on quality of life issues which includes dealing with alcohol related crimes as well as narcotics, gang, and vice offenses. The City of Santa Ana is 27.3 square miles located in an urban setting. According to the California State Department of Finance, Demographic Research Unit, 01/01/2016, our population of 342,930 is approximately 78.2% Hispanic, 9.2% White, 1.0% Black, .2% American Indian, and 10.4% Asian; approximately 30.7% of our population is under 18 years of age and approximately 62.5% of the population is between 18 and 65 years of age according to the US Census. Santa Ana is the County seat and second most populous city in Orange County. The core of the city is the downtown area, which contains retail stores, restaurants, bars and housing. This is also home to the Santa Ana Civic Center, which is a dense campus of administrative buildings for the city, County of Orange, state, and federal agencies. There are a total of 419 active retail licenses issued in Santa Ana by the California Department of Alcoholic Beverage and Control (10 of them are R64139 or surrendered) . There are 169 off -sale licenses and 250 on -sale licenses issued to establishments in our city by ABC. In order to accomplish our goals and objectives, we are requesting $100,000 in grant funding. The funds provided by the grant will allow the Santa Ana Police Department to accomplish the following goals: 1) Reduce the number of alcohol related crimes within the City of Santa Ana. 2) Identify and successfully prosecute ABC licensed establishments who violate the law. 3) Provide a safer environment in the areas around licensed establishments for residents and visitors. 4) Reduce the drain on limited resources caused by alcohol related incidents throughout the city. These goals will be attained by completing the following objectives: • Conduct at least 8 MINOR DECOY programs at ABC licensed establishments. • Conduct at least 3 roll call trainings to our patrol officers regarding ABC laws and how to enforce them. • Coordinate and conduct 5 IMPACT/ROSTF (Informed Merchants Preventing Alcohol Related Crime Tendencies) operations to educate licensees on how to reduce alcohol related crimes in their establishments. • Organize at least five (5) community meetings; hold an ask/answer session regarding possible problems related to ABC licensed establishments. This will be done in conjunction with our regular neighborhood meetings attended by problem oriented policing officers. • Coordinate and conduct 8 "Trap Door" operations. 55E-4 Exhibit A • Conduct 8 "Shoulder Tap" operations at ABC establishments identified as problematic. • Schedule and coordinate 2 LEAD programs throughout the city. • Conduct 20 discretionary/undercover operations while working alongside ABC agents to enforce alcohol related violations and successfully prosecute those ABC licensed establishments who operate outside the legal parameters. Problem Statement: Funding of this project will allow the Santa Ana Police Department to continue to address alcohol related concerns throughout our city. There are 419 active retail licenses issued in Santa Ana by the California Department of Alcoholic Beverage and Control (ABC). There are 169 off -sale licenses and 250 on -sale licenses issued to establishments in our city by ABC. With the ABC Grant received in 2015/2016, numerous locations have been identified as problem establishments that generate multiple calls for service or are committing alcohol related violations such as selling alcohol to minors. The problematic locations were found throughout the city with the larger calls for service relating to ABC license locations. We identified four establishments which have generated over 100 calls for service or officer initiated contacts from January 1, 2016 to December 31, 2016. These issues were addressed with the 2015/2016 ABC grant and the number of calls for service are less than 2015 so the new grant will provide funds to continue to reduce the calls for service and provide a better quality of life for the community. There are also several liquor stores throughout Santa Ana which attract individuals who congregate and commit alcohol related violations. Residents continue to complain about their quality of life suffering due to these ongoing problems. Even though we have conducted IMPACT inspections and enforcement operations to combat the problem, more work is necessary. The ABC Grant will allow the SAPD to continue education, training and enforcement to reduce or eliminate alcohol related violations associated with ABC licensed establishments. As with the 2015/2016 ABC Grant, we will work in cooperation with ABC agents to determine the problem locations and address the issue as a team. This year, the SAPD Special Enforcement Team (SET) will participate in the ABC state-wide March "shoulder tap" operation in collaboration with ABC agents in our city. The Santa Ana Police Department regularly receives complaints from concerned citizens, business owners, and others of alcohol related problems such as loitering, public intoxication, assaults, property crimes, driving under the influence and alcohol related traffic collisions. We will use funds from the ABC Grant to address these problems. Our intent is to use the ABC funding to fight these types of alcohol related crimes which drain our resources and adversely affect our residents. The number of calls for service in which the consumption of alcohol is often a contributing factor is significant. Most ABC licensed establishments in our city are responsible and adhere to the law; however, there are some which strain our limited resources due to excessive calls for service. There have been and continue to be numerous complaints of minors both buying and getting adults to buy them alcoholic beverages from many of our liquor stores. During the 2015/2016 ABC Grant we were able to address some of these issues and as a result of general enforcement, undercover, shoulder tap, decoy and trap door operations, approximately 171 persons were arrested for various alcohol and narcotic related violations. Utilizing the 2015/2016 grant, SAPD also conducted 35 IMPACT inspections at locations identified as problem establishments and take the opportunity to inform the retailers about pertinent regulations. With the new ABC Grant, we will continue to address these issues starting with two LEAD training sessions at the beginning of the project period to educate as many ABC licensees to reduce violations under their control. SAPD recognizes that some of our ABC licensed establishments have Spanish speaking employees and because of this reason we will provide a translator at one of the LEAD classes. 55E-5 Exhibit A An emphasis will be placed on long term undercover operations in ABC licensed establishments with a proven record of violations. The continuing enforcement of ABC and alcohol related laws at and near ABC licensed establishments will ensure our efforts to keep Santa Ana residents and visitors safer will succeed. Proiect Descrintion: If successful in obtaining the ABC grant, SAPD would implement the following plan: Conduct at least 8 MINOR DECOY programs at ABC licensed establishments. Funding will also be utilized to conduct minor decoy operations at off -sale and on -sale establishments within our city. These establishments will be identified by SET officers who routinely have contact with community members and can gather intelligence regarding illegal sales of alcohol to minors. The minor decoy operations will be conducted with the assistance of ABC agents and within SAPD policy and procedure as well as ABC guidelines pursuant to the California Code of Regulations, Title 4, Division 1, Section 141 (Minor Decoy Requirements). The need to continue monitoring our licensees was demonstrated by 2015/2016 decoy operations which resulted in an on sale unsuccessful rate of 42.9% and an off sale unsuccessful rate of 29.4%. 2. Conduct 3 roll call training sessions to our patrol officers regarding ABC laws and how to enforce them. SET officers, accompanied by ABC agents will present information to SAPD patrol officers during various roll call sessions. The information will instruct officers regarding pertinent ABC laws, and effective report writing to establish and prosecute ABC violations. With the last ABC Grant we received, at least 57 patrol officers attended roll call training while assisting our detail with related operations. Coordinate and conduct 5 IMPACT/ROSTF (Informed Merchants Preventing Alcohol Related Crime Tendencies and Retail Operating Standards Task Force) operations to educate licensees on how to reduce alcohol related crimes in their establishments and to verify compliance. After receiving pertinent training, contact and inform ABC licensed establishments of their responsibilities regarding the sale of alcohol. During these inspections other agencies such as Code Enforcement, Employment Development Department and Department of Industrial Relations will be invited to gain the maximum effect and compliance. 4. Organize at least five (5) community meetings; hold an ask/answer session regarding possible problems related to ABC licensed establishments. This will be done in conjunction with our regular neighborhood meetings attended by problem oriented policing officers. SET officers commonly attend neighborhood meetings throughout the city pertaining to neighborhood watch, gang issues, and school functions. Officers will take the opportunity to speak with residents regarding problematic ABC licensed establishments, accessibility of alcohol to minors, drinking in public and other alcohol related issues. 5. Coordinate and conduct 8 "Trap Door" operations. There are various ABC on -sale licensed establishments in our city. A few of these establishments attract minors who enter the club or bar illegally with false ID's and consume alcohol. SET officers will work directly with employees of these establishments and cite the person trying to use the false ID and if possible the person who provided it. 55E-6 Exhibit A 6. Conduct 8 "Shoulder Tap" operations at ABC establishments identified as problematic. In conjunction with.local ABC agents, SAPD SET officers will coordinate undercover operations in an attempt to have a minor solicit adults to buy alcohol beverages for them at ABC licensed establishments. The undercover operation will be within the policies and procedures of SAPD as well as ABC guidelines. Schedule and coordinate 2 LEAD programs throughout the city. SET officers will organize and with the assistance of local ABC agents, provide a preventive and educational program pertaining to alcohol responsibility and the law. Our state of the art police facility building has a community room which could hold the attendees of the LEAD program we host. A Spanish translator will be available at one of the classes to ensure the many Spanish speaking employees of our ABC licensed establishments have the opportunity to receive the proper training. 8. Conduct 20 discretionary/undercover operations and work alongside ABC agents to enforce alcohol related violations and successfully prosecute those ABC licensed establishments who operate outside the legal parameters. The undercover operations we undertook in 2015/2016 year yielded numerous arrests for CPC 647(f), BP 25658(a), BP 25602(a), BP 25661, BP 25662(a) and various alcohol related municipal codes and narcotic violations. These arrests occurred inside and in the vicinity of on -sale and off -sale establishments. During the project period, SAPD will evaluate our progress on a continuous basis and ask for local ABC input so that we attain the desired results. SET officers will maintain all reports and data related to the ABC grant and will share the information with ABC on a continuous basis. Project Personnel: The services funded by this grant will be completed primarily by the SAPD Special Enforcement Team (SET). SET is a unit staffed by sworn officers who concentrate their efforts on solving community quality of life issues. Officers from this detail regularly attend community meetings and address the public's concerns. Each officer on the detail has been chosen to be a member of SET based on their expertise, work ethic, and demonstrated high level of professionalism. The SET team will also work closely with our 6 member Vice Unit to assist us in meeting our objectives set for this plan. The Santa Ana Police Department has long enjoyed an excellent working relationship with ABC agents. Through our established partnership, we will accomplish our goals as set forth in this grant. For each operation under this grant, we will utilize 3-8 officers from SET or Vice and we will be working in uniform as well as in an undercover capacity in 4-8 hour increments. Utilizing undercover personnel will give us the advantage and we will be able to gather evidence on possible ABC, narcotic, and vice violations. The Santa Ana Police Department will work collaboratively with ABC agents to assist in our operations. The following members of the SAPD Special Enforcement Team will be involved with this project: Commander Ken Gominsky #2126 Corporal Gonzalo Garcia #2222 Corporal Oscar Lizardi #2629 Police Officer Joe Castellanos #3080 Police Officer James Marquez #3328 Police Officer David Thai #3321 Police Officer Peter Beaumarchais #3315 Police Officer Manuel Delgadillo #2322 Sgt. Jay Miller #1637 Police Officer Judith Valdez #3243 Police Officer Gerardo Rodarte #1621 Police Officer Matthew Chitjian #3165 Police Officer Cassandra Hawkins #3179 Police Officer Greg Beaumarchais #3265 Police Officer Collin Reedy #3346 Police Officer Elizabeth Granados #3166 55E-7 BUDGET DETAIL Exhibit B BUDGET CATEGORY AND LINE -ITEM DETAIL COST (Round budget amounts to nearest dollar) A. Personnel Services (Straight Time Salaries, Overtime, and Benefits) A.1 Straight Time N/A A.2 Overtime Corporal : Overtime Rate $80 X 500 hours $40,000 Officer: Overtime Rate $75 X 700 hours $52,500 A.3 Benefits all personnel combined N/A TOTAL PERSONNEL SERVICES $92,500 B. Operating Expenses (maximum $2,500) $2,500 Money for undercover purchases of alcohol and narcotics TOTAL OPERATING EXPENSES $2,500 C. Equipment (maximum $2,500) (Attach receipts for all equipment purchases to monthly billing invoice) Flash lights with UV, jewelers loupes (counterfeit identification detector), 2 digital $2,500 cameras with cases, USB thumb drives and memory cards, binoculars TOTAL EQUIPMENT 52,500 D. Travel Expense/Registration Fees (maximum $2,500) $550 (Registration fee for July 2017 GAP Conference attendee is $275 each) Travel, per diem, and lodging for the July 2017 ABC GAP conference $1,950 TOTAL TRAVEL EXPENSE $2,500 TOTAL BUDGET DETAIL COST, ALL CATEGORIES $100,000 55E-8 PAYMENT PROVISION Page I of 2 Exhibit B 1. INVOICING AND PAYMENT: Payments of approved reimbursable costs (per Budget Detail attached) shall be in arrears and made via the State Controller's Office. Invoices shall be submitted in duplicate on a monthly basis in a format specified by the State. Failure to submit invoices and reports in the required format shall relieve the State from obligation of payment. Payments will be in arrears, within 30 days of Department acceptance of Contractor performance, pursuant to this agreement or receipt of an undisputed invoice, whichever occurs last. Nothing contained herein shall prohibit advance payments as authorized by Item 2100- 101-3036, Budget Act, Statutes of 2017. 2. Revisions to the "Scope of Work" and the "Budget Detail' may be requested by a change request letter submitted by the Contractor. If approved by the State, the revised Grant Assistance Scope of Work and/or Budget Detail supersede and replace the previous documents bearing those names. No revision can exceed allotted amount as shown on Budget Detail. The total amount of the contract must remain unchanged. 3. Contractor agrees to refund to the State any amounts claimed for reimbursement and paid to Contractor which are later disallowed by the State after audit or inspection of records maintained by the Contractor. 4. Only the costs displayed in the "Budget Detail" are authorized for reimbursement by the State to Contractor under this agreement. Any other costs incurred by Contractor in the performance of this agreement are the sole responsibility of Contractor. 5. Title shall be reserved to the State for any State -furnished or State -financed property authorized by the State which is not fully consumed in the performance of this agreement. Contractor is responsible for the care, maintenance, repair, and protection of any such property. Inventory records shall be maintained by Contractor and submitted to the State upon request. All such property shall be returned to the State upon the expiration of this contract unless the State otherwise directs. 6. If travel is a reimbursable item, the reimbursement for necessary traveling expenses and per diem shall be at rates set in accordance with Department of Personnel Administration rates set for comparable classes of State employees. No travel outside of the State of California shall be authorized. No travel shall be authorized outside of the legal jurisdiction of Contractor without prior authorization by the State. 55E-9 PAYMENT PROVISION Exhibit B Page 2 of 2 7. Prior authorization by the State in writing is required before Contractor will be reimbursed for any purchase order or subcontract exceeding $2,500 for any articles, supplies, equipment, or services to be purchased by Contractor and claimed for reimbursement. Contractor must justify the necessity for the purchase and the reasonableness of the price or cost by submitting three competitive quotations or justifying the absence of bidding. 8. Prior approval by the State in writing is required for the location, costs, dates, agenda, instructors, instructional materials, and attendees at any reimbursable training seminar, workshop or conference, and over any reimbursable publicity or educational materials to be made available for distribution. Contractor is required to acknowledge the support of the State whenever publicizing the work under the contract in any media. 9. It is understood between the parties that this contract may have been written before ascertaining the availability of appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the contracts were executed after that determination was made. 10. BUDGET CONTINGENCY CLAUSE - It is mutually agreed that if the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no further force and effect. In this event, the State shall have no liability to pay any funds whatsoever to Contractor or to furnish any other considerations under this Agreement and Contractor shall not be obligated to perform any provisions of this Agreement. If funding for any fiscal year is reduced or deleted by'the Budget Act for purposes of this program, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an agreement amendment to Contractor to reflect the reduced amount. Updated 1/27/17 55E-10 Exhibit D Special Terms and Conditions Disputes: Any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Director, Department of Alcoholic Beverage Control, or designee, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. The decision of the Department shall be final and conclusive unless, within 30 days from the date of receipt of such copy, the Contractor mails or otherwise furnishes to the State a written appeal addressed to the Director, Department of Alcoholic Beverage Control. The decision of the Director of Alcoholic Beverage Control or his duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, capricious, arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, Contractor shall proceed diligently with the performance of the contract and in accordance with the decision of the State. 2. Termination Without Cause: Either party may terminate this agreement at any time for any reason upon ten (10) days written notice. No penalty shall accrue to either party because of contract termination. 3. Contract Validity: This contract is valid and enforceable only if adequate funds are appropriated in Item 2100-101-3036, Budget Act of 2017, for the purposes of this program. 4. Contractor Certifications: By signing this agreement, Contractor certifies compliance with the provisions of CCC 307, Standard Contractor Certification Clauses. This document may be viewed at 4[tp://www.dgs.ca.99—v/ols/Resources/Stand udContractLangu•tge.aspx . If the State determines that the grant project is not achieving its goals and objectives on schedule, funding may be reduced by the State to reflect this lower level of project activity. Updated 1/27/17 55E-11 55E-12 Exhibit 2 TB 7/5/17 RESOLUTION NO. 2017 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANATA ANA AUTHORIZING THE CITY MANAGER, AND THE CHIEF OF POLICE OR HIS DESIGNEE TO OBTAIN CALIFORNIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL GRANT FUNDS IN THE AMOUNT OF $100,000 AND TO EXECUTE AN AGREEMENT WITH THE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL FOR USE OF THOSE FUNDS AND EXECUTE ANY DOCUMENTS OR ASSURANCES NECESSARY FOR OBTAINING GRANT FUNDS 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 Department of Alcoholic Beverage Control ("ABC') has a Grant Assistant Program for 2017-2018. As part of the GAP, local law enforcement agencies can submit enforcement plans and request funding allocations under the GAP to assist with the enforcement in priority considerations, including but not limited to, service areas where there is a high crime rate and/or an identifiable alcohol-related problems associated with ABC licensed establishments and for agencies interested in obtaining training on ABC education, prevention and enforcement measures which can be carried out after the grant cycle has been completed. B. The Santa Ana Police Department submitted a grant application for funding to reduce the number of alcohol related crimes within the City of Santa Ana, identify and successfully prosecute ABC licensed establishments that violate the law, provide a safer environment in the areas around licensed establishments for residents and visitors, and reduce the strain on limited resources caused by alcohol related incidents throughout the City. C. The City of Santa Ana has been allocated $100,000 in funds under the ABC Grant Assistance Program for 2017-2018. Section 2. The City Council of the City of Santa Ana hereby authorizes and directs the City Manager and Chief of Police or his designee, on terms acceptable to the . Resolution No. 2017 -XXX Page 1 of 2 55E-13 City Attorney, to execute an Agreement with ABC for use of the 2017/2018 GAP funds in an amount not to exceed $100,000 and execute any other documents or assurances that are necessary for obtaining the grant funds. Section 3. The City Council of the City of Santa Ana hereby authorizes and directs the City Manager and/or the Chief of Police or his designee, to prepare invoices to ABC to recoup costs pursuant to the guidelines set forth in the Agreement, grant conditions and terms. Section 4. The City Council of the City of Santa Ana hereby approves an Appropriation Adjustment recognizing the 2017/2018 Alcoholic Beverage Control Department Grant Assistance Program funds in the amount of $100,000 and appropriates the same in the Alcoholic Beverage Control Department Grant Assistance Program expenditure accounts. Section 5. The City Council of the City of Santa Ana hereby agrees that any liability arising out of the performance of the Agreement for ABC 2017/2018 GAP funds shall be the responsibility of the grant recipient and the authorizing agency. The City Council recognizes that the State of California and ABC disclaim responsibility for such liability. Section 6. The City Council of the City of Santa Ana hereby agrees that the grant funds under this Agreement shall not be used to supplant expenditures controlled by this body. Section 7. 