HomeMy WebLinkAbout FULL PACKET_2010-03-01 MINUTES OF THE REGULAR MEETING
OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA, CALIFORNIA
FEBRUARY 16, 2010
CLOSED SESSION MEETING
CALLED TO ORDER CITY HALL
20 CIVIC CENTER PLAZA, 8T" FLOOR
SANTA ANA, CA
5:10 P.M.
ATTENDANCE COUNCILMEMBERS Present:
MIGUEL PULIDO, Mayor
CLAUDIA ALVAREZ, Mayor Pro Tem
P. DAVID BENAVIDES
CARLOS BUSTAMANTE
MICHELE MARTINEZ
VINCENT F. SARMIENTO
SAL TINAJERO
STAFF Present:
DAVID N. REAM, City Manager
JOSEPH FLETCHER, City Attorney
MARIA D. HUIZAR, Clerk of the Council
PUBLIC COMMENTS -None
CLOSED SESSION ITEMS
City Council Items
1A PUBLIC EMPLOYEE PERFORMANCE EVALUATION pursuant to
Government Code Section 54957
Title: City Manager
1 B CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government
Code Section 54956.8.
Agency Negotiators: Personnel Services Executive Director,
Kathie Gonzalez
Employee Organizations: Santa Ana Service Employees International
Union (SEIU)
CITY COUNCIL MINUTES 1 FEBRUARY 16, 2010
10A-1
Santa Ana Management Association
Santa Ana Firemen's Benevolent Association
Santa Ana Police Officer's Association
Santa Ana Police Management Association
Santa Ana Fire Management Association
Community Redevelopment Agency Items
2A CONFERENCE WITH REAL PROPERTY NEGOTIATOR pursuant to
Government Code Section 54956.8.
Approval of License for Agency Property Located at 2051-2101 East
Edinger Avenue
ADJOURNED 6:15 P.M.
CITY COUNCIL MINUTES 2 FEBRUARY 16, 2010
10A-2
REGULAR CITY COUNCIL MEETING
CALLED TO ORDER COUNCIL CHAMBER
22 CIVIC CENTER PLAZA
SANTA ANA, CA
6:20 P.M.
ATTENDANCE COUNCILMEMBERS Present:
MIGUEL PULIDO, Mayor
CLAUDIA ALVAREZ, Mayor Pro Tem
P. DAVID BENAVIDES
CARLOS BUSTAMANTE
MICHELE MARTINEZ
VINCENT F. SARMIENTO
SAL TINAJERO
STAFF Present:
DAVID N. REAM, City Manager
JOSEPH FLETCHER, City Attorney
MARIA D. HUIZAR, Clerk of the Council
PLEDGE OF ALLEGIANCE MAYOR PULIDO
PUBLIC COMMENT ON AGENDA ITEMS
• Tim Rush and Mike Tardiff spoke in opposition to the recommended action on Item
11A; and
• Bob Guedea, Modesto Pelayo, Michael Clark, Bashar (no last name given), Emiliano
Santellen, and Matthew DeGroat commented on matters related to medical cannabis
facilities in the City of Santa Ana.
CONSENT CALENDAR ITEMS
MOTION: Approve staff recommendations on Consent Calendar Items 10A
through 25F with the following modifications:
• Councilmember Benavides pulled Item 11A for discussion;
• Mayor Pro Tem Alvarez pulled Items 25C and 25D for separate discussion.
MOTION: Martinez SECOND: Alvarez
VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez,
Sarmiento, Tinajero, Pulido (7)
CITY COUNCIL MINUTES 3 FEBRUARY 16, 2010
10A-3
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
Items removed for separate action or modified are highlighted. Separate actions show
the actual vote. Items without votes are adopted as part of the consent Motion.
ADMINISTRATIVE MATTERS
MINUTES
10A MINUTES OF THE REGULAR MEETING OF FEBRUARY 1, 2010 -Clerk
of the Council Office
MOTION: Approve Minutes.
ORDINANCES/SECOND READING
11A .:SECOND READING -ORDINANCE AMENDMENT NO. 2009-Q2 TO
AMEND CHAPTER 30 OF THE. SANTA ANA MUNICIPAL CODE. TO
ESTABLISH A NEW APPLICATION FEE FOR THE PRIVATE PARTY
NOMINATION OF PROPERTIES OF THE SANTA :ANA REGISTER OF
HISTORICAL PROPERTIES -Planning and Building Agency
Placed on first reading at the February 1, 2010 City Council meeting and
approved by a vote of 6-1 (Benavides, Dissented)
Published in the Orange County Reporter on February 5, 2010.
Councilmember Benavides made a motion to continue the matter for 30
days. Motion died for a lack of a second.
MOTION: Place ordinance on second reading and adopt.
ORDINANCE NO. NS-2802 - AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF SANTA ANA AMENDING CHAPTER 30 OF THE
SANTA ANA MUNICIPAL CODE TO AUTHORIZE AN APPLICATION
AND APPEAL FEE TO BE CHARGED TO APPLICANTS SEEKING TO
ADD A PROPERTY TO THE CITY'S REGISTER OF HISTORIC PLACES
MOTION: Martinez SECOND: Alvarez
VOTE: AYES: Alvarez, Bustamante, Martinez, Sarmiento,
CITY COUNCIL MINUTES 4 FEBRUARY 16, 2010
10A-4
Tinajero, Pulido (6)
NOES: Benavides (1)
ABSTAIN: None (0)
ABSENT: None (0)
MISCELLANEOUS ADMINISTRATION
19A CLOSED SESSION REPORT -City Attorney's Office
19B EXCUSED ABSENCES -None.
BUDGETARY MATTERS
APPROPRIATION ADJUSTMENTS
20A APPROPRIATION ADJUSTMENT FOR WORKFORCE INVESTMENT
ACT CALIFORNIA NEW START GRANT -Community Development
Agency
MOTION: Approve an appropriation adjustment. (Requires five
affirmative votes)
APPROPRIATION ADJUSTMENT NO. 2010-086 -Recognizing $109,519
in Workforce Investment Act funds awarded to the Santa Ana WORK
Center by the State of California Employment Development Department
for aPrison-to-Employment Program
AGREEMENTS
25A AGMTS -WORKFORCE INVESTMENT ACT FORMULA YOUTH FUNDS
FOR PROGRAM YEAR 2009-10 -Community Development Agency
MOTION: Authorize the City Manager and Clerk of the Council to
execute agreements with the following Youth Program Operators for
Program Year 2009-10:
• AGMT NO. 2010-018 -With Taller San Jose in partnership with
Orange County Conservation Corps to provide training for solar panel
installation and weatherization, paid job shadowing and on-the-job
CITY COUNCIL MINUTES 5 FEBRUARY 16, 2010
10A-5
training and placement for twenty Out-of-School youth in the amount of
$127,341;
• AGMT NO. 2010-019 -With Orange County Conservation Corps in
partnership with Taller San Jose to provide the services listed above,
in the amount of $161,643;
• AGMT NO. 2010-020 -With The Cambodian Family to provide
employment services, tutoring, education services, paid and unpaid
work experience, internships, job shadowing, leadership development,
adult mentoring and placement for sixteen Out-of-School youth for a
total of $87,392;
• AGMT NO. 2010-021 - With The Bridge to provide tutoring,
alternative/secondary school services, occupational skills training, work
experience, leadership development, adult mentoring and placement
for twenty Out-of-School youth for a total of $96,000
25B AGMTS -AMERICAN REINVESTMENT AND RECOVERY ACT 2009
JOB TRAINING -Community Development Agency
MOTION: Authorize the City Manager and Clerk of the Council to
execute agreements with the following program operators for a total
of $685,505:
• AGMT NO. 2010-022 -With Goodwill Industries of Orange County to
provide entrepreneurial training for one-hundred and sixty low income
Santa Ana residents in the amount of $180,830;
• AGMT NO. 2010-023 -With Delhi Center to provide entrepreneurial
training for one-hundred low income Santa Ana residents in the
amount of $122,000;
• AGMT NO. 2010-024 -With Concorde Career College to provide
medical assistant training, job preparation, and job placement for
twenty five Santa Ana dislocated workers in the amount of $175,000;
• AGMT NO. 2010-025 -With Hispanic Business Consultants to provide
small business technical assistance, through workshops and seminars,
for seventy five Santa Ana businesses in the amount of $57,675;
• AGMT NO. 2010-026 -With Essergy to provide small business
technical assistance, through workshops, seminars and mentoring to
Santa Ana small businesses in the amount of the amount of $150,000
CITY COUNCIL MINUTES 6 FEBRUARY 16, 2010
10A-6
25C AGMTS -LANDSCAPE MAINTENANCE SERVICES AT CITY PARKS -
Parks, Recreation & Community Services Agency
MOTION: Authorize the City Manager and Clerk of the Council to
execute the agreements, subject to non-substantive changes
approved by the City Manager and City Attorney.
• AGMT NO. 2010-027 -With DMS Landscape Services in an amount
not to exceed $274,176;
• AGMT NO. 2010-028 -With Mariposa Landscapes in an amount not to
exceed $454,565
MOTION: Martinez SECOND: Sarmiento
VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez,
Sarmiento, Tinajero, Pulido (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
25D AGMT NO. 2010-029 - EVENT MANAGEMENT SERVICES TO
QPERATE THE 2010 ClNCO DE MAYO FESTIVITIES With Veiasquez
Publishing and. Promotions -City Managers Office
MOTION: Authorize the City Manager and Clerk of the Council to
prepare agreements, subject to non-substantive changes approved
by the City Manager and City Attorney.
MOTION: Martinez SECOND: Alvarez
VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez,
Sarmiento, Tinajero, Pulido (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
CITY COUNCIL MINUTES 7 FEBRUARY 16, 2010
10A-7
MOTION: Authorize the City Manager and Clerk of the Council to
execute the following agreements, subject to non-substantive
changes approved by the City Manager and City Attorney. (Items
25E and 25F)
25E AGMTS - PURCHASE AGREEMENTS FOR BRISTOL STREET
CORRIDOR (PROJECT NO. 08-1700) -Public Works Agency
• AGMT NO. 2010-030 -Purchase and sale agreement with 1650 So.
State College LLC (EI Comedor Restaurant) for the property located at
418 N. Bristol Street for $1,607,105;
• AGMT NO. 2010-031 -Relocation settlement agreement with EI
Comedor Restaurant for $592,895;
• AGMT NO. 2010-032 -Relocation settlement agreement with Bristol
Chiropractic for $230,000
25F AGMT NO. 2010-033 -CONTINUATION OF THE JUNIOR TENNIS
AMBASSADORS PROGRAM AT CABRILLO TENNIS CENTER -With
Junior Tennis Ambassadors, Inc. in an amount not to exceed $50,000 -
Parks, Recreation, and Community Services
**END OF CONSENT CALENDAR**
BUSINESS CALENDAR ITEMS
RESOLUTIONS
55A ACCESS STATE AND FEDERAL EMERGENCY MEDICAL TECHNICIAN
CRIMINAL HISTORY INFORMATION FOR EMPLOYMENT OR
CERTIFICATION PURPOSES -Fire Department
MOTION: Adopt a resolution.
RESOLUTION NO. 2010-006 - A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF SANTA ANA AUTHORIZING ACCESS TO STATE AND
FEDERAL SUMMARY CRIMINAL HISTORY INFORMATION FOR
FIREFIGHTER, EMERGENCY MEDICAL TECHNICIAN AND
PARAMEDIC EMPLOYMENT AND CERTIFICATION PURPOSES
MOTION: Alvarez SECOND: Martinez
CITY COUNCIL MINUTES 8 FEBRUARY 16, 2010
10A-8
VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez,
Sarmiento, Tinajero, Pulido (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
55B PROPOSED AMENDMENT TO CLASSIFICATION AND
COMPENSATION AND ANNUAL BUDGET - PARK MAINTENANCE
INSPECTOR I, PARK MAINTENANCE INSPECTOR II, AND PARK
MAINTENANCE SUPERVISOR -Personnel Services Agency
MOTION: Adopt a resolution.
RESOLUTION NO. 2010-007 - A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF SANTA ANA TO AMEND RESOLUTION NO. 82-110
TO ADD TWO NEW FULL TIME CLASSIFICATION TITLES TO THE
CITY'S BASIC CLASSIFICATION AND COMPENSATION PLAN, AND TO
AMEND THE CURRENT ANNUAL BUDGET TO ADD AND
REALLOCATE POSITIONS IN THE PARKS, RECREATION AND
COMMUNITY SERVICES AGENCY
MOTION: Bustamante SECOND: Alvarez
VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez,
Sarmiento, Tinajero, Pulido (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
55C AUTHORIZE THE SUBMITTAL OF PROPOSITION 84 STATEWIDE
PARK DEVELOPMENT AND COMMUNITY REVITALIZATION GRANT
APPLICATION FOR WILLARD JOINT USE SITE IMPROVEMENTS -
Parks, Recreation & Community Services Agency
MOTION: Adopt a resolution.
RESOLUTION NO. 2010-008 - A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF SANTA ANA APPROVING THE APPLICATION FOR
STATEWIDE PARK DEVELOPMENT AND COMMUNITY
CITY COUNCIL MINUTES 9 FEBRUARY 16, 2010
10A-9
REVITALIZATION PROGRAM GRANT FUNDS UNDER THE SAFE
DRINKING WATER QUALITY AND SUPPLY, FLOOD CONTROL, RIVER
AND COSTAL PROTECTION BOND ACT OF 2006
MOTION: Martinez SECOND: Sarmiento
VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez,
Sarmiento, Tinajero, Pulido (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
55D EXECUTE AN AMENDED AND RESTATED JOINT POWERS
AGREEMENT WITH ORANGE COUNTY COUNCIL OF GOVERNMENTS
(OCCOG) -City Manager's Office
MOTION: Adopt a resolution.
RESOLUTION NO. 2010-009 - A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF SANTA ANA APPROVING AND AUTHORIZING
EXECUTING AN AMENDED AND RESTATED ORANGE COUNTY
COUNCIL OF GOVERNMENTS (OCCOG) JOINT POWERS
AGREEMENT
MOTION: Bustamante SECOND: Martinez
VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez,
Sarmiento, Tinajero, Pulido (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
COUNCIL RECESSED TO THE COMMUNITY REDEVELOPMENT AGENCY AT 7:01
P.M.
COUNCIL RECONVENED WITH ALL MEMBERS PRESENT
CITY COUNCIL MINUTES 10 FEBRUARY 16, 2010
10A-10
WORK STUDY SESSION
WSA CENSUS 2010 UPDATE - Beatriz Fernandez, Partnership Team Leader
for Los Angeles Regional Census Center -City Manager's Office
Mayor Pulido announced this item will be continued to a future meeting.
COMMENTS
90A CITY MANAGER'S COMMENTS -None
90B CITY COUNCILMEMBER COMMENTS -None
ADJOURNED - 7:03 p.m. The next meeting of the City Council is scheduled for
Monday, March 1, 2010 at 5:00 p.m. for the Closed Session
Meeting immediately followed by the Regular Business Meeting in
the Council Chamber, 22 Civic Center Plaza, Santa Ana, California.
Maria D. Huizar,
Clerk of the Council
CITY COUNCIL MINUTES 11 FEBRUARY 16, 2010
10A-11
10A-12
REQUEST FOR
COUNCIL ACTION ~@
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
DESTRUCTION OF ? As Amended
OBSOLETE CITY RECORDS ? Ordinance on 2"d Read1 ng
? Implementing Resolution
? Set Public Hearing For
1 CONTINUED TO
ti ~ ~ FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Approve the requests for the destruction of obsolete records from various City departments in
accordance with the retention schedule outlined in City Council Resolution 2006-045.
DISCUSSION
On July 3, 2006, the City Council approved a resolution outlining the records retention schedule for
the agencies, departments, and offices of the City. City records are governed by the Public
Records Act which provides the time in which records need to be kept. The Citywide Records
Team compiled the Citywide Records Retention Schedule which sets forth the retention period for
a particular record. The Municipal Code requires that the destruction of a City record be approved
by the City Attorney.
In accordance with Section 5B of the Citywide Records Retention Schedule Resolution, the City
Attorney has approved the list of records proposed for destruction from the departments as
outlined in the attached documents.
FISCAL IMPACT
There is no fiscal impact associated with this item.
19C-1
19C-2
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MEMORANDUM
To: Laura Sheedy, Assistant City Attorney
City Attorney's Office
From: Mark Lawrence, Executive Assistant to the City Manager
Date: March 1, 2010
Re: REQUEST FOR DESTRUCTION OF RECORDS
The City Manager's Office requests your consent to destroy city records on the attached listing,
in accordance with the retention schedule outlined in City Council Resolution 2006-045.
Thank you.
19C-3
CITY OF SANTA ANA
OBSOLETE RECORDS DESTRUCTION SCHEDULE
CITY MANAGER'S OFFICE
2010
RECORD RECORD RECORD EXPIRATION
CATEGORY SERIES DESCRIPTION DATES
Chronological Files Staff Memoranda and Correspondence March 1, 2008
and prior
Correspondence/ March 1.2008
Chronological Files and prior
Councilmember Self-explanatory
Council Requests Mayor Inquiries processed for Mayor March 1, 2008
and prior
Wards 1 through 6 Inquiries processed for Councilmembers March 1, 2008
and prior
Correspondence General Correspondence Self-explanatory March 1; 2008
and prior
Staff Inquiries processed for Staff March 1.2008
and prior
Monthly Status City Manager Self-explanatory March 1.2008
Reports and prior
Payroll Records Council/Staff Self-explanatory March 1.2008
and prior
March 1, 2008
Travel Folders Council/Staff Self-explanatory and prior
APPROVE: CONSENT:
David N. Ream Date / oseph W. Fletcher Date
City Manager City Attorney
RECORDS DESTROYED: AUDITED BY:
Volume Weight Mark Lawrence Date
in Cubic Feet in Pounds Assistant to the City Manager
19C-4
~
MEMORANDUM
Lisa Storck
To: Assistant City Attorney Date: February 11, 2010
From: Deputy City Manager for Development Services
Community Development Agency
Subject: REQUEST FOR DESTRUCTION OF RECORDS
The Community Development Agency requests your consent to destroy city records
on the attached listing, in accordance with the retention schedule outlined in City
Council Resolution 98-088.
Cynthia J. Nels
19C-5
CITY OF SANTA ANA
OBSOLETE RECORDS DESTRUCTION SCHEDULE
Community Development Agency
2010
Record Record
Cate o Series Record Descri tion Record Dates
HOUSING Applications Purged Applications from Jan -Dec 2006
AUTHORITY Waitin List 7 boxes
HOUSING Vouchers Expired Housing Choice Vouchers Jan -Dec 2006
AUTHORITY 5 boxes
HOUSING Tenant Files Terminated Tenant Files Jan -Dec 2006
AUTHORITY 48 boxes
PREPARED BY: CONSENT BY:
i ~ !o
- - ~ ~ , ' ~,wv`---
Terri rs Date Cynthia J. Nelson Date
Senio anagement Analyst Deputy City Manager for Development Services
Community Development Agency Community Development Agency
RECORDS DESTROYED: APPROVED BY:
60 boxes c~ ` _ /~l~'
Number of boxes Joseph Fletcher Date
City Attorney
19C-6
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MEMORANDUM
To: Laura Sheedy, Assistant City Attorney
City Attorney's Office
From: Sharon Hennegen
Date: February 23, 2010
Re: REQUEST FOR DESTRUCTION OF RECORDS
The Clerk of the Council requests your consent to destroy city records on the
attached listing, in accordance with the retention schedule outlined in City
Council Resolution 2006-045.
Thank you.
~ 23 [a.0fo
aron Hennegen Date
19C-7
CITY OF SANTA ANA
OBSOLETE RECORDS DESTRUCTION SCHEDULE
Finance 8~ Management Services Agency -Payroll Division
2010
RECORD RECORD RECORD RECORD
CATEGORY SERIES DESCRIPTION DATES
PAYROLL Attendance Reports Daily attendance postings 1999 and prior
Check Registers Pay period employee earnings and deductions 1999 and prior
Retirement CaIPERS Salary, gross, contribution reports 1999 and prior
Quarterly Reports State quarter earnings and tax reports 1999 and prior
PREPARED BY: CONSENT BY:
~ Z~2.~lZo~o
~ A
Sh on Hennegen ate Francisco Gutierrez Date
Ad inistrative Services Manager Executive Director of Finance
Payroll Division
RECORDS DESTROYED: APPROVED BY:
~ ~ ~D
Number of Boxes Joseph Fletcher ~ Date
City Attorney
19C-8
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MEMORANDUM
To: Joseph Straka, Assistant City Attorney
City Attorney's Office
From: Michael Ernandes, Personnel Operations Manager
Personnel Services Department, M24
Date: February 8, 2010
Re: REQUEST FOR DESTRUCTION OF RECORDS
The Personnel Services Department requests your consent to destroy city
records on the attached list, in accordance with the retention schedule
outlined in City Council Resolution 2006-045.
Thank you.
19C-9
1 ~
CITY OF SANTA ANA
OBSOLETE RECORDS DESTRUCTION SCHEDULE
PERSONNEL SERVICES DEPARTMENT
2006
PERSONNEL SERVICES DEPARTMENT
RECORD RECORD RECORD RECORD
CATEGORY SERIES DESCRIPTION DATES
ENROLLMENT Dental Insurance Employee dental insurance enrollment EE Separated Feb.
FORMS forms** 2005 and prior
(OFFICIAL)
Flexible Enrollment forms for flexible spending EE Separated Feb.
Spending, program*'` 2005 and prior
Section 125
Life Insurance Employee life insurance enrollment forms** EE Separated Feb.
2005 and rior
Long-Term Employee Long-Term Disability Insurance EE Separated Feb.
Disability enrollment forms** 2005 and prior
Insurance
Medical Employee medical insurance enrollment EE Separated Feb.
Insurance forms** 2005 and prior
EQUAL Employment and Personnel and employment records, EE Separated Feb.
EMPLOYMENT personnel including application forms", records 2005 and prior
OPPORTUNITY records pertaining to promotions*, layoffs*,
COMMISSION terminations*, salaries* and training*
(EEOC)
Involuntary Personnel records of terminated employee** EE Separated Feb.
termination 2005 and prior
OFFICIAL Certification/ Request for Certification and/or EE Separated Feb.
PERSONNEL Reassignment reassignment forms which document and 2005 and prior
FILES Forms authorize hiring, reassignment, or other
employee actions.*
Certificates of Certificates issued to EE which show EE Separated Feb.
Training completion date of training class(es)* 2005 and prior
Commendation Letters of commendation and/or other EE Separated Feb.
Letters congratulatory documents received by and/or 2005 and prior
issued to EE.*
Disciplinary Memorandums, letters, or other records of EE Separated Feb.
Actions proposed and/or implemented disciplinary 2005 and prior
action(s).*
Doctor's Notes/ Notes/medical release forms, etc., submitted EE Separated Feb.
Medical regarding employee's medical condition.** 2005 and prior
Releases
Drug Screen Pre-placement and drug screening EE Separated Feb.
Test authorization and acknowledgement form(s) 2005 and prior
and results of drug screening.`
19C-10
PERSONNEL SERVICES DEPARTMENT
RECORD RECORD RECORD RECORD
CATEGORY SERIES DESCRIPTION DATES
OFFICIAL Family and Basic employee data (name, address, class EE Separated Feb.
PERSONNEL Medical Leave title, pay rate, hours worked per pay period; 2005 and prior
FILES (FML) additions to or deductions from wages).
Dates (or hours) FML designated/ taken;
FML notices given to employer by employee;
documents from employer describing FML
policies; records of premium payments of
employee benefits; records of any disputed
confidential files: records/documents relating
to medical certifications.**
Job Application Applications for employment and resumes (if EE Separated Feb.
any) for hired employees.* 2005 and prior
Medical Leave of Leave of Absence forms used in the EE Separated Feb.
Absences** documentation of medical leave (including 2005 and prior
pregnancy leave and Family and Medical
Leave).**
Miscellaneous Documents not specifically mentioned but EE Separated Feb.
Documents kept in official personnel file.*** 2005 and prior
Notice of Form completed by employee and/or EE Separated Feb.
Separation department indicating effective date of 2005 and prior
separation, last day on the job, reason for
separation, etc.**
Oath of Office Form completed and signed by employee EE Separated Feb.
affirming allegiance to the Constitution of the 2005 and prior
United States and the Constitution of the
State of California.*
Outside Form submitted by employee for approval fv EE Separated Feb.
Employment employee to be engaged in outside 2005 and prior
employment.*
Performance Employee performance evaluation forms EE Separated Feb.
Evaluations completed by supervisory personnel re 2005 and prior
employees' accomplishment of their
assigned duties and responsibilities, etc.*
PERS Forms to enroll employees in the Public EE Separated Feb.
Enrollment Employees' Retirement System (PERS)** 2005 and prior
Pre-Employment Forms completed by employee and medical EE Separated Feb.
Medical clinic to assess physical capability of 2005 and prior
employee prior to hiring.**
Security Check Form completed by Personnel Svcs to EE Separated Feb.
Form request Police Dept to conduct security 2005 and prior
check on employee prior to hiring.*
Special Licenses Special licenses issued to employees from EE Separated Feb.
DMV, accredited schools, etc., verifying 2005 and prior
employee meets certain job-related
requirements.*
Tuition Copies of applications for training and EE Separated Feb.
Reimbursement educational assistance which show EE 2005 and prior
Request request, department head approval, and final
disposition of request.*
19C-11
PERSONNEL SERVICES DEPARTMENT
RECORD RECORD RECORD RECORD
CATEGORY SERIES DESCRIPTION DATES
OFFICIAL Union Bank Form signed by employee authorizing leave EE Separated Feb.
PERSONNEL Donation Form hours be donated to the Union Business 2005 and prior
FILES Leave Bank to be used by union leaders for
Union Business.*
W-4 form Employee's Withholding Allowance EE Separated Feb.
Certificate completed by EE authorizing 2005 and prior
employer to withhold Federal income tax
from employee's pay and/or for indicating
exemption.**
Please see attached spreadsheet, dated February 8, 2010, listing personnel files to be purged/digitally
imaged.
* Will be purged
Will be digitally imaged
If non-medical records, will be purged; if medical records, will be digitally imaged.
PREPARED BY: CONSENT BY:
j~ ~ ~ Icy
Susan Wathen for ~ Date Kathie Gonzalez Date
Michael S. Ernandes, Executive Director
Personnel Operations Manager Personnel Services Department
RECORDS DESTROYED: A ~ ROVED B~':
~ r~ ~
Number of Boxes ~ Joseph Fletcher ~ Date
City Attorney
19C-12
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CITY OF SANTA ANA
OBSOLETE RECORDS DESTRUCTION SCHEDULE
PERSONNEL SERVICES DEPARTMENT
2006
PERSONNEL SERVICES DEPARTMENT
RECORD RECORD RECORD RECORD
CATEGORY SERIES DESCRIPTION DATES
RECRUITMENTS Background Materials used in the preparation/ Jan. 2007 and prior
Materials implementation of recruitments.**
Bilingual Forms certifying bilingual capabilities#er Jan. 2007 and prior
Certification for
Forms applicants for recruitments which require
bilingual capabiliity.*
Ethnicity Stubs From employment applications submitted at Jan. 2007 and prior
recruitment time, are kept for outreach
purposes.*
Examination Examination answer sheets completed by Jan. 2007 and prior
Answer Sheets applicants during testing process and other
testing materials.*
Official Eligible Eligible lists signed by City Manager. Lists of Jan. 2007 and prior
Lists individuals placed on an eligible list card for
hiring purposes (copies only -original signed
eligible lists are with recruitment file folder
(according to classification title)).**
See attached spreadsheet, dated February 8, 2010, with recruitment files to be purged/digitally
imaged.
* Will be purged
Will be digitally imaged
PREPARED BY: CONSENT BY:
Susan Wathen for ~-r Date Kathie Gonzalez Date
Michael S. Ernandes Executive Director
Personnel Operations Manager Personnel Services Department
RECORDS DESTROYED: APPROVED BY:
A
/ ~
Number of Boxes ~ Joseph Fletcher Date
City Attorney
19C-19
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19C-20
1
MEMORANDUM
Laura Sheedy
'I'o; Assistant City Attorney Date: February 1 b ~2~010
Martha Ramirez C' L
From: Commission Secretary
Subject: REQUEST FOR DESTRUCTION OF RECORDS
The Planning and Building Agency requests your consent to destroy city records on the
attached listing, in accordance with the retention schedule outlined by City Council
Resolution No. 2006-045.
Thank you,
_
GL (G ~Cr ~ rl J_lz•_ I,
Martha Ramirez Date J M. Trevino, AICP Date
Commission Secretary Executive Director,
Planning and Building Agency
19C-21
_ .
CITY OF SANTA ANA
OBSOLETE RECORDS DESTRUCTION SCHEDULE
PLANNING & BUILDING AGENCY -PLANNING DEPARMENT
2009
RECORD RECORD RECORD RECORD
CATEGORY SERIES DESCRIPTION DATES
CORRESPONDENCE Incoming General Planning Commission and Historic 2008 and
Corres ondence Resources Commission Prior
APPLICATIONS: Members of a committee representing all 2006 and
Development Review
city agencies coordinate site plan review Prior
comments
Sign Program Mechanism to insure the coordination of 200 and
signage within a development site Prior
CERTIFICATES Land Use Certificate A type of permit used for minor uses such 200'J and
as temporary activities Prior
PERMITS Home Occupancy Business use which does not alter the 2007and
Permit residence prior
Off Premise Sign 2007 and
System to control size, location, type and prior
number of off premise signs located on
rivate ro e
RECEIPTS Fees for,various division's permits, 2004 and
Application applications, etc. prior
F~,I L Statement of FPPC Filings 22000 and
P~~~~~I~PC) Economic Interests - Prtor
PBA
PREPARED BY: CONSENT BY:
r
~ ~
~ , ~
Martha Ramirez February l6, 2010 Jay .rev no February 16, 2010
Commission Secretary Exe ~ e Director, Planning &
Building Agency
RECORDS DESTROYED: APPROVED B/Y:
Number of Boxes Joseph Fletcher -1ebruary 19, 2010
City Attorney
19C-22
REQUEST FOR
COUNCIL ACTION ~
~a~
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
CITY OF SANTA ANA GENERAL PLAN ? As Amended
HOUSING ELEMENT ANNUAL PROGRESS ? Ordinance on 15~ Reading
? Ordinance on 2"d Reading
REPORT ? Implementing Resolution
? Set Public Hearing For
~ CONTINUED TO
FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Authorize submittal of the General Plan Housing Element Annual Progress Report to the State of
California Housing and Community Development (HCD).
DISCUSSION
The General Plan Housing Element is a comprehensive planning document designed to address
current and future housing needs for Santa Ana and surrounding region. The document includes the
City's housing vision to meet community needs through 2014. The housing vision is expressed in the
goals, policies and implementation programs as stated in the Housing Element. The purpose of the
Housing Element Annual Progress Report (Exhibit 1) is to describe the activities and accomplishments
made in 2009 calendar year to meeting the City's housing vision. In particular, the report includes a
summary of Santa Ana's progress in meeting its share of the Regional Housing Needs Allocation
(RHNA). As detailed below, of the 3,393 RHNA allocation assigned to Santa Ana for planning period
2006-2014 a total of 790 new housing units, or 23 percent of the RHNA new construction target, has
been completed through 2009.
Progress Towards 2006-2014 RHNA Goal
Total
Housing Total Remaining
RHNA units by RHNA by Income
Income allocation 2006 2007 2008 2009 2010 2011 2012 2013 2014 Income Levels
Very Low 694 0 0 6 0 6 688
Low 547 0 0 0 5 5 542
Moderate 665 0 0 0 0 0 665
Above Mod. 1,461 67 109 506 97 779 682
Remaining
Need for
RNHA
period
Total RHNA : 3,393 67 109 512 102 790 ? ? ? ?
2,603
19D-1
Housing Element Progress Report
March 1, 2010
Page 2
Housing Element Annual Progress Reports are due to the State Housing and Community Development
(HCD) and the State Office of Planning and Research no later than April 1st of each year. The report is
required if a jurisdiction's housing element identifies the Acquisition and Rehabilitation of existing
housing to meet Regional Housing Need Allocation (RHNA) for the construction of new housing. In
addition, the Progress Report is also required to be eligible for certain State funding programs such as
the Housing Related Parks Program (HRP). Per Government Code 65400, the report is to be
considered at a public meeting before the legislative body where members of the public may provide
testimony and written comments.
FISCAL IMPACT
There is no fiscal impact associated with this item.
J .Trevino
Executive Director
Planning and Building Agency
MM:rb
mm\HousinglRHNA\annualreport\2009\RFCA
Exhibit: 1. General Plan Housing Element Annual Progress Report
19D-2
City of Santa Ana
ANNUAL GENERAL PLAN HOUSING ELEMENT
PROGRESS REPORT
~o~n
N~~ y
Y1N~/YlMr
A
aa....
'WrN~~W
Submitted by
Planning and Building Agency
April 1, 2010
EXHIBIT 1
19D-3
19D-4
City of Santa Ana
ANNUAL GENERAL PLAN HOUSING ELEMENT
PROGRESS REPORT (2009)
TABLE OF CONTENTS
I. Contact Information
II. Progress Report: Attachment 1
• Table A: Annual Building Activity Report- Low-, and Very Low-
Income Units and Mixed-Income Multifamily Projects
• Table A2: Annual Building Activity Report -Summary for Units
Rehabilitated, Preserved and Acquired pursuanf to GC Section
65883.1(c) (7)
• Table A3: Annual Building Activity Report Summary for Moderate-
and Above Moderate-Income Units
• Table B: Regional Housing Needs Allocation Progress
• Table C: Program Implementation Status
19D-5
19D-6
MAYOR ~ CITY MANAGER
Miguel A. Pulido ~~~y David N. Ream
MAYOR PRO TEM CITY ATTORNEY
Claudia C. Alvarez 6 Joseph W. Fletcher
COUNCIL MEMBERS CLERK OF THE COUNCIL
Patricia E. Heal
P. David Benavides ~A'~' Y
Carlos Bustamante
Michele Martinez
Vincent F. Sarmiento CITY O F SANTA A N A
Sal Tinajero
PLANNING 8 BUILDING AGENCY
20 Civic Center Plaza (M-20)
P.O. BOX 1988 . Santa Ana, California 92702
(714) 667-2700 • Fax (714) 973-1461
www.santa-ana.org
Department of Housing and
Community Development
ANNUAL GENERAL PLAN HOUSING ELEMENT PROGRESS REPORT
CONTACT INFORMATION
City or County Name: City of Santa Ana
Mailing Address: 20 Civic Center Plaza, Santa Ana, CA 92701
Report Contact Person: Melanie G. McCann Title: Associate Planner
Phone: (714) 667-2746 FAX: (714) 973-1461 E-mail: Mmccann(cr~_santa-ana.org
Reporting Period by Calendar Year: from Jan. 1, 2009 to Dec. 31, 2009
U:\NIMcCann\WP51\HOUSING\RHNA\AnnualReport\2C09\pd£\Contact In£o.doc
19D-7
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19D-29
19D-30
REQUEST FOR ,
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
SUPPORT THE "LOCAL TAXPAYER, ? As Amended s
PUBLIC SAFETY AND TRANSPORTATION ? ordinance on ~ Reading
? Ordinance on 2"d Reading
PROTECTION ACT" ? Implementing Resolution
? Set Public Hearing For
~ CONTINUED TO
0
~r l
t ~ ~~~~zi-----~ FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Authorize the Mayor to send a letter to the League of California Cities in support of the "Local
Taxpayer, Public Safety and Transportation Protection Act."
DISCUSSION
For the past multiple years the state has balanced its budget shortfalls with revenue from local
governments. These actions have resulted in a loss of millions of dollars to the City of Santa Ana
and its residents. To protect city funds, the League of California Cities is working to qualify an
initiative for the November 2010 ballot. The "Local Taxpayer, Public Safety and Transportation
Protection Act" is a constitutional amendment that would stop the State from raiding or borrowing
funding from local public safety, transportation, transit and other essential local government
services. Specifically, the measure would close loopholes to prevent the taking of funds currently
dedicated to cities, counties, special districts and redevelopment agencies. It would also end the
State's practice of borrowing local government property tax funds. Additionally, the measure
would prevent the State from borrowing or redirecting the state sales tax on gasoline (Prop 42
funds) and Highway User Tax on gasoline (HUTA) funds that voters have dedicated to
transportation maintenance and improvements.
The initiative is currently being circulated for signature and must qualify by April 15, 2010 to be
placed on the November 2010 ballot. If on the ballot it would take a 50% plus one vote threshold
to be successful.
FISCAL IMPACT
There is no fiscal impact associated with this item.
19E-1
19E-2
REQUEST FOR
COUNCIL ACTION - -
"'~A~
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
APPROPRIATION ADJUSTMENT ? As Amended
? Ordinance on 15' Reading
ACCEPTING DEVELOPER FUNDS AND ? Ordinance on 2ntl Reading
AGREEMENTS FOR RAILROAD ? Implementing Resolution
ENHANCEME_ NTS (PROJECT 10-6728) ? Set Public Hearing For
CONTINUED TO
,f
FILE N U M B E R
CITY MANAGER
RECOMMENDED ACTION
1. Approve an appropriation adjustment accepting $59,602 into the Select Street Construction
Developer Contribution revenue account (accounting unit 05917002-57080) and appropriate
the funds into the Select Street Construction expenditure account (accounting unit 05917660-
66220).
2. Authorize the City Manager and Clerk of the Council to execute the attached agreement with
Union Pacific Railroad Company in the amount of $61,333, subject to nonsubstantive
changes approved by the City Manager and City Attorney.
3. Authorize the City Manager and Clerk of the Council to execute the attached agreement with
the Roman Catholic Bishop of Orange, subject to nonsubstantive changes approved by the
City Manager and City Attorney.
DISCUSSION
The Roman Catholic Church will build the Christ Our Savior Cathedral at 2001 W. MacArthur
Blvd. As part of this project, the Church is required to modify the traffic signal on Raitt Street at
Alton Avenue (Exhibit 1). This modification triggers upgrades to the Union Pacific Railroad
because the Union Pacific Railroad's policy is to work directly with public agencies and not with
developers; the City needs to enter into agreements with UPRR and the Church to address the
required changes.
The developer funds received by the City in the amount of $59,602 will be used for the cost of the
required UPRR crossing light upgrades. Any additional costs beyond. the initial deposit will be
reimbursed back to the City by the Church per the agreement.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
20A-1
AA and Agreements
For Railroad Enhancements
March 1, 2010
Page 2
FISCAL IMPACT
Funds in the amount of $59,602 will be deposited into the Select Street Construction Developer
Contribution revenue fund account (accounting unit 05917002-57080) and appropriated into the
Select Street Construction fund expenditure account (accounting unit 05917660-66220). Funds for
the proposed agreements are available in Select Street Construction fund (accounting unit
05917660-66220) and Measure M -Street Construction fund (accounting unit 03217660-66220.
APPROVED AS TO FUNDS AND ACCOUNTS:
0`"~
v
Raul Godinez II Francisco Gutierrez
Executive Director Executive Director
~ Public Works Agency Finance & Management Services Agency
RG2K
Exhibit 1: Location Map
Exhibit 2: Appropriation Adjustment on file
Exhibit 3: Agreement with UPRR
Exhibit 4: Agreement with Roman Catholic Bishop of Orange
20A-2
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Project 10-6728 405
sa~rnaNn Railroad Enhancement on
City Council
P~1 Raitt Street and Alton Avenue
Agenda Date
(Project 1 Q-6728)
March 1, 2010 z'
PUBLIC WORKS AGENCY
20A-4
BUILDING ANERIG'
UPRR Folder No.: 2232-76
UPRR Audit No. 232177
SUPPLEMENTAL AGREEMENT
(EXISTING PUBLIC ROAD CROSSING IMPROVEMENT}
THIS SUPPLEMENTAL AGREEMENT is made as of the day of
200_, by and between UNION PACIFIC RAILROAD COMPANY, a
Delaware corporation, or its predecessor in interest, ("Railroad") and the CITY OF SANTA ANA,
a California municipal corporation with a mailing address at PO Box 1988, Santa Ana, CA 92702
("City").
RECITALS:
By instrument dated March 8, 2004, the Railroad and Armstrong Ranch, LLC and Shea
Homes Limited Partnership (through its managing partner J. F. Shea, LLC), entered into an
agreement (the "Original Agreement"), identified in the records of the Railroad as Folder No. 2232-
76,Audit No. 232177, covering the installation of signal interconnect signal facilities for the existing
Raitt Street at-grade public road crossing, (DOT No. 903-141 E), at Railroad's Mile Post 522.04 on
it's Santa Ana Industrial Lead, in Santa Ana, Orange County, California ("Roadway).
The City named herein is successor in interest to Armstrong Ranch, LLC and Shea Homes
Limited Partnership (through its managing partner J. F. Shea, LLC).
The City now desires to undertake as its project (the "Project") signal improvements and re-
striping of the Roadway surface. The Roadway, as improved, where it crosses the Railroad's
property is the "Crossing Area", as shown on the Railroad Location Print marked Exhibit A, and the
improvements to the Roadway are shown on the Detailed Print marked Exhibit A-1, each attached
hereto and hereby made a part hereof.
AGREEMENT:
NOW THEREFORE, in consideration of the premises and of the promises and conditions
hereinafter set forth, the parties hereto agree as follows:
SECTION 1.
The exhibits below are attached hereto and hereby made a part hereof.
Exhibit A Railroad Location Print
Exhibit A-1 Detailed Print
. Exhibit B Railroad's Signal Material Estimate
Exhibit C Railroad Form of Contractor's Right of Entry Agreement
SECTION 2.
The Railroad, at City's expense, shall furnish all labor, material, equipment and supervision
for the Roadway improvements:
EXHIBIT 3
Supplemental Public Road Xing ~~,qe/1=f~ revised January 28, 2010
Form Approved, AVP-Law u
StpLDING AMERIG'
• Install 12-inch LED flashing signal heads to replace existing 8-inch light units;
• Engineering, and
• Flagging.
SECTION 3.
A. The work to be performed by the Railroad, at the City's sole cost and expense, is described in
the Railroad's Signal Material Estimate dated May 10, 2009, in the amount of $60,333.00,
marked Exhibit C, attached hereto and hereby made a part hereof (the "Estimate").
B. The Railroad, if it so elects, may recalculate and update the Estimate submitted to the City in
the event the City does not commence construction on the portion of the Project located on
the Railroad's property within six (6) months from the date of the Estimate.
C. The City acknowledges that the Estimate does not include any estimate of flagging or other
protective service costs that are to be paid by the City or the Contractor in connection with
flagging or other protective services provided by the Railroad in connection with the Project.
All of such costs incurred by the Railroad are to be paid by the City or the Contractor as
determined by the Railroad and the City. If it is determined that the Railroad will be billing
the Contractor directly for such costs, the City agrees that it will pay the Railroad for any
flagging costs that have not been paid by any Contractor within thirty (30) days of the
Contractor's receipt of billing.
D. The City agrees to reimburse the Railroad for one hundred percent (100%) of all actual costs
incurred by the Railroad in connection with the Project including, but not limited to, actual
costs of preliminary engineering review, construction inspection, procurement of materials,
equipment rental, manpower and deliveries to the job site and all of the Railroad's normal
and customary additives (which shall include direct and indirect overhead costs) associated
therewith.
SECTION 4.
A. The City, at its expense, shall prepare, or cause to be prepared by others, the detailed plans
and specifications and submit such plans and specifications to the Railroad's Assistant Vice
President Engineering -Design, or his authorized representative, for review and approval.
The plans and specifications shall include all Roadway layout specifications, cross sections
and elevations, associated drainage, and other appurtenances.
B. The final one hundred percent (100%) completed plans that are approved in writing by the
Railroad's Assistant Vice President Engineering-Design, or his authorized representative, are
hereinafter referred to as the "Plans". The Plans are hereby made a part of this Agreement by
reference.
C. No changes in the Plans shall be made unless the Railroad has consented to such changes in
writing.
D. Notwithstanding the Railroad's approval of the Plans, the Railroad shall not be responsible
for the permitting, design, details or construction of the Roadway.
Supplemental Public Road Xing ~P~gg2 =f~ revised January 28, 2010
Form Approved, AVP-Law 1 VA
BUILDING M~RIG'
SECTION 5.
The Railroad, at the City's expense, shall maintain the crossing between the track tie ends. If,
in the future, the City elects to have the surfacing material between the track tie ends replaced with
paving or some surfacing material other than timber planking, the Railroad, at City's expense, shall
install such replacement surfacing.
SECTION 6.
A. The City, at its sole cost and expense, shall provide traffic control, barricades, and all detour
signing for the crossing work, provide all labor, material and equipment to install concrete or
asphalt street approaches, and if required, will install advanced warning signs, and pavement
markings in compliance and conformance with the Manual on Uniform Traffic Control
Devices.
B. The City, at its expense, shall maintain and repair all portions of the Roadway approaches
that are not within the track tie ends.
SECTION 7.
If City's contractor(s) is/are performing any work described in Section 4 above, then the City
shall require its contractor(s) to execute the Railroad's standard and current form of Contractor's
Right of Entr~greement attached hereto as Exhibit C. City acknowledges receipt of a copy of the
Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements,
and will inform its contractor(s) of the need to execute the Agreement. Under no circumstances will
the City's contractor(s) be allowed onto the Railroad's premises without first executing the
Contractor's Right of Entry Agreement.
SECTION 8.
Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber
optic cable systems is of extreme importance since any break could disrupt service to users resulting
in business interruption and loss of revenue and profits. City or its contractor(s) shall telephone the
Railroad during normal business hours (7:00 a.m. to 9:00 p.m., Central Time, Monday through
Friday, except holidays) at 1-800-336-9193 (also a 24-hour number, 7 day number for emergency
calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by
the City or its contractor(s). If it is, City or its contractor(s) will telephone the telecommunications
company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other
rotection of the fiber o tic cable rior to be innin an work on the Railroad's r mis s
P P P g g y pe e.
SECTION 9.
The City, for itself and for its successors and assigns, hereby waives any right of assessment
against the Railroad, a5 an adjacent property owner, for any and all improvements made under this
agreement.
SECTION 10.
Covenants herein shall inure to or bind each party's successors and assigns; provided, no right
of the City shall be transferred or assigned, either voluntarily or involuntarily, except by express prior
Supplemental Public Road Xing ~aQe 3=f4 revised January 28, 2010 ~I
Form Approved, AVP-Law /V~'A 7
dUILgNG ANERIG'
written consent of the Railroad.
SECTION 11.
The City shall, when returning this agreement to the Railroad (signed), cause same to be
accompanied by such Order, Resolution, or Ordinance of the governing body of the City, passed and
approved as by law prescribed, and duly certified, evidencing the authority of the person executing
this agreement on behalf of the City with the power so to do, and which also will certify that funds
have been appropriated and are available for the payment of any sums herein agreed to be paid by
City.
SECTION 12.
The City and the Railroad agree to split equally the cost of maintenance of the automatic
grade-crossing protection as provided for in California Public Utilities Code Section 1202.2 and as
allocated by the Public Utilities Commission.
SECTION 13.
Upon execution and delivery of this Agreement, the City shall pay to the Railroad an
administrative handling charge of ONE THOUSAND DOLLARS ($1,0{10.00).
SECTION 14.
This agreement is supplemental to the Original Agreement, as herein amended, and nothing
herein contained shall be construed as amending or modifying the same except as herein specifically
provided.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Agreement to
be executed as of the day and year first hereinabove written.
UNION PACIFIC RAILROAD COMPANY
(Federal Tax ID #14-6001323)
By:
PAUL G. FARRELL
Senior Manager Contracts
WITNESS: CITY OF SANTA ANA
X
Title:
Supplemental Public Road Xing ~a ~ =~q revised January 28, 2010
Form Approved, AVP-Law /V~'A 8
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20A-9
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RAILROAD WORK TO BE PERFORMED: EXHIBIT "A"
1. Replace existing 8" lenses with new 12" LED flashing signals; UNION PACIFIC RAILROAD COMPANY
and other signal facilities.
2. Engineering Review & Flagging. SANTA ANA INDUSTRIAL LEAD
MILE POST 522.04
GPS: N 33° 42.2394', W 117° 53.8427'
SANTA ANA, ORANGE CO., CA.
To accompany a Supplemental Agreement with the
CITY OF SANTA ANA
covering signal improvements to an existing at-grade public road crossing.
Folder No. 2232-76 Date: July 24, 2009
WARNING
IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMEN7 MUST BE CONTACTED IN ADVANCE
OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE.
PHONE: 1800) 336-9193
Exhibit A
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E57'IMIITE DF plATPRTAI. AND ~0ltCE ACC4tJNT yrfORR.
BY TH~c
x ~y}1cA lUMMNION P?4CzF*zCy~TiAlI~RdAD Y qqnn hh y
THIS ~..llif'WT6 ~~R V l'1~5' ~iPIt~ATrON DATE 75 :~J.V-V5~1b
bf5CR3F"i`~i~l ~F' WORi~.:
If~STkLL 12" tEa'FL'SYGNAL HEADS 7'~ REPLACE I~GHT UNxTS AT RAZ7'T
StR~ IN SANtA ANA, CA,,M~P. 5ZZ;44
9tGNAL >yRO~F.CT MANAGER: BUOY $I1RDEl~ 9~5-~68~
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5'~GNAL ~ ~I'rY 0~ SANrtA AIYA 1046
Pify; 63158 ~0: °89558 MP,51lB01V: St2.~, .SANI'AANA
SERVxCE UNYT: 20 CxTY:~SAf~iA RNA STATE: CA
O'85CRI•PtION QTY UNIT LABOR ~~IAtE~AL •RECdl.L UPRR TOTAL
.ra--a`'a--r,- ara aa-a ¦a-ar Ya--.aaa a-a---a asa-a aaa-~
L1~~4LAll\V ~IVIV~
FNta~NEERINf, 250 25Q 254
LABOR •,4DDI"f~Ul; 161.~7~~6 838 638 838
XNG 250 250 x50
an.... ~-i---~- -~-I.t..w A.J -a-. Vali. ab---.. ~.i
TOTAL I:NGTNE~1tING 13381338 1338
Sx{~IAL MIORK
BYLL p~EP 450 4S0 4•SO
CDtsTR~?CT X097 ]A97 1i~7
~~d6 ,,aDO~rzvE 167.76~G •23014 2304 2383,4
Pt:ASONAL •~XPF.~SES 9375 9375 9375
SALIrS~ rAx X85 X85 f~5
SIGNAL X3288 1~fi56 23924 .13924
TlL4kSPOR"f'A'1~ON' tHAR~~ 450 450 450
.r1i... r:. ..-r..--... ~...-ter... r..a~~.~~..
