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FULL PACKET_2010-12-20
MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA DECEMBER 6, 2010 CLOSED SESSION CALLED TO ORDER CITY HALL, 8T" FLOOR, ROOM 831 20 CIVIC CENTER PLAZA SANTA ANA, CA 5:13 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor (5:35 P.M.) CLAUDIA ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: MICHELE MARTINEZ STAFF Present: DAVID N. REAM, City Manager JOSEPH W. FLETCHER, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS - None City Council Items 1A CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) Michael Dougherty vs City of Santa Ana. Case numbers ADJ 3947313, ADJ320025, ADJ 423483 and ANA 208369. Adrian Resendiz v. City of Santa Ana. Orange County Superior Court Case No. 30-2010-00337383 William Emil Samland III. v. City of Santa Ana United States District Court Case No. SACV07-441 AG (OP) CITY COUNCIL MINUTES 1 DECEMBER 6, 2010 1 0A-1 1 B LIABILITY CLAIMS pursuant to Government Code Section 54956.95 Claimants: Claim of Mercury Insurance as Subrogee for Sang Phan Claim No. 2010-110 1 C CONFERENCE WITH REAL PROPERTY NEGOTIATOR pursuant to Government Code Section 54956.8: Subject Property: 2235 S. Bristol Street Negotiating Party: Dong Ho Lee Terms under Negotiation: Price and terms of payment for City acquisition of subject property City Representative: Raul Godinez, Executive Director of Public Works Subject Property: 1609-1631 North Bristol Street, 1612 N. Louise Street Negotiating Party: San Fiesta Limited Partnership Terms under Negotiation: Price and terms of payment for City acquisition of subject property City Representative: Raul Godinez, Executive Director of Public Works 1 D 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 Fire 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) CITY COUNCIL MINUTES 2 DECEMBER 6, 2010 1 0A-2 Agency Negotiator: City Manager David Ream Unrepresented Employees: All those unrepresented employees whose titles are identified as Executive Management (EM) 1E PUBLIC EMPLOYEE PERFORMANCE EVALUATION pursuant to Government Code Section 54957 Title: City Attorney Joint Citv/Community Redevelopment Agency Items 2A CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) Friends Of The Lacy Historic Neighborhood v. City Of Santa Ana et al; Orange County Superior Court Case No: 30-2010-00388033-CU-WM-CX CLOSED SESSION REPORT: See Item 19A ADJOURNED THE CLOSED SESSION MEETING AT 6:23 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 3 DECEMBER 6, 2010 1 0A-3 REGULAR OPEN SESSION CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:25 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: MICHELE MARTINEZ STAFF Present: DAVID N. REAM, City Manager JOSEPH FLETCHER, City Attorney MARIA D. HUIZAR, Clerk of the Council PLEDGE OF ALLEGIANCE MAYOR PULIDO INVOCATION COUNCILMEMBER TINAJERO PRESENTATIONS EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to: 20 YEARS OF SERVICE Gerardo R. Mouet, Executive Director, Parks, Recreation and Community Services 25 YEARS OF SERVICE Pearl S. Raya, Community Services Supervisor, Parks, Recreation and Community Services Edward R. DeMarco, Police Lieutenant, Police Department 30 YEARS OF SERVICE Mike J. McCoy, Police Community Services Specialist, Police Department CITY COUNCIL MINUTES 4 DECEMBER 6, 2010 1 0A-4 CERTIFICATE OF RECOGNITION presented by MAYOR PULIDO to Diana Markessinis for her sculpture donation on display at Santiago Park. CERTIFICATE OF RECOGNITION presented by MAYOR PRO TEM ALVAREZ to Kristine Thompson for her efforts with the Early Literacy Program. CERTIFICATE OF RECOGNITION presented by MAYOR PRO TEM ALVAREZ to Cheap Date - Tim Hirota, Ellen Hirota, Peter Hirota, Dominic Hirota, Ann Spencer, Mary Walters, Brian Satterfield and Jeff Halili for volunteering their time to perform at various City functions and events. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER BENAVIDES to Rudy Cordova, Jackie Cordova, Gabriel Cordova, Benjamin Vazquez and Yenni Diaz for organizing "Dia de los Muertos" event held on November 6, 2010. CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER BENAVIDES to Gary Truesdale of Hewlett Packard for sponsoring the HP Career Fair. CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER SARMIENTO to Nan Hoa for his service to the community. CLOSED SESSION REPORT: See Item 19A Mayor Pulido left the meeting at 6:46 p.m. and Mayor Pro Tern Claudia Alvarez assumed the Chair. PUBLIC COMMENTS • Guadalupe Jaimes, spoke on Item 25F, proposed that the City allocate half of the lease funds paid for by T-Mobile be directed for park improvements at Delhi Park and suggested that the City Council obtain community input on similar projects from now on; thanked Council for increased police service in her neighborhood. • Herb Rose, concerned with process used to approve the Community Facilities Management District and requested meeting with the City Attorney. • Fina Cheves, owner of Parking Company of America, spoke in opposition to the Community Facilities District fee. • Samuel Romero, spoke in opposition to Community Facilities District fee. • Bill Norwood, concerned with cell tower antenna recently placed in front of his business property. • Jon Norwood, opined that cell tower antenna recently placed in front of family's business property will decrease property value. CONSENT CALENDAR MOTION: Approve Consent Calendar Items 10A through 31A with the following modifications: CITY COUNCIL MINUTES 5 DECEMBER 6, 2010 1 0A-5 • Addition of Closed Session Report, Item 19A • Mayor Pro Tern Alvarez voted "No" on Item 19C; • Continued consideration of item 25L to the December 20, 2010 City Council Meeting at the request of staff; and • Councilmember Sarmiento pulled item 23A and 25F for separate discussion. MOTION: Sarmiento SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) ADMINISTRATIVE MATTERS MINUTES 10A REGULAR MEETING MINUTES OF NOVEMBER 15, 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 SECOND READING - PROACTIVE RENTAL ENFORCEMENT PROGRAM (PREP) INSPECTION FEE ADJUSTMENT - Planning and Building Agency Placed on first reading at the November 15, 2010 City Council meeting and approved by a vote of 4-0 (Benavides, Martinez and Pulido abstained and not present) Published in the Orange County Reporter on November 19, 2010. MOTION: Place ordinance on second reading and adopt. CITY COUNCIL MINUTES 6 DECEMBER 6, 2010 1 0A-6 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 MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT - City Attorney's Office MOTION: Approve settlements: 1) Michael Dougherty vs City of Santa Ana. Case numbers ADJ 3947313, ADJ320025, ADJ 423483 and ANA 208369, worker's compensation, comprise and release, amount of $45,000; 2) Claimants: Claimant of Mercury Insurance at Subrogee for Sang Phan Claim No. 2010-110, settlement amount of $7364.49 3) Real estate item for subject property at 2235 S. Bristol Street: Add to consent calendar, acquisition and settlement agreements for property located at 2235 S. Bristol St. with Dong Ho Lee for total compensation of $2.8 million dollars, and remove resolution of necessity from calendar (item 75E) (Agmt Nos. A-2010-046 & A-2010- 046A) 19B EXCUSED ABSENCES - Clerk of the Council Office MOTION: Excuse Mayor Pulido and Councilmember Martinez from the City Council, Community Redevelopment Agency, Housing Authority, and Santa Ana Financing Authority Meetings. 19C DESTRUCTION OF OBSOLETE CITY RECORDS - City Manager's 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 COMMUNITY REDEVELOPMENT AGENCY ANNUAL REPORT FOR FISCAL YEAR 2009-2010 - Community Development Agency MOTION: Receive and file the Community Redevelopment Agency Annual Report for FY 2009-2010. CITY COUNCIL MINUTES 7 DECEMBER 6, 2010 1 0A-7 19E REQUEST FOR PROPOSALS FOR TESTING AND INSPECTION SERVICES FOR VARIOUS CAPITAL IMPROVEMENT PROJECTS - Public Works Agency MOTION: 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. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A WORKFORCE INVESTMENT ACT RAPID RESPONSE FUNDS - Community Development Agency MOTION: Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2011-100 - Recognizing additional revenues from the State of California in the amount of $97,852 for Workforce Investment Act Rapid Response activities. 20B CAL-EMA - HAZARDOUS MATERIALS EMERGENCY PREPAREDNESS GRANT 2010 - Fire Department MOTION: 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 an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2010-102 Approve the Appropriation Adjustment for the Cal-EMA - Hazardous Materials Emergency Preparedness Grant 2010 expenditure account. SPECIFICATIONS - PURCHASE OF EQUIPMENT AND SERVICES MOTION: Award in accordance with Request for Council Action. (Items 22A and 22B) CITY COUNCIL MINUTES 8 DECEMBER 6, 2010 1 0A-8 22A SPEC. NO. 10-047 - STREET LIGHTS - 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 (Public Works Agency) - Finance & Management Services 22B SPEC. NO. 10-049 - EQUIPMENT AND MAINTENANCE - Award a contract to Fluke Networks in an amount not to exceed $38,000 - Finance & Management Services PROJECTS/CHANGE ORDERS 23A CONTRACT AWARD FOR RAITT STREET REHABILITATION BETWEEN WARNER AND EDINGER AVENUES (PROJECT NO. 116745) - Public Works Agency MOTION: 1. 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. MOTION: Benavides SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 23B INCREASED CONTINGENCY FOR TRAFFIC SIGNAL INSTALLATION AND MODIFICATION AT FOUR LOCATIONS (PROJECT NOS. 085017, 085021, 085022 AND 085023) - Public Works Agency MOTION: 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 CITY COUNCIL MINUTES 9 DECEMBER 6, 2010 1 0A-9 and authorize the City Manager to execute a change order in an amount not to exceed the authorized contingency. 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 noted on the Request for Council Action report. (Item 25A through 25E, and 25G through 25L) 25A AGMT NO. 2010-233 - ENVIRONMENTAL SERVICES - With URS Corporation in an amount not to exceed $48,335 for a new 24-unit single- family residential development at 1584 East Santa Clara Avenue - Planning and Building Agency 25B AGMT NO. 2010-234 - ENVIRONMENTAL SERVICES - With The Planning Center in an amount not to exceed $152,184 for the Harbor Mixed Use Transit Corridor Plan - Planning and Building Agency 25C AGMT NO. 2010-235 - WIRELESS SERVICES AND EQUIPMENT - Authorize continued payment 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- Finance & Management Services 25D AGMT NO. 2010-236 - WIRELESS DATA SERVICES AND EQUIPMENT - Execute a participating addendum with Verizon Wireless Data Services to join the City under a master agreement with the California Wireless Contract (CWC) for a period of one year in an amount not to exceed $150,000 per year - Finance & Management Services 25E AGMT NO. 2010-237 - DEVELOPMENT OF INFORMATION SHARING WEB SITE / SECURE PORTAL - With Mindtouch Inc. in an amount not to exceed $100,000 - Police Department 25F CELLULAR ANTENNA AT DELHI PARK Parks, Recreation & Community Services Agency Continued from the October 18, 2010 and November 15, 2010 City Council meetings by a vote of 7-0. CITY COUNCIL MINUTES 10 DECEMBER 6, 2010 1 0A-10 MOTION: 1. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute a lease agreement, subject to non-substantive changes approved by the City Manager and the City Attorney. AGMT NO. 2010-238 - With T-Mobile West Corporation for installation of a stealth monopalm antenna and equipment building at Delhi Park 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2011-077 - Recognizing $38,800 in the Capital Outlay Fund Miscellaneous Recovery account and appropriate same to the Capital Outlay Fund Improvements Other than Buildings Expenditure account. 3. Receive and file Categorical Exemption for Environmental Review Nos. 2010-30 (Delhi Park). 4. Allow 50% of the lease payment from T-Mobile to be earmarked for Improvements at Delhi Park. MOTION: Sarmiento SECOND: Alvarez VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 25G AGMT NO. 2010-239 - FOOD CONCESSION SERVICES AT THE SANTA ANA ZOO AT PRENTICE PARK - Execute a three-year agreement with Knowlwood Enterprises, Inc. - Parks, Recreation & Community Services Agency Continued from the November 15, 2010 City Council meeting by a vote of 7-0. CITY COUNCIL MINUTES 11 DECEMBER 6, 2010 1 0A-11 25H AGMT NO. 2010-240 - CUSTOMIZED TRAINING - With Tenacore in the amount of $51,000 using Workforce Investment Act (WIA) funds - Community Development Agency 251 AGMT NO. 2010-241 - ANNUAL SOFTWARE MAINTENANCE AND SUPPORT - Execute an amendment agreement with GeoSpatial Technologies, Inc., in an amount not to exceed $20,898 - Police Department 25J AGMT NO. 2010-242 - AUTOMATED PARKING CITATION PROCESSING SYSTEM - Execute an amendment with the Phoenix Group Information Systems in the amount not to exceed $200,000 for a one-year term - Police Department 25K ACQUISITION OF RIGHT-OF-WAY FOR THE OCTA AT-GRADE RAIL SAFETY ENHANCEMENTS (PROJECT NO. 091745) - Public Works Agency • AGMT NO. 2010-243 - 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. • AGMT NO. 2010-244 - 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. 