Loading...
HomeMy WebLinkAbout FULL PACKET_2010-07-19 MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA JULY 6, 2010 CLOSED SESSION MEETING CALLED TO ORDER CITY HALL 20 CIVIC CENTER PLAZA, 8TH FLOOR SANTA ANA, CA 5:40 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA ALVAREZ, Mayor Pro Tem (5:46 P•m-) P. DAVID BENAVIDES MICHELE MARTINEZ VINCENT F_ SARMIENTO SAL TINAJERO ABSENT: CARLOS BUSTAMANTE STAFF Present: CYNTHIA J. NELSON, Deputy City Manager for Development Services JOSEPH FLETCHER, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS -None CLOSED SESSION ITEMS 1A CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6 Agency Negotiators: Personnel Services Executive Director, Kathie Gonzalez Employee Organizations: Service Employees International Union (SEIU) Santa Ana Management Association Santa Ana Firemen's Benevolent Association CITY COUNCIL MINUTES 1 JULY 6, 2010 10A-1 Santa Ana Police Officer's Association Santa Ana Police Management Association Santa Ana Fire Management Association Confidential Association of Santa Ana ADJOURNED 5:48 P.M. CITY COUNCIL MINUTES 2 JULY 6, 2010 10A-2 REGULAR CITY COUNCIL MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 5:57 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA ALVAREZ, Mayor Pro Tem P. DAVID BENAVIDES MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO ABSENT: CARLOS BUSTAMANTE STAFF Present: CYNTHIA J. NELSON, Deputy City Manager for Development Services JOSEPH FLETCHER, City Attorney MARIA D. HUIZAR, Clerk of the Council PLEDGE OF ALLEGIANCE Mayor Pulido INVOCATION Melissa Rusler, Police Chaplain PRESENTATIONS EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to Bradley B. Sadler, Police Sergeant, Police Department for 20 Years of Service CITY TILE presented by MAYOR PULIDO to Larry Means for his service on the Personnel Board CERTIFICATES OF RECOGNITION presented by COUNCIL MEMBER BENAVIDES to Connect-to-Council members: Connie Hamilton, Ruby Woo, Allan Woo, Peter Katz, Joanne Peterson-McCall, Terry McCall, Eric Scandrett, Mayra Mejia, Arthur Sandoval, Illiana Welty and Adela Montanez for organizing the Urban Leadership Forum held on May 1 , 201 O. CITY COUNCIL MINUTES 3 JULY 6, 2070 10A-3 CERTIFICATES OF RECOGNITION presented by COUNCIL MEMBER SARMIENTO to the following committee members: Erika Sepulveda, Irving Alaniz, Steve McGuigan, Francine Harris, Betty Witted, Carmela Sandoval, Sandra Leon, Grace Oropeza, Nedra Hector, and Jennifer Patalsky, Relay Manager for coordinating the American Cancer Society Relay for Life event in Santa Ana held on May 22, 201 O. PROCLAMATION presented by COUNCIL MEMBER SARMIENTO recognizing June 15th as "Janitors for Justice Day" 'Councilmember Benavides left the meeting at 7:28 p.m. and did not return. EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to James P. Larsen, Firefighter, Fire Department for 25 Years of Service CLOSED SESSION REPORT -None PUBLIC COMMENT • Albert Castillo -reiterated comments made at the June 7th Council meeting; • Steve McGuigan -commented on recent American Independence Day celebration; provided update on Santa Ana Zoo matters: Case Reporter did publicity that has helped the Zoo, hosting a concert on July 18th, Zoofari event in August, and partnered with Discovery Science Center to provide summer camps; and • Grant Adler - received letter on weed abatement (commended on Public Hearing Item 75B. Staff instructed to work with Ms. Adler in identifying her concerns). CONSENT CALENDAR ITEMS MOT/ON: Approve staff recommendations with the following modifications on the Consent Calendar Items 10A through 25M: • Mayor Pro Tem Alvarez voted "No" on Item 19C. • Excused Councilmember Bustamante from City Council, Community Redevelopment Agency, and Housing Authority Agency meetings. • Councilmember Sarmiento pulled Item 19D for separate discussion. • Mayor Pulido pulled Item 25M for separate discussion. • Mayor Pulido abstained on Item 25J due to a campaign contribution. MOTION: Martinez SECOND: Alvarez VOTE: AYES: Alvarez, Martinez, Pulido, Sarmiento, Tinajero (5) NOES: None (O) CITY COUNCIL MINUTES 4 JULY 6, 2010 10A-4 ABSTAIN: None (O) ABSENT: Benavides, Bustamante (2) ADMINISTRATIVE MATTERS MINUTES 10A MINUTES OF THE CLOSED AND REGULAR MEETING OF JUNE 21, 201 O -Clerk of the Council Office MOT/ON: Approve Minutes. 10B MINUTES OF THE SPECIAL CLOSED MEETING OF JUNE 23, 2010 - Clerk of the Council Office MOT/ON: Approve Minutes. MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT -Nothing to report. 196 EXCUSED ABSENCES MOT/ON: Excuse Councilmember Bustamante. ~ ~ ~ ~i ~ II All I _ . ~ ~kI~N',k~ a ~"i ~~'tl~~~iGG~N~J~' ~ ~ ~ MOT/ON: 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. 'Mayor Pro Tem Alvarez voted "No" on item 19C. CITY COUNCIL MINUTES 5 JULY 6, 2010 10A-5 MOT/ON: Pursuant to Charter Section 908(a) direct the Board of Recreation and Parks to undertake a continuing effort to expand the City's cultural partnership with the Vietnamese-American Community in Santa Ana and Southern California, and request Commissioner Ken Nguyen, in his role as a Board Member, to head that effort as Ambassador to the Vietnamese-American Community on behalf of the Board and the City. MOTION: Tinajero SECOND: Sarmiento VOTE: AYES: Alvarez, Martinez, Pulido Sarmiento, Tinajero (5) NOES: None (O) ABSTAIN: None (O) ABSENT: Benavides, Bustamante (2) BUDGETARY MATTERS SPECIFICATIONS -PURCHASE OF EQUIPMENT AND SERVICES MOT/ON: Award in accordance with Request for Council Action. (Items 22A through 22H) 22A SPEC. NO. 10-022 - HP SERVERS & STORAGE -Finance 8. Management Services 1. Award a contract to GST, Inc., for the purchase of servers in an amount not exceed $37,100. 2. Award a contract to Nth Generation Computing, Inc., for the purchase of storage in an amount not exceed $40,100. 226 SPEC. NO. 10-025 - A MICRO-WAVE BASED NETWORK SYSTEM - Award a contract to Pacific Services in an amount not to exceed $40,200 - Finance & Management Services 22C SPEC. NO. 07-064 - TRAFFIC SIGNS AND RELATED HARDWARE - Renew a contract with Zumar Industries, Inc. fora one-year period in an annual amount not to exceed $65,000 (Public Works Agency) -Finance & Management Services CITY COUNCIL MINUTES 6 JULY 6, 2010 1OA-6 22D SPEC. NO. 07-071 -WATERWORKS FITTINGS AND MISCELLANEOUS SUPPLIES - Renew a contract with Ferguson Waterworks for aone-year period in an amount not to exceed $65,000 (Public Works Agency) - Finance & Management Services 22E SPEC. NO. 08-008 -WATER TREATMENT SALT - Renew a contract with Gallade Chemical Inc. fora one-year period in an annual amount not to exceed $45,000 (Public Works Agency) -Finance & Management Services 22F SPEC. NO 08-014 -JANITORIAL SUPPLIES -Renew contracts for aone- year period in a total annual aggregate amount not to exceed $85,000 with: Vendor Location Gales Supply Co. Los Angeles Kathco Products Commerce Waxie Sanitary Supply Santa Ana 22G SPEC. NOS. 09-001 & 09-035 - COLD WATER METERS - Renew a contract with Badger Meter, Inc. for aone-year period in an amount not to exceed $95,000 (Public Works Agency) -Finance & Management Services 22H SPEC. NO. 09-029 - ASPHALT CONCRETE MATERIALS - Renew a contract with Vulcan Materials Co. for a one-year period in an annual amount not to exceed $45,000 (Public Works Agency) - Finance & Management Services AGREEMENTS MOT/ON: 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. (Item 25A through 25L) 25A AGMT NO. 2010-108 -GOVERNMENT LIAISON SERVICES -Execute an amendment with Townsend Public Affairs in an amount not to exceed $50,000 -City Manager's Office 25B AGMT NO. 2010-109 -PREVENTIVE MAINTENANCE AND REPAIRS OF MECHANICAL AND HVAC SYSTEMS - Execute an amendment with ACCO Engineered Systems in an annual amount not to exceed $165,000 (Police Department) -Finance 8. Management Services CITY COUNCIL MINUTES 7 JULY 6, 20'10 10A-7 25C AGMT NO. 2010-110 - FIRE ALARM SYSTEMS MAINTENANCE AND TIME CLOCK SUPPLIES -Execute an amendment with Simplex Grinnell in an annual amount not to exceed $65,000 - Finance & Management Services 25D AGMT NO. 2010-111 - INSTALL FIBER OPTIC CABLE IN AUTO MALL DRIVE - Execute a Right of Entry and License Agreement with Santa Ana Properties, LLC, to grant a revocable encroachment permit -Public Works Agency 25E AGMT NO. 2010-112 - SEWER VIDEO INSPECTION SERVICES - Execute an amendment with Houston Harris PCS Inc., in an amount not to exceed $300,000 -Public Works Agency 25F ACQUISITION OF RIGHT- OF- WAY FOR THE AT-GRADE RAIL SAFETY ENHANCEMENT PROJECT (PROJECT 09-1745) - 1101 E. CHESTNUT AVENUE -Public Works Agency - AGMT NO. 2010-113 - COOPERATIVE AGREEMENT (C-8-0862) - Execute a Second Amendment with Orange County Transportation Authority (OCTA) -Public Works Agency - AGMT NO. 2010-114 - PURCHASE AGREEMENT -With Mark and Cindy Evans for the purchase of the property located at 1101 E. Chestnut Avenue in the amount of $1,405,550 -Public Works Agency 25G AGMT NO. 2010-115 - JOB TRAINING AT THE SANTA ANA WORK CENTER -Execute an amendment with Hispanic Business Consultants in the amount of $60,000 for a total agreement amount not to exceed $117,675 -Community Development Agency 25H AGMT NO. 2010-116 - DEVELOP COMMUNICATIONS PLANS AND TRAINING AND EXERCISE PLAN FOR SOUTHERN PLANNING AREA - Execute an agreement with GTSI Corporation in an amount not to exceed $2,134,762 (FY2009 IECGP Grant funds) -Police Department 251 AGMT NO. 2010-117 -ANIMAL LICENSE FEE COLLECTION PROGRAM - Execute a Third Amendment to the agreement with Civic Collections, Inc. in an amount not to exceed $100,000 -Police Department CITY COUNCIL MINUTES 8 JULY 6, 2010 1OA-8 "a i i *Mayor Pulido abstained on Item 25J due to a campaign contribution. 25K YOUTH PROGRAM OPERATOR AGREEMENTS PROGRAM YEAR 201 O- 1 1 -Community Development Agency 1. Authorize the City Manager and Clerk of the Council to execute agreements with the following Youth Program Operators for Program Year 2010-11 fora total of $1,080,025 for the period of July 1, 2010 through June 30, 2011, subject to non-substantive changes approved by the City Manager and City Attorney: a. AGMT NO. 2010-119 - Orange County Conservation Corps to provide tutoring, alternate secondary school services, work experience, occupational skills training, leadership development, supportive services, mentoring, job preparation, and placement assistance for twenty-three Out-of-School Youth in the amount of $285,124; b. AGMT NO. 2010-120 -Orange County Youth Commission to provide tutoring, work experience, mentoring, supportive services, and job preparation for ten In-School Youth and ten Out-of-School Youth in the amount of $141,828; c. AGMT NO. 2010-121 -Taller San Jose to provide work experience, occupational skills training, supportive services, counseling, job preparation, and placement to twenty Out-of-School" Youth in the amount of $168,759; d. AGMT NO. 2010-122 -Orange County Children's Therapeutic Arts Center to provide tutoring, work experience, occupational skills training, leadership development, supportive services, mentoring, counseling, and job preparation for twenty-three Out-of-School Youth in the amount of $180,000; e. AGMT NO. 2010-123 - Orangewood Children's Foundation to provide tutoring, mentoring, and job preparation for twenty Out-of- School Youth and four In-School Youth in the amount of $130,814; f. AGMT NO. 2010-124 - Santa Ana Unified School District/ROP to provide mentoring, work experience, and job preparation for thirty- five In-School Youth in the amount of $173,500; and 2. AGMT NO. 2010-125 -Authorize the City Manager and Clerk of the Council to execute the Memorandum of Understanding with the CITY COUNCIL MINUTES 9 JULY 6, 20'10 10A-9 Santa Ana W/O/R/K Center for the Youth Service Provider Navigator service to June 30, 2011, and increase the funding by $328,495. 25L SUMMER YOUTH PROGRAM -Community Development Agency 1. AGMT NO. 2010-126 -Execute an agreement with the Community Action Partnership of Orange County in the amount of $200,000. 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2010-168 - recognizing $200,000 Grant from Community Action Partnership of Orange County and appropriating the same to fund a summer youth program for 201 O. ~'~I~tINtl'~GG~"~~~pr~~i~k~4~~,~~'~~~~~d~~~ry'~~~„ak',~ ~,~~1.~f' . ~ . ~ ~~ip~.~""' ~V~Ih ~~gi~l!~IIf~+~~~~!~~'u' m ''!ice. '.ii iii MOT/ON: 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. AGMT NO. 2010-127 -With Consensus Inc. in an amount not to exceed $150,000 -Public Works Agency MOTION: Martinez SECOND: Alvarez VOTE: AYES: Alvarez, Martinez, Pulido Sarmiento, Tinajero (5) NOES: None (O) ABSTAIN: None (O) ABSENT: Benavides, Bustamante (2) "`END OF CONSENT CALENDAR" CITY COUNCIL MINUTES 10 JULY 6, 2010 10A-10 BUSINESS CALENDAR RESOLUTIONS 55A WORKFORCE INVESTMENT ACT TITLE ISUB-GRANT FOR PROGRAM YEAR 2010-2011 -Community Development Agency MOT/ON: Adopt a resolution. RESOLUTION NO. 2010-034 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL NECESSARY DOCUMENTS FOR THE WORKFORCE INVESTMENT ACT SUB-GRANT WITH THE STATE OF CALIFORNIA, WORKFORCE INVESTMENT DIVISION MOTION: Alvarez SECOND: Martinez VOTE: AYES: Alvarez, Martinez, Pulido Sarmiento, Tinajero (5) NOES: None (O) ABSTAIN: None (O) ABSENT: Benavides, Bustamante (2) 556 ESTABLISHING THE APPROPRIATION LIMIT OF THE CITY OF SANTA ANA FOR FY 20010-11 -Finance & Management Services MOT/ON: Adopt a resolution. RESOLUTION NO. 2010-035 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ESTABLISHING THE APPROPRIATION LIMIT OF THE CITY OF SANTA ANA FOR FISCAL YEAR 2010-2011 MOTION: Martinez SECOND: Alvarez VOTE: AYES: Alvarez, Martinez, Pulido Sarmiento, Tinajero (5) NOES: None (O) ABSTAIN: None (O) ABSENT: Benavides, Bustamante (2) CITY COUNCIL MINUTES 11 JULY 6, 2010 10A-11 PUBLIC HEARINGS 75A PUBLIC HEARING - RECOVERY OF UNCOLLECTED COSTS FOR ABATEMENT OF DANGEROUS AND ABANDONED BUILDINGS - Planning and Building Agency Legal notice published in the O.C. Reporter on June 25, 2010 and notices mailed on June 24, 201 O. Staff report presentation given by Jay Trevino, Executive Director of the Planning and Building Agency. The Mayor opened the Public Hearing; there were no written communication received or speakers on this matter. The Mayor closed the Hearing. MOT/ON: Adopt a resolution. RESOLUTION NO. 2010-036 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA OVERRULING OBJECTIONS TO AND CONFIRMING THE COSTS OF SECURING AND DEMOLITION OF VARIOUS STRUCTURES DECLARED TO BE PUBLIC NUISANCES; MAKING, CONFIRMING AND LEVYING ASSESSMENTS FOR SUCH COSTS; AND ORDERING SUCH COSTS TO BE RECORDED WITH THE ORANGE COUNTY RECORDER MOTION: Alvarez SECOND: Martinez VOTE: AYES: Alvarez, Martinez, Pulido Sarmiento, Tinajero (5) NOES: None (O) ABSTAIN: None (O) ABSENT: Benavides, Bustamante (2) 75B PUBLIC HEARING -WEED ABATEMENT PUBLIC NUISANCE REPORT FISCAL YEAR 2009-2010 -Public Works Agency Legal notice published in the O.C. Reporter on June 25, 2010 and notices mailed on June 24, 2010. Staff report presentation given by George Alvarez, Engineering Services Manager. CITY COUNCIL MINUTES 12 JULY 6, 2010 10A-12 The Mayor opened the Public Hearing; there were no written communication received; Grant Adler addressed the Council under Public Comments on this item. The Mayor closed the Hearing. MOTION: Adopt resolution as amended to remove APN 398-282-04 from the list of uncollected charges sent to the County of Orange Office of Auditor-Controller (if warranted by staff after review). RESOLUTION NO. 2010-037 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CONFIRMING THE COSTS OF WEED, RUBBISH AND GARBAGE ABATEMENT: MAKING, CONFIRMING AND LEVYING ASSESSMENTS FOR SUCH COSTS; AND ORDERING A COPY THEREOF TO BE FILED WITH THE COUNTY AUDITOR, ASSESSOR AND TAX COLLECTOR MOTION: Alvarez SECOND: Martinez VOTE: AYES: Alvarez, Martinez, Pulido Sarmiento, Tinajero (5) NOES: None (O) ABSTAIN: None (O) ABSENT: Benavides, Bustamante (2) 75C PUBLIC HEARING - REPORT ON WATER QUALITY RELATIVE TO PUBLIC HEALTH GOALS -Public Works Agency Legal notice published in the O.C. Reporter on June 25, 2010. Staff report presentation given by Ray Burk. Interim Water Resources Manager The Mayor opened the Public Hearing; there were no written communication received or speakers on this matter. The Mayor closed the Hearing. MOT/ON: Accept the report on Water Quality relative to Public Health Goa Is. MOTION: Martinez SECOND: Alvarez VOTE: AYES: Alvarez, Martinez, Pulido Sarmiento, Tinajero (5) NOES: None (O) CITY COUNCIL MINUTES 13 JULY 6, 2010 10A-13 ABSTAIN: None (O) ABSENT: Benavides, Bustamante (2) COUNCIL RECESSED TO THE COMMUNITY REDEVELOPMENT AGENCY AT 7:07 P.M. FOLLOWED BY THE HOUSING AUTHORITY MEETING AT 7:08 P.M. COUNCIL RECONVENED AT 7:08 P.M. WITH SAME MEMBERS PRESENT COMMENTS 90A CITY MANAGER'S COMMENTS Assistant City Manager for Development Services Cynthia J. Nelson asked Interim Fire Chief Dave Thomas for a recap on 4`" of July activity. Chief Thomas reported that holiday was fairly uneventful and only a few minor injuries reported. 90B CITY COUNCILMEMBER COMMENTS Councilmember Sarmiento: • Asked City Attorney for clarification on issues raised by Grand Jury. City Attorney Fletcher responded that Santa Ana Municipal Code requires a competitive bidding process for most contracts except for qualitative projects, in which case lowest bidder should not be only means of awarding contract; City Council has ultimate decision to award contract. City preparing Response Report to Grand Jury in which issues raised will be clarified. Opined that Grand Jury process flawed and reform should be recommended to Presiding Judge of the Superior Court. Councilmember Martinez: • Echoed Councilmember Sarmiento's sentiments on the Grand Jury Report; • Invited all to attend the Pacific Electric Bike Ride and Festival on Saturday, July 24`h from 10 a.m. to 2 p.m.; • Congratulated Class of 2010 high school and college graduates, especially Alex Flores whom she mentored; • Commended on achievements by Vietnamese community including tonight's recognition of Ken Nguyen and the annual Tet Festival; CITY COUNCIL MINUTES 14 JULY 6, 2010 10A-14 • Thanked Mayor Pro Tem Alvarez and Mayor Pulido for efforts in making Make-A-Wish dream of Michael Gallo a reality; and • Wished all a great summer. Councilmember Tinajero: • 4th of July holiday just celebrated, hope all enjoyed the holiday and grateful that fewer incidents reported; Fireworks sale is great opportunity to raise funds for the many organizations throughout our community; • Thanked Matt Leinart and Foundation for support of Pop Warner; and • Letter received from Country Villa regarding Hemlock Way wish to discuss with Planning and Building Agency Director Trevino. Mayor Pro Tem Alvarez: • Encouraged residents to review the City's Press Release issued shortly after the Grand Jury report was filed; • Welcomed Interim Fire Chief Thomas; • Detailed Make-A-Wish experience with Michael Gallo, heroic five-year old battling cancer whose wish was to be a superhero; and • Wished all a happy summer. Mayor Pulido: • Recounted Make-A-Wish granting experience of Michael Gallo; and • Adjourned meeting in memory of Joe Musil who was very active in the arts community. ADJOURNED - 7:24 P.M. -The next meeting of the City Council is scheduled for Monday, July 19, 2010 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Business Meeting in the City Council Chamber, 22 Civic Center Plaza, Santa Ana, CA In Memory of Joe Musil Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES 15 JULY 6, 2010 1OA-15 10A-16 REC2UEST FOR i ,k. COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED p As Recommended APPROPRIATION ADJUSTMENT p As Amended p Ordinance on 1" Reading ACCEPTING GMA FUNDS FOR p ordinance on z~ Reading TRAFFIC SIGNAL SYSTEM p Implementing Resolution UPGRADE PROJECT p Set Public Hearing For y/ J7 CONTINUED TO (.~"~--Z~K~~~~ir ~ FILE NUMBER ITY MANAGER RECOMMENDED ACTION Approve an appropriation adjustment accepting funds in the amount of $40,000 into the Measure M - Street Construction Fund (accounting unit 03217002-52330) and appropriating the funds to the Measure M -Street Construction Fund (accounting unit 03217660-66220, project no. 106712) for the Traffic Signal System Upgrade Phase V project. DISCUSSION The Traffic Signal System Upgrade Phase V project is one of eight projects to replace the City's outdated traffic signal system and controllers. The project is identified in Fiscal Year 09/10 with $312,000 in funding from the Measure M Program. Recently, the Growth Management Area # 5 Board has approved an additional $40,000 for this project. In order to recognize the additional funds in the current fiscal year, an appropriation adjustment is needed. The funds will be used for construction of the project. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action- FISCAL IMPACT Funds received in the total amount of $40,000 will be deposited into the Measure M - Street Construction fund (accounting unit 03217002-52330) and appropriated into the Measure M -Street Construction fund (accounting unit 03217660-66220, project no. 106712). APPROVED AS TO FUNDS AND ACCOUNTS: y r Raul Godinez II Francisco Gutierrez Executive Directo Executive Director Public Works Agency Finance & Management Services Agency 20A-1 20A-2 REQUEST FOR _ ` ; COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED APPROPRIATION ADJUSTMENT FOR THE O As Recommended INSTITUTE FOR MUSEUM AND LIBRARY O As Amended SERVICES GRANT ,LAURA BUSH 21ST O ordinance on ~s` Reading ~ Ordinance on 2"d Reading CENTURY LIBRARIAN PROGRAM TO O Implementing Resolution FUND THE SEEDS TO TREES PROGRAM O Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Approve an appropriation adjustment recognizing $626,767 in the Federal Grant-Direct revenue account (no.15311002 52000) and appropriating same to the Federal Grant-Direct expenditure account (no. 15311156 various). 2. Authorize the City Manager to take all actions necessary to accept the Federal Institute of Museum and Library Services (IMLS), Laura Bush 21St Century Opportunity Program grant in the amount of $626,767 to fund the Seeds to Trees program. DISCUSSION The Santa Ana Public Library was awarded a Federal Institute of Museum and Library Services (IMLS) grant in the amount of $626,767 as part of the agency's Laura Bush 21St Century Librarian Program. The grant will fund the three-year project, "Seeds to Trees: Growing the Librarians of Tomorrow from High Schoo/ Oip/oma to ML/S with the Santa Ana Pub/ic Library and Orange County Reforma'; which will provide Santa Ana teens and young adults with part-time employment and career development opportunities in the Library. The long term goal of the program is to offer these young people an opportunity to learn about libraries and the library profession and to pursue successful careers as librarians. In addition, the project will create a guide for future use that can serve as a teaching tool for libraries seeking to develop and train librarians who speak the languages and share the cultural backgrounds of their communities. The grant will pay the part-time salaries of approximately 30 staff per year to serve as library management interns, library clerks, and library pages. In addition, the grant will provide funding to support Reforma in creating semiannual career workshops for these employees and other interested students recruited by the library from local high schools. Reforma is a national organization for Hispanic library professionals that promotes career development and programs for Spanish-speaking library patrons. The grant will also provide tuition reimbursement for students in Library Science Masters programs, memberships in professional organizations, and travel to Reforma and American Library Association national events- The Library will use in-kind personnel costs to provide the required grant match. 20B-1 IMLS Grant Appropriation Adjustment July 19, 2010 Page 2 FISCAL IMPACT The appropriation adjustment will recognize $626,767 in grant funding from the Federal Institute for Museum and Library Services in the Federal Grant-Direct revenue account (no.15311002 52000) and appropriate same to the Federal Grant-Direct expenditure account (no. 15311156 various). APPROVED AS TO FUNDS AND ACCOUNTS: ~ f'C_ ! i~[~l'l~C~ \ i\ [ 1 ~T _ Ala J= ~ / Gerardo Mouet, Francisco Gutierrez, Executive Directo Executive Director Parks, Recreation and Finance and Management Services Agency Community Services Agency 20B-2 REQUEST FOR - -:::-~.u..y COUNCIL ACTION m CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED As Recommended APPROPRIATION ADJUSTMENT -AMENDMENT TO ~ As Amended THE AGREEMENT WITH COUNTY OF ORANGE FOR ~ ordinance on Reading ~ Ordinance on 2ntl Reading GREEN JOB CORPS GRANT ~ Implementing Resolution Set Public Hearing For ~ j ~ CONTINUED TO / ~~(i~~---~_ FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Approve an appropriation adjustment recognizing a $150,000 Grant from the County of Orange to provide a summer youth program for 201 O. 2. Authorize the City Manager and Clerk of the Council to execute an amendment to the Green Job Corps Agreement W7-GJC-10 between the County of Orange and the City of Santa Ana in the amount of $150,000, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On September 21 , 2009, the City Council approved an agreement between the County of Orange and the City of Santa Ana to provide training for a variety of green career training in eco-friendly industries to youth ages 16-24. Youth participate in work experience and community service activities tied to the greening of their community- Corps members received pre-employment, work maturity, and life skills workshops, and participate in specialized education programs on civic responsibility and environmental stewardship. The additional funds would be used for an expansion of the Green Job Corps program to include a stand-alone summer component. This component would offer paid work experience to approximately an additional 54 youth ages 16 through 24 during the summer. Youth will be able to work 40 hours per week for six weeks and will participate in work readiness workshops. 20C-1 AA -Amendment to Agreement with County of Orange July 19, 2010 Page 2 FISCAL IMPACT Upon approval of the appropriation adjustment, funds will be available in the Orange County Green Job Corps (account no. 12418739-various). APPROVED AS TO FUNDS AND ACCOUNTS: ~~~o~. ~ ~ Cy this J. Nel Francisco Gutierrez Deputy City Manager for Development Executive Director Services Finance 8~ Management Services Agency Community Development Agency CJ N/LAS/sb 20C-2 REQUEST FOR - 000NCtL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE APPROVED AMENDMENT TO THE AGREEMENT p As Recommended WITH CINDY KREBS CONSULTING, p As Amended INC., FOR GO LOCAL PROGRAM p ordinance on 2ntl Read'irng STEP 2 PROGRAM MANAGEMENT p Implementing Resolution (PROJECT NO. 092505) p Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANA ER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute an amendment to the agreement with Cindy Krebs Consulting, Inc., in the amount of $36,000, for a total contract amount of $324,000, to function as the City of Santa Ana's Program Transit Manager Consultant for the Go Local Program Step 2 technical analysis for the Santa Ana and Garden Grove modern streetcar project, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION On May 12, 2008, the OCTA Board allocated $5.9 million in Step 2 funding to Santa Ana for the modern streetcar transit concept for detailed planning, preliminary design, alternatives analysis, financial planning, and environmental work. Additionally, on March 23, 2009, the OCTA Board approved the City's funding request for $1.5 million to develop a concept Master Site Plan for the Santa Ana Regional Transportation Center (SARTC). On June 8, 2009, Council executed an agreement with Cindy Krebs Consulting, Inc., in the amount of $288,000, to function as the City of Santa Ana's Program Transit Manager Consultant (PTMC) to take the Go Local Transit Vision from concept to completion. On January 4, 2010, Council executed an agreement with Consensus Inc. to function as a public outreach consultant to update the public regarding Santa Ana's proposed development of a Fixed Guideway project and transit vision for the City. Further, on March 15, 2010, Council executed an agreement with the IBI Group to conduct the SARTC Master Plan study. The SARTC Master Plan envisions new station areas, additional parking, and improved bus, pedestrian, and bicycle access. The study also includes completion of preliminary engineering and environmental evaluation for the project. 25A-1 Amendment to Agreement with Cindy Krebs Consulting, Inc. July 19, 2010 Page 2 of 2 The PTMC has been working closely with City staff and other agencies, including Community Development, Planning and Building Agencies, OCTA, and consultant staff assigned to the Go Local Project. The PTMC's initial contract called for 20 hours a week to be allocated to the management of the project. However, due to the additional work being generated by the SARTC Master Plan study and public outreach campaign promoting the City's Go Local Transit Vision, the PTMC's contract needs to be amended to increase her hours from 20 to 25 hours per week. This will increase her monthly salary from $12,000 to $15,000. It is anticipated that the PTMC services will be required for a minimum of one more year; however, the agreement includes an option for services for one additional year. Cindy Krebs Consulting, Inc., has proven to be a very effective and qualified PTMC during the first year of her contract and staff highly recommends that the hours be increased from 20 to 25 hours per week to continue to bring the Go Local Transit Vision to fruition. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The Program Transit Manager Consultant's compensation will be a maximum of $15,000 per month. This position would be funded from the $5.9 million that the City received from OCTA for the Go Local Step 2 analysis. Funds are available in the OCTA Transitway Project (account unit, 0321 7661-66220, project no. 092505). APPROVED AS TO FUNDS AND ACCOUNTS: t~ncc~~ . a r ~ > 1~1r ~ F/~ Raul Godinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG/DB Exhibit 1: Amendment 25A-2 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on July 19, 2010, by and between Cindy Krebs Consulting, Inc., a California corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS: A. The parties entered into that certain Agreement, dated June 8, 2009, (hereinafter "said Agreement") by which Consultant has provided transit program management consulting services. B. Since the execution of said Agreement, the City has commenced both a public outreach program regarding the fixed guideway system and the City's transit vision, and preliminary planning and engineering for the expansion of the Santa Ana Regional Transportation Center. Consultant is working with the project consultants and staff to coordinate effort on these additional projects as part of Santa Ana's Go Local Transit Vision (the "Project"). C. In accordance with the terms and conditions of said Agreement, the parties wish to amend the scope of services and compensation terms, to increase the hours Consultant will be available to the City to provide consulting services in relation to the Project. 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. Section 1, SCOPE OF SERVICES, shall be amended to increase the minimum hours committed to the Project from twenty (20) hours per week to twenty-five (25) hours per week on a monthly basis. 2. Section 2, COMPENSATION, shall be amended to increase compensation by $36,000, to pay for the additional services at the rate of 5,000 per month. The total not to exceed amount shall be increased to $324,000. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. 25A-3 IN WITNESS WHEREOF, the parties hereto have executed this First 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: CINDY KREBS CONSULTING, INC. JOSEPH W.FLETCHER City Attorney sy: Laura Sheedy (NAME) Assistant City Attorney (Title) 25A-4 REQUEST FOR a COUNCIL ACTION ~ ' CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED ~ As Recommended AGREEMENT WITH WESLEY A. BOSCH O As Amended ~ Ordinance on Esc Reading FOR CONSULTING SERVICES O ordinance on 2ntl Reading ~ Implementing Resolution ~ Set Public Hearing For ~J CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached agreement with Wesley A. Bosch in the amount of $90,000 for a one-year term, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On May 18, 2009, the Santa Ana WORK Center released a Request for Qualifications for a career counselor to assist clients regarding career choices and goals. In addition, the counselor would also assist clients to resolve personal and/or family issues that may be intertering with reemployment and training goals. One proposal was received from Wesley A. Bosch. Mr. Bosch, a family and marriage counselor, has been providing counseling services for clients at the Santa Ana WORK Center for the past ten years. Staff recommends that the contract with Mr. Bosch be approved until June 30, 201 1 , to continue to provide this service to WORK Center clients. FISCAL IMPACT Funds are available in the One Stop program account (no. 12318751/62300), the One Stop Adult 10-11 account (no. 1 231 8753/691 45), and the One Stop Dislocated Worker 10-11 account (no. 1 231 8754/691 45). APPROVED AS TO F-U~NDS AND ACCOUNTS: Cyn is J. Nelso Francisco Gutierrez Deputy City Manager for Executive Director Development Services Finance & Management Services Agency Community Development Agency CJ N/CR/sv 25B-1 25B-2 AGREEMENT WITH WESLEY A. BOSCH, M.A. UNDER THE WORKFORCE INVESTMENT ACT THIS AGREEMENT, made and entered into this 1st day of July, 2010, by and between Wesley A. Bosch, M.A., hereinafter referred to as "CONSULTANT", 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 referred to as "CITY". W-I-T-N-E-S-S-E-T-H Recitals: A. CITY has been designated a Local Workforce Investment Area (LWIA) under the Workforce Investment Act of 1998, Public Law 1 OS-220 ("the Act"). B. The State of California has created the LWIA to administer the Act programs operated by the State of California pursuant to the Act. C. As a LWIA, CITY is entitled to receive federal funds to establish programs to prepare economically disadvantaged adults and youth for entry into the labor mazket and to provide job training to those individuals who are economically disadvantaged or otherwise face serious barriers in obtaining productive employment. One goal of California's Workforce Investment System is to provide individuals with the opportunities to achieve career goals that will allow them to successfully compete in the labor market and prepare them for higher education. D. CONSULTANT is experienced in operating education, training and employment programs for economically disadvantaged adults and youth for entry into the labor market ("said program"). E. CONSULTANT is willing to operate said program pursuant to the Act and California law. WHEREFORE, for and in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereto do hereby agree as follows: 1. TIME PERIOD OF AGREEMENT This Agreement shall commence as of July 1, 2010 and all services to be performed pursuant to this Agreement shall be completed on or before June 30, 201 1. The term of this Agreement may be extended by a writing executed by the Deputy City Manager for Development Services and the City Attorney. 1 25B-3 2. INDEPENDENT CONTRACTOR CONSULTANT agrees that CONSULTANT is an independent contractor and not an employee of CITY and all of CONSULTANT'S personnel shall be employees of CONSULTANT and not employees of the CITY. CONSULTANT shall pay all salaries and wages, employer's Social Security taxes, unemployment insurance and wages, and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. CONSULTANT shall not subcontract any of the services required hereunder without the prior written approval of the CITY. 3. SCOPE OF SERVICES For and in consideration of the hereinafter stated payment by CITY to CONSULTANT, CONSULTANT agrees to perform, at its own cost and expense except for the compensation specified in this Agreement, the services specified in the scope of work attached hereto and incorporated herein as Exhibit A to this Agreement. 4. CONSULTANT OBLIGATIONS A. CONSULTANT agrees to maintain such records and submit such reports, data and information, on the form and containing such information, at such times as CITY may request or require regarding the performance of CONSULTANT'S services or activities, costs or other data, including but not limited to, participants' attendance, payroll records and job duty statements. B. CITY, the State of California and the United States government and/or their representatives shall have access for purposes of monitoring, auditing and examining of CONSULTANT'S activities, performance, books, documents, papers, and records of CONSULTANT, subcontractors, bookkeepers and accountants, and employees and participants related to this Agreement. Such agencies or representatives shall also schedule on-site monitoring in their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants and entering any premises or onto any site in which any of the services or activities funded hereunder are conducted or in which any of the records of CONSULTANT are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. In the event CONSULTANT does not make the above-referenced documents available within the City of Santa Ana, California, CONSULTANT agrees to pay all necessary and reasonable expenses incurred by CITY in conducting any audit at the location where said records and books of account are maintained. All accounting records and evidence pertaining to all costs of CONSULTANT and all documents related to this Agreement shall be kept available at CONSULTANT'S office or place of business for the duration of this Agreement and thereafter for three (3) years after completion of an audit. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which CITY, the State of California or the 2 25B-4 United States Government take exception, shall be retained beyond the three (3) years until resolution of disposition of such appeals, litigation, claims, or exceptions. C. Without prejudice to any other section of this Agreement, CONSULTANT shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. Notwithstanding the foregoing, CONSULTANT agrees to submit to CITY, the State of California and/or the United States Government or their representatives, all records requested for administrative purposes, including audits, examinations, monitoring and verification of records submitted by CONSULTANT, costs incurred and services rendered hereunder. D. CONSULTANT agrees to expend all funds in accordance with all applicable federal, state and local laws and regulations. CONSULTANT also agrees to provide at CONSULTANT'S own expense supplies and other costs of said PROGRAM. E. CONSULTANT shall comply with the provisions of 48 CFR, Chapter 1, Parts 1-31.2, for commercial organizations and all other applicable federal statutes and executive orders and their implementing regulations. F. CONSULTANT shall comply with the provisions of E.O. 12549 and 12689, requiring compliance with the debarment and suspension requirements contained in 29 CFR Part 98. G. CONSULTANT shall comply with the requirements of federal regulations found at 29 CFR 93 which provide that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, member of Congress or an officer or employee of a member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. CONSULTANT shall sign a certification to that effect in a form as set forth in "Exhibit B," attached hereto and by this reference incorporated herein. CONSULTANT shall submit said signed certification to CITY prior to performing any of its obligations under this Agreement and prior to any obligation arising on the part of CITY to pay any sums to CONSULTANT under the terms and conditions of this Agreement. H. CONSULTANT agrees to provide a drug-free work place and to execute a certification as set forth in "Exhibit C" attached hereto and incorporated herein by this reference. I. CONSULTANT, in accordance with the Child Support Compliance Act, recognizes and acknowledges the importance of child and family support obligations and shall fully comply with all state and federal laws relating to child and family support enforcement, including, but not limited to: disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the state Family Code; and, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Employee Registry maintained by the California Employment Development Department (EDD). 3 25B-5 5. APPLICABLE GUIDELINES A. The parties hereto agree that CONSULTANT shall comply with all applicable federal and state laws and regulations, including but not limited to the U.S. Department of Labor guidelines and regulations, including amendments or revisions made during the terms of this Agreement. Said applicable laws are hereby incorporated by reference and made as part of this Agreement as though fully set forth herein. B. CONSULTANT also assures and certifies that: 1. CONSULTANT shall comply with any and all federal laws limiting the political activity of employees hired under this Agreement. 2. CONSULTANT shall provide the U.S. Department of Labor and the Controller General, by and through any authorized representative, as well as the Santa Ana Local Workforce Investment Area's Board, access to and the right to examine all records, books, papers or documents relating to the accounting and use of funds under this Agreement for athree-year period from and after the effective date of this Agreement. 3. No person with responsibilities in the operation of any program under the Workforce Investment Act grant shall discriminate with respect to any program participant or any application for participation in such program because of race, creed, color, national origin, sex, political affiliation or beliefs. 4. CONSULTANT shall maintain appropriate standards for health and safety in work and transportation situations. 5. CONSULTANT shall comply with general provisions, assurances, and certifications attached hereto as "Exhibit D" and incorporated herein. 6. Any literature distributed by CONSULTANT for the purpose of apprising businesses, participants, or the general public of its programs under this Agreement shall state that its programs are supported by the City of Santa Ana and the Santa Ana Workforce Investment Board, and shall state that the program is an "equal opportunity employer/program" and that "auxiliary aids and services are available upon request to individuals with disabilities." 7. CONSULTANT certifies that all property, finished or unFnished documents, data, studies and reports prepared or purchased by the CONSULTANT under this Agreement, will be disposed of in accordance with the direction of the CITY. In addition, any tools and/or equipment furnished to the CONSULTANT by the CITY and/or purchased by the CONSULTANT with funds pursuant to this Agreement, will be limited to use within the activities outlined in this agreement and will remain the property of the United States Government and/or CITY. Upon termination of this Agreement, CONSULTANT will immediately return such tools and/or equipment to the CITY or dispose of them in accordance with the direction of the CITY. 4 25B-6 8. CONSULTANT certifies that this Agreement does not provide for the advancement or aid to any religious sect, church or creed, or sectarian purpose nor does it help to support or sustain any school, college, university, hospital or other institution controlled by any religious creed, church, or sectarian denomination, as specified by Article XVI, Section 5, of the Constitution of the State of California, regarding separation of church and state. 9. If the grant hereunder exceeds $100,000, CONSULTANT shall be in compliance with Section 306 of the Clean Air Act [(42 USC 1875(h)]; Section 508 of the Clean Water Act (33 USC 1368); Executive Order 1 1738 and Environmental Protection Agency ("EPA") regulations (40 CFR Part 1 5) as any may now exist or be hereafter amended. Under these laws and regulations, the CONSULTANT assures that: (a) No facility to be utilized in the performance of the proposed grant has been listed on the EPA List of Violating Facilities; (b) It will notify CITY prior to award of the receipt of any communication from the Director, Office of Federal Activities, U.S. EPA, indicating that a facility to be utilized for the grant is under consideration to be listed on the EPA List of Violating Facilities; (c) It will notify the CITY and the EPA about any known violation of the above laws and regulations. 10. CONSULTANT may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. The Federal awarding agency(ies) reserve aroyalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so. 1 1. CONSULTANT is subject to applicable regulations governing patents and inventions, including government-wide regulations issued by the Department of Commerce at 37 CFR part 401 , "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements." 12. Based on the population eligible to be served, or likely to be directly affected by the WIA program or activity, the services or information may need to be provided in a language other than English in order to allow such population to be effectively informed about or able to participate in the program or activity. Pursuant to 29 CFR 37.35, the CONSULTANT must take reasonable steps to provide services and information in appropriate languages after considering the scope of the program or activity, and the size and concentration of the population that needs services or information in a language other than English. 6. COMPENSATION CITY agrees to pay, and CONSULTANT agrees to accept for said services, total compensation in the amount not to exceed Ninety Thousand Dollars ($90,000.00). CONSULTANT will submit a detailed invoice evidencing services performed. Final payment by the CITY shall be within 30 days following receipt of said invoice, subject to CITY accounting procedures. 5 25B-7 CONSULTANT acknowledges that approval of and funding for this Agreement is contingent upon State approval, and funds received or obligated from the State of California to CITY. If such approval of funds is not forthcoming, or is otherwise limited, CITY shall immediately notify CONSULTANT. Within twenty (20) days of receipt of such notice, CONTRACTOR shall modify or cease operations as directed by CITY and negotiate necessary modification to this Agreement and/or reimbursement of costs incurred hereunder. 7. MISCELLANEOUS PROVISIONS A. CONSULTANT covenants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of services required hereunder. B. CONSULTANT certifies that it will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex or age, in compliance with Title VII of the Civil Rights Act of 1964 (P.L. 83-354) and Government Code 12900, et seq. 8. HOLD HARMLESS CLAUSE CONSULTANT agrees to indemnify, defend and hold harmless CITY, its officers, agents, employees, and volunteers from and against any and all loss or damage, and from any and all suits, actions and claims filed or brought by any person or persons arising out acts or omissions of CONSULTANT or of any approved subcontractor or of the officers, agents, employees of CONSULTANT or of its subcontractors in the performance of this Agreement. 9. INSURANCE CONSULTANT shall obtain and maintain for the entire term of this Agreement comprehensive professional public liability insurance, in companies acceptable to the City, authorized to issue such insurance in the State of California. Said insurance shall consist of the following: a. Professional Liability Insurance. CONSULTANT agrees to obtain and keep in force during the term of this Agreement a policy of professional public liability insurance insuring the CITY and CONSULTANT against any liability for accident, injury or death arising out of or related to this Agreement. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in any single accident or occurrence. Said policy of professional liability insurance shall be endorsed to provide to CITY at least thirty (30) days written notice prior to cancellation. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, CONSULTANT, if CONSULTANT has any employees, is required to be insured against 6 25B-8 liability for worker's compensation or to undertake self-insurance. CONSULTANT agrees to comply with such provisions before commencing the performance of the work under this Agreement. c. The following requirements apply to the insurance to be provided by CONSULTANT pursuant to paragraph a., above: 1. A certificate of insurance, to be approved in form by the City Attorney, shall be furnished to the City within 30 days of the execution of this Agreement. 2. 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. 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 affect CONSULTANT'S right to be paid for its time and materials expended prior to notification of termination. 10. TERMINATION This Agreement may be terminated by either party at its sole discretion, upon thirty (30) days written notice to the other party. Notice shall be deemed served on the date of mailing. However, CONSULTANT may not terminate this Agreement if undue hardship will result to any participant. 11. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning any question arising under this Agreement shall be decided by CITY. In such a case CITY shall reduce its decision to writing and mail or otherwise furnish a copy thereof to CONSULTANT. The decision of the CITY shall be final and conclusive unless within thirty (30) calendar days from the mailing or delivery of such copy, CITY receives from CONSULTANT written request to appeal said decision. Procedures governing the appeal shall be prescribed by CITY and/or the State of California in accordance with the Act and all corresponding regulations and OMB circulars. Pending final disposition of the appeal, CONSULTANT shall act in accordance with CITY'S decision unless the dispute involves a change order. 12. BREACH -SANCTIONS If, through any cause, CONSULTANT violates any of the terms and conditions of this Agreement, and/or prior agreements whereby grant funds were received by CONSULTANT pursuant to this Agreement, or if CONSULTANT reports inaccurately or if any Audit Report makes disallowances, 7 25B-9 CONSULTANT shall promptly remedy its acts or omissions and/or repay CITY all amounts due CITY as a result of CONSULTANT'S violation. For any such failures or violations, CITY shall also have the right at its sole discretion to either: (1) discontinue program support until such time as CONSULTANT fulfills its obligations or remedies all violations of this agreement or prior agreements; and/or (2) collect outstanding amounts as determined by CITY due CITY by offsetting or debiting from current claims or invoices, if after thirty (30) days' written notice CONSULTANT has failed to repay same or a repayment schedule has not been made; and/or (3) terminate this Agreement by giving written notice to CONSULTANT of such termination in accordance the notice provision contained below. 13. NOTICES All notices, reports and correspondence between the parties hereto respecting this Agreement shall be in writing and deposited in the United States Mail, postage prepaid, addressed as follows: To CITY: Clerk of the 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 copy to: Santa Ana Work Center 1000 E. Santa Ana Blvd., #200 Santa Ana, CA 92701 Telefacsimile (714) 565-2602 To CONSULTANT: Wesley A. Bosch 24001 Muirlands Blvd., #331 Lake Forest, CA 92630 Telefacsimile (714) 565-2602 s 25B-10 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: CONSULTANT: Joseph W. Fletcher City Attorney By: Lisa Storck Wesley A. Bosch, M.A. Assistant City Attorney Tax ID#/SS#: RECOMMENDED FOR APPROVAL: Cynthia J. Nelson Deputy City Manager for Development Services 9 25B-11 WESLEY A. BOSCH, M.A., M.F.T. 24007 Muirlands Blvd., #331 Lake Forest, CA 92630-7 77 7 (949) 829-077 9 (714) 565-2648 wboschOlC~sbcalobal.net or wboschCo?santa-ana.ora June 16, 201 O Linda A. Summers City of Santa Ana Community Development Agency 20 Civic Center Plaza, M-25 Santa Ana, CA 92701 Dear Ms. Summers: I am writing concerning the possible extension of the contract I have as a Career Counselor consultant at the Santa Ana W/O/R/K Center for the upcoming fiscal year, 2010-201 1 . I have enjoyed the privilege of serving in the capacity of Career Counselor, also referred to as the Wellness Coordinator or Counselor. As a reminder of the services I've provided; the Personal Counseling has involved helping people in need of and who desired counseling as they psychologically struggled with their unemployment status. Career Counseling has been for those unclear about their vocational direction, either because they have never established a career or their career has significantly lost demand locally. Vocational Assessment has involved administering and interpreting a battery of multiple measures primarily for those being considered for vocational training. The customer base has been those seeking employmenfi and/or training at the SA WC, including those who were enrolled in Workforce Investment Act (WIA) programs and individuals enrolled in other related programs, such as the Department of Social Services' work experience and EDD's TRA and TAA programs. Customers include multiethnic, multicultural, and economically disadvantaged populations. I would be honored to continue in this capacity for the next fiscal year. Thank you for your consideration. Sincerely, Wesley A. Bosch, M.A. EXHIBIT A 25B-12 Wesley A. Bosch, M.A. June 76, 2070 This section of the RFO response reflects an expansion of my summary of qualifications and experience in the areas related to the Career Counselor position being offered. Personal Counseling My Counseling work at the SAWC over the past 12 years has involved me in consulting with customers and staff on a variety of issues and concerns related, in general, to personal, interpersonal, and/or behavioral barriers to success. Some more specific examples of these include high levels of stress accompanied with disabling fear; marital conflict related to pressures of limited money, lack of work, or uncooperative partner support for school/training and study time; depression with suicidal thoughts and feelings; profound grief; feelings of being lost, not knowing what direction to go in; feelings of being overwhelmed by a myriad of problems in their lives, including family issues that their unemployment status only added to; and a sense of isolation; among others. The duration of counseling ranges from one or two sessions for clarification, encouragement, and support, up to a few months of weekly sessions when problems or the need for ongoing emotional support persist while still unemployed. I have generally been effective in helping customers improve their coping skills and ego strength, self-esteem, developing a more positive outlook with a sense of hope, and a reduction in relationship conflicts or in process of resolving them. Additionally, a benefit has been improvement in their motivation and functioning in their job search or training activity, including increases in their activity level and more effective and positive job interviewing. I provided referrals on occasions when evaluation revealed the need for outside mental or medical healthcare services or other resources. My previous mental health services was to persons with a wide range of disorders and conditions in a variety of roles and settings, such as direct patient care in state, county, and private hospitals, hospital psychiatric social work, group leadership and program development, in- and outpatient consultation, outpatient private practice, and employment assistance program (EAP) counseling. Through attendance of continuing education programs, reading, and personal discussion with other professionals, I remain up-to-date with current information and developments in the mental health field. Career Counseling Concerning career issues, I often work with customers presenting with complaints of not having a clear idea or goal, especially when their previous occupational field is diminishing or recognizing that they are not progressing in life after bouncing from one unfulfilling job to another. With some individuals, iT becomes evident how career and personal counseling can and do overlap, as the issues of one area are often affected by The other. Within a few sessions, customers generally become clearer about their realistic career goal options, engaging in occupational research, and make decisions about reaching their goals. This may involve referrals for case management and training, to other One-Stop partner agency staff, or outside resources. 