70Y'AL SIGNAL 3673 22263 SS995 ~ Y58995
taeOR/Mat~taL• °EXlyENSE 38070 27263 -Wr-aaar
REC(~~L~Cf'•IBL~UpRR ~iCPENSE• $b33# 0
MA7~6 PROaEL•T 0057 X0333
EXISTIlB"+ ~REU~~ABLE ~lATER~AL ~tED1T 0
5ALYAGE •CVQNI15EA9LE NfATERTAL ~R~ZT '4
R~COL•L~CTZ•gLE LF.~S CREDTI'S
THI: ABOYE• FIGURES ~ARF ESf'~MATES DNLY•At~ SU8]ECJ' Ta ~CII['t~TI4N, xN •THE k'V~NT 41:'
AN IiVE 4R DECREASE IN THE COST OR QUANTTI'Y 4~ MATERrAI. Oli LABOR REQUIE~m,
UPRR MILL BYLL F0~ Sd'CTUAL :GON~ftbCTtON CO5'I'5 A~' TFIE ~~1RR~NT' E~~CT~ RAYS,
Exhibit B
2 0/`1-14 Railroad's Signal Material Estimate
~1 ~ p 111 ~ 4 II
IN~
`~1
(Exi ent)
C ~ r ~ et ~ t or f
ra ~ , s gh E ee t
Y~
t
.yv-
20A-15
July 24, 2009
UPRR Folder No.: 2232-76
To the Contractor:
Before Union Pacific Railroad Company can permit you to perform work on its property for the
signal and surface improvements to the existing Raitt Street at-grade public road crossing, it will be
necessary for you to complete and execute two originals of the enclosed Contractor's Right of Entry
~eement. Please:
1. Fill in the complete legal name of the contractor in the space provided on Page 1 of the Contractor's
Right of Entry Agreement. If a corporation, give the state of incorporation. If a partnership, give the
names of all partners.
2. Fill in the date construction will begin and be completed in Article 5, Paragraph A.
3. Fill in the name of the contractor in the space provided in the signature block at the end of the
Contractor's Right of Entry Agreement. If the contractor is a corporation, the person signing on its
behalf must be an elected corporate officer.
4. Execute and return all copies of the Contractor's Right of Entry Agreement together with your
Certificate of Insurance as required in Exhibit B, in the attached, self-addressed envelope.
5. Include a check made payable to the Union Pacific Railroad Company in the amount of $500.00. If
you require formal billing, you may consider this letter as a formal bill. In compliance with the
Internal Revenue Services' new policy regarding their Form 1099, I certify that 94-6001323 is the
Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad
Company is doing business as a corporation.
Under Exhibit B of the enclosed Contractor's Right of Entry Agreement, you are required to procure
Railroad Protective Liability Insurance (RPLI) for the duration of this project. As a service to you, Union
Pacific is making this coverage available to you. If you decide that acquiring this coverage from the Railroad
is of benefit to you, please contact Mr. Mike McGrade of Marsh USA @ 800-729-7001, a-mail:
will tam. s~
mithna,marsh. com.
This agreement will not be accepted by the Railroad Company until you have returned all of the
following to the undersigned at Union Pacific Railroad Company:
1. Executed, unaltered duplicate original counterparts of the Contractor's Right of Entry Agreement;
2. Your check in the amount of $500.00 to pay the required balance due of the required Contractor's
Right of Entry fee. (The Folder Number and the name "Paul G. Farrell" should be written on the
check to insure proper credit). If you require formal billing, you may consider this letter as a formal
bill;
3. Copies of all of your un-to-date General Liability, Auto Liability & Workman's Compensation
Insurance Certificates (yours and all contractors naming Union Pacific Raikoad Company as
additional insured;
Real Estate Department
UNION PACIFIC RAILROAD COMPANY
1400 Douglas Street, MS 1690
Omaha, Nebraska 68179-1690
2 0/-1-16 fax: 402.501.0340
4. Copy of your un-to-date Railroad Protective Liability Insurance Certificate (yours and all
contractors naming Union Pacific Railroad Company as additional insured.
RETURN ALL OF THESE REQUIRED ITEMS TOGETHER IN ONE ENVELOPE.
DO NOT MAIL ANY ITEM SEPARATELY.
If you have any questions concerning this agreement, please contact me as noted below. Have a safe
days
Paul G. Farrell
Senior Manager Contracts
Phone: (402)544-8620
e-mail: pgfarrell@up.com
Real Estate Department
UNION PACIFIC RAILROAD COMPANY
1400 Douglas Street, MS 1690
Omaha, Nebraska 68179-1690
20A-17 fax:4°2.~,.0~4°
Contractors ROE (Generic) 08-15-07
Form Approved - AVP Law BUILDING AMERICA'
UPRR Folder No.: 2232-76
UPRR Audit No.: 232177
CONTRACTOR'S RIGHT OF ENTRY
AGREEMENT
THIS AGREEMENT is made and entered into as of the day of ,
200_, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation
("Railroad"); and
(NAME OF CONTRACTOR)
a corporation ("Contractor").
(State of Corporation)
RECITALS:
Contractor has been hired by the City of
Santa Ana ("City") to perform work relating to the signal
and surface improvements to the existing Raiff Street at-grade public road crossing (the "work"),
with all or a portion of such work to be performed on property of Railroad in the vicinity of the
Railroad's Mile Post 522.04 on the Railroad's Santa Ana Industrial Lead in Santa Ana, Orange
County, California, as such location is in the general location shown on the Railroad Location Print
marked Exhibit A, and as specified on the Detailed Print marked Exhibit A-1, each attached hereto
and hereby made a part hereof, which work is the subject of a Supplemental Agreement dated
between Railroad and the City.
(Date of Contract)
The Railroad is willing to permit the Contractor to perform the work described above at the
location described above subject to the terms and conditions contained in this Agreement
AGREEMENT:
NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as
follows:
ARTICLE 1 - DEFINITION OF CONTRACTOR.
For purposes of this Agreement, all references in this agreement to Contractor shall include
Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its
or their authority.
ARTICLE 2 - RIGHT GRANTED; PURPOSE.
Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and
subject to each and all of the terms, provisions and conditions herein contained, to enter upon and
have ingress to and egress from the property described in the Recitals for the purpose of performing
Contractor's ROE (Generic) OB-15-07 Page 1 of 4 July 24, 2009
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Contractors ROE (Generic) 08-15-07
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the work described in the Recitals above. The right herein granted to Contractor is limited to those
portions of Railroad's property specifically described herein, or as designated by the Railroad
Representative named in Article 4.
ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B. C & D.
The General Terms and Conditions contained in Exhibit B, the Contractor's Insurance
Requirements in Exhibit C and the Minimum Safety Requirements in Exhibit D, each attached
hereto, aze hereby made a part of this Agreement.
ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD
REPRESENTATIVE.
A. Contractor shall bear any and all costs and expenses associated with any work performed by
Contractor, or any costs or expenses incurred by Railroad relating to this Agreement.
B. Contractor shall coordinate all of its work with the following Railroad representative or his or her
duly authorized representative (the "Railroad Representative"):
Anthony Jones Kevin Reilly
Manager Track Maintenance Manager Signal Maintenance
Union Pacific Railroad Company Union Pacific Railroad Company
2015 South Willow 201 S South Willow
Bloomington, CA 92316 Bloomington, CA 92316
Phone: 402-211-6337 Phone: 909-685-2145
Cell: 951-213-8465 Cell: 951-288-4550
C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by
Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7
of Exhibit B. The responsibility of Contractor for safe conduct and adequate policing and
supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's
approval of plans and specifications involving the work, or by Railroad's collaboration in
performance of any work, or by the presence at the work site of a Railroad Representative, or by
compliance by Contractor with any requests or recommendations made by Railroad
Representative.
ARTICLE 5 - TERM; TERMINATION.
A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and
continue until ,unless sooner terminated as herein provided, or
(Expiration Date)
at such time as Contractor has completed its work on Railroad's property, whichever is earlier.
Contractor agrees to notify the Railroad Representative in writing when it has completed its work
on Railroad's property.
B. This Agreement maybe terminated by either party on ten (10) days written notice to the other
party.
Contractor's ROE (Generic) 08-15-07 Page 2 of 4 July 24, 2009
Form Approved -AVP Law
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Contractors ROE (Generic) OB-15-07
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ARTICLE 6 - CERTIFICATE OF INSURANCE.
A. Before commencing any work, Contractor will provide Railroad with the (i) insurance binders,
policies, certificates and endorsements set forth in Exhibit C of this Agreement, and (ii) the
insurance endorsements obtained by each subcontractor as required under Section 12 of Exhibit
B of this Agreement.
B. All insurance correspondence, binders, policies, certificates and endorsements shall be sent to:
Union Pacifrc Railroad Company
Real Estate Department
1400 Douglas Street, MS 1690
Omaha, NE 68179-1690
UPRR Folder No.: 2232-76
ARTICLE 7 - DISMISSAL OF CONTRACTOR'S EMPLOYEE.
At the request of Railroad, Contractor shall remove from Railroad's property any employee of
Contractor who fails to conform to the instructions of the Railroad Representative in connection with
the work on Railroad's property, and any right of Contractor shall be suspended until such removal
has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of
any such employee from Railroad's property.
ARTICLE 8 - ADMINISTRATIVE FEE.
Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad FIVE
HUNDRED DOLLARS ($500.00) as reimbursement for clerical, administrative and handling
expenses in connection with the processing of this Agreement.
ARTICLE 9 - CROSSINGS.
No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over
Railroad's trackage shall be installed or used by Contractor without the prior written permission of
Railroad.
ARTICLE 10 - EXPLOSIVES.
Explosives or other highly flammable substances shall not be stored on Railroad's property
without the prior written approval of Railroad.
Contractors ROE (Generic) 08-15-07 P~$~f 4w 0 July 24, 2009
Form Approved -AVP Law 1
Contractor's ROE (Generic) OS-15-07
Form Approved -AVP Law BUILDING AFRICA'
w
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in
duplicate as of the date first herein written.
iJNION PACIFIC RAILROAD COMPANY
(Federal Tax ID #94-6001323)
By:
PAUL G.FARRELL
Senior Manager Contracts
(Name of Contractor)
By
Title:
ConVadors ROE (Generic) OS-15-07 Page 4 of 4 July 24, 2009
Form Approved -AVP Law
20A-21
~ RAILROAD LOCATION PRINT
w~E ACCOMPANYING A
~ CONTRACTOR' S RIGHT OF ENTRY AGREEMENT
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RAILROAD WORK TO BE PERFORMED: EXHIBIT "A"
1. Replace existing 8" lenses with new 12" LED flashing signals; UNION PACIFIC RAILROAD COMPANY
and other signal facilities.
2. Engineering Review & Flagging. SANTA ANA INDUSTRIAL LEAD
MILE POST 522.04
GPS: N 33° 42.2394', W 117° 53.8427'
SANTA ANA, ORANGE CO., CA.
To accompany a Contractor's Right of Entry Agreement with
(Name of Contractor)
covering signal improvements to an existing at-grade public road crossing.
Folder No. 2232-76 Date: July 24, 2009
WARNING
IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MU57 BE CONTACTED IN ADVANCE
OF ANY WORK TO DETERMBVE EXISTENCE AND LOCATION OF FBER OPTIC CABLE.
PHONE: 1-(800 336-9193
Exhibit A
2 0 ~ Railroad Location Print
Contractors ROE (Generic) - Ex6
Form Approved - AVP Law 07-09-07 BUILDING AMERICA'
EXHIBIT B
TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
GENERAL TERMS AND CONDITIONS
Section 1. NOTICE OF COMMENCEMENT OF WORK -FLAGGING.
A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its
work and at least ten (10) working days in advance of proposed pertormance of any work by Contractor in which any person or
equipment will bewithintwenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such
as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be
performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or
stored withintwenty-five (25) feet of any of Railroad's tracks} at any time, for any reason, unless and until a Railroad flagman is
provided to watch for trains. Upon receipt of such ten (10)-day notice, the Railroad Representative will determine and inform
Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety
measures. If flagging or other special protective or safety measures are pertormed by Railroad, Railroad will bill Contractor for
such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad
is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor,
Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other
special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its
responsibilities or liabilities set forth in this Agreement.
B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day forthe class of flagmen
used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the
work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare,
supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and
Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing
composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime,
Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any
time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling
of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional
charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges.
C. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the
flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required
for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for
any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is
required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other
work, even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and
assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide
Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is
not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement
to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be
given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad.
Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED
A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and
maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change,
modify or relocate railroad tracks, roadways, sjgnal, communication, fiber optics, or other wirelines, pipelines and otherfacilities
upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad
without liability to Contractor or to any other party for compensation or damages.
B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of
Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or
for quiet enjoyment.
Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS.
A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the
railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others,
unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by
Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery
Contractors ROE (Generic) - Ex6 Page 1 of 3 Exhibit B
Form Approved - AVP Law 07-09-07 General Terms 8~ Conditions
20A-23
Contractor's ROE (Generic) - ExB
Form Approved -AVP Law 07-09-07 BUILDING AMERICA'
wand materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular
crossings of Railroads tracks except at existing open public crossings.
B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused
by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to
Contractor, or any other person or entity for any such delays. The Contractor shalt coordinate its activities with those of Railroad
and third parties so as to avoid interterence with railroad operations. The safe operation of Railroad train movements and other
activities by Railroad takes precedence over any work to be performed by Contractor.
Section 4. LIENS.
Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor.
Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced
against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and
against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of
such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record,
Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense.
Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme
importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits.
Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday,
except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried
anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications
company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber
optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been
accomplished.
B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from
and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses)
arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or
destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed
by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property.
Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue
or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or
user of services of the fiber optic cable on Railroad's property.
Section 6. PERMITS -COMPLIANCE WITH LAWS.
In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall
comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all
applicable Federal Railroad Administration regulations.
Section 7. AS FETY.
A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed
by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in
connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit C, hereto
attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractors safety
responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to
good safety practices. Contractor shall furnish copies of Exhibit C to each of its employees before they enter the job site.
B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards
and ensure that its employees are competent and adequately trained in all safety and heaRh aspects of the job.
C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any
person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health
Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job
site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession
any alcoholic beverage, drug or other substance that may inhibit the safe pertormance of any work.
D. 1f and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work
(the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the
Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety
Plan.
Contractor's ROE (Generic) - Ex8 Page 2 Of 3 Exhibit B
Form Approved -AVP Law 07-09-07 General Terms ~ Conditions
20A-24
Contractor's ROE {Generic) - Ex8
Form Approved -AVP Law 07-09-07 BUILDING AMERICA'
Sec~lon 8. INDEMNITY.
A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless Railroad, its affiliates,
and its and their officers, agents and employees ("Indemnified Parties") from and against any and all loss, damage, injury,
liability, claim, demand, cost or expense (including, without limitation, attorney's, consultant's and experts fees, and court costs),
fine or penalty (collectively, "loss") incurred by any person (including, without limitation, any indemnified party, contractor, or any
employee of contractor or of any indemnified party) arising out of or in any manner connected with (i) any work performed by
Contractor, or (ii) any act or omission of Contractor, its officers, agents or employees, or (iii) any breach of this Agreement by
Contractor.
B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the loss, and shall apply
regardless of any negligence or strict liability of any indemnified party, except where the loss is caused by the sole active
negligence of an indemnified party as established by the final judgment of a court of competent jurisdiction. The sole active
negligence of any indemnified party shall not bar the recovery of any other indemnified party.
C. Contractor expressly and specifically assumes potential liability underthis Section 8 forclaims or actions brought by Contractor's
own employees. Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to
indemnify Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties
hereto.
D. No court orjury findings in any employee's suit pursuant to any worker's compensation act or the federal employers' liability act
against a party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against Railroad.
E. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or fhe termination or expiration
of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability
Contractor may have to any indemnified party by statute or under common law.
Section 9. RESTORATION OF PROPERTY.
fn the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other
property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as
possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before
such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools,
equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property
to the same state and condition as when Contractor entered thereon.
Section 10. WAIVER OF DEFAULT.
Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and
performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default.
Section 11. MODIFICATION -ENTIRE AGREEMENT.
No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This
Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and
Railroad and cancel and supersede any prior negotiations, understandings or agreements, whetherwritten or oral, with respect to the
work to be performed by Contractor.
Section 12. ASSIGNME -SUBCONTRACTING.
Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad.
Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any work, the
Contractor shall, except to the extent prohibited bylaw; (1) require each of its subcontractors to include the Contractor as "Additional
insured" in the subcontractor's Commercial General Liability policy and Business Automobile policies with respect to all liabilities
arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing these policies with ISO Additional
Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage; (2) require each of its
subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability Railroads" ISO Form CG 241710 01
(or a substitute form providing equivalent coverage) for the job site; and (3} require each of its subcontractors to endorse their
Business Automobile Policy with "Coverage For Certain Operations In Connection With Railroads" ISO Form CA 20 7010 01 (or a
substitute form providing equivalent coverage) for the job site.
Contractor's ROE (Generic) - Ex6 Page 3 of 3 Exhibit B
Form Approved -AVP Law 07-09-07 General Terms & Conditions
20A-25
Contractor's ROE (Generic) - ExC
Form Approved - AVP Law 08-15-07 bU1LD1NG AMERICA'
EXHIBIT C
TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
CONTRACTOR'S INSURANCE REQUIREMENTS
Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Projectwork on
Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and
has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage:
A. Commercial General Liability Insurance. Commercial general liability (CGL) with a limit of not less than $5,000,000 each
occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must be written on ISO occurrence form CG 00
01 12 04 (or a substitute form providing equivalent coverage).
The policy must also contain the following endorsement, which must be stated on the certificate of insurance:
• Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing
"Union Pacific Railroad Company Property" as the Designated Job Site, and
• Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 {or a substitute form providing
equivalent coverage) showing the project on the form schedule.
B. Business Automobile Coverage Insurance. Business auto coverage written on ISO form CA 00 01 10 01 (or a substitute form
providing equivalent liability coverage) with a combined single limit of not less $5,000,000 for each accident and coverage must
include liability arising out of any auto (including owned, hired and non-owned autos).
The policy must contain the following endorsements, which must be stated on the certificate of insurance:
• Coverage For Certain Operations In Connection With Railroads ISO form CA 20 7010 01(or a substitute form providing
equivalent coverage) showing "Union Pacific Property" as the Designated Job Site.
• Motor Carrier Act Endorsement -Hazardous materials clean up (MCS-90) if required by law.
C. Workers' Compensation and Emplovers' Liabili Insurance. Coverage must include but not be limited to:
• Contractor's statutory liability under the workers' compensation laws of the state where the work is being pertormed.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each
employee.
If Contractor is self-insured, evidence of state approval and excess workers compensation coverage must be provided.
Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer
Continental Shelf Land Act, if applicable.
The policy must contain the following endorsement, which must be stated on the certificate of insurance:
• Alternate Employer endorsement ISO form WC 00 03 01 A {or a substitute form providing equivalent coverage) showing
Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage).
D. 3ailroad Protective Liability Insurance. Contractor must maintain Railroad Protective Liability insurance written on ISO
occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named
insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy
is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to
Railroad.
E. Umbrella or Excess Insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford
no less coverage than the primary policy.
F. Pollution Liability Insurance. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form
Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least
$5,000,000 per occurrence and an aggregate limit of $10,000,000.
If the scope of work as defined in this Agreement includes the disposal of any hazardous or non-hazardous materials from the
job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained bythe disposal site operator
for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss,
and an annual aggregate of $2,000,000.
Other Requirements
Contractor's ROE (Generic) - ExC Page 1 of 2 Exhibit C
Form Approved - AVP Law os-15-07 Contractor's Insurance Requirements
20A-26
Contractor's ROE (Generic) - ExC
Form Approved -AVP Law OS-15-07 BUILD1111G AMERICA'
G. .II policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional
Insured° using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent
coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured
Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligence whether sole or partial, active or passive, and
shall not be limited by Contractor's liability under the indemnity provisions of this Agreement.
H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law
governing this Agreement prohibits all punitive damages that might arise under this Agreement.
1. Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its
agents, officers, directors and employees. This waiver must be stated on the certificate of insurance.
J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized
representative of each insurer, showing compliance with the insurance requirements in this Agreement.
K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Sest's
Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state where the work is being
performed.
L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish
the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages
recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage.
Contractor's ROE (Generic) - ExC Page 2 of 2 F~chibit C
Form Approved -AVP Law Ot3-15-07 Contractor's Insurance Requirements
20A-27
Contractors ROE (Generic) - ExD
Form Approved -AVP Law 07-09-07 BUILDING AMERICA'
EXHIBIT D
TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
MINIMUM SAFETY REQUIREMENTS
The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent
of Contractor.
I. Clothin4
A. AI I employees of ConVactor will be suitably dressed to pertorm thei r duties safely and in a manner that will not intertere with their
vision, hearing, or free use of their hands or feet.
Specifically, Contractor's employees must wear:
(i) Waist-length shirts with sleeves.
(ii) Trousers that cover the entire leg. Ifflare-legged trousers are worn, the trouser bottoms must be tied to prevent catching.
(iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety-toed
footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements.
B. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or other shoes that have thin soles or
heels that are higher than normal.
C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on
machinery.
ll. Personal Protective Eaaioment
Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or
recommended or requested by the Railroad Representative.
(i) Hard hat that meets the American National Standard (ANSI) 289.1 -latest revision. Hard hats should be affixed with
Contractor's company logo or name.
(ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection,
287.1 -latest revision. Additional eye protection must lie provided to meet specific job situations such as welding, grinding,
etc.
(iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job
site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within:
¦ 100 feet of a locomotive or roadway/work equipment
¦ 15 feet of power operated tools
¦ 150 feet of jet blowers or pile drivers
¦ 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection -plugs and muffs)
(iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be wom
as recommended or requested by the Railroad Representative.
III. On Track Safety
Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations -
49CFR214, Subpart C and Railroad's On-Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for
the training of their employees on such regulations. In addition- to the instructions contained in Roadway Worker Protection
regulations, all employees must:
(i) Maintain a distance of twenty-flue (25) feet to any track unless the Railroad Representative is present to authorize
movements.
(ii) Wear an orange, reflectorized workwear approved by the Railroad Representative.
(iii) Participate in a job briefing that will specify the type of On-Track Safety for the type of work being pertormed. Contractor
must take special note of limits of track authority, which tracks may or may not befouled, and clearing the track. Contractor
will also receive special instructions relating to the work zone around machines and minimum distances between machines
while working or traveling.
IV. Eauioment
A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad
Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's
Contractors ROE (Generic) - ExD Page 1 Of 2 Exhibit D
Form Approved - AVP Law 07-09-07 Minimum Safety Requirements
20A-28
r
Contractor's ROE (Generic) - ExD
Form Approved - AVP Law 07-09-07 SUI6D1t+1G AMERICA`
Nroperty. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe
operation of the equipment. In addition, operators must be:
¦ Familiar and comply with Railroad's rules on IockouUtagout of equipment.
¦ Trained in and comply with the applicable operating rules if operating any by-rail equipment on-track.
¦ Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other
railbound equipment.
B. All self-propelled equipment must be equipped with afirst-aid kit, fire extinguisher, and audible back-up warning device.
C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of finrenty-five (25) feet
from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment
against movement.
D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum
clearances to overhead powerlines.
V. Seneral Safety-.Reauirernents
A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations.
B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad
Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including Ort-
Track Safety) and the potential hazards of the job. If any employee has any questions or concerns about the work, the employee
must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work
procedures, or personnel change.
C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad
Administration's Track Safety Standards 49CFR213.
D. All employees comply with the following safety procedures when working around any railroad track:
(i) Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either
direction.
(ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components.
(iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between
yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length
(50 feet}.
(iv} Avoid walking or standing on a track unless so authorized by the employee in charge.
(v) Before stepping over or crossing tracks, look in both directions first.
(vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and
equipment have been protected against movement.
E. All employees must comply with all federal and state regulations concerning workplace safety.
Contrador's ROE (Generic) - ExD Page 2 of 2 Exhibit D
FortnApproved -AVP Law 07-09-07 Minimum Safety Requirements
20A-29
20A-30
REIMBURSEMENT AGREEMENT
BETWEEN CITY OF SANTA ANA AND
THE ROMAN CATHOLIC BISHOP OF ORANGE
FOR THE RAILROAD CROSSING
SIGNAL IMPROVEMENT PROJECT
(MILE POST 522.04)
THIS REIMBURSEMENT AGREEMENT ("Agreement"), is made and entered into this
_ day of , 2010, by and between the CITY OF SANTA ANA, a California charter
city ("Santa Ana"), and the ROMAN CATHOLIC BISHOP OF ORANGE, a California
Corporation Sole ("RCBO"). In this Agreement, Santa Ana and RCBO may each be individually
referred to as a "Party" and collectively referred to as the "Parties."
RECITALS:
1. The RCBO is required to provide signal improvements at the existing at-grade Union
Pacific public road crossing at Raitt Street (hereinafter "said Project").
2. The City, on behalf of the RCBO, will enter into an agreement with the Union Pacific
Railroad Company to complete said Project.
3. The estimated cost of the railroad signal improvements is $60,333.
4. The RCBO has deposited with the City the sum of $59,602 (hereinafter "Deposit").
NOW, THEREFORE, based upon the foregoing Recitals, and for good and valuable
consideration, the receipt and sufficiency of which is acknowledged by all Parties, the Parties
agree as follows:
1. RCBO OBLIGATIONS
A. RCBO will reimburse the City of Santa Ana for expenditures in excess of the
Deposit, necessary for completion of said Project.
B. Reimbursement payment by the RCBO of expenses in excess of the Deposit shall be
made within fifteen (15} days following receipt of written request of the City
evidencing City's obligation to pay such amount.
2. CITY OBLIGATIONS
A. City shall enter into an agreement with Union Pacific Railroad Company to complete
said Project.
B. City shall keep proper records of payments made to complete said Project.
ZVAT~1
3. City and RCBO shall extend cooperation to each other and proceed under this Agreement
in good faith during all phases of said Project to facilitate timely completion and payment of said
Project.
4. The following staff members, or as otherwise designated in writing by the Parties, shall
be the selected representatives of each City to act on each respective City's behalf with respect to
this agreement. Any notices, requests, approvals, plan submittals or communications shall be
provided to each representative noted below:
City of Santa Ana: Roman Cathlic Bishot~ of Oran~e•.
ATTN: Zdenek Kekula ATTN: Joe Novoa
Public Works Traffic Engineering Diocese of Orange
20 Civic Center Plaza, M-43 P.O. Box 14195
Santa Ana, Ca 92701 Orange, CA 92683-1595
Phone: (714) 647-5606 Phone: (714) 282-3000
E-Mail: zkekula a?santa-ana.or~ E-Mail: jnovoa@rcbo.org
5. This Agreement may be amended at any time by the mutual consent of the Parties
by an instrument in writing signed by both Parties.
6. .In the event that any one or more of the phrases, sentences, clauses, paragraphs,
or sections contained in this Agreement shall be declared invalid or unenforceable by a
valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses,
paragraphs, or sections of this Agreement which are hereby declared as severable and
shall be interpreted to carry out the intent of the Parties hereunder.
7. The persons executing this Agreement on behalf of the Parties hereto warrant that
they are duly authorized to execute this Agreement on behalf of said Parties and that by
so executing this Agreement the Parties hereto are formally bound to the provisions of
this Agreement.
8. This Agreement is to be governed by the laws of the State of California.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
on the day and year first written above.
CITY OF SANTA ANA THE ROMAN CATHOLIC BISHOP OF
ORANGE
By:
By:
David N Ream, City Manager The Very Reverend Michael Heher, Attorney
in Fact
-2-
20A-32
APPROVED AS TO FORM: APPROVED AS TO FORM:
By: By:
Joseph W. Fletcher Maria Rullo Schinderle
City Attorney General Counsel, RCBO
ATTEST:
By:
Maria D. Huizar
Clerk of the Council, City of Santa Ana
RECOMMENDED FOR APPROVAL:
Raul Godinez, Executive Director
City of Santa Ana Public Works Agency
-3-
20A-33
20A-34
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
CONTRACT RENEWAL FOR ? As Amended
WATER WELL REHABILITATION ? Ordinance on 15f Reading
? Ordinance on 2"d Reading
(SPEC. NO. 06-013) ? Implementing Resolution
? Set Public Hearing For
i"" ~ CONTINUED TO
~ s --`may- FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Renew the contract with Orange County Pump Co. for water well rehabilitation for cone-year
period in an annual amount not to exceed $150,000.
DISCUSSION
Last year, the Public Works Agency (PWA) Water Division delivered 40,438 acre-feet of water to
businesses and residents in Santa Ana. To do so, PWA currently operates 20 active water wells
and seven water pumping stations to supply the City's drinking water. Staff has determined that
through rehabilitation, the efficiency of a majority of the water wells can be increased. The
rehabilitation work is needed to restore the wells to maximum water production capacity.
Completion of the work will result in the wells producing more water while utilizing less electricity.
On May 15, 2006, the City Council awarded a contract to Orange County Pump Co., a Santa Ana
vendor, for atwo-year period, with provision for three one-year renewals. Orange County Pump
Co. has performed satisfactorily during the past contract period, and staff recommends the
second renewal of the contract.
FISCAL IMPACT
Funds are available in the Water Utility Water Production & Supply account (no. 06017640-
62300).
APPROVED AS TO FUNDS AND ACCOUNTS:
Raul Godinez II ~ Francisco Gutierrez
Executive Direct Executive Director
Public Works Agency Finance & Mgmt. Services Agency
JGR/WO/06-013R2.9
22A-1
22A-2
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVER
? As Recommended
CONTRACT AMENDMENT AND RENEWAL ? As Amended
? Ordinance on 1S` Reading
FOR HDPE FUSIBLE PIPE ? Ordinance on 2"d Reading
(SPEC. NO. 09-004) ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
i'Cc,~ ~ ~ G~~eU"'--- FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Amend the current contract with ISCO Industries, LLC for HDPE fusible pipe in the amount
of $15,000, for a total annual amount not to exceed $40,000 and renew the contract for an
additional year in an amount not to exceed $40,000.
DISCUSSION
The Public Works Agency's Water Resources Division maintains a sanitary sewer system
consisting of approximately 390 miles of pipelines and 8,500 manholes. There are approximately
45,000 sewer laterals in the sewer system. In 2001, a Sewer Service Fee was established that
created a Sewer Lateral Replacement Program. The program allows City maintenance crews to
replace deteriorated private sanitary sewer laterals that are within the public right of way with City
owned main sewer lines. High Density Polyethylene (HDPE) fusible pipe is used to replace
deteriorated sewer laterals. The HDPE pipe prevents future root intrusions, the primary reason
for sewer lateral replacements.
On April 1, 2009, a competitively bid contract for $25,000 was awarded to ISCO Industries, LLC
for the purchase of HDPE fusible pipe for cone-year period, with provision for four one-year
renewals. An increase in sewer lateral replacements by the Water Resources Division caused
the contract to exceed the $25,000 aggregate limit and requires City Council approval.
Amending the contract will allow for the payment of invoices and provide uninterrupted service
during the final two months of the contract. Additionally, ISCO Industries, LLC has performed
satisfactory during this contract period and staff recommends the first renewal of the contract.
22B-1
Contract Amendment and Renewal for HDPE Fusible Pipe
March 1, 2010
Page 2
FISCAL IMPACT
Funds are available in the Sanitary Sewer Service Improvements account (no. 05617640-66220).
APPROVED AS TO FUNDS AND ACCOUNTS:
Raul Godinez II Francisco Gutierrez
Executive Directo Executive Director
Public Works Agency Finance & Mgmt. Services Agency
RG/WO/09-059.9:
22B-2
o ~o~
REQUEST FOR
COUNCIL ACTION _ _
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
CONTRACT AMENDMENT ? As Amended
? Ordinance on 1St Reading
FOR MICROWAVE BASED ? ordinance on 2"d Reading
NETWORK SYSTEM ? Implementing Resolution
? Set Public Hearing For
(SPEC. NO. 09-052)
CONTINUED TO
FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Amend the contract with Pacific Services for the purchase of a micro-wave based network
system, including installation and maintenance support, by $38,000 for an annual amount not to
exceed $85,000.
DISCUSSION
A wireless optical laser system is used to connect the City's computer network between the Data
Center in City Hall and the Data Center in the Police Building. This network link provides critical
connections for the Police and Jail Operations. Until recently, the system has proven very
effective. However, to service the expanding needs of crime analysis, it is necessary to increase
the network bandwidth capacity and reliability through an improved micro-wave based network.
On November 2, 2009, the City Council awarded a contract to Pacific Services to improve
network connectivity between City Hall and the Corporation Yard via the BridgeWave system - a
market leader in this technology category. The system has proved an effective solution and it is
now recommended to extend the micro-wave network to the Police Administration facility to
enhance capacity and capabilities for the Police Department.
22C-1
Contract Amendment for Microwave Based
Network System
March 1, 2010
Page 2
FISCAL IMPACT
Funds are available in the Cops Technology Grant 2002CKWX0028 account (no. 12714402-
66400).
APPROVED AS TO FUNDS AND ACCOUNTS:
F
Paul M. Walters Francisco Gutierrez
Chief of Police Executive Director
Finance & Mgmt. Services Agency
22C-2
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
CONTRACT AWARD FOR ? As Amended
? Ordinance on 1S` Reading
SERVERS & DATA STORAGE ? Ordinance on 2"d Reading
(SPEC. NO. 10-002 8c 10-004) ? Implernenting Resolution
? Set Public Hearing For
CONTINUED TO
~~GrE-- FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
1. Award a contract to GovPlace for the purchase of four servers and support in an amount
not to exceed $79,000.
2. Award a contract to GovConnection for the purchase of data storage in an amount not to
exceed $32,000.
DISCUSSION
The Information Services Division (ISD) maintains servers and data storage in both the City Ha1i
and the Police Department data centers. ISD seeks to add three virtualization servers in the City
Hall center and another at the Police Department center. Additionally, to accommodate
increased crime analysis, it is necessary to increase data storage capacity in the Police
Department center.
The new servers will support the growth in processing requirements by replacing several older
servers with more powerful virtualization servers. Utilizing virtualization is a more efficient
solution than purchasing individual servers for each application, resulting in initial cost savings at
time of purchase, and ongoing, as monthly energy consumption is reduced. In the case of the
Police Department, this increased process capability is necessary to sustain new crime analysis-
related applications. Funding for both the Police Department server and the increased data
storage is provided by the 2002 Cops Technology Grant.
22D-1
Contract Award for Servers and Data Storage
March 1, 2010
Page 2
Two procurement processes were required for these purchases. First, for the server purchases,
Santa Ana Ordinance No. NS-2312 authorizes purchase against contracts from any public
agency utilizing a competitive bid process. The Western States Contracting Alliance (WSCA)
establishes California Multi-State Cooperative Agreements for Commodities, IT Goods &
Services, and Telecommunication Goods and Services. WSCA agreements are available to all
State of California governmental entities that expend public funds for the acquisition of both
goods and services. GovPlace is a value added re-seller of servers, offering WSCA pricing.
Since there was no WSCA pricing for data storage, a bidding event was required for the second
purchase. The notice inviting bids was advertised on February 5, 2010 and bids were solicited.
A summary of the bid invitations and bids received is as follows:
4 Invitations For Bid mailed
4 Bids received
Bids were received and opened February 12, 2010 (Exhibit 1). The bid from GovConnection is
responsive to the specifications and meets the City's requirements.
FISCAL IMPACT
For the servers, funds in the amount of $54,000 are available in the Technology Plan
Miscellaneous Citywide Projects account (no. 10910146-66400) and funds in the amount of
$25,000 are available in the Cops Technology Grant 2002CKWX0028 account (no.12714402-
62120). For the data storage, funds in the amount of $32,000 are available in the Cops
Technology Grant 2002CKW0028 account (nos. 12714402- 66510 and 62300).
APPROVED AS TO FUNDS AND ACCOUNTS:
Paul M. Walters Francisco Gutierrez
Chief of Police Executive Director
Finance & Mgmt. Services Agency
22D-2
ABSTRACT OF BIDS
CONTRACT AWARD FOR HP STORAGE & SUPPORT (10-004)
Vendor GovConnection Nth Generation
Computing, Inc
Merrimack,
Location NH San Diego, CA
Total $31,050.81 $32,712.94
Vendor GovPlace Newport Audio
and Video
Newport Bch,
Location Irvine, CA CA
Total $34,898.64 $58,008.08
~I
Exhibit 1
22D-3
22D-4
REQUEST FOR -.F
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
CONTRACT AMENDMENT AND ? As Amended
? Ordinance on 151 Reading
RENEWAL FOR FIRE EQUIPMENT ? Ordinance on 2"d Reading
AND SUPPLIES ? Implementing Resolution
? Set Public Hearing For
(SPEC. NO. 10-003)
CONTINUED TO
~~L:~.--.- FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
1. Amend the current contract with Allstar Fire Equipment for brush jackets and pants in the
amount of $14,500, for a total annual amount not to exceed $39,500.
2. Renew the contract for the subsequent contract period with Allstar Fire Equipment, Inc. in
the annual amount not to exceed $50,000.
DISCUSSION
The Fire Department provides protective clothing for approximately 225 firefighters and 80
reserve firefighters. Brush jackets and pants are lighter weight turnout clothing that is used when
fighting fires in wild land areas. Much of the current inventory of brush jackets and pants either
are damaged beyond repair or are past their life expectancy, per the National Fire Protection
Association guidelines. This purchase will replace one quarter of inventory, and is the initial
phase of a four part replacement program.
Allstar Fire Equipment, Inc. has been identified as the sole distributor for Barrier Wear, Inc., the
manufacturer of the required brush jackets & pants. Allstar Fire also provides miscellaneous
supplies for the Fire Department. The purchase of the brush turnout sets, when combined with
the anticipated purchases during the current fiscal year, exceeds the $25,000 aggregate limit and
requires City Council approval. Amending the contract will facilitate the continued purchase of
Fire equipment and supplies. It is anticipated that next fiscal year, a contract in the amount of
$50,000 will be required to fund continued fire supplies, along with the second phase of the
brush turnout clothing replacement program.
22E-1
Contract Award for Firefighter
Brush Jackets & Pants
March 1, 2010
Page 2
FISCAL IMPACT
Funds are available in the Fire Maintenance account (no. 01115360-63100).
APPROVED AS TO FUNDS AND ACCOUNTS:
C Cti
_
Marc E. Martin Francisco Gutierrez
Fire Chief Executive Director
Finance & Mgmt. Services Agency
~I
22E-2
REQUEST FOR
COUNCIL ACTION y y'
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
CONTRACT AWARD ? As Amended
? Ordinance on 15t Reading
FOR DELL COMPUTERS ? ordinance on 2"d Reading
SPEC. NO. 10-005 ? Implementing Resolution
( ~ ? Set Public Hearing For
CONTINUED TO
FILE NUMBER
ITY MANAGER
~ TION
RECOMMENDED AC
Award a contract to Dell Computer Corporation for the purchase of computer equipment in an
amount not to exceed $20,000.
DISCUSSION
The Santa Ana Public Library faces an ever-increasing demand for computer access and
classes in technologica{ skills. The library is committed to addressing this need. In November
2009, the library received a California State Library grant in the amount of$69,987 to provide
services to promote life-long learning, literacy and educational support, and technology access
for Santa Ana residents. As part of the grant-funded program, ten computer notebooks for an
amount of $9,985 will be purchased to enable staff to conduct workshops and classes in venues
within and outside the City libraries. Reaching a larger number of children, teens and adults with
literacy training fulfills an essential service mandated by the grant. The remaining balance of
funds is to accommodate future grant-funded technology purchases for the City.
Santa Ana Ordinance No. NS-2312 authorizes the City to purchase against contracts from any
public agency utilizing a competitive bid process. The Western States Contracting Alliance
(WSCA) establishes California Multi-State Cooperative Agreements for Commodities, IT Goods
& Services, and Telecommunication Goods and Services. WSCA agreements are available to all
State of California governmental entities that expend public funds for the acquisition of both
goods and services. Dell Computer Corp. is a manufacturer offering WSCA pricing. This
purchase, when combined with purchases made by the Gity with Dell Computer Corp, exceeds
the $25,000 aggregate limit, requiring council approval.
22F-1
Contract Award for Dell Notebooks
March 1, 2010
Page 2
FISCAL IMPACT
Funds in the amount of $9,985 are available in the Connect to Your Future! Program in the
Library Services & Technology account (no. 15411192- 63001). The remaining funds will be
allocated from future technology grants.
APPROVED AS TO FUNDS AND ACCOUNTS:
/ ~
s-iAZ a -
Gerardo R. Mou Francisco Gutierrez
Executive Director / Executive Director
Parks, Rec. & Corr~m. Services Agency Finance & Mgmt. Services Agency
22F-2
REQUEST FOR a3
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
CONTRACT AWARD FOR REPAIR ? As Amended
? Ordinance on 15i Reading
OF CNG COMPRESSOR ? Ordinance on 2"d Reading
(SPEC. NO. 10-006) ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
~ FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Award a contract to Gas Equipment Systems Inc. to repair one CNG slow fill compressor in an
amount not to exceed $28,700.
DISCUSSION
The Finance and Management Services Agency Fleet Maintenance Division operates two
om ressed Natural Gas CNG slow fill com ressors in the Fleet yard. The units
Ingersoll Rand C p ( ) p
are used nightly to fill eleven CNG street sweepers. One of the two compressors, installed in
2002, is not functioning and the fill program is currently operating with the remaining compressor.
The downed unit has reached its maximum operating hours and now requires a complete
overhaul.
Gas Equipment Systems, the original installer, is the area distributor approved by P.C. McKenzie
Company, the master distributor for Ingersoll Rand CNG product line. Staff recommends the
contract to repair the compressor to guarantee daily operation of the CNG program. A 12
percent contingency for ongoing maintenance has been included in the award amount.
FISCAL IMPACT
Funds are available in the Fleet Maintenance's Machine & Equipment account (no. 03110101
66400).
Francisco Gutierrez
Executive Director
Finance and Management Services Agency
FG/KM
22G-1
22G-2
REQUEST FOR x
COUNCIL ACTION `
3 ~ ~-^i
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
CONTRACT AWARD FOR MISCELLANEOUS ? As Amended
? Ordinance on 15` Reading
REPAIRS OF FIRE APPARATUS ? Ordinance on 2"d Reading
(SPEC. NO. 10-007) ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
' -<<- FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Award a contract to American LaFrance of Los Angeles for miscellaneous repairs of fire
apparatus for a three year period in an annual amount not to exceed $50,000.
DISCUSSION
The City establishes an annual list of vendors providing supplies and services required by
agencies on a consistent basis. American LaFrance of Los Angeles provides parts and repairs
for fire apparatus to the Fleet Maintenance division. American LaFrance is the authorized
Southern California repair facility with certified emergency vehicle technicians. The vendor offers
reliable service, and is the sole source location for American LaFrance trucks in California. As
I~ such, the recommended action will allow maintenance on the City's fleet of fire apparatus as
needed.
FISCAL IMPACT
Funds are available in the Fleet Maintenance Division's Maintenance & Repair of Machinery &
Equipment account (no. 07510100 62322).
Francisco Gutierrez
Executive Director
Finance and Management Services Agency
FG/KM
22H-1
22H-2
REQUEST FOR is
COUNCIL ACTION y~-~
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
CONTRACT AWARD FOR PLAZA OF ? As Recommended
THE FOUNTAINS NUMBERS 1 AND 3 ? As Amended
? Ordinance on 15` Reading
RENOVATION (PROJECT NOS. 09-9108 ? ordinance on 2"d Reading
& 08-9097) ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
% ~ FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
1. Award a contract to South Coast Pool Plastering, Inc., the lowest responsible bidder, in
accordance with the base bid in the estimated amount of $249,600 for construction of Plaza
of the Fountains Nos. 1 and 3 Renovation.
2. Approve a Funding Analysis with a total estimated construction cost of $312,000.
DISCUSSION
The Civic Center Law Library Fountains, also known as Fountains Numbers 1 and 3, have not
been working for several years due to deterioration and maintenance problems (Exhibit 1). The
Plaza of the Fountains renovation project includes addressing cracks and leakage in the
fountains, providing a new spray center jet and lighting, and replacing the electrical and plumbing
systems. Once completed, the improvements will increase the aesthetic quality of the fountains
and the surrounding civic center area.
The Notice Inviting Bids was advertised on December 23 and 28, 2009, and bids were opened on
January 19, 2010. A summary of the bid invitations mailed, the bids received, and the bid results
follows.
Santa Ana Contractors receiving notices: 18
Contractors requesting bidding documents: 17
Bids received: 4
Bids received from Santa Ana Contractors: 1
23A-1
Contract Award For Plaza
of the Fountains Nos. 1 & 3
Renovation
March 1, 2010
Page 2
NAME OF RESPONSIVE BIDDER CITY BID AMOUNT
1. South Coast Pool Plastering, Inc. Lakeside $249,600
2. California Commercial Pools, Inc. Glendora $359,800
A total of four bids were received and two were responsive. Hondo Company, Inc. submitted a bid
that did not have the required license. Pacific Aquascape, Inc. (PAI) submitted a qualifying
statement with their bid, which modifies the advertised bid documents and therefore, PAI's bid is
not responsive. The lowest bid was submitted by South Coast Pool Plastering, Inc., for $249,600,
which is below the Engineer's estimate of $300,000.
ENVIRONMENTAL IMPACT
Environmental Review No. 2010-18 has been completed and the Categorical Exemption will be
filed upon Award of contract pursuant to the California Environmental Quality Act.
FISCAL IMPACT
The funding analysis shows a total estimated construction cost of $312,000, for the project (Exhibit
2). Funds are available in the Other County Funding (accounting unit 07413260-66220).
APPR
OVED AS TO FUNDS AND ACCOUNTS:
Raul Godinez II Francisco Gutierrez
Executive Director Executive Director
Public Works Agency Finance & Management Services Agency
Gerardo Mouet
Executive Director
Parks, Recreation, and Community
Services Agency
RG/ET
Exhibit 1: Location Map
Exhibit 2: Funding Analysis
23A-2
W
CIVIC CENTER DR.
PARKING
STRUCTURE LIBRARY
COUNTY COURTHDUSE
PROJECT
LOCATION RDSS A"NEx
CITY HALL
LAW
LIBRARY (n
_ STATE
UILDIN PARKING N
TRUCTUR O
W
J
FEDERAL
BW LDING
SANTA ANA BLVD (4TH ST)
LEGEND:
OWN ORgNC~
PROJECT LOCATION
EXHIBIT 1 32 ci
SANTA ANA ~ ~I ~ `
TITLE: ~ ~ ~
CITY COUNCIL PLA~ATOFCTHEWFOUNTARNS
P W A AGENDA DATE: NOS. 1 AND 3 RENOVATION
MARCH t . 20t ~ PROJECT N0. 099108 and 089097 )
PUBL [C WORKS AGENCY
23A-3 '
23A-4
FUNDING ANALYSIS
PROJECT NOS. 09-9108 AND 08-9097
PLAZA OF THE FOUNTAINS NUMBERS 1 AND 3 RENOVATION
Construction Contract $249,600
Contingencies $62,400
TOTAL ESTIMATED CONSTRUCTION
COSTS 312 000
Exhibit 2
23A-5
i
23A-6
REQUEST FOR
COUNCIL ACTION
a
~s
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
AGREEMENT WITH WESTBOUND ? As Amended
COMMUNICATIONS FOR READY OC ? ordinance on ~s~ Reading
? Ordinance on 2"d Reading
EMERGENCY PREPAREDNESS CAMPAIGN ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager and the Clerk of the Council to execute an agreement in an amount
not to exceed $150,000 with Westbound Communications, subject to non-substantive changes
approved by the City Manager and City Attorney for the Emergency Preparedness Campaign
within the Anaheim/Santa Ana Urban Homeland and Security Area.
DISCUSSION
The United States Department of Homeland Security provides funds to local emergency first
responders to enhance security and overall preparedness against acts of terrorism. Santa Ana
has been designated as an Urban Area Core City for the eighth year for the area which
encompasses the 34 jurisdictions in Orange County.
In FY2009, the Santa Ana Police Department accepted the bid by Westbound Communications
and entered into an agreement to provide web-based and multi-media communications and
marketing services for emergency preparedness. This agreement is Phase II of a public
awareness campaign to provide citizens critical public safety information.
With oversight by the Santa Ana Police Department Homeland Security Division, Westbound will
continue to expand and update the current ReadyOC website. Westbound Communications will
plan and execute several multi-media events, expand outreach into social media venues, and
establish a core advisory and business partnership group. The goal of this agreement is to
encourage Orange County residents to become prepared, aware, pro-active and involved in their
personal and community safety plans.
25A-1
Agreement for Orange County
Emergency Preparedness Campaign
March 1, 2010
Page 2
FISCAL IMPACT
Funds are available in the FY 2008 UASI Grant fund account (no.12514490-62300, activity
10424001186 account category 3492).
