HomeMy WebLinkAbout FULL PACKET_2010-12-06MINUTES OF THE REGULAR MEETING
OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA, CALIFORNIA
NOVEMBER 15, 2010
CALLED TO ORDER
ATTENDANCE
PUBLIC COMMENTS - None
City Council Closed Session Items
CLOSED SESSION
CITY HALL, 8T" FLOOR, ROOM 831
20 CIVIC CENTER PLAZA
SANTA ANA, CA
5:06 P.M.
COUNCILMEMBERS Present:
MIGUEL PULIDO, Mayor
CLAUDIA ALVAREZ, Mayor Pro Tern (5:15 P.M.)
P. DAVID BENAVIDES
CARLOS BUSTAMANTE (5:12 P.M.)
MICHELE MARTINEZ
VINCENT F. SARMIENTO (5:15 P.M.)
SAL TINAJERO
COUNCILMEMBERS Absent:
None
STAFF Present:
DAVID N. REAM, City Manager
JOSEPH W. FLETCHER, City Attorney
MARIA D. HUIZAR, Clerk of the Council
1A CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant
to Government Code Section 54956.9(a)
Donald Mahany vs. the City of Santa Ana, WCAB No. ANA0397503
City of Santa Ana v. Santa Ana California Lodge, et al. Case No. 30 -2009-
0118768 (and related case Santa Ana California Lodge LLC v. City of Santa
Ana Case No. 30- 2009 - 00249020)
Friends Of The Lacy Historic Neighborhood v. City Of Santa Ana, et al; Case
No: 30- 2010- 00388033- CU -WM -CX
CITY COUNCIL MINUTES 1 NOVEMBER 15, 2010
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1C
1D
CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code
Section 54957.6
Agency Negotiators: Personnel Services Executive Director, Kathie
Gonzalez
Employee Organizations: Santa Ana Police Officer's Association
Santa Ana Police Management Association
Santa Ana Management Association
Santa Ana Service Employees International
Union (SEIU) Full -Time Employees
Santa Ana Service Employees International
Union (SEIU) Part-time Civil Service
Employees
Santa Ana Service Employees International
Union (SEIU) Part-time Employees (less
than 20 hours)
CONFERENCE WITH REAL PROPERTY NEGOTIATOR pursuant to
Government Code Section 54956.8:
Subject Property:
Negotiating Party:
Terms under Negotiation
City Representative:
Subject Property:
Negotiating Party:
Terms under Negotiation
City Representative:
2235 S. Bristol Street
Dong Ho Lee
Price and terms of payment for City acquisition of
subject property
Raul Godinez, Executive Director of Public Works
1901 W. Walnut Street
Orange County Children's Therapeutic ARTS
Center
Price and terms of payment for lease of City -
owned subject property
Cindy Nelson, Deputy City Manager for
Development Services
PUBLIC EMPLOYEE PERFORMANCE
Government Code Section 54957
Title: City Attorney
EVALUATION pursuant to
Continued from the October 18, 2010 City Council meeting.
ADJOURNED THE CLOSED SESSION MEETING AT 6:15 P.M. AND CONVENED TO
THE REGULAR OPEN MEETING
CITY COUNCIL MINUTES 2 NOVEMBER 15, 2010
G r�7.
CALLED TO ORDER
REGULAR OPEN SESSION
COUNCIL CHAMBER
22 CIVIC CENTER PLAZA
SANTA ANA, CA
6:17 P.M.
ATTENDANCE COUNCILMEMBERS Present:
MIGUEL PULIDO, Mayor
CLAUDIA ALVAREZ, Mayor Pro Tern
P. DAVID BENAVIDES (6:33 p.m.)
CARLOS BUSTAMANTE
MICHELE MARTINEZ (6:33 p.m.)
VINCENT F. SARMIENTO
SAL TINAJERO
PLEDGE OF ALLEGIANCE
INVOCATION
PRESENTATIONS
COUNCILMEMBERS Absent:
None
STAFF Present:
DAVID N. REAM, City Manager
JOSEPH FLETCHER, City Attorney
MARIA D. HUIZAR, Clerk of the Council
MAYOR PULIDO
Roger Aragon, Police Chaplain
SPECIAL PRESENTATION by Senator Lou Correa and Assemblyman Jose Solorio on
the $4.4 Million Prop 84 Grant for the Willard Intermediate Park Development Project
CLOSED SESSION REPORT See Item 19A for report.
PUBLIC COMMENTS
• Philip Law, representing the Southern California Association of Governments (SCAG)
informed the public of community meetings held throughout Orange County for the
Pacific Electric Right- of- Way/West Santa Ana Branch Corridor Study. The public is
invited to attend and engage in discussions about proposed transportation strategies
being considered to re- connect Orange and Los Angeles Counties by using the Pacific
Electric Railroad Right -of -Way. Council asked that meeting /presentation be scheduled
in the city of Santa Ana as well.
CITY COUNCIL MINUTES 3 NOVEMBER 15, 2010
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• Otto Bade, congratulated all re- elected to the City Council; opined that bidding process
for food concession services at the Santa Ana Zoo flawed and requested that Council
consider re- bidding contract.
• Yvonne Lopez, opined that elephant rides at the Santa Ana Zoo should be banned.
• Grace Wetrosky, believe that elephant rides at the Santa Ana Zoo ought to be banned.
• Laura Cooley, also opined that elephant rides should not be allowed at the Santa Ana
Zoo.
• Julie Curran - Meskell, encouraged Council to ban elephant rides at the Santa Ana Zoo.
• Britta Wilson, representing PETA, encouraged Council to ban elephant rides at the
Santa Ana Zoo.
• Francisco Barragan, congratulated and expressed well wishes to all who were re-
elected; concerned with a robo call received during election.
• Sara Guerrero, invited all to participate in the 4th Annual Noche de Milagros to be held
on December 4th hosted by Breath of Fire Latina Theater Ensemble; congratulated
Council for another term on the City Council.
• Robin Cook, commented on re -vote matter considered at a previous Council meeting;
opined that City should keep the elephant rides at the Santa Ana Zoo.
• Steve McGuigan, provided letters by "Have Trunks Will Travel" to Council encouraging
them to visit their facility where they house elephants; asked Council to post
information on upcoming events on their personal websites.
CONSENT CALENDAR
MOTION: Approve Consent Calendar Items 10A through 25S with the
following modifications:
• Mayor Pro Tern Alvarez voted "No" on Item 19C;
• Councilmember Sarmiento pulled item 25A and 25N for separate discussion;
MOTION: Alvarez SECOND: Benavides
VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido, Martinez,
Sarmiento, Tinajero (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
CITY COUNCIL MINUTES 4 NOVEMBER 15, 2010
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ADMINISTRATIVE MATTERS
MINUTES
10A MINUTES OF REGULAR MEETING OF OCTOBER 18, 2010 - Clerk of the
Council Office
MOTION: Approve Minutes.
ORDINANCES /SECOND READING
In the event a Councilmember recorded an "abstention" before consideration of the
following ordinance(s) on first reading, such abstention will also be reflected in the
minutes for second reading
11A ORDINANCE ADOPTING THE UPDATED CALIFORNIA AND
INTERNATIONAL BUILDING AND FIRE CODES WITH AMENDMENTS
AND REQUISITE FINDINGS - Planning and Building Agency
Placed on first reading at the October 18, 2010 City Council meeting and
approved by a vote of 7 -0.
Published in the Orange County Reporter on November 5, 2010.
MOTION: Place ordinance on second reading and adopt.
ORDINANCE NO. NS -2810 - AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF SANTA ANA AMENDING CHAPTERS 8 AND 14 OF THE
SANTA ANA MUNICIPAL CODE TO ADOPT AND AMEND THERETO THE
MOST RECENTLY ENACTED CALIFORNIA BUILDING CODE,
CALIFORNIA RESIDENTIAL CODE, CALIFORNIA GREEN BUILDING
STANDARDS CODE, CALIFORNIA ELECTRICAL CODE, CALIFORNIA
MECHANICAL CODE, CALIFORNIA PLUMBING CODE, CALIFORNIA FIRE
CODE, CALIFORNIA EXISTING BUILDING CODE, INTERNATIONAL
PROPERTY MAINTENANCE CODE, UNIFORM SWIMMING POOL, SPA
AND HOT TUB CODE, AND UNIFORM SOLAR ENERGY CODE
BOARDS / COMMISSIONS / COMMITTEES
13A APPOINT ORANGE COUNTY VECTOR CONTROL DISTRICT BOARD
MEMBER— Clerk of the Council Office
MOTION: Appoint Cecilia Aguinaga as the City Representative to the
Orange County Vector Control District Board to fill an unexpired term,
expiring December 31, 2011.
CITY COUNCIL MINUTES 5 NOVEMBER 15, 2010
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MISCELLANEOUS ADMINISTRATION
19A CLOSED SESSION REPORT — City Attorney's Office
MOTION: Approve a Compromise and Release settlement for Donald
Mahany vs. the City of Santa Ana, WCAB No. ANA0397503, in the
amount of $22,000.
19B EXCUSED ABSENCES — None
19C DESTRUCTION OF OBSOLETE CITY RECORDS - City Manager's Office
and Personnel Services - Clerk of the Council Office
MOTION: 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 Tern Alvarez voted "No" on Item 19C.
19D QUARTERLY REPORT OF INVESTMENTS AS OF SEPTEMBER 30, 2010 -
Finance & Management Services
MOTION: Receive and file.
19E REQUEST FOR PROPOSALS FOR ENVIRONMENTAL SERVICES FOR A
NEW SINGLE FAMILY RESIDENTIAL SUBDIVISION - 1584 EAST SANTA
CLARA AVENUE - Planning and Building Agency
MOTION: Receive and file.
19F REQUEST FOR PROPOSAL FOR ENVIRONMENTAL SERVICES FOR
THE HARBOR MIXED USE TRANSIT CORRIDOR PLAN ALONG HARBOR
BOULEVARD - Planning and Building Agency
MOTION: Receive and file.
19G REQUEST FOR PROPOSALS FOR CONSTRUCTION MANAGEMENT
SERVICES FOR THE FIRST STREET BRIDGE REPLACEMENT OVER
THE SANTA ANA RIVER (061723)- Public Works Agency
CITY COUNCIL MINUTES 6 NOVEMBER 15, 2010
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MOTION: Authorize the Public Works Agency to send Request for
Proposals to qualified consulting firms to provide construction
management services for the First Street Bridge Widening over the
Santa Ana River project.
BUDGETARY MATTERS
APPROPRIATION ADJUSTMENTS
20A FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) ASSISTANCE
TO FIREFIGHTERS GRANT FY 2009 - Fire Department
MOTION:
1. Authorize the City Manager to accept the FEMA Assistance to
Firefighters Grant 2009 in the amount of $49,920 and designate
$12,480 in City funds required for the 20% match.
2. Approve an appropriation adjustment. (Requires five affirmative
votes)
APPROPRIATION ADJUSTMENT NO. 11 -096 - Approve an
Appropriation Adjustment for the FEMA Assistance to Firefighters Grant
2009 expenditure account.
GRANTS /APPLICATIONS
21A AUTHORIZATION TO APPLY FOR FEDERAL HIGHWAY SAFETY
IMPROVEMENT PROGRAM GRANTS - Public Works Agency
MOTION: Authorize staff to apply for federal funding of four projects
and to submit the projects for funding consideration under the Highway
Safety Improvement Program.
SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES
MOTION: Award in accordance with Request for Council Action.
(Items 22A through 221)
22A SPEC. NO. 10 -045 - COPPER TUBING - (Public Works Agency) - Finance
& Management Services
1. Authorize contract to Wells Supply Co. for copper tubing in the
amount not to exceed $50,000.
CITY COUNCIL MINUTES 7 NOVEMBER 15, 2010
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2. Award contracts for copper tubing and miscellaneous waterworks
parts for a one -year period, with provision for three one -year
renewals, in an annual aggregate amount not to exceed $160,000
with the following vendors:
Vendor
Copper Tubing:
Ferguson Enterprises
S & J Supply Co. Inc.
Emergency waterworks parts:
Wells Supply Co.
Location
Pomona
Santa Fe Springs
Santa Ana
22B SPEC. NO. 10 -034 - OVERHEAD DOOR MAINTENANCE - Award a
contract to Commercial Door of Orange County, Inc. for a one -year period
with provision for three, one -year renewals in an annual amount not to
exceed $30,000. (Fire Department) - Finance & Management Services
22C SPEC, NO. 10 -040 - ASPHALT POTHOLE REPAIR - Award a contract to
Ben's Asphalt, Inc., for a one -year period with provision for three one -year
renewals in an amount not to exceed $500,000 annually (Public Works
Agency) - Finance & Management Services
22D SPEC. NO. 10 -039 - ASPHALT STREET MAINTENANCE - Award a contract
to All American Asphalt for a one -year period with provision for three one -
year renewals in an amount not to exceed $580,000 annually (Public Works
Agency) - Finance & Management Services
22E SPEC. NO. 08 -023 - FIRE HOSE - Renew the contract with L.N. Curtis &
Sons for a one -year period in an annual amount not to exceed $32,000, and
increase the aggregate limit by $25,000 for miscellaneous supplies in an
annual amount not to exceed $57,000 (Fire Department) - Finance &
Management Services
22F SPEC. NO. 10 -037 - CIVIC CENTER TREE PRUNING - Award a contract to
Tree Elements, Inc. in an amount not to exceed $31,400. (Parks, Recreation
& Community Services Agency) - Finance & Management Services
22G SPEC. NO. 10 -021 - UNIFORM, MAT AND TOWEL SERVICE - Finance &
Management Services
CITY COUNCIL MINUTES 8 NOVEMBER 15, 2010
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I. Amend the contract with Prudential Overall Supply for uniform, mat
and towel service through the end of the current year to provide
service during the transition of new uniforms and finalizing the
charges on lost stock in an amount not to exceed $20,000.
2. Award a contract to G & K Services Inc. uniform, mat and towel
services for a three -year period with provision for one three -year
renewal, in an annual amount not to exceed $33,130.
22H SPEC. NO. 10 -043 - REFURBISH VACTOR SEWER TRUCKS - Award a
contract to Haaker Equipment Company in an amount not to exceed
$217,105 (Public Works Agency) - Finance & Management Services
221 SPEC. NO. 10 -031 - DIGITAL AUDIO -VIDEO RECORDING SYSTEM -
Award a contract to Gulen Inc. dba LegalTek in an amount not to exceed
$45,550 (Police Department) - Finance & Management Services
PROJECTS /CHANGE ORDERS
23A INCREASE CONTINGENCY FOR BRISTOL STREET WIDENING FROM
MCFADDEN AVENUE TO PINE STREET (PROJECT NO. 061500) - Public
Works Agency
MOTION: Increase the contingency for the contract with All American
Asphalt for the Bristol Street Widening Project by $200,000 to a total
estimated contract amount of $10,178,904 and authorize the City
Manager to execute change orders up to the contingency amount.
23B INCREASED CONTINGENCY FOR RECYCLED WATER CONVERSION
PROJECT (PROJECT NO. 093215) - Public Works Agency
MOTION: Increase the contingency for the contract with Guerrero
Backhoe Service, Inc. for the Recycled Water Conversion Project by
$100,000 to a total estimated contract amount of $324,526 and authorize
the City Manager to execute change orders up to the contingency
amount.
AGREEMENTS
MOTION: Authorize the City Manager and Clerk of the Council to
execute the following agreements, subject to non - substantive changes
approved by the City Manager and City Attorney and /or actions as
CITY COUNCIL MINUTES 9 NOVEMBER 15, 2010
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noted on the Request for Council Action report. (Item 25B through 25M
and 250 through 25S)
Continued from the October 18, 2010 City Council meeting by a vote of 7 -0.
Councilmember Sarmiento provided background on recent meetings
between area residents and city staff; requested a continuance to determine
new location.
MOTION: Continue consideration of item to the next regularly
scheduled City Council Meeting scheduled for December 6, 2010.
MOTION: Sarmiento SECOND: Alvarez
VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido,
Martinez, Sarmiento, Tinajero (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
25B AGMT NO. 2010 -210 - HISTORIC PRESERVATION PROPERTY
AGREEMENT NO. 2010 -10 - With Melvin G. and Catherine W. Ladd for the
structure located at 2127 North Greenleaf Street (E.B. Smith House) -
Planning and Building Agency
25C AGMT NO. 2010 -211 - HISTORIC PRESERVATION PROPERTY
AGREEMENT NO. 2010 -14 - With Anthony Peter Michalski for the structure
located at 917 North Louise Street (W. P. Heninger House) - Planning and
Building Agency
25D AGMT NO. 2010 -212 - HISTORIC PRESERVATION PROPERTY
AGREEMENT NO. 2010 -15 - With Gary Regalado and Lisa LaFourcade for
the structure located at 2019 North Victoria Drive (Was House) - Planning
and Building Agency
25E AGMT NO. 2010 -213 - HISTORIC PRESERVATION PROPERTY
AGREEMENT NO. 2010 -16 - With Raymond D. and Linda L. Chapel for the
CITY COUNCIL MINUTES 10 NOVEMBER 15, 2010
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structure located at 413 West Santa Clara Avenue (Neff House) - Planning
and Building Agency
25F AGMT NO. 2010 -214 - HISTORIC PRESERVATION PROPERTY
AGREEMENT NO. 2010 -17 - With Ashley and Ninh Vu for the structure
located at 1911 North Westwood Avenue (A. T. Bates Ranch House) -
Planning and Building Agency
25G AGMT NO. 2010 -215 - ENVIRONMENTAL SERVICES - Execute an
agreement with Kimley -Horn and Associates, Inc. in an amount not to
exceed $40,150, for a new McDonald's restaurant at 1100 South Grand
Avenue - Planning and Building Agency
25H FACILITY IMPROVEMENTS AND MAINTENANCE EXPENSES - Authorize
ongoing custodial service expenses in an amount of $18,262.50 per year
and $15,000 in improvements pursuant to a Cooperative Agreement and
Amendment No. 1 between the Orange County Transportation Authority, the
County of Orange and the City for the public restrooms at the Santa Ana
Transit terminal (N- 2009 - 016 -01) - Public Works Agency
251 AGMT NO. 2010 -216 - TRAFFIC COUNTING SERVICES PROJECT
(PROJECT NO. 116739) - With Pacific Traffic Data Services for an amount
not to exceed $30,000 with an option to extend the agreement for one
additional year - Public Works Agency
25J AGMT NO. 2010 -217 - CITYWIDE SPEED LIMIT STUDY (PROJECT
116738) - With Albert Grover & Associates in an amount not to exceed
$44,682. - Public Works Agency
25K SETTLEMENT AGREEMENTS FOR BRISTOL STREET CORRIDOR
(PROJECT NO. 081700) - Public Works Agency
• AGMT NO. 2010 -218 — With Winchell's Donut Houses Operating
Company, L.P. for the purchase of 624 N. Bristol Street in the amount of
$915,000.
• AGMT NO. 2010 -219 - With Richard and Susan Riemer for the purchase
of 602 N. Bristol Street in the amount of $352,720.
• AGMT NO. 2010 -220 - With Santa Ana Florist (Charles and Vicki Kruger)
for acquisition settlement for the business at 315 N. Bristol in the amount
of $280,000.
CITY COUNCIL MINUTES 11 NOVEMBER 15, 2010
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• AGMT NO. 2010 -221 - With Richard R. Garibay for the purchase of 828
N. Bristol Street in the amount of $3,190,000.
• AGMT NO. 2010 -222 - With Garibay Tax Service for acquisition
settlement for business at 828 N. Bristol in the amount of $75,000.
• AGMT NO. 2010 -223 - With Clinica Medica San Miguel for acquisition
settlement for business at 1302 W. Santa Ana Blvd. in the amount of
$300,000.
• AGMT NO. 2010 -224 - With Joaquin Torres for purchase of 622 N. Bristol
in the amount of $275,000.
25L AGMT NO. 2010 -225 - PROPOSITION 1B ALLOCATION FOR CITY
STREETS - Execute an amendment to the cooperative agreement with the
County of Orange to redirect the surplus from previously allocated
Proposition 1 B funds - Public Works Agency
25M AGMT NO. 2010 -226 - PARKING MANAGEMENT SERVICES - Execute an
amendment with Parking Concepts, Inc. of Los Angeles in an amount not to
exceed $35,000 for a one -year term — Police Department and Community
Development Agency
Councilmember Sarmiento requested a continuance.
MOTION: Continue consideration of item to the next regularly
scheduled City Council Meeting scheduled for December 6, 2010.
MOTION: Sarmiento
VOTE: AYES:
NOES:
ABSTAIN:
ABSENT:
SECOND: Benavides
Alvarez, Benavides, Bustamante,
Martinez, Sarmiento, Tinajero (7)
None (0)
None (0)
None (0)
Pulido,
CITY COUNCIL MINUTES 12 NOVEMBER 15, 2010
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250 AGMT NO. 2010 -227 - JAIL INMATE DISTANCE LEARNING PROGRAM -
Execute an amendment to the agreement with Rancho Santiago Community
College District in an annual amount not to exceed $25,000 - Police
Department
25P AGMT NO. 2010 -228 - ANNUAL SOFTWARE MAINTENANCE AND
SUPPORT - Execute an amendment with KCC Knowledge Computing Ltd, in
an amount not to exceed $57,500 - Police Department
25Q AGMT NO. 2010 -229 - ELECTRONIC DOOR ACCESS SYSTEM
MAINTENANCE AND SUPPORT - Execute an amendment with
Simplex /Grinnell LP, in an amount not to exceed $14,024 - Police
Department
25R AGMT NO. 2010 -230 - MAINTENANCE AND UPGRADE TO POLICE
DIGITAL IMAGING MANAGEMENT SYSTEM (JULY 1, 2010 — JUNE 2011)
— Execute an amendment with Linear Systems in an amount not to exceed
$33,325.75 - Police Department
25S AGMT NOS. 2010 -231 AND A- 2010 -232 - EVENT /ENTERTAINMENT
MANAGEMENT SERVICES TO OPERATE THE 2011 FIESTAS PATRIAS
AND CINCO DE MAYO FESTIVITIES - Direct the City Attorney to prepare
and authorize the City Manager and the Clerk of the Council to execute an
agreement with MXLive and Romo Enterprises, Inc. — City Manager's Office
* *END OF CONSENT CALENDAR **
BUSINESS CALENDAR
RESOLUTIONS
55A RESOLUTION - EXTENSION OF CONDITIONAL USE PERMIT NOS. 2008-
27 AND 2008 -31 TO ALLOW THE CONSTRUCTION OF A NEW
PHARMACY - 115 NORTH HARBOR BOULEVARD - Planning and Building
Agency
MOTION: Adopt a resolution.
RESOLUTION NO. 2010 -053 - A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF SANTA ANA FOR THE EXTENSION OF CONDITIONAL
USE PERMIT NO. 2008 -27 AS CONDITIONED AND CONDITIONAL USE
CITY COUNCIL MINUTES 13 NOVEMBER 15, 2010
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PERMIT NO. 2008 -31 FOR ONE YEAR FOR THE PROPERTY LOCATED
AT 115 NORTH HARBOR BOULEVARD
MOTION: Alvarez SECOND: Bustamante
VOTE:
PUBLIC HEARINGS
AYES: Alvarez, Benavides, Bustamante, Pulido,
Martinez, Sarmiento, Tinajero (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
*Mayor Pulido, Councilmembers Martinez and Benavides excused themselves from
consideration of Item 75A due to a conflict of interest due to campaign contributions. They
left the dais and did not participate in the proceedings of the matter. Mayor Pro Tern
Alvarez assumed the Chair and presided over Item 75A.
75A PUBLIC HEARING - PROACTIVE RENTAL ENFORCEMENT PROGRAM
(PREP) INSPECTION FEE ADJUSTMENT - Planning and Building Agency
Legal Notice published in the O.C. Reporter on November 5, 2010 and
November 12, 2010.
Staff report provided by Executive Director of Planning and Building, Jay
Trevino. There was no written correspondence received. The Public
Hearing opened at 7:09 p.m. There were no speakers and the hearing
closed.
Council requested that Gold Seal program be re- visited and number of rental
units in the City be provided to the Council.
MOTION: Place ordinance on first reading and authorize publication of
title.
ORDINANCE NO. NS -2811 - AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF SANTA ANA AMENDING SECTION 21- 120r.1(a) OF THE
SANTA ANA MUNICIPAL CODE TO INCREASE AND EXTEND THE FEE
CHARGED TO FINANCE THE CITY'S PROACTIVE RENTAL
ENFORCEMENT PROGRAM
MOTION: Sarmiento SECOND: Bustamante
CITY COUNCIL MINUTES 14 NOVEMBER 15, 2010
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VOTE: AYES: Alvarez, Bustamante, Sarmiento, Tinajero (4)
NOES: None (0)
ABSTAINED Benavides, Martinez, Pulido (3)
AND NOT
PRESENT:
ABSENT: None (0)
*Mayor Pulido, Councilmembers Benavides and Martinez returned to the dais at 7:16 p.m.
Mayor Pulido re- assumed the Chair.
75B PUBLIC HEARING ON ISSUANCE OF TAX EXEMPT BONDS FOR JAKE'S
LIFE AND RESOLUTION APPROVING THE ISSUANCE OF BONDS -
Finance & Management Services
Legal Notice published in the Orange County Register on November 1, 2010.
No staff report provided. There was no written correspondence received.
The Public Hearing opened at 7:18 p.m. There were no speakers and the
hearing closed.
MOTION:
1. Conduct a Tax Equity and Financial Responsibility Act (TEFRA)
Hearing in consideration of the issuance of tax exempt bond
financing by the California Municipal Finance Authority on behalf of
Jake's LIFE, a California nonprofit public benefit corporation (or any
successor thereto or assigns thereof), for the purpose of the
acquisition, rehabilitation, improvement and equipping of certain
real property and improvements thereon located at 1525 North
Tustin Avenue, Santa Ana, California 92705.
2. Adopt a resolution.
RESOLUTION NO. 2010 -054 - A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF SANTA ANA APPROVING THE ISSUANCE
OF THE CALIFORNIA MUNICIPAL FINANCE AUTHORITY REVENUE
BONDS (REGIONAL CENTER OF ORANGE COUNTY PROJECT),
SERIES 2010 IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO
EXCEED $25,000,000 FOR THE PURPOSE OF FINANCING THE
ACQUISITION, REHABILITATION, IMPROVEMENT AND EQUIPPING
OF AN OFFICE BUILDING AND CERTAIN OTHER MATTERS
RELATING THERETO
CITY COUNCIL MINUTES 15 NOVEMBER 15, 2010
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MOTION: Alvarez SECOND: Bustamante
VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido,
Martinez, Sarmiento, Tinajero (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
75C PUBLIC HEARING ON ISSUANCE OF TAX EXEMPT BONDS FOR THE
BENEFIT OF MATER DEI HIGH SCHOOL AND RESOLUTION
APPROVING THE ISSUANCE OF BONDS - Finance & Management
Services
Legal Notice published in the Orange County Register on November 1, 2010.
No staff report provided. There was no written correspondence received.
The Public Hearing opened at 7:19 p.m. There were no speakers and the
hearing closed.
MOTION:
1. Conduct a Tax Equity and Financial Responsibility Act (TEFRA)
Hearing in consideration of the issuance of tax exempt bond
financing by the California Municipal Finance Authority on behalf of
The Roman Catholic Bishop of Orange, a corporation existing under
the laws of the State of California, and described in Section 501(c)(3)
of the Internal Revenue Code of 1986, for the benefit of Mater Dei
High School to finance and refinance the acquisition, construction
and improvement of educational facilities located at their site in
Santa Ana, California.
2. Adopt a resolution.
RESOLUTION NO. 2010 -055 - A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF SANTA ANA APPROVING THE ISSUANCE
OF REVENUE BONDS BY THE CALIFORNIA MUNICIPAL FINANCE
AUTHORITY FOR THE PURPOSE OF FINANCING OR REFINANCING
THE ACQUISITION, CONSTRUCTION AND IMPROVEMENT OF
CERTAIN EDUCATIONAL FACILITIES AND CERTAIN OTHER
MATTERS PERTAINING THERETO
MOTION: Bustamante SECOND: Alvarez
UIIY COUNCIL MINUTES 16 NOVEMBER 15, 2010
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VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido,
Martinez, Sarmiento, Tinajero (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
COUNCIL AGENDA ITEMS -
Pursuant to Santa Ana Charter Section 411, any member of the City Council may
place items on the City Council Agenda to be considered by the City Council.
85A POLICY ON EXPENSES OVER $25,000 (MAYOR PRO TEM ALVAREZ)
Mayor Pro Tern Alvarez thanked the City Manager for responding to her
request for information on expenses over $25,000. Requested a
continuance of item to the next regularly scheduled meeting to allow the
respective departments to provide a comprehensive report on expenses over
$25,000, that are submitted to Council for approval.
MOTION: Alvarez SECOND: Benavides
VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido,
Martinez, Sarmiento, Tinajero (7)
NOES: None (0)
ABSTAIN: None (0)
ABSENT: None (0)
THE CITY COUNCIL RECESSED AT 7:20 P.M. TO THE COMMUNITY
REDEVELOPMENT AGENCY MEETING, FOLLOWED BY THE HOUSING AUTHORITY
MEETING, AND RECONVENED AT 7:21 P.M. WITH SAME MEMBERS PRESENT
COMMENTS
90A CITY MANAGER'S COMMENTS - None
90B CITY COUNCILMEMBER COMMENTS
CITY COUNCIL MINUTES 17 NOVEMBER 15, 2010
1 0A -17
Councilmember Sarmiento:
• Thanked Mayor for service and congratulated all on re- election.
• Thanked Executive Director of Parks and Recreation for changing date to
Sundays for free entrance to Santa Ana Zoo - a day that can be better
enjoyed by families.
• Wished all a Happy Thanksgiving
Councilmember Martinez:
• Thanked Executive Director Gerardo Mouet for leadership in obtaining a
$4.4 million grant for Willard Intermediate.
• Encouraged all to watch "Waiting for Superman" movie depicting children
and the social responsibility we all play in their education; urged the
school board to work together to make all schools better.
• Wished all a Happy Thanksgiving.
Councilmember Bustamante:
• Congratulated all on re- election, by overwhelming numbers.
• Noted that Bowers Museum will have exhibit starting December 18th on
"Ben Franklin: In Search of a Better World ".
• Happy Thanksgiving to all.
• State going through tough economic times; Governor made somber
speech at recent event regarding issue.
Councilmember Tinajero:
• Congratulated colleagues and members of the school board on re-
election — elected to be responsive; proud to serve the community.
• Asked staff to schedule tour of "Have Trunks Will Travel ".
• Asked that City Manager look into ordinances restricting soccer kicking
and prohibition of clothes hangers, in light of green efforts.
• Happy Thanksgiving to all.
• Supports Councilmember Benavides comments on Dream Act.
Councilmember Benavides:
• Congratulated voters for coming out to vote and being engaged in the
democratic process.
• Asked that staff re -send letter to elected officials on City's support of the
"Dream Act ".
• Wished all a Happy Thanksgiving.
Mayor Pro Tern Alvarez:
• Echoed sentiments on those re- elected; thanked voters for faith in
Council.
• Noted that more than 200 miles of City streets have been repaired;
condition of the City remarked by Senator Feinstein during a recent visit.
• Political signs still up in many areas; asked that City staff work with
candidates on this issue.
• As the holidays approach, encouraged all to shop in Santa Ana.
CITY COUNCIL MINUTES 18 NOVEMBER 15, 2010
ii[ll_d_E:�
"Toys for Tots" accepting donations at all Fire Stations in the City.
Thanked all for support of the City.
Mayor Pulido:
• Expressed gratitude to voters for support and re- election.
• UC Davis will be hosting "Clean Tech Conference" where he will be
presenting an award to Governor Schwarzenegger for green efforts.
• Noted that 6% of green jobs in Santa Ana — National average is 2 %.
• Wished all a Happy Thanksgiving.
• Adjourned in memory of Ed Cooper, Rob Balen, and Darrell Hennegen.
ADJOURNED - 7:45 p.m. - The next meeting of the City Council is scheduled for Monday,
December 6, 2010 at 5:00 p.m. for the Closed Session Meeting
immediately followed by the Regular Open Meeting in the Council
Chamber, 22 Civic Center Plaza, Santa Ana, California.
Adjourn In Memory of
Ed Cooper,
Rob Balen, and
Darrell Hennegen
CITY COUNCIL MINUTES 19 NOVEMBER 15, 2010
iA
iilll_b—larall]
ROH 12/06/10
ORDINANCE NO. 2010-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA AMENDING SECTION 21- 1200(a) OF
THE SANTA ANA MUNICIPAL CODE TO INCREASE AND
EXTEND THE FEE CHARGED TO FINANCE THE CITY'S
PROACTIVE RENTAL ENFORCEMENT PROGRAM
THE CITY COUNCIL OF THE CITY OF SANTA ANA HEREBY ORDAINS AS
FOLLOWS:
Section 1. The City Council hereby finds, determines and declares as follows:
A. The City Council of the City of Santa Ana adopted the Proactive Rental
Enforcement Program (PREP), to provide periodic and systematic
inspections of all residential rental properties in the City of Santa Ana; and
B. The PREP is intended to uncover unsanitary conditions and life safety
hazards for occupants of residential rental properties, to ensure that rental
properties have operable and safe water, sewage disposal, heating and
electric systems, and to encourage owners or managers of residential
rental properties to make repairs and conduct preventative building
maintenance before deteriorated conditions upon rental property become
life safety issues; and
C. The 1992, City Council adopted a residential rental surcharge imposed on
property owners who choose to enter into the residential property rental
business, to pay the enforcement costs of the Proactive Rental
Enforcement Program, including inspection and administration costs; and
D. The Santa Ana Rental Housing Task Force has endorsed a proposal to
immediately increase the Residential Rental Surcharge by $2.00, from
$17.50 to $19.50 per unit, to partially offset the costs of enforcement of the
PREP; and
E. All fees assessed for the PREP bear a direct correlation between the
amount of the fee and the actual cost of the services provided, including
administration, enforcement and implementation services specifically
related to the PREP. Further, the proposed increase will not result in
revenue which exceeds the City's estimated reasonable costs to provide
the PREP; and
Ordinance No. NS-
Page 1 of 5
11 A -1
F. A 2010 fee study reported the total projected expenditures for the PREP
would amount to an estimated $675,000.00, which includes an estimated
$386,856.00 for required staff and an estimated $288,144.00 in
operational costs.
G. On June 20, 1994, the City Council adopted Resolution No. 94 -026 which
approved and adopted the "Gold Seal Incentive Program" whereby
particular residential properties or residential apartments may be certified
as having met standards of excellence in property maintenance and as
certified, would be exempted from payment of the residential rental
surcharge fee for a three -year period; and
H. The funding for the Gold Seal Incentive Program is $110,000.00, which
currently provides for 6,285 units to receive exemptions from the existing
$17.50 per unit annual fee. Based on the proposed fee increase to $19.50
per unit, up to 5,641 units can be approved to participate in the Gold Seal
Incentive Program.
According to the 2010 fee study, records indicate an inventory of 31,227
rental units licensed for inspection. Subtracting out the 5,641 units
qualified for the Gold Seal Incentive Program, 25,586 units will be
accountable for the $19.50 per unit fee, thus generating annual revenue of
$498,927.00.
J. Even with an increase of the annual fee from $17.50 to $19.50 per unit, it
is anticipated that the deficit for the PREP will be $176,073.00 a year for
the remainder of the PREP term based on the estimated $675,000 in
expenditures and $498,927.00 in revenues.
K. Continuation of the Proactive Rental Enforcement Program is essential to
the neighborhoods in Santa Ana to provide assurances that the rental
housing will not be allowed to revert to the condition which led to the initial
concerns for the implementation of an inspection program in 1992.
Section 2. In accordance with the California Environmental Quality Act, the
recommended action is categorically exempt from further review per section 15321,
Class 21, as the project involves an enforcement action by a regulatory agency for an
inspection program. A Categorical Exemption for Environmental Review No. ER -2010-
128 will be filed for this project.
Section 3. Section 21- 120r.1 of the Santa Ana Municipal Code is hereby
amended to increase the residential rental surcharge and extend the sunset date. Said
Section 21- 120r.1 shall read in full as follows:
Ordinance No. NS-
11 A -2 Page 2 of 5
Sec. 21- 120r.1. Residential Rental Surcharge.
(a) Except as otherwise provided in subsection (b) of this section, the
business license tax for residential property rental and residential
apartment rental shall consist of the amount set forth in subsections (2)
and (3) of section 21 -120r plus an annual surcharge of nineteen dollars
and fifty cents ($19.50) per each property rental unit or each apartment
rental unit. The surcharge hereby established shall be due and payable
and shall be paid at the same time and in the same manner that the
amount due under section 21 -120r is due and payable. No business
license shall be issued unless the surcharge is paid. Penalties and interest
shall be assessed upon the total amount due and unpaid at the rate
specified in this chapter until such time as both the amount due under
section 21 -120r and the surcharge due under this section are paid in full.
All provisions for the enforcement, collection and recovery of unpaid
business license taxes shall likewise apply to the enforcement, collection
and recovery of any unpaid surcharge. Notwithstanding any provision of
this chapter to the contrary, the amount of the surcharge shall not change
except by amendment of this section. This section shall expire on, and be
of no further force or effect after December 31, 2011.
(b) The city council may, by resolution, establish a program whereby
particular residential properties or residential apartments, licensed
pursuant to this chapter, may be certified as having met standards of
excellence in property maintenance. In such event, the executive director
of the planning and building agency shall be responsible for the
implementation of that program. Owners of property certified pursuant to
that program shall be exempt from the payment of the surcharge specified
in subsection (a) of this section for the three (3) tax years next succeeding
the time of such certification. The executive director of the planning and
building agency shall provide the executive director of the finance and
management services agency with listings of licensed properties certified
under this program, which shall be periodically updated to reflect changes.
The city council may provide for such financial limitations on the
exemptions to be granted from the surcharge as the city council deems
appropriate.
Section 4. 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 anyone or more
sections, subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
Ordinance No. NS-
11 A -3 Page 3 of 5
Section 5. Neither the adoption of this ordinance nor the repeal hereby of any
ordinance shall in any manner affect the prosecution for violation of ordinances, which
violations were committed prior to the effective date hereof, nor be construed as
affecting any of the provisions of such ordinance relating to the collection of any such
license or penalty or the penal provision applicable to any violation thereof, nor to affect
the validity of any bond or cash deposit in lieu thereof, required to be posted, filed or
deposited pursuant to any ordinance and all rights and obligations there under
appertaining shall continue in full force and effect.
ADOPTED this day of
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
Ryan O. Hodge
Assistant City Attorney
AYES:
NOES:
Councilmembers
Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
Miguel A. Pulido
Mayor
11 A -4
2010.
Ordinance No. NS-
Page 4 of 5
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS -XXX to be the original ordinance adopted by the City
Council of the City of Santa Ana on , and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
11 A -5
Ordinance No. NS-
Page 5 of 5
11 A -6
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
DESTRUCTION OF
OBSOLETE CITY RECORDS
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1St Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO _
FILE NUMBER
Approve the requests for the destruction of obsolete records from various City departments in
accordance with the retention schedule outlined in City Council Resolution 2006 -045.
DISCUSSION
On July 3, 2006, the City Council approved a resolution outlining the records retention schedule for
the agencies, departments, and offices of the City. City records are governed by the Public
Records Act which provides the time in which records need to be kept. The Citywide Records
Team compiled the Citywide Records Retention Schedule which sets forth the retention period for
a particular record. The Municipal Code requires that the destruction of a City record be approved
by the City Attorney.
In accordance with Section 5B of the Citywide Records Retention Schedule Resolution, the City
Attorney has approved the list of records proposed for destruction from the departments as
outlined in the attached documents.
FISCAL IMPACT
There is no fiscal impact associated with this item.
19C -1
19C -2
MEMORANDUM
To: Laura Sheedy, Assistant City Attorney
City Attorney's Office
From: Mark Lawrence, Executive Assistant to the City Manager
Date: December 1, 2010
Re: REQUEST FOR DESTRUCTION OF RECORDS
The City Manager's Office requests your consent to destroy city records on the attached listing,
in accordance with the retention schedule outlined in City Council Resolution 2006 -045.
Thank you.
19C -3
CITY OF SANTA ANA
OBSOLETE RECORDS DESTRUCTION SCHEDULE
CITY MANAGER'S OFFICE
2010
RECORD
RECORD
RECORD
EXPIRATION
CATEGORY
SERIES
DESCRIPTION
DATES
Chronological Files
Staff
Memoranda and Correspondence
December 1,
2008 and prior
Correspondence/
December 1,
Chronological Files
Councilmember
Self- explanatory
2008 and prior
Council Requests
Mayor
Inquiries processed for Mayor
December 1,
2008 and prior
Wards 1 through 6
Inquiries processed for Councilmembers
December 1.
2008 and prior
Correspondence
General Correspondence
Self- explanatory
December 1.
2008 and prior
Staff
Inquiries processed for Staff
December 1,
2008 and prior
Monthly Status
Reports
City Manager
Self- explanatory
December 1,
2008 and prior
Payroll Records
Council /Staff
Self- explanatory
December 1.
2008 and prior
December 1,
Travel Folders
Council /Staff
Self- explanatory
2008 and prior
APPROVE:
David N. Ream Date
City Manager
RECORDS DESTROYED:
Volume
in Cubic Feet
Weight
in Pounds
19C -4
CONSENT:
cil"t C,,�) (V�/ C-
Joieph W. Fletcher Date
City Attorney
AUDITED BY:
Mark Lawrence Date
Assistant to the City Manager
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
COMMUNITY REDEVELOPMENT AGENCY
ANNUAL REPORT FOR FY 2009 -2010
`(�
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1" Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Receive and file the Community Redevelopment Agency Annual Report for FY 2009 -2010
consisting of:
1. The Annual Audit Report as prepared by Macias Gini & O'Connell, LLP;
2. The Annual Report of Financial Transactions;
3. Housing and Community Development Report of Housing Activity of Community
Redevelopment Agencies;
4. Annual Statement of Indebtedness; and
5. All other information as required pursuant to California Redevelopment Law.
DISCUSSION
The California Health and Safety Code, which defines the powers and duties of redevelopment
agencies, requires the submittal of an annual report to the legislative body within six months of the
end of the fiscal year. The 2009 -2010 Annual Report must contain five major components: an
independent audit report, a fiscal statement for the year, a description of the Agency's activities
affecting housing and displacement, a Statement of Indebtedness, and Agency Time and Financial
Limits. Following receipt of these documents by the City Council, the report will be submitted to
the State Controller's office pursuant to California Redevelopment Law.
Audit Report
The firm of Macias Gini & O'Connell, LLP has completed the Audit Report, with a separate
opinion on compliance. The Executive Director of Finance and Management Services has
reviewed the audit and separate opinion on compliance and has determined that financial
accounting and State Controller's guidelines have been met.
2. Annual Report of Financial Transactions of Community Redevelopment Agencies
19D -1
CRA Annual Report for FY 2009 -2010
December 6, 2010
Page 2
The Annual Financial Report delineates the financial activities for all funds within the
redevelopment fund. Additionally, the report documents the achievements completed
during the fiscal year as a direct result of the activities of the Community Redevelopment
Agency.
3. Housing and Community Development Report of Housing Activity of Community
Redevelopment Agencies
In addition to general Agency financial transactions, the Housing and Community
Development Annual Report contains information regarding the low and moderate - income
housing fund and a description of the effect of redevelopment activities on housing in
general.
4. Annual Statement of Indebtedness
The Annual Statement of Indebtedness is the annual report filed with the County Auditor
describing Agency indebtedness and a reconciliation statement.
5. Agency Time and Financial Limits
In 2007, the State Legislature adopted SB437, which included a provision requiring all
redevelopment agencies to incorporate specific information regarding time limits into the
Annual Reports. The legislation requires the list of the following time limits:
1) The time limit for the commencement for eminent domain proceedings to acquire
property within the project area.
2) The time limit for the establishment of loans, advances, and indebtedness to finance the
redevelopment project.
3) The time limit for the effectiveness of the redevelopment plan.
4) The time limit to repay indebtedness with the proceeds of property taxes.
In compliance with this legislation, the redevelopment time and financial limits are included in the
Annual Report.
The Health and Safety Code mandates that the Annual Report be received by the City Council and
filed with the State Controller's office prior to December 31, 2010.
WO]!A
CRA Annual Report for FY 2009 -2010
December 6, 2010
Page 3
FISCAL IMPACT
There is no fiscal impact associated with this action.
n
Cynthia J. Nelson
Deputy City Manager for Development Services
Community Development Agency
CJN /NTE /mlr
Exhibit: 1. CRA Annual Report for FY 2009 -2010
i%] 051
19D -4
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
CLERK OF COUNCIL USE ONLY:
TITLE APPROVED
REQUEST FOR PROPOSALS FOR ❑ As Recommended
TESTING AND INSPECTION SERVICES ❑ As Amended
❑ Ordinance on 15` Reading
FOR VARIOUS CAPITAL ❑ Ordinance on 2nd Reading
IMPROVEMENT PROJECTS ❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Authorize the Public Works Agency to send a Request for Proposals to qualified consulting firms
to provide testing and inspection services for various capital improvements projects.
DISCUSSION
The City will be undertaking construction of several major projects, including the First Street
bridge widening over the Santa Ana River. These projects include construction of cast -in- place,
precast, and prestress reinforced concrete; masonry; earthwork; asphalt concrete; and other
types of work. To ensure quality, a variety of tests and inspections must be performed for the
workmanship and construction materials used on the job. Since City staff does not have the
required special certificates to provide inspection and testing on this type of work, these services
must be performed by a qualified professional testing and inspection firm. Staff is requesting
City Council approval to issue a Request for Proposals to qualified consulting firms, soliciting
proposals to provide the required services (Exhibit 1).
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
There is no fiscal impact associated with release of this Request for Proposals.
Raul Godinez I1�
Executive Director
Public Works Agency
Exhibit 1: Scope of Work
19E -1
19E -2
SCOPE OF WORK
REQUEST FOR PROPOSALS FOR
TESTING AND INSPECTION SERVICES FOR
VARIOUS CAPITAL IMPROVEMENT PROJECTS
Scope of Work:
1. Provide field inspections and compaction tests for grading, trench backfill
and asphalt concrete pavement construction according to the project special
provisions, the Standard Specifications for Public Works Construction
( "Green Book ") and Caltrans Standard Specifications. Submit daily field
reports to the City and a final report after work is completed.
2. Provide inspections for installation of precast and cast in -place concrete,
welding, high strength bolts, structural steel, masonry, painting and other
types of work in accordance with the California Building Code (CBC) and
the contract documents. Submit field reports to the City immediately after
inspections are completed. All deputy inspectors shall register with the
City's Planning and Building Agency prior to start inspection.
3. Perform tests on various construction materials as required by the City.
4. Inspectors who perform work in confined areas or at elevated levels shall be
certified or trained for confined space and fall protection.
5. Recommend testing method on defective work and advise the City of
acceptance standards.
6. Provide source inspection for concrete and asphalt concrete at mixing plants,
and inspection for other materials at their source as required by the project
specifications.
7. Provide other quality control services as requested by the City.
8. Field reports shall be submitted daily to the City. Submit and distribute typed
inspection and testing reports to the City's Public Works Agency and the
Planning and Building Agency in accordance with "Green Book" and "CBC"
requirements and to other concerned parties within a week after the work is
performed.
9. Submit a final report to the City within five working days upon completion of
each project.
Exhibit 1
19E -3
19E -4
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
APPROPRIATION ADJUSTMENT —
WORKFORCE INVESTMENT ACT RAPID
RESPONSE FUNDS
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1" Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For,
CONTINUED TO
FILE NUMBER
Approve an appropriation adjustment recognizing additional revenues from the State of California
in the amount of $97,852 for Workforce Investment Act Rapid Response activities.
DISCUSSION
The State of California has announced the funding for the Rapid Response program for Fiscal
Year 2010 -11. The Rapid Response program provides funding to assist companies in Santa Ana
who are downsizing or closing their facilities. These funds will be used for staff and operational
costs for the program. The total amount awarded to Santa Ana is $300,222. A planning figure of
$202,370 was approved by the City Council in the City's 2010 -11 budget for Rapid Response.
This appropriation adjustment will increase the budget for Rapid Response to reflect the actual
amount received of $300,222.
FISCAL IMPACT
Upon approval of the appropriation adjustment, funds will be available in the Workforce
Investment Rapid Response account (no. 12318756- 62300/11700701213).
Cynthia J. Nels n
Deputy City Manager for
Development Services
Community Development Agency
CJ N /LM /mlr
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
20A -1
` ll"
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
Cal -EMA — HAZARDOUS
MATERIALS EMERGENCY
PREPAREDNESS GRANT 2010
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on is' Reading
❑ Ordinance on 2 "d Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
1. Authorize the City Manager to accept a Hazardous Materials Emergency Preparedness Grant in
the amount of $19,200 and designate $4,800 in City funds required for the 20% match.
2. Approve the Appropriation Adjustment for the Cal -EMA — Hazardous Materials Emergency
Preparedness Grant 2010 expenditure account.
DISCUSSION
The State of California, Emergency Management Agency has awarded the City of Santa Ana Fire
Department an additional Hazardous Materials Preparedness (HMEP) Grant 2010, for the period of
October 1, 2010 through September 30, 2011. The grant is for $24,000 consisting of $19,200 in grant
funds and a required 20% ($4,800) in matching funds. The grant is for the development or updating of
an emergency response plan to mitigate potential incidents involving the transporting of hazardous
materials through the City of Santa Ana.
FISCAL IMPACT
Approval of the Appropriation Adjustment will increase revenues in the Cal -EMA Hazardous Materials
Emergency Preparedness (HMEP) Grant 2010 revenue account (account no. 14615002- 52000) by
$19,200 and appropriate same into the HMEP Grant various expenditure accounts (account no.
14615355- various). The required 20% match ($4,800) is available in the various Fire accounts
(01115310- various).
David Thomas
Fire Chief
Fire Department
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
41UN
ql =
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
CONTRACT AWARD TO
WEST -LITE SUPPLY CO.
FOR STREET LIGHTS
(SPEC. NO. 10 -047)
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1St Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Award a contract to West -Lite Supply Co., Inc. for streetlights in the amount of $76,080; and
increase the aggregate limit by $15,000 for lamps, ballasts & accessories in an annual amount
not to exceed $91,080.
DISCUSSION
The City maintains approximately 375 historic cast iron streetlights located in Floral Park and
Wilshire Square neighborhoods. Several streetlights have deteriorated and internal fixtures have
ceased functioning. Given the age and condition of the streetlights, it is more cost effective to
replace than to continue maintaining. Replacing the damaged streetlight poles and internal parts
will increase the effectiveness, longevity, and appearance of the City's historic streetlight
systems.
The notice inviting bids was advertised on November 2, 2010 and bids were solicited. A
summary of the bid invitations and bids received is as follows:
7 Invitations For Bid mailed
3 Bids received
Bids were received and opened on November 15, 2010 and evaluated (Exhibit 1). The bid
received from West -Lite Supply Co., Inc. is responsive to the specification and meets the City's
requirements.
Additionally, West -Lite Supply provides an assortment of light bulbs, fluorescent lamps, ballasts,
and accessories such as electrical cords and surge suppressors to Central Stores for distribution
to various departments throughout the City. The purchase of street lights, when combined with
previous purchases during the current fiscal year, will exceed the $25,000 aggregate limit. In
order to facilitate future purchases, staff recommends an increase to the aggregate limit.
22A -1
Contract Award to West -Lite Supply Co. for Street Lights
December 6, 2010
Page 2
FISCAL IMPACT
Funds are available in the Public Works Agency Street Light Maintenance account (account no.
01117630 63001) and in the various departmental Operating Materials and Supplies accounts
(63001).
Raul Godinez II
Executive DirectaT
Public Works Agency
APPROVED AS TO FUNDS AND ACCOUNT:
Francisco Gutierrez
Executive Director
Finance & Mgmt. Services Agency
22A -2
ABSTRACT OF BIDS
CONTRACT AWARD FOR STREET LIGHTS (10 -047)
Vendor West -Lite M12 South Coast
Supply Engineering Lighting & Design
Location
Cerritos
Adelanto
San Clemente
Total
$ 76,080
$ 95,079
$ 98,146
Exhibit 1
22A -3
22A -4
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
CONTRACT AWARD FOR
FLUKE NETWORKS EQUIPMENT
AND MAINTENANCE
(SPEC. NO. 10 -049)
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1" Reading
❑ Ordinance on 2 "d Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Award a contract to Fluke Networks for the purchase of network monitoring equipment and
maintenance in an amount not to exceed $38,000.
DISCUSSION
The City's computer network has over 2,200 devices connected to it. The network itself includes 220
pieces of network equipment, over 35 leased data circuits, fiber optic cables, wireless laser optical
links, and miles of copper wiring. To maintain such a complex technical environment, the network
services unit of the City's Information Services Division employs sophisticated and troubleshooting
equipment from Fluke Networks, Inc.
After eight years of service, a major component of this monitoring equipment has reached the end of
its life from the manufacturer. Additionally, the support and maintenance of the vital technology gear
is no longer available from the manufacturer. Acquiring replacement equipment with enhanced
capabilities will enable proactive monitoring of the City's critical computer network. Such monitoring
will help ensure high reliability and secure connectivity for all City computer users including those in
public safety operations to maintain the City's 99.99% uptime on its computer network.
Prior to the January 1, 2000 Y2K switch, the City established a standard for network infrastructure by
selecting Fluke for network test equipment. Fluke has served as an industry premier provider within
the frame work of cost effective pricing. In order to maintain the accurate monitoring of the system,
Staff recommends the replacement equipment.
22B -1
Contract Award for Fluke Networks
Equip & Maintenance
December 6, 2010
Page 2
The notice inviting bids was advertised on November 10, 2010, and bids were solicited. A summary
of the bid invitations and bids received is as follows:
4 Invitations For Bid emailed
6 Bids received
Bids were received and opened on November 22, 2010, and evaluated (Exhibit 1). The bid from
Fluke Networks is responsive to the specification and meets the City's requirements.
FISCAL IMPACT
Funds are available in the Information Systems Strategic Plan Maintenance and Support account
(no. 10910147 66400).
APPROVED AS TO FUNDS AND ACCOUNTS:
LL A.-
Francisco Gutierrez
Executive Director
Finance & Mgmt. Services Agency
EG
Exhibit 1 Abstract of bids
G
I
CITY OF SANTA ANA
PURCHASING DIVISION
ABSTRACT OF BIDS
(SPEC. NO. 10 -049)
Bidder
Fluke
En Pointe
CDW Gov't
Networks
Services
Technology
Location
San Francisco,
Gardena, CA
Vernon Hills,
Location
CA
San Diego, CA
IL
Terms
Net 30
Net 30
Net 30
Delivery
10 Days ARO
12 -18 Days
2 -10 Days
Delivery
10 Days ARO
ARO
30 Days ARO
Total
$34,792.00
$45,116.38
$45,780.00
Bidder
OM Supply
Business
Aprisa
Inc.
Services
Technology
LLC
Location
Mechanicsburg
San Diego, CA
Roslyn, NY
PA
Terms
Net 30
N/A
Net 30
Delivery
10 Days ARO
N/A
30 Days ARO
Total
$46,286.00
$46,937.92
$47,092.00
Exhibit 1
OA :151
22B -4
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
CLERK OF COUNCIL USE ONLY:
TITLE: APPROVED
CONTRACT AWARD FOR RAITT ❑ As Recommended
STREET REHABILITATION BETWEEN ❑ As Amended
WARNER AND EDINGER AVENUES E) Ordinance on Reading
Ordinance on 2 "n d Reading
(PROJECT NO. 116745) ❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Award a contract to All American Asphalt, the lowest responsible bidder, in accordance with
unit bid prices in the estimated amount of $989,215 for construction of Raitt Street
Rehabilitation between Warner and Edinger Avenues.
2. Approve a Funding Analysis with a total estimated construction cost of $1,236,500.
DISCUSSION
Raitt Street between Warner and Edinger Avenues has been identified as a high priority on the
City's Pavement Management System (Exhibit 1). The pavement is deteriorating due to weather,
age and heavy usage. Some of the adjacent curbs, gutters, sidewalks, driveway approaches and
curb ramps are also in various states of disrepair and require replacement. This project provides
for construction of new street pavement and replacement of damaged concrete curbs, gutters,
sidewalks, driveway approaches, and curb ramps. Once completed, these improvements will
enhance the ride quality, surface drainage and visual appearance of the street.
The Notice Inviting Bids was advertised on October 29 and November 1, 2010, and bids were
opened on November 18, 2010. A summary of the bid invitations mailed, the bids received, and
the bid results follows.
Santa Ana Contractors receiving notices: 15
Contractors requesting bidding documents: 13
Bids received: 7
Bids received from Santa Ana Contractors: 1
While the City made outreach efforts to Santa Ana contractors regarding the Notice Inviting Bids,
only one of the 15 Santa Ana contractors submitted a bid as a prime contractor, Hardy and Harper.
The other 14 Santa Ana contractors did not submit a bid because they are not capable of
23A -1
Contract Award For Raitt Street
Rehabilitation
December 6, 2010
Page 2
performing this type of work, the project is too large, they are unable to obtain insurance, or they
work as a subcontractor to certain prime contractors.
NAME OF RESPONSIVE BIDDER
CITY
BID AMOUNT
1.
All American Asphalt
Corona
$ 989,215
2.
Excel Paving Co.
Long Beach
$1,015,156
3.
Hardy & Harper, Inc.
Santa Ana
$1,016,000
4.
Elite Bobcat Service, Inc.
Corona
$1,041,517
5.
R.J. Noble Company
Orange
$1,084,282
6.
Silva Construction, Inc.
Rancho Cucamonga
$1,088,607
7.
Hillcrest Contracting
Corona
$1,192,278
A total of seven bids were received and all were responsive. The lowest bid was submitted by All
American Asphalt for $989,215, which is below the Engineer's estimate of $1,000,850.
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, the proposed project is exempt from
future review. Categorical Exemption Environmental Review No. 2010 -131 will be filed for the
project.
FISCAL IMPACT
The funding analysis shows a total estimated construction cost of $1,236,500 for the project
(Exhibit 2). Funds are available in the Proposition 1 B Fund (accounting unit 03017660- 66220).
Raul Godinez II !\, /
Executive DirectorV
Public Works Agency
RGNVA
Exhibit 1: Project Location Map
2: Funding Analysis
APPROVED AS TO FUNDS AND ACCOUNTS:
-� ��Jtn . . -�k � .4. Q I
Francisco Gutierrez
Executive Director
Finance & Mgmt. Services Agency
® PROJECT AREA
SANTA ANA
Pr■W1 CITY COUNCIL
AGENDA DATE:
DECEMBER 6,2010
PUBLIC hum Amnn
EDINGER
WARNER AV A�
J1
TITLE:
EXHIBIT 1
RAITT STREET REHABILITATION
BETWEEN WARNER AND EDINGER AVENUES
(PROJECT NO. 116745)
i
N.T.S
FUNDING ANALYSIS
PROJECT NO. 116745
RAITT STREET REHABILITATION BETWEEN
WARNER AND EDINGER AVENUES
Construction Contract $989,215
Contract Administration $30,364
Inspection and Testing $78,000
Survey Staking $40,000
Contingencies $98,921
TOTAL ESTIMATED CONSTRUCTION COSTS $1,236,500
Exhibit 2
23A -4
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY:
DECEMBER 6, 2010
TITLE: APPROVED
INCREASED CONTINGENCY FOR ❑ As Recommended
TRAFFIC SIGNAL INSTALLATION ❑ As Amended
AND MODIFICATION AT FOUR
El Ordinance on 151 Reading
❑ Ordinance on 2 "d Reading
LOCATIONS (PROJECT NOS. 085017, ❑ Implementing Resolution
085021, 085022 AND 085023) ❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Increase the contingency for the contract with Lincoln Pacific Builders, Inc. for Traffic Signal
Installation and Modification at four locations by $52,300 to a total estimated contract amount of
$793,166 and authorize the City Manager to execute a change order in an amount not to
exceed the authorized contingency.
DISCUSSION
Last year the City awarded a contract for Traffic Signal Installation and Modification at four
locations to Lincoln Pacific Builders, Inc. in the estimated amount of $673,515 plus a
contingency of $67,351 totaling $740,866. One of the four locations is the traffic signal
modification at Flower Street and Santa Ana Boulevard.
When this intersection was originally designed, the project scope was reduced by eliminating the
upgrade to the signal communication system to stay within the available Hazard Safety
Improvement grant funds. With an actual bid that is lower than the available funding, the City is
able to include the signal communication system upgrade. This upgrade requires the approval
of a change order.
A change order in an amount not exceed $52,300 is required to upgrade the signal
communications system. This modification will be paid based on a per unit basis, subject to the
not to exceed amount.
ENVIRONMENTAL IMPACT
This is no environmental impact associated with this action.
23B -1
Increased Contingency for Traffic
Signal Installation and Modification
At Four Locations
December 6, 2010
Page 2
FISCAL IMPACT
The contingency increase is $52,300. Funds are available in the Select Street Construction
Fund (accounting unit 05917660- 66220), the Measure M Street Construction Fund (accounting
unit 03217660- 66220), the Federal Aid Safety Fund (accounting unit 14717611- 66220), and the
Traffic System Management Grant Fund (accounting unit 14817611- 66220).
f 1� 6 k-
Rauttbanez II
Executive Direct
Public Works Agency
RG/TC
W
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco utierrez
Executive Director
Finance & Management Services Agency
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
AGREEMENT FOR ENVIRONMENTAL
SERVICES WITH URS CORPORATION TO
PREPARE AN EIR FOR A 24 -UNIT SINGLE
FAMILY RESIDENTIAL DEVELOPMENT AT
1584 E. SANTA CLARA
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
/0299 OW 7
❑ As Recommended
❑ As Amended
❑ Ordinance on 1St Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and the Clerk of the Council to execute the attached agreement with
URS Corporation for environmental services in an amount not to exceed $48,335 for a new 24 -unit
single - family residential development at 1584 East Santa Clara Avenue, subject to non - substantive
changes approved by the City Manager and City Attorney.
DISCUSSION
In April 2010, Tava Development contacted the City with hopes to re- commence development of
the former Empire Homes 24 -unit single family residential development at 1584 East Santa Clara
Avenue. The Tava Development proposal will be similar in scope, layout and quality to the project
previously proposed by Empire Homes. An environmental impact report is required for this project
pursuant to the California Environmental Quality Act.
A Request for Proposal was circulated to three qualified environmental firms in 2007 as a part of
the Empire Homes proposal. URS Corporation was selected as the environmental consultant and
it thereafter began work on the EIR. URS had nearly completed the draft EIR when, in 2009,
Empire Homes decided to cancel the project due to economic circumstances. Work on the EIR
was discontinued at that time.
It is recommended that URS Corporation be awarded this contract to complete the EIR because of
its track record in preparing high quality environmental studies, its familiarity with the City and its
detailed background and knowledge about this project. URS proposes to update the prior nearly -
complete EIR in all material respects. The fee proposal to complete this effort is $48,335. Funding
for the prior work on the EIR was provided entirely by Empire Homes; funding to complete the EIR
would be provided by Tava Development.
25A -1
Agreement with URS Corporation
December 6, 2010
Page 2
FISCAL IMPACT
This agreement will not impact any City /Agency funds. Funds in the amount of $48,335 will be
deposited by Tava Development into the Planning and Building Agency account for, contractual
services (No. 09801001 - 24035) prior to the consultant commencing any work.
APPROVED AS TO FUNDS AND ACCOUNTS:
J4 M Trevino Francisco Gutierrez
Ex66utive Director Executive Director
Planning and Building Agency Finance & Management Services Agency
VF:rb
Vflreports \URS Corporation E I R contract.cc120610
Exhibit: 1. Agreement
25A -2
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, made and entered into this day of , 2010 by and
between URS CORPORATION, a Nevada corporation ( "Consultant'), doing business as URS
Corporation Americas, and the City of Santa Ana, a charter city and municipal corporation of the
State of California ( "City ").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field
of professional environmental reports and services.
B. Consultant represents that Consultant is able and willing to provide such services to the
City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall provide professional environmental services, including the preparation
of a Focused Environmental Impact Report regarding the TAVA Development project. The
scope of services (including estimated fees and costs) is attached hereto as Exhibit A and is
incorporated by this reference to this Agreement.
2. DELIVERY OF WORK PRODUCT
Consultant shall deliver to City all work product which results from the services
provided. Said work product shall be submitted in hard copy and produced in a form compatible
with the City's computer system, as agreed between the Project Manager and Consultant. In
regard to all copyrightable material produced as a deliverable under this Agreement, including
but not limited to books, reports, plans, photographs, drawings, films, recordings, videotapes,
and computer programs, Consultant agrees, for itself and for its affected officers, employees,
agents, contractors, and volunteer workers, that (a) other such material may not be copyrighted
without prior review from the City, and (b) the authors of all such material, whether copyrighted
or not, award to the City, and to its officers, agents and employees acting within the scope of
their official duties, as a condition of payment to the Consultant, a royalty -free, nonexclusive,
irrevocable license throughout the world for governmental purposes to disclose, publish,
translate, reproduce, and use such materials.
25A -3
3. COMPENSATION
City agrees to pay, and Consultant agrees to accept as total payment for its services, the
cumulative rates and charges identified in Exhibit A. The total sum to be expended under this
Agreement shall not exceed $48,335.0.0 during the term of this Agreement. 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.
4. TERM
This Agreement shall commence on the date first written above and terminate upon the
completion of the Scope of Services or depletion of the maximum contract amount as stated in
Section 3 above, unless terminated earlier in accordance with provisions, below. The term of this
Agreement may be extended upon a writing executed by the City Manager and the City
Attorney.
5. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer- employee relationship, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries
and wages, employer's social security taxes, unemployment insurance and similar taxes relating
to employees and shall be responsible for all applicable withholding taxes.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance naming the City, its officers, employees, agents, volunteers
and representatives as additional 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 Consultant's operations in the performance of this Agreement,
including, without limitation, acts involving vehicles. The amounts of insurance shall
be not less than the following: single limit coverage applying to bodily and personal
injury, including death resulting therefrom, and property damage, in the total amount
of $1,000,000 per occurrence. Consultant shall supply City with a fully executed
2
25A-4
additional insured endorsement in substantially the form attached hereto as Exhibit B
upon execution of this Agreement and 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, Consultant, if Consultant has any employees, is required to be
insured against liability for worker's compensation or to undertake self- insurance.
Prior to commencing the performance of the work under this Agreement, Consultant
agrees to obtain and maintain any employer's liability insurance with limits not less
than $1,000,900 per accident.
d. Professional liability (errors and omissions) insurance, with a combined single limit
of not less than $1,000,000 per claim.
e. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
(i) Consultant shall maintain all insurance required above in filll 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.
£ If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has
been procured and is in force and paid for, the City shall have the right, at the City's
election, to forthwith terminate this Agreement. Such termination shall not affect
Consultant's right to be paid for its time and materials expended prior to notification
of termination. Consultant waives the right to receive compensation and agrees to
indemnify the City for any work performed prior to approval of insurance by the City.
7. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability: (1) for personal
injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims
for personal injury, including health, and claims for property damage, which may arise due to
negligent acts, omissions or willful misconduct, from the direct or indirect'operations of the
Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their
behalf which relates to the services described in section 1 of this Agreement; and (2) from any
Kl
25A -5
claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is
due by reason of the terms of or effects arising from, and to the extent of Consultant's, negligent
acts, omissions or willful misconduct in the performance of this Agreement.
8. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees
that it shall not use or disclose such information except in the performance of this Agreement,
and further agrees to exercise the same degree of care it uses to protect its own information of
like importance, but in no event less than reasonable care. "Confidential Information" shall
include all nonpublic information. Confidential information includes not only written
information, but also information transferred orally, visually, electronically, or by other means.
Confidential information disclosed to either party by any subsidiary and/or agent of the other
party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure
shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is,
through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful
possession of the Consultant without an obligation of confidentiality; (d) is required to be
disclosed by operation of law; or (e) is independently developed by the Consultant without
reference to information disclosed by the City.
9. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under
this Agreement.
10. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person or
mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
To City: City of Santa Ana
C/o Clerk of the Council
20 Civic Center Plaza
P,O. Box 1988
Santa Ana, CA 92702 -1988
telefacsimile (714) 647 -6956
With copy to: Executive Director of PBA
City of Santa Ana
20 Civic Center Plaza
P.O, Box 1988
Santa Ana, California 92702
1
telefacsimile (714) 973 -1461
and City Attorney
City of Santa Ana
20 Civic Center Plaza (M -29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -6515
To Consultant:URS Corporation
Harley S. Martin
Vice President
Division Manager
Environmental Planning
2020 East First Street, Suite 400
Santa Ana, CA 92705
telephone (714) 648 -2899
cell (714) 227 -8597
telefacsimile (714) 433 -7701
harley_jnai-tin@urscoi-p.com
urscorp.com
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, communication shall be effective or
deemed to have been given twenty -four (24) hours after the time set forth on the transmission
report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of
calculating these time frames, weekends, federal, state, County or City holidays shall be
excluded.
11. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the
terms of this Agreement shall prevail. This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any proposal or other instrument that are inconsistent with,
or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the
City. Each party to this Agreement acknowledges that no representations, inducements, promises
or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein.