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 day of July, 2017 APPROVED AS TO FORM: il City Resolution No. 2017 -XXX Page 2of2 Miguel A. Pulido Mayor 55E-14 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 that the attached Resolution No. 2017 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana 55E-15 Resolution No. 2017 -XXX Page 3 of 2 55E-16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: PUBLIC HEARING - RESOLUTION AFFIRMING THE WEED ABATEMENT PUBLIC NUISANCE REPORT FOR UNCOLLECTED CHARGES AND POSTINGS FOR FISCAL YEAR 2016-2017 (STRATEGIC PLAN NO. 5,4E) c CITY fdANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: r_1:2=1619AW ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution affirming the Fiscal Year 2016-2017 Weed Abatement Program Report and authorizing the transmittal of uncollected weed abatement charges and postings to the Office of Auditor -Controller, County of Orange, for collection. The Public Works Agency operates a year-round program to maintain private properties free of weeds and rubbish. In accordance with Santa Ana Municipal Code Section 16-55, when unsightly or unsafe conditions are identified, City sanitation inspectors provide a courtesy notice to property owners with a 7 -day Notice to Clean Premises. If the property is not cleaned by the seventh day, a Notice of Abatement is posted and mailed indicating that the City will perform the abatement work through its own contractor after a 10 -day period. If the City performs the clean-up, property owners are notified of the charges and are provided an opportunity to submit payment to the City, averting a property assessment via the Orange County Auditor -Controller's Office. When a property is posted a second time within 12 months for the same violation, the City assesses a re - posting charge. Property owners have a minimum of 30 days and up to the time that the City submits the collection order to the County to make their payment(s). This year, there is $2,860.31 to date in outstanding charges for parcels cleaned by the City contractor and posted by City Staff (Exhibit 1). Filing a property assessment through the County is the most effective method of collecting the outstanding charges. The charges are placed on the corresponding property tax rolls and paid through regular property tax assessments to the County of Orange. If a property is in default, the charges are collected when the property changes ownership. The County deadline for inclusion is August 10, 2017. The total amount of outstanding charges is subject to change, due to payments received following the Council 75A-1 Public Hearing —Weed Abatement Public Nuisance Report 2016-17 July 5, 2017 Page 2 approval date but before the County deadline. The final charges will be submitted directly to the County for collection after affirmation by the Council. There is no County fee for this service. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. 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), Strategy E (implement innovative code enforcement practices and strategies to address critical livability issues citywide). FISCAL IMPACT All revenues collected will be deposited into the Sanitation Fund (Account No. 06817002-53710). APPROVED AS TO FUNDS AND ACCOUNTS: Fred Mousavipour Francisco Gutierrez t.kX Executive Director Executive Director Public Works Agency Finance & Management Services Agency FM/PG Exhibit 1: Resolution 75A-2 jmf 5/26/17 RESOLUTION NO. 2017 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CONFIRMING THE COSTS OF WEED, RUBBISH, AND GARBAGE ABATEMENT; MAKING, CONFIRMING, AND LEVYING ASSESSMENTS FOR SUCH COSTS; AND ORDERING A COPY OF THE REPORT THEREOF TO BE FILED WITH THE COUNTY AUDITOR, ASSESSOR, AND TAX COLLECTOR 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. Pursuant to Section 16-55 of the Santa Ana Municipal Code, the Executive Director of Public Works has submitted an itemized report, the Weed Abatement Program Report. A copy of this report is on file with the Clerk of the Council, attached as Attachment 1, and incorporated by reference as though fully set forth herein. The report sets forth the costs of the weed, rubbish, and garbage abatement actions carded out by the City of Santa Ana in front of or upon each individual lot or parcel of land where such work was done. B. The Executive Director of Public Works has given notice as required by law, that the 5th day of July, 2017, at the hour of 5:45 p.m., is fixed as the time, and 22 Civic Center Plaza, Santa Ana, as the place, where any and all persons interested in said report may be heard. C. The City Council of the City of Santa Ana, at said time and place, received, heard, and considered said report and all objections thereto submitted by property owners liable to be assessed for the abatement, and directed such modification of said report as it has deemed necessary. Section 2. Each and every objection to said work and the costs thereof is hereby overruled; Attachment 1 is hereby made and confirmed as an assessment against such lots or parcels respectively, said assessments are hereby levied, and shall constitute liens on the respective lots or parcels of real property as shown on said report until paid. Section 3. Pursuant to Section 16-58 of the Santa Ana Municipal Code, the Executive Director of Public Works shall file a certified copy of said report and this Resolution with the County Auditor, County Assessor, and County Tax Collector on or before August 10, 2017. Resolution No. 2017 -XXX Exhibit 1 Page 1 of 4 75A-3 imf 5/26/17 Section 4. The County Auditor is requested to enter each assessment on the county tax rolls. Section 5. The County Tax Collector is requested to collect each assessment at the time and in the manner of ordinary municipal taxes. Section 6. The City of Santa Ana hereby certifies that the special assessments, special taxes, parcel taxes, charges and/or fees which are to be placed on the fiscal year 2016-2017 property tax roll have been duly adopted in accordance with State law and are legally valid. Section 7. 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 _ day of APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: '� ti.. �Q- John M. Funk Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: Councilmembers Councilmembers Councilmembers Councilmembers 2017. Miguel A. Pulido Mayor 75A-4 Resolution No. 2017 -XXX Page 2 of 4 jmf 5126117 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of the Council, do hereby certify the attached Resolution No. 2017- to be the original resolution adopted by the City Council of the City of Santa Ana on 2017. Date: Clerk of the Council City of Santa Ana Resolution No. 2017 -XXX Page 3 of 4 75A-5 ATTACHMENT CITY OF SANTA ANA FISCAL YEAR 2016-2017 WEED ABATEMENT PROGRAM REPORT AC621-05A - FORM B2 Special Assessment Add Transactions jmf 5126/17 Jurisdiction: Santa Ana Type of Tax: 138 Date: OtIn11C} on97 PARCEL NUMBER 6-15 ASSESSMENT AMOUNT 16-23 PARCEL NUMBER 6-15 ASSESSMENT AMOUNT 16-23 003-120-44 007-121-05 010-053-16 013-071-01 014-322-05 016-052-08 130.07 64.00 66.07 64.00 66.07 64.00 TAX RATEAREA UTILITY AMOUNT DESCRIPTION SBE804-30-11B-1 11-054 Burlington Northern $812.40 Weed Abatement 812.40 100-242-38 64.04 398-471.07 64.00 404.041-15 130.07 405.131-02 61.19 410-083-32 1146.40 410-311-07 64.00 Resolugon No. 2017 -XXX Page 4 of 4 75A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: PUBLIC HEARING - RECOVERY OF UNCOLLECTED COSTS FOR ABATEMENT OF DANGEROUS AND ABANDONED BUILDINGS (STRATEGIC PLAN NO. 5,4) a CITY 16ANAGER CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2 n Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution affirming the Fiscal Year 2016-2017 Dangerous and Abandoned Building Program Report and authorize the transmittal of uncollected Dangerous and Abandoned Building charges to the office of Auditor -Controller, County of Orange. DISCUSSION The City's Dangerous and Abandoned Building (DABS) Program has proven to be an effective tool to abate dangerous and abandoned structures that create an attractive nuisance and may harbor illegal activity. The abatements are accomplished by boarding up the structures and in some cases demolishing the building. Property owners are notified and given 2 to 30 days to abate the illegal conditions. If the property owner does not correct the violations within the required timeframe, the City through its contractors, will perform the work. The property owners are then notified of the outstanding abatement costs every 30 days until the Planning and Building Agency is reimbursed for the expenditure. Each year, the City finds it necessary to seek legal recourse in order to recover the uncollected costs expended for abatement of dangerous and abandoned properties. This year the outstanding charge for work performed on eight parcels is $5,904.29 (Exhibit 1). The property owner information is provided in Exhibit 2. The most effective method of collection is to submit these charges to the office of the County Auditor/Controller in order that they may be placed as a lien on the property tax rolls. Charges must be submitted to the County of Orange by their deadline of August 10, 2017. 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). 7513-1 Recovery of Uncollected Costs for Abatement of Dangerous and Abandoned Buildings July 5, 2017 Page 2 FISCAL IMPACT The recovered charge will result in an estimated $5,904.29 deposited in the Special Repair and Demolition Fund (Account No. 12116002-53507). Candida Neal, AICP Planning Manager Planning & Building Agency SV:rb rb\reports0ABS\FY16-17 RFCA Exhibit: 1. Parcel Assessment Amounts 2. Property Owner Listing 3. Resolution APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez E, Executive Director Finance & Management Services Agency 75B-2 AC62L05A — Form B2 Special Assessment Add Transactions Jurisdiction 061 Santa Ana Type of Tax CC=2 Date July 5. 2017 PARCEL NUMBER 6-15 ASSESSMENT AMOUNT 16-23 011-051-47 $ 376.80 010-212-19 $3,069.50 405-163-30 $1,117.20 100-161-20 $ 462.00 011-291-08 $ 183.89 108-101-47 $ 371.00 002-102-31 $ 161.95 002-102-32 $ 161.95 TOTAL $ 5,904.29 75B-3 PROPERTY OWNER LISTING FISCAL YEAR 2016-2017 ADDRESS_ PARCEL NO. OWNER/ADDRESS ASSESSMENT Sunita Lohiya 815 S. Main St., #108 AP# 011-051-47 PO Box 26098 Santa Ana, CA 92799 The Bank of New York $3,069.50 718 S. Broadway AP# 010-212-19 75 Beattie PI. Ste. 300 Greenville, SC 29601 Elizabeth A. Innerbichler $1,117.20 1029 W. 2nd Street AP# 405-163-30 1700 W. Greenleaf Dr. Tucson, AZ 85746 Guadalupe H. Perez 5001 W. 16th Street AP# 100-161-20 5001 W. 160 Street Santa Ana, CA 92703 Russell W. DeMore $183.89 1240 E. Hunter #B AP# 011-291-08 17941 Caballo Drive Yorba Linda, CA 92686 Tuan Xuan Nguyen MD $371.00 4728 W. First Street AP# 108-101-47 14221 Euclid St. Unit H Garden Grove, CA 92843 413 W. 17th St., #106 419 W. 17th St. AP# 002-102-31 AP# 002-102-32 Lundar Yuh Trust Lundar Yuh Trustor 10361 Magnolia #B Anaheim, CA 92804 Lundar Yuh Trust Lundar Yuh Trustor 10361 Magnolia #B Anaheim, CA 92804 EXHIBIT 2 75B-4 61.95 LS 7/5/17 RESOLUTION NO 2017 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CONFIRMING THE COSTS OF SECURING AND/OR DEMOLITION OF VARIOUS STRUCTURES DECLARED TO BE PUBLIC NUISANCES; MAKING, CONFIRMING AND LEVYING ASSESSMENTS FOR SUCH COSTS; AND ORDERING SUCH COSTS TO BE RECORDED WITH THE ORANGE COUNTY RECORDER 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 City's Dangerous and Abandoned Building (DABS) Program has proven to be an effective tool to abate dangerous and abandoned structures that create an attractive nuisance for children and provide harborage for illegal activity. The abatements are accomplished by board -ups and/or demolition. B. Pursuant to Section 17-40 of the Santa Ana Municipal Code, the Executive Director of the Planning and Building Agency has submitted an itemized report, a copy of which is on file with the Clerk of the Council, showing the costs of securing property and/or demolition of various structures carried out by the City of Santa Ana upon each individual lot or parcel of land where such work was done. C. The Executive Director of the Planning and Building Agency has given notice of the public hearing as required by law, in which the 5t' day of July, 2017, at the hour of 5:45 p.m. was fixed as the time, and 22 Civic Center Plaza, Santa Ana as the place, where any and all persons interested in said report might be heard. D. The City Council of the City of Santa Ana, at said time and place has received, heard, and considered said report and all objections by property owners liable to be assessed for the abatement, and directed such modification of said report as it has deemed necessary. Section 2. Each and every objection to said work and the costs thereof is hereby overruled; said report, a copy of which is on file with the Clerk of the Council, is hereby confirmed; the cost of abatement work done in front of or upon each lot or parcel of real property, as shown on Exhibits 1 and 2, which are incorporated by this reference as though fully set forth herein, and the amounts therein on such assessments shall become due thirty (30) days after the adoption of this Resolution. 75B-5 LS 7/5/17 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. Section 4. The Executive Director of Planning and Building Agency is hereby directed to file a certified copy of said report and this Resolution with the County Recorder's Office, the County Auditor, County Assessor, and County Tax Collector on or before August 10, 2017. Section 5. The County Auditor is requested to enter the assessments on the county tax rolls. Section 6. The County Tax Collector is requested to collect the assessment at the time and in the manner of ordinary municipal taxes. Section 7. The City of Santa Ana hereby certifies that the special assessments, special taxes, parcel taxes, charges and /or fees which are to be placed on the fiscal year 2016-2017 property tax roll have been duly adopted in accordance with State law and are legally valid. ADOPTED this day of July, 2017 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: & e— , Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers 75B-6 Miguel A. Pulido Mayor LS 715/17 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2017- to be the original resolution adopted by the City Council of the City of Santa Ana on July _, 2017. Date: Clerk of the Council, City of Santa Ana 75B-7 AC621-05A — Form B2 Special Assessment Add Transactions Jurisdiction061 SantaAna Type of Tax CC=2 Date: July 5. 2017 LS 7/5/17 PARCEL NUMBER 6.15 ASSESSMENT AMOUNT 16-23 011-051-47 $ 376.80 010-212-19 $ 3069.50 405-163-30 $ 1,117.20 100-161-20 $ 462.00 011-291-08 $ 183.89 108-101-47 $ 371.00 002-102-31 $ 161.95 002-102-32 $161.95 TOTAL $ 5,904.29 EXHIBIT 1 75B-8 LS 715117 PROPERTY OWNER LISTING FISCAL YEAR 2016-2017 ADDRESS PARCEL NO. OWNER/ADDRESS ASSESSMENT Ghanshyam Lohiya & Sunita Lohiya $376.80 815 S. Main #108 AP# 011-051-47 PO Box 26098 Santa Ana, CA 92799 The Bank of New York $3069.50 718 S. Broadway AP# 010-212-19 75 Beattie PI. Ste. 300 Greenville, SC 29601 Elizabeth A. Innerbichler 1029 W. 2nd Street AP# 405-163-30 1700 W. Greenleaf Dr. $1,117.20 Tucson, AZ 85746 5001 W. 161 Street AP# 100-161-20 Guadalupe H. Perez $462.00 5001 W. 161" Street Santa Ana, CA 92703 1240 E. Hunter #13 AP#011-291-08 Russell W. DeMore $183.89 17941 Cabello Drive Yorba Linda, CA 92686 4728 W. First AP# 108-101-47 Tuan Xuan Nguyen MD $371.00 14221 Euclid St. Unit H Garden Grove, CA 92843 413 W. 17th #106 AP# 002-102-31 Lundar Yuh Trust $161.95 Lundar Yuh Trustor 10361 Magnolia #B Anaheim, CA 92804 4.19 W. 17th AP# 002-102-32 Lundar Yuh Trust $161.95 Lundar Yuh Trustor 10361 Magnolia #B Anaheim. CA 92804 EXHIBIT 2 75B-9 75B-10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: PUBLIC HEARING — FIRST READING OF ORDINANCE REPEALING AND RE-ENACTING SECTIONS OF SANTA ANA MUNICIPAL CODE CHAPTER 39 RELATED TO WATER AND SEWERS {STRATEGIC PLAN NOS. 5, 2 & 6F} CITYR ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt an ordinance repealing and re-enacting Articles I, Il, III, and V of Chapter 39 of the Santa Ana Municipal Code; and, revising existing code references to the affected articles. For the purpose of maintaining public health and good order, Chapter 39 of the Santa Ana Municipal Code (SAMC) governs the provision and use of potable water, recycled water, and sanitary sewer services throughout the City. It defines the relationships between the City's Water and Sewer Enterprises and the community, especially its ratepayers, and details the responsibilities, rights, and restrictions attendant to those roles and relationships. Because these are among the most basic and universal services provided within the City, they have an impact on virtually every community stakeholder. The City is well served by municipal code language that is concise and consistent, and provides clear direction to staff and the community. History of SAMC Chapter 39 Since 1952, Chapter 39 has been partially amended several times by the following ordinances • NS -465 9/6/1960 0 NS -1624 4/5/1982 . NS -2178 10/5/1992 • NS -505 2/20/1961 • NS -2005 5/1/1989 0 NS -2233 9/19/1994 • NS -936 9/16/1968 0 NS -2045 12/4/1989 0 NS -2479 9/17/2001 • NS -1084 6/21/1971 • NS -2065 6/18/1990 • NS -2670 11/15/2004 • NS -1219 9/16/1974 0 NS -2073 9/4/1990 0 NS -2781 4/20/2009 • NS -1238 11/18/1974 9 NS -2145 9/16/1991 . NS -2877 5/19/2015 • NS -1497 8/6/1979 Each of these changes has individually served the City well but, in the aggregate, they have left SAMC Chapter 39 in need of comprehensive revision, a simple but important housekeeping action. In order to synthesize the iterations of these various code sections, improve the language, and provide clearer direction to staff and the public, staff recommends that Council adopt an ordinance to comprehensively update SAMC Chapter 39 by repealing and re-enacting Articles I, II, III, and V. 75C-1 Public Hearing — First Reading of Ordinance REPEALING AND RE-ENACTING SECTIONS OF Santa Ana MUNICIPAL CODE CHAPTER 39 RELATED TO WATER AND SEWERS July 5, 2017 Page 2 Recommended Changes A number of typographical, grammatical, and terminological revisions are contained in the ordinance presented for Council's consideration. In addition, it makes the following notable changes: • Modernizes language to remove out-of-date references and enhance readability; • Updates and expands definitions, for clarity; and, • Requires individual metering to improve consumer awareness and encourage conservation. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement & Sustainability, Objective #2 (expand opportunities for conservation and environmental sustainability); and, Objective #6 (focus projects and programs on improving the health and wellness of all residents), Strategy F (incorporate health and wellness into all applicable policies and plans). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact associated with this action. �d2 Fred Mousavipour Executive Director kzp Public Works Agency FM/NS/RR Exhibit 1: Ordinance Finance and Management Services Agency 75C-2 jmf 6122/2017 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REPEALING AND REENACTING IN THEIR ENTIRETY ARTICLES I; II, III, AND V OF -CHAPTER 39 OF THE SANTA ANA MUNICIPAL CODE REGARDING WATER AND SEWERS AND AMENDING RELATED SECTIONS 1-18.2, 16-38, 18-602, AND 18-603 OF THE SANTA ANA MUNICIPAL CODE THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Santa Ana hereby finds, determines, and declares as follows. A. For the purpose of maintaining public health and good order, Chapter 39 of the Santa Ana Municipal Code governs the provision and use of potable water, recycled water, and sanitary sewer services throughout the City. Chapter 39 defines and regulates the relationships between the City's water and sewer enterprises and the community, especially its ratepayers, and delineates the attendant responsibilities, rights, and restrictions of the parties. B. Chapter 39 has been amended in various respects since 1952, albeit in more limited fashion. Most recently, in 2015, Article VI of Chapter 39 was amended to update the City's water shortage contingency plan, as prompted by statewide drought conditions then in effect and that only recently have abated. C. Each amendment to Chapter 39 has individually served the City well, though they have left Chapter 39 in need of a more comprehensive revision. D. In order to synthesize the iterations of the prior amendments, improve upon the language, and provide clearer direction to staff and the public, it is desirable that Chapter 39 undergo a more comprehensive update, including the repealing of Article V, whose function is no longer necessary because the Memory Lane Sewer Line has been fully funded and completed. E. Accordingly, Articles I, II, III, and V of Chapter 39 of the Santa Ana Municipal Code shall be updated by repealing and reenacting such articles. F. As a result of these updates to Chapter 39, certain other sections of the Santa Ana Municipal Code will no longer be in harmony. These sections shall be amended concurrently to align with the updates to Chapter 39. Ordinance No. NS -XXX Page 7 of 56 75C-3 SECTION 2. Article l of Chapter 39 of the Santa Ana Municipal Code is hereby repealed in its entirety. SECTION 3. Article I of Chapter 39 of the Santa Ana Municipal Code is hereby reenacted in its entirety as follows: ARTICLE I. - IN GENERAL Sec. 39-1. - Water and sewer service outside city limit. Except as provided by this chapter, no water or sewer service shall be made with the water or the sewer systems of the city for the rendering of service in any area not within the city limits, and no service to any area within the city limits shall provide water or sewer service to any area outside of the city limits, even though such areas outside the city limits may stand of record as owned by the same person or persons receiving water or sewer service on adjacent land within the city limits. The record owner of any parcel of land adjacent to the city's boundaries who desires to obtain water or sewer service shall make a request to the director of public works for such service and agree to execute with the city a legally binding agreement or contract in compliance with all conditions of water and sewer service in this chapter, California Government Code section 56133, and the rules of the Orange County Local Agency Formation Commission. Parcels adjacent to the city's boundaries that are being served by the city water or sewer systems at the time of adoption of this ordinance shall, by December 31, 2018, request and execute with the city a similarly compliant agreement for continued service. Failure to complete a water or sewer service agreement may result in the discontinuation of the sewer or water service. Sec. 39-2. - Water and sewer systems development impact fees. Development impact fee(s) shall be imposed on development project(s) that require water and or sewer facilities necessary to accommodate growth resulting from the development(s). Development impact fee(s) may be established by ordinance or resolution of the city council in compliance with California Government Code section 66000 et seq. Sec. 