APPROVED AS TO FUNDS AND ACCOUNTS:
t%~
~~9~SS1~ 1.~~~
Paul M. Walters Francisco Gutierrez
Chief of Police Executive Director
Police Department Finance & Mgmt. Services Agency
25A-2
CONSULTANT AGREEMENT
THIS AGREEMENT, made and entered into this 11~` day of March, 2010 by and
between Westbound Communications, Inc. (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 professional Web Site and promotional communications services.
B. City, acting through the Santa Ana Police Department in its capacity as the
Core City for the Santa Ana Urban Area under the FY08 Urban Areas
Security Initiative, has applied for, received and accepted a grant from the
Federal Department of Homeland Security, Office of Domestic Preparedness,
through the State of California, Emergency Management Agency, to enhance
countywide emergency preparedness, hereinafter referred to as "the Grant."
C. Consultant represents that Consultant is able and willing to provide such
services to the City.
D. In undertaking the performance of this Agreement, Consultant represents that
it is knowledgeable in its field and that nay 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 continue web site enhancement and hosting services, as well as
promotional services for the ReadyOC (ROC) Emergency Preparedness
Campaign, as set forth in Exhibit A attached to this Agreement.
2. COPYRIGHT
Except as otherwise provided in the terms and conditions of this agreement,
consultant may copyright any books, publications or other copyrightable materials
developed in the course of or under this agreement. However, the federal
awarding agency, State Administrative Agency (SAA) and City reserve aroyalty-
free, non-exclusive, and irrevocable license to reproduce, publish or otherwise
use, and to authorize others to use, for federal government, SAA and/or City
purpose:
25A-3
(1) the copyright in any work developed through this agreement; and
(2) any rights of copyright to which the subcontractor purchases ownership with
support through this grant. The Federal government's, SAA's and City's
rights identified above must be conveyed to the publisher and the language of
the publisher's release form must ensure the preservation of these rights.
3. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its
services, the rates and charges identified in Exhibit A. The total sum to be
expended under this Agreement shall not exceed $135,000.00 during the term
of this Agreement.
b. Out of pocket expenses, including mileage, copies and phone, will be billed
separately on the first of each month, for the preceding month. Expenses that
individually exceed $500, or aggregate $1,000 in any one month, will require
prior written approval of City.
c. 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 for in the Recitals which may reasonably be
expected by City.
4. TERM
This Agreement shall commence on the date first written above and terminate on
completion of all training pursuant to this Agreement, unless terminated earlier in
accordance with Section 13, below.
5. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not
intended nor shall it be construed to create and 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 ofthis Agreement; however, the services to 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.
2 5A-4
6. 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:
(i) Certificates of insurance shall be furnished to the City upon
execution of this Agreement and shall be approved in form by the
City Attorney.
(ii) 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, ten
(10) days notice if cancellation is due to non payment of premium.
d. 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 effect 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.
7. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers,
agents, employees, consultants, special counsel, and representatives from liability
for personal injury, damages, just compensation, restitution, judicial or equitable
relief arising out of claims from personal injury, including health, 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, to the extent the same are due to their negligence or other wrongful
conduct. 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 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.
25A-5
8. 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 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.
9. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has not interests and shall not have
interests, direct or indirect, which would conflict in any manner with performance of
services specified under this Agreement.
10. 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
P.O. BOX 1988
Santa Ana, CA 92702-1988
Fax (714) 647-6956
25A-6
With courtesy copies to:
Chief of Police
City of Santa Ana
60 Civic Center Plaza (M-97)
P.O. Box 1981
Santa Ana, CA 92702
Fax (714) 245-8007
And City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, CA 92702
To Consultant: Westbound Communications
Rick Miltenberger
625 The City Drive, Suite 360
Orange, CA 92868
A party may change its address by giving notice in writing to the other party. Thereafter,
communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have bee 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.
11. 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
Consultant nor 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.
25A-7
12. 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.
13. TERMINATION
This Agreement may be terminated by either party 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.
14. 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.
15. 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.
25A-8
16. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary.
licenses, permits, approvals, waivers, and exemptions necessary for the provision
of the services hereunder and required by the laws and regulations of the United
States, the State of California, the City of Santa Ana and all other governmental
agencies. Consultant shall notify the City immediately and in writing of its
inability to obtain or maintain such permits, licenses, approvals, waivers, and
exemptions. Said inability shall be cause for termination of this Agreement.
17. CONSULTANT CERTIFICATIONS
a. Audit Records -With respect to all matters covered by this agreement all
records shall be made available for audit and inspection by the City, the grant
agency and/or their duly authorized representatives for a period of three (3)
years from the termination of this Agreement.
For a period of three years after final delivery hereunder or until all claims
related to this Agreement are finally settled, whichever is later, Consultant
shall preserve and maintain all documents, papers and records relevant to the
services provided in accordance with this Agreement, including the
Attachments hereto. For the same time period, Consultant shall make said
documents, papers and records available to City and the agency from which
City received grant funds or their duly authorized representative(s), for
examination, copying, or mechanical reproduction on or off the premises of
Consultant, upon request during usual working hours.
b. Consultant shall provide to City all records and information requested by City
for inclusion in quarterly reports and such other reports or records as City may
be required to provide to the agency from which City received grant funds or
other persons or agencies.
c. Section 504 of the Rehabilitation Act of 1973 (Handicapped) -All recipients
of federal funds must comply with Section 04 of the Rehabilitation Act of
1973 (The Act). Therefore, the federal funds recipient pursuant to the
requirements of The Act hereby gives assurance that no otherwise qualified
person shall, solely by reason of handicap be excluded from the participation
in, be denied the benefits of or be subject to discrimination, including
discrimination in employment, in any program or activity that receives
benefits from federal financial assistance. The Consultant agrees it will
ensure that requirements of The Act shall be included in the agreements with
and be binding on all of its contractors, subcontractors, assignees or
successors.
25A-9
d. Americans with Disabilities Act of 1990 (ADA) -Consultant must comply
with all requirements of the Americans with Disabilities Act of 1990 (ADA),
as applicable.
e. Political Activity -None of the funds, materials, property, or services provided
directly or indirectly under this agreement shall be used for any partisan
political activity, or to further the election or defeat of any candidate for public
office, or otherwise in violation of the provisions of the "Hatch Act."
£ Civil Rights Compliance and Notification of Findings -Consultant will
comply, and all its contractors (or sub recipients) will comply, with the
nondiscrimination requirements of the Omnibus Crime Control and Safe Streets
Act of 1968, as amended, 42 USC 3789 (d), or Victims of Crime Act (as
appropriate); Title VI of the Civil Rights Act of 1964, as amended; Section 504
of the Rehabilitation Act of 1964, as amended; Subtitle A, Title II of the
Americans with Disabilities Act (ADA) (1990); Title IX of the Education
Amendments of 1972; the Age Discrimination Act of 1975; Department of
Justice Non-Discrimination Regulations, 28 CFR Part 42, Subparts C, D, E, and
G; and Department of Justice regulations on disability discrimination, 28 CFR
Part 35 and 39. In the event a Federal or State court, Federal or State
administrative agency, or the Consultant makes a finding of discrimination
after a due process hearing on the grounds of race, color, religion, national
origin, sex, or disability against a recipient of funds, the Consultant will
forward a copy of the findings to the City which will, in turn, submit the
findings to the Office of Civil Rights, Office of Justice Programs, U.S.
Department of Justice.
18. 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.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if
fully set forth in the body of this Agreement.
25A-10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
ATTEST: CITY OF SANTA ANA
MARIA HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney WESTBOUND COMMUNICATIONS, INC.
By:
RICK MILTENBERGER
Senior Vice President
Tax ID#
25A-11
EXHIBIT A
STATEMENT OF WORK
General Information:
The following Statement of Work (SOW) defines the principle activities and
responsibilities of all parties for professional web site and promotional communications
services to support the ReadyOC (hereinafter ROC) Emergency Preparedness Campaign.
This scope of work shall stand as an agreement between the City of Santa Ana
(hereinafter Santa Ana) and Westbound Communications (hereinafter WBC).
WBC will supply the following services:
o ROC Web Site Management
o Site content updating
o Social media content updating
o Site optimization
o Site maintenance
o Marketing and Promotional Support for ROC Program
o Establishment of a Phase II Marketing Plan
o Design and Printing of Collateral Materials
o Advertising Services
o Event Marketing
o Publicity Services
o Project Administration Services
No deviation of this SOW will be allowed without written consent from the Santa Ana
Project Manager. Nevertheless, Santa Ana recognizes that projects of this magnitude will
likely encounter various unforeseeable events that may cause tasks to overlap or change,
and such change will be permissible with the approval of Santa Ana Project Manager.
This SOW is contingent upon both WBC and Santa Ana fulfilling their respective
responsibilities as defined in the Agreement and within this document.
Attachments
The following attachments are included with this SOW:
Attachment A-1 Marketing Plan
Attachment A-2 Project Change Order
Attachment A-3 Project Schedule
Attachment A-4 Milestone Payment Schedule
25A-12
General Project Management Responsibilities
Project management occurs throughout the project and is involved in every task. The
overall project management activities are listed here for reference.
Westbound Responsibilities:
a. Maintain project communications with Santa Ana's Project Manager.
b. Manage the efforts of the WBC staff and coordinate WBC activities with the
Santa Ana Project Manager.
c. Conduct on site status meetings with Santa Ana's Project Manager on a monthly
basis or when reasonably required at the discretion of Santa Ana to discuss project
status.
d. Provide timely responses, within ten (10) business days, to issues raised by Santa
Ana's Project Manager.
e. Prepare and submit, no later than the fifth business day of each month, a status
report that includes: the accomplishments of the previous month, activities
planned for the current month and any update to the project schedule.
f. Prepare and submit project Change Proposals to Santa Ana's Project Manager as
necessary.
g. Prepare and submit Task Completion Letter(s) to Santa Ana's Project Manager as
necessary.
Santa Ana Responsibilities:
a. Maintain project communications with the WBC Project Manager.
b. Manage the efforts of ROC involved staff and coordinate ROC activities with the
WBC Project Manager.
c. The Project Manager must ensure that their personnel have ample time, resources,
and expertise to carry out their respective tasks and responsibilities.
d. The Project Manager or his designee will participate in the status meeting with the
WBC Project Manager on a monthly basis or as may otherwise be reasonably
required to discuss project status.
e. Provide timely responses, within ten (10) business days, to issues raised by the
WBC Project Manager.
25A-13
SOW Format:
Each task includes the following: Title, Objective, Task Description, Responsibilities and
Completion Criteria. The tasks are depicted on the project schedule. All parties recognize
that the SOW is not formatted chronologically with contractual obligations defaulting to
Project Schedule unless otherwise noted.
Task 1: Phase II Initiation
Objective:
Establish project schedules, marketing plan and procedures
Task Description:
The next portion of the ROC campaign will begin with a Phase II Initiation, including all
key Santa Ana and WBC project participants
The objectives of this task are to:
1. Reintroduce all project participants
2. Review roles of key participants
3. Refine, review and approve Phase II initiatives, including the marketing plan
and project schedule
Responsibilities:
WBC shall:
a. Designate the lead Project Manager who will direct WBC's efforts and serve as
the primary point of contact for Santa Ana. The responsibilities of the WBC
Project Manager include:
1. Maintain project communications with Santa Ana's Project Manager.
2. Manage the efforts of WBC staff and coordinate WBC activities with Santa
Ana's project team members.
3. Measure, evaluate and report the progress against the Project Schedule, to be
developed, reviewed and finalized
4. Resolve deviations from the Project Schedule.
5. Monitor the project to ensure that support resources are available as scheduled
and as identified in the Agreement.
6. Coordinate and oversee the installation of all WBC activities.
7. Review and administer change control procedures through Santa Ana's
Project Manager, whereby Santa Ana's requested change and associated
payment schedule is described in a Standard Change and Approval Letter
commonly referenced as "Project Change Order", issued by the WBC Project
Manager.
25A-14
8. Conduct on-site status meetings with Santa Ana's Project Manager on a
monthly basis, or as may otherwise by reasonably required to discuss project
status. WBC must make themselves available for monthly on-site meetings,
recognizing that Santa Ana may waive their right to hold an on-site meeting if
conditions warrant.
9. Provide timely responses to issues related to project progress raised by Santa
Ana's Project Manager.
10. Prepare and submit, no later than the fifth business day of each month, a status
report that identifies the activities of the previous month, as well as activities
planned for the current month, including an updated Project Schedule.
b. Establish a schedule, locations and agenda to meet with Santa Ana personnel for
the requirements validation meetings related to the overall project.
c. Work with Santa Ana personnel in designing and approving the format of an
action item log to be used in conjunction with the Project Schedule. The purposes
of the log are to identify outstanding issues, provide continual status updates on
specific tasks and to identify responsibilities of the parties.
Santa Ana shall:
a. Designate a Project Manager whose responsibilities include:
1. Maintain project communications with WBC's Project Manager.
2. Identify the efforts required of Santa Ana staff to meet Santa Ana's task
requirements and milestones in the Statement of Work and Project Schedule.
3. Assist WBC in developing a detailed Project Schedule defining the detailed
tasks and a schedule of WBC and Santa Ana responsibilities.
4. Review the Project Schedule with WBC's Project Manager.
5. Monitor the project to ensure that support resources are available as
scheduled.
6. Attend status meetings with WBC's Project Manager.
7. Provide timely responses to issues related to project progress raised in writing
by WBC's Project Manager.
8. Liaison and coordinate with other ROC partners, other governmental
agencies, contractors and common carriers.
9. Review and administer change control procedures, hardware and software
certification, and all related project tasks required to maintain the
implementation schedule.
10. Ensure that all documents are approved or rejected by Santa Ana within ten
(10) business days of submission, unless explicitly addressed in the Contract
or Statement of Work.
11. Approve and release payments in a timely manner.
25A-15
b. Ensure that all appropriate Santa Ana personnel attend and actively participate in
the Phase II Initiation.
c. Ensure acceptable Standard Change Order and Approval Letter(s) are approved
by authorized signature(s).
d. Work with WBC personnel in designing and approving of the format of an action
item log to be used in conjunction with the Project Schedule. The purposes of the
log are to identify outstanding issues, provide continual status updates on specific
tasks and to identify responsibilities of the parties.
Completion Criteria:
This task is considered complete when the Phase II Initiation has been held/approved
with WBC representatives in attendance, an action item log has been developed by both
WBC and Santa Ana, and a schedule has been prepared.
Task 2: Micro Campaigns
Objective:
Develop and implement a series of promotions for ROC during 2010
Task Description:
The micro campaigns will be designated promotional initiatives that will be individually
implemented with a specific beginning and end date (see following sub-tasks for
specifics).
Responsibilities:
See sub-tasks for specifics.
Completion Criteria:
This task is considered complete when all budgeted sub-tasks have been completed in
their respective entirety.
Task 2-A: `Pledge to Prepare' Promotion
Objective:
Develop, implement and launch a 6-8 week promotion that `launches' a new ROC
`pledge' as the thematic linchpin for the 2010 campaign.
25A-16
Task Description:
The promotion will include the public pronouncement that ROC will seek a to-be-
determined number of `pledges' from Orange County residents, businesses and
community members that commit them to take emergency preparedness action through
the use of:
a. Promotion Plan Brief - create a 2-3 page brief that specifies promotion details and
timeline
b. Media Announcement -press release, press conference and other appropriate
press outreach leveraging key partners (i.e. Supervisor Pat Bates office, etc.)
c. Corporate Advisory Council Advocacy & Support -press conference and other
appropriate leveraging of the re-established group (see Task 3 for more details)
d. Radio Advertisements -develop and implement a 4-6 week radio promotional
campaign similar in scope to the Phase I Clear Channel program in 2009
e. ROC Web Site -create `pledge' widget, ticker, online sign-up form and database
structure to support promotion and capture/track pledges
f. Online Promotion - create a plan for online promotion through countywide web
sites, portals and other channels
Responsibilities:
WBC shall:
a. Develop the promotion and seek plan approval from the ROC Advisory
Committee
b. Execute the promotion in accordance with the approved plan
Santa Ana shall:
a. Approve plan and promotion elements
Completion Criteria:
This task is considered complete upon the deployment of all tasks as per the Phase II
Marketing Plan, the Promotion Plan Brief and/or agreed upon departures.
Task 2-B: Video Competition
Objective:
Develop, implement and launch a 6-8 week contest and promotion centered around the
creation of videos (:10 to :15 seconds) from the community that compels, inspires,
demonstrates and/or underscores a pledge to emergency preparedness.
25A-17
Task Description:
Aligned with the `pledge' theme for 2010, the contest will be designed drive the public to
the ROC web site and to engage community members in actively taking emergency
preparedness actions. The content and promotion will be implemented through the use of:
a. Promotion Plan Brief - create a 2-3 page brief that specifies content details and
the promotional timeline
b. Contest & Judging Criteria -this includes detailing contest parameters and rules
that are in accordance with grant funding regulations or stipulations, as well as
establishing judging and award parameters
c. Media Announcements -press releases, media calendars and other appropriate
press outreach to announce the contest, encourage entries, showcase selected
finalists and ultimately promote winners
d. Contest Partnering -explore and, if appropriate, secure a partnership with a media
property (KOCE, KABC) and/or school (UCI, Chapman College) to assist with
contest and promotional production
e. Web Site -create contest widget, sign-ups and database structure to support
promotion
f. Viral Promotion of Selected Submissions -leverage appropriate contest
submissions for viral online promotion
g. ROC Video -create and virally distribute ROC-developed video promoting the
contest (and demonstrating potential approaches)
h. Online Promotion - create a plan for online promotion through countywide web
sites, portals and other channels
Responsibilities:
WBC shall:
a. Develop the promotion and seek plan approval from the ROC Advisory
Committee
b. Execute the promotion in accordance with the approved plan
Santa Ana shall:
a. Approve plan and promotion elements
Completion Criteria:
This task is considered complete upon the deployment of all tasks as per the Phase II
Marketing Plan, the Promotion Plan Brief and/or agreed upon departures.
25A-18
Task 2-C: Leveraged Pledge Drives
Objective:
Explore opportunities through the ROC Steering Committee to partner with key county
organizations to help drive community-wide emergency preparedness pledges.
Task Description:
Work with the ROC Steering Committee to target the OC Fair, Angels and the Ducks for
no-cost and/or in-kind support for the ROC campaign. The scope of these drives will be
proportional to the ability of the committees (or Corporate Advisory Council) to leverage
relationships to minimize or eliminate promotional and/or sponsorship costs. Currently,
there is no UASI grant funding allocated to the 2010 ROC campaign budget. Minimally,
ROC can establish some type of canvassing effort at each venue to drive emergency
awareness, promote the Pledge to Prepare and capture pledges.
Responsibilities:
WBC shall:
a. Work with ROC Steering Committee and/or Corporate Advisory Council to
support inquiries as appropriate
Santa Ana shall:
a. Work with ROC Steering Committee and/or Corporate Advisory Council to
support inquiries as appropriate
Completion Criteria:
This task is currently unbudgeted. Criteria will be established pending resource
commitment from a sponsoring organization.
Task 3: Corporate Advisory Council
Objective:
Re-establish group of business and community leaders who have experience in
emergency response and/or marketing and engage them in supporting ROC.
Task Description:
The council will be designed to bring leaders together to help provide opportunities,
extensions, and ongoing support for ReadyOC.
Responsibilities:
See sub-tasks for specifics.
25A-19
Completion Criteria:
This task is considered complete when all budgeted sub-tasks have been completed in
their respective entirety.
Task 3-A: Participant Solicitation. Recruitment & Orientation
Objective:
Identify, solicit, recruit, secure and orient a minimum of 12 participants
Task Description:
The steps to rebuilding this advisory group include the following:
a. Previous Member Outreach -develop and implement outreach to all appropriate
previous members; create and distribute invite; coordinate all follow-up and
recruitment
b. New Member Outreach -research and develop list of prospective new members;
create and distribute invite; coordinate all follow-up and recruitment
c. Orientation Meeting -plan and conduct orientation meeting and presentation for
secured advisory group participants
d. Media Announcement -develop and distribute press release announcing advisory
board members
e. Web Site -announce and promote advisory committee members through site.
Responsibilities:
WBC shall:
a. Identify invite prospects
b. Execute all task elements
Santa Ana shall:
a. Review and approve invite prospects list
b. Review and approve outreach elements
Completion Criteria:
This task is considered complete upon the deployment of all tasks as per the Phase II
Marketing Plan and/or agreed upon departures.
25A-20
Task 3-B: Council Meetings (2)
Objective:
Develop and conduct two Corporate Advisory Council meetings subsequent to the initial
Orientation session
Task Description:
Manage all meeting components, including participant invitation, logistics management,
meeting objectives, agenda and presentations, pre- and post-meeting communications and
other elements as appropriate.
Responsibilities:
WBC shall:
a. Handle all pre-, during and post-meeting management
b. Execute two Corporate Advisory Council meetings per the Project Schedule
Santa Ana shall:
a. Review and approve meeting dates, logistics, objectives, agendas, presentations
and correspondence
Completion Criteria:
This task is considered complete upon the completion of two meetings per the Phase II
Marketing Plan and/or agreed upon departures.
Task 4: Web Site & Social Media
Objective:
Develop and implement ongoing web site and social media content, maintenance and
management activities.
Task Description:
Handle all aspects of annual web site and social media content updates, site optimization,
site maintenance and site management needs for readyoc.org in 2010.
Responsibilities:
See sub-tasks for specifics.
Completion Criteria:
This task is considered complete when all budgeted sub-tasks have been completed in
their respective entirety.
25A-21
Task 4-A: Content Updates, Management & Maintenance -First
Trimester
Objective:
Develop and implement ongoing web site and social media content, maintenance and
management activities for January 2010 through Apri12010.
Task Description:
Handle all aspects of annual web site and social media content updates, site optimization,
site maintenance and site management needs in accordance with ROC approved
protocols:
a. Site Administration -oversee and coordinate site administration platform (web
server hardware and software) in conjunction with the County of Orange; respond
to platform errors or failures; manage and monitor monthly, quarterly and annual
site analytics; respond to daily web inquiries and comments; provide 24/7 support
of platform
b. Site Maintenance -develop and implement all ongoing content monitoring,
adjustments and updates in accordance with ROC approve protocols; serve as site
moderators, reviewing and vetting all content prior to posting; spearhead all
updates and responses as follows:
1. Daily Review
o Review any stakeholder (e.g., municipal blog page) and/or user
submitted content (e.g., email request) and respond within 48 hours of
receipt during Monday through Thursday. Submissions or inquiries
received Friday through Sunday will be responded to before end of
business on the following Monday.
o An automated response will be in place that immediately
acknowledges receipt of any submission or email and will alert the
sender when to expect a formal response.
o Appropriate "In the News" items will be checked Monday through
Friday for updates and accuracy by the Westbound team. OC Register-
customized RSS feed content as well as any ROC stakeholder-
provided material (e.g., training and event announcements) will be
vetted and updated as appropriate.
o Follow all protocols from the approved ROC Web Administration and
Maintenance System.
25A-22
2. Standard Content and Link Updates
o Review any stakeholder (e.g., municipal blog page) and/or user
submitted content (e.g., email request) and respond within 48 hours of
receipt during Monday through Thursday. Submissions or inquiries
received Friday through Sunday will be responded to before end of
business on the following Monday.
o Monitor and respond to all standard, non-emergency content and link
updates within three business days.
o Follow all protocols from the approved ROC Web Administration and
Maintenance System.
3. Central Focus Area Updates
o Updates to the Central Focus Area on the Home page will be made, at
a minimum, every 30 days.
o WBC will manage content update ideas and materials, submitting
these to the ROC Advisory Committee for review and approval at least
two weeks prior to the go-live date.
4. County Emergency Response & Recovery Home Page Updates
o During a countywide or significant regional emergency/disaster event,
the ReadyOC.org Home page will be updated to advise and direct
visitors to appropriate information resources in accordance with
operational emergency management protocols.
o WBC will be responsible for monitoring the Home page and returning
it to the standard configuration upon direction from the
c. Social Media Content Management & Posting -develop and monitor content as
well as manage platforms for ROC Twitter, FaceBook and YouTube social media
channels. All content will be updated in accordance with the approved System
Logs for each channel. These System Logs detail frequency of updates,
monitoring criteria and all management processes.
Responsibilities:
WBC shall:
a. Handle implementation of all tasks listed above
b. Coordinate with Santa Ana Project Manager for all necessary approvals
Santa Ana shall.
a. Review and approve content updates as appropriate
Completion Criteria:
This task is considered complete when all elements have been appropriately deployed
based on the Phase II Marketing Plan and System Logs.
25A-23
Task 4-B: Content Updates, Management & Maintenance -Second
Trimester
Objective:
Develop and implement ongoing web site and social media content, maintenance and
management activities for May 2010 through August 2010.
Task Description:
Handle all aspects of annual web site and social media content updates, site optimization,
site maintenance and site management needs in accordance with ROC approved
protocols:
a. Site Administration -oversee and coordinate site administration platform (web
server hardware and software) in conjunction with the County of Orange; respond
to platform errors or failures; manage and monitor monthly, quarterly and annual
site analytics; respond to daily web inquiries and comments; provide 24/7 support
of platform
b. Site Maintenance -develop and implement all ongoing content monitoring,
adjustments and updates in accordance with ROC approve protocols; serve as site
moderators, reviewing and vetting all content prior to posting; spearhead all
updates and responses as follows:
1. Daily Review
o Review any stakeholder (e.g., municipal blog page) and/or user
submitted content (e.g., email request) and respond within 48 hours of
receipt during Monday through Thursday. Submissions or inquiries
received Friday through Sunday will be responded to before end of
business on the following Monday.
o An automated response will be in place that immediately
acknowledges receipt of any submission or email and will alert the
sender when to expect a formal response.
o Appropriate "In the News" items will be checked Monday through j
Friday for updates and accuracy by the Westbound team. OC Register-
customized RSS feed content as well as any ROC stakeholder-
provided material (e.g., training and event announcements) will be
vetted and updated as appropriate.
o Follow all protocols from the approved ROC Web Administration and
Maintenance System.
25A-24
2. Standard Content and Link Updates
o Review any stakeholder (e.g., municipal blog page) and/or user
submitted content (e.g., email request) and respond within 48 hours of
receipt during Monday through Thursday. Submissions or inquiries
received Friday through Sunday will be responded to before end of
business on the following Monday.
o Monitor and respond to all standard, non-emergency content and link
updates within three business days.
o Follow all protocols from the approved ROC Web Administration and
Maintenance System.
3. Central Focus Area Updates
o Updates to the Central Focus Area on the Home page will be made, at
a minimum, every 30 days.
o WBC will manage content update ideas and materials, submitting
these to the ROC Advisory Committee for review and approval at least
two weeks prior to the go-live date.
4. County Emergency Response & Recovery Home Page Updates ~i
o During a countywide or significant regional emergency/disaster event,
the ReadyOC.org Home page will be updated to advise and direct
visitors to appropriate information resources in accordance with
operational emergency management protocols.
o WBC will be responsible for monitoring the Home page and returning
it to the standard configuration upon direction from the
c. Social Media Content Management & Posting -develop and monitor content as
well as manage platforms for ROC Twitter, FaceBook and YouTube social media
channels. All content will be updated in accordance with the approved System
Logs for each channel. These System Logs detail frequency of updates,
monitoring criteria and all management processes.
Responsibilities:
WBC shall:
a. Handle implementation of all tasks listed above
b. Coordinate with Santa Ana Project Manager for all necessary approvals
Santa Ana shall:
a. Review and approve content updates as appropriate
Completion Criteria:
This task is considered complete when all elements have been appropriately deployed
based on the Phase II Marketing Plan and System Logs.
25A-25
Task 4-C: Content Uudates. Management & Maintenance -Third
Trimester
Objective:
Develop and implement ongoing web site and social media content, maintenance and
management activities for September 2010 through December 2010.
Task Description:
Handle all aspects of annual web site and social media content updates, site optimization,
site maintenance and site management needs in accordance with ROC approved
protocols:
a. Site Administration -oversee and coordinate site administration platform (web
server hardware and software) in conjunction with the County of Orange; respond
to platform errors or failures; manage and monitor monthly, quarterly and annual
site analytics; respond to daily web inquiries and comments; provide 24/7 support
of platform
b. Site Maintenance -develop and implement all ongoing content monitoring,
adjustments and updates in accordance with ROC approve protocols; serve as site
moderators, reviewing and vetting all content prior to posting; spearhead all
updates and responses as follows:
i. Daily Review
o Review any stakeholder (e.g., municipal blog page) and/or user
submitted content (e.g., email request) and respond within 48 hours of
receipt during Monday through Thursday. Submissions or inquiries
received Friday through Sunday will be responded to before end of
business on the following Monday.
o An automated response will be in place that immediately
acknowledges receipt of any submission or email and will alert the
sender when to expect a formal response.
o Appropriate "In the News" items will be checked Monday through
Friday for updates and accuracy by the Westbound team. OC Register-
customized RSS feed content as well as any ROC stakeholder-
provided material (e.g., training and event announcements) will be
vetted and updated as appropriate.
o Follow all protocols from the approved ROC Web Administration and
Maintenance System.
25A-26
2. Standard Content and Link Updates
o Review any stakeholder (e.g., municipal blog page) and/or user
submitted content (e.g., email request) and respond within 48 hours of
receipt during Monday through Thursday. Submissions or inquiries
received Friday through Sunday will be responded to before end of
business on the following Monday.
o Monitor and respond to all standard, non-emergency content and link
updates within three business days.
o Follow all protocols from the approved ROC Web Administration and
Maintenance System.
3. Central Focus Area Updates
o Updates to the Central Focus Area on the Home page will be made, at
a minimum eve 30 da s.
IS' Y
o WBC will manage content update ideas and materials, submitting
these to the ROC Advisory Committee for review and approval at least
two weeks prior to the go-live date.
4. County Emergency Response & Recovery Home Page Updates
o During a countywide or significant regional emergency/disaster event,
the ReadyOC.org Home page will be updated to advise and direct
visitors to appropriate information resources in accordance with
operational emergency management protocols.
o WBC will be responsible for monitoring the Home page and returning
it to the standard configuration upon direction from the
c. Social Media Content Management & Posting -develop and monitor content as
well as manage platforms for ROC Twitter, FaceBook and YouTube social media
channels. All content will be updated in accordance with the approved System
Logs for each channel. These System Logs detail frequency of updates,
monitoring criteria and all management processes.
Responsibilities:
WBC shall:
a. Handle implementation of all tasks listed above
b. Coordinate with Santa Ana Project Manager for all necessary approvals
Santa Ana shall:
a. Review and approve content updates as appropriate
Completion Criteria:
This task is considered complete when all elements have been appropriately deployed
based on the Phase II Marketing Plan and System Logs.
25A-27
Task 5: Road Shows & Event Support
Objective:
Develop and implement annual program to support and/or staff 10-12 key countywide
emergency preparedness events (Great Shakeout, National Preparedness Month, South
OC Disaster Preparedness Expo, etc.) based on the Project Schedule
Task Description:
Handle all aspects of road shows and event support activities for ROC in 2010 based on
Project Schedule.
Responsibilities:
See sub-tasks for specifics.
Completion Criteria:
This task is considered complete when all budgeted sub-tasks have been completed in
their respective entirety.
i
Task 5-A: Road Shows & Event Support - February 2010 through June
2010
Objective:
Develop and implement annual program to support and/or staff key countywide
emergency preparedness events based on the Project Schedule.
Task Description:
Handle all aspects of road shows and event support activities based on the Project
Schedule.
Responsibilities:
WBC shall:
a. Handle all event implementation and staffing requirements
b. Coordinate with Santa Ana Project Manager for all necessary updates and
approvals
Santa Ana shall:
a. Review and approve event schedule, collateral support materials and staffing plan
Completion Criteria:
This task is considered complete when all elements have been appropriately deployed
based on the Phase II Marketing Plan and Project Schedule.
25A-28
Task 5-B: Road Shows & Event Support -July 2010 through November
2010
Objective:
Develop and implement annual program to support and/or staff key countywide
emergency preparedness events based on the Project Schedule.
Task Description:
Handle all aspects of road shows and event support activities based on the Project
Schedule.
Responsibilities:
WBC shall:
a. Handle all event implementation and staffing requirements
b. Coordinate with Santa Ana Project Manager for all necessary updates and
approvals
Santa Ana shall:
a. Review and approve event schedule, collateral support materials and staffing plan
Completion Criteria:
This task is considered complete when all elements have been appropriately deployed
based on the Phase II Marketing Plan and Project Schedule.
25A-29
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REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
AGREEMENT FOR TOBACCO RETAIL ? As Amended
? Ordinance on ist Reading
LICENSE COMPLIANCE CHECKS 8~ ? Ordinance on 2"d Reading
INVESTIGATIONS ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
~G~~"'"1--^- FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute the attached agreement with the
California State Department of Public Health for tobacco license compliance checks and
investigations in the amount of $75,000 for cone-year term, subject to non-substantive changes
approved by the City Manager and City Attorney.
DISCUSSION
On October 16, 2006, Council adopted the Tobacco Retail License Ordinance to Chapter 18 of the
Santa Ana Municipal Code to strengthen existing prohibitions against the unlawful sale, use, or
distribution of tobacco and to curb youth access to tobacco. Council also approved the
establishment of an annual tobacco retail license fee at $635 effective January 1, 2007. Since the
implementation of the ordinance, 291 retailers have complied with the tobacco retail license
requirement.
As part of this program the Police Department has partnered with the California State Department of
Public Health (CDPH) to conduct investigations throughout the City of Santa Ana to determine if
tobacco retailers are in compliance with the City's Tobacco Retail License Ordinance and with
California's Stop Tobacco Access to Kids Enforcement Act. Staff recommends entering into the
agreement for aone-year term in an amount not to exceed $75,000. CDPH will conduct a minimum
of 100 investigations at a rate of $460 per investigation.
25B-1
Agreement for Tobacco Retail
License Compliance Checks
March 1, 2010
Page 2
FISCAL IMPACT
Funds are available in the Police Department's Tobacco Retail License Ordinance (account no.
01114490-62300).
APPROVED AS TO FUNDS AND ACCOUNTS:
~
Paul M. Walters Fran s Gut
rre~z ~ ~
Chief of Police Executive Director
Police Department Finance & Mgmt. Services Agency
25B-2
AGREEMENT BETWEEN THE CITY OF SANTA ANA AND THE DEPARTMENT OF
PUBLIC HEALTH FOR TOBACCO LICENSE COMPLIANCE
CHECKS AND INVESTIGATIONS
THIS AGREEMENT, made and entered into this 1st day of March, 2010 by and between
the California State Department of Public Health, Food and Drug Branch (hereinafter
"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 (hereinafter "City").
RECITALS
A. The City enacted a Tobacco Retail License Ordinance and desires to investigate
compliance of Tobacco Retailers with the City's Ordinance.
B. Contractor has previously implemented programs throughout the state to conduct
compliance checks and investigate Tobacco Retailers. Contractor represents that it is
able and willing to provide such services to the City.
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 in the field of compliance checks and investigations.
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
Contractor shall perform services as set forth in Exhibit A to this Agreement.
2. COMPENSATION
a. City agrees to pay Contractor as compensation, for complete and satisfactory
performance of the terms of this Agreement, an amount not to exceed Seventy Five Thousand
Dollars ($75,000.00) to be paid at the rate of $460.00 per investigation during the term of this
Agreement. During the term the Contractor agrees to conduct a minimum of 100 investigations
at a rate of $460.00 per investigation. The foregoing amount represents the total compensation
paid by City to Contractor for services to be performed as designated by this Agreement.
b. Contractor shall submit invoices to the City on a quarterly basis. Invoices will state the
time period covered as well as the number of compliance checks completed during the billing
period. Compliance check locations completed during the billing period will be identified on an
attachment submitted with each invoice. Funds shall not be released until the City has approved
l
25B-3
the work received from the Contractor for each invoice period. 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.
c. It is understood that the City makes no commitment to fund this Agreement beyond the
terms set forth herein and is conditioned upon funds being allocated for this program.
3. TERM
This Agreement shall commence on July 1, 2010 and terminate on June 30, 2011 subject
to the termination provisions herein.
4. 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.
5. INSURANCE
Prior to undertaking performance of work under this Agreement, Contractor shall
maintain and shall require its subcontractors, if any, to obtain and maintain Worker's
Compensation Insurance. In accordance with the provisions of Section 3300 of the 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.
6. INDEMNIFICATION
Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, Contractors, special counsel, and representatives from liability for personal injury,
damages, just compensation, restitution, judicial or equitable relief arising out of claims for
personal injury, including health, and claims for property damage, which may arise from the
direct or indirect 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.
2
25B-4
7. 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.
8. CONFLICT OF INTEREST CLAUSE
Contractor 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
telefacsimile (714) 647-6956
With courtesy copies to:
Police Chief
City of Santa Ana
60 Civic Center Plaza
Santa Ana, California 92702
telefacsimile (714) 245-8007
and
City Attorney
City of Santa Ana
3
25B-5
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Contractor: Mr. Benson Yee
Chief of STAKE Enforcement Unit
Department of Public Health
Food and Drug Branch
1500 Capitol Avenue, MS-7602
Post Office Box 997435
Sacramento, California 95899-7435
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
Contractor, and supersedes any and all other a reements, oral or written between the
g arties. In
P
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 terms and conditions hereof, shall not bind or obligate Contractor nor
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
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 Contractors retained by City.
12. TERMINATION
4
25B-6
Either Party to this agreement may terminate the Agreement or any part hereof upon
giving the other party at least thirty (30) days written notice prior to the effective date 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,
however, as a condition of such payment, the Chief of Police 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.
13. DISCRIMINATION
Contractor shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Contractor affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
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.
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 DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER Department of Public Health
City Attorney
B y:
Ryan O. Hodge LISA JOHNSON
Deputy City Attorney Chief of Contracts and Purchasing Services
Section
5
25B-7
EXHIBIT A "SCOPE OF SERVICES"
Services to be Provided by the Contractor
A. The Contractor shall implement a program to expand enforcement of the Stop
Tobacco Access to Kids Enforcement Act (hereinafter "STAKE Act") within the
City of Santa Ana and to investigate compliance of tobacco retailers with the
City's Tobacco Retail License Ordinance. During the term of this Agreement, the
Contractor shall conduct compliance checks and investigations throughout the
City of Santa Ana in order to determine:
1 . Whether or not tobacco retailers display a valid City license in accordance
with the Tobacco Retailer License Ordinance; and
2. Whether or not tobacco retailers maintain displays of cigarettes and
tobacco products in accordance with Cal. Bus. & Prof. Code 22962: and
3. Whether or not tobacco retailers are selling tobacco to minors in violation
of the STAKE Act.
B. Contractor shall utilize funds provided through this Agreement to increase the
number of STAKE Act investigations conducted in the City of Santa Ana. Funds
from this Agreement shall be used to augment and not supplant existing STAKE
Act investigations within the City of Santa Ana.
C. The Contractor shall prepare and submit reports on its observations of tobacco
retailers' compliance with the City's Tobacco Retail License Ordinance and within
thirty (30) calendar days after completion of each compliance check.
D. The Contractor shall report compliance check results on STAKE Act
investigations to the City on a quarterly basis and such reports shall be submitted
with each quarterly billing.
E. Contractor shall provide evidence and testimony regarding investigator's
observations as required by the City for trial or other enforcement action.
Scone of Work
A. Pro ram
The State, through the Department of Public Health (hereinafter "CDPH") will
conduct investigations of tobacco retailers during the term of this agreement,
within the City of Santa Ana, in order to determine compliance with the STAKE
Act, and the City's Tobacco Retail License Ordinance. These investigations will
be in addition to and not in lieu of investigations otherwise planned for the City of
6
25B-8
Santa Ana because the purpose of this program is to augment and not supplant
existing State enforcement efforts. Additionally, 30% of the compliance checks
will be conducted at store locations where previous STAKE violations have
occurred.
CDPH will provide adequate staff, youth operatives and equipment to implement
the program described herein in order to reduce the incidence of tobacco sales to
minors within the City of Santa Ana. CDPH will implement the program utilizing
the following methodology:
B. CDPH will subcontract for youth recruitment with an agency capable of assuring
confidentiality of youth data, as well as providing insurance coverage and
reimbursement for participation to the youth participants. Additionally, the
agency with which CDPH contracts will serve as the Agent for Service for the
youths in the event that they are subpoenaed for hearing or court appearance, and
maintain security of all personal information of the youths including names and
home addresses.
C. CDPH will provide investigators who will conduct STAKE investigations;
develop schedules for compliance checks; map activities; procure and maintain all
necessary equipment; confirm store ownership of tobacco retailers; generate
investigation reports; secure evidence obtained as a result of compliance checks;
meet with selected appropriate youth operatives and provide necessary training;
file STAKE Act violation cases with CDPH legal staff as required; observe,
document and report compliance with the Tobacco Retail License Ordinance to
the City; liaison with City staff; and provide evidence and testimony for the
purpose of enforcing the Santa Ana City Tobacco Retail License Ordinance as
needed.
D. The investigations will require, and CDPH will provide, vehicles to travel
throughout the City. The vehicles will be equipped with two-way radios and
cellular telephones in order to provide communication with local law enforcement
and each other for ensured safety. The investigators will also be equipped with
digital cameras to provide the required photographs of the youth operative,
portable computers to generate and store investigative reports, and surveillance
equipment used to collect electronic evidence during compliance checks. All of
this equipment is standard equipment for STAKE operations throughout
California.
E. Santa Ana Police Department will develop a list of retailers to be visited and
select a target area using addresses. Santa Ana PD staff will generate a list of sites
within a selected area from a database of tobacco retailers. A survey of the stores
in the targeted area will be performed prior to the actual day of compliance
checks. The survey will increase safety and efficiency in that only viable tobacco
retailers will be visited and investigators will be aware of any concerns or
obstacles such as parking conditions, traffic, etc. CDPH will also utilize an
7
25B-9
extensive list that it has compiled and continues to update. In the future, CDPH
will use City tobacco license information to update this list. This system of
selecting retailers will provide an efficient means of covering all areas in a
methodical manner.
F. Once the list has been generated and the locations to be visited confirmed,
investigators will contact the youth operative, coordinate their respective
schedules, and conduct the investigations.
G. The compliance check investigations will be conducted according to a schedule
developed by the investigator. The investigator will pick up the youth operative
and proceed from one location to the next following the plan. Youth operatives
will not be used in areas where they live or normally shop. During the
investigation, the youth operative will attempt to buy tobacco products from the
retailer. if a purchase is made, the tobacco product and any other evidence will be
marked and secured. The investigator will then return the youth to his/her home,
complete the investigative reports, review and store electronic evidence as
required and return to the violative retailers to present them with a Notification of
Violation form within 48 hours of the sale of tobacco to the minor. All reports and
evidence remain in the custody of the investigator.
H. As part of the compliance check investigation, the investigator will note and
document whether or not the tobacco retailer has a permit posted in accordance
with the City's Tobacco Retail License Ordinance Number 2729. Observations on
compliance with these ordinances will be documented on a report form and
photographic evidence as well as other evidence obtained will be provided to the
City in accordance with paragraph I below.
I. CDPH will provide the City with two monthly reports on compliance check
outcomes. One will contain information on cases that have been closed via
payment of a penalty assessment. The other will contain information on currently
pending cases. The reports will be drawn from data which is entered directly into
the STAKE database by the investigators and includes the following fields: case
number, firm number, firm name, street address including zip code, telephone
number (if available), store type, investigation date and time, notification date and
time, the names and badge numbers of investigators, information about the selling
clerk, name of the person presented with the Notification of Violation form, the
name and address of the store owner, the agent for service in case of corporate
ownership, the type and cost of tobacco purchased, evidence numbers, prior sales
history, a narrative section stating the details of the case, the council district in
which the violation occurred and other miscellaneous information. In addition to
the standard report, CDPH will provide the City with information regarding the
posting of the required License by the Tobacco Retail License Ordinance.
The investigative reports, and any evidence obtained, including photographic
evidence, documenting violation of the City ordinances, shall be made available
s
25B-10
to the City as requested. Only redacted youth IDs (not showing youth name, home
address or CDL number) will be provided unless release of this information has
been approved by the recruitment agency acting as Agent for Service for the
youth recruits. The City may request these reports even if no violation has
occurred. However, if a violation of the STAKE Act has occurred, CDPH shall
provide the City with updated information regarding the outcome of the case in
the monthly report immediately following adjudication and closure of the case.
9
25B-11
25B-12
REQUEST FOR
COUNCIL ACTION ~~~~T~
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
AGREEMENT FOR SCHOOL ? As Amended
CROSSING GUARD PROGRAM ? Ordinance on 15` Reading
? Ordinance on 2°d Reading
? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute
and agreement with All City Management Services Inc. (AGMs), for a Crossing Guard Program throughout
the City of Santa Ana in an amount not to exceed $826,783.
DISCUSSION
Crossing Guards ensure the safe movement of elementary school children around school zones within
the City of Santa Ana. All City Management Services, with the Santa Ana Police Department oversight,
currently manages the Crossing Guard Program. The Crossing Guard Program provides crossing guard
services to three school districts at 70 locations utilizing 78 crossing guards throughout the city.
On November 16, 2009, the City issued a Request for Proposals (RFP) to provide an Adult Crossing
Guard Program. RFP's were mailed to All City Management Service, Commonwealth International
Inc. and Command International Security Services and three (3) proposals were received. The
proposals were evaluated by a staff committee for overall understanding of the RFP, cost, level of
services proposed, quality of training provided to crossing guards, and input from their current clients.
Staff's evaluation determined that All City Management Services proposal met all the requirements of
the RFP and recommend entering into aone-year agreement.
FISCAL IMPACT
Funds in the amount of $826,783.00 are available in the Police Department, Traffic Division Other
Contractual Services Account (account no. 011-14-405).
APPROVED AS TO FUNDS AND ACCOUNTS:
y_ ~
Paul M. Walters Francisco Gutierrez
Chief of Police Executive Director
Police Department Finance & Mgmt. Services Agency
25C-1
25C-2
ADULT CROSSING GUARD PROGRAM AGREEMENT
THIS AGREEMENT, made and entered into this day of January, 2010 by and
between ALL CITY MANAGEMENT SERVICES, INC., a Califomia Corporation (hereinafter
"Consultant"}, and the City of Santa Ana, a charter city and municipal corporation organised and
existing under the Constitution and laws of the State of California (hereinafter "City"}.
RECITALS
A. The City desires to retain an entity having special skill and knowledge in the field of
crossing guards.
S. 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
know)cdgeable 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 rnutual and respectsve promises, and subyect to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall agree to perform school crossing guard services for the City of Santa
Ana. The scope of work shall be as follows:
a. Consultant will monitor, supervise, and assure the safety of all school children that
utilize intersections and crosswalks while moving to and from school.
b. Consultant shall perform all work to the highest professional standard and in a
manner deemed reasonably satisfactory to the Chief of Police or his designee.
c. Consultant will provide an estimated 56,455 hours per year of crossing guard services
by qualified adult crossing guards approved by the City during pre-determined time
periods at specific locations throughout the City as shown in Exhibit "A". The
estimated hours above are calcuiated based on the number of hours per day multiplied
by the number of annual school days. However, Consultant is required to staff the
crossing guards positions when the schools modify their schedules to accommodate
the academic needs of their students. These modifications are represented in the
56,6! 1 hours of crossing guard services provided in 2008.
25C-3
d. New locations may be added at the City's request and Consultant will increase the
service hours accordingly. In addition. the City may remove crossing guard locations
and/or reduce crossing guard hou~•s at a location with a 24-hour notice.
e. Co»sultan[ will provide all administrative duties associated with the Adult Crossing
Guard Program in the City of Santa Ana.
f. Consultant will be required to provide for the supervision of a!l employees associated
with conducting the Adult Crossing Guard Program; including the recruitment, hiring,
discipline and termination of employees.
g. Consultant will ps•ovide all facilities, vehicles and other associated equipment related
to conducting the Adult Crossing Guard Program. Required equipment will include
safety-reflectorized vests, stop signs, whistles, rain gear and photo-identifscation
badges.
h. Consultant shall provide all employees with equipment that complies with all
applicable laws and established safety standards.
i. Consultant agrees to offer employment to the cun-ently employed Santa Ana Adult
School Crossing Guards at their current pay scale. Those employees shall be retained
at their current salaries if their current pay scale exceeds the top-step pay for a
crossing guard employed by Consultant. Employees hired at a rate below the top-step
salary for a crossing guard employed by Consultant shall retain their current pay scale
but will be subject to the personnel rules of Consultant as to step increases and a
salary cap. The City of Santa Ana makes no representation, warranty, or guarantee of
the adequacy or sufficiertey of the current employees for employment. Thus,
Consultant will be required to ensure that the current employees, at a minimum, meet
the conditions for employment. If Consultant determines that any current employee
does not meet the standards required herein, then no offer of employment to that
current employee will be required. Refer to Exhibit "B" for a detailed list of the
currently employed crossing guards and their salaries.
j. Consultant shall arrange for and provide all substitute employees, ensuring that a!1 ~
designated locations are staffed during the required time periods. Consultant shall
contact the Santa Ana Police Department immediately if a positron cannot be filled by
the Contractor. The Santa Ana Police Department will staff that position and bill t
Consultant for the period of time spent covering that post in accordance with the
Miscellaneous Fee Schedule.
k. Consultant shall be responsible to coordinate with the affected schools and school
districts to ensure coverage is provided at designated locations when school schedules
are modified and/or changed For any reason that requires children to arrive or depart
at a time that is different [han the norm.