25L DEFERRED COMPENSATION SERVICES - With ICMA-RC for a period of five years with provisions for two one-year extensions - Finance & Management Services *Continued consideration of matter to the December 20, 2010 City Council Meeting at the request of staff. LAND USE MATTERS CONDITIONAL USE PERMITNARIANCES 31A CONDITIONAL USE PERMIT NO. 2010-21 - TO ALLOW A SUBWAY SANDWICH SHOP LOCATED WITHIN THE NORTH HARBOR PLAN (SP2) ZONING DISTRICT - 3835 WEST FIRST STREET, UNIT D; APPLICANT: GREWAL FOODS - Planning and Building Agency CITY COUNCIL MINUTES 12 DECEMBER 6, 2010 1 0A-12 Recommended action approved by the Planning Commission on November 8, 2010, by a vote of 5-0 (Gartner and Walters absent). MOTION: Receive and file the staff report approving Conditional Use Permit No. 2010-21 as conditioned. **END OF CONSENT CALENDAR** BUSINESS CALENDAR RESOLUTIONS 55A 2010 EMERGENCY MANAGEMENT PERFORMANCE GRANT - Fire Department MOTION: 1. Adopt a resolution. RESOLUTION NO. 2010-056 - 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 2. Authorize the City Manager and Clerk of the Council to execute a sub-grantee agreement subject to non-substantive changes approved by the City Manager and City Attorney. AGMT NO. 2010-245-With Orange County Sheriff's Office in the amount of $38,108 3. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2011 - 103 Recognizing the 2010 Emergency Management Performance Grant funds and appropriate the same into the 2010 Emergency Management Performance Grant expenditure account. MOTION: Bustamante SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento, Tinajero (5) CITY COUNCIL MINUTES 13 DECEMBER 6, 2010 1 0A-13 NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 55B RESOLUTION ADOPTING CITY OF SANTA ANA LOCAL SIGNAL SYNCHRONIZATION PLAN - Public Works Agency MOTION: Adopt a resolution. RESOLUTION NO. 2010-057 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ADOPTING A LOCAL SIGNAL SYNCHRONIZATION PLAN FOR THE CITY OF SANTA ANA I MOTION: Bustamante SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 55C RESOLUTION AND AGREEMENT WITH PUBLIC AGENCY RETIREMENT SERVICES FOR SOCIAL SECURITY ALTERNATIVE PROGRA M SERVICES - Finance & Management Services MOTION: Continue consideration of matter to the December 20, 2010 City Council Meeting at the request of staff. MOTION: Bustamante SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) CITY COUNCIL MINUTES 14 DECEMBER 6, 2010 1 0A-14 PUBLIC HEARINGS 75A PUBLIC HEARING - AMENDMENT APPLICATION NO. 2010-01 AND CONDITIONAL USE PERMIT NO. 2010-15 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 - 1600 EAST FIRST STREET; AZURE PLAZA PARTNERS, LLC, APPLICANT - Planning and Building Agency Recommended action approved by the Planning Commission on September 13, 2010, by a vote of 7-0. Legal notice published in the O.C. Reporter on September 24, 2010 and November 19, 2010; notices mailed on September 24, 2010 and November 19, 2010. Continued from the October 4, 2010, City Council Meeting by a vote of 7-0. Councilmember Sarmiento requested a 60 day continuance. MOTION; Continue consideration of matter for 60 days. MOTION: Benavides SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 75B PUBLIC HEARING - AMEND PROVISIONS OF CHAPTER 41 ESTABLISHING OPERATIONAL STANDARDS FOR EQUIPMENT RENTAL YARDS (ZONING ORDINANCE AMENDMENT NO. 2010-02); CITY OF SANTA ANA, APPLICANT - Planning and Building Agency Recommended action approved by the Planning Commission on November 8, 2010, by a vote of 5-0 (Gartner and Walters absent). Legal notice published in the O.C. Reporter on November 19, 2010. Staff report provided by Executive Director of Planning and Building, Jay Trevino. There was no written correspondence received. The Public CITY COUNCIL MINUTES 15 DECEMBER 6, 2010 1 0A-15 Hearing opened at 7:50 p.m. Christopher Jacobson spoke in support of the matter. There were no additional speakers and the hearing closed. MOTION: Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS-2812 - 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 MOTION: Benavides SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento (4) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero, Pulido (3) 75C PUBLIC HEARING - RESOLUTION MODIFYING THE FISCAL YEAR 2010- 11 MISCELLANEOUS FEE SCHEDULE - Community Development Agency and Police Department There was no written correspondence received. The Public Hearing opened at 7:52 p.m. There were no speakers and the hearing closed. Legal notice published in the O.C. Reporter on November 19 and 26, 2010. MOTION: Adopt a resolution. RESOLUTION NO. 2010-058 - 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 MOTION: Bustamante SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento (4) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido, Tinajero (3) CITY COUNCIL MINUTES 16 DECEMBER 6, 2010 1 0A-16 75D 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; SAN FIESTA LIMITED PARTNERSHIP - Public Works Agency Notice of Hearing letter mailed to property owner on November 16, 2010. Staff report provided by Executive Director of Public Works, Raul Godinez, Il. There was no written correspondence received. The Public Hearing opened at 7:56 p.m. There were no speakers and the hearing closed. MOTION: 1. Approve addendum to EIR No. 89-01 for intersection of Bristol and Seventeenth Streets. 2. Adopt a resolution (Requires five affirmative votes.) RESOLUTION NO. 2010-059 - 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 NUMBER 405-252-02, 405-252-03, 405-252- 23,405-252-24) BY EMINENT DOMAIN MOTION: Bustamante SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 75E PUBLIC HEARING-RESOLUTION AUTHORIZING CONDEMNATION OF REAL PROPERTY AT 2235 SOUTH BRISTOL STREET; SOUTH COAST LIQUOR - Public Works Agency Notice of Hearing letter mailed to property owner on November 16, 2010. Item settled in Closed Session meeting and removed from regular meeting Agenda calendar (See item19A for report). CITY COUNCIL MINUTES 17 DECEMBER 6, 2010 1 0A-17 JOINT SESSIONS OF THE CITY COUNCIL COMMUNITY REDEVELOPMENT AGENCY, AND SANTA ANA FINANCING AUTHORITY 80A RESOLUTIONS APPROVING PURCHASE, ISSUANCE AND SALE OF TAX ALLOCATION BONDS AND TAXABLE RECOVERY ZONE ECONOMIC DEVELOPMENT BONDS AND APPROVING RELATED DOCUMENTS AND ACTIONS Staff presentation provided by Cynthia Nelson, Deputy City Manager for Development Services CITY COUNCIL ACTION MOTION: Adopt a resolution. RESOLUTION NO. 2010-060 - 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 MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Pulido (2) 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 $25K (Mayor Pro Tern Alvarez) Continued from the November 15, 2010 City Council Meeting by a vote of 7-0. CITY COUNCIL MINUTES 18 DECEMBER 6, 2010 1 0A-18 Mayor Pro Tern Alvarez requested a continuance to the first meeting in January, 2011, to allow time for further review. THE CITY COUNCIL RECESSED AT 8:02 P.M. TO THE COMMUNITY REDEVELOPMENT AGENCY MEETING, FOLLOWED BY THE HOUSING AUTHORITY MEETING, AND THEN THE SANTA ANA FINANCING AUTHORITY MEETING AND RECONVENED AT 8:03 P.M. WITH SAME MEMBERS PRESENT COMMENTS 90A CITY MANAGER'S COMMENTS - None 90B CITY COUNCILMEMBER COMMENTS Councilmember Tinajero: • Invited all to attend the City Council installation ceremony meeting on December 14, 2010; • Wished all Happy Holidays Councilmember Benavides: • Requested that City Manager provide City Council with a memo explaining the process when the City undertakes public infrastructure projects such as the recent Bristol Widening Corridor Project; interested in ensuring that communication is shared with all Councilmember Bustamante: • Noted that Centennial Park is a nice park and asset to the community; asked the City Manager to explore concepts to better benefit the park such as including a concession stand/row boats, and profit share with school district Councilmember Sarmiento: • Encouraged all to remember those less needy in our City as Christmas nears, drop off toys at any fire station, provide someone with a gift or a meal Mayor Pro Tern Alvarez: • Asked residents to shop in Santa Ana and drop off extra toys at Santa Ana Fire Stations; and • Echoed Councilmember Sarmiento's comments CITY COUNCIL MINUTES 19 DECEMBER 6, 2010 1 0A-19 ADJOURNED - - 8:12 P.M. - The next meeting of the City Council is scheduled for Monday, December 20, 2010 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Meeting in the Police Community Room, 60 Civic Center Plaza, Santa Ana, California. Adjourn In Memory of Anthony M. Pedroza and Thelma Mae Small Maria D. Huizar, Clerk of the Council i i CITY COUNCIL MINUTES 20 DECEMBER 6, 2010 1 OA-20 MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA DECEMBER 10, 2010 The Meeting was cancelled due to lack of quorum. The next regularly scheduled meeting will be held on December 20, 2010 in the Police Community Center, 60 Civic Center Plaza, Santa Ana, CA. Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES 1 DECEMBER 10, 2010 1 0B-1 1 0B-2 (ROH 12/20/10) ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 41 OF THE SANTA ANA MUNICPAL 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 _ 11 A-1 Section 3. Section 41-377 of Chapter 41 of the Santa Ana Municipal Code is amended to read as follows: 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. (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. (j) Research institutions and laboratories. Ordinance No. NS-XXX Page 2 of _ 11 A-2 (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: 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) 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. (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. Ordinance No. NS-XXX Page 3 of _ 11 A-3 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; (5) on any public right-of-way. Ordinance No. NS-XXX Page 4 of _ 11 A-4 (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: 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. (3) Equipment Rental Yards. (4) Truck, trailer, tractor, and boat sales. Ordinance No. NS-XXX Page 5 of 11 A-5 (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 _ 11 A-6 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-X" Page 7 of _ 11 A-7 11 A-8 REQUEST FOR COUNCIL ACTION T CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 20, 2010 TITLE: APPROVED 0 As Recommended APPOINTMENTS TO THE SANTA ANA E] Amended E:] Or dinance on 1" Reading WORKFORCE INVESTMENT BOARD E] Ordinance on 2"° Reading 0 Implementing Resolution 0 Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Appoint Mr. Steve Piwnica, Chief Financial Officer of Royalty Carpet Mills, Inc., and Mr. David Elliott, President of the Santa Ana Chamber of Commerce, both as private sector members and Carlos de la Riva, Economic Development Specialist III, Workforce Investment Act (WIA) representative for the Adult, Dislocated Worker and Youth programs, to the Santa Ana Workforce Investment Board. WORKFORCE INVESMENT BOARD RECOMMENDATION At a special meeting held November 29, 2010, by a vote of 17:0 (Beasley, Conway, de Leon, Gebre, Jimenez-Hami, Lin, Martinez, Nazeri, Pina, Ruiz, Solkamans, Su absent), the Workforce Investment Board recommended that the City Council appoint Messrs. Piwnica and Elliott as private sector members and Mr. de la Riva as WIA representative on the Santa Ana Workforce Investment Board. DISCUSSION On March 6, 2000, the Santa Ana City Council adopted a resolution establishing the Santa Ana Workforce Investment Board and appointed 35 members. In accordance with the federal legislation, a majority of the Board members and the Board Chair must come from the private sector. The remaining Board members represent education, non-profit organizations, one-stop mandated partners and local labor organizations. After an extensive recruitment campaign and interview process, the Workforce Investment Board recommends the appointment of Messrs. Piwnica (replacing Ward) and Elliott (replacing Metzler) as private sector members and Mr. de la Riva (replacing Van Artsdalen) as WIA representative. Their resumes are attached as Exhibit 1. One more mandated private sector position on the Board would remain available, should the two appointments above be approved. 13A-1 Appointments to the Santa Ana WIB December 20, 2010 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. Cynthia J. Nels6fi Deputy City Manager for Development Services Community Development Agency CJ N/LO/DS/kg Exhibits: 1. Resumes 13A-2 STEVEN J. PIWNICA 142 Jasmine Creek Drive Corona del Mar, CA 92625 (949) 721-1052 e-mail: steveniwgi?