25A -7
12. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
13. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
'termination. In such event, Consultant shall be entitled to receive and the City shall pay
Consultant compensation for all services performed by Consultant prior to receipt of such notice
of termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to
deliver to the City all work product completed as of such date, and in such case such
work product shall be the property of the City unless prohibited by law, and
Consultant consents to the City's use thereof for such purposes as the City deems
appropriate.
b. Payment need not be made for work which fails to meet the standard of performance
specified in the Recitals of this Agreement.
14. NON - DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
15. JURISDICTION -VENUE
This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of thisAgreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
16. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
0
'i
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals,
waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
17. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the
power, authority and right to bind their respective parties to each of the terms of this
Agreement, and shall indemnify City fully, including reasonable costs and attorney's
fees, for any injuries or damages to City in the event that such authority or power is
not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
fist above written.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
Ryan O. Hodge
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
JAY TREVINO'
Executive Director - PBA
CITY OF SANTA ANA
DAVID N. REAM
City Manager
URS CORPORATION
HARLEY S. MARTIN
Vice President
7
EHIBIT A
SCOPE OF SERVICES
(Attached)
25A -10
0
October 12, 2010
Mr. Vincent C. Fregoso, AICP
City of Santa Ana.
Planning and Building Agency
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
RE: TAVA Development — Proposal to Reinitiate Preparation of Focused Environmental Impact
Report
Dear Mr. Fregoso:
URS is pleased to present herein our proposal to reinitiate preparation of the Focused Environmental
Impact Report (EIR) regarding the TAVA Development project (formerly known as the Empire Homes
EIR project). As you are aware, URS coordinated with the City of Santa Ana (City) to prepare the
Focused EIR up until December 2008; subsequently, the proposed project was put on hold indefinitely.
Therefore, this proposal includes efforts associated with reinitiating preparation and obtaining approval of
the Focused EIR, The below scope of work details the efforts, as discussed and confirmed with the City,
to prepare and obtain approval of the Focused EIR or this project.
Task I.— Project Management
It is assumed that the project schedule would not exceed 8 months in duration from date of notice to
proceed received from the City. This task includes day -to -day management of the project, issuing status
reports and billings once per month, and setting up and re- opening the project within URS' accounting
system for reporting and invoicing. This particular task also assumes attendance by the URS' Project
Manager at one kick -off meeting.
Task 2 — Updat Air QuAlity Study
The current version of the air quality study previously prepared by URS will be updated to account for
current regulations pertaining to greenhouse gas (GHG) emissions regulations and South Coast Air
Quality Management District's Interim GHG Thresholds.
It is assumed that the air quality study will be reviewed by the City only, and require no more than one
revision based on the City's review.
Task — Update Traffic Im t Study
KOA Corporation, URS' traffic subconsultant for this project, will update the previously prepared and
City - approved Traffic Impact Study as agreed to by and with the City,
URS Corporation
2020 East First Street, Suite 400
Santa Ana, CA 92705
Tel: 714.835.6886
Fax: 714.667.7147
www.urscorp.com
25A -11
2010 - Existing Condition Analysis
KOA will not conduct additional traffic counts. The 2010 existing conditions will be represented by the
old counts based on the understanding that the 2010 counts are less than the old counts due to the
economic meltdown. The old counts should represent more conservative conditions. Sample
comparison table and explanation with why we are not recounting and recalculating all intersections will
be included in the updated report. The City will provide traffic counts conducted in October 2009 for
KOA to conduct the comparison analysis.
2012 - Project Built Out Condition Analysis
KOA will contact the City to obtain the updated the cumulative project lists and update the analysis
accordingly,
2035 - General Plan Build Out Condition Analysis
KOA will use OCTAM 3.3 model to generate 2035 volumes. Post processing will be performed in
order to obtain a set of 2035 volume data for operational analysis. KOA has recently completed
another study in City of Santa Ana, however, the study area is not within the close proximity of this
project.
Revise Cut - Through Traffic
The revision will be based on the analysis scenarios indicated in Task I through Task 3.
It is assumed that the Traffic Impact Study will be reviewed by the City only, and require no more than
one revision based on City input.
Task 4 — Hazardous Materials Records Search
The EIR, as prepared by URS to date, incorporates the results of a Phase I Environmental Site
Assessment (ESA) prepared in 2007 (as contracted directly from Empire Homes to LandAnierica
Assessment Corporation). Given the date of the above - reference Phase I ESA, URS will conduct an
updated regulatory database search (e.g., Environmental Data Resources, Inc.) to identify any potential
hazardous waste and materials concerns that were not otherwise identified in that 2007 Phase I ESA. The
EIR will be updated to state that a subsequent regulatory database search was performed to supplement
the initial Phase I ESA.
This proposal does not include preparation of an updated Phase I ESA, or level of reporting or
investigation not otherwise described herein.
Task 5 — Update Draft EIR for Public Circul
This task involves updating the pertinent sections of the Draft EIR to account for the updated technical
studies as described herein (i.e., traffic, hazardous waste, and air quality). It is assumed that the updated
EIR will be reviewed by the City no more than once prior to public circulation.
Task 6 — Prepare Notice of Completion and Circulate Draft EIR
URS will prepare the Notice of Completion for the City's transmittal to the State Clearinghouse and
County Clerk's Office. It is assumed that the City will update the Draft EIR distribution mailing list that
was previously compiled (by the City) as part of URS' original contract. It too is assumed that the project
proponent and/or City .will mail copies of the Draft EIR to those individuals and agencies to whom it
25A -12
needs to be mailed to. The cost estimate provided for this particular task assumes that URS will reproduce
the necessary number of copies of the Draft EIR for the City's/proponent's public distribution (assumed to
be no more than 30 copies). It is also assumed that the City will create and post the public notice
providing availability of the Draft EIR and notice of the public meeting in one newspaper of general
circulation.
Task 7 — Public Meetine on Draft EIR
Based on previous discussions with the City, it is assumed that one public meeting (open -house format)
will be held on the Draft EIR during the 45 -day public review period. It will be the responsibility of the
City to secure the meeting venue. It is assumed that two URS staff, including the Project. Manager, and
one staff member from each KOA Corporation and Discovery Works, Inc. will attend the public meeting.
URS will assist the City to compile comments received at the public meeting for presentation in a memo
prepared by URS for inclusion with the Final EIR.
URS will prepare a maximum of four (4) boards for presentation at the public meeting.
URS will prepare a black and white, 8.5" x 11" comment card that will be made available at the public
meeting and can be used by the public to record and mail comments to the City for inclusion in the Final
EIR. Those submitting comments (commentors) using this card would be responsible for postage.
It is assumed that no formal presentation will be required of URS staff at the public meeting.
It is also assumed that URS will not be responsible for retaining an entity to record public
comments (e.g., court reporter).
Task 8 -- Prepare Responses to Comments on Draft ElR and Prepare Final EIR
URS, including its traffic and cultural resources subconsultants, will coordinate with the City to prepare
responses to comments received on the Draft EIR during its 45 -day public review circulation period. It is
assumed that no more than 20 comments (a maximum of 5 of which will be cultural resources related; a
maximum of 5 of which will be traffic analysis related) will be received on the Draft EIR, and none of the
comments received will require additional analysis not already addressed in the technical studies that
support the EIR. KOA Corporation will prepare responses to the traffic- related comments, and Discovery
Work, Inc. will prepare responses to the cultural resources related comments on the Draft HM. URS will
prepare responses to the remaining comments (i.e., 10) received on the Draft EIR.
Task 9 — Attend Planning Commission and City Council Meetings
In addition to attendance at the public meeting on the Draft EIR as described above in Task 7, the URS
Project Manager will attend one Planning Commission Meeting and one City Council Meeting, at which
time the project will be considered for approval.
Task 10 — Prepare Notice of Determination
URS will prepare the Notice of Determination (NOD) for the City's transmittal to the State
Clearinghouse. URS is not responsible for any associated filing fees (e.g., CA Dept. of Fish and
Game) associated with the NOD submittal.
25A -13
Additional Assumptions:
• The project description and details remain as reflected in the Draft EIR that has been
prepared by URS, If the project description changes, URS reserves the right to assess
those changes and adjust its scope of work and fee proposal accordingly for
reconsideration by the City.
• Except as noted otherwise herein, none of the technical studies and analyses already
approved by the City [e.g., Cultural Study Report (Discovery Works, Inc. September
2008), etc,] for this project will need to be updated for inclusion in the EIR.
• This proposal assumes, as stated in Task 7, that one staff member (e.g., Beth Padon) from
Discovery Works, Inc. will attend the public meeting on the Draft EIR; this would not
include an architectural historian (e.g., Foothill Resources Ltd,, subconsultant to
Discovery Works, Inc.).
• The proposal does not include efforts associated with obtaining any permits.
This proposal does not include any project - required fling fees.
Project Schedule
With regards to project schedule, and for the purposes of this proposal as noted above, it is
assumed that the project duration will be 8 months. Once notice to proceed is received from the
City, USR will coordinate with the City to develop a detailed schedule identifying key milestone
dates.
Cost Estimate
The time- and - materials cost estimate to perform the work described herein is $48,335.00.
Attachment A includes the detailed fee estimate.
Should you have any questions regarding this proposal, please call me at (714) 835 -6886.
Sincerely,
URS CORPORATION
Attachment A — Fee Proposal
Vice President
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ATTACHMENT A
Fee Proposal
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25A -16
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25A -16
EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its
officers, employees, agents, volunteers and representatives are named as additional insureds
( "additional insureds ") with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective.)
Effective
Policy # _
Issued to
this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative
25A -17
aVlw:�
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
AGREEMENT FOR ENVIRONMENTAL
SERVICES WITH THE PLANNING CENTER
•T
CITY MANAGER
RECOMMENDED ACTION
Authorize the City Manager and the Clerk of the
The Planning Center for environmental services
Mixed Use Transit Corridor Plan along Harbor
approved by the City Manager and City Attorney.
DISCUSSION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑
As Amended
❑
Ordinance on 15t Reading
❑
Ordinance on 2 d Reading
❑
Implementing Resolution
❑
Set Public Hearing For_
CONTINUED
TO
FILE NUMBER
Council to execute the attached agreement with
n an amount not to exceed $152,184 for Harbor
Boulevard, subject to non - substantive changes
Through the Southern California Association of Government's (SCAG) Compass Blueprint
Demonstration Program, the City of Santa Ana has been awarded approximately $200,000 for
consultant services to prepare the Harbor Boulevard Mixed Use Transit Corridor Plan. The
proposed Harbor Mixed Use Transit Corridor will include a study of the market feasibility, public
services and infrastructure, community outreach, and recommendations for a new sustainable land
use plan. After reviewing the Harbor Corridor Plan proposal, it was determined that an EIR will be
required to meet the requirements of the California Environmental Quality Act (CEQA).
Request for Proposals were received from four qualified planning and environmental firms. After
reviewing the proposals, The Planning Center was selected by SCAG to prepare the Harbor Mixed
Use Transit Corridor Plan based on the firm's experienced staff, knowledge of the study area, and
ability to complete the work in a timely manner. Therefore, The Planning Center is recommended
as the best choice for the environmental consultant for the project. The consultant has identified a
cost of $152,184 for the mitigated negative declaration to be prepared (Exhibit 1).
25B -1
Agreement with The Planning Center
December 6, 2010
Page 2
FISCAL IMPACT
Funds in the amount of $52,184 are available in the Planning and Building Agency account for
other contractual services (no. 01116510 - 62300), and funds in the amount of $100,000 are
available in the Air Quality Management Trust Fund (no. 03116510- 62300). The total contract
amount will not exceed $152,184.
APPROVED AS TO FUNDS AND ACCOUNTS:
t
J . Trevino Francisco Gutierrez
Executive Director Executive Director
Planning and Building Agency Finance & Management Services Agency
MM:rb
mm \HarborCor\RFP RFCAccContract
Exhibit: 1. Agreement
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, made and entered into this day of , 2010 by and
between THE PLANNING CENTER, a California corporation ( "Consultant "), and the City of
Santa Ana, a charter city and municipal corporation of the State of California ( "City ").
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field
of professional environmental reports and services.
B. Consultant represents that Consultant is able and willing to provide such services to the
City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall provide professional environmental services, including the preparation
of a mitigated negative declaration regarding the Harbor Boulevard Mixed Use Transit Corridor
Plan project. The scope of services (including estimated fees and costs) is attached hereto as
Exhibit A and is incorporated by this reference to this Agreement.
2. DELIVERY OF WORK PRODUCT
Consultant shall deliver to City all work product which results from the services
provided. Said work product shall be submitted in hard copy and produced in a form compatible
with the City's computer system, as agreed between the Project Manager and Consultant. in
regard to all copyrightable material produced as a deliverable under this Agreement, including
but not limited to books, reports, plans, photographs, drawings, films, recordings, videotapes,
and computer programs, Consultant agrees, for itself and for its affected officers, employees,
agents, contractors, and volunteer workers, that (a) other such material may not be copyrighted
without prior review from the City, and (b) the authors of all such material, whether copyrighted
or not, award to the City, and to its officers, agents and employees acting within the scope of
their official duties, as a condition of payment to the Consultant, a royalty - free, nonexclusive,
irrevocable license throughout the world for governmental purposes to disclose, publish,
translate, reproduce, and use such materials.
W �1,
COMPENSATION
City agrees to pay, and Consultant agrees to accept as total payment for its services, the
cumulative rates and charges identified in Exhibit A. The total sum to be expended under this
Agreement shall not exceed $152,184.00 during the term of this Agreement. 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.
4. TERM
This Agreement shall commence on the date first written above and terminate upon the
completion of the Scope of Services or depletion of the maximum contract amount as stated in
Section 3 above, unless terminated earlier in accordance with provisions, below. The term of this
Agreement may be extended upon a writing executed by the City Manager and the City
Attorney,
5. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer- employee relationship, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries
and wages, employer's social security taxes, unemployment insurance and similar taxes relating
to employees and shall be responsible for all applicable withholding taxes.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance naming the City, its officers, employees, agents, volunteers
and representatives as additional 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 Consultant's operations in the performance of this Agreement,
including, without limitation, acts involving vehicles. The amounts of insurance shall
be not less than the following: single limit coverage applying to bodily and personal
injury, including death resulting therefrom, and property damage, in the total amount
of $1,000,000 per occurrence. Consultant_ shall supply City with a fully executed
2
25B -4
additional insured endorsement in substantially the form attached hereto as Exhibit B
upon execution of this Agreement and 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, Consultant, if Consultant has any employees, is required to be
insured against liability for worker's compensation or to undertake self - insurance.
Prior to. commencing the performance of the work under this Agreement, Consultant
agrees to obtain and maintain any employer's liability insurance with limits not less
than $1,000,000 per accident.
d. Professional liability (errors and omissions) insurance, with a combined single limit
of not less than $1,000,000 per claim.
e. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
(i) Consultant shall maintain all insurance required above in fill 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.
£ If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has
been procured and is in force and paid for, the City shall have the right, at the City's
election, to forthwith terminate this Agreement. Such termination shall not affect
Consultant's right to be paid for its time and materials expended prior to notification
of termination. Consultant waives the right to receive compensation and agrees to
indemnify the City for any work performed prior to approval of insurance by the City.
7. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability: (1) for personal
injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims
for personal injury, including health, and claims for property damage, which may arise due to
negligent acts, omissions or willful misconduct, from the direct or indirect operations of the
Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their
behalf which relates to the services described in section 1 of this Agreement; and (2) from any
25B -5
claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is
due by reason of the terms of or effects arising from, and to the extent of Consultant's, negligent
acts, omissions or willful misconduct in the performance of this Agreement.
8. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees
that it shall not use or disclose such information except in the performance of this Agreement,
and further agrees to exercise -the same degree of care it uses to protect its own information of
like importance, but in no event less than reasonable care. "Confidential Information" shall
include all nonpublic information. Confidential information includes not only written
information, but also information transferred orally, visually, electronically, or by other means.
Confidential information disclosed to either party by any subsidiary and/or agent of the other
party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure
shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is,
through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful
possession of the Consultant without an obligation of confidentiality; (d) is required to be
disclosed by operation of law; or (e) is independently developed by the Consultant without
reference to information disclosed by the City.
9. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under
this Agreement.
10. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person or
mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
To City: City of Santa Ana
C/o Clerk of the Council
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702 -1988
telefacsimile (714) 647 -6956
With copy to: Executive Director of PBA
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, California 92702
4
I M. I
telefacsimile (714) 973 -1461
and City Attorney
City of Santa Ana
20 Civic Center Plaza (M -29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647 -6515
To Consultant:The Planning Center
JoAnn Hadfield
Director
1580 Metro Drive
Costa Mesa, CA 92626
telephone (714) 966 -9220
telefacsimile (714) 966 -9221
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, communication shall be effective or
deemed to have been given twenty -four (24) hours after the time set forth on the transmission
report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of
calculating these time frames, weekends, federal, state, County or City holidays shall be
excluded.
11. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the
terms of this Agreement shall prevail. This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any proposal or other instrument that are inconsistent with,
or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the
City. Each party to this Agreement acknowledges that no representations, inducements, promises
or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein.
12. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
25B -7
the City's prior written consent shall be considered null and void. Nothing in this Agreement
shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
13. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay
Consultant compensation for all services performed by Consultant prior to receipt of such notice
of termination, subject to the following conditions;
a. As a condition of such payment, the Executive Director may require Consultant to
deliver to the City all work product completed as of such date, and in such case such
work product shall be the property of the City unless prohibited by law, and
Consultant consents to the City's use thereof for such purposes as the City deems
appropriate.
b. Payment need not be made for work which fails to meet the standard of performance
specified in the Recitals of this Agreement.
14. NON - DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affn-ins that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
15. JURISDICTION -VENUE
This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
16. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals,
waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
96�
17. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the
power, authority and right to bind their respective parties to each of the terms of this
Agreement, and shall indemnify City fully, including reasonable costs and attorney's
fees, for any injuries or damages to City in the event that such authority or power is
not, in fact, held by the signatory or. is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By:
Ryan O. Hodge
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
JAY TREVINO
Executive Director - PBA
CITY OF SANTA ANA
DAVID N. REAM
City Manager
THE PLANNING CENTER
JOANN C. HADFIELD
Director
WILLIAM HALLIGAN, Esq.
Vice President
7
W. .-1
EHIBIT A
SCOPE OF SERVICES
(Attached)
November 9, 2010
Karen Haluza
Planning Manager
City of Santa Ana
Planning & Building Agency
20 Civic Center Plaza, M -20
Santa Ana, CA 92702
Subject: Revised Proposal to Prepare a Program Environmental Impact Report (PEIR)
for the Harbor Boulevard Corridor Vision Plan (P2010- 0808E)
Dear Mrs. Haluza:
Environmental processing pursuant to the California Environmental Quality Act (CEQA) is a legal requirement, an
objective analysis, and often, a highly technical exercise. At its core, however, it is a critical public and decision -maker
disclosure process and should be an integral part of the planning process. The Planning Center will prepare a
defensible Program Environmental Impact Report (PEIR) for the Harbor Boulevard Corridor Vision Plan (Vision Plan).
The environmental analysis will be coordinated with the Southern California Association of Governments (SCAG)
Demonstration Project to maximize efficiency and minimize overlap. We supported the City with their recent Housing
Element, and are well qualified to assist the City with this project as well. At the request of the City, this revised
proposal includes several revisions to reduce cost including:
— Cost savings associated with overlap between PEIR traffic study and baseline traffic data processed for the SLAG
Demonstration project.
— Cost reduction associated with the City providing Traffic Analysis Zone (TAZ) data for the IBI traffic impact
analysis.
— Cost savings associated with elimination of standalone technical reports for infrastructure prepared by IBI.
Technical analyses for infrastructure will be prepared by IBI Group but will be incorporated directly into the
PEIR.
In addition, this proposal has been revised to include 9 additional intersections (total of 19) to be evaluated by IBI
Group. Please contact us if you have any questions. We thank you for the opportunity to work again with the City of
Santa Ana,
Project Understanding
The Harbor Boulevard Corridor is identified in the recent Housing Element update as an opportunity corridor to
increase housing supply and diversity in the City. SCAG is working with the City to develop a Demonstration Project in
this opportunity area. The Vision Plan would create a mixed -use transit corridor by redesignating land uses to
accommodate residential and mixed -use development along Harbor Boulevard. Redesignation of land uses would
require amendments to the North Harbor Boulevard Specific Plan and General Plan Land Use Element. The North
Harbor Specific Plan boundaries generally overlap with the proposed boundaries for the Vision Plan. As part of the
Vision Plan, it may be recommended that the boundaries of the North Harbor Boulevard Specific Plan be expanded.
The approximately 2.25 -mile corridor is commercially oriented. As a result of changes to the North Harbor Boulevard
•
1580 METRO DRIVE I COSTA MESA CA 92626 1 714.966,9220 .1 714.966.9221 {f) WWW.PLANNINGCENTER.COM .
25B -11
November 9, 2010
Page 2
Specific Plan, the project would require revisions to the zoning code and design guidelines to accommodate neW
higher - density residential land uses and mixed -use land uses along the corridor. The project would also require an
amendment to the Circulation Element of the General Plan to accommodate a new street classification for Harbor
Boulevard.
Potential environmental issues associated with the proposed Vision Plan include an increase in air pollutant emissions
and deterioration of the level of service at intersections in the vicinity of the project as a result of an increase in vehicle
trips. In addition, because the land uses are commercially oriented, new residential and mixed -use land uses may have
different requirements related to public infrastructure (e.g., sewer, water, storm drainage). Construction activities
associated with redevelopment of the Harbor Corridor could also increase noise levels at adjacent noise- sensitive
receptors.
The City's 2006 --2014 Housing Element was approved by the state this summer. Pursuant to state requirements, the
City is required to implement changes to the City's zoning in order to accommodate the increase in residential density.
Changes to the zoning are required to be adopted by summer 2011. Consequently, the City desires to fast -track the
Vision Plan to adopt the zone changes required for the Harbor Boulevard Corridor in addition to implementing the
Vision Plan.
Approach
In our view, the appropriate CEQA document for the Harbor Boulevard Corridor Vision Plan is a Program EIR (PEIR).
This type of EIR covers broad, cumulative issues, so that future CEQA reviews of specific development projects could
be focused on site - specific issues. It is also ideal for analyzing the relative environmental impacts and tradeoffs
between broad -scale project alternatives as in the proposed scenarios for the Vision Plan.
The Planning Center will utilize existing information compiled as part of our recent work with the City on the Housing
Element in order to efficiently document existing conditions and identify potential environmental impacts. The
Planning Center's team of CEQA practitioners will work closely with The Planning Center's Planning and Design Team
for the SCAG Demonstration project to minimize overlap and draw upon technical information during that phase of
the project for environmental processing. IBI Group has been included in our scope of work because of their
understanding of the benefits of the mixed -use, transit - oriented project, and they will expand upon technical
information being evaluated for work under the SCAG Demonstration Project regarding traffic and other
infrastructure needs (e.g., sewer, water, and storm drainage).
Scope of Work
TASK 1 — TECHNICAL STUDIES
The following technical studies will be prepared to identify potentially significant environmental impacts:
Task 1.1 Transportation and Traffic
IBI Group will prepare a traffic analysis for the PEIR that documents the potential impacts associated with
implementation of the Vision Plan and recommends mitigation measures for any identified significant impacts. Level
of service (LOS) and intersection performance for signalized intersections for existing and future conditions will be
quantified.
Data Collection & Existing Conditions. The work effort in this task will build -off of the existing conditions work done as
part of the SCAG Demonstration project. For the EIR effort, 161 will incorporate the appropriate information obtained
25B -12
November 9, 2010
Page 3
through the SCAG Demonstration project and conduct peak period traffic counts to establish the existing conditions
at designated study intersections. It is assumed that the City of Santa Ana will also be able to provide transportation
analysis zone (TAZ) level data on existing land uses within the study area for use in understanding existing uses and
developing future land use values for trip generation. Based on information being gathered for the SCAG
Demonstration project, the traffic report will include an evaluation of existing traffic and circulation conditions at the
project study intersections, including:
1) Intersection operating conditions for typical weekday AM /PM peak hour conditions
2) Descriptions of geometric roadway conditions
3) Description of existing transit services in the vicinity of the project site
Peak - period traffic counts will be conducted to establish the existing condition at the study intersections. Existing
intersection operating conditions (in terms of volume/capacity ratios and level of service) will be quantified using the
ICU analysis methodology as adopted by the City of Santa Ana. The budget for the traffic analysis assumes analysis of
up to 19 intersections and collection of traffic counts for these locations.
Future Conditions. IBI will forecast and analyze future traffic conditions for the "no project" condition and for the
"with project" condition for the designated horizon year for the Vision Plan. It is assumed that the future conditions
traffic analysis will be focused on the buildout year for the project, and analysis of interim years would not be
required. IBI will work with the City of Santa Ana to develop an appropriate forecast of future traffic conditions for
the area. It is anticipated that an annual traffic growth factor will be applied to the existing traffic counts to obtain
future traffic volumes. Cumulative trips from nearby developments would be added to the base traffic volumes.
Graphics and tables will be used to illustrate the future traffic analysis results and to summarize the performance of
the study intersections following the implementation of the Vision Plan.
Fallowing review and comment by the City of Santa Ana, IBI will prepare responses to comments for one screencheck
traffic study and revise the report as appropriate for inclusion into the Draft PER Up to two meetings with the City of
Santa Ana and two hearings (Planning Commission and City Council) would be attended by IBI staff..
Task 1.2 Infrastructure Analysis
IBI Group will prepare an infrastructure analysis for the EIR that documents the potential impacts and measures to
ensure the infrastructure needs are provided for. IBI Group will coordinate with The Planning Center staff, affected
public service agencies, and utility purveyors to assess potential impacts of the Vision Plan. The following services,
facilities, and utility systems will be considered as part of this evaluation: domestic water service; sanitary sewer
service, and stormwater drainage. This work effort will build on the preliminary infrastructure analysis completed as
part of SCAG's Demonstration Project. The evaluation will be limited to the Harbor Boulevard corridor only, consistent
with the anticipated land use proposals to be developed as part of the Vision Plan. it is assumed that the analysis will
address one land use scenario for the Harbor Corridor Plan (alternative development scenarios are not included in the
project budget). Up to two meetings with the City of Santa Ana Municipal Services Division, the Orange County
Sanitation District, and /or the Orange County Flood Control District and two hearings (Planning Commission and City
Council) would be attended by IBI staff.
Water Service Analysis
IBI will evaluate existing water service capacity and capabilities for the "no project" and "with project" condition for
the Harbor Boulevard Corridor Vision Plan. If deficiencies in infrastructure are present, IBI group will identify
25B -13
November 9, 2010
Page 4
infrastructure required to accommodate the project. Following the completion of the evaluation, IBI Group will
incorporate the results of the analysis in the Draft PEIR.
Sewer Service Analvsis
IBI will analyze the "no project" condition and "with project" condition related to sanitary sewer system capacity
within the Harbor Boulevard corridor. The evaluation will examine capacity and flow rates for City of Santa Ana sewer
systems and Orange County Sanitation District systems, if applicable. If deficiencies in infrastructure are present, IBI
group will identify infrastructure required to accommodate the project. Following the completion of the evaluation,
IBI .Group will incorporate the results of the analysis in the Draft PEIR.
Storm Drainaae Assessmen
IBI will analyze the "no project" condition and "with project" condition related to storm drainage system capacity
within the Harbor Boulevard corridor. The evaluation will examine capacity and flow rates for City of Santa Ana storm
drain systems and Orange County Flood Control District systems, given the proximity to the Santa Ana River. If
deficiencies in infrastructure are present, IBI group will identify infrastructure required to accommodate the project.
Following the completion of the evaluation, IBI Group will incorporate the results of the analysis in the Draft PEIR..
Task 1.3 Air Quality and Greenhouse Gases
The Planning Center will prepare an air quality assessment in support of the project. Redevelopment consistent with
the Vision Plan would result in an increase in emissions from stationary and mobile sources. Potential reductions in
vehicle emissions from proximity to the Orange County Transportation Authority's Harbor Boulevard transit lines will
be quantified based on traffic data provided by IBI Group, In terms of individual projects related to buildout, short -
term construction activities and long -term operational activities associated with increased vehicle traffic and residential
and nonresidential buildings would increase air pollutant emissions in the City. These emissions have the potential to
cumulatively contribute to the nonattainment designations of the South Coast Air Basin (SoCAB). The air quality
assessment will evaluate the increase in criteria air pollutant emissions associated with buildout of the proposed land
use plan, in accordance with the South Coast Air Quality Management District's (SCAQMD) assessment methodology.
Regional air pollution associated with the Vision Plan will be quantified and assessed based on SCAQMD's significance
thresholds. In addition, compatibility of land uses with respect to the California Air Resources Board's (CARS) siting
recommendations will be evaluated. Air quality modeling datasheets will be included as an appendix to the PEIR.
The Natural Resources Agency adopted thresholds for greenhouse gas (GHG) emissions on December 30, 2009. To
address these thresholds, the PEIR for the Vision Plan will include a quantitative emissions analysis in accordance with
the recently adopted updated CEQA Guidelines (effective as of March 18, 2010). The emissions inventory will be
categorized based on the ultimate end use of fossil fuel use — transportation, electricity, building heating/cooking, etc.
The PEIR will address GHG emissions reductions specified in AB 32 for the state. Although the Sustainable
Communities Strategy for the SCAG region will not be adopted until May 2012, the PEIR will discuss regional GHG
emissions reduction targets proposed by the SCAG in accordance with SB 375. The PEIR will include an evaluation of
GHG emissions reductions measures requested by the California Attorney General and the California Air Pollution
Control Officers Association (CAPCOA).
Task 1.4 Nolse
The Planning Center will assess noise impacts associated with buildout of the Vision Plan. The purpose of this task is
to evaluate existing and future noise levels in the City and the potential increase in the ambient noise environment.
Noise from traffic on major arterials will be based on future traffic volumes in the traffic study prepared by IBI Group
and modeled using the Federal Highway Administration's Traffic Noise Model. The City's municipal code limits will be
used to describe potential stationary source noise impacts.1n addition, the impact assessment will utilize criteria in the
25B -14
November 9, 2010
Page 5
City's Noise Element and criteria identified in the California Administrative Code Title 24 (interior noise standards) for
noise compatibility. Noise modeling datasheets will be included as an appendix to the PEIR.
TASK 2 - INITIAL STUDY /NOTICE OF PREPARATION
The Initial Study (IS) will include brief written responses for all items included on the standard Appendix G checklist,
including the new thresholds that became effective March 18, 2010. Each response will explain the basis for the
assessment of No Impact, less Than Significant Impact, Less Than Significant Impact with Mitigation Incorporated, or
Potentially Significant Impact; clearly indicate why a particular issue would not result in a significant impact and does
not require further evaluation; and identify those issues that require further analysis in a PEIR. Given the City's decision
to prepare a PEIR, it is assumed for the purpose of this proposal that checklist responses will consist mainly of short
statements that lead to further analysis in the PEIR. A complete list of references used to prepare the 15 will be
provided.
A Notice of Preparation (NOP) will be prepared with the IS that clearly identifies the time period, contact person, and
address for submitting responses on the IS. A copy of the 1S will be attached to the NOP to explain the preliminary
scope of issues to be included in the PEIR for distribution by the City.
Deliverable(s):
— Screencheck IS /NOP (5 review hard copies per screencheck)
— 1S /N0P (1 single -sided reproducible IS/NbP, 1 CD copy in MS Word)
— Distribution of the IS /NOP via certified mail
TASK 3 — SCOPING MEETING
The Planning Centerwill assist the City in organizing and conducting one public scoping meeting to present the CEQA
process and solicit comments about the scope and content of the PEIR for the Harbor Corridor Vision Plan project. At
the public scoping meeting, we will be prepared to discuss the environmental review in connection with the proposed
project and respond to specific questions, as desired by the City.
We recommend that the scoping meeting be noticed in the NOP and held as soon as possible following the release of
the NOP. A summary of the comments received at the public scoping meeting will be included in the PEIR as an
attachment to include community input with this official environmental document.
Deliverables
— Attendance/participation in scoping meeting (Project Director and /or PEIR project manager)
— Scoping meeting handouts
TASK 4 — SCREENCHECK DRAFT PROGRAM EIR
The Planning Center will prepare a Screencheck PEIR based on the environmental topic sections disclosed in the I5. The
PEIR will be clearly written and will avoid the use of technical jargon so that the document is easily understood. If
technical terms need to be introduced for accuracy, they will be clearly defined. The analysis of issues will be thorough
yet concise. Each topical section of the document will 1) describe existing environmental conditions, 2) define the
criteria by which impacts will be determined to be significant, 3) determine the environmental changes that would
result from the project, 4) evaluate the significance of those changes with respect to the impact significance criteria,
5) define mitigation measures to reduce or avoid all potentially significant adverse impacts, and b) provide a
conclusion as to whether significant impacts would remain, even after successful implementation of recommended
mitigation measures and project design features.
25B -15
November 9, 2010
Page 6
Technical studies, as described above, will be prepared for air quality, noise, greenhouse gas emissions,
transportation/traffic, and infrastructure (e.g., water, sewer, and stormwater) to supplement information being
prepared for the Demonstration Project. Since EIR scoping is yet to be completed and this project is expected to be of
great interest to the community, it is assumed at this time that all topics in the Initial Study Checklist— except
biological resources, agriculture and forest resources, and mineral resources —will be included in the Program EIR for
the Vision Plan.
General Information
Executive Summary: This section will consist of a concise summary of the information presented in the main body of
the PEIR. This will include:
• Brief project description
• Tabular summary of findings regarding project and cumulative impacts, mitigation measures, and any unavoidable
significant impacts
• Summary of discretionary approvals required for the project
• Brief description of the alternatives considered, noting which one was considered the environmentally superior
alternative
• Areas of controversy and issues to be resolved
Introduction: This section is intended as a convenience to the reader who is not familiar with CEQA, EIRs, or the
environmental review process. The purpose and standards of adequacy for an EIR will be defined and the
environmental review process discussed. Characteristics of a Program EIR will also be described.
Project Description: The project characteristics associated with the Vision Plan will be described, along with a
statement of project objectives as determined by the City of Santa Ana. Buildout statistics included as part of the
Vision Plan, including residential units, nonresidential square footage, population and employment, will be included.
In addition, policies and design guidelines in the North Harbor Specific Plan will be listed. Illustrations will include
regional and site location maps and the Vision Plan.
Environmental Setting: A general description of the regional and local setting will be provided to establish the
environmental and planning context. In addition to physical characteristics, relevant regional and local planning
programs will be discussed to establish whether this project is consistent with applicable planning policies and
programs. Existing land uses statistics, including units, nonresidential square footage, population, and employment,
will be included. More detailed descriptions of existing conditions and pertinent policies will be provided, where
appropriate, as part of the discussions under each of the specific impact topics in the main body of the EIR.
Although the final scope of the EIR can't be determined until after the IS/NOP is completed, it is anticipated that the
following topical sections will be included:
• Aesthetics
• Air Quality
• Cultural Resources
• Geology and Soils
• Greenhouse Gases
• Hazards and Hazardous Materials
• Hydrology and Water Quality
I
• Land Use and Planning
• Noise
• Population and Housing
• Public Services
• Transportation and Traffic
• Recreation
• Utilities and Service Systems
November 9, 2010
Page 7
Amended CEQA Guidelines
The PEIR will be prepared in accordance with the amended CEQA Guidelines, effective March 18, 2010. These
updated CEQA Guidelines include new requirements to address forestry resources in the new Agriculture and Forest
Resources subsection of a new Greenhouse Gas Emissions section, and amendments to the Transportation and Traffic
section to address alternative modes of transportation. A discussion of forestry resources will be included in the IS to
address potential impacts to forestland and timberland resources; however no significant impacts are anticipated. The
PEIR will also include a Greenhouse Gases section to address the new CEQAThresholds, In addition, energy use is now
required to be evaluated per the changes to CEQA Guidelines Appendix F. For the PEIR, the Utilities and Service
Systems section will include an estimate of energy demand associated with land uses in the Vision Plan. The new
transportation thresholds allow for lead agencies to consider thresholds adopted by agencies for alternative
transportation. In response to the amended thresholds, the PEIR will include a discussion of implementation policies
included in the Vision Plan to promote transit use and other alternative modes of transportation.
SB 18
Senate Bill 18 (S8 18) requires local governments to notice and consult with tribes prior to adoption of general plans,
specific plans, or projects that require a general plan amendment. This proposal assumes that tribal consultation in
accordance with SB 18 will be conducted for the Vision Plan by the City of Santa Ana. A Notice of Availability (NOA)
for the PEIR will be sent to tribes on the Native American Heritage Commission (NAHC) list.
Alternatives
In compliance with Section 15126(d) of the State CEQA Guidelines, the PEIR will evaluate a reasonable range of
alternatives. Per CEQA, PEIR alternatives are required to be selected on the basis of their ability to:
• Avoid or reduce one or more of the project's significant impacts
• Feasibly attain most of the basic objectives of the project
Analyses of up to two alternatives in addition to the "No Project" alternative are included in the cost estimate for the
PEIR. Impacts associated with each alternative will be compared to proposed project impacts for each of the
environmental impact categories. If any of the land use variations considered during the planning process have the
potential to reduce or eliminate significant environmental impacts, we will draw on this effort to prepare meaningful
CEQA alternatives for comparis9n. The environmentally superior alternative will be identified; if it is the No
Project/Existing Conditions Alternative, then one of the development alternatives will be identified as environmentally
superior to the others.
Other Required Sections
In addition to the topical issues discussed above, the following sections will be prepared:
• Environmental effects found not to be significant during the Initial Study scoping process
• Adverse environmental impacts that cannot be avoided if the project is implemented
• A discussion of cumulative impacts for each of the impact topics
• Any irreversible environmental changes that will occur if the proposed project is implemented
• Ways in which the project could directly or indirectly impact population or employment growth in the area
Deliverable:
— Screencheck Draft PEIR (5 review hard copies per screencheck)
25B -17
November 9, 2010
Page 8
TASK 5 DRAFT ENVIRONMENTAL IMPACT REPORTMOA
The Planning Center will incorporate City comments on the Screencheck Draft PEIR. The Planning Center will meet
with City staff (see Task 8) to discuss and resolve any major areas of concern or to clarify areas of misunderstanding,
etc. The Planning Center will prepare the Notice of Completion (NOC) for City approval and signature. We will also
prepare the Notice of Availability (NOA) for City approval for distribution by the City.
Deliverable(s):
— Draft PEIR (single -sided reproducible Draft PEIR, 1 CD copy in MS Word)
TASK 6 FINAL PEIR
The Final PEIR will be prepared in accordance with CEQA Guidelines Section 15089 and will contain the final response
to comments received on the Draft PEIR. The Final PEIR must reflect the lead agency's independent judgment and
analysis and is presented to the Santa Ana City Council for consideration and approval. Following receipt of all
comments on the Draft PEIR, written responses will be prepared for each comment. A Response to Comments section
will be created for the Final PEIR and will contain an introduction describing the public review process for the Draft
PEIR, copies of all comment letters and minutes from public meetings where oral comments were taken, and written
responses to all comments. Responses will focus on comments that address the adequacy of the Draft PEIR.
Comments that do not address EIR adequacy will be noted as such and no further response will be provided unless
deemed necessary by the City. Responses will be prepared by The Planning Center with input from our technical
specialists, as needed. The Final PEIR will also include any revisions, updates, or corrections needed to respond to
comments or address minor errors in the Draft PEIR.
The estimated budget assumes that no additional basic research will be required to respond to comments, that the
comments will be directed at the substance and technical adequacy of the EIR, and that the comments will be
compiled by the City and transmitted in writing to the consultant. Modification to the scope of work, budget, and
time frame may be necessary if comments received from agencies or the general public require substantially increasing
the scope of impacts and issues addressed in the EIR. Responses to Comments from responsible agencies will be
provided to the City so that the City can distribute those comments a minimum of 10 days prior to consideration of
the Final PEIR by the Santa Ana City Council.
Deliverables:
— Screencheck Final PEIR (5 review hard copies per screencheck)
— Final PEIR (single -sided reproducible Final PEIR, 1 CD copy in MS Word)
TASK 7 FINDINGS OF FACT AND SOC, MMP, AND NOD
In addition, The Planning Center will prepare the Mitigation Monitoring Program, the Findings of Fact, a Statement of
Overriding Considerations (if required), and the Notice of Determination (NOD).
•�
November 9, 2010
Page 9
Findings of Fact and Statement of Overriding Considerations.
Section 15091 of the CEQA Guidelines requires that no public agency approve or carry out a project for which an EIR
identifies one or more significant effects unless the public agency prepares findings for each significant effect. The
Planning Center will prepare findings and facts in support of findings for each of the significant impacts identified by
the EIR, along with a determination as to whether those impacts would be reduced to below a level of significance by
proposed mitigation measures. Additionally, Section 15093 requires that when an agency approves a project thatwill
have significant adverse unavoidable environmental effects, the agency must make a statement of its views on the
ultimate balancing of the merits of approving the project despite the environmental damage. These facts and findings
and the statement of overriding considerations for any significant impacts will be incorporated into the resolution to
be prepared by City staff.
Mitigation Monitoring Program
A Mitigation Monitoring Program (MMP) will be prepared pursuant to Section 21081.6 of the Public Resources Code.
The MMP will include any mitigation measures in the PEIR. The MMP will list the significant impacts that would result
from the project; proposed mitigation measures for each impact; the times at which the measures will need to be
implemented; the entity responsible for implementation; the City departments or other agencies responsible for
monitoring the mitigation effort and ensuring its success; and compliance verification criteria.
Notice of Determination
If the project is approved by the lead agency, an NOD is filed within five working days. The City will be responsible for
filing the NOD with the County Clerk of the Board in Orange County, as well as the State Clearinghouse.'
Deliverable(s):
- Findings of Fact and Statement of Overriding Considerations (5 review hard copies and 2 CD copies)
- Mitigation Monitoring Program (5 review hard copies and 2 CD copies)
- Notice of Determination
TASK 8 MEETINGS AND HEARINGS
In an effort to achieve a high level of communication, our estimated budget assumes that The Planning Center's
Project Manager will attend up to two meetings with City staff during the course of the environmental review process.
Additional meetings or attendance by other members of the consultant team will be billed on a time- and - materials
basis. Costs for meeting attendance will be billed in accordance with the hourly rates for the personnel involved.
During the final month of the project, we anticipate attendance at up to two public hearings, including the Planning
Commission and City Council hearing(s), concluding in adoption of the Vision Plan (including General Plan and
Specific Plan amendments) and certification of the Final PEIR. As specified below, the Project Director and the Project
Manager will attend these public hearings to answer any questions regarding the CEQA process, the EIR findings, etc.
Deliverable(s):
- Conference calls (up to 3)
- Attendance at 2 meetings (Project Manager) (in addition to the Public Scoping meeting)
- Attendance at one Planning Commission hearing (Project Manager)
- Attendance at one City Council hearing (Project Director and Project Manager), as detailed in the attached
schedule.
' For the purpose of the scope of work and cost estimate, it is assumed that the City would be responsible for
California Department of Fish and Game (CDFG) mitigation fee and county filing fees.
G
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November 9, 2010
Page 10
TASK 9 PROJECT MANAGEMENT
The Planning Center will coordinate closely with the City to ensure that the PEIR and associated documents are legally
defensible, accurate, and useful to decision makers when considering the approval of the project. Project
management responsibilities include: task scheduling and assignment; management of resources; monitoring of costs
and schedule adherence; management and coordination of subconsultants, including contract administration and
accounting; consultation and coordination with local and state entities relative to the environmental review process;
and coordination and communications with the City's project team to ensure compliance with policies, procedures,
and any applicable codes.
Deliverable(s):
— Project Management and Administration for an approximate 9 -month schedule, as detailed in the attached
schedule.
Proposed Schedule
We will work at the outset of the project to develop a schedule that meets the needs of the City. Attached is an MS
Project schedule developed for the Harbor Boulevard Corridor Vision Plan PEIR based on required CEQA review periods
and our understanding of the City's scheduling objectives for this project. As shown, based on provision of a complete
project description by November 2010, we estimate that the Final PEIR could be certified by July 2011.
Cost Estimate
The Planning Center proposes to conduct the scope of services identified in this proposal for a not -to- exceed fee of
$152,184. As noted below, the Cost Estimate does not include reproduction and distribution costs associated with
public review copies of the documents (IS/NOP, Draft PEIR, FEIR) or filing fees required by the County of Orange. If
requested, The Planning Center can prepare hardcopies/CD copies for public distribution at cost plus 10 percent,
which is estimated at $12,300. Our assumptions and deliverables are detailed in the previous section. We remain
open to modifying our scope of services and associated fee based on any changes desired by the City. The table below
presents the costs detailed by task. Any additional costs accrued during the project that are outside the scope of work
identified in this proposal will 'be billed according to our standard schedule of fees.
November 9, 2010
Page 11
Table 1. Cost Estimate
TASK
TPC LABOR
SUB -
CONSULTANTS'
TOTAL COST
Task 1 – Technical Studies
Task 1.1 – Traffic Analysis
—
$7,890
$21,828
$23,874
—
$24,011
$24,218
$7,890
Task 1.2 - Infrastructure
Task 1.3 – Air Quality and GHG Analysis
Task 1.4 – Noise Analysis
$4,390
$12,280
—
$48,228
$4,390
$60,508
Technical Studies Subtotal
Task 2 – Initial Study /NOP'
$6,890
Task 3 – Scoping Meeting
$1,840
Task 4 – Screencheck Draft PEIR;
$41,640
Task 5 – Draft PEIR/NOA'
$6,580
Task 6– Final PEIRZ
$10,600
Task 7 – Findings, Statement of Overriding Considerations, NOD
$3,590
Task 8– Meeting and Hearing
$1,440
Task 9– Project Management
$16,860
Labor Subtotal
$150,908
Reimbursabless'
EDR Hazardous Materials Database Search
$600
Mileage
$60
Miscellaneous Printing /Faxing/Scanning/Mailing
$500
Reimbursables Subtotal'
$1,276
GRAND TOTAL
4152.184
Subconsuitant fees include a 101/9 markup.
Our cost estimate is based on no more than two rounds of internal review on the Screencheck IS and Screencheck
Draft PER and that City comments are consolldated into one document. For the purpose of this scope and cost
estimate, it is assumed that internal comments will take up to 8 hours for the IS, up to 40 hours for the screencheck
Draft PEIR, up to 40 for the Final PEIR, and up to 8 hours of 101 response to traffic comments on the Final PEIR.
' Relmbursables are an estimate only and are billed at cost plus 10%. Mileage reimbursement rate Is the standard IRS -
approved rate.
25B -21
November 9, 2010
Page 12
Table 2. The Planning Center - 2010 Standard Fee Schedule
STAFF LEVEL
HOURLY RATE
Principal
$200 --$250
Director/ream Leader
$140 -$225
Sr. Planner/Scientist/Designer Il
$135 -$215
Sr. Planner/Scientist/Designer 1
$115 -$155
Associate Planner/Scientist/Designer II
$105 -$130
Associate Plan ner/Scientist/Designer 1
$954110
Assistant Plan ner/Scientist/Designer II
$80 -$100
Assistant Planner/Scientist/Designer 1
$60 -$80
GIS /CAD Operator II
$100 -$135
GIS /CAD Operator 1
$90 -$105
Graphic Artist II
$85 -$130
Graphic Artist 1
$75 -$95
Planning Tech niciarylntern
$60 -$80
Technical Editor
$95 -$100
Word Processing
$75 -$85
CiericaVAdministration
$60 -$100
Third -Party CEQA Review
$225
Expert Witness
2 x Normal Hourly Rate
Other direct costs are billed at cost plus 12.5 %.
Mileage reimbursement rate is the standard IRS - approved rate.
Acknowledgment
This proposal shall remain valid for a period of 90 days from the time of submittal. The attached Service
Authorization, which includes our General Terms of Consulting Agreement, is a part of this proposal. If the contents
of this Proposal and Agreement are satisfactory, please indicate your approval by signing the Service Authorization
and sending it to our Corporate office. As Director, Environmental Services, I am authorized to bind The Planning
Center and the project team to the contents of this proposal.
We look forward to working with you to bring about the successful completion of this project. If you have any
questions regarding the contents of this proposal, please feel free to call the undersigned at 714 - 966 -9220.
Respectfully submitted,
THE PLANNING CENTER
IoAnn C. Hadfield
Director, Environmental Services
25B -22
a
a
25B -23
EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its
officers, employees, agents, volunteers and representatives are named as additional insureds
( "additional insureds ") with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except,with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective.)
Effective
Policy # _
Issued to-
this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative
25B -24
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE
AGREEMENT WITH AT &T MOBILITY
NATIONAL ACCOUNTS LLC FOR
WIRELESS SERVICES AND
EQUIPMENT
G/
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1st Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize continued payment for wireless services and equipment provided for in the
participating addendum with AT &T Mobility National Accounts LLC (formerly known as New
Cingular Wireless National Accounts LLC) under a master agreement with the Western States
Contracting Alliance for a period ending October 31, 2012 in an amount not to exceed $205,000
per year.
DISCUSSION
The Police Department currently employs wireless data communications from AT &T Mobility to
support Global Positioning System (GPS) location services which provide Police dispatch with
critical data on unit location. This is an officer safety tool and aids the productivity of
patrol /policing activities. The Fire Department also utilizes a wireless data based system to
communicate with its vehicles in the field. Other City Agencies including Parks and Recreation
employ wireless data communications to improve the delivery of services to the community.
To provide wireless data communications, the City utilizes services from AT &T Mobility National
Accounts LLC (formerly known as New Cingular Wireless National Accounts LLC) under an
agreement through the Western States Contracting Alliance (WSCA). This agreement was
competed and negotiated on October 10, 2006. AT &T and WSCA extended the term of the
Master Agreement through October 31, 2012. Participating Agencies may extend their service
contracts pursuant to the extension of the Master Agreement. This agreement with AT &T Mobility
National Accounts LLC provides extremely competitive pricing with protections on future price
increases. The City may terminate at any time, without penalty, with 30 days notice.
25C -1
Agreement with AT &T Mobility National Accounts LLC
December 6, 2010
Page 2
FISCAL IMPACT
Funds are budgeted and are available in the FY10 -11 Communication Services account for
contractual services (account no. 10210140 - 62010).
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
25C -2
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE
AGREEMENT WITH VERIZON
WIRELESS DATA SERVICES FOR
WIRELESS DATA SERVICES AND
EQUIPMENT
C a, ✓' . ✓ /�'- -_-_._
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1st Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and the Clerk of the Council to execute a participating addendum with
Verizon Wireless Data Services to join the City under a master agreement with the California
Wireless Contract (CWC) for wireless data communications services and equipment for a period
of one year in an amount not to exceed $150,000 per year.
DISCUSSION
The Police Department and other technology supporting units currently employ wireless data
communications to link officers in the field with computerized systems. These systems allow
officers to obtain critical information faster and in visual format which greatly assists them in the
performance of their duties. The wireless links also enable field -based officers to submit reports
and other administrative documentation without leaving the field. This is an officer safety tool and
facilitates the productivity of patrol /policing activities. The Police Department has experienced
continuing connectivity problems with the services provided by the current vendor. After extensive
field testing, the Police Department has requested a change to services provided by Verizon
Wireless Data Services.
The City qualifies to join a competitively bid cooperative purchasing agreement under the
California Wireless Contract (CWC). As a member, the State of California extends eligibility to join
to cities in the state. This agreement with Verizon Wireless provides extremely competitive pricing
with protections on future price increases. The City may terminate at any time, without penalty,
with 30 days notice.
25D -1
Agreement with Verizon Wireless Data Services
December 6, 2010
Page 2
FISCAL IMPACT
Funds are budgeted and are available in the FY10 -11 Communication Services account for
contractual services (account no. 10210140 - 62010).
)�L i=
Paul M. Walters
Chief of Police
25D -2
APPROVED AS TO FUNDS AND
ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
Agreement between
Verizon Wireless and the City of Santa Ana
for Wireless Services
THIS AGREEMENT, made and entered into this
Verizon Wireless, a — Of 2010 by and between
corporation (hereinafter "Verizon "), 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 ")
Reference:
The State of California Wireless Contract, hereafter referred to as CWC, contract number: 1S-
05-58-02
The City of Santa Ana, California, hereafter referred to as the City.
RECITALS
A. Verizon and the State of California entered into that Wireless Services Contract 1 S -05-
58-02, (Link: http:// www.)idsync .com /DPX ?ac= agencvcontview&r-n
to as the California Wireless Contract (hereinafter "(;WC ") by which Verizon has offered
wireless data services for the State and for participating local agencies; and
B. The initial term of the CWC has expired and Verizon and the State of California are
negotiating an extension of the term; and
C. Verizon has offered to provide wireless data services to the City, on the terms and
conditions set forth in the CWC; and
D. City has determined that Verizon is the provider that can meet its wireless data
requirements and the rates set forth in the CWC are the most competitive rates available
to the City.
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
Verizon Wireless will provide to the City those services which the City submitted to
Verizon Wireless under the State of California's California Wireless Contract on or before
October 02, 2010. These services include but are not limited to the following:
• CWC – broadband wireless access
• CWC – wireless voice with text and data services
Said services shall be provided on the terms and conditions of the CWC including the scope,
equipment, services, and pricing.
2. Term
2501-3
The term of this Agreement shall continue through September 3, 2011. If Verizon and
the State of California have negotiated an extension of the CWC by end of this term, City may
exercise an option to extend this Agreement for up to two additional one -year terms.
3. Compensation
Pricing plans will continue as established by Verizon Wireless under the CWC and as
subscribed to by the City. Total payments by the City shall not exceed $150,000 during the
term of this Agreement.
4. Contact
The contact for the City of Santa Ana is:
Tom Gergen
Finance and Management Services
Information Services Division
20 Civic Center Plaza (M -12)
Santa Ana, CA 92701
Fax 714 - 647 -5406
e -mail: tgerq m()-santa -ana orq
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By:
Laura Sheedy
Assistant City Attorney
CITY OF SANTA ANA
DAVID N. REAM
City Manager
VERIZON WIRELESS
(name)
(title)
Tax ID #
25D -4
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
AGREEMENT WITH MINDTOUCH INC.
FOR DEVELOPMENT OF INFORMATION
SHARING WEB SITE / SECURE PORTAL
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 15i Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and the Clerk of Council to execute the attached agreement with
MindTouch Inc. to provide a web site and secure portal for the Anaheim/ Santa Ana Urban Area
in an amount not to exceed $100,000, subject to non - substantive changes approved by the City
Manager and City Attorney.
DISCUSSION
The United States Department of Homeland Security has developed the Urban Areas Security
Initiative (UASI) funding program. UASI provides funds to local emergency first responders to
enhance security and overall preparedness to prevent, respond to, and recover from acts of
terrorism. The grant specifically provides funding for anti - terrorism equipment, planning, training,
and exercises. The City of Santa Ana has fiscal responsibility for the FY09 UASI grant for the
Anaheim/ Santa Ana Urban Area which encompasses the 34 jurisdictions in Orange County.
The notice inviting proposals was advertised on September 29, 2010 and evaluated to identify
a suitable vendor to design, develop and deliver a web site and secure portal to enhance the
Anaheim/ Santa Ana Urban Area's capability to share homeland security related information with
its stakeholders as well as the public. The following is the rating results:
VENDOR
MindTouch, Inc.
Civic Resource Group
Americaneagle.com, Inc.
Hitachi Consulting
Neudesic
LOCATION
SCORE
San Diego
96.50
Los Angeles
89.75
Los Angeles
87.00
Irvine
85.50
Irvine
82.75
25E -1
Agreement for Information Sharing Web Site / Secure Portal
December 6, 2010
Page 2
Requirements of the RFP evaluation covered nine key areas included overall responsiveness to
the RFP, experience of vendor to deliver services through a local office within a 100 mile radius
to Santa Ana, references, cost and demonstration of the development and delivery of a web site
as well as grant funding compliances. The offer from MindTouch Inc. received the highest
percentage in the scoring process and meets or exceeds the evaluation criteria.
FISCAL IMPACT
Funds are available in the FY 2008 UASI Grant Program through Project D – Information Sharing
fund account (no.12514490- 62300 - 10422001182) as approved by the City Council with
Agreement A- 2009 -021.
APPROVED AS TO FUNDS AND ACCOUNTS:
� it- --- V — y ter —
Paul M. Walters Francisco Gutierrez
Chief of Police Executive Director
Police Department Finance & Mgmt. Services Agency
Exhibit:
1. Agreement
25E -2
CONSULTANT AGREEMENT
THIS AGREEMENT, made and entered into this 9th day of December, 2010 by and
between MindTouch Inc., a California corporation (hereinafter "Consultant "), and the City of Santa
Ana, a charter city and municipal corporation organized and existing under the Constitution and
laws of the State of California (hereinafter "City ").
RECITALS
A. City, acting through the Santa Ana Police Department in its capacity as a Core City and
lead agency for the Anaheim / Santa Ana Urban Area under the FY09 Urban Areas
Security Initiative ( "UASI "), has applied for, received and accepted a grant from the
federal Department of Homeland Security and through the State of California,
Emergency Management Agency, to enhance countywide emergency preparedness,
hereinafter referred to as "the Grant ".
B. The City desires to retain a consultant having special skills and knowledge in the field of
web site development.
C. Consultant represents that they have the necessary skills and experience to provide such
services to the City.
D. Consultant has submitted a Proposal which identifies the scope, tasks and general time
lines for providing the services and the costs thereof.
E. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall design, develop and deliver a web site and information sharing portal in
accordance with the Technical Specifications outlined in Section IV of RFP 10 -041 and the
Consultants Proposal, attached hereto as Attachment A, and incorporated by reference.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the
rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall
not exceed $100,000 during the term of this Agreement.
b. Payment by City shall be made within thirty (30) days following receipt of proper invoice
evidencing the completion of milestones as set forth in Exhibit A.
3. USE AND OWNERSHIP OF DOCUMENTS
It is understood by and agreed to between the parties that all documents, outlines,
written materials, or materials prepared for the web site hereunder, paid for with Grant funds, or
composed utilizing information provided by Santa Ana, shall be the property of Santa Ana and
25E-3 Page 1 of 7
shall be delivered to Santa Ana upon completion of the services hereunder.
CEO MIiu 1
This Agreement shall commence on the date first written above and terminate within one year
from the date first written above, unless terminated earlier in accordance with Section 13, below.
The term of this contract may be extended upon a writing executed by the Chief of Police and the
City Attorney.
5. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent
contractor and not an employee of the City. This Agreement is not intended nor shall it be
construed to create an employer - employee relationship, a joint venture relationship, or to allow the
City to exercise discretion or control over the professional manner in which Consultant performs
the services which are the subject matter of this Agreement; however, the services to be provided
by Consultant shall be provided in a manner consistent with all applicable standards and
regulations governing such services. Consultant shall pay all salaries and wages, employer's social
security taxes, unemployment insurance and similar taxes relating to employees and shall be
responsible for all applicable withholding taxes.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall maintain
and shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial general
liability insurance naming the City, its officers, agents, volunteers, and employees as additional
insured(s) and shall include, but not be limited to protection against claims arising from bodily and
personal injury, including death resulting there from and damage to property, resulting from any
covered act or occurrence arising out of Consultant's operations in the performance of this
Agreement. The amounts of insurance shall be not less than the following: single limit coverage
applying to bodily and personal injury, including death resulting there from, and property damage,
in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully
executed additional insured endorsement to be approved in form by the City Attorney.
b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of
the Labor Code, Consultant, if Consultant has any employees, is required to be insured against
liability for worker's compensation or to undertake self - insurance. Prior to commencing the
performance of the work under this Agreement, Consultant agrees to obtain and maintain any
employer's liability insurance with limits not less than $1,000,000 per accident.
c. Professional Liability Insurance. If Consultant is or employs a licensed professional such as
an architect or engineer, Consultant shall provide professional liability (errors and omissions)
insurance, with a combined single limit of not less than $1,000,000 per claim and not less than
$2,000,000 annual aggregate.
d. The following requirements apply to the insurance to be provided by Consultant pursuant
to this section:
(i) Consultant shall maintain all insurance required above in full force and effect for
the entire period covered by this Agreement.
25E -4 Page 2 of 7
(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 without
thirty (30) days prior written notice to the City. Ten (10) days notice if
cancellation is due to non - payment of premium.
e. If Consultant fails or refuses to produce or maintain the insurance required by this section
or fails or refuses to furnish the City with required proof that insurance has been procured and is in
force and paid for, the City shall have the right, at the City's election, to forthwith terminate this
Agreement.
7. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, and special counsel from liability for personal injury, or just compensation, arising out
of claims for personal injury, including health, and claims for property damage, to the extent they
arise from the negligent or willful misconduct in the performance of operations or errors or
omissions of the Consultant or its contractors, subcontractors, agents, employees, or other persons
acting on their behalf which relates to the services described in section 1 of this Agreement.
Inasmuch as measures to prevent or mitigate the effect of any act or terrorism are unique to the
act, and the actions that may be taken in controlling, preventing or suppressing acts of terrorism are
unique to the act, Consultant is not responsible to City for designing or advising on or otherwise
taking measures to prevent or mitigate the effect of any act of terrorism or any action which may be
taken in controlling, preventing, suppressing or in any way relating to an act of terrorism.
8. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such information
is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not
use or disclose such information except in the performance of this Agreement, and further agrees
to exercise the same degree of care it uses to protect its own information of like importance, but in
no event less than reasonable care. "Confidential Information" shall include all nonpublic
information. Confidential information includes not only written information, but also information
transferred orally, visually, electronically, or by other means. Confidential information disclosed
to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The
foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has
been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in
a publicly available source; (c) is in rightful possession of the Consultant without an obligation of
confidentiality (d) is required to be disclosed by operation of law; or (e) is independently
developed by the Consultant without reference to information disclosed by the City.
9. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct or
indirect, which would conflict in any manner with performance of services specified under this
Agreement.
10. NOTICE
25E -5 Page 3 of 7
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:
Santa Ana Police Department
UASI / Homeland Security Division
60 Civic Center Plaza
and
P.O. Box 1981 (M -97)
Santa Ana, California 92702
Telefacsimile (714) 245 -8745
Attn: Brian Sheldon
City Attorney
City of Santa Ana
20 Civic Center Plaza (M -29) P.O. Box 1988
Santa Ana, California 92702
Telefacsimile (714) 647 -6515
To Consultant: Chief Financial Officer
MindTouch Inc.
401 West "A" Street, Suite 250
San Diego, CA. 92101
A party may change its address by giving notice in writing to the other party. Thereafter, any
communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed
to have been given twenty -four (24) hours after the time set forth on the transmission report issued
by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating
these time frames, weekends, federal, state, County or City holidays shall be excluded.
11. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the terms
of this Agreement shall prevail. This Agreement may not be modified except by written instrument
signed by the City and by an authorized representative of Consultant. The parties agree that any
terms or conditions of any purchase order or other instrument that are inconsistent with, or in
addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City.
Each party to this Agreement acknowledges that no representations, inducements, promises or
25E -6 Page 4 of 7
agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any
party, which are not embodied herein.
12. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement shall
be construed to limit the City's ability to have any of the services which are the subject to this
Agreement performed by City personnel or by other consultants retained by City.
13. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant
compensation for all services performed by Consultant prior to receipt of such notice of
termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to deliver to
the City all work product completed as of such date, and in such case such work product shall be
the property of the City unless prohibited by law, and Consultant consents to the City's use thereof
for such purposes as the City deems appropriate.
14. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status,
sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by
applicable law, in the recruitment, selection, training, utilization, promotion, termination or other
employment related activities. Consultant affirms that it is an equal opportunity employer and shall
comply with all applicable federal, state and local laws and regulations.
15. JURISDICTION -VENUE
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. Both parties further agree that
Orange County, California, shall be the venue for any action or proceeding that may be brought or
arise out of, in connection with or by reason of this Agreement.
16. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder
and required by the laws and regulations of the United States, the State of California, the City of
Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and
in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and
exemptions. Said inability shall be cause for termination of this Agreement.
25E-7 Page 5 of 7
17. CONSULTANT CERTIFICATIONS
a. Audit Records - With respect to all matters covered by this Agreement, all Consultant
records shall, to the extent practicable, be made available for audit and inspection by the City, the
grant agency and/or their duly authorized representatives for a period of three (3) years from the
termination of this Agreement.
For a period of three years after final delivery, hereunder or until all claims related to this
Agreement are finally settled, whichever is later, Consultant shall preserve and maintain all
documents, papers and records relevant to the services provided in accordance with this
Agreement, including the Attachments hereto. For the same time period, Consultant shall make
said documents, papers and records available to City and the agency from which City received
grant funds or their duly authorized representative(s), for examination, copying, or mechanical
reproduction on or off the premises of Consultant, upon request during usual working hours.
b. Consultant shall provide to City all records and information requested by City for
inclusion in quarterly reports and such other reports or records as City may be required to
provide to the agency from which City received grant funds or other persons or agencies.
c. Section 504 of the Rehabilitation Act of 1973 (Handicapped) - All recipients of federal
funds must comply with Section 504 of the Rehabilitation Act of 1973 (The Act). Therefore,
the federal funds recipient pursuant to the requirements of The Act hereby gives assurance
that no otherwise qualified handicapped person shall, solely by reason of handicap be excluded
from the participation in, be denied the benefits of or be subject to discrimination, including
discrimination in employment, in any program or activity that receives or benefits from federal
financial assistance. The Consultant agrees it will ensure that requirements of The Act shall be
included in the Agreements with and be binding on all of its contractors, subcontractors,
assignees or successors.
d. Americans with Disabilities Act of 1990 - (ADA) Consultant must comply with all
requirements of the Americans with Disabilities Act of 1990 (ADA), as applicable.
e. Political Activity - None of the funds, materials, property, or services provided
directly or indirectly under this Agreement shall be used for any partisan political activity, or to
further the election or defeat of any candidate for public office, or otherwise in violation of the
provisions of the "Hatch Act ".
E. Civil Rights Compliance and Notification of Findings - Consultant will comply, and all
its contractors (or subrecipients) will comply, with the nondiscrimination requirements of the
Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 USC 3789 (d), or
Victims of Crime Act (as appropriate); Title VI of the Civil Rights At of 1964, as amended;
Section 504 of the Rehabilitation Act of 1964, as amended; Subtitle A, Title II of the Americans
with Disabilities Act (ADA) (1990); Title IX of the Education Amendments of 1972; the Age
Discrimination Act of 1975; Department of Justice Non - Discrimination Regulations, 28 CFR
Part 42, Subparts C, D, E, and G; and Department of Justice regulations on disability
discrimination, 28 CFR Part 35 and 39. In the event a Federal or State court, Federal or State
administrative agency, or the Consultant makes a finding of discrimination after a due process
hearing on the grounds of race, color, religion, national origin, sex, or disability against a
recipient of funds, the Consultant will forward a copy of the findings to the City which will, in
turn, submit the findings to the Office of Civil Rights, Office of Justice Programs, U.S.
Department of Justice.
25E -8 Page 6 of 7
18. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the power,
authority and right to bind their respective parties to each of the terms of this Agreement, and shall
indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to
City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth
in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above written.
ATTEST:
MARIA HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By:
Melissa Crosthwaite
Deputy City Attorney
CITY OF SANTA ANA, a municipal
Corporation of the State of California
DAVID N. REAM
City Manager
MINDTOUCH INC.
Byoung Do Lee
Chief Financial Officer
Tax ID# 20- 2008867
25E -9
Page 7 of 7
25E -10
Attachment A
SECTION IV
TECHNICAL SPECIFICATIONS
4.0 REQUIREMENTS
4.1 Web Site / Portal Project Goals:
The vendor will deliver a complete and usable web site / portal as described in this
section, which can then be hosted and maintained by the Orange County Intelligence
Assessment Center ( OCIAC) and grant management staff. The web site / portal will have
access tiers for the public, the different groups working within OCIAC, and those
responsible for managing the homeland security grants.
4.2 Reporting / Notification Needs:
The site should harvest and log user activity data based on log -in. The site should also
harvest and log IP addresses from members of the public who download items or submit
forms on the site. The specific user activity data fields to be logged will be provided by
OCIAC staff. There should be a function which allows this data to be viewed in report form.
The web site / portal should have the ability to allow administrative users to produce
reports based on the data that has been entered into the various online forms and sections
of the site. These reports would include, but are not limited to summary reports on the
number or suspicious activity reports submitted during the requested period of time,
reports on the number of TLOs broken down by discipline and jurisdiction, reports on the
classes attended by each TLO, summary reports on grant projects which include progress
status, the amount of funds allocated, encumbered, or expended.
4.3 Content Population:
OCIAC personnel and grant administrators will provide the selected vendor with specific
content information to include: initial content, a draft site map in outline form, logos,
sample forms, list of group permissions (data classification), and first and second level
navigational menu items for the public, OCIAC, and grant portions of the web site / portal.
The visual design, navigational and content structure will be developed by the vendor in
conjunction with stakeholders from the represented groups.
4.4 Graphic Design and Implementation:
The web site / portal should have a simple, professional looking master design for the
OCIAC and grants management sections with a nested master /template for the OCIAC
and grants management sections that allow for a different logos and banners, and a third
level nested master for sub - groups within the OCIAC and the grants management office.