2 25B-13 Wesley A. Bosch, M.A. June 16, 2010 I was a Matriculation Counselor for the NorTh Orange County Community College District (NOCCCD), involving counseling prospecTive and current students in regards to their educational and career goals. My continuing effort to remain updated with career development and labor market issues and trends in the marketplace contribute to my effectiveness as a Counselor in this area. Vocational Counseling As a Vocational Counselor, I have provided comprehensive vocational assessment services and information to case managers and their customers at the SAWC. The assessment process consists of the administration, interpretation, and counseling of a multiple vocational assessment battery of interests, aptitudes, transferable skills, personality, and work values. Vocational needs, appropriate occupational direction, strengths and weaknesses, and barriers to employment or training are identified. The assessments have been utilized for various purposes, including vocational training, Work Experience (WEX) placement, viable direct job placements, and basic skills level determination. I initiated and administer workplace skills testing, primarily determining customer skill levels in keyboarding, computers, and the MS Office Suite. I served as a Vocational Counselor (Technical Specialist) for the NOCCCD for six years and Rancho Santiago Community College District, engaged in Vocational Assessment and Counseling for JTPA, WIA, WtW, and general public populations. WorKShop and Group Leader For a period of time at the SAWC, I conducted weekly workshops for the Center's JTPA customers on topics of Self-Esteem and Stress Management. Career Development and Job Search workshops were also provided to one extensive group of customers (from Mitsubishi). As a Psychotherapist and Social Worker, I coordinated and conducted group therapy sessions on a daily basis for several years, primarily in a hospital setting. Summary I believe there is much support for my candidacy for the position of Career Counselor by combining my valuable experience in a broad range of relevant areas; my excellent relationships at the SAWC; my background of providing Career Counseling and Vocational Assessment and Testing to a broad and diverse customer population; and Psychological Counseling based on my extensive professional healthcare background and education/training as a Counselor, 3 25B-14 Wesley A. Bosch, M.A. June 16, 2070 Summary List of QualHlcatlons • Master of Arts degree in Marriage and Family Therapy • Licensed as Marriage and Family Therapist since 1 981 • Extensive history dating back many years of providing Counseling and Psychotherapy services to a wide variety of clients and patients, including multiethnic, multicultural, and the economically disadvantaged, in a variety of settings, including hospitals, clinics, and office, on an individual, familial, and group basis • Comprehensive experience working directly with unemployed or underemployed individuals (14 years), and providing Vocational Assessment and Career Counseling Services (13 years), including administering and interpreting a wide array of vocational assessment instruments. • Familiarity with various aspects and resources of the Orange County mental health professional community, as well as career developmenT and labor market information resources • Knowledgeable and experienced in working with loss (e.g., loss of employment), self esteem issues, stress management, depression and other mental health disorders, and the techniques To facilitate improved functioning and outlook • Knowledge and skill in personal and vocational evaluation to determine level of need and services • Proficient in maintaining detailed records, confidentiality, and communicating with appropriate staff • Knowledge of and familiarity with the Workforce Investment Act (WIA), Welfare to Work (WtW), and Work Experience (WEX) programs, the multiple agency partners who are a part of these programs, and excellent relationships with the staff members of the Santa Ana W/O/R/K Center • Resourceful in researching and responding To new needs and issues as they arise 4 25B-15 Wesley A. Bosch, M.A. June 76, 2070 Description of Needs and Services Based upon my experience at the Santa Ana W/O/R/K Center and elsewhere, the populations that generally need services include those who were laid off from their jobs, workers who have been unsuccessful in securing adequate employment despite their efforts, workers who are considered or consider themselves underemployed, the economically disadvantaged, chronically unemployed individuals with limited vocational skills, and persons being supported by public assistance. Personal Needs The issues and problems these different populations face may vary and may require different approaches to increase their chances of improvement and success. Their concerns on a personal or psychological level may include: grieving the loss of a valued job, interpersonal and self-esteem problems that arise from this loss or conflict with previous employers, difficulties in handling the stress of economic insecurity and uncertainty, changes in self-perception and self- definition, hopelessness and despair, frustration and other effects from encountering repeated rejections in theirjob search activity, the breakdown of previously adequate coping skills, stress on the family or significant others and consequent disintegration of supportive relationships, the exacerbation of underlying emotional and/or behavior disorders, clinical depression, suicidal ideation and risk, severe anxiety, and substance abuse. Personal Services The type of services provided to address the various personal needs would be similar in nature, though the specific approach may vary according to the individual(s) and the most important identified issue(s) of concern. Both educational and clinical interventions would be used, as appropriate. The primary modality would be individual counseling that may involve single or multiple appointments in a confidential setting. Involvement of family or significant others would take place when identified as potentially helpful. Group counseling or workshops may be conducted according to the need and commonality of concerns. Referral to relevant professionals, agencies, and resources would be made as appropriate with follow-up regarding progress and outcome. Vocational Needs In the more career-oriented area, customers may be faced with confusion and indecision about what direction To go in next; uncertainty about what type of work activity they are best suited for, have skills in, and would be most satisfied with; and what kind of jobs have current prospects and a potentially positive future outlook. Additionally, many customers have little or outdated job search skills that include: writing resumes; interviewing for jobs; appropriate behavior and appearance; obtaining job, industry, or company related information; and computer-related skills that are relevant To job search and preparation. Many times these issues overlap with emotional concerns mentioned above and need to be worked with conjointly. Case managers and customers need additional tools to help determine the appropriateness of vocational training and in what types of training or what jobs they are best suited for. The level of computer or other employment-related skill and knowledge may not be clear prior to job development efforts, thus job referrals may be made without a high degree of confidence in some cases or may result in mismatched training or placements. 5 25B-16 Wesley A. Bosch, M.A. June 76, 2070 Vocaflonal Services In regard to vocational training, placement, or direction, referred customers would be administered a multiple battery of assessment instruments related to vocational interests, work values, personaliTy type, abilities/aptitudes, and transferable skills. In the course of a follow-up session with the customer to interpret the results and counsel, a primary occupational goal and alternative potential paths to employment are collaboratively developed. A full report would be written of The findings and delivered to the case manager along with consultation as needed. Pre-employment skills testing would be administered per request to referred customers in a simulated online environment to determine their competence level in the use and knowledge of computer applications, such as MS Word and Excel and others, as well as keyboarding skill. Group workshops may be conducted according to the need and commonality of concerns as they relate to vocational issues and/or assessment. General Individual assistance and guidance, as well as support and encouragement, would be provided to customers informally who are actively involved in job search activity in the Resource Center or other areas. Consultation with W/O/R/K Center staff would also be an active component of the service. Fee Schedule and Costs My fee would remain at $40 per hour in respect to the current economic concerns and full vocational assessment would be charged on a per customer basis at $1 70 each and $145 each for a modified assessment. The upper limit for all services would not exceed $90,000 in one fiscal year. Potential services for the purpose of or related to counseling and/or assessment and testing qualifying for billed time include: • Direct customer contact, whether in individual, group, workshop, or Resource Center settings, contact by telephone, casual encounter at the SAWC or at the job site when related to assigned services • Contact with customer family, members of their support system, employer, or other professionals • Researching, contacting, or arranging referrals or resources for outside services or support not provided by myself or that is outside the scope of my license, training, and/or experience • Documentation • Communication with SAWC staff or outside resource persons Preparation time for direct client contact, such as assessment/testing material acquisition and organization, review of files, handout development, reviewing and/or obtaining reference or resource material, maTerial reproduction, and consultation with staff • Onsite visitations to resources and agencies utilized or potentially utilized in the service of the customer Reimbursement at cost would be expected for any material that might be obtained for customer use, such as vocational assessment instruments, pamphlets, handouts, reference books, videotapes, software, or other related resource material obtained with prior SAWC management approval. 6 25B-17 CERTIFICATION REGARDING LOBBYING CERTIFICATION FOR CONTRACTS. GRANTS. LOANS and COOPERATIVE AGREEMENTS The undersigned certifies, to the best of his or her knowledge and belief, that: 1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying." in accordance with its instructions. 3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure occurring on or before October 23, 1996, and of not less than $11,000 and not more than $110,000 for each such failure. Grantee/Contractor Organization Program Title Signature Name of Certifying Official Signature EXHIBIT B 25B-18 Certification Regarding Drug-Free Workplace Requirements The certification set out below is a material representation upon which reliance is placed by the U.S. Department of Housing and Urban Development in awarding the grant. If it is later determined that the contractor knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, the U.S. Department of Housing and Urban Development, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act. CERTIFICATION A. The contractor certifies that it will provide adrug-free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the contractor's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b) Establishing adrug-free awareness program to inform employees about - (1) The dangers of drug abuse in the workplace; (2) The contractor's policy of maintaining adrug-free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance program; and (4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c) Making it a requirement that each employee who will be engaged in the performance of the grant be given a copy of the statement required by paragraph (a); (d) Notifying the employee in the statement required by paragraph -(a) that, as a condition of employment under the contract, the employee will - (1) Abide by the terms of the statement; and (2) Notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than five days after such conviction. EXHIBIT C 25B-19 Pg. 2 (e) Notifying the U.S. Department of Housing and Urban Development within ten days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such conviction; (f) Taking one of the following actions, within 30 days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted - ( 1) Taking appropriate personnel action against such an employee, up to and including termination; or (2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; (g) Making a good faith effort to continue to maintain adrug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e) and (f). B. The contractor shall insert in the space provided on the attached "Place of Performance" form the site(s) for the performance of work to be carried out with the grant funds (including street address, city, county, state, and zip code) .the contractor further certifies that, if it is subsequently determined that additional sites will be used for the performance of work under the contract, it shall notify the U.S. Department of Housing and Urban Development immediately upon the decision to use such additional sites by submitting a revised "Place of Performance" form. Dated: Program Operator EXHIBIT C 25B-20 DIVISION OF EMPLOYMENT SERVICES PLACE OF PERFORMANCE FOR CERTIFICATION REGARDING DRUG-FREE WORKPLACE REQUIREMENTS Name: Name of Contractor: Contractor Number: Date: The Contractor shall insert in the space provided below the site(s) expected to be used for the performance of work under the contract covered by the certification: Place of Performance (include street address, city, county, state, zip code for each site): EXHIBIT C 25B-21 ASSURANCES Subcontractor agrees that in addition to those agreements and obligations specified in the contract boilerplate and scope of work, it will also adhere to and obey the following provisions, assurances, and certifications. ARTICLES 1 . Subcontractor assures and certifies that it will not use any funds appropriated under this agreement for religious activity or anti-religious activity, or to promote or oppose any political candidate, parties, and/or beliefs 2. Subcontractor assures and certifies that any requested modification to this agreement must be submitted in writing, explaining requested changes and rationale. Subcontractor further assures that no modification will be implemented without prior written approval from the Santa Ana WORK Center 3. Subcontractor agrees to cooperate with any monitoring inspection audit or investigations of activities related to this agreement as may be scheduled and conducted by the Santa Ana WORK Center 4. Subcontractor agrees to acknowledge (give credit to) the Santa Ana WORK Center in all oral presentations, written document publicity, and advertisements regarding any activities that ensue from this agreement. Exhibit D 25B-22 ~~V V(v VV ~ ~ v~~ -m~lacrYi - ~ AE~td, REQUEST FOR ~ COUNCIL ACTION A°~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED AGREEMENT AMENDMENT FOR ? As Recommended FOUNTAIN MAINTENANCE SERVICES IN ? AsAmended ? Ordinance on 1~~ Reading THE CIVIC CENTER ? ordinance on 2"' Reading ? Implementing Resolution ? Set Public Hearing For i CONTINUED TO .L~CC~w!! FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached one-year agreement amendment with Deckside Pool Service to provide fountain maintenance services, in an amount not to exceed $58,860, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The Parks, Recreation and Community Services Agency is responsible for the maintenance of three fountains in the downtown Civic Center, including the Plaza of the Sun, Law Library, and Sasscer Park fountains. The Community Development Agency is responsible for the maintenance of the downtown 2"d Street Mall fountain. Deckside Pool Services has been under agreement for three years to provide these services and is performing well at these locations. Maintenance includes vacuuming and cleaning of aquatic facilities, checking pump motors and sand filters to assure they are properly operating, and monitoring aquatic chemical levels to assure safe and healthy water conditions. The Civic Center Authority is in the process of repairing two fountains that are currently not working. This agreement anticipates that these two fountains will be repaired sometime during the agreement term and that Deckside Pool Service will assume the maintenance of these two fountains once they are repaired. The annual base agreement amount is $53,509 and includes a 10 percent contingency for unanticipated work and unforeseen emergencies, for a total agreement amount not to exceed $58,860. 25C-1 Agreement Amendment for Fountain Maintenance July 19, 2010 Page 2 FISCAL IMPACT Funds are available in the Civic Center Other Contract Services account (no. 07413250 62320), and the Community Development Agency's Downtown Maintenance account (no. 40718842 62300). APPROVED AS TO FUNDS AND ACCOUNTS: Gerardo Mouet, Francisco Gutierrez, Executive Director Executive Director Parks, Recreation and Finance and Management Services Agency Co munity Services Agency Cynt is J. Nels Deputy City Manager for Development Services Community Development Agency 25C-2 POOL AND FOUNTAIN MAINTENANCE AGREEMENT THIS AGREEMENT, made and entered into this day of , 2010 by Deckside Pool Service, a California corporation (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 desires to retain a Contractor having special skill and knowledge in the field of pool and fountain cleaning and maintenance comparable with "high-level" industry practice. 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 standazds as may reasonably be expected from a professional "high-level" contractor 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 pool/fountain maintenance services as set forth in City of Santa Ana Pool and Fountain Maintenance and Repair Agreement Description/Specifications/Work Statement attached as Exhibit A and incorporated by this reference. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the total sum to be expended under this in an amount not to exceed $58,860, during the term of this Agreement, based upon Contractor's standazd rates and chazges on file with the Executive Director of Recreation and Pazks. This amount includes a 10 percent contingency for unanticipated work and unforeseen emergencies. 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 or as otherwise provided in Exhibit A. 1 25C-3 3. TERM This Agreement shall commence on April 1, 2009 and terminate on June 30, 2011, unless terminated earlier in accordance with Section 12, below. Any services provided pursuant to this agreement since April 1, 2010 shall be included within the scope of services. 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 anemployer-employee relationship, ajoint 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 its 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 City with a fully executed additional insured endorsement in substantially the form as set forth in Exhibit "C" attached hereto upon execution of this Agreement. Said endorsement shall be approved in form by the City Attorney. 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 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. 2 25C-4 d. If Contractor is or employs a licensed professional such as an architect or engineer Contractor must obtain and maintain 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 Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION AND HOLD HARMLESS Contractor agrees to indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, lost profits, restitution, judicial or equitable relief or any other type of damage whatsoever azising out of claims for the same, which may arise from the direct or indirect actions of the Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates in any way to the services provided by Contractor under this Agreement; and (2) from any claim that personal injury, damages, just compensation, lost profits, restitution, or judicial or equitable relief or any other type of damage whatsoever is due by reason of the terms of or effects azising from this Agreement or of the Contractor's actions hereunder. This indemnity and hold hannless agreement applies to all claims for damages, just compensation, restitution, lost profits or any other judicial or equitable relief or damages 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, azising 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, relative to any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, lost profits, or judicial or equitable relief or any other type of damage whatsoever has arisen by reason of the terms of, or effects azising from this Agreement or Contractor's actions hereunder. City may make all reasonable decisions with respect to its representation in any legal proceeding. 3 25C-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: 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: Executive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 and City Attorney City of Santa Ana 4 25C-6 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Contractor: Deckside Pool Service 27758 Santa Margarita Parkway #194 Mission Viejo, California 92691 Telefacsimile (949) 713-7624 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 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 agreement 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, 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 AND DAMAGES 5 25C-7 This Agreement may be terminated by the City upon thirty (30) days written notice of termination and by the Contractor upon ninety (90) days written notice. In the event of termination by the City, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. Payment need not be made for work which fails to meet the standazd of performance specified in the Recitals of this Agreement and in the Specifications, Exhibit "A" hereto. b. Material Breach: If the Executive Director determines the Contractor has failed in the performance of the duties and/or schedule as provided herein, the Director may consider the Contractor in material breach. City may exercise all remedies in law or equity for said breach including, but not limited to: 1) withholding all or a portion of payment owed relative to any such failure to perform or for any delay in performance, and 2) directing the work be accomplished by either City employees or a new contractor at Contractor's expense, as determined by the Director. Contractor shall be responsible for all costs resulting from any breach, including incidental and consequential damages. 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 recruitment, selection, training, utilization, promotion, termination or any other employment related activity. 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 governed and construed in accordance with 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 by the parties hereto or azises out of, or 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 may, at the City's discretion, be cause for termination of this Agreement. 6 25C-8 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to Ciry 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 fiilly set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. CITY OF SANTA ANA: ATTEST: MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: DECKSIDE POOL SERVICE JOSEPH W.FLETCHER FRED ROSS City Attorney President 7 25C-9 EXHIBIT A SPECIFICATIONS City of Santa Ana Pool and Fountain Maintenance and Repair Agreement Description/Specifications/Work Statement C.1 General C.1.1 Scope of Work. The Contractor shall furnish all labor, vehicles, chemicals, tools, materials, equipment, transportation, and supervision, except as specified herein as City furnished, to manage and perform maintenance and minor repair of pools and fountains at the Law Library, Sasscer Park, Plaza of the Sun, Plaza of the Fountains and the Second Street Mall within the downtown and Santa Ana Civic Center Authority areas. C.1.1.1 Responsibilities Included. Pool and fountain maintenance and repair services covered by this specification include the tasks shown in the table below. Pool and Fountain Maintenance & Re air where a licable work shall be erformed routinel er manufacturers s eciScations 1 Maintain um s 2 Maintain um motors 3 Maintain all lumbin i.e. i in , cou lin s, and fittin s 4 Maintain chlorine and meterin monitorin a ui ment 5 Maintain filters 6 Maintain fountain nozzles free of debris. Replace when spray pattern deviates from intended desi n 7 Maintain valves Daily Routine Maintenance and Operation To Meet All O.C. Health Department Re uirements 8 Test and ad'ust the chlorine and other chemicals levels in the water. 9 Test the H level in the water 10 Add acid or soda ash as necess to ad'ust H level 1 ] Provide all ool su lies e.., chemicals, testers 12 Replace carbon dioxide gas cylinders when empty and without interruption to system o eration 13 Em strainer(s) (interce for basket ,skimmers and screens 14 Shock treat the ool when re uired to maintain water free of al ae 15 Vacuum and clean ool 16 Ad'ust water level 17 Test and re lace underwater li ht lam s as outa es occur. Periodic Maintenance Per Manufacturers S ecifications 18 Backwash and o erate filters as recommended b the manufacturer. 19 Re lace filter medium, if necessa as recommended b the manufacturer. 8 25C-10 Pool Structure Routine Maintenance and Re air 20 Repair interior pool and fountain cracks and leaks (pool or liner) caused by normal age and wear. Cracks and leaks caused by extraordinary cause, i.e., vandalism, earthquake, do not a I 21 Re lace broken or missin skimmer lids and drain covers as necessa C.1.1.2 Responsibilities Excluded. Pool and fountain maintenance and repair services covered by this specification exclude the tasks shown in the table below. Tasks Excluded from Pool and Fountain Maintenance and Re air Facili Maintenance and Re air 1 Paint interior and exterior of um /filter room 2 Maintain um /filter room e.., li hts, ventilation 3 Re air buildin electrical com onents 4 Re lace lam s for azea and eneral li htin 5 Re air ower anels, switches, outlets, etc. Grounds and Fencin 6 Cut rass 7 Trim shrubbe 8 Rake leaves and rass 9 Re air fences and ates (includin locks) 10 Perform other rounds work (e.., lant flowers) 11 Re air or re aint si ns C.l .l .3. Frequency of "daily" tasks shall be one day per week on Wednesday unless otherwise directed by the Director's Representative. Contractor shall maintain a set schedule for providing the daily tasks. C.1.2 Background Information C.1.2.1 Place of Performance. The place of performance for pool and fountain maintenance and repair services is the downtown Second Street Mall and the City of Santa Ana Civic Center Authority areas. C.1.2.4 Bid Requirement. Prior to contract awazd, any bidder may be required at any time to demonstrate to the Director that they can successfully perform maintenance work of the type involved in this Agreement and that he possesses suitable equipment to perform the work. C.1.3 Personnel C.1.3.1 Project Foreman. The Contractor shall provide a Project Foreman who must retain an Aquatic Facility Operator Certificate (AFO) or a Certified Pool & Spa Operator Certificate (CPO) and to be available during the normal hours of operation as specified in paragraph C.1.6 to act with full authority for the Contractor. This individual shall be responsible for the supervision, overall administration, and coordination of all required services. The Contractor shall provide the name(s) and telephone number(s) of the Project Foreman(s) within two weeks after contract award date. The Contractor shall provide written notice to the Director in advance of any change of the Project Foreman. The Project Foreman shall be able to understand, speak, read, and write the English language as is necessary for the fulfillment of the terms of the Agreement. The Project Foreman shall return all calls from the Director within two hours. 9 25C-11 C.1.3.2 Alternate Project Foreman. The Contractor shall designate at least one Alternate Project Foreman to act for the Project Foreman, who also maintains an AFO or CPO Certificate, with the same authority during absences of the Project Foreman (e.g., vacation and sick leave). The Contractor shall provide the name(s) and telephone number(s) of the Alternate Project Foreman(s) within two weeks after contract award date. The Contractor shall provide written notice to the Director in advance of any change of Alternate Project Foreman. The Alternate Project Foreman shall be able to understand, speak, read, and write the English language as is necessary for the fulfillment of the terms of the Agreement. C.1.3.3 Other Personnel Requirements C.l .3.3.1 Legal Residents. The Contractor shall provide only those personnel who are legally entitled to work in the United State to accomplish work and services specified herein. C.1.3.3.2 English Comprehension. All Contractor personnel working on the project shall read and understand the English language to the extent necessary to read and understand operation, safety, health, and security regulations relating to the performance of this Agreement, including the following: a. Any necessary instructions concerning equipment to the extent that performing the employee's duties requires the employee to operate, maintain, repair, or in some way interact with the equipment. b. Any regulations, directives, or policies that he must know in order to accomplish the work on the project as a Contractor employee. C.1.3.4 Contractor Employee Skills Required. The Contractor's employees performing the services required by this Agreement shall have specialized training, prior work experience, or the demonstrated technical skills to fulfill the specific requirements of these Specifications and the Agreement. C.1.3.5 Employee Physical Capabilities. There shall be no discrimination against employees on the basis of handicap or other physically disabling conditions. Contractor shall obey all State and Federal laws concerning the disabled. C.1.3.6 Standards of Conduct for Contractor Personnel. The Contractor shall be responsible for maintaining satisfactory standards of employee competency and conduct and for taking disciplinary action against his employees as necessary. No Contractor employee under the influence of alcohol, drugs, or any other incapacitating agent shall be allowed on the jobsite. The removal from the job site of a Contractor employee shall not relieve the Contractor of the requirement to provide sufficient personnel to perform the work specified in the contract. C.1.3.7 Uniforms. All Contractor personnel shall wear uniforms that are clean and neat and free of wrinkles, tears, holes, frayed edges, spots, stains, body odor, and logos or graphics other than company identification patches. All uniforms should identify the name of the Contractor. Uniforms shall be clearly distinguishable from City employee uniforms. C.1.3.8 Apprenticeship Standards. Where required under law, the Contractor shall assume full responsibility for compliance with apprenticeship standards as established by Section 1777.5 of the California State Labor Code. 10 25C-12 C.1.3.9 Insurance Certifications. C.1.3.9.1 During performance hereunder, and entirely at Contractor's sole expense, Contractor shall procure and maintain the following insurance, which shall be full coverage insurance not subject to self-insurance provisions. Contractor shall not, of its own initiative cause such insurance to be canceled or materially changed during the course of the herein Agreement. C.1.3.9.1.1 Worker's Compensation Insurance. Within limits established and required by the State of California C.l .3.9.1.2 Employer's Liability with a limit of $1,000,000. C.1.3.9.1.3 Comprehensive General Liability to include Completed Operations, Contractual, Independent Contractors and Personal Injury, and Automobile Liability, including all auto; with at least the following combined limits of liability: a. Primary Bodily Injury Liability limits of $1,000,000 per occurrence. b. Primary Property Damage Liability limits of $1,000,000 per occurrence. c. Primary Bodily Injury and Property Damage Liability combined single limit of $1,000,000 is preferred. C.1.3.9.2 CertiScate of Insurance. Prior to commencement of any work hereof, Contractor shall furnish to the City Purchasing Manager a Certification of Insurance which shall certify Contractor's insurance policies provide: a. The City of Santa Ana, its officers, employees, agents, and representatives aze named as "additional insured" on Comprehensive General Liability and Automobile Liability insurance with respect to performance hereunder. b. The coverage shall be primary and noncontributory as to any other insurance with respect to performance hereunder; and a Thirty (30) days prior written notice of cancellation or material change is required to be given to City. C.1.3.9.3 Occurrence. As used herein, means any event, or related exposure to conditions, which result in bodily injury or property damage. C.1.3.10 Director's Authority. The Director is the only person authorized to direct changes in any of the requirements under the Agreement and, not withstanding any provisions contained elsewhere in the Agreement, and said authority remains solely in the Director. In the event that the Contractor effects any such changes at the direction of any person other than the Director, the changes will be considered to have been made without authority and solely at the risk of the Contractor. In addition, the Director shall have the authority to acceptlreject materials, workmanship and to make minor changes in work or schedule, not involving extra cost. When the performance of the work or completion per schedule is determined to be sub-standard, he may (1) recommend that all or a portion of payment be withheld, and/or forfeiture for delay in assessed; and/or (2) direct the work be accomplished by either City forces or sepazate contractor, in order to complete the necessary work as close to schedule as possible, and withhold the resulting costs. Payment to be withheld shall be deducted from the next 11 25C-13 monthly payment due the Contractor, or if the amount is insufficient to cover payment, the Contractor shall be liable for said deficiency and will be billed accordingly. The Director, or his authorized representative shall decide all questions, which may arise as to the manner of performance and completion per schedule, acceptable fulfillment of the Agreement by the Contractor, interpretation of the specifications, and compensation, including completion of work by alternate sources. C.1.3.11 Subcontractors C.1.3.11.1 Designation of Subcontractors. In accordance with the provisions of Section 4100 and subsequent section of the Government Code concerning the Subletting and Subcontracting Fair Practices Act, bids on public contracts and for all work except the construction, improvement, or repair of streets or highways and bridges shall include a listing of all subcontractors who will perform work or labor or render service to the prime contractor's total bid. This requirement for the listing of subcontractors also extends to that portion of street or highway work involving street lighting and traffic signals as noted in Section 4100.5. The portion of work, which will be done by each such subcontractor, must be listed and only one such subcontractor shall be listed for each portion. C.l .3.1 1.2 Failure to Specify Subcontractors. If the bidder fails to specify a subcontractor for any portion of the work to be performed under the contract in excess of one-half of one percent of the bidder's total bid, he agrees to perform that portion himself. The successful bidder shall not, without the written consent of the city: a. Substitute any person or firm as subcontractor in place of the subcontractor designated in the original bid. b. Permit any subcontract to be assigned or transferred or allow it to be performed by anyone other than the original subcontractor listed in the bid. c. Subcontract any portions of the work after bid is submitted if the cost thereof exceeds one- half of one percent of the total bid and a subcontractor was not designated for the work in the original bid. C.l .6 Hours of Operation C.1.6.1 Normal Hours of Operation. Normal operating hours shall be from 6:30a.m. to 6:00 p.m. Sunday through Saturday. C.1.7 Conservation of Utilities. The Contractor shall familiarize himself and require his employees to become familiar and comply with standard operating procedures that comply with conservation regulations. Compliance with Energy Conservation best practice includes: a. Instructing personnel to conserve energy by turning off unneeded equipment and utilities (including electricity and water). b. Using lights only in areas where work is actually being performed. c. Allowing adjustment of mechanical equipment controls for heating, ventilation, and air conditioning systems only by authorized workers. d. Turning off water faucets or valves after required usage has been accomplished. 12 25C-14 e. Complying with water bans imposed by local, state, or Federal agencies. C.1.8 Vehicle Passes. The Contractor and Contractor personnel shall obtain vehicle passes from The County of Orange Pazking Administrator, Public Facilities & Resources Department. C.1.9 Building Security. The Contractor shall be responsible to ensure buildings serviced by the Contractor are locked during non-duty hours. C.1.10 Security of Contractor Owned Property. The Contractor shall be responsible for the security of Contractor Owned Property. C.1.11 Permits and Licenses. The Contractor, prior to awazd of contract and without additional expense to the city, shall procure all necessary permits and licenses including, but not limited to, a City of Santa Ana Business License. C.1.12 Obedience to Laws. Contractor shall obey and abide by all applicable laws, regulations, and ordinances, and other rules of the United States of America, territory, or subdivision thereof wherein the work is done, or any other duly constituted public authority. C.l .13 Safety. All work performed under this contract shall be performed in a manner as to provide maximum safety to the public and where applicable, comply with all safety standards required by CAL-OSHA. The Director reserves the right to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance of the work under this Agreement. C.1.13.1 Safety Orientation for Contractor Personnel. The Contractor shall give each new employee performing under this Agreement a safety orientation concerning the hazazds and precautions of the job assigned upon starting work. The Contractor shall institute a continual training program to make employees aware of existing hazards and all new hazards relative to work performed under this Agreement. C.13.2 Creation of Safety or Health Hazard. If the Contractor performs work in a manner that creates a safety or health hazard to City or Contractor personnel or the general public, the Director may issue an order stopping all or part of the work until the Contractor has taken satisfactory corrective action. No part of the lost time due to such a stop in the work shall be the subject of a claim for extension or for excess costs or damages to the Contractor. C.l .13.3 Protective Equipment. The Contractor shall provide its employees with protection against safety and health hazards by furnishing them with all the protective equipment needed. Such equipment shall be approved for the use intended by the National Institute for Occupational Safety and Health or the American National Standards Institute (ANSI). The Contractor shall post areas that require the wearing of protective clothing or where protective equipment is necessary. C.1.13.4 Material Safety Data Sheets. The Contractor shall submit to the Director or his designated representative Material Safety Data Sheets for all hazardous materials proposed for use in the performance of the contract at least one week prior to actual use. In addition, he shall maintain copies on- site and available for review by his employees and/or the City. 13 25C-15 C.1.14 Environmental Protection. The Contractor shall comply with all federal, state, and local laws, regulations, and standards regarding the Environmental Protection and Enhancement Program. C.2 Definitions C.2.1 Definitions of Terms. Clean. Free from dirt, dust, spots, streaks, stains, smudges, litter, debris, contamination, or residue or impurities, unsoiled, unstained, or recently washed. Director. The Director of Parks, Recreation and Community Services or their designated representative with the authority to enter into, administer, or terminate contracts and to make findings and determinations on behalf of the City. This is the only individual authorized to change a contract or any of the requirements therein. Contractor. The individual, partnership, company, or corporation responsible for the duties and responsibilities under the Agreement. The term also covers requirements for any subcontractor. The Contractor is ultimately responsible for ensuring that all subcontractors comply with the provision of the Agreement. Dav. A normal weekday, unless otherwise specified. Deficiency. A shortcoming in the quality or state of service performed. Disinfect. Cleaning in order to destroy any harmful microorganisms by application of an approved chemical agent. Emereencv Work. Any unforeseen circumstance or combination of circumstances that requires immediate action. Environmental Pollution. The condition resulting from the presence of chemical, physical, radiological and/or biological forces that alter the life biosystems, structures, and equipment, recreational opportunity, aesthetics or natural beauty or the environment. Freauencv of Service. The following aze frequencies and their definitions. Abbreviation Definition Annual A Services performed once during each 12 month period of the contract Semi-Annual S/A Services performed twice during each 12 month period of the contract at intervals of 160 to 200 calendar da s Quarterly Q Services performed four times during each 12-month period of the contract at intervals of 80 to 100 calendar da s. Monthly M Services performed 12 times during each 12-month period of the contract at intervals of 28 to 31 calendar da s. Weekly W Services performed 52 times during each 12-month contract eriod at intervals of 6 to 8 calendar da s. 14 25C-16 Twice Weekly 2W Services performed twice a week, such as Monday and Thursda or Tuesda and Frida Daily D Services performed each calendar day, Sunday through Saturda , includin holida sunless otherwise noted. Three times 3 W Services performed three times a week, such as Monday, Weekl Wednesda ,Frida but not consecutive da s. Hazardous Waste. Any waste materials that are toxic or poisonous, corrosive, irritating, desensitizing, radioactive, biologically infectious, explosive, or flammable and hat present a significant hazard to human health and the environment. Special handling procedures and disposal facilities are required for their disposal. Minor Repairs. Repairs that are necessary for maintenance of equipment, such as refacing valve seats, and replacing washers. Minor Parts. Repair parts having a per item cost of $25.00 or less. Owner. The person or persons who own a facility or part of a facility. For purposes of the contract, the City is the owner. Periodic Services. Services which are required less frequently than once per billing period. These normally include services which are performed at a frequency or less than once per month, e.g., quarterly or semi-annually. Preventive Maintenance. Work performed by the Contractor to inspect, repair, and keep in proper operating condition all City equipment the Contractor is responsible for maintaining. Recyclable Materials. Materials that normally have been or would be discarded and that may be reused after undergoing some type of physical or chemical processing. Recyclable materials do not include precious metal bearing scrap and those items that may be used again for their original purpose or function without any special processing. Routine Services. Services which are required on a regular basis within each billing period. These normally include services performed at a frequency or at least once per month, e.g., daily or weekly. Work Dav. A normal duty day, Sunday through Saturday 6:30am to S:OOpm. C.4 CONTRACTOR FURNISHED PROPERTY AND SERVICES C.4.1 General. Contractor furnished property and services shall be compatible with existing City systems and equipment as necessary to perform the requirements of the Agreement. The Contractor shall furnish all property and services not specifically identified in Section C.C.4.2 24-Hour Contact Number The Contractor shall provide the Director with a telephone number at which a contact person for the Contractor may be reached 24 hours a day. The contact person shall be required to respond back to the Director or his representative within 1 hour. The contact person shall have the appropriate knowledge and/or authority to take appropriate action in response to any emergency situation that may arise involving the contractor's responsibilities hereunder. 15 25C-17 C.4.2.1 Responsibility for Work. The Contractor shall be responsible for all damages to people and/or property that occur as a result of the fault or negligence of said Contractor or his employees in connection with the performance of this work. C.4.2.2 Failure to Perform Satisfactory (FTP) C.4.2.2.1 It is agreed and understood that in the short run, if the Contractor fails to perform the work as specified herein, the Director: 1) will only pay for the amount of service received as determined by the Director with an appropriate downward adjustment in contract price, and/or 2) may have such required work performed by City forces or otherwise, and chazge the cost thereof to the Contractor. Such adjustments will be the estimated cost for performance by City forces plus City overhead and will include overtime pay as required to complete work. C.4.2.2.2 Billing Adjustments. The Director may make billing adjustments in monthly payment for the cost to the City to remedy insufftciencies in service rendered by the Contractor. Billing adjustments for this unsatisfactory service may be permanent retention of 100% of the estimated monthly cost for work that is incomplete or deficient as stated herein. C.4.2.3 Hazards. The Contractor shall maintain all work sites free of hazards to persons and/or property resulting from his operations. Any hazazdous condition noted by the Contractor, which is not a result of his operations, shall be immediately reasonably mitigated then reported to the Parks, Recreation & Community Services Agency. C.4.2.4 Property Damage. Any damage to City property that occurs shall be immediately reported to the Director. The cost of repair, if required, will be at the Contractor's expense. If damage occurs to any adjacent turf, groundcover, shrubs or trees as result of the Contractor's negligence for the cost for necessary repair or replacements of the same shall be at the Contractor's expense. C.4.2.5 Access to Private Property. Prior to any work that will restrict access to private property; the Contractor shall notify each affected property owner or responsible person, informing him of the nature of and the approximate duration of the restriction. C.4.2.6 Emergency Service. Twenty-four hours per day, seven days per week, the Contractor shall be able to receive and respond to the City's call for emergency service. Response time shall be less than two hours to remove or eliminate a public safety hazard. Contractor shall provide the City with a local telephone number where Contractor can be contacted twenty-four hours per day, seven days per week. C.4.2.7 Work by City Due to Non-Conformance to Contract. Should the contractor fail to correct deficiencies or public nuisances that have been created because of his operation, and should these deficiencies or nuisances be considered by the Director to be of an emergency nature, the City may move in on the project to make corrective work. Such work will be charged to the Contractor on a force account basis with an additional callout charge of $150.00 for each callout. There will be assessed a minimum of three-hour charge for labor on any callout. C.4.2.8 Contractor Furnished Equipment. The Contractor shall provide all items necessary for the performance of the contract including the following. C.4.2.9 Tools. The Contractor shall provide all tools and repair equipment necessary for maintenance and repair as specified in the Agreement. 16 25C-18 C.4.2.10 Contractor Furnished Supplies. The Contractor shall furnish all supplies required for his performance under the Agreement, including the following. C.4.1.11 Chemicals. The Contractor shall furnish all chemicals and supplies to maintain the water at the prescribed standards of purity and clarity including, but not limited to chlorine (liquid, tablets, granular, or gaseous, depending on the type of dispensing system in use), soda ash, diatomaceous earth, etc. C.4.2. l2 Test Kits. The Contractor shall furnish test kits for the purpose of monitoring and reporting chemical levels and conditions including but not limited to chlorine levels, pH levels, and alkalinity of the water, etc. C.4.2.13 Preventive Maintenance (PM) and Minor Repair Items. The Contractor shall provide all PM and minor repair items including, but not limited to, lubricants, minor parts, fittings, gaskets, bench stock, paint, degreasers, etc. for performance under the contract. C.4.2.14 Cleaning Supplies. The Contractor shall furnish cleaning supplies required for performance under the contract. 17 25C-19 25C-20 REQUEST FOR COUNCIL ACTION e CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED AGREEMENT AMENDMENT WITH ? As Recommended HYDROBLAST FOR PAVEMENT ? AsAmended ? Ordinance on 1s` Reading CLEANING SERVICES AT THE CIVIC ? Ordinance on 2n° Reading CENTER ? Implementing Resolution ? Set Public Hearing For CONTINUED TO / / L>~~~1~ ~ FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached agreement amendment with Hydroblast for the provision of pavement cleaning services in the Civic Center in the amount of $78,140 for cone-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 pavement cleaning in the Civic Center. On May 7, 2007, the City Council approved atwo-year agreement with Hydroblast, with provision for three one-year extensions. Hydroblast will maintain the high traffic hardscape areas within the Civic Center Authority boundaries, including but not limited to sidewalks, building entranceways, and the East Mall area. The Parks, Recreation and Community Services Agency is satisfied with the quality of services being provided by Hydroblast and is requesting approval of the second one-year extension of this agreement. FISCAL IMPACT Funds are available in the Civic Center M&R Buildings and Grounds account (no. 07413250 62320). APPROVED AS TO FUNDS AND ACCOUNTS: Gerardo Mouet Francisco Gutierrez, t1,,,k Executive Dire for Executive Director Parks, Recreation and Finance and Management Services Agency Community Services Agency 25D-1 25D-2 THIRD AMENDMENT TO AGREEMENT THIS THRID AMENDMENT TO AGREEMENT is entered into this day of July, 2010, by and between Hydroblast Exterior Cleaning Company, LLC ("Contractor") and the City of Santa Ana ("City"). RECITALS: A. The parties entered into Agreement #A-2007-I11 dated May 7, 2007, (hereinafter "said Agreement") by which Contractor has provided pavement cleaning services for an initial two-year term, as amended . B. The City wishes to exercise its right to the first of three one-yeaz extensions upon the terms set forth below and to expand the scope of work. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except as previously amended, the parties agree as follows: 1. Section 3, TERM, is amended to provide that the agreement shall be from June 1, 2010 through June 30, 2011. 2. Exhibit B is amended to set the base contract amount of $78,140 for the TERM. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and yeaz first written above. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager 25D-3 APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney HYDROBLAST EXTERIOR CLEANING COMPANY RODNEY WARD President 25D-4 REQUEST FOR COUNCIL ACTION , ` CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED As Recommended LEASE AGREEMENT WITH As Amended Ordinance on 151 Reading T-MOBILE WEST CORPORATION Ordinance on 2ntl Reading FOR CELLULAR ANTENNA AT Implementing Resolution ADAMS PARK Set Public Hearing For ~ CONTINUED TO `~.~~,f~f~~~ FILE NUMBER f CITY MANAGER RECOMMENDED ACTION 1. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute a lease agreement with T-Mobile West Corporation for installation of a stealth monopole sports lighting antenna and underground equipment vault at Adams Park, subject to non-substantive changes approved by the City Manager and the City Attorney. 2. Approve an appropriation adjustment recognizing $38,800 in the Capital Outlay Fund Miscellaneous Recovery account (no. 05102002 57010) and appropriate same to the Capital Outlay Fund Improvements Other than Buildings Expenditure account (no. 05113263 66220). 