~yalloo.cont SENIOR FINANCIAL EXECUTIVE - PROFILE A goal-oriented executive with 25+ years experience who combines a big picture perspective with detailed process knowledge and strong interpersonal skills to develop strategies, promote concepts and resolve complex problems. A proven leader and analytical manager with a track record of contributing strong profit improvement through systems development, organizational restructuring, and a value-oriented focus in manufacturing and distribution. • Strategic Planning & Consulting • Corporate Finance & Accounting • Mergers & Acquisitions • Management Information Systems • Private Equity - Leveraged Buyouts • Contract Negotiations • Supply Chain Management • Energy Management PROFESSIONAL EXPERIENCE i i ChicfF/nnnc/nL Officer 8c C/eieflnforrnrcfion 0 ff7cer 1999 to present Royalty Carpet Mills, Hrc. Privately-held carpet and yarn manufacturer with annual revenues exceeding $100 million. Responsibilities include all financial and accounting functions, the development and management of all information systems, oversight of warehousing operations, shipping, factory planning & scheduling, inventory planning and control, energy management, factory regulatory compliance and various administrative functions. Also responsible for contract negotiations, risk management, property management and all real estate transactions. • During 2006, worked with a major investment banking firm and equity buyers to arrange a buy- out offer at very favorable EBITDA multiples. Royalty's owners chose not to accept the offer. • "Rescued" the company from a near collapse of information systems through quick, decisive action in switching software vendors and devising a viable strategy for new system implementation. • Installed factory cogeneration systems to achieve more reliable and cheaper energy sourcing. • Developed fill standard costing, comprehensive data mining & factory analysis. • Revamped demand forecasting systems, policies and procedures with sophisticated new cut table and order fill logic, resulting in reduced inventory losses and enhanced sale of aged and distressed goods. • Consolidated, integrated and streamlined all information systems, administrative and warehousing operations after the acquisition of another carpet mill. • Directed the litigation strategy in a major lawsuit and won a large award for damages. • Instituted a new and sophisticated freight invoicing system that achieved major repeat savings in (eight costs. Exhibit 1 13A-3 STEVEN J. PIWNICA, p. 2 F"YWJTee Manager ar:d CFO 1998 to 1999 Cosmotronic Corporation, Irvine, CA $12 million printed circuit board manufacturer owned by investment group. Responsible for financial management of company in preparation for IPO. • Implemented sophisticated accounting systems and company-wide networking capabilities. • Created all financial reporting systems, budgeting processes and cash controls. • Team leader for the development of a new order entry and factory planning system. Vice President Finance arid Arbiainistration 1995 to 1998 E.T.C. Carpet Mills, Santa Ana, CA Privately-lield carpet manufacturer with three locations and annual revenues of $36 million. Responsible for financial, accounting, MIS, legal and contract functions together with production planning, distribution and customer service. • Stabilized operations and positioned the company for a change in ownership. • Break-even monthly sales level lowered from $3.2 million to $2.5 million through an intense cost reduction effort covering every aspect of operations. • Bank debt cut 50% or $2.4 million through the reduction of inventories, improverrient in collections and elimination of non-essential spending. • Completed full strategic and operational review with recommendations for repositioning the company. • Completed acquisition of another carpet mill company. • De-factored credit and collections to improve customer service and increase cash flow. Senior Vice President and n-easurer 1990 to 1995 Tuftex Industries, Santa Fe Springs, CA Privately-held carpet manufacturer with revenues of $170 million and yarn mill with revenues of $60 million. Responsible for all financial, accounting, legal, factory scheduling, inventory planning and maquiladora operations. • Negotiated the sale of Tuftex Industries to Queen Carpet and supervised the merger of after-sale operations. • Added $8.5 million in value to the sale of Tuftex Industries through a combination of strong analysis, tough negotiations and smart tax strategies. • Consolidated functions and simplified administrative procedures while strengthening internal controls and improving office productivity; generated salary savings of over $1MM. • Introduced new employee benefits program that reduced costs by over $700,000 annually. Vice President, Controller 1986 to 1990 R & G Sloane Manufacturing Company, Sun Valley, CA Injection molding manufacturer of plastic valve and piping systems with annual sales of $80 million. Responsible for all financial, accounting, and legal functions, including maquiladora operations. • Designed new analytical methods and reporting systems for accounting, marketing and production. • Successfully resolved bad debt totaling $2 million. • Designed and implemented a capacity model and shop floor data collection system to define production capacity and measure factory efficiency. I 13A-4 i STEVEN J. PIWNICA, p. 3 Other relevant experience- Finartcial Plaything Ma.-tager Times Mirror Company, Los Angeles, CA Senior Financial Aytalyst Avery International, Pasadena, CA Senior Audifor Arthur Andersen 86 Co., Los Angeles, CA EDUCATION Masters ofBttsiness Adsrtinislration - -1978 Anderson School of Management, UCLA, Los Angeles, CA Masfey s ofArfs Degree - 7975 Graduate School of International Studies, University of Denver, CO Bachelor ofArls Degree -.1973 Pomona College, Claremont, CA PROFESSIONAL CERTIFICATION and AFFILIATION Certified Public Accountant, State of California (expired) 13A-5 13A-6 DAVID L. ELLIOTT Relationship Builder and Connector of People 24299 Pasco de Valencia #1124 Laguna Woods, CA 92637 (949)305.7987 home (714) 334.4994 cell (714)541.5353. ext 121 Dlelfiott i cox.net cvww.davldeltlottandassociates.com delliott a santeanachamber.coni Core Life Purpose: "Make a difference by serving God in building relationships, connecting people and being an influence" "Engaging, Aligning and Connecting baby boomer professionals in their 3~d quarter quest in making a difference by changing lives" BE a CATALYST Mantra: "Anything I can do?" "Just do Good" We are only successful and significant by the people we surround ourselves with. Professional Qualities: Non Profit and For Profit Businesses/Organizations Leadership, visionary, people and team-oriented, energetic and goal driven. Skills in: business development, sales/marketing, public/community relations and fund development. >?ducation: Master of Arts Azusa Pacific University Graduate work in Educational Administration Biola University i Bachelor of Science in Education University of Arizona Certificate in Fundraising Management, The Fundraising School, Indiana University Professional Affiliations: Board mernber of the Costa Mesa Chamber of Commerce Board member of the Hispanic Chamber of Commerce I Board member of the Orange County YMCA Association I i 1 13A-7 Board member of the Saddleback Community College Foundation ProVisors Network Member The Barnabas Group American Association for Senior Executives Professional E4 xperience: Santa Ana Chamber of Commerce 2010-present President and CEO Vanguard University of Southern California, 1994-2009 - Associate VP for University Relations 2000-2009 * Annually raised 125-150k in sponsorships for Christmas Fantasia and golf tournament * Recruited 20 of the 35 member Business Advisory Council for the School of Business * Represented and connected the university throughout the Orange County business community developing key strategic relationships * Provided leadership of Christmas Fantasia the premiere university event starting 10 years ago with 250 participants to this past year of over 2500 participants and performance at Segerstrom Hall * Directed all major university marketing buys and supervised publication of Vanguard magazine (2000-2003) i - Executive Director University Foundation 2007-2009 i * added to my portfolio 2.8 million endowment * Personally recruited 12 of the current board members * Assisted the establishment of the Professional Adv*sory Council for planned giving - Director/Dean School for Professional Studies 1994-2000 * Started the degree completion program from scratch with 2 staff and 20k marketing budget. 1 OOk profit after first year 2 13A-8 * Seven years later 1 8 staff, 300 students 3 million budget with 1,5 million profit margin * Served for 2 years as president of the South Coast Higher Education Council which included all community colleges and 4 year colleges and universities in Orange County * Served as a founding member of the Consortium for Southern California Colleges and Universities serving the Adult Learner (50 members) David EMott and Associates, Inc. President and Founder 2004-present * Business development consulting/connecting for clients including: Exit Retirement Strategies, Al Frank Asset Management. Facilitator of the BOAT (Business Owner's Advisory Team) Client Advocate Networh- Managing Director 2008-present Clients include: Passkeys Foundation, Capata and Co., Summit Payroll, New York Life, Cross Media, Spyglass Realty, DGWB, Partners Bank, Coneybeare, Horizon Law and DocuSource UPG Sports, Inc. President and Founder 1993-2004 * Started this business providing youth and high school girl's basketball teams, tournament to participate in. Sold in 2004 and recognized as one of the premiere basketball tournament programs in the area serving over 1000 girls in its seven annual tournaments. Consultant Fundraising and administrative Consultant 1989-93 * Worked with area youth programs (Boys and Girls clubs, youth football and basketball programs and high school athletic teams) on various fluid raising programs Mariners Church Director of Music 1984-88 3 13A-9 I * Started the first music program including choirs, special groups, musical productions etc Cedar Mill Church Director of Administration and Music 1981-84 x Created the "Sing Christmas" musical outreach program hosted at local hotels reaching over 2000 people El Cajon Christian High School Principal/Vice Principal 1978-81 * Considered the youngest high school principal in the southwest with responsibility for 900 students and 50 faculty * Started Christian Community Theater with first production drawing over 6000 in attendance. Palo Verde Christian High School Principal/Athletic Director 1974-78 * Started the first athletic program * First high school principal starting with 9 students and growing in 3 years to 135 students * State small school division basketball championship (coach) * First ever fund raiser (Bike-a-thon) raised over $9,000 enough to purchase football uniforms and equipment for the first football team in school history 4 13A-10 I Bio of David L. Elliott "The Putting Coach" RELATIONSHIP BUILDER and CONNECTOR of PEOPLE Mr. Elliott is a 25 year connniunity member of Orange County. Recently served as Associate Vice President for University Relations at Vanguard University where he served effectively in several roles for over 15 years. In addition, Dave (as most people call him) is a Managing Director with Client Advocate Network and President of David Elliott & Associates, Inc. He is known throughout Orange County as a "Relationship Builder and Connector of People". His passion is "JUST DO GOOD" and you will snake a difference. It is always about the people you are surrounded with that make you successful and significant. BS in Education fionn University of Arizona (Go CATS!) MA in Music from Azusa Pacific University (That's right) i Core strengths include leadership, business development, marketing, fund development, coaching/mentoring, RELATIONSHIP BUILDING and CONNECTING PEOPLE. All with a common sense approach. Who knows you and who do you know. Professional affiliations: current board member with YMCA Orange County Association, Costa Mesa and Hispanic Chambers of Commerce, Provisor's South Orange County and the American Association for Senior Executives. As a business development professional teaches "How to Build a Meaningful Relationship Network" and leads a successful Networking group: the Business Owner's Advisory Team (BOAT) Married to Sherri for over 4 years with 4 children and 11 grandchildren. We enjoy fun with others entertaining, playing