39-3. - Water and sewer systems design standards. (a) All water system distribution, storage, and treatment system components, combined as one functional unit or system or individually, regardless of ownership and location, that connect to the city's domestic water system, directly or indirectly, shall be designed, constructed, and inspected in accordance with the Santa Ana Municipal Code, the City of Santa Ana standard plans, the latest edition of the Standard Specifications for Public Works Construction (Green Book), the American Water Works Association Standards, and the California Waterworks Standards. Ordinance No. NS -XXX Page 2 of 56 75C-4 (b) All sewer mains, laterals, manholes, lift stations, and other sewer system appurtenances, regardless of location and ownership, that connect to the city's sewer collection system, directly or indirectly, shall be designed, constructed, and inspected in accordance with the Santa Ana Municipal Code, the City of Santa Ana standard plans, and the latest edition of the Standard Specifications for Public Works Construction (Green Book). Sec. 39-4. - Charges, fees, and deposits. All charges, fees, and deposits in this chapter shall be adjusted from time to time and established by the city council by resolution and as applicable shall be specified by the city's miscellaneous fee schedule. Sec. 39-5. - Private water and sewer lines. (a) Water distribution lines and sewer collection lines constructed in private streets or in local streets not meeting the design criteria established by the director of public works shall be designated as private lines. It is the sole responsibility of the owner to operate and maintain the private water distribution lines, including without limitation all routine and emergency repairs, operation, and upkeep of all above ground appurtenances and underground valves, fittings, pipes, and service connections up to and including the meter curb stop. It is the sole responsibility of the owner to operate and maintain the private sewer collection lines, including without limitation all routine and emergency repairs, operation, and upkeep of sewer manholes and sewerage lift pumps. (b) The private line owner's responsibility starts at the property line of the development served. Before construction, engineering plans for the construction of private lines must be submitted to the Public Works Agency and the Planning and Building Agency for review and approval in a manner consistent with the city's water and sewer systems design standards as described in section 39-3. Private water lines not constructed in conformance with these standards will be declared unapproved water systems requiring a higher degree of protection against cross -connection. Looped water lines must be protected against backflow at each connection to the city's public water system. (c) Any modifications to private lines and their appurtenances shall be performed in accordance with the city's standard plans and the California Waterworks Standards. This includes without limitation the renewal, addition, or removal of service connections. All work must be permitted by the Public Works Agency and the Planning and Building Agency. Private water lines with non -conforming modifications will be declared unapproved water systems requiring a higher degree of protection against cross -connection than a reduced pressure principle assembly. Upon completion of the project, and prior to gaining occupancy permits to any of the units served with water and sewer, as -built plans stamped by an engineer licensed by the state of California must be submitted and approved by the Public Works Agency, Ordinance No. NS -XXX Page 3 of 56 75C-5 (d) The city shall require the installation of a water meter in accordance with section 39-23(b) on every service connection to each dwelling unit, irrigation system, common area amenity, and individual commercial unit tapped from the private water line. The city will be responsible for the maintenance of the water meters, including meter reading, meter testing, meter repair, and replacement. To maintain, inspect, test, and read the public water meters, both an access easement to the development and a maintenance easement, confined to the water service meter box, shall be granted to the city by the private property served. (e) The allowance or permitting by the city of private water lines shall not in any way authorize the owner or private entity to resell water for profit within the city. Secs. 39-6-39-14. - Reserved. SECTION 4. Article II of Chapter 39 of the Santa Ana Municipal Code is hereby repealed in its entirety. SECTION 5. Article II of Chapter 39 of the Santa Ana Municipal Code is hereby reenacted in its entirety as follows: ARTICLE If. - WATER Sec. 39-15. - Definitions. As used in this article: Afterhours means that period of time allotted by the finance director for the performance of unscheduled water service turn on or tum off, occurring after the regularly established hours for the performance of scheduled water service turn on or turn off, as set by the director of finance. Agency means Public Works Agency, City of Santa Ana. Applicant means an individual, partnership, association, corporation, receivership, trust, trusteeship, or agency of government, or other legal entity recognized by the laws of the state or of the United States applying for water service. Backflow preventer means an approved device or means to prevent backflow into the city's potable water system. Common area amenities means areas within residential, commercial, or industrial developments for the common use of residents or workers managed by the owner or his agent, including but not limited to, rental offices, club houses, picnic areas, drinking fountains or filling stations, exercise rooms, and swimming pools. Ordinance No. NS -XXX Page 4 of 56 75C-6 City means the City of Santa Ana. Cost means charges and/or fees which include the cost to the city of labor, materials, equipment, and overhead. Customer means an individual, partnership, association, corporation, receivership, trust, trusteeship, or an agency of government or other legal entity recognized by the laws of the state or of the United States receiving water service. Date of presentation means the date upon which a bill or notice is mailed to the customer at their mailing address of record, or in the event that a customer has signed up for electronic billing, the date upon which electronic notice is given to the customer at their electronic mailing address of record. Director of finance or finance director means the chief administrative officer of the department of finance and management services or his authorized designee. Director of public works means the chief administrative officer of the public works agency, City of Santa Ana, or his authorized designee. Department of public works or public works department means the public works agency. Department of finance or finance department means the finance and management services agency. Fee means the amount established by resolution of the city council which is intended solely to cover the reasonable administrative costs (time, materials, overhead) incurred in performing any specified act on behalf of any person or at any person's request for which said person shall be liable. Gender pronouns: The masculine includes the feminine and neutral genders. Greywater means untreated wastewater that has not been contaminated by any toilet discharge; has not been affected by infectious, contaminated, or unhealthy bodily wastes; and does not present a threat from contamination by unhealthful processing, manufacturing, or operating wastes. Greywater includes, but is not limited to, wastewater from bathtubs, showers, bathroom washbasins, clothes washing machines, and laundry tubs, but does not include wastewater from kitchen sinks or dishwashers, or as otherwise defined by the California Health and Safety Code. Main means the distribution pipe line located in a street, highway, public easement, or private right-of-way which is used to serve the general public. Master meter means a meter, read by the city, that measures water usage for an entire property or structure, which may include common areas. Ordinance No. NS -XXX Page 5 of 56 75C-7 Meter means any suitable water measuring device or facility which measures or determines the volumetric flow of water. Multi -family dwelling/accommodation means an apartment building, apartment house, condominium complex, or any other group of residential units located upon a single premises, including mobile home parks, providing the residential units therein meet the requirements for a single family accommodation. Hotels or motels consisting primarily of guest rooms and/or transient accommodations are not classified as multifamily accommodations. Municipal utility services account/billing statement means the consolidated account and/or billing statement to which refuse service charges, sanitation service charges, sewerage service charges and other sewerage related charges and fees, water commodity consumption charges, and other related water service charges and fees (including fire line service charges), together with corresponding penalties, as applicable, shall accrue and/or are stated. Parcel means a division of land as shown in the Orange County Assessor's Book. Person means an individual, partnership, association, corporation or an agency of any governmental organization, receivership, trust, trusteeship, or other legal entity recognized by the laws of the state or of the United States. Premises or service address means the integral property or area, including improvements thereon, to which water service is provided or for which an application for water service is filed. Private fire protection service means provision of stand-by readiness to serve water to premises through a separate fire service line connection for fire protection only, such fire service lines to be connected to automatic sprinkling system, hose attachments, or hydrants. Property owner or owner means the record owner of real property, as shown on the most recently issued equalized assessment roll. Recycled water means treated wastewater supplied by Orange County Water District from the Green Acres Project, or treated wastewater of comparable quality from such other water recycling system as the city shall designate. Service area means all area within the city limits and the area served outside the city limits. Service charge or service related charge shall mean any commodity consumption cost, whether measured by consumption or volume or whether applied as Ordinance No. NS -XXX Page 6 of 56 75C-8 a pass-through adjustment rate, or any fixed amount or variable schedule of amounts authorized herein or authorized elsewhere in this chapter or Code relating to refuse, sanitation, sewerage, and water (including fire line service), as established by resolution of the city council. Submeter means a device that measures water consumption of an individual unit within a multiunit residential structure or mixed-use residential and commercial structure, and that is owned and operated by the owner of the structure or the owner's agent. Temporary service means a water service through a city -owned fire hydrant for special outdoor events, fairs, construction work, irrigation of vacant property, and similar uses which, because of their nature, will not be permanent. Tenant improvement means changes made to the interior and exterior of a commercial or industrial property to accommodate the needs of tenants, including but not limited to, partitions, air conditioning, electrical, plumbing, fire protection, and security. Theft of water means the taking of water from any city water main, hydrant, service, or facility without a meter or the written permission of the city in the form of a permit or application as provided for in the provisions of this article. Unit of water means one hundred (100) cubic feet. Water facilities means water distribution and treatment components, individually or as a whole, operating to provide storage, flow, and pressurized domestic water. The following components make up water facilities: wells, reservoirs, pipelines, system valves, control valves, fire hydrants, interties, disinfection treatment, instrumentation and controls, power distribution, and Supervisory Control and Data Acquisition system. Water service means the tapping connection, pipe, valves, and other facilities by means of which water is conducted from the main water line, whether public or privately owned, to the meter. Sec. 39-16. - Application for turning on water and transfer of responsibility. (a) Procedures; registration fee. An application to have water turned on or to transfer responsibility for water charges shall be made to the finance department of the city in conformance with the procedures established by the director of finance. A "registration fee" for the administrative cost therefore shall be made; provided, however, that the reversion of responsibility for water charges from a tenant to a previously registered property owner or other customer possessing the legal right to act as a lessor, at the time of the termination of such tenant's tenancy, shall not constitute a new application for turning on water or transfer of responsibility for water charges and shall not be subject to the "registration fee." Ordinance No. NS -XXX Page 7 of 56 75C-9 (b) Transfer of responsibility. Within the meaning of this chapter, a transfer of responsibility for water charges occurs when any of the following conditions are met: (1) The owner or other customer possessing the legal right to act as a lessor, or his authorized agent, informs the department of finance that a tenant has assumed lawful control of the property or premises or that there has been a change of lawful tenants; alternatively, the initial tenant or a new incoming tenant informs the department of finance that they have assumed lawful control of the property or premises. (2) A lease or other rental agreement (signed by the owner or his authorized agent) is provided, clearly specifying that the named tenant shall be responsible for municipal utility services in tenant's own name. A triple -net lease or other written agreement obligating a tenant to pay charges for water services and other municipal utility services provided to the property or premises in the name of the owner or lessor shall not constitute a transfer in responsibility, and liability for the payment of water charges shall be deemed to remain with the owner or lessor. (c) Deposit. Each applicant, except for the property owner of record, shall make a water service deposit at the time of making an application for turning on water or transfer of responsibility in an amount as set forth by resolution of the city council. The deposit may be refunded or applied as an account credit if and when all municipal utility services account bills rendered have been paid before their delinquent date for a period of one year. (d) In the event occupant(s) of any property or premises having registered a municipal utility services account and transferred municipal utility services into their own name as tenant(s), pursuant to a lease or other rental agreement (signed by the owner or his authorized agent) clearly specifying that the named tenant(s) shall be responsible for municipal utility services in tenant(s)' own name, thereafter quit or otherwise vacate the premises, then responsibility for future charges shall revert to the municipal utility services account of the property owner. Sec. 39-17. - Applications for new water service and change in service size or relocation. (a) Any person desiring to request a new water service or change the size or location of an existing water service shall make application to the agency for such addition or change. The agency, if in its judgment determines that the change in service size or location is advisable, will issue a permit authorizing the change. The agency reserves the right to make the final determination of the size of the service connection and its location. An applicant requesting the new water service or requesting the change in service size or location shall be liable for all costs. New locations and changes of the location or the size of water service must be built to city specifications by a private contractor, to be hired by applicant and inspected by city. Ordinance No. NS -XXX Page 8 of 56 75C-10 (b) Meters for new water service, resized service, or relocated service shall be installed by the city. Fees for the service application, meter and installation shall be payable in advance prior to issuance of an occupancy permit. (c) The city shall fumish the meters. (d) The material used for the installation of new water service or change of the size or the location of water service shall conform to the water system design standards in accordance with section 39-3(a). (e) Before new water service will be permitted by the city, the customer shall obtain any approval of facilities furnished or installed by customer, which may be required by the Planning and Building Agency or the Orange County Fire Authority or any other authority whose approval is required by law. Sec. 39-18. - Facilities declared property of city; cost of repairs. All facilities, including but not limited to water meters, meter boxes, fire hydrants and fittings installed by the city, shall remain at all times the property of the city. Where replacements, repairs, or adjustments of any facility are rendered necessary by the act, omission, or negligence of the customer or of any person occupying the premises with the consent of the customer, any expense incurred by the city shall be charged against and collected from the customer. If the customer fails to pay such fees, the water may be shut off until such fees are paid. Sec. 39-19. - Water rates, service charges, fees and costs. (a) Water commodity consumption and service charges (1) Commodity charges. Quantitative consumption rates shall be charged in the amount which the city council shall establish by resolution and in accordance with applicable law. (2) Basic service charges. Charges shall be made for services rendered to provide and maintain a potable water supply and to provide standby readiness in the amounts established by and for the purposes described in the resolution adopted by the city council and in accordance with applicable law. (3) Multi -family per unit charge. Basic service charges shall be applied to developments that meet the definition of multi -family dwelling/accommodation where the individual units are not individually metered by the city. (4) Private fire service protection charge (fire line charge). A charge shall be made for the service rendered to provide readiness to deliver relatively large quantities of water for short periods of time for on-site private fire protection and suppression Ordinance No. NS -XXX Page 9 of 56 75C-11 systems in the amounts established by and for the purposes described in the resolution adopted by the city council and in accordance with applicable law. (b) Fees to establish water service. All applicants, prior to connecting to a water main or prior to an increase in size of an existing water meter or service, shall apply and obtain a permit to do so and pay the following fees in amounts as established by resolution of the city council. (1) New water service application fee - see Sec. 39-17. (2) Water meter cost and installation fee - see Sec. 39-17. (c) City is authorized to charge/levy the following administrative and other fees and deposits in an amount established by resolution of the city council: (1) Turn on or turn off fee during weekdays for new water turn on services and delinquent accounts - see Sec. 39-20(e). (2) Afterhours turn on or turn off fee during afterhours and holidays for new water turn on services and delinquent accounts when requested by customer - see Sec. 39-20(e). (3) Special investigation/meter reread fee when requested by customer or when meter was inaccessible at the time the routine meter read was attempted by the city - see Sec. 39-20(c). (4) Meter removal charge or meter resetting fee (to re -install meter when meter was removed for non-payment or for violation of City Code) - see Sec. 39-20(e). (5) Field or meter shop testing fee (when requested by customer) - see Sec. 39-21(a). (6) Temporary construction meter deposit - see Sec. 39-24. (7) Temporary construction meter daily rental fee - see Sec. 39-24. (8) Field collection fee - see Sec. 39-200). (9) Return payment service fee - see Sec. 39-20(m). (10) Fire flow test application fee - see Sec. 39-28. (11) Fire flow test witness fee - see Sec. 39-28. (12) Backflow preventer third -and -final notice generation fee - see Sec. 39- 29(e). Ordinance No. NS -XXX Page 10 of 56 75C-12 (13) Water service deposit -see Sec. 39-16(c). (14) Backflow device testing administrative fee -see Sec. 39-29(e). (15) Registration fee - application for turning on water and transfer of responsibility - see Sec. 39-16(a). 