3. Receive and file Categorical Exemption for Environmental Review Nos. 2010-27 (Adams Park). BOARD OF RECREATION AND PARKS Recommended approval of lease agreement with T-Mobile West Corporation for an underground cellular vault and sports lighting monopole cell tower at Adams Park, at their meeting of March 24, 2010, by vote of 4:1:3. DISCUSSION T-Mobile is requesting approval of a lease agreement to install an underground equipment vault and a 80 foot high sports lighting pole with cellular antenna at 60 feet in Adams Park. The lease agreement with T-Mobile West Corporation is for 202.7 square feet of lease area (11'-9" X 17'-3" equipment vault). Because two other cellular buildings (Sprint and Metro PCS) are already on the park site, staff requested T-Mobile to build their equipment room underground. T-Mobile has agreed and the underground equipment vault is proposed just north of the existing parking lot with a new sports lighting pole to house the,~~q~nga. The new light pole will be constructed Lease Agreement with T-Mobile West Corporation at Adams Park July 19, 2010 Page 2 south of the existing light pole and will provide additional room for the ball field. The old light pole will be removed and the lights will be switched over with minimum impact to our users. The amount of the agreement is $2,400 per month ($28,800 per year). The term of the lease agreement is 10 years, with three 5 year extension options. The agreement also provides for the lease rate to increase 4% per year throughout the term of the lease. In addition, T-Mobile has agreed to submit a one time $10,000 payment as soon as the lease is signed. The $10,000 payment will be deposited in a special account for deferred maintenance improvements at Adams Park. The annual $28,800 lease payment will be deposited in the General Fund for payment of the landscape maintenance contracts in City parks. T-Mobile will provide all the proper insurances and obtain the necessary city permits prior to construction. A presentation of T-Mobile's proposal was made to the Valley/Adams Neighborhood Association on January 28, 2010 and the Laurelhurst Neighborhood Association on February 11, 2010. Questions were raised on health/safety issues and how the revenues would be used. The Valley/Adams Neighborhood Association was satisfied with the response and approved T- Mobile's cell tower at Adams Park. The Laurelhurst Neighborhood Association expressed long term health/safety issues to their children. T-Mobile consultant addressed the concerns and 30% of the residents present approved the cell tower and 70% opposed the installation. T-Mobile's consultant indicated the radiation level from the antenna is way below the federally acceptable level. Staff explained due to federal regulations, cities can not disapprove cell tower installation based on the perception of radiation exposure. Conditions can only be provided on aesthetics, improvements or lease rates. If the lease is denied on a park site, cell companies are allowed to use the public right of way, similar to utility companies to install their antennas. This installation will require more antennas at a lower height to obtain the same service level. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempted from further review. Categorical Exemption Environmental Review No. 2010-29 (Adams Park) will be filed for this project. FISCAL IMPACT This appropriation adjustment will recognize $38,800 in the Capital Outlay Fund Miscellaneous Recovery account (no. 05102002 57010) and appropriate same to the Capital Outlay Fund Improvements other than Building Expenditure account (no. 05113263 66220) for landscape maintenance of City parks. ~j~ ~ ~ APPROVED AS TO FUNDS AND ACCOUNTS: Gerardo Mouet, Francisco Gutierrez, Executive Director Executive Director Parks, Recreation and Finance and Management Services Agency Community Services Agency 25E-2 LAND LEASE AGREF.11fENT BETWEEN THE CITY OF SANTA ANA AND T-MORILE WEST' CORPORATION for ADAMS PARK This Agreement, made this day of , 2010, betwern 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 designated "LESSOR" and T-Mobile West Corporation, a Delaware corporation, hereinafter designated "LESSEE". The LESSOR and LESSEE are ut times collectively referred to hereinafter as the "Ponies". I. 1'RF;MISES. LESSOR hereby leases to LESSEE a portion of that certain parcel of property commonly known as Adams Park (the entirety of LHSSOR's property is referred to hereinafter as "the Property" and a legal description of the Propeny is attached hereto as Exhibit "A"), located at 2302 S. Raitt SOcet, Santa Ana, CA 92704, and being described as an eleven foot, nine inch (I I'-9") by xventeen foot, three inch (17'-3") space on the ground containing two hundred three (203) square feel, for LGSSEE's undergroundul equipmeol cabinets, space for LESSEG's communications tower, and space required for cable runs [o connect LESSEE'S' equipmem and antennas. together with the nonexclusive right for ingress and ogress from artJ to the nearest public right-of-way, xven (7) days a week, twenty-four (24) hottrs a day, subjen to any restrictions stated herein, on loot or motor vehicle, including trucks, and for the installation and maintenance ofutility wires, poles, cables, conduits, and pipes over, undeq or within the building to the demised premixs, said demised premises and access and utilities paths (hereinafter collectively referred to as the "Premises") for access being substamially as' described herein in Exhibit "F3" attached hereto and made a pan hermf. 2. ~U V~El(. LESSOR also hereby grants to LESSEE the right to survey the Property and the Premises, and said survey along with detailed site plans shall then become Exhibit "A" which shall be attached hereto and made a part hereof, and shall control in the event of boundary and access discrepancies betwern it and Exhibit "A". Costs incurred for such work shall br borne by LESSEE. 3. TERIy, This Agreement shall be effective as of the date of execution by both parties, provided, however, the inrtinl term shall be fur ten (10) years and shall commence on the Commencement Date (defned below). 4. RLNT. After the Commencement Dale, rental payments will be due in an annual. rental amount of twenty-eight thousand eight hundred dollars ($28,800.00) to be paid in equal monOtly installments of two thousand four hundred dollars ($2,400.00) per month on the first day of the month, in advance, to LESSOR or to such Dther person, firm or place as the LESSOR may, fiom time to time, designate in writing at least thirty (30) days in advance of any rental paymem date. Rent shall commence on the first day of the month following the issuance oC the building permit (or LESSEE'S Facilities (as defined below), or the firs[ day of the month that is six (6) months otter the full execution of this Agreement or the first day of the month following the date LESSEE commences installation of LESSEE'S Facilities on the Premises, whichever occurs first ("Commenement Date"). If rent is not paid within lifteen (IS) days after the due date and provided LL'SSOR has complied with DII applicable notice and cure provisions herein, LESSEE agrees [o pay a Isle charge eyual to six percent (6%) of the then-current monthly rent. Rental amounts attributable to partial months shall be prorated ou a daily basis. 5. ANNUAL RENTAL INCREASES. The rem pnymems shall br subject to an animal rental inereax of four percent (4%) per year, to be increased on Hach anniversary of the Commencement Dare. 6. INITIAL PAYMENT. LESSEE hereby agrees to pay to LESSOR aone-time, non-recurring, non- refundable paymem equal to tzn thousand dollars ($10,000.00), within thirty (30) days aHer the Commencemem Dote. Notwithstanding the above, LESSOR shall refund LESSEE the initial $10,000.00 payment in the rvem LESSEE is unable, due to thz sole fault and umeasnnable delay of LESSOR, to obtain all Approvals necessary to construct LESSEE'S Facilities, within six (6) months alter the full execution of this Agreement. 7. EXTENSIONS. The Lease Agreement may be extended For up to three (3) additional five (5)- yznr terms (each a "Renewal Term"). Each Renewal Term shall be on the terms and conditions as se[ forth herein as li+l lows: Sim M; LAJSa35n I Sim Name: Adams Park fhtc 06!!7ROID nn F~,S (i) Six (b) months prior to the expiration of the initial temt, if LESSOR, in its reasonable discretion determines that LESSEE's continued tenancy is not in conl'nmtity with LF.SSOR's intended use of the Property, LESSOR shall provide written notice [o LESSEE that the Lease will not be extended. (ii) ThereaRer, each subsequent renewal shall be subject to the following procedure: If LESSEE determines that it desires to extend the term LESSEE shall provide written notice six months prior to the end of the then-current term. Within sixty (b0) days of receipt of LF,SSEE's notice, LESSOR shall determine whether such extension is in LESSOR'S best interest and, if not in LESSOR'S interest, LESSOR shall deny such extension request. It' LESSOR does not respond within sixty (60) days, the lease is deemed renewed for an additional Renewal Term. I f neither party provides notice as set forth above, the Icase shall continue on a mmtlh-to-month basis. R. GOVERNMENTAL APPROVALS. It is understood and agreed that LESSEF.'s ability to use the Premises is comingent upon its obtaining ell of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or local authoritiu5 as well as satisfactory soil boring tests which will permit LESSEE'S use of the Premises as set forth herein. LESSOR shall cooperate with LESSEE in its effort to obtain such approvals and shall take no action, which would adversely affect the status of the Property with respect to the proposed use by LESSEE. Prior to the Commencement Date, LESSEE shall have the right (but not dte obligation) to enter the Premises for the purpose o(making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (collectively "Tests") to determine the suiwbility of the Premises Tor LESSEG's Facilities (defined below) and fur the purpose ofpreparing for the construction of LESSEE'S Facilities. In the even) that any of such applications for such Guvemmental Approvals should be finally rejected or any Govemntcntal Approval issued to LESSEE is canceled, expires, lapses, or is otherwise withdrawn or terminered by the govemmental authority or soil boring tests are (owd to be unsatisfactory so that LESSEE will be unable to use the Premises for its intended purposes or LESSGE determines that the Premises is no longer technically compatible fur its intended ase, LESSEE shall have the right to terminate this Agreement. Notice o(LESSEE's exercise of its right to terminate shall be given to LESSOR in writing 6y certified mail, velum receipt requested, and shall he c(I CCiive upon the mailing of such notice by LESSEE. All rentals paid to said tcnnination dmz shall be retained by the LESSOR. Uprnt such tcmmination, this Agreement shall become null and void and all the Panics shall have no (usher obligations including the payment of money, to each other. 9. APPROVAL OF PLAN. Prior [o commencing conswetion of LESSEf:'s Facilities (defined below), LESSGE shall obtain LESSOR'S approval of LESSEE'S work plans, which approval shall not be unreasonably withltcld, conditioned, or delayed: such approval shall be issued by the City Manager or his/her designee. LESSOR shall give such approval or provide LESSEE with its requests for changes, which changes must comply with all applicable building codes, in writing within fifteen (IS) working days of LESSOR'S receipt o! LESSEE'S work plans. If LESSGE- does na receive such approval or request for changes in writing within such fifteen (IS) working day period, LESSOR shall be deemed ro have approved the plans. LESSOR shall not he zmitled to receive any additional consideration in exchange for giving its approval of LESSEE'S plans. 10. USE/MAINTC-.NANCE. LESSEG may use the Premises for any lawful activity in connection with the provisions of mobile/wireless communications services, including without limitation, the transmission and the reception of radio communication signals nn various hequencies and [he constntctioq maintenance, and operation of related communications lacilities. Accordingly, LESSEE shall have the right to construct, maintain, install, repair, and operate on the Premises radio communications facilities, including but not limited to, radio frequency transmitting and receiving equipment, batteries, utility lines, trattsmission lines, radio (requency transmitting and receiving antennas and suppetrting stroctures and improvements ("LGSSC:G's Facilities"). All improvements shall be at LESSEE'S sole expense and the installation of all improvements shall be at the discretion and option of LESSEE, with LESSOR approval, which approval shall not be unreasonably withheld, delayed or conditioned. Said approval shall be obtained from LESSOR prior to commencement of arty construction, alterations, modifications or improvements pursuant to Section 9 above, and LESSEE. agrees to submit architectural and engineering drawings ("Plans") u( the equipment to be installed. LESSEE agrees that the insallation and maintenance of LESSHE's Facilities shall be effected with all reasonable diligence and precaution to avoid damage m the land, property or personnel. Notwithstanding the foregoing, once the initial improvements are installed, LESSEE: may «place, substitute, upgrade mtd expand its equipment, cables and antenn;u which comprise LESSGE's Facilities (or the purpose ofrepairing or upgrading the communications capabilities of LESSEE'S Pacilnies, with notice to LESSOR, Sipe M~ LAJ7a75A Z Sire Namc: AJame Yar4 Date 04/:7/7010 _ ~,~F_a so long as the equipment, cables or antennas remain within the original physical parameters of the Premises. LESSEE, shall not make any substantive physical and/or aesthetic changes to the Premises without the prior approval of LESSOR which shall not be unreasonably withheld, conditioned or delayed. Any such changes are subject to the provisions of Section 13 contained herein below. LESSEE shall be responsible for tht cost of any and all damage to the Property including but not IimiteJ [o concrete and/or asphah, buildings and/or appurlrnances caused by LF-SSEF.. LESSOR ¢t its discretion may require LESSEE to repair end or replace said damages or convwt fur sail services and bill LESSEE. The cost of sail repairs can be subtracted from any deposits retained by LESSOR. LESSEE shall have the right to install any warning signs on or about the Premises required by federal, state or local law. LESSEE'S Facilities shall be consweteJ anJ maintained in a manner and with materials that are consistent with the approved plans for the project. The materials actually used must match up with the proposed materials and artistic renderings. LESSOR shall provide LF,SSEE, LF.SSF.E's employees, agents, contractors, subcontractors anJ assigns with access to the Premises twenty-(our (24) hours a day, seven (7) days a week, at no charge to LC-SSC-E. LESSOR represents and warrants that it has full rights of ingress to and egress from the Premises, and hereby grants such rights to LESSEE to Iht extent required to construct, maintain, install and operate LESSF.E's Facilities on the Premises, and to remove them lhere(rom. LESSOR shall, at its sole expense, maintain ell access roadways from the nearest public roadway to the Premises in a manner sufficient to allow reasonable access to the Premises by LESSOR. Except in cases of emergency, LESSEE agrees to provide twenty-(nor (24) hours notice to LESSOR before any inslallalion, maintenance, replacement or repair is to take place on the Premises. In the even that maintenance is required, such as the repainting of LIS51?G's Facilities, wch maintenance must be completed 6y LI:SSEG within thirty (30) days. I I . I NDEMNI FICAI'IUN. A. LESSEE'S Indemnity. LESSEE shall indemnify, del'enJ and hold LESSOR, its oRicers, employees, successors and assigns harmless from and against any and all loss, cost, claim, liability ("Claims") occurting on the Premises and arising out of or connected with the negligence or willful misconduct o(LESSEE, its olTteers, agents, employers, or contractors except for Claims arising out of (i) the negligence ur willful misconduct of LF,SSOR, its officers, agenU, employees, successors, ;usigns, or contracors; (ii) violation of law by LESSOR, its o lTiccrs, agents, employees, or convectors; (iii) the breach of any duty or obligation by LESSOR under this Agreement, or (iv) any condition relating to the Premises which LESSEE has no obligation w repair or maintain. B. LESSOR'S lademnlty. LESSOR shall indemnify, defend anJ hold LESSEE, its u if icers, employees, successors and assigns harmless from and against any and all loss, cost, claim, liability ("Claims") occurring on the Premises and arising out of or connected with the negligence or willful misconduct of LESSOR, its olTicers, agents, employees, or contractors, including, but not limited to City Business as definal m Section 17 below, except for Claims arising out of (i) the negligence or willful misconduct of LESSEE, its officers, agents, employees, or convectors; (ii) violation of law 6y LLSSF.E, its officers, agents, employees, or contracrors; (iii) the breach of any duty ar obligation by LESSEE under dtis Agreement, or (iv) any condition relating to the Premises which LESSOR has no obligation to repair or maintain. 12, INSURANCE. A. In accordance with the provisions of Section 3300 of the Labor Code, if LESSEE has any employees it is required to be insured against liability for worker's compensation or to undertake sal Ginsurance. Prior to commencing performance of this Agreement, LESSEE agrees to obtain anJ maintain employer's liability insurance with limits not less than $1,000,00(1 per accidrnl. If LESSEE has no employees, our workers' compensation coverage, it must execute a Declaration available from LESSOR, and upJate as is necessary. B. LESSEE shall obtain, at its sole cost, a policy or policies of commercial general liability insurance, or equivalent loon, with a combined single limit of not less that) $1,000,000 per occurrence. Such insurance shall (I)name LESSOR, its officers, agents, represenmtives, employers and volunteers as additional insureds (see sample Exhibit C); (2) be primary with respect to insurance or self-insurance programs maintained 6y LESSOR, except claims resuhing from LESSOR'S negligence or misconduct; (3) contain standard separation of insured's provisions; and (4) give to LESSOR prompt and timely notice of claim maJc or suit instituted arising out of LESSEE'S operations hereunder. Site a: LAJJa7$A 3 Site Nmne Adams Park Dote: 0427/^Ola 25F-~ LESSEE shall (a) prior to exercising any right under this Agreement, famish properly execured certificates of insurance and additional insured endorsement to LESSOR which shall clearly evidence all coverages required above; (b) provide that such insurmnce shall not have its required limits reduced or tcnninatzd except on thirty (30) days prior written notice to LESSOR; (c) maintain such insurance for the period covered by this Agreement; and (d) replace such cenificales for policies expiring prior to the expiration of this Agreement. 13. INTER F'ER ENCE. LESSEE'S Facilities shall not disturb the communications configurations, equipment, and frequency, which mist on the Property on the date this Agreement is fully executed ("Pre-Existing Communications"), or public safety communication operations, as may be upgraded periodically, and LESSEE'S Facilities shall comply with all nun-interference rules of the Federal Communications Commission ("FC(:"'). LESSOR shall not use, or permit the use ol', any portion of the Property in any way, which interferes with LESSEE'S use of the Premises ur encroaches upon the Premises. In addition to any other rights LESSEE may have hereunder, LESSEE shall hove the right to bring legal action to enjoin such interference against the party causing any alleged interference and/or immediately terminate this Agreement. Notwithstanding the foregoing, Pre-Existing Connnunicotions operating in the same manner as on thz date this Agreement is fully execued shell not be deemed interference. LESSOR shell raga"ve any future tenants, assignees, licensees, or occupants using any portion of the Property Cor the operation of mobile/wireless or radio communications facilities [o comply with the provisions of this Section and shall obtain LESSEE'S wrieen consent prior to allowing such use of the Propert}', which such consent shall not be tuveasonably withheld, conditioned, or delayed, provided that LESSEE'S consent may be withheld if interference with LESSEE'S transmissions, receptions, operations, or use of frequency will result due to such use, whether or not such inerferenee is with LESSEES Geyuencies or otherwise. "fhe City Manager shall determine whether consent is unreasonably withheld and may require LESSEE to consent subject to the above conditions. In the event of any interkrence with LESSOR'S public salary communications operations, LESSEE shall have twenty-four (24) hours after receipt of notice to cure the interference, mtd if LESSEE fails m do so, LESSOR has the right to require that LESSEE cease operating LESSEE'S Facilities (except for intermittent testing to determine the source of the interference) until LESSEE is able m recommence operations without causing such interference. If LESSEE'S Facilities interfere with LESSOR'S public safety communications operations during an emergency, LESSOR may require shat LESSEE immediately cease operating LESSEE'S Facilities and if LESSEE fails to do so, LESSOR has thr right to shutdown the electricity supply to LESSEE'S Facilities. LESSEE shall reimburse LESSOR for any actual, reasonable costs that LESSOR incurs to cure any interference wish LESSOR'S public safety communications operations caused by LESSEE'S Facilities. 14. REMOVAL_41PON TERMINATION. LESSEE, upon expiration or earlier termination of the Agreement, shall, within ninety (90) days, remove all of LESSEGs fixtures and all personal properly end otherwise restore the Premises substantially to its original condition, al LESSEE'S sole expense, reasonable wear and tear, and casualty excepted. Underground conduits, foundations and equipmendstorage buildings may remain al LESSOR'S option. LESSOR agrees and acknowledges that all of the equipment, fixtures and personal property of LL•SSEG shall remain the persowl property of LESSEE end LESSEE shall have the right to remove the same, whether or nut said items are considered fixtures and attachments to real property under applicable law. If such time for removal causes LESSEE to remain on the Premises past the aforementioned ninety (90) day period after the expiration or carlirr temtination of this Agreement, LESSEE shall pay rent al the thrn existing monthly mte or on the existing monthly pro-mla basis if based upon a longer payment term, until such time es the removal of dtc building, antenna strucwrc, fixtures and all personal properly are completed. Antenna support structure and all utilities cabling and wiring shall remain at LESSOR'S option in its as-is condition. ' I5. RECORDING AND QUITCLAIM DECD. If requested by LESSEE, LESSOR agrees promptly to execute and deliver to LESSEE a recordable Memorandum of this Land Lease Agreement in the form of Exhibit "F". LESSEE agrees to execute and record a quitclaim deed or other instrument evidencing dtc termination of LESSF.E's interest in the Property upon the expiration or temtinalion of this Agreen+enl. 16. RIGHTS UPON SALE. Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any pan of the Property to a purchaser other than LESSEE, such sale shall be under and subject to this Agreement and LESSEES rights hereunder, end any sale by the LESSOR of the portion of this Property underlying the right-of-way herein granted shall be under and subject to the right of LESSEE in and to such right•of-way. LESSOR shall obtain For the benelit of LESSEE a reasonable non-disturbance agreemem from the present and any (uwre mortgagee(s) or holder(s) of a deed of trust confirming that LESSEE'S right to yuicr liu b: LA 7}a75A 4 Sim Namc: AJams Park Dem. 04/?7i^_010 _ ~,~F_~ possession of the Premises during this Agreement shall not be disturbed, so long as LESSEE is nut in default under this Agreement. 17. OUIf;T ENJOYMENT. LESSOR covenants that LESSEE, an paying the rent and performing the covenants shall peaceably and quietly have, hold and enjoy the Premises, provided however, that LESSOR shall have the right and privilege to conduct City Business on the Property, as necessary. "City Business" shall include, but nut be limited to the following: minor maintenance, minor landscaping, minor construction, concessionaires, and City sponsored events, located near the Premises, so long as the City Business dots not interfere with or impair the operation of LL•SSGE's Facilities. I8. TITLE. LESSOR covensnts that LESS(7R is seized of good and sufficiem tide and interest to the Properly and has full authority to enter into end execute this Agreement. LESSOR funkier covenants that there are no other liens, judgments or impediments of title on the Property or aflbcting LESSOR'S title to the same and Thal there arc no covenants-, easements or restrictions which prevent the use of the Premises by LESSEE us set forth abovo. 19. NO LIEN. LESSEE will not pemtit any mechanics' or materialmen's liens nn the Property for any labor or nracerial famished to LESSF,E in connection with work performed. LESSEE shall have the right to contest the validity, nature, or amount of any such lien but, upon the final determinmion of such questions, shall immediarely pay any adverse judgmem rendered with all proper costs and charges and have the lien released at its own expense. If LL'SSEE desires to contest any such lien, then prior to commencing such contest, it will post a bond, where necessary, to release the lien. ?(1. MISCE LLANF.OUS LESSEE RF,SPQN}IIi1Ll_I'I ES. A. Maximum Permissible Exposure - LESSEE shall comply with all present and future laws, orders and regulations relating to Maximum Permissible Exposure (`MPE'~ and other related health issues directly applicable to its operation of LESSEE'S Facilities, as well as the American National Standards Institute (ANSI) standards. Without limiting the provisions of LESSEE'S indemnity contained herein, LESSEE, on behalf of iuel(and its successors and assigns, shall indemnify LESSOR from and against all claims of personal injuries due ur violation o(MPG to the extent such personal injuries arc actually caused by LF,SSEE's Facilities on the Premises. B. LESSEE shall mainwin LESSEE'S Facilities and shall make all repairs to the Premises necessitated to keep the Premises safe. LESSON may require LESSEE to make repairs to endlor replace damaged equipment of LGSSL"E's Facilities and/or any pans thereto regardless of Fault (including but not limited to damage cauxd by vundahsm or acts of god not later than one (I) week after said damage is reported to LESSF,E, except for damage caused by LESSOR. This time period may be extended with written authorization from the City Manager. In the event such authorization is not given and repairs are not made in one week, LESSOR may cause such repairs Io be made including making said repairs andJor hiring a consultant to make said repairs. LESSOR may charge LESSEE For the cost of said services. Damage caused by graffiti shall be removed within forty-eight (48) hours notification to LESSEE by LESSOR. If said graffiti is not removed within the 48-hour period, City may remove said graffiti and bill LESSEE for the cost of services. C LESSEE shall pay all personal property taxes assessed directly against its equipmem and all increases in LESSOR'S real property taxes or assessments directly attributable to installation of LESSEE'S equipmem or LESSEE'S use of the Premises, within sixty (60) days aRer receipt of satisfactory documentation indicating calculmion of LESSEE'S share of such roal astute tuxes and proof of payment provided that such amounts are in fact due within the said sixty (60)-day period. LESSEE has the right to challenge any unrwsonable lax acscssmcnt. D. LESSOR grants LESSEE the right to obtain utilities for the operation of LESSEE'S Facilities. LESSEE shall be responsible directly to the serving entities for any and all utilities required by LESSF. F, for its use of the Premises. LESSOR shall cooperate wish LESSEE in its elforLS to obtain utilities from any Iceation provided by LESSOR or the servicing utility, including signing any easement or other instrument reasonably required by the wilily company. E. LESSEE shall have the right ur replace or repair its equipment or arty portion thereof during the tcmt of this Agreemem. LESSEE will maintain the Premises in a good condition, reasonable wear and tear excepted. Sim q: I-AAx75A $ Sire Name Adunu Park ?alc na,':7/2eln G _7 21. LESSOR USE OF SITE. LESSE[ shall make available to the police, fire and emergency services of the City of Santa Ana space on its communications tower at no cost [o LESSEE ar said entities, subject to structural analysis. In addition, if the communicatons tower is a 6a11 field light standard design, then light bulbs installed on LESSEE'S tower will be owned and maintained by the Parks Department of the City of Santa Ana. The City of Santa Ana is responsible for maintaining its own equipment The space to be made available will not create interference with LESSEE'S communications operations- As to any future subleases, their respective install¢lioru will be ptmtitled only at such locations [hat will not cause interference with LESSEE or LESSOR and the City's optrations. The City entities will be afforded 24-hour access to its equipment at the Property. In addition, the City will bt provided "power backup' by LESSEE, i(avail¢ble at the Premises. 22. IN"[EGRATI_O_N. his agrxd and undersloud that this Agreement contains all agreements, promises and understandings between the LESSOR and LESSEE and that no verbal or oral agreements, promises or understandings shall he binding upon either the LESSOR or LESSEE in any dispme, controversy or proceeding at law, and any addition, varimion or modification to this Agreement shall be void and ine lfective unless made in writing and signed by the Panics. In the even any provision of the Agreement is found [o be invalid or unenforceable, such finding shall not a6'ec[ the volidity and enforceability of the remaining provisions oY' this - Agreement The failure of either Party to insist upon strict performance of any of the terms or conditions ul'this Agreement or to exercise any o(its rights under the Agreement shall not waive such rights and such PatTy shall have the right to enforce such rights at any time and [eke such action as may be lawful and au[hmrizcJ under this Agreement, either in law or in equity. 23. GOVERNING LAW. This Agreement and the performance thereof' shall be governed, imcrprcttd, construed, and regulated by the laws of the State uI California, with vrnue in Orange County. 24. AT TTORNI,Y S'. FEES. The substantially prevailing party in any legal action or lawsuit arising hereunder shall bt entitled to its reasonable auomeys' fees and court cosu, including appeals, if any. 25. ASSIGNMENT AND CO-LOCATION. A. LESSEE will not assign or vansfcr this Agrtcmznt without the prior written consent of Lf;SSOR, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, th¢t LESSEE shall have the right to assign its rights under this Agreement to wq of LF.SSEE's (i) partners, parents, subsidiaries, affiliates, or successor legal entities, (ii) in connection with the salt, exchange, or other transfer of LESSEE'S FCC aulhoriration for the geographic area in which the Premses are located or of majority of LESSEE'S network assets in the geographic area where the Premises are located, or (iii) in connection wish any financing, loan, security interest pledge, or mortgage of LESSEE'S property. B. LESSEE, acknowledges and agrees Thal the City policy is to provide for co-location on communication tower facilities and will reasonably facilitate any co-location subject m the conditions outlined in Paragraph 13 (INTERFERENCE). LESSEE further agrees the[ LESSOR shell retain ownership of any FuNter Icuse rights with respect to spate for additional communication facilities on the Property, other than the Premises which is already leased to Lessee. Further, regarding co-location/subltasing space on LESSEE'S tower, LESSEE shall enter into a Tower Lease Agreement or sublease, subjec[ to all permits and approvals From all governmental agencies having jurisdiction thereover, with a future tower co-locatiom user, subject to LESSOR receiving a portion of the tower trot that is mutually agreed upon by both LESSOR and LESSEE. LESSEI: shall provide for LGSSOR's consem on any Tower Least Agreement, ur sublease anJ affidavits stating the sublensc rent Tftc P.uty's intent in allowing LESSEE to collect rent is to provide a means by which LESSEE con recoup tts cost of construction end maintenance of said lower facilities on a pro-rata basis with subsequent users. The Panics intend that LESSOR, and not LESSEE, should benefit firwncially, from any luture rower co-location agreement Any future eerier or co- loca~or shall enter into a separate ground Icase egrecmnnt with the City. 2(i. NOTICES. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return nroeipt requested or by commercial courier, provided the courier's regular business is deliveq~ service and provided Ponher that it guarantees delivery w the addressee by the end of the next business day following the courier's receipt (torn the sender, addressed as follows (or any other address that the Patty to be notified may have designated to the sender by like notice): Site p: LA37a35A fi Sire Name: Adumx Pork Dare: W/~7l°010 _ 7 LGSSOIi: City of Sanw Ana Clerk of the Council 20 Civic Center Plea (M-30) P.O. Box 1988 Santa Ana, CA 42702 Courtesy City of Santa Ana -Office of the City Anomcy Copies to 20 Civic Center Plaza (M-29) P.O. Box 1986 Santa Ana, California 92702 LESSEE: T-Mobile USA, Inc. 12920 SE 38's Street Bellevue, WA 98006 Attn: PCS Leese Administrator, Sim p: LA33835A W ilh a copy to: Attn: Legal Dept. Copy lo: T-Mobile West Corporation 2008 McCaw Avenue Irvine, CA 92614 Alm: Lease Administration Manager. Site N: LAJ3835A Notice shall be effective upon mailing or delivering the same to a commercial courier, as permitted above. 27. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal represcnwtives, successors, administrators and assigns of the Parries hereto. 26. RELOCATION RIGHT. A. Anytime within the initial term, LESSOR shall have the right to cause LESSEE to relocate LIiSSEF,'s Facilities to almmate space on the Property; provided however, that such relocation shall (I) be at LESSOR'S cost and expense which shall be limited to reasonable expenses of moving and re-installing the tower strucwre and accompanying equipment, including [he cost of City permits and fees which LESBOR may legally pay, (2) be performed by LESSER or its agents, (3) not result in any interruption of the communications service provided by LESSEE on the Progeny, (4) not impair, or in any manner alter, the quality of communications service provided by LESSEE on and from the Propert}~, and (5) be done in accordance with subsections B and C below. Upon relocation of LESSEE'S Facilities, the access and utility rights of way will he reloeamd as required, in the sole discretion of LESSOR, to operate and mainwin LESSEE'S Facilities. B. LESSOR shall exercise its relocation right under subsection A above by (and only by) delivering written notice (the "Notice°) to LESSEE. In the Notice, LESSOR shall propose an alternate site within or on the Property to which LESSEE may relocate LESSEE'S Facilities. LESSEE shall hove sixty (GO) days from the date it receives the Notice to evaluate LESSOR'S proposed relaxation site, during which period LESSEE shall have the right to carduct costs to detemtine the technological feasibility of the proposed relocation site. If LESSEE fails to disapprove of such proposed relocation site in writing within the sixty-0ay period, LESSEE shall be deemed have approved such proposed relaxation site. If LESSEE disapproves such relocation site, then LESSOR may thereafter propose another relocation Sim by Notice to LESSEE in the manner set forth above. Any relocation site which LESSOR and LESSEE agree upon in writing shall be referred to as the "Relocation Site:' LF,SSEE shall have up to twelve (12) months after execution of a written agreement between the parties concerning the locution and dimensions of the Relocation Site to relocate LESSEE'S Facilities to the Kelocutiar Sim. Upon relocation of LESSF.E's Facilities to the Relocation Site, all relirences to the Premises herein shall be deemed [o be references w the Relocation Site. LESSOR and LESSEE agree that the Relocation Sitc (including the access and wiliry right of way) may be surveyed by a licensed surveyor at the sole cost of LESSEE., and such survey will thtn replace Exhibit "B" and become a pan hereof and will control or describe the Premises. Except as expressly provided, LESSOR and LESSL"E hereby agree that in no event will the relocation of LESSEE'S Pacilitios, or any part thereof, under subsection A above, affect, alter, modify or otherwise change any of the mints and conditions of this Agreement. Sim M: LA]]8)SA 7 Siro Numc..4damv ParA n:ur. uamcoio 7~.G_Q C. Should the panics fail to agree on a suitable Relocation Site, LESSOR may pay LISSSEE the depreciated value for LESSBE's Facilities and equipment, based on a ten-year lease period. 29. DEFAULT. In the event there is a default by either pony with respect to any of the provisions u(this Agreement or its obligations under it, including the payment of rent, the not-0efaulting party shall give the defaulting parry written notice of wch default. After receipt of such written notice, the defaulting pony shall have fiftren (IS) days N which to cure any monetary default and thirty (30) days in which to cure any non-monetary default, provided the defaulting patty shell have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and the defaulting party commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. The non-detaulting party may not maintain any action or atlccl any comedies for default against [hc defauldng party unless and omit die defauhing party has (ailed m cure the same within the lime periods provided in this Section. II'either parry commences an action against the other piny arising out of or in connection with this Agreement, the prevailing parry shall be entitlal to have and recover fmm the losing piny reasonable attorney's fees and costs of suit. 30. ENVIRONMENTAL. A. LFSSP,E shall not bring any HazarJous Materials unto the PremiseslProperty, ezcepl for those contained in its back-up power batteries and common materials used in telecommunications operations. "Hazardous Materials" shall mean any substance, chemical or waste identified es hazardous, toxic or dangerous in any applicable federal, stair or Icenl law or regulation, including petroleum and asbestos. LESSEE will [rent m3J dispose of any Hazardous Materials brought onto the Premises/Proprrty by it in accordance with all federal, note and local laws and regulations. B. LESSOR will br responsible for all obligations of compliance with any and all environmenuil and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard m any environmental or industrial hygiene conditions or concerns as may now or at any time hhreafer be in etTect, that are or were in any way related to activity now conducted in, on, or in any way related to the Property, unless such conditions or concems are caused by the activities of LESSEE. C. LESSOR shall hold LESSEE harmless and indemnify LESSEE liom and assume all duties, responsibility and liability m LESSOR's sole cost end expense, 1'or all duties, responsibilities, and liability (including bw not limited to payment of penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is in atty way related to: (i) failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard m any environmental or industrial hygiene concems or conditions as may now or at any time hereafter be in effect, unless such compliance results from conditions caused by LESSEE; nnJ (ii) any environmental or indusuial hygiene conditions arising out of or in ;my way related to the conditiml of the Property or activities conducted thereon, unless such environmental conditiots are roused by LESSEE. 31, CASUALTY. In the even nl' damage by fire ar other casualty to the Premises that cannot reasonably be expected Io be repaired within sixty (60) days following same or, if the Property is damaged by fire or other casualty so tlmt such damage may reasonably be expected to disrupt LESSEE'S operations at the Premises tiu more than sixty (GO) days, then LIiSSEF, may nt any time following such fire or other casualty, provided LESSOR has not commenced the restoration required [o permit LESSEE to resume its operation at [he Premises, temtinatc this Agreement upon twenty (?U) days wriual notice to LESSOR. Any such notice of termination shall cause this Agrecrnem to expire with dtc same Ibrce and effect as though the date set (onh in such notice were the date originally set as the expiration date of this Agrecmcnt and the parties shall make era appropriate adjustmem, as of such termination Jate, with resprd to payments due to the other under this Agreement. I(LESSEE decides not ro temtinatr this Agreement, Rem shall he abated proportionally to the reduction of use. J2. CONDEMNATION. In the avant o(any condemnation of the Premises, LESSEE' may terminals this Agrecmcnt upon Gfleen (15) days written notice to LESSOR. LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises (or losses related to the antennas, equipment, its relocation costs and its damages and losses, and any other amount recoverable by LESSEE under condemnation law (but nut Site p: LAJ3833A g Site Neme: r\Oxms York Dale_ 0a/?712010 n (or the loss of its leasehold interest). Any such notice of termination shall cause this Agreement to expire with the same farce and effect as though the date set forth in such notice were the dote originally set as the expiration date n( this Agretmtnt and the parties shall make an appropriate adjustment as of such termination date with respect to payments dot to the other under this Agreement. 33. SUBMISSION OF LEASE. The submission of this Agreement far examination dos nut constitute an otter to lease the Premises and this Agreemzm becomes effective only upon Ihr full execution of this Agreement by [he Ponies. If any provision herein is invalid, it shall br considered deleted from This Agreement and shall na invnGdatc the remaining provisions of [his Agreement. 34. APPLICABLE LAWS. LESSEE; shall use the Premises for the use described herein in accordance with applicable Inws, rules and regulations. LESSOR agrees to keep the Property in con fonnanee with all applicable, Imes, rules and regulations and agrees to reasonably cooperate with LESSEE regarding any compliance required by LESSEE in respect Io its use of the Premises. 33. SURVIVAL. The provisions of Ihr Agreement relating to indemnification from one Party w the other Piny shell survive any termination or expiration of this Agreement. Additionally, any provisions of this Agreement, which require. pertbnnance subseyuzm to the termination, or expiration of this Agreement shall also survive such termination or expiration. 36. CA_PI',IQNS. The captions contained in this Agreement err inserted for convenience only and arc not intended to be pan of the Agreement. They shall not affect or be utilized in the construction or interpretation of the Agreement. 37. PROPERTY SPECIFIC ACCESS RULES/REGULATIONS. To the extent that such rules err not inconsistem with ur do not interfere with LESSEE'S rights herein, LESSEE agrczs to abide 6y ell rules and regulations of the Property and Premises imposed by LESSOR as set forth in Exhibit D, attached harem, as Ihr same mny be changed from time to time upon reasonable notice to LESSEE. These rules and regulntions arc specific to the Facilities site and are imposed to insure the proper rnaintrnance, gaud order and reasonable use ol'the Premises and Pnrpuny and as may be necessary fur the enjoyment of the Premises and Propzny by both ponies hereto. 3d. POWERING DOWN DURING MAINTENANCE /REPAIR. LESSEE agrees that during all maintenance on the Communications Facility by the LESSOR or other lessees or users of the Facility, while following the procedures and guidelines set forth by the Occupational Salety and Health Administration (OSHA) and the FCC implementing the National tnvironmenml Policy Act of 1969, when continuing transmission is deemed unsafe for maintenance personnel (based upon standards promulgated by a govemmenlal authority having jurisdiction over LESSEE) due to radiation, the effected hsnsmilters of LESSEE will be fumed off until the unsafe condition no longer exists. The earliest practicable notice will be given m LESSF. F. using the information in Exhibit E, as applicable. 39. TERMINATION. A. Compelled Terminetlon: If, during the lease term, there is a determination made pursuant ro an unappealable order of a courtly, state, or national govcmmental hznllh agency having proper jurisdiction over LESSEE'S operations that LESSEE'S' use of the Premises posos' a human health hazard which cannot be remedied and Ihet LESSEE, must cease all operations on the Premises, then LESSGB shall immediately tense all operations on the Premises and this Agrremem shall terminate az of the date oFsuch order. In the event the Federal Communications Commission, or any successor agency, makes a determination which is foal and non- appealable or which is affirmed and becomes final alter the exhaustion of all available appeals concluding that LESSEE'S use as seI I-orth in this Agreement presenu n material risk to the public health or safety end that LESSEE must cease ell operations un the Premises, LESSOR may terminate this Agreement upon fourteen (IA) days notice to LESSEE.. B. Tcrminatiun by LESSEE: LESSEE may terminate this Agreement by notice to LESSOR if (i) LESSEfi dues not obtain all permits, consents, easements, non-disturbance agreements or other approvals (collectively "approval") reasonahly desired by LESSEE or required from any govemmenlal authority or any third party related to or reasonably necessary to operate, install, maintain, replace, or remove LESSF:E'e Facilities, or if any such approval is canceled, expires or is withdrawn or terminated widraut any fault o(LESSEE, or (ii) LESSOR fails to have proper ownership of the Premises or the authority to toter into this Agreement, or Stu q: LA77a35A 9 Site Name: Adams Park Deter 04Q7/1010 (iii) LESSOR fails to cure a default pursuant to Section 29. Upon termination, all prepaid rent shall be retained by LESSOR, unless termination is pursuant to (ii) above or (iii) above as the rzsult of LESSOR'S default. C Termination by LESSOR: LESSOR may terminate this Agreement if LESSEE tails to perform any of its obligations pursuam [o this Agreement (including all attached BxhibiulAttachments) after giving written notice to LESSEE and reasonable time m cure as set forth in Section 29. 40. MIS LLANEOUS PROVISIONS. A. Each undersigned represents and warrants thot its signature herein below has dte power, authority and right to bind their respective parties to each of the terms of this Agreement, mtJ each pany shall indemnify the other fully, including reasonable costs and uttomey's (ees, for wry injuries or damages incurred in the event Otat such authority or power is not, in fact, held 6y the signatory or is withdrawn. B. All C-.xhibiu referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. C. LESSOR shall not have unsupervised access to LESSEE'S eyuipment and LESSEE'S Facilities, except in dues of exigrnt circumstances or emergency situations. IN WITNESS WFIGREOF, the panics hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUI7.AR DAVID N. REAM Clerk of the Council Ciry Managzr APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attomey Bv: LAURA SHEEDY AssistOm City Attomey ~ LGSSIIP;: T-MOBILE WEST CORPORATION By: Name: Iis: Date: Sim M: LAJ3875A 10 Sim Name: Adams Part: Dale: 09.27/2010 ~ftCC~A ~f _ EXHIBIT A LECAL DESCRIPTION OF THE PROPERTY APN: 408-4? I -02 All Ihul certain real property located in the County of Orange, Smte of California, being more particularly described as follows: A PORTION OF THE KUFFEL AND FLETCHER TRACT, IN THE CITY OF SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 19, PAGES 48 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: THE SOUTH I/2 OF PARCEL OF LAND DESCRIBED AS FOLLOWS; BEGINNING AT A POINT IN THE SOUTH LINE OF SAID KUFFEL AND FLETCHER TRACT, SAID POINT BEING DISTANT NORTH 87° 44' 45" EAST 2455.12 FEET FROM THE INTERSECTION OF THE CENTERLINE OF OLD NEWPORT ROAD AND DELHI ROAD, AS SHOWN ON A MAP FILED IN BOOK 7, PAGE 9 OF RECORDS Of SURVEY, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA, SAID POINT BEING THE MOST SOUTHERLY CORNER OF A CERTAIN PARCEL OF LAND DESCRIBED IN THE DEED RECORDED November 27, 1936, IN BOOK 849, PAGE 477, OF OFFICIAL RECORDS; THENCE NORTH 1° 00' 200" WEST, ALONG THE EAST LINE OF SAID PARCEL OF LAND 1067.44 TO THE NORTHEAST CORNER THEREOF; THENCE SOUTH 88° 48' 20" WEST 547.19 FEET TO A POINT; THENCE SOUTH 1° 00' 20" EAST 1077.56 FEET TO A POINT IN THE SOUTH LINE OF SAID KUFFEL AND FLETCHER TRACT; THENCE NORTH 87° 44' 45" EASE 547.31 FEET TO THE POINT OF BEGINNING. LESSOR INITIALS: LESSER INITIALS: Sire A: 1..4]3R)S.A 1 I Sire Name: AJama Yark Uam'. U5R],2010 ~c~ EXHIBIT B LEGAL DESCRIPTION OF THE PREMISES SITE, PLANS/ DESCRIPTTVE RENDERINGS Flowever, it is expressly agreed and understood by and between the LESSOR and LESSEE that the exact and pn:cisc location of the LESSEE'S Fac7lities are subject to review and approval by the planning and/or zoning Boards having jurisdiction over the "Premises". Therefore, it is expressly agreed and understood by and between LESSOR and LESSEE that the precise location of the Premises as shown on Exhibit "B" may be modified by the LESSEE in order to comply with and obtain necessary planning and/or caning approvals, and any and all other approvals necessary for LF.SSEE's intended use of the property. The Premises as described herein may therefore be modified by the LESSEE to rellect the final engineering design. An amended Exhibit "B" (if necessary) will be provided by the LESSEE, and auached to the lease in place of the existing Exhibit "B", a copy of which will be provided to the LESSOR for review prior to 6cing incorporated inW the Agreentenl. See the attached drawings dated 0383/10, Sheds A-I, A-2, A-3, & A-0, identified with Site Information: Adams Park, LA33835A. In addition to the approximately 203 square feet depicted on the attached drawings for LESSEE'S underground cyuipmenl vault, the Premises also includes space adjacent to the vault for vent stacks, space for LESSEG's communications tower Might standard) for LESSEE'S antennas, plus space 1'or coax and cable runs connect the radio equiplncnt and antennas. For purposes of describing the Premises and LESSEE'S Facilities only, LESSEE will design a 11'-9" x 17'-3" eyuipmcnt vault just nosh of the existing parking lot and a new sports fighting poly to houac their antcm .v. The new light pole will be consweted further south to allow additional roam for the ball fielJ and the old light pnk will be rcntovcJ. LESSEE INITIALS: LESSOR INITIALS: Site A: LA77a7?A 12 Sire Nam<: Adams Pork Dale: b4'27801U EXHIHIT C ADDITIONAL INSURED ENDORSEMENT 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 92702; its officers, employees, agents and volunteers are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from [he operations and uses performed by or on behalf ofthe 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 sepazately 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 canceled, 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 92702. (Completion of the following, including countersignature, is rcyuired to make this endorsement effective.) Effective this endorsement form as a part of Policy # Issued [o Named Insured Countersigned by Authorized Representative Sim 4; LNIA?5n I3 tii~c N:nne'..1Janis YwA ooi~~ iwa7n_mn ~r ~ ~ ~ EXHIBIT D PROPERTY SPECIFIC ACCESS RULF.S/REGULATIONS 1. LESSOR shall have the unilateral right and privilege to undertake all normal items and operations associated with the current use of the Property, including, but not limited to public events and City business, which may include high powered electric lights and food services, arrange for the televising of any public event to be held al the Property, and ability to contract with other interested parties. 2. City business may also include minor landscaping, minor maintenance and minor construction proximately located near the Premises, so long as the City business does not interfere with or impair the operation of LESSEE'S Facilities. 3. LESSEE'S access to [he Premises shall be limited when the Premises is being used for a public event, and the four (4) hours before and after any such event. LESSEE will obey any procedures set by LESSOR regarding notification before visiting the Premises, checking in on-site, parking, gates, etc. Sim q: LA73B]SA U Sire Name, Adams Yark Dam; 04l?7/,DID A EXHIBIT E CONTACT fNFOFtMAT10N: LESSOR'S TECHNICAL CONTACTS: Name: Santa .Arta Parks, Rcaealion and Cornmunity Services Agency I . Ron Ono Address: 20 Civic Center Plaza (M-23) Santa Ana, CA 92702 Daytime Phone No.: 714-571-4220 FacsimileNo.: (7ta)57t-4209 24-Hour Contac[ No.: Dispatch Center: N/A LESSEE'S TECHNICAL CONTACTS: Name: I. Robert Norton 2, Luis Gonzales Address: 2008 McCaw Avenue Irvine, CA 926]4 Daytime Phone No.: (7l4) 850-2403 Facsimile No.: (714) 850-6620 24-Hour Contact No.: N.O.C. (888) 662-4662 Dispatch Center: N.O.C. (888) 662-4662 Sic N: LA736)SA I$ Sim ~~'ame: Adams Park tJaIU: W27l20~U ~ e€ ~ 7 EXHISTI' F MEMORANDUM OF LAND LEASE ACREEII7ENT THIS MEMORANDUM OF LAND LEASE AGREEMENT is made and entered into as of 2010, by and between City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the Stare of California ("Lessor") and T-Mobile West Corporation, a Delaware corporation ("Lessen"). W ITNESSETI{: That Lessor hereby leases to Lessee and Lessee hereby leases from Lessor a portion of that certain rc~l property (the "Property") in the State of California, County of Orange, City of Santa Ana commonly known as 2302 S. Raill Street, Santa Ane, CA 92704, a legal description of which is shown in Exhibit A attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded Land Lease Agreement by and between Lessor and Lessee dated by Lessor _ , 2010, and incorporated herein by reference (the "Agreement") Ibr un initial term of ten (10) years, commencing on the Commencement Dale, as defined in the Agreement, and three (3) subsequent optional extension terms of live years each, pursuant to [he teens of the Agreement 1'he Agreement provides for grant of non-exclusive right of way for rights of access to the Property and to electrical and telephone facilities serving the Property. IN WITNESS WHEREOF, the parties have executed the Memorandum us of the day and year first above written. LESSEE: T-Mobile West Corporation, a Delaware corporation ay: Name: Title: Date: Address: 2008 McCaw Avenue Irvine, CA 92614 Attn: Lutsc Administration Manager, Site q: LA33835A LESSOR: City of Santa Ana H}': Narne: DAVID N. REAM Title: City Manager Dale: Address: 20 Civic Center Plaza Santa Ana, CA 92702 ~ FORM llOCUMENT, PLEASE INITIAL ONLY -NOT POR EXECUTION] LESSEE INITIALS: LESSOR INITIALS: Si¢ Y: LA77875A 16 Side Name: Adams Park o,u~: oain~zoio 7GC_~ Q , j ' a ' AAA 1 f' ti ~ i II~ ~~t1 k € g ~ a' '6t0 H . Y i~ G gpp qq ~ ~°8 Y ~ ~py 111 5_- 7 r qP ~ 'iSL"'~~ ~ 8 k k 1 1 y k g i iApAt w+ Z I ~~t~ 7 i ~ i~~__ ~ _ ~1 !i}9}t E~1~ Q ~ Q ~ - ~ i f. ~ ~ I ~ ! 