25C-4
1. Consultant will provide all of the required training For employees selected to be
crossing guards.
m. Consultant shall certify that all employees selected to perform the duties of a crossing
guard in the City of Santa Ana have never been convicted of any felony or any crime
against children. In addition, the recruitment process shall incorporate aPre-
Employment Screening Program that includes:
1. An employment reference check
2. A criminal background check and a fingerprint check
3. A drug and alcohol screening test
4. Social Security verification
5. Only documented, authorized Contractor employees are eligible to work or
permitted on or in City facilities {Verification of the INS-4 forms must be
approved by the City upon request)
n. Any employee whose conduct is not satisfactory, as determined by the City of Santa
Ana, shall be removed from providing crossing guard services in the City of Santa
Ana.
o. Consultant shall investigate all public complaints eonc;eming crossing guard services.
In the event of a complaint, Consultant shall contact the Santa Ana Police Department
at (714) 245-8228, within two {2) hours, to advise the nature of the complaint and the
remedy/resolution of said complaint. Consultant shall furnish a written report of the
incident to the City of Santa Ana Police Department within five (5) business days
after the occurrence.
p. Consultant shall maintain detailed records and reports of the total number of hours of
servsce provided. These records shall list the number of hours worked at each
location. These records will be made available for inspection and audit by the City of
Santa Ana at any time.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as fora! payment for its services,
the rates and charges identified in Exhibit C. The total sum to be expended under this
Agreement shall not exceed $826,783.00 during the term of this Agreement.
b. Payment by City shall be made within thirty (30) days following t'eceipt of proper
invoice evidencing work performed. subject to City accoursting procedures. Payment need not
be made for work which fails to meet the standards of performance set forth in the Recitals
evhich may reasonably be expected by City.
25C-5
3. TERM
This Agreement shall commence on the date first written above and terminate on
February 28, 2011, unless terminated earlier in accordance with Section 12, below. The term of
this Agreement may be extended upon a alriting executed by the Chief of Police and the City
Attorney.
a. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer-employee relationship, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standas•ds 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 naming the City, its officers, employees, agents, volunteers and
representatives as additional insttred(s} and shall include, but not be limited to protection against
claims arising from bodily and personal injury, including death resulting therefrom and damage
to property, resulting from any act or occurrence arising out of Consultant's operations in the
performance of tlyis Agreement, including, without limitation, acts involving vehicles. The
amounts of insurance shall be not less than the following: Not less than Ten Million
($10,000,000) each occurrence for bodily and personal injury, including death resulting
therefrom, and property damage combined with no Tess than Ten Million {$10,000,000)
aggregate. Consultant shall supply City with a fully executed additional insured endorsement in
substantially the form attached hereto as Exhibit D upon execution of this Agreement and shaft
be approved in form by the City Attorney.
b. Business automobile liability insurance, or equivalent form, with a combincd 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 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
25C-6
performance of the work under this Agreement, Consultant agrees to obtain and maintain any
employer's liability insurance with limits not less than $5,000,000 per accident.
d. If Consultant is or employs a licensed professional such as an architect or• engineer:
Professional liability {errors and omissions) insurance, with a combined single limit of not less
than $1,000,000 per claim.
e. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
{i) Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
(iii) Cenificates 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.
f. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with requited 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 shalt 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. I N DE11rIN I FI C A~ TI Ol~i
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability: (1) lot personal
injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims
for personal injury. including health, and claims for pr•openy 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
for dam~rges, 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 wish respect to its
repr•eserltation in any legal proceeding,
25C-7
7. CONFIDENTIALITY
[f 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 suck 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 toe"ether parry 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
ar 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
Agrecrnent 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
telefacsimile (7l4} 647-G9S6
With courtesy copies to:
Chief of Police
City of Santa Ana
60 Civic Center Plata (M-18)
P.O. Box 1988
Santa Ana, California 92702
25C-8
telefacsimile (7I4} 245-8001
and
Santa Ana Police Department
Traffic Division
60 Civic Center Plaza (M-18)
P.O. Box 1981
Satlta Ana, California 92702
telefacsimile (114) 245-8190
and
City Attorney
City of Santa Ana
20 Civtc Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714} 647-6515
To Consultant:
All City Management Services, Inc.
1749 S. La Cienega Blvd.
Los Angeles, CA 90035
telephone (310) 202-8284
telefacsimile (310} 202-8325
Attn: Baron Farwell, General Manager
A party may change its address by giving notice in writing to the other party. Thereafter, any
notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new
address. if sent by mail, any notice, tender, demand, delivery, or other 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 certitied, with postage prepaid, and addressed as set forth above. If sent by telefacsimile,
any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been
given twenty-four (24) hours after the time set forth on the transmission repoxt 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 parries. 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 tnay not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
25C-9
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, the teams and conditions hereof, shall not bind or obligate Consultant nor
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. ASSIGitMENT
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 shat! 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 maybe 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 far 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
otherernployment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
la. 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.
25C-10
]5. PROFESSIONAL LICENSTS
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 Paws 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.
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbefow has the power,
authority and tight 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 asrf Fully set
forth i« the body of this Agreement.
IN WfI'NESS WFi~REOF, the parties hereto have executed this Agreement the date and year first above
written.
ATTEST: CITI' OF SANTA ANA
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By:
Ryan O. Hodge
Deputy City Attorney
25C-11
RECOMMENDED FOR APPROVAL: CONSULTANT
Paul M. Walters Baron Farwell
Chief of Police General Manager
Employer ID # or Individual SS #
25C-12
EXHIBIT "A"
CROSSING GUARD LOCATIONS
Elementary Location of Crossing Schedule School Total Total Sch.
School Guard Days/ Hrs/ Hrs/ Dist.
Yr Da Yr
1 Adarns St. Gertrude & Raitt Traditional 183 4 732 S.A.
2 Carver Santa Ana & Traditional 183 S 915 S.A.
Hes tian
3 Carver 5` St. & Pac'sfic Traditional 183 5 9i5 S.A.
{N/E Comer)
4 Carver/ Santa Ana & Forest Traditional 183 3 549 S.A.
Romero-Cruz (S/E Corner)
S Diamond Center & Borchard Traditional 183 5 915 S.A.
6 Diamond Edin er & Greenville Traditional 183 S 915 S.A.
7 Ueda Main/Warner Traditions! 183 4 732 S.A
8 Fairhaven Fairhaven & Old Traditional I83 4 732 Org.
Grand (South Side of
Street)
9 Fairhaven Fairhaven & Grand Traditional 183 4 732 Org.
{S1E Corncr}
l0 Fairhaven Fairhaven & Grand Traditions{ 183 4 732 Org. 'i
(S/W Corner)
l 1 Franklin Broadway & Cubbon Traditional 183 4 ?32 S.A.
(S!E Corner)
j 12 Fremont Civic Center & Traditional 183 4 732 S.A.
En fish (N/E Corner)
13 Fremont Civic Center & Raitt Traditional 183 4 732 S.A.
(N/W Comer)
14 Garfield 6` St. & Lacy Traditional 183 4.5 824 S.A.
(S/E Comer)
15 Garfield Santa Ana & Lacy Traditional 183 4.5 824 S.A.
{N/E Corner)
16 Garfield / Civic Center & Lacy Traditional 183 5 915 S.A.I
St. Jose h (N!E Corner} pryv.
l7 Greenville MacArthur/Raitt Traditional l83 4 732 S.A
Fundamental (S/W Corner)
18 Harvey Pomona & Center Traditional 183 4 732 S.A.
{S/W Corner)
19 Harve Greenville 8c Pomona Traditions! 183 4 732 S.A.
25C-13
(N/E Corner)
20 Hazard School Cross~~alk Traditional 183 4 ?32 G.G.
21 Hazard 5' St. & Hu lars Ln. Traditional 183 4 732 G.G.
22 Heninger Walnut & Broadway Traditional 183 5 915 S.A.
(S/E Corner)
23 Heninger Walnut & Main Traditional 183 5 91S S.A.
(S/W Corner)
24 Heritage Newhope &Camile Traditional 183 4 732 G.G.
(West side of the
Street)
25 Heritage Newhvpe &Camile Traditional 183 4 732 G.G.
{S/E Corner)
26 Jackson McFadden & Fairvie~v Traditional 183 5.5 1007 S.A.
{S/W Corner}
27 Jackson McFadden & Fairview Traditional 183 5.5 1007 S.A.
(S/E Corner}
28 Jackson McFadden & Fairview Traditional 183 5.5 1007 S.A.
(N/W Corner)
29 Jackson McFadden & Fairview Traditional 183 5.5 1007 S.A.
{N/E Corner)
30 Jefferson Adams & Raitt Traditional 183 4 732 S.A.
{S/W Corner)
31 Jefferson Adams & Raitt Traditional 183 4 732 S.A.
(S/E Corner}
32 Kennedy McFadden & Standard Traditional 183 4 732 S.A.
(S/E Corner)
33 Kennedy McFadden & Standard Traditional 183 4 732 S.A.
(N/E Corner}
34 King McFadden & Graham Traditional 183 S 915 S.A.
(N/E Corner)
35 King McFadden & Graham Traditional i83 5 9l5 S.A.
(S/E Corner)
36 Lincoln Willits & Sullivan Traditional 183 4.5 824 S.A.
(N/E Cotner)
37 Lincoln Willits & Sullivan Traditional 183 4.5 824 S.A.
(N/W Comer)
38 Lincoln Willits & Diamond Traditional 183 4.5 824 S.A.
(N/W Corner)
39 Lincoln Willits & Rastt Traditional 183 4.S 824 S.A.
{N/E Corner)
40 Lowell ! Flower & Bishop Traditional 183 4.5 824 S.A.
Pio Pico (S/W Comer)
41 Lowell / Flower & Highland Traditional 183 4.5 824 S.A.
Pio Pico (S/W Corner}
42 Madison Hobart & Standard Traditional 183 5 915 S.A.
25C-14
{S/W Corner}
43 Madison Edinger & Standard Traditional 183 5 915 S.A.
(N/W Corner)
44 Martin School Crosswalk Traditional 183 4 732 S.A.
4S Martin Flower & Wilshire Traditional 183 4 ?32 S.A.
{N!W Corner}
4G Martin Edinger & Towner Traditional 183 4 732 S.A.
(N/E Corner}
47 Monroe Central & Halfaday Traditional 183 4 732 S.A.
{N!W Corner)
48 Monte Vista Monte Vista & Traditional 183 4.5 824 S.A.
Townsend
(N!W Corner)
49 Monte Vista Monte Vista & Raitt Traditional 183 4.5 824 S.A.
(N/W Comer}
50 Monte Vista Monte Vista & Raitt Traditiona! 183 4.5 824 S.A.
(S/E Corner)
S 1 Newhope Newhope & Kent Traditional 183 4 732 G.G.
(East Side of the
Street)
52 Newhope Newhope & Kent Traditional 183 4 732 G.G.
(t~Vcst Side of the
Street}
53 Remington 4` St. & Grand Traditional 183 4 732 S.A.
(N/E Comer}
54 Roosevelt Chestnut & Holladay Traditional 183 4.5 824 S.A.
(N/E Corner)
55 Roosevelt Chestnut & Standard Traditional 183 4,5 824 S.A.
(S/W Corner)
56 Rosita School Crosswalk Traditional 183 4 732 G.G.
57 Rosita S' St. &Rosita Traditional 183 4 732 G.G.
58 Russell Charlaine & Jackson Traditional 183 5 915 G.G.
{S/E Comer)
59 Russell Camile & Jackson Traditional 183 5 915 G.G.
{S/W Corner)
60 Santiago Santa Clara & Baker Traditional 183 4 732 S.A.
(S/W Comer)
6l Santiago Bristol & Santa Clara Traditional 183 4 732 S.A.
{S/W Corner)
62 Sepulveda Poplar & St. Andrew Traditional 183 4.5 824 S.A.
(N/E Comer)
63 Taft Flower & MacArthur Traditional 183 4 732 S.A.
(S/E Comer)
64 Taft Flower & MacArthur Traditional 183 4 732 S.A.
i /E Corner}
25C-15
65 Thorpe Alton & Greenville Traditional 183 4 732 S.A.
(S/E Corner)
Gb Walker / Bishop & Standard Traditional 183 5 915 S.A.
Roosevelt (N/W Corner)
67 Washington Flower & Anahurst Traditional 183 4.5 824 S.A.
(S/W Corner)
63 Washington Flower & Warner Traditional 183 4.S 824 S.A.
(I~I1W Corner
b9 Washington Flower & Warner Traditional 183 4.5 824 S.A.
(S/W Corner)
70 Wilson Washington & Baker Traditional 183 5 915 S.A.
{S/E Corner}
School Schedules
Santa Ana Unified School District (SAUSD)
Traditional Schedule -Schools within the SAUSD assigned to the traditional school schedule
operate an average of 183 days per year beginning in August and ending in June.
Garden Grove Unified School District (GGUSD)
Traditional Schedule -All schools in the City of Santa Ana that are within the GGUSD are
assigned to the traditional schedule. Traditional schedule schools are open an average of 183
days per yea~• beginning in September and ending in June.
Orange Unitied School District (OUSD)
Traditional Schedule -Fairhaven Elementary School is the only school in the City of Santa
Ana that is govcired by the OUSD. The school operates on a traditional schedule with an
average of 183 days per year based on a schedule that begins in August and ending in June.
Abbreviations
N/E Northeast
N/W Northwest
S/E Southeast
S/W Southwest
S.A. Santa Ana Unified School District
G.G. Garden Grove Unified School District
Org. Orange Unified School District
PI'iV. Private School
25C-16
EXHIBIT "B"
CURRENTLY EMPLOYED CROSSING GUARD PROFILES
Position Bilingual Houriy Wage Years of
Ex erience
Crossin Guard #1 No $9.00 5
Crossin Guard #2 No $9.00 5
Crossin Guard #3 No $9.00 5
Crossin° Guard #4 No $9.13 b
Crossin Guard #5 No $9.13 6
Crossin Guard #6 Yes $9.28 7
Crossin Guard #7 Yes $9.28 7
Crossing Guard #8 No $9.55 7
Crossin Guard #9 Yes $9.78 7
Crossin Guard #10 No $9.05 g
Crossin Guard #11 No $10.00 8
Crossin Guard #12 Yes $10.23 g
Crossin Guard #13 No $9.98 11
Crossin Guard # 14 Yes $10.71 11
Crossin Guard #15 Yes $10.71 11
Crossin Guard #16 No $10.21 14
Crossin Guard #17 No $9.98 15
Crossin Guard # 18 Yes $10.71 15
Crossin Guard #19 Yes $10.71 17
Crossin Guard #20 No $9.98 20
Crossin Guard #21 Yes $10.21 22
Crossin Guard #22 No $10.48 23
Crossin Guard #23 Yes $10.21 25
Crossin Guard #24 No $10.48 25
Crossing Guard #25 No $10.48 29
Crossin Guard #26 Yes $10.78 32
Crossin Guard #27 Yes $10.98 32
• Bilingual English/Spanish Crossing Guards are desirable due to the large Hispanic
population and the high number of Spanish speaking residents in the City of Santa Ana.
25C-17
25C-18
EXHIBIT "C"
COMPENSATION
___25_C-19
Cost Pt•oposal for the City of SAI]ta Ana C~•ossing Guard Program
AS a full ser+•ice ca?ylractor, cite ltourl}~ r~ctc quolecl is a fully loaded rate, meaning all of our e:osis
are ?ucluded in the proposed hourly billinb rote. This would include but be noc limited to;
recruihnent, background clearance, traininb, equipment, insurance, supervision and ntanabement
of the Culver C'ily Crossing Guard Progc•am.
HOURLY BRCA rtDOlvf~l
Com+»er~cial General Liability l+isurance ($S,t'Xl/1.f1IJU} (,S,/f1,(1(JO.UO(1~
Crossing GuardSala?•y(HourlY3 S 14.49 w$i4.G4
Crossing Guard Supervisor Salary (Hourly) $ N/A
COST 5U~1lvtARY
Crcusing Guards Salaries (Tata1 Annual Cost) S 536,322
I
~ Supecvi5or Salary (Total Annual Cost) $ 33,366
Payroll Tax $ 62,665
ltiork6rs Compcnsacioct $ 9b,610
Liability insurance S ~8,4.g4 'x$59, 817
Administrative Overheatl $ ?6,310
Profit $ I1,G93
Total Cost of Crossing Guard Program .......................$795.450 •S82G, 783
Invoices for services arc mailed every two ~viceks. Ictcluded with each invoice is a Work Su+nmary,
which details estch site, each day and the hours worked at drat site. The City oi'Snnta Anu would
only be billed for Crossing Guaud sc+t~iccs rendered nn designated "school days",
The hourly rare dors not include additional sa!'rty eduipntenc, crosswalk delineators or safCty
devices. Sho+rld the City desire auy such ndditiottctl eqe+ipmettt tl;e additional cost would be bilicci
to t)tc City.
10
25C-20
EXHIBIT "D"
ADDITIONAL INSURED ENDORSEIyZENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds"}with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing wsth any other insurance carried by or for the benefit of the
additional insureds.
3. 'This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance sha11 not be cancelled, or
materially reduced in coverage or limits except after thirty (30} days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective.}
Effective this endorsement form as a part of
Policy #
Issued to
Named Insured
Countersigned by
Authorized Representative
25C-21
i
25C-22
.
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
PURCHASE AGREEMENT FOR BRISTOL ? As Recommended
STREET CORRIDOR PR0.IECT NO. 08- ? As Amended
( ? Ordinance on 151 Reading
1700) ? Ordinance on 2"d Reading
? {mplementing Resolution
? Set Public Hearing For
CONTINUED TO
FILE NUMBER
CITY ANAGER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute the attached agreement with
Ghanshyam Lohiya for the purchase of the property located at 724 N. Bristol in the amount of
$705,000, subject to nonsubstantive changes approved by the City Manager and City Attorney.
DISCUSSION
i On March 6, 2006, the City Council approved the cooperative agreement between the City and
the Orange County Transportation Authority to fund Bristol Street improvements from Warner
Avenue to Seventeenth Street. The first phase of the project, between Pine and McFadden, is
under construction and is expected to be completed by July 2010. Public Works is acquiring
property for the second phase of the project, between Third and Civic Center.
To accommodate the widening for the second phase, acquisition of the entire property located at
724 N. Bristol is required (Exhibit 1). The compensation amounts are the appraised values
prepared by an appraiser licensed in the State of California.
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, the proposed project has been
determined to be adequately evaluated in the previously prepared Environmental Impact
Report/Environmental Impact Assessment EIR No. 89-01 approved by City Council in 1990.
25D-1
Purchase Agreement For
Bristol Street Corridor
March 1, 2010
Page 2
FISCAL IMPACT
Funds are appropriated in the Select Street Construction Fund (accounting unit 05917661-
66220).
APPROVED AS TO FUNDS AND ACCOUNTS:
~ y
Raul Godinez II Francisco Gutierrez
Executive Director Executive Director
Public Works Agency Finance & Management Services Agency
RG/SA
Exhibit 1: Location map
Exhibit 2: Agreement
25D-2
LEGEND
SUBJECT PROPERTIES
ACQUIRED PROPERTIES
MATCHLINE
SEE BOTTOM RIGHT
CIVIC CANTER DR
I
i ~ yyA8FNCdTON ST .
' j i r-~---I~ ,
~-rt--rt--, ~ i
i
i
J L_
711i i i i i i
12TH ST
I I I I KT,g
~---L-~---~- ~--~--I I I I
I I I I '
-~--r--r-~ r---~--~-- -
I I I I I I I I I I
6TH ST 1TTH 8T
I
V I I I 1 ~ 1 1 1 1 1 1
_ -----~I
I
LJ__l~L_L ~ ~ Ir--1-~L-rL--~-Lr -
I I I I I I I I -
5TH ST 10TH ST •
I ~I I I I I I I I I I -
' ~ ~ (--~-~~T-I
r-i--~-L-- -7--t--1
i i i i
911-1 ST
8ANTA ANA BLVD .
i i i i i i
~I i i i i i i i i i
I---~--I---~-! ---{----~--j 'r--{--f-~--~ I
_
I I I I ~ ~ I I I I I I
I I I I '
I I I I i
3RD ST CMC CENTfft DR
MATCHLINE
SEE TOP LEFT
EXHIBIT 1 ~~~P-c~or~
SANTA ANA ~
CITY COUNCIL TITLE PURCHASE AGREEMENTS FOR '
P W ~ AGENDA DATE BRISTOL STREET CORRIDOR ~ • 1
V MARCH 1, 2010 (PROJECT 08-1700-C) ~
PUBLIC VORNS RC{NCY
25D-4
PURCHASE AND SALE AGREEMENT FOR ACQUISITIONOF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
(Commercial}
THIS AGREEMENT, entered into this _ day of
2010, by and between the CITY OF SANTA ANA, a charter city and municipal corporation duly
organized under the Constitution and laws of the State of California (hereinafter referred to as the
"City" or "Buyer"), and Ghanshyam Lohiya (hereinafter called "Seller"), regardless of number or
gender;
WITNESSETH
For and in consideration of their promises, covenants and agreements hereinafter set forth, and
subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City,
and City agrees to purchase from Seller, all that certain real property (hereinafter referred to as
"said real property") described as follows:
All that certain real property located in the State of California, County of Orange, City of Santa
Ana, described as follows:
SEE EXHIBIT "A" ATTACHED HERETO
AND BY THIS REFERENCE MADE A PART HEREOF
{Commonly known as 724 N. Bristol Street, Santa Ana, CA
APN 405-074-16}
Said purchase and sale of said real property shall be in accordance with and subject to all of the
following terms, conditions, promises, covenants, agreements and provisions, to wit:
1. Conveyance by Seller. Seller agrees to convey said real property to City, by Grant Deed, at
the office of First American Title Insurance Company, 2 First American Way, Santa Ana,
California, within thirty (30} days from and after the date on which the City has approved this
Agreement.
2. Title to be Conveyed. (a) Seller agrees that, except as may hereinafter be otherwise
expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and
clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments,
profits, limitations, encumbrances (whether monetary or non-monetary, general or specific,
including any and all leasehold interests), liens, clouds or defects in title except those exceptions
shown in Paragraph 15 below. Seller hereby warrants that the title to said real property to be
conveyed by Seller to City shall be free and clear as provided above. Seller further agrees that
acceptance by City of any deed to said real property, with or without knowledge of any condition,
restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance
(whether monetary or non-monetary, general or specific, and including any and all leasehold
interests), lien, cloud or defect in title, shall not constitute a waiver by City of its right to the full
and clear title hereinabove agreed to be conveyed by Seller to City, nor of any right which might
accrue to City because of the failure of Seller to convey title as hereinabove provided.
3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said
real property to City, within the time and at the place hereinabove specified for said conveyance
of said real property, a policy of title insurance to be issued by the above mentioned title
company, with the City therein named as the insured, in the amount of SEVEN HUNDRED AND
FIVE THOUSAND AND NO/100 Dollars ($705,000) insuring the title of the City to said real
property is free and clear of any and all conditions, restrictions, reservations, exceptions,
easements, assessments, profits, limitations, encumbrances {whether monetary or non-
1
~ ~ .y' t..... ~
j`
25D-5
monetary, general or specific, and including any and all leasehold interests), liens, clouds or
defects in title, excepting such specific ones as city may hereinafter expressly agree to take
subject to. Acceptance by City of any such policy of insurance, whether such insurance complies
with the requirements of this paragraph or not, shall not constitute a waiver by City of its right to
such insurance as is herein required of Seller, nor a waiver by the City of any rights of action for
damages or any other rights which may accrue to City by reason of the failure of Seller to convey
title or to provide title insurance as required in this Agreement.
4. Escrow. City agrees to open an escrow at the office of First American Title Insurance
Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days
from and after the date on which the City has approved this Agreement. This Agreement
constitutes the joint escrow instructions of the City and the Seller and a duplicate original of this
Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. Escrow to
close within 90 days of the City's execution of this Agreement.
The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its
acceptance of this Section 4 and of the General Provisions described in Exhibit "B" attached
hereto and incorporated herein by this reference, in writing, delivered to the City and to the Seller
within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent
hereunder.
City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any
transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation
fees, escrow fees and any other closing costs incidental to the conveying of said real property to
City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or
mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240.
The liability to the Escrow Agent under this Agreement is limited to performance of the obligations
imposed upon it under Section 4, Section 6, Section 11 and Exhibit "B" of the General
Provisions of this Agreement.
5. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year
within which said real property is conveyed to City as are unpaid at the time of said conveyance
shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and
Taxation Code of the State of California. Seller shall be eligible for a refund under Section
5096.7 of the Revenue and Taxation Code of the State of California for that portion of property
taxes on said real property for said fiscal year which have been paid prior to the date the deed
conveying said real property to City is recorded which is allocable to that portion of the fiscal year
which begins on the date the deed conveying said real property to City is recorded and made
uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State
of California. All unpaid taxes on said real property for any and all years prior to the fiscal year
within which said conveyance is made shall be paid by Seller before conveyance of said real
property to City.
6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from
City, as and for the full purchase price for said real property, fixtures & equipment (improvements
pertaining to the realty), goodwill (if any), and severance damages, the total sum of SEVEN
HUNDRED AND FIVE THOUSAND AND NO/100 Dollars ($705,000). City agrees to deposit said
purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date
on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to
pay the same to Seller upon and after:
(a) Conveyance of said real property by Seller to City as hereinabove provided;
(b) Acceptance by City of a Grant Deed conveying said real property to City;
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25D-6
(c) Delivery to City of the policy of title insurance as hereinabove provided;
(d) Recordation of the Deed conveying said real property to City.
7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real
property to City is recorded, quiet and peaceful possession of said real property, which shall be
made free by Seller of all personal property.
8. Rental and Occugancy By Seller. Seller agrees to execute a complete, current and correct
statement of rentals (Seller Estoppel) on a form furnished to Seller by Buyer and deliver same to
Buyer within fifteen (15) days hereof with copies of any written leases or rental agreements
attached. All rents will be prorated as of the close of escrow on the basis of a 30-day month/360-
day year consistent with that statement, subject to approval of Buyer. Seller hereby agrees not to
rent any units on the premises which are now vacant, or which may be vacated by present
occupants prior to close of escrow. Seller agrees that any and all Tenant Security Deposits
pertaining to the subject property collected by or in the possession of Seller prior to the close of
escrow shall be transferred to and become the property of Buyer during escrow.
Seller hereby warrants that the rental statement referred to shall include the terms of all rental
agreements, tenancies, and leases (written, unwritten, recorded, or unrecorded) and Seller
agrees to hold Buyer harmless from all liability from any such leases or agreements. Seller also
warrants that there are no oral or written leases on all or any portion of the subject property
exceeding a period of one month.
9. Waivers. The waiver by City of any breach of any covenant or agreement herein contained
on the part of Seiler shall not be deemed or held to be a waiver of any subsequent or other
breach of said covenant or agreement nor a waiver of any breach of any other covenants or
agreements contained herein.
10. Heirs, Assigns Successors in Interest. This Agreement, and all the terms, covenants and
conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and
assigns of the respective parties hereto.
11. Time is of the Essence. In all matters and things hereunder to be done and in all payments
hereunder to be made, time is and shall be of the essence,
12. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents,
permission to enter upon said real property at all reasonable times prior to close of escrow for the
purpose of making necessary inspections.
13. Just Compensation. Seller acknowledges and agrees that said purchase price is just
compensation at fair market value for said real property and includes payment for fixtures &
equipment (improvements pertaining to the realty), goodwill (if any), and severance damages
14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O.
Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The mailing
address of the Seller is:
Ghanshyam Lohiya
P.O. Box 26098
Santa Ana, CA 92799
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25D-7
15. Exceptions. City agrees to accept title to said real property subject to the following: NONE.
16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the
whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every,
and all issue{s} that were raised or could have been raised in connection with the acquisition of
said real property by City.
17. Hazardous Waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner,
tenant, occupant, or user of the Property used, generated, released, discharged, stored, or
disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials")
on, under, in, or about the Property, or transported any Hazardous Materials to or from the
Property. Seller shall not cause or permit the presence, use, generation, release, discharge,
storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of
any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any
substance, material, or waste which is or becomes regulated by any local governmental authority,
the State of California, or the United States Government, including, but not limited to, any
material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste",
or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to
Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous
Waste Control Law}, (ii) defined as "hazardous substance" under Section 25316 of the California
Health and Safety Cade, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous
Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or
"hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20,
Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a
"hazardous substance" under Section 25281 of the California Health and Safety Code, Division
20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos,
(vii) polychlorinated biphenyls, (viii} fisted under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4,
Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean
Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of
the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et sec . {42 U.S.C. S6903) or (xi)
defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. S9601 et sec.
(42 U.S.C. S9601).
18. Compliance With Environmental Laws. To the best of Seller's knowledge the Property
complies with all applicable laws and governmental regulations including, without limitation, all
applicable federal, state, and local laws pertaining to air and water quality, hazardous waste,
waste disposal, and other environmental matters, including, but not limited to, the Clean Water,
Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation
Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the
California Environment Quality Act, and the rules, regulations, and ordinances of the city within
which the subject property is located, the California Department of Health Services,. the Regional
Water Quality Control Board, the State Water Resources Control Board, the Environmental t
Protection Agency, and all applicable federal, state, and local agencies and bureaus.
19. Indemnitv. Seller agrees to indemnify, defend and hold the City harmless from and against
any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive
damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of,
or based upon {i) the presence, release, use, generation, discharge, storage, or disposal of any
Hazardous Material on, under, in or about, or the transportation of any such materials to or from,
the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule,
regulation, permit, judgment, or license relating to the use, generation, release, discharge,
4 ( ~ I
25D-8
storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the
Property. This indemnity shah include, without limitation, any damage, liability, fine, penalty,
punitive damage, cost, or expense arising from or out of any claim, action, suit or proceeding for
personal injury (including sickness, disease, or death, tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss, damage to the
natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or
other adverse effect on the environment}. This indemnity extends only to liability created prior to
or up to the date this escrow shall close. Seller shall not be responsible for acts or omissions fo
act post close of this escrow.
20. Contingency. It is understood and agreed between the parties hereto that the completion of
this transaction, and the escrow created hereby, is contingent upon the specific acceptance and
approval of the City herein. The execution of these documents and the delivery of same to
Escrow Agent constitutes said acceptance and approval.
21. Modification and Amendment. This Agreement may not be modified or amended except in
writing signed by the Seller and City.
22. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the
conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement
shall have no effect, but all the remaining provisions of this Agreement shall remain in full force.
23. Captions. Captions and headings in this Agreement, including the title of this Agreement,
are for convenience only and are not to be considered in construing this Agreement.
24. Governing Law, This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
25. No Reliance By One Party On The Other Each party has received independent legal advice
from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the
provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and
not for or against any party based upon any attribution to such party as the source of the language
in question.
26. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and
no other person or entity has or shall acquire any rights hereunder.
27. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other,
execute and deliver such further documents (in form and substance reasonably acceptable to the
party to be charged) and do such other acts and things as are reasonably necessary and
appropriate to effectuate the terms and conditions of this Agreement, without cost.
28. Applicability of Aqreement To Assignees. This Agreement shall be binding upon and steal[
inure to the benefit of the successors and assigns of the parties to this Agreement.
29. Authority to Execute Aqreement. 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.
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25D-9
30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be
incorporated as if fully set forth in the body of this Agreement.
The parties have executed this Agreement as of the date written below.
SELLER:
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Ghanshyam Lohiya Date
CITY/BUYER:
CITY OF SANTA ANA ,
BY:
David N. Ream Date
City Manager
ATTEST:
BY:
Clerk of the Council Date
Maria D. Huizar
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
BY:
Jose Sandoval Date
Chief Assistant City Attorney
6
25D-10
EXHIBIT "A"
LEGAL DESCRIPTION
Real property in the City of Santa Ana, County of Orange, State of California, described as
follows:
THAT PORTION OF LOTS 25, 26 AND 27 OF TRACT NO. 662, IN THE CITY OF SANTA
ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 24
PAGE(S) 17 MISCELLANEOUS MAPS, fN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, INCLUDED WITHIN THE FOLLOWING DESCREBED PROPERTY.
COMMENCING AT THE INTERSECTION OF THE CENTER LINES OF BRISTOL STREET
AND EIGHT STREET, AS SHOWN ON SAID MAP OF TRACT NO. 662, AND RUNNING
THENCE DUE SOUTH ALONG SAID CENTER LINE OF BRISTOL STREET 114.17 FEET TO
A POINT; THENCE SOUTH°56'00" WEST, A DISTANCE OF 50.00 FEET TO THE TRUE
POINT OF BEGINNING; THENCE SOUTH 88°56'00" WEST 105.78 FEET TO THE WEST
LINE OF SAID LOT 26; THENCE SOUTH 89°02'00" WEST 25.41 FEET; THENCE NORTH
0°48'22" WEST 72.12 FEET A POINT ON A NON TANGENT CURVE CONCAVE
SOUTHERLY HAVING A RADIUS OF 960.00 FEET, THE RADIAL TO SAID CURVE AT SAID
POINT BEARS NORTH 2°37'23" EAST; THENCE EASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 3°19'55" AN ARC DISTANCE OF 55.83 FEET TO A
POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE NORTHERLY HAVING A
RADIUS OF 1040.00 FEET; THENCE EASTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 2°55'14" AN ARC DISTANCE OF 53.01 FEET TO A POINT OF
REVERSE CURVATURE WITH A CURVE CONCAVE SOUTHWESTERLY, HAVING A
RADIUS OF 25.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 86°57'56" AN ARC DISTANCE OF 37.95 FEET TO A TANGENT LINE
THAT !S PARALLEL WITH AND 50.00 FEET WESTERLY, MEASURED AT RIGHT ANGLES,
FROM SAID CENTER LINE OF BRISTOL STREET; THENCE DUE SOUTH ALONG SAID
PARALLEL LINE 36.42 FEET TO THE TRUE POINT OF BEGINNING.
APN: 405-074-16
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25D-11
EXHIBIT "B"
GENERAL ESCROW PROVISIONS
Ali disbursements shall be made by Escrow's check. All funds received in this escrow shall be deposited
in one or more of your general escrow accounts with any bank doing business in the State of California
and may be transferred to any other general escrow account or accounts. The expression "close of
escrow" means the date on which instruments referred to herein are filed for record. All adjustments are
to be made on the basis of a 30-day month. Recordation of any instruments delivered through this
escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized.
There shall be no prorations of any existing insurance policies in this escrow.
You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other
documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the
attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys.
Should you before or after close of escrow receive or become aware of any conflicting demands or claims
with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited
herein affected hereby, you shall have the right to discontinue any or all further acts on your part until
such conflict is resolved to your satisfaction, and you shah have the further right to commence or defend
any action or proceedings for the determination of such conflict. The parties hereto jointly and severally
agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered
or incurred by you in connection with, or arising out of this escrow, including, but without limiting the
generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in
interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you
in this escrow.
If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable
monthly charge as custodian thereof of not less than $10.00 per month.
Time is declared to be the essence of these instructions. If you are unable to comply within the time
specified herein and such additional time as is required to make an examination of the official records, '
you will return all documents, money or property to the party entitled thereto upon satisfactory written
demand and authorization. Any amendment of and/or supplement to any instructions must be in writing.
The seller agrees to sell and the buyer agrees to buy the property herein described upon the terms
hereof.
These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each '
of which independently shall have the same effect as if it were the original, and all of which taken together
shall constitute one and the same instruction.
r
8
25D-12
REQUEST FOR
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COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
AGREEMENT WITH T & B PLANNING ? As Amended
? Ordinance on 1 S` Reading
FOR ENVIRONMENTAL IMPACT ? Ordinance on 2n° Reading
REPORT ? Implementing Resolution
? Set Public Hearing For
Cl~~ CONTINUED TO
~s- FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute an agreement with T & B
Planning in the amount not-to-exceed $95,274 to prepare an Environmental Impact Report for
the San Lorenzo Sewer Lift Station project.
DISCUSSION
In March 2008, the City solicited proposals from preapproved environmental firms to conduct an
environmental study and prepare a Mitigated Negative Declaration for construction of the San
Lorenzo Sewer Lift Station (Exhibit 1). T & B Planning was the highest-rated firm with the lowest
fee and they were awarded the contract.
On February 2, 2009, City Council approved the Mitigated Negative Declaration for the San
Lorenzo Sewer Lift Station Improvements. At the same meeting, Council adopted a resolution
authorizing condemnation of a small portion of unused property located at 2909 S. Bristol Street
as necessary to construct the project. The property owner subsequently brought suit against the
City in an effort to stop the project. As a result of this litigation the Court has directed the City to
prepare an Environmental Impact Report (EIR) to further investigate the impacts of the proposed
improvements.
Staff recommends that T & B Planning be retained as they are a qualified and reputable firm
familiar with the project and have already performed much of the preliminary work necessary to
complete the EIR.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
25E-1
Agreement with T & B Planning for
Environmental Impact Report
March 1, 2010
Page 2
FISCAL IMPACT
Funds are available in the Sewer Connection Fee Fund (accounting unit 05517660-66220).
APPROVED AS TO FUNDS AND ACCOUNTS:
~M car +,~r
Raul Godinez II Francisco Gutierrez
Executive Director Executive Director
Public Works Agency Finance & Management Services Agency
RG/SW/mz
Exhibit 1: Vicinity Map
Exhibit 2: Agreement
25E-2
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25E-4
AGREEMENT FOR ENVIRONMENTAL REVIEW SERVICES
THIS AGREEMENT, made and entered into this 15` day of March, 2010 by and between T&B
PLANNING, 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
environmental project review to prepare and environmental study and related technical reports.
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 prepare an Environmental Impact Report (EIR), supporting technical studies and
all CEQA required notices for the San Lorenzo Sewer Lift Station Project (hereinafter, "Project"), as set
forth in Consultant's Proposal dated January 29, 2010, attached as Exhibit A to this Agreement, and
incorporated by reference. If additional services/studies are required to complete the EIR, Consultant
shall prepare a written Proposal and Fee Schedule setting forth the additional services. The Executive
Director of Public Works may, in writing, authorize the additional services proposed by Consultant.
2. REPRESENTATIVES
For purposes of implementing this Agreement, the representative of City shall be the Executive
Director of the Public Works Agency, or his designated representative, and the representative of the
Consultant shall be its President or his/her designated representative. Except as may be otherwise stated
herein, such representatives shall have the authority to act on behalf of their respective parties in carrying
out the terms of this Agreement.
3. DELIVERY OF WORK PRODUCT -OWNERSHIP
Consultant warrants and represents that it has the absolute right to enter into and perform this
Agreement and will perform its obligations hereunder in accordance with standards and practices
prevailing in the industry. Consultant's contribution to the Project, including works to be produced by
Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third
person or party. Consultant shall deliver to City any work product which results from the services
provided. Said work product shall be submitted in hard copy and produced in a form compatible with
City's information systems, as agreed between the Project Manager and Consultant.
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25E-5
In regard to all material produced as a deliverable under this Agreement, including but not limited
to records, papers, drawings, specifications, programs, systems and other materials prepared by
Consultant, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and
volunteer workers, that (a) other such material shall be the property of the City, and 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, aroyalty-free, nonexclusive, irrevocable
license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use
such materials.
4. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates
and charges identified in Exhibit A, Project Budget. The total sum to be expended under this Agreement
shall not exceed $87,274.00 during the term of this 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.
5. TERM
This Agreement shall commence on the date first written above and terminate on June 30, 2011,
unless terminated earlier in accordance with Section 14, below. The term of this Agreement may be
extended by a writing executed by the Executive Director of Public Works and the City Attorney.
6. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent
contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to
create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise
discretion or control over the professional manner in which Consultant performs the services which are
the subject matter of this Agreement; however, the services to be provided by Consultant shall be
provided in a manner consistent with all applicable standards and regulations governing such services.
Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and
similar taxes relating to employees and shall be responsible for all applicable withholding taxes.
7. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall maintain and
shall require its subcontractors, if any, to obtain and maintain insurance as described below:
2
25E-6
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 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. 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 combined single limit. Such insurance shall include coverage for owned, hired
and non-owned automobiles.
c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the
Labor Code, 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.
d. Professional liability (errors and omissions) insurance, with a combined single limit of not
less than $1,000,000 per claim.
e. The following requirements apply to the insurance to be provided by Consultant pursuant to
this section:
(i) Consultant shall maintain all insurance required above in full force and effect for
the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of this
Agreement and shall be approved in form by the Ci Attorne .
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(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.
f. If Consultant fails or refuses to produce or maintain the insurance required by this section or
fails or refuses to furnish the City with required proof that insurance has been procured and is in force and
paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such
termination shall not effect Consultant's right to be paid for its time and materials expended prior to
notification of termination. Consultant waives the right to receive compensation and agrees to indemnify
the City for any work performed prior to approval of insurance by the City.
8. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability: (I) for personal injury,
damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal
injury, including death, and claims for property damage, which may arise from the negligence,
recklessness or willful misconduct 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
3
25E-7
or equitable relief is due by reason of the negligence, recklessness or willful misconduct of Consultant
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 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.
9. 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.
10. 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.
11. 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 facsimile 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
With courtesy copies to:
Public Works Agency -Water Division
City of Santa Ana
220 S. Daisy Avenue, M-85
Santa Ana, CA 92703
facsimile (714) 647-3345
4
25E-8
and 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: T & B Planning
17542 E. Seventeenth Street, Suite 100
Tustin, CA 92780
Facsimile (714) 505-6361
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 facsimile, 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.
12. 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 Consultant nor 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.
13. 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.
14. 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
5
25E-9
the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the
City deems appropriate. However, any use of unfinished work product shall be at City's sole risk.
b. Payment need not be made for work which fails to meet the standard of performance specified in
the Recitals of this Agreement.
15. 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.
16. Ji7RISDICTION -VENUE
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be government and construed in accordance with the laws of the State of California.
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.
17. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits,
approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by
the laws and regulations of the United States, the State of California, the City of Santa Ana and all other
governmental agencies. Consultant shall notify the City immediately and in writing of her inability to
obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be
cause for termination of this Agreement.
18. 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. Captions and headings in this Agreement, including the title of this Agreement, are for
convenience only and are not to be considered in construing this Agreement.
c. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the
body of this Agreement.
6
25E-10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above
written.
CITY OF SANTA ANA
ATTEST:
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
Laura Sheedy
Assistant City Attorney
T&B PLANNING, INC.
JOEL MORSE
Vice President
TaxID#
7
25E-11
EXHIBIT A
SCOPE OF SERVICES
AND
PROJECT BUDGET
8
25E-12
REQUEST FOR
COUNCIL ACTION f~-,
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
AGREEMENT WITH INTERGRAPH ? As Amended
? Ordinance on 1Si Reading
FOR COMPUTER SOFTWARE ? Ordinance on 2nd Reading
MAINTENANCE ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
~..~-~i FILE NUMBER
G~
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute the attached agreement with
Intergraph in an amount not to exceed $45,000 per year, for atwo-year term, subject to
nonsubstantive changes approved by the City Manager and City Attorney for computer software
maintenance for the Public Works Agency.
DISCUSSION
The Public Works Agency uses Intergraph software for design of the City's infrastructure and for
the Geographic Information System. The City has an agreement with Intergraph to provide
software maintenance and updates. The current agreement with Intergraph will expire in May
2010. Anew agreement for atwo-year year term is proposed in an amount not to exceed
$45,000 each year.
FISCAL IMPACT
Funds for the agreement are budgeted in current budget in the Public Works Administration activity
for maintenance and repair to machinery and equipment (accounting unit 10117601-62300).
Funds for the second year of the agreement will be included and approved as part of the 2010-11
budget.
APPROVED AS TO FUNDS AND ACCOUNTS:
~j ~ A
Raul Godinez I Francisco Gutierrez
Executive Direct r Executive Director
Public Works Agency Finance & Management Services Agency
RGlfLC
Exhibit: 1. Agreement
25F-1
25F-2
SOFTWARE MAINTENANCE AGREEMENT
THIS AGREEMENT, made and entered into this 1 S` day of March, 2010 by and between
INTERGRAPH, CORPORATION, a Delawaze corporation (hereinafter "Vendor"), 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 has purchased certain software from Vendor and desires that Vendor maintain and
support that software.
B. Vendor represents that it is able and willing to provide softwaze maintenance services to the
City.
C. In undertaking the performance of this Agreement, Vendor represents that it is knowledgeable in
its field and that any services performed by Vendor under this Agreement will be performed in
compliance with such standards as may reasonably be expected from a company providing
similar maintenance services.
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
Vendor shall provide software and hardware maintenance services for the City's Public Works
Agency as set forth in "Security, Government & Infrastructure U.S. Maintenance Terms and Conditions,
attached hereto as Exhibit A and incorporated by reference. Said Terms and Conditions shall be modified
as follows:
Section 10.5, Interpretation, shall be deleted in its entirety and replaced with the following:
"10.5 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."
Z. COMPENSATION
City agrees to pay, and Vendor agrees to accept as total payment for its services, the rates and
charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed
$45,000, annually, during the term of this Agreement.
3. TERM
This Agreement shall commence on the date first written above and terminate on April 30, 2011,
unless terminated earlier. The term of this Agreement may be extended for an additional one-year term
upon a writing executed by the Executive Director of Public Works and the City Attorney.
1
25F-3
4. INDEPENDENT CONTRACTOR
Vendor 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 Vendor performs the services which are the
subject matter of this Agreement; however, the services to be provided by Vendor shall be provided in a
manner consistent with all applicable standards and regulations governing such services. Vendor 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, Vendor shall maintain and shall
require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Due to the nature of services provided, Commercial General Liability Insurance is riot required
b. Worker's Compensation Insurance. h1 accordance with the provisions of Section 3300 of the
Labor Code, Vendor, if Vendor has any employees, is required to be insured against liability for worker's
compensation or to undertake self-insurance. Frior to commencing the performance of the work under
this Agreement, Vendor agrees to obtain and maintain any employer's liability insurance with limits not
less than $1,000,000 per accident.
6. CONFIDENTIALTI'Y
If Vendor receives from the City information which due to the nature of such information is
reasonably understood to be confidential and/or proprietary, Vendor 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. Information in documentary or other tangible form will be clearly and
conspicuously marked as "Confidential". Verbal disclosures shall be identified as confidential within
thirty (30) days of the initial disclosure. Confidential information disclosed to either party by any
subsidiary and/or agent ofthe 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 Vendor disclosed in a publicly available source; (c) is in
rightful possession of the Vendor without an obligation of confidentiality; (d) is required to be disclosed
by operation of law; or (e) is independently developed by the Vendor without reference to information
disclosed by the City.
7. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall
be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or
certified mail, postage prepaid, 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
2
25F-4
telefacsimile (714) 647-6956
With courtesy copies to:
Executive Director of Public Works
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-5622
and
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Vendor: INTERGRAPH CORPORATION
Maintenance Contracts Manager
170 Graphics Drive
Madison, Alabama 35758
A party may change its address by giving notice in writing to the other party. "Ifter, any communication
shall be addressed and trms<nitted to the new address. ff 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 ar deemed
to have been giventwenty-four (24) hours after the time set forth on the trancmiscion report issued by the transmitting
facsimile machine, addressed as set forth above. Far purposes of calculating these time flames, weekends, federal,
state, County or City holidays shall be excluded.
8. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and Vendor,
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 Vendor. The parties agree that any terms or conditions of any purchase
order or other instrument that are inconsistent with the terms and conditions hereof, shall not bind or
obligate Vendor nor 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.
9. LICENSES & PERMITS
Vendor 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. Vendor 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.
3
25F-5
10. 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 WI`T'NESS WHEREOF, the parties hereto have executed this SOFTWARE MAINTENANCE AGREEMENT
the date and year first above written.
CITY OF SANTA ANA
ATTEST:
Maria D. Huizaz DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By:
Laura Sheedy
Assistant City Attorney
INTERGRAPH CORPORATION
RECOMMENDED FOR APPROVAL:
Raul Godinez (NAME)
Executive Director of the (Title)
Public Works Agency Tax ID #
4
25F-6
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25F-8
Document Version SGi-US-032708
,J.~~FV'll~l-7
Security, Government & Infrastructure (SG&I)
'U.S. Maintenance Terms and Conditions
-for Software and Hardware
`The SG8~t U:S: Maintenance Terms and Conditions for Software and Hardware consists of this cover page,
the attached General Terms and Conditions, the Scope of Work (as indicated by the applicable Exhibits
marked below), and any Addenda thereto. This document and the Quote to which it is attached
comprise the .complete agreement. This Agreement replaces all prior oral or written communications
between the Parties regarding the terms and condi#ions of SG8,1 Maintenance Services.
7
By signing the maintenance Quote, the Parties agree to the terms of this Agreement. Once signed, i) the
Parties agree any reproduction of the Agreement made by reliable means (for example, photocopy or
#acsimile) is considered an original and 2} all Covered Products are subject to it.
Scope of Work
If checked below, additional Terms and Conditions specific to the following Scope of Work items are t
made a part of this Agreement:
Exhibits: A ® Commercial Off-The-Shelf ("COTS"} Software, except for DMC Software k
(mark as applicable) $ ? Z/I Imaging Hardware, except for DMC Hardware
C ? Digital Mapping Camera ("DMC") Systems Hardware and Software F
D ? Third Party Products
E ? i
6
5
S
Customer Services Administration
P.O. Box 6695, Hurusville, AL 35813
25F-9
i
GENERAL TERMS AND CONDITIONS
The following general terms and conditions apply to all maintenance Services provided by Intergraph,
except as otherwise modified in an applicable Exhibitor by subsequent Addendum signed by Intergraph
and the Customer, or unless Customer and Intergraph enter into a separate agreement that provides for
maintenance services. In case of conflict between any of the parts of the Terms and Conditions, the
order of precedence shall be.as follows: 1 }any Addenda executed by the Customer and Intergraph,
with the lotest Addendum taking precedence over any earlier Addenda in which a conflict may appear;
2} any applicable Exhibits, as pertains to the subject thereof; and 3} the general terms and conditions.
1 A DEFtNRIONS
i
1.1 "AgreemeM~" means the agreement between Customer and Intergraph that ~ created by Customer E
accepting the Quote which references and is subjec# to the Terms and Condrtions. The Customer-accepted Quote
and the Terms and Condtions make up fhe Agreement between Customer and Intergraph.