golf, travel, dining, movies, theater etc. People are the KEY! www.Davidelliottandassociates corn wwvv, cl ientadvo catenetwork. coin Blog: davee-relatiouushipbuilderconnector.blogspot.com/ 13A-11 13A-12 Exhibit 1 CARLOS DE LA RIVA 11445 Alder Creek Road - Corona, CA 92880 Phone: 714.924.0244 Email: delariva9Ca7vahoo.com OBJECTIVE Management position utilizing my knowledge of Santa Ana's business community, project management, outreach, and workforce development. HIGHLIGHTS OF QUALIFICATIONS Project Management • Experienced strategic and tactical planner. Consistently employed creative solutions to increase communications and team effectiveness, while using time efficiently to track progress and meet project goals. Project Areas included but were not limited to process improvement, implementation of federal workforce programs, business retention and layoff aversion strategies. Economic Development Programs • Expertise in the City of Santa Ana's Enterprise Zone, International Trade, Empowerment Zone, Rapid Response and other business assistance programs. Provided extensive technical assistance in the development of Enterprise Zone eligibility guidelines. Public Relations • Solid reputation as a clear and creative communicator. Developed working relationships at all levels, with other government agencies, businesses and community organizations. Produced a quarterly newsletter. Business Outreach • Headed a team that regularly participated in outreach to local business to provide information regarding business assistance programs. In fiscal year 2005-2006, over 800 business were provided services . Management • WIA Program Coordinator for the City of Santa Ana. Planned, developed and implemented workforce development programs. Supervised 14 staff in the day-to-day operations of the Santa Ana One-Stop. Experienced in local policy development. • Builder and leader of effective organizations and teams. RELEVANT PROFESSIONAL EXPERIENCE CITY OF SANTA ANA, Santa Ana, California 1995 - Present Programs Manager For the last 11 years I have worked within the workforce development system overseeing Federal, State and locally funded programs providing services to Santa Ana's business clientele and job seekers. The workforce development activities of our agency have been closely coordinated with the activities of the City of Santa Ana's Economic Development efforts. Santa Ana businesses are one of our primary customers. I am currently overseeing business retention strategies for the City of Santa Ana. EDUCATION CALIFORNIA STATE UNIVERSITY FULLERTON, Fullerton, California Bachelor of Arts in Political Science, Emphasis on Public Administration AWARDS • Recipient of the City of Santa Ana's Exceptional Quality Service Award 2004-2005, 2002-2003, 1995-1996. 13A-13 13A-14 MEMORANDUM City Council Meeting Date: December 20, 2010 David N. Ream To: City Manager Date: December 6, 2010 Raul Godinez II, Executive Director From: Public Works Agency Subject: Notification that City Engineer is Reviewing Final Parcel Map No. 2009-109 for Approval Pursuant to Section 34-183 of the Santa Ana Municipal Code, this memo provides notice that the City Engineer has received Final Parcel Map No. 2009-109 (City Parcel Map No. 2009-02), for 1720 East Wilshire Avenue (Exhibit 1), from the owner, The Realty Associates Fund VII, L.P., and is in the process of reviewing the map for final approval. The Tentative Parcel Map No. 2009-02 was approved by the City Council on October 5, 2009. The City Engineer shall approve or disapprove this map within 10 days after the City Council meeting of December 20, 2010. cc: Mayor and City Council City Manager Deputy City Manager for Development Services Clerk of the Council TADevelopment Services\Subdivision\Memos\FinalParcel Map2009-109Review Notice-12-20_10 AC.doc 17A-1 17A-2 T. RITCHEY STREET PARCEL 3 w z w w a z PARCEL 2 w w > Q = r] N J Q 2 ~ U rr O cn co w PARCEL 1 LYON STREET EXHIBIT 1 SANTA ANA Title= 3 P~1 gendo Dote: co A PARCEL MAP NO. 2009-109 g u December 20, 200 17 2 0 S W I L S H I R E AVENUE 17A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 20, 2010 TITLE: APPROVED ? As Recommended APPROPRIATION ADJUSTMENT TO RECOGNIZE ? As Amended Reading 1 s' HUD FUNDS FOR THE MAINSTREAM PROGRAM El Ordinance on 1-71 Ordinance on 2 n "d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Approve an appropriation adjustment in the amount of $1,189,344 for housing assistance payments (HAP) and administration of 100 Mainstream Vouchers. DISCUSSION The Santa Ana Housing Authority has been awarded 100 vouchers under the Department of Housing Urban Development's (HUD) FY 2009 Vouchers For Non-Elderly Persons with Disabilities. The Mainstream Program was established by the Secretary of HUD to provide rental vouchers to enable persons with disabilities to rent safe, decent and affordable housing of their choice. These 100 vouchers will assist the Santa Ana Housing Authority in providing r g y ental assistance to a segment of the population recognized by HUD as having one of the greatest housing needs of any group. The Authority's wait list currently has 1,785 disabled resident families and 2,082 disabled non-resident families. FISCAL IMPACT The Santa Ana Housing Authority will receive funds in the housing assistance payments account (13718760) and in the administrative funds account (14018760). APPROVED AS TO FUNDS AND ACCOUNTS: Cynthia J. Nelso Francisco Gutierrez Deputy City Manager for Development Executive Director Services Finance & Management Services Agency Community Development Agency CJ N/SLB/kg 20A-1 20A-2 w s REQUEST FOR'.. COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 20, 2010 TITLE: APPROVED CONTRACT AWARD FOR FIRST ? As Recommended STREET REHABILITATION BETWEEN ? As Amended GRAND AVENUE AND 1-5 PROJECT El Ordinance on Reading El Ordinance on 2 n "d Reading NO. 116735) ? Implementing Resolution ? Set Public Hearing For CONTINUED TO 1;2 FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Award a contract to United Paving Company, the lowest responsible bidder, in accordance with unit bid prices in the estimated amount of $944,436.50 for construction of First Street Rehabilitation between Grand Avenue and 1-5. 2. Approve a funding analysis with a total estimated construction cost of $1,180,300. DISCUSSION First Street between Grand Avenue and the 1-5 freeway has been identified as a high priority in 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 appearance of the street. The Notice Inviting Bids was advertised on November 17 and 19, 2010, and bids were opened on December 6, 2010. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: 16 Contractors requesting bidding documents: 14 Bids received: 8 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 16 Santa Ana contractors submitted a bid as a prime contractor: Hardy and Harper. The other 15 Santa Ana contractors did not submit a bid either because they are not capable of 23A-1 Contract Award For First Street Rehabilitation December 20, 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. United Paving Company La Mirada $ 944,436.50 2. Bannaoun Engineers Construction Corp. Chatsworth $1,005,870.50 3. Hardy & Harper Santa Ana $1,033,000.00 4. Elite Bobcat Service, Inc. Corona $1,041,889.00 5. R. J. Noble Company Orange $1,043,609.60 6. All American Asphalt Corona $1,047,047.00 7. Excel Paving Company Long Beach $1,114,085.10 8. Silvia Construction, Inc. Rancho Cucamonga $1,263,359.20 A total of eight bids were received and all were responsive. The lowest bid was submitted by United Paving Company for $944,436.50, which is below the Engineer's estimate of $1,026,060. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project is exempt from future review. Categorical Exemption Environmental Review No. 2010-132 will be filed for the project. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $1,180,300 for the project (Exhibit 2). Funds are available in the Proposition 1 B Fund (accounting unit 03017660-66220). APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Francisco Gutierrez r-16 Executive Directo Executive Director Public Works Agency Finance & Management Services Agency RGNVA Exhibit 1: Project Location Map 2: Funding Analysis 23A-2 N A r m z N W > Q r r Z W T V1 N J > Q Q J - Z y U S O J p C~ } LJ Z U J Q m cr U 3 s FIRST STREET r N z O J ® PROJECT AREA EXHIBIT 1 JG~. 10 r SANTA ANA T I TEE: _Pf'~1 CITY COUNCIL FIRST STREET REHABILITATION AGENDA DATE: DECEMBER 20.2010 BETWEEN GRAND AVENUE AND 1-5 Lm~ lilt on laN" (PROJECT NO. 116735) 23A-3 23A-4 FUNDING ANALYSIS PROJECT NO. 116735 FIRST STREET REHABILITATION BETWEEN GRAND AVENUE AND 1-5 Construction Contract $944,436 Contract Administration $28,421 Inspection and Testing $75,000 Survey Staking $38,000 Contingencies $94,443 TOTAL ESTIMATED CONSTRUCTION COSTS $1,180,300 Exhibit 2 23A-5 i 23A-6 AAV REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 20, 2010 TITLE APPROVED REDUCED SET OF ALTERNATIVES ? As Recommended FOR SANTA ANA-GARDEN GROVE ? As Amended FIXED GUIDEWAY PROJECT ? Ordinance on 1ST Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Approve a Reduced Set of Alternatives for the Santa Ana and Garden Grove fixed guideway project for conceptual engineering and environmental analysis. DISCUSSION On October 18, 2010, the City Council received an update on the Santa Ana-Garden Grove Fixed Guideway study. One of the key issues discussed was the need to lock in the technology and alignment alternatives that will be taken forward for conceptual engineering and environmental analysis. At the beginning of the fixed guideway study process, a wide variety of technology and alignment alternatives were identified for consideration. However, through a methodical and deliberative process, which included technical analysis as well as public input, the list of candidate technologies and alignments has been pared down to a recommended Reduced Set of Alternatives which will be the focus of continued study. The Reduced Set of Alternatives includes only those technology options that best meet the needs of the community, which are a modern streetcar and a Transportation Systems Management (TSM) alternative that includes bus service improvements and signal synchronization. These options are recommended because they promote livability, have been proven feasible, are affordable, provide good accessibility, can be implemented with minimal right-of-way impacts, and meet federal requirements. The alignment alternatives that are recommended for further study include: 1 23B-1 Reduced Set of Alternatives for Fixed Guideway Project December 20, 2010 Page 2 • Bus service improvements along Civic Center Drive and First Street. • Streetcar service along Santa Ana Boulevard and 4th Street. • Streetcar service along Santa Ana Boulevard/Civic Center Drive/5th Street. It should be noted that all routes traverse west from Raitt Street to Harbor Boulevard/Westminster Avenue via the Pacific Electric Right-of-Way. These routes are recommended because they provide a direct link to the Santa Ana Regional Transportation Center and other transit services throughout the study area. They also serve key activity centers and transit-supportive land uses, and are within a convenient walking distance for many residents and employees. Maps of the recommended study routes are provided as Exhibits 1, 2, and 3. It is important that the Reduced Set of Alternatives be locked in at this point of the study process, so conceptual engineering and environmental analysis can proceed on schedule and within budget. Investigation of additional technology or alignment alternatives cannot be accommodated within the project budget and will delay completion of the conceptual engineering and environmental analysis by approximately six months. By approving the Reduced Set of Alternatives, the City Council will enable the consultant team to refine the technology and alignment alternatives for the initial segment of the Santa Ana-Garden Grove Fixed Guideway Project. Only the technology and alignment choices included in the Reduced Set of Alternatives will be eligible for implementation in the next five to ten years. Expanding the system to other corridors or deviating from the proposed route will have to be explored as part of a separate future study effort. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds for conceptual engineering and environmental analysis are available in Measure M - Street Construction Fund (account no. 03217661-66220, project 092505). i APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez I Francisco Gutierrez Executive Direc Executive Director Public Works Agency Finance & Management Services Agency RG: DB Exhibits 1-3: Recommended study routes 2 23B-2 O E~ ~ o, U N Lf) 3 O N CIO 41 q* O ~ c Grand -----e /D ^ a, Q C G1 E N U Q O ? F- V) -r ? O Q : 01 o 2<LA ~ o O, V cm 1 p 1 . Main = c E lin v~ 3 b•----- cr C E L v~ Broadway O Q u LES v Ross W ti V O a` N >m r Flower St. V U V O L O n ~ C O W t ~ Bristol St. L25 a m m CCm c X O E a Q 'o a O w > W U N v V % O Raitt St. L a > x LL. m O 210 py Mainnej V Cs a Q < a, . v v o E c ~Q a T Q N C Q Q Y, a' o e0 v v > W v N 3 O co Q H OC O 00 U! Q Q N V Q 0' C Harbor Blvd. O Y o ci z - a Ln w a l7 I 1 L m ¢ = J O • O 0 41 H m W 23B-3 23B-4 A. c 30~c 0 Q N. Grand ;Ave. Q J C O O "if :V)1 < .i~? c O O .c o a,E~ N w~ Q V) W Sa~<~a9° Mortimer Q ~ m m Main N c m LY 3 d` C Broadway O O u L v+ Ross N v m C u) 'o Flower St. U C) _ N ca r; a~ U Bristol St. ~ m Q to 0 cc - Q X ~ ~ yQCi m m v j Raitt St. A 4-0 U C v C7 ~a`'•~ o N x o U. d ~ Q v cm 2 C > 4) ¢ w es v LO vi m c C c C v) a c a) x v ea ~ m o U o v > f? 16 C r.r y d 3 "a C C N Harbor Blvd. G Y N U 071 w a s 0 ~ • ~ I O 23B-5 i 23B-6 I. 16. + 1 Cl) O v 1 cY v 1 S 0 N. Grand ¦ Ave. ~ ~ Q 1 cc 1 O O Q - v "0 1 ~ 16. 46 ® Ool Opp gl C yG ~Qvr6i Say{~a9° Mortimer v C i0 a m Main C E V _ 3 s! L) o G .t Broadway O D V0 npa > Ross b N ~ V r ~ F bZ m 45 Flower St. V V c Q L M yc~ 9 .9 4 T N N L Bristol St. L25 W 4 U W 0 V Raitt St. U 3 as G1 'O 0 v m N v x ~ o LA. ~ V o (D 416iAJie, Q < w o cc CL m 0 N Ln cu v Q v 2 u v w Q -OW W m v a 3 _0 o v r CO to o C a d Harbor Blvd. o 1:5 y O o Z vi o LL in l7 ¦ O ¦ ¦ 23B-7 23B-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 6, 2010 TITLE: APPROVED ? As Recommended AGREEMENT WITH ICMA-RC FOR ? As Amended DEFERRED COMPENSATION SERVICES El Ordinance on 1st Reading ? Ordinance on 2rd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO r FILE NUMBER CITY MANAGER RECOMMENDED ACTION 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 CaIPERS 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 CaIPERS 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 25A-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 25A-2 ADMINISTRATIVE SERVICES AGREEMENT Between ICMA Retirement Corporation and City of Santa Ana Type: 457 Account 306741 25A-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 25A-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. 3. Exclusivity 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: 3 25A-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 25A-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. 5 25A-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 6 25A-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 25A-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. Governing 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. 8 25A-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 By Date Signature Name and Title (Please Print) INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION RETIREMENT CORPORATION ~ YV C 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 9 25A-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 25A-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 25A-13 25A-14 REQUEST FOR COUNCIL ACTION T CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 20, 2010 TITLE: APPROVED ? As Recommended REQUEST FOR PROPOSALS FOR ? As Amended ? Ordinance on 1st Reading SECURITY GUARD SERVICES AND THIRD ? Ordinance on 2nd Reading AMENDMENT TO AGREEMENT WITH ? Implementing Resolution SECURITAS SECURITYSERVICES ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Authorize the Public Works Agency to send a Request for Proposals to qualified companies to provide security guard services at the Santa Ana Regional Transportation Center, the Santa Ana Zoo at Prentice Park, the Library, and the corporate yard. 2. Authorize the City Manager and the Clerk of the Council to execute the attached third amendment extending the agreement with Securitas Security Services USA, Inc. on a month- to-month basis not to exceed a term of six months, in an amount not to exceed $34,068 per month, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Regional Transportation Center (SARTC) is a regional hub, combining Amtrak, MetroLink, Orange County Transit Authority, and other bus and taxi services. The City provides security guard services for the travelling public and tenants. On November 20, 2006, City Council awarded Securitas Security Services USA, Inc. the contract to provide security guard services at various locations throughout the City, including The Santa Ana Regional Transportation Center, The Santa Ana Zoo at Prentice Park, and the Corporate Yard. The current extension will expire on November 30, 2010. Staff is recommending that the City send out a Request for Proposals to obtain competitive pricing and approve an amendment extending the security services with the current contractor through the RFP process. The Scope of Work for the RFP is attached. The amendment would provide service with Securitas Security Services USA, Inc. at a monthly cost of $34,067.83, for a period not to exceed six months. This cost reflects a reduced service level for the Santa Ana Zoo at Prentice Park, for the total monthly amounts stated below: 25B-1 Request for Proposals for Security Guard Services and Third Amendment to Agreement with Securitas Security Services December 20, 2010 Page 2 The Santa Ana Regional Transportation Center $ 19,502.83 Santa Ana Zoo at Prentice Park $ 616.67 Corporate Yard $ 8,948.33 Homeland Security Alerts $ 2,500.00 Contingency security coverage $ 2,500.00 Total monthly expenditure: $ 34,067.83 This extension is for a not-to-exceed amount of $204,407. The amendment term will begin on December 1, 2010 and continue on a month to month basis, ending no later than May 31, 2011. FISCAL IMPACT Funds are available in the various departments' Contract Services - Professional accounts (62300). APPROVED AS TO FUNDS AND ACCOUNTS: Raul odinez II Francisco Gutierrez Executive Direct r Executive Director Public Works Age cy Finance & Management Services Agency Gerardo Mou K- Executive Dir ctor Parks, Recreation & Community Services Agency RG/CK Exhibit 1: RFCA Scope of Work Exhibit 2: Amendment to Agreement with Securitas Security Services USA, Inc. 25B-2 EXHIBIT 1-A SANTA ANA REGIONAL TRANSPORTATION CENTER The Santa Ana Regional Transportation Center (SARTC) is located at 1000 East Santa Ana Boulevard. The facility covers 6.75 acres and contains a 47,000-square-foot terminal, two surface parking lots with a total of 282 spaces, and one four-story parking structure with 423 spaces. A three-story pedestrian bridge takes travelers to the east train platform. Tenants include Amtrak, Greyhound Lines, Crucero, Transportes Intercalifornias, Tres Estrellas de Oro, County of Orange Social Services Program, State of California EDD, the City of Santa Ana Work Center, a cafe, and a gift shop. Over one million travelers use the SARTC each year. The SARTC contains approximately 35,000 square feet of rental space, plus a five-story theme tower that includes small meeting/conference rooms on the 4th and 5th floors. I. SCOPE Twenty-four- (24-) hour security officer coverage that includes an electronic guard tour system, seven (7) days per week with holidays included will be required as follows: Ist Shift Midnight to 8:00 a.m. 1 security officer 2nd Shift 8:00 a.m. to 4:00 p.m. 1 security officer 3`d Shift 4:00 p.m. to Midnight 1 security officer Overlap shifts 5:00 a.m. to 1:00 p.m. 1 security officer 11:00 a.m. to 7:00 p.m. 1 security officer Post commander Eight- (8-) hour shift, five (5) days per week. Shift times and days to be determined by SARTC Management. The following dates will be considered holidays by the City of Santa Ana and will be paid as such: New Year's Day Labor Day Memorial Day Thanksgiving Day Independence Day Christmas Day II. RESPONSIBILITY OF CONTRACTOR Provide a post management system that includes efficient mechanisms for tour verification, daily activity reports (DARs), and incident reporting (IR). This system must be complete with a reliable computer equipped with Internet access, Microsoft Office, a printer, downloader, and any other equipment needed to make the post commander successful in leading and monitoring the security cadre. The system will be housed in the Property Management office. Provide fully trained personnel with a high degree of tolerance and interpersonal skills and the ability to deal with the public in a courteous manner. EXHIBIT 1 1 25B-3 Provide capable candidates for the position of post commander that have had extensive security experience in both regular security work as well as leadership positions. Provide security officer candidates who can speak and understand English and are capable of writing clear and concise reports. Bilingual Spanish candidates are preferred. (At least one bilingual Spanish security officer is required to be onsite at all times.) Provide security officer candidates for screening and interviews by post commander and property manager. Provide security officer candidates to be assigned solely to the SARTC facility. Remove security officer from post as required by post commander or requested by SARTC management. Provide cellular phones and service for all security officers while on duty. Provide an adequate number of complete company uniforms including jackets, and head and rain gear so that all security officers can show an exceptional presence. This uniform must clearly identify security officers as employed by the contractor and shall be worn at all times during shift. Identification badges will also be required. Provide all document and stationary supplies needed for the successful running of this post. This means adequate supplies of DARs, IRs, ink cartridges for printer, printer paper, all pertinent forms, pens, writing pads, etc. THE CITY WIL L NOT PROVIDE SUPPLIES. Ensure that all security officers carry NO firearms. Conduct at least two (2) unannounced supervisory inspections during the day shifts, and at least two (2) unannounced supervisory inspections during each evening shift per month. Supervisor is responsible for checking in with post commander in person or by radio during each visit. A report of each visit will be turned into post commander along with other daily reports. Property manager will also be informed of each supervisory visit. Make available and arrange for all cadre members to attend/use any teaching tools, seminars, on-line tutorials, workshops, etc., that will enrich their knowledge and make them more successful in their duties. Be responsible for all training of security officers to assure compliance with all federal, state, and local requirements pertinent to their position at the SARTC. Arrange and make available all security officers assigned to the SARTC for a one-time-per-month meeting with the post commander and property manager. The contractor shall provide candidates for the post commander position that can carry out the following responsibilities: • This post requires a post commander with strong leadership and interpersonal skills who is able to lead a cadre of security officers in a professional manner. Familiarity with computers and working knowledge of Microsoft Office (Outlook, Word, and Excel) is required. • Hire and train all new personnel. • Monitor all security officer activity. 