1 F fltl N , i ay w. ~ `y a 1~, Z ~ ~ ~ 45~V i5t4. ~1~ . ~ O - _.__..z- ~tl6 . _~IEili~ V V = 6~r~ ~ a ~ 3 ~~8~ J ~ t#~~~!~ I o ~ ~ 1~9~ Y a ~ ~•ip ~ Y o m 1l.I > i1~t ~=p tt Y ~~fta A~6~8 d ~li ~ Y ~ Q ~ s tia11 s~l~ ~ gg 99 5~ pp H ~ ~ ~ f' t p ~6~1! y~p3~e48 ~ 1 ~~.Op9iA di~6 ! !11 1 t 9e y1 Y8 ~~Yp 99y qt a~s~0r~~ gg ~°+re fn fn ~9t ~E l~t ~Bt~Q Yr~s~l ~C~61~~5~ 91~YEtr 9s±4tr ~Gr ~ D Y p 5g ~°~~lo `3i~0 4 ~ ~ ~,~~e ~ r ~ii ` !~ll~~~ a e9~ - - a~ a ii $ i{~9i ~ Q ~ ;$I ~ E o 3 ~®i w _ , _ ° > 15 ~9 v E ~ y? i. ~ + H _ g~ ~Q ~ - _ - _ ~s.,~, -r--------- e - ~iii~{{~ 7 ~ ~ ~ ~I J a _ 6 b ~ 6 i ` ~ 3y ~ ~1 ~B~ I ~~I 1!6 - 4 - ~ i ~ e oe _ _ _ u w ~ ~ 1 ~ ~I ~ w ; r. ~9 't ~ ~ - ~ s - i a IS r~~~ ~ 3 a ~ ' s e ~ a , I 'I it "I ~I I~ ' BIB t S~ ~ ~ y it i sl ~ 11 ~ ~If ~ yl a t~ ~ ! I, ~_-i_ _ i i L ~ -L _ - - - is ui iu3~ _ ~ gsti 7GC_~A _ ~ iv 3 6 a } f P A a irlP ; S ]o ~ aa f~~ o i r 6 3 i E ~ J I A E d G W Y 9< P~~df r ~ ~ ~,a fr i Il~~l~~ ff` ~ ~ ~d ~ ~ ~ ij ~ica~ ~ ~ Q , _ - . i ~ f ~I 3 ~,j r~~ f~ ~ PP I R~ II_ ~ , ~ II ~ I i i _ o~ yy y9 ~ i ~a' 3e ed a t ~ _ ~ 9 i ~ Ej Psi _t ~ 8 of I 1~ 4 ~;P ~ I 9i ~ 9' ,f ~ - ' I I of a e$ P~ I ° ~ ~ ~ u / J ~ ~L, z ,.;~'~~d a PS ..a __-V .J J P~S uri P: ~9i Z ig ~ n v ~j Oo z o it is ~ i ' ll ~ PPsir--- --1 ~ ~ -J~,1,r r-Y-1 Ooh li'I~ iih_ _J ri~~ lair ~ i PCP L.3 -.~_,r 3, - - j~. fd 3 d~a4 il' ~ ;3 ~ . ~ P Pit P 1P~ ~ r-,:, ~ r Mfg „ 1'I gN ~ S ' Y ~ 8 II IIg` PP;~ ~fs ~ ~ P~i .~;~r, S ~ ~-5~-~ ~ I . Il~i~l~ r ! II I~!-°l!1 l l .I 1-.1.~lul Y II II ~:f~RII II ~ - I - Y i; , ~~i'~(' sii'~=. a _ $ H 3~ ~~i~~v ~ c? . I~ ~f61~~~ Wi~r~{ gg Q q < I1f~. ~ a ~ ~ II, ~ I~! , .._t. a IM a I I I_ M ~ I ~_--~:z..~ - ~ e ~ a ~a ' I ~ i ! , ~a_ llil~ ~ s~ ~'I I I ~I r ~ r~ ~ I!~ Is s ~;I ~ li ~ 1E 9~ ~ ( I s ~ ~ I ~ ~ II ~~-:ter.-= ~ ~ ~ ~ w ~ c I ~ L . Il~l~li ~ i II I~I-~ ~1-.1-~--~a--~-~-lul x II II ~~il~ll II ` 1 ~ ~ Y i~E~ .Q Sf ia~ i o°~ a a~ ~ ~ °d " 1 e BE t C~ ~ ~ _ ~ ~ ~ s ~ ~~~~~1 ~ ~ E~ ! t ~ o . N ~1§ ~ w . ~ ~ ~ ~M Y~v yw.. ~ wA~~ der ~ lY ~WSi~~YS Yw I i~~~i~~~~1sf I I ~ I(! I I ~ ~t~t F(1 ~ t ~ I~ ~f ~ I ~ r ~ L~ 1 1 e sr', tw ( 1 i y 5 4 - 1~ 1~ ! p~ !I ~ I I ( (I i, I I_ ~ _ ~ ~.a~,..__. --._r__ ~ ~ w ~ ~ 0 Z ~e€_~~ ri a; r a>~ Z o ~ ¦ a i ~C~ EE n. ~ ] • i SXSXSXSX9 6 ¦ ~ W Q ~~Xm n ti 9 r ~l~ a ~ °i v ~ ~ « n P r M ~ L A ~ M~,~ W o< - MaN N ~ ~ C 1 M ~n S J N 17 I r ~ ~ ~ ~ ~ ~ V n~ y ~ y61 . W ~~gpp ~ ~ ~ ~ 555 m Cp 3E awl ¦ !R • y6 ¦ u z u pg • ywi sn~,~s ~ o ~ ~ ~ x+' ~ F~ p al i'-b!~T u Y ~ .f ~ ~ N ° n ~ ~ ~S x ~~'~i~ OV ~7~b ~r w~y~ ~ k r f. )r < 5 + O ~ 5~:4 ~ 1~ s, a .q { O i 4~v ~ ~ C < b p~ ~ ~Vt VII%5j, j¢~,1 F 0 ~1. ?i x,M1 F f [~Y y ~ a ~a ~ ~o EE M ~ N ~ Y t A ~ Mai W o m vi Q ~ ;F ~ N ik r~' ~6u~6'.U~af~"~eit{?„~k~' ~r r 2,,,'a2.~ K Q~ ~ ~ ~J r rt r,.. ~ ~ ~a n .a c! ~ ~ ~3f~n` ~ L B A y ~ w ~ ~ Yti ~ ao~ 9 r'V'..A y~ 1~Y m rye f ~ Q~ L S n B x~ ~ j.t mc~3~ of~ 3: zy ~ "~3': ~ ~ I W i ~G ~p f y,, ~~i~ll~'. N {p$Q~ <x CCC ~NNNgA C 7 < ~N4 a ° ~~~f a n e ~ e r ~ ~d~e ~ t ~ a s, 1 ~ ~ v ~ a a~w~ , MM r a ~ U fY1~ o a W Marti ~ Q o~ m vii ~SSx{ ~ N *i7 - --~~i--i c - REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED As Recommended LEASE AGREEMENT WITH As Amended Ordinance on 16` Reading T-MOBILE WEST CORPORATION Ordinance on 2ntl Reading FOR CELLULAR ANTENNA AT Implementing Resolution RIVERVIEW PARK Set Public Hearing For CONTINUED TO FILE NUMBER C TY MANAGER RECOMMENDED ACTION 1. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute a lease agreement with T-Mobile West Corporation for installation of a stealth monopine antenna and equipment building at Riverview Park, subject to non- substantive changes approved by the City Manager and the City Attorney. 2. Approve an appropriation adjustment recognizing $38,800 in the Capital Outlay Fund Miscellaneous Recovery account (no. 05102002 57010) and appropriate same to the Capital Outlay Fund Improvements Other than Buildings Expenditure account (no. 05113263 66220). 3. Receive and file Categorical Exemption for Environmental Review Nos. 2010-29 (Riverview Park). BOARD OF RECREATION AND PARKS Recommended approval of lease agreement with T-Mobile West Corporation for cellular equipment building and monopine cell tower at Riverview Park, at their meeting of March 24, 2010, by vote of 5:0:3. DISCUSSION T-Mobile is requesting approval of a lease agreement to install a 65 foot monopine with cellular antenna at 60 feet in Riverview Park. The lease agreement with T-Mobile West Corporation is for 825 square feet of lease area (19'-4" X 22'-0" equipment building). T-Mobile will build the equipment building and plant (4) 24 inch box pine trees on the northwest side of Riverview Park ball field adjacent to Riverview golf course. 25F-1 Lease Agreement with T-Mobile West Corporation at Riverview Park July 19, 2010 Page 2 The lease term of the agreement is for $2,400 per month ($28,800 per year) for the lease of park property. The term of the lease agreement is for 10 years, with three 5 year extension options. The agreement provides for the lease rate to increase 4% per year throughout the term of the lease. In addition T-Mobile has agreed to submit a one time $10,000 payment as soon as the lease is signed. The $10,000 payment will be deposited in a special account for deferred maintenance improvements at Riverview Park. The annual $28,800 lease payment will be deposited in the General Fund for payment of the landscape maintenance contracts in City parks. T-Mobile will provide all the proper insurances and obtain the necessary city permits prior to construction. On February 18, 2010, a presentation of T-Mobile's proposal was made to the Riverview Neighborhood Association. Questions were raised on health/safety issues and maintenance responsibility. The community was satisfied with the response and approved the T-Mobile cell tower to be installed in Riverview Park. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempted from further review. Categorical Exemption Environmental Review No. 2010-29 (Riverview Park) will be filed for this project. FISCAL IMPACT This appropriation adjustment will recognize $38,800 in the Capital Outlay Fund Miscellaneous Recovery account (no. 05102002 57010) and appropriate same to the Capital Outlay Fund Improvements other than Building Expenditure account (no. 05113263 66220) for landscape maintenance of City parks. APPROVED AS TO FUNDS AND ACCOUNTS: frf/~il/"(/ `111 •~~I ~J _ Gerardo Mou Francisco Gutierrez, Executive Dir ctor Executive Director Parks, Recreation and Finance and Management Services Agency Community Services Agency 25F-2 LAND LEASE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND T-MOBILE W EST CORPORATION for (Rlvervlew Park) This Agreement, made this Sa' day of April, 2010, 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 designated "LESSOR" and T-MOBSLE WEST COPORATiON, a Delaware corporation hereinafter designated "LESSEE". The LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties". L PREMISES. LESSOR hereby leases to LESSEE a portion of that certain parcel of property commonly known as Riverview Park (the entirety of LESSOR's property is referred to hereinafter as "the Property" and a legal description of the Properly is attached hereto as Exhibit "A"), located at 1817 W. 2151 Street, Santa Ana CA, 92703, and being described as an nineteen foot, four inch (19'4") by twenty-two foot (22') space on the ground containing eight hundred twenty five (825) square feet, for LESSEE'S radio equipment cabinets, and space required for cable runs to connect LESSEE'S equipment and antennas, together with the non-exclusive right for ingress and egress from and to the nearest public right-of--way, seven (7) days a week, twenty-four (24) hours a day, subject to any restrictions stated herein, on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or within the building to the demised premises, said demised premises and access and utilities paths (hereinafter collectively referred to as the "Premises' for access being substantially as described herein in Exhibit "B" attached hereto and made a part hereof. 2. SURVEY. LESSOR also hereby grants to LESSF,F, the right to survey the Property and the Premises, and said survey along with detailed site plans shall then become Exhibit "B" which shall be attached hereto and made a part hereof, and shall control in the event of boundary and access discrepancies between it and Exhibit "A". Costs incurred for such work shall be borne by LESSEE. 3. TERM. This Agreement shall be effective as of the date of execution by both parties, provided, however, the initial term shall be for ten (10) years and shall commence on the Commencement Date (defined below). 4. RENT. After the Commencement Date, rental payments will be due in an annual rental amount of twenty-eight thousand, eight hundred dollars ($28,800.00) to be paid in equal monthly installments of two thousand, four hundred dollars ($2,400.00) per month on the firs[ day of the month, in advance, to LESSOR or [o such other person, firm or place as the LESSOR may, horn time to time, designate in writing at least thirty (30) days in advance of any rental payment date. Rent shall commence on the first day of the month following the issuance of the building pemtit for LESSEE'S Facilities (as defined below), or the first day of the month that is six (6) months after the full execution of this agreement or the first day of the month following the date LESSEE commences installation of LESSEE'S Facilities on the Premises, whichever occurs first r-nroaur. RIVERVIPW PARK 25F-3 ("Commencement Date"). if rent is not paid within fifteen (15) days after the due date and provided LESSOR has complied with all applicable notice and cure provisions herein, LESSEE agrees to pay a late chazge equal to six percent (6%) of the then-current monthly rent. Rental amounts attributable to partial months shall be prorated on a daily basis. 5. ANNUAL RENTAL INCREASES The rent payments shall be subject to an annual rental increase of four percent (4%) per year, to be increased on each anniversazy of the Commencement Date. 6. 1NI'flAl. PAYMENT. LESSEE hereby agrees to pay to LESSOR a one- time, non-recurring, non-refundable payment equal to one month's rent, within thirty (30) days after the Commencement Date. Notwithstanding the above, Lessor shall refund Lessee the initial payment in the event Lessee is unable, due to the sole fault and unreasonable delay of Lessor, to obtain all Approvals necessary to construct Lessee's facilities, within 6 months afterthe full execution of this agreement. 7. EXTENSIONS. The Lease Agreement may be extended for up to three (3) additional five-year (5) terms (each a "Renewal Tenn"). Each Renewal Term shall be on the terms and conditions as set forth herein as follows: (i) Six months prior to the expiration of the initial term, if LESSOR, in its reasonable discretion de[ennines that LESSEE'S continued tenancy is not in conformity with LESSOR'S intended use of the Property, LESSOR shall provide written notice to LESSEE that the [.ease will not be extended. (ii)'I'hereafter, each subsequent renewal shall be subject to the following procedure: If LESSEE determines that it desires to extend the term LESSEE shall provide written notice six (6) months prior to the end of the then current teen. Within sixty (60) days of receipt of LESSEE'S notice, LESSOR shall determine whether such extension is in LESSOR'S best interest and, if not in LESSOR'S interest, LESSOR shall deny such extension request. If LESSOR does not respond within sixty (60) days, the lease is deemed renewed for an additional Renewal Term. If neither party provides notice as set forth above, the lease shall continue on amonth-to-month basis. 8. GOVERNMENTAL APPROVAt.C. It is understood and agreed that LESSEE'S ability to use the Premises is contingent upon its obtaining all of the certificates, pemrits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or local authorities as well as satisfactory soil boring tests which will pemvt LESSEE'S use of the Premises as set forth herein. LESSOR shall cooperate with LESSEF, in its effort to obtain such approvals and shall take no action, which would adversely affect the status of the Property with respect to the proposed use by LESSEE. LESSEE shall contribute Ten Thousand Dollars ($10,000.00) to be utilized for Santa Ana Park Improvements at the discretion of the Executive Director of the Parks, Recreation and Community Services Agency. T-MOBILE: RIVGRVIIiW PARK 25F-4 Prior to the Commencement Date, LESSEE shall havc the right (but not the obligation) to enter the Premises for the purpose of'making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (collectively "Tes[s'~ to determune the suitability of the Premises for LESSEE'S Facililies (defined below) and for the purpose of preparing for the construction of LESSEE'S Facilities. [n the event that any of such applications for such Governmental Approvals should be finally rejected or any Govemmental Approval issued to LESSEF, is canceled, expires, lapses, or is otherwise withdrawn or terminated by the governmental authority or soil boring tests are found to be unsatisfactory so that LESSEE will be unable to use the Premises for its intended purposes or LESSEE determines that the Premises is no longer technically compatible for its intended use, LESSF;F, shall have the right to terminate this Agreement. Notice of LESSEE'S exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and shall be effective upon the mailing of sudt notice by LESSEE. All rentals paid to said termination date shall be retained by the LESSOR. Upon such termination, this Agreement shall become null and void and all the Parties shall have no further obligations including the payment of money, to each other. 9. APPROVAL OF PLANS. Prior to commencing construction of LESSEE'S Facilities (defined below), LESSEE shall obtain LESSOR'S approval of LESSEE'S work plans, which approval shall not be unreasonably withheld, conditioned, or delayed; such approval shall be issued by the City Manager or his/her designee. LESSOR shall give such approval or provide LESSEE with its requests for changes, which changes must comply with all applicable building codes, in writing within fifteen (15) working days of LESSOR'S receipt of LESSEE'S work plans. If LESSEE does not receive such approval or request for changes in writing within such fifteen (15) working day period, LESSOR shall be deemed to have approved the plans. LESSOR shall not be entitled to receive any additional consideration in exchange for giving its approval of LBSSEE's plans. 10. USE/MAINI'ENANC .LESSEE may use the Premises for any lawful activity in connection with the provisions of mobile/wireless communications services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance, and operation of related communications facilities. Accordingly, LESSEE shall have the right to construct, maintain, install, repair, and operate on the Premises radio communications facilities, including but not limited to, radio frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements ("LESSEE'S Facilities'. All improvements shall be at LESSEE'S sole expense and the installation of all improvements shall be at the discretion and option of LESSEE, with LESSOR approval, which approval shall not be unreasonably withheld, delayed or wnditioned. Said approval shall be obtained from LESSOR prior to commencement of any construction, alterations, modifications or improvements pursuant to Section 9 above, and LESSEE agrees to submit azchi[ectural and engineering drawings ("Plans") of the equipment to be r-MOan.e krvFKVo-:w vnax 25F-5 installed. LESSEE agrees that the installation and maintenance of LESSEE'S Facilities shall be effected with all reasonable diligence and precaution to avoid damage to the land, property or personnel. Notwithstanding the foregoing, once the initial improvements are installed, LESSEE may replace, substitute, upgrade and expand its equipment, cables and antennas which comprise LESSEE'S Facilities for the purpose of repairing or upgrading the communications capabilities of LESSEE'S Facilities, with notice to LESSOR, so long as the equipment, cables or antennas remain within the original physical parameters of the Premises. LESSEE shall not make any substantive physical and/or aesthetic changes to the Premises without the prior approval of I.F,SSOR which shall not be unreasonably withheld, conditioned or delayed. Any such changes are subject to the provisions of Section 13 contained herein below. LESSEE shall be responsible for the cost of any and all damage to the Property including but not limited to concrete and/or asphalt, buildings and/or appurtenances caused by LESSEE. LESSOR at its discretion may require LESSEE to repair and or replace said damages or contract for said services and bill LESSEE. The cost of said repairs can be subtracted from any deposits retained by LF,SSUR. LESSEE shall have the right to install any warning signs on or about the Premises required by federal, state or local law. LESSEE'S Facilities shall be wnstructed and maintained in a manner and with materials that are consistent with the approved plans for the project. The materiels actually used must match up with the proposed materials and artistic renderings. LESSOR shall provide LESSEE, LESSEE'S employees, agents, contractors, subconhactors and assigns with access to [he Premises twenty-four (24) hours a day, seven (7) days a week, az no charge to LESSEE. LESSOR represents and warrants that it has full rights of ingress to and egress from the Premises, and hereby grants such rights to LESSEE to the extent required to construct, maintain, install and operate LESSEE'S Facilities on the Premises, and to remove them therefrom. LESSOR shall, at its sole expense, maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to allow reasonable access to the Premises by LESSOR. F,xcept in cases of emergency, LESSEE agrees to provide twenty-four hours notice to LESSOR before any installation, maintenance, replacement or repair is to take place on the Premises. In the event that maintenance is required, such as the repainting of LESSEE'S Facilities, such maintenance must be completed by LESSEE within thirty (30) days. I I . INDEMN[FICATION. A. LESSEE'S Indemnity. LESSEE shall indemnify, defend and hold LESSOR its officers, employees, successors and assigns harmless from and against any and all loss, cost, claim, liability ("Claims' occurring on the Premises and arising out of or connected with the negligence or willfirl misconduct of LESSEE, its officers, agents, employees, or contractors except far Claims arising out of (i) the negligence or willful misconduct of LESSOR, its officers, agents, employees, successors, assigns, or contractors; (ii) violation of law by LESSOR, its officers, agents, employees, or contractors; (iii) the breach of any duty or obligation by LESSOR under this Agreement or (iv) any condition relating to the Premises which LESSEE has no obligation to repair or maintain. r-MOauL RIVERVa;W PARK 25F-6 B. LESSOR'a Indemnity. LESSOR shall indemnify, defend and hold LESSEE, its officers, employees, successors and assigns harmless from and against any and all loss, cost, claim, liability ("Claims' occurring on the Premises and arising out of or connected with the negligence or willful misconduct of LESSOR, its officers, agents, employees, or contractors, including, but not limited to City Business as defined in Section 17 below, except for Claims azising out of (i) the negligence or willful misconduct of LESSEE, its officers, agents, employees, or contractors; (ii) violation of law by LESSER, its officers, agents, employees, or contractors; (iii) the breach of any duty or obligation by LESSEE under this Agreement; or (iv) any condition relating to the Premises which LESSOR has no obligation to repair or maintain. 12. INSURANCE. A. In accordance with the provisions of Section 3300 of the Labor Code, if LESSEE has any employees it is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing performance of this Agreement, LESSEE agrees to obtain and maintain employer's liability insurance with limits not less than $1,000,000 per accident. if LESSEE has no employees, nor workers' compensation coverage, it must execute a Declaration available from LESSOR, and update as is necessary. B. LF.SSF,E shall obtain, at its sole cost, a policy or policies of commercial general liability insurance, or equivalent form, with a combined single limit of not Icss than $1,000,000 per occurrence. Such insurance shall: (I) name LESSOR, its officers, agents, representatives, employees and volunteers as additional insureds (see sample Exhibit C); (2) be primary with respect to insurance or self-insurance programs maintained by LESSOR, except claims resulting from LESSOR's sole negligence or misconduct (3) contain standard separation of insured's provisions; and (4) give to LESSOR prompt and timely nofice of claim made or suit instituted arising out of LESSEE'S operations hereunder. LESSEE sha1L• (a) prior to exercising any right under this Agreement, furnish properly executed certificates of insurance and additional insured endorsement to LESSOR which shall clearly evidence all coverages required above; (b) provide that such insurance shall not have its required limits reduced or terminated except on thirty (30) days prior written notice to LESSOR; (c) maintain such insurance for the period covered by this Agreement; and (d) replace such certificates for policies expiring prior to the expiration of this Agreement. 13. [N7' RF REN E. LESSEE'S Facilities shall not disturb the communications configurations, equipment, and frequency, which exist on the Property on the date this Agreement is fWly executed ("Pre-Existing Communications', or public safety communication operations, as may be upgraded periodically, and LESSEE'S T-MOa1LE AIVERVIGW PARK 25F-7 Facilities shall comply with all non-interference rules of the Federal Communications Commission ("FCC"). LESSOR shall not use, or permit the use of, any portion of the Property in any way, which interferes with LESSEE's use of the Premises or encroaches upon the Premises. In addition to any other rights LESSEE may have hereunder, LESSEE shall have the right to bring legal action to enjoin such interference against the party causing any alleged interference and/or immediately terminate this Agreement. Notwithstanding the foregoing, Pre-Existing Communications operating in the same manner as on the date this Agreement is fully executed shall not be deemed interference. LESSOR shall require any future tenants, assignees, licensees, or occupants using any portion of the Property for the operation of mobile/wireless or radio communications facilities to comply with the provisions of this Section and shall obtain LESSEE'S written consent prior to allowing such use of the Property, which such consent shall not be unreasonably withheld, conditioned, or delayed, provided that LESSEE'S consent may be withheld if interference with LESSEE'S transmissions, receptions, operations, or use of frequency will result due to such use, whether or not such interference is with LESSEE'S frequencies or otherwise. The City Manager shall determine whether consent is unreasonably withheld and may require LESSEE to consent subject to the above conditions. In the event of any interference with LESSOR'S public safety communications operations, LESSEE shall have twenty-four (24) hours after receipt of notice to cure the interference, and if LESSEF, fails to do so, LESSOR has the right to require that LESSGG cease operating LESSEE'S Facilities (except for intermittent testing to determine the source of the interference) until LESSEE is able to recommence operations without causing such interference. If LESSEE'S Facilities interfere with LESSOR'S public safety communications operations during an emergency, LESSOR may require that LESSEE immediately cease operating LESSEE'S Facilities and if LESSEE fails to do so, LESSOR has the right to shutdown the electricity supply to LESSEE'S Facilities. LESSEE shall reimburse LESSOR for any actual, reasonable costs that LESSOR incurs to cure any interference with LESSOR'S public safety communicaions operations caused by LESSEE'S Facilities. 14. REMOVAL UPON TFRMINA'CION. LESSEF., upon expiration or earlier termination of the Agreement, shall, within ninety (90) days, remove all of LESSEE'S fixtures and all personal property and otherwise restore the Premises substantially to its original condition, az LESSEE'S sole expense, reasonable wear and tear, and casualty excepted. Underground conduits, foundations and equipmenUstorage buildings may remain at LESSOR'S option. LESSOR agrees and aclotowledges that all of the equipment, fixtures and personal property of LESSEE shall remain the personal property of LESSEE and LESSEE shall have the right to remove the same, whether or not said items are considered fixtures and attachments to real property under applicable law. if such time for removal causes LESSEE to remain on the Premises past the aforementioned ninety (90) day period after the expiration or earlier termination of this Agreement, LESSEE shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time as the removal of the building, antenna structure, fixtures and all personal property are 'f-MODII.E RIVERVIEW PAR}: 25F-8 completed. Antenna support structure and all utilities cabling and wiring shall remain at LESSOR's option in its as-is condition. I5. RECORDING AND OU[TCLAIM f1FFn, Ifrequested by LESSEE, LESSOR agrees promptly to execute and deliver to LESSEE a recordable Memorandum of this Land Lease Agreement in the form of Exhibit "F". LESSEE agrees to execute and record a quitclaim deed or other instrument evidencing the termination of LESSEE'S interest in the Property upon the expiration or termination of this Agreement. 16. RIGHTS UPON SAi E, Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any part of the Property to a purchaser other than LESSEE, such sale shall be under and subject to this Agreement and LESSEE'S rights hereunder, and any sale by the LESSOR of the portion of this Property underlying the right-of-way herein granted shall be under and subject to the right of [.F,SSEE in and to such right-of--way. LESSOR shall obtain for the benefit of LESSEE a reasonable non-disturbance agreement from [he present and any future mortgagee(s) or holder(s) of a deed of trust confirming that LESSEE'S right to quiet possession of the Premises during this Agneement shall not be disturbed, so long as LESSEE is not in default under this Agreement. 17. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and performing the covenants shall peaceably and quietly have, hold and enjoy the Premises, provided however, that LESSOR shall have the right and privilege to conduct City Business on the Property, as necessary. "City Business" shall include, but not be limited to the following: minor maintenance, minor landscaping, minor construction, concessionaires, and City sponsored events, located near the Premises, so long as the City Business does not interfere with or impair the operalion of LESSEE'S Facilities. 18• ,f1~. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. LESSOR further covenants [ha[ [here are no other liens, judgments or impediments of title on the Properly or affecting LESSOR'S title to the same and that there are no covenants, easements or restrictions which prevent the use of the Premises by LESSEE, as set forth above. 19. N LIF,NS. LESSEE will not permit any mechanics' or materialmen's liens on the Property for any labor or material furnished to LESSEE in connection with work performed. LESSEE shall have the right to contest the validity, nature, or amount of any such lien but, upon the final determination of such questions, shall immediately pay any adverse judgment rendered with ell proper costs and charges and have the lien released at its own expense. If LESSEE desires to contest any such lien, then prior to commencing such contest, it will post a bond, where necessary, to release the lien. r-MOaar. RIVLRVIF.W PARK 25F-9 20. MISCELLANEOUS [ FSSEE F PON IBI ITI A. Maximum Permissible Exposure -LESSEE shall comply with all present and future laws, orders and regulations relating to Maximum Permissible Exposure ("MPE'~ and other related health issues directly applicable to its operation of LESSEE'S Facilities, as well as the American National Standards Institute (ANSI) standards. Without limiting the provisions oC LESSEE'S indemnity contained herein, LESSEE, on behalf of itself and its successors and assigns, shall indemnify LESSOR from and against all claims of personal injuries due to violation of MPE to the extent such personal injuries are actually caused by LESSEE'S Facilities on the Premises. B. LESSEE shall maintain LESSEE'S Facilities and shall make all repairs to the Premises necessitated to keep the Premises safe. LESSOR may require LESSEE to make repairs to and/or replace damaged equipment of LESSEE'S Facilities and/or any parts thereto regardless of fault (including but not limited to damage caused by vandal ism or acts of god not later than one (I) week after said damage is reported to LESSEE, except for damage caused by LESSOR. This time period may be extended with written authorization from the City Manager. In the event such authorization is not given and repairs are not made in one week, LESSOR may cause such repairs to be made including making said repairs and/or hiring a consultant to make said repairs. LESSOR may charge I.F,SSF:F. for the cost of said services. Damage caused by graffiti shall be removed within forty-eight (48) hours notification to LESSEE by LESSOR. If said graffiti is not removed within the 48-hour period, City may remove said graffiti and bill LF.SSRE for the cos[ of services. C. LESSEE shall pay all personal property taxes assessed directly against its equipment and all increases in LESSOR'S real property tares or assessments directly attributable to installation of LESSEE'S equipment or LESSEE'S use of the Premises, within sixty (60) days after receipt of satisfactory documentation indicating calculation oC LESSEE'S share of such real estate taxes and proof of payment provided that such amounts arc in fact due within the said sixty (60) day period. LESSEE has the right to challenge any unreasonable tax assessment. D. LESSOR grants I,ESSEEi the right to obtain utilities for the operation of LESSEE'S Facilities. LESSEE shall be responsible directly to the serving entities for any and all utilities required by LESSEE for its use of the Premises. LESSOR shall cooperate with LESSEE in its efforts to obtain utilities from any location provided by LESSOR or the servicing utility, including signing any easement or other instrument reasonably required by [he utility company. E. LESSEE shall have the right to replace or repair its equipment or any portion thereof during the term of this Agreement. LESSEE will maintain the Premises in a good condition, reasonable wear and [ear excepted. 21. EMERGENCY USE OF SITE. LESSEE shall make available to the police, fire and emergency services of the City of Santa Ana space on its communications C-MOHILE RIVFRVIGW PARK 25F-10 tower at no cost to LESSEE or said entities, subject to structural analysis. The City of Santa Ana is responsible for maintaining its own equipment. The space to be made available will not create interference with LESSEE's communications operations. As to any future subleases, their respective installations will be permitted only at such locations that will not cause interference with LESSEE or LESSOR and the City's operations. The City entities will be afforded 24-hour access to its equipment at the Property. In addition, the City will be provided "power backup" by LESSEE, if available at the Premises. 22. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and LESSF.F, and that no verbal or oral agreements, promises or understandings shall be binding upon either the LESSOR or LF,SSEC in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the Panics. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of [he remaining provisions of [his Agreement. 'fhe failure of either Pany to insist upon strict performance of any ofthe terms or conditions of this Agrcement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights a[ any time and take such action as may be lawful and authorized under this Agreement, either in law or in equity. 23. GOVERNING I,A W. This Agreement and the performance thereof shall be governed, interpreted, construed, and regulated by the laws of the State of California, with venue in Orange County. 24. ATTORNEYS' FEES. The substantially prevailing party in any legal action or lawsuit arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including appeals, if any. 25. ASSIGNMENT AND CO-I O 'AT[ON a. LESSEE will not assign or transfer [his Agreement without the prior written consent of LESSOR, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, that LESSEE shall have the right to assign its rights under this Agreement, to any of LESSEE'S (i) partners, parents, subsidiaries, affiliates, or successor legal entities, (ii) in connection with the sale, exchange, or other transfer of LESSEE'S FCC authorization for the geographic area in which the Premises are located or of majority of LESSEE'S network assets in the geographic area where the Premises are located, or (iii) in connection with any financing, loan, security interest, pledge, or mortgage of LESSEE'S property. b. LESSEE acknowledges and agrees [hat the City policy is [o provide for co-location on communication tower facilities and will reasonably facilitate any co- loration subject to the conditions outlined in Paragraph 13 (INTERFERENCE). LESSEE further agrees that LESSOR shall retain ownership of any further lease rights with respect to space for additional communication facilities on the Property. Further, LESSEE shall enter into a TOWER LEASE AGREEMENT, subject to all permits and approvals from T-MODa.E RIVCRViF,W PARK 25F-11 all governmental agencies having jurisdiction thereover, with a future tower co-location user, subject to LESSOR receiving eighty percent (80%) of the tower rent received by LESSEE. LESSEE shall provide for LESSOR'S consent on any TOWER LEASE AGREEMENT and copies of the e,cecuted agreement. The Party's intent in allowing LESSEE to collect rent is to provide a means by which LESSEE can recoup its cost of construction and maintenance of said tower facilities on a pro-rata basis with subsequent users. The Parties intend that LESSOR, and not LF,SSEE, should benefit financially, from any future tower co-location agreement. Additionally, LESSEE shall deliver to LESSOR a copy of any Inter-can ier Co-location Agreement which relates to the Premises. 26. N Tl F.S. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt Crom the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): LESSOR: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) Santa Ana, CA 92702 Courtesy City of Santa Ana -Office ofthe City Copies to Attorney 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, Califomia 92702 LESSEE: T-Mobile USA, Inc. 12920 SE 38'" Street Bellevue, Washington 98006 Attn: PCS Lease Administrator Copy to: T-Mobile West Corporation (Site #LA33321C) 3 MacArthur Place, Suite 1100 Santa Ana, Califomia 92707 Attn: Lease Administration Manager Notice shall be effective upon mailing or delivering the same to a commercial courier, as permitted above. 27. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representatives, successors, administrators and assigns of [he Parties hereto. 1'-MOa11.F: RIVt:RVIF:W PARK 25F-12 28. RELOCATION RIGHT. A. Anytime within the initial term, LESSOR shall have the right to cause LESSEE to relocate LESSEE'S Facilities to alternate space on the Properly; provided however, that such relocation shall (l) be at LESSOR'S cost and expense which shall be limited to reasonable expenses of moving and te-installing the tower structure and accompanying equipment, including the cost of City permits and fees which LESSOR may legally pay, (2) be performed by LESSEE or its agents, (3) not result in any interruption of the communications service provided by LESSEE on the Property, (4) not impair, or in any manner alter, the quality of communications service provided by LESSEE on and from the Property, and (5) be done in accordance with subsections B and C below. Upon relocation of LESSEE'S Facilities, the access and utility rights of way will be relocated as required, in the sole discretion of LESSOR, to operate and maintain LGSSEE's Facilities. B. LESSOR shall exercise its relocation right under subsection A above by (and only by) delivering written notice (the "Notice") to LESSEE. In the Notice, LESSOR shall propose an alternate site within or on the Property to which LESSF,E may relocate LESSEE'S Facilities. LESSEE shell have sixty (60) days from the date it receives the Notice to evaluate LESSOR'S proposed relocation site, during which period LESSEE shall have the right to conduct tests to determine the technological feasibility of the proposed relocation site. If LESSEE fails to disapprove of such proposed relocation site in writing within the sixty-day period, LESSEE shall be deemed to have approved such proposed relocation site. If LESSEE disapproves such relocation site, then LESSOR may thereafter propose another relocation site by Notice to LESSEE in the manner set forth above. Any relocation site which LESSOR and LESSEE agree upon in writing shall be referred to as the "Relocation Site." LESSEE shall have up to twelve (12) months after execution of a written agreement between the parties concerning the location and dimensions of the Relocation Site to relocate LESSEE'S Facilities to the Relocation Site. Upon relocation of LESSEE'S Facilities to the Relocation Site, all references to the Premises herein shall be deemed to be references to the Relocation Site. LESSOR and LESSEE agree that the Relocation Site (including the access and utility right of way) may be surveyed by a licensed surveyor at the sole cost of LESSEE, and such survey will then replace Exhibit "B" and become a part hereof and will control or describe the Premises. Except as expressly provided, LESSOR and LESSEE hereby agree that in no event will the relocation of LESSEE'S Facilities, or any pari thereof, under subsection A above, affect, alter, modify or otherwise change any of the terms and conditions of this Agreement. C. Should the parties fail to agree on a suitable Relocation Site, LESSOR may pay LESSEE the depreciated value for LESSEE'S Facilities and equipment, based on a ten-year lease period. T-MUBILLt: RIVERVIFW pgRK 25F-13 29. DEFAULT. In the event there is a default by either party with respect to any of the provisions of this Agreement or its obligations under it, including the payment of rent, the non-defaulting party shall give the defaulting party written notice of such default. After receipt of such written notice, the defaulting party shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to cure any non-monetary default, provided the defaulting party shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such thaz it reasonably requires more than thirty (30) days and the defaulting party wmmences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to wmpletion. The non- defaulting party may not maintain any action or affect any remedies for default against the defaulting party unless and until the defaulting party has failed to cure the same within the time periods provided in this Section. If either party commences an action against the other party arising out of or in connection with this Agreement, the prevailing party shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of suit. 30. F,NVfRONMF.NTAL. A. LESSEE shall not bring any Hazardous Materials onto the Premises/Property, except for those contained in its back-up power batteries and common materials used in telecommunications operations. "Hazardous Materials" shall mean any substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation, including petroleum and asbestos. LESSEE will treat and dispose of any Hazardous Materials brought onto the Premises/Property by it in accordance with all federal, state and local laws and regulations. R. LESSOR will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or concerns as may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the Property, unless such wnditions or concems are caused by the activities of LESSEE. C. LESSOR shall hold 1,ESSEE harmless and indemnify LESSEE from and assume all duties, responsibility and liability at LESSOR'S sole cost and expense, for all duties, responsibilities, and liability (including but not limited to payment of penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is in any way related to: (i) failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene concems or conditions as may now or at any time hereafter be in effect, unless such 6MOBIL[ RIVGRVILIV PARK 25F-14 compliance results from conditions caused by LESSEE; and (ii) any environmental or industrial hygiene conditions arising out of or in any way related to the condition of the Property or activities conducted thereon, unless such environmental conditions are caused by LESSEE. 31. CASUALTY. In the event of damage by fire or other casualty to the Premises that cannot reasonably be expected to be repaired within sixty (60) days following same or, if the Property is damaged by fire or other casualty so that such damage may reasonably be expected to disrupt LESSEE's operations al the Premises for more than sixty (60) days, then I,ESSEF, may at any time following such fire or other casualty, provided LESSOR has nut commenced the restoration required to permit 1,ESSEE to resume its operation at the Premises, terminate this Agreement upon twenty (20) days written notice to LESSOR. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Agreement. If LESSEE, decides not to terminate this Agreement, Rent shall be abated proportionally to the reduction of use. 32. CONDEMNATION. [n the event of any condemnation of the Premises, LESSEE may terminate this Agreement upon fifteen (IS) days written notice to LESSOR. LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the antennas, equipment, its relocation costs and its damages and losses, and any other amount recoverable by LESSEE under condemnation law (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Agreement. 33. SUBMISSION OF 'A4E. The submission of this Agreement for examination does not constitute an offer to lease the Premises and this Agreement becomes effective only upon the full execution of this Agreement by the Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and shall not invalidate the remaining provisions of this Agreement. 34. APPLICABLE I A W4. LESSEE shall use the Premises for the use described herein in accordance with applicable laws, rules and regulations. LESSOR agrces to keep the Property in conformance with all applicable, laws, rules and regulations and agrees to reasonably cooperate with LF,SSEE regarding any wmpliance required by LESSEE in respect to its use of the Premises. 35. SURVIVAL. The provisions of the Agreement relating to indemnification from one Party to the other Party shall survive any termination or expiration of this Agrcement. Additionally, any provisions of this Agreement, which require performance '1'-MODILE RIVERVIEW PARK 25F-15 subsequent to the termination, or expiration of'this Agreement shall also survive such termination or expiration. 36. CAPTIONS. The captions contained in this Agreement are inserted for convenience only and are not intended to be part of the Agneement. They shall not affect or be utilized in the construction or interpretation of the Agreement. 37. PROPER'['Y SPFCIFI ACE S R L /RECIIt A'fl )PJC To the extent that such rules are not inconsistent with or do nol interfere with LESSEE's rights herein, LESSEE agrees to abide by all rules and regulations ofthe Property and Premises imposed by LESSOR as set forth in Exhibit D, attached hereto, as the same may be changed from time to time upon reasonable notice to LESSEF,. These rules and regulations are specific to the Facilities site and arc imposed to insure the proper maintenance, good order and reasonable use of the Premises and Property and as may be necessary for the enjoyment ofthe Premises and Property by both parties hereto. 38. POWERING DOWN DURING MAIN'1'FNANCE / RFPAiR. LGSSF.E agrees that during all maintenance on the Communications Facility by the LESSOR or other lessees or users of the Facility, while following the procedures and guidelines set forth by the Occupational Safety and Health Administration (OSHA) and the FCC implementing the National Environmental Policy Act of 1969, when continuing transmission is deemed unsafe for maintenance personnel (based upon standards promulgated by a governmental authority having jurisdiction over LESSF,E) due to radiation, the effected transmitters of LESSF,E will be fumed off until the unsafe condition no longer exists. 1'he earliest practicable notice will be given to LESSF,E using the information in Exhibit E, as applicable. 39. TERMINATION, A. Compelled Termination: lf, during the lease term, there is a determination made pursuant to an unappealable order of a county, state, or national govemmental health agency having properjurisdiction over LESSEE'S operations thal LESSEE'S use of the Premises poses a human health hoard which cannot be remedied and that LESSEE must cease all operations on the Premises, then LESSEE shall immediately cease all operations on the Premises and this Agreement shall terminate as of the date of such order. In the event the Federal Communications Commission, or any successor agency, makes a determination which is final and non-appealable or which is affirmed and becomes final after the exhaustion of all available appeals concluding that LESSEE'S use as set forth in this Agreement presents a material risk to the public health or safety and that LESSEE must cease all operations on the Premises, LESSOR may terminate this Agreement upon fourteen (14) days notice to LESSEE. B. Termination by LESSF,E: LF,SSEE may terminate this Agreement by notice to LESSOR if (i) LESSEE does not obtain all permits, consents, easements, non-disturbance agreements or other approvals (collectively "approval") reasonably desired by LESSEE or required from any governmental authority or any third T-MOAILC RIVIi'RVILW PARK 25F-16 party related to or reasonably necessary to operate, install, maintain, replace, or remove LESSEE's Facilities, or if any such approval is canceled, eepires or is withdrawn or terminated without any fault of LF,SSEE, or (ii) LESSOR fails to have proper ownership of the Premises or the authority to enter into this Agreement, or (iii) LESSOR fails to cure a default pursuant to Section 29. Upon termination, all prepaid rent shall be retained by LF,SSOR, unless ternination is pursuant to (ii) above or (iii) above as the result of LESSOR'S default. C. Termination by LESSOR: LESSOR may terminate this Agreement if LESSEE fails to perform any of its obligations pursuant to this Agreement (including all attached Exhibits/Attachments) after giving written notice to I,h'SSEE and reasonable time to cure as set forth in Section 29. 40. MISCELLANEOUS PROVI IONS. A. Each undersigned represents and warrants that its signature herein below has [he power, authority and right to bind their respective parties to each of the terms of this Agreement, and each party shall indemnify the other fully, including reasonable costs and attorney's fees, for any injuries or damages incurred in the event that such authority or power is not, in tact, held by the signatory or is withdrawn. B. All Exhibits referenced herein and attached hereto shall be incorporated as i f fully set forth in the body of this Agreement. C. LESSOR shall not have unsupervised access to LESSEE'S equipment and LESSEE'S Facilities, except in cases of exigent circumstances or emergency situations. r-moaar: RIVERV~W PARK 25F-17 IN WI'T'NESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUI7.AR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W. FLE"OCHER City Attorney T-MOBILE WEST COPORATION By: LAURASHBEDY Assistant City A[tomey By; Printed Name: Its: Date: r-nnoen.>: RIVGRVIh'W PARK 25F-18 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY A PN: All that certain real property located in the County of Orange, State of California, being more particularly described as follows: End of Legal Description LESSOR INITIALS: LESSEE, INI"fIALS: r-MOeaR RIVERVIf:W PARK 25F-19 EXHIBIT B LECAL DESCRIPTION OF THE PREMISES SITF. PLANS/ DESCRIPTIVE RENDERINGS However, it is expressly agreed and understood by and between the LESSOR and LESSEE that the exact and precise location of the LESSEE'S Facilities are subject to review and approval by the planning and/or zoning Boards having jurisdiction over the "Premises". Therefore, it is expressly agreed and understood by and between LESSOR and LESSEE that the precise location of the Premises as shown on Exhibit "B" may be modified by the LESSEE in order to comply with and obtain necessary planning and/or zoning approvals, and any and all other approvals necessary for LESSEE'S intended use of the property. The Premises as described herein may therefore be modified by the LESSEE to reflect the final engineering design. An amended Exhibit "B" (if necessary) will be provided by the LESSEE and attached to the lease in place of the existing Exhibit "B", a copy of which will be provided to the LESSOR for review prior to being inwrporated into the Agreement. LF,SSOR INITIALS: LESSEE INITIAfS: T-MOBB,E RIVERVIF,W PARK 25F-20 EXHIBITC ADDITIONAL INSURED ENDORSEMENT 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 92702; its officers, employees, agents and volunteers 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 azising 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 cartied 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 canceled, 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 92702. (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 r-mosu.e RIVGRVILiW PARK 25F-21 EXHIBIT D PROPERTY SPECIFIC Arrccc am ~c~RC~UI ATIONS 1. LESSOR shall have the unilateral right and privilege to undertake all normal items and operations associated with the current use of the Property, including, but not limited to public events and City business, which may include high powered electric lights and food services, arrange for the televising of any public event to be held at the Property, and ability to contract with other interested parties. 2. City business may also include minor landscaping, minor maintenance and minor construction proximately located near the Premises, so long as the City business does not interfere with or impair the operation of LESSEE'S Facilities. 3. LESSEE'S access to the Premises shall be limited when the Premises is being used for a public event, and the four (4) hours before and after any such event. LESSEE will obey any procedures set by LESSOR regarding notification before visiting the Premises, checking in on-site, parking, gates, etc. 4. For purposes of describing the Premises and LESSEE Facilities only, LESSEE will design a I9'4" x 22' equipment building and plant four (4) 24-inch box pine trees on the northwest side of Riverview Park north ball field, adjacent to Riverview golf course. T-MOa1LL RIVCRVIF,W PARK 25F-22 EXHIBIT F. CONTACT INFORMATION: LESSOR'S TECHNICAL CONTA T : Name: Santa Ana Parks, Recreation and Community Services Agency Ron Ono Address: 20 Civic Center Plaze (M-23) Santa Ana, CA 92702 Daytime Phone No.: 714-571-4220 Facsimile No.: (7l4) 571-4209 24-Hour Contact No.: Dispatch Center: N/A LESSEE'S TECHNICAL CONTA .T Name: Address: Daytime Phone No.: Facsimile No.: 24-Hour Contact No.: Dispatch Center: T-MOBIIF. RIVERVIEW PARK 25F-23 EXFIIBIT F MEMORANDUM OFIAND EA A R M NT THIS MEMORANDUM OF LAND LEASE AGREEMENT is made and entcrod into as of , 200_ by and between City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("Lessor's and T-Mobile West Corporation, a Delaware corporation ("Lessee'. W fI'NF.SSETH: That Lessor hereby leases to Lessee and Lessee hereby leases from Lessor a portion of that certain real property (the "Property") in the State of Califomia, County of Orange, City of Santa Ana commonly known as 1817 W. 21" Street, Santa Ana, CA, 92703, a legal description of which is shown in Exhibit attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded Land Lease Agreement by and between Lessor and Lessee dated by Lessor ,and incorporated herein by reference (the "Agreement") for an initial term of ten (I O) years, commencing on the Commencement Date, as defined in the Agreement, and three (3) subsequent optional extension terms of five (5) years each, pursuant to the terms of the Agreement. The Agreement provides for grant ofnon-exclusive right of way for rights of access to [he Property and to electrical and telephone facilities serving the Property. IN W[TNESS WHEREOF, the parties have executed the Memorandum as of the day and year first above written. LESSEE LESSOR: T-Mobile West Corporation City of Santa Ana sy: By: Name: DAV[DN. REAM Title: City Manager Dale: Date: Address 20 Civic Center Plaza Santa Ana, CA 92702 [FORM DOCUMENT, PLEASE 1NIT[AL ONLY -NOT FOR CXECUTiON] Owner Initials Lessee Initials T-MOBIIF RIVERVIEW PARK 25F-24 $ ~ ~ Y ~p~~ I~j a: a n ~ r~ ~ I ' ~ ~ a U ~ '~4~p w rV; ~ ~I ~ w R3 N~ w ~ pia i Z %s+"' ,I ~ w gs3 9 ~nR>~ r ~ ~ P ` i i it - Q i ~r~ it Z li _ ~ I, ~ i _ Yds. H I b! I ~ Iy51 a I~ v~ Z ~ Z a ~ ~ ~ I~ z Q I~a~ ~ a ~ ~ z ~ I , I i ~ ~ cn O U s ~ - ~ ~I I'I,~ ~ r ~ ~ N ~ I Z ~ ~ ~ ~ ~ I' qXqX i ~ S VIII ~.,-'v I s. ~J S c ~ ~x ~ o • Z y "~k do I } +x= F . I _ v v ~ ~ _ ~ ~ l ~ li ¢o~ II pia ; u. i _ _ O ~ i~ ~i~I~I~~~~ I J ~,,i s ~ ~I ~ i ~lil Q ~ i GV ~ D F SRI ~*a$ i I i s ? i 333 3 rs,,. Q ~ I Y Z a3 3, 4 * ~ s. 3} I 61i:Y i ~I ¦ ~ O ~ sr~€ maw ~ a _ _ . ¦ ' M W Z _ ~ _ ~ ~ ~3 s ~ ~ w ~ ; m ~ ~ ~ t C iu ~~*~~~i? 2r W il~y¢g~~~ 7~ l'r ~ ~ c d W W W ' a, ' ' i .'i ~ 3 , £ I' ~p J ~~t ~ ~ ~ ~ i f~ s j t <i' r' YSbi1t4 25F-25 I n d I l o~ I I I I I ~i ~ i':~ I I I I I E- r F I. - 1 fff ~ > R . ~i Y i 7Y' " -t t a , ~ ~ ~ ~ s ffi t ~ f ~ 5 i ~ ~ Z I ri ? u r Y1~~~ ~ s 5 s ~Z . s r srn.E~+~ re` 9 , . _ .t,E_ a . 3 . ' f ~ < ~ # w,_~ s ~jr~r f ('J 2 b f y L ry 9 A ~ \ Y 9 E pp ~g1~1 > ~I a+e J?yR 'iY} R{ ~ J°vn xy a it jrx~ " X i%113 RI ~,S si MS P T Y' ~ A ~J ~ ` Fy i~ i 'vx~~ ~~Fa S~~lh ReY~ va~~ t ~ 21 R~aSVS ley ~~S ~ > s. ,i ' ° ~iA 6F ~Sia%i &IsE s~ii ~ ! %3: 4~rs s es i3%%.~ ~I ~d ~ a ~ ~)e a ~ 3~i' xisi i ~i PY Y~vi'~ v'VIn"~y~'„45at~S~ a~!yy~ i[ f* e %i a' ~ 7 d d1d d i SY ~rvP xr A~ ~ Z ~CR. i- V r r (qF > f g $'a ~ r)I~ i$i']).~SH SS ~eYe E~M7 } ha~a~ B~r~JAlYr CR7I.,r g ~ 4 S~Rv ~N F i~ Y r 1 97 91 ~ a i e ] 9?' Yr ~ 9Cys Z ~ FI IRj M ^ ~i'2 x~9 ~ ~ tl~_ - 9 aAf pd ~ a r a a eA f a ~ e~ i f R R' fi d# R (p ~~a yy fY pyyp t~b 1 ~y;i D g r y ~ n~~ ~ E F a ~ x i F eE 7 v S ~ ~ kG ~ C ~ ~a f ~Z~f (R eP ~ ar ~ ~p~3 {Y r~YX •R R7a 9 S ~ IF S [ Y Y aS ) S 2 w J} ~r xB J.: s. ~ t i c a s ~Y7~ s~ y~F 3F ~ ~d ~s~a ~e s J~ G i 4a o 1 r a i ~Y I '1~ ~E ~ ~ ~r s Ydri v ~ i) rs Y~;SAY e R ~4~6 i, s y ~a Y a5 I F E _ ~ kit b ~4. ~ YS't _ v v. ~ ~ 4dq a~t v i~ Z~ 4; 1'~ ~ asy %~~k E ~ s~i(4 F .