20(k). (16) Tag fee - see Sec. 39-20(d). (17) Removal of unauthorized "straight pipe" connections fee - see Sec. 39- (18) In street cut-off of water services fee - see Sec. 39-20(1). (19) Meter read trip fee - see Sec. 39-20(e). (20) Abstract of billing history fee - Whenever a customer of record or his agent requests a history of charges and/or fees billed to a municipal utility services account registered in the name of the customer, an abstract of billing history shall be provided and an "abstract of billing history fee" shall be added to the customer's next regularly scheduled municipal utility services account/billing statement. Whenever such request is made by a third party pursuant to customer's letter of authorization, the fee shall be payable in advance. Sec. 39-20. - Payment of water bills and penalties; municipal utility services account/billing statement. (a) Date payment due. Water commodity consumption charges, and related water service charges (including any fire line charges), and other fees and penalties shall be stated as part of a municipal utility services account/billing statement along with refuse related charges as established pursuant to section 16-38 of this Code, sanitation related charges as established pursuant to section 18-601 et seq. of this Code, sewerage related charges as established pursuant to section 39.55.1 et seq. of this Code, and all above related corresponding associated penalties, and are due and payable to the department of finance on the date of presentation and become delinquent thirty (30) days after the date of such presentation, except that when the thirtieth (30th) day falls on a weekend, city holiday, or city hall closure day, such bills shall be due on the next following city working day. Any charge for water supplied to any customer, or any related charges or fees (including fire line charges), together with any refuse service, sanitation service, sewerage service charges, fees, or penalties due to the city from such customer, or due from any person who has applied for water service, as herein provided for, shall be added to any billing being currently rendered to such person, and the same shall become a part of his current municipal utility services account/billing statement for water service and subject to all of the provisions of this chapter. Partial payments made upon municipal utility services account/billing Ordinance No. NS -XXX Page 11 of 56 75C-13 statements shall be applied in the following order: (1) refuse service related charges, (2) sanitation related charges, (3) sewerage service related charges, (4) water service commodity consumption charges and related charges (including fireline service charges) and fees established pursuant to section 39-19 of this Code, and (5) corresponding penalties as provided respectively under sections 16-38(c), 18-603(b), 39-55.2(a), and 39-20(d) of this Code. (b) Failure of meter to register correctly. If a meter fails to register during any period, or is known to have registered inaccurately, the customer shall be charged for a seasonally adjusted average daily consumption for a period of similar duration determined when the meter was registering accurately. (c) Meter reread and meter investigation. When a meter box is inaccessible at the time the routine meter read was attempted by the city or when consumption occurs in connection with a previously turned off meter, or when a customer requests that the city verify the accuracy of the read as shown on the bill, the customer shall be charged a "special investigation/meter reread fee" as established by resolution of the city council for sending a field representative to the service address to investigate the meter and obtain a reading or rereading of the meter. If the reading or rereading shows that the previous read is in error, no special investigation/meter reread fee will be imposed; otherwise such charge shall be added to the customer's next regularly scheduled water bill. (d) Penalties. A penalty of ten (10) percent shall be assessed on the unpaid balance of all unsatisfied municipal utility services account/billing statement charges, fees, and penalties thirty (30) days after the presentation date, in accordance with subsection (a) of this section. Thereafter, a past due notice shall be presented to the customer. On the next city working day following the seventh (7th) day after the date of presentation of the past due notice, the water service shall be subject to tum off at the premises. Two (2) days before the intended tum off of water service, a discontinuance of service notice for non-payment "turn-off tag" shall be affixed to the premises and a "tag fee. charge" imposed for such notification service. Thereafter, service may be discontinued if the bill is not satisfied within the time required by such notice. Once turned off, water service shall remain off until all charges, penalties and fines have been paid, unless an application to have the water turned on is received accompanied by evidence satisfactory to the department of finance of change of ownership or change in tenants. Upon the receipt of such evidence, the application for turning on water or transfer of responsibility for water charges shall be processed as provided for in section 39-16. (e) Turn off and turn on of service. When the water has been turned off for non-payment or for the violation of any provision set forth in this code or any ordinance, regulation or requirement of the city, such water shall not be turned on again unless the violation has been corrected and all charges and penalties have been paid, unless the turn off is exempt from such payment by reason of change of person receiving service. A "meter turn on fee" and "meter turn off fee" shall be made for each separate trip to the Ordinance No. NS -XXX Page 12 of 56 75C-14 premises for the purposes of turning on or turning off water service during weekdays for new water turn on services and delinquent accounts and whenever otherwise requested by customer; provided, however, that turn on or turn off of water service during afterhours and holidays for new water turn on services and delinquent accounts when requested by customer, shall be subject to a special "after hours tum on or turn off fee" as established by resolution of the city council. After a water meter has been turned off for a period of seven (7) days, the meter may be removed from the service. A "meter removal fee" as established by resolution of the city council shall be made for the cost of meter removal. A "meter setting fee" as established by resolution of the city council shall be made for the reinstallation of the meter and the turning on of the water. A "meter read trip fee" as established by resolution of the city council shall be payable for each trip to a customer's premises for the purposes of performing a meter read for closing out of service, or for start of service, or for transfer of responsibility for service. Fees as herein provided shall be added to the next water bill issued after date of turn off, tum on, special investigation/reread, meter setting/reinstallation or other designated trip, provided the amount is not collected in advance of the turn off, turn on, special investigation/reread, meter setting/reinstallation, or other designated trip. For the purposes of this article, the term "trip" shall not include the regularly scheduled routine reading of customers' meters. (f) Closing bill. Upon the rendering of the final bill for service, the city shall not refund any credit balance or deposit of less than one dollar ($1.00); any checks returned that cannot be delivered or are unclaimed shall be forfeited unless the applicant applies for refund within twelve (12) months. (g) Individual liability for joint service. Two or more persons who join in one application or contract for service shall be jointly and severally liable thereunder and shall be billed by means of a single periodic bill presented to the person designated in the application process to receive the bill. (h) Change of address. Water service shall not be given to any customer upon change of address until all delinquent charges owing thereon at a former place of residence or business have been paid. (1) Transfer of charges. When a customer maintains separate water service at multiple premises in the city under the same name or identity of ownership or tenancy, and water service has been discontinued at one premises for non-payment, the department of finance may transfer the unpaid balance owing from the account to which service has.been discontinued to any other account belonging to the customer for which water service remains ongoing. (j) Field collection fee. When a representative of the city collects payment of delinquent charges owing from a customer or customer's agent in the field, in lieu of performing a turn off or removal of customer's meter, a "field collection fee" shall be applied and collected from the customer or his agent at the same time as all other delinquent charges and fees owing are collected. Ordinance No. NS -XXX Page 13 of 56 75C-15 (k) Removal of unauthorized "straight pipe" connections. Whenever a customer has connected to the city's water service through an unauthorized straight pipe connection, the city shall cause such connection to be removed and a "removal of unauthorized straight pipe connections fee" as established by resolution of the city council shall be made and billed to the customer. (1) In street cut-off of water services. Whenever, in the discretion of the director of public works any customer's access to the water service must be physically severed by means of an in street cut-off of water service, whether due to authorized turn on of water service, or unauthorized straight pipe connection, or other violation of city code, an "in street cut-off fee" as established by resolution of the city council shall be made and billed to the customer. (m) Any charge, fee, or deposit owing to the city which has been paid by an instrument such as a check or draft which is dishonored upon presentation for payment, shall be void and of no effect from its inception. The director of finance, may, in his discretion, withhold the effect of this provision if the instrument is redeemed within fifteen (15) days of its return. Payment of charges, fees, or deposits following a dishonor of such instrument upon presentation for payment shall thereafter be made only by credit card, cashier's check, money order, or cash, which amount shall include any applicable penalty, as well as a "Return Payment Service Fee". The director of finance shall be authorized to reject payment other than by cash, cashier's check, or money order from such customer or such customer's agent for a period of two (2) years following any such dishonor. (n) Water service commodity consumption charges and water related charges and fees established pursuant to section 39-19 of this Code, and any corresponding penalties accrued for failure to make timely payment therefore pursuant to section 39-20 shall be a civil debt owing to the city. Sec. 39-21. - Testing of meters; leaks. (a) A customer may request the agency to test the meter serving his premises. The customer shall be charged a "meter test fee" to cover the cost of such test. The fee shall not be applied if the meter is found to register not more than two (2) percent fast. The customer shall have the right to observe the performance of the test, and a written report of the test will be given to him upon request. (b) When upon test, a meter is found to be registering more than two (2) percent fast, the city will refund to the customer the amount of the overcharge based on corrected meter readings for the period the meter was in use, but not exceeding a period of six (6) months. (c) When upon test a meter two (2) inches or less in size is found to be registering more than twenty-five (25) percent slow, the city may bill the customer for Ordinance No. NS -XXX Page 14 of 56 75C-16 the amount of the undercharge based upon corrected meter readings, seasonally adjusted for the period the meter was in service, but not exceeding a period of four (4) months. (d) When upon test a meter three (3) inches or larger in size is found to be registering more than five (5) percent slow, the city may bill the customer for the amount of the undercharge based upon corrected meter readings, seasonally adjusted for the period the meter was in service, but not exceeding a period of four (4) months. (e) Customers are required to keep their plumbing pipes, service pipes, and all facilities on the customer's side of the meter in good order and are required, at their own expense, to locate and repair any leaks. It is not the city's responsibility to locate or repair any water facility on the customer's side of the meter. No allowance will be made on a customer's bill for loss of water, once the water is delivered to the customer's side of the water meter. Sec. 39-22. - Finance director; responsibility; administrative authority (a) The director of finance shall have responsibility for administering the city's consolidated municipal utility services accounts (refuse and refuse related, sanitation and sanitation related, sewerage and sewerage related, and water and water related, including fire line service) as they correlate to account establishment and maintenance, billing, payment processing, collection, and customer service operations. (b) To efficiently and equitably implement the purpose and intent of the general provisions of this chapter subject to his administration, including those portions of chapters 16 and 18 of this Code relating respectively to refuse service charges and sanitation service charges in connection with municipal utility services accounts/billing statements, the director of finance may vary and adjust the strict procedural, billing, collection, enforcement, or other administrative requirements. In addition, the director of finance shall have the power, for good cause shown, to waive, abate, adjust, refund, or reduce any commodity consumption, charge, other charge, fee, or penalty imposed, or deposit demanded. The director of finance may in his discretion exercise this authority on a case-by-case basis in connection with any individual applicant or customer, or other person or legal entity, or on a class -by -class basis in connection with any category, class or subclass of applicants, customers, or other persons. (c) In connection with the above described chapters and provisions subject to his administration, the director of finance shall have the authority to settle, discontinue, or waive the collection of any claim, or class of claims, for good cause shown, or if it appears that further proceedings would be without merit, or if the administrative or legal cost therefore would be excessive, or if the amount of the claim in question is de minimus. A claim, or class of claims, shall be deemed to be de minimus whenever the total amount of the claim is determined by the director of finance to be equal to or less than the total anticipated administrative costs associated with collecting the amount. Ordinance No. NS -XXX Page 15 of 56 75C-17 The director of finance may in his discretion determine this amount on a case-by-case basis or on a class -by -class basis. (d) The director of finance shall have the further authority to Interpret, make rules and regulations, and establish guidelines not inconsistent with the provisions of this chapter, subject to his administration, or those portions of chapters 16 and 18 relating respectively to refuse service charges and sanitation service charges in connection with municipal utility services accounts/billing statements, as may be necessary or desirable to aid in the administration or enforcement of such provisions, including the establishment of service hours for scheduled water service turn on and turnoff, as well as afterhours periods for the performance of unscheduled water service turn on or tum off. Sec. 39-23. - General regulations. (a) There shall be the following types of water services: (1) Domestic -residential. Domestic -residential water service shall be used to serve domestic water to residential units, including single-family detached homes, single family attached units, residential units within multi -family developments such as apartments, condominiums, and townhomes, residential units within a mixed-use development, and mobile home spaces. (2) Domestic -commercial. Domestic -commercial water service shall be used to serve domestic water to motels, hotels, restaurants, office buildings, commercial centers, and strip malls. (3) Domestic -municipal. Domestic -municipal water service shall be used to serve domestic water to federal, state, county, and city government offices, buildings and parks. (4) Domestic -industrial. Domestic -industrial water service shall be used to serve domestic water to industries such as chemical and allied products, food, mining, paper and allied products, petroleum refining, and steel. (5) Domestic -institutional. Domestic -institutional water service shall be used to serve domestic water to hospitals, convalescent homes, developmental facilities, long term care facilities, nursing homes, psychiatric facilities, rehabilitation facilities, and developmental disability facilities. (6) Domestic -common area. Domestic -common area water service shall be used to serve domestic water to clubhouses, on-site laundry rooms, recreational areas, exercise rooms, drinking fountains, cooling equipment and make up water for recirculating decorative fountains. Ordinance No. NS -XXX Page 16 of 56 75C-18 (7) Irrigation. Irrigation water service shall be used for irrigation systems to establish and maintain landscape areas, lawns, trees, gardens, and shrubs; assist crop and pasture growth; or to maintain vegetation on recreational lands such as parks, sports fields, and golf courses. Irrigation includes water that is applied for pre -irrigation, chemical application, weed control, field preparation, harvesting, and dust suppression. Irrigation water service shall be used to irrigate all non-residential irrigated landscapes of 1,000 sq. ft. and residential irrigated landscape of 5,000 sq. ft. or greater. (8) Industrial. Industrial water service shall be used to serve water to industries that use water in their manufacturing or any portion of their fabrication or process systems. (9) Recycled water. Recycled water service, if available, shall be used in accordance with section 39-38. (10) Fire protection. Fire protection services shall be used for fire protection systems pursuant to the local fire code as specified in section 39-27. (b) There shall be the following metering requirements: (1) Each individual residential unit, commercial unit, industrial unit, and mobile home space shall be individually metered by city or submetered as required by applicable law. (2) Residential lots with landscape area over 5,000 sq. ft. shall be required to have a dedicated irrigation service and water meter. (3) Non-residential lots with landscape area greater than 1,000 sq. ft. shall have dedicated irrigation service and water meter. (4) At the discretion of the director of public works, master metering can be allowed if site conditions prohibit the installation of individual meters, or submeters are proposed by the developer. (5) Newly constructed multiunit residential structures or newly constructed mixed-use residential and commercial structures for which an application for a water connection, or more than one connection, is submitted after January 1, 2018, shall at the owner's sole cost and responsibility have a measurement of the quantity of water supplied to each individual residential dwelling unit as a condition of new water service. The measurement may be by individual water meters or submeters. The owner shall be required to install and read such meters, unless otherwise agreed by the city. (6) Multifamily dwellings and common interest developments including apartment complexes, condominiums, townhomes, mixed use developments, and mobile home parks with common area amenities shall have a dedicated domestic - common area water service and meter. Ordinance No. NS -XXX Page 17 of 66 75C-19 (c) Meter required. Every water service, except fire protection services meeting conditions of section 39-27, shall have a meter installed in the service line in the public right-of-way or a dedicated easement. (d) Maintenance of customer's facilities. Customers shall prevent all waste of water and keep their service pipes, all plumbing fixtures, pipes, and other apparatus (except facilities owned by the city) in good repair and free from leakage and backflow at their own expense. Customers shall be liable for all damages which may result from the customer's failure to maintain such facilities in good repair and free from leakage and backflow. (e) Vacated premises. Water rates will be charged for vacated premises until the city is notified of the discontinuance of the use of water, and is requested to turn off the water. (f) Admittance to premises. Any authorized employee of the city shall be admitted at all reasonable hours to all appropriate parts of the premises supplied with water to see that the provisions of this article, resolutions adopted pursuant hereto, and administrative regulations published in accordance herewith are carried out. (g) Unauthorized turn -on or tampering. No one except an authorized employee of the city shall turn the water on or off from or to any premises at any city curb stop, or connect or disconnect, or in any way tamper with, any pipes in the meter boxes or with any other part of the water system of the city. (h) Resale or distribution. No customer supplied by the city shall commercially supply water to any other person on property other than the premises for which the customer has applied for service, except as may be permitted by special agreement with the agency. Water used by any customer shall be restricted to that use specified in the application or permit for such service. (i) Utility emergency requirements. All faucets, sprinklers, hose nozzles, or other continuous streams must be shut off promptly upon the sounding of an alarm of fire or upon notice of other emergency or major disaster. The water shall not be tumed on again until the fire is known to be extinguished or the required repairs have been made. Q) Shut -offs for extensions and repairs. The city reserves the right upon reasonable notice, if possible, at any time to shut off the water in its mains for the purpose of making extensions or repairs, or for other purposes, and all persons having boilers within their premises not supplied with tanks or cisterns, but depending upon the pipes of the city to keep them supplied, shall caution against the danger of collapse. (k) Responsible owner or applicant. In all cases where water is supplied to several tenants from one connection or tap, the city contracts only with the person Ordinance No. NS -XXX Page 18 of 56 75C-20 designated on the application. Failure by such person to comply with the provisions of this article, or with resolutions or regulations enacted or adopted pursuant hereto shall be sufficient cause to disconnect all service until such ordinances, resolutions or regulations are complied with. (1) Right of agency to install facilities. The city shall have the right at any time, and at any point for good cause, to install or change any water meter, detector check, backflow preventer, and fittings as required by this article, and the customer shall bear all costs for work so performed. Failure to pay for these facilities as set forth in this article shall relieve the city of any responsibility to provide any service and the service shall be disconnected until full payment of costs, interest, and penalties has been made to the city. (m) Nonliability of city for interruption in service. The city shall not be liable for damage resulting from interruption of service, shortage, insufficiency, or quality of supply. (n) Notice to customer for shutdown of service. In case of emergency or during normal water system maintenance and repair operations, whenever possible, all consumers affected will be notified prior to any shutdown of service. (o) Temporary shutdowns authorized. Temporary shutdowns may be restored by the city for improvements and repairs and the city shall not be liable for any loss or damage occasioned thereby. (p) Inspecting apparatus—Right of city. The city reserves the right of inspection of customer's apparatus at all times. (q) Resale of water prohibited. Where submeters are utilized, customer shall not resell to another person at any charge higher than his pro rata share of the total charges as rendered by the agency. (r) Pressure and supply. The city assumes no responsibility for loss or damage because of high water pressure or lack of water or pressure and merely agrees to furnish such quantities and pressure as are present in its general distribution system. The service is subject to shut down and variations required by the operation of the system. Any pressure regulation to control water pressure greater than 80 psi (pounds per square inch) shall be the responsibility of the customer. (s) Curb stops. There shall be a curb stop or valve in every attachment just inside the curb at a point to be designated by the city. The curb stop and box will be supplied by the city and shall be for its exclusive use and under its exclusive control. (t) Damage to customer's property. The city will not be responsible for damages to buildings or their contents from any break in a water pipe beyond the street Ordinance No. NS -XXX Page 19 of 56 75C-21 service box. Water customers shall, for their own protection, provide at their own expense another valve at the first suitable point beyond the meter. (u) Unused service connection. Any service connection which has been installed for a period of ten (10) years or more and has not been activated for ten (10) years shall be considered inactive and obsolete. Any