2 25B-4 • Be available to stand a post if necessary. • Collect and read all information from security officers. • Visit officers on a regular basis, while on duty, to guide and counsel them in all phases of their job. • Resolve problems with officers, whether it is counseling, warnings, write-ups, or removal from post. • Coordinate and assign duties for shifts. • Maintain files and document all events pertaining to this post. • Continuously motivate security officers to provide exceptional service. Ensure that security officer cadre is well-informed and enforcing compliance of facility's rules, regulations, and safety procedures. Provide approved and trained back-up personnel who can replace scheduled personnel in emergencies. • Rearrange services and personnel, as required. • Read, write, and communicate effectively in English. Proficient Spanish bilingual communications skills are also required. The contractor shall provide candidates for positions with SARTC security officer cadre that can be responsible and comply with the following: • This is an observe-and-report post only. Never attempt to apprehend or physically detain any individual. • Report to duty with a clean, well-dressed appearance, complete with clean shoes, etc. Noncompliant officers will be sent home. • Interface with traveling public, visitors, and tenants in a highly professional manner at all times. • Be present on site, at all times, subject to the immediate direction of the post commander. • Patrol restrooms, main floor lobby, train loading areas, balconies and upper floors of the building, perimeter of entire facility, parking lots, parking structure, pedestrian bridge, east and west platforms, and all approaches onto the property. When the facility is closed, maintain in lockdown mode unless an emergency arises and respond only at the direction of post commander, SARTC management, or emergency services. • When the facility is closed, be available to travelers who may have parked in the parking structure and will need to be escorted to retrieve their vehicle. • Ensure that unauthorized taxis, limousines, buses, etc., do not assemble on or adjacent to the property. Record activity of offenders in the Daily Activity Report (DAR) and notify post commander. • Provide vehicle and parking control throughout the facility as needed. • Surveillance of trains, buses and passenger movement will be required. • Assist all members of the public in a courteous manner. • Summon and assist law enforcement officers as needed. • Enforce the facility's unattended baggage policy and follow appropriate procedures. • Prepare detailed, written incident reports when anything involving Police, Sheriff's Department, Fire Department, or other agency occurs. • At designated times, lock down or open the entire facility. This will include main building, parking structure, and pedestrian bridge accesses. • Notify post commander when a problem requires immediate attention outside of security officer's scope of work. • Make written reports detailing any light outages; improperly working doors and/or locks; building leaks or leaks of any kind; any abnormality in function of mechanical, electrical or plumbing systems; graffiti locations; or suspected or observed theft or vandalism. • Observe other contractors performing work on the premises. • Assist management during special events by directing vehicle or pedestrian traffic and crowd control. • Provide routine information to public upon request. 3 25B-5 • Raise and lower flags at dawn and dusk. • Perform any other related work as required. • When necessary, cooperate with and give access to service areas to other contractor personnel and report when service is done. • Complete an Unsecured Vehicle Sheet when a vehicle is found open or unsecured in any way. Report of this activity will be made in the DAR. • Personal business must be conducted away from the job site. No use of private cell phones is allowed while on post, unless prior authorization has been secured. It is hereby noted that the duties and responsibilities of security officers and post commanders include, but are not limited to the above. Policy and procedure changes and additions made by the SARTC management will be appropriately conveyed by the property manager to the post commander and will be followed by all security officers. VITAL PERSONNEL INFORMATION Because of the sensitivity of the security officer function, the City requires that the Santa Ana Police Department conduct its own background checks of contractor's personnel at contractor's expense. The City will maintain cards on each officer containing the following information: • Name of security officer • Permanent address • Telephone number • Social Security Number • California Class "D" security officer license number • Drivers License Number or photo identification card and issuing state • Location(s) where trained • Date training was completed Santa Ana Police Department's clearance must be granted before any person can begin training or reports for duty. When a security officer with an active card on files ceases to be assigned to duty at the SARTC, the contractor shall so inform the property manager immediately. POST INSTRUCTIONS OVERVIEW Purpose Provide the SARTC visible deterrence against crimes of vandalism, theft, and bodily injury on a twenty-four- (24-) hour basis. Contractor shall develop a comprehensive set of Post Orders documenting both general procedures, as well as site-specific responsibilities. Draft Post Orders shall be prepared prior to the commencement of the contract and must be reviewed and approved by the City within fifteen (15) days from commencement of contractor's services. 4 25B-6 General Instructions/Post Procedures A. Vehicle Control/Parking Control I . All vehicles are to park in marked spaces. Be alert for vehicles parked in loading zones, taxi cab and bus zones, or double parked. 2. Keep handicapped parking free of illegal parking. 3. Security personnel are to park their vehicles in the parking structure. Personnel are forbidden to be in or around their vehicles during their shift. This activity will result in removal from post. B. Visitor Control The SARTC is the central travel hub for Orange County and experiences a significant number of travelers at all hours. Government offices are located in the building and attract additional visitors. A courteous, professional, and well-informed demeanor is required. C. SARTC Lock Function/Close Facility I. Lockdown/closure of the facility will be done at midnight, seven days per week. 2. Main Building - Lock all outside perimeter entry doors, main lobby restroom doors, and gates to the courtyard. Turn off all designated lights. 3. Parking Structure - Lock all parking structure perimeter doors and rolling gate. 4. Pedestrian Bridge - Lock all gates, doors, and elevator access. Lock gate from overpass to main building. D. SARTC Unlock Function/Open Facility 1. Unlock/opening of the facility will be done at designated times seven days per week. 2. Unlock all required doors and turn on all designated lighting. 3. Unlock all parking structure perimeter doors and rolling gate. E. Tour Patrol Every hour, tour patrols are required at this post, twenty-four (24) hours a day, seven (7) days a week. Each patrol must consist of a minimum of thirty (30) minutes. At least twenty-five (25) locations will be strategically designated in areas of the SARTC building, parking structure, parking lots, pedestrian bridge, east and west platforms, and perimeter of installation to provide the maximum security coverage and visibility to the public. F. Miscellaneous Duties High visibility throughout the property is essential. When two officers are on post, they can tag team the parking areas, pedestrian bridge area, platform and boarding areas. Anyone found loitering or looking in cars is to be questioned. Call Police regarding suspicious activities immediately. G. Cellular Equipment Each security officer is required to carry a cellular phone at all times. H. Authorized Taxi Cab Service The SARTC authorizes the services of only one taxi cab company to utilize the cab zone to pick up customers. If a security officer notices an unauthorized cab company loitering on the premises, he/she is to instruct the unauthorized cab driver to leave. Whenever possible, note the cab company name and cab number or license plate number and include this information in the DAR. 5 25B-7 I. Bus Bays • Bus bays 1, 2, 3 and 10 are used by the Orange County Transit Authority. • Bus bay 4 is designated for Crucero. • Bus bays 5 and 6 are designated for Greyhound Lines. • Bus bays 7 and 8 are designated for Transportes Intercalifornias. • Bus bay 9 is designated for Tres Estrellas de Oro. • All authorized buses must park in their assigned bus bays. • No other bus companies are authorized to use the bus bays. J. Use of the Public Address System (PA) The PA System is available for use by security officers, if required. Always use the PA system in a professional manner. K. Breaks Each shift is allocated two (2) fifteen- (15-) minute breaks and a half- (1/2-) hour meal period. This time is for eating, using the facilities, and to conduct personal business. However, the security officer is still on duty and must respond to all calls. The only designated resting area is the security room. The post commander will determine when breaks will be taken. L. Pertinent Information • High visibility must be maintained. • Constant visible patrol is required. • Security officers are to be primarily outside of the building. Hourly patrols of the interior of the building are required. • When two security officers are on duty, they should never be together unless a situation requires it. SHIFT OUTLINE IS' Shift - Midnight to 8:00 a.m. • On first tour patrol, check all vehicles for break-ins, etc., and report findings in DAR. • Maintain outside surveillance. • Perform tour patrols every hour, stopping at each designated location. • Lock facility at midnight. Turn off all designated lights. • Be available to meet incoming trains and buses to assist patrons who may have parked in the parking structure. • Concentrate on outside patrols to remove loiterers and all unauthorized individuals from the property (after midnight). • Check all exterior doors of facility and parking structure to make sure they are locked. • Unlock facility at 5:00 a.m. daily. Turn on all designated lights. • Raise flags at dawn unless rain is imminent. • On last tour patrol, check all vehicles for break-ins, etc., and report findings in DAR. • Pass on any important information to next shift. 25B-8 2"d Shift - 8:00 a.m. to 4:00 p.m. • On first tour patrol, check all vehicles for break-ins, etc., and report findings in DAR. • Maintain a constant visible patrol. • Assist the traveling public with directions and information. • Perform tour patrol of parking lots every hour and parking structure every hour. • On last tour patrol, check all vehicles for break-ins, etc., and report findings in DAR. • Pass along important information to next shift. 3`d Shift - 4:00 p.m. to midnight • On first tour patrol, check all vehicles for break-ins, etc., and report findings in DAR. • Maintain a constant visible patrol. • Patrol the parking structure from 4:00 p.m. to 6:00 p.m. to assist employees leaving the building. • Patrol the parking structure and parking lots from 6:00 p.m. to 11:00 p.m., stopping at each designated location every hour. • Lower flags at dusk. Overlap Shift -5:00 a.m. to 1 p.m. and 11:00 a.m. to 7:00 p.m. Duties will include tag teaming with graveyard and day shifts security officers to ensure security surveillance of entire property. Security officers going off duty will physically hand over all equipment, noting condition to incoming security officer. It is required that the two security officers meet face-to-face at shift change. Incoming security officer will be advised of any pending items that need to be addressed. EMERGENCY PROCEDURES When emergencies arise, security officers will adhere to the following protocol: A. In emergency situations, call 911 and notify post commander and follow his/her orders. Complete an incident report with proper information. Sign and return incident report to post commander. B. In nonemergency situations that require public safety assistance, call the Santa Ana Police Department nonemergency number. C. During the hours when the facility is locked down (midnight to 5:00 a.m.), entry into the facility or into any business within the complex is not permitted, unless prior authorization has been provided by property manager. If the security officer ascertains that there is an emergency situation inside, then he/she may enter to take the necessary steps to bring the situation under control. D. An incident report MUST BE WRITTEN - NO EXCEPTIONS. REPORTS A. Incident Reports All incidents that occur on the property must be reported to the post commander and an Incident Report must be completed. This includes thefts, arrests, tow-aways, accidents, safety violations, police activity, medical activity, and other situations. All Incident Reports will be submitted to the post commander daily for review and signature. When on duty, the post commander is also to be called on all incidents. 25B-9 B. Daily Activity Reports (DARs) A DAR is to be written by each security officer for each and every shift worked. An hour-by-hour report of activities is necessary. One-sentence entries are not acceptable. A professional DAR will report on train and bus activity, lost and found, questions to suspicious individuals, or any other observation that indicated the security officer's alertness. An "all secure/nothing to report" is acceptable ONLY if there is nothing to report. MISCELLANEOUS A. Chain of Command The post commander is the main point of contact for all security business conducted. Any and all questions, comments, problems, etc., should be directed through the post commander when on duty. B. Shift Changes Security officers will work full shifts, NO EXCEPTIONS. No officer will leave before his/her appointed off- duty time and/or a relief officer arrives to cover the next shift. The post must NEVER be left unattended. C. Unauthorized Personnel Friends or family members are not permitted to visit the security officer while on duty. If there is a desire to see the facility, it must be done during off-duty time and out of uniform. D. Total Cooperation I . As representatives for the City of Santa Ana, security officers are expected to conduct themselves in a courteous and professional manner at all times. This includes any interaction with other contractors conducting business at the SARTC. 