These will appear to be unique websites through the use of sub - domains.
See the following examples for websites with similar desired look and features for the
design:
http: / /www.tlo.org (e.g. Report a Lead)
1 of 20
25E -11
Attachment A
http: / /www.sacrttac.org (e.g. Members Login)
4.4.1 The website should be fast loading, with a high percentage of text to formatting,
structural code or graphics. Text styled with CSS, not graphics, should be used for
navigation.
4.4.2 Minimal or no horizontal scrolling on monitors at resolutions of 1024 pixels wide.
4.4.3 Design will include on each page a navigational aid with links back to each
previous page (breadcrumb trail).
4.4.4 The OCIAC will be allowed two rounds of revisions to be completed within the
production schedule. The initial design may be provided in a mockup format. A fully
working prototype to be tested for usability will be required before full approval of
the design.
Usability testing will include the following platforms:
4.4.4.1 Firefox 1.0 + /Mozilla 1.5+ (Mac & Windows)
4.4.4.2 Internet Explorer 6+ (Windows)
4.4.4.3 Safari 1.0+ (Mac)
4.5 Content Management System (CMS):
4.5.1 The vendor will provide a web CMS for the web site / portal. There should be
flexibility within the portion of the site assigned to a specific user group for
designated staff to add, remove, and update content using tools and templates
that do not require extensive knowledge of web development languages or
technical structure. All pages on the site and page attachments should be fully
indexed to allow for efficient searches. Types of attachments to be indexed include
Adobe PDF and Microsoft Office documents. Selected staff from OCIAC and the
grants management office will need to be able to edit the components of the site
using typical word processing skills in a WYSIWYG environment.
4.5.2 Once the design is finalized, the vendor will create the needed HTMUCSS and
other coded pages and/or databases for the construction of a website template, so
that the template can be thoroughly tested.
4.6 Public Pages:
4.6.1 The web site / portal will have a public- facing homepage with brief information
about the OCIAC and homeland security grant programs, as referenced in Section
1.1, above.
4.6.2 The web site / portal will have pages reporting public information on grant awards
and projects with this information being provided by the staff of the grants
management office.
4.6.3 The public facing page(s) related to the OCIAC will also include:
4.6.3.1 A page for members of the public to report a tip or lead. This portion will
have a custom web part or module with a form to gather the required tip
2 of 20
25E -12
4.7
Attachment A
or lead information storing the data in a database. Part of the submittal
process will include;
4.6.3.1.1 Entry of characters from a security image (e.g. CAPTCHA)
4.6.3.1.2 Collection of the IP address of the submitter
4.6.3.1.3 Insertion of the form data and IP into a database
4.6.3.1.4 E- mailing the data to an OCIAC administrator
4.6.3.2 The web site / portal will list links to other public web sites that have
additional related information. OCIAC and grant administrators should
be able to edit these links as well as add additional links at any time
using a WYSIWYG interface.
Secure or Limited Access Pages
4.7.1 The CMS will allow tiered access to selected portions of the site based on a list of
user groups and their privileges. The user passwords will expire every 6 months,
and the module will notify a user when their password has expired and collect and
store a new password. Should the user forget their password the site will provide
a method for the retrieval of their password.
4.7.2 The homepage will have a login form or link to a login page for OCIAC users and
grant management users that allow access to the secure portions of the web site /
portal. The login component will include a non - disclosure agreement screen
requiring an affirmative response before granting access.
4.7.3 The user should only be able to view navigational elements which they have
permission to access.
4.7.4 The web site / portal will have a separate page for each sub - component group. For
the OCIAC secured area:
4.7.4.1 Terrorism Liaison Officer (TLO)
4.7.4.2 Critical Infrastructure Protection (CIP)
4.7.4.3 Private Sector Terrorism Response Group (PSTRG)
4.7.4.4 There should be a fourth page for the OCIAC secure area that is
common to all OCIAC sub - groups
For the grant management secured area;
4.7.4.5 Anaheim Police Department Grant Management Unit
4.7.4.6 Santa Ana Police Department Grant Management Unit
4.7.4.7 Orange County Sheriff Department (OCSD) Grant Management
Unit
4.7.4.8 There should be a fourth page for the grant management secured
area that is common to all of the grant offices.
4.7.5 The web site / portal will have a web -based administrative interface to be used by
OCIAC and grant administrators, that is secured with username and password
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Attachment A
access, to view the list of users and administrators, view /edit fields associated with
any given user record, including name, username and password, and whether
"active" or "inactive ", and to add or delete a user /administrator.
4.7.6 The web site / portal will have a meeting /event calendar module. The calendar will
allow each group and sub -group to add content to the calendar. Calendar items
will only be viewed by users in groups with access to those items. The calendar
should allow for items to be links which will navigate users to other sections or
documents contained in the web site / portal. An example of this would be links
displayed on a calendar which take the user to a list of classes available on that
date or to a web form which allows the user to register for the class indicated on
the calendar.
4.7.7 The web site / portal will have an archive of documents for the TLO's, CIP and
Intelligence users, including sample infrastructure assessments and a blank
assessment worksheet. The archive should be fully indexed to allow for effective
searches. Users should have the ability to search by document title, type, author,
and key words found in the document narrative. The library should accept a wide
variety of document file types such as Microsoft Office applications (Word, Excel,
PowerPoint, Publisher, etc.), Adobe PDF, HTML, etc. Only OCIAC web
administrators will have the ability to upload to this library.
4.7.8 The web site / portal will have a library of all grant processing forms and
documents. Only grant web administrators will have the ability to upload to this
library. Sub - recipients will be able to access the library and select the form they
need.
The web site / portal will have internal, online forms that sub - recipients can
complete and submit. The data from these forms, once submitted, will be stored in
a linked database. Users will also be able to generate a "printer friendly" version
of the completed form that they can either print to a hardcopy or generate an
Adobe PDF file to save for their records. The vendor will be responsible for
creating at least 20 such forms, their purpose and content to be determined during
the design process.
4.7.9 The vendor will provide a grant application module that uses a multi -step process.
This process will include: an application submission component, an approval
component, a project management component and a reimbursement component.
4.7.9.1 The application submission component will collect the information
elements determined necessary by the grant administrators via an
online form and store the information in a database. Once submitted,
the appropriate grant administrator will be notified of the submission by
e -mail. The form will allow for required fields as well as validate the data
in specifically designated fields. An error message will indicate or
highlight the missing or incorrect fields. The online form will then
produce a "printer friendly" form which will include the information
entered in the online form as well as signature and date blocks to be
filled out by and on the hardcopy by the applicant.
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Attachment A
The application form should have the ability to be on a secure socket
layer, depending on the privacy of the information exchanged. This will
be determined by the grant staff.
4.7.9.1.1 Grant administrators from Anaheim, Santa Ana, and the
Orange County Sheriff's Department will manage the grant
process for the sub - recipients and are designated by grant
year; odd years - Santa Ana, even years - Anaheim, and all
SHSGP funded projects - Orange County Sheriff Department.
The application process should allow for the submission of
the documents to the appropriate grant administrator.
4.7.9.2 The application approval component will allow the grant administrators
to track the approval process of the applications noting key review
points and approval dates. The approval component will allow grant
administrators to notify the applicant via email of the applications
approval or rejection. Once approved, the application information,
namely milestones and budget figures, will be automatically uploaded
into the project management component.
4.7.9.3 The project management component will permit the grant administrators
to track the progress of the projects. The module should list the
milestones for the approved project and have a charting feature that
indicates the percentage of completion. The project management
component should allow sub - recipient project managers to submit
reports regarding their progress with these reports having a narrative
based comment area.
4.7.9.4 The reimbursement component will allow sub - recipients to submit online
forms requesting reimbursement for project expenditures.
4.7.9.4.1 Grant administrators will provide the form designs and
workflow for the reimbursement process.
4.7.9.4.2 As reimbursements are submitted, the account balance will
reflect the expenditures and calculate and display the
adjusted remaining balance. The module should display a
chart reflecting account information such as the amount
expended and balance available.
4.7.9.4.3 Sub - recipients should have the ability to upload
attachments for reimbursement justification into a
designated document location.
4.7.9.4.4 Upon form submittal, notification containing links to
uploaded documents will be e- mailed to the appropriate
grant administrator.
4.7.9.5 The web site / portal will permit grant administrators the ability to notify
sub - recipients of missing or incomplete forms used in the application,
project management, or reimbursement submission process.
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Attachment A
4.7.9.6 Each participating sub - recipient will have a document location
accessible only to that sub - recipient and the UASI grants administrators.
The document location will be used by the sub - recipients to store
uploaded attachments, scanned documents, maps, receipts, etc. The
grants administrators can access the location to process the grants and
receive required applications and documents, progress reports, and
reimbursement claims.
4.7.9.7 The web site / portal will have a location where Notices and
Informational Bulletins can stored for retrieval by grant administrators
and sub - recipients. Assess to this location will be controlled by user
privileges.
4.7.9.8 Upon form submittal, notification containing links to uploaded
documents will be e- mailed to the appropriate grants administrator.
47.10 The vendor will provide a custom module for online registration and
reimbursement for training.
4.7.10.1 The module will permit on -line registration for a training classes filling in
user information from the user database. Users will view the calendar
for available training classes, select the class they wish to take, and fill
out an online application for submission. The application should e-mail
a confirmation to the user. The application should also have a reporting
page accessible to the appropriate grant training administrator which
lists the users and their information by class.
4.7.10.2 The module should have the capability to allow grant sub - recipient to
apply for classes that are not listed on the training calendar.
4.7.10.3 The module should have the capability for a grant sub - recipient to
submit a training reimbursement claim and have the claim amount
subtracted from the total allocated funds once the submission has been
approved. The sub - recipient should have the ability to see the
remaining balance of their funding amounts.
4.7.10.4 The module should permit the grant and training administrators to
produce reports regarding the number of trained personnel broken down
by discipline and jurisdiction, number of classes presented, and number,
discipline, and jurisdiction of personnel attending each class.
4.7.11 The vendor will provide a custom inventory module to:
4.7.11.1 List an inventory of regional UASI shared equipment that indicates the
equipment's location and status.
4.7.11.2 List requirements related to using the equipment, associated costs, and
personnel requirements.
4.7.11.3 Allow users to request the use of UASI purchased /owned equipment via
an online form and have the form data e- mailed to the appropriate
equipment owner /manager as well as the appropriate grant
management agency.
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Attachment A
4.7.12 Search function: each page should have a simple search form in a prominent
location. The search engine will automatically find and index new documents.
4.7.12.1 Search results should only show those pages which the user has
access to or only pages within his /her group's portion of the site.
4.7.13 The web site will have a stand alone address book for use by OCIAC and grant
management staff to maintain contact information.
4.7.14 The OCIAC and the grants home page will each have a module presenting the
current additions to the site, automatically chosen based on date of publication.
4.7.14.1 The current additions section will show the 10 most current additions
that the given user is able to access.
4.7.15 The web site / portal will contain links to other websites which contain additional
information and these links will be editable by OCIAC and grants management
staff. Administrators from OCIAC and grants management office should have the
ability to remove links or add additional links at anytime using a WYSIWYG.
4.7.16 The web site / portal will provide a module that allows users to subscribe to a list
server in order to receive notifications about grant deadlines, training courses, etc.
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MinclTouch
OCIAC
MinclTouch Professional Services
10/19/2010
Attachment A
25E -18
8 of 20
Attachment A
Table of Contents
FusionCenters ................................................................................................ ...............................
10
MinclTouchOut of the Box ............................................................................. ...............................
10
MinclTouchBranding ...................................................................................... ...............................
14
Wi refra m e s .................................................................................................
14
...............................
Design.........................................................................................................
15
...............................
DesignExamples ......................................................................................... ...............................
15
BrandingReview ......................................................................................... ...............................
15
Homepage..................................................................................................
15
...............................
CustomMinclTouch Plugins ........................................................................ ...............................
15
TipsSubmission Form ............................................................................. ...............................
15
InteractiveCalendar Plugin ..................................................................... ...............................
16
Interactive Calendar Display ...................................................................
17
...............................
Reimbursement Creation Form Addon ..................................................
17
...............................
Reimbursement Form Display Dashboard ................................................
.............................18
GrantEntry Form Plugin ...........................................................................
.............................18
GrantEntry Project Page ........................................................................
19
...............................
Grant Entry Display Dashboard ..............................................................
19
...............................
KeyStakeholders ........................................................................................
20
...............................
CostProposal ..............................................................................................
20
...............................
Project Timeline and Payment Milestones ................................................. ............................... 20
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Attachment A
Statement of Work
Fusion Centers
MindTouch Out of the Box
MindTouch is a robust platform that out of the box delivers an immediate value to your
strategic documentation and collaboration efforts. The following features are part of
MindTouch 2010 and cannot be customized as part of the skinning package.
For customizations or development outside of this scope please contact your MindTouch
Sales Manager.
Breadcrumbs
Breadcrumbs provide a hierarchical form of navigation to inform users of their location
relative to other content in the hierarchy. Breadcrumbs are automatically generated based
on the location of a page within the hierarchy. Breadcrumbs are displayed above the
page content and can be configured to display anywhere within the site "skin ".
Community Scoring
Finding quality content can quickly become a challenge for a rapidly growing
community. MindTouch community scoring mitigates the responsibility of quality
assurance by leveraging community involvement. Community scoring influences the
search to ensure high quality results. Additionally, scoring can be reviewed via reports to
identify high and low quality content.
DekiScript
MindTouch is an enterprise grade web platform with a variety of tools that make
developing and deploying large applications quick and easy. Power users can use
DekiScript to build custom reports, dashboards and even their own applications.
DekiScript can be entered into any MindTouch page for rapid application development.
Users who are new to DekiScript can utilize the MindTouch Community Portal for access
to documentation, support and success to other passionate DekiScript developers.
Navigation
MindTouch utilizes a hierarchical navigation to display the structural organization of content
within the platform. The navigation is permanently displayed on the left hand side of the
application interface and is animated to allow access to the subpages of the hierarchy. The
navigation can be displayed or hidden for specified groups of users. The MindTouch navigation
also maintains content relationships and doesn't allow for the existence of orphaned pages.
Page Notifications
MindTouch comes equipped with an advanced email notification system that offers user
activity updates on any page or hierarchy of pages throughout the site. Email
notifications have a configurable frequency to ensure an appropriate level of interaction
with users. Additionally notifications are batched together resulting in a clean and
understandable overview of the selected activity. Email notifications pertain to all
content updates in MindTouch including comments, tags, file uploads etc.
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Attachment A
Email notifications can be completely customized via the provided text and HTML
templates.
Print to PDF
Every MindTouch page can quickly be printed into PDF format utilizing the "Print to
PDF" function. The print to PDF functionality is accessible on every content page within
MindTouch.
Recent Changes
MinclTouch has a plethora of tools used to enhance the discovery and location of relevant
content. The Recent Changes report displays a chronological table of user contributions. This
report includes page modifications, file uploads, comments added, etc.
The Recent Changes report can be filtered to list contributions by individual users or by the
entire community of contributors. The Recent Changes report is also available via RSS for users
to keep updated using the tools they choose.
Revision History
MindTouch ensures that all of your content is safe and secure by maintaining all
modifications in revision history. Every interaction with a page or file is stored in the
revision history and can be reverted by authorized users.
RSS
MindTouch offers a variety of very useful RSS feeds for advanced site monitoring and
engagement. Available RSS feeds include:
• Site wide recent changes
• Site wide comments
• Site wide new pages
• User activity
• User contributions
• Page comments
• Page changes
• Page history
Search
MindTouch has developed state of the art search capabilities to adapt to a customer's ever
evolving strategic documentation needs. The MindTouch search algorithm acknowledges
the content value, page rating, search tendencies, user activity, click frequencies, file
attachments, tags, page properties and more to deliver the highest quality documentation
to users.
Security Permissions
MindTouch permissions are extremely flexible and allow user, role and group management.
Administrators in MinclTouch can define custom roles with any combination of actions such as
update, delete, and create. Once a role has been defined it can be assigned to either an
individual user or a group of users.
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Attachment A
Content within MindTouch can be restricted to be public, semi - public or private and can have
any number of users, groups or roles added as exceptions to the rule. Restrictions can be
applied to an individual page or to a page and its subsequent pages.
• Public: Everyone can view and edit the page
• Semi - Public: Everyone can view but only listed users can edit the page
• Private: Only listed users can view and edit the page
Sharing
The MindTouch share feature allows users to quickly and easily send documentation to
contacts via email. The share feature is available on every collaborative page and can be
accessed by all registered users.
Support
MindTouch is proud to offer best in class customer support. Whether you're looking for
experienced advice or highly technical troubleshooting the MindTouch Support team is
your solution for rapid and professional problem solving. Support packages are available
for all sizes of organizations and can be tailored to meet any organization's needs.
Tags
Tags can be added to any page to increase discoverability and identify content. The tags
interface is exposed below the editor content and provides "tag suggestions" based on the
other tags in the site.
Templates
Templates provide an easy format for legible documentation. MindTouch templates can
be accessed through an easy -to -use dialog interface in the page editor. Templates can be
restricted to allow for individual or group access.
User Management
MindTouch permissions are extremely flexible and allow user, role and group
management. Administrators in MindTouch can define custom roles with any
combination of actions such as update, delete, create and more. Once a role has been
defined it can be assigned to either an individual user or a group of users.
Content within MinclTouch can be restricted to either public, semi - public or private and can
have any number of users, groups or roles added as exceptions to the rule. These restrictions
can be applied to an individual page or to a page and its subsequent pages.
• Public: Everyone can view and edit the page
• Semi - Public: Everyone can view but only listed users can edit the page
• Private: Only listed users can view and edit the page
File Management
Any file can be uploaded to MindTouch (subject to file size and type restrictions as
specified by the administrator). Files within MindTouch are versioned and adhere to the
same stringent security standards as any other piece of content throughout the system.
Individual file versions can be viewed; however, links to those files only point to the
most recent version unless explicitly specified. In addition, files deleted from within
MindTouch can be retrieved or permanently removed by the system administrator in the
control panel.
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Attachment A
WYSIWYG Editor
MindTouch offers a very rich user experience for editing HTML. Editors support all
native HTML tags and offer an intuitive "Microsoft Word Like" experience for adding,
editing, resizing and embedding content.
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Attachment A
MindTouch Branding
The MindTouch Professional Services team is knowledgeable and experienced in
application design, development and implementation. The Professional Services team
will work closely with you to ensure a seamless and timely delivery.
Wireframes
MindTouch will provide a selection of "best practice" wireframe layouts for guidance
and direction. The pre - formatted wireframes have been proven to serve both form and
function which ultimately ensure the best of both design and development. Wireframe
layouts are intended to guide the design and implementation process and will serve as the
overall guiding factor in layout, positioning and structure.
MindTouch requires that a wireframe be selected prior to commencing the project.
Available wireframes include:
Fixed width,
centered, right
navigation
Fixed width,
centered, right
navigation
100% width, right 100% width, left
navigation navigation
0
If the provided wireframes do not meet your needs MindTouch can provide additional
wireframe templates to choose from. The wireframes must be created by MindTouch in
order to enable optimal content delivery and user experience.
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Attachment A
Design
MindTouch requires a series of company identification materials prior to commencing
the project. Company identification required materials include:
Organization logo
• Non flattened Adobe Photoshop files
• Adobe Illustrator Vector files
• Organization color palette
o Palette of hexadecimal colors to be used within the design
• Organization design guidelines
o Any formal or required guidelines of how to implement the design
Design Examples
MindTouch requires a minimum of two website examples to influence the custom skin.
The example website can be submitted either as a URL or screenshots. If the site is not
publically accessible screenshots are required.
Branding Review
MindTouch will allow for up to two design (30 minute) feedback sessions in order to
align expectations. Both design feedback sessions will be scheduled during the kick -off
meeting in accordance with the delivery schedule. Feedback sessions will be used to gain
design direction and have pertinent questions answered.
Accepted design feedback includes:
• Color
• Design
• Font
• Position
• Images
Design feedback must be submitted to MindTouch within two business days of the design
presentation. All design feedback will be triaged to determine whether it is in scope and
in accordance with the SOW.
Homepage
• The Homepage will contain a user login area
o Every time a user logs in they will have to check a box indicating they
have read and agree to the non - disclosure agreement
Custom MindTouch Plugins
Tips Submission Form
Form will be available to the public to enter /report suspicious terrorist activity
Anonymously accessible while providing limited user detail
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Attachment A
o IP address
• Form inputs to be included:
• Details of report
• Date
• Time
• Suspect names
• Location
• Urgency
• Upon Submit the form content will be emailed to a MindTouch user group (group
will be managed by OCIAC administrators via the control panel)
• Form will utilize CAPTCHA to validate legitimacy of report
• Data will not be stored in a database
• Form will be embeddable within any page throughout MindTouch
Interactive Calendar Plugin
• An Interactive Calendar will be created as a MindTouch plugin
• "Create event" link will be globally accessible to all authenticated users and
groups
• "Create event" form will include the following fields:
• Text Input: Title
• Textarea Input: Description
• Text Input: Date — Date picker
• Text Input: Start Time — Time picker
• Text Input: End Time — Time picker
• File Upload
• Text Input: Creator — pre populated
• Calendar events will utilize MindTouch "chrono tags" to identify a page as an
event
• All calendar events will be stored under /calendar for consistency
• Events can optionally be moved to alternative locations and will still populate the
calendar display
• Events can be optionally private depending on the MindTouch page permissions
for the created event page. Group and user accessibility will be completely
managed by the MindTouch restrict access interface that allows permissions to be
granted to:
o Public
o Semi - public
o Private
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Attachment A
Interactive Calendar Display
• Calendar can be embedded in any MindTouch page using MindTouch DekiScript
o Documentation on embedding the calendar will be provided
• Calendar display will only include a single monthly view
o Clicking next or previous will display the appropriate monthly view and
will require a page refresh to load
o Color highlighting will identify a date that contains events
o Clicking the color coded dates will display a pop -up with corresponding
event
■ Limited details will display in popup
■ A link to the event details will be available from the popup
o At this point users will not be able to register for events
Reimbursement Creation Form Addon
• A Reimbursement Form will be created as a MindTouch plugin
• Reimbursement input form will include:
o Text Input: Who — Pre - populated from MindTouch
o Text Input: Name of class
o Text Input: Date of class — Date picker
o Text Input: Cost of class
■ Provide 10 rows for additional cost data entry
• Description
• Cost
■ Reimbursement total will be automatically calculated based on
entry to individual rows of cost data
• The reimbursement form will create new MindTouch page in
/reimbursements
• All relevant reimbursement data will be stored as page properties of the
newly created reimbursement page
• Only administrators and the user who submitted the reimbursement form
will be able to view their form submission
• A user will be able to easily view only their submissions while
administrators will be able to view all submissions
• Once a reimbursement form has been submitted it is no longer editable
o Users will have the functionality to delete their own reimbursement forms
submitted
• The template that controls the layout of the reimbursement form addon will be
marked as semi - public to prohibit end user tampering
• Will include error messages for predefined required fields
• Will not include validation for input formatting
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Attachment A
Reimbursement Form Display Dashboard
• Table view built as a MindTouch Template will be marked as semi public to
prevent end user tampering
• Table columns include:
o Name of person
o Name of class
o Data of class
o Total Cost of class
o Status of reimbursement
• Status of reimbursement can be changed directly from the dashboard. Status
options include:
o Pending
o Rejected
o Approved
• All new reimbursements will default to a status of Pending
• The Reimbursement Dashboard will include sortable table columns for the
provided columns
• The Reimbursement Dashboard will not include pagination
• Upon submitting the reimbursement form the user will be redirected to their
newly created reimbursement page
• Only the reimbursement status can be changed by administrators
Grant Entry Form Plugin
• The Grant Entry Form will be created as a MindTouch Plugin
• The form will include the following inputs:
o Text Input: User — pre - populated from MindTouch
o Text Input: Title
o Timeline
■ Text Input: Start Date — Date picker
■ Text Input: End Date — Date picker
o Text Input: Cost
o 2 File uploads
o Page location picker
o Textarea Input: Grant Details
• Will include error messages for predefined required fields
• Will not include validation for input formatting
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Attachment A
Grant Entry Project Page
• The Grant Entry plugin will create a MindTouch page with corresponding details
stored as page properties
• A drop down with a button will display to administrators that will them to change
the status of the grant entry
• Note, localization is not included
• The Grant Entry project page will display the following properties in a non -
editable sidebar:
• User
• Title
• Timeline
• Cost
• File uploads
• The remaining content will be collaboratively editable by users who are granted
access. This includes:
o Grant Details
• User access will strictly be managed by the use of the MindTouch restrict access
interface that allows pages to be set to:
• Public
• Semi - public
• Private
Grant Entry Display Dashboard
• Table view built as a MindTouch Template
• Table will not include pagination
• Table columns will be sortable by clicking on the table column header
• Table columns include:
• Name of person
• Title of grant
• Cost
• Current status:
■ Pending
■ Rejected
■ Approved
• Approval date will not be tracked
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Attachment A
Stakeholders
Brian Sheldon
Project Sponsor
Jesse Rubin
MindTouch Account Manager
Damien Howley
Director of Technical Services
Robert Mason
MindTouch Project Technical Lead
Emily Potthoff
Director of Client Services and PM
Cost Proposal
The total proposed cost of the web site project is $87,990 and breaks down as follows;
One -time Fee (services) 60,000
One -time License Fee* (software) 19,995
Annual Support (support) 7,995
* fee covers the license for the version provided at the time of installation, but does not allow for new
versions.
Project Timeline and Payment Milestones
Project Timeline - It is understood the web site project is being funded under a
Department of Homeland Security Grant and has a completion deadline of 31
March 2011. MindTouch agrees to manage the project in a manner which ensures
all necessary meetings and work required to produce the final web site will be
completed on or before 31 March 2011.
• Payment Milestones -Within 30 days of signing an agreement, 100 percent of
the software and support as well as 50 percent of the services will be paid, an
amount totaling $57,990. The remaining 50 percent of the services, $30,000, is to
be paid upon completion and final acceptance of the web site.
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REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
LEASE AGREEMENT WITH
T- MOBILE WEST CORPORATION
FOR CELLULAR ANTENNA AT
DELHI PARK \
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
As Recommended
As Amended
Ordinance on 1s' Reading
Ordinance on 2nd Reading
Implementing Resolution
Set Public Hearing For_
CONTINUED TO
FILE NUMBER
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 Delhi 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 -30 (Delhi Park).
BOARD OF RECREATION AND PARKS
Recommended approval of lease agreement with T- Mobile West Corporation for cellular equipment
building and monopalm cell tower at Delhi Park, at their meeting of April 28, 2010, by vote of 4:0:3.
DISCUSSION
T- Mobile is requesting approval of a lease agreement to install a 65 foot monopine with cellular
antenna at 60 feet in Delhi Park. The lease agreement with T- Mobile West Corporation is for 636
square feet of lease space for the equipment building and cell tower area. T- Mobile will build the
equipment building and a picnic shelter on the west side of Delhi Park (see Exhibit 1).
25F -1
Lease Agreement with T- Mobile West Corporation at Delhi Park
December 6, 2010
Page 2
The lease agreement is for 10 years, with three 5 year extension options in the amount of $2,400 per
month ($28,800 per year). The agreement provides for a rate increase of 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 Delhi Park. T- Mobile will provide all the proper insurances and obtain
the necessary City permits prior to construction.
Three presentations were made to the neighborhood association and OCCCO on T- Mobile's
proposal. Questions were mainly focused on health /safety issues which were addressed by T-
Mobile's representatives. On November 30, 2010, an additional meeting was held with OCCCO
representatives to finalize the new location of the cell tower and negotiate the addition of a picnic
shelter as part of the terms.
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, the recommended action is exempted
from further review. Categorical Exemption Environmental Review No. 2010 -30 (Delhi Park) will be
filed for this project.
FISCAL IMPACT
This appropriation adjustment will recognize $28,800 and the $10,000 onetime payment 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.
Gera do Mouet,
Exec tive Director
Parks, Rec. and Com. Svcs. Agency
APPROVED AS TO FUNDS AND ACCOUNT:
-�, NN .-) 1
_
Francisco Gutierrez,
Executive Director
Finance and Mgt. Svcs. Agency
25F -2
25F -4
LAND LEASE AGREEMENT BETWEEN
THE CITY OF SANTA ANA AND T- MOBILE WEST CORPORATION
for
DELHI 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 T- Mobile West Corporation, a Delaware corporation, hereinafter designated
"LESSEE ". The LESSOR and LESSEE are at tunes 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 Delhi 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 730 E. Warner Ave., Santa Ana, CA
92707, and being described as a twenty-two foot (22') by twenty foot (20') space on the ground containing four
hundred forty (440) square feet for LESSEE's radio equipment cabinets, a fourteen foot (14') by fourteen foot (14')
space on the ground containing one hundred ninety-six (196) 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 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 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 dollars ($2$,$00.00) to be paid in equal monthly 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 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
alter the full execution of this Agreement or the fast 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 date and provided LESSOR has complied with all applicable notice and
cure provisions herein, LESSEE agrees to pay a late charge 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 anniversary of the Commencement Date.
6. INITIAL PAYMENT, LESSEE hereby agrees to pay to LESSOR a one -time, non - recurring, non-
refundable payment equal to ten thousand dollars ($10,000.00), within thirty (30) days after the Commencement
Date. Notwithstanding the above, LESSOR shall refund LESSEE the initial $10,000.00 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 six (6) months after the full execution of this Agreement.
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:
EXHIBIT 2
Site k: LA3383613
Site Name: Dclhi Park
Date. 06/1 &20 10
(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 "rests") 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 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, LESSEE 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 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 Ma1NTENANCE. 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'l 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,
Site #: LA33936B
Site Name: DcH Park
Date: 06/18/2010
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 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.
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 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. 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 arising 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 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 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.
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. 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.
Site #: LA338368
Site Name: Delhi Park
Bata: 06/18/2010
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 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 wear 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
Site 8: LA33836B 4
Site Name: Delhi Park
Date: 06/18/2010
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 are
no other liens, judgments or impediments of title on the Property 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. 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 LE SEE US SLBILIMS.
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
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 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 rime 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
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
are 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 wear and
tear excepted.
Site #: LA33836B
Site Name: Dethi Park
Drtc: 06/tWoto
_ _ ...... `2 V F
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.
•
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 mm 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 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
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, other than the Premises which is
already leased to Lessee. Further, regarding co-location/subleasing space on LESSEE's tower, LESSEE 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 a pro -rata share of the costs of the tower and its installation, and
(ii) LESSOR receiving eighty percent (801%) 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 a pro-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):
Site H: LA33836B
Site Name: Delhi Park
Date: 06/18/2010
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:
T- Mobile USA, Inc.
12920 SE 38ih Street
Bellevue, WA 98006
Attn: PCS Lease Administrator, Site #: LA33836B
With a copy to: Attn: Legal Dept.
Copy to:
T- Mobile West Corporation
2008 McGaw Avenue
Irvine, CA 92614
Attn: Lease Administration Manager, Site #: LA33836B
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.
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, 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 (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 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. I.f 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.
Site N: LA33836H 7
Site Name: Delhi Park
Date: 06/t 8/2o w
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• D,lEFA ij . 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 seasonably 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 cum 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.
e ' •,31 k �.
A. LESSEE shall not bring any Hazardous Materials onto the Premises/Property, except for
those contained in its backup 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 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
conditions or concerns are 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 standards of liability or standards of conduct with regard to any environmental 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.
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
Site q: LA33836B
Site Name: Delhi Park
Daw 06/18/2010
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 Party to the
other Party 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 are inserted for convenience only and are
not intended to be part of the Agreement. They shall not affect or be utilized in the construction or interpretation of
the Agreement.
37. PROPERTY SPECIFIC ACCESS RUt ESIRE :t rT ATiONS. To the extent that such rules are not
inconsistent with or do not interfere with LESSEE's rights herein, 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 necessary for the enjoyment of the Premises and Property by both parties hereto.
38. POWERING DOWN DURING MAINTENANCE i 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 earliest practicable notice will be given to LESSEE using the information in Exhibit
E, as applicable.
A. Compelled Termination: if, during the lease terra, 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
Site #: LA33836B
Site Name: Delhi Park
Date: W1812010
(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.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
ATTEST:
CITY OF SANTA ANA
MARIA D. HUIZAR DAVID N. REAM
Clerk of the Council City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By: _
LAURA SHEEDY
Assistant City Attorney
LESSEE: T -MOBIL T CORD TION
By:
.
Name:
Its:
ChrisWpher Eldti
Date:
D"dorr of R000" Dev.
_
`
- 1 2 t0
Approved as to iurm
aria [i, Dao r
Corporate Counsel
Site k: LA33836B 10
Site Name: Delhi Park
Date: 06!18!20 t o
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
NOVEMBER 15, 2010
TITLE:
AGREEMENT WITH KNOWLWOOD
ENTERPRISES, INC. FOR PROVIDING
FOOD CONCESSION SERVICES AT THE
SANTA ANA ZOO AT PRENTICE PARK
� 141.
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1" Reading
❑ Ordinance on 2"d Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute the attached foods concession
agreement with Knowlwood Enterprises, Inc. for providing food concession services at the Santa
Ana Zoo at Prentice Park.
DISCUSSION
The Santa Ana Zoo at Prentice Park receives 275,000 visitors per year from all over Orange
County. To enhance the visitor experience, the Zoo food concession provides a variety of hot
and cold meals, beverages, and snack food items. The Zoo's food concession facility is designed
to service customers both inside and outside the Zoo. In addition, the Zoo has a large private
picnic area and 150 -seat amphitheater that is suitable for private parties up to 500 people. These
areas are often used for catering private and company picnics and after -hours events operated
by the City and Friends of Santa Ana Zoo (FOSAZ).
Our existing Zoo concessionaire was selected in 2000 and had an initial five year agreement with
the City with one five year renewal option. The renewal was provided in 2005 and the
agreement ends this year. On July 15, 2010, 36 Requests for Proposals (RFPs) were issued to
restaurateurs and concessionaires soliciting proposals for food concession services. A pre -
proposal conference was conducted on July 27, 2010 and four vendors submitted proposals for
consideration. El Coyar, El Tapatio, Knowlwood Enterprises and Misto Faire each submitted
proposals for review. A six - member evaluation committee consisting of representatives from
Bowers Museum, Discovery Science Center, Friends of Santa Ana Zoo, and the Parks,
Recreation and Community Services Agency evaluated and rated the four proposals.
25G -1
Agreement with Knowlwood Enterprises
November 15, 2010
Page 2
The proposals were evaluated based on the Vendor's Credentials and Experience (40 %),
Operations and Menu (40 %), and ability to provide Theme Based Marketing (20 %). The results
of the evaluation committee are as follows.
Vendor
Score
Knowlwood Enterprises
591
Misto Faire
495
El Co ar
411
El Ta atio
361
Knowlwood is proposing a broad menu consisting of burgers, fries, Mexican food, kid's meals,
and a variety of healthy menu items. The agreement will have a three -year term and will include
a provision that allows the City to extend the agreement for two additional two -year terms. Under
the agreement, the City will maintain the exterior of the facility and pay all utilities, including
electricity, water and gas. Knowlwood will pay the City $2,800 per month for the right to operate
the facility.
FISCAL IMPACT
Funds for this agreement will be deposited in the Zoo Food Sale Concession revenue account
(no.01113002 53313)
Gerardo Mouet, " <'
Executive Director
Parks, Recreation and
Community Services Agency
APPROVED AS TO FUNDS AND ACCOUNT:
�� � ch'�� t I � RN 0: X ;:I �� , V,'_ -
Francisco Gutierrez,
Executive Director
Finance and Management Services Agency
25G -2
CONCESSION AGREEMENT
THIS AGREEMENT, made and entered into this _day of , 2010 by
Knowlwood Enterprises, Inc, a California Corporation (hereinafter "Concessionaire "), 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 Concessionaire having special skill and knowledge in the field of
foods service concessions comparable with "high- level" industry practice.
B. Concessionaire represents that Concessionaire is able and willing to provide such services to
the City.
C. In undertaking the performance of this Agreement, Concessionaire represents that it is
knowledgeable in its field and that any services performed by Concessionaire under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional "high- level" food service operator 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
Concessionaire shall perform those services as set forth in the Scope of Services (Exhibit
"A ") as well as Concessionaire's proposal on file with the City. In the event of a conflict
between the terms of this Agreement and any Exhibits or Attachments hereto, the terms of this
Agreement shall prevail.
2. COMPENSATION
In consideration for the concession rights granted by this Agreement, Concessionaire
agrees to pay the City a monthly concession fee of $2,800 per month, in arrears. The payment is
due on the 1St of each month. For the initial month only, services for a partial month shall be
prorated on a daily basis. A 3% late fee will be added if payment is not received by the 10th of
the month.
3. TERM
This Agreement shall commence on the date first written above and terminate on the last
day of the month three (3) years following the date set forth for the above, unless terminated
earlier in accordance with Section 11, below. At the sole discretion of the City Council, the term
may be extended an additional 2 two -year terms.
25G -3
4. INDEPENDENT CONTRACTOR
Concessionaire shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer - employee relationship, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional manner in which
Concessionaire performs the services which are the subject matter of this Agreement; however,
the services to be provided by Concessionaire shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Concessionaire 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, Concessionaire shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. Concessionaire shall maintain commercial
general liability insurance naming the City, its officers, agents, volunteers, and employees as
additional insured(s) and shall include, but not be limited to protection against claims arising
from bodily and personal injury, including death resulting therefrom and damage to property,
resulting from any act or occurrence arising out of Concessionaire'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. Concessionaire shall supply City with a fully executed
additional insured endorsement in substantially the form as set forth in Exhibit `B" 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, Concessionaire 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, Concessionaire agrees to obtain and maintain any employer's liability
insurance with limits not less than $1,000,000 per accident.
d. The following requirements apply to the insurance to be provided by Concessionaire
pursuant to this section:
(i) Concessionaire shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
2
25G -4
(ii) Certificates of insurance shall be furnished to the City upon execution of this
Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled or
reduced in coverage or changed in any other material aspect without thirty (30)
days prior written notice to the City.
e. If Concessionaire 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.
6. INDEMNIFICATION AND HOLD HARMLESS
Concessionaire 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 arising out of claims for the same, which may arise from the
direct or indirect actions of the Concessionaire or its contractors, subcontractors, agents,
employees, or other persons acting on their behalf which relates in any way to the services
provided by Concessionaire 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 arising from this
Agreement or of the Concessionaire's actions hereunder. This indemnity and hold harmless
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, arising from this
Agreement. The Concessionaire 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
arising from this Agreement or Concessionaire's actions hereunder. City may make all
reasonable decisions with respect to its representation in any legal proceeding.
7. CONFLICT OF INTEREST CLAUSE
Concessionaire covenants that it presently has no interests and shall not have interests,
direct or indirect, which would conflict in any manner with performance of services specified
under this Agreement.
8. 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:
3
25G -5
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 copy to: Executive Director of Parks, Recreation and Community Services
City of Santa Ana
P.O. Box 1988
Santa Ana, California 92702
To Concessionaire: Knowlwood Enterprises, Inc.
17654 Newhope Street, Suite H
Fountain Valley, CA 92708
Fax: 714- 729 -9214
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by 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.
9. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive agreement between the City and
Concessionaire, 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 Concessionaire.
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
Concessionaire 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.
10. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of
Concessionaire, Concessionaire 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
L,
25G -6
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 Concessionaires
retained by City.
11. TERMINATION AND DAMAGES
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination and by the Concessionaire upon thirty (30) days written notice. In the event of
termination by the City, City shall be entitled to receive compensation for all activities by
Concessionaire prior to receipt of such notice of termination. The City shall give the Concessionaire
ten (10) days written notice of any deficiency before it may exercise its right of termination if the
reason is for breach by the Concessionaire.
12. DISCRIMINATION
Concessionaire 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. Concessionaire affirms that it is an equal opportunity
employer and shall comply with all applicable federal, state and local laws and regulations.
13. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses of this Agreement
shall be determined and governed by the laws of the State of California. Both parties further
agree that Orange County, California, shall be the venue for any action or proceeding that may
be brought by the parties hereto or arises out of, or in connection with or by reason of this
Agreement.
15. LICENSES & PERMITS
Concessionaire 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. These shall include but not be
limited to the following: a California State Board of Equalization Seller's Permit; City of Santa
Ana Business Tax Receipt; Certified Food Handler Permit; and County of Orange Heath
Department Permit. Concessionaire shall notify the City immediately and in writing of its
inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said
failure shall be cause for termination of this Agreement by the City in accordance with Section
11, above.
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the power,
authority and right to bind their respective parties to each of the terms of this Agreement, and shall
indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to
City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
5
25G -7
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
RECOMMENDED FOR APPROVAL:
GERARDO MOUET
Executive Director of the
Parks Recreation and Community
CITY OF SANTA ANA:
DAVID N. REAM
City Manager
CONCESSIONAIRE:
Thanh D. Nguyen, Ph.D.
President and CEO
Tax ID #
6
25G -8
EXHIBIT "A"
I. SCOPE
A. PROJECT DESCRIPTION
This specification outlines the service expectations for the food concessionaire that operates the
Santa Ana Zoo at Prentice Park concession building. The concession building totals 2,488 sq. ft.
of which 704 sq. Ft. is provided for food preparation and sales. Friends of Santa Ana Zoo
( FOSAZ) operates the gift shop and has exclusive rights for the gift shop and souvenir items;
however, the food service concessionaire may sell souvenir drink cups and other items approved
by the Zoo Manager. The Zoo concession facility is a full service food operation that is capable
of providing a variety of hot and cold meals, beverages, and snack food items. It is equipped
with a large grill. The successful vendor will be responsible for providing a deep fat fryer, ice
machine, refrigerator and freezer, soft drink dispensers, Icee machines, ice cream freezer,
microwave, coffee maker, popcorn machine, or churro warmer and any other equipment needed.
The Zoo has a large private picnic area and 150 -seat amphitheater that is available to the City
and FOSAZ for special events. The City and /or FOSAZ reserve the right to hire another caterer
for special events at the Zoo. Private parties are under no obligation to use the Zoo
concessionaire. Concessionaire may be given the opportunity to bid on food service for those
events and will be given a 10 -day notice of such events.
Annual attendance at the Zoo ranges from 250,000 to 275,000 with the busiest months being
March through August. The Zoo is open every day of the year except Christmas Day and New
Year's Day. The Zoo is open to the public from 10:00 a.m. to 5:00 p.m. daily except for
Saturdays and Sundays from Memorial Day through Labor Day when hours are 10:00 a.m. to
6:00 p.m.
B. SATELLITE CARTS
Satellite food /beverage stations are possible at the following locations:
1. Carrousel plaza — between the carrousel line and the train rides.
2. Elephant ring — food stand and carts next to the elephant ride.
Any other satellite stations will have to be pre- approved by the Zoo Manager.
C. OBJECTIVES
1.Provide excellent food service at reasonable prices.
2.Conduct a clean and efficient operation.
3.The food concession operation should be consistent with and enhance the Zoo image.
4.The operating hours shall be consistent with those of the Zoo. Any exceptions to these
hours must be approved by Zoo Manager.
5.Upon Zoo Manager's approval the concessionaire may also sell beyond Zoo hours to
patrons through outside service window.
7
25G -9
D. CITY RESPONSIBILITIES
1. City will maintain the exterior of the structure and landscaping except for trash and debris
around eating area tables and chairs.
2. City will provide paid utilities including water, trash, electricity, and gas.
3. City will communicate with the concessionaire regarding events organized by the Zoo or
Friends of Santa Ana Zoo.
4. City will provide staff contact as liaison for communication and problem resolution.
5. City reserves the right for independent audit of concession operations.
E. CONCESSIONAIRE RESPONSIBILITIES
1. Provide food service to Zoo visitors that meet standards of quality and service as mutually
agreed by concessionaire and Zoo Manager. Fast food menu is acceptable providing there are
varieties of "healthier" menu alternatives.
2. The Zoo Manager must approve all menu items, pricing and marketing material. Some food
items may be restricted due to possible problems related to excessive litter or potential animal
health issues.
3. Provide on -site manager who has current food service handler's certification from the Orange
County Health Department.
4. Meet sanitation and food preparation standards as established by the Orange County Health
Department.
5. Have and maintain Santa Ana City business license
6. Secure an ABC License for the sale of beer and wine and maintain requirements for same.
Sale of beer and wine will only be allowed at events approved by the Executive Director of
Parks, Recreation & Community Services.
7. Concessionaire is responsible for hiring and compensating employees, including all applicable
payroll taxes and deductions. Concession employees are not considered City employees.
8. Provide adequate staff to meet visitor demands, which vary with season and day.
9. Maintain a regular schedule of cleaning and sanitation of interior of food service facility and
equipment, and proper recycling of deep fat fryer cooking oil. The concessionaire is responsible
for repairs to interior of food service area subject to City approval. The concessionaire is also
responsible for any repairs to any equipment and facilities damaged due to concessionaire's
negligence.
8
25G -10
10. Tenant improvements and move in to be done by concessionaire in conjunction with the OC
Health approval.
11. Continually maintain front of concession stand clean which includes cleaning tables and
chairs, picking up all trash and empting trash cans. In addition, all trash cans must be emptied at
the end of each business day. Trash from inside the facility may be enclosed in proper containers
behind the facility in the service area but must be removed to the Zoo's dumpsters on a daily
basis before closing. No plastic bags of trash or cardboard boxes are to be stacked in the service
area. This is necessary for vermin control.
12. Provide such equipment as necessary for food service operation that is not part of the
permanent fixtures of the facility.
13. Provide supplies for food preparation, cleaning and sanitation, and trash containment.
14.Provide theme based marketing such as graphics, menus, and operational materials.
F. CONCESSION FEE
In consideration for the rights obtained hereunder, Concessionaire shall pay $2,800 per month,
payable on the first day of each month for the following month. For example: rent for October is
due on October 1st. A 3% late fee will be added if payment is not received by the 10th of the
month.
G. SPECIAL CONSIDERATIONS AT A ZOO FACILITY
Because of special requirements and considerations for Zoo animal safety, special restrictions
may be necessary as far as items sold, food packaging, location of portable carts, etc. The Zoo
Manager must approve all menu items, packaging and cart locations (or changes to above).
H. VISITOR SERVICES
Customer satisfaction and visitor service is of utmost importance. It is mandatory that our food
concessions be run in an efficient, courteous manner by staff that is clean and neatly dressed,
presenting a positive image for the Zoo. Food concession staff will be expected to wear a Zoo
specific `uniform" approved by Zoo Manager.
I. TENANT IMPROVEMENTS
Concessionaire shall provide detailed plans of all tenant improvements to be completed and
submitted to City by 90 days after the commencement of the agreement. All non - structural
tenant improvements shall be completed by six months after the commencement of the
agreement. All structural tenant improvements shall be completed by one year after
commencement of the agreement. Concessionaire shall work with City on a more detailed
timeline once details of tenant improvements are available..
6
25G -11
Exhibit `B"
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 92701; 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, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be 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 92701.
(Completion of the following, including countersignature, is required to make this endorsement
effective.)
Effective
Issued to
this endorsement form as a part of Policy #
Named Insured
Countersigned by
10
25G -12
Authorized Representative
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
AGREEMENT WITH TENACORE
FOR CUSTOMIZED TRAINING
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 151 Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and the Clerk of the Council to execute the attached agreement with
Tenacore in the amount of $51,000 to provide customized training, subject to non - substantive
changes approved by the City Manager and City Attorney.
DISCUSSION
Workforce Investment Act (WIA) funds may be used to improve the skills of employed individuals.
Training is customized to meet the specific need of an employer and also to increase the earning
potential of the trainee. The customized training program requires the employer to contribute up
to 50% of the training costs; however, a current State waiver allows for a decreased amount of
employer contribution based on company size. Under this waiver, employers with 50 or fewer
employees may receive up to a 90% reimbursement; and employers with 51 to 250 employees
may receive up to a 75% reimbursement.
Tenacore is a small Santa Ana manufacturer specializing in medical equipment products and
repairs. Tenacore is requesting training assistance for 12 of its medical equipment repair
workers. The proposed agreement would reimburse 75% of the cost of training 12 current
employees to become Ultrasound Probe Repair Technicians. Improving this capacity will allow
Tenacore to retain existing jobs and potentially generate new job opportunities.
Training will be provided to Tenacore employees through Farus, LLC, a Qualified Customized
Training Provider pursuant to the Santa Ana W /O /R /K Center procurement process.
25H -1
Agreement with Tenacore
December 6, 2010
Page 2
FISCAL IMPACT
Funds for this contract are available in the Workforce Investment Act Rapid Response account
(no. 12318756- 62300/11700701212).
Cynthia J. Nels n
Deputy City Manager for
Development Services
Community Development Agency
CJN /LAO /CR /SV /mlr
Exhibit: 1. Tenacore Agreement
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez ,
Executive Director z
Finance & Management Services Agency
25H -2
Agreement No.
CUSTOMIZED TRAINING AGREEMENT
UNDER THE WORKFORCE INVESTMENT ACT
THIS AGREEMENT is made and entered into this 6th day of December, 2010 between
the City of Santa Ana, a charter city and municipal corporation duly organized and existing
under the Constitution and laws of the State of California (hereinafter "CITY ") and Tenacore
Holdings Inc. (hereinafter "EMPLOYER ").
WITNESSETH
Recitals:
A. CITY has been designated a Local Workforce Investment Area ( "LWIA ")
pursuant to Section 116 of the Workforce Investment Act ( "WIA "), P.L. 105 -220, 29 USC
Section 2801, to receive federal funds to promote effective delivery of job training services to
local area residents.
B. The State of California has created the California Workforce Investment Board
pursuant to Section 111 of the Workforce Investment Act, P.L. 105 -220, 29 USC 2821 to
administer the WIA programs operated by the State of California.
C. As a LWIA, CITY is entitled to receive federal funds to establish programs to
prepare eligible unskilled youth, adults, dislocated workers, and incumbent workers for entry
into the labor market, and to provide job training to those individuals who face serious barriers in
obtaining productive employment ( "said Program "). Such programs include customized training
programs.
D. Pursuant to Section 101(8) of the Workforce Investment Act, "customized
training" means training: (i) that is designed to meet the special requirements of an employer
(including a group of employers); (ii) that is conducted with a commitment by the employer to
employ, or in the case of incumbent workers, continue to employ, an individual on successful
completion of the training; and (iii) for which the employer pays for not less than 50 percent of
the cost of the training.
E. The Department of Labor granted California a waiver of the required 50 percent
employer contribution. This waiver has been granted through June 30, 2011.. Under this waiver,
the following sliding scale is permitted: (1) no less than a 10 percent match for employers with 50 or
fewer employees; (2) no less than a 25 percent match for employers with 51 — 250 employees; and
(3) no less than a 50 percent match for employers with more than 250 employees.
F. Pursuant to 20 CFR Part 663.705 customized training for employed workers must
relate to the introduction of new technologies, introduction to new production or service
procedures, upgrading to new jobs that require addition al skills, workplace literacy, or other
appropriate purposes identified by the Local Board.
25H -3
G. EMPLOYER is able and willing to train eligible unskilled applicants to operate
said Program pursuant to the WIA and applicable federal, state and local laws.
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:
Term. The effective term of this Agreement is for the period beginning December 13,
2010, and ending April 30, 2011. The term of this Agreement may be extended upon
agreement of the City Manager or his /her designee and EMPLOYER.
2. Scope of Work. The EMPLOYER shall train up to 12 incumbent employee(s) /worker(s)
(hereinafter "Trainee(s) ") in the occupation and in accordance with the Customized
Training Plan set forth in Exhibit A, attached hereto and incorporated herein by this
reference.
Training must significantly raise the Trainee from his /her prior position in level of skill
by the end of the training period.
A. Incumbent Worker Training
Incumbent workers must:
i. Be WIA eligible employees of Santa Ana companies and
ii. Earn less than the SAWIB self- sufficiency wage of $15.24 and
iii. NOT displace (including a partial displacement, such as a reduction in the
hours of non - overtime work, wages, or employment benefits) any
currently employed employee (as of the date of the participation).
2. Training may include but not limited to:
i. Skills upgrading or adapting skills of line staff
ii. Training of managers and supervisors to provide skills needed to assume
new functions and responsibilities within an at risk business.
3. Duration and Length of Activity
i. The training period shall not exceed 6 months.
B. Incumbent Worker Training Specifications
The proposed customized training must meet the following specifications:
1. Training may be designed for one business or a group of businesses
2. There must be a demonstrated need for training
i. Trainees must have a deficiency in the occupational skills required for
immediate employment in the position to be filled after training OR
ii. Business must identify new or changing regulations that require a change
in technology, software, waste reduction, energy conservation, etc. OR
iii. Identify changing skill requirements as a result of external economic or
market forces, significant changes in operating processes, rapidly
25H -4
changing industry or occupational job requirements or emergence of new
products.
3. The business(es) must agree to retain trainees who are current employees upon
successful completion of the training;
4. The business(es) must pay a minimum of 50 percent of the training cost;
5. The project must not cause displacement of current regular employees or reduce
the number of work hours or earnings of current employees;
6. The business(es) cannot be involved in a current labor dispute; and
7. No lay -off shall have occurred within the last 120 days. from the date of
application.
3. Funding. CITY shall reimburse the EMPLOYER an amount not to exceed $ 51,000 in
accordance with the budget Exhibit B. EMPLOYER shall bill the CITY monthly on an
invoice provided by CITY for actual and reasonable cost for providing the services
described in this Agreement.
4. Subcontractiniz. Training may only be subcontracted to Vendors on the Qualified
Customized Training Provider List provided by the CITY (the "List "). EMPLOYER is
legally permitted to subcontract the customized training, however CITY will only
reimburse the cost of training up to 75% of EMPLOYER'S cost for said training so long
as the subcontractor is on the List.
Employer Obligations. During the training, the EMPLOYER shall ensure that the
Trainee:
a. is on the EMPLOYER's payroll, not paid as a contracted employee or independent
contractor; and,
b. receives the same benefits as EMPLOYER's other employees performing similar
work; and,
C. is provided Worker's Compensation Insurance coverage, pursuant to state law;
and,
d. is provided by EMPLOYER with safety instructions and equipment necessary for
reasonable protection against injury and damage. CONTRACTOR shall maintain
appropriate standards for health and safety in work and training situations. Where special
clothing or equipment is provided to the EMPLOYER's regular employees, EMPLOYER
shall provide the same type of clothing or equipment to the Trainee performing similar
work.
6. Employment of Trainee. The EMPLOYER shall employ the Trainee as a regular
member of EMPLOYER's work force. If EMPLOYER wants to continue to employ the
Trainee upon the successful completion of the training period under this Agreement, said
employment shall be subject to the same conditions of employment applied to
25H -5
EMPLOYER's other regular employees, including termination for unsatisfactory
performance.
7. Patent, Copyrights and Rights in Data. The EMPLOYER will disclose to the CITY any
invention, written product, computer program developed or data assembled as a result of
performance of work under this Agreement within seventy four (74) days of invention,
development or assembly. The CITY, State of California, and U.S. Department of Labor
will have the right to patent any invention and copyright any written product or computer
program or data generated by EMPLOYER. Upon written request, EMPLOYER will
transfer all pertinent information, specifications and right, title and interest to the
designated agency.
8. INVENTIONS, PATENTS AND COPYRIGHTS.
A. Reporting Procedure. If any project produces patentable items, patent
rights, processes, or inventions in the course of work under a U.S. Department of Labor (DOL)
grant or agreement, the CONTRACTOR shall report the fact promptly and fully to the CITY.
The CITY shall report the fact to the Grant Officer, at the DOL. Unless there is a prior
agreement between the CITY and the DOL and its representative on these matters, the DOL shall
determine whether to seek protection on the invention or discovery. The DOL and its
representative shall determine how the rights in the invention or discovery, including rights
under any patent issued thereon, will be allocated and administered in order to protect the public
interest consistent with the "Governmental Patent Policy" (President's Memorandum for Heads
of Executive Departments and Agencies, August 23, 1971, and Statement of Government Patent
Policy).
B. Copyright Policy.
1. Unless otherwise provided in the terms of the grant or agreement, when
copyright -able material is developed in the course of or under a DOL Grant or agreement, the
author and the CITY which developed the work is free to copyright material or to permit others
to do so. The EMPLOYER and the Workforce Investment Board (WIB) shall have a royalty -
free, nonexclusive and irrevocable license to reproduce, publish, use and to authorize others to
use all copyrighted material.
2. The DOL reserves a royalty -free, nonexclusive, and irrevocable license to
reproduce, publish or otherwise use, and to authorize others to use, for Federal Government
purposes: (a) The copyright in any work developed under any grant, sub -grant, or contract under
a grant or subgrant; (b) Any right of copyright to which a grantee, subgrantee or a EMPLOYER
purchases ownership with grant support; and (c) EMPLOYER shall comply with the
requirements of 29 CFR Part 97.34.
C. Rights to Data. The DOL and the CITY shall have unlimited rights to
any data first procured or delivered under this Agreement.
9. Hold Harmless. The EMPLOYER shall indemnify, defend and hold harmless CITY, and
its officers, agents and employees, from and against any and all damages to property or
injuries to or death of any person or persons, including property and employees or agents
of CITY, and shall indemnify, defend and hold harmless CITY, and its officers, agents
W _■_ 116
and employees, from any and all claims, demands, suits, actions or proceedings of any
kind or nature, including, but not limited to, workers' compensation claims, resulting
from or arising out of the negligent acts, errors or omissions of EMPLOYER, its
employees, agents or subcontractors.
10. Insurance. The EMPLOYER shall obtain at its sole cost and file with the City of Santa
Ana — Santa Ana W /O/R/K Center, upon execution of this Agreement, and maintain for
the period covered by this Agreement, a policy or policies of commercial general liability
insurance or a certificate of such insurance, satisfactory to the City Attorney of CITY,
naming the CITY, and its officers, agents, employees and volunteers, as insured or
additionally insured (see attached Additional Insured Endorsement, Exhibit C), which
provides coverage not less than that provided in the form of a comprehensive general
liability insurance policy against liability for any and all claims and suits for damages or
injuries to persons or property resulting from or arising out of operations of
EMPLOYER, and its officers, agents, or employees. Said policy or policies of insurance
shall provide coverage for both bodily injury and property damage in no less than One
Million Dollars ($1,000,000). Said policy or policies shall also contain a provision that
no termination, cancellation or change of coverage or of insured or additional insured
shall be effective until after thirty (30) days notice thereof has been given in writing to
CITY. EMPLOYER shall give to CITY prompt and timely notice of claims made or suit
instituted against said policy. EMPLOYER shall procure and maintain at its own costs
and expense, any additional kinds and amounts of insurance which, in its own judgment,
may be necessary for its proper protection.
11. Record Keeping. 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 EMPLOYER'S activities, performance, books, documents, papers, and
records of EMPLOYER'S 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 EMPLOYER 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 EMPLOYER does not make the above - referenced documents available
within the City of Santa Ana, California, EMPLOYER 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 EMPLOYER and all
documents related to this Agreement shall be kept available at the location where
EMPLOYER conducted the program, as well as in the County of Orange, 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
25H -7
which CITY, the State of California or the United States Government take exception,
shall be retained beyond the three (3) years until resolution of disposition of such appeals,
litigation, claims, or exceptions.
12. Government Funding. This Agreement is valid and enforceable only if sufficient funds
are made available to the State by the United States Government for the same Fiscal Year
as for this Program. In addition, this Agreement is subject to any additional restrictions,
limitations, or conditions enacted by Congress or any statute enacted by Congress which
may affect the provision, terms or funding of this Agreement in any manner.
13. Payment Cap. CITY's Customized Training reimbursement payments to EMPLOYER
shall not exceed a maximum of seventy -five percent (75 %) of the Customized Training
Cost paid by EMPLOYER as specified in Exhibit B, during the training period specified
in Exhibit A.
14. Amendment of Agreement. No alteration or variation of the terms of this Agreement
shall be valid and/or binding unless made in writing and signed by both parties. There
are no oral understandings or agreements between the parties.
15. Breach/Sanctions. If, through any cause, EMPLOYER violates any of the terms and
conditions of this Agreement, or if EMPLOYER reports inaccurately or if any Audit
Report makes disallowances, EMPLOYER shall promptly remedy its acts or omissions
and/or repay CITY all amounts due CITY as a result of EMPLOYER'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 EMPLOYER 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 (3 0) days' written notice EMPLOYER has failed
to repay same or a repayment schedule has not been made; and /or (3) terminate this
Agreement by giving written notice to EMPLOYER of such termination in accordance
the notice provision in Paragraph XVIII herein below.
16. Termination. Either party may terminate this Agreement upon thirty (30) days prior
written notice to the other party. However, the CITY may immediately terminate this
Agreement at such time as funds are not made available to CITY through the United
States Department of Labor or the State of California Employment Development
Department for the purpose of carrying out this Agreement.
17. Independent Contractor. The EMPLOYER, and any agents and employees of the
EMPLOYER, in the performance of this Agreement, shall act in an independent capacity
as independent contractors and not as officers, employees, or agents of the CITY. This
Agreement is not intended nor shall it be construed to create an employer - employee
relationship between EMPLOYER and CITY, nor a joint venture relationship. The
EMPLOYER shall not subcontract in the name of the CITY.
18. E Aual Employment Opportunities, The EMPLOYER warrants that it will comply with
Title VI of the Civil Rights Act of 1964, and the requirements relating to equal
employment opportunities set forth in Executive Order No. 11246, as amended by E.O.
11375 and supplemented by the requirements of 41 CFR Part 60. EMPLOYER will also
comply with all applicable federal and state laws and regulations, and particularly those
assurances and certifications set forth in Exhibit D attached hereto and by this reference
incorporated herein.
19. Prohibitions. The EMPLOYER shall not use any of the training funds provided under
this Agreement for political or sectarian activities.
20. Grievance Procedure. The EMPLOYER shall continue to operate, or shall establish and
maintain a grievance or complaint handling procedure relevant to the terms and
conditions of employment and the EMPLOYER's activities and programs, which shall
meet at a minimum the requirements set forth in Section 101(31) of the Act and 663.700-
710 and regulations promulgated by the State or Federal Government. EMPLOYERS
that do not have a grievance or complaint handling procedure shall use the procedures
prescribed by the CITY.
21. Guidelines. The CITY shall make the WIA applicable federal regulations and policy
guidelines available to EMPLOYER at CITY — W /O /R/K Center, 1000 E. Santa Ana
Blvd., Suite 200, Santa Ana, California 92701. The CITY shall also inform the
EMPLOYER of changes in the WIA regulations or policy guidelines if such changes
affect the operation of this Agreement.
22. Drug Free Workplace. The EMPLOYER agrees to provide a drug -free work place and to
execute a certification as set forth in Exhibit E attached hereto and incorporated herein by
this reference.
23. 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:
CITY:
City of Santa Ana — Santa Ana W /O /R/K Center
1000 E. Santa Ana Blvd., Suite 200
Santa Ana, CA 92701
Attention: WORK Center Director
EMPLOYER:
Tenacore Holdings Inc.
1525 E. Edinger Ave.
Santa Ana, CA 92705
Attention: Enrique Lopez
24. Debarment. To protect the public interest and ensure the integrity of Federal programs,
CITY may only conduct business with responsible persons and may not make any award
or permit any award to any party which is debarred or suspended or is otherwise excluded
from or ineligible for participation in Federal assistance programs under Executive Order
12549, "Debarment and Suspension ". See also 29 CRF Parts 97.35 and 98.510.
EMPLOYER must review and sign Exhibit E "Debarment ", which is attached hereto and
incorporated herein by this reference.
24. Merger. This Agreement, together with the attachments hereto, expresses the total
understanding of the parties. There are no oral understandings of the parties or terms and
conditions other than as stated herein.
25. Validity. The invalidity in whole or in part of any provision of this Agreement shall not
void or affect the validity of any other provision of this Agreement.
26. Miscellaneous Provisions.
a. Each undersigned represents and warrants that its signature hereinbelow has the power,
authority and right to bind their respective parties to each of the terms of this Agreement,
and shall indemnify CITY fully, including reasonable costs and attorney's fees, for any
injuries or damages to CITY in the event that such authority or power is not, in fact, held by
the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
25H -10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
ATTEST:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
By: Lisa Storck
Assistant City Attorney
CITY OF SANTA ANA
David N. Ream
City Manager
EMPLOYER:
Brand Caso
Director
33- 0911809
25H -11
W
Customized Training Plan
I. GENERAL
Exhibit A
1.
Name of Employer:
Tenacore
2.
Address of Work -site:
1525 E. Edinger Ave. Santa Ana CA 92705
3.
Phone Number:
714- 444 -4643
4.
Training Supervisor:
Jaz Singh Director of Operations
5.
Number of Trainees
up to 12
6.
Trainee Wages at time of training $12.50 hr
7.
Trainee Wages at completion of training $13.50 hr
II. TRAINING OUTLINE:
1.
Project Length:
3 months
2.
Total Training Hours:
200 hours (approximately 16 hours per week
3.
Training Type:
Classroom and Hands -On Training
4.
ONET Code:
49 -9062
5.
SVP Level
6.0
6. Occupation/Product or Service: Ultrasound Probe Technolo
7. Curriculum:
The curriculum Plan includes the following class titles, dates:
1. Class: Overview of ultrasound probe technology
Dates: December 13 — December 17
2. Class: Diagnosis and identification of common micro - coaxial cable failure points
Dates: December 20 — December 24
3. Class: Soldering high - density micro - coaxial cable of 40 gauge or smaller
Dates: December 27 — January 7
4. Class: Quality assurance procedures for the soldering processes
Dates: January 10 — January 14
5. Class: Ultrasound array technology overview
Dates: January 17 — January 21
6. Class: Soldering to ultrasound arrays
Dates: January 24 — February 4
25H -12 1
7. Class: Quality assurance procedures for ultrasound array soldering
Dates: February 7 — February 11
8. Class: Documentation or processes and procedures
Dates: February 14 — February 18
9. Class: Teardown and rebuild of common ultrasound probes
Dates: February 21 — February 25
10. Class: Diagnosis of probe failure points
Dates: February 28 — March 4
11. Class: Ultrasound monitor board -level repair
Dates: March 7 — March 11
12. Class: Conclusion/Wrap -Up
Dates: March 14 — March 18
8. Method of Assessment:
ELEMENTS OF TRAINING
HOURS OF TRAINING
1. Overview of ultrasound probe technology
Diagnosis and identification of common micro - coaxial cable failure points
Soldering high - density micro - coaxial cable of 40 gauge or smaller
50
Measurement Method: Student shows a basic understanding of concepts learned
during the training. Students will be evaluated weekly on topics covered during
training sessions to ensure students are understanding concepts being taught during the
week.
Students will receive a written test, as well as oral test. In addition, students will be
evaluated by work observation. Students will be given scenarios where they will
troubleshoot and solve problems.
2. Quality assurance procedures for the soldering processes
Ultrasound array technology overview
Soldering to ultrasound arrays
50
Measurement Method: Student shows a basic understanding of concepts learned
during the training. Students will be evaluated weekly on topics covered during
training sessions to ensure students are understanding concepts being taught during the
week. Students will receive a written test, as well as oral test. In addition, students will
be evaluated by work observation. Students will be given scenarios where they will
troubleshoot and solve problems.
3. Quality assurance procedures for ultrasound array soldering
Documentation or processes and procedures
Teardown and rebuild of common ultrasound probes
50
Measurement Method: Student shows a basic understanding of concepts learned
during the training. Students will be evaluated weekly on topics covered during
training sessions to ensure students are understanding concepts being taught during the
week. Students will receive a written test, as well as oral test. In addition, students will
be evaluated by work observation. Students will be given scenarios where they will
troubleshoot and solve problems.
2
25H -13
ELEMENTS OF TRAINING
HOURS OF TRAINING
4. Diagnosis of probe failure points
Ultrasound monitor board -level repair
Conclusion/Wrap -Up
50
Measurement Method: Student shows a basic understanding of concepts learned
during the training. Students will be evaluated weekly on topics covered during
training sessions to ensure students are understanding concepts being taught during the
week. Students will receive a written test, as well as oral test. In addition, students will
be evaluated by work observation. Students will be given scenarios where they will
troubleshoot and solve problems.
RATING LEVELS:
Measurement method: how will it be determined if OJT participant acquired the skill? Q &A, observation, product review /inspection,
etc.
PROFICIENT MODERATE MARGINAL
III. Training Provider
1. Company Name: FARUS, LLC
2. Contact Name: Martin Culjat
3. Address: 2146 Sand Hill Rd. , Menlo Park CA 94025
4. Phone : 310 - 869 -5504
5. Total Training Hours: 200 hours
6. Provider on the Santa Ana WORK Center Qualified Vendor List: X Yes No
IV. Training Reimbursement Rate
50 percent employer contribution for customized training is required per WIA Section 101(8)(C), however current waiver
permits the following sliding scale based on the size of the business:
(1) no less than a 10 percent match for employers with 50 or fewer employees = up to 90 percent reimbursement
(2) no less than a 25 percent match for employers with 51 — 250 employees = up to 75 percent reimbursement
(3) no less than a 50 percent match for employers with more than 250 employees = up to 50 percent reimbursement
1. Number of Tenacore Employees: 12
2. Reimbursement Rate: up to 75%
3. Training Cost: $68,000
4. Reimbursement Calculation: $68,000 X 75% = $51 000
3
25H -14
EXHIBIT B
BUDGET FORM
Company Match
WIA
Total Cost
Personnel
Salaries*
$12,000
$36,000
$48,000
1. Martin Culjat
2. Rahul Singh
3.