person desiring water service for such premises or any portion thereof formerly supplied by the inactive service shall make application for a new service connection and pay the current charge therefore. (v) Meter box or hydrant obstruction. No person shall place trash, dirt, building materials, or other objects or obstructions on or around meter boxes or on, around, or adjacent to city hydrants. No person shall allow the meter boxes or hydrants to become obstructed or obscured by vines, trees shrubs, plants, or in any manner so as to make their location difficult to determine, or so as to interfere with or render difficult free access to, or use of, meter boxes or fire hydrants. In the event of obstruction or obscuring, notice shall be given by the agency to the property served by such meter, or adjacent to such hydrant; such notice shall contain the requirement that the obstruction be removed within twenty-four (24) hours. Where a meter box is obstructed or obscured so that it cannot be read, a "special investigation/meter reread fee" shall be made for returning to read the meter. (w) Responsibility of city. The city's responsibility ends at the customer's side of the meter or where the city's facilities terminate. (x) Above ground water system appurtenances. Fire hydrants and aboveground backflow prevention devices, fire connection stand pipes and above ground meters shall be entirely color coded as follows: Public fire hydrant White Private fire hydrants OSHA Red Irrigation meter and Backflow Prevention Device Green Domestic meter and Backflow Prevention Device Blue Fire Backflow Prevention Device and fire connection standpipes OSHA Red All colors shall follow the city's standard specification as established by the agency. (y) Fire hydrant location. Fire hydrants shall be installed in locations specified by the agency. If an applicant requests, and the agency approves, a change in the size, type, or location of specified hydrants may be made. The applicant shall pay any additional costs required to comply with the request. Sec. 39-24. - Temporary service; fire hydrant meters (a) Use of fire hydrants as temporary water service. City fire hydrants are provided for the primary purpose of extinguishing fire and shall be opened and used only by the agency, fire department, or such persons as may be authorized by permit. Ordinance No. NS -XXX Page 20 of 56 75C-22 No person shall draw water from any fire hydrant without a permit. Water shall be drawn from hydrants by use of a standard fire hydrant wrench, an auxiliary valve, and meter. Such auxiliary valve and meter shall be placed on the fire hydrant outlet with the auxiliary valve closed before any fire hydrant valve is opened. Any person using a fire hydrant without the required permit, tools, and meter may be charged with theft of water. (b) Permits shall be issued in the following manner: (1) Permits shall be issued for a period not to exceed six (6) months. Renewals for the same location or permits for a different location may be granted only after the city has inspected the meter for damage or tampering and has determined the amount of water used as recorded by the meter and that all bills due and payable have been paid or that the amount of deposit is adequate to cover all unpaid bills or cost of repairs. (2) Permits shall not be granted to any individual business or agency known to be in violation of any provision of this Code. (3) Permits shall show the name and address of the permittee, the date issued, the expiration date, the number and location of each hydrant from which water may be obtained, and the amount of money deposited. (4) Deposits may be transferred from one permit to another only if all the conditions of (1) and (2) above have been met. (c) Deposit and fees. Upon granting any permit under this section, the agency shall require the applicant to make a deposit as set by resolution of the city council sufficient to cover cost of meter with stand, auxiliary valve, and hydrant wrench. Deposits will be refunded upon the return of undamaged meter and tools and payment for water used. All or part of the deposit may be forfeited for failure to report the amount of water used monthly, for failure to pay any bill, or for failure to return any meter and tools issued to the permittee. (d) Fees. A daily meter rental fee as set by resolution of the city council, in addition to the cost of water used, shall be charged for each day the meter is in possession of the permittee. A minimum fee equal to the total of the daily rental charge for five.(5) days shall also be established. The rental and cost of the water used may be deducted from the deposit. (e) Timing. Upon completing the Fire Hydrant Meter Permit Application, a fire hydrant meter will be installed by the city at the location specified in the permit within forty-eight (48) hours of the completed application. Sec. 39-25. - Water measurement. 75C-23 Ordinance No. NS -XXX Page 21 of 56 (a) Every water service as defined in this chapter shall be metered (b) Water services shall be designated according to the type of use as defined in this chapter. (c) Only duly authorized employees or agents of the city shall be permitted to install water meters. Following the final acceptance of the water service and meter, the meter and the service connection shall belong to the city and are the sole property of the city. (d) Meters will be read at regular intervals for the preparation of regular bills and as required for the preparation of opening bills, closing bills, and special bills. Sec. 39-26. - Continuity of service. (a) The city will exercise reasonable diligence to fumish a continuous and sufficient supply of water to its customers and to avoid any shortage or interruption of delivery thereof. It cannot, however, guarantee a continuous or sufficient supply or freedom of interruption. (b) The city shall not be liable for interruptions or shortage of supply, nor for any loss or damage occasioned thereby. (c) Whenever, in the operation of the city's water system, interruption in the delivery of water to customers results from or is occasioned by cause other than the exercise by the city of its right to temporarily suspend the delivery of water for the purpose of making repairs or improvement to its system, notice of any such interruption will not be given to the customers of the city, but the city shall exercise reasonable diligence to reinstitute delivery of water. (d) The city, whenever it shall find it necessary for the purpose of making repairs or improvements to its system, shall have the right to temporarily suspend the delivery of water. In all such cases, as reasonable notice as circumstances will permit will be given to the customer, and the making of such repairs or improvements will be completed as rapidly as may be practicable and at such times as will cause the least inconvenience to its customers. Sec. 39-27. - Private fire protection service. (a) The use of separate fire protection services shall be limited to servicing structural and buildings fire sprinkler systems, fire hoses, on-site fire pumps, fire department connection standpipes, and fire hydrants. No such service shall be used for any purpose other than flushing, fire flow testing, and the extinguishment of fires. All such services shall be equipped with an approved double check valve assembly in accordance with section 39-29(i) at the expense of the owner. Ordinance No. NS -XXX Page 22 of 56 75C-24 (b) A private fire protection service required to be flow tested routinely shall be equipped with an appropriately sized fire service meter approved by the Orange County Fire Authority. (c) For non-residential tenant improvement projects that require a permit, plan check, or design review costing $50,000 or more, an approved double check valve assembly shall be installed on the existing private fire service. Sec. 39-28. - Fire flow tests. Fire flow tests shall be performed by a certified fire protection professional. An application shall be submitted and a permit issued to the individual requesting the test prior to conducting the test. The flow test must be witnessed by a representative of the agency. A fire flow application fee and a fire flow witness fee, as set by resolution of the city council, shall be the responsibility of the applicant. Sec. 39-29. - Protection of public water supply. (a) State regulations adopted. The regulations of the State of California related to Drinking Water Supplies, Title 17, as they are now in effect or as they may be amended in the future, insofar as the same are applicable to the protection of the water supply of this city, are hereby adopted, incorporated herein and made a part hereof. (b) Purpose; applicability. (1) The purpose of this section is: (A) To protect the public water supply against actual or potential cross - connection by isolating within the premises contamination that may occur because of some undiscovered or unauthorized cross -connection on the premises; (B) To eliminate existing connections between drinking water systems and other sources of water that are not approved as safe and potable for human consumption; (C) To eliminate cross -connections between drinking water systems and sources of contamination; and (D) To prevent the making of cross -connections in the future. (2) It is unlawful to make or maintain, for any period of time whatsoever, any cross -connection between plumbing pipes or water fixtures being served with water by the agency and any other source of water supply, or to maintain any sanitary fixture or other appurtenances or fixtures which may cause or allow backflow of water or other substances into the water supply system of the city and/or the service of water pipes or fixtures of any customer of the city. Ordinance No. NS -XXX Page 23 of 56 75C-25 (3) No water service connection to any premises of a type specified in subsection (i) of this section shall be installed or maintained unless the public water supply is protected as required by applicable state regulations and this section. (c) Approval. (1) Each backflow preventer required hereunder shall be approved by the agency prior to installation and shall be installed by and at the expense of the customer for continued service or before a new service will be granted. (2) The agency shall approve a device when the device has received approval by the Foundation for Cross -Connection Control and Hydraulic Research of the University of Southern California (or other qualified organization as designated by the agency), and will provide desired service and reliability. The agency shall provide, upon request, to any affected customer, a list of approved devices. (d) Installation. (1) Devices shall be installed as close as practical to the customer's service connection and shall be installed above grade in an accessible location approved by the agency. (2) Devices shall have at least the same cross-sectional area as the water meter. In those instances where it is determined that a continuous water supply is necessary, two (2) sets of devices shall be installed in parallel. Where parallel devices are required, the sum of the cross-sectional areas of the devices shall be at least equivalent to the cross-sectional area of the meter. (e) Maintenance, testing, and records. (1) The customer shall test and service such devices at least once a year and immediately after installation, relocation, or repair. A report, in a form acceptable to the agency, which sets forth the results of such test(s) shall be filed immediately with the agency. The agency may require a more frequent testing schedule if it is determined to be necessary and all costs shall be borne by the customer. (2) Devices shall be serviced, overhauled or replaced whenever they are found to be defective. All costs of such service, overhaul or replacement, including testing, repair, and maintenance shall be borne by the customer. The agency may require device information, such as location and pictures, to be submitted with the test forms. (3) The agency will supply affected customers with a list of persons acceptable to the agency to test devices. Ordinance No. NS -XXX Page 24 of 56 75C-26 (4) The agency will notify affected customers when annual testing of a device is needed. Failure to notify shall not relieve the customer of the obligation to test and service its devices. (5) Upon the issuance of a third and final notice to test a device, the agency may impose a backflow preventer third -and -final -notice generation fee in an amount established by resolution of the city council. (6) The city reserves the right to hire a private tester to test the device and bill the customer for the cost of the test plus a backflow device testing administrative fee as set by resolution of the city council, which shall be the responsibility of the applicant, if a device has not been maintained and tested within six months, or one hundred eighty (180) days, from the date when the first notice regarding testing was mailed. Reasonable efforts to notify the customer of the impending testing will be made. (f) Backflow prevention device removal. (1) Notification and approval. The agency must be notified and approval must be obtained from the agency before a device is removed. (2) Removal in general. The use of a device may be discontinued and the device removed from service upon presentation of sufficient evidence to the agency to verify that a hazard no longer exists or is not likely to be created in the future. (3) Removal for relocation. A device may be relocated following confirmation by the agency that the relocation will continue to provide the required protection to satisfy installation requirements. A retest will be required, prior to return to service, following the relocation of the device. (4) Temporary removal for repair. A device may be removed for repair or service, provided water use is either discontinued until repair is completed and the device is returned to service, or the service connection is equipped with backflow protection approved by the agency. A retest will be required, prior to return to service, following the repair or service of the device. (5) Temporary removal for replacement. .A device may be removed and replaced, provided water use is discontinued until the replacement device is installed. All replacement devices must be approved by the agency prior to being put into service and must be commensurate with the degree of hazard involved. A retest will be required, prior to return to service, following the replacement of the device. (g) Water system survey. (1) Plans and specifications must be submitted to the agency upon request for review of possible cross -connection hazards for new or existing service connections. Ordinance No. NS -XXX Page 25 of 56 75C-27 If it is determined that a device is necessary to protect the public water system, the required device must be installed before service will be provided or continued. (2) The agency may conduct an on -premises inspection or reinspection to evaluate cross -connection hazards. Any customer which cannot or will not allow an on - premises inspection of their piping system shall be required to install the device the agency considers necessary. (h) User supervisor. At each premises where it is necessary in the opinion of the agency, a user supervisor shall be designated by and at the expense of the customer. This user supervisor shall be responsible for the monitoring of the devices and for avoidance of cross -connections. In the event of contamination or pollution of the drinking water system due to a cross -connection on the premises, the agency shall be promptly notified by the user supervisor so that appropriate measures may be taken to overcome the contamination. The customer shall inform the agency of the user supervisor's identity on, as a minimum, an annual basis and whenever a change occurs. (i) Type of protection required. (1) The type of protection that shall be provided to prevent backflow into the approved water supply shall be commensurate with the degree of hazard that exists on the customer's premises. The type of device shall be one of the following: (A) Approved air gap separation (hereinafter "AG"); (B) Approved double check valve assembly (hereinafter "DC"); or (C) Approved reduced pressure principle assembly (hereinafter "RP"). (2) The customer may choose a higher level of protection than required by the agency. The minimum types of backflow protection required to protect the approved water supply at the customer's water connection to premises, with varying degrees of hazard, are provided in Table 1 below. Situations which are not covered in Table 1 shall be evaluated on a case-by-case basis, and the appropriate backflow protection shall be determined by the agency. (3) In those instances where conditions warrant, the agency may modify the minimum installation herein indicated as appropriate to provide a degree of protection commensurate with the degree of hazard. TABLE 1. TYPE OF BACKFLOW PROTECTION REQUIRED FofBa mum Degree of Hazard pe ckflow Ordinance No. NS -XXX Page 26 of 56 75C-28 -- ------ - - - - J — — - - I F- 1 Aircraft and missile plants TiRP Protection 22. 1 Automotive plants RP 3.1 4. _ — Auxiliary water systems (interconnected) Auxiliary water systems (not interconnected) RP RP 5�- Beverage bottling plants RP 16------- Boilers-- RP--� 7. — -- - Breweries —� RP $TBuildings greater than 3 stories or greater than 34 feet in height from curb level DC 9_ Buildings with 2 or more service connections (interconnected) DC (10. Buildings with house pumps and/or potable water storage tank DC 11. Buildings with wastewater pumping and/or treatment plants (not interconnected) RP 12. T Canneries - l Car wash facilities----�—RP RP r- 114. Centralized heating and air conditioning plants 1 RP 115j-- Chemical plants 116.11 117.1 Chemically treated potable water systems Civil works (facilities not subject to city plumbing inspection) RP RP f184 Commercial laundries - RP X20. Cooling towers Dairies and cold storage plants AG RP 121. Dye works RP 22. — Film processing laboratories RP 23. Fire protection system with biological or chemical additives RP 24 25 Fire protection system with unapproved auxiliary water supply (not er interconnected) -� _- _.. __--____-- _ Fire protection system with unapproved auxiliary water supply (interconnected) DC --- _ RP T 26. Fire protection system with storage tanks or private reservoirs _ ' DC - 2i- 7. Fire protection systems with 2 or more service connections DC Ordinance No. NS -XXX Page 27 of 56 75C-29 Ordinance No. NS -XXX Page 28 of 56 75C-30 (interconnected) —� — Food processing plants RP — X28. 129. High schools and colleges------- olleges-- RP �30 __ — Holding tank disposal stations RP 31 — Hospitals (major complexes) �— RP 32. Irrigation systems RP 33. Laboratories using toxic materials RP �34. Manufacturing, processing, and fabricating plants using toxic materials RP 35. Manufacturing, processing, and fabricating plants using nontoxic RP materials 136.1 Medical and dental buildings RP— ff37. I—�--- _ Mobile home parks I DC 38. — Motion picture studios RP 139.1 _ Oil and gas production facilities 1 RP 40. Paper and paper production plants RP 41. Plating plants Rp X42 _— Premises where recycled water is used (not interconnected) RP I4iF ^ Radioactive materials processing facilities — RP 44. Restricted, classified, or other closed facilities RP — �— -- Rubber plants RP 1f45.---- 46.1 Sand and gravel plants RP 47. ---- — _— Sewage and storm drainage facilities — RP F, FA; premises where there is a repeated history of cross -connections beingestablished or reestablished RP 49 Unapproved water systems or private piping systems constructed without the approval of the agency or the city's planning and building AG FPremises agency where entry is restricted so that inspections for cross i Iconnections cannot be made with sufficient frequency or at sufficiently I RP (I —�___-----_short notice to assure that they do not exist Ordinance No. NS -XXX Page 28 of 56 75C-30 Q) Discontinuance of water service. (1) Service of water to any premises may be discontinued by the agency, after notice, if a device is not installed, tested, and maintained as required by this section, or if any defect is found in an installed device, or it is found that a device has been removed or bypassed, or if unprotected cross -connections exist on the premises, or if the agency determines a hazard or potential hazard exists. Service will not be restored until such conditions or defects are corrected. (2) When the agency encounters water uses that represent a clear and immediate hazard to the potable water supply, the agency shall institute the procedure for discontinuing the city water service. (3) Conditions or water uses that create termination of water service shall include, but are items: (A) Refusal to install a required device. (B) Refusal to test a device. (C) Refusal to repair a faulty device. (D) Refusal to replace a faulty device. a basis for refusal to provide or not limited to, any of the following (E) Direct or indirect connection between the public water system and a sewer line. (F) Unprotected direct or indirect connection between the public water system and a system or equipment containing contaminants. (G) Unprotected direct or indirect connection between the public water system and an auxiliary water system. (H) A situation which presents an immediate health hazard to the public water system. (4) Water service termination procedures shall include the following items: (A) For conditions (3)(A), (3)(B), (3)(C) or (3)(D) of subsection 0) above, the agency will terminate service to a customer's premises after written notice has been sent, specifying the corrective action needed and the time period in which it must be done. If no action is taken within the allowed time period, water service may be terminated. Ordinance No. NS -XXX Page 29 of 56 75C-31 (B) For conditions (3)(E), (3)(F), (3)(G) or (3)(H) of subsection (j) above, the agency will take the following steps: (i) Make a reasonable effort to advise customer of intent to terminate water service. (ii) Terminate water supply and lock service valve. The water service will remain inactive until correction of violations has been approved by the agency. (k) Information requests. Upon request, the agency will provide interested parties with copies of section 39-29, rules and regulations for the testing and maintenance of devices, and such other advice, information, illustrative sketches, drawings and data as may be necessary to familiarize the customers, engineers, architects and others with agency requirements. Sec. 39-30. - Certification of water supply. Before the issuance of any permit or variance or the signing of any tract map, parcel map, lot split, or improvement plans, a certification must be obtained from the agency stating that the water system supplying the property meets the requirements for the last rate classification of the city by the American Insurance Association in supply, distribution facilities and fire hydrants, or that the property is or will be served by the city. Sec. 39-31. - Greywater systems. No person shall construct or maintain a greywater system, as defined by the Water Code of the State of California. In order to avoid the potential health hazard presented by a greywater system, the public works agency may discontinue water service to any premises on which a greywater system has been installed until such system is removed. Sec. 39-32. - Recycled water—Source of