2. Officers are to be clean and dressed in a complete, spot free uniform. Clean, polished, black shoes are required. A professional appearance is an integral part of the post. 25B-10 8 EXHIBIT 1-B THE SANTA ANA ZOO AT PRENTICE PARK The Santa Ana Zoo at Prentice Park (the "Zoo") is located at 1801 East Chestnut Avenue, Santa Ana, California, 92701. The Zoo covers 20.5 acres including public parking areas, animal housing, exhibits, and buildings. The Zoo handles 90 species with approximately 250 animals and 35 exhibits. Security is required to ensure the safety of the animals, Zoo employees, and the general public. POST INSTRUCTIONS Purpose To provide the Zoo with after-hour security checks as a deterrent against crimes of vandalism and theft, as well as safety to City property and the Zoo's animal collection during the Zoo's closed hours. HOURS OF ZOO OPERATION Monday through Sunday (seven days per week) 10:00 a.m. to 5:00 p.m. The Zoo is closed to the general public only two days each year; however, Zoo staff is still on the grounds to feed and care for the animals: December 25 Christmas Day January 1 New Year's Day Note: During days of extremely inclement weather, the Zoo Manager may decide to close the Zoo to the public. PATROL AT THE ZOO Nightly, seven (7) days per week, conduct one (1) security sweep through the Zoo's property perimeter, with a tour patrol that includes eight (8) strategically designated locations, and includes an electronic guard tour system between the hours of 1:00 a.m. and 3:00 a.m. The patrols are to be randomly scattered each night with no set time, to ensure maximum security coverage. Contractor is to provide one security officer, unarmed, in standard full uniform and a functioning vehicle displaying the security company's name in clear view on the vehicle. Security officer is to carry a cell phone or mobile radio at all times for communication requirements. Instructions are provided for contact procedures in the event of a security breech or concerns for the safety of the Zoo's animals. Under no circumstance is aggressive action required. The security officer is unarmed and required to call proper channels in the event of any unusual observation. Daily reports of the nightly patrol rounds are to be submitted for review by the Zoo director's representative. The Zoo holds the option to increase or decrease the number of nightly vehicle sweeps and the number of days per week requested, with seven days written notification. 25B-11 EXHIBIT 1-C THE SANTA ANA CORPORATE YARD The Santa Ana Corporate Yard ("the Yard") is located at 215 South Center Street, Santa Ana, CA 92703. The Yard covers 12 acres between First Street on the north edge, Daisy Avenue on the east, Chestnut Avenue on the south, and Center Street on the west side. The property includes administrative office buildings, a central stores warehouse, a fleet and facility maintenance two-story garage, and a single-story vehicle parking structure backed up to Chestnut Avenue. The entire property is walled with three security gate entrances. The property houses a variety of the City's vehicle fleet, including street sweepers, large trucks, and standard sedans. Additionally, the Yard serves as a fuel filling location for City vehicles with underground storage tanks of diesel and unleaded fuels, and above-ground CNG and hydrogen fuels. Security guard service at the Yard is required seven days a week. POST INSTRUCTIONS Purpose To provide the Yard with security guard service to monitor the security of the equipment, buildings, and general property. A guard station located at the Center Street west entrance and equipped with a closed-circuit TV provides visual monitoring of the Yard area. HOURS OF CORPORATE YARD OPERATION Monday-Friday 6 a.m. - 6:00 p.m. OBSERVED HOLIDAYS: The following 11 holidays are observed at the City of Santa Ana and require full security guard coverage for 24 hours. • New Year's Day • Martin Luther King Jr.'s Birthday • Presidents' Day • Memorial Day • Independence Day • Labor Day • Veterans Day • Thanksgiving and the Friday following • Christmas and the last working day before the holiday Guard Service at the Yard Contractor is to provide one security guard, unarmed, in standard full uniform for placement at the Guard Station located on the west side of the Corporate Yard. Shift Coverage: Monday-Thursday 4:00 p.m. to 6:00 a.m. or 6:00 a.m. to 8:00 p.m. Friday night starting at 4:00 p.m. with coverage until Monday at 6:00 a.m. Holiday coverage 1° 25B-12 Security guard observes the closed circuit TV monitoring of the Yard, and closes the entrance gates on the east and west side of the property between 5:00 p.m. and 5:30 p.m., weekdays. When daytime coverage is required, guard opens the gates at 6 a.m. on weekdays. Guard maintains a logbook noting the name of every individual who enters and leaves the property, with time. Guard conducts a continuous observation of the Yard to maintain a secure and safe property. If any concerns arise during the guard shift, instructions are provided with contact numbers to the Santa Ana Police Department. Under no circumstance is aggressive action required. The security guard is unarmed and required to call proper channels in the event of an unusual observation. Contractor will conduct monthly unannounced supervisory inspections during each shift. The Yard holds the option to increase or decrease nightly or daily coverage, the hours of coverage, and the number of days per week requested with seven days written notification. 25B-13 11 EXHIBIT 1-D LIBRARY SECURITY This project includes approximately 80 hours of uniformed security service per week for the Santa Ana Library ("Library"). Contractor shall provide unarmed uniformed security services in and around Library properties as requested by the library manager. Contract security personnel shall assist the Library in meeting its security objectives by performing the following general tasks: • Perform roving patrols of interior and exterior building areas. • Complete incident and daily operating reports. • Respond as necessary to support other life safety duties as identified in post orders and standard operating procedures. • Direct patrons to areas within Library and Civic Center. • Report building maintenance and safety concerns as necessary. • Enforce Library rules as required. • Mitigate various issues that arise in and around the Library based on Civic Center activity. Contractor shall provide all management, supervision, and overhead for all contractor's employees, and shall be solely responsible for instituting and invoking disciplinary action of employees not in compliance with Contractor's rules and regulations, as well as any other policy established by the contracting parties. Contractor shall develop a comprehensive set of Post Orders documenting both general procedures as well as site- specific responsibilities. Post Orders shall be prepared prior to the commencement of the contract and must be reviewed and approved by the City with fifteen (15) days from commencement of contractor's services. All security officers will be required to read and verify they understand the Post Orders and, at minimum, shall be tested during the on-the-job training (OJT) period and, at minimum, during annual site inspections. Contractor shall ensure hiring, training, and administration of motivated and professional employees that meet or exceed both contractor's and City's standards. Contractor is responsible for the daily personal appearance of security personnel. Contractor shall provide seasonal uniforms and weather-appropriate protective clothing necessary to identify staff as security guards and support continuous performance of contract requirements. Security officers are prohibited from carrying weapons of any kind, including but not limited to: firearms, nightsticks, martial arts weapons or equipment, batons, or any chemical agent spray or liquid. Contractor shall agree to remove from the site, whenever required to do so by the City, any contractor employee considered by City to be unsatisfactory or undesirable, within the limits of any applicable laws. 12 25B-14 EXHIBIT 1-E AS-NEEDED SECURITY FOR CITY LOCATIONS The City of Santa Ana must provide for the possibility of providing immediate security guard coverage at any location in the City. A successful agreement for security guard services must include the option for immediate security guard coverage due to a security breach at any of approximately 15 local park clubhouses and community centers, a City parking structure, a community learning center, or even City Hall. Coverage must be provided as soon as possible for the duration of the period outlined. 13 258-15 4 i 3 t y! 1 THIRD AMENDMENT TO AGREEMENT t i t THIS THIRD AMENDMENT TO AGREEMENT is entered into on December I 20, 2010, by and between Securitas Security Services USA, Inc., a Delaware corporation ("Contractor") and the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"). } E RECITALS: f i A. The City entered into Contractor Agreement # 2006-310, dated November 20, 2006, with Contractor by which Contractor has provided security guard services at the Santa Ana Regional Transportation Center, the Santa Ana Zoo at Prentice Park and the Corporate Yard (hereinafter "said Agreement"). B. In December 2008, and again in December 2009, the parties amended the Agreement S (#2008-336) to extend the Term and increase the Compensation. C. The parties hereto now desire to again extend the term, on a month to month basis, and amend the Agreement by reducing the scope of services for the Santa Ana Zoo at f Prentice Park, and authorizing compensation to pay for services during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement and all Amendments thereof, except those amended in this Amendment to Contractor Agreement, the parties agree as follows: I . Section 1, SCOPE OF SERVICES, shall be amended to amend Exhibit A-2, Santa Ana Zoo at Prentice Park, to reflect that Contractor shall conduct one early morning security vehicle sweep nightly, in conformance with the provisions of said Exhibit A-2. 2. Section 3, TERM, shall be amended to extend the term, on a month-to-month basis for up to six months, but not beyond May 31, 2011. Services provided since December 1, 2010 shall be included within the Scope of Services of this Amendment. 3. City agrees to pay, and Contractor agrees to accept as full payment for its services pursuant to said Agreement, the following rates and charges: Facility Monthly rate Total a. The Santa Ana Regional $19,503 $ 117,017 Transportation Center b. Santa Ana Zoo at Prentice Park $ 617 $ 3,700 c. Corporate Yard $ 8,948 $ 53,690 Exhibit 2 25B-16 i t f d. Homeland Security Alerts $ 2,500 $ 15,000 e. Contingency security coverage $ 2,500 15,000 i Total expenditure: $34,068 $ 204,407. i 3. Except as hereinabove amended, all terms and conditions of said Agreement shall x remain in full force and effect. F f IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to the f Agreement on the date and year first written above. r CITY OF SANTA ANA i ATTEST: i C a 4 MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager t i f APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Laura Sheedy Assistant City Attorney CONTRACTOR SECURITAS USA, INC. JAMES FINCH Area Vice President Tax ID # 71-0912217 Exhibit 2 25B-17 EXHIBIT A-2 HE SANTA ANA ZOO AT PRENTICE PAR The Santa Ana Zoo at Prentice Park is located at 1801 E. Chestnut Avenue, Santa Ana CA 92701. The zoo covers 20.5 acres including public parking area, animal housing, exhibits and buildings. The zoo handles 90 species with approximately 250 animals and 35 exhibits. Security is maintained 24 hours a day to ensure safety of the animals, the zoo employees and the public. POST INSTRUCTIONS PURPOSE To provide the Santa Ana Zoo with after hour security checks as deterrence against crimes of vandalism and theft as well as safety to property and animals during the zoo's closed hours. 