Use separate sheet if necessary.
Benefits*
$0
$0
$0
1. N/A
2.
3.
Use separate sheet if necessary.
Total Personnel
$12,000
$36,000
$48,000
Operational Expenses
Equipment Purchases
0
0
0
Services
Equipment rental fees
$1,000
$3,000
$4,000
Indirect costs
$1,250
$3,750
$5,000
Insurance
0
0
0
Internet fees
0
0
0
Legal services
0
0
0
Office expenses
$250
$750
$1,000
(consumables)
Other Utilities
0
0
0
Parking fees
0
0
0
Phones
0
0
0
Space Rent
$500
$1,500
$2,000
Staff travel/mileage
$250
$750
$1,000
Travel
$500
$1,500
$2,000
Vehicle lease
0
0
0
Other
$250
$750
$1,000
; , !S ..3 .. _f x �: f 9
. f ^� . Y'� " ➢' u' S" 4
S ,y. y iS
0. 4 3 {�, H. S.�{{,
Tuition
0
0
0
Books
$1,000
$3,000
$4,000
Other (list)*
0
0
0
Total Participant Expenses
$1,000
$3,000
$4,000
GRAND TOTAL
$17,000
$51,000
$68,000
(Total Personnel + Total
Operating Expenses)
*C D_��_
vvr uuur, a vl ua l-11 Ul V115
Note: Audit Requirements
States, local governments and non - profit institutions who receive $500,000 or more in federal funds in a fiscal year
shall meet the audit requirements of the OMB Circular A -133, "Audits of States, and Local Governments and Non -
Profit Institutions."
25H -15
Budeet Narrative:
Equipment Rental Fees — This will cover ultrasound probe equipment rentals that are necessary to
complete training. It will also include a demonstration of a variety of ultrasound probe diagnostic
equipment that is currently being used in the market. The demonstration will include training on each
piece of equipment.
Indirect costs — This will include costs that are indirectly related to the trainings, such as training
materials, network usage, computer usage, and shipping costs for materials.
Office Expenses (Consumables) — This will include printouts, paper, pens, papers, staplers.
Space Rent — This will include space to conduct trainings, storage for equipment that will be used during
the training, storage for materials.
Staff travel /mileage — This will include driving travel for trainers and their staff.
Travel — This will include flight travel for trainers, including hotel stays.
Other — This will include parts, components, soldering equipment that will be used during training.
Books — This will include the cost to purchase books that will be used by trainers and students during
trainings.
25H -16
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, such insurance as is afforded by this policy is
primary and is not additional to or contributing with any other insurance carried by or for
the benefit of the additional insureds.
3. This insurance applies separately to each insured against whom claim is
made or suit is brought except with respect to the company's limits of liability. The
inclusion of any person or organization as an insured shall not affect any right which
such person or organization would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be
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
25H -17
Authorized Representative
ASSURANCES EXHIBIT D
A. The EMPLOYER assures that:
1. It will comply with the requirements of the Workforce Investment Act (WIA), the California
Unemployment Insurance Code, as amended, and the regulations and policies promulgated thereunder.
2. No Customized Training participant displaces a regular employee nor shall a Customized Training
participant fill a position of a person who has been laid off from the same or similar position.
3. No current employees are receiving unemployment insurance benefits as a result of layoffs or work
reductions.
4. No person in the United States shall on the grounds of race, color, sex, religion, national origin, age,
disability, sexual orientation, or marital status be excluded from participation in, be denied the benefits
of, or be otherwise subjected to discrimination under any program or activity for which the applicant
receives federal financial assistance and will immediately take any measure necessary to effectuate this
Agreement.
5. It will comply with provisions of the Hatch Act, if applicable, which limits the political activities of
employees.
6. Individuals receiving training on the job shall be compensated by the EMPLOYER at such rate,
including periodic increases, as may be deemed reasonable under regulations prescribed by the Secretary
of Labor, but in no event at a rate less than that specified in Section 6 (a) (1) of the Fair Labor Standards
Act of 1938 or, if higher, under the applicable State or local minimum wage law.
7. Services and activities provided under this Agreement will be administered by or under the supervision
of the EMPLOYER.
8. No relative by blood, adoption or marriage of the EMPLOYER may be trained under this Agreement.
9. Appropriate standards for health and safety in work and training situations will be maintained.
10. Conditions of employment or training are appropriate and reasonable with regard to the type of work,
the geographical region, and the proficiency of the trainee.
11. Training will, to the maximum extent practicable, be consistent with every individual's fullest
capabilities and lead to employment possibilities.
12. The program will, to the maximum extent feasible, contribute to the occupational development or
upward mobility of individual participants.
13. Training will be in accordance with the training plan, which plan incorporates documentation that must
be completed by EMPLOYER before end of contract.
14. The participating EMPLOYER must keep an accurate files with pre and post assessments of skills, and
training attendance records be retained on file by the EMPLOYER for each Customized Training trainee
and are subject to review.
15. Monthly progress reports outlining trainee skill attainment are submitted to the Santa Ana WORK
Center by the 10th day of the following month.
16. Trainees must be determined WIA eligible and enrolled in the Customized Training Program by Santa
Ana WORK Center staff prior to the commencement of training.
EXHIBIT E
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 a drug -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 a drug -free awareness program to inform employees
about -
(1) The dangers of drug abuse in the workplace;
(2) The contractor's policy of maintaining a drug -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.
25H -19
EXHIBIT E
(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 a drug -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
K
25H -20
EXHIBIT E
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):
3
25H -21
25H -22
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
December 6, 2010
TITLE:
AGREEMENT TO PROVIDE ANNUAL
SOFTWARE MAINTENANCE AND
SUPPORT FOR GEOSPATIAL
TECHNOLOGIES, INC.
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1st Reading
❑ Ordinance on 2 I Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute the attached amendment to the
agreement with GeoSpatial Technologies, Inc., for the software application maintenance and
customer support in an amount not to exceed $20,898.00, subject to non - substantive changes
approved by the City Manager and City Attorney.
DISCUSSION
On December 16, 2008, Council approved the agreement with Geospatial Technologies, to provide
software maintenance and support for the Automatic Vehicle Locator System (AVL). This system
enables the Santa Ana Police Department the ability to track police vehicles using mapping software
throughout the City of Santa Ana. The Santa Ana Police Department wishes to amend said
Agreement to provide for an additional year of basic software service and maintenance. The
Automatic Vehicle Locator System is proprietary and owned by GeoSpatial Technologies, Inc. and
can only be serviced by this company. The recommended action will allow for continuous service to
the Santa Ana Police Department.
FISCAL IMPACT
Funds are available in the Police Department's Computer Services fund (account no. 01114425-
62300).
(4-t"au-
Paul M. Walters
Chief of Police
Police Department
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Mgmt. Services Agency
251 -1
251 -2
SECOND AMENDMENT TO AGREEMENT
THIS SECOND AMENDMENT TO AGREEMENT is entered into on December, 16
2010, by and between GEOSPATIAL TECHNOLOGIES, INC., ( "GST ") , and the City of Santa
Ana, a charter city and municipal corporation organized and existing under the Constitution and
laws of the State of California (hereinafter "City ").
RECITALS:
A. City and Consultant entered into Agreement #A- 2008 -332, dated December 16, 2008,
(hereinafter "said Agreement ") by which City purchased from Consultant hardware and
software to provide automatic vehicle locator (AVL) services and mobile mapping
services for the Santa Ana Police Department.
B. City and Consultant entered into a First Amendment to Consultant Agreement ( "First
Amendment "), dated February 1, 2010, amending the Scope and Compensation, to purchase
additional hardware to equip additional vehicles with the AVL system.
C. In accordance with the terms and conditions of said Agreement, the Parties desire to
amend the scope, amend the compensation, and extend the term of said Agreement for an
additional one -year period.
NOW, THEREFORE, in consideration of the mutual and respective promises, and subject to' all
the terms and conditions of said Agreement, except as herein modified, the parties agree as
follows:
1. Section 1, SCOPE OF SERVICES, shall be amended to system testing and
maintenance services as set forth in Exhibit A to this Second Amendment to
Agreement.
2. Section 2, COMPENSATION, shall be amended to provide that total compensation
shall not exceed $20,898.00, plus any applicable tax, to pay for the services set forth
in Exhibit A to this Second Amendment to Agreement.
3. Section 3, TERM, shall be amended to extend the term of said Agreement for an
additional one -year period through December 15, 2011.
H
H
H
251 -3
4. Except as hereinabove modified, all terms and conditions of said Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to the
Agreement on the date and year first written above.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
Melissa M. Crosthwaite
Deputy City Attorney
RECOMMENDED FOR APPROVAL:
PAUL M. WALTERS
Chief of Police
Santa Ana Police Department
CITY OF SANTA ANA
DAVID N. REAM
City Manager
GEOSPATIAL TECHNOLOGIES, INC.
(NAME)
(Title)
251 -4
('GST
GeoSpatial Technologies, Inc.
Software Annual Maintenance Agreement
GeoSpatial Technologies, Inc. (hereinafter referred to as GST) shall provide maintenance and support
services under this Software Annual Maintenance Agreement (hereinafter referred to as Agreement) for
City of Santa Ana Police Department (hereinafter referred to as Customer) covering the period from
December 16, 2010 to December 15, 2011, with options to extend for addition 4 years, upon payment of
the annual maintenance fee for the products listed in the Purchase Contract.
1. PRODUCTS COVERED
One (1) license of GST Tracker Server software, one (1) license of GST Wireless Host Server software
for up to two hundred (200) mobile units, one (1) license of GST InterOp Bridge software, and unlimited
site license of GST Viewer software and GST Mapper MDC software for City of Santa Ana Police
Department, provided that the entire amount of Software Annual Maintenance Fee is paid in full on or
before December 16, the commencement of each 12 -month period.
II. MAINTENANCE AND SUPPORT
GST shall provide maintenance and support services to the End User. Maintenance and support services
shall include, but not limited to:
(a) Telephone and E -mail Support: GST will provide telephone and e-mail assistance. You must provide
GST with remote access through the Internet to the computers installed with GST software. By
calling the GST technical support number, you will reach a trained support analyst of whom you may
ask questions or seek advice relating to the use of GST software. The analyst will assist you in
utilizing your GST software, and in identifying and providing a work around, if possible, for any
software problems found with GST software. GST support services do not include hardware,
network, operating systems, or third party software.
Support will be provided weekdays from 9:00 a.m. to 6:00 p.m. Pacific Standard Time, excluding
weekends and holidays.
(b) Response Times: In the event that the End User experiences a critical system failure, which shall be
deemed to have occurred if the system is down or inoperable, meaning that the End User cannot use
the System and/or the System is off -line, for longer than '/2 hour, GST shall respond and look into
correcting the problem immediately upon receipt of a call for service and following the receipt of
notification and relevant documentation of the problem. For all other non - critical failures, GST shall
respond and attempt to correct the problem within four (4) hours upon receipt of a call for service and
following the receipt of notification and relevant documentation of the problem. If problems cannot
be resolved within four (4) hours, the problem will be automatically escalated to Application
Technical Lead or the VP of Product Management for resolution. After consultation between the VP
of Product Management and support staff, GST will provide a plan of action for resolution to the End
User.
Santa Ana Police Department
251 -5
('GST
(c) Bug -fixes and Upgrades: GST will provide bug -fixes and upgrades to the GST software when they
are available at no additional charge during the term of the maintenance program.
(d) Corrective Maintenance: GST will provide corrections to the supported software using Internet
connections, provided you have a high -speed Internet connection on your system allowing GST
remote access, during standard support hours.
(e) GST Training: The End User under software annual maintenance program receives 50% discounts for
all training programs held at GST's facility.
(f) Software Customization and Enhancement: The End User under the software annual maintenance
program receives a 20% discount for any software customization services. End User requested
enhancements or modifications of GST software are not included in the support plan price. GST
agrees to review requests from the End User and to provide a quote for the requested enhancement
based on time and cost anticipated.
(g) Excluded Service: The maintenance and support described herein does not include the correction of
software failures due to causes beyond the control of GST and occurring without the fault or
negligence of GST such as, but not limited to acts of God, catastrophe, fault, or negligence of the End
User, operator error, manipulation of the object or source code (unless approved by GST in writing
prior to such manipulation), improper use or misuse of the system or any part thereof. Any such
excluded service, whether on -site or off -site, will be provided at the request of the End User at GST
per call rates and terms then in effect.
(h) Support of Old Software: Users are required to install all updated software and any bug fixes in a
timely manner, including operating system software. If you fail to keep your system current, GST
may no longer support your system. GST will support old releases of a product for two years after
new releases become available. For subsequent years after new releases becomes available, if
requested by End User, GST may continue to support such old releases for an annual increase in
support fee of 40 %.
(i) Lapsed Support: If the End User intends to renew maintenance after the previous maintenance
program has expired for over two (2) months, a supplemental fee of 50% of the annual maintenance
shall be due GST for the first year of maintenance following your need for maintenance again, in
addition to the maintenance fee already due herein.
(k) On -site support: On -site support is not covered by the standard software maintenance support. Per
End User's request, GST will provide on -site support if GST determines that such support is required
to resolve the reported problem. In this case, GST will dispatch one or more members of its support
staff to your site who will attempt to recreate and resolve the problem(s) reported. During this time it
is expected that members of your staff will be available to answer questions and provide information
regarding your system, if required. On -site support will be charged at GST per call rates and
terms then in effect, plus travel and per diem for GST staff sent on -site.
III. SYSTEM MODIFICATION
Santa Ana Police Department
251 -6
('GST
(a) GST - generated modifications: Changes or replacement of the computer equipment, operating system
and its related software, or other third party software may require GST software support and/or
software modification to allow GST products to work with the new equipment, operating system,
and/or third party software. These support and/or modification services will be provided by GST at
the End User's request at our then quoted prices.
(b) End User - generated modifications: GST will not be responsible for any damage to your GST
software or data caused by upgrades to the operating system or replacement of hardware without
GST's prior written concurrence that said upgrade would function properly. Services required as a
result of modifications to GST's systems made by the End User are not considered normal
maintenance and are not provided as part of GST's Software Maintenance Program.
(c) External System Modifications: In the event any external system is modified beyond that anticipated
by the terms of the underlying End User License Agreement, the End User shall notify GST of such
changes immediately upon receipt of notification from the respective entity /entities and request that
GST prepare a proposal to include a time and cost estimate, for the work to be performed which
constitutes a change from the originally agreed upon configuration and work description as presented
in the underlying End User License Agreement. GST shall, within thirty (30) days after receiving
said notice, furnish a written proposal to the End User provided the required modifications are
commercially, technically and practically feasible. Upon receipt of GST's proposal, the End User
shall determine whether it desires the work to be performed, and if so shall issue a Notice to Proceed
within ten (10) days, at which time GST will perform the necessary modifications for the additional
mutually agreed upon compensation.
IV. END USER RESPONSIBILITIES
(a) Software Problems and Reporting: The End User agrees to limit use of GST maintenance service to
occasions when GST system software fails to operate in accordance with the product specifications
as defined in the original purchase contract. To facilitate the problem solving process, the End User
agrees to assist GST in their efforts to duplicate the software problem by providing a written problem
report. Additionally, GST may ask that you furnish a listing of software problems rather than calling
on each individual item over a short period of time so that our support team can better assist you.
(b) Payment: The End User is responsible for ensuring that all amounts payable under the software
annual maintenance program are received by GST on or before the commencement of the
maintenance program. The End User's failure to remit payment to GST for such maintenance
services provided or to be provided shall entitle GST to deny further maintenance services to the End
User.
(c) Updates: The End User and all users of GST software are responsible for installing all updates to
software, hardware, and fixes in a timely manner. Failure to keep your system updated can, at GST's
sole discretion, result in the immediate discontinuation of maintenance support.
(d) System Administration: The End User is responsible for identifying a System Administrator, as well
as a back -up System Administrator, who will function as GST's primary and secondary contact for
any maintenance services to be provided under the software maintenance program. Such System
Santa Ana Police Department
251 -7
('GST
Administrator, or, in the absence of the Systems Administrator, the back up, shall be GST's sole
contact for technical assistance. The System Administrator and backup System Administrator must
be trained in the administration of computer hardware, operating system, networking, and database.
GST support staff will assist you in identifying system problems as a function of maintenance
support. However, if a problem is identified as a system administration responsibility, further
assistance from GST support staff is billed at our then current hourly rates and terms.
V. WARRANTIES
(a) Limited Warranty for Services Any services being provided to the End User in accordance with
the software maintenance program are offered on a best - efforts basis only, GST may not be able to
resolve every service request made. Although GST will attempt to provide some guidance and
direction, GST is not responsible for resolving issues related to networks, operating systems, back -
end databases or hardware. It is the End User's responsibility to keep adequate data backups. GST
will not be responsible for any lost data.
ALL OTHER WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, ARE
HEREBY EXCLUDED.
VI. LIMITATION OF LIABILITY
The End User's sole and exclusive remedies for any damage or loss in any way connected with any
software or services furnished by GST, after acceptance of the GST software system, whether by GST's
breach of warranty, negligence, or any other breach of any other duty, shall be, at GST option,
replacement of the software or re- performance of service or return or credit of an appropriate portion of
any payments made, or to be made, to GST with respect to such software or services. Under no
circumstances shall GST be liable to you or any other person for any special, incidental, indirect or
consequential damages of any character, including, without limitation, damages for loss of good will,
work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even
if GST has been advised of the possibility of such potential loss or damage.
VII. CHOICE OF LAW
Interpretation of this Agreement shall be governed by the laws of the State of California.
VIII. STATUTE OF LIMITATIONS
No action or claim relating to or arising out of the software annual maintenance program may be
instituted more than one (1) year after the event giving rise to such action or claim.
Santa Ana Police Department
251 -8
(CG, S
GeoSpatial Technologies, Inc.
Quote for
Santa Ana Police Department
3130 S. Harbor Blvd. Suite 430
Santa Ana, CA 92704
Phone: (714) 434 -9936
Fax: (714) 434 -9937
9/23/2010
GST Public Safety System Standard Pricing
GST Part Number
Description
QTY
Unit Price
Amount
Software Annual Maintenance Fee for 1 license of GST
Tracker Server, 1 license of GST Wireless Host Server, 1
license of GST InterOp Bridge, unlimited site license of GST
Viewer software and GST Mapper MDC software for City of
Santa Ana Police Department, covering 12/16/2010 -
Service
SV -SW -AMF
12/15/2011 (Notes 1, 2)
1
$ 20,898.00
$ 20,898.00
Software Annual Maintenance Fee Total
$ 20,898.00
Total (Software AMF) (Note 3)
$ 20,898.00
Notes:
1 The unlimited site license of GST Viewer and GST Mapper MDC software allows SAPD to install and use the listed GST
software products without limitation. The unlimited site license can only be used by personnel within Santa Ana Police
Department.
2 Annual Maintenance Fee (AMF) of GST Tracker system for Santa Ana PD is 18% of the original license fee.
GST AMF Agreement covering 12/16/2010 - 12/15/2011 is attached.
3 Payment Terms:
AMF: Payment must be made in full on or before December 16, the commencement of each 12 -month period.
251 -9
251 -10
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
AGREEMENT WITH PHOENIX GROUP
INFORMATION SYSTEMS TO PROVIDE
AUTOMATED PARKING CITATION
PROCESSING SYSTEM
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1st Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute the attached agreement with the
Phoenix Group Information Systems to provide an Automated Parking Citation System in the
amount not to exceed $200,000 for a one -year term.
DISCUSSION
The Police Department exclusively utilizes a "hard copy" system for issuing and processing
parking citations, and for the past year the Phoenix Group Information Systems has provided
services for processing those citations. They streamline and expedite the issuance and
processing of parking citations, and they handle all refunds related to parking penalties. We are
requesting an additional one -year agreement with the Phoenix Group for those services.
Staff's evaluation has determined that the Phoenix Group has performed satisfactorily and
recommends renewing the agreement for another one -year term, in an amount not to exceed
$200,000. The new agreement extending though the end of the 2011 calendar year will
guarantee stability within the processing, hearing, and collection procedures for the City's parking
citations.
FISCAL IMPACT
Funds are available in the Police Department Traffic Division Other Contractual Services
Account (account #01114405 62300), Public Works- Roadway Cleaning Other Contractual
Services Account (account #06817641 62300), and CDA- Parking Meter Fund Other Account
(account #02718860 62300).
25J -1
Agreement for City's Automated
Parking Citation System
December 6, 2010
Page 2
Paul M. Walters
Chief of Police
Police Department
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Mgmt. Services Agency
25J -2
SECOND AMENDMENT TO CONSULTANT AGREEMENT
THIS SECOND AMENDMENT TO AGREEMENT, is entered into this 7`h day of
December, 2010, by and between Phoenix Group Information Systems, a California corporation
(hereinafter "Consultant "), and the City of Santa Ana, a charter city and municipal corporation
organized and existing under the Constitution and laws of the State of California (hereinafter
"City ").
RECITALS:
A. City and Consultant entered into Agreement #A- 2008 -333, dated December 1, 2008, for
the processing of parking citations and collection of parking penalties (hereinafter "said
Agreement ").
B. In accordance with the terms and conditions of said Agreement, the Parties desire to
extend the term of said Agreement for an additional one -year period for a reduced
amount of compensation.
NOW, THEREFORE, in consideration of the mutual and respective promises, and subject to all
the terms and conditions of said Agreement, except as herein modified, the parties agree as
follows:
1. Section 2, COMPENSATION, the relevant portion of subsection (a) shall be amended
to provide that the total sum to be expended under this Agreement shall not exceed
$200,000.00 during the extended term of this Agreement.
2. Section 3, TERM, shall be amended to extend the term of said Agreement for an
additional one -year period through December 31, 2011.
Except as hereinabove modified, all terms and conditions of said Agreement shall remain
in full force and effect.
25J -3
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to
Agreement the day and year first above written.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney
By:
Melissa M. Crosthwaite
Deputy City Attorney
RECOMMENDED FOR APPROVAL:
PAUL M. WALTERS
Chief of Police
25J -4
CITY OF SANTA ANA
DAVID N. REAM
City Manager
PHOENIX GROUP INFORMATION
SYSTEMS
BOB MURPHY
President
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
ACQUISITION OF RIGHT -OF -WAY FOR
THE OCTA AT -GRADE RAIL SAFETY
ENHANCEMENTS ( PROJECT NO. 091745)
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 15' Reading
❑ Ordinance on 2 "d Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute the attached acquisition
agreements, subject to nonsubstantive changes approved by the City Manager and City Attorney,
with CP ARBORS APARTMENTS, LLC for the purchase of a portion of the property located at
1100 East Fairhaven Avenue in the amount of $51,290, and MULLER- Rock -1 LLC for the
purchase of a portion of the property located at 1766 East McFadden & 1261 South Lyon in the
amount of $30,000.
DISCUSSION
On October 20, 2008, City Council approved a cooperative agreement with the Orange County
Transportation Authority (OCTA) for the Grade Crossing Enhancement Program at ten crossings in
the city. Improvements include medians, roadway signing and striping, pedestrian gates, and other
vehicular gate enhancements. OCTA is the lead agency for this project and the City has a
12 percent share of the costs.
The purpose of this program is to enhance railroad safety and to make the streets and roads safer
for the community. To install the improvements at the crossings located at Fairhaven and
McFadden, OCTA determined that partial acquisition of three parcels will be required - at 1100
East Fairhaven Avenue, 1766 East McFadden & 1261 South Lyon (Exhibit 1). The compensation
amount is the appraised value prepared by an appraiser licensed in the State of California.
ENVIRONMENTAL IMPACT
A Notice of Exemption and Categorical Exemption — Class 1 (f): Safety Protection Devices (ER #
2008 -159) has been prepared for the project and is consistent with both of these agreements.
25K -1
Acquisition of Right -of -Way for the
OCTA At -Grade Rail Safety Enhancements
December 6, 2010
Page 2
FISCAL IMPACT
Funds for the City's share of the costs are available in Select Street Construction, Measure M
Street Construction Program (accounting unit 03217660- 66220).
Raul odinez II
Executive Directo
Public Works Agency
RG /SA
Exhibit 1: Location map
2: Agreements
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
25K -2
CD
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SANTA ANA
City Council
P W A Agenda Date
1�K � � December 6, 2010
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ACQUISITION OF RIGHT -OF -WAY FOR
THE OCTA AT -GRADE RAIL SAFETY
ENHANCEMENT (PROJECT 091745)
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ACQUIRE PROPERTIES
1766 E. MCFADDEN 8 1261 S. LYON ST.
EXHIBIT 1
2OF2
SANTA ANA
City Council ACQUISITION OF RIGHT -OF -WAY FOR
P 1.1 /� Agenda Date THE OCTA AT -GRADE RAIL SAFETY
ftsic mac. December 6, 2010 ENHANCEMENT (PROJECT 091745)
N.T.S
PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
THIS AGREEMENT, entered into this day of , 2010, by and between
the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the
Constitution and laws of the State of California (hereinafter referred to as the "City" or "Buyer "),
and CP ARBORS APARTMENTS, LLC., a California limited liability company (hereinafter
called "Seller ").
WITNESSETH
For and in consideration of their promises, covenants and agreements hereinafter set forth, and
subject to the terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City,
and City agrees to purchase from Seller, all that certain real property (hereinafter referred to as
"said real property ") described as follows:
All that certain real property located in the State of California, County of Orange, City of Santa
Ana, described as follows:
SEE EXHIBIT "A" — LEGAL DESCRIPTION
EXHIBIT "B" GRAPHICAL DEPICTION
ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF
(Being a portion of the property commonly known as 1100 Fairhaven Avenue,
Santa Ana, California 92705)
Said purchase and sale of said real property shall be in accordance with and subject to all of the
following terms, conditions, promises, covenants, agreements and provisions, to wit:
1. Conveyance by Seller. Subject to the terms and conditions set forth in this Agreement.
Seller agrees to convey said real property to City, by Grant Deed, at the office of First American
Title Insurance Company, 2 First American Way, Santa Ana, California, on or before April 30,
2011 (the "Closing Date "). The exact Closing Date shall be determined by the City's written
notice delivered to Seller at least twenty (20) days prior to the Closing Date.
2. Title to be Conveyed. Seller agrees that, except as may hereinafter be otherwise
expressly provided, said real property shall be conveyed by Seller to City, as aforesaid, free and
clear of any deeds of trust or other monetary encumbrances which in any such case have been
created by, through or under Seller. It shall be a condition precedent to Seller's obligations
hereunder that Seller's lender shall have released said real property from all deeds of trust and
other encumbrances held by Seller's lender.
(a) Seller shall convey to City a Temporary Construction Easement as described in
Exhibit A -1 attached hereto and by this reference made a part hereof.
(b) The lands burdened by the Temporary Construction Easement are legally described in
Exhibit A -1 attached hereto. Under no circumstances shall the Temporary Construction
Easement remain in effect beyond August 31, 2011.
956168.4 FLROBI II /19i10220PM
25K -5
3. Title Insurance. It shall be a condition precedent to the City's obligation to proceed
with the purchase of said real property that the City has received an undertaking by First
American Title Insurance Company (the "Title Company ") to issue a standard coverage CLTA
policy of title insurance insuring the City's title to the real property, reflecting only such
exceptions to title as the City shall approve. If such condition precedent is not satisfied, then, at
the City's option, this Agreement shall terminate without further liability to Seller or the City.
The City shall pay all premiums associated with the issuance of such policy of title insurance.
4. Escrow. City agrees to open an escrow at the office of First American Title Insurance
Company, 2 First American Way, Santa Ana, California (the Escrow Agent) within five (5) days
from and after the date of this Agreement. This Agreement constitutes the joint escrow
instructions of the City and the Seller and a duplicate original of this Agreement shall be
delivered to the Escrow Agent upon the opening of the escrow. Subject to the terms and
conditions set forth in this Agreement, escrow will close on the Closing Date.
The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its
acceptance of this Paragraph 4 and of the General Provisions described in Exhibit "C" attached
hereto and incorporated herein by this reference, in writing, delivered to the City and to the
Seller within five (5) days after delivery of this Agreement, the Escrow Agent shall carry out its
duties hereunder.
City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any
transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation
fees, escrow fees, attorneys' fees and other closing costs incidental to the preparation of this
Agreement and the conveyance of said real property to City. Penalties for prepayment of bona
fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to
Civil Code Procedures Section 1265.240.
City further agrees to bear and Escrow Agent is hereby authorized to charge to the City and
credit to Seller all costs, expenses and other charges incurred by Seller in connection with
obtaining a release of said real property from any deed of trust or other encumbrance presently
encumbering said real property. It is understood and agreed that the aggregate of such costs,
expenses and charges is in the amount of $15,000.
The liability to the Escrow Agent under this Agreement is limited to performance of the
obligations imposed upon it pursuant to this Agreement.
The provisions of this Agreement, including each party's representations and warranties, and
each party's obligation to pay the costs set forth in this Agreement, shall survive the Closing and,
to the extent such costs were incurred, any termination of this Agreement.
5. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year
within which said real property is conveyed to City as are unpaid at the time of said conveyance
shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and
Taxation Code of the State of California. Seller shall be eligible for a refund under Section
5096.7 of the Revenue and Taxation Code of the State of California for that portion of property
taxes on said real property for said fiscal year which have been paid prior to the date the deed
956158.4 FLROBI II/19/10220PM 2
25K -6
conveying said real property to City is recorded which is allocable to that portion of the fiscal
year which begins on the date the deed conveying said real property to City is recorded. All
unpaid taxes on said real property for any and all years prior to the fiscal year within which said
conveyance is made shall be paid by Seller before conveyance of said real property to City.
6. Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept
from City, as and for the full purchase price for said real property, fixtures and equipment,
improvements pertaining to the realty (if any), good will (if any), and severance damages, the
total sum of THIRTY -SIX THOUSAND TWO HUNDRED NINETY and NO /100 Dollars
($36,290.00). City agrees to deposit said purchase price in escrow with the Escrow Agent prior
to Closing, and the Escrow Agent is hereby authorized to pay the same to Seller upon:
(a) Conveyance of said real property by Seller to City as hereinabove provided;
(b) Acceptance by City of a Grant Deed conveying said real property to City;
(c) An undertaking at Closing by the Title Company to issue the policy of title insurance as
hereinabove provided; and
(d) Recordation of the Grant Deed conveying said real property to City.
7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real
property to City is recorded, quiet and peaceful possession of said real property, free and clear of
possessory interests created by, through or under Seller.
8. Leases. Seller represents that, on the Closing Date, there will be no rental agreements,
tenancies or leases in effect with respect to said real property.
9. Waivers. The waiver by City of any breach of any covenant or agreement herein
contained on the part of Seller shall not be deemed or held to be a waiver of any subsequent or
other breach of said covenant or agreement nor a waiver of any breach of any other covenants or
agreements contained herein.
10. No Other Representations. With the sole exception of the express representations set
forth herein, this Agreement is made without representation or warranty of any kind by Seller.
Without limitation, Seller makes no representation or warranty of any kind with regard to the
physical condition of the said real property or any component thereof, with regard to any
restrictions, requirements, costs or constraints that may be associated with the said real property,
or with regard to the suitability of the said real property for the City's purposes, it being the
parties' express understanding and agreement that the City has inspected the said real property
and all aspects thereof, and that the City will rely solely on its own inspection in determining the
physical condition and other features of the said real property, any restrictions, requirements,
costs or constraints that may be associated with the said real property, and whether the said real
property is suitable for the City's intended purposes. With the sole exception of the express
representations of Seller set forth in this Agreement, the City will acquire the said real property
in an "AS IS" and "WITH ALL FAULTS" condition. Without limiting the generality of the
foregoing, the City, for itself and its successors and assigns, releases Seller and Seller's agents,
employees, managers, members, brokers, contractors and representatives from, and waives any
9561684 FLROBI 11i19 /10220PM 3
25K -7
and all causes of action or claims against any of such persons for (a) any and all liability
attributable to any physical condition of or at the said real property, including, without limitation,
the presence on, under or about the said real property of any hazardous materials; and (b) any
and all liability resulting from the failure of the said real property to comply with any applicable
laws, including, without limitation, any environmental law. The provisions of this Paragraph 10
shall survive Closing.
11. Heirs, Assigns, Successors in Interest. This Agreement, and all the terms, covenants
and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and
assigns of the respective parties hereto.
12. Time is of the Essence. In all matters and things hereunder to be done and in all
payments hereunder to be made, time is and shall be of the essence.
13. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents,
permission to enter upon said real property at all reasonable times prior to close of escrow for the
purpose of making necessary inspections, provided, however, any such entry on said real
property shall be for inspection purposes only, and no construction or other similar activity shall
be conducted on said real property until the closing of escrow shall occur with respect to the sale
of said real property to Buyer.
The City shall pay and shall indemnify, defend and hold Seller and it successors and assigns
harmless from any loss, damage or expense arising out of activities carried on by the City or its
agents or contractors on said real property or on the lands burdened by the Temporary
Construction Easement. The provisions of this Paragraph 13 shall survive the close of escrow.
14. Just Compensation. Subject to the provisions of this Agreement, Seller acknowledges
and agrees that said purchase price is just compensation at fair market value for said real
property and includes payment for fixtures and equipment, improvements pertaining to the
realty, goodwill (if any), and severance damages.
15. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M -36,
P.O. Box 1988, in the City of Santa Ana 92702, County of Orange, State of California. The
mailing address of the Seller is:
CP Arbors Apartments, LLC.
1000 Sansome Street, Suite 180
San Francisco, California 94111
ATTN: Mr. Daniel Byrd, Asset Manager
16. Exceptions. City agrees to accept title to said real property subject to all matters
affecting title to the Property excepting any deeds of trust or other monetary encumbrances
created by, through or under Seller.
17. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the
whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every,
and all issue(s) that were raised or could have been raised in connection with the acquisition of
said real property by City.
956168.4 FLROBI 11/19 /102:20PM 4
25K -8
18. Land Use Compliance. As a condition precedent to the obligations of Seller pursuant to
this Agreement, the City shall execute and deliver to Seller a land use compliance letter, before
the close of escrow, in a form acceptable to both City and Seller.
19. No Impositions. The City shall not levy or impose against Seller or its property, or any
successor or assign of Seller, any special assessments or other impositions seeking contribution
to the costs of the work described in Paragraph 31. The provisions of this Paragraph 19 shall
survive the close of escrow.
20. Damage to Seller's Property. In the event any construction on said real property or the
Temporary Construction Easement described in Exhibit "A -1" shall cause or result in any loss
or damage to Seller , including any damage to Seller's remaining property or the improvements
thereon, the City shall indemnify and hold Seller, including its successors and assigns, harmless
from all such losses or damages. The provisions of this Paragraph 20 shall survive the close of
escrow.
21. Contingency. It is understood and agreed between the parties hereto that the completion
of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and
approval of the City herein. The execution of these documents and the delivery of same to
Escrow Agent constitutes said acceptance and approval.
22. Modification and Amendment. This Agreement may not be modified or amended
except in writing signed by the Seller and City.
23. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or
the conclusion of which would adversely affect the validity, legality, or enforcement of this
Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain
in full force.
24. Captions. Captions and headings in this Agreement, including the title of this
Agreement, are for convenience only and are not to be considered in construing this Agreement.
25. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
26. No Reliance by One Party or the Other. Each party has received independent legal
advice from its attorneys with respect to the divisibility of executing this Agreement and the
meaning of the provisions hereof. The provisions of this Agreement shall be construed as to
their fair meaning, and not for or against any party based upon any attribution to such party as
the source of the language in question.
27. No Third Party Beneficiary. This Agreement is intended to benefit only the parties
hereto and no other person or entity has or shall acquire any rights hereunder.
28. Duty to Cooperate Further. Each party hereby agrees that it shall, upon request of the
other, execute and deliver such further documents (in form and substance reasonably acceptable
to the party to be charged) and do such other acts and things as are reasonably necessary and
appropriate to effectuate the terms and conditions of this Agreement, without cost.
956168.4 FLROBI 11/19/10220PM 5
25K -9
29. Applicability of Agreement to Assignees. This Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the parties to this Agreement.
30. Authority to Execute Agreement. Each undersigned represents and warrants that its
signature herein below has the power, authority and right to bind their respective parties to each
of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and
attorney's fees, for any injuries or damages to City in the event that such authority or power is
not, in fact, held by the signatory or is withdrawn.
31. Construction Contract and Curative Work.
(a) It is understood and agreed by and between the parties hereto in addition to the
compensation shown in Paragraph 2 hereinabove, the Buyer, its contractors or assigns, shall
perform the following construction contract items at the time of the installation of the proposed
project:
i. Remove 250SF concrete paving
ii. Remove 800SF irrigation system
iii. Remove 680SF lawn area
iv. Twelve (12) small shrubs
V. Two (2) medium shrubs
(b) It is understood and agreed by and between the parties hereto that the compensation paid
to Seller through this Agreement includes the value of the cost to remove, relocate and
reconstruct the irrigation system within the project areas as identified in Exhibit A and
Exhibit A -1.
32. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be
incorporated as if fully set forth in the body of this Agreement.
956168.4 FLROBI 11/19/102.20 PM 6
25K -10
The parties have executed this Agreement as of the date written below.
SELLER:
CP ARBORS APARTMENTS, LLC, a
California limited liability company
By: CP Investment REIT, a
Maryland real estate investment trust, its
Managing Member
C
Ron Zeff, President
CITY /BUYER
CITY OF SANTA ANA
Dated:
BY: Dated:
David D. Ream
City Manager
ATTEST:
BY: Dated:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
BY: Dated:
Jose Sandoval
Managing Senior Assistant City Attorney
9561684 FLROBI II /1 9,'102.20PM 7
25K -11
EXHIBIT "A"
LEGAL DESCRIPTION
Coast 9weymg, loc.
My 23, 2009
EXHIBIT "A"
LEGAL DESCRIPTION
THAT PORTION OF PARCEL 1, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS SHOWN A MAP FILED IN BOOK 19, PAGE 25 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WEST LINE OF SAID PARCEL 1 AND THE
SOUTH RIGHT OF WAY LINE OF FAIRHAVEN AVENUE (60 FEET WIDE) AS DESCRIBED IN
THE DEED TO THE CITY OF SANTA ANA, RECORDED JANUARY 24, 1969 IN BOOK 8656,
PAGE 442, OF OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG THE SOUTH LINE
OF SAID DEED SOUTH 89 °54'06" EAST 14.65 FEET TO THE TRUE POINT OF BEGINNING,
BEING A POINT ON A NONTANGENT CURVE CONCAVE NORTHEASTERLY HAVING A
RADIUS OF 48.00 FEET, A RADIAL BEARING TO SAID CURVE BEARS SOUTH 51 °39'03"
WEST; THENCE SOUTHEASTERLY AND NORTHEASTERLY 68.11 FEET ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 81 °17'42" TO A REVERSE CURVE CONCAVE
SOUTHEASTERLY HAVING A RADIUS OF 92.00 FEET, A RADIAL BEARING THROUGH SAID
POINT BEARS NORTH 29 °38'38" WEST; THENCE NORTHEASTERLY 46.77 FEET ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 29 °07'46 "; THENCE NORTH 89 °29'08" EAST
11.05 FEET TO SAID SOUTH RIGHT OF WAY LINE OF FAIRHAVEN AVENUE; THENCE.
ALONG SAID SOUTH LINE SOUTH 89 "54'06" WEST 117.11 FEET TO THE TRUE POINT OF
BEGINNING.
CONTAINING 1,045 SQUARE FEET, MORE OR LESS,
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A
PART HEREOF.
DATED THIS 23RD DAY OF JULY, 2009.
L Q A_N
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WEN -VERA DEL CASTILLO, PLS 5108 L.S. 51 D8 "«
REGISTRATION EXPIRES 6130111 n Q.
EXP. 6/30/11
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1N 107(69 -04 S;mIn,W:, PIIY.M 71: 1
956168.4 FLROBI 1 U 19/ 10 2:20 PM A-1
25K -12
EXHIBIT "A -1"
LEGAL DESCRIPTION
TEMPORARY CONSTRUCTION EASEMENT
Cow &-tying. Inc.
Jul, 23,2W.)
EXHIBIT "A -1"
LEGAL DESCRIPTION
I EMPORARY CONSTRUCT ION EASEMENT
THAT PORTION OF PARCEL 1, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS SHOWN A MAP FILED IN BOOK 19, PAGE 25 OF PARCEL MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE WEST LINE OF SAID PARCEL 1 AND THE
SOUTH RIGHT OF WAY LINE OF FAIRHAVEN AVENUE (60 FEET WIDE) AS DESCRIBED IN
I HE DEED TO THE CITY OF SANTA ANA, RECORDED JANUARY 24, 1969 IN BOOK 8856,
PAGE 442, OF OFFICIAL RECORDS OF SAID COUNTY; 'THENCE ALONG THE SOUTH LINE
OF SAID DEED SOUTH 89 "54'06" EAST 14.65 FEET TO THE TRUE POINT OF BEGINNING,
BEING A POINT ON A NONTANGENT CURVE CONCAVE NORTHEASTERLY HAVING A
RADIUS OF 46.00 FEET, A RADIAL BEARING 1.0 SAID CURVE BEARS SOUTH 51 "39'03"
WEST; THENCE SOUTHEASTERLY AND NORTHEASTERLY 68.11 FEET ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 81 °17'42" TO A REVERSE CURVE CONCAVE
SOUTHEASTERLY HAVING A RADIUS OF 92.00 FEET, A RADIAL BEARING THROUGH SAID
POINT BEARS NORTH 29 °38'38" WEST; THENCE NORTHEASTERLY 46.77 FEET ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 29 °07'46 "; THENCE NORTH 89 °29'08" EAST
11.05 FEET TO SAID SOUTH RIGHT OF WAY LINE OF FAIRHAVEN AVENUE; THENCE
ALONG SAID SOUTH LINE NORTH 89 °54'06" EAST 5.00 FEET; THENCE SOUTH 00 °05'54'
EAST 4.96 FEED; THENCE SOUTH 89 °29'08" WEST 16.01 FEET TO A CURVE CONCAVE
SOUTHEASTERLY HAVING A RADIUS OF 87.00 FEET; THENCE SOUTHWESTERLY 44.23
FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 29 °07'46" TO THE
BEGINNING OF A REVERSE CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF
53.00 FEET, A RADIAL BEARING THROUGH SAID POINT BEARS NORTH 29 °38'30" WEST;
THENCE NORTHWESTERLY 79.04 FEET ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 85'26'30" TO SAID SOUTH RIGHT OF WAY LINE OF FAIRHAVEN AVENUE;
THENCE ALONG SAID SOUTH RIGHT OF WAY LINE NORTH 89 °54'06" EAST 6.19 FEET TO
THE TRUE POINT OF BEGINNING,
CONTAINING 675 SQUARE FEET, MORE OR LESS.
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A
PART HEREOF.
DATED THIS 23RD DAY OF JULY, 2009.
1.-ANO S
DES �P[
GWEN -VERA DEL CASTILLO, PLS 5108 T L.S. 5108 6 A
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EXHIBIT "B"
GRAPHICAL DEPICTION
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956168.4 FLROBI 11/19/1022OPM B -1
25K -14
EXHIBIT "C"
GENERAL ESCROW PROVISIONS
All disbursements shall be made by Escrow's check. All funds received in this escrow shall be
deposited in one or more of your general escrow accounts with any bank doing business in the
State of California and may be transferred to any other general escrow account or accounts. The
expression "close of escrow" means the date on which instruments referred to herein are filed for
record. All adjustments are to be made on the basis of a 30 -day month. Recordation of any
instruments delivered through this escrow, if necessary or proper in the issuance of a policy of
title insurance called for, is hereby authorized.
There shall be no prorations of any existing insurance policies in this escrow.
You are to furnish a copy of these instructions, amendments thereto, closing statements and/or
any other documents deposited in this escrow to the lender or lenders, the real estate broker or
brokers and /or the attorney or attorneys involved in this transaction upon request of such lenders,
brokers or attorneys.
Should you before or after close of escrow receive or become aware of any conflicting demands
or claims with respect to this escrow or the rights of any of the parties hereto, or any money or
property deposited herein affected hereby, you shall have the right to discontinue any or all
further acts on your part until such conflict is resolved to your satisfaction, and you shall have
the further right to commence or defend any action or proceedings for the determination of such
conflict. The parties hereto jointly and severally agree to pay all costs, damages, judgments and
expenses, including reasonable attorney's fees, suffered or incurred by you in connection with, or
arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in
interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be
fully released and discharged from all obligations imposed upon you in this escrow.
If for any reason funds are retained or remain in escrow, you are to deduct therefrom a
reasonable monthly charge as custodian thereof of not less than $10.00 per month.
Time is declared to be the essence of these instructions. If you are unable to comply within the
time specified herein and such additional time as is required to make an examination of the
official records, you will return all documents, money or property to the party entitled thereto
upon satisfactory written demand and authorization. Any amendment of and /or supplement to
any instructions must be in writing. The seller agrees to sell and the buyer agrees to buy the
property herein described upon the terms hereof.
These escrow instructions, and amendments hereto, may be executed in one or more
counterparts, each of which independently shall have the same effect as if it were the original,
and all of which taken together shall constitute one and the same instruction.
956168.4 FLROM 1 1 / 19/ 10 220 PM C,- I
25K -15
PURCHASE AND SALE AGREEMENT FOR ACQUISITION OF REAL PROPERTY
AND BILATERAL ESCROW INSTRUCTIONS
THIS AGREEMENT (hereinafter "PSA "), entered into on _ _ _
2 0 10 , between the CITY OF SANTA ANA, a charter city and municipal corporation duly organized
under the Constitution and laws of the State of California (hereinafter "City" or "Buyer "), and MULLER-
MCFADDEN LLC, a California limited liability company, and MULLER - MCFADDEN 2 LLC, a
California limited liability company (formerly known as Muller -Rock 1 LLC, which acquired title as
Muller- Rock -1 LLC, a California limited liability company), as tenants in common (hereinafter "Seller "),
regardless of number or gender;
THEREFORE, for and in consideration of their mutual promises, covenants and agreements, and
subject to the terms, conditions and provisions of this PSA, Seller agrees to sell to City, and City
agrees to purchase from Seller, a portion of that certain real property (hereinafter "Said Real
Property ") legally described and depicted as follows:
SEE EXHIBIT "A" - Legal Description
and EXHIBIT "B "— Graphical Depiction
ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF
(Commonly known as a portion of 1766 E. McFadden Avenue and 1261 S, Lyon Street, Santa Ana, CA)
Said purchase and sale of Said Real Property shall be in accordance with and subject to all of the
following terms, conditions, promises, covenants, agreements and provisions, to wit:
Closing Date. "Closing Date" means January 15, 2010.
2. Title to be Conveyed, (a) The Seller's interest to the Real Property will be conveyed to City
by Seller by Grant Deed as set forth in this PSA.
(b) Seller agrees to convey to City a Temporary Construction Easement Deed (hereinafter "TCE ") as
described in the attached Exhibit "A -1" and depicted on the attached Exhibit "B." The TCE is also
described in greater detail in the TCE attached hereto and by this reference made a part hereof
3. Property Taxes, Real property taxes, if any, on Said Real Property for the fiscal year within
which Said Real Property Is conveyed to City as are unpaid at the time of said conveyance shall be
cleared and paid in accordance with the provisions of Section 4986 and 5081 of the Revenue and
Taxation Code of the State of California. All unpaid taxes on Said Real Property for any and all years
prior to the fiscal year within which said conveyance is made shall be paid by Seller before
conveyance of Said Real Property to City.
4 Payment of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept from
City, as and for the full purchase price for Said Real Property, fixtures & equipment, improvements
pertaining to the realty, goodwill (if any), severance damages (if any), and a TCE, the total sum of
Thirty Thousand and No /100 Dollars ($30,000,00).
5. Deadline for Payment of Purchase Price. City agrees to pay the purchase price of Thirty
Thousand and No /100 Dollars ($30,000.00) to Selier on or prior to the Closing Date..
6. Recordation of Grant Deed. Buyer shall execute and deliver Grant Deed to Seller on or prior
to the Closing date,
7. Possession. Seller agrees to deliver to City, on the date the Deed conveying Said Real
Property to City is recorded, quiet and peaceful possession of Said Real Property.
25K -16
8. AS -IS, Buyer hereby acknowledges, agrees and represents that the Said Real Property is to
be purchased, conveyed and accepted by Buyer in its present condition, "AS IS ", "WHERE IS" AND
WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Said Real
Property whether or not known or discovered, shall affect the rights of either Seller or Buyer
hereunder nor shall the Purchase Price be reduced as a consequence thereof. Buyer expressly
acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller, nor
any member partner, officer, employee, attorney, property manager, agent or broker of Seller,
whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute,
common law or other legally binding right or remedy In favor of Buyer,
9. Limitation of Seller's Liability. Buyer on its own behalf and on behalf of its agents,
members, partners, employees, representatives, related and affiliated entities, successors and
assigns hereby agrees that in no event or circumstance shall any of the mernbers, partners,
employees, representatives, officers, directors, agents, or affiliated or related entities of Seller have
any personal liability under this Agreement, or to any of Buyer's creditors, or to any other party in
connection with the Said Real Property and the transactions contemplated herein.
10. Costs and Expenses. if the transaction contemplated by this Agreement is consummated
and except as expressly provided herein, Buyer shall pay any and all closing costs and expenses,
other than Seller's legal and professional fees.
11. Release. Except as expressly provided herein, Buyer on its own behalf and on behalf of its
agents, members, partners, employees, representatives, related and affiliated entities, successors
and assigns, and the respective officers, directors, shareholders, partners, members, employees, and
agents of each of them hereby agrees that Seller and each of its employees, representatives,
property managers, asset managers, agents, attorneys, affiliated and related entities, heirs,
successors and assigns (collectively, the "Releases ") shall be, and are hereby, fully and forever
released and discharged from any and all liabilities, losses, claims (including third party claims),
demands, damages (of any nature whatsoever), causes of action, costs, penalties, fines, judgments,
attorneys' fees, consultants' fees and costs and experts' fees (collectively, the "Claims ") with respect
to any and all Claims, whether direct or indirect, known or unknown, foreseen or unforeseen, that
may arise on account of or in any way be connected with the Said Real Property including, without
limitation, the physical, environmental and structural condition of the Said Real Property or any law or
regulation applicable thereto, Including, without limitation, any Claim or matter (regardless of when it
first appeared) relating to or arising from (1) the presence of any environmental problems, or the use,
presence, storage, release, discharge, or migration of hazardous materials on, in, under or around
the Said Real Property regardless of when such hazardous materials were first introduced in, on or
about the Said Real Property, (ii) any patent or latent defects or deficiencies with respect to the Said
Real Property and (iii) any and all matters related to the Said Real Property or any portion thereof,
including without limitation, the condition and/or operation of the Said Real Property and each part
thereof. Buyer hereby expressly waives the provisions of Section 1542 of the California Civil Code
which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE,
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IHM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
12. Waivers. The waiver by City of any breach of any covenant or agreement herein contained
on the part of the Seller shall not be deemed or held to be a waiver of any subsequent or other
breach of said covenant or agreement nor a waiver of any breach of any other covenants or
agreements contained herein.
25K -17
13. Heirs, Assigns, Successors -in- interest. This PSA, and all the terms, covenants and
conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and
assigns of the respective Parties hereto.
14. Time is of the Essence. In all matters and things hereunder to be done and in all payments
hereunder to be made, time is and shall be of the essence,
15. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M -36, P.O.
Box 1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing
address of the Seller is:
Muller- McFadden LLC and Muller- McFadden 2 LLC
2351 Paseo de Valencia #2090
Laguna Hills, CA 92653 -3107
ATTN: Hugh Fast
16. Entire Agreement. It is mutually agreed that the Parties hereto have herein set forth the
whole of their Agreement. Performance of this PSA by City shall lay at rest, each, every, and all
issue(s) that were raised or could have been raised in connection with the acquisition of Said Real
Property by City.
17. Modificatlon and Amendment. This PSA may not be modified or amended except in writing
signed by the Seller and City.
18. Partial Invalidity. Any provision of this PSA that is unenforceable or invalid or the conclusion
of which would adversely affect the validity, legality, or enforcement of this PSA shall have no effect,
but all the remaining provisions of this PSA shall remain in full force.
19. Captlons. Captions and headings in this PSA, including the title of this PSA, are for
convenience only and are not to be considered in construing this PSA.
20. Governing Law, This PSA shall be governed by and construed in accordance with the laws
of the State of California.
21. No Reliance By One Party On The Other. Each party has received independent legal advice
from its attorneys with respect to the advisability of executing this PSA and the meaning of the
provisions hereof. The provisions of this PSA shall be construed as to their fair meaning, and not for or
against any party based upon any attribution to such party as the source of the language in question.
22. No Third Party Beneficiary. This PSA is intended to benefit only the Parties hereto and no
other person or entity has or shall acquire any rights hereunder.
23, Duty To Cooperate Further. Each party hereby agrees that It shall, upon request of the other,
execute and deliver such further documents (in form and substance reasonably acceptable to the party
to be charged) and do such other acts and things as are reasonably necessary and appropriate to
effectuate the terms and conditions of this PSA, without cost.
24. Applicability of Agreement To Assignees. This PSA shall be binding upon and shall inure to
the benefit of the successors and assigns of the Parties to this PSA.
25, Authority to Execute Agreement, Each undersigned represents and warrants that its
signature hereinbelow has the power, authority and right to bind their respective parties to each of the
terms of this PSA, and shall indemnify City fully, including reasonable costs and attorney's fees, for any
injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory
or is withdrawn.
W 1215 E•11
a
26. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be
incorporated as if fully set forth in the body of this PSA.
27. Other Provisions. The obligation of Seller, on the one hand, to consummate the transactions
contemplated hereunder are conditioned upon written approval, from all lenders holding a deed of trust
against this real property, of this PSA.
IN WITNESS WHEREOF, the Parties hereto have executed this PSA on the date and year first
written above.
SELLER: MULLER - MCFADDEN LLC,
a California limited liability company
By; --^1 . `"1\'
Nam 4ger n M. Muller �—
Its: M
MULLER - MCFADDEN 2 LLC,
a California limited liability company (formerly known as
Muller -Rock 1 LLC)
Nam on M. Muller
Ifs: ger
City /Buyer
City of Santa Ana
David N, Ream
City Manager
Attest:
Maria D. Huizar
City Clerk
Approved as to Form:
Joseph W. Fletcher
City Attorney
Jose Sandoval
Managing Senior Assistant City Attorney
Date: 2010
Date: .2010
Date: _ .2010
25K -19
Cons( Survcying, Inc.
Pcbmary 26, 2009
EXHIBIT "A"
LEGAL DESCRIPTION
MCF -PCL -2
THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 86 -337, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN A MAP FILED IN BOOK 247,
PAGES 19 AND 20 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS;
BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE ALONG THE
EAST LINE OF SAID PARCEL 2 SOUTH 09 "29'31" FAST 13.34 FEET; THENCE SOUTH
44 °18'38" WEST 4.42 FEET; THENCE SOUTH 89 °18'39" WEST 6.93 FEET; THENCE NORTH
46 °41'29" WEST 8.73 FEET; THENCE NORTH 00 655'00" WEST 10.18 FEET TO THE NORTH
LINE 01= SAID PARCEL 2; THENCE ALONG SAID NORTH LINE NORTH 89 028154" EAST 13.23
FEET TO THE POINT OF BEGINNING.
CONTAINING 211 SQUARE FEET, MORE OR LESS,
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "I3" ATTACHED HERETO AND MADE A
PART HEREOF.
DATED TI-118 26" DAY OF FEBRUARY, 2009.
�GWEN -VERA DEL CASTILLO, PLS 5108
REGISTRATION EXPIRES 6 /30109
1N 107069.04 Snn(n Ann biCl' -PC(r2 rev
25K -20
04
�`a! �XP. 6/:30/09
Cons1 Surveying, hie.
February 26, 2009
EXHIBIT "A -1"
LEGAL DESCRIPTION
MC F -PCL -2
TEMPORARY CONSTRUCTION EASEMENT
THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 86.337, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN A MAP FILED IN BOOK 247,
PAGES 19 AND 20 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID PARCEL 2; THENCE ALONG THE
EAST LINE OF SAID PARCEL 2 SOUTH 09 029'31" EAST 13,34 FEET TO THE TaUg POINT
OF BEGINNING; THENCE SOUTH 44 018'38" WEST 4.42 FEET; THENCE SOUTH 89 018139"
WEST 6.93 FEET; THENCE NORTH 48 041'29" WEST 8.73 FEET; THENCE NORTH 00 °65'00"
WEST 10.18 FEET TO THE NORTH LINE OF SAID PARCEL 2; THENCE ALONG SAID NORTH
LINE SOUTH 89 028'64" WEST 6.00 FEET; THENCE SOU'T'H 00 °56'00" EAST 12.27 FEET;
THENCE SOUTH 45 °41'29" EAST 12.88 FEET, THENCE NORTH 89°18'39" EAST 12,39 FEET
TO THE EAST LINE OF SAID PARCEL 2; THENCE ALONG SAID EAST LINE NORTH
09 029'31" WEST 8.22 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 171 SQUARE FEET, MORE OR LESS.
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "S" ATTACHED HERETO AND MADE A
PART HEREOF, .
DATE=D THIS 26711 DAY OF FEBRUARY, 2009,
t(-,WEN -VERA DEL CASTILLO, PL8, 5108
REGISTRATION EXPIRES 6130109
JN 107069.04 Santa Ann MCF -KI -2 TCG rev
25K -21
ANU
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EXP. 6/30/09).
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PARCEL 2
PARCEL MAP M337
® TEMPORARY CONSTRUCTION p.IM.B.247 19.2(D
EASEMENT
BEARING DISTANCE
1 S89' 28' 54' W 13. 23' PARCEL 4
2 S89° 28' 54' W 5. 00'
3 SO0' 55' 00' E J2,27'
4 S45' 41' 29' E 12. 86'
5 N89' 18' 39" E 12-39'
6 N09' 29' 31' W 8.22
7 N09" P-9' 31 " W 13-34'
8 S44' 18' 38' W 4,42'
9 S89° l8' 39" W 5,93'
10 N45' 41' 29' W 8. 73'
11 N00' 55' 00" W 10. 18'
JOB
DATE: 2s 09 F XH I F31 T R
SCALE: I"=20' — 1COA57- SURVEYING, INC,
SHEET 1 OF 1 RIGHT OF WAY & TEMPORARY CONSTRUCTION EASEMENT 15031 PARKWAY LOOP, suns a
iUSTM, GA 92760.6527 (714) 918 -8266
25K -22
Coast Surveying, Gic,
rabranry 26, 2009
EXHIBIT "A"
LEGAL DESCRIPTION
MCF- PCI. -2A
THAT PORTION OF PARCEL 4 OF PARCEL MAP NO, 86.337, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN A MAP FILED IN BOOK 247,
PAGES 19 AND 20 OF PARCEL MAPS, IN THE OFFICE OP THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF SAID PARCEL 4; THENCE ALONG
THE WESTERLY LINE OF SAID PARCEL 4 SOUTH 09 °29'39" EAST 13,34 FEET; THENCE
NORTH 44 °1838" EAST 6,62 FEET: THENCE NORTH 89 018136" EAST 4,92 FEET TO THE
NORTHEASTERLY LINE OF SAID PARCEL 4; THENCE ALONG SAID NORTHEASTERLY
LINE NORTH 60 °14'05" WEST 14.29 FEET TO THE POINT OF BEGINNING.
CONTAINING 53 SQUARE FEET, MORE OR LESS.
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A
PART HEREOF,
DATED THIS 26TH DAY OF FEBRUARY, 2009, d 'ow AND s
�% DELC���
GWEN -VERA DEL CASTILLO, PLS 5108 �' L.S. 5108
REGISTRATION EXPIRES 6/30/09 A EXP. 6/30/09
,IN 107069 -04 Sanln Ana MCF -110:1: 2,A
25K -23
C
Coi xl Stirvoyilig, lac.
Fclm[ary 26, 1.009
EXHIBIT "A -1"
LEGAL DESCRIPTION
MCF- PCL -2A
TEMPORARY CONSTRUCTION EASEMENT
THAT PORTION OF PARCEL 4 OF PARCEL MAP N0, 86 -337, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN A MAP FILED IN BOOK 247,
PAGES 19 AND 20 OF PARCEL MAPS, IN THE OFFICE OF TIME COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS;
COMMENCING AT THE MOST NORTHERLY CORNER OF SAID PARCEL 4; THENCE ALONG
THE WESTERLY LINE OF SAID PARCEL 4 SOUTH 09 029'31" EAST 13.34 FEET TO THE
TRUE POINT OF BEGINNING; THENCE NORTH 44 018'38" EAST 5,52 FEET; THENCE NORTH
89018'36" EAST 4,92 FEET TO THE NORTHEASTERLY LINE OF SAID PARCEL 4; THENCE
ALONG SAID NORTHEASTERLY LINE SOUTH 60 "11'06" EAST 6.00 FEET; THENCE SOUTH
61 037'63" WEST 14.37 FEET TO SAID WESTERLY LINE OF SAID PARCEL 4; THENCE
ALONG SAID WESTERLY LINE NORTH 09 929'31" WEST 8.22 FEET TO THE TRUE POINT OF
BEGINNING,
CONTAINING 83 SQUARE FEET, MORE OR LESS,
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A
PART HEREOF.
DATED THIS 26T" DAY OF FEBRUARY, 2009,
GWEN•VERA DEL CASTILLO, PLS 6108
REGISTRATION EXPIRES 6/30109
JN 107069 -04 Santa Ana iv1CF•I'CL -2A TCE
25K -24
Q
L,S. 5108
UP, 6 /30/09
CAQ
25K -25
Coasl Survoying, loo.
July 9, 2008
EXHIBIT "A"
LEGAL DESCRIPTION
RIT -PCL -1
THAT PORTION OF PARCEL 4 OF PARCEL MAP N0, 86 -337, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOT <247,
PAGES -19 AND 20 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID PARCEL 4; THENCE ALONG
THE NORTHEASTERLY LINE OF SAID PARCEL NORTH 50 °11'06" WEST 6.45 FEET;
THENCE SOUTH 42 °02'64" WEST 9.83 FEET; THENCE SOUTH 00 931'48" WEST 8.91 FEET;
THENCE SOUTH 44 028'23" EAST 16.10 FEET TO THE EAST LINE OF SAID PARCEL 4;
THENCE ALONG SAID CAST LINE NORTH 00 030'60" EAST 20.43 FEET TO THE POINT OF
BEGINNING.
CONTAINING 181 SQUARE FEET, MORE OR LESS,
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT °B" ATTACHED HERETO AND MADE A
PART HEREOF.
DATED THIS 9TH DAY OF JULY, 2008,
'vo t-c" lt�vc
GWEN -VERA JOEL CASTILLO, PLS 5108
REGISTRATION EXPIRES 6130109
Jn 107059.04 Smila Ana R(T -11CI: I
25K -26
I.
L. S. 510£3
�ul EXP. 6/30/09
C
Coust Surveying, Ltc.
July 9, 2008
EXHIBIT "A -1 "
LEGAL DESCRIPTION
RIT -PCL -1
TEMPORARY CONSTRUCTION EASEMENT
THAT PORTION OF PARCEL 4 OF PARCEL MAP NO. 86 -337, IN THE CITY OF SANTA ANA,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP FILED IN BOOK 247,
PAGES 19 AND 20 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEASTERLY CORNER OF SAID PARCEL 4; THENCE ALONG
THE NORTHEASTERLY LINE OF SAID PARCEL NORTH 50 °11'05" WEST 6,45 FEET TO THE
TRUE POINT Off' @�-OINNINO; THENCE SOUTH 42 602'54" WEST 9.63 FEET; THENCE
SOUTH 00 °31'48" WEST 5,01 FEET; THENCE SOUTH 44 028'23" EAST 16.10 FEET TO THE
EAST LINE OF SAID PARCEL 4; THENCE ALONG SAID EAST LINE SOUTH 00 030'50" WEST
7.07 FEET; THENCE NORTH 44 028'23" WEST 23.17 FEET; THENCE NORTH 00 031148" EAST
9.88 FEET; THENCE NORTH 42602'64" EAST 11.33 FEET TO SAID NORTHEASTERLY LINE;
THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 50 011'05" EAST 5,00 FEET TO THE
TRUE POINT OF BEGINNING.
CONTAINING 100 SQUARE FEET, MORE OR LESS,
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A
PART HEREOF,
DATED THIS 9TI DAY OF JULY, 2008.
GWEN -VERA DEL CASTILLO, PLS 5108
REGISTRATION EXPIRES 6/30 /09
Jn [ 07069.04 Santa Anti RIT -PC I_- I
25K -27
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REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
AGREEMENT WITH ICMA -RC FOR
DEFERRED COMPENSATION SERVICES
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1st Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and the Clerk of the Council to execute the attached agreement with
ICMA -RC for deferred compensation services for a period of 5 years with provisions for two one -year
extensions, subject to non - substantive changes approved by the City Manager and City Attorney.
DISCUSSION
The City of Santa Ana's full -time employee 457 Deferred Compensation Plan (Plan) was established
in 1973, with the adoption of City Resolution 73 -21. The 457 Plan is a voluntary deferral program that
is separate and distinct from the CalPERS pension system. The establishment of this deferred
compensation plan, pursuant to regulations in §457 of the Internal Revenue Code, provides
participants the opportunity of supplementing their CalPERS retirement by allowing them to defer a
portion of their current earnings and associated taxes until retirement or separation.
The Plan is administered through the Finance & Management Services Agency. Currently, the Plan
has approximately $95.7 million in participant assets, with 1,388 participants. The Plan fund portfolio
maintains 30 different investment options including mutual fund, bond fund and fixed asset funds. In
2005, the City retained the services of Benefit Funding Services Group (BFSG), to assist in the
review of the plan structure including investments and service levels. BFSG is an independent public
and private sector retirement plan fiduciary consulting firm. In 2006 -07, with the assistance of BFSG,
a Request for Information (RFI), was released to assess the competitiveness of the City's existing
Plan. Based on the survey, the City determined that there could be a potential gain for the
participants as well as operational savings from a new deferred compensation plan agreement.
On February 9, 2010, the City issued a Request for Proposal (RFP) for administrative, recordkeeping,
communication, and investment management services of the City's 457 Deferred Compensation Plan
to 13 firms. Seven proposals were received.
Each vendor's response was evaluated based on the committee's criteria of vendor's proven
commitment to the 457 plan marketplace, state -of- the -art technology and premium recordkeeping
platform, investment flexibility and performance, strong compliance support, maintain or reduce
25L -1
Agreement with ICMA -RD
For Deferred Comp Services
December 6, 2010
Page 2
participant's current costs, and ability to offer personalized educational and financial services. After
extensive review, the four top rated firms were interviewed including Great -West Life, ICMA -RC,
Nationwide, and The Hartford. Of these, ICMA -RC and Great -West were asked to return for final
interviews. ICMA -RC has been selected as the recommended vendor for recordkeeping,
administration, and retirement financial planning services.
ICMA -RC, established since 1972, provides retirement plans, products and services to state and local
government employers and their employees. ICMA -RC offers significant overall improvements
including a reduction in expense fees for participants and administrative costs. The City's Plan will
not be charged for legal, loan servicing, or domestic relations order processing. The City will have its
own custom website designed. Included within the pricing are individualized financial planning
services; all participants will automatically receive a financial needs assessment plan at no additional
charge, greater account balances qualify for goal specific or comprehensive financial plans.
Upon Council authorization, a comprehensive transition plan will take place for the 457 Plan over the
next 120 days. The conversions will consist of comprehensive communications, multi -site meetings,
and individual participant and retiree appointments to insure employees are informed and updated on
all the new plan improvements and enhancements.
FISCAL IMPACT
There is no fiscal impact associated with this action.
Francisco Gutierrez
Executive Director
Finance & Management Services Agency V
FG /ed /tmr
Exhibit: 1. Agreement
25L -2
ADMINISTRATIVE SERVICES AGREEMENT
Between
ICMA Retirement Corporation
and
City of Santa Ana
Type: 457
Account #: 306741
25L -3
Plan number 306741
ADMINISTRATIVE SERVICES AGREEMENT
This Administrative Services Agreement ( "Agreement "), made as of the day
of , 2010 (herein referred to as the "Inception Date "), between the International
City /County Management Association Retirement Corporation ( "ICMA -RC "), a
nonprofit corporation organized and existing under the laws of the State of Delaware, and
the City of Santa Ana ( "Employer "), a City organized and existing under the laws of the
State of California with an office at 20 Civic Center Drive, Santa Ana, California 92702
RECITALS
Employer acts as a public plan sponsor for a retirement plan ( "Plan ") with
responsibility to obtain investment alternatives and services for employees participating
in that Plan;
VantageTrust (the "Trust ") is a common law trust governed by an elected Board
of Trustees for the commingled investment of retirement funds held by various state and
local governmental units for their employees;
ICMA -RC acts as investment adviser to the Trust; ICMA -RC has designed, and
the Trust offers, a series of separate funds (the "Funds ") for the investment of plan assets
as referenced in the Trust's principal disclosure document, "Making Sound Investment
Decisions: A Retirement Investment Guide." ( "Retirement Investment Guide ").