~v~% t4 a v%E r~9 Ys s~4i ~j1 ~s~ IIIr ~S Ea 34.5 r E 6 G v i s esr 1 s 37 _ c ,r^~ H tY E 5~ r~r~ y,. 1 ) F ~JJ r~~~..~ ~ ~'~~~1 ~ Rsa ~P( r , ~rt ; ~ ~ s ~s~ 2- 4 r.e~ 2 d~~ ~p 9f~d a d4~ r1 , 9~d S~e i ~ I ~ i,. t:~ s.~' ' ii ~I A r a . - ~ - ~I° - a.Y---__ A lY ~ ~ . ~ ' ~ ~hh ~.J ill r ~ ji 'T, o ~ ~ R~~ I j ~ h\~ FS Ih MI f Tr ~ ~ ~~~Y~~Ay§~,~~_~ L ,x w> _ 81~ ~ nr ~ ~ fir, ~ , F_ =3_ tii ~ ~ ~ ° / _y IV ~ ~ ~1 9 s d i_ ~ E ~ v 4«a° 3~ yv. r ~y ~ i Sir So,_ ~ ~ 1. ~ ) ~ i^' Vti ~5 Y~',:.l~ ~ ~ R'a~ z".v ' a ' ~ V, 111 r ~ 1~ sf 1 I ) ~':3 ~ Eaa I ~i_ ~ r ~~p5 .SJ}.. ~ 'r ~ ~ ~'~Q, J ~4 S x i i i f I.„ ) ~ r F Y Yi ~ a 4' i girt + f ~ ) su .1 _ f ~ s a1 sa i u ep ! i ~ ~ 1V i c ~ jj L.. I . H+ - uu1d. 1 i A 8 Y ~ i r ¢ f. ~ ~ ® a ;1 ~ :i a R~ F g r ~t R r € qlt ?t ;3 R a ~ r ~ ~ ~ i_ 25F-26 I ~a~: II o ~ ?,III.. ~:II~1 ,II II~ ~IIII = 11 U + ~ ~ ' I~ o 0 01 ~ ~ ~ k ~ ~ i ~ f~~x ~ z ~ N 5 ~ ~ Q1 ° w 1 ~ [ J L j ~ PG /1 S ~ v i tx 7 I I w? tJ i 4 ' F~ i ~J ~.n Rj i s ~ A c~ . _ ~ ~ I ~ x `b ~ a• as ~ ~ ~I a . ~ a~, E w> ~ ~ ~ I a K h ~ ~ ,y, ,'iY I \ ~ I ryas 1 ~ a y_ a' . • ~ ~ E~ V ~ < ~ ~ ~N r ~ v _ ~ _ ~ - h ~ 'h"~L ~ l _yl w, \ ~ x ~ ?V ! " ~ 07 ~ _ ~ V ~ i. ~i. y i yl ~ . 3 Y of I,i I~ t: _n? . 25F-27 s e Q ~ I I Q ~C~° ~"a Q~ f ,o,~I tl F i I ~ d x v F+ 3 3 ~ p'r' ~ ~ i _ g ~ i 4" I ~R K S' ~t,~1 ~z4 r ~ ~ ~ I f,. i i w~ Yi ~~i ,r w is d Ye ~3I ~r ~'n ~w~ m~' fia Ba ~ e~~ r ~ I T p~ ~ Y dl' S L - 2s @ 9a q ' \ ~ ~ H ~,7' J rr ' \ / _ L L__ ~ ~4J i .i A ~ ~ i ~ ~i . h ~ - I i ~ ~ i , ' - ~ ~ ~ ~ % - ~ ~vt ~k51 i ~ 1 I % ~ Ji ~ ~ ~ .v, i ~ ~ ~ d~' ~ t ~ ~ I P~/ ~ ' i < ~ ~ o ~ G~ ~ A U w ~i iK. ~ ~ r / d ~ / ~ ~ ~ ~/i iI } ~ \ / ~ \ • \ I } \ 1~ e~i~ f ~ , I ~4 _ ~ ~ P 1 ~ 2 I 1 ~_b 1 ~ ~ \ _ ~ x~~ ~ _ ~y n f ~~y ~ d p ` F'~ ~ 5 I~~~ ~"~y % ~ D i ~ o ~ ~ / n ~ i ~ \ 5 Y aN j , o ~ ~ ~~a ~1 w 25F-28 ~ ~I, I i z x to z :~d~ I ? ~ ~ i I ¢ 50 ~ ji ~ a r j 3 e @: ~ 5 N rn 3 F • ~ 9i.,--Y ~ :I I i W g z~ ~ n2~a ~i H ~ ~ f t r E"s rc ~ ~ ~'~4~ ~°0 ~ A ' wSr i _ '.i...- ~ @@ r N. :x~ d4 i? ~E7 + Y :i n $.)t ~~`I- ~ ~ +`6 . p ~ ~ , i r srt ice,` j,'~ \ i J~ I ~ ~ V ~ j ~ ~ ~ F ~ ,5 N f ~ W \ \ ~ N \ ~ C 6 ~ ~ ~ ~ ~1 W 1 l T. _ / l0 ~ n ~ ~ ~ .t. 3~., I ~ - f-. ---r ~ ~ Ai ~ 0 ` ' ~ ~ [ ~ ' h ff S f J a 2 y c i ~ I I~ 0 _ lu a o ~a z~ ~ I ~ ~ ~ ~ Z t o~~ ~ ~ ~ _ ? - 4~ I I sa l I- ~ r ) dint ~ r ~ 7 CQ,._.. E ~I''-^ r 1 r'~' 1 \ l III `3 ,g I ~ i'~ a -i { 'P ~I U iir. ~v 2 I ~ ; y. S F .e .:K W am / 3y m ~ ~ a ? ~ ~ fib= a~ a f'~ o r~ W 25F-29 ~ ~ r. ~ o < ~ r I a ~ u ~ " Q a 09 A x` r ~ a y~ N 4 O ~ ~ ~ ~ ; sR a ~ ; oEa x`"` o M r~ i~ ~ i ~ ~ yea ~ x -i w ~ si y ~klv a ~ 2 5\ I W tl i~Yi W r _ x~ Y tY twin ti ~.i eM r i b Y ~~yb ~ r{' pp ~ r ~,j~ ~ ~ ~ I a i ~ ~ 9'~ ~ It - ,f. r ~ r. b ] j ,e 9e~ Y ZYPtI ~ I i C , 4ey~3 ~ y ~ e~~ I P Y~Oe¢' ~ ' a ~ Y~~'I ~ ~ IY ~ ~~Yev y gg .4 x~ ~ ~1a'S, ; ~f a , 1 i d S ,Fr~ ~ .gy I ~ ! e }q i 'a e e ~k~ s F Y` ~ a~gy ? 4 . ~ pp ~ g a~z I S s i+o w k ~ 's , e 0 . ~ P~ - ~ ae ~ . f~+~• Tk e ~ I _ j ee e', a•. ;,i. ty 3I ; Gk ~ Yvb i kr ' `k e~I ~ ~ I~~I asy} 3 tai?~; Y w~ 'v.. Y4 _ ~ 3 [ L ~PS " ~e1y Pjy a $/e I t e~ e ~ ` Y.F 5 S~ *1 J ~ p re fie c t ~ ~ 4 I $y is 4 ~ dr f~E s~ Mgg° o Y% ` Yx r C I ~ = i~ y 8 ~ v7 d ~ ~1 Ya 3~ ~ ~ ~ ~ 4 1 f ~ ~a ~ ~ V~ a. v > x ~I 4 I l ~ 3 a Y,~ ~ 1 S`~ p,..'. , r~ „g ~ ~ ' -e I, I , , o-, , ~ ; ~ 8l ':N - IIiF I J iW W ~ J i _ . ~ 25F-30 AEI ~ ~ ` I x ~3~ 4 ~ ~ 0~ a I ~ ~ I ! a 'y'A= Z O O k' f i~ "1 ~ ~ Sli S al SI 1 3 0 If~~ O 7~ ~k Y"~ W ii c F Y ~ t i f~ to k[ G I ~i ~i PYa Q F~. E Z ~~'"~h~tpl: r I{ i W g.~ v ~3iy W Q ~ a, pg + 1. ~ j?'' ~ C 3 tr;~~"~ N Li ;I s - n - . - ;fir. pf ~ ~s ~ i~;~~ ~ ? , .t ~ `f I ~ ~ I ~ ! I ~ I ~ I ~ ` k T ! tea' ~ J ~ ~ ~ ~ i ~ I ~I ~ , , , ~ I ~ ~ ~ l ~ ~I ~ ~ ~ I i':f 573 9~ Y R r ~ x a' d ~ ~ 33~y k~q~ ~ 4. g~ ~ ~ 5 5 ea FS;~ 1 ! .z C~ ~3 ~ 359 ~ t ~?9 t , 'p ~9. a j a ~ ~r~ - _ ~ p il~ P y ¢6 r p t2 Y5S$' ]s r£~ t~ if 3: ~ rjY~ I at ° ~ I sf ; ~kkaz ! i n k~, r j f:3 sya4 tk•, ~jti9.S P„ k i ri` ~=~P z:~ f-.. i,i s f7~9q~1 ~.i I - I ~ f, s 0 qSW ~ ~ W jC W Y F OI aQ I ~ ~I li W _.,.......m..,.,..._.:..... . 25F-31 ~n ` a a ..l ~ ~ ~ ~ ~ ~l--I~ ~ =!:I~~ Q¢ a Y ¢ s IIQ~ 5 d g~ ~ m ti s s~` e 1 s ~ Z ~ ~ v ~ ~ S s~F~~w 5 ~ 0 yY- ~r":~ ~ .Y~ ~a. W ~ ~ vR' fV i z r-I ~ . y^f _ ~a„: ,..d ~z s~ ~ ~AI,~ i ~ 1 ~ ~ I ~ I ~ ~ 1 . '~Ij J F~. _ 1 y~ ~ ~ ~ f I!I i~ r III ~ ~ ~ ~ ~ f.. I I I ~ - ` ~ i [:3 o • o ~ ~ ~ 4 q o i S 11 ~ ~ '~!a, _ a ~i t y w a .iro ' I r ~ o ~ a i o ~ ~ i ~ ~Y9 ~ 25F-32 I ~ ~ II~'o' ~ FII I=~! ~I FI I I I I I I ILII ~ II II ~~sal II 3E g Eli{ y F Y k 1,, s ,til lU < 'r' Q tr.. ifs ~ & ' Q a O e f ~ ; s k: 34 4 m S; °i'4a {r ~ O ~S' ~ f}( ~aa'xm 5i~a~ ~ 3ge~ ~nlr~ IIS! y ~ c+ ~ ' ~ 1 ~ Y y'1 L~ w d ~ W ~ F9 5 5 li; ry" ~ V i ~ .vYAK~ dm v ' t r z ~ t y i d± x P ![x y, ' i ' y. z i e i a~ b` e ~ i c < E.. x ~Ei E c S~ °j 4 ~ tt y 1 to r ~Y; d e ~ uiF F~ yY B of .lai 8 ' L ..f E~Le e ~ -i e v i z#x e s ~ I x 4 i e g ~a ~ R ! ~ >o r ~ E~3c~ kQ~F1 rti i S d_ i 1 i ~ F^ A i•" F P yrz Y~y SY ~ P kle; p~ a f f,° I"q e° d ° r ° i a° w y e'' Ili e V { d ~ta ~v r 'r zl~s. k i y { e CIC a" 11 R -lid IY{ 3a 61 iF ex 1ny .S A n pp ffe 4~ t`i s; + S z l v,F y a ze i z isi k dd gat z E C, d aF t S 3 1•/~/11 P y 9le ~ ~ '~da ~ x~ ! ~ k{ P Ez~i3 { 6 y~ F zf { EJ yC { iy ~ 4 4q ~r4 8 VJ A ! f~~ f ;e za~ yF ! ~ F ) -°t et xit x a i y z ~i > r n ~ ~ ~ a-~ 3 ra{s!i_,. ,II F 1 s v a a 7 a i ~ .5S ~ E .i~.& ~ R - ~ is ? a ~eY a lxR q.. P'Y e r 4 g ! i d Y A- { i a F a 1 C~aai~ t 93 e a s x+ r r Al a }x ~1 ` i e{ 5 y 1F xPa kzi 1 t r. y e { l a x ~ 1 a { f e .a • _ x F a ~ ~ { ECI L" `C°°~ ° as I! ,1 a v ~ y P p 3 kt I'. z:d i I e' Y"1.[ r; ~ ° e $ ii[~ 9 My ax ' a. w"! ~y'..~~ S~ _ s+- ~ r. r .tP is ~y ~ I c F ' ° ~ z77 €€.f a.. ° f. { e s i. ~etx: § ~ a , F age ['yf a s zedy iyy°F+ SC~~ d 4€2' CXE iS°~p ~{a~ ~ ° t, iA r sYI~ !li ' ex I qF ~ 5i ~yP Fgi~ ' a°~tl (~'.y ! av'~ AP( LYe Yi f ~ p4 P i• y S Yys21 - Y ~ S PA! a F dF. 9z ~ [ if 9 I Y rix °S ° y azC~ V E - .`S i~ N ,3 6 rj ° 5 C io ~ g ; ~ [~iP iF { ~a {5le6is~ R ~3-c } x°~. A~ e~i" Ci Y FfPt~ i.. t S e F i p l ~ r4 r R yy Y 3 ! 1 x)°r 1F{ E zF''{, ° r Y t I{ f r r5p ! R a=[a iP pxx tp C'd'r Eye ~ Ia [4 t ,y ~ 9 f ~ a R lI a I 'f=Aa ~z Fz{: ? d e S Is x1 ~ ''~A;;+ e faq d~ 8. `e o d _ i, t •s ~ ~ ' ° ; Ti ~tiXg ~ F ~g i}61'e s }F t a P t.F q!q r t 5 a ~ ~ .z c fib 4 @y [ ~u c'ef 4,8 It a x a V ° { e " + ~ a 1. , ~ ~ a Y 9! i YV4 : Fy ~i ~~a~ y_4 x ! ~yF ° ~~i D. 9y? A E~ ~ 'k i y ~ of S e x,yr6 " 4a ~Id tp° d i~~E a~ r. y y i{ ~y[Ea ~ ; [~z n~F i ` lr - Cy Ir ~.c ~ ~ k x 11 e c a{yf~s a t¢ t w ~i~~ 22e~ ~ f n 1 [ {.f •a 1 °i p6 [°E a ! x I• ![I{E[C.~ i~t ly { d~~y 5p yipa Fe az~' ~ > ly ! ft s B d1 ; r Fv ° dC u' b i S app :.y ~ I it 1 e' ° E d 5 x' ~ t E ~ x[[ a [ a~ 6y t o f Pii ° f n~ I na xA c 'a i °g n t. ~ ~i! d i a ' y ! 1°;,, i { a 1; p5 r e '-E rz vF Sy! a z [ aglfale~{Y Sx S z e y 3 lel { { 5':u 'Y . v r ~'i a ° 5~9i { 5 E.ix i !tF R d ide Y, . P+•fi" ~ ~ A Fs ! -sad2i ~~Ii e.i ar "eII~ jn [£e l` ° a t - 8 a z a A i 4 al n._ .S: 8x 4 A t i t I d I { g~ {i f ap ~ j e. F i I r { 2 CY e v 5 k ; 3~ C ~ AP S C[ i s b 11 ~ a ~ n I q . le ~ a { a r- ~ a t~ a c a Ca Q A ,r'xI ~ x 4a yr 1 ~ 'r ~ Z 5ia I°i a 5 xs y _ z -1.8. fxP a Sai 53 5 F t. M1; O r v tf'~ a i EA ~ Sa ~~i - j i k a ~ {a f RI i l y Y ayt ~ ;a s ~ ad ~a F ~ e r , - o ~s t a t at F~ a }o ~t y ~ y of V :o y E.IIy i 5 f ° za ~ a ~ee fix ..ty aya C f ]t z a ¢r I! .6 tF LL 'a S° ~ 6 ° d y A ng pd6 I a, e { ¢ i W ;e i 0ky ~ cy { jY ° tl ap~~ e~. f 6 ~.tn a ~ a adkx~~ ~n f as ~y dk .i ey c [ 2 i ~ y - . ?t d xi! 1 x ,<'in~ i t e o tai= i - ~ F - (7 ~z 1 _ i. s ~.o ~ ~s m 25F-33 I ~ ~ III h~ s II I•1_LLILLIL~1 ~ II II JII II ' E Y 0 ~ ~ :E ° ~ 6 ~ i3 ~ ~ ~ ~ ~ (1 I YU 4~~ ~f X~ ~r ~ Q.. ~1e: ~ r~'~ 111 ~.1 7S~ ~JI/`~ i~ / J m ,.y Ft" s .s 1 ~ ~ ;e 0 / z~, \V/ & e :qqN~ ~~5~~ s t UA i~~ YI 6 i 1,~~ ti i d ~ p d L _ J 1 ~ \ \ ~ \ I \ \ I \ \ \ :.J CiOJ U ~ OJ ~J J::1 Jp~~- 1,1 ~ J ~ ~ , r . _ { J I z ~ 5 . i ~ i ~ ~ `j z 5 a 25F-34 ~ e lol' , ~I I I I I I I III ~ ~yFal an ~ i:. V a `K F a ru'- I, ~ O t ¢ G 1p df a m5p ,4 ^ippp is ~~1 ~~d~ s ~~~~til~~ 3zera P q V f c+ t W r iy' U . ~ ~ ~ ~ e~~ ~~°~s ! , ~ ~ ~ g ~ =a`^iy~ o ~ {s~7 'f a 'J ' ~ a W. ~ tf1 6 - ~ C' f 9 ~z~~ ~ ~ ~ t F} a ~ ~A~ 1 Aaa ; p 1° s a a ¢ a. 4e t f n3 i t. 'f1 ral~r 5a + 9'd ~ 3 a P k t g rr ~a,. { S~J .s 9 a kY FAx ° i I Y} ^ } } } °a a°J Y~R! fIF§xi >'3e n Cd ? kas 6g 6 ° e. y as a$n elf ~ta§S $ nFxl F A ae~ r~e~_ sa, F * , FP }.t ;6 `S aka al } 2 fb x 1 9' l y a k'1C y e ?X'td A f~ i 9 'i4 f is l ~ k f A }p §~aC ~ s e ° 1 x0X a ~y d~. ~1 ix sC 1~ 6a P6aq~ 3 ki§Et i; V 1 ~ V a t i. ~i f3§ 'j ,~1 C .A~ nx y i yr 9 - v?s a§ XN i z ..d o aK r s e. -Rir ' ,,j~.., a iy ~~'E r ` 'ySP' V Q ~ F. ~i.. S~ ..r ~r ,E La 6 ! A Af' ~Y. _ ~ x" ,r Ci s t„ lEa f z ~1 s `e p P ~,v ; s r e E a x 1. ` ~r a~.. a3 a 3fa3~~a 9 } {p{ ~g ai ~A C i,'r ~ d' CC t ~''a P A a i y Y~ ~ "f sk d; } ° F s a ` ! fl Aa ° y sl tl "X ~{t } ` r °,~la a .1 ~;1 f tt°. ° r. a FF 9f ~,~bE a'.1 a; c l~.~k t~ 9 a;l fi aesA rk`! xg i if Sa o r a c f .5 a As .x ? S 'id a }S ~ E '~P 4 sl t v c !~q ys s; € a y~ T1 x rr fr ~y ea ! 'ra > [a§a t a iIYY i{M Cy ~ X X } ~ yaa €tda t~i ~ k ar ..S fA Y r[a f i•if rpr 14 ~Pd Yf 39 dx. a a dfp fCla s i r c F s d x }I ~ is F 4x Y[ 1. of 3 ,b: 2 i e v 3 J• R nai ~lr a ~ S_i s E ~i a u - v..~ e yy y Se i`' E ; d t_ * 5; ara e $ k 1 1 I a s i i i d Y s.. ~ .R i i ! 'e i { t k 1! ~y ` Cr Ar ¢ b A d c x ayy a S Y 4 } [ s~ i[ a ~ ~ A 0 s r FaEY{9: 1° x to f Si - .r ay 4, Y a } v r. Esc ea t°j ~ x. 1 a lz a ° S s 5~. exf ~S4 xPl a:t i A -5} " . z n @ , ' ~ f a.. ~ ~ if b a iS aC: ~ x~ °s o-} p15 } d ` } ~~i s n ~ A a:. s.. ' ! X; as k a.. f b 5 iai 3P d~ (}1 < -i 1 cy ~ ~a. ` k -F {t s 1 k f 1 a`' i !X k Ea E° f a. R e i4 x a 1~ a Sa ~ o f 1 t _ r ] X a a $k 4ty d y.u 1 n-. . r +.7 1 ~ b :M1 St ~ c) y y Sn r i rc y. ~F is A f ~ nF 4 _ trt :aii F .F a d ~ iry 3 .~y i~ ° x a ~Fyi Y'} t vt ["i d } . . ° f - rk ~ `L a~ r b R 1 s ~ `t eA 1 ( f~ .i ~ ~ `3a t i,§ yak 41e id 1~1 % F 'd [ k a _ :~a ' S r y e(° a,i i F cj tl P3 f A ft •y 3 a Z i t + r F tl e 9 'f k as B s 1 a ~ c r a op;k 1 ~ P ilk n k 6F Q i ~ l lq! ~af a y of ;y I°R~ wee a ;Y 1 U 1 tk R K ~ i 6N 1F r ay o" ~+~v~ra p li ~ LL i~ kx s`k~a t}~ }a66 1 i.. A ,~j .A v y C.a, P ~ a El 5 ~ ke C, b i _ is n e ..a r t ~I" f s S~pP 'x a a s r. ~a v' e9 °:i s i} j CSY 1^ P f 2 f a ~ F ti _ 4 fie "qk.. .y a f b x~ F y 2 25F-35 i i ~ ~ ~ f g a i¢ a a aaa 5 n~ }a~ ¦ ~ p y ~ p?W . W_J 5 ' ~ n p ral m~~aE o_~ ¦ ~ 6 - i ~ "~"v ~ .~~~o~ WY~ y W N brµ y V yy 1~~;', j - ~ a ~ a ~I . W f G r ~ s £r~~ r~, - .i ! a a M Y.1 0 ~ ~ ~~~N r ~ ~~^P My~ ti w I,a ~ ~ Q 25F-36 i ~ ~ ~ ~ S l]Fy W Q f'1 ~ ~QUv nry¦ r--1 Q O W iG T p_ ~Y t n 5 ¦ 3 ~ ~ryry ~ <; ~ j v V ~ y n P 55 m UO nE a.. H ¦ 4. 6E6F, L 2 ~ ~ 1 ~ ~~~~e ~~~~a ~ a o ~ 6 a w 3 2 i s ga /M~ ~ s $ W ~ ^ ~ N N ~ o~o~"s ~ M~~Q W ~ Q• ~ ~ 25F-37 i i ~ ~ ~ ~Z ~ a~ O ~ ~ Q 3 a ° ~ L ¦ 3 G R W'~ !P - 3 a 5 ~ a 55 m P ~ E n.,. ) - gER6 a~ z ~ ~ E • ~ .W 9 'L W ~ p6p b ay` L< rn'1 . E x ~ ) s "r; bux ,x~ a a T 4{; a F i ~ $ `e~ t n~ 3~ p~~ Cy ~ tp'z ah"~ >h < 4 y y, r~ ~ e n y O d ' Pw. ~w ~ ~ ~ n e' tN~ ~ ~ o ~ 'r'b9 M~4°+ Y ak h O ..,,1Vk- Z t W ~ ld7 U E ~ a - y$~~o 1 ~ i~ P~~ `e 7~ 1fl a ~ m o ~ ~ ~ N ch § OaNs M~~ti w M~.-Q - pp Q ~ry ~ ;,xCS ~ N 3 25F-38 REQUEST FOR COUNCIL ACTION e- j CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED As Recommended LEASE AGREEMENT WITH As Amended Ordinance on 1~~ Reading AT&T MOBILITY ordinance on 2"' Reading FOR CELLULAR ANTENNA AT Implementing Resolution JEROME PARK Set Public Hearing For ~ CONTINUED TO ~ y~~--~~ FILE NUMBER b CIT MANAGER RECOMMENDED ACTION 1. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute a lease agreement with AT&T Mobility for installation of a stealth monopine antenna and equipment building at Jerome Park, subject to non-substantive changes approved by the City Manager and the City Attorney. 2. Approve an appropriation adjustment recognizing $28,800 in the Capital Outlay Fund Miscellaneous Recovery account (no. 05102002 57010) and appropriate same to the Capital Outlay Fund Improvements Other than Buildings Expenditure account (no. 05113263 66220). 3. Receive and file Categorical Exemption for Environmental Review Nos. 2010-63 (Jerome Park). BOARD OF RECREATION AND PARKS Recommended approval of lease agreement with AT&T Mobility for cellular equipment building and monopine cell tower at Jerome Park, at their meeting of June 30, 2010, by vote of 4:0:4. DISCUSSION AT&T Mobility is requesting approval of a lease agreement to install a 65 foot monopine with cellular antenna at 60 feet in Jerome Park. The lease agreement with AT&T Mobility is for 240 square feet of lease area (12'-0" X 20'-0" equipment building) and 170 square feet for the monopine antenna area. AT&T Mobility will demolish an unused park restroom building (east of the ballfield), build the equipment building/monopine antenna, install foundation planting/trees around the building and revise the irrigation system. 25G-1 Lease Agreement with AT&T Mobility at Jerome Park July 19, 2010 Page 2 The lease term of the agreement is for $2,400 per month ($28,800 per year) for the lease of park property. The term of the lease agreement is for 10 years, with three 5 year extension options. The agreement provides for the lease rate to increase 4% per year throughout the term of the lease. In addition AT&T Mobility will demolish an unused restroom building from the park and landscape the area around their equipment building. The annual $28,800 lease payment will be deposited in the General Fund for payment of the landscape maintenance contracts in city parks. AT&T Mobility will provide all the proper insurances and obtain the necessary city permits prior to construction. On March 17, 2010, a presentation of AT&T's proposal was made to the Bella Vista and New Horizon Neighborhood Association. Questions were raised on health/safety issues and how the revenues were going to be used. Staff indicated the revenues were going to be used to pay for the landscape maintenance contracts of our park sites. Both associations expressed concerns that there will be three cell towers at Jerome Park and the cell towers will be providing funding to maintain other city park sites. They requested the revenues be used strictly for Jerome Park capital improvements and repairs. The associations approved the AT&T cell tower, but voiced the above concerns. A member of the community was at the June 30~h Board meeting and indicated she supported the cell tower installation and was glad the old restroom will be demolished with this project. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempted from further review. Categorical Exemption Environmental Review No. 2010-63 (Jerome Park) will be filed for this project. FISCAL IMPACT This appropriation adjustment will recognize $28,800 in the Capital Outlay Fund Miscellaneous Recovery account (no. 05102002 57010) and appropriate same to the Capital Outlay Fund Improvements other than Building Expenditure account (no. 05113263 66220) for landscape maintenance of City parks. APPROVED AS TO FUNDS AND ACCOUNTS: r Gerardo ou Francisco Gutierrez, Executive Dir ctor Executive Director Parks, Recreation and Finance and Management Services Agency Community Services Agency 25G-2 LAND LEASE AGREEMENT BETWEEN LAND LEASE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND AT&T ror JEROME PARK This Agreement, made this day of , 2010, 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 designated "LESSOR" and AT&T New Cingulaz Wireless PCS, LLC. A Delaware limited liability company, having a mailing address of 12555 Cingulaz Way, Suite 1300, Alphazetta, GA 30004, hereinafter designated "LESSEE". The LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties". 1. PREMISES. LESSOR hereby leases to LESSEE a portion of that certain parcel of property commonly known as Jerome Park (the entirety of LESSOR'S property is referred to hereinafter as "the Property" and a legal description of the Property is attached hereto as Exhibit "A"), located at 2115 West McFadden Ave, Santa Ana,. CA 92703, and being described as a twenty foot (20') by twelve foot (12') space on the ground containing two hundred-forty (240) squaze feet for LESSEE'S radio equipment cabinets, a seventeen foot (17') by nineteen foot ten inch (19' 10") space on the ground containing three hundred twenty four and 7/10 (324.7) square feet for LESSEE'S tower, and space required for cable runs to connect LESSEE'S equipment and antennas, together with the non-exclusive right for ingress and egress from and to the neazest public right-of-way, seven (7) days a week, twenty-four (24) hours a day, subject to any restrictions stated herein, on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or within the building to the demised premises, said demised premises and access and utilities paths (hereinafter collectively referred to as the "Premises") for access being substantially as described herein in Exhibit "B" attached hereto and made a part hereof. 2. SURVEY. LESSOR also hereby grants to LESSEE the right to survey the Property and the Premises, and said survey along with detailed site plans shall then become Exhibit "B" which shall be attached hereto and made a part hereof, and shall control in the event of boundary and access discrepancies between it and Exhibit "A". Costs incurred for such work shall be borne by LESSEE. 3. TERM. This Agreement shall be effective as of the date of execution by both parties, provided, however, the initial term shall be for ten (10) years and shall commence on the Commencement Date (defined below). 4. RENT. After the Commencement Date, rental payments will be due in an annual rental amount of twenty-eight thousand eight hundred dollazs ($28,800.00) to be paid in equal monthly installments of two thousand four hundred dollazs ($2,400.00) per month on the first day of the month, in advance, to LESSOR or to such other person, firm or place as the LESSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date. Rent shall commence on the first day of the month following the issuance of the .building permit for LESSEE'S Facilities (as defined below), or the first day of the month that is six (6) months after the full execution of this Agreement or the first day of the month following the date LESSEE commences installation of LESSEE'S Facilities on the Premises, whichever occurs first ("Commencement Date"). If rent is not paid within fifteen (15) days after the due 25G-3 date and nrnvided T,FSSnR has cmm~lied with all annlirahle nntire and rnrP nrnvisinnc herein date and provided LESSOR has complied with all applicable notice and cure provisions herein, LESSEE agrees to pay a late chazge equal to six percent (6%) of the then-current monthly rent. Rental amounts attributable to partial months shall be prorated on a daily basis. 5. ANNUAL RENTAL INCREASES. The rent payments shall be subject to an annual rental increase of four percent (4%) per yeaz, to be increased on each anniversary of the Commencement Date. 6. INITIAL PAYMENT. LESSEE hereby agrees, in lieu of making an initial payment, AT&T will demolish the existing restroom building, as set forth on the Site Plan attached hereto as Exhibit B. 7. EXTENSIONS. The Lease Agreement may be extended for up to three (3) additional five (5)-year terms (each a "Renewal Term"). Each Renewal Term shall be on the terms and conditions as set forth herein as follows: (i) Six (6) months prior to the expiration of the initial term, if LESSOR, in its reasonable discretion determines that LESSEE'S continued tenancy is not in conformity with LESSOR'S intended use of the Property, LESSOR shall provide written notice to LESSEE that the Lease will not be extended. (ii) Thereafter, each subsequent renewal shall be subject to the following procedure: If LESSEE determines that it desires to extend the term LESSEE shall provide written notice six (6) months prior to the end of the then-current term. Within sixty (60) days of receipt of LESSEE'S notice, LESSOR shall determine whether such extension is in LESSOR'S best interest and, if not in LESSOR'S interest, LESSOR shall deny such extension request. If LESSOR does not respond within sixty (60) days, the lease is deemed renewed for an additional Renewal Term. If neither party provides notice as set forth above, the lease shall continue on a month-to-month basis. 8. GOVERNMENTAL APPROVALS. It is understood and agreed that LESSEE'S ability to use the Premises is contingent upon its obtaining all of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or local authorities as well as satisfactory soil boring tests which will permit LESSEE'S use of the Premises as set forth herein. LESSOR shall cooperate with LESSEE in its effort to obtain such approvals and shall take no action, which would adversely affect the status of the Property with respect to the proposed use by LESSEE. Prior to the Commencement Date, LESSEE shall have the right (but not the obligation) to enter the Premises for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (collectively "Tests") to determine the suitability of the Premises for LESSEE'S Facilities (defined below) and for the purpose of preparing for the construction of LESSEE'S Facilities. In the event that any of such applications for such Governmental Approvals should be finally rejected or any Governmental Approval issued to LESSEE is canceled, expires, lapses, or is otherwise withdrawn or terminated by the governmental authority or soil boring tests aze found to be unsatisfactory so that LESSEE will be unable to use the Premises for its intended purposes or LESSEE determines that the Premises is no longer technically compatible for its intended use, LESSEE shall have the right to 25C.~-4 terminate this Agreement. Notice of i,F,SSF,F.'s exercise of its right to terminate shall he given terminate this Agreement. Notice of LESSEE'S exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and shall be effective upon the mailing of such notice by LESSEE. All rentals paid to said termination date shall be retained by the LESSOR. Upon such termination, this Agreement shall become null and void and all the Parties shall have no further obligations including the payment of money, to each other. 9. APPROVAL OF PLANS. Prior to commencing construction of LESSEE'S Facilities (defined below), LESSEE shall obtain LESSOR'S approval of LESSEE'S work plans, which approval shall not be unreasonably withheld, conditioned, or delayed; such approval shall be issued by the City Manager or his/her designee. LESSOR shall give such approval or provide LESSEE with its requests for changes, which changes must comply with all applicable building codes, in writing within fifteen (15) working days of LESSOR'S receipt of LESSEE'S work plans. If LESSEE does not receive such approval or request for changes in writing within such fifteen (15) working day period, LESSOR shall be deemed to have approved the plans. LESSOR shall not be entitled to receive any additional consideration in exchange for giving its approval of LESSEE'S plans. 10. USE/IyfAINTENANCE. LESSEE may use the Premises for any lawful activity in connection with the provisions of mobile/wireless communications services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance, and operation of related communications facilities. Accordingly, LESSEE shall have the right to construct, maintain, install, repair, and operate on the Premises radio communications facilities, including but not limited to, radio frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements ("LESSEE'S Facilities"). All improvements shall be at LESSEE'S sole expense and the installation of all improvements shall be at the discretion and option of LESSEE, with LESSOR approval, which approval shall not be unreasonably withheld, delayed or conditioned. Said approval shall be obtained from LESSOR prior to commencement of any construction, alterations, modifications or improvements pursuant to Section 9 above, and LESSEE agrees to submit architectural and engineering drawings ("Plans") of the equipment to be installed. LESSEE agrees that the installation and maintenance of LESSEE'S Facilities shall be effected with all reasonable diligence and precaution to avoid damage to the land, property or personnel. Notwithstanding the foregoing, once the initial improvements are installed, LESSEE may replace, substitute, upgrade and expand its equipment, cables and antennas which comprise LESSEE'S Facilities for the purpose of repairing or upgrading the communications capabilities of LESSEE'S Facilities, with notice to LESSOR, so long as the equipment, cab]es or antennas remain within the original physical parameters of the Premises. LESSEE shall not make any substantive physical and/or aesthetic changes to the Premises without the prior approval of LESSOR which shall not be unreasonably withheld, conditioned or delayed. Any such changes are subject to the provisions of Section 13 contained herein below. LESSEE shall be responsible for the cost of any and all damage to the Property including but not limited to concrete and/or asphalt, buildings and/or appurtenances caused by LESSEE. LESSOR at its discretion may require LESSEE to repair and or replace said damages or contract for said services and bill LESSEE. The cost of said repairs can be subtracted from any deposits retained by LESSOR. LESSEE shall have the right to install any warning signs on or about the Premises required by federal, state or local law. 25C~-5 T FRSFF's Facilities shall he cnnstnicted and maintained in a manner and with materials LESSEE'S Facilities shall be constructed and maintained in a manner and with materials that are consistent with the approved plans for the project. The materials actually used must match up with the proposed materials and artistic renderings. LESSOR shall provide LESSEE, LESSEE'S employees, agents, contractors, subcontractors and assigns with access to the Premises twenty-four (24) hours a day, seven (7) days a week, at no charge to LESSEE. LESSOR represents and warrants that it has full rights of ingress to and egress from the Premises, and hereby grants such rights to LESSEE to the extent required to constrict, maintain, install and operate LESSEE'S Facilities on the Premises, and to remove them therefrom. LESSOR shall, at its sole expense, maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to allow reasonable access to the Premises by LESSOR. Except in cases of emergency, LESSEE agrees to provide twenty-four (24) hours notice to LESSOR before any installation, maintenance, replacement or repair is to take place on the Premises. In the event that maintenance is required, such as the repainting of LESSEE'S Facilities, such maintenance must be completed by LESSEE within thirty (30) days. 11. INDEMNIFICATION. A. LESSEE'S Indemnity. LESSEE shall indemnify, defend and hold LESSOR, its officers, employees, successors and assigns harmless from and against any and all loss, cost, claim, liability ("Claims") occurring on the Premises and azising out of or connected with the negligence or willful misconduct of LESSEE, its officers, agents, employees, or contractors except for Claims arising out of (i) the negligence or willful misconduct of LESSOR, its officers, agents, employees, successors, assigns, or contractors; (ii) violation of law by LESSOR, its officers, agents, employees, or contractors; (iii) the breach of any duty or obligation by LESSOR under this Agreement; or (iv) any condition relating to the Premises which LESSEE has no obligation to repair or maintain. B. LESSOR'S Indemnity. LESSOR shall indemnify, defend and hold LESSEE, its officers, employees, successors and assigns hazmless from and against any and all loss, cost, claim, liability ("Claims") occurring on the Premises and arising out of or connected with the negligence or willful misconduct of LESSOR, its officers, agents, employees, or contractors, including, but not limited to City Business as defined in Section 17 below, except for Claims arising out of (i) the negligence or willful misconduct of LESSEE, its officers, agents, employees, or contractors; (ii) violation of law by LESSEE, its officers, agents, employees, or contractors; (iii) the breach of any duty or obligation by LESSEE under this Agreement; or (iv) any condition relating to the Premises which LESSOR has no obligation to repair or maintain. 12. INSURANCE. A. In accordance with the provisions of Section 3300 of the Labor Code, if LESSEE has any employees it is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing performance of this Agreement, LESSEE agrees to obtain and maintain employer's liability insurance with limits not less than $1,000,000 per accident. If LESSEE has no employees, nor workers' compensation coverage, it must execute a Declaration available from LESSOR, and update as is necessazy. 25G-6 R_ LESSEE shall obtain. at its sole cost. a nolicv or policies of commercial B. LESSEE shall obtain, at its sole cost, a policy or policies of commercial general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall: (1) name LESSOR, its officers, agents, representatives, employees and volunteers as additional insureds (see sample Exhibit C); (2) be primary with respect to insurance or self-insurance programs maintained by LESSOR, except claims resulting from LESSOR'S negligence or misconduct; (3) contain standard separation of insured's provisions; and (4) give to LESSOR prompt and timely notice of claim made or suit instituted arising out of LESSEE'S operations hereunder. LESSEE shall: (a) prior to exercising any right under this Agreement, furnish properly executed certificates of insurance and additional insured endorsement to LESSOR which shall clearly evidence all coverages required above; (b) provide that such insurance shall not have its required limits reduced or terminated except on thirty (30) days prior written notice to LESSOR; (c) maintain such insurance for the period covered by this Agreement; and (d) replace such certificates for policies expiring prior to the expiration of this Agreement. 13. INTERFERENCE. LESSEE'S Facilities shall not disturb the communications configurations, equipment, and frequency, which exist on the Property on the date this Agreement is fully executed ("Pre-Existing Communications"), or public safety communication operations, as may be upgraded periodically, and LESSEE'S Facilities shall comply with all non- interference rules of the Federal Communications Commission ("FCC"). LESSOR shall not use, or permit the use of, any portion of the Property in any way, which interferes with LESSEE'S use of the Premises or encroaches upon the Premises. In addition to any other rights LESSEE may have hereunder, LESSEE shall have the right to bring legal action to enjoin such interference against the party causing any alleged interference and/or immediately terminate this Agreement. Notwithstanding the foregoing, Pre-Existing Communications operating in the same manner as on the date this Agreement is fully executed shall not be deemed interference. LESSOR shall require any future tenants, assignees, licensees, or occupants using any portion of the Property for the operation of mobile/wireless or radio communications facilities to comply with the provisions of this Section and shall obtain LESSEE'S written consent prior to allowing such use of the Property, which such consent shall not be unreasonably withheld, conditioned, or delayed, provided that LESSEE'S consent may be withheld if interference with LESSEE'S transmissions, receptions, operations, or use of frequency will result due to such use, whether or not such interference is with LESSEE'S frequencies or otherwise. The City Manager shall determine whether consent is unreasonably withheld and may require LESSEE to consent subject to the above conditions. In the event of any interference with LESSOR'S public safety communications operations, LESSEE shall have twenty-four (24) hours after receipt of notice to cure the interference, and if LESSEE fails to do so, LESSOR has the right to require that LESSEE cease operating LESSEE'S Facilities (except for intermittent testing to determine the source of the interference) until LESSEE is able to recommence operations without causing such interference. If LESSEE'S Facilities interfere with LESSOR'S public safety communications operations during an emergency, LESSOR may require that LESSEE immediately cease operating LESSEE's Facilities and if LESSEE fails to do so, LESSOR has the right to shutdown the electricity supply to LESSEE'S Facilities. LESSEE shall reimburse LESSOR for any actual, reasonable costs that 25Ca-7 T,RSSnR incurs to cure anv interference with T,FSS(1R'~ nnhlic safety enmmnnicatinnc LESSOR incurs to cure any interference with LESSOR's public safety communications operations caused by LESSEE'S Facilities. 14. REMOVAL UPON TERMINATION. LESSEE, upon expiration or earlier termination of the Agreement, shall, within ninety (90) days, remove all of LESSEE'S fixtures and all personal property and otherwise restore the Premises substantially to its original condition, at LESSEE'S sole expense, reasonable weaz and tear, and casualty excepted. Underground conduits, foundations and equipment/storage buildings may remain at LESSOR'S option. LESSOR agrees and acknowledges that all of the equipment, fixtures and personal property of LESSEE shall remain the personal property of LESSEE and LESSEE shall have the right to remove the same, whether or not said items are considered fixtures and attachments to real property under applicable law. If such time for removal causes LESSEE to remain on the Premises past the aforementioned ninety (90) day period after the expiration or earlier termination of this Agreement, LESSEE shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time as the removal of the building, antenna structure, fixtures and all personal property are completed. Antenna support structure and all utilities cabling and wiring shall remain at LESSOR'S option in its as-is condition. 15. RECORDING AND QUITCLAIM DEED. If requested by LESSEE, LESSOR agrees promptly to execute and deliver to LESSEE a recordable Memorandum of this Land Lease Agreement in the form of Exhibit "F". LESSEE agrees to execute and record a quitclaim deed or other instrument evidencing the termination of LESSEE'S interest in the Property upon the expiration or termination of this Agreement. 16. RIGHTS UPON SALE. Should the LESSOR, at any time during the term of this Agreement, decide to sell all or any part of the Property to a purchaser other than LESSEE, such sale shall be under and subject to this Agreement and LESSEE'S rights hereunder, and any sale by the LESSOR of the portion of this Property underlying the right-of--way herein granted shall be under and subject to the right of LESSEE in and to such right-of--way. LESSOR shall obtain for the benefit of LESSEE a reasonable non-disturbance agreement from the present and any future mortgagee(s) or holder(s) of a deed of trust confirming that LESSEE'S right to quiet possession of the Premises during this Agreement shall not be disturbed, so long as LESSEE is not in default under this Agreement. 17. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and performing the covenants shall peaceably and quietly have, hold and enjoy the Premises, provided however, that LESSOR shall have the right and privilege to conduct City Business on the Property, as necessary. "City Business" shall include, but not be limited to the following: minor maintenance, minor landscaping, minor construction, concessionaires, and City sponsored events, located near the Premises, so long as the City Business does not interfere with or impair the operation of LESSEE'S Facilities. 18. TITLE. LESSOR covenants that LESSOR is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement. LESSOR further covenants that there aze no other liens, judgments or impediments of title on the Property or affecting LESSOR'S title to the same and that there aze no covenants, easements or restrictions which prevent the use of the Premises by LESSEE as set forth above. 25Ca-8 19 Nfl T,TF.NS_ T.F.SSF,F. will not nermit anv mechanics' nr materialmen'.c liens nn 19. NO LIENS. LESSEE will not permit any mechanics' or materialmen's liens on the Property for any labor or material furnished to LESSEE in connection with work performed. LESSEE shall have the right to contest the validity, nature, or amount of any such lien but, upon the final determination of such questions, shall immediately pay any adverse judgment rendered with all proper costs and charges and have the lien released at its own expense. If LESSEE desires to contest any such lien, then prior to commencing such contest, it will post a bond, where necessary, to release the lien. 20. MISCELLANEOUS LESSEE RESPONSIBILITIES. A. Maximum Permissible Exposure -LESSEE shall comply with all present and future laws, orders and regulations relating to Maximum Permissible Exposure ("MPE") and other related health issues directly applicable to its operation of LESSEE'S Facilities, as well as the American National Standazds Institute (ANSI) standazds. Without Limiting the provisions of LESSEE'S indemnity contained herein, LESSEE, on behalf of itself and its successors and assigns, shall indemnify LESSOR from and against all claims of personal injuries due to violation of MPE to the extent such personal injuries aze actually caused by LESSEE'S Facilities on the Premises. B. LESSEE shall maintain LESSEE'S Facilities and shall make all repairs to the Premises necessitated to keep the Premises safe. LESSOR may require LESSEE to make repairs to and/or replace damaged equipment of LESSEE'S Facilities and/or any parts thereto regardless of fault (including but not limited to damage caused by vandalism or acts of god not later than one (1) week after said damage is reported to LESSEE, except for damage caused by LESSOR. This time period may be extended with written authorization from the City Manager. In the event such authorization is not given and repairs are not made in one week, LESSOR may cause such repairs to be made including making said repairs and/or hiring a consultant to make said repairs. LESSOR may chazge LESSEE for the cost of said services. Damage caused by graffiti shall be removed within forty-eight (48) hours notification to LESSEE by LESSOR. If said graffiti is not removed within the 48-hour period, City may remove said graffiti and bill LESSEE for the cost of services. C. LESSEE shall pay all personal property taxes assessed directly against its equipment and all increases in LESSOR'S real property taxes or assessments directly attributable to installation of LESSEE'S equipment or LESSEE'S use of the Premises, within sixty (60) days after receipt of satisfactory documentation indicating calculation of LESSEE'S share of such real estate taxes and proof of payment provided that such amounts aze in fact due within the said sixty (60)-day period. LESSEE has the right to challenge any unreasonable tax assessment. D. LESSOR grants LESSEE the right to obtain utilities for the operation of LESSEE'S Facilities. LESSEE shall be responsible directly to the serving entities for any and all utilities required by LESSEE for its use of the Premises. LESSOR shall cooperate with LESSEE in its efforts to obtain utilities from any location provided by LESSOR or the servicing utility, including signing any easement or other instrument reasonably required by the utility company. E. LESSEE shall have the right to replace or repair its equipment or any portion thereof during the term of this Agreement. LESSEE will maintain the Premises in a good condition, reasonable weaz and tear excepted. 25G-9 ~ 1 RMFRCrFNC Y T ISF. OF STTR_ T,RS4FF, shall make available to the nnlice_ fire 21. EMERGENCY USE OF SITE. LESSEE shall make available to the police, fire and emergency services of the City of Santa Ana space on its communications tower at no cost to LESSEE or said entities, subject to structural analysis. The City of Santa Ana is responsible for maintaining its own equipment. The space to be made available will not create interference with LESSEE'S communications operations. As to any future subleases, their respective installations will be permitted only at such locations that will not cause interference with LESSEE or LESSOR and the City's operations. The City entities will be afforded 24-hour access to its equipment at the Property. In addition, the City will be provided "power backup" by LESSEE, if available at the Premises. 22. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between the LESSOR and LESSEE and that no verbal or oral agreements, promises or understandings shall be binding upon either the LESSOR or LESSEE in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the Parties. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terms or conditions of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights at any time and take such action as may be lawful and authorized under this Agreement, either in law or in equity. 23. GOVERNING LAW. This Agreement and the performance thereof shall be governed, interpreted, construed, and regulated by the laws of the State of California, with venue in Orange County. 24. ATTORNEYS' FEES. The substantially prevailing party in any legal action or lawsuit arising hereunder shall be entitled to its reasonable attorneys' fees and court costs, including appeals, if any. 25. ASSIGNMENT AND CO-LOCATION. A. LESSEE will not assign or transfer this Agreement without the prior written consent of LESSOR, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, that LESSEE shall have the right to assign its rights under this Agreement, to any of LESSEE'S (i) partners, parents, subsidiaries, affiliates, or successor legal entities, (ii) in connection with the sale, exchange, or other transfer of LESSEE'S FCC authorization for the geographic area in which the Premises are located or of majority of LESSEE'S network assets in the geographic azea where the Premises are located, or (iii) in connection with any financing, loan, security interest, pledge, or mortgage of LESSEE'S property. B. LESSEE acknowledges and agrees that the City policy is to provide for co-location on communication tower facilities and will reasonably facilitate any co-location subject to the conditions outlined in Pazagraph 13 (INTERFERENCE). LESSEE further agrees that LESSOR shall retain ownership of any further lease rights with respect to space for additional communication facilities on the Property, other than the Premises which is already leased to Lessee. Further, regarding co-location/subleasing space on LESSEE'S tower, LESSEE 25C.~-10 chall enter intn a TnWer T.eace Agreement nr cnhleace cnhiert to all nennitc and annrnvalc frnm shall enter into a Tower Lease Agreement, or sublease, subject to all permits and approvals from all governmental agencies having jurisdiction thereover, with a future tower co-location user, subject to (i) LESSEE'S right to require any such future co-location user to reimburse LESSEE for apro-rata shaze of the costs of the tower and its installation, and (ii) LESSOR receiving eighty percent (80%) of the tower rent received by LESSEE. LESSEE shall provide for LESSOR'S consent on any Tower Lease Agreement, or sublease and affidavits stating the sublease rent. The Party's intent in allowing LESSEE to collect rent and apro-rata reimbursement of costs is to provide a means by which LESSEE can recoup its cost of construction and maintenance of said tower facilities on a pro-rata basis with subsequent users. The Parties intend that LESSOR, and not LESSEE, should benefit financially, from any future tower co-location agreement. Any future carrier or co-locator shall enter into a separate ground lease agreement with the City. 26. NOTICES. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): LESSOR: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702 Courtesy City of Santa Ana -Office of the City Attorney Copies to 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 LESSEE: New Cingular Wireless PCS, LLC, Attn: Network Real Estate Administration Re: Cell Site # 000240 Fixed Asset 12555 Cingulaz Way, Suite 1300 Aphazetta, GA 30004 Notice shall be effective upon mailing or delivering the same to a commercial courier, as permitted above. 27. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representatives, successors, administrators and assigns of the Parties hereto. 28. RELOCATION RIGHT. A. Anytime within the initial term, LESSOR shall have the right to cause LESSEE to relocate LESSEE'S Facilities to alternate space on the Property; provided however, 25G-11 that such relncatinn shall (11 he at T,RSSt~R's rest and expense which shall he limited to that such relocation shall (1) be at LESSOR'S cost and expense which shall be limited to reasonable expenses of moving and re-installing the tower structure and accompanying equipment, including the cost of City permits and fees which LESSOR may legally pay, (2) be performed by LESSEE or its agents, (3) not result in any interruption of the communications service provided by LESSEE on the Property, (4) not impair, or in any manner alter, the quality of communications service provided by LESSEE on and from the Property, and (5) be done in accordance with subsections B and C below. Upon relocation of LESSEE'S Facilities, the access and utility rights of way will be relocated as required, in the sole discretion of LESSOR, to operate and maintain LESSEE'S Facilities. B. LESSOR shall exercise its relocation right under subsection A above by delivering written notice (the "Notice") to LESSEE. In the Notice, LESSOR shall propose an alternate site within or on the Property to which LESSEE may relocate LESSEE'S Facilities. LESSEE shall have sixty (60) days from the date it receives the Notice to evaluate LESSOR'S proposed relocation site, during which period LESSEE shall have the right to conduct tests to determine the technological feasibility of the proposed relocation site. If LESSEE fails to disapprove of such proposed relocation site in writing within the sixty-day period, LESSEE shall be deemed to have approved such proposed relocation site. If LESSEE disapproves such relocation site, then LESSOR may thereafter propose another relocation site by Notice to LESSEE in the manner set forth above. Any relocation site which LESSOR and LESSEE agree upon in writing shall be referred to as the "Relocation Site." LESSEE shall have up to twelve (12) months after execution of a written agreement between the parties concerning the location and dimensions of the Relocation Site to relocate LESSEE'S Facilities to the Relocation Site. Upon relocation of LESSEE'S Facilities to the Relocation Site, all references to the Premises herein shall be deemed to be references to the Relocation Site. LESSOR and LESSEE agree that the Relocation Site (including the access and utility right of way) may be surveyed by a licensed surveyor at the sole cost of LESSEE, and such survey will then replace Exhibit "B" and become a part hereof and will control or describe the Premises. Except as expressly provided, LESSOR and LESSEE hereby agree that in no event will the relocation of LESSEE'S Facilities, or any part thereof, under subsection A above, affect, alter, modify or otherwise change any of the terms and conditions of this Agreement. C. Should the parties fail to agree on a suitable Relocation Site, LESSOR may pay LESSEE the depreciated value for LESSEE'S Facilities and equipment, based on a ten- year lease period. 29. DEFAULT. In the event there is a default by either party with respect to any of the provisions of this Agreement or its obligations under it, including the payment of rent, the non- defaulting party shall give the defaulting party written notice of such default. After receipt of such written notice, the defaulting party shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to cure any non-monetary default, provided the defaulting party shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and the defaulting party commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. The non-defaulting party may not maintain any action or affect any remedies for default against the defaulting party unless and until the defaulting party has failed to cure the same within the time periods provided in this Section. If either party commences an action against the other party arising out of or in connection with this Agreement, the prevailing 25C~-12 nartv shall be entitled to have and recover from the losing nartv reasonable atternev'c fees and party shall be entitled to have and recover from the losing party reasonable attorney's fees and costs of suit. 30. ENVIRONMENTAL. A. LESSEE shall not bring any Hazazdous Materials onto the Premises/Property, except for those contained in its back-up power batteries and common materials used in telecommunications operations. "Hazardous Materials" shall mean any substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation, including petroleum and asbestos. LESSEE will treat and dispose of any Hazardous Materials brought onto the Premises/Property by it in accordance with all federal, state and local laws and regulations. B. LESSOR will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regazd to any environmental or industrial hygiene conditions or concerns as may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the Property, unless such conditions or concerns aze caused by the activities of LESSEE. C. LESSOR shall hold LESSEE harmless and indemnify LESSEE from and assume all duties, responsibility and liability at LESSOR's sole cost and expense, for all duties, responsibilities, and liability (including but not limited to payment of penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is in any way related to: (i) failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standazds of liability or standards of conduct with regard to any envirommental or industrial hygiene concerns or conditions as may now or at any time hereafter be in effect, unless such compliance results from conditions caused by LESSEE; and (ii) any environmental or industrial hygiene conditions arising out of or in any way related to the condition of the Property or activities conducted thereon, unless such environmental conditions are caused by LESSEE. 31. CASUALTY. In the event of damage by fire or other casualty to the Premises that cannot reasonably be expected to be repaired within sixty (60) days following same or, if the Property is damaged by fire or other casualty so that such damage may reasonably be expected to disrupt LESSEE'S operations at the Premises for more than sixty (60) days, then LESSEE may at any time following such fire or other casualty, provided LESSOR has not commenced the restoration required to permit LESSEE to resume its operation at the Premises, terminate this Agreement upon twenty (20) days written notice to LESSOR. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Agreement. If LESSEE decides not to terminate this Agreement, Rent shall be abated proportionally to the reduction of use. 25C~,-13 't7 f'(1NT)FMNATT(1N_ Tn the event of anv cnndemnation of the Premises. T,F,SSF.F, 32. CONDEMNATION. In the event of any condemnation of the Premises, LESSEE may terminate this Agreement upon fifteen (15) days written notice to LESSOR. LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the antennas, equipment, its relocation costs and its damages and losses, and any other amount recoverable by LESSEE under condemnation law (but not for the loss of its leasehold interest). Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Agreement. 33. SUBMISSION OF LEASE. The submission of this Agreement for examination does not constitute an offer to lease the Premises and this Agreement becomes effective only upon the full execution of this Agreement by the Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and shall not invalidate the remaining provisions of this Agreement. 34. APPLICABLE LAWS. LESSEE shall use the Premises for the use described herein in accordance with applicable laws, rules and regulations. LESSOR agrees to keep the Property in conformance with all applicable, laws, rules and regulations and agrees to reasonably cooperate with LESSEE regarding any compliance required by LESSEE in respect to its use of the Premises. 35. SURVIVAL. The provisions of the Agreement relating to indemnification from one Pazty to the other Pazty shall survive any termination or expiration of this Agreement. Additionally, any provisions of this Agreement, which require performance subsequent to the termination, or expiration of this Agreement shall also survive such termination or expiration. 36. CAPTIONS. The captions contained in this Agreement aze inserted for convenience only and are not intended to be pazt of the Agreement. They shall not affect or be utilized in the construction or interpretation of the Agreement. 37. PROPERTY SPECIFIC ACCESS RULES/REGULATIONS. LESSEE agrees to abide by all rules and regulations of the Property and Premises imposed by LESSOR as set forth in Exhibit D, attached hereto, as the same may be changed from time to time upon reasonable notice to LESSEE. These rules and regulations are specific to the Facilities site and are imposed to insure the proper maintenance, good order and reasonable use of the Premises and Property and as may be necessazy for the enjoyment of the Premises and Property by both parties hereto. 38. POWERING DOWN DURING MAINTENANCE /REPAIR. LESSEE agrees that during all maintenance on the Communications Facility by the LESSOR or other lessees or users of the Facility, while following the procedures and guidelines set forth by the Occupational Safety and Health Administration (OSHA) and the FCC implementing the National Environmental Policy Act of 1969, when continuing transmission is deemed unsafe for maintenance personnel (based upon standards promulgated by a governmental authority having jurisdiction over LESSEE) due to radiation, the effected transmitters of LESSEE will be turned off until the unsafe condition no longer exists. The eazliest practicable notice will be given to LESSEE using the information in Exhibit E, as applicable. 25C~r14 39. TERMINATION. 39. TERMINATION. A. Compelled Termination: If, during the lease term, there is a determination made pursuant to an unappealable order of a county, state, or national governmental health agency having proper jurisdiction over LESSEE'S operations that LESSEE'S use of the Premises poses a human health hazard which cannot be remedied and that LESSEE must cease all operations on the Premises, then LESSEE shall immediately cease all operations on the Premises and this Agreement shall terminate as of the date of such order. In the event the Federal Communications Commission, or any successor agency, makes a determination which is final and non-appealable or which is affirmed and becomes final after the exhaustion of all available appeals concluding that LESSEE'S use as set forth in this Agreement presents a material risk to the public health or safety and that LESSEE must cease all operations on the Premises, LESSOR may terminate this Agreement upon fourteen (14) days notice to LESSEE. B. Termination by LESSEE: LESSEE may terminate this Agreement by notice to LESSOR if (i) LESSEE does not obtain all permits, consents, easements, non- disturbance agreements or other approvals (collectively "approval") reasonably desired by LESSEE or required from any governmental authority or any third party related to or reasonably necessary to operate, install, maintain, replace, or remove LESSEE'S Facilities, or if any such approval is canceled, expires or is withdrawn or terminated without any fault of LESSEE, or (ii) LESSOR fails to have proper ownership of the Premises or the authority to enter into this Agreement, or (iii) LESSOR fails to cure a default pursuant to Section 29. Upon termination, all prepaid rent shall be retained by LESSOR, unless termination is pursuant to (ii) above or (iii) above as the result of LESSOR'S default. C. Termination by LESSOR: LESSOR may terminate this Agreement if LESSEE fails to perform any of its obligations pursuant to this Agreement (including all attached Exhibits/Attachments) after giving written notice to LESSEE and reasonable time to cure as set forth in Section 29. 