1.2 "Coverage Period" means the Agreement period of performance as designated in fhe Quotes}.
1.3 "Covered Products" means the hardware and/or software products fisted on the Quote for wh'~ch Services
are to be provided by Intergraph. Covered Products shall also include additional copies of a software product that
are akeady covered by the Agreement and that are purchased or otherw~e obtained by Customer during the
Coverage Period. Coved Products may include products of Securify, Government 8, Infrastructure, as well as Third
Party Products, as defined below.
f
1.4 "Customer" means the entity or person purchasing maintenance services.
1.5 "Designated Hardware" means hardware designated by Intergraph as elic,~'ble for cancellation with ninety
{90) days notice.
1.6 "DMC" means Digital Mapping Camera F
1.7 "Ir~ergraph" means the Security, Government & Infrastucture SSG&IJ d'n%+sion of Intergraph Corporation.
1.8 "Quote" means a quotation for Services submitted to Customer by Intergraph. A Quote may be the
quotation issued by the Customer Services Center, but may also be the maintenance quotation submitted fo
Customer along with a product quotation at time of purchase.
1.9 "Scope of Worts" means the speafic maintenance services contracted by Customer and to be performed. by
Intergraph, as despibed inapplicable Exhibits attached hereto.
1.10 "Servkes" means the maintenance services for Covered Products that are further described in the Scope of
Work.
1.11 "Terms and CondRtons" means these terms and conditions, indudin an Addenda and a i
g y pplicable Exhibits.
that together with the Quote accepted by Customer comprise the Agreement between Customer and Intergraph
for the ServicPS. ;
E
1.12 "Thl~d Party Products" means the hardware a software products of any division of Intergraph Corporation
.other than Security, Government ~ Infrastructure and/or of an entity other than lntergroph Corporation. ,
1.]3 "Upgrade(s)" means the subsequent releases of applicable software products covered under the
.Agreement.
2.0 AUTHORIZATION AND PERFORMANCE
2.i Ir~iating Services
By accepting the Quote issued by Intergraph and paying all d~ca-ges fisted in the Quote, Customer thereby author¢es
Intergraph to provide the Services far Covered Products during fhe Coverage Period specified on the Quote, and
25F-10
thereby agrees to these Terms and Conditions. Such Services wiN be provided in accordance with the Scope of
'Work. The Agreement shall be considered as beginning. on the frst day of the month that the Agreement becomes
effective, and thus the Covered Period shag be forwhole months only.
2.2 Renewing Services
Appro~amately ninety (90) days prior to the Agreement expiration date, Intergraph wdl submit to the Customer a
renewal Quote that includes pricing for the Services during the subsequent Coverage Period. By accepting the
renewal Quote and agreeing to pay or paying aq charges listed in the renewal Quote, Customer thereby author¢es
Intergraph fo provide the Services for Covered Products during the designated Coverage Period, and thereby
agrees to the then current Terms and Conditions referenced in the renewal Quote. Intergraph reserves the right to
increase maintenance prices at any time at its sole d'iscxetion, which shall, if applicable, be reflected in the renewa!
Quote and shalt take effect for the renewal Coverage Period.
3.0 TERMINATION OF SERVICES
Coverage may only be terminated by either party at the end of a Coverage Period. The party desiring to terminate
Services must provide to the other party wrrften notification at least th'r1y (30) days.prior to the end of the then current
Coverage Period of its intent fo terminate Services. However, should Customer not remit payment for any renewal
Quote prior to the end of the then current Coverage Period, Services shag terminate at the end of that Coverage
Period and Services shall be deemed by In#ergraph to have lapsed. j .
This Agreement may only be terminated prior to its expiration in the following ways:
(a) Anew Agreement between Customer and Intergraph is signed into effect for simaar service.
(b) If either party petifions for reorganization under the Banlavpfcy Act or is adjudicated as bantwpt, or a receiver ~
appanted for either party's business, or the Customer fails to pay Inferr,~aph any amount when due hereunder.
4.0 CHANGES, DElEIIONS, AND ADDITIONS f
4.1 Changes of Coverage E
6
If Customer desires to change coverage for the renewal Coverage Period, Customer should notify Intergraph and
obtain a revised renewal Quote that reflects Customer`s wishes, provided such changes are not in violation of the
Terms and Conditions.
4.2 Deletbns from Agreement
4.2. T Designated Hardware
Either party may remove Designated Hardware from the Agreement by providing ninety (90) days
advance written notice to the other party, with the deletion to take effect at the end of the month in
which falls the ninetieth day from the date notice was received by the other party, or at the end of the
Coverage Period, whichever comes first. In the event either party withdraws maintenance for an item of
Designated Hardware, the charges pertaining to such item of Designated Hardware shalt be prorated for
the remaining term of this Agreement, and if applicable, to the extent charges were prepaid, refunded to
.Customer in whole months only.
4.2.2 Covered Products
t
Either party may provide written notice to the other party at least thirty (30) days prior to the end of any
Coverage Period of its intent to remove any individual Covered Products from the Agreement for the
renewal period. Neither party may remove Covered Products other than Designated Hardware except ~
upon Agreement renewal
Customer may not remove from Coverage individual software licenses of a software product for which
Customer has multiple copies under maintenance at one site or for software licenses that are being used
interdependently at a single site.
F
25F-11
_ .
4.3 Additions to Agreement
In the event Customer purchases additional Intergraph hardware or software during the term of this
Agreement and does not also purchase maintenance for those items at the time of purchase, and if
Customer purchased the additional items from Intergraph, Intergraph wilE notify the Customer by .
submitting in writing an add-on Quote that reflects the additional items, effective date(s) of service, and
charges for those items pursuant fo these Terms and Conditions.
In the event Customer should obtain additional Intergraph software license(s) from an authorized reseller
or by any other manner, Customer agrees to notify Intergraph about the newly acquired software
licenses(s}. In response, Intergraph will provide the Customer with an add-0n Quote reflecting the
effective date of service and charges for the additional soffware license(s).
Customer shall purchase maintenance coverage on all additions of software licenses to a site obtained
via software license transfer. Any such software license transfers shall be in accordance with the current
Intergraph Software Transfer Policy and the End-User License Agreement and Limited Product Warranty for
Intergraph Corporation Software Product{s) or other applicable Software License Agreement delivered
with the software product.
j
5.0 REQUIRED CaVERAGE
5.1 MuHiple or interdependent Licenses f
4
Maintenance may. not be declined for individual licenses of a software product for which Customer has
multiple copies under maintenance at one site or for software licenses that are being used
.interdependently at asingle site. f
5.2 Prerequisite Licenses
.All prerequisite Intergraph software licenses that are necessary to operate the software for which
Customer desires Services under the Agreement must also be included as Covered Products and listed on
the Quote.
6.0 CHARGES ~ ~
.:Maintenance services are not eligible for discouNs.
6.1 Payment
Charges for Services are due and payable armuary In advance. For Customers des~ing to pay quarterly in advance
instead of annually in advance, the Customer must request a revised Quote which shall include a convenience fee
uplift of fifteen percent {15~) of the total annual charges, which convenience fee Customer agrees to pay. The.
:convenience fee shall be prorated and charged to the four quarterly invoices.
All charges are due net th'riy (30) days from the date of invoice, unless Customer accepts the Quote less than thirty
(3Q) days before the first day of the Coverage Period in which case the charges for the invoice or initial invoice, as ~
appricable, are due prior to the beginning of the Coverage Period. In-the event Customer accepts a Quote after the
Coverage Period has already begun, the charges for the invoice or initial invoice, as applicable, shall be due and
payable in full upon receipt of the invoice. Charges for products added during a Coverage Period to an Agreement
shall be prorated to the remaining months of the Coverage Period, in while month increments only, and such
charges shall be due and payable in full upon receipt of invoice.
6.2 Past Due Accounts
INTERGRAPH RESERVi?S THE RIGHT TO REFUSE SERVICE TO ANY CUSTQMER WHOSi ACCOUNT IS PAST DUE. At
the discretion of Intergraph, Customers who have not paid any charges when due may not be rendered Services or
receive Upgrades unfil the charges are paid in full. Addrtionaty, Intergraph shat! charge and Customer agrees to pay
. interest at the rate of two percent (2%) per month or fhe ma~amum amount allowed by law, whichever is less, for all
25F-12
amounts not received when due. The start of the Coverage Period shall not be postponed due to delayed payment
of any charges.
6.3 Reinstatement of Software Maintenance Coverage
Software reinstatement fees wil! apply if there is a lapse in software maintenance Services. Intergraph will
provide a Quote for reinstatement of maintenance upon request.
6.4 Reinstatement of Hardware Maintenance Coverage
Intergraph may charge a recertification fee for reinstating coverage for hardware where coverage has '
lapsed. Recertification of hardware will require inspection and possible refurbishment of the hardware at
Customer's expense prior to being eligible for addition to an Intergraph maintenance contract. -
7.0 CUSTOMER RESPONSIBILITIES
During the Coverage Period of the Agreement, Customer shall commit to the fdlowing:
(a) Customer is respon~ble for backing up all systems software, applications, and user data flies prior to 1
commencement of any repair services. '
(b} Customer warrants that for all software licenses supported under the Agreement, all rke software licenses in the
possession of the Customer and located at the s'rfe referenced on the Quote are I~ted on the Quote. If alt like
software licenses are not I'~sted on the Quote, Customer agrees to notify Intergraph so that Intergraph may issue a
revved Quote to the Customer. Customer also warrants that all prerequ~ite Intergraph software licenses
necessary to operate the software supported under the Agreement are fisted on the Quote.
(c) Customer warrants that Services provided herein shall be utT¢ed only for the quantity of licenses I~ted on the
Quote. I
E
8.0 SERVICES WARRANTIES AND LIMITATION OF LIABILITY
Product warranties are as provided in the Security, Government 8, Infrastructure Terms and Conditions of Sale, the
:End-User License Agreement and Limited Product Warranty far Intergraph Corporation Software Product(s) and/or i
other Software license Agreement provided with the Covered Products, and/or in other contractual documents, as =
applicable. The following warranties apply to the Services described in these Terms and Conditions,
8.1 warranties
INTERGRAPH WARRANTS FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF SERVICE THAT, UNDER NORMAL USE,
:MATERIALS AND SPARES PROVIDED PURSUANT TO THIS AGREEMENT FOR SECURITY, GOVERNMENT & INFRASTRUCTURE
HARDWARE SHALL BE FREE FROM DEFECT IN MATERIAL AND WORKMANSHIP. ANY SPARES OR MATERIALS PROVIDED
PURSUANT TO TH1S AGREEMENT FOR SERVICE OF THIRD PARTY HARDWARE ITEMS SHAL4 ONLY BE WARRANTED TO THE
EXTENT THE SPARES OR MATERIALS ARE WARRANTED BY THE THIRD PARTY HARDWARE MANUFACTURER.
f
INTERGRAPH DOES NOT WARRANT THAT THE SOFTWARE UPDATES OR MAINTENANCE SERVICES PROVIDED HEREUNDER
:WILL MEET CUSTOMER'S REQUIREMENTS, AND UNDER NO CIRCUMSTANCES DOES INTERGRAPH WARRANT THAT
SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE. ANY ADDITIONAL WARRANTY OF THIRD PARTY SOFTWARE
ITEMS SHALL ONLY BE TO THE EXTENT THE ITEMS ARE WARRANTED BY THE THIRD PARTY SOFTWARE MANUFACTURER. r
8.2 Disclaimers
THE FOREGOING WARRANTIES ARE VOID IF FAILURE OF A WARRANTED REM RESULTS DIRECTLY, OR !NDlRECTLY, FROM i
AN UNAUTHORQED MODIFICATION OF A WARRANTED ITEM; AN UNAUTHORQED ATTEMPT TO REPAIR A WARRANTED
ITEM; OR MISUSE OF A WARRANTED REM, INCLUDING WITHOUT LIMRATION, USE OF WARRANTED ITEM UNDER
ABNORMAL OPERATING CONDITIONS OR WITHOUT ROUTINELY MAINTAINING A WARRANTED REllh.
25F-13
THE FOREGOING WARRANTIES FOR MAINTENANCE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES OF MAINTENANCE SERVICES, WHETHER EXPRESSED OR IMPLJED. INTERGRAPH DISCLAIMS ALL
OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH REGARD TO MAINTENANCE SERVICES SUPPLIED
HEREUNDER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR
PURPOSE.
8.3 Limiitalion at LfabHily
INTERGRAPH SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL INCIDENTAL SPECtA~., OR PUNITNE DAMAGES,
ARISING OUT OF, OR IN CONNECTION WITH THE FOREGOING WARRAMIES, OR THE PERFORMANCE OF THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, OR LOSS OR CORRUPTION OF DATA. IN NO
EVENT SHALL INTERGRAPH BE RESPONSI8IE FOR DAMAGES IN EXCESS OF THE AMOUNT PAID BY CUSTOMER DURING THE
:PAST TWELVE MONTHS FOR THE SITE(S) REFERENCED IN THE MOST RECENT QUOTE ISSUED BY INTERGRAPH UNDER THIS
AGREEMENT AS OF THE DATE OF ANY SUCH WARRANTY CLAIM.
9.0 NON-SOLICITATION OF EMPLOYEES
For purposes of this Section 9.0, the term "empbyee" shoal also include empbyees of Intergraph's Services
subcontractors who d~recty support Customer. Customer agrees that it vwll not, without the prior wrifiten consent of
Intergraph, solicit or hire any Intergraph employee, or induce suds employee to leave Intergraph's employment,
directly or ind~ectly, during the term of Phis Agreement and for a period of twelve (12} months after the Agreement {
expires or is terminated. Customer agrees that a breach of this provision would cause actual and substantial
damages to Intergraph such that it would be very d'!fficult to calaAate actual damages. Accordingly, any such
breach wig entitle Intergraph to recover liquidated damages from Customer in the amount equal to one year of the
.affected employee's annual salary plus benefits for each such breach, as well as expenses, costs, and reasonable
afitomey's fees incurred by Intergraph in seeking enforcement of this Agreement. Customer agrees that the
foregoing amount is intended to be, and in fact is, a reasonable estimate of the actual damages that would be
incurred by Intergraph if Customer were to breach the proviisi~on, and that this amount is not intended to be, and in r
fact is not, a penalty. in addition, Intergraph shall be entitled to equitable or injunctive reTef to prevent further
breaches. I
10.0 MISCELLANEOUS
10. T Taxes ~
All maintenance charges are exclusive of United States and/or any other country's federal, sta#e,
municipal, or other governmental, withholding, excise, sales, use, value added or other taxes, tariffs,
custom duties and importing fees ("Taxes"J. Customer steal! be liable for, and shall indemnify and hold
Intergraph harmless from and against, any and all Taxes. Taxes shall expressly exclude any United States (i)
federal, (ii} slate, (in} municipal, (iv} or other govemmental income taxes, franchise taxes, business license
tees and other like taxes measured by Intergraph's income, capital and/or assets. The total invoice
amount for maintenance charges is subject to increase by the amount of any Taxes which Intergraph is
required to withhold, collect, or pay so that Intergraph receives the full amount of the maintenance 7
.charges. Any certificate to exempt the Agreement from tax liability or other documentary evidence of
statutory exemption shat! be obtained by Customer at Customer's expense.
10.2 Notices I
i~
Any notice or other communication ("Notice") required or permitted under this Agreement shall be in
.writing and either delivered personally or sent by electronic. mail, facsimile, ovemight delivery, express
: mail, or certified or registered mail, postage prepaid, return receipt requested. A Notice delivered
personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A !
Notice sent by electronic mail or facsimile shall be deemed given when transmitted, provided that the
sender obtains written confirmation from the recipient that the transmission was received. A Notice sent
by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent.
..25E-14
A Notice that is sent by certified mail or registered mail shall be deemed given forty-eight X48} hours after it
is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or
more parties, the time period shall commence only when all of the required Notices have been deemed
given.
70.3 Headings
The various headings in these Terms and Conditions are inserted for convenience only~and shall not affect
the meaning or interpretation of these Terms and Conditions or any section or provision hereof.
10.4 Assignment
Neither party shat have the right to assign any of its rights nor d~egate any of its obligations under the Agreement
without the prior written consent of the .other party, provided that such consent shall not' be unreasonably withheld,
except That Intergraph may assign its rights and obligations under the Agreement, without the approval of Customer, '
to an entity which acquires al! or substantially aG of the assets of Intergraph or of the Intergraph div~ion furnishing
services under the Agreement, or to any subsidiary, affiliate or successor in a merger or acquisiition of fntergraph, or in
-the case of individual products or product lines, Intergraph may assign its rights and obligations under the Agreement `
for the product or product line, without the approval of Customer to an enfify which acquires aG or substantially all of
the product or product line asset.
10.51nterpretation
The Agreement shat for a0 pcxposes be construed and enforced under and in accordance with the Laws of the
-State of Alabama and shall have been deemed to have been executed in Huntsv~7fe, Alabama. The parties agree
that any legal action or proceeding relating to the Agreement shall be instituted in the Circuit Court for Madison t
.County, Alabama or the United States District Court for the Northern District of Alabama, Northeastern Divi~on. The
.parties agree to submit to the jurisdiction of and agree that venue is proper in these courts in any such legal action or
proceedings. ~
10.6 SeverabdNy °
Whenever pos~ble, each provision of the Agreement and each related document shall be interpreted in such a
manner as to be effective and valid under applicable k~v. However, if any provision of the Agreement or any
related document shall be prohibited by or invalid under applicable k~w, such provision shall be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining prov~iorn
of the Agreement or such related document.
1Q:7 No Waiver
Any failure by either party tv enforce performance of the Terms and Conditions of the Agreement shall
not constitute a waiver of, or affect said party's right to avail itself of such remedies as it may have for any
subsequent breach of the terms of the Agreement. I
70.8 Force Majeure ~
Except for payment obligation hereunder, neither party shall be liable for any failure to perform or observe
-any of its obligations under this Agreement for as long as and to the extent that such performance is
.prevented or hindered by any circumstances beyond its reasonable control. By way of example and not
limitation, such causes may include acts of God or public enemies; labor disputes; acts of local, state, or
national governments or public agencies; utility or communications failure; fire; flood; epidemics; riots; or
.strikes. The time for performance of any right or obligation delayed by such events will be postponed for a
.period equal to the delay. If, however, a party is subject to a force majeure that endures for more than
sixty X60) days, the other party has a rightto terminate the Agreement.
25F-15
1 Q.9 Subcontraciiig
Intergraph reserves the right to provide services asset forth in this Agreement through a subcontract
arrangement with a third party maintenance provider.
1010 ENire ~yreement .
The Agreement constitutes the entire agreement between the parties hereto with regard to the subject matter
hereof. The Agreement supersedes any and an prior dscussionsand/or representations, whether written or oral, and
no reference to prior dealings may be used to in any way modify the expressed understandings of the Agreement.
The Agreement may not be amended or mod~ed unless done so in writing signed by authored representatives of
both parties.
i
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4
t
25F-16
Exhibit A
COTS Software, except DMC Software
A.i. SOFTWARE SERVICE
Intergraph offers three levels of support for Covered Products software, although not atl levels are available for all
software products. When available, the highest level of support offered ~ Premium Service which provides 24x7
coverage and Upgrades of Covered Products software. The service offered for the majority of the Covered Products
~ Standard Service which offers Upgrades and support during standard business hours. Advantage Service, when
available, provides support during standard business hours but no Upgrades. Customer may choose any level of
service offered;. however all Covered Products in the support Agreement must have the same level of service when
available.
A.1.i Premium Service
1
For'cxitical Customer applications, Premium Service provides support to the Customer twenty--four ham per day,
seven days perweek (24x7), including Intergraph-observed holidays.
.Premium Service will include and be Limited to the following for Security, Government & Infrastructure software
products listed on the Quote as having Premium level support under the Agreement:
(a) Out-of-the-box functionality support via the Het Desk tale ~
P ( phone or eService via Intergraph s web sifie} Phone
. support for all prraify levels of software errors is ava0able on normal business days from 7AM - 7PM Central Time, f
excluding Intergraph-observed holdays. When the software error is considered to be Crit'~cal (meaning
production ~ down), then phone support is ava1ableafter-hours and on Intergraph-observed holidays.
(b} Access to all published software Upgrades, updates, faces and enhancements
t
(c) Twenty-four-hoar-per-day/seven-day-per
week access to problem knowledge f3ase, an oMir~e self-help tool
(cl) Complete problem diagnostic support ('This often extends to data related problems that have nothing to do with 1
Intergraph software issues. It should be noted that when Intergraph solves a data related problem, it wnU provide
the instructions for solving fhe problem to the customer but not the actual solution. For example, if a customer has I
difficulty in performing a bundle adjustment due to a data problem, Intergraph wn'N instruct the customer on the !
proper steps to solve the problem, but will not, in
general, provide the results of the adjustment.)
Services are limited to the specific Security, Government 8, Infrastructure products listed on the Quote and functioning
on the appropriate Intergraph supported operating system.
Intergraph wiY notify Customer when Upgrades are made available for any Covered Products for which Premium
Service has been purchased. Upgrades are shipped upon Cus#omer request. ?
Premium Service is only available for the current version and the one version prior to fhe current version of a particular ~
Security, Government 8, Infrastructure software product. ~
Premium Service may not be available for all software products.
A.1.2 Standard Service
Standard Software support will be provided to the Customer during the hours of 7:00 a.m. to 7:00 p.m. Genital Time,
Monday through Friday, excludng Intergraphrobserved holydays.
Standard Service will include and be lirr~ted to the following for Security, Government ~ Infrastructure software
products I~ted on the Quote as having Standard level support under fhe Agreement:
(a} Out-of-the-box functionality support via the Help Desk (telephone or eService via Intergraph's web site} Phone
support for all priority levels of software errors is ava8ab[e on normal business days from 7AM - 7PM Central Time,
excuding Intergraph~bserved holidays.
(b} Access to all published software Upgrades, updates, fixes and enhancements
(c) Twenty-four-hoar-per-day/seven-day-per-week access to problem Knowledge Base, an on-lineself-help tool
25F-17
.
Exhibit A
COTS Software, except DMC Software
(d) Complete problem diagnostic support (This offien extends to data relafied problems that have nothing to do with
Intergraph software issues. It should be noted that when Intergraph solves a data related problem, it v~ill provide '
the instructions for solving the problem to the customer but not the actual solution. For example, if a customer has
difficulty in performing a bundle adjustment due to a data problem, Intergraph wtl insfivct the customer on the
proper steps to solve the problem, but v~nll not, in general, provide the results of the adjustment.)
Services are lenified fio the specific Security, Government 8< Infrastructure products rested on the Quote and functioning
on the appropriate Intergraph-supported operating system.
.Intergraph wi11 notify Customer when Upgrades are made avalable for any Covered Products for which Standard
Service has been purchased. Upgrades are shipped upon Customer request.
Standard Service is only avafabte for the cxurent version and the one version prior to the current version of a particular
Security, Government 8, Infrastructure software product
Standard Service may not be avalable for all software products.
A1.S Advca~tageService
Advantage Service support will be provided to the Customer during the hours of 7:00 a.m. to 7:00 p.m. Central'Time,
Monday Through Friday, excluding lntergraph-0bserved hd'idays. -
.Advantage Service wdl include and be limited to the fdlowing for Security, Government 8~ infrastructure software
.products fasted on the Quote as having Advantage level support under the Agreement:
(a) Out-of-the-box functiondity support via The Help Desk (telephone or eService via Intergraph's web site] Phone
support for all priority levels of software errors is avaaable on norrnal business days from 7AM - 7PM Central Time;
excluding Intergraph-obse~red holidays.
(b) 7wenfiy--tour-hour-per-day/severrclay-per-week access to problem Knowledge Base, an orNineself-help rod ~
Services are 6mifed to the specific Security, Government 8~ Infrastructure products fisted on the Quote. acid functioning
on the appropriate Intergraph-supported operating system.
Wllh Advantage Service the Customer is not eligible to receive Upgrades or new releases to any software for which
Advantage Service is contracted.
Advantage Service may not be available for at software products.
A.2 EXCLUDED SOFTWARE SERVICES - ~
.Services are limited to specific software products listed on the Quote and functioning on the appropriate
fntergraph supported operating system. ,Support for the following is outside the scope of this Exhibit and I
may be available under a different category of Service or through a separate agreement:
(a) Software malfunctions from causes other than through the ordinary and intended use of the software
(b) lnstaNation of any software, Upgrades, fixes or releases
(c) Network configuration ~ k
(d) System-level tuning and optim¢ation s
(e) Programming or software devekapment
(fl installation of Custom InterfaceSoftware -
Product training
Services provided by Intergraph under this Exhibit shall not include support calls that are necessary due to
.failure of software not supplied by Intergraph and noT covered in the Agreement.
25F-18
0
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25F-20
REQUEST FOR .
y
COUNCIL ACTION
I
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
ACQUISITION OF RIGHT OF WAY FOR ? As Amended
THE OCTA AT- GRADE RAIL SAFETY ? Ordinance on 1S` Reading
? Ordinance on 2nd Reading
ENHANCEMENT PROJECT ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
, ,Y~jZ-~~",---'' FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute the attached acquisition
agreement, subject to nonsubstantive changes approved by the City Manager and City Attorney,
with Earl Scheib Realty Corp., a California corporation, for the purchase of a portion of the
property located at 1102 E. Seventeenth Street in the amount of $41,185.
DISCUSSION
On October 20, 2008, City Council approved a cooperative agreement with Orange County
Transportation Authority (OCTA) for the Grade Crossing Enhancement Program at ten crossings
in the City. Improvements include medians, roadway signing and striping, pedestrian gates and
other vehicular gate enhancements. OCTA is the lead agency for this project and the City is
responsible for 12 percent of the total costs.
The purpose of this program is to enhance railroad safety and make streets and roads safer for
the community. One of the railroad crossings to be enhanced as a result of this program is at
Seventeenth Street. To install the improvements at this crossing, OCTA determined that
acquisition of 242 square feet will be required from the property at 1102 E. Seventeenth Street.
The compensation amount is the appraised value prepared by an appraiser licensed in the State
of California.
ENVIRONMENTAL IMPACT
A Notice of Exemption and Categorical Exemption -Class 1 (f): Safety Protection Devices (ER #
2008-159) has been prepared for the project and is consistent with both of these agreements.
25G-1
Acquisition of Right-of-Way
OCTA At-Grade Rail Safety Program
March 1, 2010
Page 2
FISCAL IMPACT
Funds for the City's share of the costs are available in Select Street Construction, Measure M
Street Construction, activity (accounting unit 03217660-66220).
APPROVED AS TO FUNDS AND ACCOUNTS:
1
Raul Godinez II
Francisco Gutierrez
Executive Director Executive Director
Public Works Agency Finance & Management Services Agency
RG/SA
Exhibit 1: Agreement
25G-2
EASEMENT~AGREEMENT AND BILATERAL ESCROW INSTRUCTIONS
THIS AGREEMENT("Agreement"), entered into on
2010,
between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the
Constitution and laws of the State of California (hereinafter "City"), and Eari Scheib Realty Corp., a
California corporation, who acquired title as Redwood City Auto Paint Shop, Inc. (hereinafter
"Owner"), regardless of number or gender;
THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and
subject to the terms, conditions and provisions of this Agreement, Owner agrees to grant to City, in
exchange for the consideration described herein, an easement (the "Permanent Easement") and a
temporary construction easement ("TCE" and together with the Permanent Easement, the
"Easements") to a portion of that certain real property (hereinafter the "Premises") iegally described
and depicted as foliaws:
SEE EXHIBIT "A" -Legal Description
and EXHIBIT "B" -Graphical Depiction
ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF
{Commonly known as a portion of 1102 E. 17~' Street, Santa Ana, Ca)
The creation of the Easements shall be in accordance with and subject to all of the following terms,
conditions, promises, covenants, agreements and provisions, to wit:
1. Easements. The Owner shall grant to the City the fallowing Easements pursuant to the terms
and obligations set forth herein:
(a} The Permanent Easement shall be in the form of the Easement Deed set forth in Exhibit "C" to
this Agreement.
(b} The Temporary Construction Easement (hereinafter "TCE") shall be as described in the attached
Exhibit "A-1" and depicted on the attached Exhibit "B." This Temporary Construction Easement,
for purposes incidental to construct the proposed improvements to 1102 E. 17~' Street, is granted
subject to the following construction parameters:
(i) During construction of driveway approaches, access to the business will be maintained
at afl times. In same cases, construction of one-half of a driveway approach at a time may be
required. However, at no time during construction shall the contractor block access for ingress
and egress to Owner's business.
(ii} The City agrees that it will use the Easements in such manner as not to injure, annoy,
interfere with or infringe on the rights of others on the Premises or other licensees. The City
agrees to comply with all applicable laws, ordinances and regulations now or hereafter in force in
connection with its use of the Premises
2 Payment of Purchase Price. City agrees to pay to Owner, and Owner agrees to accept from
City, as and for the full purchase price for Easements, the total sum of Forty-One Thousand One
Hundred Eighty-Five and No/100 Dollars ($41,185.00) (the "Purchase Price").
3. ClosinalEscrow. Within ten days of the execution of this Agreement, (a) City shall deposit
the entire Purchase Price into escrow with [a mutually agreeable escrow company] ("Escrow Agent")
and (b) Owner shah provide the Escrow Agent with executed Easement Deed in the form attached
hereto as Exhibit "C". Upon confirmation by City that Owner has marketable title to Premises,
closing shall occur. ~ If City has not received such confirmation of marketable title to its satisfaction by
25G-3
the Closing Deadline (as defined below), this Agreement shall terminate and Escrow Agent shall
return the Easement Deed to Owner and the Purchase Price minus escrow fees to City.
4. Waivers. The waiver by either party of any breach of any covenant or agreement herein
contained on the part of the other party shall not be deemed or held to be a waiver of any subsequent
or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or
agreements contained herein.
5. Heirs. Assians, Successors-in-Interest. This Agreement, and all the terms, covenants and
conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and
assigns of the respective Parties hereto.
6. Time is of the Essence. In all matters and things hereunder to be done and in all payments
hereunder to be made, time is and shall be of the essence.
7. Permission to Enter on Premises. It is understood and agreed that for project planning and
funding purposes the Owner hereby grants to Buyer and authorized agents or contractors, the right of
set forth in the TCE to the area described in Exhibit "A-1" and "B" to perform the work described in
Paragraph 19. However, said right of possession and use shall not be exercised prior to the City, or
City's agent, providing Owner with a 48-hour prior written notice of City's intent to perform the
construction items listed in Paragraph 19 below. The commencement date of the TCE shall begin
after such 48-hour period expires ("The Commencement Date")
The TCE shall continue in effect for a period of six (6) months after the Commencement Date. City
shall use its best efforts to complete the described work within the prescribed period of time;
however, extraordinary circumstances may occur which may require additional time to complete the
work (i.e. rain, labor dispute, shortage of materials, each a "Force Majeure Event"). It is agreed that
should the actual use of the TCE extend beyond the time period delineated above due to unforeseen
circumstances such as a Force Majeure Event, and not due to the negligence or willful misconduct of
the City, and the occurrence is verified through the contractor or City project inspection logs
presented to Owner, the term of the TCE shall be extended until the actual date of City's termination
of the TCE. The City shall provide Owner with a 15 days prior written notice of its intention to
terminate the TCE. Upon the extension of the TCE, the City agrees to pay at the rate of 560.83 per
month, prorated to the actual date of the City's termination of use.
It is further understood that in no event shall the City's use of the property exceed the early of either
the term of the TCE described above or the project completion date.
8. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O.
Box 1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing
address of the Owner is:
Earl Scheib of Califomia
225 Broadway 18"' Floor
San Diego, CA 92101
9. Entire Aareement. It is mutually agreed that the Parties hereto have herein set forth the
whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every, and
all issues} that were raised or could have been raised in connection with the creation of the
Easements.
10. Expiration of Aareement/Closina Deadline. This Agreement shall terminate and become
unenforceable by any Party if Closing does not occur before March 15, 2010 (the "Closing Deadline").
25G-4
11. Indemnity. City agrees to indemnify, defend and hold the Owner harmless from and
against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty,
punitive damage, or expense (including, without limitation, attorneys' fees), arising out of or
caused by or alleged to arise out of or be caused by (a} City's or its agents' or contractors' actions or
omissions during the term of this Agreemen#, (b) any construction work City performs on the Premises,
or (c} any completed construction that remains on the Premises.
12, Modification and Amendment. This Agreement may not be modified or amended except in
writing signed by the Owner and City.
13. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the
conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement
shall have no effect, but all the remaining provisions of this Agreement shall remain in full force.
14. Captions. Captions and headings in this Agreement, including the title of this Agreement, are
for convenience only and are not to be considered in construing this Agreement.
15. Governing law, This Agreement shall be governed by and construed In accordance with the
laws of the State of California.
16. No Reliance By One Partv On The Other. Each party has received independent legal advice
from its attorneys with respect to the advisability of executing this Agreement and the meaning of the
provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not
for or against any party based upon any attribution to such party as the source of the language in
question.
17. No Third Party Beneflclarv. This Agreement is intended to benefit only the Parties hereto and
no other person or entity has or shall acquire any rights hereunder.
18. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other,
execute and deliver such further documents (in form and substance reasonably acceptable to the party
to be charged) and do such other acts and things as are reasonably necessary and appropriate to
effectuate the terms and conditions of this Agreement, without cost.
19. Construction Contract and Curative Work. It is understood and agreed by and between the
parties hereto that the compensation paid to Owner through this Agreement includes the value of the
cost to remove, relocate, reconstruct andlor refurbish the following improvements located on the
Property:
i. Asphalt paving
ii. Marked parking space
20. Incorporation_of Exhibits. All Exhibits referenced herein and attached hereto shall be
incorporated as if fu11y set forth in the body of this Agreement.
111
25G-5
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first
written above.
OWNER: Earl Scheib Realty Corp., a California corporation who acquired title as
Redwood City Auto Paint Shop, Inc.
Date: ~ / Z~ t j U , 2010
v~~ N. ~C~,S~~vP
Date: , 2010
City
City of Santa Ana
Date: , 2010
David N. Ream
City Manager
Attest:
Date: , 2010
Maria D. Huizar
City Clerk
Approved as to Form:
Joseph W. Fletcher
City Attorney
Date: , 2010
Jose Sandoval
Senior Managing Assistant City Attorney
25G-6
Coast Surveying, inc.
July 9, 2008
EXHIBIT "A"
LEGAL DESCRIPTION
SVT-PCL-1
THAT PORTION OF BLOCK 22 OF THE TOWN OF SANTA ANA EAST, IN THE CITY OF
SANTA ANA, COUNTY OF ORANGE, STATE OF CAL{FORNIA, AS SHOWN ON A MAP
RECORDED IN BOOK 10, PAGES 43 AND 44 OF MISCELLANEOUS RECORDS OF LOS
ANGELES COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED IN THE
CORPORATION QUITCLAIM DEED TO REDWOOD CITY AUTO PAINT SHOP, INC.,
RECORDED JULY 12, 1976, IN BOOK 11808, PAGE 188 OF OFFICIAL RECORDS, IN THE
OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF THE LAND DESCRIBED IN THE
DEED TO THE STATE OF CALIFORNIA RECORDED ON OCTOBER 22, 1992 AS
INSTRUMENT NO. 92-718661 OF OFFICIAL RECORDS AND THE SOUTH RIGHT OF WAY
LINE OF SEVENTEENTH STREET AS DESCRIBED IN THE DEED TO THE CITY OF SANTA
ANA RECORDED NOVEMBER 15, 1967 IN BOOK 8436, PAGE 679 OF OFFICIAL RECORDS;
THENCE ALONG SAID SOUTH RIGHT OF WAY LINE SOUTH 89°49'55" EAST 8.68 FEET;
THENCE SOUTH 00°23'07° WEST 12.72 FEET; THENCE NORTH 89°36'51" WEST 8.69 FEET
TO SAID EAST LINE OF SAID DEED TO THE STATE OF CALIFORNIA; THENCE ALONG SAID
EAST LINE NORTH 00°25'27" EAST 12.69 FEET TO THE POINT OF BEGINNING.
CONTAINING 110 SQUARE FEET, MORE OR LESS.
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A
PART HEREOF.
DATED THIS 97" DAY OF JULY, 2008. ANp S
~~~J~P OEL c~~Q~
GWEN-VERA DEL CASTILLO, PLS 5108 ~ L.S. 5108 ~ ~
REGISTRATION EXPIRES 6!30109 ~ EXP. 6/30/09
Q-
0~ CA~~~`~
i
Jn 107069-0d Santa Ana SVT-PCL.1 1
25G-7
Coast Survcying, luc.
July 9, 2(308
EXHIBIT "A-1"
LEGAL DESCRIPTION
SVT-PCL-1
TEMPORARY CONSTRUCTION EASEMENT
THAT PORTION OF BLOCK 22 OF THE TOWN OF SANTA ANA EAST, IN THE CITY OF
SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP
RECORDED IN BOOK 10, PAGES 43 AND 44 OF MISCELLANEOUS RECORDS OF LOS
ANGELES COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED IN THE
CORPORATION QUITCLAIM DEED TO REDWOOD CITY AUTO PAINT SHOP, lNC.,
RECORDED JULY 12, 1976, IN BOOK 11808, PAGE 188 OF OFFICIAL RECORDS, IN THE
OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE EAST LINE OF THE LAND DESCRIBED IN
THE DEED TO THE STATE OF CALIFORNIA RECORDED ON OCTOBER 22, 1992 AS
INSTRUMENT NO. 92-718661 OF OFFICIAL RECORDS AND THE SOUTH RIGHT OF WAY
LINE OF SEVENTEENTH STREET AS DESCRIBED IN THE DEED TO THE CITY OF SANTA
ANA RECORDED NOVEMBER 15, 1987 IN BOOK 8436, PAGE 679 OF OFFICIAL RECORDS;
THENCE ALONG SAID SOUTH RIGHT OF WAY LINE SOUTH 89°49'55" EAST 8.68 FEET TO
THE TRUE POINT OF BEGINNING; THENCE SOUTH 00°23'07" WEST 12.72 FEET; THENCE
NORTH 89°36'51" WEST 8.68 FEET TO SAID EAST LINE OF SAID DEED TO THE STATE OF
CALIFORNIA; THENCE ALONG SAID EAST LINE SOUTH 00°25'27" WEST 5.00 FEET;
THENCE SOUTH 89°36'51" EAST 13.69 FEET; THENCE NORTH 00°23'07" EAST 17.74 FEET
TO SAID SOUTH RIGHT OF WAY LINE; THENCE ALONG SAID SOUTH RIGHT OF WAY LINE
NORTH 89°49'55" WEST 5.00 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 132 SQUARE FEET, MORE OR LESS.
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A
PART HEREOF.
DATED THIS 9T" DAY OF JULY, 2008. ~ L ANp S
~=5~~p, qEC C~~AL~
GWEN-VERA DEL CASTILLO, PLS 5108 ~ L.S. 5108 ~ ~
REGISTRATION EXPIRES 6/30/09 ~ EXP. 6/30/09
OF CA~~~o
Jn 197069-04 Santa Ana SVT-PCirl TCE I
25G-8
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SEVENTEENTH STREET
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S LINE 8436/679 O.R.
~ T. P. 0. B.
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® TEMPORARY CONSTRUCTION ~ RrAI°G~°~..Q. 9®/ 4~~
EASEMENT
~ APN 398-071-60
BEARING DISTANCE z
1 N89° 49' S5" 4/ 8. 68' ~
2 S00° 25' 27° W 12. 69' ?
3 SO 0 ° 25' 27" W 5. 00'
4 S89° 36' S1" E 13. 69'
5 N00° 23' 07" E 17. 74' INST. N0.
6 N89° 49' S5" W 5. 00' 92_718661 O.R.
7 N0 0 ° 23' 0 7" E 12. 72' APN 398-071-- 59
8 N89° 36' S 1 " W 8. 69'
J08
ATE: 7 07 O8 C~~ ,S / SURVEYING, INC.
SCALE: 1 = 20 15031 PARKWAY LOOP, SUITE B
SHEET 1 OF 1 RIGHT OF WAY & TEMPORARY CONSTRUCTION EASEMENT rusTlN, ca e2~ao-ss27 (714) ala-6266
...\SVT-PCL-1.dgn 7/9/2008 1:25:44 PM
25G-9
i
25G-10
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
? As Amended
AGREEMENT WITH TSCM FOR ? Ordinance on 1~" Reading
STREET SWEEPING SERVICES AT ? ordinance on z"° Reading
? Implementing Resolution
THE DEPOT ? Set Public Hearing For
CONTINUED TO
V`~`~-~.-~ FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute an agreement with TSCM for
street sweeping services at The Depot for aone-year period with an additional one-year renewal
in an annual amount of $12,000.
DISCUSSION
The Depot is a regional transportation hub, combining Amtrak, MetroLink, Orange County Transit
Authority and other bus services with office space for various State, County and City
departments. Patronage at the facility has escalated in recent years to over a million persons
annually. Therefore, consistent street sweeping service is needed to keep the exterior of the
facility and the parking structure clean and attractive.
TSCM, based in Huntington Beach, California, also provides sidewalk steam cleaning services
for The Depot. As such, this agreement for street sweeping services exceeds the $25,000 limit
and will require Council approval.
FISCAL IMPACT
Funds for the agreement .are budgeted in account for Maintenance and Repair of Building and
Grounds for the Depot (accounting unit 06718870-62320).
APPROVED AS TO FUNDS AND ACCOUNTS:
~ . r
. -.tea...
Raul Godinez I Francisco Gutierrez
Executive Dire r Executive Director
Public Works Agency Finance & Management Services Agency
RG/CK
Exhibit: 1. Agreement
25H-1
25H-2
AGREEMENT FOR PROVISION OF SERVICES
THIS AGREEMENT, made and entered into this 17th day of January, 2010, by and
between TSCM, a California corporation (hereinafter "Contractor"), and the City of Santa Ana,
a charter city and municipal corporation duly organized and existing under the Constitution and
laws of the State of California (hereinafter "City").
RECITALS
A. The City desires to retain a Contractor having special skill and knowledge in the field of
street sweeping services.
B. Contractor represents that Contractor is able and willing to provide such services to the
City.
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 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
Contractor shall perform street sweeping services at the Santa Ana Regional
Transportation Center at the following service levels:
3 times per week =clean all entrances, driveways, curbs, parking lots, parking structure
levels, bus lanes and bus stalls.
2 times per week =clean the courtyard, walkway north and south of courtyard, utility
drive area and the east platform.
The City reserves the right to evaluate and modify the service levels set forth above
during the term of this Agreement.
2. COMPENSATION
a. City agrees to pay, and Contractor agrees to accept as total payment for its services
Eight Hundred Twenty Five Dollars ($825.00) per month. The total sum to be expended under
this Agreement shall not exceed $12,000.00 per year during the term of this 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
1
25H-3
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 Term of this Agreement shall be a twelve (12) month period, with one (1) one-year
renewal exercisable by the City under the same terms and conditions hereof. 'The term of this
Agreement maybe extended upon a writing executed by the Executive Director of the Public
Works Agency and the City Attorney.
4. 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.
5. 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, agents, volunteers, and employees as
additional insureds) 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. Contractor shall supply the City with a fully executed additional insured
endorsement in substantially the form attached hereto as Exhibit A upon execution of this
Agreement and shall be approved in form by the City Legal Counsel.
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 provisions of Section 3300
of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against
2
25H-4
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.
e. The following requirements apply to the insurance to be provided by Contractor
pursuant to this section:
(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 in form by the City Legal Counsel.
(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.
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 effect 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.
6. INDEMNIFICATION
Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, Contractors, 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 health, and claims for property damage, which may arise from the
direct or indirect 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.
3
25H-5
7. 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.
8. CONFLICT OF INTEREST CLAUSE
Contractor 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:
Executive Director
Public Works Agency - City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
and,
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
Telefacsimile (714) 647-6515
4
25H-6
To Contractor:
TSCM
18281 Gothard Street, Ste. 109
Huntington Beach, CA 92648
A party may change its address by giving notice in writing to the other party. Thereafter,
any notice, tender, demand, delivery, or other communication shall be addressed and transmitted
to the new address. If sent by mail, any notice, tender, demand, delivery, or other
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, any notice, tender, demand, delivery, or
other 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
Contractor, 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, that terms and conditions hereof, shall not bind or obligate Contractor nor
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
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 Contractors retained by City.
12. TERMINATION
This Agreement maybe 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:
5
25H-7
a. As a condition of such payment, the City Manager, or his designee, 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.
13. DISCRIMINATION
Contractor shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Contractor affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
14. JURISDICTION -VENUE
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be government and construed in accordance with the laws of the State of
California. 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
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.
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.
6
25H-8
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 David N. Ream
Clerk of the Council City Manager
APPROVED AS TO FORM: CONTRACTOR - TSCM:
JOSEPH W.FLETCHER
City Attorney
By: By:
Lisa E. Storck Name:
Assistant City Attorney Title:
Tax ID#
RECOMMENDED FOR APPROVAL:
Raul Godinez II, Executive Director
Public Works Agency
7
25H-9
EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza (M-25), Santa Ana, California
92701; its officers, employees, agents, volunteers and representatives are named as additional
insureds ("additional insureds") with regard to liability and defense of suits arising from the
operations and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
iven to
g the City of Santa Ana, 20 Civic Center Plaza (M-21), Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective.)
Effective ,this endorsement form as a part of
Policy #
Issued to
Named Insured
Countersigned by
Authorized Representative
8
25H-10
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
AMEND AGREEMENT WITH MACIAS GINI & ? As Amended
O'CONNELL LLT FOR COMPREHENSIVE ? Ordinance on 1~dReading
? Ordinance on 2 Reading
FINANCIAL AUDIT SERVICES ? Implementing Resolution
? Set Public Hearing For
~ CONTINUED TO
~ ~-t.~--~- FILE NUMBER _
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute the attached agreement with
Macias Gini & O'Connell, LLP, subject to non-substantive changes approved by the City Manager
and City Attorney, to provide for comprehensive financial audit services, in an amount not to
exceed $355,800.
DISCUSSION
On May 1, 2006 the City Council awarded a contract to Macias Gini & O'Connell, LLP for
comprehensive financial audit services for afour-year period covering fiscal years 2005-06 thru
2008-09 inclusive. The contract was amended on June 2, 2008 for additional services to
implement the new auditing standards (Statement of Auditing Standards Nos. 104-111, 114) and
to assist City staff in the completion of the annual financial statements during the implementation
of the financial system.
In order to provide continuity in the area of comprehensive financial audit services and given the
fact that the Macias Gini & O'Connell audit staff has established a track record of working
professionally and successfully with the City's finance staff on financial matters, current GASB
statements and other internal control and compliance related matters, staff is recommending
extending their audit services for atwo-year period covering fiscal years 2009-10 thru 2010-11
inclusive. Upon conclusion of the extension, a new bid for audit services will be conducted.
Macias Gini & O'Connell, LLP continues to provide staff with extensive experience in
governmental auditing, accounting, and financial reporting. No problems or irregularities have
developed during their engagement with the City, and their work has always been professionally
competent.
251-1
Amend Agreement with Macias Gini &
O'Connell LLP For Comprehensive
Financial Audit Services
March 1, 2010
Page 2
FISCAL IMPACT
Funds for these services will be included in the proposed fiscal year 2010-11 budget within the
Accounting Division Contract Services-Professional account (account no. 01110110-62300) to
cover the audit cost related to the City's General Fund, with additional funds in the
Redevelopment Agency, CDBG, Housing Authority and the Workforce Investment programs for
their respective costs. Additional funds will be budgeted to cover the audit fee in the subsequent
fiscal year.
Francisco Gutierrez ~
Executive Director
Finance and Management Services Agency
251-2
THIRD AMENDMENT TO
AUDITING SERVICES AGREEMENT
THIS THIRD AMENDMENT TO AUDITING SERVICES AGREEMENT is
entered into on March 1, 2010, by and between MACIAS GINI & O'CONNELL, LLP, a
California limited liability partnership ("Consultant") and the CITY OF SANTA ANA, a
charter city and municipal corporation of the State of California ("City").
RECITALS:
A. The City and Moreland and Associates entered into Consultant Agreement A-2006-
108, dated May 5, 2006, (hereinafter "said Agreement") by which Consultant has
provided comprehensive financial audit services.
B. By written Assignment N-2008-052, dated April 11, 2008, Moreland and Associates
assigned its rights and obligations in said Agreement A-2006-108 to Macias Gini &
O'Connell, LLP.
C. In accordance with the terms and conditions of said Agreement, the parties wish to
amend the Scope of Services, extend the term and increase the compensation to pay
for the additional services during the extended term of said Agreement.
WHEREFORE, in consideration of the covenants contained in said Agreement, and
subject to all the terms and conditions of said Agreement, except those amended in this
Third Amendment to Auditing Services Agreement, the parties agree as follows:
1. Section 1, SCOPE OF SERVICES, shall be amended to provide that Consultant shall
for the fiscal year ended June 30 2010, and for the fiscal year ended June 30, 2011,
audit and issue an opinion of the financial statements of all fund types and account
groups of the City of Santa Ana and the Community Redevelopment Agency of the City
of Santa Ana, as set forth in Consultant's Proposal dated January 26, 2010, attached as
Exhibit A-2 to this Third Amendment to Agreement and incorporated by reference.
2. Section 2.a. COMPENSATION, shall be amended to provide that in addition to the
payments already authorized, Consultant will accept as total payment for its annual
auditing services, the following annual fees:
• Fiscal year ending June 30, 2010 $175,400
• Fiscal year ending June 30, 2011 $180,400
3. Section 3, TERM, shall be amended to extend the term for two consecutive one-year
terms, commencing with the fiscal year ending June 30, 2010. The City shall retain
251-3
an option to extend the term for an additional one-year period at the discretion of the
Executive Director of Finance and Management Services.