recycled water. (a) The city has agreed to buy recycled water from the Orange County Water District (OCWD) and to resell such recycled water, as contractor for OCWD, to water users located within the jurisdictional and service boundaries of the city. (b) Any city obligation to deliver recycled water is conditioned upon OCWD's completing and making operational the recycled water treatment and distribution system known as the Green Acres Project, including the distribution pipeline system necessary to provide recycled water to users; upon OCWD's making recycled water available for sale to users; and upon issuance of all necessary permits, certificates, and approvals by all federal, state and local regulatory agencies having jurisdiction over the construction and operation of water recycling facilities and over the production, distribution, sale and use of recycled water. Any obligation is further conditioned upon OCWD being able to acquire acceptable right-of-way access from the Green Acres Project facilities to the Ordinance No. NS -XXX Page 30 of 56 75C-32 users' property for distribution pipeline purposes, and upon approval of all federal, state, and local agencies having regulatory jurisdiction or grant -funding responsibilities with regard to the Green Acres Project facilities. (c) The city shall have no obligation to supply recycled water beyond that usable by the user on the property set forth in any recycled water user agreement. Recycled water furnished by the city shall be provided solely for the user's use, and the user shall not resell any such recycled water. Sec. 39-33. - Same—Pressure and quality of water purchased by user. Subject to compliance by OCWD, all recycled water delivered to users from Green Acres Project facilities shall conform to the current and future requirements established by the California Regional Water Quality Control Board -Santa Ana Region, state and local health departments, and federal, state and county agencies having jurisdiction to establish minimum standards for the quality of recycled water. Recycled water shall be delivered on a continuous basis at the minimum and maximum pressures set forth in the user's recycled water user agreement. Sec. 39-34. - Same—Ownership of valves and meters. (a) The city shall own, operate, and maintain the control valves located on each side of the meter and the metering device installed on the service line to the user's property. At locations where recycled water is used exclusively, the city may convert existing service connections (including control valves and meters) from potable to recycled water system connections. The user will own and maintain all facilities on the user's side of the customer control valve. The user shall be held responsible and charged for all water passing through meters at its property. (b) The city reserves the right to determine the size of the recycled water pipeline, the type of pipe, the service connection required, and any and all other appurtenances related to recycled water usage which are located on the property location to which recycled water will be delivered. Sec. 39-35. - Same—Purchase of water by user. (a) The city will supply recycled water to the user, and the user shall purchase recycled water for the location(s) and purposes and in the estimated amounts set forth in its recycled water user agreement. (b) The user shall commence taking deliveries of recycled water after receiving written notice of availability from the city. To the extent that the user's then - current use of its property necessitates the use of recycled water, the user will continue to purchase recycled water from the city. In the event that the current use of the property is discontinued or is modified, recycled water service may be terminated by mutual agreement in writing by the city and the user. Ordinance No. NS -XXX Page 31 of 56 75C-33 (c) The city reserves the right to control and schedule the use, distribution, and delivery of recycled water if, in its reasonable discretion, control and scheduling are necessary to maintain the recycled water distribution system in acceptable working condition. Scheduling may include, but is not limited to, varying rates of pressure and programming deliveries to the user and/or to portions of the user's property. (d) If at any time during the construction or operation of the Green Acres Project facilities, real or potential hazards, or evidence of a hazard, are found to exist, the city reserves the right and has the authority to terminate recycled water service to the user's property in the interest of protecting the public health. Service shall be reinstated upon abatement of the hazard. If service is terminated pursuant to this section, the city may supply the user with water from its potable water sources or an alternative recycled water system at the then -current recycled water rate for up to thirty (30) days; after thirty (30) days and until such time as the delivery of recycled water is reinstated, the user shall pay the potable water rate if potable water is supplied or the recycled water rate if an alternative source of recycled water is used. (e) In the event the lack of delivery of recycled water is the result of an operational fault of the city, the rate for the water delivered through the system will be equal to the then -current rate for recycled water for a period of up to thirty (30) days; thereafter, the user shall pay the regular potable rate. If the inability to deliver is beyond the control of the city, the city shall charge and the user shall pay the regular potable rate. (f) In the event that OCWD ceases the production and distribution of recycled water or in the event that the treatment criteria imposed by any regulatory authority exceed or differ significantly from those existing as of the date of the execution of the recycled water user agreement and application for water service, the city shall supply potable water at the then -established potable water price. The city shall incur no liability to the user by reason of the temporary cessation of delivery of recycled water or by reason of the termination of such delivery. Sec. 39-36. - Same—Price of recycled water. The price to be paid by the user for all recycled water delivered by the city shall be established by resolution of the city council, subject to the provision of the user's recycled water user agreement. Sec. 39-37. - Same—Payment. Recycled water accounts shall be subject to section 39-20 of this chapter. Sec. 39-38. - Same—Limitation on use. Ordinance No. NS -XXX Page 32 of 66 75C-34 Recycled water delivered from OCWD's Green Acres Project facilities has restricted uses. The user shall use recycled water only upon the property of the user and only for those uses and purposes provided for in the recycled water user agreement and which are legally permissible under the laws of the state, as well as the rules and regulations adopted by the city, by OCWD and by all regulatory agencies having jurisdiction, including but not limited to the California Regional Water Quality Control Board -Santa Ana Region, and by state and local health departments. Sec. 39-39. - Same—Rules and regulations. The user shall comply with all rules and regulations, including the "Green Acres Project, Project Rules and Regulations for the Use of Recycled Water," promulgated now and in the future by OCWD, the city, the State of California or the federal government relating to the sale, distribution, transportation, and use of recycled water. Sec. 39-40. - Same—Responsibility. (a) The city's responsibility for the recycled water delivered to the user ends at the user's side of the meter or, in the case of an unmetered or other special installation, where the city's facilities terminate. Operation, management, maintenance, and monitoring with respect to the storage, distribution, and other facilities under the control of the user shall be the responsibility of the user. (b) The user shall allow the city and/or OCWD's representatives to enter the user's premises for monitoring, inspecting, sampling, analysis, and observation of the user's recycled water facilities at all reasonable times. The user, its personnel, representatives, and agents shall cooperate with the city and/or OCWD in such activities and assist in the performance of operational tests as required. If a determination is made that the user's facilities are not in compliance with city and/or OCWD requirements, the user shall promptly initiate and diligently pursue to completion action that will correct the conditions causing the noncompliance. If the user shall fail to comply with its obligations specified herein, the city may, at the user's expense, make such repairs, improvements, changes, or undertake such other activities as are necessary to comply with the user's obligations. Such expense shall be payable to the city by the user upon demand, or the city may discontinue recycled water service until such time as the user makes appropriate repairs and the city inspects the user's system to assure conformance with applicable rules and regulations. Sec. 39-41. - Same—Applicability of chapter. Recycled water accounts and service shall be subject to and shall comply with all the provisions of this chapter, except as specified in sections 39-32 through 39-40. In the event of conflict between sections 39-32 through 39-40 and the other portions of this chapter, the provisions of sections 39-32 through 39-40 shall control. Sec. 39-42. - Same—Agreement to be signed. Ordinance No. NS -XXX Page 33 of 56 75C-35 Before any recycled water service is provided, the user shall sign a recycled water user agreement with the director of public works, who is hereby designated as the agent of the city to enter into such agreements, in addition to filing or obtaining any applications or permits required by this chapter. Secs. 39-43-39-49. - Reserved. SECTION 6. Article III of Chapter 39 of the Santa Ana Municipal Code is hereby repealed in its entirety. SECTION 7. Article III of Chapter 39 of the Santa Ana Municipal Code is hereby reenacted in its entirety as follows: ARTICLE III. - SEWERS Sec. 39-50. - Definitions. As used in this article: Agency means Public Works Agency, City of Santa Ana. Best management practices (BMPs) means schedules of activities, a prohibition of practices, maintenance procedures, and other management practices to prevent or reduce the introduction of FOG to the sewer facilities. Change in operations means any change in the ownership, food types, or operational procedures that have the potential to increase the amount of FOG generated and/or discharged by FSEs in an amount that alone or collectively causes or creates a potential for SSOs to occur. Director of public works means the chief administrative officer of the department of public works, City of Santa Ana. Discharger means any person who discharges or causes a discharge of wastewater directly or indirectly to a public sewer. Discharger shall mean the same as user or customer. Enforcing attorney means the city attorney or district attorney acting as counsel to the city and his/her designee. Fats, oils, and grease (FOG) means any substance such as a vegetable or animal product that is used in, or is a byproduct of, the cooking or food preparation process, and that turns or may turn viscous or solidifies with a change in temperature or other conditions. Ordinance No. NS -XXX Page 34 of 56 75C-36 FOG control program means the FOG control program required by and developed pursuant to Statewide General Waste Discharge Requirements for Sanitary Sewer Systems (State Water Resources Control Board Order No. 2006-0003-DWQ). FOG control program manager means the agency's Water Resources Manager and persons designated by and under his/her instruction and supervision, who are assigned to administer the FOG control program. A consultant retained under contract by the city may be designated as the FOG control program manager. Food grinder means any device installed in the plumbing or sewage system for the purpose of grinding, chopping, macerating, or pressing food waste or food preparation byproducts for the purpose of disposing some or all food waste into the sewer system. Food service establishment (FSE) means food facilities defined in the California Retail Food Code, and any commercial entity, operating in a permanently constructed structure such as a room, building, or place, or portion thereof, maintained, used, or operated for the purpose of storing, preparing, serving, or manufacturing, packaging, or otherwise handling food for sale to other entities, or for consumption by the public, its members, or employees, and which has any process or device that uses or produces FOG, or grease vapors, steam, fumes, smoke or odors that are required to be removed by a type I or type II hood, as defined in the California Retail Food Code. Grease control device means any grease interceptor, grease trap, or other mechanism, device, or process, which attaches to, or is applied to, wastewater plumbing fixtures and lines, the purpose of which is to trap or collect or treat FOG prior to it being discharged into the sewer system. A grease control device may also include any other method proven to reduce FOG subject to the approval of the director of public works. Grease interceptor means a multi -compartment device that is constructed in different sizes and is generally required to be located outdoors and underground between a FSE and the connection to the sewer system. These devices must be cleaned, maintained, and have the FOG regularly removed and disposed of in a proper manner to be effective. Also referred to as gravity grease interceptor or GGI. Grease removal device means a type of hydro -mechanical grease interceptor that automatically and mechanically removes non -petroleum fats, oils, and grease from the interceptor, the control of which is either automatic or manually initiated. Also referred to as GRD. Grease trap means a grease control device that is used to serve individual fixtures. These have a limited effect and should only be used in those cases where the use of a grease interceptor or other grease control device is determined to be impossible or impracticable. Also referred to as hydro -mechanical grease interceptor or HGI. Ordinance No. NS -XXX Page 35 of 56 75C-37 Hot spots means areas in sewer lines that have experienced sanitary sewer overflows that must be cleaned or maintained frequently to avoid blockages of sewer system, or require maintenance that otherwise would be unnecessary. Inflow means water entering a sewer system through a direct stormwater runoff connection to the sanitary sewer, which may cause an almost immediate increase in wastewater flows. Infiltration means water entering a sewer system, including sewer service connections, from the ground through such means as defective pipes, pipe joints, connections, or manhole walls. Interference means any discharge which, alone or in conjunction with discharges from other sources, inhibits or disrupts the city's sewer system or is a cause of violation of federal or state environmental laws. New construction means any structure planned or under construction for which sewer connection permits have not been issued. Lower sewer lateral means that portion of the sewer lateral that extends from the sewer main to the private property line. Person means any individual, partnership, firm, association, corporation or public agency, including the state and the United States of America. Private sanitary sewer overflow means any surface spill, loss, or discharge of untreated or partially treated wastewater resulting from blockages or other problems within a privately owned sewer lateral. Remodeling means a physical or operational change causing generation of FOG that exceeds the current amount of FOG discharged to the sewer system by the FSE in an amount that alone or collectively causes or creates a potential for FOG discharge to the sewer system; or requires either a discretionary land use approval, building permit, or plumbing permit, and involves any one or combination of the following: (1) Under slab plumbing in the food processing area; (2) An increase in the net public seating area; (3) An increase in the size of the kitchen area; or (4) Any change in the size or type of food preparation equipment. Rules and regulations means non -punitive rules and regulations as established by the director of public works to implement this section and the FOG control program. Ordinance No. NS -XXX Page 36 of 56 75C-38 Upper sewer lateral means that portion of the sewer lateral that extends from the private property line to the structure to which it connects. Sanitary sewer overflow (SSO) means a surface sewer spill, loss, or discharge of wastewater from a sanitary sewer system. Sewer district means sewer assessment districts formed for the purpose of financing and constructing public sewer systems owned and operated by the city. Sewer facilities means any and all facilities used for collecting, conveying, pumping, and disposing of wastewater. Sewer facilities shall mean the same as sewer system. Sewer lateral means that entire connecting sewer line running from the sewer main to the private property line and extending to the structure to which it connects. Sewer main means the main line sewer, used as a trunk line or major channel of passage for transporting sewage and waste, constructed in a street, highway, alley, place, or right -or -way dedicated to public use. It shall not include sewer laterals or any portion of them. Waste means sewage and any and all other waste substances, liquid, solid, gaseous or radioactive, associated with human habitation or of human and animal nature, including such wastes placed within containers of whatever nature prior to and for the purpose of disposal. Wastewater means the liquid and water -carried wastes of the community and all constituents thereof, whether treated or untreated, discharged into or permitted to enter a public sewer. Sec. 39-50.1. - Ownership. (a) The City shall in no way whatsoever be responsible for any damage to persons or property because of any leakage, breakage, or seepage from, or accident or damage to, any sewer pipe or its appurtenances located on any private premises; nor shall the City be responsible for or on account of any damage, injury, or loss caused directly or indirectly by the existence on private premises of any sewer pipe or its appurtenances. (b) A sewer lateral from its connection to a building on the property to its point of connection with the sewer main, inclusive of both the upper and lower sewer lateral, shall remain the responsibility of the property owner or user with regard to maintenance, repair and upkeep. All sewer laterals shall be maintained by the owner of the property or user served by such lateral in a safe and sanitary condition so that there is no seepage of waste at any point up to and including the junction of the sewer lateral and Ordinance No. NS -XXX Page 37 of 56 75C-39 the sewer main and so that passage of waste through the lateral to the sewer main is free from stoppage and obstruction. All devices and safeguards that are required by this chapter for the operation thereof shall be maintained in good working order. Sec. 39-50.2 - Repair by city forces. (a) Repair and maintenance of all sewer mains dedicated to the city shall be the responsibility of the city's sewer enterprise. (b) Except as provided herein, repair and maintenance of all privately owned sewer mains and all lateral lines, equipment, and appurtenances connected to the city sewer mains shall be the responsibility of the owneriuser, and shall meet the requirements contained in this article. (c) The city's sewer enterprise may perform the repair and maintenance of all lower sewer lateral lines within the public right-of-way, at the discretion of the director of public works and so long as funds are available in the sewer enterprise to perform such repair and maintenance in accordance with Resolution NS -2479. Sec. 39-51. - Mandatory connections. (a) All buildings or other structures which contain any plumbing fixtures and which are located within any sewer district or district serviced by a public sewer must be connected to a public sewer. (b) -Whenever any property shall be included in a sewer district or area served by a public sewer, every building or other structure located on such property and containing any plumbing fixtures shall, within ninety (90) days after completion of the public sewer in such district or area, have all such fixtures connected to the such public sewer, and all cesspools or septic tanks on such property shall be disconnected and completely filled with good, sound earth at the time the sewer connection is made; provided, however, if the property has been, previous to its inclusion in a sewer district, connected to a public sewer and if such connection is approved by the director of public works, such connection shall be considered as complying with the provisions of this section. Sec. 39-52. - Connection outside of a sewer district; permit required Any lot or any building or structure on any lot located within the city, but outside of an existing sewer district or area served by a public sewer, may be connected with a public sewer, but no person shall make any such connection unless and until he shall have ' been granted a sewer permit for such connection and unless and until such person or the owner of such lot or parcel or his duly authorized agent, shall have paid to the agency an amount equal to that which would have been assessed to such lot or parcel had it been in the district assessed for the existing sewer to which the connection Ordinance No. NS -XXX Page 38 of 56 75C-40 is to be made. The amount may be reduced at the discretion of the director of public works to allow for extra length of house sewer or connecting sewer if necessary. Sec. 39-53. - Connection permit required; determination of fee. (a) Except as provided in subsection (b) below, no person shall make any sewer connection unless a permit shall have been applied for and issued by the director of public works. No permit for such connection shall be issued by the director of public works as provided in this section unless the application is accompanied by the payment of a fee to the agency in an amount which the director of public works shall determine to be the applicant's proportionate share of the cost of construction of such public sewer, as prescribed in subsection (c). (b) Whenever a main sewer line is replaced by a new line, the laterals connected to the former line shall be connected to the new line and the entire lower lateral shall be reconstructed or rehabilitated as part of the installation thereof. In such event, no permit shall be required from the owner or occupant of any existing premises thus reconnected. (c) The sewer connection fee for the applicant's proportionate share of the cost of public sewer construction shall be computed on the following basis: (1) The fee shall be an amount equal to the assessment per fixture unit, multiplied by the net increase in fixture units on the parcel or parcels for which sewer connection application is made over the total fixture units previously serviced by any sewer line to which such parcel or parcels were connected. The number of fixture units assigned to each plumbing fixture shall be as provided in the California Plumbing Code. (2) In all cases of sewer connection application for the servicing of a commercial laundry or restaurant, a fee