The Funds are available only to public employers and only through the Trust and
ICMA -RC.
In addition to serving as investment adviser to the Trust, ICMA -RC provides a
complete offering of services to public employers for the operation of employee
retirement plans including, but not limited to, communications concerning investment
alternatives, account maintenance, account record - keeping, investment and tax reporting,
transaction processing, benefit disbursement, and asset management.
AGREEMENTS
1. Appointment of ICMA -RC
Employer hereby appoints ICMA -RC as Administrator of the Plan to perform all
nondiscretionary functions necessary for the administration of the Plan with respect to
assets in the Plan deposited with the Trust. The functions to be performed by ICMA -RC
shall be those set forth in Exhibit A to this Agreement.
2
25L -4
Plan number 306741
2. Adoption of Trust
Employer has adopted the Declaration of Trust of VantageTrust and agrees to the
commingled investment of assets of the Plan within the Trust. Employer agrees that
operation of the Plan and the investment, management, and distribution of amounts
deposited in the Trust shall be subject to the Declaration of Trust, as it may be amended
from time to time and shall also be subject to terms and conditions set forth in disclosure
documents (such as the Retirement Investment Guide or Employer Bulletins) as those
terms and conditions may be adjusted from time to time. It is understood that the term
"Employer Trust" as it is used in the Declaration of Trust shall mean this Administrative
Services Agreement.
Exclusivily Agreement
Employer agrees that for the initial or succeeding term of this Agreement specified in
Section 10, so long as ICMA -RC continues to perform in all material respects the
services to be performed by it under this Agreement. Employer shall not obtain plan
administration for the 457 Deferred Compensation from any other provider than ICMA-
RC. Employer acknowledges that ICMA -RC has agreed to the compensation to be paid
to ICMA -RC under this Agreement in the expectation that ICMA -RC will be able to
offset costs allocable to performing this Agreement with revenues arising from
Employer's exclusive use of ICMA -RC at the rates provided herein throughout the initial
or succeeding term.
4. Employer Duty to Furnish Information
Employer agrees to furnish to ICMA -RC on a timely basis such information as is
necessary for ICMA -RC to carry out its responsibilities as Administrator of the Plan,
including information needed to allocate individual participant accounts to Funds in the
Trust, and information as to the employment status of participants, and participant ages,
addresses, and other identifying information (including tax identification numbers).
ICMA -RC shall be entitled to rely upon the accuracy of any information that is furnished
to it by a designee of the Employer or any information relating to an individual
participant or beneficiary that is furnished by such participant or beneficiary, and ICMA-
RC shall not be responsible for any error arising from its reliance on such information.
ICMA -RC will provide account information in reports, statements or accountings.
Employer is required to send in contributions through EZLink, the online plan
administration tool provided by ICMA -RC. Alternative electronic methods may be
allowed, but must be approved by ICMA -RC for use. Contributions may not be sent
through paper submittal documents.
5. Certain Representations and Warranties
ICMA -RC represents and warrants to Employer that:
25L -5
Plan number 306741
(a) ICMA -RC is a non - profit corporation with full power and authority to
enter into this Agreement and to perform its obligations under this
Agreement. The ability of ICMA -RC to serve as investment adviser to the
Trust is dependent upon the continued willingness of the Trust for ICMA-
RC to serve in that capacity.
(b) ICMA -RC is an investment adviser registered as such with the U.S.
Securities and Exchange Commission under the Investment Advisers Act
of 1940, as amended. ICMA -RC Services, LLC (a wholly owned
subsidiary of ICMA -RC) is registered as a broker - dealer with the U.S.
Securities and Exchange Commission ( "SEC ") and is a member in good
standing with Financial Industry Regulatory Authority ( "FINRA ") and the
Securities Investor Protection Corporation ( "SIPC ").
(c) ICMA -RC shall maintain and administer the Plan in compliance with the
requirements for eligible deferred compensation plans under Section 457
of the Internal Revenue Code and other applicable federal law; provided,
however, that ICMA -RC shall not be responsible for the eligible status of
the Plan in the event that the Employer directs ICMA -RC to administer the
Plan or disburse assets in a manner inconsistent with the requirements of
Section 457 or otherwise causes the Plan not to be carried out in
accordance with its terms. Further, in the event that the Employer uses its
own customized plan document, ICMA -RC shall not be responsible for
the eligible status of the Plan to the extent affected by terms in the
Employer's plan document that differ from those in ICMA -RC's standard
plan document. ICMA -RC shall not perform any service that ICMA -RC,
in its sole judgment, considers might cause ICMA -RC to be treated as a
"fiduciary" of the Plan under applicable law.
Employer represents and warrants to ICMA -RC that:
(d) Employer is organized in the form and manner recited in the opening
paragraph of this Agreement with full power and authority to enter into
and perform its obligations under this Agreement and to act for the Plan
and participants in the manner contemplated in this Agreement. Execution,
delivery, and performance of this Agreement will not conflict with any
law, rule, regulation or contract by which the Employer is bound or to
which it is a party.
(e) Employer understands and agrees that ICMA -RC's sole function under
this Agreement is to act as recordkeeper and to provide administrative,
investment or other services at the direction of Plan participants, the
Employer, its agents or designees in accordance with the terms of this
Agreement. Under the terms of this Agreement, ICMA -RC does not
render investment advice, is not the Plan Administrator or Plan Sponsor as
those terms are defined under applicable federal, state, or local law, and
4
25L -6
Plan number 306741
does not provide legal, tax or accounting advice with respect to the
creation, adoption or operation of the Plan and the Trust.
(f) Employer acknowledges that certain such services to be performed by
ICMA -RC under this Agreement may be performed by an affiliate or
agent of ICMA -RC pursuant to one or more other contractual
arrangements or relationships, and that ICMA -RC reserves the right to
change vendors with which it has contracted to provide services in
connection with this Agreement without prior notice to Employer.
6. Participation in Certain Proceedings
The Employer hereby authorizes ICMA -RC to act as agent, to appear on its behalf, and to
join the Employer as a necessary party in all legal proceedings involving the garnishment
of benefits or the transfer of benefits pursuant to the divorce or separation of participants
in the Employer Plan. Unless Employer notifies ICMA -RC otherwise, Employer consents
to the disbursement by ICMA -RC of benefits that have been garnished or transferred to a
former spouse, current spouse, or child pursuant to a domestic relations order or child
support order.
7. Compensation and Payment
(a) There shall be no asset -based or per - participant fees charged under this
Agreement. This includes no Contingent Deferred Sales Charges
( "CDSC's "), Market Value Adjustments ( "MVA's "), and front and /or
back end loaded funds. ICMA -RC's compensation under this Agreement
shall be as set forth in subsection (b) below.
(b) Compensation for Management Services to the Trust, Compensation for
Advisory and other Services to The Vantagepoint Funds and Payments
from Third -Party Mutual Funds. Employer acknowledges that in addition
to amounts payable under this Agreement, ICMA -RC receives fees from
the Trust for investment management services furnished to the Trust.
Employer further acknowledges that certain wholly owned subsidiaries of
ICMA -RC receive compensation for advisory and other services furnished
to The Vantagepoint Funds, which serve as the underlying portfolios of a
number of Funds offered through the Trust. The fees referred to in this
subsection are disclosed in the Retirement Investment Guide. These fees
are not assessed against assets invested in the Trust's Mutual Fund Series.
In addition, to the extent that third party mutual funds are included in the
investment line -up for the Plans, ICMA -RC may receive payments from
such third party mutual funds or their service providers, which may be in
the form of 12b -1 fees, service fees, or compensation for sub - accounting
or other services provided by ICMA -RC on behalf of the funds.
25L -7
Plan number 306741
(c) ICMA -RC shall receive total annual aggregate revenue of no less than
0.10% from funds offered by the Plan. ICMA -RC shall pay an
administrative allowance quarterly to the Employer or to the Plan in an
amount equal to any revenue in excess of the revenue requirement. In the
event that revenue received by ICMA -RC from funds offered by the Plan
falls below the revenue requirement, ICMA -RC and the Employer shall
mutually agree upon a method to make up the shortfall necessary to meet
the revenue requirement. Employer understands that the Plan
administrative allowance is to be used as allowable under the IRS code.
Payment of the administrative allowance shall be remitted as directed by
the Employer.
(d) Redemption Fees. Redemption fees imposed by outside mutual funds in
which Plan assets are invested are collected and paid to the mutual fund by
ICMA -RC. ICMA -RC remits 100% of redemption fees back to the
specific mutual fund to which redemption fees apply. These redemption
fees and the individual mutual fund's policy with respect to redemption
fees are specified in the prospectus for the individual mutual fund and
referenced in the Retirement Investment Guide.
(e) Payment Procedures. All payments to ICMA -RC pursuant to this Section
7 shall be paid out of the Plan assets held by the Trust and shall be paid by
the Trust, to the extent not paid by the Employer. The amount of Plan
assets held in the Trust shall be adjusted by the Trust as required to reflect
such payments. In the event that the Employer agrees to pay amounts
owed pursuant to this Section 7 directly, any amounts unpaid and
outstanding after 30 days of invoice to the Employer shall be withdrawn
from Plan assets held by the Trust.
The compensation and payment set forth in this Section 7 is contingent upon the
Employer's use of ICMA -RC's EZLink system for contribution processing and
submitting contribution funds by ACH or wire transfer on a consistent basis over the
term of this Agreement.
The compensation and payment set forth in this section 7 is further contingent upon
the transfer of all assets of the Plan(s) from the prior recordkeeper for the Plan(s) to
ICMA -RC's administration. If all assets do not transfer immediately, ICMA -RC will
recalculate the total annual aggregate revenue requirement with consideration of the
assets that do not transfer on the transition date.
8. Custody
Employer understands that amounts invested in the Trust are to be remitted directly to the
Trust in accordance with instructions provided to Employer by ICMA -RC and are not to
Gi
25L -8
Plan number 306741
be remitted to ICMA -RC. In the event that any check or wire transfer is incorrectly
labeled or transferred to ICMA -RC, ICMA -RC may return it to Employer with proper
instructions.
9. Indemnification
ICMA -RC shall not be responsible for any acts or omissions of any person with respect
to the Plan or related Trust, other than ICMA -RC in connection with the administration
or operation of the Plan. Employer shall indemnify ICMA -RC against, and hold ICMA-
RC harmless from, any and all loss, damage, penalty, liability, cost, and expense,
including without limitation, reasonable attorney's fees, that may be incurred by, imposed
upon, or asserted against ICMA -RC by reason of any claim, regulatory proceeding, or
litigation arising from any act done or omitted to be done by any individual or person
with respect to the Plan or related Trust, excepting only any and all loss, damage, penalty,
liability, cost or expense resulting from ICMA -RC's negligence, bad faith, or willful
misconduct.
10. Term
This Agreement shall be in effect and commence on the date all parties have signed and
executed this Agreement ( "Inception Date "). The term of this Agreement will commence
on the Inception Date and extend five years from the date of completion and
reconciliation of the transition of assets of the Plan from the prior record keeper to
ICMA -RC as outlined in Section 7. This Agreement will be renewed automatically for
each succeeding year unless written notice of termination is provided by either party to
the other no less than 60 days before the end of such Agreement year.
11. Amendments and Adjustments
(a) This Agreement may not be amended except by written instrument signed by the
parties.
(b) No failure to exercise and no delay in exercising any right, remedy, power or
privilege hereunder shall operate as a waiver of such right, remedy, power or
privilege.
(c) The parties agree that enhancements may be made to administrative and
operations services under this Agreement. The Employer will be notified of
enhancements through the Employer Bulletin, quarterly statements, electronic
messages or special mailings. Likewise, if there are any reductions in fees, these
will be announced through the Employer Bulletin, quarterly statement, electronic
or special mailing.
7
25L -9
Plan number 306741
12. Notices
All notices required to be delivered under Section 11 of this Agreement shall be delivered
personally or by registered or certified mail, postage prepaid, return receipt requested, to
(i) Legal Department, ICMA Retirement Corporation, 777 North Capitol Street, N.E.,
Suite 600, Washington, D.C., 20002 -4240; (ii) Employer at the office set forth in the first
paragraph hereof, or to any other address designated by the party to receive the same by
written notice similarly given.
13. Complete Agreement
This Agreement shall constitute the complete and full understanding and sole agreement
between ICMA -RC and Employer relating to the object of this Agreement and correctly
sets forth the complete rights, duties and obligations of each party to the other as of its
date. This Agreement supersedes all written and oral agreements, communications or
negotiations among the parties. Any prior agreements, promises, negotiations or
representations, verbal or otherwise, not expressly set forth in this Agreement are of no
force and effect.
14. Titles
The headings of Sections of this Agreement and the headings for each of the attached
schedules are for convenience only and do not define or limit the contents thereof.
15. Incorporation of Schedules
All Schedules (and any subsequent amendments thereto), attached hereto, and referenced
herein, are hereby incorporated within this Agreement as if set forth fully herein.
16. Governina Law
This Agreement shall be governed by and construed in accordance with the laws of the
State of California, applicable to contracts made in that jurisdiction without reference to
its conflicts of laws provisions.
25L -10
Plan number 306741
In Witness Whereof, the parties hereto certify that they have read and understand this
Agreement and all Schedules attached hereto and have caused this Agreement to be
executed by their duly authorized officers as of the Inception Date first above written.
CITY OF SANTA ANA
Signature
Name and Title (Please Print)
Date
INTERNATIONAL CITY /COUNTY MANAGEMENT
ASSOCIATION RETIREMENT CORPORATION
By
Angela C. Montez
Assistant Corporate Secretary
Please return fully executed contract to: New Business Unit
ICMA -RC
777 North Capitol Street NE
Suite 600
Washington DC 20002 -4240
25L -11
Plan number 306741
Exhibit A
Administrative Services
The administrative services to be performed by ICMA -RC under this Agreement shall be
as follows:
(a) Provide custom participant enrollment services, including providing a
welcome package and enrollment kit containing instructions and notices
necessary to implement the Plan's administration.
(b) Establishment of participant accounts for each employee participating in the
Plan for whom ICMA -RC receives appropriate enrollment forms and
records. ICMA -RC is not responsible for determining if such Plan
participants are eligible under the terms of the Plan.
(c) Allocation in accordance with participant directions received in good
order of individual participant accounts to investment funds offered under
the Trust.
(d) Maintenance of individual accounts for participants reflecting amounts
deferred, income, gain or loss credited, and amounts distributed as
benefits.
(e) Maintenance of records for all participants for whom participant accounts
have been established in paper or electronic format. These files shall include
enrollment instructions, beneficiary designation instructions (to the extent
provided to ICMA -RC) and all other written correspondence and documents
concerning each participant's account, and if applicable, records of any
transaction conducted through the Voice Response Unit ( "VRU "), the
Internet or other electronic means.
(f) Provision of periodic reports to the Employer and participants of the status
of Plan investments and individual accounts. This includes but is not
limited to regular, monthly, quarterly and annual reporting.
(g) Communication to participants of information regarding their rights and
elections under the Plan.
(h) Making available Investor Services Representatives through a toll -free
telephone number from 5:30 a.m. to 6:00 p.m. Pacific Time, Monday
through Friday (excluding holidays and days on which the securities
markets or ICMA -RC are closed for business (including emergency
closings), to assist participants.
(i) Making available a toll -free number and access to VantageLine, ICMA-
RC's interactive VRU, and ICMA -RC's web site, to allow participants to
access certain account information and initiate plan transactions at any
time.
(j) Distribution of benefits as agent for the Employer in accordance with
terms of the Plan.
10
25L -12
Plan number 306741
(k) Upon approval by the Employer that a domestic relations order is an
acceptable qualified domestic relations order under the terms of the Plan,
ICMA -RC will establish a separate account record for the alternate payee
and provide for the investment and distribution of assets held thereunder.
ICMA -RC will review domestic relations order information when
appropriate. There is no additional cost for this service.
(1) Loans may be made available through payroll deduction or ACH on the
terms specified in the Loan Guidelines, if loans are adopted by the
Employer. There is no additional cost to the Employer for this service.
(m) Online Advice may be made available through a third party vendor on the
terms specified on ICMA -RC's website.
(n) Financial Planning services will be offered directly by ICMA -RC.
Employees delivering Financial Planning services will be ICMA -RC
employees. This service will include but are not limited to educational
workshops and individual appointments.
(o) Financial Needs Assessments will be offered FREE to all City of Santa Ana
plan participants regardless of account balance. Goal Specific Financial
Plans will be offered FREE to participants with balances greater than
$100,000. If the participant balance is less than $100,000 Goal Specific Plan
fees will not exceed $175 per plan. Comprehensive Financial Plans will be
offered FREE to participants with balances greater than $200,000. If the
participant balance is less than $200,000, Comprehensive Plan fees will not
exceed $450 per plan.
(p) Any additional service fees not set forth in this Agreement or not described
in the Request for Proposal dated February 10, 2010 must be approved by
the Employer.
(q) Employer will utilize EZ Link for Plan level access
(r) Employees and retirees will receive access to the web site and its features
including social media and future enhancements.
(s) ICMA -RC will work with the Employer and its designee as necessary to
maintain and update the most current participant beneficiary information.
Beneficiary may be made available online. There is no additional cost for
this service.
(t) ICMA -RC's legal services will be available to the Employer as needed
related to the 457 Deferred Compensation Plan. There is no additional cost
for this service.
11
25L -13
25L -14
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
CONDITIONAL USE PERMIT NO. 2010 -21
TO ALLOW A SUBWAY RESTAURANT AT
3835 WEST FIRST STREET, UNIT D -1 —
GREWAL FOODS, APPLICANT
btu
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 15f Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Receive and file the staff report approving Conditional Use Permit No. 2010 -21 as conditioned.
PLANNING COMMISSION ACTION
On November 8, 2010, the Planning Commission adopted a resolution approving Conditional Use
Permit No. 2010 -21 as conditioned by a vote of 5:0 (Gartner and Walters absent) to allow a
Subway Restaurant at 3835 West First Street, Unit D -1 within the North Harbor Specific Plan (SP-
2) zoning district. The Planning Commission made no changes to the recommended conditions of
approval outlined in the attached staff report (Exhibit A).
FISCAL IMPACT
There is no fiscal impact associated with this action.
Ja . Trevino
Executive Director
Planning & Building Agency
VF:rb
viVeports\cup10 -21 Subway=
Exhibit: A. Planning Commission Staff Report
31A-1
REQUEST FOR
Planning Commission Action
PLANNING COMMISSION MEETING DATE:
NOVEMBER 8, 2010
TITLE:
PUBLIC HEARING — FILED BY WILL FESLER
FOR CONDITIONAL USE PERMIT NO. 2010-21
TO ALLOW A SUBWAY RESTAURANT AT
3835 WEST FIRST STREET, UNIT D -1
Prepared by Vince Fregoso
PLANNING COMMISSION SECRETARY
APPROVED
❑ As Recommended
• As Amended
• Set Public Hearing For
DENIED
❑ Applicants Request
❑ Staff Recommendation
CONTINUED TO
-- � 0
Executive Director Planning Manager
RECOMMENDED ACTION
Adopt a resolution approving Conditional Use Permit No. 2010 -21 as conditioned.
DISCUSSION
Request of Applicant
Mr. Will Fesler, representing Grewal Foods, is requesting approval of a conditional use permit to
allow a Subway Restaurant to occupy a vacant space at 3835 West First Street, Unit D -1.
Specifically, the applicant is requesting a conditional use permit to operate a restaurant within the
North Harbor Specific Plan (SP -2) zoning district.
Property Description
The subject site is an 8.2 acre, square shaped parcel of land located at the northwest comer of First
Street and Harbor Boulevard. The site currently contains approximately 109,021 square feet of retail
and restaurant uses within six separate buildings. A total of 502 parking stalls are provided on the
property.
The site has a current zoning designation of North Harbor Specific Plan /General Commercial (SP-
2/GC) and a General Plan land use designation of General Commercial (GC). Surrounding land uses
include commercial and residential to the north, and commercial to the south, east and west
(Exhibits 1 and 2).
Proiect Description
Subway is proposing to operate a new sandwich shop within a vacant, 1,020 square foot tenant
space located within an existing building. Subway is intending to make modifications to the tenant
space to facilitate their restaurant design. Improvements will primarily consist of interior partitions to
create a new kitchen, restrooms and a seating area to accommodate seating for approximately 16
patrons (Exhibit 3).
1
Conditional Use Permit No. 2010 -21
November 8, 2010
Page 2
The restaurant, which is planning a late spring /early summer 2011 opening, will be open for
breakfast, lunch and dinner. Operating hours for the restaurant will be from 7:00 a.m. to 10:00 p.m.
seven days per week.
Analysis of the Issues
The applicant is proposing to remodel and reoccupy a vacant tenant space as a restaurant use
within the General Commercial district of the North Harbor Specific Plan. Section 3.5.2 of the
Specific Plan requires a conditional use permit for restaurants and other eating establishments.
The intent of the conditional use permit is to ensure that uses comply with the general concepts
and policies of the North Harbor Specific Plan.
The proposed restaurant use is consistent with the concepts and policies of the Specific Plan.
First, the restaurant is consistent with Goal Two of the plan, which promotes uses that enhance
and support the residential uses surrounding Harbor Boulevard. The Subway restaurant will
further this goal by providing another food option in the corridor, thereby assisting in promoting a
variety of neighborhood serving activities along the corridor. Second, the project is consistent with
Goal Five, which supports the enhancement of the economic viability of the Harbor Boulevard
area. The restaurant will further this goal as it will occupy a vacant space within a major
commercial center, thereby identifying this center as a viable and successful economic center.
One of the findings that must be made when considering a recommendation of approval for a
conditional use permit of this type is whether the proposed use would, in any way, be detrimental
to the surrounding area. To this end, staff has included several conditions of approval in order to
ensure that the project provides an asset to the center and the neighborhoods it serves. Standard
conditions such as graffiti removal, increased lighting, and maintaining visibility into the restaurant
will assist in reducing Police related calls for service. In addition, staff is proposing a condition of
approval that clarifies the use of signage for the business to ensure that such signage does not
create a safety hazard for the public, as well as to prevent the potential for visual blight due to
excessive signage. This condition is specific to the use of so- called "human signs" and will be
described in more details as follows.
Article XI of the Santa Ana Municipal Code (SAMC) contains standards regulating on- premise
signs. There are provisions within this portion of the code that prohibit signs that may be
dangerous or confusing to motorists; that may impede the safe and efficient flow of traffic; that
project into the public right -of -way; that incorporate movement; and that are A- frame, sandwich
board or are another portable, temporary advertising display. These standards are meant to both
ensure the public's safety, as well as to ensure that excessive signage does not create a visual
blight in the city.
lkii[_i
Conditional Use Permit No. 2010 -21
November 8, 2010
Page 3
It is clearly the intent of a "human sign," to draw attention to the advertised business from the
public right -of -way. In most cases this involves a person holding a large placard and incorporating
movement into the display of the sign in order to draw motorists' attention. In some cases, the sign
holder swings the sign into the roadway or otherwise blocks the sidewalk, creating an unsafe
condition for both the sign holder and members of the public. As such, this type of signage is
prohibited under the provisions of signs that are confusing to motorists and that may impact traffic
safety. It is recommended that such signs be prohibited.
Based upon the analysis of the project and the project's compatibility with the City's General Plan
and applicable development standards, staff recommends that the Planning Commission approve
Conditional Use Permit No. 2010 -21 as conditioned.
CEQA Compliance
This project was reviewed in accordance with the Guidelines for the California Environmental
Quality Act. The recommendation is exempt from further review pursuant to Section 15301. This
Class 1 exemption applies to a project that involves the operation and licensing of an existing
structure with little or no expansion involved. Categorical Exemption Environmental Review No.
2010 -114 will be filed for this project.
Vince Frego o, AI
Principal Planner
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ROH - 11/08/10
RESOLUTION NO. 2010 -18
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF SANTA ANA APPROVING CONDITIONAL
USE PERMIT NO. 2010 -21 AS CONDITIONED TO ALLOW
A RESTAURANT ON THE PROPERTY LOCATED AT 3835
WEST FIRST STREET, UNIT D -1
BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF
SANTA ANA AS FOLLOWS:
Section 1. The Planning Commission of the City of Santa Ana hereby finds,
determines and declares as follows:
A. Applicant is requesting approval of Conditional Use Permit No. 2010 -21 to
operate a restaurant for the property located at 3835 West First Street,
Unit D -1.
B. The North Harbor Specific Plan (SP -2) section 3.5.2(4) requires a
conditional use permit for any restaurant or other eating establishment
located in the general commercial zone of the North Harbor Specific Plan
(SP -2).
C. On October 25, 2010, the Planning Commission held a duly noticed public
hearing on Conditional Use Permit No. 2010 -21. Upon the motion of the
Planning Commission, the hearing was continued to the next regularly
scheduled Planning Commission meeting on November 8, 2010.
Thereafter, the Planning Commission held the continued public hearing on
Conditional Use Permit No. 2010 -21 on November 8, 2010.
D. The Planning Commission determines that the following findings, which
must be established in order to grant this Conditional Use Permit
pursuant to Santa Ana Municipal Code Section 41 -638, have been
established:
Will the proposed use provide a service or facility which will
contribute to the general well being of the neighborhood or the
community?
The proposed Subway Restaurant will provide a service to
the community by providing an additional dining option along
the Harbor Boulevard corridor.
2. Will the proposed use under the circumstances of the particular
case be detrimental to the health, safety, or general welfare of
persons residing or working in the vicinity?
Resolution No. 2010 -18
Page 1 of 5
lki
The proposed restaurant will not be detrimental to persons
residing and working in the area as the use, as conditioned,
will not create any negative or adverse impacts. All business
activities will occur within the building, which will reduce the
potential for negatively impacting the surrounding
businesses and residents. Further, a condition of approval
has been added that prohibits "human signs," which affects
vehicular traffic and promotes visual blight.
3. Will the proposed use adversely affect the present economic
stability or future economic development of properties surrounding
the area?
The project site contains several commercial buildings that
are suitable for the proposed project. Numerous restaurants
are currently located at and adjacent to the canter. The
reoccupation of a vacant tenant space identifies this site as a
stable, viable location for businesses to exist.
4. Will the proposed use comply with the regulations and conditions
specified in Chapter 41 for such use?
The proposed project will be in compliance with all
applicable regulations and conditions of Chapter 41 of the
Santa Ana Municipal Code and the North Harbor Specific
Plan.
5. Will the proposed use adversely affect the General Plan or any
specific plan of the City?
The proposed project will not adversely affect the General
Plan as restaurants are permitted within the General
Commercial (GC) General Plan land use designation.
E. In accordance with the California Environmental Quality Act, the
recommended action is exempt from further review per Section 15301. This
Class 1 exemption allows the licensing of existing facilities with no
expansion of the existing use. Categorical Exemption Environmental
Review No. 2010 -114 will be filed for this project.
Section 2. The Planning Commission of the City of Santa Ana after conducting
the public hearing hereby approves Conditional Use Permit No. 2010 -21 as conditioned
in Exhibit A attached hereto and incorporated as though fully set forth herein. This
decision is based upon the evidence submitted at the abovesaid hearing, which
includes but is not limited to: the Request for Planning Commission Action dated
October 25, 2010 and exhibits attached thereto; and the public testimony, all of which
are incorporated herein by this reference.
Resolution No. 2010 -18
Page 2 of 5
iki
ADOPTED this 8th day of November, 2010 by the following vote:
AYES: Commissioners:
NOES: Commissioners:
ABSENT: Commissioners:
ABSTENTIONS: Commissioners:
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Ryan O. Hodge
Assistant City Attorney
Acosta, Alderete,
Yrarrazaval(5)
None (0)
Gartner, Walters (2)
None (0)
Eric Alderete
Chairman
Betancourt, Turner,
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARTHA RAMIREZ, Secretary of the Planning Commission, do hereby attest to and
certify the attached Resolution No. 2010 -18 to be the original resolution adopted by
the Planning Commission of the City of Santa Ana on November 8, 2010.
Date:
Secretary of the Planning Commission
City of Santa Ana
ikii_[_d_[i�
Resolution No. 2010 -18
Page 3 of 5
Conditions for Approval of Conditional Use Permit No 2010 -21
Should Conditional Use Permit No. 2010 -21 be approved, the project shall comply with all
applicable sections of the Santa Ana Municipal Code, the California Administrative Code,
the California Building Standards Code and all other applicable regulations.
The applicant must comply in full with each and every condition listed below prior to
exercising the rights conferred by this conditional use permit.
The applicant must remain in compliance with all conditions listed below throughout the
life of the conditional use permit. Failure to comply with each and every condition may
result in the revocation of the conditional use permit.
A. Planning Division
1. All proposed site improvements must conform with the Site Plan Review
approval of DP No. 2010 -26.
2. Any amendment to this conditional use permit must be submitted to the
Planning Division and Police Department for review. At that time, staff will
determine if administrative relief is available or the conditional use permit
must be amended.
3. The use of hand -held portable advertising, i.e. "human signs," shall be
prohibited as a means of advertising any business aspect of the
conditionally permitted eating establishment both on and off the premises
of the subject property identified as 3835 West First Street, Unit D -1.
B. Police Department
The applicant(s) shall be responsible for maintaining free of litter the area
adjacent to the premises under control of the licensee.
2. The applicant(s) shall be responsible for maintaining the premises free of
graffiti. All graffiti shall be removed within 24 hours of occurrence.
3. The existing restaurant and required parking within 60 feet of the building
must conform to the provisions of Chapter 8, Article II, Division 3 of the
Santa Ana Municipal Code. These code conditions will require that the
existing project's lighting, door /window locking devices and addressing be
upgraded to current code standards. Light standards cannot be located in
required landscape planters.
4. The cash register must be visible from the street at all times and shall not
be obstructed at any time by temporary or permanent signage.
Resolution No. 2010 -18
Page 4 of 5
31 A -11
NOVEMBER 8, 2010
PAGE 2OF2
5. Window displays must be kept to a minimum for maximum visibility and
shall not exceed 25 percent of window coverage.
6. Window displays and racks must be kept to a maximum height of three
feet including the merchandise.
7. A timed access cash controller or drop safe must be installed.
8. Install a silent armed robbery system.
Resolution No. 2010 -18
Page 5 of 5
31 A -12
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
FY 2010 EMERGENCY MANAGEMENT
PERFORMANCE GRANT
ITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1St Reading
❑ Ordinance on 2 "d Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
1. Adopt a resolution authorizing the City Manager and the Fire Chief to submit a grant application
through the State of California for the U.S. Department of Homeland Security, 2010 Emergency
Management Performance Grant Program.
2. Authorize the City Manager and Clerk of the Council to execute the attached sub - grantee
agreement with Orange County Sherriff's Office in the amount of $38,108, subject to non -
substantive changes approved by the City Manager and City Attorney.
3. Approve an Appropriation Adjustment recognizing the 2010 Emergency Management
Performance Grant funds and appropriate the same into the 2010 Emergency Management
Performance Grant expenditure account.
DISCUSSION
The State of California Office of Emergency Services is responsible for implementing the United
States Department of Homeland Security's Emergency Management Performance Grant Program
(EMPG). The funds cover salary costs for SAFD personnel attending various Operational Area
Emergency Operation Center planning and training meetings, and miscellaneous equipment for
the City's Emergency Operation Center.
FISCAL IMPACT
Approval of the appropriation adjustment will increase anticipated revenues in the Fire Department
2010 Federal Grant - Indirect revenue account by $38,108 (account no. 14615002- 52001) and
increase the 2010 EMPG Grant, expenditure account by the same amount (account no. 14615362 -
various).
APPROVED AS TO FUNDS AND ACCOUNTS:
David Thomas Francisco Gutierrez
Fire Chief Executive Director
Fire Department Finance & Management Services Agency
55A -1
55A -2
jas:102110
RESOLUTION NO. 2010-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA AUTHORIZING THE CITY MANAGER AND
THE FIRE CHIEF TO ACT ON BEHALF OF THE CITY TO
OBTAIN 2010 EMERGENCY MANAGEMENT
PERFORMANCE GRANT FUNDS THROUGH THE
COUNTY OF ORANGE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby, finds, determines and
declares as follows:
A. The State of California Office of Emergency Services is responsible for
implementing the United States Department of Homeland Security,
Emergency Management Performance Grant Program, which provides
funds to build state and local emergency management capabilities.
B. The County of Orange as a subrecipient of 2010 Emergency
Management Performance Grant funds, will provide funds to local
governments for implementation of countywide emergency
management capabilities.
Section 2. The City Council of the City of Santa Ana hereby authorizes and directs
the City Manager and /or the Fire Chief to execute for and on behalf of the City, a public
entity established under the laws of the State of California, any actions necessary for
the purpose of obtaining federal financial assistance provided by the federal Department
of Homeland Security and subgranted through the State of California.
Section 3. This Resolution shall take effect immediately upon its adoption by the City
Council, and the Clerk of the Council shall attest to and certify the vote adopting this
Resolution.
ADOPTED this day of , 2010.
Miguel A. Pulido
Mayor
55A -3
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
Joseph Straka
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF PUBLICATION 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
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10 ,' WHEREAS, COUNTY, acting through its Sheriff Coroner Department, hereinafter referred to
as SHERIFF, in its capacity as the lead agency for the Operational onal Area, has applied for, received and
accepted the 203.0 Emergency Management Performance Grant from the California Emergency
Management Agency (hereinafter referred to as "the grant ").
WHEREAS the u
p rpose of the grant is to support comprehensive emergency management at
the state, tribal and local levels and to encourage the improvement of mitigation, preparedness, response
and recovery capabilities for all hazards, as set forth in Attachment A hereto (FY10 EMPG Program
Narrative), which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
1. COUNTY shall transfer to SU13GRANTEE grant funds, in arrears, as necessary to
reimburse SUBGRANTEE for reasonable and permissible expenditures for the grant purposes. In order
AGREEMENT TO TRANSFER FUNDS
FOR 2010 EMERGENCY MANAGEMENT PERFORMANCE GRANT PROGRAM
THIS AGREEMENT is entered into this
day ofJUI 20 which date is
enumerated for purposes of reference only, by and between the COUNTY OF ORANGE, apolitical
subdivision of the State of California, hereinafter referred to as "COUNTY," and
7l/ %lt;:- a municipal corporation, hereinafter referred to as
"SUBGRANTEE."
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21 to obtain grant funds, SUBGRANTEE shall comply with the instructions and submit to SHERIFF all
22 required information and documentation, as set forth in Attachment B (EMPG City Application) and
23 Attachment C (EMPG City Claim), which are attached hereto and incorporated herein by reference.
24 2. Throughout their useful life, SUBGRANTEE shall use grant property and equipment
25 I only for grant purposes in accordance with Attachment A hereto.
26 3. SUBGRANTEE shall exercise due care to preserve and safeguard grant property and
j
27 = equipment from damage or destruction and shall provide regular maintenance and such repairs for grant
28
i
CFDA: 97.042
iEmergency Management Performance Grant
hDepartment of Homeland Security Page 10f4
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property and equipment as are necessary, in order to keep said grant property and equipment
continually in good working order.
4. If grant property or equipment becomes obsolete, SUBGRANTEE shall dispose of it only
in accordance with the instructions of COUNTY or the agency from which COUNTY received the grant
I funds.
5. SUBGRANTEE shall submit to the COUNTY grant program reporting documents and
information in accordance with requirements set out in the Attachment D (Emergency Management
Performance Grant Program: Recipient Subgrant Guide for Local Governments Fiscal Year 2010),
which is attached hereto and incorporated herein by reference.
6. By executing this Agreement, SUBGRANTEE agrees to comply with and be fully
bound by this Agreement and all applicable provisions of Attachments A, B, C, D and E (Grant
Assurances) hereto. SUBGRANTEE shall notify COUNTY immediately upon discovery that it has not
ibided or no longer will abide by any applicable provision of this Agreement or Attachments A, B, C, D,
)r E hereto.
7. SUBGRANTEE and COUNTY shall be subject to examination and audit by the State
kuditor General with respect to this Agreement for a period of three years after final payment
iereunder.
8. SUBGRANTEE agrees to indemnify, defend and save harmless COUNTY and the f
gency from which COUNTY received grant funds, and their elected and appointed officials, officers,
gents and employees from any and all claims and losses accruing or resulting to any and all contractors,
ubeontractors, laborers, and any other person, firm or corporation fumishing or supplying work,
- rvices, materials or supplies in connection with SUBGRANTEE's performance of this Agreement,
Icluding Attachments A, B, C, D and E hereto, and from any and all claims and losses accruing or
:sulting to any person, firm, or corporation who may be injured or damaged by SUBGRANTEE in the
,rformance of this Agreement, including Attachments A, B, C, D, and E hereto.
9. No alteration or variation of the terms of this Agreement shall be valid unless made in
writing and signed by duly authorized representatives of the parties hereto, and no oral understanding or
agreement not incorporated herein shall be binding on any of the parties hereto.
CFDA: 97.042
Emergency Management Performance Grant
Department of Homeland Security Page 2 of 4 I!
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10. SUBGRANTEE may not assign this Agreement in whole or in part without the express
written consent of COUNTY.
11. For a period of three years after final payment hereunder or until all claims related to
this Agreement are finally settled, whichever is later, SUBGRANTEE shall preserve and maintain all
documents, papers and records relevant to the work performed or property or equipment acquired in
r
accordance with this Agreement, including Attachments A, B, C, D and E hereto. For the same time
period, SUBGRANTEE shall make said documents, papers and records available to COUNTY and the
agency from which COUNTY received the grant funds or their duly authorized representative(s), for
examination, copying, or mechanical reproduction on or off the premises of SUBGRANTEE, upon
request, during usual working hours.
12. SUBGRANTEE shall provide to COUNTY all records and information requested by
COUNTY for inclusion in quarterly reports and such other reports or records as COUNTY may be
required to provide to the agency from which COUNTY received grant Hinds or other persons o
agencies.
13. COUNTY may terminate this Agreement and be relieved of the payment of any
consideration to SUBGRANTEE if a) SUBGRANTEE faits to perform any of the covenants contained
in this Agreement, including the applicable terms of Attachments A, B, C, D, and E hereto, at the time
and in the manner herein provided, or b) COUNTY loses funding under the grant. In the event of
termination, COUNTY may proceed with the work in any manner deemed proper by COUNTY.
14. SUBGRANTEE and its agents and employees shall act in an independent capacity in the
performance of this Agreement, including Attachments A, B, C, D and E hereto, and shall not be
considered officers, agents or employees of COUNTY or SHERIFF" or of the agency from which
COUNTY received grant funds.
JJ
JJ
� JJ
28 H
CFDA: 97.042
Emergency Management Performance Grant
bepartMeN of Horneland Security
Page 3 of 4
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IN WITNESS WHEREOF, the parties have executed this Agreement in the County of Orange,
State of California.
DATED: , 20—
DATED:
CFDA: 97.042
Emergency Management Perromunce Grant
Department of Homeland Secunty
►e M
COUNTY OF ORANGE, a political
subdivision of the State of California
Sheriff Coroner
,.CoLINTY"
APPROVED AS TO FORM:
COUNTY COUNSEL
BY Q
1\icole A. Sims, Deputy
DATED; 7 / 201 0
720_._ SUBGRANTEE:
93
ATTEST:
Page 4 of 4
A;61
City Clerk
DATED: ,20
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
RESOLUTION ADOPTING CITY OF
SANTA ANA LOCAL SIGNAL
SYNCHRONIZATION PLAN
e
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 15' Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Adopt a resolution approving the City of Santa Ana Local Signal Synchronization Plan as part of
the Measure M2 eligibility process.
DISCUSSION
The recently renewed Measure M (Measure M2) provides competitive funding for various local
streets and road improvement projects. The Regional Traffic Signal Synchronization Program, in
combination with matching funds, provides a funding source for multiagency corridor -based
signal synchronization along Orange County streets and roads. The program allocates funds
through a competitive process, and targets projects that improve traffic across jurisdictional
boundaries.
To be eligible for competitive funding through this program, the Orange County Transportation
Authority (OCTA) requires local agencies to adopt a Local Signal Synchronization Plan which is
consistent with the Regional Traffic Signal Synchronization Master Plan (Exhibit 2). The OCTA
Board recently approved the Regional Traffic Signal Synchronization Master Plan and is ready to
issue a call for projects in November 2010. The adoption of the Local Signal Synchronization
Plan is necessary for the City to apply for Measure M2 funding.
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, the recommended action is not
considered a CEQA project. Therefore, no environmental documentation is required.
55B -1
Resolution Adopting Local Signal Synchronization Plan
December 6, 2010
Page 2
FISCAL IMPACT
There is no fiscal impact associated with this action.
Raul Godinez II
Executive Directo
Public Works Agency
RG:VN
Exhibit: 1. Resolution
Exhibit: 2. Local Signal Synchronization Plan Map
RESOLUTION NO. 2010-
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SANTA ANA ADOPTING A LOCAL SIGNAL
SYNCHRONIZATION PLAN FOR THE CITY OF
SANTA ANA
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1: The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
a. The Orange County Transportation Authority has developed the Regional
Traffic Signal Synchronization Master Plan (RTSSMP) which identifies traffic
signal synchronization street routes and traffic signals within and across city
boundaries, and defines the means of implementing the Regional Traffic
Signal Synchronization Program; and
b. The Regional Traffic Signal Synchronization Program targets over 2000
signalized intersections across Orange County to maintain traffic signal
synchronization, improve traffic flow, and reduce congestion across
jurisdictions; and
c. The RTSSMP requires that local agency's adopt a Local Signal
Synchronization Plan (LSSP) consistent with the Regional Traffic Signal
Synchronization Master Plan as a key component of local agencies' efforts to
synchronize traffic signals across city boundaries; and
d. The LSSP must be adopted by December 31, 2010, and thereafter updated
every three years, in order to be eligible to receive Measure M2 Net
Revenues.
Section 2. The City Council of the City of Santa Ana hereby adopts the Santa
Ana Local Signal Synchronization Plan which:
a. Includes goals consistent with those outlined in the Regional Traffic Signal
Synchronization Master Plan, including signal synchronization across
jurisdictional boundaries;
b. Identifies traffic signal synchronization street routes, including those elements
of the Regional Signal Synchronization Network located within the City;
Page 1 of 3
l : J
c. Includes an inventory of traffic signals within the City along all signal
synchronization street routes; and
d. Includes a three -year capital, operations and maintenance plan for signal
synchronization and traffic signals along the designated signal
synchronization street routes.
Section 3. The Executive Director of the Public Works Agency is directed to
forward a certified copy of this Resolution to the Orange County Transportation
Authority.
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.
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
Laura Sheedy
Assistant City Attorney
AYES: Councilmembers:
NOES: Councilmembers:
ABSTAIN: Councilmembers:
NOT PRESENT: Councilmembers:
Page 2 of 3
55B -4
Miguel A. Pulido
Mayor
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached
Resolution No. 2010- to be the original resolution adopted by the City Council
of the City of Santa Ana on
Date:
Clerk of Council
City of Santa Ana
55B -5
Page 3 of 3
6,
(22'
RROMMONaw Arterials in Local Signal Synchronization Plan
J A
tl Oly
S�� City Council EXHIBIT 2 r4 A
P_ Agenda Date: ARTERIALS IN
PUBLIC PUBLIC WORKS AGENCY December 6, 2010 LOCAL SIGNAL SYNCHRONIZATION PLAN
55B -7
L : 0;�A
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
RESOLUTION AND AGREEMENT
WITH PUBLIC AGENCY RETIREMENT
SERVICES FOR SOCIAL SECURITY
ALTERNATIVE PROGRAM SERVICES
4
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 151 Reading
❑ Ordinance on 2"d Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
1) Adopt a resolution designating Public Agency Retirement Services to provide administrative
and recordkeeping services and Union bank to provide trustee services for the City's part-time
employee retirement plan.
2) Authorize the City Manager and Clerk of the Council to execute the attached agreement with
Public Agency Retirement Services and Union Bank for a period of five years with provisions
for two one -year extensions.
DISCUSSION
The City of Santa Ana maintains a Social Security Alternative Plan (3121 Plan) for part-time,
seasonal and temporary employees. The 3121 Plan is a compulsory deferral program that replaces
City and participant contributions to Social Security under federal Omnibus Budget Reconciliation Act
90, Section 11332. The establishment of the 3121 Plan is pursuant to regulations of the Internal
Revenue Code §3121. Currently, the Plan has approximately $3.13million in participant assets, with
2,828 participants and is administered through the Finance & Management Services Agency.
In February 2010, the City of Santa Ana issued a Request for Proposal (RFP) for administrative,
recordkeeping, communication, and investment management services of the City's 3121 Social
Security Alternative Plan. The City received five vendor proposals. After careful deliberation of the
service model, recordkeeping, administration, management, vendor service team, plan expenses and
fees, and overall proposal responsiveness, the Plan Administrator Committee recommends Public
Agency Retirement Services (PARS) as the new 3121 Social Security Plan provider.
Upon Council authorization, a comprehensive transition plan will take place for the 3121 Plan over the
next 120 days. The conversions will consist of comprehensive communications, multi -site meetings,
and individual participant and retiree appointments to insure employees are informed and updated on
all the new plan improvements and enhancements.
55C -1
Resolution and Agreement with Public Agency
Retirement Services and Union Bank for 3121 Plan
December 6, 2010
Page 2
FISCAL IMPACT
There is no fiscal impact associated with this action.
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
FG /ed /tmr
Exhibit: 1. Resolution
2. Agreement
3. Trust Document
4. Alternative Retirement Plan
55C -2
Lss11/23/10
RESOLUTION NO. 2010-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA DESIGNATING PUBLIC AGENCY
RETIREMENT SERVICES AS THE TRUST
ADMINISTRATOR AND UNION BANK AS TRUSTEE OF
THE DEFERRED COMPENSATION PLAN FOR CITY OF
SANTA ANA PART -TIME, SEASONAL AND TEMPORARY
EMPLOYEES, EFFECTIVE DECEMBER 6, 2010, AND
AUTHORIZING THE CITY MANAGER TO EXECUTE THE
DEFERRED COMPENSATION PLAN AND TRUST
DOCUMENTS
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA
ANA AS FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The City Council of the City of Santa Ana ( "City ") has adopted a Social
Security alternative retirement plan for its part-time, seasonal and
temporary employees, referred to as the "3121 Plan "; and
B. The City's 457 PST Plan qualifies under California Government Code
Sections 53215 -53224 and 20000, OBRA 90 Section 11332, and IRC
Sections 3121(b)(7)(F) and meets the definition of "retirement system" as
set forth by Section 218(b)(4) of the Federal Social Security Act; and
C. After receiving and reviewing a number of proposals for administrative and
trust services required to manage the 3121 Plan, the City has determined
that it is in the best interests of the City and its part-time, temporary and
seasonal employees to appoint a new Plan Administrator and Trustee.
Section 2. The City Council of the City of Santa Ana hereby adopts the City of
Santa Ana PARS 3121 FICA Alternative Retirement Plan (the "Plan ") and Trust as the
City's alternative to Social Security plan, replacing the current 3121 Plan, effective
December 6, 2010.
Section 3. The City Council hereby appoints Public Agency Retirement
Services ( "PARS ") as Trust Administrator and Recordkeeper, and Union Bank as
Trustee for the Plan effective December 6, 2010.
Resolution No. 2010 -
55C -3 Page 1 of 3
Section 4. The City Council hereby authorizes the transfer of plan assets from
Great West Retirement Services to Union Bank as soon as administratively feasible.
Section 5. The City Manager and the Executive Director of Finance and
Management Services are hereby authorized to execute and submit the Administrative
Services Agreement, Trust document and any other documents necessary to implement
the 457 PST, on behalf of the City.
Section 6. The City Council hereby appoints the Executive Director of Finance
and Management Services, or his designee, as the City's Plan Administrator for the
Plan.
Section 7. The City's Plan Administrator is hereby authorized to implement the
Plan and to take additional actions necessary to maintain City's participation in PARS,
maintain compliance with any regulations regarding the Plan, and to administer the
City's PARS Plan.
Section 8. 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.
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
Laura Sheedy
Assistant City Attorney
Miguel A. Pulido
Mayor
55C -4
Resolution No. 2010 -
Page 2 of 3
AYES:
NOES:
ABSTAIN:
NOT PRESENT
Councilmembers
Councilmembers
Councilmembers
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
55C -5
Resolution No. 2010 -
Page 3 of 3
55C -6
AGREEMENT FOR ADMINISTRATIVE SERVICES
This Agreement for Administrative Services ( "Agreement ") is made this day of
, 2010, between Phase II Systems, a corporation organized and existing under the
laws of the State of California, doing business as Public Agency Retirement Services
(hereinafter "PARS ") and the City of Santa Ana ( "Agency ").
WHEREAS, Agency has adopted the City of Santa Ana Section 3121 Part -Time Seasonal
Temporary Deferred Compensation Plan (the "Plan ") effective , 2010, in
conjunction with the PARS Trust Document ( "PARS Trust "), and desires to retain PARS, as
Trust Administrator to the PARS Trust, to provide administrative services;
WHEREAS, by written resolution and pursuant to Sections 1.1 and 2.1 of the PARS Trust,
the Agency's governing body has appointed by position or title a Plan Administrator to act
on its behalf in all matters relating to the Plan and PARS Trust ( "Plan Administrator ");
WHEREAS, pursuant to Section 3.3 of the PARS Trust, the Agency has the power to
delegate certain duties related to the Plan, and PARS accepts those duties pursuant to the
terms contained in the Agreement, and that this Agreement represents the entire delegation of
duties to PARS from the Agency with regards to the Plan;
WHEREAS, PARS accepts the terms of this Agreement with the understanding by the
Agency and Plan Administrator that PARS does not hold custody of any assets of the Plan,
and does not have any independent authority or discretion for the investment, distribution or
escheatment of Plan assets without the express consent of, and direction from the Plan
Administrator.
NOW THEREFORE, THE PARTIES AGREE:
1. Services. PARS will provide the services pertaining to the Plan as described in the
exhibit attached hereto as "Exhibit IA" ( "Services ") in a timely manner, subject to
the further provisions of this Agreement.
2. Fees for Services. PARS will be compensated for performance of the Services as
described in the exhibit attached hereto as "Exhibit 1B ".
3. Payment Terms. Payment for the Services will be remitted directly from Plan assets
unless the Agency chooses to make payment directly to PARS. In the event that the
Agency chooses to make payment directly to PARS, it shall be the responsibility of
the Agency to remit payment directly to PARS based upon an invoice prepared by
PARS and delivered to the Agency. If payment is not received by PARS within thirty
(30) days of the invoice delivery date, the balance due shall bear interest at the rate of
1.5% per month. If payment is not received from the Agency within sixty (60) days
of the invoice delivery date, payment plus accrued interest will be remitted directly
from Plan assets, unless PARS has previously received written communication
disputing the subject invoice that is signed by a duly authorized representative of the
Agency.
Page 1
55C -7
4. Fees for Services Beyond Scope. Fees for services beyond those specified in this
Agreement will be billed to the Agency at the rates indicated in the PARS standard
fee schedule in effect at the time the services are provided and shall be payable as
described in Section 3 of this Agreement. Before any such services are performed,
PARS will obtain prior Agency authorization and provide the Agency with written
notice of the subject services, terms, and an estimate of the fees therefore.
Information Furnished to PARS. PARS will provide the Services contingent upon
the Agency providing PARS the information specified in the exhibit attached hereto
as "Exhibit 1C" ( "Data "). It shall be the responsibility of the Agency to certify the
accuracy, content and completeness of the Data so that PARS may rely on such
information without further audit. It shall further be the responsibility of the Agency
to deliver the Data to PARS in such a manner that allows for a reasonable amount of
time for the Services to be performed. Unless specified in Exhibit IA, PARS shall be
under no duty to question Data received from the Agency, to compute contributions
made to the Plan, to determine or inquire whether contributions are adequate to meet
and discharge liabilities under the Plan, or to determine or inquire whether
contributions made to the Plan are in compliance with the Plan or applicable law. In
addition, PARS shall not be liable for non performance of Services if such non
performance is caused by or results from erroneous and /or late delivery of Data from
the Agency. In the event that the Agency fails to provide Data in a complete,
accurate and timely manner and pursuant to the specifications in Exhibit 1C, PARS
reserves the right, notwithstanding the further provisions of this Agreement, to
terminate this Agreement upon no less than ninety (90) days written notice to the
Agency.
6. Suspension of Contributions. In the event contributions are suspended, either
temporarily or permanently, prior to the complete discharge of PARS' obligations
under this Agreement, PARS reserves the right to bill the Agency for Services under
this Agreement at the rates indicated in PARS' standard fee schedule in effect at the
time the services are provided, subject to the terms established in Section 3 of this
Agreement. Before any such services are performed, PARS will provide the Agency
with written notice of the subject services, terms, and an estimate of the fees
therefore.
7. Plan Distributions. The Plan Administrator is responsible for notifying PARS of
any Participant's eligibility for a distribution, and PARS accepts the Plan
Administrator's contractual delegation of distribution processing and certain
escheatment responsibilities. PARS is entitled to rely on, and are under no duty
whatsoever to audit the efficacy of the Agency's procedures for identifying an
employee's change -in- status or eligibility for a distribution.
Non - Contribution Reports. PARS prepares and submits a periodic Non -
Contribution report to the Plan Administrator which includes all Participants who
have received no new contributions for a period of time, as specified by the Plan
Administrator. PARS is not obligated by law or otherwise to provide a Non -
Contribution report and this report in no way obligates PARS to generate distributions
Page 2
55C -8
without specific instruction from the Agency's Plan Administrator as outlined in
Section 7.
9. Escheatment of Unclaimed Accounts. PARS will administer the escheatment of
Participant accounts which are deemed unclaimed pursuant to applicable state and
federal laws, under the conditions further described in the provisions of this
Agreement. It is acknowledged by the Agency and Plan Administrator that any
escheatment duties that PARS has arise only as a result of contractual, not statutory,
obligations that PARS accepts as a delegatee of the Plan Administrator, as contained
in this Agreement. For the purposes of determining the timing of distributability
under any unclaimed property law, a Participant account becomes "payable or
distributable" as of the date on which the Plan Administrator notifies PARS, in an
acceptable form of notification, of a change -in- status together with the proper
authorization to commence the distribution process.
10. Records. Throughout the duration of this Agreement, and for a period of five (5)
years after termination of this Agreement, PARS shall provide duly authorized
representatives of Agency access to all records and material relating to calculation of
PARS' fees under this Agreement. Such access shall include the right to inspect,
audit and reproduce such records and material and to verify reports furnished in
compliance with the provisions of this Agreement. All information so obtained shall
be accorded confidential treatment as provided under applicable law.
11. Confidentiality. Without the Agency's consent, PARS shall not disclose any
information relating to the Plan except to duly authorized officials of the Agency,
subject to applicable law, and to parties retained by PARS to perform specific
services within this Agreement. The Agency shall not disclose any information
relating to the Plan to individuals not employed by the Agency without the prior
written consent of PARS, except as such disclosures may be required by applicable
law.
12. Independent Contractor. PARS is and at all times hereunder shall be an
independent contractor. As such, neither the Agency nor any of its officers,
employees or agents shall have the power to control the conduct of PARS, its officers,
employees or agents, except as specifically set forth and provided for herein. PARS
shall pay all wages, salaries and other amounts due its employees in connection with
this Agreement and shall be responsible for all reports and obligations respecting
them, such as social security, income tax withholding, unemployment compensation,
workers' compensation and similar matters.
13. Indemnification. PARS and Agency hereby indemnify each other and hold the other
harmless, including their respective officers, directors, employees, agents and
attorneys, from any claim, loss, demand, liability, or expense, including reasonable
attorneys' fees and costs, incurred by the other as a consequence of PARS' or
Agency's, as the case may be, acts, errors or omissions with respect to the
performance of their respective duties hereunder. However nothing contained herein
shall result in any liability express or implied on behalf of PARS for any plan
inadequacies, negligent plan administration or any claim and/or loss arising out of
Page 3
55C -9
such plan inadequacies and /or negligent plan administration by any plan and /or trust
administrator prior to the retention of PARS as the Trust Administrator pursuant to
the terms and conditions of this Agreement.
14. Compliance with Applicable Law. The Agency shall observe and comply with
federal, state and local laws in effect when this Agreement is executed, or which may
come into effect during the term of this Agreement, regarding the administration of
the Plan. PARS shall observe and comply with federal, state and local laws in effect
when this Agreement is executed, or which may come into effect during the term of
this Agreement, regarding Plan administrative services provided under this
Agreement.
15. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. In the event any party institutes legal
proceedings to enforce or interpret this Agreement, venue and jurisdiction shall be in
any state court of competent jurisdiction.
16. Force Majeure. When a party's nonperformance hereunder was beyond the control
and not due to the fault of the party not performing, a party shall be excused from
performing its obligations under this Agreement during the time and to the extent that
it is prevented from performing by such cause, including but not limited to: any
incidence of fire, flood, acts of God, acts of terrorism or war, commandeering of
material, products, plants or facilities by the federal, state or local government, or a
material act or omission by the other party.
17. Ownership of Reports and Documents. The originals of all letters, documents,
reports, and data produced for the purposes of this Agreement shall be delivered to,
and become the property of the Agency. Copies may be made for PARS but shall not
be furnished to others without written authorization from Agency.
18. Designees. The Plan Administrator of the Agency, or their designee, shall have the
authority to act for and exercise any of the rights of the Agency as set forth in this
Agreement, subsequent to and in accordance with the written authority granted by the
Governing Body of the Agency, a copy of which writing shall be delivered to PARS.
Any officer of PARS, or his or her designees, shall have the authority to act for and
exercise any of the rights of PARS as set forth in this Agreement.
19. Notices. All notices hereunder and communications regarding the interpretation of
the terms of this Agreement, or changes thereto, shall be effected by delivery of the
notices in person or by depositing the notices in the U.S. mail, registered or certified
mail, return receipt requested, postage prepaid and addressed as follows:
(A) To PARS: PARS; 4350 Von Karman Avenue, Suite 100, Newport Beach, CA
92660; Attention: President
(B) To Agency: City of Santa Ana; 20 Civic Center Plaza, M -17, P.O. Box 1988,
Santa Ana, CA 92702; Attention: Finance & Management Services Agency
Notices shall be deemed given on the date received by the addressee.
Page 4
55C -10
20. Term of Agreement. This Agreement shall remain in effect for the period beginning
' 2010 and ending , 2013 ( "Term "). This Agreement will
continue unchanged for successive twelve month periods following the Term unless
either party gives written notice to the other party of the intent to terminate prior to
ninety (90) days before the end of the Term.
21. Amendment. This Agreement may not be amended orally, but only by a written
instrument executed by the parties hereto.
22. Entire Agreement. This Agreement, including exhibits, contains the entire
understanding of the parties with respect to the subject matter set forth in this
Agreement. In the event a conflict arises between the parties with respect to any
term, condition or provision of this Agreement, the remaining terms, conditions and
provisions shall remain in full force and legal effect. No waiver of any term or
condition of this Agreement by any party shall be construed by the other as a
continuing waiver of such term or condition.
23. Attorneys Fees. In the event any action is taken by a party hereto to enforce the
terms of this Agreement the prevailing party herein shall be entitled to receive its
reasonable attorney's fees.
24. Counterparts. This Agreement may be executed in any number of counterparts, and
in that event, each counterpart shall be deemed a complete original and be
enforceable without reference to any other counterpart.
25. Headings. Headings in this Agreement are for convenience only and shall not be
used to interpret or construe its provisions.
26. Effective Date. This Agreement shall be effective and control the obligations and
duties of the parties hereto as of the date first above written.
AGENCY:
BY:
TITLE:
DATE:
PARS:
BY:
TITLE:
DATE:
Page 5
55C -11
55C -12
EXHIBIT IA
SERVICES
PARS will provide the following services for the City of Santa Ana Section 3121 Part-Time
Seasonal Temporary Deferred Compensation Plan:
1. Plan Installation Services:
(A) Meeting with appropriate Agency personnel to discuss plan provisions,
implementation timelines, benefit communication strategies, data reporting and
contribution submission requirements;
(B) Providing the necessary analysis and advisory services to finalize these elements of
the Plan;
(C) Providing the documentation needed to establish the Plan for review by Agency legal
counsel, which must be reviewed and approved by the Agency, as demonstrated by
the execution of this Agreement prior to the commencement of PARS services.
2. Plan Administration Services:
(A) Monitoring the receipt of Plan contributions made by the Agency to the trustee of the
PARS Trust ( "Trustee "), based upon information received from the Agency and the
Trustee;
(B) Performing periodic accounting of Plan assets, including the allocation of employer
and employee contributions, distributions, investment activity and expenses (if
applicable) to individual Participant accounts, based upon information received from
the Agency and /or Trustee;
(C) Acting as ongoing liaison between the Participant and the Agency in regard to
distribution payments, which shall include use by the Participants of toll -free
telephone communication to PARS;
(D) Coordinating the processing of Participant distribution payments pursuant to
authorized written Agency certification of distribution eligibility, authorized direction
by the Agency, the provisions further contained in this Agreement, and the provisions
of the Plan;
(E) Directing Trustee to make Participant distribution payments, pursuant to the Agency
authorization provisions in this Agreement, and producing required tax filings
regarding said distribution payments;
(F) Notifying the Trustee of the amount of Plan assets available for further investment
and management, or, the amount of Plan assets necessary to be liquidated in order to
fund Participant distribution payments;
(G) Coordinating actions with the Trustee as directed by the Plan Administrator within
the scope this Agreement;
(H) Preparing and submitting a periodic Non- Contribution report which includes all
Participants who have received no new contributions for a period of time as specified
Page 6
55C -13
by the Plan Administrator, unless directed by the Agency otherwise. PARS is not
obligated by law or otherwise to provide a Non - Contribution report and this report in
no way obligates PARS to generate distributions without specific instruction from the
Agency Plan Administrator as outlined in Section 7 of this Agreement;
(I) Preparing and submitting a monthly report of Plan activity to the Agency, unless
directed by the Agency otherwise;
(J) Preparing and submitting an annual report of Plan activity to the Agency;
(K) Preparing individual annual statements and mailing in bulk to the Agency, unless
directed by the Agency otherwise.
3. Plan Compliance Services: Coordinating and preparing amendments to the Trust, Plan
and other associated legal documents required by federal and /or state agencies to
maintain the Plan in compliance.
4. PARS is not licensed to provide and does not offer tax, accounting, legal, investment or
actuarial advice.
Page 7
55C -14
EXHIBIT 1 B
FEES FOR SERVICES
PARS will be compensated for performance of Services, as described in Exhibit IA
based upon the following schedule:
(A) A distribution fee equal to $20.00 per terminated Participant ( "Distribution Fee "),
which shall be deducted solely from the terminating Participant's account or paid by
the Agency.
Distribution Fee Payment Option (Please select one option below):
❑ Distribution Fee shall be paid solely from the terminating Participant's
account.
❑ Distribution Fee shall be paid by the Agency.
(B) An annual asset fee paid by the Agency or from Plan Assets based on the following
schedule ( "Asset Fee "):
For Plan Assets from: Annual Rate:
$0 to $2,500,000 1.50%
$2,500,001 to $5,000,000 1.25%
$5,000,001 to $10,000,000 1.00%
$10,000,001 and above 0.75%
Annual rates are prorated and paid monthly. The annual Asset Fee shall be
calculated by the following formula [Annual Rate divided by 12 (months of the year)
multiplied by the Plan asset balance at the end of the month within each asset range].
If the Asset Fee is taken from Plan Assets, the total Asset Fees due in a given month
shall be allocated proportionately among Participants of the Agency's Plan in that
month, based on account balance. Trustee and Investment Management Fees are not
included.
Annual Asset Fee Payment Option (Please select one option below):
❑ Annual Asset Fee shall be invoiced and paid by the Agency.
❑ Annual Asset Fee shall be paid from Plan Assets.
(C) A fee equal to the out of pocket costs charged to PARS by an outside contractor for
formatting contribution data on to a suitable magnetic media, charged only if the
contribution data received by PARS from the Agency is not on readable magnetic
media ( "Data Processing Fee ").
Page 8
55C -15
55C -16
EXHIBIT 1 C
DATA REQUIREMENTS
PARS will provide the Services under this Agreement contingent upon receiving the
following information:
1. Contribution Data — transmitted to PARS by email or on an IBM formatted disk (360K,
1.2 MB or 1.44 MB) in ASCII code or Excel formats containing the following items of
employee information related to the covered payroll period:
(A) Agency name
(B) Employee's legal name
(C) Employee's social security number
(D) Payroll date
(E) Employer contribution amount
(F) Employee contribution amount
2. Distribution Data — written Plan Administrator's (or authorized Designee's) direction to
commence distribution processing, which contains the following items of Participant
information:
(A) Agency name
(B) Participant's legal name
(C) Participant's social security number
(D) Participant's address
(E) Participant's phone number
(F) Participant's birthdate
(G) Participant's condition of eligibility
(H) Participant's effective date of eligibility
(I) Signed certification of distribution eligibility from the Plan Administrator, or
authorized Designee
3. Executed Legal Documents:
(A) Certified Resolution
(B) Plan Document
(C) Trust Agreement
(D) Trustee Investment Forms
4. Other information pertinent to the Services as reasonably requested by PARS.
Page 9
55C -17
55C -18
PARS BENEFIT TRUST
FBO
CITY OF SANTA ANA
PARS 3121 PART -TIME SEASONAL TEMPORARY
DEFERRED COMPENSATION PLAN
Effective
TRUST DOCUMENT
55C -19
TABLE OF CONTENTS
ARTICLE
PAGE
I
Trust Fund
3
II
Investments
4
III
Trustee's Powers
7
IV
Trustee's Duties
12
V
Restrictions on Transfer
13
VI
Resignation, Removal and Succession
13
VII
Amendment
14
VIII
Liabilities
14
IX
Duration and Termination
17
X
Miscellaneous
18
2
55C -20
PARS Benefit Trust FBO City of Santa Ana
PARS 3121 Part -Time Seasonal Temporary Deferred Compensation Plan Effective
This Trust Agreement (the "Trust Agreement" or "Trust ") is made by and among the City of Santa Ana
(the "Agency ") as the sponsor of the PARS Benefit Trust FBO City of Santa Ana PARS 3121 Part -
Time Seasonal Temporary Deferred Compensation Plan Effective (the "Plan "),
the Plan Administrator or the Plan's administrative committee (the "Plan Administrator "), Union Bank,
N.A., a national banking association as Trustee ( "Union Bank, N.A." or the "Trustee ") and Public
Agency Retirement Services as Trust Administrator (the "Trust Administrator ").
PURPOSE
The Agency has established the PARS Benefit Trust FBO City of Santa Ana PARS 3121 Part -Time
Seasonal Temporary Deferred Compensation Plan Effective for the benefit of
eligible employees.
The Agency has established this Trust for the exclusive purpose of providing Plan benefits to its
employees ( "Participants ") and their beneficiaries ( "Beneficiaries ") and defraying reasonable expenses
of the Plan and Trust. The Agency has reserved the right to amend this Trust from time to time. The
Plan Administrator for this Plan and Trust shall mean the person who holds a particular position or title
designated by the Agency's governing body.
The Plan provides that, from time to time, cash and other assets may be provided or forwarded to the
Trustee by the Agency to be held and administered in trust for the uses and purposes of the Plan, solely
for the purpose of providing such benefits. Subject to specific conditions set forth in this Trust
Agreement, the Trustee agrees that it will receive cash and other property of the Plan acceptable to the
Trustee, constituting Plan contributions from the Agency or transfers for the benefit of the Plan, and
shall hold and invest such cash and other property (the "Assets ") for the uses and purposes and upon the
terms and conditions stated in this Trust Agreement (the "Trust "). The Agency intends that the Plan
shall qualify under Section 457(b) of the Internal Revenue Code of 1986, as amended (the "Code "), and
that the Trust hereby created shall be treated as a trust exempt from tax under Section 501 of the Code,
and shall not be subject to any claims of the Agency's creditors.
ARTICLE I
TRUST FUND
1.1 Signing Authority. The Agency's Board of Trustees, Board of Directors or other duly
authorized governing body shall certify in writing to the Trustee the names and specimen signatures of
all those who are authorized to act as, and on behalf of, the Plan Administrator, and those names and
specimen signatures shall be updated as necessary by such governing board or other duly authorized
officer of the Agency.
1.2 Acceptance of Assets. All contributions or transfers shall be received by the Trustee in cash
or in any other property acceptable to the Trustee. The Trust shall consist of the contributions and
transfers of Assets received by the Trustee, together with the income and earnings from such Assets, and
any increments accruing to them. The Trustee shall manage and administer the Trust without distinction
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between principal and income. The Trustee shall have no other duty to compute any amount to be
transferred or paid to it by the Agency and it shall not be responsible for the collection of any
contributions or transfers due to the Trust.
1.3 Establishment of Trust. The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Agency and shall be used exclusively for the uses and purposes of
Participants and Beneficiaries as herein set forth. Participants and Beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust.
1.4 Onizoin Contributions to Trust. Agency, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property acceptable to the Trustee to augment the
principal to be held, administered and disposed of by Trustee as provided in this Trust Agreement.
Neither the Trustee nor any Participant shall have any right to compel such additional deposits.
1.5 No Duty of Trustee to Enforce Collection. Notwithstanding anything herein to the contrary,
the Trustee shall have no authority or obligation to enforce the collection of any contribution or transfer
to the Trust.