40. 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 each party shall indemnify the other fully, including reasonable costs and attorney's fees, for any injuries or damages incurred 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. C. LESSOR shall not have unsupervised access to LESSEE'S equipment and LESSEE'S Facilities, except in cases of exigent circumstances or emergency situations. 25C-15 IlV WITNESS WHEREOF. the parties hereto have executed this Agreement the date and vear IlV 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 City Attorney By: LAURASHEEDY Assistant City Attorney LESSEE:NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its Manager By: Date: 25C~a-16 EXHIBIT A EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY APN: 109-050-30 All that certain real property located in the County of Orange, State of California, being more particularly described as follows: LESSOR INITIALS: LESSEE RQITIALS: 25C~-17 EXHIBIT B EXHIBIT B LEGAL DESCRIPTION OF THE PREMISES SITE PLANS/DESCRIPTIVE RENDERINGS However, it is expressly agreed and understood by and between the LESSOR and LESSEE that the exact and precise location of the LESSEE's Facilities are subject to review and approval by the planning and/or zoning Boards having jurisdiction over the "Premises". Therefore, it is expressly agreed and understood by and between LESSOR and LESSEE that the precise location of the Premises as shown on Exhibit "B" may be modified by the LESSEE in order to comply with and obtain necessary planning and/or zoning approvals, and any and all other approvals necessary for LESSEE'S intended use of the property. The Premises as described herein may therefore be modified by the LESSEE to reflect the final engineering design. An amended Exhibit "B" (if necessary) will be provided by the LESSEE and attached to the lease in place of the existing Exhibit "B", a copy of which will be provided to the LESSOR for review prior to being incorporated into the Agreement. LESSEE INITIALS: LESSOR INITIALS: 25C-18 p•11l~p /y~[q ~'g~ ~ ~ ZG~~'i w ~ ~ Y~~1,3 ~ W ~E 9!]]]S~6 4~ggg~ ~ ~ 1 ( Oij6A'1~. ~ ~ 1 p7p pji~PPer F ooocc e$ '`3 Q EytYp~ _ 4'.t ~ ( ~ ~i1e 4' ~:AahA d N q ~ lE ~ ~o ea~~~~A ~K ~1 m s ~aa y ~ ip~~~~€d~? 5°~~~ ass§~ yy ~i ~ ~ ~ R ~e lu~s6r2'~s~ 3`°uS~ ~ wl ~ e di t1 u ° ~~~E~ ~1~ ~a ~ ~ iii g r ~i~z~~~ P~ F ~ ~ ~a a E _ ~ i33~~ J ~ y~[y N K ~4g]~b P § A ~ Eg~ ~ ~¢Y E Y3f ~ 3ib ° $~etb 5y vv ytl r ~yy`SSS df W < +3l 3 gA5T~ ~ E ~ ~ C~4 ~Y SS ~ AI s 4 Z ¢ H $~d~ g k~.@ ~ ~ 3 ~ zi~ e$ bs v e ~$psle~ U ed ~Y`S S ~~~s~ t $ Ada G~ 6 g e ~ Si o 3f } (V ~ ~ ~33d3 t ~ ~3 6 r 9~~ ~ d s ~ ~E~n& _ - , J 0 Q ~ ~r~~~ ~ g' ~ ~ ~eSe f~~ X44$ r ~ 6~~z~ d ~ CC W W - t y ~ W ? _ _J__ 7 ~ cgs m O ? ~ ; 3 ~ ~a3 ~ ~ W LL i ~ i~~ Z~ U i o y _ Q W W ~ ~ q `u T ~f pyip ~ ~ $rvi Y e 3y3 ~ ° ~ ~ &v ( ~ i Yn~S° Q L_`_-__- 2 0ou yi - a O ^a f- ~I- I ~~a ez s5E c ~ ~ a s a i c w z i ~ i t 'c ce..! C ~ ~ i ~Q ~ a; 3._~b Cole a~~'s~ ~ F s W r 3 { LL 3g3 ~~VV~~ ~ E ,R ~5' ~u2 ''y 5 8~ p t u v ¢ z ~ Iw ~ d fa s@ n ~~~g A:. a _ 25G-19 ~:t s. 4:~ s. ~ a ' F JE .1 ~ g w ~y''e i9 $ s. 5] X ^SG F I ' eBQ*i 6t~ja £ L~ U [j[P 1 gg k @FE ~ - - a,+n ~ 397t . _ ~ ti ':c~ ~ ~ +.w#.sAW TS..~.. ~ 3a w~.us 5~lvw"`w e3 j nW ~ FK s ~ 5~ i i7 _ ya i a~ u3 f Y Y y 1' ~ r : s ~ a I ~ i ~ a- ~ ~ ~ - ~ I I ~ ~ ~ 4 p Bey ~ Y c~ 40~ ~ 5 Y _ wi sw w~ i5aa .r V t2 ;4€ ~ x I ~ a, 9~ ~ i ra 'I ~w z ~ ~ ~ ~i ~ i g bf fc I 2 b yh~L 4 _ 4 lrn+ rvn ~w~.ii ouW+'t Q e Om p to i j xr;a i co aura L_ _-,W~..~., J Wo_~ w.,a -vesean----- ~ w ?i i s: j;a ~ 5 2 ;g"i J d W 25G-20 ~ ~~a. mar ww avn nn msadi _ vrr am pan ~ooy ~ m - awv~ v < o E m ~ ~ e u ~ s MX . n: m ixxnxn v: ~ n wm ~ ~i € f ~~9~ a 4F 1-' ~ p o ~ ~ / 6 ~ la~Y i ~ ~ B ~ Y . A 2g ~d - k0 zk ~e ~ ~ ~ r ~ i.fx ~ v ES € i' ~ ~ . '3 I } i r t-: . >a a ha ~ ~ ? M $ ! ~ ar a EEEE gg u i ~ ~ ~ ^a _a ~ ~ . . Q__. d Y A a p-~ E~ - _ ~ , _ _n ~ Y ( ~s i rs mn un ®s ~ ~3'u G VY _ -„M _ . t ~ w r : ~ ~ r' s ~ o z ~o~:. gg ~y~ n I ' YN~' ~3~ & E?3A gR ~ $ ~ <cmi ~ $ ~ ~d ~ ~ a ~ w ie sab ~ ~ ~ +vy~Nb ~ e °`wa. ; ~ ~ $a r Q ~T. ~Yf Z Q a d ~ 5 r u~i~ _ w r~' 'Ae.'war~ A »ai 25G-21 ~y L . g ~y L . 4 e 2 { ~I ~v g~ ~ ~ a ¦e ~ y9 8{y{p Q w e ~ ~ ~9~t~ ~0.~d{S~A~~.: g'. o R~ 1 r~~~ Ee f' n 6 ~ ; ~ ~ , ~ ~e~~, a 0~ Rt ~ y ~ s a e y °n. ~ ti [ q~ Q ~ ~ ~ ig,BQ p6 i i~~ ! ~ ~ ~ b R zy5~ ~ I IIe ~ ~ m tyg qy}g~ ~~{y~ {g~ ~~~W[,P@~~(. L R y1T r (1 r$J _ ~ ~ r ~q e ~ n x ~ , 1 Gf'~ e ~ aR z a 08~ o s ~ f a . a 3 ~ ~ ~~3F v~ ao' w° ~ ~ w b n s s_ no A~ ~ 4'~ s x e a e a ~ ~ ~ p~ q qq 4 z n ~ ~~~~3~ eR~ t ~ fl7-ep3A w ~ ~ e~~ ~ ~ q J 1 s C W o N Z 25G-22 N g I ?C aA3~ ' z F ~ s o R t ~d ~ h E ~w ~'I Y ! I k b Y Ey ~ pPQi gP c 9 ~i f~@ S E6~~ 5 eei ~~P~ C ~§B~ _ eti6tb ~ Y~ I pia - - ya. s'~ ~ ' - $ P w ; o ~ ~ ~ ~ ~~a ~ ~ ~~e z_y 1~ ti 4 ~ ~ ~ ~ ~r~ tl~ ' r r , r~~( 6 Y'I Y& 3e~~ , ~~~r 9 ~ ~ ~ ~Se EY t ~6 ~ ~ S W g i i~ a ~ ~gyEp ~ ~ tpggppi ~~g- @Q ~5 pP Q~~ ~e. ~3iy~~ se~3 s ~ Y ~ ~ ~YPm °9 W ~ ^f . y P ~ 96e6eyy } 8 4 1 ~ .v....._ ~ T G5 ~ ~ 4 a ~ .4 g yYy Ya e_ > 3, , 41 9a i { Y 5 . S a:i r . ~ W 25G-23 ~i ~ s ~ ~ ~ ~ B ~ e. e~ ~ ~ a"~ C m^ W ~ ~ ~ p ~ fff y St ~ m A~ nE a. i• 6 4J i Q~ n W s ~ ~ ~ o ~$~~A u E ~ a o~ i 0 Est W ~ P ~ a C ~ a C ~ m >o ~ r ~ u a e- `t~ ~ N ~ ~ c W' V~ ~ w i= p ~s ~ N 25G-24 ~i ~ z ~ o<~ ~a ~ }f ~ ~ w- f~ i; w i` m ~n ?~s da c ~ ~ n 1~ P J Sf m C ~ S E n_ S e ~ pfi~ e 8 r a f9 ~ HR f o~z g~~ ~Sx$ ~ ~ ~ F$4 O a pn W ~ a 9~ d J F`~~ ` ~ C Y C ~ ~ ~ O~ ~ d'a v~ N m Oe ~Q W ~ N f~ V' Z 777 ~ Q C2C O ~ W1 1t r m N 25G-25 F.XHIRIT C EXHIBIT C ADDITIONAL INSURED ENDORSEMENT 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 92702; its officers, employees, agents and volunteers 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, sucl!tinsurance 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 canceled, 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 92702. (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~,-26 EXHIBIT D EXHIBIT D PROPERTY SPECIFIC ACCESS RULES/REGULATIONS 1. LESSOR shall have the unilateral right and privilege to undertake all normal items and operations associated with the current use of the Property, including, but not limited to public events and City business, which may include high powered electric lights and food services, arrange for the televising of any public event to be held at the Property, and ability to contract with other interested parties. 2. City business may also include minor landscaping, minor maintenance and minor construction proximately located near the Premises, so long as the City business does not interfere with or impair the operation of LESSEE'S Facilities. 3. LESSEE'S access to the Premises shall be limited when the Premises is being used for a public event, and the four (4) hours before and after any such event. LESSEE will obey any procedures set by LESSOR regarding notification before visiting the Premises, checking in on-site, parking, gates, etc. 25C~-27 EXHIBIT E EXHIBIT E CONTACT INFORMATION: LESSOR'S TECHNICAL CONTACTS: Name: Santa Ana Parks, Recreation and Community Services Agency 1. Ron Ono Address: 20 Civic Center Plaza (M-23) Santa Ana, CA 92702 Daytime Phone No.: Ron: (714) 571-4220 Facsimile No.: (714) 571-4209 24-Hour Contact No.: Dispatch Center: N/A LESSEE'S TECHNICAL CONTACTS: Name: 1. Address: Daytime Phone No.: Facsimile No.: 24-Hour Contact No.: Dispatch Center: 25Ca,-28 EXHIBIT F EXHIBIT F MEMORANDUM OF LAND LEASE AGREEMENT THIS MEMORANDUM OF LAND LEASE AGREEMENT is made and entered into as of 2010, by and between City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("Lessor") and AT&T, a California corporation ("Lessee"). WITNESSETH: That Lessor hereby leases to Lessee and Lessee hereby leases from Lessor a portion of that certain real property (the "Property") in the State of California, County of Orange, City of Santa Ana commonly known as 2302 S. Raiff Street, Santa Ana, CA 92703, a legal description of which is shown in Exhibit A attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded Land Lease Agreement by and between Lessor and Lessee dated by Lessor 2010, and incorporated herein by reference (the "Agreement") for an initial term often (10) years, commencing on the Commencement Date, as defined in the Agreement, and three (3) subsequent optional extension terms of five (5) years each, pursuant to the terms of the Agreement. The Agreement provides for grant ofnon-exclusive right of way for rights of access to the Property and to electrical and telephone facilities serving the Property. [N WITNESS WHEREOF, the parties have executed the Memorandum as of the day and year first above written. LESSEE: By: Name: Title: Date: Address: LESSOR: City of Santa Ana By: Name: DAVID N. REAM Title: City Manager Date: Address: 20 Civic Center Plaza Santa Ana, CA 92702 [FORM DOCUMENT, PLEASE INITIAL ONLY -NOT FOR EXECUTION] LESSEE INITIALS: LESSOR INITIALS: 25C~e-29 25G-30 REQUEST FOR REQUEST FOR COUNCIL ACTION ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED ? As Recommended RESOLUTION AUTHORIZING ? As Amended ? Ordinance on 1~' Reading APPLICATIONS FOR STATE GRANT ? Ordinance on 2n° Reading FUNDS FOR USED OIL PROGRAMS ? Implementing Resolution ? Set Public Hearing For (n(,,'_ f CONTINUED TO t/~`"T FILE NUMBER CITY MANAGER RECOMMENDED ACTION Adopt a resolution authorizing applications for State grant funds to support the City's used oil recycling program. DISCUSSION The California Oil Recycling Act of 1991 establishes and provides grant funding for programs that encourage and enhance the proper collection and recycling of used oil. The Department of Resources Recycling and Recovery (CalRecycle), formerly known as the California Integrated Waste Management Board, is responsible for administration of these grant programs. For the past 15 years the City has been awarded grant monies to establish and maintain certified collection centers in the community, a curbside collection program, and a used filter collection program. These programs have been successful and through them the City has collected in excess of 132,000 gallons of used oil and 36,000 used filters. To apply for grants, a resolution is needed approving the City's applications for State grant funds. The resolution will authorize grant applications through the year 2015, and will authorize the Executive Director of Public Works, or designee, to execute the necessary applications and associated agreement. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. 55A-1 rcesowuon Humonzing Resolution Authorizing Applications for State Grant Funds for Used Oil Programs July 19, 2010 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. Raul dinez, II Executive Director Public Works Agency RG/SA Exhibit 1: Resolution 55A-2 Iss7/08/10 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE EXECUTIVE DIRECTOR OF THE PUBLIC WORKS AGENCY TO SUBMIT GRANT APPLICATIONS TO THE DEPARTMENT OF RESOURCES RECYCLING AND RECOVERY FOR THE USED OIL PAYMENT PROGRAM BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Pursuant to Public Resources Code § 48690 the Department of Resources Recycling and Recovery (CalRecycle), formerly known as the California Integrated Waste Management Board, has established the Used Oil Payment Program (OPP) to make payments to qualifying jurisdictions for implementation of their used oil programs, including providing convenient collection locations, increasing demand for refined oil, motivation and education of the public to recycle used oil and developing research and demonstration projects; and B. In furtherance of this authority CalRecycle is required to establish procedures governing the administration of the OPP; and C. CalRecycle's procedures for administering the OPP require, among other things, an applicant's governing body to declare by resolution certain authorizations related to the administration of the OPP; and D. The City desires to apply for grant funds to continue its used oil collection program and to implement additional used oil recycling programs as they become feasible. Section 2. The City Council hereby authorizes the submittal of a Used Oil Payment Program application to CalRecycle for all available grants under the OPP for a period of five years, extending through June 30, 2015. Section 3. The Council appoints and authorizes the Executive Director of the Public Works Agency, or his designee, as agent of the City of Santa Ana to conduct all negotiations, execute and submit all documents, including but not limited to applications, agreements, amendments, and annual reports including 55A-3 expenditure reports, which may be necessary to secure said payments to support the OPP. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of , 2010. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Laura Sheedy Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 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 55A-4 r_niiNr_li e~Tlnnl lr'.~°a~~~ l REQUEST FOR COUNCIL ACTION ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 19, 2010 TITLE: APPROVED ? As Recommended PUBLIC HEARING -AMEND DEVELOPMENT ? As Amended AGREEMENT NO. 2004-01 FOR THE ONE ? Ordinance on 1~' Reading ? Ordinance on 2ntl Reading BROADWAY PLAZA OFFICE TOWER TO BE ? Implementing Resolution LOCATED AT 1109 NORTH BROADWAY, ONE ? Set Public Hearing For BROADWAY PLAZA, LLC -APPLICANT ~t~ CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Adopt an ordinance approving certain amendments to Development Agreement No. 2004-01. PLANNING COMMISSION ACTION On June 14, 2010, the Planning Commission recommended that the City Council adopt an ordinance approving the amendment to Development Agreement No. 2004-01 by a vote of 3-2 (Acosta and Yrarrazaval opposing, Alderete and Betancourt abstaining) to modify certain provisions of the development agreement to delete the 50 percent pre-leasing requirement; to allow the applicant to request assistance from the Redevelopment Agency; adjust the timing of the funding for the neighborhood traffic studies; allow additional time to refill any excavated area; and to delete the minimum of 51 percent ownership interest provision for the One Broadway Plaza (OBP) office tower at 1109 North Broadway in the Specific Development Plan No. 75 (SD-75) zoning district. The Planning Commission modified Section 5.9 (Historic Structures on the Property) of the amended agreement by adding the Orange County Educational Arts Academy to the list of schools to be notified prior to the commencement of pile driving and changed the allowable time to refill any scarified area to 120 days as outlined in the attached staff report (Exhibit A). FISCAL IMPACT There is no fiscal impact associated with this action. ~-'c=_ " M. Trevino Executive Director Planning and Building Agency VF:rb repofiSWmentl DA04-01 One 8roadway.cc Exhibit: A. Planning Commission Staff Report 75A-1 75A-2 ORDINANCE NO. NS - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, AND 845 BROADWAY, LLC THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS: SECTION 1: The City Council hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. By Ordinance No. NS-2656, the City Council approved a development agreement(the "Development Agreement") between the City and One Broadway Plaza, LLC, 1200 N. Main, LL, and 845 Broadway, LLC (the "Developer"). C. The Developer has sought an amendment to the Development Agreement to modify certain terms, a true and correct copy is attached hereto as Exhibit 1(the "Amendment"). D. The City enters into this Amendment pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has, following a duly noticed public hearing, on recommended approval of this Amendment. E. Entering into this Amendment would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of One Broadway Plaza to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. F. The City Council has held a noticed public hearing on this Ordinance, and has considered all testimony presented thereto. G. The City Council, on July 19, 2004, approved a Environmental Impact Ordinance No. NS- Page 1 75A-3 Report (EIR) in conjunction with this Project and adopted a mitigation monitoring plan, written findings and a statement of overriding considerations and the Council adopts this ordinance based upon said EIR, plan, findings and statement of overriding considerations. SECTION 2: The Amendment is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City. The Clerk of the City is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. SECTION 3: If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it°would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2010 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Ordinance No. NS- Page 2 75A-4 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS- Page 3 75A-5 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M-30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE § 6103 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, and 845 BROADWAY, LLC Dated: July , 2010 75A-6 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA; and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, and 845 BROADWAY, LLC This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ("City") on the one hand, and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN LLC, and 845 BROADWAY LLC, each of which is a California Limited Liability Company (collectively referred to herein as "Owner" or "Property Owner"), on the other hand. 1. This Amendment is entered into with reference to the following facts: 1.1 Original Agreement. On or about July 19, 2004, the City and Owner entered into a written Development Agreement, referenced as City Agreement No. A-2004-153 and recorded as Document No. 2005000414753 of the Official Records of the County of Orange ("Original Agreement"). 1.2 Purpose of Original Agreement and Amendment. The purpose of the Original Agreement and this Amendment is to facilitate the development of the 37 story, 518,000 square foot, Class A office building and associated parking structure and ancillary commercial development contemplated by the City's Specific Design Zoning Designation SD-75, Environmental Impact Report No. 99-01, General Plan Amendment No. 2004-01 and Zoning Ordinance Amendment No. 2004-02 (the "Pre-Existing Approval Entitlements"). 1.3 Statutory Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Amendments and amendments to Development Agreements, such as the Original Agreement and this Amendment, with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Amendment pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This Amendment is intended to assure adequate public facilities at the time of development. (2) This Amendment is intended to assure development in accordance with City's General Plan, applicable Specific Plans and Specific Development District No. 75. 1 75A-7 (3) This Amendment will permit achievement of goals and objectives as reflected in the City's General Plan, all applicable Specific Plans and Specific Development District No. 75. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (5) This Amendment will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (6) Many of the extraordinary and significant benefits identified as consideration to City for entering into this Amendment aze of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required and/or pay such benefits sooner, and represent benefits which would not otherwise be required as part of the development process. 1.6 Planning Commission -Council Hearings. On June 14, 2010, the Planning Commission of the City ("Planning Commission"), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's application for this Amendment. The Planning Commission recommended to the City Council of City that it execute this Amendment. On , 2010, the City Council of the City of Santa Ana ("Council"), after providing notice as required by law, held a public hearing to consider the Owner's application for this Amendment. 1.5 Council Findings. The Council finds that this Amendment is consistent with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. 1.6 City Ordinance. On , 2010, the Council adopted Ordinance No. approving this Amendment. The ordinance and this Amendment becomes effective thirty (30) days thereafter. 2. Section 4.3 shall be deleted in its entirety: 3. Section 5.1.1 shall be amended to read as follows, and Exhibit C-1, attached hereto shall be made a pazt of the Original Agreement by this reference: 5.1.1 Offsite Mitigation Measures. The offsite mitigation measures which must be constructed by Owner or City are as set forth in Exhibit C-1 to this Agreement. The 2 75A-8 design of all offsite mitigation measures constructed by Owner shall be subject to approval by the City's Public Works Agency prior to issuance of an encroachment permit. The Public Works Agency shall provide to the Owner an update to the 2004 estimate of the costs such offsite mitigations measures contained in said Exhibit C-1 prior to issuance of final map and building permit. Owner shall have one yeaz from the effective date of this Agreement pursuant to section 1.6, above, to acquire the real property referenced in paragraph S.a. and 8 of Exhibit C-1 and transfer title to the City, except as to the roundabout, for which Owner shall secure and transfer to City an easement (or other right to construct, maintain and use the property as a roundabout). City shall accept transfer of this title and easement. Owner shall deposit an amount equal to the estimate in cash for such offsite mitigation measures (including traffic studies) at the time called for in paragraphs S.a., 8 and 9 of Exhibit C-1. For all other items specified in Exhibit C-1, security in the form of bonds (i. e., a payment, a performance and a material bond) or other proof of ability to perform acceptable to the City's Executive Director of Public Works Agency shall be provided, together with an offsite subdivision improvement agreement, prior to recordation of final map. For those offsite mitigation measures identified in paragraphs 1-4, S.b.-8 and 10 which have not been accepted by the City as complete prior to issuance of a building permit, no building permit shall issue until Owner deposits with the City cash; a direct draw, irrevocable letter of credit; or establishes an irrevocable, escrowed cash account or escrowed construction loan proceeds in a form reasonably acceptable to the City Attorney of City, in an amount specified by the City's Public Works Agency to guazantee performance of said offsite mitigation measures; provided, however, that City Executive Director of Public Works Agency shall release or partially release the bonds previously provided at this point to the extent that they are duplicative of this new security. Any deposit shall be applied to such costs and shall be, within thirty (30) days written request to Owner, supplemented to cover the actual costs incurred. Except as to paragraph 9 of Exhibit C-1, City shall return any funds not spent on the offsite mitigation measures referenced in Exhibit C-1 to owner within thirty (30) days, subject to City accounting practices, after completion of all items referenced in Exhibit C-1 and issuance of a Certificate of Occupancy for the Project. 4. Sections 5.8 shall be deleted its entirety: 5. Sections 5.8 shall be deleted its entirety: 6. Sections 5.9 shall be amended to read as follows: 5.9 Historic Structures on the Property. (3) After complying with the relocation obligations of subsections 5.9(1), if necessary, and 5.9(2), Owner may, notwithstanding the provisions of section 5.8 above, scazify the soil in the Scarifying Area (shown on Exhibit E to this Agreement) to a depth of three 3 75A-9 feet (3.0') and drive piles in the area shown on Exhibit E to support the eventual 37-story office tower. The scarifying and pile driving shall be done at a time and manner as set forth in plans submitted by Owner and approved by the Executive Director of the Public Works Agency, and only after written notice of the commencement date and estimated duration of the pile driving has been given by Owner to the Santa Ana Unified School District, Orange County High School of the Arts, and El Sol Academy. The scazified area shall be refilled after the pile driving is complete to its original grade as shown in the approved plans and, if a building permit has not been issued and construction of the Project has not commenced within one hundred twenty (120) days thereafter, landscaped, irrigated and fenced in accordance with plans submitted by Owner and approved by the Executive Director of the Planning and Building Agency. 7. Except as hereby expressly amended by this Amendment, the Original Agreement shall remain in full force and effect. IN WITNESS WHEREOF, this Amendment has been executed by the City of Santa Ana, acting by and through its City Manager, pursuant to Ordinance No. authorizing such execution, and by Property Owner. Dated this day of , 2010. THE CITY OF SANTA ANA By DAVID N. REAM City Manager Approved as to Form: By JOSEPH W.FLETCHER City Attorney [Signatures continued on next page] ONE BROADWAY PLAZA, LLC, 4 75A-10 By: MICHAEL F. HARRAH Managing Member 1200 N. MAIN, LLC By: MICHAEL F. HARRAH Managing Member 845 BROADWAY LLC By: MICHAEL F. HARRAH Managing Member 5 75A-11 EXHIBIT C-1 (rev. July, 2010) OFF-SITE IMPROVEMENTS Estimated Eutity Fuaded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering Im rovement Event Cash 1. Install a new traffic signal at Main/15` , $200,000 Owner Building including communication cable and Permit conduits to connect to the City's Traffic Management Center, and striping. 2. Install a new traffic signal at $200,000 Owner Building Sycamore/15`h, including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 3. Install a new traffic signal at Santa Ana $200,000 Owner Building Blvd./French St., including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 4. Construct landscaped median on $100,000 Owner Building Broadway at the Broadway/Parking Permit Structure egress. S.a. Acquire necessary ROW for $2,400,000 Owner, Final Map roundabout at the intersection of 10`h Street unless City and Sycamore. undertakes per section 5.1.1 S.b. Construct roundabout at the $600,000 Owner Building intersection of 10`s Street and Sycamore, Permit with 10`h Street one-way EB, including necessary striping, traffic signs, pedestrian crosswalks and pedestrian refuge areas. Right-of--way shall be acquired at S/W, S/E and N/W comers by developer. 6 75A-12 Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering Im rovement Event Cash 6. Restripe: (1) WB Santa Claza to provide $50,000 Owner Building one LT lane and one shared LT/RT lane; Permit (2) NB Grand Avenue from Fruit Street to 14`h Street at Santa Ana Blvd/I-5 HOV ramps to provide three NB travel lanes; (3) I-5 NB off-ramps to provide a WB LT lane, a shared LT/RT lane and a RT lane at Grand Ave. 7. Remove existing on-street parking stalls $300,000 Owner Building and parking meters on Main Street from Permit Civic Center Dr. to Buffalo St.., restripe and slurry seal this Main Street segment to provide three NB and two SB travel lanes, and construct median on Main St. south of 10th Street. 8. Acquire necessary ROW and construct $6,500,000 Owner, Final Map southbound RT lane at Main/17~h and unless City Broadway/17`h, including striping, traffic undertakes per signal modification, and ADA compliant section 5.1.1 wheel chair ramps. 9. Implement neighborhood traffic plans to $1,200,000 City Six month mitigate changes in traffic patterns or (actual cost, prior to increased cut through traffic resulting from not an issuance of the One Broadway Plaza Project in French estimate) the first Park, French Court, Willazd, Floral Park, certificate of West Floral Pazk, and Washington Square occupancy but Neighborhoods. Traffic plans costs shall no later than include traffic studies, staff time to process 22 month neighborhood traffic plan, and the from the 151 construction of appropriate semi-diverters, building dia onal diverters, and street closures. ermit 7 75A-13 Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering Im rovement Event Cash 10. Reconstruct 10 St. one-way EB and $850,000 Owner building Washington Ave. one-way WB between Permit Main St. and Broadway, which will include: (1) traffic signal modifications at Main/Washington, Main/10`h, W ashington/Sycamore, Broadway/Washington, and Broadway/10`h (2) restriping streets and intersections, and (3) installing appropriate traffic signs (4) retiming traffic signals (5) constructing ADA compliant wheel chair ramps. SUBTOTAL $12,600,000 Notes: 1. Estimated costs are based on 2004 yeaz of expenditure. Owner shall fund item S.a. and 8 (if necessary) based on estimated actual construction and right-of--way costs at time of indicated funding event, and supplement if necessary. 2. Items not complete and accepted by the City shall be fully bonded for pursuant to an offsite subdivision improvement agreement, prior to issuance of final map. 3. All improvements, including improvements to be constructed by Owner and not City, shall be completed and accepted by City prior to issuance of Certificate of Occupancy. 8 75A-14 REQUEST FOR REQUEST FOR Planning Commission Action _ - PLANNING COMMISSION MEETING DATE: PLANNING COMMISSION SECRETARY JUNE 14, 2010 APPROVED TITLE: ? As Recommended PUBLIC HEARING -FILED BY ONE BROADWAY ? As Amended PLAZA, LLC TO AMEND DEVELOPMENT AGREEMENT ? Set Public Hearing For N0.2004-01 FOR THE ONE BROADWAY PLAZA OFFICE DENIED TOWER TO BE LOCATED AT 1109 NORTH BROADWAY ? Applicant's Request ? Staff Recommendation CONTINUED TO Prepar\ed~b//7y~~/~~Vinc~e Fregoso I/ I L Execu roe Director Planning M ager RECOMMENDED ACTION Recommend that the City Council adopt an ordinance approving certain amendments to Development Agreement No. 2004-01. DISCUSSION Request of Applicant One Broadway Plaza, LLC, is requesting approval to amend an existing development agreement in order to facilitate the construction of the 37-story One Broadway Plaza (OBP) office tower at 1109 North Broadway. Specifically, the applicant is proposing to modify provisions that: Prohibit the issuance of building pennits until the building has been 50 percent preleased; prohibit requesting assistance from the Redevelopment Agency; identify the timing for the funding of neighborhood traffic studies; establish the timeline for refilling any excavated area; and, requires the applicant to maintain a minimum of 51 percent interest in the development. Prooefir Descriation The One Broadway Plaza project site is a 4.34-acre, 13-parcel site located in midtown Santa Ana. The applicant received approval in 2005 to construct a 518,000 square foot, 37-story, 493-foot tall office tower and an eight-level freestanding parking structure with 2,463 parking spaces. In addition, four buildings totaling 12,484 square feet currently on the project site will be used for office and/or restaurant purposes. The project site is bordered by Washington Avenue to the north, Tenth Street to the south, Sycamore Street to the east and Broadway to the west. The site is zoned Specific Development Plan No. 75 (SD-75) and has a General Plan Land Use designation of One Broadway Plaza District Center (OBPDC), which permits office development at a floor area ratio of 2.9. Surrounding land uses include single and multi-family residential and office uses to the north, office uses to the south, and both office and school uses to the east and west (Exhibits 1 through 5). 1 75A-15 Amendments to DA No. 2004-01 June 14, 2010 Page 2 Project Backs~round In August 2004, the City Council approved several entitlements for the One Broadway Plaza office tower, including an environmental impact report, a zone change, a general plan amendment, a zoning ordinance amendment, a parcel map and a development agreement. In October 2004, a referendum petition was certified and a referendum election on the project held on April 5, 2005. The referendum election, which approved the project, specifically addressed Ordinance No. NS- 2649, which authorized the rezoning of the property, amendments to the Midtown Specific Plan (SP-3), and the adoption of Specific Development No. 75 (SD-75), which established zoning standards for the project. As the development agreement was approved by a separate ordinance (NS-2656), the Planning Commission and City Council may modify the agreement without the need for a public vote. The project is being designed with energy efficiency and sustainability in mind. As the attached letter and LEED Checklist indicate, the project's commercial interiors will be designed to the requirements for a LEED Silver certification. LEED (Leadership in Energy and Environmental Design) is a third-party certification program and the nationally accepted benchmark for the design, construction and operation of high-pertormance green buildings. The LEED program was developed by the U.S. Green Building Council (Exhibit 6). Over the past few years, a significant shift in the local and national economy has occurred. This shift has severely impacted the development community, including Santa Ana. In fact, of the 13 large projects that have been submitted to the City for review in the past five years (Brookhollow Office project, City Place, Cordoba courtyard housing, First and Cabrillo condominiums, Montage condominiums, Nexus Skyline Towers, Nexus Phase II, One Broadway Plaza office tower, Promenade Pointe condominiums, Sixth and Parkcenter condominiums, Town and Country Manor, Village Green and the West End Lofts), only the City Place and Skyline Towers project have been constructed. The City has taken a proactive approach to assist in the overall recovery of the regional economy. For instance, at the request of the Building Industry Association (BIA), the City Council enacted an economic stimulus ordinance in September 2008 that temporarily deferred collection of impact fees until the issuance of certificates of occupancy and/or compliance for projects. This proposal to amend provisions of the development agreement is another approach to stimulate the economy. The applicant estimates that this project will generate 2,900 jobs in the local economy. Development Aoreement Background Development Agreement 2004-01 was not proposed by the developer or city staff, which is a more typical way that such agreements are created. In contrast, this development agreement arose during City Council discussion after the Planning Commission had recommended approval of the One Broadway Plaza project. 75A-16 Amendments to DA No. 2004-01 June 14, 2010 Page 3 This development agreement was adopted in 2004 during different economic times. It required certain improvements and public benefits such as extensive street improvements, the relocation and restoration of the Twist-Basler House, the preleasing of 50 percent of the office building to investment grade tenants, and off-site improvements for the Orange County High School of the Arts (Exhibit 7). Proposed Amendments to the Development Agreement The applicant proposes to amend five sections of the development agreement (Exhibit 8): 1. Section 4.3 Assignment The development agreement requires that Michael F. Harrah retain a minimum of 51% ownership interest in the project. The applicant (Mr. Harrah) requests that the 51% required ownership be deleted in order to allow a joint venture arrangement where he and one or more joint venture partners will share the ownership interest. 2. Section 5.1.1 Offsite Mitigation Measures The development agreement requires the owner to deposit prior to the issuance of a building permit $1.2 million for neighborhood traffic plans ($200,000 each for six specified neighborhoods, including French Park, French Court, Willard, Floral Park, West Floral Park and Washington Square. The applicant requests that the timing of payment be changed to six months prior to issuance of any certificate of occupancy, but in no event later than 22 months after issuance of the building permit, and to be permitted to use a funded construction loan as further security for its offsite obligations. 3. Section 5.8 Condition Precedent to Issuance of Any Building Permit The development agreement requires that, before a building permit for the tower is issued, 50% of the net leasable area be leased to tenants who would qualify as "Investment Grade Tenants." The applicant requests that this section be deleted. 4. Section 5.8.2 No Redevelopment Subsidy The development agreement prohibits the applicant from requesting economic assistance from the Redevelopment Agency. 75A-17 Amendments to DA No. 2004-01 June 14, 2010 Page 4 The applicant requests that this section be deleted to allow for a discussion about potential assistance from the Redevelopment Agency. 5. Section 5.9 (3) Historic Structures on the Property The development agreement requires that the scarified (excavated) area under the tower be refilled 90 days after completion of the construction of the building's piles if the tower construction has not commenced. The applicant requests that the 90 day period be extended to 120 days. Analysis of the Issues 1. Section 4.3 Assignment The applicant proposes to delete the provision requiring that Mr. Harrah retain a 51% ownership interest in the project. All other provisions in Section 4.3 pertaining to assignments will remain. Assignment of rights conferred under the development agreement will require prior approval by the City Council. Mr. Harrah is proposing to enter into a joint venture with a financial entity(s), whereby each party retains certain ownership percentages. Mr. Harrah would retain daily managerial control of the project. In these uncertain economic times, it is not unusual for equity partners to request such a position in the project. Further, it is unusual for a City to specify how property is owned. Staff believes matters such as ownership are better controlled by the private market. Further, Section 4.2 of the development agreement species that the term of the agreement is seven years. This requirement that Mr. Harrah retain 51% ownership, therefore, is impermanent. For all these reasons staff finds no compelling reason to retain the requirement that the applicant retain 51% ownership. It is recommended that the requirement for retaining 51 % ownership be deleted. All other provisions in Section 4.3 pertaining to assignment of rights are recommended to remain. 2. Section 5.1.1 Offsite Mitigation Measures The applicant proposes to change the timing of payment of the $1.2 million. This $1.2 million provides for $200,000 to fund neighborhood traffic plans in the following six neighborhoods: French Park, French Court, Willard, Floral Park, West Floral Park and Washington Square. The rationale behind this requirement was to fund future traffic plans for affected neighborhoods based on the actual traffiGcirculation conditions existing after occupancy of the completed One Broadway Plaza tower. In this way actual impacts that may have been 75A-18 Amendments to DA No. 2004-01 June 14, 2010 Page 5 unknown during the project approval phase may be addressed. The Public Works Agency advises that the neighborhood traffic plans would commence approximately six months prior to issuance of the certficate of occupancy to allow for an analysis of the before and after conditions. The applicant indicates that obtaining financing in the current economic climate is, in the best of circumstances, challenging. Many projects in the region, and throughout the country, continue to languish for lack of financing, the applicant contends. The applicant maintains that delaying the payment of this $1.2 million will assist with his ability to obtain financing. In that the applicant estimates the construction phase of the project to take 28 months, he proposes payment of the $1.2 million six months prior to issuance of any certificate of occupancy, but in no event later than 22 months after issuance of the building permit. Staff believes that the 28 month construction estimate is conservative -and that the actual construction phase will extend beyond 28 months. Further, the applicant initially discussed with staff delaying payment until issuance of the certificate of occupancy. Staff could not support such a delay. The value of this requirement is to study the traffiGcirculation right before and right after project occupancy. Staff is amenable to the change in timing to allow payment six months prior to issuance of any certificate of occupancy, but in no event later than 22 months after issuance of a building permit, and to be permitted to use a funded construction loan as further security for its offsite obligations. As noted above, we believe this allows for ample time to initiate the analysis. 3. Section 5.8 Condition Precedent to Issuance of Any Building Permit The applicant proposes to eliminate the requirement that 50% of the building be pre-leased to "Investment Grade Tenants." This is one of the most significant reasons that the One Broadway Plaza project has not commenced, the applicant contends. And in order for the project to commence this requirement must be deleted. Staff is aware of no precedent for this requirement as no such requirement has been imposed on any other project in Santa Ana. Further, staff believes that the private market is better able to discern whether construction of this project is appropriate in today's market. Indeed, it is principally the market that drives decisions on every other project built in Santa Ana, the region and the nation. It should also be noted that, given the seven year term of this development agreement, this requirement is at best a delay. And, finally, staff notes that nothing in the development agreement requires the applicant to maintain in perpetuity an "Investment Grade Tenant." Staff supports deleting this requirement for these reasons. 4. Section 5.8.2 No Redevelopment Subsidy The applicant believes he can make a good case to the Redevelopment Agency Board as to why it ought to consider financial participation in the One Broadway Plaza project. This provision of the development agreement, however, prohibits the applicant from even 75A-19 Amendments to DA No. 2004-01 June 14, 2010 Page 6 "requesting" participation from the Agency. The process for obtaining Redevelopment Agency participation would have two steps: (1) delete the provision prohibiting the "request"; and, (2) the applicant would then submit a request to the Redevelopment Agency staff to be considered by the Agency Board. The Agency Board is comprised of the City Council members. Any economic participation in the project would require Agency Board approval. The issue of whether the Agency will provide economic assistance is not before the Planning Commission. The only issue before the Commission is the question of whether the applicant should be entitled to ask. In other words, deleting Section 5.8.2 does not provide economic assistance. It only allows the applicant to make a subsequent request to the Redevelopment Agency. Planning 8 Building Agency staff offer no opinion as to whether such a subsequent request for specific economic assistance may be appropriate, as such an issue lies outside the purview of our analysis and role in regulating land use. However, staff has no objections to allowing the applicant to make such a request. 5. Section 5.9 (3) Historic Structures on the Property Notwithstanding the title of this section, this particular request of the applicant has no bearing any historic structures or cultural resources. The applicant proposes to amend a provision requiring a future excavated area to be refilled after construction of the piles is completed. This future excavated area will be located below the tower. The excavation is necessary in order to construct the building's piles (i.e., part of the building's foundation system). The current language requires the excavated area to be refilled if the tower construction does not commence within 90 days. The applicant requests an additional 30 days, for a total of 120 days. The requirement aims to ensure that an excavated area is not left open for an extended period. Staff believes the request to allow 120 days is reasonable. The proposed modifications to the One Broadway Plaza development agreement do not affect the overall quality of the project. All other provisions of the agreement will remain in effect as will all other requirements related to the tower. Therefore, based on the above analysis, staff recommends that the Planning Commission recommend that the City Council approve the Amendments to Development Agreement No. 2004-01. CEG1A Comallance These amendments to Development Agreement No. 2004-01 are exempt from the Cal'rfomia Environmental Quality Act pursuant to CEQA Guidelines Sections 15061(b)(3) and 15304(c). Pursuant to Section 15061(b)(3) "CEQA applies only to projects, which have the potential for causing a significant effect on the environment." The proposed amendments to the development agreement represent changes primarily to the business aspects of the project's approval e.g., 50% prelease requirement, 51% ownership requirement, timing for payment of neighborhood traffic plan fees, and prohibition on requesting economic assistance. Therefore, "it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment 75A-20 Amendments to DA No. 2004-01 June 14, 2010 Page 7 CEQA Guidelines Section 15304(c) further exempts from CEQA projects involving the "[t]illing of earth into previously excavated land with material compatible with the natural features of the site." Amendment to Development Agreement Section 5.9(3) proposes to extend the period of time by 30 days for refilling an excavated area that will be necessary to construct the building's foundation. The requirement to refill the excavated stems only from the City's interest to return the site to an appearance of a vacant lot should the tower construction not commence in a timely fashion. The excavated area, indeed the entire 4.34 acre construction site, will be secured and screened during all construction activities, including the proposed 120 day period. Potential environmental impacts related to the development agreement have been analyzed and will be mitigated as identified in the One Broadway Plaza environmental impact report (EIR No. 99-01). Therefore, no further CEQA action is requin:d for this project and a Notice of Exemption will be filed. Vince Freg o, A P Principal PI r VF:jm reparlsWnentl DA04-01 One BrondweY.081410.pc 75A-21 ~ R7 R7 ° 1' P Mlp cl a R2 R1 Mo St` Rt R1 R1 R1 R1 R1 R1 R7 R1 ~ mt P ~ ~ R1 - - I f m m 7f ^ At R1 R1 R+ Rt II`~~, v P R2 R2 Rt Rt R1 R1 R1 w R1 r ~ l? io I A2 arm a b CA Ct ~ Rt-B w P Rf, RP v Lt I,. L1 + ~ C1 CI Lf a n.xn cl..~ cf.~ t5 _ _ _ 1TTH ST _ _ _ _ _ _ _ - p t]iF1 S . _ _ Ct s C1 L1 L1 ~ SP~9 ~ cf n aa,Il ~f TL ' CS ~ C5 s , rP a ~ eU w ~ R7 EP-3 SP-9 ~ ~ .a P1 Rt PS- RS- ~ RB- I n ~,nt * xon xon xon ci I ° a M w w w w I ron M I R°" w io~ii - - M7 ~ ~ ~ w w w p M1 RI R1 R1 qt fl3- RS- p ~ xou xon RS- w~ I SP3 PJ M2 I w x° II ~ .w.. w w ~ M2 ; I SP-3 I ~ v. P2 Rt w v P 2 Sj BP~T - 1--- R1 R1 R1 Rf w R3 P P P P R BPa D-75 GP-B S S ~1 ~ ~h M2 w O BP3 P Rx h2 s I S -3 ~ Wr k, ,L\ ~ R7 R1 R1 Rt e ~ a~P P P 5M1B PROJECT ~ MM1 p ~ P SP 3 SITE ~ Wy MfO _ m- suN SD-20 I . 1 SP9 SP-7 I a ~ 5trT1 iJ1El>-DR. I ~ p ~o M1 p ? a I--~ ' SP_S ! ~ I / ~r CB ~r ~i uo R3 .w. t5 ] GC 6C L, v r v p. d GL a GD~ a 4~ - ~ ? ? ~ pu.•w .Don ®Q ~•wi w S0.°B a ¢ M+u Ci+a ct..~~ D M2 C3 L7 C9 L3 C3 L7 C2 C2 ~o M2 .Xtll Y MI pl pp -WW ry 1R~ ~O ? P ~ ca-A v L3•~ O LB-roP Rz suss Sa5~5 P , C3A L1A CB- 'O SD-07 R M2 M2--~ p p O SP I C3-A CB-A ~ R2 I M2 I M2--' ~ SD-1B SD-2 3a r ' ? C9-A C3-A - , ? eo-fe ~I 509 ~ _C3-A C9-A cs2~ M2-xon Ct C2 ~,~I " 19 Iri I li OZ Lioi Liwi ~ Iro"II ~'I I ~ LYwu ~ LY+a~ v Cx-wu r M OENERALAGRICULTURAL CR COMMERCMLflESIOENTUL RI SWGLE FAMILY RESIOENT°LL -B PARKING MODIFICATION GC GOVERNMENT CENTER R2 TWO FAMILY RESIDENCE LSM COMMERCIAL SOUTH MAW M1 LIGHT INDUSTRIAL R3 MULTPLE OENSRV MULTIPLE C7 COMMUNffV COMMERCIAL M2 HEAVY INDUSTRIAL FAMILY RESIDENCE C1-MO COMM.GOMMERCMI.MUSEUM DISTRICT MO MILRARY OPERATgNS Rd SUBURBAN APARTMENTS C2 GENERAL COMMERCIAL O OPEN SPACE RE RESIDENTIAL ESTATE C9 CENTRAL BUSINESS P PROFESSIONAL SD SPECIFIC DEVELOPMENT CS-A CENTRAL BUSINESS-ARTIST VILLAGE PCD PUNNED COMMUNRV DEVELOPMENT SP SPECIFIC PUN U PIANNEO SHOPPWG CENTER PRD PLANNED RESIDENTIAL DEVELOPMENT C5 ARTERIAL COMMERCIAL AMENDMENTS TO DA 04 -1 ONE BROADWAY PLAZA, LLC 1109 NORTH BROADWAY - -=500 FEET t"= 7000 FEET P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT 1 75A-22 cwuAERCUL 8 w - pES/DENTUL S Y 2 BANK RES. OFFICE C W g RESIDENTIAL WASHINGTON AVENUE RESIDENTIAL 2 W O yl W ~ fA ~ y W o OFFICE LL O W Q yZ U G W Q W W ~ ~ a R e m PROJECT SITE ~ ° iy U Q wl W O Q W ~ U Z a a OFFICE U O RES/ IAL OFFICE y TENTH STREET RESIOEMUL p q p I p 0 OFFICES RESIDENTIAL W PAR ING pApKING OFF C E S OFF C E S O AMENDMENTS TO DA 04 -1 ~ ONE BROADWAY PLAZA, LLC ~ 1109 NORTH BROADWAY P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT 2 75A-23 d a Yp O [6 ~ .aLL6 VJ'VNtl tl1NN5 i r 'f~E~ I' o; b'g ~ YZMe AtlMOVOaA 3N0 - L c j, 1 F ~ka~. Nne ll6 ..`Yy n !B~ bce 4~E y fY d L ~ r t t i r t e f. ~ !'i I zr t r e c~ FE e k ~S r }i d f t I/ r u t l 't1 F V l~ ( I. ~ a A S E N 4 d YL. -5 t C Y { ~ l~ e s 4 3 _ L i C N f I 6 P I r 95 H N ~ l f~ Y X595 d[ E L L x 2~ y1_. 1 ( dt ?e a ~ kE a€i 9 os5 n R 4 sa v s ^ 3 xLP [ - t 'I I ~ > oN f 3Ar u a he Pv 6ag~i a3rl S ~ ar ~ c Si c ) SG t° t ql ~ t bd c i C 'r ar cE t aRlE n e r 6 6~ E ~z' ° s 2 , ~ F~ a i! G K1 S Av r a 4s r ci L c 2 5 F YL £t ~ E yr Se6 rE ~ IP a6-P F ?e crY¢a§ bE t n i' SL n °ev 6 Ea"C,: r I t! t . ° .e t^£ ~eE :L „vN.. NE.>..§ ..e..... _GS e'.£ a'.. °stF b'.. ! P! I t ~ t E r,_tt . f! ~ i I FJ- ~ ~ 6 ! 11 _ V y i I®'~ ~ i z C{ do~Re[$i 34. tf ~fi a I PY r 6~ tev ~.L ~ ® lam/'-y{s~ I _ ~ I~l.o w rN €E ~ YB e ~ c [ E rE 9 . a~ '--N.1.. I _ I i'. I'~ V I I I F ° Y L~ ~ Y t o d e l~ 'r I tF ~l~ i~Y" i c, 'F f ,u, ~ e " i R e- 4 n i i InYldi ~ _ ~I:il i,~ ~ ~o ~4x c F a€ ~ i t u~ YI P i o r~d~ Y e ~ L ~ r ~ n g~- f ~ ~ V t. ~ ~ - ~ I 2~~. Ys i ~ ~ R ~ @ ~ ~ e 5: ~ II'I '.III I. I' ~o s .p ~ ~4~ e 4 p ~ € ci ¢ „ a c o-2 - ! i- r r s i ~`v ~e € 6 Se § ?~s- mm o--_-_ ~ ~ von - f M ¢ d ege i i~ s e@~FS ~ Y Y d - s c r €1~E6S ~ ~I~~ ~ ° sP S L°~b ~sa~t 6~ Q~e~~~e Y Y L nR € ~n6 S ~ e - E s e ai s ~a 2 n p ra °.~I i ° x.. L eB ~ q ~pi L i€FE~ ~I,~ oL ` k ( ~ a m z e~ ` El~e 5~(y.ep~Y C3~~E8~ F b~61S € s till App _ 9 Yq ~edr ~ n€a3~pF 534Sg ~~~~€d@ ~ 4 ~ E.~ Ec n ° i9 'pY7~§a4• sd@e P'aF Y z~l z i1 ~ ~ IGi E66~a 6'~s 6 ~ Fpe{6g~~E.Yv aEg e o ~ ° e€ n6@~p# ggz~i[$.t9 a ~aB~a y tiro 6 v ~r'yll ~ n I " ' - . I i_. r G. s&4$3~~ 5gin i isd YYSYa ~6~'6Y'Y3 3 d . rn~~ w i ~ w ~ ~ @8Ye via s~' g Y 3,qn i I ~ s I ~I YY6sa ~v ai ~ab K~~L6 fi5~ F~X~ Yi t~Y` E @~~ ~ ~ it J ~ .I. v Y of ~I ~~:@.'~9€@~:$~:;~d °5~~~;€€g=°f~~sa~~.~Sia-`r~~S I I C,~ ~:Q 4 zt.s (@~~ s..._ sl acY b.st@n R C R R ppC Rc. I •d9 dP Ir\ ~~'ss woXCnrxn S bS bn ° a ~I ~ { R Ir € _ 3Y a ~l ~ p ~4 gq € e iyygg~ k ~ ~4 =r i _ F I~ - ~ h - atld?i~- bE - ~E °a~~ ~ s I. ~ F ~Idz ~I 2@2e`~r o~ F i c~[ 3F ~~'F6S€~ 5~" IT I lo£~~-0O:iexY~ vir~ ~5 Y ~ r~Y gp~ dP _ ~ ~ p ! I~~ 6 Yob ~ ~b.~9~GG`u 1~ I Y.Y 2E .r I . ~~4 Y. b a , s Y k~ ~IS~,azR Q"§ ~I =I~~ a. -€~~b ~:AF y II i ~Y@ 8 cscros BSI?s~$~~~.~7Ys nis ~0~ ~ i 1 u P~ ~ ~L - m I 84. - dY E I `1~If iyy~~I~te -~4 y }'U yF •LvP ! U~ _ ~ e' .P '~f _ r~ ~~6 ~ ~ ~ x ilS iC 9 €i~Y~S1 yi~1f Ffb i ~ ~ ~ ~ a ~ ~ ~ ~ I- ~ I ~ I ~ I,, ! i ~ yiL££eee6 °~~~£E£ Y~' ~YBv \F~ 6 II ~ ~ Y £ I I y, yy ~ ~x _~~1 s ~ 7 ~ ~ i ?d III: Ya ~ I 65x.`':..6 ~4iE:'gs~ II ~ h r..x I m _I ~9 bl $ a ~~ii. ~ I y~4"llk Pf R6S [kC 5P~ a~I. ~ I ~ 1 ~ Yrt'ai rG y-C r gxyy 8F ' s e^ I' ~ ` ~ 6S~Y6E£y56Ef5 3:Y, I ~ ~ I T. 1 ,.'C4 II P',~ ~ ~ R ~I ~ = ~I~ I -emu ~ R ~ I~~ J G.. II S~%Ba{§'1Y4a95 ~ $I ~r e p s I L pT O 5 xWYVINSVX I~ ~ r Ffi 56 ~ ~ V ~ ~ O -~TT~ I'' _y ly ~ YT u.~w~_ 6'sR £ d L 42- a vl ~ ~ i .i ~ I ~~P ~i > .t e...~ L rl ~ ~ ~ l ~ ~ . I 0 €Br ' _ 4vY s X ~ ` ~ I ® I I I o~i ~ ~ Y`y~$t ~Y z ~ ~ I c e 2CC6?N 7t°~i z f ~ 9 t N i ICI ~ I ~ ~ ~d .E. ~°~,~a~s Oo IuU m.ru m~n 7v~i~BI~14 i~ia~ a~~~;~~ o o a 0 0 L... g n d~ _ ~ ~ ~ ~ 83 o 9 m o~ ~ ~ ~ ~ amp U W~ W W ~ o~ a o 1~, .GG..'' _ ~ r ~ v.. - _ _ ....n......'-~. r..~ .i.Si~i',~~E~..~..~r ~?s~'Z sx ~~2sa c.s vji .!tom a~i ~ °~`~"L~z°r~'~~_ r>~i c s y- p.~ s c'.... .s4 v ~ ir-MUacaKaa~v"y`. ' y ~ _ .c--.ay-'-'c ~.F.i _l . r~~r~~~ ~~~1r~ y E 4 ~e IOLLG V]'vNV V1NV5 bwv omaes oxr sxnn35re , N F ~-i 'y 'a dZVId AVMOVOtlE 3n0 sxna boot x ;wa- ~ 6~ ~ xununeis axnne ~ g r : ~ ~y .a~ S .r€S:~iEB { U ~ _~_J_ I ~ ~ ~ „y _ ~ ~ R n°~pq~, hh a, ' a<f E$ Y ~ H' P J Real-o" 6e i _ zi ~I ~ v Ot w y C I ~a b I~~ I < W~ 9 6 6 6 6~ 6 6 6 ~ ~E o- N S ~ a P I~ b \ 5 b4~ aF. e ~ e - i xS 6 _ ~ `-t- ~ ~ = ~ ° ~ _ I- ~ I ~`a - ~ ~ fi ~ ~ _ _ ~ ~ I 4 - ~ F= ' - - 1 ~ ~ ~ I f a _ w - ~ b o- o- G ud,a~ Page 2 of4 75A-26 r i ~1r--1~~ 4~ 9 1066Vj 'VNH V1Ntlc XVIe ~T~lXlYtlla [ v 4 Cam) FiY ~~R'a p~p~ ~ VZbId AtlMOtlOtlF 3N0 _ ~3AT. lvaeAl r.:;~ ~ • 1 ~[i' [ 3 ~s~+~ae.a 1 u L~ % F ` ~ ~ ~ - i ~a la \1 / _ k~ a~ _ i / JI i ~ Ik°j 1 c I1 i I / ` e e e ele e e eie ~ \I i i ~ ',i j • - ~J L F--~~'I ~ ~ ~Q ~ L~~ll~ it i m m _ m ~ ~ < ~ - _ _ i - I. - h m i . I - ~ - - 0 J I~ a i _ ~ ' m _ ~ i ~ m` m I ` ~ ~ - - II c~~~~~ ~ i _ ~~o~~ o l G-w I ^n i ~7 it ~iv'~ - c'. ~ Ivy - Page 3 of4 75A-27 f .C s• ioaa v~'vNV ViNVS e f ~ _S p ~ dZMd AVMOVONfl 3NG xnd y ~ ; v ~ ` a~~~y P~ SxdlYlf,]lY]MIIMtlyd ~ ~yy p • q9 €~fE LZ-i a ~nR~nne< I^ ip " 5 Zw o J z 'F°a~o ~ i~ < ~ ~ ~ ~ S 3 ° £ ~ ~ 3 i 'avo Q ~ E u, ~ ~ h y u, ~ u, v, y Qi ~ 5' ~ W ~ w wi ~ i J w w ~ ~~u 2 • Page 4 of4 75A-28 ~a - N Q ! ~Ov ~ I ~flfdsi~ Z DI F. 3 w ~ J > W ; H In W i3~fx ~ _ a 0 ~ a~ o. Qw a ~o mz _ l1Ao ~ ~ O~ ~ ~ w N 2 '~~~1 ~ Ox Fµ Z ~ ~ u~~ > ~ w b J > wvsc~ W I- ~~+`v: ~ ~ W ..__,-.~-~.,-,.--a-..~-~.~,n EXIIIBI:T S r .~s ~'v~` t rte' ~ M i is i `r' ..~~•L'f ~~f''*~{ '4.'"2~i~F'6G~"~~~ :r ~"'i' ~k=' r ..-Y ~ t ~~^`-~~(s~Fs :~3 ~v '__*~3~~'~-r~-s ~'~c:c~'to-~~ ~-y S.T "'z sY`~C~yp9~`iwn .z 't-~~.~esR. - r-." s ~ ~ ~BB @L f ~s io[za v~'vNV VlNVS ~ ~ _ S c. vmn.vmnvone aNO yw~~•~n, • ~ ff~°'~: I , . ~ - 1 ~U~~WfIU~~ ~ k' ~II ~ ~ ~ I F O x~~ ~ ~~~0'I~I~~ ~ L ~ _ 4 h I v_ ~tii_ 5 o ~ ~ gg Y77Y,~ ~T~7{ f 4 ~ ~~J~d ill ~I _II_ O_ I\ 5 3 r ea J ~ I w~ ee' T J ~ ~ ~ e ~ D ~~~I~ ~~~I~ N y ~ i~~~~Q~~10 w ~ ~ ~ ~ ~ 0'~I~ ~ ~~I~~~ i ~ I SIP ~ ' !li o c e r I, T I ~ ~ ~ o~~ ~ ~ ~ # ~ ~ Iii ~ W ~ ~ ~ ~ ~ P Y ~ ~ ~ ~ a s v_~ - ~ 'a ~~I ~.lJ s sG Q I ~I 6a iga ea 75~?