in the amount of the standard cost per fixture unit multiplied by thirty (30) fixture units per clothes washing or dishwashing machine shall be assessed in addition to other fee assessments pursuant to subparagraph (1) above. (3) The city council shall, from time to time, establish by resolution the current assessment per fixture unit and the sewer connection application fees resulting therefrom in accordance with this section. (4) All fees collected shall be deposited into the sewer connection fee fund pursuant to article VII of chapter 13. Sec. 39-54. - Development conditioned upon sewer line construction. The director of public works shall review building permit applications for the purpose of determining whether the proposed development would result in an overload of existing sewer line capacity. No building permit which would result in such overload Ordinance No. NS -XXX Page 39 of 56 75C-41 shall be approved unless a sewer line of sufficient capacity be first constructed or unless the city and the applicant enter into an agreement for its subsequent construction. In determining the necessary sewer line capacity, the director of public works shall take into account the anticipated future development of all parcels that use or will use the sewer line to be constructed. The city may enter into an agreement with any person constructing a sewer line pursuant to this section by which such person, or his successor -in -interest, shall be reimbursed for costs of construction of a sewer line, to the extent they exceed such person's own sewer connection fees due under section 39-53, solely from revenues in the sewer connection fee fund established by article VII of chapter 13 of this code. Any such agreement may provide that any fee that would otherwise be due pursuant to section 39-53 from the contracting party shall be a credit on the contracting party's right to receive reimbursement, in which case no payment of the fee to the city shall be required from the contracting party. Sec. 39-55. - General regulations. (a) Maintenance of discharger's facilities. Dischargers shall prevent the discharge of FOG and prohibited wastes pursuant to section 39-58 and keep their sewer laterals, cleanouts, and other apparatus (except facilities owned by the city) in good repair and free from leakage and blockages at their own expense. Customers shall be liable for all damages which may result from the customer's failure to maintain such facilities in good repair and free from leakage and blockages. (b) Vacated premises. Sewerage rates will be charged for vacated premises until the city is notified of the discontinuance of the use of water and is requested to turn off the water. (c) Admittance to premises. Any authorized employee of the city shall be admitted at all reasonable hours to all appropriate parts of the premises supplied with sewerage service to see that the provisions of this article, resolutions adopted pursuant hereto, and administrative regulations published in accordance herewith are carried out. (d) Responsible owner or applicant. In all cases where sewerage service is being provided to several tenants from one connection, the city contracts only with the person designated on the application. Failure by such person to comply with the provisions of this article, or with resolutions or regulations enacted or adopted pursuant hereto, shall be sufficient cause to disconnect all service until such ordinances, resolutions, or regulations are complied with. (e) Damage to discharger's property. The city will not be responsible for damages to buildings or their contents from any blockage in any portion of a sewer lateral. (f) Unused sewer lateral. Any sewer lateral connection which has been installed for a period of ten (10) years or more and has not been activated for ten (10) years shall be considered inactive and obsolete. Any person desiring sewerage service Ordinance No. NS -XXX Page 40 of 56 75C-42 for such premises or any portion thereof formerly served by the inactive sewer lateral shall make application for a new sewer lateral connection and pay the current charge therefore. (g) Facilities owned by city. The city's ownership of sewer facilities ends at the point of connection between the sewer main and the sewer lateral, or, in other special installations, where the city's facilities terminate. Sec. 39-55.1. - Sewerage service charge—Purpose. In order to reimburse the city, in part, for its service in transporting sewerage from a water utility customer or other person using the city -owned sewer system and facilities to Orange County's publicly owned treatment works and related infrastructure, and to operate, maintain, repair, and replace the city -owned sewer system and facilities, it is appropriate for the city to charge a sewerage service fee. This charge does not duplicate any existing fee, charge, levy, or other toll currently collected by any public agency, and is intended to be, and shall be interpreted as, distinct and separate from any current or future (a) sewer standby or availability charge or assessment; (b) special benefit assessment or special tax imposed pursuant to state or local law; (c) sewer connection charge or sewer capacity charge paid in connection with or as a condition of approving an application for sewer service; or (d) mitigation fee imposed on new development pursuant to state law (California Government Code section 66000 et seq.) or local law. Where appropriate, words and phrases used in sections 39-55.1-39.55.5 shall have the same meaning as given them under article II of this chapter. Sec. 39-55.2. - Same—Establishment. (a) Except as provided in section 39-55.3, upon each water utility customer of the city there shall be imposed, in addition to the commodity charge for usage of city water, a sewerage service charge. All sewerage service charges imposed pursuant to this subsection, together with all charges imposed pursuant to subsections (b) and (c) below, shall be due and payable at the same time and in the same manner and subject to the same penalties for unsatisfied fees, charges, and penalties as provided in section 39-20 of this Code for payment of municipal utility services account/billing statements for water utility services pursuant to article II of this chapter, but shall be listed as separate line items on the municipal utility services accountibilling statement. The sewerage service fee shall be charged based upon the volume of usage of the city's sewer system by the water utility customer, as measured by metered water service. (b) Except as provided in section 39-55.3, a sewerage service charge shall be imposed upon any person who receives potable water service from a municipal water provider other than the city or from a private water provider, and who discharges into the city -owned sewer system and facilities. The sewerage service charge shall be made upon the volume of usage of the city's sewer system by the person, as measured by metered water service or other means approved by the director of public works or designee. Ordinance No. NS -XXX Page 41 of 56 75C-43 (c) Sewer system capital recovery charge. Customers receiving sewer service will be charged a sewer system capital recovery fee as established by resolution. (d) Lower sewer lateral replacement charge. Customers receiving sewer service will be charged a sewer lateral repair fee as established by resolution. (e) Fats, oils, and grease control program. Food service establishments and food facilities receiving sewer service will be charged a fats, oils, and grease control program charge as established by resolution. Sec. 39-55.3. - Same—Exceptions. The following types of connections shall not be liable for payment of the sewerage service charge: (a) Fire protection service connections when separately metered; (b) Irrigation service connections when separately metered; (c) Any individual, partnership, association, corporation, or agency of government that is not connected to the city's sewerage system; provided, however, that it shall be the obligation of the individual, partnership, association, corporation or agency of government to present evidence of this fact to the city; or (d) Any water utility customer who has not received city -supplied water during a billing period. Sec. 39-55.4. - Same—Setting charge. The city council shall, from time to time, set a sewerage service charge in accordance with applicable law. All monies collected from the sewerage service charge, including penalties and interest for late payment, shall be deposited into the sewerage enterprise fund established pursuant to chapter 13 of this code. Sec. 39-55.5. - Same—Delinquencies. (a) Sewerage service charges and other sewerage service related charges established under section 39-55.2 and any penalties accrued for failure to make timely payment therefore shall be a civil debt owing to the city. (b) In the event that the owner and occupant of the premises or property receiving sewerage service are the same, then said civil debt against such customer shall constitute a lien against said property upon recordation following appropriate action by the city council following substantial compliance with all provisions of Ordinance No. NS -XXX Page 42 of 56 75C-44 California Government Code section 54354 et seq., as it may be amended from time to time, including notice and an opportunity to be heard; except as may be provided therein. As a separate and distinct remedy, the city attorney is authorized to bring suit pursuant to California Government Code section 54356. (c) Establishment of a lien against the property shall remove said sewerage charge(s) from the City's regular consolidated municipal utility services account/billing statement and toll the accrual of additional penalties therefore under section 39-20 of this Code. (d) The city shall not disconnect water utility service for failure to pay the sewer service charge, unless such failure is accompanied by a customer's failure to pay the water utility service, in which case disconnection of water utility service shall be governed by article II of this chapter. Sec. 39-56. - Fats, oils, and grease control—Purpose and policy. (a) The purpose of this section is to allow the maximum beneficial public use of the city's sewer services and facilities while preventing blockages of the sewer lines resulting from discharges of fats, oils, and grease (FOG) to the sewer facilities and to specify appropriate FOG discharge requirements for FSEs. (b) The purpose of this section is to comply with federal, state, and local policies regarding sanitary sewer overflows and to allow the city to meet applicable standards and provisions for the regulations of wastewater or waste containing FOG discharges to the sewer facilities. Sec. 39-56.1. - Same—Rule and regulations and interpretations. (a) The director of public works is hereby authorized and directed to promulgate rules and regulations consistent with the provisions of this section as may be necessary or desirable to aid in administration of this section and the FOG control program. Any such rule or regulation may be added, modified, or deleted as necessitated by changes in law, increased demands of regulatory agencies, or technological improvements or advances. The rules and regulations shall be filed in the office of the director of public works and maintained in an orderly manner readily accessible to the public. Further, the city will provide a copy of the rules and regulations to all FSEs at the time of initial inspection for compliance with this section. The burden to secure and comply with the rules and regulations shall be upon the FSE and in accordance with the goals and purposes of the FOG control program. (b) The city manager, the director of public works, and persons designated and under the instruction and supervision of any of them, may investigate compliance of this chapter. Sec. 39-56.2. - Same—Prohibitions. 75C-45 Ordinance No. NS -XXX Page 43 of 56 (a) Prohibitions. The following prohibitions shall apply to all FSEs: (1) The discharge into the sewer system of FOG that may accumulate and/or cause or contribute to blockages in the sewer system or at the sewer system lateral, except as provided herein. (2) The installation of food grinders in the plumbing system of new constructions of FSEs. All existing food grinders shall be removed from FSEs within one hundred eighty (180) days of the effective date of this section. (3) The introduction of any additives into a FSE's wastewater system for the purpose of emulsifying FOG, unless a specific written authorization from the FOG control program manager is obtained. (4) The disposal of cooking oil into drainage pipes. (5) The discharge of wastewater from dishwashers into any grease trap or grease interceptor. (6) The discharge of wastewater with temperatures in excess of 140°F to any grease control device, including grease traps and grease interceptors. (7) The use of biological additives for grease remediation or as a supplement to interceptor maintenance, without prior authorization from the FOG control program manager. (8) The discharge of waste from toilets, urinals, washbasins, and other fixtures containing fecal materials to sewer lines intended for grease interceptor service. (9) The discharge of any waste, including FOG and solid materials removed from the grease control device, to the sewer system. (b) Dishwashers and food waste disposal units shall not be connected to or discharged into any grease trap. Sec. 39-56.3. - Same—Best management practices required. All FSEs shall implement best management practices (BMPs) in their operation to minimize the discharge of FOG to the sewer system. The requirements and guidelines for BMPs are specified in the rules and regulations. Sec. 39-56.4. - Same—FOG pretreatment. (a) FOG pretreatment required. Waste containing FOG shall be discharged into the sewer system only under the conditions of this section. The following facilities Ordinance No. NS -XXX Page 44 of 56 75C-46 shall discharge all waste from sinks, dishwashers, drains, and any other fixtures through which grease may be discharged, into an adequately sized, properly maintained and functioning grease interceptor before the discharge enters the sewer system, as well as provide a grease interceptor effluent monitoring port. (b) Newly constructed FSEs. (1) A newly constructed FSE(s) shall install grease interceptors prior to commencing the discharge of wastewater to the sewer system. (2) Existing FSEs undergoing remodeling or a change in operations shall be required to install a grease interceptor prior to commencing the discharge of wastewater to the sewer system. (c) Existing FSEs. Existing FSEs are not required to install a grease interceptor unless the FOG control program manager makes a determination that the existing FSE currently or potentially adversely impacts the sewer system by causing or contributing to: (1) FOG hot spots; (2) Interference; (3) SSOs; or (4) The FSE is not implementing or complying with BMPs as listed in the rules and regulations. (5) The FSE(s) shall install grease interceptors within one hundred eighty (180) days after receipt of official notice to install the interceptor unless the FSE obtains a conditional waiver as discussed below. (d) Conditional waiver of interceptor requirement. The FOG control program manager may provide a written waiver of the requirement to install a grease interceptor, listing the conditions upon which the waiver is granted, upon a finding of one or more of the following conditions set forth in subsections (1), (2), and (3) below: (1) The FSE can substantively demonstrate that it employs an alternative pretreatment technology that is equivalent to or better than a grease interceptor in controlling its FOG discharge. (2) There is no potential for FOG from the FSEs to cause or contribute to SSOS. (3) The FSE discharges of FOG are negligible and do not cause a significant impact to the sewer system. Ordinance No. NS -XXX Page 45 of 56 75C-47 (4) The FSE may use or may be required to install grease traps in lieu of installation of a grease interceptor when: (A) Installation of an interceptor cannot physically be accomplished; (B) There is not adequate slope for gravity flow between kitchen plumbing fixtures and the grease interceptor and/or between the grease interceptor and the private collection lines or the public sewer; and (C) No alternative pretreatment can be installed. Sizing and installation of grease traps shall conform to the current edition of the California Plumbing Code. Grease traps shall be maintained in efficient operating conditions by periodic removal of their full content, including sewage, FOG, floating materials, sludge, and solids. The maintenance frequency for all FSEs with grease traps is specified in FOG Control Program Rules and Regulations. (e) Revocation of waiver. The program manager may revoke a waiver upon a determination of one or more of the following: (1) Quantity of FOG discharge, as measured or as indicated by the size of FSEs based on seating capacity, number of meals served, menu, water usage, amount of on-site consumption of prepared food, and other conditions, has changed since the granting of the waiver such that the FSE is contributing to FOG discharges. (2) Adequacy of implementation and compliance with BMPs. (3) Change in sewer size, grade, and condition based on visual information. (4) Changes in operations that significantly affect FOG discharge. (5) Failure to comply with any of the conditions set forth in the waiver. (6) Any other condition deemed reasonably related to the generation of FOG discharges by the FOG control program manager. Sec. 39-56.5. - Same—Grease interceptor requirements. (a) All interceptors shall be of an approved type and adequately sized in conformance with the current edition of the California Plumbing Code and shall be installed, operated, and maintained as necessary to maintain compliance with the objectives of this section. (b) Fixtures, equipment, and drain lines located in the food preparation and cleanup areas of FSEs that are sources of FOG discharges shall be connected to the grease interceptor. Ordinance No. NS -XXX Page 46 of 56 75C-48 (c) Grease interceptors shall be constructed in accordance with the design approved by the FOG control program manager and in accordance with the current edition of the California Plumbing Code design requirements and shall have a minimum of two (2) compartments with fittings designed for grease retention. (d) The grease interceptor shall be installed at a location where it shall be at all times easily accessible for inspection, cleaning, and removal of accumulated grease. (e) Access manholes, with a minimum diameter of twenty-four (24) inches, shall be provided over each grease interceptor chamber and sanitary tee. The access manholes shall extend at least to finished grade and be designed and maintained to prevent water inflow or infiltration. The manholes shall also have readily removable covers to facilitate inspection, grease removal, and wastewater sampling activities. Sec. 39-56.6. - Same—Grease interceptor maintenance requirements. (a) Grease interceptors shall be maintained in efficient operating condition by periodic removal of the full content of the interceptor. The maintenance frequency for all FSEs with a grease interceptor is specified in the rules and regulations. (b) No FOG that has accumulated in a grease interceptor shall be allowed to pass into any sewer lateral, sewer system, storm drain, or public right-of-way during maintenance activities. (c) FSEs with grease interceptors are required to maintain data and information necessary to establish the maintenance grease interceptors. This documentation shall be provided to the program manager as requested. Sec. 39-56.7. – Same—Multiple FSEs on same property. Property owners with more than one FSE located on the same property shall be responsible for the installation and maintenance of a grease interceptor(s) and shall be responsible for compliance of the interceptor(s) with FOG program requirements. Sec. 39-56.8. - Same—Monitoring for compliance. In an effort to minimize the discharge of FOG to the sewer system, the FOG control program manager may require the FSE to monitor and/or sample wastewater for compliance with the rules and regulations. Sec. 39-56.9. - Same—Record keeping requirements. All FSEs shall be required to keep records in accordance with the rules and regulations established by the city under its FOG control program for no less than two (2) years. Required records include, but are not limited to, grease interceptor/trap Ordinance No. NS -XXX Page 47 of 56 75C-49 maintenance and cleaning logs, employee -training logs, waste hauling manifest, interceptor sampling data, and facility plumbing and mechanical plans. The FSE shall, upon reasonable request, make the records available to the program manager or his designee. Sec. 39-56.10. - Same—Inspection and sampling conditions. (a) The FOG control program manager or his designee may inspect or order the inspection of and sample the wastewater discharges of any FSE to ascertain whether the FSE is complying with all requirements of this section. The FSE shall allow the city access to the FSE premises, during normal business hours, for purposes of inspecting the FSE's grease control devices or interceptor, or reviewing the manifests, receipts, and invoices relating to the cleaning, maintenance, and inspection of the grease control devices or interceptor. Where a FSE has security measures in force, the FSE shall make necessary arrangements so that representatives of the city shall be permitted to enter without delay for the purpose of performing their specific responsibilities/inspections. (b) The FOG control program manager or his designee shall have the right to place or order the placement on the FSE's property such devices as are necessary to conduct sampling or metering operations. The FSE shall, without restriction, make available for inspection and copying by the program manager or his designee all notices, monitoring reports, waste manifests, and records including, but not limited to, those related to wastewater generation, and wastewater disposal. All such records shall be kept by the FSE for a minimum of two (2) years. Sec. 39-56.11. - Same—Right of entry. Persons or occupants of premises where wastewater is created or discharged shall allow the FOG control program manager or his designee reasonable access to all parts of the wastewater generating and disposal facilities for the purposes of inspection and sampling during all times the discharger's facility is open, operating, or any other reasonable time. No person shall interfere with, delay, resist, or refuse entrance to city representatives attempting to inspect any facility involved directly or indirectly with a discharge of wastewater to the city's sewer system. If entry is refused, the FOG control manager or his designee shall have recourse to the remedies provided by law to secure entry. Sec. 39-56.12. - Same—Emergency notification requirements. (a) In the event a FSE is unable to comply with any section condition due to a breakdown of equipment, accidents, or human error, or the FSE has reasonable opportunity to know that its discharge will exceed the discharge provisions of the this section, the discharger shall immediately notify the program control manager. If the material discharged to the sewer has the potential to cause or result in sewer blockages Ordinance No. NS -XXX Page 48 of 56 75C-50 or SSOs, the