4. Except as amended hereinabove, all terms and conditions of said Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to
Auditing Services Agreement on the date and year first written above.
CITY OF SANTA ANA
ATTEST:
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
Laura Sheedy
Assistant City Attorney MACIAS GINI & O'CONNELL, LLP
KEVIN J. O'CONNELL
Managing Partner
251-4
EXHIBIT A-2
CONSULTANT PROPOSAL
January 26, 2010
251-5
{ ~
NEWPORT BEACH
•
1201 Dove Street, Suite 680
• Newport Beach, CA 92660
949.221.0025
MAC IAS G I N I bt OICON N ELL LLP SACRAMENTO
Certified Public Accountants & Management Consultants OAKLAND
WALNUT CREEK
LOS ANGELES
SAN MARCOS
SAN DIEGO
January 26, 2010
Mr. Francisco Gutierrez
Executive Director of Finance and Management
20 Civic Center Plaza
Santa Ana, CA 92701
We are pleased to confirm our understanding of the services we are to provide City of Santa Ana for the
three years ended June 30, 2012. We will audit the financial statements of the governmental activities, the
business-type activities, each major fund, and the aggregate remaining fund information, which collectively
comprise the basic financial statements, of the City of Santa Ana (City) and the Community Redevelopment
Agency of City of Santa Ana (Agency) as of and for the three years ended June 30, 2012. Accounting
standards generally accepted in the United States provide for certain Required Supplementary Information
(RSI), such as Management's Discussion and Analysis (MD&A), to accompany the basic financial
statements. As part of our engagement, we will apply certain limited procedures to RSI. These limited
procedures will consist principally of inquiries of management regarding the methods of measurement and
presentation, which management is responsible for affirming to us in its representation letter. Unless we
encounter problems with the presentation of the RSI or with procedures relating to it, we will disclaim an
opinion on it. The following RSI is required by generally accepted accounting principles and will be
subjected to certain limited procedures, but will not be audited:
1) Management's Discussion and Analysis
2) Budgetary comparison schedule for the general fund and major special revenue funds
3) GASB-required supplementary pension and OPEB information
Supplementary information other than RSI also accompanies the basic financial statements. We will subject
the following supplementary information to the auditing procedures applied in our audits of the basic
financial statements and will provide an opinion on it in relation to the basic financial statements:
1) Individual and combining fund financial statements and schedules
2) Schedule of expenditures of federal awards (normally in a separate report)
In addition to our audits of the basic financial statements of the City, we will also perform the following:
1) Financial and compliance audits of the Redevelopment Agency of the City of Santa Ana
2) Financial and compliance audits of the Air Quality Management District Special Revenue Fund
3) Annual on-line attestation of the Financial Data Schedule for the Santa Ana Housing Authority
4) Financial and compliance audits in Accordance with OMB A-133 (Single Audit)
5) An annual agreed upon procedures review of City's Investment Policy and provide a report on
compliance with State and Federal laws
1
www.mgocpa.com _ ~~~~~'~td.M~Independent Member of the 8D0 Seldmon Alliance
- ~ Mr. Francisco Gutierrez
Executive Director of Finance and Management
City of Santa Ana
January 26, 2010
Page 2
6) Preparation of State Controller's reports for the City and Redevelopment Agency
7) Agreed upon procedures to review compliance with appropriations limit requirements of Section 1.5
Article XIIIB of the California Constitution
Audit Objectives
The objective of our audits is the expression of opinions as to whether your basic financial statements are
fairly presented, in all material respects, in conformity with U.S. generally accepted accounting principles
and to report on the fairness of the additional information referred to in the first paragraph when considered
in relation to the basic financial statements taken as a whole. The objective also includes reporting on-
• Internal control related to the financial statements and compliance with laws, regulations, and the
provisions of contracts or grant agreements, noncompliance with which could have a material effect
on the financial statements in accordance with Government Auditing Standards.
• Internal control related to major programs and an opinion (or disclaimer of opinion) on compliance
with laws, regulations, and the provisions of contracts or grant agreements that could have a direct
and material effect on each major program in accordance with the Single Audit Act Amendments of
1996 and OMB Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations.
The reports on internal control and compliance will each include a statement that the report is intended solely
for the information and use of management, the body or individuals charged with governance, others within
the entity specific legislative or regulatory bodies, federal awarding agencies, and if applicable, pass-through
entities and is not intended to be and should not be used by anyone other than these specified parties.
Our audits will be conducted in accordance with auditing standards generally accepted in the United States of
America; the standards for financial audits contained in Government Auditing Standards, issued by the
Comptroller General of the United States; the Single Audit Act Amendments of 1996; and the provisions of
OMB Circular A-133, and will include tests of accounting records, a determination of major program(s) in
accordance with OMB Circular A-133, and other procedures we consider necessary to enable us to express
such opinions and to render the required reports. If our opinions on the financial statements or the Single
Audit compliance opinions are other than unqualified, we will fully discuss the reasons with you in advance.
If, for any reason, we are unable to complete the audits or are unable to form or have not formed opinions,
we may decline to express opinions or to issue a report as a result of this engagement.
Management Responsibilities
Management is responsible for the basic financial statements and all accompanying information as well as all
representations contained therein. Management is also responsible for preparation of the schedule of
expenditures of federal awards in accordance with the requirements of OMB Circular A-133. You are
responsible for making all management decisions and performing all management functions relating to the
financial statements, schedule of expenditures of federal awards, and related notes and for accepting full
responsibility for such decisions. Further, you are required to designate an individual with suitable skill,
knowledge, or experience to oversee any non-audit services we provide and for evaluating the adequacy and
results of those services and accepting responsibility for them.
251-7
Mr. Francisco Gutierrez
Executive Director of Finance and Management
City of Santa Ana
January 26, 2010
Page 3
Management is responsible for establishing and maintaining effective internal controls, including internal
controls over compliance, and for monitoring ongoing activities, to help ensure that appropriate goals and
objectives are met. You are also responsible for the selection and application of accounting principles; for the
fair presentation in the financial statements of the respective financial position of the governmental activities,
the business-type activities, each major fund, and the aggregate remaining fund information of the City and
Agency and the respective changes in financial position and, where applicable, cash flows in conformity with
U.S. generally accepted accounting principles; and for compliance with applicable laws and regulations and
the provisions of contracts and grant agreements.
Management is also responsible for making all financial records and related information available to us and
for ensuring that management and financial information is reliable and properly recorded. Your
responsibilities also include identifying significant vendor relationships in which the vendor has
responsibility for program compliance and for the accuracy and completeness of that information. Your
responsibilities include adjusting the financial statements to correct material misstatements and confirming to
us in the representation letter that the effects of any uncorrected misstatements aggregated by us during the
current engagement and pertaining to the latest period presented are immaterial, both individually and in the
aggregate, to the financial statements taken as a whole.
You are responsible for the design and implementation of programs and controls to prevent and detect fraud,
and for informing us about all known or suspected fraud or illegal acts affecting the government involving (1)
management, (2) employees who have significant roles in internal control, and (3) others where the fraud or
illegal acts could have a material effect on the financial statements. Your responsibilities include informing
us of your knowledge of any allegations of fraud or suspected fraud affecting the government received in
communications from employees, former employees, grantors, regulators, or others. In addition, you are
responsible for identifying and ensuring that the entity complies with applicable laws, regulations, contracts,
agreements, and grants. Additionally, as required by OMB Circular A-133, it is management's responsibility
to follow up and take corrective action on reported audit findings. Management is responsible for
establishing and maintaining a process for tracking the status of audit findings and recommendations.
Management is also responsible for identifying for us previous financial audits, attestation engagements,
performance audits, or other studies related to the objectives discussed in the Audit Objectives section of this
letter. This responsibility includes relaying to us corrective actions taken to address significant findings and
recommendations resulting from those audits, attestation engagements, performance audits, or studies. You
are also responsible for providing management's views on our current findings, conclusions, and
recommendations, as well as your planned corrective actions, for the report, and for the timing and format for
providing that information.
Audit Procedures-General
An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the
financial statements; therefore, our audit will involve judgment about the number of transactions to be
examined and the areas to be tested. We will plan and perform the audit to obtain reasonable rather than
absolute assurance about whether the financial statements are free of material misstatement, whether from (1)
errors, (2) fraudulent financial reporting, (3) misappropriation of assets, or (4) violations of laws or
governmental regulations that are attributable to the entity or to acts by management or employees acting on
behalf of the entity. Because the determination of abuse is subjective, GovernmentAuditing Standards do not
expect auditors to provide reasonable assurance of detecting abuse.
251-8
Mr. Francisco Gutierrez
` Executive Director of Finance and Management
City of Santa Ana
- January 26, 2010
Page 4
Because an audit is designed to provide reasonable, but not absolute assurance and because we will not
perform a detailed examination of all transactions, there is a risk that material misstatements or
noncompliance may exist and not be detected by us. In addition, an audit is not designed to detect immaterial
misstatements or violations of laws or governmental regulations that do not have a direct and material effect
on the financial statements or major programs. However, we will inform you of any material errors and any
fraudulent financial reporting or misappropriation of assets that come to our attention. We will also inform
you of any violations of laws or governmental regulations that come to our attention, unless clearly
inconsequential. We will include such matters in the reports required for a Single Audit. Our responsibility as
auditors are limited to the period covered by our audit and does not extend to any later periods for which we
are not engaged as auditors.
Our procedures will include tests of documentary evidence supporting the transactions recorded in the
accounts, and may include tests of the physical existence of inventories, and direct confirmation of
receivables and certain other assets and liabilities by correspondence with selected individuals, funding
sources, creditors, and financial institutions. We will request written representations from your attorneys as
part of the engagement, and they may bill you for responding to this inquiry. At the conclusion of our audits,
we will require certain written representations from you about the financial statements and related matters.
Audit Procedures-Internal Controls
Our audits will include obtaining an understanding of the entity and its environment, including internal
control, sufficient to assess the risks of material misstatement of the financial statements and to design the
nature, timing, and extent of further audit procedures. Tests of controls may be performed to test the
effectiveness of certain controls that we consider relevant to preventing and detecting errors and fraud that
are material to the financial statements and to preventing and detecting misstatements resulting from illegal
acts and other noncompliance matters that have a direct and material effect on the financial statements. Our
tests, if performed, will be less in scope than would be necessary to render an opinion on internal control and,
accordingly, no opinion will be expressed in our report on internal control issued pursuant to Government
Auditing Standards.
As required by OMB Circular A-133, we will perform tests of controls over compliance to evaluate the
effectiveness of the design and operation of controls that we consider relevant to preventing or detecting
material noncompliance with compliance requirements applicable to each major federal award program.
However, our tests will be less in scope than would be necessary to render an opinion on those controls and,
accordingly, no opinion will be expressed in our report on internal control issued pursuant to OMB Circular
A-133.
An audit is not designed to provide assurance on internal control or to identify significant deficiencies.
However, during the audit, we will communicate to management and those charged with governance internal
control related matters that are required to be communicated under AICPA professional standards,
Government Auditing Standards, and OMB Circular A-133.
251-9
• Mr. Francisco Gutierrez
Executive Director of Finance and Management
City of Santa Ana
January 26, 2010
Page 5
Audit Procedures-Compliance
As part of obtaining reasonable assurance about whether the financial statements are free of material
misstatement, we will perform tests of the City's compliance with applicable laws and regulations and the
provisions of contracts and agreements, including grant agreements. However, the objective of those
procedures will not be to provide an opinion on overall compliance and we will not express such an opinion
in our report on compliance issued pursuant to Government Auditing Standards.
OMB Circular A-133 requires that we also plan and perform the audit to obtain reasonable assurance about
whether the auditee has complied with applicable laws and regulations and the provisions of contracts and
grant agreements applicable to major programs. Our procedures will consist of tests of transactions and other
applicable procedures described in the OMB Circular A-133 Compliance Supplement for the types of
compliance requirements that could have a direct and material effect on each of the City's major programs.
The purpose of these procedures will be to express an opinion on City's compliance with requirements
applicable to each of its major programs in our report on compliance issued pursuant to OMB Circular A-133.
Engagement Administration, Fees, and Other
We may from time to time, and depending on the circumstances, use third-party service providers in serving
your account. We may share confidential information about you with these service providers, but remain
committed to maintaining the confidentiality and security of your information. Accordingly, we maintain
internal policies, procedures, and safeguards to protect the confidentiality of your personal information. 1n
addition, we will secure confidentiality agreements with all service providers to maintain the confidentiality
of your information and we will take reasonable precautions to determine that they have appropriate
procedures in place to prevent the unauthorized release of your confidential information to others. In the
event that we are unable to secure an appropriate confidentiality agreement, you will be asked to provide
your consent prior to the sharing of your confidential information with the third-party service provider.
Furthermore, we will remain responsible for the work provided by any such third-party service providers.
We understand that your employees will prepare all cash, accounts receivable, or other confirmations we
request and will locate any documents selected by us for testing.
At the conclusion of the engagement, we will complete the appropriate sections of the Data Collection Form
that summarizes our audit findings. It is management's responsibility to submit the reporting package
(including financial statements, schedule of expenditures of federal awards, summary schedule of prior audit
findings, auditors' reports, and corrective action plan) along with the Data Collection Form to the federal
audit clearinghouse. We will coordinate with you the electronic submission and certification. If applicable,
we will provide copies of our report for you to include with the reporting package you will submit to pass-
through entities. The Data Collection Form and the reporting package must be submitted within the earlier of
30 days after receipt of the auditors' reports or nine months after the end of the audit period, unless a longer
period is agreed to in advance by the cognizant or oversight agency for audits.
The audit documentation for this engagement is the property of Macias Gini & O'Connell LLP and
constitutes confidential information. However, pursuant to authority given by law or regulation, we may be
requested to make certain audit documentation available to Federal Oversight Agency or its designee, a
federal agency providing direct or indirect funding, or the U.S. Government Accountability Office for
purposes of a quality review of the audit, to resolve audit findings, or to carry out oversight responsibilities.
We will notify you of any such request. If requested, access to such audit documentation will be provided
251-10
• Mr. Francisco Gutierrez
Executive Director of Finance and Management
City of Santa Ana
January 26, 2010
Page 6
under the supervision of Macias Gini & O'Connell LLP personnel. Furthermore, upon request, we may
provide copies of selected audit documentation to the aforementioned parties. These parties may intend, or
decide, to distribute the copies or information contained therein to others, including other governmental
agencies.
The audit documentation for this engagement will be retained for a minimum of seven years after the report
release or for any additional period requested by the granting agency or required by law or regulation. If we
are aware that a federal awarding agency, pass-through entity, or auditee is contesting an audit finding, we
will contact the party(ies) contesting the audit finding for guidance prior to destroying the audit
documentation.
We expect to issue our reports no later than December 31 following the fiscal year end. We will discuss and
agree to the timeline for deliverables with management on an annual basis. The City and Agency State
Controller's Reports will be prepared by us and provided to the City prior to their applicable due dates.
We agree that our fees for these services including expenses will not exceed the amounts specified in the
table below. These fees do not include preparation of the City's financial statements. These fees reflect
increased audit fees due to the Risk Assessment Suite of Standards (Statement on Auditing Standards Nos.
104-111) and the audit requirements for the funds received under the Recovery and Reinvestment Act and a
3% CPI increase for each year.
For the Fiscal Year Ended June 30,
2010 2011 2012
City $ 92,000 $ 94,600 $ 97,200
Redevleopment Agency 54,800 56,400 58,000
Single Audit (includes 5 major programs) 14,000 14,400 14,800
Treasury Compliance Review 3,400 3,500 3,600
Air Quality Management District 3,100 3,200 3,300
State Controller Reports -City and RDA 8,100 8,300 8,500
Maximum Fee $ 175,400 $ 180,400 $ 185,400
Our invoices for these fees will be rendered each month as work progresses in accordance with the hourly
rates specified below and are payable on presentation. In accordance with our firm policies, work may be
suspended if your account becomes 45 days or more overdue and may not be resumed until your account is
paid in full. If we elect to terminate our services for nonpayment, our engagement will be deemed to have
been completed upon written notification of termination, even if we have not completed our report(s). You
will be obligated to compensate us for all time expended and to reimburse us for all out-of-pocket costs
through the date of termination. The above fee is based on anticipated cooperation from your personnel and
the assumption that unexpected circumstances will not be encountered during the audit. The issuance of new
accounting and audit standards during our period of service may also require additional audit time. If
significant additional time is necessary, we will discuss it with you and arrive at a new fee estimate before
we incur the additional costs.
251-11
' ~ Mr. Francisco Gutierrez
Executive Director of Finance and Management
City of Santa Ana
January 26, 2010
Page 7
Hourly Rates
Level of Work Performed June 30, 2010 June 30, 2011 June 30, 2012
Director 175 182 189
Manager 129 134 139
Senior Accountant 93 97 101
Associate 82 85 88
Clerical 40 41 42
We appreciate the opportunity to be of service to the City of Santa Ana and believe this letter accurately
summarizes the significant terms of our engagement. If you have any questions, please let us know. If you
agree with the terms of our engagement as described in this letter, please sign the enclosed copy and return it
to us.
Very truly yours,
~~~Q
Kathryn Beseau, Audit Director
MACIAS GINI & O'CONNELL LLP
Accepted by City of Santa Ana
Signature: ~
~a~~~,
Title: ~XP.r,,,,~- 7-~PC:~Cn ~-tnca-,cQ 6 ~~~n~c~m 2vv~ Serz~cc~~ ~~v~.~~
Date: D~/ , -7 ~2~ ~
251-12
REQUEST FOR _
COUNCIL ACTION ~
'-u
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
AGREEMENT AMENDMENT WITH ? As Amended
? Ordinance on 15t Reading
VISTA DEL VERDE LANDSCAPE FOR ? Ordinance on 2~d Reading
LANDSCAPE MAINTENANCE ? Implementing Resolution
SERVICES AT VARIOUS CITY ? Set Public Hearing For
FACILITIES
CONTINUED TO
e FILE NUMBER ~
CIT. MANAGER
RECOMMENDED ACTION
Authorize the City Manager and Clerk of the Council to execute the attached agreement
amendment with Vista Del Verde Landscape, Inc. for the provision of landscape maintenance
services at various public facilities in the amount of $216,557 for aone-year term, subject to non-
substantive changes approved by the City Manager and City Attorney.
DISCUSSION
The Parks, Recreation and Community Services Agency is responsible for landscape
maintenance at various public areas throughout the City. The sites maintained by Vista Del
Verde under this agreement include bike trails, parks, the Santa Ana Police Athletic Activities
League building, the Newhope Library and the Regional Transportation Center. On January 4,
2006, the City Council approved atwo-year agreement with Vista Del Verde, with provision for
three one-year renewals. The recommended action represents the final option year. A
subsequent agreement amendment adding Saddleback View Park, McFadden Triangle, and the
Flower Street Bike Trail Extension, was approved on March 15, 2007. The two-year base
agreement expired February 28, 2008.
The Parks, Recreation and Community Services Agency is satisfied with the quality of services
being provided by Vista Del Verde and recommends approval of this final year which will expire
on February 28, 2011. The current contract includes a base amount of $162,565. This
amendment increases the base by $12,828 for the Macarthur Bike Trail Entrance, $13,572 for the
Flower Bike Trail Extension, $2,592 for the Santiago Creek Bike Trail Extension, and $25,000
contingency, for a total contract amount not to exceed $216,557.
25J-1
Agreement Amendment with Vista Del Verde
March 1, 2010
Page 2
FISCAL IMPACT
Funds for the first four months of the agreement are available in the 09/10 fiscal year Park Services
and Community Development Agency contractual accounts (nos. 01113250 62300 and 06718870
62320). Funds for the duration of the agreement will be included in the proposed FY 10/11 budget.
f' APPROVED AS TO FUNDS & ACCOUNTS:
i%~
S~S1S`ct ~r . ~ ,~'~oe,
Gerardo Mouet Francisco Gutierrez
Executive Director Executive Director
Parks, Rec. and Comm. Svcs. Agency Finance and Mgmt. Services Agency
Raul Godinez II
Executive Director
Public Works Agency
25J-2
FOURTH AMENDMENT TO
LANDSCAPE MAINTENANCE AGREEMENT
THIS FOURTH AMENDMENT TO AGREEMENT is entered into this 1St day of March
2010, by and between Vista Del Verde Landscape dba Bevill Landscape Management
("Contractor") and the City of Santa Ana, a charter city and municipal corporation of the
State of California ("City").
RECITALS:
A. The parties entered into Agreement #A-2006-020, dated February 6, 2006,
(hereinafter "said Agreement") by which Contractor has provided landscape
maintenance for certain City parks.
B. The Parties agreed to amend said Agreement three times to include additional sites
which are maintained by Contractor, to extend the term and to increase compensation
to pay for services during the extended terms.
C. In accordance with the terms and conditions of said Agreement, the parties desire to
again amend said Agreement, to extend the term for an additional one-year period and
increase compensation to pay for services during the extended term for additional
facilities to be maintained.
WHEREFORE, in consideration of the covenants contained in said Agreement, as
previously amended, and subject to all the terms and conditions of said Agreement,
except those amended in this Fourth Amendment to Agreement, the parties agree as
follows:
1. Sections 1, SCOPE OF SERVICES shall be amended to add the Macarthur Bike
Trail Entrance, the Flower Bike Trail Extension, and the Santiago Creek Bike Trail
Extension to the facilities to be maintained.
2. Sections 2.a., COMPENSATION, respectively, shall be amended to increase the base
compensation by $12,828 for the Macarthur Bike Trail Entrance, $13,572 for the
Flower Bike Trail Extension, $2,592 for the Santiago Creek Bike Trail Extension, and
$25,000 contingency, for a total contract amount not to exceed $216,557.
3. Section 3, TERM, shall be extended for an additional one-year period, through
February 28, 2011.
4. Except as hereinabove amended, all terms and conditions of said Agreement shall
remain in full force and effect.
25J-3
IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment to
Agreement on the date and year first written above.
CITY OF SANTA ANA
ATTEST:
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
VISTA DEL VERDE
LANDSCAPE.
(NAME)
(Title)
25J-4
REQUEST FOR
1
COUNCIL ACTION '
CITY COUNCIL MEETING DATE: ~ CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
AGREEMENTS FOR FEDERAL ? As Amended
? Ordinance on 151 Reading
NEIGHBORHOOD STABILIZATION ? Ordinance on 2"d Reading
PROGRAM (NSP 1 AND NSP 2) ? Implementing Resolution
? Set Public Hearing For
CONTINUED TO
~ , FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
1. Authorize the City Manager to execute a Neighborhood Stabilization Program 2 (NSP 2)
contract with the U. S. Department of Housing and Urban Development for grant funds in the
amount of $10,000,000.
2. Approve an Appropriation Adjustment recognizing $10,000,000 in Neighborhood Stabilization
Program 2 grant funds and appropriating the same.
3. Authorize the City Manager and the Clerk of the Council to execute an agreement for the
implementation of the Neighborhood Stabilization Program 2 in the amount of $9,000,000
plus program income with:
. ANR Industries, Inc.
Orange Housing Development Corporation and C & C Development
4. Approve an Appropriation Adjustment recognizing Neighborhood Stabilization Program 1
(NSP1) program income funds and appropriating the same.
5. Authorize the City Manager and the Clerk of the Council to execute an amendment with ANR
Industries, Inc. for implementation of the single family and Historic Condo components of the
Neighborhood Stabilization Program 1 to include program income, subject to non-substantive
changes approved by the City Manager and City Attorney.
6. Authorize the City Manager and the Clerk of the Council to execute an amendment with
Orange Housing Development Corporation and C & C Development for implementation of the
Rental Housing component of the programs Neighborhood Stabilization Program 1 to include
program income, subject to non-substantive changes approved by the City Manager and City
Attorney.
25K-1
Agreements for Federal NSP 1 and NSP 2
March 1, 2010
Page 2
COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION
At its regular meeting on February 16, 2010, by a vote of 4:0, (Bist absent), the Community
Redevelopment and Housing Commission recommended that the City Council approve and
authorize the City Manager and Clerk of the Council to execute agreements regarding NSP 1 and
NSP 2 as noted above.
DISCUSSION
On May 4, 2009, the U. S. Department of Housing and Urban Development (HUD) issued a Notice
of Funding Availability (NOFA) for Neighborhood Stabilization Program 2 Funds. In July 2009, the
City submitted an application for $10 million. On January 14, 2009, HUD notified the City that they
were awarded the full amount as requested in the application. There were over 480 applicants and
only 56 awardees nationwide. Of these, only 15 are local governments.
As with NSP 1, funds may be used to benefit households with incomes up to 120 percent of area
median income, with a minimum of 25 percent of these funds spent on activities benefitting very
low-income households (50 percent AMI). The NSP programs, budgets and target goals are listed
below and will be implemented in the target area (Exhibit 1) as required by HUD.
Prog. Program Budget Goal
No. # of Homes
1 Down a ment Assistance Pro ram $400,000 10
2 Acquisition and Rehabilitation -
Sin le Famil Homes $6,100,000 60
3 Acquisition and Rehabilitation - Rental
Housin $2,500,000 30
4 Admin $1,000,000 n/a
Total NSP Grant $10,000,000
Under NSP 2 requirements, 50 percent of the funds must be spent within 24 months and 100
percent in 36 months from the date of the execution of the contract. HUD is mandated to have
contracts executed by February 17, 2010. Because of these short timeframes to expend the funds
and the successful implementation of NSP 1 with our partners, staff is recommending that ANR
Homes, Inc. (ANR) and Orange Housing Development Corporation (OHDC) and C & C
Development continue implementing the Single Family and Rental Housing components,
respectively, for NSP 2.
25K-2
Agreements for Federal NSP 1 and NSP 2
March 1, 2010
Page 3
The City, along with our partners, continues to implement the NSP 1 activities and expects to meet
the legislative deadlines for obligating (18 months) and expending (36 months) the funds.
Currently, we have obligated 87 percent of our funds and have expended 56 percent. Inherent in
single family and condo/historic programs is Program Income. This is generated from the
subsequent sale of properties to new homebuyers. Per HUD regulations, NSP Program Income
can only be used for activities approved in the NSP application. These include down payment
assistance, single-family acquisition and rehabilitation, condo/historic acquisition and rehabilitation,
rental housing, redevelopment and administration. As with the original allocation, HUD also
requires that 25 percent of all program income be used for activities that benefit households at 50
percent of Area Median Income (AMI); these funds will be programmed into the rental programs.
Additionally, 10 percent of the Program Income is to be used for program administration costs.
Staff is requesting that Program Income generated by NSP 1 be recognized and approved for use.
Given the nature of these programs, staff expects to continually recycle program income into NSP
activities.
FISCAL IMPACT
By submitting the executed grant agreement, the City of Santa Ana will be eligible to receive up to
$10,000,000 in grant funds from the U. S. Department of Housing and Urban Development.
APPROVED AS TO FUNDS AND ACCOUNTS:
r.
~
Cynthia J. Nelson Francisco Gutierrez
Deputy City Manager for Development Executive Director
Services Finance & Management Services Agency
Community Development Agency
CJN/SLB/JPH/kg
Exhibit: 1. NSP 1 & 2 Target Geography Map
25K-3
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25K-4
FUNDING APPROVAL AND GRANT AGREEMENT FOR
NEIGHBORHOOD STABILIZATION PROGRAM 2 (NSP2) FUNDS
AS AUTHORIZED AND APPROPRIATED UNDER THE
AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 AND THE
HOUSING AND ECONOMIC RECOVERY ACT OF 2008
{PUBLIC LAWS 111-5 and 110-289)
NSP2 GRANTEE: City of Santa Ana
NSP2 GRANT NUMBER: B-09-LN-CA-0047
N5P2 GRANT AMOUNT: X10,000,000
NSP2 APPROVAL DATE: January 14, 2010
NSP2 EXPENDITURE DEADLINE (2 YEARj: February 11, 2012
NSP2 EXPENDITURE DEADLINE {3 YEAR}: February 11, 2013
1. This Grant Agreement between the U.S. Department of Housing and Urban Development
(HUD) and City of Santa Ana (Grantee} is made pursuant to the authority of title XII of
Division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5
(February 17, 2009)) (Recovery Act) and sections 2301 - 2304 of the Housing and
Economic Recovery Act of 2008 (Public Law 110-289 (July 30, 2008}) (HERA). The
program established pursuant to section 2301-2304 of HERA is known as the
"Neighborhood Stabilization Program" or "NSP." The term "NSP2" refers to the second
appropriation of NSP funds provided under the Recovery Act. The Notice of Fund
Availability for the Neighborhood Stabilization Program 2 under the American Recovery
and Reinvestment, 2009 (Docket No. FR-5321-N-O1,1\,!lay 4, 2009) (1VOFA); the three
Notices of Fund Availability for Fiscal Year 2009 Neighborhood Stabilization Program 2
under the American Recovery and Reinvestment Act of 2009, Correction (Docket No.
FR-5321-C-02, June 11, 2009; Docket No. FR-5321-C-03, November 9, 2009; and
Docket No. FR-5321-C-04}; the Recovery Act; HERA; the Grantee's application for
. NSP2 assistance (Grantee Application); the HUD regulations at 24 CFR Part 570 (as
modified by the NOFA as now in effect and as maybe amended from time to time)
(Regulations); and this Funding Approval, including any special conditions, constitute
part of the Grant Agreement. In the event of a conflict between a provision of the
Grantee's Application and any provision of this- Grant Agreement, the latter shall control.
25K-5
City of Santa Ana 8-09-LN-CA-0047 2
2. The Grantee shall comply with governmentwide guidance and standard award terms
established by the Office of Management and Budget {OMB} concerning the
implementation of the Recovery Act, including Requirements for Implementing Sections
1512, 1605, and 1606 of the American Recovery and Reinvestment Act of 2009 for
Financial Assistance Awards, 74 Fed. Reg. 18449 (Apri123, 2009) {to be codified at 2
CFR part 17b} (as now in effect and as may be amended from time to time}. The Grantee
shall comply with reporting requirements established by HUD and OMB (including all
revisions to such reporting requirements), as well as section 1553 of the Recovery Act
(including implementing guidance).
3. Subject to the provisions of this Grant Agreement, HUD will make NSP2 Grant Funds in
the amount of $10,000,000 available to the Grantee upon execution of this Grant
Agreement by the parties. Of that amount, $2,500,000 must be used for the purchase and
redevelopment of abandoned or foreclosed homes or residential properties that will be
used to house individuals or families whose incomes do not exceed 50 percent of area
median income, pursuant to the Recovery Act and HERA. The Grantee shall have 24 ;
months from the date of HUD's execution of this Grant Agreement to expend half of the
NSP2 Grant amount pursuant to the requirements of this Agreement, the Recovery Act,
HERA and the NOFA, as amended. The Grantee shall have 36 months from the date of
HUD's execution of this Grant Agreement to expend the total NSP2 Grant amount
pursuant to the requirements of this Agreement, the Recovery Act, HERA and the NOFA,
as amended. The NSP2 Grant Funds may be used to pay eligible costs arising from
eligible uses incurred after the NSP2 Approval Date provided the activities to which such
costs are related are carried out in compliance with all applicable requirements. Pre-
award planning and general administrative costs may not be paid with funding assistance
except as permitted in the NOFA, as amended. Other pre-award costs may not be paid
with funding assistance except as permitted by 24 CFR 570.204(h); for purposes of
NSP2, such costs are limited to those incurred on or after the date that the NSP2 NOFA i
was published by HUD.
if the Grantee's NSP2 Grant Amount is less than the amount requested in the Grantee's
NSP2 Application, the Grantee must submit a Revised Budget and Activity List, (see
Appendix A}, with the executed copy of this Grant Agreement. The Grantee is reminded
that the Revised Budget and Activity List must still comply with the requirements of the
NSP2 NOFA. Specifically, the Grantee is required to 1) return a minimum of 100
abandoned or foreclosed homes back to productive use or otherwise eliminate or mitigate
the negative effects on the stability of the target geography and 2} ensure that the target
geogrpphy in which the Grantee intends to carry out NSP2 activities has an average
combined needs index score of 18 or greater.
4. The Grantee agrees to assume all of the responsibilities for environmental review,
decisionmaking, and actions, as specified and re uired in re lations issued b the
q ~ Y
Secretary pursuant to section 104(g} of Title 1 of the Housing and Community
Development Act, as amended {42 U:S.C. 5304) and published in 24 CFR Part 58.
25K-6
City of Santa Ana B-09-LN-CA-0047 3
5. The Grantee agrees that it will demolish or convert units using NSP2 funds only to the
extent and scope described in the NSP2 application. The Grantee agrees that under no
circumstances will NSP2 funds be used to demolish any public housing {as defined in
section 3 of the United States Housing Act of 1937 (42 U.S.C. 1437a)).
6. The Grantee agrees to comply with the Recovery Act provisions concerning tenant
protections applicable to NSP2 acquisitions of foreclosed property. The Grantee must
document its efforts to ensure that the initial successor in interest (ISII} in a foreclosed
upon dwelling or residential real property {typically, the initial successor in interest in
property acquired through foreclosure is the lender or trustee for holders of obligations
secured by mortgage liens) has provided bona fide tenants with the notice and other
protections outlined in the Recovery Act. The Grantee- will not use NSP2 funds to
finance the acquisition of property from any initial successor in interest that failed to
comply with applicable requirements unless the Grantee assumes the obligations of such
initial successor in interest with respect to bona fide tenants. If the. Grantee elects to
assume such obligations, it may only do so if the tenant is still occupying the property
and will provide any tenant displaced as a result of the NSP2 funded acquisition with the
assistance outlined in 24 CFR 570.606. If the Grantee knows that the ISII did nat comply
with the NSP tenant protection requirements and vacated the property contrary to the
NSP requirements, NSP2 funds cannot be used to acquire such properties.
7. The Grantee further acknowledges its responsibility for adherence to all applicable terms
and conditions of this grant award by sub-recipient entities and contractors, including
obtaining a DUNS number (ar updating the existing DUN5 record), and registering with .
the Central Contractor Registration. The DUNS number shall be provided by the Grantee
on the execution page of this agreement.
8. This Grant Agreement maybe amended only with the prior written approval of HUD.
Changes that affect program design elements that HUD considered in rating NSP2
applications may result in HUD re-rating the application. In considering proposed
amendments to this Grant Agreement, HUD shall also review, among other things,
whether the amendment is otherwise consistent with the Recovery Act, HERA, the
NOFA, as amended, and the Regulations.
9. The Grantee may not amend its Grantee Submission other than as described above;
however, such amendments will be subject to the requirements of the NOFA and any
revisions HUD may make to the NOFA (or any successor Notice or regulation).
10. The Grantee must respond in writing to any citizen complaint within 15 working days, if
feasible, and send a copy of the response to HUD. The Grantee shall at all times maintain
an up-to-date copy of its Grantee Application, including all amendments approved by
HUD, on its Internet website. Further, the Grantee shall maintain information on all
drawdowns, deposits, and expenditures of grant funds and program income under this
Funding Approval and Grant Agreement and any other records required by 24 CFR
570.506 and the NOFA, as amended, in its files and shall make such information
25K-7
City of Santa Ana B-09-LN-CA-0047 4
available for audit or inspection by duly authorized representatives of HUD, HUD's
Office of the Inspector General, the Recovery Act Transparency Board or the
Comptroller General of the United States.
11. The Grantee is advised that providing false, fictitious or misleading information with
respect to NSP2 Grant Funds may result in criminal, civil or administrative prosecution
under 18 USC § 1001, 1$ USC § 1343, 31 USC § 3729, 31 USC § 3$01 or another
applicable statute.
12. Close-out of this grant shall be subject to the provisions of 24 CFR 570.509 or such
close-out instructions as may hereafter be issued by HUD specifically for NSP2 grants.
Special Conditions: Not applicable
[Remainder of this page blank]
25K-8
City of Santa Ana B-09-LN-CA-0047 5
This NSP2 Grant Agreement is binding with respect to HUD in accordance with its terms upon
the execution by HUD in the space provided below, subject to execution on behalf of the
Grantee.
The United States Department of The Grantee
Housing and Urban Development City of Santa Ana
Si afore of Authorized Offic' Signature of Authorized Offical
Yolanda Chavez David N. REam
Name of Authorized Official Name of Authorized Official
Deputy Assistant Secretary
for Grant Programs City Manager
Title of Authorized Official Title of Authorized Official
fEB 1 1 2010
Date of Signature Date of Signature
95-soao~s5
Grantee Tax Identification Number
083153247
DUNS Number
For HUD CFO Use Only
Current Balances Increases/Decreases Endin Balance Date
25K-9
25K-10
FIRST AMENDMENT TO
NEIGHBORHOOD STABILIZATION PROGRAM
GRANT SERVICES AGREEMENT
WITH ANR SANTA ANA NSP, LLC
This Amendment is executed 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 (hereinafter "City") and ANR Santa Ana NSP, LLC, a limited liability company
("Developer") as of March , 2010.
RECITALS:
A. City and Developer entered into the Neighborhood Stabilization Program Grant Services
Agreement (said "Agreement") on , 2009 for Developer to assist City
with the acquisition and rehabilitation of single family, condominium and historic
components of the Neighborhood Stabilization Program (NSP).
B. The parties now desire to amend said Agreement to include terms related to additional
funding generated by program income.
WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to
all the terms and conditions of said Agreement, except those amended in this
First Amendment to Agreement, the parties agree as follows:
1. Each party hereto agrees that Sections 500 and 700 of said Agreement, shall be amended to
include the following additional terms:
507. Verification of Homebuyer Income. Prior to the sale of any NSP Assisted Unit to
a Homebuyer, the Developer shall submit to the City a completed income computation and
certification form from each Homebuyer of the NSP Assisted Unit in the form which is provided
by the City. Each Homebuyer shall certify, to the best of the Homebuyer's knowledge, that it is
a Low or Moderate Income Household and meets the eligibility requirements established for the
NSP Assisted Unit. The Developer shall obtain an income verification and lender's packet from
the prospective purchaser of an NSP Assisted Unit (which shall be provided to the City). For
purposes of this Program, income will be calculated per HUD guidelines for federal programs
(Exhibit E: HUD Part 5 Income & Assets Definitions). For purposes of such certification, the
Developer shall verify the income certification of the prospective Homebuyer in one or more of
the following methods reasonably acceptable to the City:
(a) obtain three (3) paycheck stubs from the prospective Homebuyer's
three (3) most recent pay periods.
(b) obtain a true copy of an income tax return from the prospective
Homebuyer for the most recent three tax years in which a return was filed.
(c) obtain an income verification certification from the employer of
the prospective Homebuyer.
Final Amend NSP1 ANR
2~-~qit 3
(d) obtain an income verification certification from the Social Security
Administration and/or the California Department of Social Services if the prospective
Homebuyer receives assistance from such agencies.
(e) obtain an alternate form of income verification reasonably
acceptable to the City, if none of the above forms of verification is available to the Developer.
508. Affordability Documents at Time of Sale. At the closing of escrow for the
Homebuyer's purchase of each NSP Assisted Unit, the City will require each income qualified
Homebuyer of such Unit to execute the following documents: the Homebuyer Deed of Trust
(attached hereto as Exhibit F), Homebuyer Promissory Note (attached hereto as Exhibit G), and
such further documents reasonably required by the City in a form provided by the City. Any
Units assisted with tax increment money will also have a Notice of Affordability recorded
against such Property (attached hereto as Exhibit H). The Promissory Note, and Deed of Trust
shall contain aforty-five (45) year term. The principal loan amount of the Promissory Note shall
be the amount of NSP Funds to create this homeownership opportunity, which will be
determined based on the affordable sales price, the fair market value or the maximum sales price
permitted under the NSP Program at the time of sale. In those instances where properties have an
appraised Fair Market Value that is greater than the sales price, a silent second will be placed on
the Property for that difference. All principal and interest shall be deferred until subsequent sale
or transfer of the Property. The Deed of Trust will carry a 3% forgivable interest rate, and will
be due and payable in forty-five (45) years. Interest will be forgiven at a rate of 1/45`h per year,
at each anniversary date of the original sale, with all interest forgiven at the end of the forty-five
(45) year affordability period. The covenants and restrictions must be fully explained to each
Homebuyer and the entire explanation and execution of said document must be recorded by the
Developer. A copy of said audio and visual recording shall be placed on a CD which shall be
kept by the Developer and the City.
708. Program Income. Developer acknowledges that the funds being provided by City
for said program are received by City pursuant to the NSP Program criteria and guidelines as
amended and that expenditures of these funds shall be in accordance with the NSP criteria and
guidelines and all pertinent regulations issued by agencies of the federal government, including, but
not limited to, all regulations found at Title 24 of the Code of Federal Regulations.
When the City receives repayment such funds are Program Income. Program Income received by
the City will be used for NSP Activities. Program Income and reallocated funds identified for the
single family, condominium and historic components will be added to agreement with Developer.
Developer agrees to comply fully with all federal, state and local laws and court orders applicable to
its operation whether or not referred to in this Agreement.
Final Amend NSP 1 ANR
25K-12
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to
Agreement on the date and year first written above.
ATTEST: CITY OF SANTA ANA
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By: LISA E. STORCK
Assistant City Attorney
DEVELOPER:
ANR Santa Ana NSP, LLC
By: GEORGE JORDAN
Vice President
Final Amend NSP1 ANR
25K-13
25K-14
FIRST AMENDMENT TO
NEIGHBORHOOD STABILIZATION PROGRAM
GRANT SERVICES AGREEMENT WITH
ORANGE HOUSING DEVELOPMENT CORPORATION
AND C&C DEVELOPMENT
This Amendment is executed 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 (hereinafter "City") and Orange Housing Development Corporation ("OHDC"), a
non-profit 501 (c) (3) organization, and C&C Development, a Limited Liability Company
("Developer") as of March , 2010. ~
RECITALS:
A. City and Developer entered into the Neighborhood Stabilization Program Grant Services
Agreement (said "Agreement") on , 2009 for Developer to assist City
with the acquisition and rehabilitation of rental components of the Neighborhood
Stabilization Program (NSP).
B. The parties now desire to amend said Agreement to include terms related to additional
funding generated by program income.
WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to
all the terms and conditions of said Agreement, except those amended in this
First Amendment to Agreement, the parties agree as follows:
1. Each party hereto agrees that Section 700 of said Agreement, shall be amended to include the
following additional term:
708. Program Income. Developer acknowledges that the funds being provided by City
for said program are received by City pursuant to the NSP Program criteria and guidelines as
amended and that expenditures of these funds shall be in accordance with the NSP criteria and
guidelines and all pertinent regulations issued by agencies of the federal government, including, but
not limited to, all regulations found at Title 24 of the Code of Federal Regulations.
When the City receives repayment from sales of the Properties, such funds are "Program
Income". Program Income received by the City will be used for NSP activities. Program Income
and reallocated funds identified for the rental component will be added to the Agreement with
Developer. Developer agrees to comply fully with all federal, state, and local laws applicable to its
operation whether or not referred to in this Agreement.
25K-15
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to
Agreement on the date and year first written above.
ATTEST: CITY OF SANTA ANA
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By: LISA E. STORCK
Assistant City Attorney
DEVELOPER:
By: ORANGE HOUSING DEVELOPMENT CORPORATION
a California nonprofit public benefit corporation, its sole member
By:
Eunice Bobert, its Chief Executive Officer
C&C Development
a California limited liability company
By:
Todd R. Cottle, its member
By: Cottle Family Trust Dated 3/8/87,
By:
Barry A. Cottle, its Trustee
25K-16
NEIGHBORHOOD STABILIZATION PROGRAM
(PROGRAM 2) GRANT SERVICES AGREEMENT
This Agreement is executed 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 (hereinafter "City") and ANR Santa Ana NSP, LLC, a California limited liability
corporation ("Developer") as of , 2010.
RECITALS:
A. Title III of Division B of the Housing and Economic Recovery Act of 2008 (Pub. L 110-
289, 122 Stat. 2654 enacted July 30, 2009) makes available to certain qualified
municipalities for certain qualified grant funds termed Neighborhood Stabilization
Program ("NSP Funds") under a program termed the Neighborhood Stabilization
Program (the "NSP").
B. On May 4, 2009, the U.S. Department of Housing and Urban Development ("HUD")
issued a Notice of Funding Availability (NOFA) for Neighborhood Stabilization Program
2 Funds (NSP 2). In July 2009, the City submitted an application for $10 million.
C. On January 14, 2010, the City was notified that its application under the NSP for NSP 2
Funds was approved by HUD. Funding for Developer is allocated for acquisition and
rehabilitation of the single family component of the NSP2 program in an amount not to
exceed $6,500,000.00, but not less than $3,000,000.00 plus program income.
D. The City has developed certain criteria and guidelines for implementation of its
Neighborhood Stabilization Program for the NSP funds. The City has identified the
target area as illustrated in the map attached hereto as Exhibit A.
E. Developer was awarded an Agreement for NSP 1 funds, and due to the successful
implementation of NSP 1 with Developer, this Agreement is being awarded to Developer.
F. The City intends for the NSP funds to be primarily used for acquisition of foreclosed
properties and any expenses related to the acquisition and disposition of such properties,
including developer fees. Only in special circumstances will the NSP funds be used for
the rehabilitation costs associated with foreclosed properties.
NOW THEREFORE, the parties agree as follows:
100. DEFINITIONS
"Abandoned" a residential property is abandoned when mortgage or tax
foreclosure proceedings have been initiated for that property, no mortgage or tax
payments have been made by the property owner for at least 90 days AND the property
has been vacant for at least 90 days.
1
"Affordable Sales Price" shall mean a purchase price which results in an
affordable cost to a Low or Moderate Income Purchaser. The Affordable Sales Price for
Low Income households will be the product of 30% times 65% of the Area Median
Income adjusted for family size appropriate for the unit. For Moderate Income
households, the Affordable Sales Price will be the product of 35% times 100% of the
Area Median Income, adjusted for family size appropriate for the unit.
"Agency" means the Community Redevelopment Agency of the City of Santa
Ana, a public body, corporate and politic, exercising governmental functions and powers,
and organized and existing under the Community Redevelopment Law of the State of
California (Health and Safety Code Section 33000 et sec The principal office of the
Agency is located at 20 Civic Center Plaza, Santa Ana, California, 92702.
"Agreement" means this Neighborhood Stabilization Program Agreement
between the City and the Developer, and any attachments thereto.
"Applicable Law" shall mean those federal, state and local laws, ordinances,
regulations, policies and procedures applicable to the NSP, and the NSP 2 Funds.
"Area Median Income" means the median income figures for Orange County
adopted by the State of California pursuant to Health and Safety Code Section 50093, as
amended from time to time. Also maybe referred to as "AMI" herein.
"Blighted" a structure is blighted when it exhibits objectively determinable signs
of deterioration sufficient to constitute a threat to human health, safety and welfare.
"Building Permit" means the building permit(s) issued by City and required for
the rehabilitation, if any.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday
on which Santa Ana City Hall is open to the public for the conduct of City affairs.
"City" means the City of Santa Ana, a charter city and municipal corporation.
"Current Market Appraised Value" the current market appraised value means
the value of a foreclosed residential property that is established through an appraisal
made in conformity with the appraisal requirements of the Uniform Relocation Act
(URA) 49 CFR 24.13 and completed within 60 days prior to the final offer made for the
property.
"Deed of Trust" means the Deed of Trust with the Developer encumbering the
NSP Assisted Unit in the form attached hereto as Exhibit C.
"Developer" means ANR Homes Inc., a California corporation, and its affiliate,
ANR Santa Ana, NSP, LLC.
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"Eligible Property" shall mean a property that the City shall in its sole discretion
determines meets NSP Program Criteria.
"Executive Director" means both the Deputy City Manager for Development
Services, and the Executive Director of the Community Redevelopment Agency, or
his/her designee.
"Foreclosed" A property "has been foreclosed upon" at that point that, under state
or local law, the mortgage or tax foreclosure is complete and the title has been transferred
away from the former property owner. A property is not foreclosed until the title for the
property has been transferred from the former property owner under a foreclosure
proceeding or a transfer in lieu of foreclosure, in accordance with state or local law.
"Hazardous Materials" means flammable materials, explosives,
radioactive materials, hazardous wastes, toxic substances and similar substances and
materials, including all substances and materials defined as hazardous or toxic wastes,
substances or materials under any applicable law, including without limitation the
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et sec., and the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. 9601, et seq., as amended.
"Homebuyer" shall be the qualified low or moderate income household that
originally purchases the NSP Assisted Unit from the Developer.
"Homebuyer Deed of Trust" means the deed of trust encumbering the NSP
Assisted Unit, in the form attached hereto as Exhibit F to be executed by the Homebuyer
at the time of sale.
"Housing Rehabilitation Standards" NSP funded activities will adhere to the
Housing Rehab Standards (attached hereto and incorporated herein as Exhibit B). This
standard exceeds the HUD Housing Quality Standards. The Standards shall correct
housing deficiencies and address items deemed essential for basic health, safety, and
welfare. All work shall meet the Uniform Building Code (UBC), Uniform Plumbing
Code (UPC), Uniform Mechanical Code (UMC), National Electric Code (NEC) as
amended periodically.
"HUD" means the United States Department of Housing and Urban Development
and any successors or assigns thereof.
"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).
"Low Income" means an adjusted income which does not exceed eighty percent
(80%) of the Orange County, California PMSA, adjusted for household size, as published
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by HUD. .This income limit will be used to determine the Homebuyer's maximum
income for eligibility to purchase a Low Income Unit.
"Median Income for the Area" means the median income for the Orange
County, California PMSA as most recently determined by HUD. Also maybe referred to
interchangeably in the Loan Documents as "Area Median Income" or "AMI".
"Moderate Income" means an adjusted income which does not exceed one
hundred twenty percent (120%) of the Orange County, California PMSA, adjusted for
household size, as published by HUD. This income limit will be used to determine the
Homebuyer's maximum income for eligibility to purchase a Moderate Income Unit.