1.6 Plan Administration. The Agency and not the Trustee shall be responsible for administering
the Plan (including without limitation determining the rights of the Agency's employees to participate in
the Plan, determining any Participant's right to benefits under such Plan), and issuing statements to
Participants of their interest in the Trust and Plan.
1.7 Participant Accounts. The Agency shall maintain, or cause to be maintained, a separate
account for each Participant under the Plan (the "Account ") in which it shall keep a record of the share
of such Participant under such Plan in the Trust. The Agency may appoint a third -party administrator or
record - keeper (the "Record- keeper ") to maintain such Accounts. A Participant's Account under the Plan
shall represent the portion of the Trust allocated to provide such Participant benefits under such Plan. If
the Trustee is directed by the Agency to segregate the Trust into separate Accounts for each Participant,
at the time it makes a contribution to the Trust, the Agency shall certify to the Trustee the amount of
such contribution being made in respect of each Participant under the Plan.
1.8 Tax Reporting. The Agency and not the Trustee shall be responsible for all income tax
reporting and calculation and payment of any wage withholding or other tax requirements in connection
with the Trust and any contributions thereto, and any income earned thereby, and payments or
distributions therefrom, and Agency agrees to indemnify and defend Trustee against any liability for any
such taxes, interest or penalties resulting from or relating to the Trust, provided, however, that Union
Bank, N.A., as Trustee shall file such tax reports for the Trust as required by law and as agreed to by the
parties in writing from time to time.
ARTICLE II
INVESTMENTS
2.1 Plan Administrator Authority. Except as otherwise provided in this Article II, the Plan
Administrator appointed by the Agency shall have all power over and responsibility for the
management, disposition, and investment of the Trust Assets, and the Trustee shall comply with proper
55C -22
written directions of the Plan Administrator concerning those Assets. The Plan Administrator shall not
issue directions in violation of the terms of the Plan and Trust or prohibited by any applicable federal or
state laws or regulations governing the establishment and operation of trusts by governmental entities for
the purpose of providing retirement benefits for their employees or other individuals providing services
to such entities, including, but not limited to, laws governing the actions of plan fiduciaries ( "Statutes ").
Except to the extent required by applicable state or federal law or regulations, or otherwise provided in
this Trust Agreement, the Trustee shall have no duty or responsibility to review, initiate action, or make
recommendations regarding Trust Assets and shall follow investment directions and retain Assets until
directed in writing by the Plan Administrator to dispose of them. The Trustee shall not be liable for any
investment decisions of the Plan Administrator or any investment losses in the Account attributable to
investment decisions of the Plan Administrator.
2.2 Trustee as Manager. The Plan Administrator may also delegate all or a portion of its
investment authority to the Trustee for all or a portion of the Trust Assets. Upon written acceptance of
that delegation, the Trustee shall have full power and authority to invest and reinvest that portion of the
Trust so designated by the Plan Administrator in investments of any kind. The Trustee shall be
responsible for proper diversification of the Assets only if all the Plan Assets are subject to its
management.
The Plan Administrator shall have the responsibility for establishing and carrying out a funding
policy and method consistent with the objectives of the Plan, taking into consideration the Plan's short -
term and long -term financial needs (hereinafter referred to as the "Permissible Investment Guidelines ").
The Trustee's responsibility for investment and diversification of the Assets in the portion of the Trust
for which Trustee has investment discretion shall be subject to, and is limited by, the funding policy and
investment guidelines issued to it by the Plan Administrator and any Statutes.
It is understood and acknowledged that the Plan Administrator, rather than the Trustee, shall be
responsible for the funding policy, for overall diversification of Trust Assets (unless the Trustee has
investment responsibility for all Plan Assets), for benefit allocation, distribution, and for overall
compliance of the Trust with statutory limitations on the amount of the Trust's investment in any assets.
2.3 Insurance Contract. The Plan Administrator may direct the Trustee in writing to invest
assets of the Trust in group or individual insurance contracts of all kinds authorized under the Plan,
Statutes and Permissible Investment Guidelines provided such contracts are issued by an insurance
company or companies qualified to do business in more than one state, and the Plan Administrator shall
have the sole responsibility and shall direct the Trustee with respect to such insurance contracts. The
administration of these insurance contracts shall be the sole responsibility of the Plan Administrator, and
the Trustee shall follow the directions of the Plan Administrator with respect to the administration of any
such contracts.
2.4 Independent Investment Manager. The Plan Administrator may appoint one or more
investment managers to direct the Trustee in the investment of all or a specified portion of the Trust
Assets. Any investment manager shall be a qualified investment advisor under the Investment Advisors
Act of 1940. The Plan Administrator may also remove any investment manager. The Plan
Administrator shall promptly notify the Trustee in writing of the appointment or removal of any
investment manager.
The Plan Administrator shall cause the investment manager to acknowledge to the Trustee in writing
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that the investment manager is a fiduciary with respect to the Plan and Trust. If the foregoing conditions
are met, the investment manager shall have the power to manage, acquire, retain, or dispose of any Trust
Assets subject to the investment manager's management and direction. The Trustee shall not be liable
for the acts or omissions of such investment manager, or be under an obligation to review the
investments of, or to invest or otherwise manage any asset of the Trust that is subject to the management
and direction of such investment manager.
2.5 Participant Directed Accounts. The Agency may, by written resolution and execution of the
Adoption Agreement, terminate the Plan Administrator's right to direct the investment and management
of all or any portion of the Assets of the Trust and allow Participants to direct their own account
balances ( "Participant Directed Accounts "). Notwithstanding any other provision of this Trust
Agreement, for Participant Directed Accounts, the Trustee shall be entitled to act upon proper directions
of the Plan Administrator, Record - keeper, and Participants including directions in writing, or oral
instructions which Trustee in its discretion may follow without receipt of written instructions, instruction
given by photostatic teletransmission using facsimile signature, or those instructions which are digitally
recorded on the Union Bank Voice Response Unit ( "VRU ") or internet website. Trustee is hereby
authorized to record conversations and transmissions made in connection with the Trust. Trustee's
recording or lack of recording of any such oral, internet or digital instructions, and /or receipt or lack of
receipt of facsimile transmissions, as reflected in the Trustee's records maintained in the ordinary course
of business shall constitute conclusive proof of Trustee's receipt or non - receipt of such instructions.
The Trustee and /or Record - keeper shall not be liable in any manner for investment or other losses or
other liability attributable to Participant's directions, or lack thereof, or exercise of control over the
investments of their Participant Directed Accounts. Likewise, the Trustee and /or Record - keeper shall
have no duty or responsibility to review, monitor or make recommendations regarding investments made
at the direction of the Participants or the Plan Administrator. In order for Agency to be relieved of
investment fiduciary liability, the requirements of California law including Section 53213.5 of the
California Government Code must be met. The Plan Administrator shall establish uniform and
nondiscriminatory rules for the operation of the Participant Directed Accounts, including whether the
Participant shall direct the Trustee or direct the Plan Administrator who then directs the Record - keeper
and the Record - keeper forwards such directions to the Trustee. Agency shall designate whether
Participant Directed Accounts are to be established pursuant to the provisions of section 2.5(a) or 2.5(b),
below:
(a) Participant Direction in Individually Directed Accounts. If the Agency has so elected,
Participants may have investment direction power over their own segregated account balances
( "Individually Directed Account" or "IDA "). Investments may be directed by Participants into assets
administratively acceptable to Trustee, as limited by guidelines developed by the Plan Administrator
(the "Permissible Investment Guidelines "). Plan Administrator shall notify Participants of the Plan's
Permissible Investment Guidelines as in effect from time to time. In the absence of directions from a
Participant, the Plan Administrator may direct the investment of the IDA. The Trustee may refuse to
comply with the directions of the Participant to invest in assets other than those listed in its Permissible
Investments Guidelines or with directions which the Trustee deems to be improper or contrary to the
provisions of the Plan and Trust or the Internal Revenue Code and shall have no liability for such
refusal.
(b) Participant Directed Account within Plan Administrator Selected Investment Options
( "Directed Accounts "): If the Agency so elects, and directs the Trustee to execute appropriate legal
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agreements, the Participant's Account Balance shall be segregated into a Participant Directed Account
( "Directed Account "), over which the Participant may direct investment into one or more investment
alternatives ( "Investment Options "). The Plan Administrator or its appointed Investment Fiduciary shall
have full responsibility for designating the Investment Options under the Plan and for selecting the
underlying investment vehicle(s) for each designated Investment Option into which a Participant may
direct investment of his or her Directed Account. To the extent allowed by law, neither the Agency, the
Plan Administrator, the Record - keeper, nor the Trustee shall have any responsibility for monitoring the
directions of the Participant nor shall the Agency, the Plan Administrator, the Record - keeper or the
Trustee be liable in any manner for investment or other losses or other liability for following directions
of a Participant.
(c) If Directed Accounts are established, notwithstanding any other provision of this Trust
Agreement, the Agency may appoint the Trustee to provide ministerial administrative services for such
accounts by so indicating in the Agency's Plan, provided that an acceptable service agreement has been
executed by and between the Agency, the Plan Administrator, the Trustee and the Record - keeper.
ARTICLE III
TRUSTEE'S POWERS
3.1 General Trustee's Powers. Except as otherwise provided in Article II, the Trustee shall have
full power and authority with respect to property held in the Trust to do all such acts, take all
proceedings, and exercise all such rights and privileges, whether specifically referred to or not in this
document, as could be done, taken or exercised by the absolute owner, including, without limitation, the
following:
(a) To invest and reinvest the Trust or any part hereof in any one or more kind, type, class,
item or parcel of property, real, personal or mixed, tangible or intangible; or in any one or more kind,
type, class, item or issue of investment or security; or in any one or more kind, type, class or item of
obligation, secured or unsecured; or in any combination of them; and to retain the property associated
with such investment or reinvestment for the period of time that the Trustee deems appropriate.
(b) To buy, sell, assign, transfer, acquire, loan, lease (for any purpose, including mineral
leases, and for terms within or extending beyond the life of this Trust), exchange and in any other
manner to acquire, manage, deal with and dispose of all or any part of the Trust property, for cash or
credit and upon any reasonable terms and conditions.
(c) To make "deposits" with any bank or savings and loan institution, including any such
facility of the Trustee or an affiliate thereof provided that the deposit bears a reasonable rate of interest;
(d) To retain all or any portion of the Trust in cash temporarily awaiting investment or for
the purpose of making distributions or other payments, without liability for interest thereon,
notwithstanding Trustee's receipt of "float" from such uninvested cash;
(e) To place uninvested cash and cash awaiting distribution in one or more mutual funds
and /or commingled investment funds maintained by or made available by the Trustee, and to receive
compensation from the sponsor of such fund(s) for services rendered, separate and apart from any
trustee's fees hereunder. Trustee or Trustee's affiliate may also be compensated for providing investment
advisory and other services to any such mutual fund or commingled investment funds. Agency
55C -25
acknowledges receipt of prospectuses for such funds;
(f) To borrow money for the purposes of the Trust from any source other than a party in
interest of the Plan, with or without giving security and to pay interest, to issue promissory notes and to
secure the repayment thereof by pledging all or any part of the Trust assets;
(g) To take all of the following actions as directed by a fiduciary or other person with
investment discretion over the Trust assets; to vote proxies of any stocks, bonds or other securities; to
give general or special proxies or powers of attorney with or without power of substitution; to exercise
any conversion privileges, subscription rights or other options, and to make any payments incidental
thereto; to consent to or otherwise participate in corporate reorganizations or other changes affecting
corporate securities and to delegate discretionary powers and to pay any assessments or charges in
connection therewith; and generally to exercise any of the powers of an owner with respect to stocks,
bonds, securities or other property held in the Trust;
(h) To make, execute, acknowledge and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or appropriate to carry out the
powers herein granted;
(i) To pay, or cause to be paid, from the Trust any and all real or personal property taxes,
income taxes or other taxes or assessments of any or all kinds levied or assessed upon or with respect to
the Trust or the Plan;
0) To enter into, modify, renew and terminate annuity contracts of deposit administration
of immediate participation or other group or individual type with one or more insurance companies and
to pay or deposit all or any part of the Trust thereunder; to provide in any such contract for the
investment of all or any part of funds so deposited with the insurance company in securities under
separate accounts; to exercise and claim all rights and benefits granted to the contract holder by any such
contracts;
(k) To exercise all the further rights, powers, options and privileges granted, provided for,
or vested in trustees generally under applicable federal or state laws, as amended from time to time, it
being intended that, except as herein otherwise provided, the powers conferred upon the Trustee herein
shall not be construed as being in limitation of any authority conferred by law, but shall be construed as
in addition thereto.
3.2 Additional Powers. In addition to the other powers enumerated above, and whether or not the
Plan Administrator has retained investment authority, the Trustee in any and all events is authorized and
empowered:
(a) To invest funds in any type of interest - bearing account including without limitation,
time certificates of deposit or interest - bearing accounts issued by Union Bank, N.A., or any mutual fund
or short term investment fund ( "Fund "), whether sponsored or advised by Union Bank, N.A. or any
affiliate thereof; Union Bank, N.A. or its affiliate may be compensated for providing investment advice
or other services to such Fund, in addition to any Trustee's fees received pursuant to this Trust
Agreement; provided, that such compensation is reasonable;
(b) To cause all or any part of the Trust to be held in the name of the Trustee (which in
such instance need not disclose its fiduciary capacity) or, as permitted by law, in the name of any
55C -26
nominee, and to acquire for the Trust any investment in bearer form; but the books and records of the
Trust shall at all times show that all such investments are a part of the Trust and the Trustee shall hold
evidences of title to all such investments;
(c) To serve as custodian with respect to the Trust assets with the sole exception of
insurance policy or annuity contracts, the underlying assets of which shall be maintained by the
insurance company issuer;
(d) To employ such agents and counsel as may be reasonably necessary in managing and
protecting the Trust assets and to pay them reasonable compensation; to employ any broker - dealer,
including any broker - dealer affiliated with the Trustee, and pay to such broker - dealer its standard
commissions; to settle, compromise or abandon all claims and demands in favor of or against the Trust;
and to charge any premium on bonds purchased;
(e) In addition to the powers listed herein, to do all other acts necessary or desirable for the
proper administration of the Trust, as though the absolute owner thereof and to exercise and perform any
and all of the other powers and duties specified in this Trust Agreement;
(f) To abandon, compromise, contest, arbitrate or settle claims or demands; to prosecute,
compromise and defend lawsuits, but without obligation to do so, all at the risk and expense of the Trust;
(g) To permit such inspections of documents at the principal office of the Trustee as are
required by law, subpoena or demand by United States agency and to disclose the Agency's name to
issuers of securities in connection with shareholder communications unless directed otherwise in
writing;
(h) To comply with all requirements imposed by applicable state Statutes or other
applicable provisions of state or federal law;
(i) To seek written instructions from the Agency, Plan Administrator or other fiduciary or,
to the extent Participants are permitted to direct the investment of all or any portion of their Accounts
under the Plan, from a Participant, on any matter and await written instructions from such person
without incurring any liability. If at any time the Agency, the Plan Administrator, a fiduciary or
Participant should fail to give directions to the Trustee, the Trustee may but is not required to act in the
manner that in its discretion seems advisable under the circumstances for carrying out the purposes of
this Trust. Such actions shall be conclusive on the Plan Administrator and the Agency and the
Participant if written notice of the proposed action is given to the Plan Administrator five (5) days prior
to the action being taken, and the Trustee receives no response;
(j) As directed by the Plan Administrator:
(i) To cause the benefits provided under the Plan to be paid directly to the persons
entitled thereto under the Plan, and in the amounts and in the manner specified, or to disburse such sums
to the Agency, who shall be responsible to distribute sums due; and make appropriate tax reports to
Participants, Beneficiaries and taxing authorities, and to charge such payments against the Trust with
respect to which such benefits are payable;
(ii) To compensate such executive, consultant, actuarial, accounting, investment,
appraisal, administrative, clerical, secretarial, custodial, depository and legal, personnel and other
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employees or assistants as are engaged by the Plan Administrator in connection with the administration
of the Plan and to pay from the Trust the necessary expenses of such, personnel, employees and
assistants, to the extent not paid by the Agency and directed by the Plan Administrator;
(iii) To impose a reasonable charge to cover the cost of furnishing to Participants or
Beneficiaries upon their written request documents as may be legally required by applicable state or
federal law or regulations;
(iv) To act upon proper directions of the Agency, the Plan Administrator or any other
fiduciary or Participant including directions in writing, or oral instructions which Trustee in its
discretion may follow prior to receipt of written instructions, instruction given by photostatic
teletransmission using facsimile signature, or those instructions which are digitally recorded on the
Trustee's oral recording or VRU communications system. If oral or digital instructions are given, to act
upon those in Trustee's discretion prior to receipt of written instructions. Trustee's recording or lack of
recording of any such oral or digital instructions taken in Trustee's ordinary course of business shall
constitute conclusive proof of Trustee's receipt or non - receipt of the oral or digital or VRU instructions;
In exercising the power and authority under this subparagraph (iv), the Trustee will perform telephonic
verification to the Plan Administrator, or other authorized representative properly designated by the Plan
Administrator or the Agency, or such other security procedure selected by the Plan Administrator prior
to wire transfer of funds as the Trustee may require. The Plan Administrator, the Agency, and the Plan
assume all risk with respect to delays or transfers if the Trustee is unable to reach the Plan Administrator
or other authorized representative properly designated by the Plan Administrator, or in the event of delay
as a result of attempts to comply with any other security procedure selected by the Plan Administrator in
connection with wire transfers or otherwise;
(v) To pay from the Trust the expenses reasonably incurred in the administration of
the Trust as provided in the Plan, to the extent such expenses are not paid by the Agency pursuant to
Section 10.2;
(vi) To maintain insurance for such purposes, in such amounts and with such
companies as the Plan Administrator shall elect, including insurance to cover liability or losses
occurring by reason of the acts or omissions of fiduciaries (but only if such insurance permits recourse
by the insurer against a fiduciary in the case of a breach of a fiduciary obligation by such fiduciary).
3.3 Delegatee. The Plan Administrator may delegate certain authority, powers and duties to an
entity to act in those matters specified in the delegation ( "Delegatee "). Any such delegation must be in a
writing that names and identifies the Delegatee, states the effective date of the delegation, specifies the
authority and duties delegated, is executed by the Plan Administrator and is acknowledged in writing by
the Delegatee, the Trust Administrator (if not the Delegatee) and the Trustee. Such delegation shall be
effective until the Trustee and the Trust Administrator are directed in writing by the Plan Administrator
that the delegation has been rescinded or modified.
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3.4 Directions to Trustee. Except as otherwise provided in this Trust Agreement, all directions to
the Trustee from the Plan Administrator or Delegatee must be in writing and must be signed by the Plan
Administrator or Delegatee, as the case may be. For all purposes of this Trust Agreement, direction
shall include any certification, notice, authorization, application or instruction of the Plan Administrator,
Delegatee or Trustee appropriately communicated. The above notwithstanding direction may be implied
if the Plan Administrator or Delegatee has knowledge of the Trustee's intentions and fails to file written
objection.
The Trustee shall have the power and duty to comply promptly with all proper direction of the Plan
Administrator, or Delegatee, appointed in accordance with the provisions of this Trust Agreement. In
the case of any direction deemed by the Trustee to be unclear or ambiguous the Trustee may seek
written instructions from the Plan Administrator, the Agency or the Delegatee on such matter and await
their written instructions without incurring any liability. If at any time the Plan Administrator or the
Delegatee should fail to give directions to the Trustee, the Trustee may act in the manner that in its
discretion seems advisable under the circumstances for carrying out the purposes of the Trust which may
include not taking any action. The Trustee may request directions or clarification of directions received
and may delay acting until clarification is received. In the absence of timely direction or clarification, or
if the Trustee considers any direction to be a violation of the Trust Agreement or any applicable law, the
Trustee shall in its sole discretion take appropriate action, or refuse to act upon a direction.
3.5 Trust Administrator. The Plan Administrator has appointed PARS as the Trust Administrator.
The Trust Administrator has accepted its appointment subject to the Plan Administrator's delegation of
authority, to act as such, pursuant to Section 3.3 of this Trust Agreement. The Trust Administrator's
duties involve the performance of the following services pursuant to the provisions of this trust
agreement and the Agreement for Administrative Services:
(a) Performing periodic accounting of the Trust;
(b) Directing the Trustee to (i) make distributions from the Trust, as directed and
authorized by the Plan Administrator pursuant to the Agreement for Administrative
Services, to Participants pursuant to the provisions of the Agency's Plan and, (ii)
liquidate assets in order to make such distributions;
(c) Notifying the Investment Fiduciary of the amount of Assets in the Trust available for
further investment and management by the Investment Fiduciary;
(d) Allocating contributions, earnings and expenses to the Trust;
(e) Directing the Trustee to pay insurance premiums, to pay the fees of the Trust
Administrator and to do such other acts as shall be appropriate to carry out the intent
of the Trust.
(f) Such other services as the Agency and the Trust Administrator may agree.
3.6 Additional Trust Administrator Services. The Plan Administrator may at any time retain the
Trust Administrator as its agent to perform any act, keep any records or accounts and make any
computations which are required of the Agency or the Plan Administrator by this Trust Agreement or by
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the Agency's Plan. The Trust Administrator shall be separately compensated for such service and such
services shall not be deemed to be contrary to the Trust Agreement.
3.7 Trust Administrator's Compensation. As may be agreed upon from time to time by the
Agency and Trust Administrator, the Trust Administrator will be paid reasonable compensation for
services rendered or reimbursed for expenses properly and actually incurred in the performance of duties
with respect to the Trust in accordance with Section 53217 of the California Government Code.
3.8 Resignation or Removal of Trust Administrator. The Trust Administrator may resign at any
time by giving at least one hundred twenty (120) days written notice to the Plan Administrator and the
Trustee.
ARTICLE IV
TRUSTEE'S DUTIES
4.1 Powers Subiect to Duties. The Trustee shall exercise any of the foregoing powers from time
to time as required by any applicable federal or state law.
4.2 Records. The Trustee shall maintain or cause to be maintained suitable records, data and
information relating to its functions hereunder. The Trustee shall keep accurate and detailed accounts of
all investments, receipts, disbursements and other actions hereunder. Its books and records relating to
the Trust shall be open to inspection and audit at all reasonable times by the Agency, the Plan
Administrator or their duly authorized representatives.
4.3 Accounts. Within ninety days after the close of each Plan Year and within ninety days after
the resignation or removal of the Trustee as provided in Article VI hereof, the Trustee shall render to the
Agency a written account showing in reasonable summary the investments, receipts, disbursements and
other transactions engaged in by the Trustee during the preceding Plan Year or accounting period with
respect to the Trust. Such written accounts shall set forth the assets and liabilities of the Trust. The
Agency or Plan Administrator shall have ninety days after the Trustee's mailing of each such written
account within which to file with the Trustee written objections. Upon the expiration of each such
period, the Trustee shall be forever released and discharged from all liability and accountability to the
Agency, the Plan Administrator and Participants with respect to the propriety of its acts and transactions
shown in such account except with respect to any such acts or transactions as to which the Agency files
written objections within such ninety -day period with the Trustee.
4.4 Reports. The Trustee shall file such descriptions and reports and shall furnish such
information and make such other publications, disclosures, registrations and other filings as are required
of the Trustee by the Code or any other applicable law or regulation.
4.5 Follow Plan Administrator and Investment Manager Direction. The Trustee shall have the
power and duty to comply promptly with all proper directions of the Plan Administrator, the Agency,
and any duly appointed investment manager. Except as to investment directions received from the Plan
Administrator or investment manager, the Trustee shall not act on any directions or requests received
from Participants.
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ARTICLE V
RESTRICTIONS ON TRANSFER
5.1 Persons to Receive Pavment.
(a) As directed by the Plan Administrator, the Trustee shall, except as otherwise provided
in subsection (b), pay all amounts distributable hereunder only to the person or persons designated under
the Plan or deposit to the Participant's or Beneficiary's checking or savings account and not to any other
person or corporation, and only to the extent of assets held in the Trust. The Plan Administrator's
instructions to the Trustee regarding whether or not to make distributions, and the amount of such
distributions, shall be conclusive on all Participants and Beneficiaries.
(b) In the event any controversy shall arise as to the person or persons to whom any
distribution or payment is to be made by the Trustee, or as to any other matter arising in the
administration of the Plan or Trust, the Trustee may, (i) retain the amount in controversy pending
resolution of the controversy, (ii) file an action seeking declaratory relief, or (iii) interplead the Trust
Assets in issue, and (iv) name the Agency and /or any or all persons making conflicting demands as
necessary parties.
(c) The Trustee shall not be liable for the payment of any interest or income on any amount
withheld or interpleaded under subsection (b).
(d) The expenses incurred by the Trustee for taking any action under subsection (b) shall be
charged by the Trustee to the Trust unless paid by the Agency.
5.2 Assignment and Alienation Prohibited. In accordance with Section 457 of the Code, Trust
Assets shall not be subject to any claims of Agency or other creditors. Additionally, no benefit or
interest available hereunder shall be subject in any manner to assignment or alienation, whether
voluntarily or involuntarily, or to legal process except as permitted in the Internal Revenue Code,
applicable state or federal law, or as provided in the Plan.
ARTICLE VI
RESIGNATION, REMOVAL AND SUCCESSION
6.1 Resignation or Removal of Trustee. The Trustee may resign at any time upon ninety days'
prior written notice to the Agency (which notice may be waived by the Agency). Agency may remove
the Trustee upon ninety days' prior written notice to the Trustee (which notice may be waived by the
Trustee).
6.2 Designation of Successor. Upon notice of the Trustee's resignation or removal, Agency shall
promptly designate a Successor Trustee who will accept transfer of the assets of the Trust. If no
Successor Trustee is designated within thirty days of notice of Trustee's resignation or removal, the Plan
Administrator shall designate a Successor Trustee.
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6.3 Court Appointment of Successor. If neither the Agency nor the Plan Administrator
designates a Successor Trustee within thirty days after the Trustee gives notice of resignation or receives
notice of removal, the Trustee may, at the expense of the Trust, apply to a court of competent
jurisdiction to appoint a Successor Trustee. Until a Successor Trustee is appointed, and all Trust assets
are delivered to the Successor Trustee, the Trustee shall be entitled to be compensated for its services
according to its published fee schedule then in effect for acting as Trustee in accordance with the Plan
and Trust.
6.4 Successor's Powers. A Successor Trustee shall have the same powers and duties as those
conferred upon the original Trustee hereunder. A resigning Trustee shall transfer the Trust Assets and
shall deliver the books, accounts and records of the Trust to the Successor Trustee as soon as
practicable. The resigning Trustee is authorized, however, to reserve such amount from the Assets of
the Trust as may be necessary for the payment of its fees and expenses incurred prior to its resignation,
and the Trust Assets shall remain liable to reimburse the resigning Trustee for any costs, expenses or
attorneys' fees or losses incurred, whether before or after resignation, due solely to Trustee's holding title
to and administration of the Trust Assets.
6.5 Successor's Duties. A Successor Trustee shall have no duty to audit or otherwise inquire into
the acts and transactions of its predecessor.
ARTICLE VII
AMENDMENT
7.1 Power to Amend. The Agency shall have the right at any time, and from time to time, to
modify or amend this Trust Agreement in whole or in part, effective upon thirty days' prior written
notice to the Trustee, provided, however, that the Trustee's duties and responsibilities shall not be
amended without the Trustee's express written consent.
7.2 Limitation on Amendment. No amendment shall be made, at any time, under which any part
of the Trust may be diverted to purposes other than for the exclusive benefit of Participants and their
Beneficiaries.
7.3 Conformity with Law. Notwithstanding anything herein to the contrary, this Trust Agreement
may be amended prospectively or retroactively at any time by the Agency if deemed necessary to
conform to the provisions and requirements of the Internal Revenue Code or regulations promulgated
pursuant thereto in order to maintain the tax - exempt status hereof thereunder, or to conform to the
provisions and requirements of any law, regulation, order or ruling affecting the character or purpose of
the Plan or Trust. No such Amendment shall be effective to add or change the Trustee's powers or
duties absent Trustee's written consent.
ARTICLE VIII
LIABILITIES
8.1 Declaration of Intent. Nothing in this Article purports to relieve a fiduciary from liability for
any responsibility, obligation or duty under any applicable Statutes. However, to the full extent
14
55C -32
permitted by law, it is the intent of this Article to relieve each fiduciary from all liability for any acts or
omissions of any other fiduciary or any other person and to declare the absence of liabilities of all
persons referred to in this Article to the extent not imposed by law or by provisions of this Trust
Agreement. Each of the following Sections, in declaring such limitations, is set forth without limiting
the generality of this Section but in each case shall be subject to the provisions, limitations and policies
set forth in this Section.
8.2 General Limitations of Liabili
(a) No fiduciary shall be liable with respect to a breach of fiduciary duty under any
applicable Statutes if such breach was committed before he or she became a fiduciary or after he or she
ceased to be a fiduciary.
(b) No fiduciary shall be liable for any act or omission of any other person to whom
fiduciary responsibilities (other than Trustee responsibilities) are allocated by the Plan, the Trust
Agreement or by a fiduciary.
8.3 Liability of the Trustee.
(a) The Trustee shall have no powers, duties or responsibilities with regard to the
administration of the Plan or to determine the rights or benefits of any person having or claiming an
interest under the Plan or in the Trust or under this Trust Agreement or to examine or control any
disposition of the Trust or part thereof which is directed by the Plan Administrator.
(b) The Trustee shall have no liability for the adequacy of contributions for the purposes of
the Plan or for enforcement of the payment thereof.
(c) The Trustee shall have no liability for the acts or omissions of the Agency or the Plan
Administrator.
(d) The Trustee shall have no liability for following proper directions of a fiduciary, the
Agency, the Plan Administrator or a Participant when such directions are made in accordance with this
Trust Agreement.
(e) During such period or periods of time, if any person other than the Trustee, including
but not limited to a Participant, is directing the investment and management of Trust Assets, the Trustee
shall have no obligation to determine the existence of any conversion, redemption, exchange,
subscription or other right relating to any securities purchased on the directions of such person if notice
of any such right was given prior to the purchase of such securities. If such notice is given after the
purchase of such securities, the Trustee shall notify the Plan Administrator, which shall transmit the
notice to the directing party. The Trustee shall have no obligation to exercise any such right unless it is
informed of the existence of the right and is instructed to exercise such right, in writing, by a fiduciary or
a Participant through the Plan Administrator within a reasonable time prior to the expiration of such
right.
(f) During such period or periods of time, if the Trustee is directed to purchase securities
issued by any foreign government or agency thereof, or by any corporation domiciled outside of the
United States, it shall be the responsibility of the directing party to advise the Trustee in writing with
15
55C -33
respect to any laws or regulations of any foreign countries or any United States territories or possessions
which shall apply, in any manner whatsoever, to such securities, including, but not limited to, receipt of
dividends or interest by the Trustee for such securities.
(g) If the Plan and Trust cease to be subject to Sections 457 and 501 of the Code, the
Agency shall immediately notify Trustee. Agency shall indemnify the Trustee for any federal or state
income taxes, and any federal estate and state estate or inheritance taxes which the Trustee is required to
pay as a result of a distribution made at the direction of the Plan Administrator, in which event the
Agency shall be subrogated to the right of the Trustee to proceed against such Participant, Beneficiary,
the executor of the estate of a deceased Participant or any other person for reimbursement of the amount
paid and any taxes due.
8.4 Indemnification of Trustee by Aeencv.
(a) The Trustee shall not be liable for, and the Agency agrees to indemnify and hold the
Trustee harmless from and against any claims, demands, loss or liability imposed on the Trustee,
including reasonable attorneys' fees and costs incurred by the Trustee, caused by and related to (i) any
acts taken in accordance with any directions (or any failure to act in the absence of such directions) from
the Plan Administrator, or any other party to whom Plan Administrator has given authority to direct the
Trustee, which the Trustee reasonably believes to have been given by any of them; (ii) the negligence or
willful misconduct of the Plan Administrator, or any other person designated to act on Plan
Administrator's behalf; or (iii) the Plan Administrator's execution of its duties under this Trust
Agreement, except in the event of the Trustee's own negligence or material breach of this Agreement
which directly causes the loss to the Trust.
(b) The Agency further agrees to indemnify the Trustee for and against any claims,
demands or liabilities imposed on the Trustee, including reasonable attorneys' fees and costs incurred by
the Trustee, which exceed amounts payable or available from the Trust, arising as a result of claims
asserted by a third person or persons, not otherwise described in (a), and whether such person or persons
are related to the Trust, for action or failure to take action with respect to Trust Assets.
8.5 Indemnification of Agency by Trustee. The Trustee agrees to indemnify the Agency against,
and hold the Agency harmless from, all liabilities and claims (including reasonable attorney's fees and
costs incurred by the Agency) against the Agency as a result of any breach of fiduciary responsibility by
the Trustee which proximately causes loss to the Trust, and where Trustee knowingly participates in
such a breach, knowingly undertakes to conceal such breach, has actual knowledge of such breach and
fails to take reasonable action to remedy such breach or through its negligence or willful misconduct in
performing its duties under this Agreement, proximately causes loss to the Trust.
8.6 Indemnification of Trustee by Trust Administrator. The Trustee shall not be liable for, and
Trust Administrator shall indemnify and hold the Trustee (including its officers, agents, employees and
attorneys) harmless from and against any claims, demand, loss, costs, expense or liability imposed on
the indemnified party, including reasonable attorneys' fees and costs incurred by the indemnified party,
arising as a result of Trust Administrator's active or passive negligent act or omission or willful
misconduct in the execution or performance of its duties under this Agreement.
16
55C -34
8.7 Indemnification of Trust Administrator by Trustee. The Trust Administrator shall not be
liable for, and Trustee shall indemnify and hold the Trust Administrator (including its officers, agents,
employees and attorneys) harmless from and against any claims, demand, loss, costs, expense or liability
imposed on the indemnified party, including reasonable attorneys' fees and costs incurred by the
indemnified party, arising as a result of Trustee's active or passive negligent act or omission or willful
misconduct in the execution or performance of its duties under this Agreement.
8.8 Indemnification of Agency by Trust Administrator. The Agency shall not be liable for, and
Trust Administrator shall indemnify and hold the Agency (including its officers, agents, employees and
attorneys) harmless from and against any claims, demand, loss, costs, expense or liability imposed on
the indemnified party, including reasonable attorneys' fees and costs incurred by the indemnified party,
arising as a result of Trust Administrator's active or passive negligent act or omission or willful
misconduct in the execution or performance of its duties under this Agreement.
8.9 Indemnification of Trust Administrator by Agency. The Trust Administrator shall not be
liable for, and Agency shall indemnify and hold the Trust Administrator (including its officers, agents,
employees and attorneys) harmless from and against any claims, demand, loss, costs, expense or liability
imposed on the indemnified party, including reasonable attorneys' fees and costs incurred by the
indemnified party, arising as a result of Agency's active or passive negligent act or omission or willful
misconduct in the execution or performance of its duties under this Agreement.
ARTICLE IX
DURATION AND TERMINATION
9.1 Termination. It is intended that this Trust shall be treated as being exempt from tax under
Section 501(a) of the Code and that the Plan referred to herein shall qualify under Section 457(b) of the
Code. However, notwithstanding any other provisions of the Trust, if the Internal Revenue Service is
requested to issue to the Agency a favorable written determination or ruling with respect to the initial
qualification of the Plan and exemption of the Trust from tax and such request is denied, the Trustee
shall, after receiving a written direction from the Plan Administrator, pay to each Participant that portion
of the Trust applicable to said Participant's voluntary contributions, if any, and provided the Plan so
states, pay to the Agency any part of the Trust attributable to Agency contributions then remaining in the
Trustee's possession, less any investment losses and Trustee's fees and costs incurred to date of
distribution. As a condition to such repayment, Agency shall be solely responsible for any tax reporting
and withholding required, and the Agency agrees to indemnify, defend, and hold the Trustee harmless
from all claims, actions, demands, or liabilities arising in connection with such repayment, and provided
further that such repayment will occur within one year after the date the request for qualified status is
denied.
9.2 Exclusive Benefit. This Trust may be terminated at any time by the Agency, and upon such
termination, the Trust Assets shall be distributed by the Trustee as and when directed by the Plan
Administrator in accordance with the provisions of this Trust Agreement and the Plan document. From
the date of termination of the Plan and until the final distribution of the Trust, the Trustee shall continue
to have all the powers provided under this Trust that are necessary or desirable for the orderly
liquidation and distribution of the Trust. In no instance upon any termination, or discontinuance and
subsequent distribution shall the Trust or any part of it be used for, or diverted to, purposes other than
17
55C -35
for the exclusive benefit of Participants, their Beneficiaries, and defraying the administrative expenses of
the Plan and Trust until all Plan liabilities have been satisfied, except in the instance of the failure of the
Trust initially to qualify for tax - exempt status as set forth in Section 9.1 and in the event of a return of
assets mistakenly contributed as set forth in Section 9.3.
9.3 Return of Mistaken Contributions. Notwithstanding any other provision of this Agreement,
it is specifically provided that if a contribution or any portion thereof is made by the Agency by virtue of
a mistake of fact, the Trustee shall, upon written request of the Agency, return such amounts as may be
permitted by law to the Agency.
9.4 Duration. This Trust shall continue in full force and effect for the maximum period of time
permitted by law and in any event until the expiration of twenty -one years after the death of the last
surviving person who was living at the time of execution hereof who at any time becomes a Participant
in the Plan, unless this Trust is sooner terminated in accordance with the Plan or the terms of this Trust
Agreement.
ARTICLE X
MISCELLANEOUS
10.1 Delegation. By written notice to the Trustee, the Plan Administrator or the Agency may
authorize the Trustee to act on matters in the ordinary course of the business of the Trust or on specific
matters upon the signature of its delegate.
10.2 Expenses and Taxes.
(a) The Agency, or at its option, the Trust, shall pay the Trustee its expenses in
administering the Trust and reasonable compensation for its services as Trustee at a rate to be agreed
upon by the parties to this Agreement, based upon Trustee's published fee schedule. However, the
Trustee reserves the right to alter this rate of compensation at any time by providing the Agency with
notice of such change at least thirty days prior to its effective date. Reasonable compensation shall
include compensation for any extraordinary services or computations required, such as determination of
valuation of assets when current market values are not published and interest on funds to cover
overdrafts. The Trustee shall have a lien on the Trust for compensation and for any reasonable expenses
including counsel, appraisal, or accounting fees, and these may be withdrawn from the Trust as and
when viewed and payable, or if Agency has elected to pay expenses of the Trust, may be withdrawn
from the Trust unless paid by the Agency within thirty days after mailing of the written billing by the
Trustee.
(b) Reasonable counsel fees, reasonable costs, expenses, and charges of the Trustee
incurred or made in the performance of its duties, including but not limited to expenses relating to
investment of the Trust such as broker's commissions, stamp taxes, and similar items and all taxes of any
and all kinds that may be levied or assessed under existing or future laws upon or in respect to the Trust
or the income thereof shall be paid from the Trust Assets, unless paid by the Agency.
10.3 Third Parties.
(a) No person dealing with the Trustee shall be required to follow the application of
purchase money paid or money loaned to the Trustee or inquire as to whether the Trustee has complied
55C -36
with the requirements hereof.
(b) In any judicial or administrative proceedings, only the Agency and the Trustee shall be
necessary parties and no Participant or other person having or claiming any interest in the Trust shall be
entitled to any notice or service of process (except as required by law). Any judgment, decision or
award entered in any such proceeding or action shall be conclusive upon all interested persons.
10.4 Successor Agency. If any successor to an Agency continues the Plan adopted by the Agency,
such successor shall concurrently become a successor first party to this Trust Agreement by giving
written notice of its adoption of the Plan and this Trust Agreement to the Trustee by duly authorized
persons; such successor Agency shall become a signatory to this Trust Agreement upon its written notice
to Trustee of the Successor's adoption hereof.
10.5 Relation to Plan. All words and phrases used herein shall have the same meanings as in the
Plan, and this Trust Agreement and the Plan shall be read and construed together. Whenever the Plan
provides that the Trustee shall act as therein prescribed, the Trustee shall be and is hereby authorized
and empowered to do so for all purposes as fully as though specifically so provided herein or so directed
by the Plan Administrator. The Trustee shall furnish the Agency with copies of the Trust Agreement
and all amendments thereto.
10.6 Use of Trust Funds. Except as provided in Section 9.2 and 9.3, under no circumstances shall
any part of the Trust be recoverable by the Agency from the Trustee or from any Participant or former
Participant, his or her Beneficiaries, or any other person or be used for or diverted to purposes other than
for the exclusive purposes of providing benefits to Participants and their Beneficiaries, provided,
however, that:
(a) An Agency's excess contribution may be returned to such Agency in accordance with
the provisions of the Plan, and
(b) The portion, if any, of the Trust attributable to an Agency not required for the
satisfaction of all liabilities to Participants and their Beneficiaries shall, upon such Agency's termination
of the Plan, revert to such Agency.
10.7 Location of Trust Fund Assets. Except as authorized by applicable state or federal laws or
regulations, the indicia of ownership of any assets of the Trust and Plan shall not be maintained outside
the jurisdiction of the District Courts of the United States.
10.8 Arbitration of Disputes. Any dispute under this Agreement shall be resolved by submission
of the issue to a member of the American Arbitration Association who is chosen by the Agency and the
Trustee. If the Agency and the Trustee cannot agree on such a choice, each shall nominate a member of
the American Arbitration Association, and the two nominees will then select an arbitrator. Expenses of
the arbitration shall be paid as decided by the arbitrator. Venue and jurisdation shall be in the State of
California, County of Orange.
10.9 Partial Invalidity. If any provision of this Trust Agreement is held to be invalid or
unenforceable for any reason, this Agreement shall be construed and enforced as if such provisions had
not been included and such illegality or invalidity shall not affect the remaining portions of this Trust
Agreement, unless such invalidity prevents accomplishment of the objectives and purposes of this Trust
19
55C -37
Agreement and the Plan. In the event of any such holding, the parties will immediately amend this Trust
Agreement as necessary to remedy any such defect.
10.10 Construction. This Trust Agreement shall be constructed, administered and enforced
according to the Internal Revenue Code and where state law is applicable, under applicable Statutes and
laws of the State of California applied fairly and equitably in accordance with the purposes of the Plan.
Executed this day of
ADOPTION
20
City of Santa Ana, Sponsor of. PARS Benefit Trust FBO City of Santa Ana PARS 3121 Part -
Time Seasonal Temporary Deferred Compensation Plan Effective
(Signature)
(typed or printed name)
(title)
UNION BANK, N.A.
TRUSTEE
Accepted this _ day of , 20
IC
(Signature)
(typed or printed name)
(title)
PUBLIC AGENCY RETIREMENT SERVICES
TRUST ADMINISTRATOR
Accepted this _ day of , 20
By:
(Signature)
(typed or printed name)
(title)
20
Accepted this _ day of , 20
By:
(Signature)
(typed or printed name)
(title)
55C -38
THE CITY OF SANTA ANA
PUBLIC AGENCY RETIREMENT SYSTEM
3121 PART -TIME SEASONAL TEMPORARY
DEFERRED COMPENSATION PLAN
NB 1:564577.3
Effective
55C -39
INTRODUCTION
The City of Santa Ana (the "Employer ") has adopted this deferred compensation
plan for the benefit of its eligible employees.
It is intended that this plan and the trust established to hold the assets of the plan
shall be an eligible deferred compensation plan under Section 457 of the Internal
Revenue Code of 1986, together with any amendments thereto (the "Code "). It is further
intended that the plan shall meet all of the requirements of a government alternative
retirement system under Code Section 3121(b)(7)(F). It is also intended that this plan
and the trust established hereunder shall meet the requirements of a pension trust under
California Government Code sections 53215 — 53224, or their successor sections. At any
time prior to the satisfaction of all liabilities with respect to participants and their
beneficiaries under the trust created pursuant to this plan, the trust assets shall not be used
for, or diverted to, purposes other than the exclusive benefit of participants or their
beneficiaries, as prescribed in Section 457(g)(1) of the Code.
NB ] :564577.3
55C -40
ARTICLE I
PARTICIPATION
1.1 Eligibility for Benefits.
An Eligible Employee shall become a Participant on the first day the Employee is
not accruing a benefit under another Retirement System provided by the Employer.
1.2 Participation.
Participation of a Participant shall commence as of the date specified in Section
1.1 and shall continue during the Participant's employment with the Employer and until
the occurrence of a Break in Employment or until the Participant is no longer an Eligible
Employee or commences benefit accruals under another Retirement System provided by
the Employer.
An Employee who becomes an Eligible Employee while on an Approved
Absence shall not become a Participant until the end of his or her Approved Absence; but
a Participant who is on Approved Absence shall continue as a Participant during the
period of his or her Approved Absence.
1.3 Reemployment as an Eligible Employee.
An Eligible Employee who has become a Participant in accordance with Section
l .1, but who ceases to be a Participant in accordance with Section 1.2, will again become
a Participant immediately upon meeting the requirements of Section 1.1.
1.4 Qualified Military Service.
Notwithstanding any provision of the Plan to the contrary, contributions, benefits,
and service credit with respect to qualified military service will be provided in
accordance with Section 414(u) of the Code.
N131:564577.3 2
55C -41
1.5 Designation of Beneficiary.
(a) Each Participant shall designate in writing the Beneficiary or Beneficiaries
whom such Participant desires to receive the benefits (if any) that are payable under this
Plan in the event of the Participant's death. Such designation must be evidenced by a
written instrument filed with the Employer, on a form prescribed by the Employer, and
signed by the Participant.
(b) Except as set forth in subsection (c), the Beneficiary of a married
Participant shall be the Participant's spouse at the date of death, unless the written
consent of such spouse is provided upon a form acceptable to the Employer. If no valid
designation of Beneficiary, along with a valid spousal consent, is on file with the
Employer at the time of the death of the Participant, or if for any reason at the sole
discretion of the Employer, such designation is defective, then (except as set forth in
subsection (c)) the spouse of such Participant shall be conclusively deemed to be the
Beneficiary designated to receive such benefit.
(c) The spousal consent required under subsection (b) shall not be required if
Participant declares in writing that one of the following conditions exists:
(i) The Participant is not married;
(ii) The Participant does not know, and has taken all reasonable steps
to determine, the whereabouts of the spouse;
(iii) The spouse is incapable of executing the acknowledgment because
of an incapacitating mental or physical condition;
(iv) The Participant and spouse have executed a marriage settlement
agreement that makes the community property laws inapplicable to the marriage;
or
N131:564577.3 3
55C -42
(v) The current spouse has no identifiable community property interest
in the benefits.
(d) Upon the Employer being provided with written notice of the dissolution
of marriage of a Participant, any earlier designation of the Participant's former spouse as
a Beneficiary shall be treated as though the Participant's former spouse had predeceased
the Participant, unless prior to payment of benefits on behalf of the Participant (i) the
Participant executes and delivers another Beneficiary designation that complies with this
Section 1.5 and that clearly names such former spouse as a Beneficiary, or (ii) there is
delivered to the Plan a domestic relations order providing that the former spouse is to be
treated as the Beneficiary. In any case in which the Participant's former spouse is treated
under the Participant's Beneficiary designation as having predeceased the Participant, no
heirs or other beneficiaries of the former spouse shall receive benefits from the Plan as a
Beneficiary of the Participant except as provided otherwise in the Participant's
Beneficiary designation.
(e) For purposes of this Section 1.5 only: (1) all references to 'marriage' shall
also include 'registered domestic partnerships,' (2) individuals in a 'registered domestic
partnership' shall be considered `married,' and (3) all references to a 'spouse' shall also
include a `registered domestic partner.' A `registered domestic partner' and a `registered
domestic partnership' refers to persons and partnerships satisfying the requirements of
the California Family Code and officially registered as of the date of death with the
Secretary of State as such in accordance with Section 298.5 of the California Family
Code.
NB 1:564577.3 4
55C -43
ARTICLE II
CONTRIBUTIONS
2.1 Employer Contributions.
For each day that an Eligible Employee remains a Participant under this Plan, the
Employer shall contribute * * * * * * ** percent ( * * * * * * * * %) of his or her Compensation to
his or her Account. The Employer shall contribute such amounts to the Trust at such
times as are determined by the Employer in its discretion, but no less frequently than
annually.
2.2 Employee Contributions.
For each day that an Eligible Employee remains a Participant under this Plan, the
Employee shall contribute * * * * * * ** percent ( * * * * * * * * %) of his or her Compensation to
his or her Account. Such contributions shall be pre -tax contributions accomplished by
means of compensation reduction and shall be credited to his or her Account. The
Employee shall contribute such amounts to the Trust at such times as are determined by
the Employer in its discretion, but no less frequently than annually.
2.3 Limitations on Contributions.
(a) Normal Limitation. Except as provided in Subsection (b) below, the
maximum amount which may be contributed on behalf of a Participant for any taxable
year of the Participant (the "Normal Limitation ") shall not exceed the lesser of (i) the
Applicable Dollar Amount or (ii) one hundred percent (100 %) of the Participant's
Compensation.
(b) Catch -Up Limitation. For each of a Participant's last three (3) taxable
years ending before the Participant attains Normal Retirement Age, the maximum amount
which may be contributed on behalf of that Participant for that taxable year (the "Catch-
NB 1:564577.3 5
55C -44
Up Limitation ") shall be the lesser of (i) twice the Applicable Dollar Amount or (ii) the
amount determined under the immediately following sentence. The amount referred to in
Section 2.3(b)(ii) is the sum of (i) the Normal Limitation for the taxable year as
determined under Subsection (a) above, plus (ii) so much of the Normal Limitation for
prior taxable years in which the Participant was eligible to participate under the Plan,
beginning after 1978, as has not been previously used for contributions under Subsection
(a) or this Subsection (b).
The Catch -Up Limitation is available to a Participant during one three -year period
only. If the Participant uses the Catch -Up Limitation and then postpones retirement or
returns to work after retirement, the Catch -Up Limitation shall not be available again.
The provisions of this Subsection (b) shall be interpreted and administered in accordance
with Regulations issued under Code Section 457 including, without limitation, special
rules concerning application of the coordination limits in effect under Code Section 457
(c)(2) prior to 2002 for purposes of determining the amounts referred to in Section
2.3(b)(ii) for years prior to 2002.
2.4 No Other Contributions.
No contributions other than as provided in Section 2.1 and Section 2.2 shall be
made to this Plan. This Plan shall not accept rollover contributions or transfers from
other plans.
2.5 Coordination With Other Plans.
If a Participant participates in more than one eligible deferred compensation plan
(as defined in Section 457(b) of the Code) other than a plan that is a qualified
governmental excess benefit arrangement (as defined in Section 415(m)(3) of the Code),
the maximum deferral under all such eligible deferred compensation plans shall not
NB ] :564577.3 6
55C -45
exceed the Normal Limitation described in Section 2.3(a) (as modified by any adjustment
provided under Section 2.3(b)). The Employer shall distribute the amount of a
Participant's deferral in excess of the distribution limitations stated in Section 2.3,
together with allocable net income, as soon as administratively practicable after the Plan
determines that the amount is an excess deferral. For purposes of determining whether
there is an excess deferral under Section 2.3, all plans under which a Participant
participates as a result of his employment with the Employer shall be treated as a single
plan.
NB 1:564577.3 7
55C -46
ARTICLE III
VESTING
3.1 Vesting.
Each Participant is one hundred percent (100 %) vested in their respective
Accounts at all times.
NB 1:564577.3
55C -47
ARTICLE IV
DISTRIBUTIONS
4.1 Distribution of Benefits.
(a) Benefits shall become distributable to a Participant (or the Participant's
Beneficiary in case of the Participant's death) upon the Participant's Break in
Employment. The amount of the benefits distributable to a Participant shall be the vested
amount credited to such Participant's Account as of the most recent Valuation Date.
Notwithstanding any other provision of this Plan, all distributions shall be in the form of
a single cash lump sum paid as soon as administratively practicable after the date benefits
become distributable.
(b) In the event of the death of a Participant prior to distribution, distribution
of the Participant's vested Account shall be made to his or her Beneficiary in a cash lump
sum as soon as practicable after the Participant's death, but in no event later than the last
day of the calendar year following the calendar year in which the death occurs.
(c) This Plan is subject to the minimum distribution requirements contained in
Code Section 457(d)(2) and 401(a)(9) and the regulations thereunder. These
requirements are set forth in Appendix A of this Plan.
4.2 In Service Distributions
In accordance with Section 457(e)(9)(A), a Participant who is no longer eligible
to participate because he is no longer in the class of Eligible Employees, but who has not
terminated employment with the Employer, shall be eligible for a limited in- service
distribution if (i) the Participant's benefit is not more than five thousand dollars
($5,000.00), (ii) no amount has been deferred under this Plan for the Participant during
NB 1:564577.3 9
55C -48
the two (2) year period ending on the date of the distribution, and (iii) there has been no
previous distribution to the Participant from this Plan under this Section 4.2.
4.3 Qualified Domestic Relations Order.
(a) Subject to procedures established by the Employer, benefits may be paid
from the balance of a Participant's Account in accordance with a Qualified Domestic
Relations Order. This Section 4.3 is included in the Plan to comply with Section 414(p)
of the Code, the regulations thereunder, and such regulations as the Secretary of the
Treasury may publish under Code Sections 414(p)(11) and 414(p)(12).
(b) Procedure.
(i) Upon receipt of a Qualified Domestic Relations Order, the
Employer will establish an Account for the benefit of the Alternate Payee
specified in such order. The Employer will then transfer balances in accordance
with the terms of such order from the Participant's Account to the Alternate
Payee's Account. The Alternate Payee's Account, except as otherwise provided
herein, will remain subject to all the rules of the Plan.
(ii) An Alternate Payee under a Qualified Domestic Relations Order
may designate the investment vehicles in which the balances in the Alternate
Payee's Account will be invested, limited to the investment alternatives provided
by the Plan.
(iii) An Alternate Payee under a Qualified Domestic Relations Order
may designate beneficiaries to receive any amount to which the Alternate Payee
may be entitled to receive in the event of death.
(iv) All amounts credited to an Alternate Payee's Account will be
payable to the Alternate Payee or the Alternate Payee's beneficiary in accordance
N131:564577.3 10
55C -49
with the terms of this Plan and the Qualified Domestic Relations Order. Such an
order may provide for payment to the Alternate Payee prior to the Participant's
Break in Employment.
4.4 Direct Rollovers.
(a) Availability. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under this Plan, a distributee may elect,
at the time and in the manner prescribed by the Employer, to have any portion of an
Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by
the distributee in a Direct Rollover.
(b) Definitions. For purposes of this Section 4.4, the following terms shall
have the meanings set forth below.
(i) Eligible Rollover Distribution. An Eligible Rollover Distribution
is any distribution of all or any portion of the balance to the credit of the
distributee, except that an Eligible Rollover Distribution does not include: any
distribution that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period of ten years or more;
any distribution to the extent such distribution is required under Section 401(a)(9)
of the Code, any hardship distribution, and the portion of any distribution that is
not includible in gross income.
(ii) Eligible Retirement Plan. An Eligible Retirement Plan is an
individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code, a qualified
NB 1:564577.3 11
55C -50
trust described in Section 401(a) of the Code, an annuity plan described in Section
403(a) of the Code, an eligible deferred compensation plan described in Section
457(b) of the Code which is maintained by an eligible employer described in
Section 457(e)(1)(A) of the Code, or an annuity contract described in Section
403(b) that accepts the distributee's Eligible Rollover Distribution. With respect
to Eligible Rollover Distributions made on or after January 1, 2008, "Eligible
Retirement Plan" shall also include a Roth IRA as described in Section 408A(b)
of the Code, provided that the distributee is not restricted from making such a
rollover from the Plan to a Roth IRA pursuant to Section 408A(c) of the Code.
A distributee includes an Employee or former Employee. In addition, the
Employee's or former Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is the Alternate Payee under a
Qualified Domestic Relations Order, as defined in Section 414(p) of the Code, are
distributees with regard to the interest of the spouse or former spouse. In addition,
a Beneficiary other than an individual described in the preceding sentence is a
distributee with regard to the interest of the Participant, subject to the limitation
that an Eligible Retirement Plan with respect to such distributee is an individual
retirement account or individual retirement annuity that will be treated as an
inherited individual retirement account or annuity under Section 402(c)(11) of the
Code.
(iii) Direct Rollover. A Direct Rollover is a payment by the Plan to the
Eligible Retirement Plan specified by the distributee.
NB 1:564577.3 12
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4.5 Purchase of Service Credit.
If a Participant is also a participant in a defined benefit governmental plan (as
defined in Code Section 414(d)), such Participant may request that the Employer transfer
amounts from his or her Account for (a) the purchase of permissive service credit (as
defined in Code Section 415(n)(3)(A)) under such plan, or (b) a repayment to which
Code Section 415 does not apply by reason of Code Section 415(k)(3). Such transfer
requests shall be granted in the sole discretion of the Employer, and if granted, shall be
made directly to the defined benefit governmental plan.
NB 1:564577.3 13
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ARTICLE V
ADMINISTRATION, AMENDMENT AND TERMINATION
5.1 Rules and Regulations.
The Employer has full discretionary authority to supervise and control the
operation of this Plan in accordance with its terms and may make rules and regulations
for the administration of this Plan that are not inconsistent with the terms and provisions
hereof. The Employer shall in its discretion determine any questions arising in
connection with the interpretation, application or administration of the Plan (including
any question of fact) and its decisions or actions in respect thereof shall be conclusive
and binding upon all persons and parties.
The Employer shall have all discretionary powers necessary to accomplish its
purposes, including, but not by way of limitation, the following:
(a) To determine all questions relating to an Employee's eligibility;
(b) To construe and interpret the terms and provisions of the Plan and to
determine any question of fact;
(c) To compute, certify to, and direct the Trustee with regard to the amount
and kind of benefits payable to the Participants and their Beneficiaries;
(d) To authorize all disbursements by the Trustee from the Trust;
(e) To maintain all records that may be necessary for the administration of the
Plan other than those maintained by the Trustee; and
(f) To appoint a plan administrator or any other agent, and to delegate to them
or to the Trustee such powers and duties in connection with the administration of the Plan
as it may from time to time prescribe, and to designate each such administrator or agent
as a fiduciary with regard to matters delegated to him.
NB1:564577.3 14
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With respect to management and control of investments, the Employer shall have
the power to direct the Trustee in writing with respect to the investment of the Trust
assets or any part thereof.
Expenses and fees in connection with the administration of the Plan and the Trust
shall be paid from the Trust assets to the fullest extent permitted by law, unless the
Employer determines otherwise. In accordance with Section 53217 of the California
Government Code, the Employer may elect to make contributions to the Trust sufficient
to defray the expenses of administering the Plan or may pay such expenses directly.
5.2 Amendment and Termination.
The Employer shall have the right to amend, modify or terminate this Plan at any
time. The Employer shall not be liable for the payment of any benefits under this Plan
and all benefits hereunder shall be payable solely from the assets of the Trust.
N131:564577.3 15
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ARTICLE VI
MISCELLANEOUS
6.1 Participant's Right Not Subject to Execution.
The right of a Participant to a benefit under this Plan is not assignable and is not
subject to execution or any other process whatsoever, except to the extent permitted by
the Code of Civil Procedure and the Family Code of the State of California. Any
payment hereunder required under the California Family Code to a person other than the
Participant must not alter the form or amount of benefits hereunder except to the extent
provided in a Qualified Domestic Relations Order (as defined in Code Section 414(p))
prior to the Participant's Break in Employment.
6.2 Investment.
All contributions, interest earned, and any assets of the Plan shall at all times be
invested and managed in accordance with the requirements of the California Government
Code.
6.3 Valuation.
The value of the Trust under the Plan shall be established periodically as
determined by the Employer in its discretion (but no less frequently than annually) and
investment gains and losses thereon shall be allocated to the Participants' Accounts.
Notwithstanding anything to the contrary herein, if the Employer determines that
Accounts should be valued on a more frequent basis or that an alternative method of
allocating earnings and losses would better serve the interests of the Participants or their
Beneficiaries or could more readily be implemented, the Employer may make such
changes; provided that any alternative method must result in Plan earnings being
allocated on the general basis of Account balances.
N131:564577.3 16
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6.4 Unclaimed Benefits.
Each Participant and Beneficiary of a deceased Participant shall file with the
Employer from time to time in writing, his or her home address and each change of home
address. Any communication addressed to the Participant or the Beneficiary at his or her
last home address filed with the Employer, or if no such address was filed, then at his or
her last home address as shown on the Employer's records, shall be binding on the
Participant or Beneficiary for all purposes of the Plan. The Employer shall not be
obligated to search for or ascertain the whereabouts of any Participant or Beneficiary, and
the Participant's Account balance shall be subject to the abandoned property law of the
applicable jurisdiction.
NBI. 564577.3 17
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ARTICLE VII
DEFINITIONS
7.1 Definitions.
"Account" means the account maintained by the Employer for each Participant
that is credited with the amounts provided herein.
"Alternate Payee" means any spouse, former spouse, child or other dependent of
a Participant who is recognized by a Domestic Relations Order (as defined under
"Qualified Domestic Relations Order" below) as having a right to receive all, or a portion
of, the benefits payable under this Plan with respect to such Participant.
"Applicable Dollar Amount" means the "applicable dollar amount" as defined
in Code Section 457(e)(15) (as adjusted from time -to -time as set forth in Code Section
457(e)(15)).
"Approved Absence" means a leave of absence (without pay) granted to an
Employee under the Employer's established leave policy.
"Beneficiary" means the person, persons, trust or trusts designated by a
Participant, or, in the absence of a designation, entitled by will or the laws of descent and
distribution, to receive the benefit specified under this Plan if the Participant dies and
means the Participant's executor or administrator if no other beneficiary is designated and
able to act under the circumstances.
"Break in Employment" means any termination of employment by reason of
resignation, discharge, retirement, disability, death, or other event constituting a
"severance from employment" as defined under Code Section 457(d)(1)(A)(ii).
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
NB 1:564577.3 18
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"Compensation" means all compensation paid to a Participant that is attributable
to services performed for the Employer and is includible in the Participant's gross income
for the Plan Year. Notwithstanding the foregoing, Compensation shall have the meaning
of "includible compensation" as defined in Code Section 457(e).
"Effective Date" means
"Eligible Employee" means all of those Employees of the Employer whose
participation in this Plan is not prohibited or restricted by the provisions of a collective
bargaining agreement or another plan or retirement system maintained by the Employer.
Additionally, Employees who are exempt from coverage under Social Security by federal
law or regulation shall not be Eligible Employees.
"Employee" means an employee of the Employer.
"Employer" means the City of Santa Ana that has adopted this Plan.
"Normal Retirement Age" means the range of ages from 55 through and
including 70 1/2 as designated by the Participant. Any Participant who works beyond
age 70 1/2 may designate a Normal Retirement Age greater than 70 1/2; provided,
however that Normal Retirement Age may not be later than the date or age at which the
Participant terminates employment with the Employer.
"Participant" means a Participant under Article I hereof.
"Plan" means the City of Santa Ana Public Agency Retirement System 3121
Part-Time Seasonal Temporary Deferred Compensation Plan.
"Plan Year" means the consecutive twelve -month period beginning on July 1
and ending on June 30.
"Qualified Domestic Relations Order" means a Domestic Relations Order (as
defined herein) which (a) creates or recognizes the existence of an Alternate Payee's right
N131:564577.3
IM
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to, or assigns to an Alternate Payee the right to, receive all or a portion of the benefits
payable to a Participant under this Plan; (b) clearly specifies (i) the name and the last
known mailing address of the Participant and the name and mailing address of each
Alternate Payee covered by the order, (ii) the amount or percentage of the Participant's
benefits to be paid by this Plan to each such Alternate Payee, or the manner in which such
amount or percentage is to be determined, (iii) the number of payments or period to
which such order applies and (iv) that it applies to this Plan; and (c) does not (i) require
this Plan to provide any type or form of benefit, or any option, not otherwise provided
under the Plan, (ii) require this Plan to provide increased benefits (determined on the
basis of actuarial value), or (iii) require the payment of benefits to an Alternate Payee
which are required to be paid to another Alternate Payee under another order previously
determined to be a Qualified Domestic Relations Order. For purposes of this Plan, a
"Domestic Relations Order" means any judgment, decree, or order (including approval of
a property settlement agreement) which (a) relates to the provisions of child support,
alimony payments, or marital property rights to a spouse, former spouse, child, or other
dependent of a Participant and (b) is made pursuant to a State domestic relations law
(including a community property law).
"Retirement System" means any plan that meets the requirements for a
retirement system under Section 3121(b)(7)(F) of the Code and the final Regulations
thereunder.
"Social Security" means the Social Security program as set forth in Title 42 of
the United States Code, section 301 et sea.
"Trust" means the trust established as part of the Public Agency Retirement
Trust to hold the assets of the Plan.
NB1:564577.3 20
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"Trustee" means the trustee of the Trust.
"Valuation Date" means the last day of the Plan Year or such other day on which
the assets of the Trust are valued and the value of each Participant's Account is
determined.
NB 1:5645773 21
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ADOPTION OF
THE CITY OF SANTA ANA
PUBLIC AGENCY RETIREMENT SYSTEM
3121 PART -TIME SEASONAL TEMPORARY
DEFERRED COMPENSATION PLAN
The City of Santa Ana Public Agency Retirement System 3121 Part -Time
Seasonal Temporary Deferred Compensation Plan is hereby adopted effective
TITLE:
DATE:
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55C -62
TABLE OF CONTENTS
Introduction ..............................
Article I Participation ....................... ...............................
1.1 Eligibility for Benefits ..............................
1.2 Participation ............... ...............................
1.3 Reemployment as an Eligible Employee..
1.4 Qualified Military Service ........................
1.5 Designation of Beneficiary .......................
Page
.............. ............................... 2
.............. ............................... 2
.............. ............................... 2
.............. ............................... 2
.............. ............................... 2
.............. ............................... 3
ArticleII Contributions ....................................................................... ..............................5
2.1 Employer Contributions .............................................. ............................... 5
2.2 Employee Contributions .............................................. ............................... 5
2.3 Limitations on Contributions ....................................... ............................... 5
2.4 No Other Contributions ............................................... ............................... 6
2.5 Coordination With Other Plans ................................... ............................... 6
ArticleIII Vesting ............................................................................... ..............................8
3.1 Vesting .......................................................................... ..............................8
ArticleIV Distributions ..................................................................... ............................... 9
4.1 Distribution of Benefits ............................................... ............................... 9
4.2 In Service Distributions .............................................. ............................... 9
4.3 Qualified Domestic Relations Order ......................... ............................... 10
4.4 Direct Rollovers ........................................................ ............................... 11
4.5 Purchase of Service Credit ........................................ ............................... 13
Article V Administration, Amendment And Termination ............... ............................... 14
5.1 Rules and Regulations ............................................... ............................... 14
5.2 Amendment and Termination .................................... ............................... 15
ArticleVI Miscellaneous ................................................................. ............................... 16
6.1 Participant's Right Not Subject to Execution ............ ............................... 16
6.2 Investment ................................................................. ............................... 16
NB 1:564577.3
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TABLE OF CONTENTS
(continued)
6.3 Valuation ...................................... ...............................
6.4 Unclaimed Benefits ...................... ...............................
Article VII Definitions ........................................ ...............................
7.1 Definitions .................................... ...............................
Appendix A Minimum Distribution Requirements ...........................
NB 1:564577.3 -ii-
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Page
.......................... 16
.......................... 17
.............. 18
.............. 18
........................ A -1
APPENDIX A
Minimum Distribution Requirements
A.1 General Rules.
(a) Effective Date. The provisions of this Appendix A will apply for purposes of
determining required minimum distributions for calendar years beginning with the
2003 calendar year.
(b) Precedence. The requirements of this Appendix A will take precedence over any
inconsistent provisions of the Plan provided that this Appendix A shall not be
considered to allow a Participant or Beneficiary to delay a distribution or elect an
optional form of benefit not otherwise provided in the Plan.
(c) Requirements of Treasury Regulations Incorporated. All distributions required
under this Appendix A will be determined and made in accordance with the
Treasury regulations under Section 401(a)(9) of the Internal Revenue Code.
A.2 Time and Manner of Distribution.
(a) Required Beginning Date. The Participant's entire interest will be distributed, or
begin to be distributed, to the Participant no later than the Participant's Required
Beginning Date.
(b) Death of Participant Before Distributions Begin. If the Participant dies before
distributions begin, the Participant's entire interest will be distributed, or begin to
be distributed, no later than as follows:
(1) If the Participant's surviving spouse is the Participant's sole Designated
Beneficiary, then, except as provided elsewhere in this Appendix A,
distributions to the surviving spouse will begin by December 31 of the
calendar year immediately following the calendar year in which the
Participant died, or by December 31 of the calendar year in which the
Participant would have attained age 70'/2, if later.
(2) If the Participant's surviving spouse is not the Participant's sole
Designated Beneficiary, then, except as provided elsewhere in this
Appendix A, distributions to the Designated Beneficiary will begin by
December 31 of the calendar year immediately following the calendar year
in which the Participant died.
(3) If there is no Designated Beneficiary as of September 30 of the year
following the year of the Participant's death, the Participant's entire
interest will be distributed by December 31 of the calendar year containing
the fifth anniversary of the Participant's death.