discharger shall immediately notify the local health department and the city. (b) Confirmation of this notification shall be made in writing to the FOG control program manager no later than five (5) working days from the date of the incident. The written notification shall state the date of the incident, the reasons for the discharge or spill, what steps were taken to immediately correct the problem, and what steps are being taken to prevent the problem from recurring. (c) Such notification shall not relieve the FSE of any expense, loss, damage, or other liability which may be incurred as a result of damage or loss to the city or any other damage or loss to person or property; nor shall such notification relieve the FSE of any charges, fees or other liability which may be imposed by this section or other applicable law. Sec. 39-56.13. - Same—Emergency suspension order. The city may, by order of the director of public works, suspend sewer service when the director of public works determines that such suspension is necessary in order to stop an actual or impending discharge which presents or may present an imminent or substantial endangerment to the health and welfare of persons, or to the environment; or may cause SSOs, sewer blockages, or interference to the city's sewer facilities; or may cause the city to violate any state or federal law or regulation. Any discharger notified of and subject to an emergency suspension order shall immediately cease and design the discharge of all wastewater containing FOG to the sewer system. Sec. 39-56.14. - Same—Nuisance Any condition that the FOG control manager determines may result in the discharge of waste, which causes or contributes to any sewer blockage, SSOs, obstruction, interference, damage, or any other impairment to the city's sewer facilities or to the operation of those facilities, shall constitute a threat to the public health, safety, and welfare, and is declared and deemed a public nuisance and may be summarily abated as such. Sec. 39-56.15. - Same—Violation of other laws. Any person acting in violation of this section also may be acting in violation of the Federal Clean Water Act or the California Porter -Cologne Water Quality Control Act and other laws and also may be subject to sanctions including civil liability. Accordingly, the enforcing attorney is authorized to file a citizen suit pursuant to Federal Clean Water Act Section 505(a), seeking penalties, damages, and orders compelling compliance, and other appropriate relief. The enforcing attorney may notify the Environmental Protection Agency, the California Regional Water Quality Control Board, or any other appropriate state or local agency, of any alleged violation of this section. Ordinance No. NS -XXX Page 49 of 56 75C-51 Sec. 39-56.16. - Same—Other civil remedies. (a) The enforcing attorney may file an action for civil damages in a court of competent jurisdiction seeking recovery of: (1) All costs incurred in enforcement of the section, including but not limited to costs relating to investigation, sampling, monitoring, inspection, administrative expenses, all other expenses as authorized by law, and consequential damages; (2) All costs incurred in mitigating harm to the environment or reducing the threat to human health; and (3) Damages for irreparable harm to the environment. (b) The remedies available to the city pursuant to the provisions of this article shall not limit the city's right to seek any other remedy that may be available by law. Sec. 39-57. - Infiltration and inflow into sewer system. All city -owned sewer lines and private on-site sewer lines and laterals should be constructed and maintained to prevent water infiltration into the sewer system. Private on-site sewer lines and public sewer lines shall be used only to convey raw sewage. Rainfall runoff sources (including but not limited to roof drains, site drains, inlets, uncovered wash area drains, etc.) are prohibited from connecting to any public or private sanitary sewer pipeline. Sec. 39-58. - Introduction of pollutants prohibited. No person shall introduce or cause to be introduced any of the following into the city's sewer system: (a) Pollutants that create a fire or explosion hazard in the sewer collection system or the publicly owned treatment works (POTW), including but not limited to waste streams with a closed cup flashpoint of less than 140° Fahrenheit or 60° Centigrade using the test methods specified in 40 CFR (Code of Federal Regulations) section 261.21. (b) Pollutants that will cause corrosive structural damage to the sewer collection pipes and structures, but in no case discharges with pH lower than 5.0, unless the sewer system is specifically designed to accommodate such discharges. (c) Solid or viscous substances in amounts which will cause obstruction to the flow in the sewer collection system or the POTW, resulting in interference. Ordinance No. NS -XXX Page 50 of 56 75C-52 (d) Any pollutant, including oxygen demanding pollutants, exerting biological oxygen demand, released in a discharge at a flow rate and/or pollutant concentration which will cause interference with the POTW. (e) Heat in amounts, which will inhibit biological activity in the POTW resulting in interference, but in no case heat in such quantities that the temperature at the POTW treatment plant exceeds 40° Centigrade (104° Fahrenheit) unless the approval authority, upon request of the POTW, approves alternate temperature limits. (f) Petroleum oil, non -biodegradable cutting oil, or products of mineral oil in amounts that will cause interference or pass through. (g) Pollutants which result in the presence of toxic gases, vapors, or fumes within the sewer collection system or the POTW in a quantity that may cause acute worker health and safety problems. (h) Any trucked or hauled pollutants. (i) Large volume discharges in a short period of time (slug flows) that adversely affect the operational capacity of the sewer. Sec. 39-59. - Private sewer overflows prohibited. (a) No person shall cause or create a condition which causes a private sanitary sewer overflow. When a private sanitary overflow is found to occur, it shall be the responsibility of the private property owner to: (1) Immediately prevent the continued discharge of wastewater onto the public right-of-way; (2) Capture and collect any overflowed or spilled wastewater and return it to the appropriate sewer facilities; (3) Clean and sanitize all affected areas, both within private property and public right-of-way, to the satisfaction of the director of public works; and (4) Comply with all other federal, state, and local health department requirements. (b) Any private property owner who causes or creates a condition which causes a private sanitary sewer overflow and or fails to satisfy the above mitigation responsibilities will be subject to administrative citations under Santa Ana Municipal Code section 1-21. If city personnel are dispatched to perform any of the actions outlined in this section, for any reason, the city reserves the right to charge the private property owner for staff time, equipment, and material spent. Such charges may be Ordinance No. NS -XXX Page 51 of 56 75C-53 billed directly to the private property owner or his/her designee or added to the owner's sewerage service utility account if one exists. (c) The remedies available to the city pursuant to the provisions of this article shall not limit the city's right to seek any other remedy that may be available by law. SECTION 8. Article V of Chapter 39 of the Santa Ana Municipal Code is hereby repealed in its entirety. SECTION 9. Article V of Chapter 39 of the Santa Ana Municipal Code is hereby reenacted in its entirety as follows: ARTICLE V. - RESERVED Secs. 39-80-39-83.5. - Reserved. SECTION 10. Section 1-18.2 of the Santa Ana Municipal Code is hereby amended such that it reads in its entirety as follows (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 1-18.2. - Public works agency authority to issue citations. The executive director of public works agency or his designee has the duty to enforce the provisions of sections 10-26, 10-27, 10-71 and 10-100, 16-1 through 16-4, 16-30, 16-31, 16-33 through 16-37.5, 16-39, 16-48, 18-17, 36-148, 33-30, 33-60, 33-62, 33-152, 33-157, 33-162, 33-188, 33-189 through 33-192, 36-45, 36-46, 39 26 39-24, 39-33 and 39-106 through 39-111, chapter 17 and provisions of article IV of chapter 18 of this Code. The executive director of the public works agency or his designee is authorized to arrest persons without a warrant whenever they have reasonable cause to believe that the person to be arrested has committed a violation of said provisions in their presence. In any case in which a person is arrested pursuant to this section and the person arrested does not demand to be taken before a magistrate, said officer or employee making the arrest shall prepare a written notice to appear and release the person on his or her promise to appear as prescribed by Chapter 5C, Title III, of part 2 of the Penal Code of the State of California (commencing with Section 853.6). SECTION 11. Section 16-38 of the Santa Ana Municipal Code is hereby amended such that it reads in its entirety as follows (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 16-38. - Service charges. (a) Owners and/or occupants of any improved parcel of real property in the city, as shown on the latest county assessment roll, except any parcel receiving bin or roll -off service exclusively, shall pay to the city a solid waste collection service charge (refuse service char-ge) in such amounts, at such times, and in such manner as shall be Ordinance No. NS -XXX Page 52 of 56 75C-54 established by resolution of the city council. Such refuse service charge is imposed to provide for the continuing availability of curbside service, and shall be due and payable in accordance with the terms of said resolution regardless of actual use thereof or of any interruptions or delays in such service, except to the extent reductions or refunds may be specifically authorized or directed by the executive director of public works or his/her designee. (b) For purposes of administrative convenience the city council may establish billing units for payment of the said service charge consisting of one (1) or more occupancies within one (1) or more parcels. The said total refuse service charge account/billing statement. (c) A penalty of ten (10) percent shall be assessed on all unpaid refuse {e)LD The said refuse service charge and any penalties accrued for failure to make timely payment therefore shall be a civil debt owing to the city. In-+", a e cvo^Fv thAt owner and oGGupant are not the—same and aeGupaRt shall be jeIntly aAd (e) In the event the occupant(s) of any property or premises having registered a municipal utility services account and transferred municipal utility services into their own name as tenant(s) thereafter quit or otherwise vacate the premises then responsibility for future municipal utility services charges including refuse charges shall revert to the municipal utility services account of the property owner in accordance with section 39-16 of this Code. for service are the same, then said civil debt against such customer or person shall be subject to special assessment and lien against said property in the manner provided in City's regular consolidated municipal utility services account/billing statement and toll the accrual of additional penalties therefore under this section and section 39-20 of this Code. Ordinance No. NS -XXX Page 53 of 56 75C-55 governed by article II of Chapter 39. (d)(h) Charges for bin service, roll -off container service or for collection services more frequent or more extensive than that provided in this article for curbside service shall be paid directly to the city's solid waste collection contractor in accordance with such regulations as shall be established by contract or resolution of the city council. SECTION 12. Section 18-602 of the Santa Ana Municipal Code is hereby amended such that it reads in its entirety as follows (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 18-602. - Persons obligated. La) The municipal utility services customer of record of eseapaatsf for each ttv, place or premises located in the City of Santa Ana, or person responsible to istered for municipal utility services including sanitation service charges, shall be liable for payment of all charges as set forth in this but shall be listed as a separate line item on the municipal utility services account/billing statement. (b) In the event the occupant(s) of any property, place or premises having registered a municipal utility services account and transferred municipal utility services into their own name as tenant(s), thereafter quit or otherwise vacate the premises, then ; account of tF accordance with Section 39-16 of this Code. SECTION 13. Section 18-603 of the Santa Ana Municipal Code is hereby amended such that it reads in its entirety as follows (new language underlined, deleted language in strikeout for tracking purposes only): Sec. 18-603. - Payment of bills and penalties. (a) Date payment due. Bills for the sanitation charges made pursuant to this article and penalties, if any, are due and payable at the department of finance in the Go Ordinance No. NS -XXX Page 54 of 56 75C-56 �, (b) Penalties. A penalty of ten (10) percent shall be assessed on all unpaid sanitation charges raft and/or prior sanitation charge related penalties thirty (30) days after the billing date. No penalty, however, will accrue until thirty (30) days after the date with theUnited States that the bill has been depositeds , Peostal SeWise, pMped presented in accordance with section 39-20 of this Code. (c) Civil debt. Sanitation service charges and any corresponding penalties accrued for failure to make timely payment therefore shall be a civil debt owing to the city. SECTION 14. The charges and fees authorized by Section 39-19 of this Code shall be set forth in a fee schedule established by concurrent resolution. Such charges and fees shall be incorporated into, and where appropriate, supersede the City's Uniform Schedule of Miscellaneous Fees for Fiscal Year 2017-18. SECTION 15. If any section, subsection, sentence, clause, 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, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentence, clauses, phrases, or portions be declared invalid or unconstitutional. SECTION 16. Neither the adoption of this ordinance nor the repeal hereby of any ordinance shall in any manner affect the prosecution for violation of ordinances, which violations were committed prior to the effective date hereof, nor be construed as affecting any of the provisions of such ordinance relating to the collection of any such license or penalty or the penal provision applicable to any violation thereof, nor to affect the validity of any bond or cash deposit in lieu thereof, required to be posted, filed or deposited pursuant to any ordinance and all rights and obligations thereunder appertaining shall continue in full force and effect. SECTION 17. This ordinance shall become effective thirty (30) days after its adoption. Ordinance No. NS -XXX Page 55 of 56 75C-57 SECTION 18. The Clerk of the Council shall certify the adoption of this ordinance and shall cause the same to be published as required by law. ADOPTED this day of 2017. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: w- qL. J n 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 Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75C-58 Ordinance No. NS -XXX Page 56 of 56 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JULY 5, 2017 TITLE: PUBLIC HEARING - ADOPT AN ORDINANCE TO REGULATE MOBILE FOOD VENDING VEHICLES {STRATEGIC PLAN NO 5, 4} CITY MAdAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: 0W;j:Z919:IW ❑ As Recommended ❑ As Amended ❑ Ordinance on 1� Reading ❑ Ordinance on 20° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Adopt an ordinance to repeal existing mobile food vehicle regulations in the Santa Ana Municipal Code and replace them with new regulations. X 2. Adopt an ordinance to repeal existing mobile food vehicle regulations in the Santa Ana Municipal Code. 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 75D-1 Adopt an Ordinance to Regulate Mobile Food Vending Vehicles July 5, 2017 Page 2 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 regulations in place. The information gathered served as the findings to formulate staffs 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. After the initial presentation on February 7, 2017, at the request of City Council, a second phase of meetings ensued to obtain additional input. City staff met with representatives of the Food on Wheels Association and the attorney representing mobile vendors who primarily sell produce. Based upon this additional input and discussion, the proposed ordinance and recommendations have been revised to minimize potential impacts to mobile vending businesses while ensuring public health and safety. 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. In addition to requiring a city business license, the key elements of the proposed ordinance are: Prohibits additional lighting, signs and amplified Prohibits vending within 250 feet of any school, sound park, community center or playground facility Prohibits vending within 50 feet of a marked or Prohibits vending that obstructs or creates a unmarked crosswalk in an intersection hazard Requires vending vehicles to be equipped with Prohibits restocking & items in the public right refuse containers of way Prohibits electrical power/utility from public/ Requires vehicles to be stored in approved private propertV Commissaries Prohibits vending where posted speed limit is Allows vending on private property with Land 35 miles per hour or greater Use Certificate and/orspecial event permit 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). 75D-2 Adopt an Ordinance to July 5, 2017 Page 3 FISCAL IMPACT Regulate Mobile Food Vending Vehicles There is no fiscal impact associated with this action. Candida Neal, AICP Acting Executive Director Planning & Building Agency AN:rb RbVeports\PBA Vehicle Vending 07-05-17 EXHIBITS: 1. Ordinance to Repeal Former Sections and Adopt New Regulations 2. Ordinance to Repeal Former Sections 3. Findings 75D-3 75D-4 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 1 Ordinance No. NS-XXXX Page 1 75D-5 F. In an effort to update 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. As a result, a Notice of Exemption will be filed upon the adoption of this ordinance. 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 75D-6 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 75D-7 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. Any signage or display for a food vending vehicle must comply with the generally applicable sign regulations contained in Chapter 41 of the Code. 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 two hundred and fifty (250) feet from a school, park, community center or public playground facility. Ordinance No. NS-XXXX Page 4 75D-8 7. No owner or operator shall permit the vending vehicle to vend within fifty (50) feet of a marked or unmarked crosswalk in an intersection. 8. 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 maintain and make refuse containers available 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 shall only occur where the vehicle is lawfully parked and such restocking does not restrict vehicle or pedestrian traffic or otherwise create a traffic hazard. 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 Ordinance No. NS-XXXX Page 5 75D-9 unsanitary conditions. Food vending vehicles shall not be stored overnight outside of an approved commissary. 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. Vending on Private Property. 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. Vending on Private Property. 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. 2. All food vending vehicles are required to have a City of Santa Ana business license conspicuously displayed when vending. 3. Nothing in this section shall be construed to excuse food vending vehicles from complying with all other provisions of this chapter. Sec. 36-705. Penalty for Violation. Every violation of the provisions of this article shall be addressed through the use of an administrative citation as set forth in sections 1-21.1 through 1-21.9 of this Code. Each day any violation of any said provision of this article shall continue shall constitute a separate offense. Use of an administrative citation shall not prevent or preclude the City from seeking additional criminal, civil or other legal remedy established by law. Ordinance No. NS-XXXX Page 6 75D-10 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 day of 2017. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia Carvalho, City Attorney By: e' J' C -- Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Ordinance No. NS-XXXX Page 7 75D-11 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 adopted 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. Date: Clerk of the Council City of Santa Ana 75D-12 Ordinance No. NS-XXXX Page 8 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) AND REPEALING ARTICLE XIV OF CHAPTER 36 "FOOD VENDING VEHICLES' (SANTA ANA MUNICIPAL CODE SECTIONS 36-700 THROUGH 36-720) 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 previously adopted Article XIV in Chapter 36 "Food Vending Vehicles' in December 1994 (Santa Ana Municipal Code sections 36-700 through 36-720). B. 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. C. 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. D. 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. E. In an effort to update 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). 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 Exhibit 2 Ordinance No. NS-XXXX Page 1 75D-13 significant impact on the environment. As a result, a Notice of Exemption will be filed upon the adoption of this ordinance. 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. ADOPTED this day of APPROVED AS TO FORM: Sonia Carvalho, City Attorney Lisa Storck Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: NOT PRESENT: Councilmembers Councilmembers K11 VA Miguel A. Pulido Mayor 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 -XXX to be the original ordinance adopted 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. Date: Clerk of the Council City of Santa Ana 75D-14 Ordinance No. NS-XXXX Page 2 [Exhibit 3 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 trucks 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 trucks. In addition, the gathering of customers waiting in line for vending trucks 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 75D-15 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 truck 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 trucks have been used to perpetrate crimes. Those firearms have also been used by vending truck operators as a feint form of protection. The toy/replica firearms being sold in areas with a high concentration of vending trucks may lead to disastrous results to the prevalence of real firearms and violent crime in some of those areas. Vending trucks 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 truck. Due to the size of mobile vending trucks and their common presence in some of the most densely populated areas of Santa Ana the risk for 2 75D-16 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. 75D-17 75D-18