"Neighborhood Stabilization Program" (NSP) has the meaning set forth in the
Recitals above.
"Neighborhood Stabilization Program (NSP) Regulations" has the meaning
set forth in the Recitals above.
~~NSP Assisted Units" shall mean those residential units purchased and
rehabilitated on Eligible Properties which are subject to the term of affordability.
"NSP Funds" shall mean the money provided under the NSP 2 Program for the
acquisition and rehabilitation of the homes hereunder.
"Target Area" shall mean the map attached hereto and incorporated herein as
Exhibit A.
"Term of Affordability" the term of affordability shall be forty-five (45) years.
200. PROPERTY ACQUISITION
201. Selection of Properties by Developer. Developer shall with reasonable diligence
seek to identify proposed Eligible Properties which it determines may meet NSP Program
Criteria. Only vacant properties will be considered. The Developer shall provide the City with
its Acquisition/Rehabilitation Bid Analysis on each potential property to the City. Upon receipt
of complete bid analysis, the City shall review said within two (2) working days, subject to final
approval after inspection by City rehabilitation staff which shall occur within two (2) additional
working days. The City will approve or reject properties for purchase through the NSP Program.
Developer shall negotiate the purchase of the property with the current owner which must be
consistent with NSP guidelines. Developer has the capacity to finance up to 80 percent of costs
with its own acquisition/construction lender. Developer shall take, insure and hold title to the
property, and prepare a scope of work to be reviewed by the City. The City anticipates mainly
using NSP funds for acquisition, costs associated with maintenance, sales and other related soft
costs. The actual number of housing units to be acquired and rehabilitated by Developer will be
determined by the City in its sole discretion based in part on the amount of NSP Funds awarded
to Santa Ana.
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202. Properties Provided by the National Community Stabilization Trust. The parties
shall also be working in conjunction with the National Community Stabilization Trust (NCST) to
identify potential eligible properties. Each of the parties has signed a Memorandum of
Understanding with NCST and agreed to the Acquisition Program Guidelines issued by NCST.
Any properties purchased in collaboration with NCST must comply with all NCST requirements
and follow the NCST framework for acquisition of eligible properties. As the City's partner with
NCST, Developer shall work with the City's approved intermediary(ies) for the Rental Program,
or to other non-profit organizations implementing similar programs that the City may identify, to
provide potential eligible properties.
203. Offer to Purchase. Any offers to purchase must include a contingency for appraisal
to be in compliance with NSP Regulations. Once appraisal is in compliance, then a final offer to
purchase may be submitted.
204. Appraisals. The City issued a Request for Proposals (RFP) in order to establish a list
of qualified appraisers. The appraisers selected are experienced, qualified and meet the NSP
appraiser requirements. The City shall provide its approved list of appraisers to be used for all
NSP activities to the Developer. Developer shall select and pay the appraiser directly as one of
its development costs.
205. Funding of Acquisition. City shall deposit into escrow, funds for Developer as agreed
upon during the Selection Phase. City shall record a lien, in the form of a Deed of Trust
(attached hereto and incorporated herein as Exhibit C), against each of the selected properties
equal to the amount of money deposited into escrow for such property. Said lien will be released
upon sale of the Property to a qualified homebuyer, when the Deed of Trust and Promissory Note
are executed. The City is willing to subordinate its Deed of Trust to the primary lender.
300. REHABILITATION REQUIREMENTS.
The following Rehabilitation Requirements shall apply to all NSP Assisted Units:
301. 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 rehabilitation of the Property.
302. Commencement and Completion of Rehabilitation. The Rehabilitation shall be
considered complete for purposes of this Agreement only when (a) all work described has been
completed and fully paid for, and (b) all work requiring inspection or certification by any
governmental authority has been completed and all requisite certificates, approvals and other
necessary authorizations (including required final certificates of occupancy) have been obtained.
303. Rehabilitation Standards. Residential Rehabilitation Standards (24 CFR 570):
Developer certifies that it will perform rehabilitation in conformance to the standards outlined in
the City's Residential Rehabilitation Standards ,which exceed the HUD Housing Quality
Standards and with strict adherence to state and local building codes, safety standards, protection
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of historical integrity and for maximum achievement in the area of energy efficiency. Demolition
shall be conducted in cases of extreme deterioration, to eliminate illegal additions, and in concert
with local authorities.
304. Protection of Historical Structures (24 CFR Part 58/36CFR Part 800).
Developer will comply with and obtain approval of the Federal and State Historic
Preservation Commission(s) when rehabilitation activities are planned on a structure that is listed
on the state historic registry, and will provide documentation of such approval to the City prior to
commencement of any rehabilitation activities on a property which is funded through this
program.
305. 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) and implementing
regulations at 24 CFR 35 for any housing project it undertakes pursuant to this Agreement. For
the activities outlined in this Agreement, Developer will be required to pay particular attention to
subpart J (Rehabilitation); subpart K (Acquisition, Leasing, Support Services or Operation) and
Subpart R (Methods and Standards for lead based paint hazard reduction activities).
306. Asbestos Abatement: The United States Environmental Protection Agency (EPA)
has defined asbestos containing materials (ACM) to be any substance containing more than one
percent (1%) or more asbestos by weight.
All ACM's must be abated prior to demolition or renovation/remodeling activities by a
Cal-OSHA licensed asbestos abatement contractor using methods in accordance with 8 CCR
1529 and SCAQMD Rule 1403. Asbestos abatement procedures should be monitored by a third
party or consultant knowledgeable in asbestos abatement procedures and is, at a minimum, either
a Cal-OSHA certified Site Surveillance Technician or Certified Asbestos Consultant.
The survey for ACMs shall be performed in conjunction with the survey for lead-based
paint. All suspect materials are sampled and tested in accordance with the general guidelines for
bulk asbestos sampling as presented in Section 40, Part 763 (AHERA) of the Code of Federal
Regulations (CFR) and the United States EPA.
307. Energy Efficient Products. Developer shall include energy efficient products in
the rehabilitation of the homes. Such products include, but are not limited to, the following
features: low-flush toilets, insulation, high efficiency systems, and tankless water heaters. In
addition, yards will be landscaped with low-maintenance and drought tolerant plants.
308. Rehabilitation Act -Section 504 (As Applicable). Section 504 of the
Rehabilitation Act of 1973 prohibits discrimination in federally-assisted activities and programs
on the basis of handicap, and imposes requirements to ensure that qualified individuals with
handicaps have access to these programs and activities.
309. 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
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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.
400. REHABILITATION COSTS PAID WITH NSP FUNDS.
In those special instances where Rehabilitation Costs will be paid with NSP Funds, the
following procedures shall be followed:
401. Rehabilitation Costs Paid with NSP Funds. It is the intent of the parties to use
NSP funds for acquisition and related soft costs. If there is a need to use NSP funds for
rehabilitation, this section will apply. In the event that NSP Funds will be used for construction
related expenses, Developer must also comply with the labor and Davis-Bacon regulations as set
forth in Section 703 hereof. The documents referenced in this Section 400 (Payment Request,
Release of Retention Funds, Notice of Completion) are attached hereto and incorporated herein
as Exhibit D.
402. Disbursement Requests. The Rehabilitation Portion proceeds shall be disbursed
on a line-item by line-item basis in accordance with the Rehabilitation 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 Rehabilitation 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 NSP Funds, Developer shall deliver to City
and to Bank a draw request ("Draw Request"), and all required supporting information as set
forth in this Agreement or as otherwise reasonably required by City or Bank in order to provide
information for evaluating the requested disbursement pursuant to customary construction
lending practices of institutional lenders in Southern California.
City and Bank shall notify the other and Developer of approval or disapproval of each Draw
Request within five (5) business days after receipt of the Draw Request, using the Bank's
"Disbursement/Change Order Approval Notice". City and Bank 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.
403. 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.
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404. 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 Rehabilitation Budget exceeds the amount allocated to that line item in the
Rehabilitation Budget, (b) Rehabilitation Costs for any matters not covered by a specific line
item have been or will be incurred, or (c) the undisbursed portion of the Rehabilitation Portion is
or may be insufficient to pay all Rehabilitation Costs that may be payable under this Agreement
or otherwise in connection with the Rehabilitation, Developer shall, within ten (10) days after it
receives written notice thereof from City of any of the foregoing matters, do one or more of the
following:
(a) provide satisfactory evidence to City that Developer has previously paid
such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost") with
funds from a source other than the NSP Funds;
(b) reallocate sufficient funds to pay the Excess Cost from funds
allocated to "Contingency" in the Rehabilitation 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 anon-interest bearing
account (the "Overrun Account") with City from which withdrawals may be made only with the
consent of the Executive Director but which will be exhausted prior to any further disbursement
for any line item, so that any resulting surplus in any line item of the Rehabilitation Budget will
then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred.
City shall have no obligation to make further disbursements until Developer has paid or
otherwise provided for the overrun as required above. Amounts deposited by Developer in the
Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of
any remaining Rehabilitation Portion proceeds.
405. Cost Savings. Upon completion of and disbursement for all matters covered by any
line items in the Rehabilitation 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.
406. 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.
407. 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
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Executive Director) for "punch-list" items. Such holdback will be released when all punch-list
items have been completed to the satisfaction of City.
408. 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.
409. 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 Rehabilitation Contract.
500. COVENANTS, RESTRICTIONS, SALE TO HOMEBUYERS
501. Reserved.
502. Selection of Broker by Developer. Developer shall select local real estate
brokers that are most knowledgeable of the market and have a successful track record in the area.
Selection of the broker will be based on criteria such as volume of sales in the area, days on the
market, and comparison of listing price versus sales price, excluding foreclosed properties. The
number of brokers shall be reviewed periodically based on program needs and volume.
503. NSP Assisted Units. Developer agrees to make available, restrict occupancy to,
and sell each of the NSP Assisted Units to Low or Moderate Income Households (as that term is
herein defined) at an Affordable Housing Cost. In addition, the Developer agrees to cooperate
with the Agency in any subsidized loan program the Agency may in its sole discretion make
available to Low or Moderate Income Household purchasers of some or all of the NSP Assisted
Units.
504. Sales price.
Single Family Homes: Upon completion, the homes will be marketed and
sold to households with incomes at or below 120 percent of the area median
income, for the sale amount indicated below. Each property must be sold to a
qualified homebuyer household at an affordable price. In no case shall the
sales price be greater than the lesser of (a) fair market value or (b) the total
costs to acquire and rehabilitate the property per NSP guidelines. The City
assumes that properties cannot be sold for more than their market value,
regardless of the development costs (acquisition, rehab, other eligible costs,
developer fee). The City expects to reimburse eligible costs that cannot be
recovered from the sale price. Amounts may be amended periodically to
reflect changes published by HUD.
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505. Selection of Buyers. The Developer shall provide the City with a copy of its
Marketing Plan which shall set forth how the Developer plans to provide interested households
with information about the NSP Assisted Units. The Developer shall be solely responsible for the
selection of qualified purchasers of the NSP Assisted Units, subject to final approval by the City.
Developer shall ensure that there will be adequate homebuyer education with HUD approved
pre- and post- purchase counseling. Pre-purchase counseling must be completed PRIOR to close
of escrow.
506. Marketing and Outreach Plan. The goal of the Marketing and Outreach Plan is to
insure that the marketing of affordable for-sale housing be as broad and inclusive as possible in
order to inform and attract as many prospective buyers as possible. The Outreach and Marketing
Plan and the associated applicant selection procedures will be targeted to purchasers regardless
of race, color, religion, sex, disability status, familial status or national origin.
Information shall also be provided on the Developer's website, City of Santa Ana
website, City cable channel, Workforce Investment Board, Santa Ana Chamber of Commerce,
Santa Ana Unified School District, Rancho Santiago Community College District, Community
Development Resource Network Newsletter and through neighborhood associations.
507. Verification of Homebuyer Income. Prior to the sale of any NSP Assisted Unit to
a Homebuyer, the Developer shall submit to the City a completed income computation and
certification form from each Homebuyer of the NSP Assisted Unit in the form which is provided
by the City. Each Homebuyer shall certify, to the best of the Homebuyer's knowledge, that it is
a Low or Moderate Income Household and meets the eligibility requirements established for the
NSP Assisted Unit. The Developer shall obtain an income verification and lender's packet from
the prospective purchaser of an NSP Assisted Unit (which shall be provided to the City). For
purposes of this Program, income will be calculated per HUD guidelines for federal programs
(Exhibit E: HUD Part 5 Income & Assets Definitions). For purposes of such certification, the
Developer shall verify the income certification of the prospective Homebuyer in one or more of
the following methods reasonably acceptable to the City:
(a) obtain three (3) paycheck stubs from the prospective Homebuyer's
three (3) most recent pay periods.
(b) obtain a true copy of an income tax return from the prospective
Homebuyer for the most recent three tax years in which a return was filed.
(c) obtain an income verification certification from the employer of
the prospective Homebuyer.
(d) obtain an income verification certification from the Social Security
Administration and/or the California Department of Social Services if the prospective
Homebuyer receives assistance from such agencies.
(e) obtain an alternate form of income verification reasonably
acceptable to the City, if none of the above forms of verification is available to the Developer.
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508. Affordability Documents at Time of Sale. At the closing of escrow for the
Homebuyer's purchase of each NSP Assisted Unit, the City will require each income qualified
Homebuyer of such Unit to execute the following documents: the Homebuyer Deed of Trust
(attached hereto as Exhibit F), Homebuyer Promissory Note (attached hereto as Exhibit G), and
such further documents reasonably required by the City in a form provided by the City. Any
Units assisted with tax increment money will also have a Notice of Affordability recorded
against such Property (attached hereto as Exhibit H). The Promissory Note, and Deed of Trust
shall contain aforty-five (45) year term. The principal loan amount of the Promissory Note shall
be the amount of NSP Funds to create this homeownership opportunity, which will be
determined based on the affordable sales price, the fair market value or the maximum sales price
permitted under the NSP Program at the time of sale. In those instances where properties have an
appraised Fair Market Value that is greater than the sales price, a silent second will be placed on
the Property for that difference. All principal and interest shall be deferred until subsequent sale
or transfer of the Property. The Deed of Trust will carry a 3% forgivable interest rate, and will
be due and payable in forty-five (45) years. Interest will be forgiven at a rate of 1/45th per year,
at each anniversary date of the original sale, with all interest forgiven at the end of the forty-five
(45) year affordability period. The covenants and restrictions must be fully explained to each
Homebuyer and the entire explanation and execution of said document must be recorded by the
Developer. A copy of said audio and visual recording shall be placed on a CD which shall be
kept by the Developer and the City.
509. Net Sales Proceeds and Distributions. Net sales proceeds shall be applied as
follows:
1. First, to payments required on any acquisition and rehabilitation loan that has been
secured with a first trust deed on the property sold;
2. Second, to the repayment of any equity contribution paid by Developer for the subject
property;
3. Third, to pay for any Cost Overruns that have been approved in writing by the City in
accordance with Section 404, which were unable to be paid with funds from the
acquisition and rehabilitation loan;
4. Fourth, to the Developer Fee, as described in Section 601 to the repayment of the City
loan, less the amount approved as a project subsidy at the time of the City's approval of
the property for acquisition;
5. Fifth, to the repayment of the City Loan, less the amount approved as a project subsidy at
the time of the City's approval of the property for acquisition;
6. Thereafter, if any, to the City.
510. Homebuyer Assistance. The Developer agrees to cooperate with the City in any
subsidized loan program the City andlor Agency may in its sole discretion make available to
Low or Moderate Income Household purchasers of some or all of the NSP Assisted Units.
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511. Affordable Housing Property Tax. Developer shall be responsible for applying to
the County of Orange to request that the property tax be based on the restricted value with the
affordability covenants that are recorded against each Affordable Unit.
512. Maintenance. The Deed of Trust shall require each of the households to maintain
their property in conformance with local and state requirements.
513. Reasonable Efforts to Sell Affordable Units. The Developer agrees to exercise
reasonable efforts consistent with prudent business practices to sell all of the NSP Assisted Units
to owner-occupants as soon as practical following the completion of the rehabilitation. The
Developer agrees that the NSP Assisted Units shall not be sold to the Developer or any
party/employee related to the Developer.
514. Guarantee/Homeowner Protection Plan. Developer agrees to guarantee its work
from defects for a period of at least one (1) year after rehabilitation is complete, with a five (5)
year guarantee for the roof of each Unit. Developer shall provide each Homebuyer with all of
the manufacturer's warranties and product information. Developer shall also provide the
Homebuyers of each of the Affordable Units with a Homeowner Protection Plan.
515. Subsequent Sales/Recapture of Loan Amount. The Grant Deed from Developer
to any proposed qualified household shall restrict the use of the Property to being owner-
occupied. The Homebuyer Deed of Trust shall be recorded against the property with a term of 45
years. If said NSP Assisted Unit is sold prior to the expiration of the 45 year covenant of
affordability, the loan can be transferred to another income qualified household (with City
approval), or the City must be repaid the full amount of its Promissory Note. Upon transfer and
repayment to the City, the covenant of affordability shall no longer be applicable.
516. Maintenance Covenants. During the time of Developer's ownership of the Sites,
the Developer shall maintain the Sites and all improvements thereon, including all landscaping,
in compliance with the terms of all applicable provisions of the City of Santa Ana Municipal
Code. Each Homebuyer shall be responsible for maintenance of his/her own property after
transfer of title.
517. Nondiscrimination Covenants. Developer herein covenants by and for itself, its
successors and assigns, that there shall be no discrimination against or segregation of, any person
or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m)
and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government
Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed, nor shall the grantee or any person claiming under or through him or her,
establish or permit any practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or
vendees in the premises herein conveyed. The foregoing covenants shall run with the land.
600. DEVELOPER FEE AND PERFORMANCE.
601. Developer Fee. The Developer shall be paid ten percent (10%) of the cost of the
acquisition sales price of each property, plus all rehabilitation costs, actual acquisition and sale
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closing costs, insurance related to acquisition and rehabilitation, property taxes and maintenance
costs (utility and landscaping)subject to proper documentation evidencing such costs
("Developer Fee"). The Developer Fee shall be paid by the City to the Developer at the close of
escrow to the qualified homebuyer.
602. Performance Measures. Due to the legislative deadlines, performance
measurements will be monitored closely. The Developer's contract maybe cancelled and the
funds reallocated to other developers for failure to meet HUD deadlines.
603. Business License/Professional Licenses. Developer must obtain and maintain a
valid business license in order to perform services in the City of Santa Ana. Also, Developer
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. Developer 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.
700. GOVERNMENTAL REQUIREMENTS
701. Economic Opportunities for Low Income People. (24 CFR 570.487, Section 3 of
the Housing and Urban Development Act of 1968, 12 USC 1701u, as amended by Section 915 of
the Housing and Community Development Act of 1992). Developer certifies that it implements
a policy in accordance with Section 3 of the Housing and Urban Development Act of 1968 that
requires employment and other economic opportunities arising in connection with housing
rehabilitation, housing construction and other public construction projects shall, to the extent
feasible and consistent with existing federal, state and local laws and regulations, be given to low
and very low-income persons. Noncompliance with HUD's regulations in 24 CFR part 135 may
result in sanctions, termination of this contract for default, and debarment or suspension from
future HUD assisted contracts. To the extent applicable, the Developer shall comply and/or
cause compliance with Section 3 Clause requirements for the NSP. For example, when and if
Developer or its contractor(s)/subcontractor(s) hire(s) full time employees, Section 3 is
applicable and all disclosure and reporting requirements apply.
702. 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.
703. Conformance with Applicable Labor Law. If Section 401 applies, all laborers
and mechanics employed by the Developer and any subcontractor in the performance of the
construction work under this Agreement (if any) shall be paid wages at rates not less than the
prevailing wage as determined by the U.S. Department of Labor, under the Davis-Bacon Act.
The Developer further agrees to comply with the provisions of the Copeland Act and the
Contractor Work Hours and Safety Act. This paragraph does not apply to contracts which do not
exceed $2,000.
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704. Maintenance of Drug-Free Workplace. Developer shall certify that Developer
will provide adrug-free workplace in accordance with 24 CFR 84.13.
705. Books and Records. Developer shall maintain complete books of account and
other records, reports and information, as the Executive Director may reasonably require,
reflecting its operations (in connection with any other businesses as well as with respect to the
NSP Assisted Units), 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, to meet the record keeping and reporting requirements required of it in
accordance with 24 CFR 92.508.
706. Equal Opportunity and Fair Housing. Developer shall carry out the
Rehabilitation 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.
707. Conflict of lnterest. 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.
708. Program Income. When the City receives repayment from sales of the Properties,
such funds are "Program Income". Program Income received by the City will be used for NSP
activities. Program Income and reallocated funds identified for the single family component will
be added to the Agreement with Developer. Developer agrees to comply fully with all federal,
state, and local laws applicable to its operation whether or not referred to in this Agreement.
800. DEFAULTS, REMEDIES, TERMINATION
801. Default Remedies. Failure by either party to perform any action or covenant
required by this Agreement within the time periods provided herein following notice and failure
to cure as described hereafter, constitutes a "Default" under this Agreement. A party claiming a
Default shall give written notice of Default to the other party specifying the Default complained
of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute
any proceeding against any other party, and the other party shall not be in Default if such party
within thirty (30) days from receipt of such notice immediately, with due diligence, commences
to cure, correct or remedy such failure or delay and shall complete such cure, correction or
remedy with diligence.
802. Institution of Legal Actions. In addition to any other rights or remedies and
subject to the restriction otherwise set forth in this Agreement, either party may institute and
action at law or equity to seek specific performance of the terms of this Agreement, or 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. Such legal actions must be instituted in
the Courts of the County of Orange, State of California, or in the District of the United States
District Court in which such county is located.
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803. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either
party of one or more of such right 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.
804. Inaction Not a Waiver of Default. Any failures or delays by either party 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, or deprive either such party 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.
805. Termination. This Agreement shall terminate on the earlier of: (a) expenditure of
all NSP funds; (b) failure to cure a material breach after notice and time to cure; (c) February 1,
2014; (d) the date ninety (90) days following receipt by Developer of written notice of
termination from the City; (e) upon mutual agreement of the parties, or (f) failure to meet
Performance Measures as set forth in Section 602.
900. GENERAL PROVISIONS
901. Relationship between the Parties. Both parties expressly acknowledge it is the
intention of the parties that this Agreement shall be a contract for services and shall not in
any way create any employer/employee relationship between the parties or any co-venture or
joint venture. Developer is an independent contractor who shall in no way be considered an
employee of the City. It is expressly acknowledged and agreed that Developer shall be
responsible for maintaining its own insurance as described in paragraph 906.
902. Notices. Any approval, disapproval, demand, document or other notice ("Notice")
which either party may desire to give to the other party under this Agreement must be in
writing and may be given by any commercially acceptable means to the party to whom the
Notice is directed at the address of the party as set forth below, or at any other address as that
party may later designate by Notice.
To City: City of Santa Ana -Housing Division
20 Civic Center Plaza, M-37
Santa Ana, California 92701
Attention: Executive Director
To Developer: ANR Homes, Inc.
10702 Hathaway Drive, Unit 1
Santa Fe Springs, CA 90670
Attention: George Jordan, Vice President
Any written notice, demand or communication shall be deemed received immediate if
delivered by hand and shall be deemed received on the third day from the date it is
postmarked if delivered by registered or certified mail.
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903. Modification of Terms. The Executive Director shall have the authority to make
minor modifications to the terms contained herein with the prior approval of the City Attorney's
Office. Any alteration, change or modification of or to this Agreement, in order to become
effective, shall be made in writing and in each instance signed on behalf of each party.
904. Limitation on Delegation. Inasmuch as this Agreement is intended to secure the
specialized services of Developer, Developer 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
Nothin in this A Bement shall be construed to limit the City's ability to have any
null and void. g gr
of the services which are the subject to this Agreement performed by City personnel or by other
developers or consultants retained by the City.
905. Exclusivity and Amendment. This Agreement represents the complete and
exclusive statement between the City and Developer, and supersedes any and all other
agreements, oral or written, between the parties. h1 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 Developer. 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 Developer nor the City. Each party to this
Agreement acknowledges that no representations, inducements, promises or agreements, orally
or otherwise, have been made by any parry, or anyone acting on behalf of any party, which are
not embodied herein.
906. Insurance. The Developer shall take out and maintain or shall cause its contractor
to take out and maintain until the completion of rehabilitation pursuant to the terms of
this Agreement, a commercial general liability policy in the amount of Two Million
Dollars ($2,000,000) combined single limit policy, and a comprehensive automobile
liability policy in the amount of One Million Dollars ($1,000,000), combined single limit,
or such other policy limits as the City may approve at its discretion, including contractual
liability, as shall protect the Developer, City from claims for such damages. Such policy
or policies must be written on an occurrence form. The Developer shall also furnish or
cause to be furnished to the City evidence satisfactory to the City that Developer and any
contractor with whom it has contracted for the performance of work on the Sites or
otherwise pursuant to this Agreement carries workers' compensation insurance as
required by law. Developer also agrees to provide insurance covering one
hundred percent (100%) of the replacement cost of all insurable items within the Property
in the event of fire, lightning, debris removal, windstorm, vandalism, malicious mischief,
theft, mysterious disappearance and hazards, casualties and contingencies as are normally
and usually covered by all-risk policies in effect in the locality where the Property is
situated. The Developer shall furnish a certificate of insurance countersigned by an
authorized agent of the insurance carrier on a form approved by the City setting forth the
general provisions of the insurance coverage. This countersigned certificate shall name
the City and its respective officers, agents, and employees as an additionally insured
party under the policy, and the certificates shall be accompanied by a duly executed
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enforcement evidencing such additional insured status (the City's preferred Additional
Insured Endorsement is attached hereto as Exhibit I). The certificate and endorsement by
the insurance carrier shall contain a statement of obligation on the part of the carrier to
notify City of any material change, cancellation or termination of the coverage at least
thirty (30) days in advance of the effective date of any such material change, cancellation
or termination. Coverage provided hereunder by the Developer shall be primary
insurance and not be contributing with any insurance maintained by the City, and the
policy shall contain such an endorsement. The insurance policy or the endorsement shall
contain a waiver of subrogation for the benefit of the City. The required certificate shall
be furnished by the Developer at the time this Agreement is executed. Certificates
verifying such coverage has been extended to the City of Santa Ana must be furnished to
the City of Santa Ana City Attorney's Office (M-29), 20 Civic Center Plaza, Santa Ana,
CA 92701 prior to the commencement of work hereunder.
907. Builders Risk Insurance. The Developer shall be responsible to cover the
properties during the course of rehabilitation. It is recommended that such insurance provide
coverage on an all risk basis, including theft and vandalism, for accidental losses, damage or
destruction of the Property until each home is sold.
908. Right of Access. For purposes of assuring compliance with this Agreement,
representatives of the City shall have the right of access to the properties, without charges or
fees, at normal construction hours during the period of construction for the purposes of this
Agreement, including but not limited to, the inspection of the work being performed in
rehabilitating the improvements so long as City representatives comply with all safety rules. The
City (or its representatives) shall, except in emergency situations, notify the Developer prior to
exercising its right pursuant to this section.
909. Developer Indemnity.
Developer shall indemnify, defend and hold harmless City, its officers, agents, employees and
volunteers from and against any and all loss or damage, expenses, injuries, death to any person,
damage to real or personal property, claim, demand, suit, action, judgment, settlement,
reasonable attorney's fees, costs, or proceeding of any kind arising out of this Agreement,
implementation of this Agreement, the sale of the property by Developer, securing of financing,
design development drawings, engineering, construction, reconstruction, structural integrity of
the NSP Assisted Units, maintenance of the properties, operation, and subsequent sale of the
NSP Assisted Units, including but not limited to:
(a) the presence, release, use, generation, discharge, storage or disposal of any hazardous
materials, on, under, in or about, or the transportation of any such hazardous materials to
or from, the NSP Assisted Units;
(b) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation,
permit, judgment or license relating to the use, generation, release, discharge, storage,
disposal or transportation of Hazardous Materials on, under, in or about, to or from, the
NSP Assisted Units;
(c) latent material defects in rehabilitation work;
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(d) any construction defect;
(e) personal injury, including death, of the employees, agents, officers, and/or volunteers of
Developer, and/or any subcontractors, independent contractors, partners, and/or
subsidiaries;
(f) property damage claims of the employees, agents, officers, and/or volunteers of
Developer, and/or any subcontractors, independent contractors, partners, and/or
subsidiaries;
(g) delay in rehabilitation;
(h) personal injury, including death, of any third party;
(i) property damage claims of any third party; and
(j) the failure to make required real estate disclosures to subsequent buyers of the NSP
Assisted Units.
Developer's obligation to indemnify as set forth in this Agreement shall extend to loss or
damage, expenses, injuries, death to any person, damage to real or personal property, claim,
demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceedings of
any kind that, are discovered or accrue, either before or after the termination of this Agreement.
Notwithstanding the foregoing, Developer shall not be required to indemnify and hold harmless
the City for liability attributable to the active negligence or intentional misconduct of the City or
any of its boards, officers, employees, representatives or agents.
910. Attorney's Fees. In any action between the parties to interpret, enforce, reform,
modify, rescind, or otherwise in connection with any of the terms or provisions of this
Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive
relief, or any other relief to which it might be entitled, reasonable costs and expenses including,
without limitation, litigation costs and reasonable attorneys' fees.
911. Titles and Captions. Titles and captions are for convenience of reference only and
do not define, describe or limit the scope or the intent of this Agreement or of any of its terms.
Reference to section numbers are to sections in this Agreement, unless expressly stated
otherwise.
912. Interpretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words
"without limitation." This Agreement shall be interpreted as though prepared jointly by both
parties.
913. Severability. If any term, provision, condition or covenant of this Agreement or its
application to any party or circumstances shall be held, to any extent, invalid or unenforceable,
the remainder of this Agreement, or the application of the term, provision, condition or covenant
to persons or circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent
permitted by law.
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914. Legal Advice. Each party represents and warrants to the other the following: they
have carefully read this Agreement, and in signing this Agreement, they do so with full
knowledge of any right which they may have; they have received independent legal advice from
their respective legal counsel as to the matters set forth in this Agreement, or have knowingly
chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have
freely signed this Agreement without any reliance upon any agreement, promise, statement or
representation by or on behalf of the other party, or their respective agents, employees, or
attorneys, except as specifically set forth in this Agreement, and without duress or coercion,
whether economic or otherwise.
915. Jurisdiction/Venue. This Agreement has been executed in the State of California
and the validity, interpretation, performance, and enforcement of any of the clauses of this
Agreement shall be determined and governed by the laws of the State of California. Both parties
further agree that Orange County, California, shall be the venue for any action or proceeding that
maybe brought or arise out of, in connection with or by reason of this Agreement.
916. Miscellaneous.
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
first stated above.
ATTEST: CITY OF SANTA ANA
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By: LISA E. STORCK
Assistant City Attorney
DEVELOPER:
ANR HOMES, INC.
By: GEORGE JORDAN
Vice President
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NEIGHBORHOOD STABILIZATION PROGRAM (PROGRAM 2)
RENTAL HOUSING DEVELOPMENT AGREEMENT
This Agreement is executed 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 (hereinafter "City") and Orange Housing Development Corporation ("OHDC"), a
non-profit 501 (c) (3) organization, and C&C Development, a Limited Liability Company
("Developer") as of March 2010.
RECITALS:
A. Title III of Division B of the Housing and Economic Recovery Act of 2008 (Pub. L 110-
289, 122 Stat. 2654 enacted July 30, 2009) makes available to certain qualified
municipalities for certain qualified grant funds termed Neighborhood Stabilization
Program ("NSP Funds") under a program termed the Neighborhood Stabilization
Program (the "NSP").
B. On May 4, 2009, the U.S. Department of Housing and Urban Development ("HUD")
issued a Notice of Funding Availability (NOFA) for Neighborhood Stabilization Program
2 Funds (NSP 2). In July 2009, the City submitted an application for $10 million.
C. On January 14, 2010, the City was notified that its application under the NSP for NSP 2
Funds was approved by HUD. Funding for Developer is allocated for acquisition and
rehabilitation of the single family, condominium and historic components of the NSP in
an amount not to exceed $6,500,000.00, but not less than $2,500,000.00 plus program
income.
D. The Acquisition and Rehabilitation -Rental Program will be implemented in the target
area as illustrated in the map attached hereto as Exhibit A.
E. Developer was awarded an agreement for the NSP 1 funds for the Rental Program, and
due to its successful implementation of NSP 1 with Developer, this agreement is being
awarded to Developer.
F. The City intends for the NSP funds to be primarily used for acquisition of foreclosed
properties and any expenses related to the acquisition and disposition of such properties,
including developer fees. Only in special circumstances will the NSP funds be used for
the rehabilitation costs associated with foreclosed properties.
NOW THEREFORE, the parties agree as follows:
100. DEFINITIONS
"Abandoned" a residential property is abandoned when mortgage or tax
foreclosure proceedings have been initiated for that property, no mortgage or tax
1
payments have been made by the property owner for at least 90 days AND the property
has been vacant for at least 90 days.
"Affordability Covenants and Restrictions on Transfer of Property" means
thatcertain recorded document affecting real property benefiting the City, attached hereto
as Exhibit A.
"Affordable Rent" means the monthly rents that are set forth in more detail in
Section 502 of this Agreement.
"Agreement" means this Neighborhood Stabilization Program Agreement
(Program 2) between the City and the Developer, and any attachments thereto.
"Applicable Law" shall mean those federal, state and local laws, ordinances,
regulations, policies and procedures applicable to the NSP, and the NSP Funds.
"Area Median Income" means the median income figures for Orange County
adopted by the State of California pursuant to Health and Safety Code Section 50093, as
amended from time to time. Also maybe referred to as "AMI" herein.
"Blighted" a structure is blighted when it exhibits objectively determinable signs
of deterioration sufficient to constitute a threat to human health, safety and welfare.
"Building Permit" means the building permit(s) issued by City and required for
the rehabilitation, if any.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday
on which Santa Ana City Hall is open to the public for the conduct of City affairs.
"City" means the City of Santa Ana, a charter city and municipal corporation.
"City Manager" means the City Manager, or his/her designee.
"Current Market Appraised Value" the current market appraised value means
the value of a foreclosed property that is established through an appraisal made in
conformity with the appraisal requirements of the Uniform Relocation Act (URA) 49
CFR 24.13 and completed within 60 days prior to the final offer made for the property.
"Deed of Trust" means the Deed of Trust with the Developer encumbering the
NSP Assisted Unit in the form attached hereto as Exhibit B.
"Developer" means Townsend & Raitt, LP.
"Eligible Property" shall mean a property that the City shall in its sole discretion
determines meets NSP Program Criteria.
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"Foreclosed" A property "has been foreclosed upon" at that point that, under state
or local law, the mortgage or tax foreclosure is complete and the title has been transferred
away from the former property owner. A property is not foreclosed until the title for the
property has been transferred from the former property owner under a foreclosure
proceeding or a transfer in lieu of foreclosure, in accordance with state or local law. A
Deed in Lieu of Foreclosure or property sold at auction can also be considered
"foreclosed".
"Hazardous Materials" means flammable materials, explosives, radioactive
materials, hazardous wastes, toxic substances and similar substances and materials,
including all substances and materials defined as hazardous or toxic wastes, substances or
materials under any applicable law, including without limitation the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et sec., and the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 6901, et
seq., as amended.
"Housing Rehabilitation Standards NSP funded activities will adhere to the
Housing Rehab Standards (attached hereto and incorporated herein as Exhibit C). This
standard exceeds the HUD Housing Quality Standards. The Standards shall correct
housing deficiencies and address items deemed essential for basic health, safety, and
welfare. All work shall meet the Uniform Building Code (UBC), Uniform Plumbing
Code (UPC), Uniform Mechanical Code (UMC), National Electric Code (NEC) as
amended periodically.
"HUD" means the United States Department of Housing and Urban Development
and any successors or assigns thereof.
"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).
"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 this Agreement as "Area Median Income" or "AMI".
"Neighborhood Stabilization Program" (NSP) has the meaning set forth in the
Recitals above.
"Neighborhood Stabilization Program (NSP) Regulations" has the meaning
set forth in the Recitals above.
"NSP Assisted Units" shall mean those rental units purchased and rehabilitated
on Eligible Properties which are subject to the term of affordability.
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"NSP Funds" shall mean the money provided under the NSP Program (NSP 2)
for the acquisition and rehabilitation of the Property hereunder.
"Promissory Note" means the Promissory Note executed by the Developer
encumbering the NSP Assisted Unit in the form attached hereto as Exhibit C.
"Target area" shall mean the map attached hereto and incorportated herein as
Exhibit A.
"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.
200. PROPERTY ACQUISITION
201. Selection of Properties by Developer. Developer shall with reasonable diligence seek
to identify proposed Eligible Properties which it determines may meet NSP Program Criteria.
The Developer shall provide the City with its Acquisition/Rehabilitation Bid Analysis on each
potential property to the City. Upon receipt of complete bid analysis, the City shall review said
within two (2) working days, subject to final approval after inspection by City rehabilitation staff
which shall occur within two (2) additional working days. The City will approve or reject
properties for purchase through the NSP Program. Developer shall negotiate the purchase of the
property with the current owner which must be consistent with NSP guidelines. Developer shall
take, insure and hold title to the property, and prepare a scope of work to be reviewed by the
City. The City anticipates mainly using NSP funds for acquisition, costs associated with
maintenance, sales and other related soft costs. The actual number of units to be acquired and
rehabilitated by Developer will be determined by the City in its sole discretion based in part on
the amount of NSP Funds awarded to Santa Ana.
202. Properties Provided by the National Community Stabilization Trust. The parties
shall also be working in conjunction with the National Community Stabilization Trust (NCST) to
identify potential eligible properties. Any properties purchased in collaboration with NCST must
comply with all NCST requirements and follow the NCST framework for acquisition of eligible
properties. Developer shall work with the City's identified acquisition agent, currently ANR
Homes, Inc., subject to future change.
203. Offer to Purchase. Any offers to purchase must include a contingency for appraisal
to be in compliance with NSP Regulations. Once appraisal is in compliance, then a final offer to
purchase maybe submitted.
204. Appraisals. The City issued a Request for Proposals (RFP) in order to establish a list
of qualified appraisers. The appraisers selected are experienced, qualified and meet the NSP
appraiser requirements. The City shall provide its approved list of appraisers to be used for all
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NSP activities to the Developer. Developer shall select and pay the appraiser directly as one of
its development costs.
205. Funding of Acquisition/Rehabilitation. City shall deposit into escrow, funds for
Developer as agreed upon during the Selection Phase. City shall record a lien, in the form of a
Deed of Trust, Affordability Covenants and Restrictions, and Promissory Note (attached hereto
and incorporated herein as Exhibits A , B, and C), against each of the selected properties equal to
the amount of money deposited into escrow for such Property.
206. 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 Rehabilitation.
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 rehabilitation. Developer agrees to cooperate fully and completely with
City in meeting the requirements of 24 CFR 92.253 and shall take all actions and measures
reasonably required by the City Manager in connection therewith. All applicable federal and
state guidelines must also be followed.
300. REHABILITATION REQUIREMENTS.
The following Rehabilitation Requirements shall apply to all NSP Assisted Units:
301. 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 rehabilitation of the Property.
302. Commencement and Completion of Rehabilitation. The Rehabilitation shall be
considered complete for purposes of this Agreement only when (a) all work described has been
completed and fully paid for, and (b) all work requiring inspection or certification by any
governmental authority has been completed and all requisite certificates, approvals and other
necessary authorizations (including required final certificates of occupancy) have been obtained.
303. Rehabilitation Standards. Residential Rehabilitation Standards (24 CFR 570):
Developer certifies that it will perform rehabilitation in conformance to the standards outlined in
the City's Residential Rehabilitation Standards ,which exceed the HUD Housing Quality
Standards and with strict adherence to state and local building codes, safety standards, protection
of historical integrity and for maximum achievement in the area of energy efficiency. Demolition
shall be conducted in cases of extreme deterioration, to eliminate illegal additions, and in concert
with local authorities.
304. Protection of Historical Structures (24 CFR Part 58/36CFR Part 800).
Developer will comply with and obtain approval of the Federal and State Historic
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Preservation Commission(s) when rehabilitation activities are planned on a structure that is listed
on the state historic registry, and will provide documentation of such approval to the City prior to
commencement of any rehabilitation activities on a property which is funded through this
program.
305. 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) and implementing
regulations at 24 CFR 35 for any housing project it undertakes pursuant to this Agreement. For
the activities outlined in this Agreement, Developer will be required to pay particular attention to
subpart J (Rehabilitation); subpart K (Acquisition, Leasing, Support Services or Operation) and
Subpart R (Methods and Standards for lead based paint hazard reduction activities).
306. Asbestos Abatement: The United States Environmental Protection Agency (EPA)
has defined asbestos containing materials (ACM) to be any substance containing more than one
percent (1%) or more asbestos by weight.
All ACM's must be abated prior to demolition or renovation/remodeling activities by a
Cal-OSHA licensed asbestos abatement contractor using methods in accordance with 8 CCR
1529 and SCAQMD Rule 1403. Asbestos abatement procedures should be monitored by a third
party or consultant knowledgeable in asbestos abatement procedures and is, at a minimum, either
a Cal-OSHA certified Site Surveillance Technician or Certified Asbestos Consultant.
The survey for ACMs shall be performed in conjunction with the survey for lead-based
paint. All suspect materials are sampled and tested in accordance with the general guidelines for
bulk asbestos sampling as presented in Section 40, Part 763 (AHERA) of the Code of Federal
Regulations (CFR) and the United States EPA.
307. Energy Efficient Products. Developer shall include energy efficient products in
the rehabilitation of the units. Such products include, but are not limited to, the following
features: low-flush toilets, insulation, high efficiency systems, and tankless water heaters. In
addition, yards will be landscaped with low-maintenance and drought tolerant plants.
308. Rehabilitation Act -Section 504 (As Applicable). Section 504 of the
Rehabilitation Act of 1973 prohibits discrimination in federally-assisted activities and programs
on the basis of handicap, and imposes requirements to ensure that qualified individuals with
handicaps have access to these programs and activities.
309. 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.
400. REHABILITATION COSTS PAID WITH NSP FUNDS.
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In those instances where Rehabilitation Costs will be paid with NSP Funds, the following
procedures shall be followed:
401. Rehabilitation Costs Paid with NSP Funds. It is the intent of the parties to use
NSP funds for acquisition and related soft costs. If there is a need to use NSP funds for
rehabilitation, this section will apply. In the event that NSP Funds will be used for construction
related expenses, Developer must also comply with the labor and Davis-Bacon regulations as set
forth in Section 703 hereof. The documents referenced in this Section 400 (Payment Request,
Release of Retention Funds, Notice of Completion) are attached hereto and incorporated herein
as Exhibit D.
402. Disbursement Requests. The Rehabilitation Portion proceeds shall be disbursed
on a line-item by line-item basis in accordance with the Rehabilitation Budget and subject to the
i urse an amount for
In no event shall Cit have an obli ation to d sb y
conditions m this section. y y g
any item in excess of the amount allocated to such item in the Rehabilitation 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 NSP Funds, Developer shall deliver to City
and to Bank a draw request ("Draw Request"), and all required supporting information as set
forth in this Agreement or as otherwise reasonably required by City or Bank in order to provide
information for evaluating the requested disbursement pursuant to customary construction
lending practices of institutional lenders in Southern California.
City and Bank shall notify the other and Developer of approval or disapproval of each Draw
Request within five (5) business days after receipt of the Draw Request, using the Bank's
"Disbursement/Change Order Approval Notice". City and Bank 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.
403. 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.
404. 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 Rehabilitation Budget exceeds the amount allocated to that line item in the
Rehabilitation Budget, (b) Rehabilitation Costs for any matters not covered by a specific line
item have been or will be incurred, or (c) the undisbursed portion of the Rehabilitation Portion is
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or may be insufficient to pay all Rehabilitation Costs that may be payable under this Agreement
or otherwise in connection with the Rehabilitation, Developer shall, within ten (10) days after it
receives written notice thereof from City of any of the foregoing matters, do one or more of the
following:
(a) provide satisfactory evidence to City that Developer has previously paid
such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost") with
funds from a source other than the NSP Funds;
(b) reallocate sufficient funds to pay the Excess Cost from funds
allocated to "Contingency" in the Rehabilitation Budget; provided, however, that the
City Manager's consent to any such reallocation shall be required; or
c de osit an amount e ual to the Excess Cost in anon-interest bearing
q
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account (the "Overrun Account") with City from which withdrawals may be made only with the
consent of the City Manager but which will be exhausted prior to any further disbursement for
any line item, so that any resulting surplus in any line item of the Rehabilitation Budget will then
be reallocated to the line item(s) in which the Excess Costs are expected to be incurred.
City shall have no obligation to make further disbursements until Developer has paid or
otherwise provided for the overrun as required above. Amounts deposited by Developer in the
Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of
any remaining Rehabilitation Portion proceeds.
405. Cost Savings. Upon completion of and disbursement for all matters covered by any
line items in the Rehabilitation 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.
406. 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.
407. 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 Manager) for "punch-list" items. Such holdback will be released when
all punch-list items have been completed to the satisfaction of City.
408. 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
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disbursement made, and such condition shall be condition to all further disbursements until
fulfilled.
409. Modification of Disbursement Conditions and Procedures. The City 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 Rehabilitation Contract.
410. Other Terms and Conditions of Grant hereunder.
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 three (3) 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.
411. 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.
500. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE
PROPERTY
501. Use Covenants and Restrictions. Developer agrees to make available, restrict
occupancy to, and rent each of the NSP Assisted Units to Extremely Low or Low Income
Households (as that term is herein defined) at an Affordable Rent.
A. Developer agrees and covenants, which covenants shall run with the land and bind Developer,
its successors, its assign and every successor in interest to the Property that Developer will make all
rental units on the Property available to extremely low and low income households at rents affordable
to such households for fifty-five (55) years from the effective date of this Agreement.
B. Reserved.
C. Tenancy and relocation shall be managed in accordance with NSP Regulations and
guidance.
D. Affordable rents shall be governed by California Health and Safety Code Sections 50052.5
and 50053(b)(1), and as provided in the NSP Regulations. Rental increases shall be in
conformance with federal and state law.
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E. Rents During Construction/Rehabilitation: Upon close of escrow, tenants will be notified
that leases will be modified to reflect a new rent structure per this Agreement, but in no event will it
be more than they are currently paying.
502. Affordable Gross Starting Rents (Less Reasonable Utility Allowance): Initial
rents maybe recalculated to allowable rental amounts at the time of initial lease-up following
completion of construction in accordance with any changes in allowable rent and income tables as
published by HUD and the State of California.
503. Rent Increases: On an annual basis, the City shall provide the Developer with the
maximum allowable schedule of rents for the Property. In no event can Developer charge any
tenant more than such amount.
504. 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 NSP regulations and guidelines. Every fifth (5th) year, Developer shall require new
original income documents to be submitted by tenants. Tenants in NSP assisted units
whose incomes no longer comply with federal income guidelines shall have their rents
adjusted in accordance with federal NSP guidelines.
b. NSP 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.
505. Obligation to Refrain from Discrimination. Developer covenants and agrees for
itself, its successors, its assigns and every successor in interest to the Property or any part thereof,
that there shall be no discrimination against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, 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.
506. 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
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unreasonably increase the risk of any damage to the Property or of any other impairment of
City's interests under the this Agreement. 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:
506.1 Alterations and Repair. Developer shall not remove, demolish or
materially alter any part of the Property 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.
507. 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.
508. Taxes and Impositions. Developer shall pay, prior to delinquency, all of the
following (collectively, the "Impositions"): (a) all general and special real property taxes and
assessments imposed on the Property; (b) all other taxes and assessments and charges of every
kind that are assessed upon the Property (or upon the owner and/or operator of the Property) and
that create or may create a lien upon the Property (or upon any personal property or fixtures used
in connection with the Property), including, without limitation, non-governmental levies and
assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees,
taxes and assessments imposed on City (other than City's income or franchise taxes) which are
measured by or based upon (in whole or in part) the amount of the obligations secured by the
Property. If permitted by law, Developer may pay any Imposition in installments (together with
any accrued interest).
508.1 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 interests under this
Agreement, 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).
508.2 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.
508.3 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.
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509. Project Operating Budget. Developer must promptly deposit all project income
directly into a segregated depository account established exclusively for the Project ("Project
Operating Account"). Withdrawals from this account may be made only in accordance with the
provisions of this Agreement and the approved 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.
510. Replacement Reserve Account. Developer must establish or cause to be
established a segregated interest-bearing replacement reserve depository account ("Replacement
Reserve Account") no later than sixty (60) days after the Notice of Completion is filed.
Developer must make monthly deposits from project income into the Replacement Reserve in
accordance with Developer's Budget, as amended from time to time. Developer may withdraw
funds from the Replacement Reserve Account solely to fund capital improvements for the
Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the
Project that are reasonably required to preserve the Project. Developer may not withdraw funds
from the Replacement Reserve Account for any other purpose without the prior written approval
of the City.
511. Environmental Matters
a. 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.
b. Compliance with Environmental Laws. Developer shall (a) comply with all
environmental laws and environmental permits applicable to the rehabilitation 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.
c. 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.
d. 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
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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.
e. Environmental Indemnification by the Developer. Developer agrees to defend,
indemnify and hold harmless the City and its officers, directors, employees and agents
(collectively the "lndemnitees from and against any and all obligations (including removal and
remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties,
damages (including consequential and punitive damages), costs and expenses (including
consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be
incurred by, imposed on, or asserted against the lndemnitees directly or indirectly based on, or
arising or resulting from the actual or alleged presence of Hazardous Materials on the Property.
600. DEVELOPER FEE AND PERFORMANCE.
601. Developer Fee. 8% of Project Cost per Developer's Proposal. The Developer Fee
is earned at the acquisition of the Property, but shall not be paid to Developer until the
rehabilitation of the Property is complete and the Property has 90% occupancy.