(4) If the Participant's surviving spouse is the Participant's sole Designated
Beneficiary and the surviving spouse dies after the Participant but before
NB 1:564577.3 A-]
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distributions to the surviving spouse begin, this Section A.2(b), other than
Section A.2(b)(1), will apply as if the surviving spouse were the
Participant.
For purposes of this Section A.2(b) and Section A.4, unless Section A.2(b)(4)
applies, distributions are considered to begin on the Participant's Required
Beginning Date. If Section A.2(b)(4) applies, distributions are considered to
begin on the date distributions are required to begin to the surviving spouse under
Section A.2(b)(1).
(c) Forms of Distribution. Unless the Participant's interest is distributed in the form
of a single sum on or before the Required Beginning Date, as of the first
Distribution Calendar Year distributions will be made in accordance with Sections
A.3 and A.4 of this Appendix A.
A.3 Required Minimum Distributions During Participant's Lifetime.
(a) Amount of Required Minimum Distribution For Each Distribution Calendar Year.
During the Participant's lifetime, the minimum amount that will be distributed for
each Distribution Calendar Year is the lesser of:
(l) the quotient obtained by dividing the Participant's Account Balance by the
distribution period in the Uniform Lifetime Table set forth in Section
1.401(a)(9) -9 of the Treasury regulations, using the Participant's age as of
the Participant's birthday in the Distribution Calendar Year; or
(2) if the Participant's sole Designated Beneficiary for the Distribution
Calendar Year is the Participant's spouse, the quotient obtained by
dividing the Participant's Account Balance by the number in the Joint and
Last Survivor Table set forth in Section 1.401(a)(9) -9 of the Treasury
regulations, using the Participant's and spouse's attained ages as of the
Participant's and spouse's birthdays in the Distribution Calendar Year.
(b) Lifetime Required Minimum Distributions Continue Through Year of
Participant's Death. Required minimum distributions will be determined under
this Section A.3 beginning with the first Distribution Calendar Year and up to and
including the Distribution Calendar Year that includes the Participant's date of
death.
A.4 Required Minimum Distributions After Participant's Death.
(a) Death On or After Date Distributions Begin.
(1) Participant Survived by Designated Beneficiary. If the Participant dies on
or after the date distributions begin and there is a Designated Beneficiary,
the minimum amount that will be distributed for each Distribution
Calendar Year after the year of the Participant's death is the quotient
obtained by dividing the Participant's Account Balance by the longer of
the remaining Life Expectancy of the Participant or the remaining Life
N131:564577.3 A -2
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Expectancy of the Participant's Designated Beneficiary, determined as
follows:
(A) The Participant's remaining Life Expectancy is calculated using
the age of the Participant in the year of death, reduced by one for
each subsequent year.
(B) If the Participant's surviving spouse is the Participant's sole
Designated Beneficiary, the remaining Life Expectancy of the
surviving spouse is calculated for each Distribution Calendar Year
after the year of the Participant's death using the surviving
spouse's age as of the spouse's birthday in that year. For
Distribution Calendar Years after the year of the surviving
spouse's death, the remaining Life Expectancy of the surviving
spouse is calculated using the age of the surviving spouse as of the
spouse's birthday in the calendar year of the spouse's death,
reduced by one for each subsequent calendar year.
(C) If the Participant's surviving spouse is not the Participant's sole
Designated Beneficiary, the Designated Beneficiary's remaining
Life Expectancy is calculated using the age of the beneficiary in
the year following the year of the Participant's death, reduced by
one for each subsequent year.
(2) No Designated Beneficiary. If the Participant dies on or after the date
distributions begin and there is no Designated Beneficiary as of September
30 of the year after the year of the Participant's death, the minimum
amount that will be distributed for each Distribution Calendar Year after
the year of the Participant's death is the quotient obtained by dividing the
Participant's Account Balance by the Participant's remaining Life
Expectancy calculated using the age of the Participant in the year of death,
reduced by one for each subsequent year.
(b) Death Before Date Distributions Begin.
(1) Participant Survived by Designated Beneficiary. Except as provided
elsewhere in this Appendix A, if the Participant dies before the date
distributions begin and there is a Designated Beneficiary, the minimum
amount that will be distributed for each Distribution Calendar Year after
the year of the Participant's death is the quotient obtained by dividing the
Participant's Account Balance by the remaining Life Expectancy of the
Participant's Designated Beneficiary, determined as provided in Section
AA(a).
(2) No Designated Beneficiary. If the Participant dies before the date
distributions begin and there is no Designated Beneficiary as of September
30 of the year following the year of the Participant's death, distribution of
the Participant's entire interest will be completed by December 31 of the
calendar year containing the fifth anniversary of the Participant's death.
N131 564577.3 A_3
55C -67
(3) Death of Surviving Spouse Before Distributions to Surviving Spouse Are
Required to Begin. If the Participant dies before the date distributions
begin, the Participant's surviving spouse is the Participant's sole
Designated Beneficiary, and the surviving spouse dies before distributions
are required to begin to the surviving spouse under Section A.2(b)(1), this
Section AA(b) will apply as if the surviving spouse were the Participant.
A.5 Definitions. For purposes of this Appendix A, the following terms shall have the
meanings set forth below:
(a) Designated Beneficiary. The individual who is designated as the beneficiary
under Section 1.5 of the Plan is the designated beneficiary under Section
401(a)(9) of the Internal Revenue Code and Section 1.401(a)(9) -1, Q &A -4, of the
Treasury regulations.
(b) Distribution Calendar Year. A calendar year for which a minimum distribution is
required. For distributions beginning before the Participant's death, the first
distribution calendar year is the calendar year immediately preceding the calendar
year which contains the Participant's Required Beginning Date. For distributions
beginning after the Participant's death, the first distribution calendar year is the
calendar year in which distributions are required to begin under Section A.2(b)
The required minimum distribution for the participant's first distribution calendar
year will be made on or before the Participant's Required Beginning Date. The
required minimum distribution for other distribution calendar years, including the
required minimum distribution for the distribution calendar year in which the
Participant's Required Beginning Date occurs, will be made on or before
December 31 of that distribution calendar year.
(c) Life Expectancy. Life expectancy as computed by use of the Single Life Table in
Section 1.401(a)(9) -9 of the Treasury regulations.
(d) Participant's Account Balance. The account balance as of the last valuation date
in the calendar year immediately preceding the Distribution Calendar Year
(valuation calendar year) increased by the amount of any contributions made and
allocated or forfeitures allocated to the account balance as of dates in the
valuation calendar year after the valuation date and decreased by distributions
made in the valuation calendar year after the valuation date. The account balance
for the valuation calendar year includes any amounts rolled over or transferred to
the Plan either in the valuation calendar year or in the distribution calendar year if
distributed or transferred in the valuation calendar year.
(e) Required Beginning Date. The Required Beginning Date means April 1 of the
calendar year following the later of (a) the calendar year in which the Participant
attains age seventy and a half (70 %2), or (b) the calendar year in which the
Employee has a Break in Employment.
N131:564577.3 A -4
55C -68
A.6 Effective Date of Plan Amendment for Section 401(a)(9) Final and
Temporary Treasury Regulations.
Appendix A applies for purposes of determining required minimum distributions for
Distribution Calendar Years beginning with the 2003 calendar year.
NB 1:564577.3 A_5
55C -69
An extra section break has been inserted above this paragraph. Do not delete this section
break if you plan to add text after the Table of Contents /Authorities. Deleting this break
will cause Table of Contents /Authorities headers and footers to appear on any pages
following the Table of Contents /Authorities.
NB 1:564577.3 A-1
55C -70
NB 1:564577.3 A_2
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55C -72
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
OCTOBER 4, 2010
TITLE:
PUBLIC HEARING -AMENDMENT
APPLICATION NO. 2010-01 AND CONDITIONAL
USE PERMIT NO. 2010-15 TO ALLOW A
RESIDENTIAL CARE FACILITY FOR THE
ELDERLY AT 1600 EAST FIRST STREET -
AZURE PLAZA PARTNERS, LLC, APPLICANT
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on Vt Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO <�O (yl '-, / ��
FILE NUMBER
Adopt an ordinance approving Amendment Application No. 2010 -01.
2. Adopt a resolution approving Conditional Use Permit No. 2010 -15 as conditioned.
PLANNING COMMISSION ACTION
On September 13, 2010, the Planning Commission recommended that the City Council adopt an
ordinance approving Amendment Application No. 2010 -01; and adopt a resolution approving
Conditional Use Permit No. 2010 -15 as conditioned by a vote of 7:0 to allow a residential care facility
for the elderly and change the zoning for a portion of the lot from Single Family Residential (R1) and
Multiple Family Residential (R3) to General Commercial (C2) zoning for property at 1600 East First
Street (Exhibit A). The Planning Commission added a condition to require the Commission's review
and approval of the final landscape plan prior to permit issuance.
FISCAL IMPACT
There is no fiscal impact associated with this action.
Jay V. Trevino
Executive Director
Planning & Building Agency
LL:rb
LLlreportslpc&za\cupl0- 15aa10 -01 Azure Plaza.cc
Exhibit: A. Planning Commission Staff Report
75A -1
75A -2
REQUEST FOR
Planning Commission Action
PLANNING COMMISSION MEETING DATE:
SEPTEMBER 13, 2010
TITLE:
PUBLIC HEARING — FILED BY AZURE PLAZA
PARTNERS, LLC FOR AMENDMENT APPLICATION
NO. 2010-01 AND CONDITIONAL USE PERMIT
NO. 2010-15 TO ALLOW A RESIDENTIAL CARE
FACILITY FOR THE ELDERLY AT 1600 EAST FIRST
STREET
Prepared by Lucy Linnaus
xecutive Director
RECOMMENDED ACTION
Recommend that the City Council:
PLANNING COMMISSION SECRETARY
APPROVED
❑ As Recommended
❑ As Amended
❑ Set Public Hearing For
DENIED
❑ Applicant's Request
❑ Staff Recommendation
CONTINUED TO
Planning Mana r
Adopt an ordinance approving Amendment Application No. 2010 -01.
2. Adopt a resolution approving Conditional Use Permit No. 2010 -15 as conditioned.
DISCUSSION
Request of the Applicant
Nabile Anz of Azure Plaza Partners, LLC is requesting approval of Amendment Application (AA) No.
2010 -01 to change the zoning designation of a portion of the site from Single Family Residence (R1)
and Multiple - Family Residence (R3) to General Commercial (C2). Additionally, the applicant is
requesting approval of Conditional Use Permit (CUP) No. 2010 -15 to allow the conversion of an
existing hotel and restaurant into a licensed residential care facility for the elderly (RCFE) at 1600
East First Street.
Property Description
The project site is located midblock, just west of the southwest corner of First and Lyon Streets.
The site is an L- shaped, flat, 3.13 acre parcel developed with a 10 -story, 150 -room hotel and a
detached single story restaurant constructed in 1971. A total of 182 parking spaces are provided
for the site. A 0.49 acre portion of the parcel located towards the southeast corner of the lot is
currently undeveloped.
The site has three zoning designations: 1.62 acres of the site are zoned General Commercial (C2);
1.02 acres are zoned Single - Family Residence (R1) and 0.49 acres are zoned Multiple - Family
Residence (R3). The General Plan land use designation for the entire site is General Commercial
(GC). Surrounding land uses include commercial uses to the north, a mortuary to the east, Santa
Ana Unified School district offices to the south and office buildings to the west (Exhibits 1, 2 and 3).
Exhibit A
1
Amendment Application No. 2010 -01
Conditional Use Permit No. 2010 -15
September 13, 2010
Page 2
Project Description
Azure Plaza Partners, LLC is proposing to convert an existing 150 -room hotel into a 128 -room
licensed residential care facility for the elderly (RCFE). The facility will provide 24 -hour care and
supervision for up to 147 residents age 60 and above. The first floor will be modified to
accommodate a new entrance lobby, sitting area, dining rooms, medical clinic, beauty salon,
exercise room, therapy pool, and three rooms to house non - ambulatory residents. The existing
swimming pool and amenity deck will continue to operate and be restored to meet accessibility
standards. The second through tenth floor will house most of the residents in rooms that will vary in
size from 335 to 425 square feet. Each room will have private accessible bathroom facilities, a
closet and a small counter, but no kitchen facilities as these are rooms within a care home
environment and not individual residential units. The central core on each floor will have a
community space intended to provide a variety of stimulating activities for the residents. These will
include meeting and business rooms, library, theater, card /game room, arts and crafts room,
billiards/sports room, dance studio and worship area. Additional service facilities, such as private
resident storage, will be provided on the seventh and eighth floors and a common laundry facility on
the fourth floor.
The applicant is also proposing several site improvements. The primary vehicular entrance and
interior site circulation will be simplified and flanked by plazas. The plaza adjacent to the restaurant
will have a trellis and canopy trees to provide a comfortable outdoor seating area for the restaurant,
while the plaza to the west will be developed with canopy trees, seating and a water feature to define
the entrance and provide a pedestrian friendly connection to the street. On the undeveloped portion
of the lot will be a new parking area built in compliance with city standards. The existing parking lot
will be repaired as needed and re- striped, and the landscaping and exterior lighting will be restored
to comply with current codes.
The existing restaurant will be remodeled to better serve the tower residents as well as the public at
large. The lounge area will be converted into a juice/ice cream bar. Another portion of the
restaurant will be converted into a coffee shop /deli. A third portion of the existing restaurant will
continue to operate as a full service restaurant. The kitchen will prepare meals for the restaurant,
coffee shop /deli and the residents of the tower. The restaurant will operate seven -days a week from
6:00 am to 11:00 pm. No Alcohol Beverage Control license is requested.
Lastly, exterior modifications to the tower and restaurant are also being proposed in order to update
its architecture. The buildings will be painted in muted colors and the glazing system will be replaced
with a more energy efficient system. To update the architectural style of the tower, a new horizontal
louver system will be installed over the open stairs and elevator shaft, and a new roof railing feature
painted in a contrasting color will be added to the top of the tower. The mansards on the restaurant
and porte- cochere will be removed and the architecture will be streamlined. Trellises will be added
to accent the restaurant entrances and seating areas (Exhibits 4, 5 and 6).
Amendment Application No. 2010 -01
Conditional Use Permit No. 2010 -15
September 13, 2010
Page 3
Analysis of the Issues
The proposed project entails two separate actions for consideration: The rezoning of portions of the
lot which are zoned R1 and R3 to C2 and the conversion of an existing hotel and restaurant into a
licensed residential care facility for the elderly (RCFE). The section below will analyze each of these
actions.
Amendment Application
As a mature city, the City of Santa Ana has seen many changes in its policies that direct
development. As such, there are many parcels that have zoning designations that no longer are
consistent with the General Plan land use designation or even with the development of the site. The
hotel and restaurant were entitled in 1969 with a use variance that allowed development on the
portion of the lot that was zoned R1. In 1969, the site had split zoning; the northern 183 feet
adjacent to First Street was zoned C2, while the remainder of the lot was zoned R1. In 1989, the
zoning of the portion of the lot occupied by the tower was changed from R1 to C2 to bring
consistency between the land use, the zoning designation and the General Plan land use
designation, leaving a small island in the center of the lot zoned R1. It has been the Planning
Division's policy to correct situations like this, where the development is consistent with the General
Plan land use designation, but inconsistent with the zoning, as projects are brought forward. As
such, the proposed zone change represents only a clean -up to create consistency between the
zoning and general plan land use designation.
Conditional Use Permit
The Santa Ana Municipal Code allows care homes in the General Commercial (C2) zoning district
subject to a conditional use permit. Care homes are commercial facilities that are maintained and
operated to provide living accommodations for and 24 -hour care to persons in need of personal
services, supervision, or assistance essential for sustaining the activities of daily living. Residential
Care Facilities for the Elderly (RFCE) are non — medical facilities that provide room, meals,
housekeeping and supervision; distribute medication; and provide personal care assistance with
basic activities like hygiene, dressing, eating, bathing and transportation for the elderly. This level
of care and supervision is for people who are unable to live by themselves, but who do not need
24 -hour nursing care. RCFEs are considered non - medical facilities and are not required to have
nurses, certified nursing assistants or doctors on staff. RFCEs or Assisted Living Facilities, as they
are sometimes also known, must meet care and safety standards set by the State and are licensed
and inspected by the Department of Social Services, Community Care Licensing (CCL). The State
not only regulates the service providers, but also ensures compliance with the City standards.
Since 1996, Azure Partners has successfully embarked on three hotel conversion projects in the Los
Angeles area and have converted more than 300 hotel rooms into senior housing. Since this is their
first proposal for a Residential Care Facility for the Elderly as a team, they have assembled a
partnership where individual members' experience includes operating and administering licensed
(RCFEs) and currently operate two small facilities in Orange County.
Amendment Application No. 2010 -01
Conditional Use Permit No. 2010 -15
September 13, 2010
Page 4
A conditional use permit allows the City to impose conditions to mitigate any potential unforeseen
negative impacts associated with a care home use and its operations. Since this is the first project of
its kind for the City, the Planning Division and Police Department are proposing conditions of
approval to ensure the project maintains its high quality through time and does not transition into
an undesired or unintended use. The Planning Division's conditions are intended to ensure the
facility will contribute to the general well being of the community and will create a positive economic
impact by increasing the number of available jobs in the area and increasing the tax revenues.
Conditions, such as requiring the facility to maintain its license and a high level of amenities to its
residents are recommended. The Police Department's conditions refer to business operations and
physical improvements to improve safety, such as requiring security guards to patrol the parking lot
and upgrades to exterior lighting. The Police Department proposes a review of the project at six
months, one year and annually thereafter to ensure that the business is in compliance with
conditions approved for the project.
Conclusion
The project is consistent with the purpose of the General Plan Land Use Element and Housing
Element, as it will further the goals and policies of the plan and not obstruct their attainment.
Specifically, it would further the following General Plan goals and policies:
Land Use Goal 1 I Promote a balance of land uses to address the basic community
Element I needs.
Policy 1.5 Maintain and foster a variety of residential land uses in the City.
Policy 2.8 Promote rehabilitation of commercial properties, and encourage
increased levels of ca ital investment.
Policy 5.1 Promote development which has a net community benefit, and
enhances quality of life.
Housing Policy HE-4.4 Self Enriched Housing. Support efforts to increase the availability
Element of supportive services and service- enriched housing for persons
with special needs, such as seniors, disabled people, homeless
people, families, and persons with medical conditions.
As conditioned, the project will not create additional negative impacts to the surrounding business and
residents; instead it will stabilize the First Street commercial corridor by creating new long term
employment opportunities and providing a service that is needed in the community. Therefore, staff
recommends approval of Amendment Application No. 2010 -01 and Conditional Use Permit No. 2010-
15 as conditioned (Exhibits 7 and 8).
Amendment Application No. 2010 -01
Conditional Use Permit No. 2010 -15
September 13, 2010
Page 5
CEQA Compliance
In accordance with the California Environmental Quality Act, the proposed project is exempt from
CEQA review per Section 15332, class 32. Class 32 exemption allows infill development projects
occurring on lots less than five acres, where the site has no value as a habitat for endangered
species, is adequately served by all required utilities and public services, will not result in any
significant effects relating to traffic, noise, air and water quality and is consistent with the applicable
general plan, zoning and other policies. Environmental Review No. 2008 -140 will be filed for this
project.
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Lucy Li naus, AIA Vincent Frego , AICP
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75A -28
Conditional Use Permit No. 2010 -15
September 13, 2010
Page 1 of 2
Findinas of Fact
A. Will the proposed use provide a service or facility which will contribute to the general well
being of the neighborhood or community?
The proposed conversion of a 150 -room hotel into a 128 -room licensed Residential
Care Facility for the Elderly (RCFE) will provide a facility that will contribute to the
general well being of the community by providing living facilities to a segment of the
population in need of supervision and care, but not medical care. While RCFEs are
regulated by the California Department of Social Services, conditions have been
placed on the operations that will mitigate any potential impacts created by the use
and ensure that the use will not negatively affect the community and the surrounding
neighborhoods.
B. Will the proposed use under the circumstances of the particular case be detrimental to the
health, safety, or general welfare of persons residing or working in the vicinity?
The conditions of approval will require the facility compliance with State licensing
requirements and will ensure the facility maintains a safe environment. The conditions
of approval are imposed to mitigate any potential unforeseen impact that could
otherwise affect the health, safety, or general welfare of persons residing or working
in the vicinity.
C. Will the proposed use adversely affect the present economic stability or future economic
development of properties surrounding the area?
The site as developed is suitable for the proposed use. The proposed use will not
adversely affect the present economic stability or future economic development of the
properties surrounding the area. Instead, the proposed use will create a positive
economic impact by increasing the number of available jobs in the area and increasing
the tax revenues which will protect property values within the community and will
contribute to the economic stability of surrounding properties in the area.
D. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for
such use?
With an approved conditional use permit for a care home in the General Commercial
(C2) zone district, the proposed use will be in compliance with the applicable sections of
Chapter 41 of the Santa Ana Municipal Code. Conditions of approval are imposed to
ensure compliance with the State licensing requirement and to ensure that the
proposed RCFE does not transition into an undesired or unintended use.
EXHIBIT 7
Conditional Use Permit No. 2010 -15
September 13, 2010
Page 2 of 2
E. Will the proposed use adversely affect the General Plan or any specific plan of the City?
The proposed facility is located in the General Commercial (GC) general plan
designation land use designation. The proposed use as conditioned will not
adversely affect the General Plan as it will further the goals and policies of the plan
and not obstruct their attainment. Specifically, it will further Goals 1, and Policies 1.5,
2.8 and 5.1 of the land use element and Policy HE -4.4 of the Housing Element The
project site is not located within any specific plans.
SEPTEMBER 13, 2010
PAGE 1 OF 3
Conditions for Aaaroval
Conditional Use Permit No. 2010 -15 is approved subject to compliance, to the reasonable
satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code,
the California Administrative Code, the California Building Standards Code and all other applicable
regulations.
The applicant must comply in full with each and every condition listed below prior to exercising the
rights conferred by this conditional use permit.
The applicant must remain in compliance with all conditions listed below throughout the life of the
conditional use permit. Failure to comply with each and every condition may result in the revocation
of the conditional use permit.
A. Planninsa Division
All proposed site improvements must conform to the Site Plan Review DP No. 2008-
47, except that Exhibits 4 and 6 of Conditional Use Permit No. 2010 -15 shall replace
the site plan and elevations of the Site Plan submittal.
2. Any amendment to this conditional use permit must be submitted to the Planning
Division and Police Department for review. At that time, staff will determine if
administrative relief is available or the conditional use permit must be amended.
3. The facility shall obtain and maintain a license by the State for a Residential Care
Facility for the Elderly (RCFE).
4. The number of residents shall be limited to 147.
5. The facility shall provide at a minimum the following amenities as shown on page 3 and
4 of Exhibit 5:
a. A fully furnished meeting room with a minimum capacity of 30 occupants.
b. A business office equipped with computers with internet access, public
telephone, fax and copier machines, and other incidental equipment necessary
to support an office environment.
C. A library furnished with tables, chairs and at least one computer.
d. A fully furnished theater with a minimum capacity of 15 occupants.
e. A fully furnished card /game room with a minimum capacity of 30 occupants.
EXHIBIT 8
SEPTEMBER 13, 2010
PAGE 2OF3
f. A fully furnished and equipped arts and crafts room with a minimum capacity of
15 occupants.
g. A fully furnished billiards /sports room with a minimum of two playing stations.
h. A fully furnished dance studio with a minimum capacity of 15 occupants.
A fully furnished worship area with a minimum capacity of 30 occupants.
j. Private resident storage will be provided on the seventh and eighth floor.
k. A common laundry facility with a minimum of eight washing machines and
corresponding dryers and ironing/folding area.
Vehicular transportation with a minimum capacity of 20 passengers to provide
free shuttle to the residents to destinations within 15 miles of the location.
M. A fully equipped exercise room.
n. A Therapy pool.
o. A swimming pool with seating and shade.
6. Each amenity or service, including the shuttle service shall be available to the residents
daily for a period of not less than 12 hours. Programmed activities shall be available to
the residents daily for a period of not less than four hours.
7. An amenity plan showing the interiors and high quality and durable finishes, furnishing
and proposed equipment shall be submitted to the Planning Division for review and
approval.
8. No kitchen facilities or appliances shall be allowed in the resident rooms, as these are
rooms in a care home environment and not residential units.
9. Residential units shall not be allowed on the site.
10. No banquet facilities as defined by SAW Section 41 -25, medical marijuana
dispensary as defined by Section 41 -121 or massage establishment as defined by
Section 41.1751.2 shall be allowed on the site.
11. The entry plazas shall be designed with shade trees, outdoor seating, decorative
paving, landscape planters and a water feature. A plan shall be submitted to the
Planning Division for review and approval.
75A -32
SEPTEMBER 13, 2010
PAGE 3OF3
12. The outdoor seating area adjacent to the restaurant shall be designed with shade trees,
decorative paving, landscape planters and trellises. The landscape planter between the
restaurant building and the street shall be fully landscaped. A plan showing durable
and high quality materials shall be submitted to the Planning Division for review and
approval.
B. Police Department
The existing building and parking lot must conform to the provisions of Chapter 8,
Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance).
These code conditions will require that the existing project's lighting, door /window
locking devices and addressing be upgraded to current code standards. Lighting
standards cannot be located in required landscape planters.
2. Provide minimum 100 square inch windows in all doors leading into common areas
such as laundry facilities, rec. rooms etc.
3. Provide minimum 12 -inch shatterproof convex mirrors in all elevators.
4. State licensed uniformed security guards are required 24/7 at the staffing level of one
guard in a fixed position on the first floor at a guard station. One guard is to conduct
roving activities within the building. One guard is required to patrol the parking lot.
5. This conditional use permit shall be reviewed by the Police Department after six
months and one year, and annually thereafter for modifications or violations of any of
the conditions.
75A -33
75A -34
ORDINANCE NO. NS -XXXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA ZONING THE PROPERTY LOCATED AT 1600
EAST FIRST STREET FROM SINGLE FAMILY RESIDENCE
(R1) AND MULTIPLE - FAMILY RESIDENCE (R3) TO
GENERAL COMMERCIAL (C -2) (AA NO. 2010 -01)
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana does hereby find, determine
and declare as follows:
A. The Applicant is requesting adoption and approval of Amendment
Application No. 2010 -01 and Conditional Use Permit No. 2010 -15 to allow a
senior care home at 1600 East First Street.
B. On September 13, 2010, the Planning Commission held a duly noticed
public hearing and voted to recommend that the City Council:
Adopt an ordinance approving Amendment Application No. 2010 -01.
2. Adopt a resolution approving Conditional Use Permit No. 2010 -15 as
conditioned.
C. On October 4, 2010, the City Council of the City of Santa Ana held a duly
noticed public hearing, and at that time decided to continue the matter. On _
2010, the City Council of the City of Santa Ana again
held a duly noticed public hearing and at that time considered all testimony,
written and oral.
D. Amendment Application No. 2010 -01 has been filed with the City of Santa
Ana to zone a portion of the property located at 1600 East First Street from
Single Family Residence (R1) and Multiple - Family Residence (R3) to
General Commercial (C -2).
E. Amendment Application No. 2010 -01 is consistent with the General Plan,
including but not limited to its goals and policies:
1. Promote a balance of land uses to address basic community needs.
Land Use Element Goal No. 1.0.
2. Maintain and foster a variety of residential land uses in the City. Land
Use Element Policy 1.5.
75A -35
3. Promote rehabilitation of commercial properties, and encourage
increased levels of capital investment. Land Use Element Policy No.
2.8.
4. Promote development which has a net community benefit, and
enhances quality of life. Land Use Element Policy No. 5.1.
5. Self Enriched Housing. Support efforts to increase the availability of
supportive services and service- enriched housing for persons with
special needs, such as seniors, disabled people, homeless people,
families, and persons with medical conditions. Housing Element
Policy HE -4.4.
F. The City Council has weighed and balanced the general plan's policies and
has determined that based upon this balancing that the project at 1600 East
First Street is consistent with the purpose of the general plan.
G. The City Council also adopts as findings all facts presented in the Request
for Council Action dated , 2010 accompanying this
matter. For these reasons, and each of them, Amendment Application No.
2010 -01 is hereby found and determined to be consistent with the General
Plan of the City of Santa Ana and otherwise justified by the public necessity,
convenience, and general welfare.
H. Conditional Use Permit No. 2010 -15 as conditioned came before the City
Council on , 2010. This ordinance incorporates by
reference, as though fully set forth herein, the Conditional Use Permit in
support of this ordinance and the findings made herein.
Section 2. The real property located at 1600 East First Street is hereby zoned
from Single Family Residence (R1) and Multiple - Family Residence (R3) to General
Commercial (C -2). (AA No. 2010 -01) Amended Sectional District Map number 17 -5 -9
showing the above described change in use district designation, is hereby approved and
attached hereto as Exhibit "A" and incorporated by this reference as though fully set forth
herein. This decision is based upon the evidence submitted at the above said hearing,
which includes but is not limited to: the Request for Council Action dated
2010 and exhibits attached thereto and the public testimony written and oral, all
of which are incorporated herein by this reference.
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.
75A -36
ADOPTED this
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
Ryan O. Hodge
Assistant City Attorney
day of 12010.
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
Miguel A. Pulido
Mayor
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached
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
75A -37
NW_ISIOO,�
ROH - xx/xx/xx
RESOLUTION NO. 2010 -xx
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA APPROVING CONDITIONAL USE PERMIT
NO. 2010 -15 AS CONDITIONED TO ALLOW A• SENIOR
CARE HOME AT 1600 EAST FIRST STREET
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. Applicant is requesting approval of Conditional Use Permit No. 2010 -15 to
operate a senior care home in the General Commercial (C2) zoning district
for the property located at 1600 East First Street.
B. Santa Ana Municipal Code Section 41 -377.5 allows senior care homes in
the C2 zoning district subject to the issuance of a conditional use permit.
C. Conditional Use Permit No. 2010 -15 came before the City Council of the
City of Santa Ana for a duly noticed public hearing on October 4, 2010. At
that time, the City Council continued the matter for another duly noticed
public hearing on , 2010.
D. The City Council determines that the following findings, which must be
established in order to grant this Conditional Use Permit pursuant to Santa
Ana Municipal Code Section 41 -638, have been established for
Conditional Use Permit No. 2010 -15 to allow a senior care home:
1. The proposed use will provide a service or facility, which will
contribute to the general well being of the neighborhood or the
community.
The proposed conversion of a 150 -room hotel into a 128 -
room licensed Residential Care Facility for the Elderly
(RCFE) will provide a facility that will contribute to the
general well being of the community by providing living
facilities to a segment of the population in need of
supervision and care, but not medical care. While RCFEs
are regulated by the California Department of Social
Services, conditions have been placed on the operations
that will mitigate any potential impacts created by the use
and ensure that the use will not negatively affect the
community and the surrounding neighborhoods.
75A -39 Resolution No. 2010 -xx
Page 1 of 4
2. Will the proposed use under the circumstances of the particular
case be detrimental to the health, safety, or general welfare of
persons residing or working in the vicinity?
The conditions of approval will require the facility compliance
with State licensing requirements and will ensure the facility
maintains a safe environment. The conditions of approval
are imposed to mitigate any potential unforeseen impact that
could otherwise affect the health, safety, or general welfare
of persons residing or working in the vicinity.
3. Will the proposed use adversely affect the present economic
stability or future economic development of properties surrounding
the area?
The site as developed is suitable for the proposed use. The
proposed use will not adversely affect the present economic
stability or future economic development of the properties
surrounding the area. Instead, the proposed use will create
a positive economic impact by increasing the number of
available jobs in the area and increasing the tax revenues
which will protect property values within the community and
will contribute to the economic stability of surrounding
properties in the area.
4. Will the proposed use comply with the regulations and conditions
specified in Chapter 41 for such use?
With an approved conditional use permit for a care home in
the General Commercial (C2) zone district, the proposed use
will be in compliance with the applicable sections of Chapter
41 of the Santa Ana Municipal Code. Conditions of approval
are imposed to ensure compliance with the State licensing
requirement and to ensure that the proposed RCFE does not
transition into an undesired or unintended use.
5. Will the proposed use adversely affect the General Plan or any
specific plan of the City?
The proposed facility is located in the General Commercial
(GC) general plan designation land use designation. The
proposed use as conditioned will not adversely affect the
General Plan as it will further the goals and policies of the
plan and not obstruct their attainment. Specifically, it will
further Goals 1, and Policies 1.5, 2.8 and 5.1 of the land use
element and Policy HE -4.4 of the Housing Element The
project site is not located within any specific plans.
E. In accordance with the California Environmental Quality Act, the
recommended action is exempt from further review per Section 15332,
class 32. This class 32 exemption allows infill development projects
75A -40 Resolution No. 2010 -xx
Page 2 of 4
occurring on lots less than five acres, where the site has no value as a
habitat for endangered species, is adequately served by all required utilities
and public services, will not result in any significant effects relating to traffic,
noise, air and water quality and is consistent with the applicable general
plan, zoning and other policies. Categorical Exemption Environmental
Review No. 2008 -140 will be filed for this project.
Section 3. The City Council of the City of Santa Ana hereby, approves
Conditional Use Permit No. 2010 -15 as conditioned in Exhibit "A" attached hereto and
incorporated herein.
ADOPTED this
AYES: Commissioners:
NOES: Commissioners:
ABSENT: Commissioners:
ABSTENTIONS: Commissioners:
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Ryan O. Hodge
Assistant City Attorney
day of , 2010 by the following vote:
Miguel A. Pulido
Mayor
75A -41 Resolution No. 2010 -xx
Page 3 of 4
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of the City Council, do hereby attest to and certify the
attached Resolution No. to be the original resolution adopted by the City
Council of the City of Santa Ana on
Date:
Clerk of the City Council
City of Santa Ana
75A-42 Resolution No. 2010 -xx
Page 4 of 4
Conditions for Approval for Conditional Use Permit No 2010-15
Conditional Use Permit No. 2010 -15 is approved subject to compliance, to the reasonable
satisfaction of the City Council, with all applicable sections of the Santa Ana Municipal Code, the
California Administrative Code, the California Building Standards Code and all other applicable
regulations.
The applicant must comply in full with each and every condition listed below prior to exercising the
rights conferred by this conditional use permit.
The applicant must remain in compliance with all conditions listed below throughout the life of the
conditional use permit. Failure to comply with each and every condition may result in the revocation
of the conditional use permit.
A. Planning Division
1. All proposed site improvements must conform to the Site Plan Review DP No. 2008-
47, except that Exhibits 4 and 6 of Conditional Use Permit No. 2010 -15 shall replace
the site plan and elevations of the Site Plan submittal.
2. Any amendment to this conditional use permit must be submitted to the Planning
Division and Police Department for review. At that time, staff will determine if
administrative relief is available or the conditional use permit must be amended.
3. The facility shall obtain and maintain a license by the State for a Residential Care
Facility for the Elderly (RCFE).
4. The number of residents shall be limited to 147.
5. The facility shall provide at a minimum the following amenities as shown on page 3
and 4 of Exhibit 5:
a. A fully furnished meeting room with a minimum capacity of 30 occupants.
b. A business office equipped with computers with internet access, public
telephone, fax and copier machines, and other incidental equipment necessary
to support an office environment.
C. A library furnished with tables, chairs and at least one computer.
d. A fully furnished theater with a minimum capacity of 15 occupants.
e. A fully furnished card /game room with a minimum capacity of 30 occupants.
Resolution No. 2010 -xx
Page 5 of 4
75A -43
September 13, 2010
PAGE 2OF3
A fully furnished and equipped arts and crafts room with a minimum
capacity of 15 occupants.
g. A fully furnished billiards /sports room with a minimum of two playing
stations.
h. A fully furnished dance studio with a minimum capacity of 15
occupants.
A fully furnished worship area with a minimum capacity of 30
occupants.
Private resident storage will be provided on the seventh and eighth
floor.
k. A common laundry facility with a minimum of eight washing
machines and corresponding dryers and ironing /folding area.
Vehicular transportation with a minimum capacity of 20 passengers
to provide free shuttle to the residents to destinations within 15 miles
of the location.
M. A fully equipped exercise room.
n. A Therapy pool.
o. A swimming pool with seating and shade.
6. Each amenity or service, including the shuttle service shall be available to
the residents daily for a period of not less than 12 hours. Programmed
activities shall be available to the residents daily for a period of not less
than four hours.
7. An amenity plan showing the interiors and high quality and durable finishes,
furnishing and proposed equipment shall be submitted to the Planning
Division for review and approval.
8. No kitchen facilities or appliances shall be allowed in the resident rooms,
as these are rooms in a care home environment and not residential units.
9. Residential units shall not be allowed on the site.
75A-44
September 13, 2010
PAGE 3OF3
10. No banquet facilities as defined by SAMC Section 41 -25, medical marijuana
dispensary as defined by Section 41 -121 or massage establishment as
defined by Section 41.1751.2 shall be allowed on the site.
11. The entry plazas shall be designed with shade trees, outdoor seating,
decorative paving, landscape planters and a water feature. A plan shall
be submitted to the Planning Division for review and approval.
12. The outdoor seating area adjacent to the restaurant shall be designed with
shade trees, decorative paving, landscape planters and trellises. The
landscape planter between the restaurant building and the street shall be
fully landscaped. A plan showing durable and high quality materials shall
be submitted to the Planning Division for review and approval.
13. Prior to issuance of a building permit, the applicant shall submit a final
landscape plan to the Planning Commission for review and approval
(Recommended by the Planning Commission on September 13,
2010).
B. Police Department
The existing building and parking lot must conform to the provisions of
Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building
Security Ordinance). These code conditions will require that the existing
project's lighting, door /window locking devices and addressing be
upgraded to current code standards. Lighting standards cannot be
located in required landscape planters.
2. Provide minimum 100 square inch windows in all doors leading into
common areas such as laundry facilities, rec. rooms etc.
3. Provide minimum 12 -inch shatterproof convex mirrors in all elevators.
4. State licensed uniformed security guards are required 24/7 at the staffing
level of one guard in a fixed position on the first floor at a guard station.
One guard is to conduct roving activities within the building. One guard is
required to patrol the parking lot.
5. This conditional use permit shall be reviewed by the Police Department
after six months and one year, and annually thereafter for modifications or
violations of any of the conditions.
75A -45
PROOF OF SERVICE
(C.C.P. SECTION 1013(a), 2015.5)
STATE OF CALIFORNIA, COUNTY OF ORANGE
I am employed in the aforesaid county; I am over the age of eighteen and not a
party to the within action; my business address is 20 Civic Center Plaza, Ross Annex
2 "a Santa Ana, California 92702.
served the foregoing document described as:
in this action by placing a true copy
thereof enclosed in sealed envelopes a resse as follows:
[ ] I caused to be delivered by courier, such envelope by hand to the office of the
addressee(s).
[X] BY MAIL I am readily familiar with my employer's practice of collection and
processing correspondence for mailing. Under that practice it would be deposited with
U.S. Postal Service on that same day with postage thereon fully prepaid at Santa Ana,
California in the ordinary course of business. I am aware that on motion of the party
served, service is presumed invalid if postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.
[ ] The document was transmitted by facsimile transmission and was reported as
complete and without error.
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
Executed on [date] at Santa Ana, California.
MARIA D. HUIZAR
75A -46
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
PUBLIC HEARING — FILED BY THE CITY OF
SANTA ANA TO AMEND PROVISIONS OF
CHAPTER 41 ESTABLISHING OPERATIONAL
STANDARDS FOR EQUIPMENT RENTAL
YARDS (ZONING ORDINANCE AMENDMENT
NO. 2010-02)
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
_--:612
❑ As Recommended
❑ As Amended
❑ Ordinance on 1" Reading
❑ Ordinance on 2"d Reading
❑ Implementing Resolution
❑ Set Public Hearing For`
CONTINUED TO
FILE NUMBER
Adopt an ordinance approving Zoning Ordinance Amendment No. 2010 -02 to amend Chapter 41
of the Santa Ana Municipal Code in order to establish a definition and operational standards for
equipment rental yards.
PLANNING COMMISSION ACTION
On November 8, 2010, the Planning Commission recommended that the City Council adopt an
ordinance approving Zoning Ordinance Amendment No. 2010 -02 by a vote of 5:0 (Gartner and
Walters absent) to amend Chapter 41 of the Santa Ana Municipal Code in order to create a
definition for equipment rental yards and to establish operational standards for such facilities. The
Planning Commission made no changes to the modifications outlined in the attached staff report
(Exhibit A). An addition has been made to the draft ordinance to ensure that the new operational
standards are consistent throughout Chapter 41 where equipment rental yards in commercial
zones are allowed.
FISCAL IMPACT
There is no fiscal impact associated with this action.
J I . Trevino
Executive Director
Planning & Building Agency
KH:rb
ktVStaff Reports20A 2010 -02 Equipment Rental Standards.cc
75B -1
(ROH 12/06/10)
ORDINANCE NO. NS -XXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA ANA AMENDING CHAPTER 41 OF THE
SANTA ANA MUNICIPAL CODE REGARDING THE
DEFINITION OF AND OPERATIONAL STANDARDS FOR
EQUIPMENT RENTAL YARDS
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The Santa Ana Municipal Code does not currently contain standards for
the operation of equipment rental yards. Such standards are necessary to
ensure that such facilities will not have a detrimental effect on permitted
adjacent uses by reason of refuse matter, noise, light, vibration, or lack of
property maintenance of grounds or buildings.
B. The Request for Council Action for this ordinance dated December 6,
2010, shall by this reference be incorporated herein, and together with this
ordinance, any amendments or supplements and the oral testimony before
the City Council at this meeting, shall additionally constitute the necessary
findings for this ordinance.
C. All provisions of the Santa Ana Municipal Code which are repeated herein
are repeated solely in order to comply with the provisions of Section 418
of the City Charter. Any such restatement of existing provisions of the
Code is not intended, nor shall it be interpreted, as constituting a new
action or decision of the City Council, but rather such provisions are
repeated for tracking purposes only in conformance with the Charter.
Section 2. Section 41 -58 of Chapter 41 of the Santa Ana Municipal Code is
added to read as follows:
Sec. 41 -58. Equipment Rental Yard.
An equipment rental yard is a permanent establishment dedicated to the rental of
building or construction tools, equipment, or other related supplies where the storage and
display of said equipment and supplies may occur both within a structure, as well as in an
outdoor yard area associated with said structure.
Ordinance No. NS -XXX
Page 1 of _
75B -2
Section 3. Section 41 -377 of Chapter 41 of the Santa Ana Municipal Code is
amended to read as follows (new language underlined, deleted language in strikeout for
tracking purposes only):
Sec. 41 -377. Uses permitted in the C2 district.
The following uses are permitted in the C2 district.
(a) All uses which are permitted in the C1 district pursuant to section 41 -365.
(b) Automotive garages including body and fender repair, painting, and engine
replacement.
(c) Blueprinting, photo- engraving, including all types of reproduction processes.
(d) Reserved.
(e) Equipment (Rental }Yards for light machineryE.
(f) Metal shops.
(g) Tire recapping.
(h) Wholesale establishments as follows:
(1) Automotive equipment, including parts and supplies for machinery.
(2) Drugs, chemicals and allied products excluding explosives and
industrial chemicals.
(3)
Dry goods and apparel.
(4)
Food products.
(5)
Farm products.
(6)
Electrical and plumbing supplies.
(7)
Office equipment and supplies.
(i) Truck, trailer, tractor and boat sales.
0) Research institutions and laboratories.
Ordinance No. NS -XXX
Page 2 of _
75B -3
(k) Adult entertainment businesses subject to compliance with the requirements
of article XVII of this chapter.
(1) Cyber cafes, subject to compliance with the requirements of section 41-
198.200.
Section 4. Section 41 -378 of Chapter 41 of the Santa Ana Municipal Code is
amended to read as follows (new language underlined, deleted language in strikeout for
tracking purposes only):
Sec. 41 -378. Operational standards in the C2 district.
(a) All business activities in the C2 district shall be conducted and located within
an enclosed building, except as otherwise provided in section 41 -195, and except that the
following business activities, to the extent permitted under section 41 -377 and section 41-
377.5, may be conducted outside of an enclosed building:
(1) Plant nurseries.
(2) Automobile sales and parking lots.
(3) Recreational or entertainment uses.
(4) Light onuipmeRt FeRtal Equipment Rental Yards.
(5) Truck, trailer, tractor and boat sales.
(6) Open -air car washes.
(7) Trailer parks and camps.
(b) No sales shall be made directly from a building to persons on a public
sidewalk, either through a window or similar opening or by means of a coin - operated
device.
(c) Service stations, automobile servicing, and automobile repair are subject to
the following requirements:
(1) No outdoor overnight vehicle storage is permitted except as permitted
by section 41- 613.2.
Ordinance No. NS -XXX
Page 3 of _
75B -4
(2) No auto repair or auto body activity within three hundred (300) feet of
property zoned or used for residential purposes shall be conducted
before 7:00 a.m. or after 9:00 p.m. on any day of the week.
Section 5. Section 41 -387 of Chapter 41 of the Santa Ana Municipal Code is
added to read as follows:
Sec. 41 -387. Equipment Rental Yard — Operational Standards.
Equipment Rental Yards shall comply with the following operational standards:
(a) Any permitted Equipment Rental Yard shall be operated in a fashion
so as to have no detrimental effect on lawful adjacent uses by reason
of refuse matter, noise, light, vibration, or lack of property
maintenance of grounds or buildings.
(b) A solid decorative masonry wall not less than eight (8) feet in height
shall be built and maintained along any rear or side lot line abutting
property that is used, zoned, or designated on the General Plan for
residential purposes.
(c) Equipment, including stacked storage or displays, shall not exceed
ten (10) feet in height when being stored or displayed on the site.
(d) All parking, vehicle circulation, queuing, backing, and equipment
loading must occur completely on -site.
(e) Hours of operation shall be limited to 7 a.m. to 8 p.m.
(f) Equipment, including stacked storage or displays, shall be stored or
displayed entirely on -site, pursuant to any applicable approved site
plan, but shall not be stored or displayed:
(1) in any setback, improved or not, required pursuant to sections
41 -368, 369, and 370;
(2) in any required parking spaces, driveways, or pedestrian
walkways;
(3) so as to obstruct sight distance or otherwise create hazards for
vehicle or pedestrian traffic;
(4) so as to disrupt the normal function of the site or its circulation;
Ordinance No. NS -XXX
Page 4 of _
75B -5
(5) on any public right -of -way.
(h) All trash and debris generated by the storage of building materials,
such as sand or gravel, must be contained on site.
Section 6. Section 41 -388 of Chapter 41 of the Santa Ana Municipal Code is
added to read as follows:
Sec. 41 -388. Amortization of non - conforming Equipment Rental Yards.
Any use of real property existing on the effective date of this ordinance, which meets the
definition of Equipment Rental Yard as set forth in section 41 -58 of this Code, but which was
constructed, operated, and maintained in compliance with all regulations and design,
development, and operational standards adopted by the City, shall be deemed a legal
nonconforming use which may be continued until six months after the effective date of this
ordinance. On or before such date, all such nonconforming aspects of such use shall be
terminated or brought into full compliance with the operational requirements set forth in section 41-
387, with the exception of subsection (b).
(a) Abandonment. Notwithstanding the above, any discontinuance or
abandonment of the use of any lot or structure as an equipment rental yard
for a continuous period of one (1) year shall result in a loss of legal
nonconforming status of such use.
(b) Amortization -- annexed property. Any equipment rental yard that was a legal
use at the time of annexation of the property, but that does not conform to
the regulations and design, shall be brought into compliance within one (1)
year of the date of annexation.
Section 7. Section 41 -396 of Chapter 41 of the Santa Ana Municipal Code is
amended to read as follows (new language underlined, deleted language in strikeout for
tracking purposes only):
Sec. 41 -396. Operational standards in the C3 district.
(a) All business activities in the C3 district shall be conducted or located within an
enclosed building, except as otherwise provided in section 41 -195, and except that the following
business activities, to the extent permitted under section 41 -395 and section 41- 395.5, may be
conducted outside of an enclosed building:
(1) Plant nurseries.
(2) Automobile sales and parking lots.
Ordinance No. NS -XXX
Page 5 of _
(g) ► ight equipment rent•+► Equipment Rental Yards.
(4) Truck, trailer, tractor, and boat sales.
(5) Newsstands.
(6) Flower stands.
(7) Recreational or entertainment uses.
(b) No sales shall be made directly from a building to persons on a public sidewalk,
either through a window or similar opening or by means of a coin - operated device.
Section 8. 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
By:
Ryan O. Hodge, Assistant City Attorney
Ordinance No. NS -XXX
Page 6 of _
75B -7
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the
attached Ordinance No. NS -XXX to be the original ordinance adopted by the City
Council of the City of Santa Ana on , and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
Ordinance No. NS -XXX
Page 7 of _
REQUEST FOR
Planning Commission Action
PLANNING COMMISSION MEETING DATE:
NOVEMBER 8, 2010
TITLE:
PUBLIC HEARING — FILED BY THE CITY OF SANTA
ANA TO AMEND PROVISIONS OF CHAPTER 41
ESTABLISHING OPERATIONAL STANDARDS FOR
EQUIPMENT RENTAL YARDS (ZONING ORDINANCE
AMENDMENT NO. 2010-02)
Prepared by Karen Haluza
Executive Director
RECOMMENDED ACTION
PLANNING COMMISSION SECRETARY
APPROVED
• As Recommended
• As Amended
• Set Public Hearing For
DENIED
❑ Applicant's Request
❑ Staff Recommendation
CONTINUED TO
4aA-0-� 4, -t LA-esin
Planning Manage
Recommend that the City Council adopt an ordinance approving Zoning Ordinance Amendment
No. 2010 -02 to amend Chapter 41 of the Santa Ana Municipal Code in order to establish a
definition and operational standards for equipment rental yards.
DISCUSSION
Request of the Alag)licant
The City of Santa Ana is requesting an amendment to Chapter 41 of the Santa Ana Municipal Code
(SAMC) in order to create a definition for equipment rental yards and to establish operational
standards for such facilities.
Analysis of the Issues
The Zoning Ordinance (Chapter 41) of the SAMC regulates permitted uses within the various Use
Districts, or zones, established throughout the City. The C2 — General Commercial zone allows
"equipment rental yards for light machinery" (Sec. 41 -377 (e)) among the permitted uses for that
zone. The code also allows "truck, boat and heavy equipment sales, rental, and service" in the M1 —
Light Industrial (Sec. 41-472 (n)) and M2 — Heavy Industrial (Sec. 41 -489) zones. Although there is
meant to be a distinction between these two types of equipment rental establishments, the code
does not provide a definition for these uses, nor does it provide operational standards for equipment
rental yards. The purpose of this Zoning Ordinance Amendment request is to provide clarification as
to what constitutes an "equipment rental yard," as well as to establish standards to ensure that the
operation of such yards will not have a detrimental effect on permitted adjacent sensitive uses, such
as residential neighborhoods, due to potential nuisances caused by refuse matter, noise, light,
vibration, or lack of property maintenance of grounds or buildings.
The first component of the requested action would be the creation of a definition for "equipment
rental yards." This definition would read as follows: An equipment rental yard is a permanent
establishment dedicated to the rental of building or construction tools, equipment, or other related
2
��o e
ZOA No. 2010 -02
November 8, 2010
Page 2
supplies where the storage and display of said equipment and supplies may occur both within a
structure, as well as in an outdoor yard area associated with said structure. This definition would
apply to any equipment rental yard permitted in any zone (Exhibit 1).
The second component of the requested action would establish operational standards for equipment
rental yards in C2 zones in order to address noise, light and vibration; require adequate screening of
the yard when it abuts residential property; prohibit the stacking of equipment or display of equipment
above 10 feet in height; require that all business operations occur on site and not in the public right -of-
way; restrict hours of operation; and ensure that all required landscape setbacks, parking spaces and
drive aisles are kept free of equipment display and do not impede on -site circulation (Exhibit 1).
These operational standards, if approved, would only apply to equipment rental yards located in the
C2 — General Commercial zone and would not affect equipment rental yards in the Industrial zones.
Operational standards for all uses, including equipment rental yards in the Industrial zones have
already been established.
Properties having the C2 — General Commercial zoning designation are generally located along major
thoroughfares that serve as commercial corridors. It is often the case that such properties are
immediately adjacent to residentially zoned properties. Both the General Plan and the SAMC
address the need to buffer residential neighborhoods from any nuisance activities that may be
generated by adjacent commercial operations. Operational standards and landscape buffers are two
examples of ways in which the code seeks to minimize such impacts. As it is currently written,
equipment rental yards in the C2 zone are excluded from having to operate entirely within an
enclosed building, creating the potential for outdoor business operations to impact adjacent residential
properties. The adoption of operational standards as described above would be consistent with the
City's existing policies discouraging commercial intrusion into residential neighborhoods.
CEQA Compliance
In accordance with the California Environmental Quality Act, the recommended action is exempt from
further review pursuant to Section 15061 (b) (3) of the CEQA Guidelines. This exemption is allowed
when the activity, in this case the recommendation of adoption of the ordinance, follows the general
rule that CEQA only applies to projects which have the potential for causing a significant effect on the
environment. The establishment of a definition and operational standards for equipment rental yards
will not have a significant effect on the environment. A Notice of Exemption (Environmental Review
No. 2010 -134) will be filed for this project.
Karen Haluza, AICP
Planning Manager
KH:jm
WSW ReporWZOA 2010 -02 Equipment Rental Standards. pc
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
PUBLIC HEARING - RESOLUTION
MODIFYING THE FY 2010 -11
MISCELLANEOUS FEE SCHEDULE
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1s' Reading
❑ Ordinance on 2 d Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Adopt a resolution to modify the Fiscal Year 2010 -11 Miscellaneous Fee Schedule.
DISCUSSION
The FY 2010 -11 Miscellaneous Fee Schedule was established by City Council with the adoption
of the FY 2010 -11 budget. These various fees associated with city services, building fees and
enterprise fees generate revenue for the City's various funds. Since the establishment of the FY
2010 -11 Miscellaneous Fee Schedule, it has become necessary to review and adjust the costs of
providing some of the programs, activities, and applications (Exhibit 1).
The City of Santa Ana has been designated as an Enterprise Zone (EZ) by the State of California
since 1993. The Santa Ana Enterprise Zone encompasses more than 11,790 acres of industrial
and commercial land. Businesses located within the EZ qualify for certain tax incentives, including
the Hiring Tax Credit. The Community Development Agency collects these Hiring Tax Credit
voucher applications and the associated processing fee from the businesses or their
representatives and issues vouchers.
The current $90 fee includes a $10 processing fee assessed by the State Department of Housing
and Community Development. With the passage of SB 856, signed by the Governor on October
19, 2010, the State fee was increased from $10.00 to $15.00, effective December 1, 2010. To
compensate for the fee increase, staff recommends the Enterprise Zone Hiring Tax Credit
Application Processing Fee be increased from $90.00 to $95.00 per application
Also, with the passage of SB 857, signed by the Governor on October 19, 2010, section 76000.3
was added to the California Government Code to levy an additional $3.00 surcharge on all parking
citations to be transmitted to the Trial Court Trust Fund. This additional parking surcharge is
effective December 7, 2010 and requires the City to transmit an additional $3.00 for every citation
collected to the County Treasurer on a monthly basis. Therefore, it is necessary for the City of
Santa Ana to also incorporate this increase into all parking violation fees.
75C -1
FY 10 -11 Misc. Fee Schedule Modifications
December 6, 2010
Page 2
FISCAL IMPACT
These fee increases will offset the additional charges by the State for Enterprise Zone Hiring Tax
Credit Application Processing and Parking Fees.
d�k*ffl�/ 'dr
4
Cynthia J. Nelson
Deputy City Manager for Development
Services
Community Development Agency
Paul M. Walters
Chief of Police
Police Department
75C -2
APPROVED AS TO FUNDS AND
ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Mgmt. Services Agency
RESOLUTION 2010 -xxx
EXISTING
PROPOSED
REVENUE
FY 10-11
FY 10 -11
%
ACCOUNT
DEPARTMENT/MISCELLANEOUS FEE OR SERVICE
UNIT
FEES
FEES
CHANGE
SECTION X
POLICE DEPARTMENT
55000
Parking a vehicle within 300 ft. of fire
apparatus answering a fire alarm
Pursuant to SAMC Sec. 36 -41(7)
Each
53.00
56.00
5.66%
55000
Permit required Special Parking District
Pursuant to SAMC Sec. 36493 (a)
Each
44.00
47.00
6.82%
55000
Parking in a red zone
Pursuant to SAMC Sec. 36- 131(1)
Each
61.00
64.00
4.92%
55000
Parking in a yellow zone
Pursuant to SAMC Sec, 36-131(2)
Each
44.00
47.00
6.82%
55000
Parking in a white zone
Pursuant to SAMC Sec. 36- 131(3)
Each
44.00
47.00
6.82%
55000
Parking in a green zone
Pursuant to SAMC Sec, 36- 131(4)
Each
44.00
47.00
6.82%
55000
Parking in a blue (handicapped) zone
Pursuant to SAMC Sec. 36- 131(5)
Each
108.00
111.00
2.78%
55000
Cancellation of citation (Disabled Placards)
Each
25.00
25.00
55000
Parking in a 'No Parking" zone
Pursuant to SAMC Sec. 36 -132
Each
65.00
68.00
4.62%
55000
No parking - street sweeping
Pursuant to SAMC Sec. 36 -133
Each
60.00
63.00
5.00%
55000
Parking in violation of "emergency no parking sign"
Pursuant to SAMC Sec. 36 -134
Each
65.00
68.00
4.62%
55000
Parking in alley
Pursuant to SAMC Sec. 36- 135(a)
Each
52.00
55.00
5.77%
55000
Stopping, standing or parking a vehicle Win parkway
Pursuant to SAMC Sec. 36- 135(b)
Each
52.00
55.00
5.77%
55000
Parking at certain places and for certain purposes
Pursuant to SAMC Sec. 36 -136
Each
52.00
55.00
5.77%
55000
For sale; inoperable vehicles; repairing vehicles
Pursuant to SAMC Sec. 36- 136(a)
Each
60.00
63.00
5.00%
55000
Parking over 72 hours
Pursuant to SAMC Sec. 36- 136(b)
Each
60.00
63.00
5.00%
55000
Parking on left side of one -way roadway
Pursuant to SAMC Sec. 36- 136(d)
Each
36.00
39.00
8.33%
55000
Parking outside of lapping marked parking
Pursuant to SAMC Sec. 36- 138(a)
Each
44.00
47.00
6.82%
55000
Angle parking prohibited in certain areas
Pursuant to SAMC Sec. 36 -139
Each
44.00
47.00
6.82%
55000
Parking in restricted areas. Time limit parking
Pursuant to SAMC Sec. 36 -142
Each
44.00
47.00
6.82%
55000
Overnight parking prohibited in certain areas
Pursuant to SAMC Sec. 36 -144
Each
36.00
39.00
8.33%
55000
Parking any commercial vehicle over 10,000 lbs. In a residential
district for a period of time longer than two(2) hours prohibited
Pursuant to SAMC Sec, 36 -145
Each
75.00
78.00
4.00%
55000
Parking on City property
Pursuant to SAMC Sec, 36 -147
Each
36.00
39.00
8.33%
Exhibit 1
75C -3
RESOLUTION 2010 -xxx
REVENUE
ACCOUNT DEPARTMENT/MISCELLANEOUS FEE OR SERVICE
55000
Parking on property of Joint Powers Agency -city is member
PROPOSED
Pursuant to SAMC Sec. 36 -147.1
55000
Parking in metered space time expired or beyond max. time
FY 10 -11
Pursuant to SAMC Sec, 36- 402(1)
55000
Parking outside of painted or marked area of metered space
FEES
Pursuant to SAMC Sec. 36- 402(2)
55000
Park any vehicle restricting traffic (ingress /egress)
36.00
Pursuant to SAMC Sec. 36- 432(2)
55000
Park any vehicle with trailer, etc., restricting traffic
53.00
Pursuant to SAMC Sec, 36- 432(4)
55000
Red no parking areas- striped no parking areas
53.00
Pursuant to SAMC Sec. 36- 432(5)
55000
Parking outside /across designated parking lines
53.00
Pursuant to SAMC Sec, 36-432(6)
55000
Parking overtime on public parking lot
65.00
Pursuant to SAMC Sec, 36- 432(9)
55000
Use metered spaces when meter indicates unlawful parking
53.00
Pursuant to SAMC Sec. 36- 432(11)
55000
Park any truck in excess of 2 tons in parking lot
44.00
Pursuant to SAMC Sec, 36- 432(12)
55000
Unauthorized parking in "handicapped" zone
44.00
Pursuant to SAMC Sec. 36- 432(15)
55000
Continued Time Zone
44.00
Pursuant to SAMC Sec. 36 -143
55000
Parking within an intersection
53.00
Pursuant to CVC Sec. 22500(a)
55000
Parking within a crosswalk
82.00
Pursuant to CVC Sec. 22500(b)
55000
Parking adjacent to safety zone
44.00
Pursuant to CVC Sec. 22500(c)
55000
Parking within 15 ft. of driveway entrance of fire station
51.00
Pursuant to CVC Sec. 22500(d)
55000
Parking on a sidewalk
51.00
Pursuant to CVC Sec. 22500(f)
55000
Obstructing traffic by stopping, standing or parking alongside
51.00
highway obstruction
5.88%
Pursuant to CVC Sec, 22500(g)
55000
Double Parking
5.88%
Pursuant to CVC Sec. 22500(h)
55000
Parking upon a bridge
5.88%
Pursuant to CVC Sec, 22500(k)
55000
Parked, right hand wheels more than 18" from right hand curb
5.88%
Pursuant to CVC Sec. 22502(a)
55000
Motorcycle parked, one wheel or fender not touching curb
5.88%
Pursuant to CVC Sec. 22502(e)
55000
Parked within 15 feet of fire hydrant
5.88%
Pursuant to CVC Sec, 22514
2
75C -4
EXISTING
PROPOSED
FY 10 -11
FY 10 -11
%
UNIT
FEES
FEES
CHANGE
Each
36.00
39.00
8.33%
Each
53.00
56.00
5.66%
Each
53.00
56.00
5.66%
Each
53.00
56.00
5.66%
Each
65.00
68.00
4.62%
Each
53.00
56.00
5.66%
Each
44.00
47.00
6.82%
Each
44.00
47.00
6.82%
Each
44.00
47.00
6.82%
Each
53.00
56.00
5.66%
Each
82.00
85.00
3.66%
Each
44.00
47.00
6.82%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
Each
51.00
54.00
5.88%
RESOLUTION 2010 -xxx
REVENUE
ACCOUNT DEPARTMENT/MISCELLANEOUS FEE OR SERVICE
55000
Unattended vehicle, stop motor and set breaks
PROPOSED
Pursuant to CVC Sec. 22515(a)
55000
Parking in a space designated for disabled persons without
FY 10-11
a distinguishing plate or placard
UNIT
Pursuant to CVC Sec. 22507.8(a)
55000
Obstruct, block, or otherwise bar access to a parking space
designated for disabled persons
57.00
Pursuant to CVC Sec. 22507.8(b)
55000
Park or leave standing any vehicle, including one displaying
373.00
plates or placard, on boundary lines marking a parking space
0.80°/
designated for disabled persons
373.00
Pursuant to CVC Sec. 22507.8(c)
55000
Entering an Intersection, Rail- crossing or crosswalk
Pursuant to CVC Sec, 22526
55000
No Year or Month License Plate Tab
Pursuant to CVC Sec. 5204
3
75C -5
Each
EXISTING
PROPOSED
0.80%
Each
FY 10-11
FY 10-11
%
UNIT
FEES
FEES
CHANGE
Each
57.00
60.00
5.26%
Each
373.00
376.00
0.80°/
Each
373.00
376.00
0.80%
Each
373.00
376.00
0.80%
Each
168.00
171.00
1.79%
Each
87.00
90.00
3.45%
RESOLUTION 2010 -xxx
REVENUE
PROPOSED
ACCOUNT
DEPARTMENT/MISCELLANEOUS FEE OR SERVICE
FY 10 -11
55000
No Vehicle Front/Rear License Plate
UNIT
Pursuant to CVC Sec. 5200
55000
Stopping/Parking in a Fire Lane
Each
Pursuant to CVC Sec. 22500.1
55000
Parking in Front of a Driveway
Each
Pursuant to CVC Sec. 22500 (e)
SECTION III
COMMUNITY DEVELOPMENT AGENCY
57018002 -57991
Entereprise Zone Hiring Tax Credit Application Processing Fee
4
75C -6
Per Application
90.00 95.00 5.56%
EXISTING
PROPOSED
FY 10 -11
FY 10 -11
%
UNIT
FEES
FEES
CHANGE
Each
87.00
90.00
3.45%
Each
116.00
119.00
2.59%
Each
51.00
54.00
5.88°/
Per Application
90.00 95.00 5.56%
:11 /3/10
RESOLUTION NO. 2010-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA INCREASING FEES RELATING TO PARKING
VIOLATIONS AND THE ENTERPRISE ZONE HIRING TAX
CREDIT APPLICATION PROCESSING FEE IN THE
FISCAL YEAR 10 -11 MISCELLANEOUS FEE SCHEDULE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. On June 7, 2010, the City Council adopted a Miscellaneous Fee Schedule
to collect, in a single comprehensive document, a listing of fees and
service charges imposed by the City upon that limited number of persons
seeking services of value from the City; and
B. The City Council finds in relation to City parking violation fees:
1. In order to address the funding shortages of the court system, the
State of California has increased various court fees, including filing
fees and penalty assessments; and
2. California Senate Bill 857, signed by the Governor on October 19,
2010, added section 76000.3 to the California Government Code to
levy an additional $3.00 penalty on all parking citations to be
transmitted to the Trial Court Trust Fund; and
3. The additional parking surcharge is effective December 7, 2010;
and
4. The City is required to transmit the additional $3.00 for every
citation collected to the County Treasurer on a monthly basis; and
5. It is necessary for the City to amend the current parking violation
fees to account for the increased penalty.
C. In relation to the Enterprise Zone Hiring Tax Credit Application Processing
Fee:
1. California Senate Bill 856, signed by the Governor on October 19,
2010, increases from $10.00 to $15.00, the fee imposed by the
75C -7 Resolution No. 2010 -XXX
Page 1 of 3
California Department of Housing and Community Development on
each application for a certification of tax eligibility requirements; and
2. The additional certification fee is effective December 1, 2010; and
3. It is necessary for the City to amend the Enterprise Zone Hiring
Tax Credit Application Processing Fee to compensate for the state
fee increase.
Section 2. The City Council hereby increases the fees relating to Parking
Violations by $3.00 each. Said new fees shall be imposed at the rates set forth in
Exhibit 1 attached to this Resolution, and said fees shall be implemented and in effect
as of the date of this Resolution.
Section 3. The City Council hereby increases the Enterprise Zone Hiring Tax
Credit Application Processing Fee by $5.00, from $90.00 to $95.00 per application.
Section 4: To the extent that any fee or service charge established pursuant to
City Council Resolution No. 2010 -023 is inconsistent with the fees established pursuant
to this Resolution, then said Resolution No. 2010 -023 is hereby repealed.
Section 5: If any surcharge or fee, section, subsection, sentence, clause,
phrase or word of this Resolution is for any reason held to be invalid by a court of
competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Resolution. The City Council hereby declares that it would have passed
and adopted this Resolution, and each and all provisions hereof, irrespective of the fact
that one or more provisions may be declared invalid.
Section 6: 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
75C -8 Resolution No. 2010 -XXX
Page 2 of 3
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
Teresa L. Judd
Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR,
Resolution No. 2010 -
City of Santa Ana on _
Date:
Clerk of the Council, do hereby attest to and certify the attached
to be the original resolution adopted by the City Council of the
Clerk of the Council
City of Santa Ana
75C -9 Resolution No. 2010 -XXX
Page 3 of 3
75C -10
REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
PUBLIC HEARING - RESOLUTION
AUTHORIZING CONDEMNATION OF
REAL PROPERTIES AT 1609 -1631
NORTH BRISTOL STREET AND 1612
NORTH LOUISE STREET AND
APPROVING THE ADDENDUM TO
EIR NO. 89- 1
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on V' Reading
❑ Ordinance on 2nd Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
1. Approve addendum to EIR No. 89 -01 for intersection of Bristol and Seventeenth Streets.
2. Adopt a resolution authorizing the condemnation of the entire real properties located at 1609-
1631 North Bristol Street and 1612 North Louise Street and declaring the public necessity and
interest therefore.
DISCUSSION
On March 6, 2006, the City Council approved the cooperative agreement between the City and
the Orange County Transportation Authority to fund Bristol Street improvements from Warner
Avenue to Seventeenth Street. The first phase of the project, between Pine and McFadden, is
under construction and is expected to be completed by December 2010. As part of the street
widening, the City is improving the intersection of Bristol Street and Seventeenth Street. Measure
M funding has been approved for the intersection widening for the amount of $3.45 million.
Improvements include an additional northbound through lane, a southbound right turn lane, and a
northeast corner bus turnout. This project is needed to improve traffic flow at the intersection of
Bristol Street and Seventeenth Street, which is operating at an unacceptable level of service on
Bristol (Exhibit 1). These improvements will improve traffic flow and increase the level of service.
To accommodate these improvements, property acquisition of the entire parcels at 1609 -1631
North Bristol and 1612 North Louise Street is required. Although a good faith offer was made
and negotiations began in August 2010, a final settlement has not been reached.