-`30 carrierjohnson + cu~TUR3 - a[bitedwe ~onvironmenlS+Gana stra[egy+grapn¢s October 12, 2007 Mr. Michael F. Harrah CARIBOU INDUSTRIES 1103 North Broadway Santa Ana, CA 92701 RE: One Broadway Plaza LEED for Commercial Interiors Dear Michael, The attached checklist is being provided to demonstrate the advantage for LEED Certffication by future tenant improvements to occur within the One Broadway Plaza office tower. The project is ideally situated and planned to take advantage of community density and public transportation requirements of LEED. As discussed, features will be incorporated into the Core 8 Shell to assure that goal, such as dual (lush, electronic sensor controlled ultra low tbw plumbing fixtures and waterless urinals resuRing in a 60°k reduction in water use over conventional fixtures. Reduction of electrical energy use by taking advantage of natural day lighting and providing motion sensor controlled lighting wherever possible, just to name a few. There are four levels of LEED certification; CertHied; Silver, Gold and Platinum. The required number of points required to reach each level of certification is listed at the bottom of the checklist, with 21 points being the minimum requirement. Based on our experience with past projects, we have identffied 24 points that are achievable by any tenant committed to pursuing certification. We have identified 12 addition points that could be achieved with greater commitment offering the opportunity for the tenant to obtain LEED Silver or even LEED Gold certification. Carrier Johnson is committed to addressing the environmental and economic results of our designs, taking into consideratbn the lice-cycle cost and ecological impact of a project. Currently, 16 members of Carrier Johnson's design staff are LEED Accredited Professionals, and several are in the process of obtaining accreditation. These individuals facilitate and perticlpate in the Integrated Design approach and will work with the project team to reach signficant, cost-effective green design solutions as you have directed us to achieve. Sincerely, Gary T. Hipolite Project Manager cc: the 1301 roiro avenue san E:egc ca 92 iU1 phone 615.233.2353 ~ lax E19.239.0?27 www.carneryohnson.c°m I www.r uureEes~gnlab.cnm EXHIBIT 6 P~elof7 75A-31 M c7 c7 N N N ~ N f V N ~ N N ~ M O O ~ ~ ~ O ~ ~ ~ ~ r ~ .u. u r ~ N N N r r r s " ~ ~ a ~ m~ > << t ~~~m ~i c ~ =I m r~' o 8ti far `o E a' v N m ~ c ~ c ~ ~ . ~ 0 E~.o$ c m a E c $ ~ 6 ~ v ~ ~ 25 c a ~ s m' rn n~ m 9 ~ a e y, ~ = z° ~ O c £ $ ~ ~ p ~ v y ~i $ ~ a 4 ~ a M W z ~ d OC » ~ ' a ~ m ~ w 20 a ~ f- c o ~ K Z d ~ a, ~ 0 0 ~ ~Q a' mm z ~ o cc ~ ~°v a~i> a~+X ~U c10 E o ornu .4 .4 d ~ ce S -~Q m ~ m W ~ m y v' m~ V V KF ~ ~ ~acio$.md ~ C a3i`-~ d V ~"a ~ ~ m rn~ a~~ i y m 3 yZj y C c Tn m d a W W O ~ 2 O ~ W Q G u 0 0 d N O 01' m~ O1 C f0 C G Op V d aap mA d~m~ ~ w ~ ~ ~ Y~ v C C C C C C C C C C C C °r' ~ m d 3~ s .s .s .s s .s o s s s s .s O ~ Z= mn:~~n5n S. n a a ~a ~n n as W Cf a~ rn0 u000 O O 0 0 0 0 O o0 W d w°o 000 ~ u. o ~ o o in o0 J~ F~ ~ o00 0 0 0 0 0 0 0 00 v ai N U 0 a3 ~ Z O Z Q ~ f~ o- M !4! a` a } M Page 2017 75A-32 do o 8 0 a E o> m a o~~ ~L E u £ n ~ o E~ p Z' y° m~3£a~i' m c ~ ~E o y~ o Qm`on ~c "gc~ c `sue E m~ o>.~ ~ cy N `o m oa E m~ y o a °0 4 ~ ~2E m o ~o mr°o E c'~ya" c~uaDi °m 8ov mN~ ~ T m e a A m~~ ~ om Y C ~ Ol C 6 p l0 m~ C C ( Cp D. ~ J O` R$ ~ Q N O ~ .Q J o.~ao o.o m ' E ' o o v m ~ _CTC O1 O O t: u w a W c c > O L U L^ '3 3 e iR' m d v v c o m m U C w S o ~ m ~ $ $ c ~ m of °m E u e u c v ~ ~c ~ ~ o v a 'm a ~ ~ ~ v ° e c c~ c L Oqq 1O~ tO N ~ l+l m L L L ~ T °a a a E m a v, e c c ~ o` ~ E ? s > ~ m ~ o O A W A ~ ~ j ~ ~ y = ~ 10 m ~ r m~ m 3 o a a a 3~3~ N M ry N [h m M v ~ m a v v U U U V U V ~ _ ,w ac u+K. o `'A`ye ~ ~~+n~z ~;r^R~ ~,~Y ; Z ~ ~^t're>:: r~ apt •v5 "'T ~ QS ~ r C Pate 3nofn7 - 7~~4- S S 9~~ ~ O'7 N M ~ N N Pl N ~ N ~ N N ry r r O O 'J, O O o ~ ~ o N N N `9 r r + ~ ~ r r ~ ~ ~ c E w 9 D m O C c ~ ~ ` m ~v iB 43g0 E H ~ nm ti E 3 0 0 w'"t W ~ ~`o sW3~ E 'm c Z ~ ~ t~qg v~ c m °a 3 m ~ EE V- 8 m m c t C O C~ ~ N n .Qt~ N r~ OU y~m~ (mp Q _D ~ Ls m N~ 1 W U w~' n$ 8= 50 ~im~~£ a'ci a o Q Q d m m W v ~ 4 3 c ~C9 ~ v m g v a a a ~ ~nW W ~ a a ~ e o o. z z a m " ~ ~ ~ w U Q W W ~ p W E m N M ~ ~ V m N C O O~ ~ O C~ m q C~ 4C O O O v a~' ~ D ~ .o ymE E ~ ~ ~ m ~ m m va S U o E a a Q n o c~ c c c me N R o, v v ~ >Q> ~ a ~Q m v m~ o 9 ~ 3 3 ~ ~ S ~ ~w m m y o a a m v~ eauw ~ mn g. a m m ~ W mrn 'w a ~ n ee ~ ew w w a o cem ~m at{ an d 'C m C C C W m IC: w A~ ~ w w L L t € E Ia U~ € w rn g w m Q Q e m m m ~ Q' w w w E m 'S 'o z 9W ~ s cavmvtiv e e ¢ mcw_ _w U~ a` a `m C 7~ w C m C m m W W C c W ~ Q m mE'o _ m.4 'o.4~~~ m m o om°o°vm m vEK v EOy0y0q E E a a•'~om$Le W m e c2U__ s O O~ni°w@.a. U U m IL ~ U ~ 0 0 ' ~ dam W W ~ O E 0 ~ N M Q ~ N M _ N m m~ N M V N N N ~ v N m w ~ "O ~ d N ~ N d d d U U U U U U U o ~ '6! e z ~ n~ F^' a ~ £ ~ _ .t~ r 0 page d of 7 7~~4_~4 m r~ ~ ~ ~ ~ g ~ ma ~ ,°tv mE ~$mo m~'i~ w ~ E m $ o $ $m mg m Emmm mii~ Tai U ~mw cg m E° m J O OI 2 C O~ N y mW vi~ 2~E ~ C J L 4' ~ ~c .~.E .2~ U~ Wo°$ 'tic i.t .V2 ,2g3 Evv~i$ a.rv a C ~ C N „O. ~ ° ° E c° o~ m omi~~ oS~gE~m L u i 3 w E o `o c ~c c ~'mc~ `o m ~i'~c o a m °a i°nm ~fUE Ss Oni,E Tien m e - - o m m `va EE m °6 ~ as ~ ` e e r r 'J O O m ~ 2 E c dY Y Q m E 3~ S as ~ ca ~ ~ 2 Z N A L N N O 7 a ~ ~ ~ c m 'c + + m an d EC' D D v ~ f b E_ c a u+ a ' ,r ~ ~ m c e V E o o m m m o o m ~'oa~ ~o mm YY ~ E a g m a o ~ m ~ A a~ ~ W ~m~ ~ mm v. ~x ~ A or- ~ c e~ oo N ~ ~ O N 'm m ~e O ~N c~ g a m H ~ ~ rr si a J m m m m ~ m® ~ W mq ~ V O~ ~ 3 m m m O O m W ~NCmO'm•a°z°mm m VU ~ ~ 0 V v ~ 'D 'O W a ~ 9 ~ C C O C O~ ~ > j ~ C C m ~ m v n 7 O'n m 0 0 O V V O O ~ iE E e E e e m f%1f mUm Uf~UCK K ~K K O~C K U Q, .J N N t"1 N1 M V V N ~ (O r ~ `o =o ~o 'o 'a v a =a a `o a ~ v `m v m m d m v m m d m ~ v ~ v a` c:v v c v v ci U ci v v cv v ci c_i v O F Y ~ ~y. a' ffi N ~ r .i. a r i"'. ~5O(7 75A-35 ~ V r r r r r r r r r N d ,7 gg m ~ ~ am o n ~ .E UU' .E ~ m m E ~ W~ ~ iri ~ c c D c T9 v m e 3 m 'G ~ ~ c c~ ~ h m~ ~ c $ o m 8 ° ~ mw c~ 5~ E~~°° aC° $ 'm m m w ~m a ~ >O~ >O~ $.o ~ L c E $ o E v ~ as - $ a ° y d~> ° LL ~ U 8 U ~ U a 3 0 ~w c g m W ~ h= x m ~ U n« = N~ ~'~o,$?m? m1O~c~ ~9t Ea~~m m't~to°~ o m ae ~ ~ aDi > 1° E~ E K ~ w m~ H v m$~ '~r~Ey ~i~ $ ~m Evi ,moo w~ E~ .ag yDrn w EyoECO~oi ~Om'WQ c0q"'~ ~a $.~r ~ o O m o m mLL m¢ m¢t!~ t`~g' EO=t m vEa55~cKrn5UV~y ghc~vc9AV8LL¢3m~ c r T ~ OI V C W C ` !0 C ~E m e ~ c ~ N U ~ v e ~ y w c m e e o ~ ~ m c `o e V C m v ~ a ~ U e v $ 3 m = ~ A tll 9 ~ ~ IL 7 T ~ m w d ~ ? w ~ ~ E H m e c e ~y $ m a m e 0 o m m t c n E m 3 C y C ~ ~ < d U U N = E u f c e w » ai a di a° c A m m m w m m d~ d W a 5 ~ ~ g e _ ~ > o o e e c _e c E E E < ~ L v ~ E ~ z r oz d m ~ E E E.'_E V @ c c ~ 3 3 3 i~ ~ ~ W O C V J J J J Q J C ~ N N ~ N M V L7 Q Q ~ N th ch V Q P C' Q N d N - m y v d ~ ~ a°i d m ~ v a~i a` a U U V U U V U V U U £ N sa'~k ~ ~9" ~ o- N vit `e ,a ~h '6~ ~Y gs.. 5 e w i Pte 6 of 7 7~f~4- 6 r tll y O ~ p ~~pp IgRn m °1 p. p U ~ N 0~ .a y ~ ~ C W m C ~ ~ l~. d ~ ~ ~ ~ ~ A ° C O m c E $ W ~'~3 r n rn "$P~ ~~O m °<<ag ° $ _ ~ = m 2 ° w ~ $ c c q U t p o O^ C N p~FJ L L m > S~ L~ ~ O W mcr ~cE-a;.~m ~Oiv aci m S p m ~ ~ a~~~~O~v~wo a axinv v a' n e o v a E - a ~ c ~ m F Q 1 ~ N roC p~ G V {l ~ m r C~ rrrr ~ p d m U tj p U ~ a o o ~ a n- La y o a p yhNN e v J r U W n Si Q1 N O) 0) O o G c ~4BP•SO ~ E E W$ t L $e~$~ a rn o~ g o `o ~ aaaa P U g O O j eeeea w al ~ a _w of w ~ ° 0 0 0 ~ ~ 3 m~m~v D E E > 5S E a u a a V ~ op otl ,0 e e c e O ' ~ O O O O Q in R/ m L L L r r v Q £ ~ w .P ~ >>>>o - p ~ L L A A W C C C C W o. U V r r D D O E S E C J - n n N N N M N M 7 (J CJ I~ f` W 00 W N W L "O a O ~ 'O 'O 'O L 'O 'O '6 N N N `1 N O) `1 m 0 m N N Y U U U U FFSS ppgy~~~~U~ U U UUUU V po v \ .=u~a ~ ia., IY9tSC "~12.k r Z N Z ~ ~~S'i En -Ilk.... YF'l ~iF N r P~ ~Il ~ m a ~ ' ~ . ~ Y ~ Y N Psge 7 Of 7 7r'fA- 7 i REQUEST FOR COUNCIL ACTION \ . CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JQLY 6, 2004 TffLE: APPROVED PDBLIC BNARINO - RNVIRONJIt0~1'PAL ID~ACT ? As Recommended REPORT NO. 1999-O1, 111 O As Amended 11PPLICATION NO. 2004-07, 081i8RAt. PLAN ~ Oitllnancaon 7roReadinp ? Ordinance on 2 Reading ANSIIDD~NT NO. 2004-O1, ZONING ORDINANCS LJ Implementlng Resolumn Al NO. 2004-02, DSVRLOPNRZiT LJ SelPubllcHeeringFor AGRSPJ~NT 2004-O1 AND Tffi~1TATIVS PARCBL IlAP 2004-02 (COiJN'PY 7(AP NO. 2003-262) FOR TNS ONS SROADIVAY PLAZA OFPIC$ TOWSR CONTINUED TO FILE NUMBER C TY MANAGER RECOMMENDED ACTION 1. Adopt a resolution certifying Final Environmental Impact Report No. 1999-01 and approve the Mitigation Monitoring Program ae amended and Statement of Overriding Considerations. • 2. Adopt an ordinance approving Amendment Application No. 2004-O1 for the One Broadway Specific Development District (Specific Development 3. Adopt a resolution approving General Plan Amendment No. 2009-01. 4. Adopt an ordinance approving Zoning Ordinance Amendment No. 2009-02. 5. Adopt an ordinance approving Development Agreement No. 2004-01. 6. Adopt a resolution approving Tentative Parcel Map No. 2004-02 (County Map No. 2003-262) as conditioned. PLANNING CO!®fISSION ACTION On June 14, 2004, the Planning Commission recommended that the City Council adopt additional mitigation measures in response to comments from the Santa Ana Unified School District, adopt an ordinance approving Development Agreement No. 2004-01 and adopt a resolution approving Tentative Parcel Map No. 2004-01 by a vote o£ 6:1 (3inclair oppoaed)(Bxhibit B). • EXHIBIT 7 75E-1 5 -3 SIR No. 99-01, AA No. 04-01, GPA No. 04-01, ZOA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 ' July 6, 2004 Page 2 DISCQSSION AaslS.sis of the Issues On February 23, 2004, the Planning Commission held a public hearing for the various entitlements associated with the One Broadway Office Tower proposed at 1109 North Broadway (Exhibit A). At this hearing, 33 members of the public spoke on the project. At the conclusion of the public hearing, the Commission voted that the City Council certify the Final Snvironmental Impact Report No. 1999-01 and approve the Mitigation Monitoring Program and Statement of Overriding Considerations for the project. Additionally, the Commission recommended that the Council adopt an ordinance approving Amendment Application No. x004-01 and Zoning Ordinance Amendment No. 2004-02 and adopt a resolution approving General Plan Amendment No. 2004-O1 due to the numerous benefits the project would bring to the City. xowever, in addition, the Planning Commission recommended several amendments for the development. These amendments included the addition of five mitigation measures, the amendment of one mitigation measure, and changes to the Specific Development. The changes recommended by the Planning Commission were: 1. The traffic barriers currently located within French Park shall become permanent; 2. westbound traffic on Washington Avenue must be diverted either north or south at Main Street; 3. Eastbound traffic on Tenth Street must be diverted either north and south at Main 6treet; 4. The historic structure located at 1015 North Broadway be relocated to a City approved site and be provlded with a permanent foundation and utility service; 5. The historic structure located at 1109 North Broadway be relocated to a vacant lot in the City and be rehabilitated, including construction of a permanent foundation and utility service; 6. Amend Mitigation Measure No. T-1 to limit the start of construction on Saturdays to 8 a.m.; 75E-2 75A-39 i SIR No. 99-O1, AA No. 04-O1, • GPA No. 04-01, ZOA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 July 6, 2004 Page 3 7. Modify Item 4 of the Permitted Usee section of the Specific Development No. 75 document to state "cafes and restaurants, except fast food and/or take-out restaurants;' and, S. Add Item 7 of the Conditionally Permitted Uaea section of the Specific Development No. 75 document to state "fast food and/or take- out restaurants." On March 15, 2004, the City Council held a public hearing for the One Broadway development. After receiving public testimony on the project and a discussion by the City Council, formal action on the various entitlements under consideration was continued for 60 days. During this interim period, staff met with a newly created Council Ad Hoc Committee, which assisted in preparing the terms and conditions for the development agreement. Also, the Council identified specific issues and standards the development agreement should address including construction costa, preservation of historic structures, traffic mitigation rtieaaures, and • benchmarks for issuance of building permits. Since the March 15, 2004 public hearing, staff has met on numerous occasions with the Ad Hoc Committee and the applicant. As a result of these meetings and extensive negotiations, a development agreement has been prepared (Exhibit B-1). This agreement has incorporated the major issues raised by the City Council at the March City Council hearing as well ae those issues raised by the Ad Hoc Committee. These issues include: 1. Prohibiting the issuance of any building permit for the Project until the Developer provides evidence of binding commitments for lease of not less than 50 percent of the net leasable area in the Project from tenants who would qualify as "investment Grade Tenants" (BBB-or greater) as rated by either Standard 6 Poore or Moody'a rating agencies. Non-rated publicly held, or private companies with a rating of B8 or BB+ may meet this requirement by providing a "Shadow Rating" from either agency depicting a minimum of a neutral credit outlook. Law firma shall provide evidence o£ a rating of "AV" from Matindale-Hubbell or equivalent rating agency. Binding commitments to lease shall be in a form and content normally accepted by conventional lending institutions and subject to the review and approval of the City's Executive Director of Planning and • Building which shall not be unreasonably withheld; 75E-3 EIR No. 99-O1, AA No. 04-O1, GPA No. 04-01, ZOA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 July 6, 2004 Page 4 2. Requiring the developer to submit evidence, for the provision of the payment of "Prevailing" and/or "Area Standard Wages" as appropriate, that it has entered into a labor agreement with the Loa Angeles and Orange Counties Building and Construction Trades Council. Said agreement shall also include provisions that encourage the referral and utilization, to the extent permitted by law, of qualified residents ae journeymen, apprentices and trainees. An executed copy of the agreement shall be submitted to the City prior to the issuance of building permits; 3. Prohibiting the developer to request or accept any agreement with the Santa Ana Community Redevelopment Agency for economic, debt service payments, or other assistance for the development of the Project; 4. A provision that all offsite mitigation measures identified in the entitlements shall be specifically listed and incorporated into the Agreement (the "Project Mitigation Measures"). Developer shall deposit cash, security in a form acceptable to the City~a Executive Director of Public Works Agency, or other reasonably acceptable proof of ability to perform to pay for the Project Mitigation Measures (including traffic studies) at the time called for in the entitlement, and in any event, prior to the issuance of building permits. Any deposit shall be supplemented to cover the actual costa incurred. The Public Works Agency shall provide to the Developer an estimate of the Project Mitigation Measures which shall include land acquisition and construction coats pertaining to the public improvements required of the Project; 5. Defining and requiring core construction costa of the Project shall not be leas than the RS Means "Medium" square footage estimate, including the installation coat of all mechanical and electrical equipment for a Claee A high rise office building; 6. Requiring the drop off/pick up area for Orange County High School of the Arta (OCHSA) be approved by the City Bngineer and implemented b®fore any demolition or construction is initiated for the Project; 7. Relocating the historic structure located at 1015 North Broadway (Twist-Basler House) to Cabrillo Park at the sole expense of the Developer. Additionally, the structure shall be set upon a new foundation, supplied with all necessary utilities and shall be rehabilitated to City standards. The coat of rehabilitation shall serve as a credit against the Developers Art and Culture fee obligation; and 75E-4 75A-41 i 8IR No. 99-07, AA No. 04-01, • GPA No. 04-01, 2AA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 July 6, 2004 Page 5 8. Retaining the structure at 1109 N. Broadway (Koenig House) its current location. The Developer shall be responsible for the rehabilitation of the structure per City standards. Retaining and rehabilitating the Koenig House at its current location will enhance historic preservation and strengthen the atreetacape character of Broadway. In order to maintain the Koenig House on-site, egress from the parking structure onto Broadway has been modified to reduce the two egress lanes to a single lane with right-turn restrictions, which will include the construction of a landscaped median in Broadway. This will also allow the elimination of the previously proposed traffic signal. Staff from the Public Works Agency has evaluated the eflecte of these circulation changes, including an analysis of the levels of service of affected intersections, and found that they will result in no new significant traffic impacts. In fact, retaining the Koenig House will lessen the project's environmental effects by preserving, rehabilitating • and re-using a significant historic resource. The Mitigation Monitoring Program has been revised to reflect these changes. More specifically: Traffic Measure No. 18 (T-18) has been revised to eliminate the traffic signal and require a landscaped median in Broadway to prevent left turns; and, Cultural Resources Measures Nos. 1, 2, 4 and 9 (CR-1, CR-2, CR-4 and CR-9) have been revised to reflect the change requiring she Koenig House to be retained at its present location and to be rehabilitated by the applicant. The development agreement addressee the issues raised by the City Council at their March meeting. The tentative parcel map, which merges several existing lots on the project site, is in compliance with all applicable State and local regulations. The Final Environmental impact Report, Mitigation Monitoring Plan, Findings of Fact and Statement of Overriding Consideration for One Broadway Plaza has been revised to address the inclusion of a Development Agreement, the addition of mitigation measures to reduce impacts to historical resources and pedestrian safety, the construction of a student drop off for Orange County High School of the Arts and modifications to the egress of the project parking structure. Attached are the revisions to the Final Environmental Impact Report, Mitigation Monitoring Plan, Findings of Fact and Statement o! Overriding Consideration. • 75E-5 EIR No. 99-01, AA No. 04-01, GPA No. 04-01, ZOA No. 04-02, DA No. 2004-01 and TPM No. 2004-02 July 6, 2004 Page 6 8I8CAL Il~ACT There ie no fiscal impact associated with this action. .~Z~. Stephen G. Har~ nag Executive Director Planning ~ Building Agency VF\VC:rb vL\L9pOtC9\9COLC91199-O1W6~404-OLN0904-9]E904-O1tp904-0].0]-06.04.eC 75E-6 ~5A-43 ORDINANCE NO. NS -2656 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, AND 845 BROADWAY, LLC THE CITY COUNCIL OF THE CITY OF SANTA ANA ORDAINS AS FOLLOWS: cFCTinnt 1; The CKy Council hereby finds, determines and deGares as follows; A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The Clty enters into this Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has, following a duly noticed public hearing, on June 14, 2004 recommended approval of this Development Agreement. E. Entering into this Deveopment Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of One Broadway Plaza to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. F. The City Council has held a noticed public hearing on this Ordinance, and has considered all testimony presented thereto. G. The City Councl has, on July 8, 2004, approved a Environmental Impact Report (EIR) in conjunction with this Project and adopted a mitigation monitoring plan, written findings and a statement of overriding considerations and the Council adopts this ordinance based upon said EIR, plan, findings and statement of overtiding consideretions. c .TioN Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City. The Clerk of the City is hereby Ordinance No. N9-4656 Page 1 75E-30 ~'5A-44 i • authorized and directed to cause this Development Agreement to be recorded with the County Recorders Office. CECTION 3; If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be Invalid or unconstitutional by the declsbn of any court of competent jurisdiction, such decision shall not atfect the validity of the remaining portions of this ordinance. The City Councll of fhe City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fad that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared irnalid or unconstitutional. ADOPTED this day of , 2004 Miguel A. Pulldo Mayor • APPROVED AS TO FORM: Joseph W. Fletcher, City Attomey By: Benjamin Kaufman Chief Assistant City Attomey AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councllmembers • Ordinance No. N9- Paga ] 75E-31 NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY. Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS265fi to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published In arxordance wHh the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana ordinance No. N9-7656 page 3 75E-32 75A-46 CONFOAMEDCOPY Not Compared weth Original A-2004-! 53 ReCO~d )n Official Racerds, Orenye County RECORDING REQUESTED BY TNemDayi,Cgrk-Recorder AND WHEN RECORDED MAIL TO: ~n~~~~~~NWI~INVIi~I~N~l~YI~I~d~NO FEE Clerk of the Council 2005000414753 01:26pm 05131105 City of Santa Ana tts81 q1Z 20 Civic Center Plaza, M-3o 0.00 0.00 0.00 0.00 o.ao o.ao o.oo o.oo P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE S 6103 DEVELOPMENT AGREEMENT by and between • THE CITY OF SANTA ANA and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, and 845 BROADWAY, LLC Dated: July 19, 2004 75A-47 i DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, and 845 BROADWAY, LLC This DEVELOPMENT AGREEMENT ("Agreement's is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ("City's on the one hand, and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN LLC, and 845 BROADWAY LLC, each of which is a California Limited Liability Company (collectively referred to herein as "Owner" or "Property Owner"), on the other hand. 1. RECITALS. The Agreement is entered into with reference to the following facts: 1.1 Agreement. The purpose of this agreement was to facilitate the development of the 37 story, 518,000 square foot, Class A office building and associated parking structure and ancillary commercial development contemplated by the City's Specific Design Zoning Designation SD-75, Environmental impact Report No. 99-O1, General Plan Amendment No. 2004-O1 and Zoning Ordinance Amendment No. 2004-02 (the "Pre-Existing Approval Entitlements'. 1.2 Code Authorizatioa. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Agreement pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (I) This Ageement is intended to assure adequate public facilities at the time of development. (2) This Agreement is intended to assure development in accordance with City's General Plan, applicable Specific Plans and Specific Development District No. 75. (3) This Agreement will permit achievement of goals and objectives as reflected in the City's General Plan, all applicable Specific Plans and Specific Development District Na. 75. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. 1 i (5) This Ageement will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental brnefits in addition to those available through the existing regulatory process. (ti) Many of the extraordinary and significant benefits identified as consideration to City for entering into this Ageement aze of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a Beater percentage of benefits than would otherwise be required and/or pay such brnefits sooner, and reprarnt brnefits which would not otherwise be required as pert of the development process. ' 1.2 Owner. Owner represents and warrants that it has a legal or equitable interest in the real property located in City of Santa Ana, California, legally described on Exhibit A attached hereto and incorporated herein, and graphically described on Exhibit B attached hereto and incorporated herein (hereinafter the "Property'. The Property is approximately 4.339 acres in size and is currrntly occupied by commercial and residential development. 1.3 Interat of Owner. Owner hereby represents that it has an equitable and legal interest in the Property. Owner further hereby represents that it has approved this Ageemrnt and is authorized to enter into this Agreemrnt. 1.4 Planning Commission - Conncil Hearings. On June 14, 2004, the Planning Commission of the City ("Planning Commission"), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's application for this Ageemrnt. The Planning Commission recommended to the City Council of City that it execute this Ageemrnt. On July 6, 2004, the City Council of the City of Santa Ana ("Council', after providing notice as required by law, held a public hearing to consider the Owner's application for this Agreement. 1.5 Council Findings. The Council finds that this Ageemrnt is consistent with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. 1.6 City Ordinance. On July 19, 2004, the Council adopted Ordinance No. P;S-2G56 approving this Agreement. The ordinance and this Agreemrnt becomes effective thirty (30) days thereafter. 2. DEFINITIONS. Tn the Ageemrnt, unless the context otherwise requires: 2.0.5 "Force MaJeure"shall mean delays of performance by either party hereunder due to waz; insurrection; strikes; lockouts; labor disputes; riots; floods; eatihquakes; fires; serious rain or inclement weather; casualties; acts of God; acts of the public enemy; epidemics; quazantine restrictions; freight embazgoes; lack of transportation; acts of the other patty, acts or failure to act of the City or any other public or governmental agency or entity (other than acts or failure to act of the City shall not excuse performance by the City); litigation or arbitration; referendum; or any other cause beyond the control, or without the fault of the party claiming an extension of time to perform; provided that notice by the party claiming such 2 i extension is sent to the other party within thirty (30) days of the commencement of the cause or event resulting in such delays. 2.1 "Offsite Mitigation Measures" means all those mitigation measures not on the Properly applied to the Project as either mitigation measures or conditions of approval, and which are set forth in greater detail in paragraph 5.1.1 below, and Exhibit C to this Agreement. 2.2 "Property Owner" or "Owner" means One Broadway Plaza, LLC, a California Limited Liability Company, 1200 N. Main LLC, a California Limited Liability Company, and 845 Broadway LLC, a Califomia Limited Liability Company, being the person, persona, or entity collectively having a legal or equitable interest in the Property. 2.3 "Property" is the real property described in Exhibit A and referred to in Exhibit B, bounded by Broadway on the west, Washington Avenue on the north, Sycamore Avenue on the east and Tenth Street on the south. 2.4 "Project^ is the development of a 37 story, 518,000 square foot, Class A office building and associated parking structure and ancillary commercial development on the Property as generally set forth in Specific Design Zoning Designation SD-75, Environmental Impact Report No. 99-O1, General Plan Amendment No. 2004-O1 and Zoning Ordinance Amendment No. 2004-02. The parties to this Agreement acknowledge and agree that to the extent set forth on the attached Ex}dbit D future discretionary approvals are required for the development of the Project on the Property, that this Agreement does not apply or in anyway constrain the City's discretion as to such future discretionary approvals, and that such approvals if granted shall at that time be incorporated into the definition of the word "Project" as used herein. 3. EXFIIBITS. The following documents referred to in the Agreement are attached to this Agreement, incorporated herein by this reference as though fully set forth, and are identified as follows: Exhibit Referred to nevi ntinn Dpg~ppjjpa in Section A Property Legal Description 1.2 B Property l.rtaphical Description (Site Plan) 1.2 C Remaining Offsite Mitigation Measures 5.1.1 D Remaining Discretionary Approvals S.1 E Scarifying Area 5.9(3) 3 i 4. GENERAL PROVISIONS. 4.l Properly Subject to the Agreement. Until released pursuant to the provisions of Section 8.3 below, no property shall be released from this Agreement until Property Owner has fully performed its obligations arising out of the Agreement. 4.2 Duration of Agreement. The term of this Agreement shall for seven years; provided, however that the Owner may request one two-year extension from the Executive Director of the Planning and Building Agency, which request shall not be unreasonably denied. Nothing herein shall be deemed to apply, however, to future discretionary acts related to the Project, as set forth in Exhibit D, which Owner has not obtained as of the effective date of this Agreement, or changes in the Project proposed by Owner during the term of this Agreemrnt inconsistent with the Pre-Existing Approval Entitlements. 4.2.1 Tolling of Agreement During Force Majeure Event Performance by Owner or the City shall not be deemed to be in default, and performance and the term of the Development Agreement shall be tolled, where delays or defaults are due to existence of a Force Majeure. Any such tolling shall extend only for the duration of the cause of the delay. Each party claiming a Force Majeure shall, within thirty (30) of discovery of a claimed Force Majeure, notify the other party in writing of the Force Majeure and its claimed duration. 4.3 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, the rights of Owner under this Agreement may not be transferred or assigned unless the written consent of the Council is first obtained and any transfer or assignmrnt of the rights under this Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this Agreement if the City grants written consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Banlamrptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. Such transferor assignment shall not relieve Owner of any duty, obligation or liability to City without the consent of the City. Owner may assign it rights, duties and obligations under this Agreement to an entity controlled fifty-one percent (51 by Michael F. Harrah without the City's approval, but only upon written notice to the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Owner contained in this Ageement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same tights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the Property is subdivided, any subdivided parcel maybe sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. Upon assignmett or transfer of the rights of Owner under this Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. 4 i 4.4 Amendment or Cancellation of Agreement. This Agreement maybe amended from time to time or cancelled only by the mutual consent of the parties, but only in fife same manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term "Agreement" or "Development Agreement" as used herein shall include any amendment properly approved and executed. 4.5 Enforcement. Notwithstanding Government Code Section 65865.4, this Agreement is enforceable by any party to the Agreement in any manner provided bylaw. The remedies provided in Section 7.4 of this Agreement shall not include, and City shall not be liable for, any action in damages, except for damages solely caused by its willful or intentional conduct, or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this Agreement, except where such costs and fees are incurred solely caused by the City's willful or intentional conduct. 4.6 Hold Harmless. Property Owner agrrxs to and shall hold City, its ofl9cers, agents and employees harmless from liability. (1) for 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 Property Owner or their contractors, subcontractors, agents, employces, or other persons acting on their behalf which relates to the Project; and (2) from any claim that damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. The foregoing shall exclude claims based on the City's own negligence or intentional conduct. Property Owner agrees to pay all costs for the defense of the City and its officers, agents and employees regarding any action for damages, just compensation, restitution, judicial or equitable relief caused or alleged to have been caused by reason of Property Owner's actions in connection with the Project, any claims arising out of this Agreement, or any approval or certification by the City relating to the Project (but excluding any third party costs, incurred by the City, including fees and costs for outside wunsel and consultants). This hold harmless agrcement 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 paragraph ar due by reason of the terms of, or effects, arising from this Agreement or any approval or certification by the City relating to the Project, regardless of whether or not the City prepared, supplied or approved this Agreement, plans or specifications, or both, far the Project. The Property Owner further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, excluding fees and costs for special wunsel to be selected by the City or other outside counsel or consultants, if any, regarding any action by a third party challenging the validity of this Agreement or any approval or certification by the City relating to the Project, or asserting that damages, just compensation, restitution, judicial or equitable relief is due to personal or property rights 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. 4.7 Bindlag Effect of Agreement. To the extent not otherwise provided in Section 4.3 of this Agreement, the burdens of the Agreement bind, and the benefits of the Agreement inure, to the parties' successors in interest. 5 i 4.8 Relationship of the Parties. The contractual relationship between Ciry and Owner arising out of the Agreement is one of independent contractor and not agency. This Agreement does not create any third party beneficiary rights. 4.9 Notices. 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: If to City, to: Executive Director, Planning and Building Agency City of Santa Ana 20 Civic Center Plaza M-20 P.O. Box 1988 Santa Ana, Califomia 92702 telefarsimile (714) 667-1461 and, Ciry Attorney City of Santa Ana 20 Civic Center Plaza M-29 P.O. Box 1988 Santa Ana, Califomia 92702 telefacsimile (714) 647-6515 If to Owner, to: One Broadway Plaza, LLC 1200 N. Main Id.C 845 Broadway I.I.C 1200 North Main Street, Suite 900 Santa Ana, California 92701 attn: Michael Harrah telefacsimile (714) 543-9972 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. 6 i 5. DEVELOPMENT OF THE PROPERTY. 5.1 Existing Rules, Regulations and Pollctes. The rules, regulations and official policies governing the permitted use(s) of the Property, with respect to and only with respect to the permitted use(s) density, height, size of swctures and intensity of use of the Property, shall be the Pre-existing Approved Entitlements and all those rules, regulations, and policies applicable to the Property as of the effective date of this Agreement; provided, however, that nothing in this Agreement shall be deemed to apply to future discretionary approvals pursuant to the California Street Vacation Act, and other items to be reviewed and approved, approved with conditions, or denied, by the Planning Commission pursuant to the tertns of the Pre-Existing Approval Entitlements as set forth in Exhibit D to this Agreement, and that this Agreement does not apply or in any way constrain the City's discretion as to such future discretionary approvals. 5.1.1 Offsite Mitigation Measures. The of'fsite mitigation measures which must be constructed by Owner or City aze as set forth in Exhibit C to this Agreement. The design of all ofisite mitigation measures constructed by Owner shall be subject to approval by the City's Public Works Agency prior to issuance of an encroachment permit. The Public Works Agency shall provide to the Owner an update to the 2004 estimate of the costs such offsite mitigations measures contained in said Exhibit C prior to issuance of final map and building permit. Owner shall have one year from the effective date of this Agreement pursuant to section 1.6, above, to acquire the real property referenced in paragraph S.a. and 8 of Exhibit C and transfer title to the City, except as to the roundabout, for which Owner shall secure and transfer to City an easement (or other right to construct, maintain and use the property as a roundabout). City shall accept transfer of this title and easement. Owner shall deposit an amount equal to the estimate in cash for such ofl'site mitigation measures (including traffic studies) at the time called for in paragraphs S.a., 8 and 9 of Exhibit C. For all other items specified in Exhibit C, security in the form of bonds (i.e., a payment, a performance and a material bond) or other proof of ability to perform acceptable to the City's Executive Director of Public Works Agency shall be provided, together with an offsite subdivision improvement agreement, prior to recordation of final map. For those otFsite mitigation measures identified in paragraphs 1-4, S.b: 8 and 10 which have not been accepted by the City as complete prior to issuance of a building permit, no building permit shall issue until Owner deposits with the City cash; a direct draw, irrevocable letter of credit; or establishes an irrevocable, escrowed cash account in a form reasonably acceptable to the City Attorney of City, in an amount specified by the City's Public Works Agency to guarantee performance of said offsite mitigation measures; provided, however, that City Executive Director of Public Works Agency shall release or partially release the bonds previously provided at this point to the extent that they are duplicative of this new security. Any deposit shall be applied to such costs and shall be, within thirty (30) days written request to Owner, supplemented to cover the actual costs incurred. Except as to paragraph 9 of Exhibit C, City shall return any funds not spent on the offsite mitigation measures referenced in Exhibit C to owner within thirty (30) days, subject to City accounting practices, after completion of all items referenced in Exhibit C and issuance of a Certificate of Occupancy for the Project. ~L~% 7 i 5.2 Exclusion from Exlatiag Rules, Regulations and Potlcies. Pursuant to Government Code Section 65866, City retains the right to enact police power regulations in anon-discriminatory manner on the following matters not covered by section S.1 of this Agreement: a. Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with section 5.1 of this Agreement Owner and its suceessors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non-conflicting laws and regulations a9 may from time to time be enacted or awarded hereafter. Specifically, but without limitation on the foregoing, ouch non-conflicting laws and regulations include the following: (1) Taxes, assessments, fees and charges, except as otherwise specifically provided in this Development Agreement; (2) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code (including amendments to such codes); (3) Lawn, including zoning wde provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on acity--wide basis; and (4) Procedural rules of general City-wide application. 5.3 Design and Conatracdan Staadarda and 3pecificatloaa. The design and construction standards and specifications for all Project construction shall be subject to applicable design standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 Reserved. 5.5 l'+bture Discretionary Approvals. This Agreement shall not prevent the City, when considering requests for discretionary approvals not covered by Section 5.1 of this Agreement subsequent to the effective date of this Agreement, from applying new rules, regulations, and policies which are applicable to the Property, nor shall this Agreement prevent the City from denying or conditionally approving any subsequent applications for land use entitlements based on such existing or new rules, regulations, and/or policies; provided however, that such new rules, regulations, and official policies are of general application to all development within the City and are not imposed solely with respect to the subject property. In addition, this Agreement shall not prevent the City from exercising its police power to protect the health, safety, and welfare of the public. This police power, exercised in accordance with Section 5.2 of this Agreement, is paramount to any rights or obligations created or existing between the parties. However, except as provided in section 5.1, above, the City acknowledges g i that it shall not apply to the Project any subsequently adopted ordinance, regulation or policy that would adversely affect the design or reduce the size of the project, or the timing or sequencing of construction of the Project (including without limitation, through allocation of square footage or floor area allocation of water and sewer permits, school and traffic capacities and modifications of floor area rations to open space or other public improvements, and revisions to historical designations). 5.6 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and/or environmental review, which are existing or may be revised or adopted during the term of this Agreemrnt shall apply to the development of the Property. No newly adopted fee or charge imposed solely on commercial buildings exceeding ten (l0) stories in height or one hundred thousand (100,000) square feet size shall apply to development of the Property, unless said fee or chazge is mandated by federal or State ]aw. 5.7 Amendments or Addltioaa to Citywide Fee Programs. This Agreement shall not preclude the inclusion of end changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees' adopted by the City after the effective date of this Agreement, which shall be applicable to the Project or the Property provided that . they (1) aze standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, or (3) are not imposed to dupflcate any project design features conditions of approval, Agreements, or mitigation measures already contained in Environmental Impact Report No. 99-01 or this Agreement. 5.8 Condition Precedent to Issuance Of Any Building Permit. The Owner shall not be issued any building permit, or rough grading permit permitting grading exceeding twelve inches (12'~ in depth (except as provided in section 5.9(3), below), for the Project until it provides evidence that the Owner has obtained binding commitments for lease of not less than 50% of the net leasable area in the Project from tenants who would qualify as "Investment Grade Tenants" (BBB- or greater) as rated by either Standard & Poor's or Moody's rating agencies. Non-rated publicly held, or private companies with a rating of BB or BB+ may meet this requirement by providing a "Shadow Rating" from either agency depicting a minimum of a neutral credit outlook. Law firms shall provide evidence of a rating of "AV" from Mariindale- Hubbell or equivalent rating agency. Binding commitments to lease shall be in a form and content normally accepted by conventional lending institutions and subject to the review and approval of the City's Executive Director of Planning and Building, which approval shall not be unreasonably withheld. Owner shall have the right to commence demolition of existing non- historic buildings, and removal and relocation of historic buildings and rough grading (only to fire twelve inch (12'~ depth permitted by the first sentence of this section) prior to the review and approval of the City pursuant to this section. 5.8.1. Payment Of Prevailing Wage. For the provision of the payment of "Prevailing" and/or "Area Standard Wages" as appropriate, the Owner shall submit evidence that it has entered into a labor agreement with the Los Angeles and Orange Counties Building and 'l":~ 9 i Construction Trades Council. Said agreement shall also include provisions that encourage the referral and utilization, to the extent permitted by law, of qualified residents as journeymen, apprentices and trainees. An executed copy of the agreement shall be submitted to the City prior to the issuance of building permits. 5.8.2. No Redevelopment Subsidy. The Owner shall not be entitled to request or accept any agreement with the Santa Ana Community Redevelopment Agency for economic, debt service payments, or other assistance for the development of the Project. Failure to comply with this provision shall be deemed in and of itself to constitute a failure to in good faith comply with terms or conditions of this Agreement pursuant to the tams of Govenunent Code section 65865.1. 5.8.3 Minimum Cost of Constrnctioo. The core construction costs for the office building shall not be less than the 1tS Means "Medium" square footage estimate, including the installation cost of all mechanical and electrical equipment for a Class A high rise office building. 5.8.4. OCHSA Drop-Off Site. The drop offlpick up area for the Orange County High School for the Arts ("OCHSA'~ shall be approved by the City Engineer and be implemented by Ure Owner at its sole cost and expense before any demolition or construction is initiated for the Project. 5.8.5. Union Janitorial Service. Prior to receiving a Certificate of Occupancy, the Owner shall demonstrate to the City's Executive Director of Planning and Building evidence that it has entered into an agreement with a union janitorial service company for the provision of janitorial and maintenance services. 5.9 Historic Structures on the Property. (1) The Owner shall be responsible for the rehabilitation of the historic structure located at 1109 North Broadway (Koenig House) per City standards. (2) At the sole expense of the Owner the historic structure located at 1015 North Broadway (Twist-Basler House) shall be relocated to Cabrillo Pazk, set upon a new foundation, and supplied with all necessary utilities. The structure shall be rehabilitated to City standards by Owner at its sole cost which shall, however, be an offset from the Arts and Culture Fees paid by Owner for the Project. (3) After complying with the relocation obligations of subsections 5.9(1), if necessary, and 5.9(2), Owner may, notwithstanding the provisions of section 5.8 above, scarify the soil in the Scarifying Area (shown on Exhibit E to this Agreement) to a depth of three feet (3.0') and drive piles in the area shown oa Exhibit E to support the eventual 37-story office town. The scarifying and pile driving shall be done at a time and manner as set forth in plans submitted by Owner and approved by the Executive Director of the Public Works Agency, and only after written notice of the commencement date and estimated duration of the pile driving has been given by Owner to the Santa Ana Unified School District, Orange County High School of the Arts, and EI Sol Acadany. The scarified area shall be refilled after the pile driving is complete to its original grade as shown in the approved plans and, if a building permit has not been issued and construction of the Project has not commenced within ninety (90) days 10 i thereafter, landscaped, irrigated and fenced in accordance with plans submitted by Owner and approved by the Executive Director of the Planning and Building Agency. 5.10 Moratoria. Moratoria eeacted by the City for the public health, safety, and welfare, to the extent pem»tted by section 5.5., above, which are imposed on the Property or Project, shall toll the time periods set forth in this Agreement. City shall not apply to the Property or Project any moratoria which is adopted and which, either facially or as-applied, has no application except to (or primarily ta) the Property or Project. 5.11 City to Receive Contract Documents. Owner shall furnish City, upon written request, copies of contracts and supporting documents relating to the Project. 5.13 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the Citys existing regulatory process shall be governed by the terms of those approvals, and in no event shall such conditions be affected by the termination, cancellation, rescission, revocation, or default or expiration of this Agreement. 5.14 Compliance With Governmental Requirements. Owner shall carry out the design, construction, and operation of the Project in substantial confomtity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Owner or the Property, including all applicable federal and state occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, and all applicable disabled and handicapped access requirements, including, without the limitatioq the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code §4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Governmental Requirements'. 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve {12) months during the term of this Agreement, review the extent of good faith substantial compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter's stating that based upon information !mown or made (mown to the City Council, the City Planning Commission and/or the City Planning Director, the Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. f~ 11 i 6.3 Failure of Periodic Review. Cityrs failure to review at least annually Owners compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. 7. DEFAULT. 7.I Events of Default. Property Owner is in default under this Agreement upon the happening of one or more of the following events or conditions: (1) If a warranty, representation, or statement made or furnished by Property Owner to the City is false or proves to have been false is any material respect when it was made; (2) A fmding and determination made by the City following a periodic review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Property Owner has not complied in good faith with one or more of the terms or conditions of this Agreement; (3) Failure to comply in good faith with Governmental Requirements; (4) Any other event, condition, act, or omission which materially interferes with the intent and objectives of this Agreement. 7.2 Procedure upon Default. (1) Upon the occurrence of default, City shall give Property Owner (the "defaulting party's ninety (90) days written notice specifying the nature of the alleged default and, when appropriate, the manner in which said default maybe satisfactorily cured. ARer proper notice and expiration of said ninety (90) day cure period without cure, City may terminate or amend this Agreement in arcordance with the procedure adopted by the City as to all defaults that maybe cured within said ninety (90) day cure period. For defaults that cannot be cured within said ninety (90) day cure period, City may terminate or amend this Agreement in accordance with the procedure adopted by the City should at any time following said ninety (90) day period Owner fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. (2) City does not waive any claim of defect in performance by Property Owner, if on periodic review the City does not propose to modify or terminate this Agreement. (3) Non-performance shall not be excused because of a failure of a third person. 12 i (4) An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Property Owner, shall be sufficient to terminate this Agreement and a hearing on the matter shall not be required. (5) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the perfomrance of the obligation by the Property Owner. (6) All other remedies at law or in equity which are not inconsistent with the provisions of this Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Property Owner be entitled to any damages against City upon termination of this Agreement. 7.4 Institution of Legal Action. 1m addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any default or breech, to specifically enforce any covenants or Agreements set forth in the Agreement, or to enjoin any threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the purpose of the Agreement. Legal actions shall be instituted in the Superior Court of the Cotmty of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 8. ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1 Discretion to Encumber. This Agreement shall not prevent or limit Owner, in any manner, at Owner's sole and absolute discretion,lirom encumbering the Property or any portion of the Property or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvement. 8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Property or any part thereof and their successors and assigns shall, upon written request to City, be entitled to receive firom City written notification of any default by Owner of the performance of Owner's obligations under the Agreement which has not been cured within the same time period as provided in section 7.2, above, and said mortgagee or beneficiary shall have the right to cure such default within the same time amd such additional time as may be necessary to exercise it rights as a secured creditor; provided said mortgagee or beneficiary promptly and diligently exercises such remedies. 8.3 Releases. City agrees that upon written request of Property Owner and payment of all fees and performance of the requirements and conditions required of Owner by this Agreement with respect to the Property, or any portion thereof, City may execute and deliver to Owner appropriate release(s) of further obligations imposed by this Agreement in form and substance acceptable to the Orange County Recorder or as may otherwise be necessary to effect the release. 13 i 9. MISCELLANEOUS PROVISIONS. 9.1 Rnles of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall° is mandatory; "may" is permissive. If there is more than one signer of this Ageement, their obligations are joint and several. 9.2 Entire Agreement, Wslvers and Amendments. Ties Agreement constitutes the entire understanding and Agreement of the parties with respect to the matters set forth in this Ageement. This Agreement supersedes all negotiation or previous Ageements between the parties respecting this Ageement. All waivers of the provision of this Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this Ageement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, Califomia. Within ten (10) days following the effective date of this Ageement, a copy of this Ageement shall be recorded in the Official Records of Orange County, California. Upon the completion of performance of this Ageement or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, Califomia. 9.3 Protect as s Private Undertaktng. It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Ageement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this Ageement aze part of this Ageement. 9.5 Captions. The captions of this Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, constntction, or meaning of any of the provisions of this Ageement. 