602. Performance Measures. Due to the legislative deadlines, performance
measurements will be monitored closely. The Developer's contract maybe cancelled and the
funds reallocated to other developers for failure to meet HUD deadlines.
603. Business License/Professional Licenses. Developer must obtain and maintain a
valid business license in order to perform services in the City of Santa Ana. Also, Developer
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. Developer 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.
604. 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
specific to this 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,
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and (iv) fairly present the results of Developer's operations. Developer shall also provide the
City with any other annual audit reports issued by other monitoring agencies.
605. 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.
606. Termite Inspection Report. Developer shall deliver a termite report pertaining to
the Property to the City every fifth (5`h) year beginning January 2016. i
700. GOVERNMENTAL REQUIREMENTS
701. Economic Opportunities for Low Income People. (24 CFR 570.487, Section 3 of
the Housing and Urban Development Act of 1968, 12 USC 1701u, as amended by Section 915 of
the Housing and Community Development Act of 1992). Developer certifies that it implements
a policy in accordance with Section 3 of the Housing and Urban Development Act of 1968 that
requires employment and other economic opportunities arising in connection with housing
rehabilitation, housing construction and other public construction projects shall, to the extent
feasible and consistent with existing federal, state and local laws and regulations, be given to low
and very low-income persons. Noncompliance with HUD's regulations in 24 CFR part 135 may
result in sanctions, termination of this contract for default, and debarment or suspension from
future HUD assisted contracts. To the extent applicable, the Developer shall comply and/or
cause compliance with Section 3 Clause requirements for the NSP. For example, when and if
Developer or its contractor(s)/subcontractor(s) hire(s) full time employees, Section 3 is
applicable and all disclosure and reporting requirements apply.
702. 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.
703. Conformance with Applicable Labor Law. If Section 401 applies, all laborers
and mechanics employed by the Developer and any subcontractor in the performance of the
construction work under this Agreement (if any) shall be paid wages at rates not less than the
prevailing wage as determined by the U.S. Department of Labor, under the Davis-Bacon Act.
The Developer further agrees to comply with the provisions of the Copeland Act and the
Contractor Work Hours and Safety Act. This paragraph does not apply to contracts which do not
exceed $2,000.
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704. Maintenance of Drug-Free Workplace. Developer shall certify that Developer
will provide adrug-free workplace in accordance with 24 CFR 84.13.
705. Books and Records. Developer shall maintain complete books of account and
other records, reports and information, as the City Manager may reasonably require, reflecting its
operations (in connection with any other businesses as well as with respect to the NSP Assisted
Units), 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, to
meet the record keeping and reporting requirements required of it in accordance with 24 CFR
92.508.
706. Equal Opportunity and Fair Housing. Developer shall carry out the
Rehabilitation 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 i
33435.
707. Conflict of lnterest. 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.
708. Program Income. When the City receives repayment from sales of the Properties,
such funds are "Program Income". Program Income received by the City will be used for NSP
activities. Program Income and reallocated funds identified for the rental component will be
added to the Agreement with Developer. Developer agrees to comply fully with all federal,
state, and local laws applicable to its operation whether or not referred to in this Agreement.
800. DEFAULTS, REMEDIES, TERMINATION
801. 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 parry in default, specifying
the default complained of by the injured party. Delay in giving such notice shall not constitute a
waiver of any default nor shall it change the time of default. The defaulting party must, within
thirty (30) days following service of said written notice, commence to cure, correct or remedy such
failure or delay and shall complete such cure, correction, or remedy with reasonable diligence.
Upon a default by Developer which is not cured within thirty (30) days following service of said
notice, unless such default cannot reasonably be cured within thirty (30) days, in which case
Developer shall have such additional time as reasonably necessary to complete such cure but no
more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of
written notice of termination to Developer.
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802. Default Remedies. Failure by either party to perform any action or covenant
required by this Agreement within the time periods provided herein following notice and failure
to cure as described hereafter, constitutes a "Default" under this Agreement. A party claiming a
Default shall give written notice of Default to the other party specifying the Default complained
o£ Except as otherwise expressly provided in this Agreement, the claimant shall not institute
any proceeding against any other party, and the other party shall not be in Default if such party
within thirty (30) days from receipt of such notice immediately, with due diligence, commences
to cure, correct or remedy such failure or delay and shall complete such cure, correction or
remedy with diligence.
803. Institution of Legal Actions. In addition to any other rights or remedies and
subject to the restriction otherwise set forth in this Agreement, either party may institute and
action at law or equity to seek specific performance of the terms of this Agreement, or 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. Such legal actions must be instituted in
the Courts of the County of Orange, State of California, or in the District of the United States
District Court in which such county is located.
804. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either
party of one or more of such right 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.
805. Inaction Not a Waiver of Default. Any failures or delays by either party 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, or deprive either such party 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.
806. Termination. This Agreement shall terminate on the earlier of: (a) expenditure of
all NSP funds; (b) failure to cure a material breach after notice and time to cure; (c) February 1,
2014; (d) the date ninety (90) days following receipt by Developer of written notice of
termination from the City; (e) upon mutual agreement of the parties, or (f) failure to meet
Performance Measures as set forth in Section 602.
900. GENERAL PROVISIONS
901. Relationship between the Parties. Both parties expressly acknowledge it is the
intention of the parties that this Agreement shall be a contract for services and shall not in
any way create any employer/employee relationship between the parties or any co-venture or
joint venture. Developer is an independent contractor who shall in no way be considered an
employee of the City. It is expressly acknowledged and agreed that Developer shall be
responsible for maintaining its own insurance as described in paragraph 906.
902. Notices. Any approval, disapproval, demand, document or other notice ("Notice")
which either party may desire to give to the other party under this Agreement must be in
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writing and may be given by any commercially acceptable means to the parry to whom the
Notice is directed at the address of the party as set forth below, or at any other address as that
party may later designate by Notice.
To City: City of Santa Ana -Housing Division
20 Civic Center Plaza, M-37
Santa Ana, California 92701
Attention: City Manager
To Developer:
Orange Housing Development Corporation
414 East Chapman Avenue
Orange, California 92866
Attn: Executive Director
With a copy to:
C&C Development Company, LLC
1110 E. Chapman Avenue, Suite 200
Orange, CA 92866
Any written notice, demand or communication shall be deemed received immediate if
delivered by hand and shall be deemed received on the third day from the date it is
postmarked if delivered by registered or certified mail.
903. Modification of Terms. The City Manager shall have the authority to make minor
modifications to the terms contained herein with the prior approval of the City Attorney's Office.
Any alteration, change or modification of or to this Agreement, in order to become effective,
shall be made in writing and in each instance signed on behalf of each party.
904. Limitation on Delegation. Inasmuch as this Agreement is intended to secure the
specialized services of Developer, Developer 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
developers or consultants retained by the City.
905. Exclusivity and Amendment. This Agreement represents the complete and
exclusive statement between the City and Developer, 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 Developer. 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 Developer nor the City. Each party to this
Agreement acknowledges that no representations, inducements, promises or agreements, orally
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or otherwise, have been made by any party, or anyone acting on behalf of any party, which are
not embodied herein.
906. Insurance Policies Required. While any obligation of Developer under this
Agreement 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 rehabilitation;
(b) prior to commencement and following completion of the
rehabilitation, fire and hazard "all risk" insurance covering 100% of the replacement cost of the
Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all
other risks normally covered by "all risk" coverage policies in the area where the Property is
located (including loss by flood if the Property is in an area designated as subject to the danger of
flood);
(c) upon commencement of the rehabilitation and at all
times prior to completion of the rehabilitation, permanent property replacement and liability
insurance policy 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 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 reasonable
required by City from time to time, and in no event less than $1,000,000; and
(f) any other insurance reasonably required by City.
This countersigned certificate shall name the City and its respective officers, agents, and
employees as an additionally insured party under the policy, and the certificates shall be
accompanied by a duly executed enforcement evidencing such additional insured status (the
City's preferred Additional Insured Endorsement is attached hereto as Exhibit E). The certificate
and endorsement by the insurance carrier shall contain a statement of obligation on the part of
the carrier to notify City of any material change, cancellation or termination of the coverage at
least thirty (30) days in advance of the effective date of any such material change, cancellation or
termination. Coverage provided hereunder by the Developer shall be primary insurance and not
be contributing with any insurance maintained by the City, and the policy shall contain such an
endorsement. 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
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of any rehabilitation work. 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.
906.1 City Attorney May Modify. The City Attorney may modify the type
and amounts of insurance required pursuant to this Section.
906.2 Claims and Proceedings. Developer shall give City immediate notice
of any material casualty to any portion of the Property, whether or not covered by insurance, and
of the initiation or threatened initiation of any proceeding for the condemnation or other taking
for public or quasi-public use of any portion of the Property (collectively, "Condemnation"), and
shall provide City with copies of all documents which pertain to any such casualty or
Condemnation. Developer shall take all action reasonably required by City in connection
therewith to protect the interests of Developer and/or City, and City shall be entitled (without
regard to the adequacy of its security) to participate in any action, claim, adjustment or
proceeding and to be represented therein by counsel of its choice. Developer shall not settle,
adjust, or compromise any claim, action, adjustment or proceeding without prior written
approval, which approval shall not be unreasonably withheld or delayed.
906.3 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.
906.4 Application of Casualty Insurance Proceeds. Any proceeds
collected (the "Proceeds") under any casualty insurance policy described in this Agreement shall
be disbursed to Developer as provided below, but only upon fulfillment of each of the following
conditions (the "Restoration Conditions") within ninety (90) days (unless extended by mutual
agreement of Developer and City) following the occurrence of the damage for which the
Proceeds are collected:
(a) Developer shall demonstrate to City's reasonable satisfaction that
the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b)) will
be adequate to repair the Improvements and to restore the fair market value of the Property,
within 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 rehabilitation contract in form and
content, and with a contractor, reasonably satisfactory to City.
(b) To the extent that the Proceeds are insufficient to accomplish the
restoration required above, Developer shall deliver to City 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
19
25K-55
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.
906.5 Method of Disbursement and Undisbursed Funds.
Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and
disbursed in accordance with then customary disbursement procedures and related provisions.
Any amounts remaining undisbursed following completion of such restoration shall be returned
to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other
amounts remaining shall either be paid to Developer or applied by City against any obligations to
City that are secured by a lien on the Property, as they elect in their sole and absolute discretion.
906.6 Failure to Satisfy Conditions. In the event that Developer fails tofulfill
the Restoration Conditions within one hundred twenty (120) 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.
906.7 Restoration. Nothing in this Article 19 shall be construed to excuse
Developer from repairing and restoring all damage to the Property, regardless of whether
insurance proceeds are available or sufficient.
906.8 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.
(a) 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 andlor restoration of the
Project.
20
25K-56
(b) Nothwithstanding the foregoing, during the tax credit compliance period for the
Project, as determined under Section 42 of the Internal Revenue Code, any condemnation
proceeds maybe used by the Developer for repair and/or restoration of the Project.
906.9 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 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.
The required certificates shall be furnished by the Developer at the time this Agreement is
executed. Certificates verifying such coverage has been extended to the City of Santa Ana must
be furnished to the City of Santa Ana City Attorney's Office (M-29), 20 Civic Center Plaza,
Santa Ana, CA 92701 prior to the commencement of work hereunder.
907. Builders Risk Insurance. The Developer shall be responsible to cover the
properties during the course of rehabilitation. It is recommended that such insurance provide
coverage on an all risk basis, including theft and vandalism, for accidental losses, damage or
destruction of the Property.
908. Right of Access. For purposes of assuring compliance with this Agreement,
representatives of the City shall have the right of access to the properties, without charges or
fees, at normal construction hours during the period of construction for the purposes of this
Agreement, including but not limited to, the inspection of the work being performed in
rehabilitating the improvements so long as City representatives comply with all safety rules. The
City (or its representatives) shall, except in emergency situations, notify the Developer prior to
exercising its right pursuant to this section.
909. Developer Indemnity.
Developer shall indemnify, defend and hold harmless City, its officers, agents, employees and
volunteers from and against any and all loss or damage, expenses, injuries, death to any person,
damage to real or personal property, claim, demand, suit, action, judgment, settlement,
reasonable attorney's fees, costs, or proceeding of any kind arising out of this Agreement,
implementation of this Agreement, the sale of the property by Developer, securing of financing,
design development drawings, engineering, construction, reconstruction, structural integrity of
the NSP Assisted Units, maintenance of the properties, operation, and subsequent sale of the
NSP Assisted Units, including but not limited to:
(a) the presence, release, use, generation, discharge, storage or disposal of any hazardous
materials, on, under, in or about, or the transportation of any such hazardous materials to
or from, the NSP Assisted Units;
21
25K-57
(b) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation,
permit, judgment or license relating to the use, generation, release, discharge, storage,
disposal or transportation of Hazardous Materials on, under, in or about, to or from, the
NSP Assisted Units;
(c) latent material defects in rehabilitation work;
(d) any construction defect;
(e) personal injury, including death, of the employees, agents, officers, and/or volunteers of
Developer, and/or any subcontractors, independent contractors, partners, and/or
subsidiaries;
(f) property damage claims of the employees, agents, officers, and/or volunteers of
Developer, and/or any subcontractors, independent contractors, partners, and/or
subsidiaries;
(g) delay in rehabilitation;
(h) personal injury, including death, of any third party; and
(i) property damage claims of any third party.
Developer's obligation to indemnify as set forth in this Agreement shall extend to loss or
damage, expenses, injuries, death to any person, damage to real or personal property, claim,
demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceedings of
any kind that, are discovered or accrue, either before or after the termination of this Agreement.
Notwithstanding the foregoing, Developer shall not be required to indemnify and hold harmless
the City for liability attributable to the active negligence or intentional misconduct of the City or
any of its boards, officers, employees, representatives or agents.
910. Attorney's Fees. In any action between the parties to interpret, enforce, reform,
modify, rescind, or otherwise in connection with any of the terms or provisions of this
Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive
relief, or any other relief to which it might be entitled, reasonable costs and expenses including,
without limitation, litigation costs and reasonable attorneys' fees.
911. Titles and Captions. Titles and captions are for convenience of reference only and
do not define, describe or limit the scope or the intent of this Agreement or of any of its terms.
Reference to section numbers are to sections in this Agreement, unless expressly stated
otherwise.
912. Interpretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words
"without limitation." This Agreement shall be interpreted as though prepared jointly by both
parties.
913. Severability. If any term, provision, condition or covenant of this Agreement or its
application to any party or circumstances shall be held, to any extent, invalid or unenforceable,
the remainder of this Agreement, or the application of the term, provision, condition or covenant
to persons or circumstances other than those as to whom or which it is held invalid or
22
25K-58
unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent
permitted by law.
914. Legal Advice. Each party represents and warrants to the other the following: they
have carefully read this Agreement, and in signing this Agreement, they do so with full
knowledge of any right which they may have; they have received independent legal advice from
their respective legal counsel as to the matters set forth in this Agreement, or have knowingly
chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have
freely signed this Agreement without any reliance upon any agreement, promise, statement or
representation by or on behalf of the other party, or their respective agents, employees, or
attorneys, except as specifically set forth in this Agreement, and without duress or coercion,
whether economic or otherwise.
915. 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 this Agreement 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.
916. Prior Agreements; Amendments; Consents. This Agreement (together with the
related documents) contains the entire agreement between the City and Developer with respect to
the NSP funds and the Property, and all prior negotiations, understandings and agreements are
superseded by this Agreement. No modification of any this Agreement (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.
917. Governing Law. All of the NSP 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. Assuming proper service
of process, Developer also waives any objection regarding personal or in rem jurisdiction or
venue.
918. Severability of Provisions. No provision of this Agreement that is held to be
unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of
this Agreement are hereby declared to be severable.
919. Conflicts. In the event of any conflict between the provisions of this Agreement
and those of any other NSP documents, 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.
23
25K-59
920. Time of the Essence. Time is of the essence under this Agreement and in the
performance of every term, covenant, and obligation contained herein.
921. 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.
922. 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.
923. Nonliability of City Officials and Employees. No member, official or employee
of City shall be personally liable to Developer, or any successor in interest, in the event of any
default or breach by City or for any amount which may become due to Developer or successor,
or on any obligation under the terms of this Agreement.
924. 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.
24
25K-60
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year
first stated above.
ATTEST: CITY OF SANTA ANA
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By: LISA E. STORCK '
Assistant City Attorney
DEVELOPER:
By: ORANGE HOUSING DEVELOPMENT CORPORATION
a California nonprofit public benefit corporation, its sole member
By:
Eunice Bobert, its Chief Executive Officer
C&C Development
a California limited liability company
By:
Todd R. Cottle, its member
By: Cottle Family Trust Dated 3/8/87,
By:
Barry A. Cottle, its Trustee
25
25K-61
25K-62
REQUEST FOR .
COUNCIL ACTION
~g
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
CONDITIONAL USE PERMIT NO. 2009-25 FORA ? As Amended
60-FOOT HIGH MONOPINE WIRELESS FACILITY ? Ordinance on 1S` Reading
? Ordinance on 2nd Reading
AT 2100 SOUTH FAIRVIEW STREET -SEQUOIA ? Implementing Resolution
DEPLOYMENT SERVICES, APPLICANT ? Set Public Hearing For
_j CONTINUED TO
I /r `,i
~ FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Receive and file the staff report approving Conditional Use Permit No. 2009-25 as conditioned.
PLANNING COMMISSION ACTION
On February 8, 2010, the Planning Commission adopted a resolution approving Conditional Use
Permit No. 2009-25 as conditioned by a vote of 4:0 (Gartner and Yrarrazaval absent) to allow the
construction of a 60-foot high monopine wireless facility for T-Mobile in the Light Industrial (M-1)
zoning district at 2100 South Fairview Street. The Planning Commission made no changes to the
recommended conditions of approval outlined in the attached staff report (Exhibit A).
FISCAL IMPACT
There is no fiscal impact associated with this action.
Jay revino
Exe ive Director
Planning & Building Agency
LDY: rb
Exhibit: A. Planning Commission Staff Report
31 A-1
i
31 A-2
REQUEST FOR
Y'
Planning Commission Action
'
PLANNING COMMISSION MEETING DATE: PLANNING COMMISSION SECRETARY
FEBRUARY 8, 2010 APPROVED
TITLE: ? As Recommended
PUBLIC HEARING -FILED BY SEQUOIA ? As Amended
DEPLOYMENT SERVICES FOR CONDITIONAL ? Set Public Hearing For
USE PERMIT N0.2009-25 FORA 60-FOOT DENIED
HIGH MONOPINE WIRELESS FACILITY ? Applicant's Request
AT 2100 SOUTH FAIRVIEW STREET ? Staff Recommendation
CONTINUED TO
Prepared by Larry D. Yenglin
a~..~
Executive Director Planning M Hager
RECOMMENDED ACTION
Adopt a resolution approving Conditional Use Permit No. 2009-25 as conditioned.
DISCUSSION
Reausst of Applicant
Sequoia Deployment Services, representing T-Mobile, is requesting approval of a conditional use
permit to allow the construction of a 60-foot high monopine at 2100 South Fairview Street.
Progerty Description
The property is located within the Light Industrial (M-1) zoning district and has a General Plan land
use designation of Industrial (IND) (Exhibit 1). The property is on the west side of Fairview, with the
west side all industrial uses and the east side a rnixture of single-family and multi-family residential
(Exhibit 2). The subject property is owned by Philip Edward and Marilyn Chalberg, and is the location
for Hydrabaths, Inc., and is approximately 3.64 acres in size, triangular in shape and improved with an
industrial building.
Project Description
T-Mobile is proposing to construct a 60-foot high wireless facility stealthed as a monopine. This
facility will provide increased cellular coverage and call capacity in this area. The branches will reach
a height of 65 feet to look like a natural tree. Equipment will be installed in a seven-foot high block
equipment enclosure at the base of the tree and will be surrounded by new landscaping in the form of
vines and shrubs (Exhibits 3 through 6). There are numerous trees already established in this area.
The proposed wireless facility will be for three arrays with four panel antennas on each side, for a total
of 12 panel antennas which will be camouflaged as a Canary Island Pine Tree or be located within the
base enclosure. The leased site is behind the industrial building next to the Santa Ana River. at the
other end of the property away from South Fairview Street.
EXHIBIT A
31 A-3
CUP No. 2009-25
February 8, 2010
Page 2
Analysis of the Issues
In July 1998, the City Council adopted an ordinance that regulates Wireless Communication facilities
throughout the City. Major wireless facilities are required to have a stealth design and be located on
a building or in an area that provides the greatest amount of visual screening. These antennas also
require the approval of a conditional use permit. A monopine design will provide the greatest stealth
for this facility in this area. The facility is located in an industrial area and is not near residential
uses. In addition, the structure will be designed to allow co-location by another provider. Further, all
wiring and conduit will be underground or hidden within the interior of the monopole.
The applicant has explored alternatives to this monopine, including providing a roof mounted facility
on the existing building and co-locating on another facility. The height of the building does not provide
the necessary height for transmission and there are no facilities close enough to provide the
necessary coverage and capacity that T-Mobile requires. The site currently has numerous mature
trees on this site, and the proposed monopine is located at the rear of the industrial building adjacent
to these trees. A facility designed as a monopine would provide the best stealth possible for this
location. This location is also optimum to provide the coverage necessary for existing and expanding
service. The proposed cellular antennas will provide a benefit to Santa Ana residents, businesses
and motorists who subscribe to T-Mobile by closing service gaps in the area. Equipment for the
facility will be located in a new enclosure at the base of this monopine and will be screened with a
block wall and additional landscaping. The proposed wireless facility complies with the City's
Wireless Communications Facility Ordinance and will provide needed service to this area of the City.
The project is consistent with the goals and objectives of the General Plan. Further, the project has
been designed to accommodate potential future users on this facility. Based upon the above analysis
and findings, staff recommends approval of Conditional Use Permit No. 2009-25 as conditioned.
CEQA Comaliance
This project was reviewed in accordance with the Guidelines for the California Environmental
Quality Act. The recommendation is exempt from further review pursuant to Section 15303. This
Class 3 exemption allows in-fill developments for the construction and location of limited numbers
of new, small facilities or structures. Categorical Exemption Environmental Review No. 2009-151
will be filed for this project.
L rry D. en in, ICP Vince Frego P
Associate Planner Principal Planner
LDY:jm
IdyVeports~CUP 20101cup09-25 T-Mobile 2100 S. Fairview.pC
31 A-4
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31 A-5
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RESOLUTION NO. 2010-03
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF SANTA ANA APPROVING CONDITIONAL
USE PERMIT NO. 2009-25 TO ALLOW THE
CONSTRUCTION OF A 60-FOOT HIGH MONOPINE AT
2100 SOUTH FAIRVIEW STREET
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. Conditional Use Permit No. 2009-25 came before the Planning
Commission of the City of Santa Ana for a duly noticed public hearing on
February 8, 2010.
B. Conditional Use Permit No. 2009-25 has been filed with the City of Santa
Ana seeking to allow the construction of a 60-foot high monopine at 2100
South Fairview Street.
C. Pursuant to Santa Ana Municipal Code Section 41-198.10, a Conditional
Use Permit is required for major wireless facilities.
D. Santa Ana Municipal Code Section 41-638 authorizes the Planning
Commission to grant a conditional use permit upon making certain
findings.
1. Will the proposed use provide a service or facility which will
contribute to the general well being of the neighborhood or the
community?
The proposed 60-foot tall cellular residents, businesses and
motorists who subscribe to T-Mobile services by reducing the
gaps in digital cellular service and providing additional calling
capacity for its users, especially for those users traveling
within the central sector of Santa Ana monopine will provide a
service to Santa Ana.
2. Will the proposed use under the circumstances of the particular case
be detrimental to the health, safety, or general welfare of persons
residing or working in the vicinity?
Resolution No. 2010-03
Page 1 of 6
31 A-11
Federal law exempts local jurisdictions from regulating health
related issues as these issues are covered under Federal
laws. However, the proposed facility will be in compliance
with both the Federal Communications Commission (FCC)
and Federal Aviation Administration (FAA) safety regulations
3. Will the proposed use adversely affect the present economic stability
or future economic development of properties surrounding the area?
The proposed monopine, in conjunction with the existing
landscaping, will be compatible with the surrounding area and
will not adversely affect the economic viability in the area.
The stealth appearance will be the major solution to
maintaining and increasing the economic stability for this
industrial area.
4. Will the proposed use comply with the regulations and conditions
specified in Chapter 41 for such use?
The cellular facility has been designed to comply with the
regulations and conditions identified in Chapter 41 of the
Santa Ana Municipal Code for a major wireless facility.
5. Will the proposed use adversely affect the General Plan or any
specific plan of the City?
The proposed monopine 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 Industrial (IND) General
Plan designation.
E. This project was reviewed in accordance with the Guidelines for the
California Environmental Quality Act. The recommendation is exempt
from further review pursuant to Section 15303. This Class 3 exemption
allows in-fill developments for the construction and location of limited
numbers of new, small facilities or structures. Categorical Exemption
Environmental Review No. 2009-151 will be filed for this project.
Section 2. The Planning Commission after conducting the public hearing hereby
approves Conditional Use Permit No. 2009-25 as conditioned in Exhibit "A" attached
hereto and incorporated herein. 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 February 8, 2010 and exhibits attached thereto; and the
public testimony, all of which are incorporated herein by this reference.
ADOPTED this 8t" day of February, 2010 by the following vote:
Resolution No. 2010-03
Page 2 of 6
31 A-12
AYES: Commissioners: Alderete, Betancourt, Leo, Turner (4)
NOES: Commissioners: None (0)
ABSENT: Commissioners: Gartner, Yrarrazaval (2)
ABSTENTIONS: Commissioners: None (0)
Christopher Leo
Chairman
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, Martha Ramirez, Planning Commission Secretary, do hereby attest to and certify the
attached Resolution No. 2010-03 to be the original resolution adopted by the Planning
Commi
sslon of the City of Santa Ana on February 8, 2010
Date:
Planning Commission Secretary
City of Santa Ana
Resolution No. 2010-03
Page 3 of 6
31 A-13
Conditions for Approval for Conditional Use Permit No 2009-25
Conditional Use Permit No. 2009-25 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 riot 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.
A. Planninp Division
1. The applicant must comply with all conditions and requirements of the
Development Review Committee for the development project (DP 2009-56).
2. 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.
3. The proposed monopine shall be constructed as per approved plans and
the existing landscaping shall be protected in place during the construction
period for the 60-foot monopine facility.
4. The proposed monopine shall be constructed per the following
specifications:
a. The monopine should have 3.1 branches per foot for full density
coverage with limited spacing between the branches; 70 percent of the
branches should be eight feet or longer.
b. Branch disbursement should be random so that longer branches and
shorter branches are intermingled to give a natural appearance.
c. Branches should exceed all antennas by a minimum of 12 inches.
d. Branches should start at 15 feet above the ground.
EXHIBIT "A"
Resolution No. 2010-03
Page 4 of 6
31A-14
e. There should be a minimum space of seven feet between the top of
the antenna and the top of the branches.
f. Branches should have an upward sweep similar to that of actual
Canary Island Pines.
g. Branch foliage color should be an olive green with some brown
"needles" to match an actual Canary Island Pine. A sample should be
submitted for approval prior to fabrication.
h. Full bark cladding with a custom color should be submitted for approval
prior to fabrication.
i. All antennas shall be covered with "pine antenna socks" that match the
approved foliage color.
j. All "stand-off mounts" and support pipe mounts shall be concealed
behind antennas and painted a darker shade or green (or black) with a
"flat" paint finish to reduce reflection and visibility of the mounting.
k. Include the tree specifications (selected manufacturers and models)
with photo simulations (also a site plan review requirement).
I. Show the location of the GPS antenna on all elevations.
m. Provide a "unistrut" detail for the utility cabinet; an "H-frame" is not
acceptable.
n. Provide a note on the plans stating "install underground utilities
sleeving for two carriers during construction of the structure". Shrouds
on the outside of the pole are not acceptable.
o. All exterior conduit and electrical meters shall be installed and
screened in one metal enclosure painted to match the structure.
5. The permit applicant recognizes that the frequencies used by the cellular
facility located at 2100 South Fairview Street are extremely close to the
frequencies used by the City of Santa Ana for Public Safety. This
proximity will require extraordinary "comprehensive advanced planning
and frequency coordination" engineering measures to prevent
interference, especially in the choice of frequencies and radio ancillary
hardware. This is encouraged in the "Best Practices Guide" published by
the Association of Public-Safety Communications Officials-International,
Incorporated (APCO), and as endorsed by the Federal Communications
Commission (FCC). Prior to the issuance of any permits to install the
facility, (permit applicant) shall meet in good faith to coordinate the use of
Resolution No. 2010-03
Page 5 of 6
31 A-15
frequencies and equipment with the Communications Division of the
Orange County Sheriff-Coroner Department to minimize, to the greatest
extent possible, any interference with the Public Safety 800 MHz
Countywide Coordinated Communications System (CCCS). Similar
consideration shall be given to any other existing or proposed wireless
communications facility that may be located on the subject property.
6. At all times, the permit applicant shall not prevent the City of Santa Ana
from having adequate spectrum capacity on the City's 800 MHz radio
frequency.
7. Before activating its facility, the permit applicant will submit to a post-
installation test to confirm that "advanced planning and frequency
coordination" of the facility was successful in not interfering with the City of
Santa Ana Public Safety radio equipment. This test will be conducted by
the Communications Division of the Orange County Sheriff-Coroner
Department or a Division-approved contractor at the expense of the
applicant. This post-installation testing process shall be repeated for
every proposed frequency addition and/or change to confirm the intent of
the "frequency planning" process has been met.
8. 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.
9. 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 a-mail
address of that person shall be provided to the City's designated
representative upon activation of the facility.
10. 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.
11. The permit applicant shall provide a coverage and cell site location map
for each existing and proposed facility in Santa Ana.
12. Locate all equipment and related appurtenances (appleton plug and
electric meter) on the inside of the existing equipment enclosure or inside
the building and underground all electrical power from the utility source
shown on the approved site plan.
13. Conditional Use Permit No. 2009-25 expires 10 years from the date of City
Council approval.
Resolution No. 2010-03
Page 6 of 6
31 A-16
REQUEST FOR
COUNCIL ACTION
~a
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
VARIANCE NO.2010-01 TO ALLOW THE INSTALLATION ? As Amended
? Ordinance on 15' Reading
OF A WALL SIGN THAT DOES NOT COMPLY ? ordinance on 2"d Reading
WITH THE HEIGHT AND LOCATION REQUIREMENTS OF ? Implementing Resolution
THE SIGN CODE AT 2890 NORTH MAIN STREET - ? Set Public Hearing For
MAINPLACE SHO INGTOWN, LLC, APPLICANT
CONTINUED TO
•rE - FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Receive and file the staff report approving Variance No. 2010-01 as conditioned.
PLANNING COMMISSION ACTION
~ On February 8, 2010, the Planning Commission adopted a resolution approving Variance No. 2010-
01 as conditioned by a vote of 4:0 (Gartner and Yrarrazaval absent} to allow the installation of a wall
sign for JCPenney that would vary from the height and location requirements of the City's sign code
at 2890 North Main Street located in the General Commercial (C2} zoning district. The Planning
Commission made no changes to the recommended conditions of approval outlined in the attached
staff report (Exhibit A).
FISCAL IMPACT
There is no fiscal impact associated with this action.
J ~ M Trevino
Executive Director
Planning & Building Agency
CR: rb
Exhibit: A. Planning Commission Staff Report
31 B-1
31 B-2
REQUEST FOR
Planning Commission Action
PLANNING COMMISSION MEETING DATE: PLANNING COMMISSION SECRETARY
FEBRUARY 8, 2010 APPROVED
TITLE: ? As Recommended
PUBLIC HEARING -FILED BY MAINPLACE ? As Amended
SHOPPINGTOWN, LLC FOR VARIANCE ? Set Public Hearing For
NO. 2010-01 TO ALLOW THE INSTALLATION DENIED
OF A WALL SIGN THAT DOES NOT COMPLY ? Applicant's Request
WITH THE HEIGHT AND LOCATION REQUIREMENTS ? Staff Recommendation
OF THE SIGN CODE AT 2890 NORTH MAIN STREET CONTINUED TO
Prepared by Carlos Rodriguez
Executive Director Planning Manager
RECOMMENDED ACTION
Adopt a resolution approving Variance No. 2010-01 as conditioned.
DISCUSSION
Request of Applicant
Gregg Berwin, on behalf of MainPlace Shoppingtown, LLC, is requesting approval of Variance No.
2010-01 in order to allow for the installation of a new wall sign for JCPenney that would vary from
the height and location requirements of the City's sign code at 2890 North Main Street.
Property Description
The project site consists of the existing Westfield MainPlace Shopping Mall, parking lots, and parking
structures on an approximately 53 acre site. The proposed signage is for the existing 142,500
square foot JCPenney which is a main anchor tenant. The parcel is located within the General
Commercial (C2) zoning district and has a General Plan land use designation of District Center
(DC). Surrounding land uses include commercial and the Garden Grove (SR-22) Freeway to the
north, commercial uses to the south, commercial and residential to the east, and the Santa Ana (I-
5) Freeway to the west (Exhibits 1 and 2).
Project Description
The applicant is proposing to construct a new 96 square foot (4-foot by 24-foot) individual channel
letter wall sign for the existing JCPenney store (Exhibit 3). JCPenney is located at the north end of
the mall, with the proposed sign to be located on the western elevation of the mall and outside of their
lease area. The new sign is of high quality design and will be illuminated. As proposed, the sign is
constructed of individual channel letters with white plexiglass faces and black trim caps and returns.
EXHIBIT A
31 B-3
Variance No. 2010-01
February 8, 2010
Page 2
The proposed sign will be mounted along the western elevation which is visible from the Santa Ana (I-
5) Freeway. Two existing signs are currently located along the west building elevation.
Analysis of the Issues
Section 41-863 of the Santa Ana Municipal Code (SAMC) regulates exterior wall signs. Section
41-863(a) requires signs to be located on an exterior wall of the leasable tenant space.
Additionally, Section 41-863(d)(1) states that no wall signs shall be placed higher than 20 feet.
Currently, JCPenney has three individual channel letter signs on the elevations of their retail
space. JCPenney is proposing to install an additions! sign along the west elevation which faces
the southern parking lots and the Santa Ana (I-5) Freeway. This proposed sign is located outside
of their lease area and along a wall section near the food court entrance. The sign will be located
between two similar existing wall signs that advertise other major mall tenants (Nordstrom and
Picture Show). The new wall sign will be installed near the top of the building wall at approximately
55 feet in height from the ground. Per the zoning code, the maximum allowed height for the wall
sign for this installation is 20 feet.
JCPenney is a large anchor tenant at the Westfield MainPlace Shopping Mall and occupies
approximately 143,000 square feet of floor area. As the store is located along the northern portion of
the site, the existing signage is not visible from the western section of Main Place Drive and the Santa
Ana (I-5) Freeway because of the location of two existing on-site parking structures. Additionally, the
Westfield MainPlace Shopping Mall is a large site and the buildings themselves are setback a large
distance from the streets and freeway. The new JCPenney wall sign will advertise the store's
presence at the Westfield MainPlace Shopping Mall and will help the tenant minimize the site and
parking structure impacts on their existing signs.
The existing mall is two stories in height, with the anchor stores at three stories. Although the sign is
proposed at 55 feet from the ground, it is located on the two story portion of the mall. The sign will
match the height, size, and color of two existing signs that are currently attached on the same wall
section. The proposed location does not immediately face any additional commercial or residential
properties and staff does not foresee any impacts to the surrounding properties. The sign will face
the parking lot and will not be a distraction to drivers circulating through the mall. Additionally, the
sign will be visible to drivers along the Santa Ana (I-5) Freeway but will not impact the freeway
because it will be an internally illuminated sign and will blend with the adjacent signage.
In summary, JCPenney is an anchor tenant that occupies a significant amount of square footage
within the mall. The existing signage for JCPenney is not viewable from the southern portion of the
mall and the additional sign will provide JCPenney with a stronger presence along the south and west
elevations. Although the sign will be visible from the Santa Ana (I-5) Freeway, the interior location
31 B-4
Variance No. 2010-01
February 8, 2010
Page 3
and placement of the sign will not be a distraction to drivers. Additionally, the new sign will not impact
the surrounding properties since the proposed location does not face any adjoining commercial or
residential properties. Policy 2.10 of the Land Use Element encourages development that is
harmonious in scale and character with the surrounding development. This section of Main Street is
a commercial corridor and Westfield MainPlace Shopping Mall is surrounded by commercial
properties and the Santa Ana (I-5) Freeway. The proposed sign is similar to signage at the mall and
on the surrounding commercial properties. Further, Policy 4.4 of the Land Use Element encourages
developments that promote the City's image as a regional activity center. The Westfield MainPlace
Shopping Mall is a regional activity center and sufficient signage for the anchor tenants will enhance
the mall's presence in the City and region. Therefore, staff recommends that the Planning
Commission approve Variance No. 2010-01 as conditioned.
CEQA Compliance
In accordance with the California Environmental Quality Act, the recommended action is exempt
from further review per Section 15301. This Class 1 exemption allows the permitting of signs for an
existing commercial development. Categorical Exemption Environmental Review No. 2009-149 will
be filed for this project.
L~ ~
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Carlos Rodriguez, AICP Vince Frego o, CP
Assistant Planner II Principal Planner
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31 B-13
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31 B-14
bk/2-3-10
RESOLUTION NO. 2010-04
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF SANTA ANA APPROVING VARIANCE NO.
2010-01 AS CONDITIONED TO ALLOW THE
INSTALLATION OF A NEW WALL SIGN FOR JC PENNEY
THAT DOES NOT COMPLY WITH THE HEIGHT AND
LOCATION REQUIREMENTS OF THE CITY'S SIGN CODE
AT 2890 NORTH MAIN STREET
BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA
AS FOLLOWS:
Section 1. The Planning Commission of the City of Santa Ana hereby finds,
determines and declares as follows:
A. Applicant is requesting approval of Variance No. 2010-01 to allow the
installation of a new wall sign for JC Penney that does not comply with the
height and location requirements of the City's sign code at 2890 North
Main Street.
B. Variance No. 2010-01 came before the Planning Commission of the City
of Santa Ana for a duly noticed public hearing on February 8, 2010.
C. Variance No. 2010-01 has been filed with the City of Santa Ana seeking to
allow the installation of a new wall sign for JC Penney that does not
comply with the height and location requirements of the City's sign code at
2890 North Main Street.
D. Santa Ana Municipal Code Section 41-863 regulates exterior wall signs.
Section 41-863(a) requires signs to be located on an exterior wall of the
leasable tenant space. Additionally, Section 41-863(d)(1) states that no
wall signs shall be placed higher than 20 feet.
E. Santa Ana Municipal Code Section 41-638 authorizes the Planning
Commission to grant a variance upon making certain findings.
1. That because of special circumstances applicable to the subject
property, including size, shape, topography, location or
surroundings, the strict application of the zoning ordinance is found
to deprive the subject property of privileges not otherwise at
variance with the intent and purpose of the provisions of this
chapter.
Resolution No. 2010-04
Page 1 of 5
31 B-15
Westfield MainPlace Shopping Mall is an existing regional mall
located in the center of an approximately 53 acre site. JC
Penney is one of the anchor tenants with 142,500 square feet
of area and is located at the northern end of the mall. Two
existing parking structures currently block the view of their
signs along the western elevation and a new wall sign is
proposed in a more visible location. The JC Penney sign will
match the existing signage that is currently located adjacent to
the proposed sign. The wall section is located within the
interior of the property and will not have any impacts to
surrounding property owners. Policy 4.4 of the Land Use
Element encourages developments that promote the City's
image as a regional activity center. The Westfield
MainPlace Shopping Mall is a regional activity center and
consistent, well designed signage for the tenants will
enhance the mall's presence in the City and region.
2. That the granting of a variance is necessary for the preservation
and enjoyment of one or more substantial property rights.
The granting of the variance allows the tenant to install a new
wall sign that identifies JC Penney's presence at Westfield
MainPlace Shopping Mall. The existing JC Penney signs
along the western elevation are not visible from Main Place
Drive and Santa Ana (I-5) Freeway because of the existing
mall parking structures. Two existing signs (Nordstrom and
Picture Show) are adjacent to the new JC Penney wall sign
and the sign will be similar in color and size. Additionally, the
site is immediately surrounded by primarily commercial
properties and the Santa Ana (I-5) Freeway. The new JC
Penney sign is similar to existing wall signs at the Westfield
MainPlace Shopping Mall as well as with signs located on the
surrounding commercial properties. Policy 2.10 of the Land
Use Element encourages development that is harmonious in
scale and character with the surrounding development.
3. That the granting of a variance will not be materially detrimental to
the public welfare or injurious to surrounding property.
The proposed signage will be one of many existing signs at
the Westfield MainPlace Shopping Mall. The size and design
of the new sign is consistent with the existing signs, especially
with those adjacent to the location. Additionally, since the sign
primarily faces the mall parking lot and the adjoining Santa
Resolution No. 2010-04
Page 2 of 5
31 B-16
Ana (I-5) Freeway, it will not have any impacts to the
surrounding commercial and residential buildings.
4. That the granting of a variance will not adversely affect the General
Plan of the City.
The granting of the variance will not adversely affect the City's
General Plan in any way as the land use designation of
General Commercial (GC) allows the existing commercial
development. The new sign will be consistent with the goals
and policies of the City's General Plan.
F. In accordance with the California Environmental Quality Act, the
recommended action is exempt from further review per Section 15301.
This Class 1 exemption allows the permitting of signs for an existing
commercial development. Categorical Exemption Environmental Review
No. 2009-149 will be filed for this project
Section 2. The Planning Commission after conducting the public hearing hereby
approves Variance No. 2010-01, as conditioned in Exhibit "A" attached hereto and
incorporated herein, to allow the installation of a new wall sign for JC Penney that does
not comply with the height and location requirements of the City's sign code. 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
February 8, 2010 and exhibits attached thereto and the public testimony, all of which
are incorporated herein by this reference.
ADOPTED this 8TH day of February , 2010 by the following vote:
AYES: Commissioners: Alderete, Betancourt, Leo, Turner (4)
NOES: Commissioners: None (0)
ABSENT: Commissioners: Gartner, Yrarrazaval (2)
ABSTENTIONS: Commissioners: None (0)
Christopher Leo
Chairman
Resolution No. 2010-04
Page3of5
31 B-17
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, Martha Ramirez, Planning Commission Secretary, do hereby attest to and certify the
attached Resolution No. 2010-04 to be the original resolution adopted by the Planning
Commission of the City of Santa Ana on February 8, 2010 .
Date:
Planning Commission Secretary
City of Santa Ana
Resolution No. 2010-04
Page 4 of 5
31 B-18
Conditions for Apuroval for Variance No 2010-01
Variance No. 2010-01 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 rior to
exercising the rights conferred by this variance.
The applicant must remain in compliance with all conditions listed below throughout the
life of the variance. Failure to comply with each and every condition may result in the
revocation of the variance.
A. Planninp Division
1. The project shall remain in compliance with Site Plan Review DP No. 2009-54.
2. Any amendment to this variance must be submitted to the Planning Division for
review. At this time, staff will determine if administrative relief is available or
the variance must be amended.
3. The proposed sign will be limited to the location and size indicated on the
applicant's plans (4 feet by 24 feet).
EXHIBIT A
Resolution No. 2010-04
Page5of5
31 B-19
PROOF OF SERVICE
(C.C.P. SECTION 1013(a), 2015.5)
STATE OF CALIFORNIA, COUNTY OF ORANGE
I am employed in the aforesaid county; I am over the age of eighteen and not a
party to the within action; my business address is 20 Civic Center Plaza, Ross Annex
Second Floor, Santa Ana, California 92701.
I served the fore oing document described as: Resolution No. 2010-04
(Variance No. 2010-01~ in this action by placing a true copy thereof enclosed in sealed
envelopes addressed as follows:
Gregg Berwin
Mainplace Shoppingtown LLC
11601 Wilshire Boulevard, Suite 1100
Los Angeles, CA 90025
[ ] I caused to be delivered by courier, such envelope by hand to the office of the
addressee(s).
[X] BY MAIL I am readily familiar with my employer's practice of collection and
processing correspondence for mailing. Under that practice it would be deposited with
U.S. Postal Service on that same day with postage thereon fully prepaid at Santa Ana,
California in the ordinary course of business. I am aware that on motion of the party
served, service is presumed invalid if postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.
[ ]The document was transmitted by facsimile transmission and was reported as
complete and without error.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
Executed on [date] at Santa Ana, California.
MARTHA RAMIREZ
31 B-20
REQUEST FOR
COUNCIL ACTION
~'4~.
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
MARCH 1, 2010
TITLE: APPROVED
? As Recommended
EXTENSION OF ENTITLEMENTS FOR ? As Amended
CONDITIONAL USE PERMIT N0.2006-12 ? Ordinance on 151 Reading
? Ordinance on 2"d Reading
AND MINOR EXCEPTION N0.2006-04 TO ? Implementing Resolution
ALLOW THE CONSTRUCTION OF A ? Set Public Hearing For
COMMUNITY SERVICE FACILITY FOR THE
YMCA OF ORANGE COUNTY AT 2100 WEST
ALTON AVENUE
CONTINUED TO
Q FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
1. Adopt a resolution approving the extension of the entitlement for Conditional Use Permit No.
2006-12.
2. Adopt a resolution approving the extension of the entitlement for Minor Exception No. 2006-04.
DISCUSSION
In January 2008, the City Council approved Conditional Use Permit No. 2006-12 and Minor Exception
No. 2006-04 to allow the construction of a 32,000 square foot, two-story community service facility for
the YMCA of Orange County at 2100 West Alton Avenue. The conditional use permit allowed the
YMCA to share parking with the Christ Our Savior Cathedral Parish that will be located immediately
east of the YMCA site (Exhibit 1). The project was approved as one of four components of the
Armstrong Ranch development, which also included new single-family residences by Shea Homes, a
public high school and a cathedral parish. Due to significant changes in the economy over the past two
years, the YMCA has delayed construction of the facility until additional funding was secured.
The YMCA has secured funds to proceed with the project in two phases. Phase 1 will consist of a
temporary office space, a speed soccer arena and two swimming pools. Phase 2, with a construction
date yet identified, will include the 32,000 square foot, two-story building. Entitlements for development
projects expire two years from the date of approval unless construction has commenced. Since
construction has yet to begin, the YMCA would like to maintain the entitlements for the conditional use
permit and minor exception and is requesting an extension. Section 41-647 of the Santa Ana Municipal
Code (SAMC) requires the City Council to approve any request for an extension of entitlements.
55A-1
Extension of Entitlements for
CUP No. 2006-12 & ME No. 2006-04
March 1, 2010
Page 2
The YMCA has already received approval for their precise grading plans and is close to obtaining a
building permit for their temporary office space. Further, the applicant has indicated that plans for the
remaining portions of the first phase (soccer arena and pools) will be submitted into building plan check
within the next 30 days. As permits will be obtained and construction will be commencing by summer
2010, staff recommends that the entitlements for the YMCA of Orange County be extended by a period
of one year.
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, this project is exempt from CEQA per
Section 15061 (b)(3). This determination has been made as it has been determined that the proposed
action will not cause a significant effect on the environment.
FISCAL IMPACT
There is no fiscal impact associated with this action.
Ja .Trevino
Executive Director
Planning and Building Agency
VF:rb
vflreports~cup06-128me06-4.time.cc
Exhibit: 1. Site Plan
55A-2
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bk.2/22/10
RESOLUTION NO. 2010-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA FOR THE EXTENSION OF ENTITLEMENTS
FOR CONDITIONAL USE PERMIT NO. 2006-12 AND
MINOR EXCEPTION NO. 2006-04 TO ALLOW THE
ESTABLISHMENT AND CONSTRUCTION OF A
COMMUNITY SERVICE FACILITY FOR THE YMCA OF
ORANGE COUNTY AT 2100 WEST ALTON AVENUE
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. In January 2008, the City Council approved Conditional Use Permit No. 2006-
12 and Minor Exception No. 2006-04 to allow the establishment and
construction of a 32,000 square foot, two-story facility for the YMCA of
Orange County at 2100 West Alton Avenue. The conditional use permit
allowed a community service facility use in the Specific Development No. 4
(SD-4) zoning district, also known as Armstrong Ranch, while the minor
exception allowed the YMCA to share parking with the Christ Our Savior
Cathedral Parish that will be located immediately east of the YMCA site.
B. Phase 1 of the project will consist of temporary office space, the speed soccer
arena and two swimming pools. Phase 2, with a construction date yet
identified, will include the 32,000 square foot, two-story building.
C. The project has been delayed according to the applicant due to the current
economic environment.
D. Pursuant to City of Santa Ana Municipal Code section 41-647, where
construction does not commence these types of entitlements expire after two
years unless the applicant applies for, and the City Council approves, an
extension.
E. In accordance with the California Environmental Quality Act, staff has
determined that this project is exempt from CEQA per Section 15061(b)(3),
because it has been determined that the proposed action will not cause a
significant effect on the environment.
Resolution No. 2010-XXX
55A-4 Page 1 of 2
Section 2. The following entitlements are hereby extended for a period of one (1)
year from the date of this Resolution:
A. Conditional Use Permit No. 2006-12, and
B. Minor Exception No. 2006-04.
This decision is based upon the evidence submitted, which includes but is not
limited to the Request for Council Action dated March 1, 2010 and exhibits attached
thereto, and any public testimony, all of which are incorporated herein by this reference.
Section 3. This Resolution shall take effect immediately upon its adoption by
the City Council, and the Clerk of the Council shall attest to and certify the vote adopting
this Resolution.
ADOPTED this day of , 2010.
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
Resolution No. 2010-XXX
Page 2 of 2 55A-5
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached
Resolution No. 2010-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
Resolution No. 2010-XXX
55A-6 Page 3 of 2