Negotiations will continue with the property owners. However, to meet the project schedule and
the funding deadline of March 2011, it is necessary to commence eminent domain proceedings.
Staff is requesting adoption of resolution of necessity and initiation of condemnation proceedings.
7501-1
Public Hearing - Resolution Authorizing Condemnation
of Real Properties at 1609 -1631 North Bristol Street
and 1612 North Louise Street and Approving
the Addendum to EIR No. 89 -01
December 6, 2010
Page 2
ENVIRONMENTAL IMPACT
In accordance with CEQA Guidelines, it was determined that the previously prepared Final
Environmental Impact Study /Environmental Impact Report No. 89 -01 (which was approved by
City Council in 1990) adequately analyzed all of the major impacts of the proposed project and
prescribed mitigation measures. No major subsequent changes are proposed with respect to the
circumstances surrounding this project, and no new information of significance has become
available that would substantially affect the validity of the Final EIS /EIR. It was determined that
an addendum was the appropriate environmental document for the proposed project in order to
address the minor changes to the Final EIS /EIR.
FISCAL IMPACT
Funds are appropriated in the Measure M Select Street Construction Fund (accounting unit
03217660- 66220) and Select Street Construction Fund (accounting unit 05917661- 66100).
1
Raul odinez II
Executive Direct
Public Works Agency
RG /SA
Exhibit: 1. Location Map
APPROVED AS TO FUNDS AND ACCOUNTS:
�& zs�!'� I A
Francisco GutierrezQ
Executive Director J
Finance & Management Services Agency
75D -2
l
$I
J
0
co
0
LEGEND
SUBJECT PROPERTIES
i
--- - - - - -- - - - - --
i
N
KTB
17TH STREET
1606
EXHIBIT 1
SANTA ANA TITLE' _ �I
CITY COUNCIL
P'� AI /A AGENDA DATE PUBLIC HEARING - RESOLUTION AUTHORIZING
DECEMBER 6, 2010 CONDEMNATION OF REAL PROPERTIES AT
PU9LIC wN15 AGF�Cr 1609 -1631 N. BRISTOL
75D -4
RESOLUTION NO. 2010-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA AUTHORIZING THE ACQUISITION OF
PROPERTY LOCATED AT 1609 -1631 NORTH BRISTOL
STREET AND 1612 NORTH LOUISE STREET, SANTA
ANA (ASSESSOR'S PARCEL NUMPER 405 - 252 -02, 405-
252-03, 405-252-23,405-252-24) BY MINENT DOMAIN
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The City of Santa Ana is authorized to acquire the parcel described in Exhibit
1 herein and exercise the power of eminent domain for the public use set
forth herein in accordance with the California Constitution and the California
Eminent Domain Law, section 200 of the Santa Ana Charter, Santa Ana
Municipal Code sections 41 -781, Code of Civil Procedure section 1230.010 et
seq., and pursuant to inter alia, sections 1240.010, 1240.110, 1240.120,
1255.410, 1240.150, 1240.410, and 1240.510 of the California Code of Civil
Procedure, Government Code sections 37350.5 and 40404, California Streets
and Highways Code sections 943, 5100, 5101, 5101.5, 5102, 10102 and
other applicable law.
B. The real property described herein is required for the widening of Bristol
Street and related improvements.
C. The property to be acquired consists of the property in Exhibit 1, attached
hereto and incorporated herein by reference, including a map thereof.
D. A Notice of Hearing regarding adoption of a Resolution of Necessity for
acquisition by eminent domain of the real property described in Exhibit 1
herein was mailed, in accordance with Code of Civil Procedure section
1245.235, to all persons whose names appear on the last equalized County
Assessment Roll as having an interest in the property described in Exhibit 1,
and to the addresses appearing on the Assessment Roll. The Notice of
Hearing advised the afore described persons of their right to be heard on the
matters referred to therein, pursuant to and consistent with Code of Civil
Procedure sections 1240.030 and 1245.230, on the date and at the time and
place stated therein.
Resolution No. 2010 -XXX
75D -5 Page 1 of
E. The hearing set out in said Notice of Hearing was held on December 6, 2010,
at the time and place stated therein, and all interested parties were given an
opportunity to be heard.
Section 2. The City Council further finds and declares as follows:
A. The Public Interest and necessity require the project.
B. The proposed project is planned or located in a manner that will be the
most compatible with the greatest public good and least private injury.
C. The property interests sought to be acquired are necessary for the
proposed project.
D. An offer to purchase the property was made to the property owner of
record by the City, in accordance with Government Code section 7267.2.
E. All conditions and statutory requirements necessary to exercise the power
of Eminent Domain ( "the right to take ") to acquire the properties described
herein have been complied with by the City.
F. The City of Santa Ana has statutory authority to acquire the property by
eminent domain.
G. The use for which any publicly owned property is to be taken is a use that
will not unreasonably interfere with or impair the continuance of the public
use as it presently exists or may reasonably be expected to exist in the
future, and is therefore authorized by Code of Civil Procedure section
1240.510.
H. The use for which any publicly owned property is to be taken is a more
necessary public use than that to which the properties are currently
appropriated and the taking as to any publicly owned property is for a
more necessary public use consistent with and authorized by Code of Civil
Procedure section 1240.610.
Section 3. The City Council has, as a result of its consideration and the
evidence presented at the hearings on this matter, and in accordance with the California
Environmental Quality Act ( "CEQA ") and the State CEQA Guidelines, determined that
the proposed project has been adequately evaluated in the previously prepared
Environmental Impact Report/Environmental Impact Statement EIR No. 89.01 and all
subsequent addenda. On the basis of this review, the City Council finds that there is no
evidence from which it can be fairly argued that the Project will have a significant
adverse effect on the environment.
Resolution No. 2010 -XXX
Page 2 of 4
7501-6
Section 4. Pursuant to Title XIV, California Code of Regulations ( "CCR ")
section 735.5(c)(1), the City Council has determined that, after considering the record
as a whole, there is no evidence that the proposed project will have the potential for any
adverse effect on wildlife resources or the ecological habitat upon which wildlife
resources depend. The proposed project exists in an urban environment charakterized
by paved concrete, roadways, surrounding buildings and human activity. Therefore,
pursuant to Fish and Game Code section 711.2 and Title XIV, CCR section 735.5(a)(3),
the payment of Fish and Game Department filing fees in not required in conjunction with
this project.
Section 5. The City Attorney is hereby authorized:
A. To acquire in the name of the City of Santa Ana, by condemnation, the
property described in Exhibit 1, attached hereto and incorporated herein by
this reference in accordance with the provisions of the California Eminent
Domain Law and the Constitution of California.
B. To acquire the property in fee simple absolute unless a lesser estate is
described in Exhibit 1, herein.
C. To prepare or have prepared and to prosecute in the name of the City such
proceedings in the proper court as are necessary for such acquisition.
D. To deposit the probable amount of compensation based on an appraisal, and
to apply to said court for an order permitting the City to take immediate
possession and use of said property for said public uses and purposes.
Section 6. 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
APPROVED AS TO FORM: Mayor
Joseph W. Fletcher, City Attorney
By:
Jose Sandoval
Chief Assistant City Attorney
75D -7
Resolution No. 2010 -XXX
Page 3 of 4
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 , 2010.
Date:
Resolution No. 2010 -XXX
Page 4 of 4
Maria D. Huizar
Clerk of the Council
City of Santa Ana
I
i"
LEGAL DESCRIPTION
Real property in the City of Santa Ana, County of Orange, State of California, described as
follows:
PARCEL 1: (APN: 405 - 252 -24)
THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST, IN THE LAND
ALLOTTED TO JACOB ROSS IN DECREE OF PARTI T ION,OF THE RANCHO SANTIAGO DE SANTA
ANA, RECORDED IN BOOK B, PAGE 410 OF JUDGEMENTS OF THE 17TH JUDICIAL DISTRICT•
COURT OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION;
HENCE SOUTH 285.64 FEET ALONG THE WEST LINE OF SAID SECTION, TO THE NORTH LINE
OF THE LAND DESCRIBED IN THE DEED TO C.H, HARRIS AND WIFE, RECORDED DECEMBER 24,
1923, IN BOOK 502, PAGE 254 OF DEEDS OF SAID ORANGE COUNTY;
THENCE EAST, 174.655 FEE! ALONG THE NORTH LINE OF SAID HARRIS LAND;
THENCE NORTH, 285.64 FEE I PARALLEL WITH SAID WES LINE OF SECTION TO THE NORTH
LINE OF SAID SECTION;
THENCE WEST, 174.675 FEET TO THE POINT OF BEGINNING.
EXCEPT THE WEST 40.00 FEET AND THE NORTH 50.00 FEET THEREOF.
ALSO EXCEPTTHAT PORTION OF SAID LAND INCLUDED WITHIN A SPANDREL SHAPED PARCEL
OF LAND BOUNDED WESTERLY BY A LINE PARALLEL WITH AND EASTERLY 40.00 FEET,
MEASURED AT RIGHT ANGLES FROM THE WEST LINE OF SAID SECTION, BOUNDED
NORTHERLY BY A LINE PARALLEL WITH AND SOUTHERLY 50.0.0 FEET, MEASURED AT RIGHT
ANGLES FROM THE NORTH LINE OF SAID SECTION 12, BOUNDED SOUTHEASTERLY BY THE
ARC OF A CURVE SOUTHEASTERLY, HAVING A RADIUS OF 25.00 FEET AND TANGENT TO SAID
WEST AND NORTH BOUNDARIES OF SAID SPANDREL,
PARCEL 2: (PORTION OF APN: 405 - 252 -02)
THAT PORTION OF THE NORTHWEST 1/4 OF THE NORTHWEST 1/4 OF SECTION 12, TOWNSHIP
5 SOUTH, RANGE 10 WEST, IN THE LAND ALLOTTED TO JACOB ROSS IN DECREE OF
PARTITION OF RANCHO SANTIAGO DE SANTA ANA, RECORDED IN BOOK B, PAGE 410 OF
JUDGEMENTS OF THE 17TH JUDICIAL DISTRICT COURT OF CALIFORNIA, DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT ON THE NORTH LINE OF THE LAND CONVEYED TO C.H. HARRIS AND
WIFE BY DEED RECORDED DECEMBER 24, 1923, IN BOOK 502, PAGE 254 OF DEEDS, SOUTH
285.74 FEET AND EAST 174.675 FEET FROM THE NORTHWEST CORNER OF SAID SECTION;
THENCE NORTH 50.00 FEE E TO A POINT;
THENCE EAST 175.00 FEET, PARALLEL WITH THE NORTH LINE OF SAID LAND CONVEYED TO
C.H. HARRIS AND WIFE TO THE CENTER LINE OF LOUISE STREET AS DESCRIBED IN THE DEED
TO THE CITY OF SANTA ANA, RECORDED JUNE 20, 1924, IN BOOK 531, PAGE 6 OF DEEDS;
THENCE SOUTH 50.00 FEET ALONG SAID CENTER LINE, TO THE NORTH LINE OF SAID LAND
CONVEYED TO C.H. HARRIS AND WIFE;
THENCE WEST 175.00 FEET TO T HE POINT OF BEGINNING. .
PARCEL 3: (PORTION OF APN: 405 - 252 -02)
75D -9
EXHIBIT --L-
LEGAL DESCRIPTION (Continued)
THAT PORTION OF THE NORTHWEST 1/4 OF THE NORTHWEST 1/4 OF SECTION 12, IN THE
LAND ALLOTTED TO JACOB ROSS IN DECREE OF PARTITION OF THE RANCHO SANTIAGO DE
SANTA ANA-, RECORDED IN BOOK B, PAGE 410 OF JUDGEMENTS OF THE 17TH JUDICIAL
DISTRICT COURT OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE LAND CONVEYED TO R.J. PEARSON AND
WIFE BY DEED RECORDED NOVEMBER 6, 1945, IN BOOK 1362, PAGE 2B8, OFFICIAL RECORDS
OF SAID ORANGE COUNTY, WHICH POINT IS SOUTH, 235.74 FEET AND EASE' 174.675 FEET
FROM THE NORTHWEST CORNER OF SAID SECTION 12;
THENCE NORTH 50.00 FEET;
THENCE EAST 175.00 FEET, PARALLEL WITH THE NORTH LINE OF SAID LAND CONVEYED TO
PEARSON, TO THE CENTER LINE OF LOUISE STREET AS DESCRIBED IN THE DEED TO THE CITY
OF SANTA ANA, RECORDED JUNE 20, 1924, IN BOOK 531, PAGE 6 OF DEEDS;
THENCE SOUTH 50.00 FEET ALONG SAID CENTER LINE TO THE NORTHEAST CORNER OF SAID
LAND CONVEYED TO PEARSON;
THENCE WEST" 175.00 FEET TO THE POINT OF BEGINNING.
PARCEL 4: (APN: 405- 252 -03)
THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST IN THE LAND
ALLOTTED TO JACOB ROSS IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO
DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12, 1868, IN BOOK B, PAGE 410 OF
JUDGEMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS
ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTERLINE OF LOUISE STREET, AS DESCRIBED IN THE DEED
TO THE CITY OF SANTA ANA, RECORDED JUNE 20, 1924, IN BOOK 531, PAGE 6 OF DEEDS,
RECORDS OF ORANGE COUNTY, CALIFORNIA, DISTANT THEREON 285.74 FEET SOUTHERLY
FROM THE NORTH LINE OF SAID SECTION 12;
THENCE WESTERLY PARALLEL WITH THE NORTH LINE OF SAID SECTION, A DISTANCE OF
174.62 FEET TO A LINE WHICH IS PARALLEL WITH AND DISTANT ANT 174.62 FEET EASTERLY FROM
THE SURVEYED CENTERLINE OF BRISTOL STREET;
THENCE SOUTHERLY PARALLEL WITH SAID CENTERLINE OF BRISTOL STREET, 50.00 FEET;
THENCE EASTERLY PARALLEL WITH THE NORTH LINE OF SAID SECTION 12, A DISTANCE OF
174.62 FEET TO THE CENTERLINE OF LOUISE STREET;
THENCE NORTHERLY ALONG SAID CENTERLINE 50.00 FEET TO THE POINT OF BEGINNING.
PARCEL 5: (APN: 405- 252 -23)
THAT PORTION OF SECTION 12, TOWNSHIP 5 SOUTH, RANGE 10 WEST IN THE LAND
ALLOTTED TO JACOB ROSS IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO
DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12, 1868, IN BOOK B, PAGE 410 OF
JUDGEMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS
ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTH 6 ACRES OF A PARCEL OF LAND
DESCRIBED AS BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 12;
THENCE SOUTH 10 CHAINS ALONG THE WEST LINE OF SAID SECTION;
THENCE EAST 10.59 CHAINS;
THENCE NORTH 10 CHAINS;
THENCE WEST 10.59 CHAINS TO THE POINT OF BEGINNING OF SAID PARCEL, SAID
NORTHWEST CORNER OF SAID SOUTH 6 ACRES BEING SOUTHERLY 285.74 FEET FROM THE
75D -10
LEGAL DESCRIPTION (Continued)
NORTHWEST CORNER OF SAID SECTION 12;
THENCE EASTERLY 174.62 FEET ALONG THE NORTH LINE OF SAID SOUTH 6 ACRES;
THENCE SOUTHERLY 50.00 FEET PARALLEL WITH THE WESTERLY LINE OF SAID SECTION 12;
THENCE WESTERLY 174.62 FEET PARALLEL WITH THE NORTH LINE OF SAID SOUTH 6 ACRES
TO THE WESTERLY LINE OF SAID SECTION 12;
THENCE NORTHERLY 50.00 FEET TO THE POINT OF BEGINNING.
EXCEPT THE WESTERLY 30.00 FEET THEREOF.
75D -11
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LIDGARD AND ASSOCIATES
APPRAISERS - CONSULTANTS
75D -12
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75D -12
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REQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 6, 2010
TITLE:
PUBLIC HEARING - RESOLUTION
AUTHORIZING CONDEMNATION OF
REAL PROPERTY AT 2235 SOUTH
BRISTOL STREET
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on V' Reading
❑ Ordinance on 2n° Reading
❑ Implementing Resolution
❑ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Adopt a resolution authorizing the condemnation of the entire real property located at 2235 South
Bristol Street and declaring the public necessity and interest therefore.
DISCUSSION
On March 6, 2006, the City Council approved the cooperative agreement between the City and
the Orange County Transportation Authority to fund Bristol Street improvements from Warner
Avenue to Seventeenth Street. The first phase of the project, between Pine and McFadden, is
under construction and is expected to be completed by December 2010. As part of the street
widening, the City is improving the intersections of Bristol Street and Warner Avenue. Measure M
funding has been approved for the intersection widening for the amount of $3.182 million.
Improvements include a third westbound lane on Warner, right -turn lanes, and dual left -turn lanes
on Bristol (Exhibit 1). These improvements will result in improved traffic flow and level of service.
In order to accommodate these improvements, property acquisition of the entire parcel at 2235
South Bristol is required. A good faith offer was made and negotiations started in December
2009, but a final settlement has not been reached.
Negotiations will continue with the property owner. However, to meet the project schedule and
the funding deadline of March 2011, it is necessary to commence eminent domain proceedings.
Staff is requesting adoption of a resolution of necessity and initiation of condemnation
proceedings.
ENVIRONMENTAL IMPACT
In accordance with the California Environmental Quality Act, the proposed project has been
determined to be adequately evaluated in the previously prepared Environmental Impact
Report/Environmental Impact Assessment EIR No. 89 -01 approved by City Council in 1990.
75E -1
Public Hearing - Resolution Authorizing
Condemnation of Real Property at
2235 South Bristol Street
December 6, 2010
Page 2
FISCAL IMPACT
Funds are appropriated in the Measure M Select Street Construction Fund (accounting unit
03217660- 66220) and Select Street Construction Fund (accounting unit 05917661- 66100).
Raul Godinez II
Executive Direc r
Public Works Agency
RG /SA
Exhibit: 1. Location Map
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director fiO
Finance & Management Services Agency
75E -2
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SANTA ANA C" COMCL TITLE:
PWA ALMA DATE
DEMABER 2M
PUBLIC W 6. OR�S AGENCY
MEME mqlvd MA ~ :
T-----------------------r---------------
WARNER AVE
EXHIBIT 1
PUBLIC FEARING - RESOLUTION
AUTHOFKZNG CONDEMNATION
OF REAL PROPERIIES
AT 2235 S. BRISTOL STREET
lit
F' [(XN TA ]AN A'
75E -4
RESOLUTION NO. 2010-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA AUTHORIZING THE ACQUISITION OF
PROPERTY LOCATED AT 2235 SOUTH BRISTOL
STREET, SANTA ANA (ASSESSOR'S PARCEL NUMBER
015 - 194 -40) BY EMINENT DOMAIN
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. The City of Santa Ana is authorized to acquire the parcel described in Exhibit
1 herein and exercise the power of eminent domain for the public use set
forth herein in accordance with the California Constitution and the California
Eminent Domain Law, section 200 of the Santa Ana Charter, Santa Ana
Municipal Code sections 41 -781, Code of Civil Procedure section 1230.010 et
seq., and pursuant to inter alia, sections 1240.010, 1240.110, 1240.120,
1255.410, 1240.150, 1240.410, and 1240.510 of the California Code of Civil
Procedure, Government Code sections 37350.5 and 40404, California Streets
and Highways Code sections 943, 5100, 5101, 5101.5, 5102, 10102 and
other applicable law.
B. The real property described herein is required for the widening of Bristol
Street and related improvements.
C. The property to be acquired consists of the property in Exhibit 1, attached
hereto and incorporated herein by reference, including a map thereof.
D. A Notice of Hearing regarding adoption of a Resolution of Necessity for
acquisition by eminent domain of the real property described in Exhibit 1
herein was mailed, in accordance with Code of Civil Procedure section
1245.235, to all persons whose names appear on the last equalized County
Assessment Roll as having an interest in the property described in Exhibit 1,
and to the addresses appearing on the Assessment Roll. The Notice of
Hearing advised the afore described persons of their right to be heard on the
matters referred to therein, pursuant to and consistent with Code of Civil
Procedure sections 1240.030 and 1245.230, on the date and at the time and
place stated therein.
E. The hearing set out in said Notice of Hearing was held on December 6, 2010,
at the time and place stated therein, and all interested parties were given an
opportunity to be heard.
Resolution No. 2010 -XXX
75E -5 Page 1 of
Section 2. The City Council further finds and declares as follows:
A. The Public Interest and necessity require the project.
B. The proposed project is planned or located in a manner that will be the
most compatible with the greatest public good and least private injury.
C. The property interests sought to be acquired are necessary for the
proposed project.
D. An offer to purchase the property was made to the property owner of
record by the City, in accordance with Government Code section 7267.2.
E. All conditions and statutory requirements necessary to exercise the power
of Eminent Domain ( "the right to take ") to acquire the properties described
herein have been complied with by the City.
F. The City of Santa Ana has statutory authority to acquire the property by
eminent domain.
G. The use for which any publicly owned property is to be taken is a use that
will not unreasonably interfere with or impair the continuance of the public
use as it presently exists or may reasonably be expected to exist in the
future, and is therefore authorized by Code of Civil Procedure section
1240.510.
H. The use for which any publicly owned property is to be taken is a more
necessary public use than that to which the properties are currently
appropriated and the taking as to any publicly owned property is for a
more necessary public use consistent with and authorized by Code of Civil
Procedure section 1240.610.
Section 3. The City Council has, as a result of its consideration and the
evidence presented at the hearings on this matter, and in accordance with the California
Environmental Quality Act ( "CEQA ") and the State CEQA Guidelines, determined that
the proposed project has been adequately evaluated in the previously prepared
Environmental Impact Report/Environmental Impact Statement EIR No. 89.01 and all
subsequent addenda. On the basis of this review, the City Council finds that there is no
evidence from which it can be fairly argued that the Project will have a significant
adverse effect on the environment.
Section 4. Pursuant to Title XIV, California Code of Regulations ( "CCR ")
section 735.5(c)(1), the City Council has determined that, after considering the record
as a whole, there is no evidence that the proposed project will have the potential for any
adverse effect on wildlife resources or the ecological habitat upon which wildlife
Resolution No. 2010 -XXX
Page 2 of 4
75E -6
resources depend. The proposed project exists in an urban environment characterized
by paved concrete, roadways, surrounding buildings and human activity. Therefore,
pursuant to Fish and Game Code section 711.2 and Title XIV, CCR section 735.5(a)(3),
the payment of Fish and Game Department filing fees in not required in conjunction with
this project.
Section 5. The City Attorney is hereby authorized:
A. To acquire in the name of the City of Santa Ana, by condemnation, the
property described in Exhibit 1, attached hereto and incorporated herein by
this reference in accordance with the provisions of the California Eminent
Domain Law and the Constitution of California.
B. To acquire the property in fee simple absolute unless a lesser estate is
described in Exhibit 1, herein.
C. To prepare or have prepared and to prosecute in the name of the City such
proceedings in the proper court as are necessary for such acquisition.
D. To deposit the probable amount of compensation based on an appraisal, and
to apply to said court for an order permitting the City to take immediate
possession and use of said property for said public uses and purposes.
Section 6. This Resolution shall take effect immediately upon its adoption by the
City Council, and the Clerk of the Council shall attest to and certify the vote adopting
this Resolution.
Adopted this day of
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
AYES:
Jose Sandoval
Chief Assistant City Attorney
Councilmembers
NOES: Councilmembers
2010.
Miguel A. Pulido
Mayor
75E -7
Resolution No. 2010 -XXX
Page 3 of 4
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 2010.
Date:
Resolution No. 2010 -XXX
Page 4 of 4
Maria D. Huizar
Clerk of the Council
City of Santa Ana
75E -8
EXHIBIT 'A'
Date: January 15, 2009
File No.: -0 -SA- 3195804 ( 22)
LOT(S) 185 AND 186 OF TRACT NO. 1192, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 39 PAGE(S) 16 AND 17, OF MISCELLANEOUS
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THAT PORTION DEEDED TO THE CITY OF SANTA ANA, IN DEED RECORDED APRIL 22, 1976
IN BOOK 11711, PAGE 1284, OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
BEGINNING THE NORTHWEST CORNER OF SAID LOT 186; THENCE NORTH 891152'10" EAST ALONG
THE NORTH LINE OF SAID LOT 186 A DISTANCE OF 10.00 FEET TO A POINT ON A LINE PARALLEL
TO AND DISTANCE EASTERLY 50.00 FEET MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE
OF BRISTOL STREET, SAID CENTERLINE AS SHOWN ON SAID MAP RECORDED IN BOOK 39, PAGE
17, OF MISCELLANEOUS MAPS OF ORANGE COUNTY; THENCE SOUTH 00 10'45" WEST 85.24 FEET
ALONG SAID PARALLEL LINE TO THE POINT OF TANGENCY OF SAID PARALLEL LINE TO A CURVE
CONCAVE NORTHEASTERLY HAVING A RADIUS OF 25.00 FEET, A RADIAL OF SAID CURVE
SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 900 18' 35" AN ARC
DISTANCE OF 39.35 FEET TO THE POINT OF TANGENCY OF SAID CURVE TO A LINE PARALLEL TO
AND DISTANT NORTHERLY 49.00 FEET, MEASURED AT RIGHT ANGLES, FORM THE CENTERLINE OF
WARNER AVENUE, SAID CENTERLINE AS SHOWN ON SAID MAP, SAID POINT OF TANGENCY BEING
ALSO A POINT OF CUSP; THENCE SOUTH 890 52'10" WEST ALONG SAID PARALLEL LINE A
DISTANCE OF 10.00 FEET TO THE POINT OF TANGENCY OF SAID PARALLEL LINE TO A CURVE
CONCAVE NORTHEASTERLY HAVING A RADIUS OF 25.00 FEET, A RADIAL OF SAID CURVE THROUGH
LAST SAID POINT OF TANGENCY BEARS SOUTH 00 07' 50" EAST; THENCE NORTHWESTERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 900 18'35" AN ARC DISTANCE OF 39.35 FEET TO THE
POINT OF TANGENCY OF SAID CURVE TO A LINE PARALLEL TO AND DISTANT EASTERLY 40.00 FEET
FROM THE SAID CENTERLINE OF BRISTOL STREET, SAID POINT OF BEING ALSO ON THE WEST LINE
OF SAID LOT 185; THENCE NORTH 01 101 45" EAST A DISTANCE OF 85.24 FEET ALONG LAST SAID
PARALLEL LINE TO THE POINT OF BEGINNING.
A.P.N. 015- 194 -40
EXIRBI't Ll-
75E -9
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REQUEST FOR COUNCIL/
AGENCY / FINANCING
AUTHORITY ACTION
MEETING DATE:
DECEMBER 6, 2010
CLERK OF COUNCIL USE ONLY:
TITLE: APPROVED
❑ As Recommended
RESOLUTIONS APPROVING PURCHASE, ISSUANCE ❑ As Amended
AND SALE OF TAX ALLOCATION BONDS AND ❑ Ordinance on 1st Reading
TAXABLE RECOVERY ZONE ECONOMIC ❑ Ordinance on 2nd Reading
DEVELOPMENT BONDS AND APPROVING ❑ Implementing Resolution
RELATED DOCUMENTS AND ACTIONS ❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
CITY MANAGER EXECUTIVE ]RECTOR
RECOMMENDED ACTION
CITY COUNCIL ACTION
Adopt a resolution approving the issuance and sale of the tax allocation bonds of the Community
Redevelopment Agency of the City of Santa Ana to finance and refinance redevelopment activities
within or for the benefit of the Agency's Merged Project Area.
COMMUNITY REDEVELOPMENT AGENCY ACTION
1. Adopt a resolution authorizing the issuance and sale of tax allocation bonds to finance and
refinance redevelopment activities within or for the benefit of the Agency's Merged Project
Area and approving related documents and actions.
2. Authorize the payment of the credit rating fee to Standard and Poors in an amount not to
exceed $27,000.
3. Authorize the payment of the credit rating fee to Fitch Ratings in an amount not to exceed
$30,000.
4. Authorize the payment of fees to Keyser Marston Associates, Inc. for preparation of the Fiscal
Consultant Report and related services in an amount not to exceed $35,000.
5. Direct the Agency General Counsel to prepare and authorize the Executive Director and
Agency Secretary to execute agreements with the financing team composed of financial
advisor CSG Advisors, Incorporated (up to $85,000 plus expenses), underwriters Stone and
Youngberg and De La Rosa & Co. (expected $6.00 -$6.25 per $1,000 of bonds, approximately
Resolutions - Tax Allocation Bonds
December 6, 2010
Page 2
$470,000), bond counsel Quint & Thimmig (up to $110,000 plus expenses), and special
disclosure counsel Stradling, Yocca, Carlson & Rauth (up to $90,000 plus expenses), subject
to non - substantive changes approved by the Executive Director and Agency General
Counsel.
FINANCING AUTHORITY ACTION
Adopt a resolution authorizing the purchase and sale of tax allocation bonds of the Community
Redevelopment Agency of the City of Santa Ana issued to finance redevelopment activities within
or for the benefit of the Agency's Merged Project Area and approving related documents and
actions.
DISCUSSION
The proposed actions will facilitate a refinancing of existing Agency debt, as well as allow for the
issuance of approximately $6 million in new debt to finance improvements to the public parking
structures in the Downtown.
The City received an allocation of $5,872,000 for Recovery Zone Economic Development Bonds
(RZEDB) which allow for the construction of public infrastructure facilities. Capital improvements,
including security enhancements, structural repairs, architectural enhancements and energy -
efficient improvements to the Downtown parking facilities are proposed to be funded with the
proceeds of the Recovery Zone Bonds. The federal government will provide a subsidy equal to
45% of the interest cost over the life of the bonds to the City, resulting in a considerable cost
savings.
Over the last several years, the Redevelopment Agency has taken a number of steps to maximize
the effectiveness of the Redevelopment program, including merging all six Project areas,
eliminating the dates in the Redevelopment Plans to incur debt, planning time limits and exploring
bond refinancing opportunities.
In 1998, the Santa Ana Financing Authority issued bonds which refunded (refinanced) prior
Agency 1989 bonds and obligations. In 2008, the Agency initiated an effort to refund the 1998
bonds, but the market deteriorated significantly, thereby raising the Agency's borrowing costs to
unacceptable levels. Recently, financial conditions stabilized and interest rates have been more
favorable. When we initiated the refunding analysis over 60 days ago, the Agency's borrowing rate
had decreased below 5 %. However, due to recent volatility in the bond market and the high
volume of bonds slated to be issued by year's end, the market conditions may change and impact
interest rates.
Even with these uncertain borrowing conditions, the restructuring of the Agency's existing debt can
improve net cash flow by approximately $3 to $4 million per year through 2018 so that funds are
available to repay other existing obligations, including those created by State ERAF and SERAF
x:11
Resolutions - Tax Allocation Bonds
December 6, 2010
Page 3
payments. The Agency has been required to pay to the State just under $39 million beginning in
FY 1992. This includes the most recent payment of $17.9 million in FY 2009 -10, and another $3.7
million due in May 2011. State "take aways" have resulted in the elimination of funding for needed
capital projects in the various project areas, reduction in staff, and borrowing over $10 million from
the Low and Moderate Housing Fund, and $6.3 million from the South Main Corridor Fund. With
the current economic downturn, the Agency's tax increment revenues have diminished, thereby
affecting its cash flow. Without this refunding, it will be very difficult for the Agency to repay the two
borrowings within the required time limits and impact its ability to facilitate development activities in
the City.
The proposed action authorizes the issuance of up to $75 million in tax allocation and Recovery
Zone bonds assuming favorable market conditions at the time of bond pricing in mid - December. If
market conditions have deteriorated at pricing, the resolution authorizes the Executive Director of
the Community Redevelopment Agency to postpone the financing until early 2011. This will allow
the greatest flexibility in order to time the sale and issuance of the bonds to the Agency's best
advantage. Under the federal legislation, any issuance of RZEDBs must be closed by December
31, 2010. If the Agency elects not to issue by December 31, 2010, thereby losing the RZEBD
allocation, the Agency can still issue an additional $6 million of tax allocation bonds in early 2011
to finance the required improvements to the downtown parking structures as traditional tax exempt
bonds. Under the terms of the 1998 bonds, the refunding must close no later than March 1, 2011,
or else it will need to be delayed until after June 1, 2011.
When the Agency first initiated refunding of the 1998 Bonds in 2008, a competitive Request for
Proposal process resulted in the Agency's selection of Stone & Youngberg as lead bond
underwriter, with De La Rosa & Co. assisting in marketing of the bonds for purchase. The firm of
Quint & Thimmig LLP is serving as bond counsel; CSG Advisors as financial advisor; and Stradling
Yocca Carlson & Rauth as disclosure counsel. The firm of Keyser Marston Associates, Inc. is
serving as fiscal consultant and Jones Hall as underwriter counsel. All costs associated with this
transaction will be paid at closing with bond proceeds, with the exception of the Standard and
Poors and Fitch Ratings credit rating fees (up to $27,000 and $30,000 respectively), and Keyser
Marston's fiscal consultant fees (up to $35,000), which will need to be paid even if the transaction
is postponed until 2011. The final compensation for the financing team will be determined based
on the size and structure of the bond issuance and market conditions at the time of the sale. The
proposed compensation will be as follows: CSG Advisors, financial advisor, an amount not to
exceed $85,000 plus expenses; Quint & Thimmig, bond counsel's compensation will be as follows:
1% of the first $1,000,000, .5% of the next $5,000,000, .25% of the next $15,000,000, and .125%
of the remaining principal, not to exceed $110,000, plus out -of- pocket costs not to exceed $5,000;
Stradling, Yocca, Carlson & Rauth, disclosure counsel, an amount not to exceed $90,000 plus out -
of- pocket expenses not to exceed $1,500. The proposed underwriter's discount is $6.00 -
$6.25/$1,000 of bonds, approximately $470,000; however, due to current market conditions, the
underwriter's discount may need to be adjusted at the time of bond sale. Separately, both
underwriting firms have executed an Agreement Among Underwriters stipulating each firm's share
�;117'Asa
Resolutions - Tax Allocation Bonds
December 6, 2010
Page 4
of the underwriting fees. All of the bond transaction documents, including the Preliminary Official
Statement, Indenture and Bond Purchase Agreement, are on file with the Clerk of the Council.
FISCAL IMPACT
All costs associated with this transaction will be paid at closing with bond proceeds, with the
exception of the Standard and Poors and Fitch Ratings credit rating fees (up to $27,000 and
$30,000 respectively), and Keyser Marston's fiscal consultant fees (up to $35,000), which will need
to be paid even if the transaction is postponed until 2011. Funds are available in the Merged
Project Area Admin Account (no. 57018843 - 62300/03717801022. Proceeds from the sale of the
Recovery Zone Economic Development Bonds will be deposited in the 2010 Tax Allocation
Refunding Bond Series A and Bond Series B, and Recovery Zone Economic Development Bond
accounts.
Cynthia J. Nelson
Deputy City Manager for
Development Services
Community Development Agency
CJN /NTE /mlr
Exhibit: 1. Council Resolution
2. CRA Resolution
3. Santa Ana Financing
Authority Resolution
X961 j 7
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency /-
JF 12/1/10
RESOLUTION NO. 2010 -XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA
ANA APPROVING THE ISSUANCE AND SALE OF TAX ALLOCATION
BONDS OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF SANTA ANA TO FINANCE AND REFINANCE
REDEVELOPMENT ACTIVITIES WITHIN OR FOR THE BENEFIT OF
THE AGENCY'S MERGED PROJECT AREA
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds, determines
and declares as follows:
A. the Community Redevelopment Agency of the City of Santa Ana (the
"Agency ") is a public body, corporate and politic, duly established and
authorized to transact business and exercise powers under and pursuant
to the provisions of the Community Redevelopment Law of the State of
California, constituting Part 1 of Division 24 of the California Health and
Safety Code (the "Law "), including the power to issue 2010 Bonds for any
of its corporate purposes
B. the Agency adopted six redevelopment project areas between 1973 and
1989, including the Central City Redevelopment Project Area, the Inter -
City Commuter Station Redevelopment Project Area, the North Harbor
Boulevard Redevelopment Project Area, the South Harbor
Boulevard /Fairview Street Redevelopment Project Area, the South Main
Redevelopment Project Area, and the Bristol Corridor Redevelopment
Project Area (the "constituent Redevelopment Projects" or
"Redevelopment Projects ");;
C. to allow tax increment revenues to be shared between Redevelopment
Projects and thereby facilitate redevelopment of the Redevelopment
Projects, the Redevelopment Projects were merged in 2004 in compliance
with all requirements of the Law, creating the Merged Project Area; and
D. the Redevelopment Projects continue to retain their respective
boundaries, time, and financial limits;;
i
8O-5 �5 ,esolution No. 2010 -XXX
/� Page 1 of 4
E. the Agency has determined that, due to financial conditions of the Agency
and prevailing financial market conditions, it is in the best interests of the
Agency at this time to finance and refinance redevelopment activities for
the benefit of the Redevelopment Projects and, in particular, to:
(a) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series A (City of Santa Ana
and South Harbor Boulevard /Fairview Street Redevelopment Projects)
(the "1998A Bonds "),
(b) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series B (City of Santa Ana
and South Harbor Boulevard /Fairview Street Redevelopment Projects)
(the "1998B Bonds "),
(c) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series C (Inter -City Commuter
Station Redevelopment Project) (the "1998C Bonds "),
(d) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series D (MainPlace Project)
(the "1998D Bonds" and, with the 1998A Bonds, the 1998B Bonds and the
1998C Bonds, the "1998 Bonds "), and
(e) finance certain public parking and infrastructure improvements (the
"2010 Project ");
F. to provide moneys to refund the 1998 Bonds and, if for any reason the
Agency is unable to issue or determines not to issue the 2010B Bonds
(hereinafter defined), to finance the 2010 Project, the Agency has
determined to issue its Community Redevelopment Agency of the City of
Santa Ana Tax Allocation Bonds (Merged Project Area), 2010 Series A, in
the aggregate principal amount of not to exceed $75,000,000 (the "2010A
Bonds "), under the provisions of Article 9 of Chapter 3 (commencing with
section 53570) of Division 2 of Title 5 of the California Government Code
and, if the 2010A Bonds include provision for the 2010 Project, under the
provisions of Part 1 of Division 24 of the California Health and Safety
Code, commencing with section 33640 of said Code;
G. the American Recovery and Reinvestment Act of 2009 (the "Federal
Stimulus Act "), added sections 14000 -1 and 14000 -2 to the Internal
Revenue Code of 1986 (the "Code "), authorizing state and local
governmental agencies to issue recovery zone economic development
bonds ( "Recovery Zone Economic Development Bonds ") upon compliance
with various requirements of the Code;
Resolution No. 2010 -XXX 80A -6
Page 2 of 4
H. among other requirements, the Code requires that the net proceeds of any
Recovery Zone Economic Development Bonds be used for a "qualified
economic development purpose," including to fund capital expenditures
paid or incurred with respect to property located in a "recovery zone;"
on August 17, 2009, the City Council of the City of Santa Ana (the "City ")
adopted Resolution No. 2009 -046, designating the City as a "recovery
zone" (the "Santa Ana Recovery Zone ") for purposes of section 14000-
1(b) of the Code;
J. under the Federal Stimulus Act, the City has been allocated the authority
to issue up to $5,872,000 principal amount of Recovery Zone Economic
Development Bonds;
K. to finance the 2010 Project, which will promote development or other
economic activity in the Santa Ana Recovery Zone, as contemplated by
section 14000 -2(c) of the Code, the Agency has determined to issue its
Community Redevelopment Agency of the City of Santa Ana Tax
Allocation Bonds (Merged Project Area — Taxable Recovery Zone
Economic Development Bonds), 2010 Series B, in the aggregate principal
amount of not to exceed $5,870,000 (the "201013 Bonds" and, with the
2010A Bonds, the "2010 Bonds "), under the provisions of the
Redevelopment Bond Law;
L. the 2010B Bonds will be issued as bonds the interest on which is not
excluded from gross income for purposes of federal income taxation;
M. the Agency expects to receive a cash subsidy payment from the United
States Treasury equal to 45% of the interest payable on the 2010B Bonds;
N. the 2010 Bonds will be secured by a pledge of and lien on certain tax
increment revenues allocated to the Agency for the Redevelopment
Projects; and
O. in accordance with the requirements of section 33640 of the California
Health and Safety Code, the City Council wishes at this time to approve
the issuance and sale of the 2010 Bonds by the Agency;
SECTION 2. Approval of the 2010 Bonds. The issuance and sale of the 2010
Bonds by the Agency to refund the 1998 Bonds and to finance the 2010 Project, is
hereby approved.
80 w �� Resolution No. 2010 -XXX
/� Page 3 of 4
SECTION 3. Effect. This Resolution shall take effect from and after the date of its
passage and adoption.
ADOPTED this day of , 2010.
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
AYES:
NOES:
ABSTAIN:
NOT PRESENT:
Councilmembers
Councilmembers
Councilmembers
Councilmembers
Miguel A. Pulido
Mayor
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUISAR, Clerk of the Council, do hereby attest to and certify the attached
Resolution No. 2010 -XXX to be the original resolution adopted by the City Council of the
City of Santa Ana on
Date:
Clerk of the Council
City of Santa Ana
Resolution No. 20"0 -XXX
Page 4 of 4 8OA -8
CRA RESOLUTION NO. 2010-
A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF SANTA ANA AUTHORIZING THE ISSUANCE AND SALE
OF TAX ALLOCATION BONDS TO FINANCE AND REFINANCE
REDEVELOPMENT ACTIVITIES WITHIN OR FOR THE BENEFIT OF
THE AGENCY'S MERGED PROJECT AREA AND APPROVING
RELATED DOCUMENTS AND ACTIONS
BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF SANTA ANA, AS FOLLOWS:
Section 1. The Board of the Community Redevelopment Agency of the City of
Santa Ana hereby finds, determines and declares as follows:
A. the Agency is a public body, corporate and politic, duly established
and authorized to transact business and exercise powers under
and pursuant to the provisions of the Community Redevelopment
Law of the State of California, constituting Part 1 of Division 24 of
the California Health and Safety Code (the "Law "), including the
power to issue 2010 Bonds for any of its corporate purposes;
B. the Agency adopted six redevelopment project areas between
1973 and 1989, including the Central City Redevelopment Project
Area, the Inter City Commuter Station Redevelopment Project
Area, the North Harbor Boulevard Redevelopment Project Area,
the South Harbor Boulevard /Fairview Street Redevelopment
Project Area, the South Main Street Redevelopment Project Area,
and the Bristol Corridor Redevelopment Project Area (the
"constituent Redevelopment Projects" or "Redevelopment
Projects ");
C. to allow tax increment revenues to be shared between
Redevelopment Projects and thereby facilitate redevelopment of
the Redevelopment Projects, the Redevelopment Projects were
merged in 2004 in compliance with all requirements of the Law,
creating the Merged Project Area;
D. the Redevelopment Projects continue to retain their respective
boundaries, time, and financial limits;
E. the Agency has determined that, due to financial conditions of the
Agency and prevailing financial market conditions, it is in the best
interests of the Agency at this time to finance and refinance
80A-9 19036.02
redevelopment activities for the benefit of the Redevelopment
Projects and, in particular, to:
(1) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series A (City of Santa
Ana and South Harbor Boulevard /Fairview Street Redevelopment
Projects) (the "1998A Bonds "),
(2) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series B (City of Santa
Ana and South Harbor Boulevard /Fairview Street Redevelopment
Projects) (the "19988 Bonds "),
(3) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series C (Inter -City
Commuter Station Redevelopment Project) (the "1998C Bonds "),
(4) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series D (MainPlace
Project) (the "1998D Bonds" and, with the 1998A Bonds, the 1998B
Bonds and the 1998C Bonds, the "1998 Bonds "), and
(5) finance certain public parking and infrastructure improvements
(the "2010 Project ");
F. to provide moneys to refund the 1998 Bonds and, if for any reason
the Agency is unable to issue or determines not to issue the 2010B
Bonds (hereinafter defined), to finance the 2010 Project, the
Agency has determined to issue its Community Redevelopment
Agency of the City of Santa Ana Tax Allocation Bonds (Merged
Project Area), 2010 Series A, in the aggregate principal amount of
not to exceed $75,000,000 (the "2010A Bonds "), under the
provisions of Article 9 of Chapter 3 (commencing with section
53570) of Division 2 of Title 5 of the California Government Code
(the "Refunding Bond Law ") and, if the 2010A Bonds include
provision for the 2010 Project, under the provisions of Part 1 of
Division 24 of the California Health and Safety Code, commencing
with section 33640 of said Code (the "Redevelopment Bond Law ");
G. the American Recovery and Reinvestment Act of 2009 (the
"Federal Stimulus Act "), added sections 14000 -1 and 14000 -2 to
the Internal Revenue Code of 1986 (the "Code "), authorizing state
and local governmental agencies to issue recovery zone economic
development bonds ( "Recovery Zone Economic Development
Bonds ") upon compliance with various requirements of the Code;
H. among other requirements, the Code requires that the net
proceeds of any Recovery Zone Economic Development Bonds be
1
used for a "qualified economic development purpose," including to
fund capital expenditures paid or incurred with respect to property
located in a "recovery zone;"
on August 17, 2009, the City Council of the City of Santa Ana (the
"City ") adopted Resolution No. 2009 -046, designating the City as a
"recovery zone" (the "Santa Ana Recovery Zone ") for purposes of
section 14000 -1(b) of the Code;
J. under the Federal Stimulus Act, the City has been allocated the
authority to issue up to $5,872,000 principal amount of Recovery
Zone Economic Development Bonds;
K. to finance the 2010 Project, which will promote development or
other economic activity in the Santa Ana Recovery Zone, as
contemplated by section 14000 -2(c) of the Code, the Agency has
determined to issue its Community Redevelopment Agency of the
City of Santa Ana Tax Allocation Bonds (Merged Project Area —
Taxable Recovery Zone Economic Development Bonds), 2010
Series B, in the aggregate principal amount of not to exceed
$5,870,000 (the "201013 Bonds" and, with the 2010A Bonds, the
"2010 Bonds "), under the provisions of the Redevelopment Bond
Law;
L. the 201013 Bonds will be issued as bonds the interest on which is
not excluded from gross income for purposes of federal income
taxation;
M. the Agency expects to receive a cash subsidy payment from the
United States Treasury equal to 45% of the interest payable on the
2010B Bonds;
N. the 2010 Bonds will be secured by a pledge of and lien on certain
tax increment revenues allocated to the Agency for the
Redevelopment Projects; and
O. the Agency has duly considered such transactions and wishes at
this time to authorize proceedings for the issuance and sale of the
2010 Bonds;
SECTION 2. Authorization. The Agency hereby authorizes the issuance of the
2010A Bonds to refund the 1998 Bonds and, if for any reason the Agency is unable to
issue or determines not to issue the 2010B Bonds (hereinafter defined), to finance the
2010 Project, and authorizes the issuance of the 2010B Bonds. The 2010A Bonds will
not include provision for the 2010 Project if the 2010B Bonds are issued. The 2010B
Bonds will not be issued unless the 2010A Bonds are also issued although the 2010A
Bonds may be issued alone.
-3-
80--11
SECTION 3. Issuance of the 2010 Bonds, of the Indenture. The 2010A
Bonds shall be issued pursuant to the Refunding Bond Law and, if the 2010A Bonds
include provision for the 2010 Project, pursuant to the Redevelopment Bond Law, and
pursuant to an indenture of trust (the "Indenture "), by and between the Agency and The
Bank of New York Mellon Trust Company, N.A., as trustee (the "Indenture "). The 2010B
Bonds shall be issued pursuant to the Redevelopment Bond Law and pursuant to the
Indenture. The Agency hereby approves the Indenture in the form on file with the
Secretary, together with such additions thereto and changes therein as the Executive
Director, or any designee thereof, shall deem necessary, desirable or appropriate, and
the execution thereof by the Executive Director, or any designee thereof, shall be
conclusive evidence of the approval of any such additions and changes. The Executive
Director, or any designee thereof, is hereby authorized and directed to execute, and the
Secretary is hereby authorized and directed to attest to, the final form of the Indenture
for and in the name and on behalf of the Agency. The Agency hereby authorizes the
delivery and performance of the Indenture.
SECTION 4. Approval of the Escrow Agreements.
(a) The Agency hereby approves an escrow agreement relating to the refunding
of the 1998A Bonds (the "1998A Escrow Agreement "), by and among the Santa Ana
Financing Authority (the "Authority "), the Agency and The Bank of New York Mellon
Trust Company, N.A., as escrow bank (the "Escrow Bank "), in the form on file with the
Secretary, together with such additions thereto and changes therein as the Executive
Director, or any designee thereof, shall deem necessary, desirable or appropriate, and
the execution thereof by the Executive Director, or any designee thereof, shall be
conclusive evidence of the approval of any such additions and changes. The Executive
Director, or any designee thereof, is hereby authorized and directed to execute, and the
Secretary is hereby authorized and directed to attest to, the final form of the 1998A
Escrow Agreement for and in the name and on behalf of the Agency. The Agency
hereby authorizes the delivery and performance of the 1998A Escrow Agreement.
(b) The Agency hereby approves an escrow agreement relating to the refunding
of the 1998B Bonds (the "1998B Escrow Agreement'), by and among the Authority, the
Agency and the Escrow Bank, in the form on file with the Secretary, together with such
additions thereto and changes therein as the Executive Director, or any designee
thereof, shall deem necessary, desirable or appropriate, and the execution thereof by
the Executive Director, or any designee thereof, shall be conclusive evidence of the
approval of any such additions and changes. The Executive Director, or any designee
thereof, is hereby authorized and directed to execute, and the Secretary is hereby
authorized and directed to attest to, the final form of the 1998B Escrow Agreement for
and in the name and on behalf of the Agency. The Agency hereby authorizes the
delivery and performance of the 1998B Escrow Agreement.
(c) The Agency hereby approves an escrow agreement relating to the refunding
of the 1998C Bonds (the "1998C Escrow Agreement'), by and among the Authority, the
Agency and the Escrow Bank, in the form on file with the Secretary, together with such
additions thereto and changes therein as the Executive Director, or any designee
-4-
80--12
thereof, shall deem necessary, desirable or appropriate, and the execution thereof by
the Executive Director, or any designee thereof, shall be conclusive evidence of the
approval of any such additions and changes. The Executive Director, or any designee
thereof, is hereby authorized and directed to execute, and the Secretary is hereby
authorized and directed to attest to, the final form of the 1998C Escrow Agreement for
and in the name and on behalf of the Agency. The Agency hereby authorizes the
delivery and performance of the 1998C Escrow Agreement.
(d) The Agency hereby approves an escrow agreement relating to the refunding
of the 1998D Bonds (the "1998D Escrow Agreement "), by and among the Authority, the
Agency and the Escrow Bank, in the form on file with the Secretary, together with such
additions thereto and changes therein as the Executive Director, or any designee
thereof, shall deem necessary, desirable or appropriate, and the execution thereof by
the Executive Director, or any designee thereof, shall be conclusive evidence of the
approval of any such additions and changes. The Executive Director, or any designee
thereof, is hereby authorized and directed to execute, and the Secretary is hereby
authorized and directed to attest to, the final form of the 1998D Escrow Agreement for
and in the name and on behalf of the Agency. The Agency hereby authorizes the
delivery and performance of the 1998D Escrow Agreement.
SECTION 5. Sale of the 2010 Bonds. The Agency hereby authorizes the sale of
the 2010A Bonds to the Authority for concurrent re -sale to Stone & Youngberg LLC and
E. J. De La Rosa & Co., Inc. (the "2010A Underwriters "), so long as the total 2010A
Underwriters' discount, excluding original issue discount which does not constitute
compensation to the 2010A Underwriters, does not exceed 1% of the principal amount
of the 2010A Bonds, so long as the true interest cost of the 2010A Bonds does not
exceed 6.5% and so long as the final maturity date of the 2010A Bonds is no later than
September 1, 2035. The Agency hereby authorizes the sale of the 2010B Bonds to the
Authority for concurrent re -sale to Stone & Youngberg LLC (the "2010B Underwriter "),
so long as the total 2010B Underwriter's discount, excluding original issue discount
which does not constitute compensation to the 2010B Underwriter, does not exceed 1 %
of the principal amount of the 2010B Bonds, so long as the true interest cost of the
2010B Bonds does not exceed 9% and so long as the final maturity date of the 2010B
Bonds is no later than September 1, 2035. The Agency hereby approves a bond
purchase agreement relating to the 2010 Bonds, by and among the 2010A
Underwriters, the Authority and the Agency with respect to the 2010A Bonds, and by
and among the 2010B Underwriter, the Authority and the Agency with respect to the
2010B Bonds, in the form on file with the Secretary (the "2010 Bond Purchase
Agreement "), together with such additions thereto and changes therein as the Executive
Director, or any designee thereof, shall deem necessary, desirable or appropriate, and
the execution thereof by the Executive Director, or any designee thereof, shall be
conclusive evidence of the approval of any such additions and changes. The Executive
Director, or any designee thereof, is hereby authorized and directed to execute the final
form of the 2010 Bond Purchase Agreement for and in the name and on behalf of the
Agency.
SECTION 6. Approval of the Preliminary Official Statement. The preliminary
official statement describing the 2010 Bonds on file with the Secretary (the "Preliminary
-5-
80--13
Official Statement ") is hereby approved for distribution by the Underwriter to municipal
bond broker - dealers, to banking institutions and to members of the general public who
may be interested in purchasing the 2010 Bonds. The Executive Director, or any
designee thereof, is authorized to approve, upon advice of Agency counsel,
modifications to the Preliminary Official Statement, from time to time, pending such
distribution as shall be required to cause the Preliminary Official Statement to contain
any further information necessary to accurately describe the 2010 Bonds. With respect
to the distribution of the Preliminary Official Statement, the Executive Director, or any
designee thereof, is authorized and directed, on behalf of the Agency, to deem the
Preliminary Official Statement "final" pursuant to Rule 15c2 -12 under the Securities
Exchange Act of 1934.
SECTION 7. Approval of the Final Official Statement. A final official statement,
which shall include such changes and additions thereto deemed advisable by Executive
Director, or any designee thereof, and upon advice of Agency counsel (the "Final
Official Statement "), is hereby approved for delivery to the purchasers of the 2010
Bonds, and the Executive Director, or any designee thereof, is authorized and directed
to execute the Final Official Statement for and on behalf of the Agency. The Executive
Director, or any designee thereof, is authorized and directed to deliver (i) a certificate
with respect to the information set forth therein, and (ii) a continuing disclosure
certificate substantially in the form appended to the Final Official Statement.
SECTION 8. Bond Counsel and Disclosure Counsel.
(a) Quint & Thimmig LLP, San Francisco, California, is hereby designated as
bond counsel to the Agency in connection with the issuance of the 2010 Bonds. The
Executive Director, or any designee thereof, is hereby authorized and directed in the
name and on behalf of the Agency to execute an agreement for legal services with such
firm, with compensation to be paid there under subject to the approval of the Executive
Director, or any designee thereof.
(b) Stradling Yocca Carlson & Rauth, Newport Beach, California, is hereby
designated as disclosure counsel to the Agency in connection with the issuance of the
2010 Bonds. The Executive Director, or any designee thereof, is hereby authorized and
directed in the name and on behalf of the Agency to execute an agreement for legal
services with such firm, with compensation to be paid there under subject to the
approval of the Executive Director, or any designee thereof.
SECTION 9. Official Actions. The Executive Director and the Secretary, and any
and all other officers of the Agency, are hereby authorized and directed, for and in the
name and on behalf of the Agency, to do any and all things and take any and all
actions, including execution and delivery of any and all assignments, certificates,
requisitions, agreements, notices, consents, instruments of conveyance, warrants and
other documents which they, or any of them, may deem necessary or advisable in order
to consummate the lawful issuance and sale of the 2010 Bonds as described herein.
Whenever in this resolution any officer of the Agency is authorized to execute or
countersign any document or take any action, such execution, countersigning or action
.
may be taken on behalf of such officer by any person designated by such officer to act
on his or her behalf in the case such officer shall be absent or unavailable.
SECTION 10. Effect. This Resolution shall take effect from and after the date of
its passage and adoption.
ADOPTED this day of , 2010.
APPROVED AS TO FORM:
Joseph W. Fletcher
Agency General Counsel
AYES: Boardmembers
NOES: Boardmembers
ABSTAIN: Boardmembers
NOT PRESENT: Boardmembers
Miguel A. Pulido
Chairman
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Secretary of the Agency, do hereby attest to and certify
the attached Resolution No. 2010 -XXX to be the original resolution adopted by
Community Redevelopment Agency of the City of Santa Ana on
Date:
Agency Secretary
-7-
80--15
RESOLUTION NO. SAFA- 2010-
A RESOLUTION OF THE GOVERNING BOARD OF THE
SANTA ANA FINANCING AUTHORITY AUTHORIZING THE
PURCHASE AND SALE OF TAX ALLOCATION BONDS OF
THE COMMUNITY REDEVELOPMENT AGENCY OF THE
CITY OF SANTA ANA ISSUED TO FINANCE
REDEVELOPMENT ACTIVITIES WITHIN OR FOR THE
BENEFIT OF THE AGENCY'S MERGED PROJECT AREA
AND APPROVING RELATED DOCUMENTS AND
ACTIONS
BE IT RESOLVED BY THE SANTA ANA FINANCING AUTHORITY AS
FOLLOWS:
Section 1. The Governing Board of the Santa Ana Financing Authority hereby
finds, determines and declares as follows:
A. the City of Santa Ana (the "City ") and the Community Redevelopment
Agency of the City of Santa Ana (the "Agency ") have heretofore entered
into a Joint Exercise of Powers Agreement, dated as of August 1, 1993,
establishing the Authority for the purpose, among others, of issuing its
bonds to be used to provide financial assistance to the City and to the
Agency;
B. the Agency is a public body, corporate and politic, duly established and
authorized to transact business and exercise powers under and pursuant
to the provisions of the Community Redevelopment Law of the State of
California, constituting Part 1 of Division 24 of the California Health and
Safety Code (the "Law "), including the power to issue 2010 Bonds for any
of its corporate purposes;
C. the Agency adopted six redevelopment project areas between 1973 and
1989, including the Central City Redevelopment Project Area, the Inter -
City Commuter Station Redevelopment Project Area, the North Harbor
Boulevard Redevelopment Project Area, the South Harbor
Boulevard /Fairview Street Redevelopment Project Area, the South Main
Street Redevelopment Project Area, and the Bristol Corridor
Redevelopment Project Area (the "constituent Redevelopment Projects" or
"Redevelopment Projects ");
D. to allow tax increment revenues to be shared between Redevelopment
Projects and thereby facilitate redevelopment of the Redevelopment
Projects, the Redevelopment Projects were merged in 2004 in compliance
with all requirements of the Law, creating the Merged Project Area;
/�
Resolution No. SAFA 2010 -
8OA -16 Page 1 of 2
E. the Redevelopment Projects continue to retain their respective
boundaries, time, and financial limits;
F. the Agency has determined that, due to financial conditions of the Agency
and prevailing financial market conditions, it is in the best interests of the
Agency at this time to finance and refinance redevelopment activities for
the benefit of the Redevelopment Projects and, in particular, to:
(1) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series A (City of Santa Ana
and South Harbor Boulevard /Fairview Street Redevelopment Projects)
(the "1998A Bonds "),
(2) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series B (City of Santa Ana
and South Harbor Boulevard /Fairview Street Redevelopment Projects)
(the "19988 Bonds "),
(3) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series C (Inter -City Commuter
Station Redevelopment Project) (the "1998C Bonds "),
(4) refund, on a current basis, the outstanding Santa Ana Financing
Authority Refunding Revenue Bonds, 1998 Series D (MainPlace Project)
(the 1998D Bonds" and, with the 1998A Bonds, the 1998B Bonds and the
1998C Bonds, the "1998 Bonds "), and
(5) finance certain public parking and infrastructure improvements (the
"2010 Project ");
G. to provide moneys to refund the 1998 Bonds and, if for any reason the
Agency is unable to issue or determines not to issue the 2010B Bonds
(hereinafter defined), to finance the 2010 Project, the Agency has
determined to issue its Community Redevelopment Agency of the City of
Santa Ana Tax Allocation Bonds (Merged Project Area), 2010 Series A, in
the aggregate principal amount of not to exceed $75,000,000 (the "2010A
Bonds "), under the provisions of Article 9 of Chapter 3 (commencing with
section 53570) of Division 2 of Title 5 of the California Government Code
and, if the 2010A Bonds include provision for the 2010 Project, under the
provisions of Part 1 of Division 24 of the California Health and Safety
Code, commencing with section 33640 of said Code (the "Redevelopment
Bond Law ");
H. the American Recovery and Reinvestment Act of 2009 (the "Federal
Stimulus Act'), added sections 14000 -1 and 14000 -2 to the Internal
Revenue Code of 1986 (the "Code "), authorizing state and local
Resolution No. SAFA 2010 -
Page 2 of 2 8OA -1 7
governmental agencies to issue recovery zone economic development
bonds ( "Recovery Zone Economic Development Bonds ") upon compliance
with various requirements of the Code;
among other requirements, the Code requires that the net proceeds of any
Recovery Zone Economic Development Bonds be used for a "qualified
economic development purpose," including to fund capital expenditures
paid or incurred with respect to property located in a "recovery zone;"
on August 17, 2009, the City Council of the City of Santa Ana (the "City ")
adopted Resolution No. 2009 -046, designating the City as a "recovery
zone" (the "Santa Ana Recovery Zone ") for purposes of section 14000-
1(b) of the Code;
K. under the Federal Stimulus Act, the City has been allocated the authority
to issue up to $5,872,000 principal amount of Recovery Zone Economic
Development Bonds;
L. to finance the 2010 Project, which will promote development or other
economic activity in the Santa Ana Recovery Zone, as contemplated by
section 14000 -2(c) of the Code, the Agency has determined to issue its
Community Redevelopment Agency of the City of Santa Ana Tax
Allocation Bonds (Merged Project Area — Taxable Recovery Zone
Economic Development Bonds), 2010 Series B, in the aggregate principal
amount of not to exceed $5,870,000 (the "2010B Bonds" and, with the
2010A Bonds, the "2010 Bonds "), under the provisions of the
Redevelopment Bond Law;
M. the 2010B Bonds will be issued as bonds the interest on which is not
excluded from gross income for purposes of federal income taxation;
N. the Agency expects to receive a cash subsidy payment from the United
States Treasury equal to 45% of the interest payable on the 2010B Bonds;
O. the 2010 Bonds will be secured by a pledge of and lien on certain tax
increment revenues allocated to the Agency for the Redevelopment
Projects; and
P. the Authority has duly considered such transactions and wishes at this
time to approve the form and authorize execution of escrow agreements
relating to the refunding of the 1998 Bonds and to authorize the purchase
and sale of the 2010B Bonds and to approve the form and authorize
execution of a bond purchase agreement in connection therewith;
Resolution No. SAFA 2010 -
8OA -18 Page 3 of 2
SECTION 2. Approval of the Escrow Agreements.
(a) The Board hereby approves an escrow agreement relating to the refunding of
the 1998A Bonds (the "1998A Escrow Agreement "), by and among the Authority, the
Agency and The Bank of New York Mellon Trust Company, N.A., as escrow bank (the
"Escrow Bank "), in the form on file with the Secretary, together with such additions
thereto and changes therein as the Executive Director, or any designee thereof, shall
deem necessary, desirable or appropriate, and the execution thereof by the Executive
Director, or any designee thereof, shall be conclusive evidence of the approval of any
such additions and changes. The Executive Director, or any designee thereof, is hereby
authorized and directed to execute, and the Secretary is hereby authorized and directed
to attest to, the final form of the 1998A Escrow Agreement for and in the name and on
behalf of the Authority. The Board hereby authorizes the delivery and performance of
the 1998A Escrow Agreement.
(b) The Board hereby approves an escrow agreement relating to the refunding of
the 1998B Bonds (the "19988 Escrow Agreement "), by and among the Authority, the
Agency and the Escrow Bank, in the form on file with the Secretary, together with such
additions thereto and changes therein as the Executive Director, or any designee
thereof, shall deem necessary, desirable or appropriate, and the execution thereof by
the Executive Director, or any designee thereof, shall be conclusive evidence of the
approval of any such additions and changes. The Executive Director, or any designee
thereof, is hereby authorized and directed to execute, and the Secretary is hereby
authorized and directed to attest to, the final form of the 1998B Escrow Agreement for
and in the name and on behalf of the Authority. The Board hereby authorizes the
delivery and performance of the 1998B Escrow Agreement.
(c) The Board hereby approves an escrow agreement relating to the refunding of
the 1998C Bonds (the "1998C Escrow Agreement "), by and among the Authority, the
Agency and the Escrow Bank, in the form on file with the Secretary, together with such
additions thereto and changes therein as the Executive Director, or any designee
thereof, shall deem necessary, desirable or appropriate, and the execution thereof by
the Executive Director, or any designee thereof, shall be conclusive evidence of the
approval of any such additions and changes. The Executive Director, or any designee
thereof, is hereby authorized and directed to execute, and the Secretary is hereby
authorized and directed to attest to, the final form of the 1998C Escrow Agreement for
and in the name and on behalf of the Authority. The Board hereby authorizes the
delivery and performance of the 1998C Escrow Agreement.
(d) The Board hereby approves an escrow agreement relating to the refunding of
the 1998D Bonds (the "1998D Escrow Agreement'), by and among the Authority, the
Agency and the Escrow Bank, in the form on file with the Secretary, together with such
additions thereto and changes therein as the Executive Director, or any designee
thereof, shall deem necessary, desirable or appropriate, and the execution thereof by
the Executive Director, or any designee thereof, shall be conclusive evidence of the
approval of any such additions and changes. The Executive Director, or any designee
Resolution No. SAFA 2010 -
Page 4 of 2 8OA -19
thereof, is hereby authorized and directed to execute, and the Secretary is hereby
authorized and directed to attest to, the final form of the 1998D Escrow Agreement for
and in the name and on behalf of the Authority. The Board hereby authorizes the
delivery and performance of the 1998D Escrow Agreement.
SECTION 3. Purchase and Sale of the 2010 Bonds. The Board hereby
authorizes the purchase by the Authority of the 2010A Bonds for concurrent re -sale to
Stone & Youngberg LLC and E. J. De La Rosa & Co., Inc. (the "2010A Underwriters "),
so long as the total 2010A Underwriters' discount, excluding original issue discount
which does not constitute compensation to the 2010A Underwriters, does not exceed
1 % of the principal amount of the 2010A Bonds, and so long as the final maturity date of
the 2010A Bonds is no later than September 1, 2035. The Board hereby authorizes the
purchase by the Authority of the 2010B Bonds for concurrent re -sale to (the "2010B
Underwriter "), so long as the total 2010B Underwriter's discount, excluding original
issue discount which does not constitute compensation to the 2010B Underwriter, does
not exceed 1 % of the principal amount of the 2010B Bonds, and so long as the final
maturity date of the 2010B Bonds is no later than September 1, 2035. The Board
hereby approves a bond purchase agreement relating to the 2010 Bonds, by and
among the 2010A Underwriters, the Authority and the Agency with respect to the 2010A
Bonds, and by and among the 2010B Underwriter, the Authority and the Agency with
respect to the 2010B Bonds, in the form on file with the Secretary (the "2010 Bond
Purchase Agreement "), together with such additions thereto and changes therein as the
Executive Director, or any designee thereof, shall deem necessary, desirable or
appropriate, and the execution thereof by the Executive Director, or any designee
thereof, shall be conclusive evidence of the approval of any such additions and
changes. The Executive Director, or any designee thereof, is hereby authorized and
directed to execute the final form of the 2010 Bond Purchase Agreement for and in the
name and on behalf of the Authority.
SECTION 4. Official Actions. The Executive Director and any and all other
officers of the Authority, are hereby authorized and directed, for and in the name and on
behalf of the Authority, to do any and all things and take any and all actions, including
execution and delivery of any and all assignments, certificates, requisitions,
agreements, notices, consents, instruments of conveyance, warrants and other
documents which they, or any of them, may deem necessary or advisable in order to
consummate the lawful issuance and sale of the 2010 Bonds as described herein.
Whenever in this resolution any officer of the Authority is authorized to execute or
countersign any document or take any action, such execution, countersigning or action
may be taken on behalf of such officer by any person designated by such officer to act
on his or her behalf in the case such officer shall be absent or unavailable.
SECTION 5. Effect. This Resolution shall take effect from and after the date of its
passage and adoption.
Resolution No. SAFA 2010 -
80A -20 Page 5 of 2
ADOPTED this day of December, 2010
Miguel A. Pulido
Chairman
APPROVED AS TO FORM:
Joseph W. Fletcher
Authority General Counsel
AYES:
NOES:
ABSTAIN:
NOT PRESENT
Boardmembers
Boardmembers
Boardmembers
Boardmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, MARIA D. HUIZAR, Secretary of the Authority, do hereby attest to and certify the
attached Resolution No. SAFA 2010- to be the original resolution adopted by the
Santa Ana Financing Authority on
Date:
Resolution No. SAFA 2010 -
Page 6 of 2
Secretary, Financing Authority
City of Santa Ana
Draft financial documents pertaining to December 6, 2010
Council /Redevelopment Agency /Santa Ana Financing Authority Action are
available for public inspection in the Clerk of the Council office, 20 Civic
Center, 8th floor, 8:00 a.m. — 5:00 p.m.