9.6 Consent. Where the consent or approval of a pazty is required in or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperalton. The parties shall cooperate with, deal with each other in good faith, and assist each other in the performance of the provisions of this Ageement. 9.8 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 9.9 ConOicts of Law. Tn the event that state or federal laws or regulations enacted after this Ageement has been entered into or the action or inaction of any other affected 14 i governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Agreement. The parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties teach an Agreement on the effect of such federal or state law or regulation upon the Agreement, the matter shall be scheduled for hearing before the Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. AC the hearing Owner shall have the right to offer oral and written testimony. 9.10 Recording. The City Clerk shall cause a copy of this Agreement to be recorded with the OfTce of the County Recorder of Orange County, California, within ten (10) days following the etTective date of this Agreement. IN WITNESS WHEREOF, this Agreement has been exocuted by the City of Santa Ana, acting by and through its Mayor, pursuant to Ordinance No. us-2666 , authorizing.such execution, and by Property Owner. Dated this ~~day of ~r~Q~, 2004. THE CITY OF SANTA AN/A~ gy G'~.--.--- DAVID .REAM City Manager Approved as to Form: anap By JO PH . FLE HER 6 ~&P~If t1F 77~' t:WIYYrlt Atto ey 15 (hr ; i ONE BROADWAY PLAZA, LLC, sy: MIC L F. M grog Member 1200 N. MAIN, LLC By: MI Managing Member 845 BROADWAY LLC sy: MIC . H Managing Member 16 i CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Orange } SS. On August 31. 2004, before me, Claudia M. Fernandez-Shaw, Notary Public None and rilk of OtEcc (e.g., "teas Doe, Notary Public") personally appeared David N. Ream N.a.(n wa~.t [?7personally !mown to me ? proved to me on the basis of satisfactory evidence to be the person whose namear~ subscribed to the within instrument and aclmowledged to me that$lahali>u~executed CI.\WU M. FENNANDEL3lIAM~ the same in authorized P.otnm~ioni l]1aa74 capacityfiea), and that by ic.~. auam~~ ca„~, ~ signature(4jon the instrument the person , or tyctmm. E~Na.Anr78.7000 the entity upon behalf of which the p~nf~ ' acted, executed the instrument. 1TNESS y hand and official seal. aHrW.PfNOryPWle PIp NgNy swl Anna OPTIONAL Though the injormatton below is not required bylaw, it Wray prove valuable to persons re(ytrtg on the document And could prevent fraudulent removal and reaaachment ojtkis form to another document Descr(ptlon of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ? Individual top nr dfnob bee ? Corporate Officer -Title(s): ? Partner ? Limited ? General ? Attorney in Fact ? Trustee ? Guardian or Conservator ? Other: i State of California County ofOrange SS. On 7~~ ~ ~ e'1" before me, Rosa S. Barela. Notary Public Dak Name and Tide of Otaeei (e.F, "Jane Doe. Noury Public' personally appeared Michael F. Harrah H.~n nvnn personally known tome proved to me on the basis of satisfactory evidence to be the person(s3 whose name(s) ids are subscribed to the withi~+ tnstrumrnt and acknowledged to me that k~hddrey executed Rosas.auu:u the same in his/her/their authorized _ cNnnd.NonstaaNOS capacity(iss), and that by Notary PubRe- CNManda ~ signature(a) on the instrument the person(s), or fkanaa Ceunry shcm.n.e~:asrrr9o.zaos the entity upon behalf of which the person(s) acted, executed the instrumrnt WITNESS my head and official seal. d1br~luWe Ku Wurad Abr State of California County of Orange ~ SS. On 7 J ~ ~ ~ ~ "'1' before me, Rosa S. Barela. Notary Public Ikk Nama and Tine ornllfeer (e./., "Jana Doe. Nomy PuNie') personally appeared Michael F. Harrah U personally known to me proved to me oe the basis of satisfactory evidence to be the person(s) whose name(s) rare subscribed to the within instrument and Ros" s• exit~w acknowledged to me that ey executed COTTINidn f 13031 a7 Notary Pu01k- CNibrnla the same la IClr euthoriud t7nnae Cau~r capacity(isa} and that by » wycon.,.~,~irearwy3o,zass signature(s) on We instrument the person(sj, or the entity upon behalf of which the person(s) acted, executed the instrument WI'T'NESS my hand and official seal. ~o~ yI, j~~iz,,c.,~~ i State of Califomia County of Orange SS. On 7~/ ~ f ~ ~ before me, Boca S. Harela. Noterv public Gate T None and Title of Office (aa., "Jane Doe, Nauy Publie'~ personally appeared Michael F. Harrah n.~+u~>ta.n personally known tome proved to me on the basis of satisfactory evidence to be the person(a) whose name(s) Sara subscribed to the within instrument and r:osn s. awr_u acknowledged to me that <h~'ahdthey executed _ Cammiglbn a 13(1310] aa the Sartle In ll hCtf4lfCtt 8utI1071ZCd Notary Public- CaNfomfa T capacity(iee} and that by (~,3JhM~iliYlr Orange Caunry NbCamt. ES~dree Nty30.3006 signature,(ay on the inatrrurrreat the Person(s), 07 the entity upon behalf of which the person(s) acted, executed the instrument. WIT~NE,~JSS~my~ha~~nQd and official seal. ar~..mna.,twu t~na..tw neow State of California County of Orange ~ SS. On before me, peh Name twd 7titk olOfa~ (e.a•, "Jtete Doe, No1ry Publk') personally aPPear'ed Napa/ U ? personally known to me ? proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/shelthey executed the same in his/her/their authorized capecity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. s....due.r.+r .t~.Na..~.t,ue.. i ORDER NO. 7002103-23 EXHIBIT "A" {LEGAL DESCRIPTION) PARCEL A; THAT PORTION OF LOT 8 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE EAST LINE OF WEST STREET (NOW KNOWN AS BROADWAY), WITH THE SOUTH LINE OF WASHINGTON AVENUE, AS SHOWN ON SAID MAP; THENCE EAST 126.00 FEET ALONG SA]D SOUTH LINE TO THE NORTHWEST CORNER OF THE LANG DESCRIBED IN THE DEED FROM A. 5. DUNHAM TO ROBERT MC FADDEN; THENCE SOUTH 90.00 FEET ALONG THE WEST LINE OF SAID LAND; THENCE WEST 126.00 FEET, PARALLEL WITH SAID SOUTH LINE OF WASHINGTON AVENUE, TO SAID EASE LINE OF WEST STREET; THENCE NORTH 90.00 FEET ALONG SAID EAST LINE TO THE POINT OF BEGINNING. PARCEL 8: INTENTIONALLY OMITTED PARCEL C: INTENTIONALLY OMITTED PARCEL D: THAT PORTION OF LOT 6 OF WALTON'S ADDITION TO TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT 14 FEET SOUTH OF THE NORTHWEST CORNER OF SAID LOT 6, AND RUNNING THENCE EAST, PARALLEL WITH THE NORTH LINE OF SAID LOT 6 A DISTANCE OF 164.84, MORE OR 1E55, TO THE NORTHWEST CORNER OF THE LAND CONVEYED TO ARNOLD 0. WICKLUND AND WIFE, BY DEED RECORDED 1N BOOK 883 PAGE 195, OFFICIAL RECORDS; THENCE SOUTH ALONG THE WEST LINE OF SAID LAND CONVEYED TO WICKLUND AND WIFE 60 FEET; THENCE WEST, PARALLEL WITH THE NORTH LINE OF SAID LOT 6, 164.84 FEET, MORE OR LESS TO THE WEST LINE OF SAID LOT 6, AND THENCE NORTH ALONG THE WEST LINE OF SAID LOT 6, 60 FEET TO THE POINT OF BEGINNING. EXCEPT THE WEST 37.1 FEET INCLUDED IN BROADWAY STREET. V2J Page 4 i ORDER NO. 7002103-23 PARCEL E: BEGINNING AT A POINT ON THE WEST LINE OF lOT 6 OF WALTON'S AODII-ION TO THE TOWN OF SANTA ANA, AS SHOWN ON A MAP THEREOF RECORDED 1N BOOK 12, PAGE 98 OF MISCELLANEWS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, 79 FEET SOUTH OF THE NORTHWEST CORNER OF SAID LOT 6; FOR PURPOSE OF THIS DESCRIPTION, THE CENTER UNE OF WEST STREET, AS SHOWN ON SAID MAP IS CONSTRUED TO BE THE WEST LINE OF SAID LOT 6; RUNNING THENCE 159 FEET, MORE OR LESS, TO A POINT 155 FEET WEST OF THE EAST LINE OF SAID LOT 6; THENCE SOUTH 50 FEET; THENCE WEST 159 FEET; THENCE NORTH 50 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM, THE WEST 37.1 FEET INCLUDED IN BROADWAY. PARCEL F: COMMENCING AT A POINT ON THE WEST LINE OF LOT 6 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, 124 FEET SOUTH OF THE NORTHWEST CORNER OF LOT 6; RUNNING THENCE EAST 162 FEET TO A POINT 152 FEET WEST OF THE EAST LINE OF SAiD LOT 6; THENCE SOUTH 56 FEET; THENCE WEST 162 FEET; THENCE NORTH 56 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM, THE WEST 37.1 FEET INCLUDED IN BROADWAY. PARCEL G: THAT PORTION OF LOTS 2, 3 AND 6 OF WALTONS ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF l05 ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF 7ENTH STREET, AS GRANTED TO THE CITY OF SANTA ANA BY DEED RECORDED IN BOOK 105, PAGE 3B6, OF DEEDS, RECORDS OF SAID ORANGE COUNTY, CALIFORNIA, WITH THE EAST LINE OF SAID LOT 2, AND RUNNING THENCE NORTH ALONG THE EAST LINE OF SAID LOTS 2, 3 AND 6, A DISTANCE OF 386 FEET TO THE NORTHEAST CORNER OF THE LAND DESCRIBED IN THE DEED TO BASLER, INC., A CORPORATION, RECORDED APRIL 20, 19Sb, IN BOOK 3481 PAGE 414, OF OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE WEST ALONG THE NORTH LINE OF SAID LAND, 152 FEET TO THE EAST LINE OF 1TiE LAND DESCRIBED IN THE DEED TO HERMAN H. BASLER AND WIFE, RECORDED JUNE 29, 1948, IN BOOK 1660 PAGE 544, OF OFFICIAL RECORDS OF ORANGE COUNTY; THENCE NORTH ALONG SAID EASE UNE, 9 FEET TO THE NORTHEAST CORNER OF SAID LAND; THENCE WEST ALONG SAID NORTH UNE AND THE NORTH LINE OF SAID LAND DESCRIBED IN DEED TO HERMAN H. BASLER AND WIFE, RECORDED MAY 20, 1948, IN BOOK 1639 PAGE 310, OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, 162 FEET, MORE OR LE55, TO THE WEST UNE OF SAID LOT 6; THENCE SOUTH ALONG THE WEST UNE OF SAID LOTS b, 3 AND 2, A DISTANCE OF 395 FEET, MORE OR LESS, TO SAID NORTH UNE OF TENTH STREET; THENCE EAST ALONG THE NORTH UNE OF TENTH STREET, TO THE POINT OF BEGINNING. PARCEL H: BEGINNING AT A POINT 156-1/2 FEET SOUTH AND 162 FEET EAST OF THE NORTHWEST CORNER OF LOT 6 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS, OF LOS ANGELES COUNTY, CALIFORNIA, SAID POINT OF BEGINNING BEING 152 FEET WEST OF THE EAST UNE OF SAID LOT 6; THENCE SOUTH 3 1/2 FEET; THENCE WEST 152 FEET; THENCE NORTH 32-1/2 FEET TO THE POINT OF BEGINNING. Page 5 i ORDER NO. 7002103-23 EXCEPTING THEREFROM, THE EAST 30 FEET INCLUDED IN SYCAMORE STREET. PARCEL I: BEGINNING AT A POINT 134 FEET SOUTH AND 162 FEET EAST OF THE NORTHWEST CORNER OF LOT 6 OF WALTON'S ADDITION TO THE TOWN Of SANTA ANA, AS SHOWN ON A MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, SAID POINT BEING 152 FEET WEST OF THE EAST LINE OF SAID LOT 6; THENCE EAST 152 FEET TO THE EAST LINE OF SAID LOT 6; THENCE SOUTH 32.1/2 FEET; THENCE WEST 152 FEET; THENCE NORTH 32-1/2 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM, THE EAST 30 FEET 1NGLUDED IN SYCAMORE STREET. PARCEL J: THAT PORTION OF LOT 6 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 12 PAGE 98 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT ON THE EAST LINE OF SAID LOT 6 OF WALTON'S ADDITION, WHICH SAID POINT IS 74 FEET SOUTH OF THE NORTHEAST CORNER OF SAID LOT 6, AND WHICH SAID POINT IS A150 THE SOUTHEAST CORNER OF THAT TRACT OF LAND CONVEYED TO L.G. BUTLER AND WIFE, BY DEED RECORDED IN BOOK 337, PAGE 208, OF DEEDS; THENCE SOUTH 50 FEET; THENCE WEST 155 FEET; THENCE NORTH 50 FEET TO THE SOUTH LINE OF THE ABOVE DESCRIBED PARCEL CONV£YEO TO BUTLER; THENCE EAST ALONG SAID SOUTH LINE, 155 FEET TO THE POINT OF BEGINNING. PARCEL K: THAT PORTION OF LOT 6 OF WALTON'S ADDMON TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE EAST LINE OF SAID LOT 6, 14 FEET SOUTH OF THE NORTHEAST CORNER THEREOF; THENCE WEST PARALLEL TO THE NORTH LINE OF SAID LOT 6, 150 FEET; THENCE SOUTH, PARALLEL WITH THE EAST LINE OF SAID LOT 6, 60 FEET TO THE SOUTH LINE OF THE LAND CONVEYED TO L.G. BUTLER AND WIFE BY DEED RECORDED JUNE 9, 1919 IN BOOK 337 PAGE 208, OF DEEDS; THENCE EAST ALONG SAID SOUTH LINE 150 FEET, MORE OR LESS TO THE EAST LINE OF SAID LOT 6; THENCE NORTH 60 FEET TO THE POINT OF BEGINNING. PARCEL L: BEGINNING AT A POINT ON THE WEST LINE OF SYCAMORE STREET, 120 FEET SOUTH OF THE SOUTH LINE OF WASHINGTON AVENUE; RUNNING THENCE SOUTH ALONG THE WEST LINE OF SYCAMORE STREET, 85 FEET MORE OR LESS, TO A POINT 14 FEET SOUTH OF THE NORTH LINE OF LOT 6 OF WALTON'S ADDITION TO TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 12 PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA; RUNNING THENCE WEST, PARALLEL TO THE NORTH LINE OF LOT 6, 122.74 FEET, MORE OR LESS TO A POINT 125 FEET EAST OF THE EAST LINE OF BROADWAY; THENCE NORTH 84 FEET MORE OR LESS TO A POINT 125 FEET EAST DF THE EAST LINE OF BROADWAY, AND 120 FEET SOUTH OF THE SOUTH LINE OF WASHINGTON AVENUE; THENCE EAST 122.74 FEET MORE OR LESS TO THE POINT OF BEGINNING. Page 6 i ORDER N0. 7002103-23 PARCEL M: COMMENCING AT A POINT ON THE SOUTH LINE OF WASHINGTON AVENUE, 60 FEET WEST OF THE INTERSECTION OF THE WEST LINE OF SYCAMORE STREET WITH SOUTH LINE OF WASHINGTON AVENUE; RUNNING THENCE SOUTH PARALLEL WITH THE WEST LINE OF SYCAMORE STREET, 120 FEET; THENCE WEST 60 FEET; THENCE NORTH 120 FEET TO THE SOUTH LINE OF WASHINGTON, THENCE EAST 60 FEET TO THE POINT OF BEGINNING, AND BEING A PART OF LOT 8 OF WALTON'S ADDITION TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 12, PAGE 9B OF MISCELLANEOUS RECORDS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA. PARCEL N; BEGINNING AT THE INTERSECTION OF THE WEST LINE OF SYCAMORE STREET WITH THE SOUTH LINE OF WASHINGTON AVENUE; THENCE SOUTH ALONG THE WEST LINE OF SYCAMORE STREET, 120 FEET; THENCE WEST 60 FEET; THENCE NORTH 120 FEET TO THE SOUTH LINE OF WASHINGTON AVENUE; THENCE EAST ALONG THE SOUTH LINE OF WASHINGTON AVENUE, 60 FEET TO THE POINT OF BEGINNING, AND BEING A PART OF LOT 8 OF "WALTON'S ADDCRON TO THE TOWN OF SANTA ANA, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 12, PAGE 98 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA. Page 7 52 - 4 ~ ~ L WASHINGTON AVENUE = I ~a WAL TON'S COL UMB(A ® i ~ La7, ~ c W W S ~ L0I d f ~ 1~ ar m_°.• f? i x - - I'!' ~ f er.°ry eo O © a ~ L01 J I nr.°.• 'I eP t ~ i : i.ae' .f• y ~ lO Lor e, O f o Y ear.• y u°• I~ Y 31 x , © _ , m°.~ _ . O V for ~ O d @, d r = a 6. Leswoxrr. for s y ~Wi I1 ~~1W~ ~c~~ - G s o~~ 562 TfRS MAP W PREPARED F R [ zz~~ COUNTYASS SSO.RDEPT. RF Lor s THE ASSES R MAKES NO UAI ~ c r~6-'~ 0 ~ ITS ACCU NOR ASSUM S A t6, "c O fOROTNER ES. NOT TO ER: o ~ ~ ~ ° Lse9 "c. ALL RIGHTS SERVED. `~•e~ Lor J OCOP ORANGECOU TY ~ z~a.z _ f7 W. ~ ~ ~ rem 'I 2~~~="G~ © W LOr 7 ~ LOT Q a I -_i ~ ~ A~ ~ 1.aR L079 4 ~ nae.' Lor 7 Ln TRACT " nQysK _ ~ a TENTH sr~eEEr 5 - Tf -ASSESSOR'S BCOCX 6 •SSESSOR': i --~E- ~ ~ i _ ~ ' ¦ x ~ o- I ~ i i ii i ~ ~ ~ i~ ~ I ~ iii' ' ~ I i " ~i u • I _ 4 n. ~ I r- Y- I - ~ I .I i ~ ~ i' ii 1 ~J ~1 y 'E I ~ ~ - j ! ~I ~~e I w j ~ ~ i u A _a ~---u b - , ~ lu lil?ulli = 1 En I~ I_hI I I I I _ II ~ ~ ~ I ~ o ~ « K n t~v o n I j ~ ~ C ;G!' ~ ONE BIOADWAY PLVA ~1~ ~ { SANtA.WA.GVl101 A i EIKHIBIT C OFF-SITE IMPROVEMENTS Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering 0 1. Install a new traffic signal at Mair?15`~, $200,000 Owner Building including communication cable and permit conduits to connect to the City's Traffic Management Center, and striping. 2. Install a new traffic signal at $200,000 Owner Building Sycamore/15`s, including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 3. Install a new traffic signal at Santa Ana $200,000 Owner Building Blvd./French St., including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 4. Construct landscaped median on $100,000 Owner Building Broadway at the Broadway/Pazking permit Structure egress. S.a. Acquire necessary ROW for $2,400,000 Owner, Final Map roundabout at the intersection of 10'" Street unless City and Sycamore. undertakes per section 5.1.1 S.b. Construct roundabout at the $600,000 Owner Building intersection of 10'h Street and Sycamore, permit with 10'h Street one-way EB, including necessary striping, traffic signs, pedestrian crosswalks and pedestrian refuge areas. Right-of--way shall be acquired at SlW, S/E and N/W comers by developer. i Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering r 6. Restripe: (1) WB Santa Clara to provide $50,000 Owner Building one LT lane and one shazed LT/RT lane; Permit (2) NB Grand Avenue from Fruit Street to 14°i Street at Santa Ana Blvd/I-S HOV ramps to provide three NB travel lanes; (3) I-5 NB off-ramps to provide a WB LT lane, a shared LT/RT Iane and a RT lane at rand Ave. 7. Remove existing on-street parking stalls $300,000 Owner Building and parking meters on Main Street from Permit Civic Center Dr. to Buffalo St., restripe and slurry sea! this Main Street segment to provide three NB and two SB travel lanes, and construct median on Main St. south of 10th Street. 8. Acquire necessary ROW and construct $6,500,000 Owner, Final Map southbound RT lane at Main/17`h and unless City Broadway/17's, inctuding striping, traffic undertakes per signal modification, and ADA compliant section 5.1.1 wheel chair ramps. 9. Implement neighborhood traffic plans to $1,200,000 City Building mitigate changes in traffic patterns or (actual cost, Permit increased cut through traffic resulting from not an the One Broadway Plaza Project in French estimate) Park, French Court, Willard, Floral Park, West Floral Park, and Washington Square Neighborhoods. Traffic plans costs shall include traffic studies, staff time to process neighborhood tratTc plan, and the construction of appropriate semi-diverters, die nal diverter and treat cl s i Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering 10. Reconstruct 10'" St. one-way EB and $850,000 Owner building Washington Ave. one-way WB between Permit Main St. and Broadway, which will include: (1) traffic signal modifications at Mam/Washington, Main/10'h, Washingtor?Sycamore, Broadway/Washington, and Broadway/10`h (2) restriping streets and intersections, and (3) installing appropriate traffic signs (4) retiming traffic signals (5) constructing ADA compliant wheel chair ramps. SUBTOTAL $12,600,000 Notes: 1. Estimated costs are based on 2004 year of expenditure. Owner shall fund item S.a. and 8 (if necessary) based on estimated actual construction and right-of--way costs at time of indicated funding event, and supplement if necessary. 2. Items not complete and accepted by the City shall be fully bonded for pursuant to an ofI'site subdivision improvement agreement, prior to issuance of final map. 3. All improvements, including improvements to be constructed by Owner and not City, shall be completed and accepted by City prior to issuance of Certificate of Occupancy. i EXHIBIT D Remaining Discretionary Approvals 1. Vacation of Sycamore between Tenth Street and Waahiagtoa Street, sad transfer of fee title, i<necessary, to Owner. 2. Remsbsiag Dlscretlonary Approvals Speetfled in Oae Broadway Plaza Specl~c Development District (SD-7~, a true and correct copy of which follows: a. Section T~~-lli. b. Sectloa 7-5. c. Sectloa 7-7. d. Sectloa 7-8. 3. Uses permitted is SD-75 with the issuance of a conditloaal use permit. EXHIBIT D-i i One Broadway Plaza Specific Development District (SD-75) TABLE OF CONTENTS SECTION 1. Applicability of Ordinance SECTION 2. Purpose SECTION 3. Goals. Objectives and Policies SECTION 4. Permitted Improvements SECTION 5. Pem?itted Uses SECTION 6. Conditionally Permitted Uses SECTION 7. Development Standards 1. Floor Area Ratio 2. Parcel Size 3. Building Envelopes 4. Office Tower a. General Requirements b. Bullding Setbacks c. Building Height d. Screening e. Elevations f. Signs 5. Parking Structure a. General Requirements b. Building Setbacks c. Building Height d. Screening e. Elevations f. Landscaping g. Signs 6. Parking and Circulation 7. Plaza Design 8. Public Art EXHIBIT D,2 I C~ i One Broadway Plaza SDeciflc Development District (SD-751 SECTION 1 APPLICABILITY OF ORDINANCE The specific development zoning district, as authorized by Chapter 41, Division 26, of the Santa Ana Municipal Code, is spec~cally subject to the regulations contained in this ordinance for the express purpose of establishing use district regulatbns. All other applicable chapters, arUdes and sections of the Santa Ana Munidpal Code shall apply unless expressly waived or superseded by this ordinance. Use district regulations established in Chapter 41, Article III, of the Santa Ana Munidpal Code for zoning districts other than the SD zoning district may be Incorporated herein by reference. SECTION 2 PURPOSE The Specific Development No. 75 (SD-75) use distrid regulations are hereby established for the express purpose of protecting the health, safety and general weHare of the City by encouraging the use of Innovative planning concepts and principles and promoting and enhancing the value of properties and encourage orderly development. 'the SD-75 regulations will establish a professional district that will exclusively entitle a 37-story, 518,003 square foot office tower at the northeast comer of Tenth Street and Broadway with a historic setting further north along Broadway to Washington Avenue. This area wilt be primarUy a professional office district with support services and eating establishments. SECTION 3 GOALS. OBJECTNES AND POLICIES The One Broadway Plaza Specific Development District Is located within the midtown area of the City. The One Broadway Plaza Specific Development District encompasses a large established city block txwnded by Washington Avenue to the north, Tenth Street to the souti,, Sycamore Street to the east and Broadway to the west. The One Broadway Plaza Spedfic Development District maintains a historic character along the northwest portion of the district, with a number of buildings dating from the early years of development in Santa Ana. The project site Is surrounded by the CivlcJProfesslonal, Finandal, and the Community Specialty Retail zones of the Midtown Specific Plan. The One Broadway Plaza office tower is intended to be a major landmark In the midtown section of the City of Santa Ana. In addition, the various activities planned for this site wAl result In the project becoming a node, or 2 i place of activity. The objectives of the One Broadway Plaza speciftc development plan Incude the following: • A landmark office project along Broadway at the center of the Midtown Specific Plan. • Maintain the existing streetscape pattern including sidewalk design, mature palm trees and historic light fixtures. • Maintaln the scale and character established by the existing historic structures along the north end of the district. • Maintain large open setbacks adjacent to Broadway. • Encourage revitalization of existing properties for a variety of professional office uses. • Enhance the pedestrian experience through the development of new plaza areas and water features at the Intersectlon of Sycamore Street and Tenth Street and Broadway and Tenth Street. SECTION 4 PERMTTED IMPROVEMENTS Improvements permitted on the project slte Include either one of the following: 1. An Iconic office tower of no less than 493 feet tall, approximately 37 stories, 518,300 square feet of building area with a destination restaurant at the top two levels of the tower. a. The project site shall be no less than 4.339 acres b. A nine level (one subterranean and eight above grade), 78 foot high parking structure, with a minimum of 2,483 parking spaces. c. The renovation and rehabilitation of four existing structures located to the north of the office tower. The structures are those addressed as 1103, 1111, 1115-17 and 1211 North Broadway. 2. All other permitted improvements shall comply with the Midtown Specific Plan, Chapter 7, Broadway Corridor District, Development Standards. SECTION 5 PERMITTED USES The category of permitted land uses to be included within the project include: Professional and business offices, banks and similar finandal institutions, service and commeroial retail uses and restaurants. If a use is for any reason omitted from those speGfied as permissible, or ff an 3 i ambiguity arises conceming the class~catbn of a partlcular uae, the determination shall be at the discretion of the Planning Manager. 1. Professional, business and administretive offices and services, including but not limited to employment agencies, advertising agencies, escrow agencies, accountants, insurance, attorneys, architects, engineers, planners and other similar uses. 2. Banks, finance, Insurance and real estate offices. 3. Service and commercial retail uses which shall be limited to: a. Bookstores b. Stationery shops c. Gift stores d. Dry cleaner e. Flair salon f. Travel agent g. Copy center h. MaiUpostal center i. Tailor j. Shoe repair k. Art supply I. Office supply 4. Cafes and restaurants, except fast food and/or take out restaurants {Added by the Planning Commission on February 23, 2U04). 5. Florists 6. Phamraaes 7. Day care faalities 8. Museums, Nbreries and galleries 9. AAiats' studios SECTION 6 CONDRIONALLY PEl4MfTTED USES The foNowing uses are pemritted upon the approval of a conditional use permit rn accordance with the Santa Are Munkipal code: 1. Nightclubs, bars and indoor entertainment uses whether freestanding or part of another permitted or conditionally permitted use, except adult entertainment businesses 2. Establishments selling or serving alcoholic beverages 4 i 3. Coffee houses 4. Banquet fadlities 5. Uses open after midnight to 5:00 a.m. 6. Helipads 7. Fast food and(or take out restaurants (Added by the Planning Commission on February 23, 2004). SECTION 7 DEVELOPMENT STANDARDS The One Broadway Plaza Spedfic Development District is intended to alkx+v the development of a landmark office tower and affiliated parking garage while maintaining some of the historic structures located on the northwest side of the district. The followirwg general development standards are applicable to this project: 1. FkxxArea Ratb (FAR.i The required floor area ratio for the project site shall be 2.9, or 530,487 square feet of development. The FAR is calculated by dividing the total square footage of the office building plus the existing structures to remain by the total square footage of the project site. Consistent with the General Plan, the parking sbucure is not inducted in the FAR calculation. This FAR includes the proposed office tower (518,003 square feet) and the structures that will remain on the project site (12,484 square feet). The FAR for the existing structures shall remain at 0.5 or leas. 2. Parcel S'¢e The One Broadway Plaza parcel size shay be 4.339 acres. Subdivision of the parcel is not pertnilted. 3. Buiklino Envelopes Height and yard areas established for the existing sUuctures and the office tower define the permitted building emvebpes in the One Broadway Plaza Spedfic Deveopment District: With the exceptions of the office tower and parking structure, all buikdings shall maintain a lower scale character no taller than 35 feet or 3-stories, whichever is less. 4. Office Tower The basic form, size and location of the office tower as Illustrated in the applicant's plans are hereby approved. In order to address certain outstanding details, however, revised plans conforming with q, 5 ~ 1(vaf~V i Sedan 7-4-e-iii of this ordinance shall be submitted to and be approved by the Planning Commissan prior to issuance of any building permits. a. General Requirements I. The office tower shall remain consistent with the approved site plan as shown in Exhibit 1. b. Building Setbacks Setbacks at ground level are established to enhance pedestrian space throughout the district, create compatible relationships between existing and future building street elevations and recognize opportunities to create new open space resources, such as plazas, pedestrian ways and landscaped areas. The front yard is one of the most important characteristics of Broadway and maintenance of these landscaped open spaces Is crucial to preserving the streetscepe. l1Aa}or setback conditions are discussed beknv by street: i. Broadway: The One Broadway Plaza office tower shall maintain a building setback of 20 feet. This setback area may include hardscape as shown on the approved plaza plan. For exlsting buildings, a setback of 20 feet shall be maintained. The existing structure at 1111 North Broadway shall maintain a minimum setback of 15 feet. ii. Tenth Street: A 12-foot building setback shall be required for the office tower. Hardscepe, landscape and water features shall be provided in the required setback as shown on the applicant's Landscape Plan dated February 4, 2004 (Exhibit 2j. iii. Washington Avenue: The 15-foot {andscaped setback for the existing structure shall be maintained. c. Building Height The approved height for the office tower Is approximately 493 feet. Modificatans to the tower's approved building height or number of stories, which represent eRher an increase or decrease, shag not be allowed. The existing buildings along Broadway shall maintain their exlsting height and shah not exceed 35 feet. 6 i d. Screening All appurtenances shall be located outside any required setback and shall be screened from view, e. Elevations i. Exterior elevations shall incorporate a translucent, rxxw reflective glass in a light green tone consistent with the materials board sample provided by the applicant and as approved by the Planning Commission and City Council. li. The structural system of the building shall be visible from the exterior elevatons consistent with the plans approved by the Planning Commission and City Councl. iii. Incorporate an arcade or ground level "skirC to provide a trensitan between the tower and pedestrian level. Plans satlsfying this requirement shall be submitted to and must be approved by the Planning Commission prior to the issuance of any building permit. 5. Parkins Structure The basic form, size and location of the parking structure as illustrated in the applicant's plans are hereby approved. In order to address certain outstanding details, however, revised parking structure plans shall be submitted to and be approved by the Planning Commission prior to Issuance of any building permits. The revised plans shall comply with the following: a. General Requirements i. No parking areas above or below grade shall encroach into required setbacks. ii. Subterranean levels shall use offset sloping ramps to allow for open and unobstructed visibility for floor surveillance. III. The parking structure shall maintain a minimum vertical cearence of 11 feet on the street level, with the exception of the entry at Sycamore Street. The entry area shall maintain a vertical clearance of 21 feet to fadlitate the loading and unbading function as well as allow trash truck access. iv. On all other levels, the parking structure shall maintain a minimum vertical dearance of eight feet, two inches. ~/~t 7 ~i% v. Glare from the parking structure lighting shall not be visible from the plaza level or any public right-of-way. vi. The ceiling of all parking levels shall be painted white and be maintained to improve illumination and enhance safety within the parking structure. vii. The parking structure shall be completed, shall have been finaled by the Building Divisan and be fully operatbnal prior to arty occupancy of any building or use, or portion thereof, for which the structure provides parking. viii. The parking structure shall contain a minimum of 2,463 parking spaces, which are allocated as follows: a) 1470 spaces for the office tower b) 50 spaces for ground level retail uses (10,000 square feet) c) 180 spaces for restaurant uses (18,000 square feet) d) 29 spaces for offices uses within existing buildings (9,627 square feet) e) 29 spaces for restaurant uses within existing buildings (2,857 square feet) f) 30 spaces to replace parking displaced on Sycamore Street g) 100 spaces to replace parking displaced on Main Street h) 110 spaces to replace existing surface parking bt for 1200 N. Main Street i) 12 spaces to replace existing surface parking lot for 1111 N. Broadway j) The remaining 453 parking spaces may be used for other uses in the area b. Building Setbacks i. Broadway: The minimum required setback for the parking structure is 124 feet as measured from the properly tlne. ii. Washington Avenue: A landscaped setback of 15 feet shall be required. fil. Sycamore Street: There shall be no setback requirement. 8 i iv. Tenth Street: The minimum required setback is 145 feet as measured from the property line to the entrance to the parking structure. c. Building Height The ma~dmum allowable height of the parking atrukxure is 78 feet. d. Screening All appurtenances shall be located outside any required setback and shall be screened from view. e. Elevations i. The north and east elevations shall Incorporate architectural cues and proportions found along Main Street to create an architectural screen as a visual enhancement to the existing commercial corridor. ii. Exterior walls shall exhibit horizontal rather that sloping design elements. iii. The exterior of the parking structure shall be painted a soft, earth tone color as approved by the Planning Division. Brighter and darker colors, Including dark green, shall be prohibited. iv. Decorative grillwork or landscape materials shall be placed between wall and floor of the higher parking level. v. Elevators shall be located so they are visible to the publk;. The elevator cabs shall have glass facing the public view. vi. The parking structure shall comply with the Santa Ana Municipal Code sections pertaining to the Police Department's Security requirements, including parking bt lighting levels. vii. The parking structure shall comply with the Santa Ana Poice ~ Department's parking structure design guidelines. t. Landscaping: 9 i. Landscaping planters incorporated into the parking structure shall have a minimum planter dimension of 4-feet wide and 4- feet deep. An internal drainage system and waterproofing of the planters shall be provided along wRh an automatic drip- type irrigation system. ii. A trellis shall be incorporated into the north and west building elevations where blank walls oxur on the structure. The trellis material shall be constructed of decorative and durable materials and shall cover a minimum of 60 percent of the blank wall. The trellis details shall be inducted In the protect landscape plan and be approved prior to building permit issuance. iii. Canary Island Pines, Deodar Cedars and River She-Oaks shall be planted along the Broadway and Washington Avenue elevations. The trees shall be planted at a minimum of 30 feet on center as shown on a landscape plan to be approved by the Ciys Landscape Development Associate prior to the issuance of building permits for the parking structure. The landscape plan shall be fully implemented prior to the Issuance of any certificate of occupancy. iv. The size of the trees to screen the parking structure along Washington Avenue and Broadway shall be a minimum 120. inch box tree. g. Signs i. All signage shall comply with fhe Santa Ana Municipal Code. ii. Prior to issuance of any sign permits or certificates of occupancy for any building or portion thereof, a comprehensive sign program for the entire site, Inducting directional signs and graphics for the parking structure, shall be submitted to and be approved by the Planning Commission. 6. Parkino/Circulation A student drop-0ff area shall be created in the parking lot of 920 North Main Street for the exclusive use of the Orange County High Scholl of the Arts. The minimum standards for this function indude: a. Prior to Issuance of any buikiing permits, construct a raised center median on Main Street per a Street Improvement Plan to be approved by the Public Works Agency. 10 i b. Prior to Issuance of any building permits, construct a two-way drop-off zone. Each lane shall have a minimum width of 18 feet. A yellow line approximately one toot in width shall be painted to separate the two drive-thru lanes. The plans shall be submitted to the Planning Divlsbn and Public Works Agency for approval. c. Prior to issuance of any building permits, install a hedge and 38- inch tall fence to direct students towards the Main Street and Sycamore Street public sidewalks in order to avoid illegal pedestrian crosswalk movements onto Tenth Street. d. Prior to submittal Into building plan check, revise the site plan to depict and note the removal of the existing parking stalls and meters on Maln Street consistent with the mitigation measures contained in the Fina! EIR. e. Prior to submittal into building plan check, revise the site plan to depict and note the restrlping of Main Street to provide three northbound and two southbound travel lanes. f. All loading zone areas must provide a minimum B-dnch raised curb around the perimeter of each eras. g. The proposed roundabout and water feature details must be inducted es part of the Plaza Plan referenced In Section 7-7 of this ordinance. Prior to the issuance of any certificate of occupancy, all water feature and roundabout improvements must be completed. h. Prior to issuance of any certificate of occupancy, dose off the existing curb and gutter serving the trash collection area between 1200 South Maln Street and the OCHSA. The curb and gutter shall be replaced with a new curb, gutter and sidewalk. i. Prior to submittal into building plan check, revise the site plan to depict and note the left turn ingress (Sycamore Street - southbound) into the school drop-off zone. j. Prior to submittal into building plan check, revise the site plan to depict and note wheel chair accessibility ramps at the Broadway egress exit. k. Prior to submittal into buYding plan check, revise the site plan to depict and note the replacement of the painted striped 'No Access Zone' to be replaced with a raised median barrier with decorative pavement for the eastern and western portlons of Tenth Street. It I. Prior to submittal into building plan check, revise the site plan to depict and note the modifications of the signals at the Main/Washington, Main/Tenth, WashingtoNSycamore, BroadwayM/ashington and Broadwaylfenth intersections. m. Prior to the issuance of any building permit, install a raised median at the Broadway egress as determined by the Public Works Agency. 7. Plaza Design Prior to issuance of any building permits, a detailed Plaza Plan shall be submitted to and approved by the Planting Commission. a. The overall plaza design theme shall incorporate a minimum of three major pedestrian-level water features and two water elements adjacent to the proposed building. b. The plaza landscape palette must include a minimum of four (4) tree apecfea, to be approved by the Landscape Development Associate prior to the issuance of any building perrnft. The minimum established size for palm trees shall be 30 feet brown trunk height. Non-palm tree spades shall be a minimum of 20 feet in height and 80-inch box. c. Land uses such as retail, office or other services shall be incorporated within the plaza level pursuant to the approved site plan. Exterior kiosks, carts or other temporary outdoor uses are not allowed unless spedfically submitted to and approved by the Planning Commission. d. The plaza shall incorporate seating, benches and landscaping tq provide visual Interest and additbnai amenkles wRhln the plaza. e. Pedestrian amenities ahatl be provided such as lighting, planters, drtnking fountains, unit pavers, and bicycle racks. f. The color and appearance of the plaza fumkure products and other elements must complement the overall plaza design and tower archkecture. ~f~, 12l p~ g. Benches and pedestrian seating shall be made of a durable material such as concrete or painted iron and he designed to minimize effects from vandalism, skateboarding and weather. h. Trash receptacles should be located in high-activity areas, such as plazas and other public open spaces. The style shall be compatible with other plaza fumishings. i. Bike racks shall be provided at key activity locations on the plaza level. j. All street furniture surfaces, pedestrian-level walls and amenities shall incorporate graffiti resistant coatings. k. Soft as well as hard surteced areas shall be incorporated into the Plaza Plan. Plaza area paving shall consist of unft pavers. I. One linear foot of seating shall be provided for every f30 square feet of plaza area. Seating may include benches, low seating walls, steps, planter edges or fountains. The seating shall be designed to discourage sleeping. m. Lighting height in the plaza area should be at a pedestrian scale. ~ A range between 16 feet and 22 feet in the plaza Brea should be fully illuminated from dusk until dawn. The overall lighting shall be maintained at one-foot candle and incorporate other pedestrian- oriented lights, such as ligfrted bollards. Uplighting of trees and other site features Is also required. n. The required Plaza Plan shall indude adequate provisions for the on-going maintenance of all plaza and roundabout improvements. o, The required Plaza Plan shall include design details, materials and provisions for the on-going maintenance for all Interior publk: areas within the office tower, induding but not limited to the ground floor and basement area lobbies. 8. Public A a. Public art valued at one percent of the office tower valuation is required. The cost of arty water feaWre or portion thereof shall not be induded for purposes of complying with the public art requirement Public art may be comprised of muftlple art pleres, however, at least one such art piece shall be placed at the southwest corner of the project site adjacent to Broadway and Tenth Street. The public art should invite partidpatlon and interectan, inspire, add local meaning, Interpret the community by revealing Its culture or history, andlor capture or reirNoroe the 13 unique chareder of the new place. A comprehensive Public Art Plan lnd~ating compliance with this requirement, and which proposes specific places of art for specific locations or applications, shall be submitted to the Planning Commission for review and approval prior to issuance of any building permits. All public art approved by the Planning Commission in the Public Arl Plan shall be completely instatled prior to the issuance of any cert~cates of occupancy for the project. b. Art should be sited to complement features such as plaza or architectural components so that the art is an integral part of the One Broadway Plaza development site. c. Public art should be constructed using durable materials and finishes including but not limited to stone or metal. d. No art piece provided pursuant to the public art requirement, including an art piece such as a mural that may be proposed on the south elevation of the parking structure at the Sycamore Street entrance, sha11 Include advertising of any type, Including but not limited to products, services or businesses. e. All public art provided pursuant to the public art requirement shall ~ be properly maintained at all times, be free of any greffltl and shalt not incorporate any flashing or distracting form of iUumination. f. All art pieces approved and installed pursuant to the Public Art Plan shalt remain on the project site and may not be removed without the approval of the Planning Commission. 14 ~ sx>srtt+c a sma ~ ~I , - t~4 / i r ! a a a ~ t r ie i _.sT= ~ .__._.i _ ~ wrTu n * ~1 . • i i i ~ I III ..J ii. tI~J ~ 11 ' iii ~i•. ,II{ i • m is .iai ' II IIIIIII11111 ~ ~ c - ..T.~.~.o. .~.1.31'S. s _ _ ~ t TIORY i i l l i ~ s~ nwrona.rame.aw,r .°ti~ ~.d,~•...,~ s_ A•O.i Eaersrt 6 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza, M-30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE § 6103 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, and 845 BROADWAY, LLC Dated: July 2010 EXHIBIT 8 75A-92 DRAFT 06/09/10 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA; and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN, LLC, and 845 BROADWAY, LLC This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ("City") on the one hand, and ONE BROADWAY PLAZA, LLC, 1200 N. MAIN LLC, and 845 BROADWAY LLC, each of which is a California Limited Liability Company (collectively referred to herein as "Owner" or "Property Owner"), on the other hand. 1. This Amendment is entered into with reference to the following facts: 1.1 Original Agreement. On or about July 19, 2004, the City and Owner entered into a written Development Agreement, referenced as City Agreement No. A-2004-153 and recorded as Document No. 2005000414753 of the Official Records of the County of Orange ("Original Agreement"). 1.2 Purpose of Original Agreement and Amendment. The purpose of the Original Agreement and this Amendment is to facilitate the development of the 37 story, 518,000 square foot, Class A office building and associated pazking structure and ancillary commercial development contemplated by the City's Specific Design Zoning Designation SD-75, Environmental Impact Report No. 99-01, General Plan Amendment No. 2004-01 and Zoning Ordinance Amendment No. 2004-02 (the "Pre-Existing Approval Entitlements"). 1.3 Statutory Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Amendments and amendments to Development Agreements, such as the Original Agreement and this Amendment, with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Amendment pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This Amendment is intended to assure adequate public facilities at the time of development. (2) This Amendment is intended to assure development in accordance with 1 75A-93 DRAFT 06/09/10 City's Genera] Plan, applicable Specific Plans and Specific Development District No. 75. (3) This Amendment will permit achievement of goals and objectives as reflected in the City's General Plan, all applicable Specific Plans and Specific Development District No. 75. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (5) This Amendment will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (6) Many of the extraordinary and significant benefits identified as consideration to City for entering into this Amendment aze of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required and/or pay such benefits sooner, and represent benefits which would not otherwise be required as part of the development process. 1.6 Planning Commission -Council Hearings. On June 14, 2010, the Planning Commission of the City ("Planning Commission"), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public heazing to consider the Owner's application for this Amendment. The Planning Commission recommended to the City Council of City that it execute this Amendment. On , 2010, the City Council of the City of Santa Ana ("Council"), after providing notice as required bylaw, held a public hearing to consider the Owner's application for this Amendment. 1.5 Council Findings. The Council finds that this Amendment is consistent with the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. 1.6 City Ordinance. On , 2010, the Council adopted Ordinance No. approving this Amendment. The ordinance and this Amendment becomes effective thirty (30) days thereafter. 2. Section 4.3 shall be deleted in its entirety: 3. Section 5.1.1 shall be amended to read as follows, and Exhibit C-l, attached hereto shall 2 75A-94 DRAFT 06/09/10 be made a part of the Original Agreement by this reference: 5.1.1 Offsite Mitigation Measures. The offsite mitigation measures which must be constructed by Owner or City aze as set forth in Exhibit C-1 to this Agreement. The design of all offsite mitigation measures constructed by Owner shall be subject to approval by the City's Public Works Agency prior to issuance of an encroachment permit. The Public Works Agency shall provide to the Owner an update to the 2004 estimate of the costs such offsite mitigations measures contained in said Exhibit C-1 prior to issuance of final map and building permit. Owner shall have one yeaz from the effective date of this Agreement pursuant to section 1.6, above, to acquire the real property referenced in paragraph S.a. and 8 of Exhibit C-1 and transfer title to the City, except as to the roundabout, for which Owner shall secure and transfer to City an easement (or other right to construct, maintain and use the property as a roundabout). City shall accept transfer of this title and easement. Owner shall deposit an amount equal to the estimate in cash for such offsite mitigation measures (including traffic studies) at the time called for in paragraphs S.a., 8 and 9 of Exhibit C-1. For all other items specified in Exhibit C-1, security in the form of bonds (i. e., a payment, a performance and a material bond) or other proof of ability to perform acceptable to the City's Executive Director of Public Works Agency shall be provided, together with an offsite subdivision improvement agreement, prior to recordation of final map. For those offsite mitigation measures identified in paragraphs 1-4, S.b.-8 and 10 which have not been accepted by the City as complete prior to issuance of a building permit, no building permit shall issue until Owner deposits with the City cash; a direct draw, irrevocable letter of credit; or establishes an irrevocable, escrowed cash account or escrowed construction loan proceeds in a form reasonably acceptable to the City Attorney of City, in an amount specified by the City's Public Works Agency to guarantee performance of said offsite mitigation measures; provided, however, that City Executive Director of Public Works Agency shall release or partially release the bonds previously provided at this point to the extent that they are duplicative of this new security. Any deposit shall be applied to such costs and shall be, within thirty (30) days written request to Owner, supplemented to cover the actual costs incurred. Except as to paragraph 9 of Exhibit C-1, City shall return any funds not spent on the offsite mitigation measures referenced in Exhibit C-1 to owner within thirty (30) days, subject to Ciiy accounting practices, afrer completion of all items referenced in Exhibit C-1 and issuance of a Certificate of Occupancy for the Project. 4. Sections 5.8 shall be deleted its entirety: 5. Sections 5.8 shall be deleted its entirety: 6. Sections 5.9 shall be amended to read as follows: 3 75A-95 DRAFT 06/09/10 5.9 Historic Structures on the Property. (3) Afrer complying with the relocation obligations of subsections 5.9(1), if necessary, and 5.9(2), Owner may, notwithstanding the provisions of section 5.8 above, scarify the soil in the Scarifying Area (shown on Exhibit E to this Agreement) to a depth of three feet (3.0') and drive piles in the area shown on Exhibit E to support the eventua137-story office tower. The scazifying and pile driving shall be done at a time and manner as set forth in plans submitted by Owner and approved by the Executive Director of the Public Works Agency, and only after written notice of the commencement date and estimated duration of the pile driving has been given by Owner to the Santa Ana Unified School District, Orange County High School of the Arts, and El Sol Academy. The scarified azea shall be refilled after the pile driving is complete to its original grade as shown in the approved plans and, if a building permit has not been issued and construction of the Project has not commenced within one hundred eighty (180) days thereafter, landscaped, irrigated and fenced in accordance with plans submitted by Owner and approved by the Executive Director of the Planning and Building Agency. 7. Except as hereby expressly amended by this Amendment, the Original Agreement shall remain in full force and effect. IN WITNESS WHEREOF, this Amendment has been executed by the City of Santa Ana, acting by and through its City Manager, pursuant to Ordinance No. authorizing such execution, and by Property Owner. Dated this _ day of , 2010. THE CITY OF SANTA ANA By DAVID N. REAM City Manager Approved as to Form: By JOSEPH W.FLETCHER City Attorney 4 75A-96 DRAFT 06/09/10 ONE BROADWAY PLAZA, LLC, By: MICHAEL F. HARRAH Managing Member 1200 N. MAIN, LLC By: MICHAEL F. HARRAFf Managing Member 845 BROADWAY LLC By: MICHAEL F. HARRAH Managing Member 5 75A-97 DRAFT 06/09/10 EXHIBIT C-1 (rev. July, 2010) OFF-SITE IMPROVEMENTS Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering Im rovement Event Cash 1. Install a new traffic signal at Main/15` , $200,000 Owner Building including communication cable and Permit conduits to connect to the City's Traffic Management Center, and striping. 2. Install a new traffic signal at $200,000 Owner Building Sycamore/15~', including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 3. Install a new traffic signal at Santa Ana $200,000 Owner Building Blvd./French St., including communication Permit cable and conduits to connect to the City's Traffic Management Center, and striping. 4. Construct landscaped median on $100,000 Owner Building Broadway at the Broadway/Pazking Permit Structure egress. S.a. Acquire necessary ROW for $2,400,000 Owner, Final Map roundabout at the intersection of ] 0`" Street unless City and Sycamore. undertakes per section 5.1.1 S.b. Construct roundabout at the $600,000 Owner Building intersection of l Os' Street and Sycamore, Permit with l Os' Street one-way EB, including necessary striping, traffic signs, pedestrian crosswalks and pedestrian refuge azeas. Right-of--way shall be acquired at S/W, S/E and N/W comers by developer. 6 75A-98 DRAFT 06/09/10 Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering Im rovement Event Cash 6. Restripe: (1) WB Santa Clara to provide $50,000 Owner Building one LT lane and one shazed LT/RT lane; Permit (2) NB Grand Avenue from Fruit Street to 14~' Street at Santa Ana Blvd/[-5 HOV ramps to provide three NB travel lanes; (3) I-5 NB off-ramps to provide a WB LT lane, a shazed LT/RT lane and a RT lane at Grand Ave. 7. Remove existing on-street parking stalls $300,000 Owner Building and parking meters on Main Street from Permit Civic Center Dr. to Buffalo St.., restripe and slurry seal this Main Street segment to provide three NB and two SB travel lanes, and construct median on Main St. south of 10th Street. 8. Acquire necessary ROW and construct $6,500,000 Owner, Final Map southbound RT lane at Main/17`h and unless City Broadway/17`h, including striping, traffic undertakes per signal modification, and ADA compliant section 5.1.1 wheel chair ramps. 9. Implement neighborhood traffic plans to $1,200,000 City Six month mitigate changes in traffic patterns or (actual cost, prior to increased cut through traffic resulting from not an issuance of the One Broadway Plaza Project in French estimate) the first Pazk, French Court, Willazd, Floral Pazk, certificate of West Floral Pazk, and Washington Square occupancy but Neighborhoods. Traffic plans costs shall no later than include traffic studies, staff time to process 22 month neighborhood traffic plan, and the from the 1" construction of appropriate semi-diverters, building diagonal diverters, and street closures. ermit 7 75A-99 DRAFT 06/09/10 Estimated Entity Funded Prior Description of Improvement Cost (2004 Responsible to Indicated Dollars) For Triggering Im rovement Event Cash ]0. Reconstruct ]0` St. one-way EB and $850,000 Owner building Washington Ave. one-way WB between Permit Main St. and Broadway, which will include: (1) traffic signal modifications at Main/Washington, Main/10`h, Washington/Sycamore, Broadway/Washington, and Broadway/10`s (2) restriping streets and intersections, and , (3) installing appropriate traffic signs (4) retuning traffic signals (5) constructing ADA compliant wheel chair ramps. SUBTOTAL $12,600,000 Notes: 1. Estimated costs aze based on 2004 yeaz of expenditure. Owner shall fund item S.a. and 8 (if necessary) based on estimated actual construction and right-of--way costs at time of indicated funding event, and supplement if necessary. 2. Items not complete and accepted by the City shall be fully bonded for pursuant to an offsite subdivision improvement agreement, prior to issuance of final map. 3. All improvements, including improvements to be constructed by Owner and not City, shall be completed and accepted by City prior to issuance of Certificate of Occupancy. 8 7~0-100