1. HOURS OF ZOO OPERATION Monday - Sunday Q days a week) 10:00 a.m. - 5.00 p.m. The Zoo is closed to the public only 3 days each year: August 28 Special Event Day - closed to public December 25 Christmas Day - closed January 1 New Year's Day - closed II. PATROL AT ZOO Nightly, 7 days a week, conduct three security vehicle sweeps through the Zoo's property perimeter, with walks to activating 8 TACO chips, between the hours of 6 PM and 6 AM. The patrols are to be randomly scattered through each night with no set time to assure maximum security coverage. Vendor to provide one security guard, unarmed, in standard full uniform and a functioning vehicle displaying the security company name in clear view on the vehicle. Guard to carry a cell phone or mobile radio for communication requirements. Instructions are provided for contact procedures in the event of a security breech or concerns for the safety of the animals. Contact is made to the City Park Rangers up to 11 PM nightly and thereafter to the Santa Ana Police Department. Under no circumstance is aggressive action required. The security guard is unarmed and required to call proper channels in the event of any abnormal observation. Weekly, the TACO reports are sent for review of the nightly patrol rounds. The Zoo holds the options to increase or decrease the number of nightly vehicle sweeps and the number of days per week requested with 7-days written notification. 17 010 i EXHIBIT A-3 HE SANTA ANA CORPORATE YARD The Santa Ana Corporate Yard is located at 215 S. Center Street, Santa Ana CA 92703. The Corporate Yard covers 12 acres between First Street on the north edge, Daisy Avenue on the east, Chestnut Ave on the south and Center Street on the west side. The property includes several office buildings, a Central Stores warehouse, a Fleet Maintenance 2-story garage and a single story vehicle parking structure backed up to Chestnut Ave. The entire property is walled with 3 security gate entrances. The property houses a variety of the City's vehicle fleet including street sweepers, large trucks and standard sedans. Additionally the yard serves as a fuel filling location for City vehicles with underground storage tanks of both diesel and unleaded fuel. Security guard service is required for the evening hours and the weekends during the regular non-working hours of the City staff at the Corporate Yard. POST INSTRUCTIONS PURPOSE To provide the Santa Ana Corporate Yard with after hour security guard service to monitor the security of the equipment, buildings and general property. A guard station located at the Center Street south entrance equipped with a closed circuit TV provides visual monitoring of the yard area. HOURS OF CORPORATE YARD OPERATION Monday - Friday 6 a.m. - 6.00 p.m. OBSERVED HOLIDAYS: The following 11 holidays are observed at the City of Santa Ana and require full security guard coverage for 24 hours. New Year's Day in January Martin Luther King Jr.'s Birthday in January President's Day in February Memorial Day in May Independence Day in July Labor Day in September Veteran's Day in November Thanksgiving and the Friday following in November Christmas and the last working day before the holiday in December 18 11. Guard Service at the Corporate Yard. Vendor to provide one security guard, unarmed, in standard full uniform for placement at the Guard Station located on the west side of the Corporate Yard. Shift Coverage: Monday through Thursday 4 PM to 6 AM Friday night starting at 4 PM with coverage until Monday at 6 AM Holiday coverage Security Guard observes the closed circuit TV monitoring of the Corporate Yard. Closes the entrance gates on the east and west side of the property between 5:30 PM and 6 PM, weekdays. Opens the gates at 6 AM on weekdays. Maintains a logbook noting the name of every individual who enters and leaves the property, with time. Conducts a continuous observation of the Corporate Yard to maintain a secure and safe property. If any concerns arise during the guard shift, instructions are provided with contact numbers to the Santa Ana Police Department. Under no circumstance is aggressive action required. The security guard is unarmed and required to call proper channels in the event of an abnormal observation. Conduct unannounced supervisory inspections during shift. The Corporate yard holds the options to increase or decrease the number of nightly coverage, the hours of coverage and the number of days per week requested with 7-days written notification. 19 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 20, 2010 TITLE APPROVED ? As Recommended AGREEMENT RENEWALS FOR ? As Amended TEMPORARY CONSULTING ? Ordinance on 151 Reading ? Ordinance on 2nd Reading SERVICES FOR INFORMATION ? Implementing Resolution TECHNOLOGY ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Approve and authorize the City Manager and Clerk of the Council to execute the attached agreement renewals for temporary consulting services for information technology in a total aggregate amount not to exceed $3,290,000 for a one-year term or until the funds are expended, subject to non-substantive changes approved by the City Manager and City Attorney with the following vendors: Concorde Consulting, Inc. SoftMaster, Inc. The Comdyn Group, Inc. Telfords DISCUSSION The use of temporary contractors specialized in information technology continues to be an essential approach to the support of City operations. Contract personnel provide software application development and support; business application and project consulting; telecommunications services; and computer and networking services. The use of these services maximizes the effectiveness of staff resources in the Information Services Division (ISD). This approach ensures timely completion of City information projects and reduces interruptions to the computer infrastructure system. These agreements provide highly skilled technology contractors who are essential in providing specialized assistance to City departments in the design, development and implementation of the City's information management systems. They support some 1,800 plus end-users; three each Enterprise client/server-based and web-based business systems; the City's wide area network including the connection to the Internet; eleven department local area networks; 185 servers in two data centers (the City Hall data center and the SAPD data center) with over 65 terabytes of data capacity; and 200 managed network switch es/fi rewal Is/routers and over 50 high speed data circuits supporting 38 City operating locations. Software applications developed and supported by these contractors included the Santa Ana Property Information Network (SAPIN), the 25C-1 Agreement Renewals for Temporary Consulting Services for Information Technology December 20, 2010 Page 2 Business License/Tax System, Municipal Utility System, and several other revenue related systems. In addition, the contractors support the City's Financial Enterprise Resource Planning System. For the Santa Ana Police Department (SAPD) and Santa Ana Jail (SAJ), contractors support mission-critical systems such as the Computer Aided Dispatch, the Jail Management System, Arrest and Booking system, Inmate Search and Reporting system, Case Management system, Police Intranet system, wireless data communications for patrol vehicles, California Law Enforcement Telecommunication system (CLETS) access, PD and Jail Email system, Evidence wireless systems, Daily Roll-call system, and 100 other systems which are critical to the daily operations of the Police and Jail departments. Homeland Security technologies such as the PD Emergency Department Operations Center (DOC), Web based Emergency Operations Center (WebEOC), and Mobile Command Post network systems are supported and maintained by technical contractors. Contractors also help support PD substations by managing network systems which provide field officers and investigators access to systems located at the main station. SAPD is using several of these temporary contractors to enhance the Police field reporting system under grant funding. Additionally, technical contracts are instrumental in the implementation of new technologies such as In-Field Fingerprint systems, Patrol wireless ad-hoc wireless system, Homeland Security Mobile Command Post satellite communications system, SAPD/SAJ enterprise Wiki system, Crime Analysis "CrimeView" Web system, "Citizen Observer" community notification system, and more into the organization. Additionally, under a cost reimbursement basis, technical contractors engineered, developed, maintain, and hosts the County-wide network and computing environment for Coplink, which is the Integrated Law & Justice Agency for Orange County (ILJAOC) web-based information sharing and crime analysis system that connects all 29 of Orange County's public law enforcements agencies with other law enforcement agencies throughout southern California, southwest and pacific northwest regions. Without these dedicated and talented professionals, the City information technology infrastructure and operating systems could not function. For the Community Development Agency in City Hall and four remote locations, the contractors support approximately 140 PC's, provide system administration for application and data base servers, develop and maintain custom software for JTA, YARD[ and database tracking for Lease, Parking, Affordable Housing, Rehab and Budget. A Request for Proposal (RFP) for Temporary Technical Contract Service and Consulting Services was issued by the Information Services Division in March 2007. Twelve proposals were evaluated and the top four vendors were identified. On June 18, 2007, Council approved agreements with these four vendors for a one-year period, with the option of four renewal terms. During the term of the agreement, the vendors have provided excellent service and support to the City. Under these agreements, temporary contractors in various technology specialties are engaged on an as needed basis to support City business operations. These engagements differ greatly in duration which results in a varying rate and use of the approved funding. Rather than return to the Council at the end of a specific term of one year, staff requests that the term be recognized as the duration until approved funds are fully expended. 25C-2 Agreement Renewals for Temporary Consulting Services for Information Technology December 20, 2010 Page 3 Over the term of the agreements, temporary contractors have directly contributed to the implementation of over 15 new or enhanced City business systems. The support workload related to these new systems is being achieved through the use of enhanced technologies driven by the contractors. FISCAL IMPACT Funds are available in various Technology Plan, Other Contractual Services accounts (accounts 10910142-62300, 10910143-62300, 10910144-62300, 10910146-62300, 10910147-62300) in 2010- 11. Funds for the duration of the agreement will be included in the proposed 2011-2012 budget. APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25C-3 25C-4 THIRD AMENDMENT TO AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT, is entered into on December 20, 2010, by and between CONCORDE CONSULTING, INC, a California corporation (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS: A. The parties entered into Agreement # A-2007-144, dated June 18, 2007, (hereinafter "said Agreement") by which Consultant has provided temporary technical personnel to assist the City's Information Technology department with various projects and on a consulting basis. B. The parties executed Amendments dated October 6, 2008, and September 8, 2009, by which the term was extended and compensation added to pay for services during the extended term. C. In accordance with the terms and conditions of said Agreement, the parties wish to again extend the term of said Agreement and increase compensation to pay for services during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: 1. Section 3, "Term", shall be deleted in its entirety and replaced with the following: "The term of said Agreement shall commence July 1, 2007 and terminate on expenditure of allocated funds, unless earlier terminated in accordance with Section 13, below. The City shall have the option, at City's discretion, to renew this Agreement for one (1) additional one-year period." 2. Section 4, "Compensation, shall be amended to increase total compensation by $3,290,000.00, to pay for additional services provided during the extended term of said Agreement. Said Section 4, shall read in full as follows: "a. The City agrees to pay, and Consultant agrees to accept as total payment for its services pursuant to this Agreement, the rates and charges set forth in Vendor's Cost Proposal, attached to said Agreement as Exhibit B. Total compensation, payable to any or all vendors for Temporary Technical Contract Service Personnel, collectively, shall be increased by $3,290,000 to pay for services during the extended term. Said total compensation shall be allocated among the Vendors selected by the City, at the City's sole discretion. 25C-5 b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed and/or products purchased, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City." 3. 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 Third Amendment to Agreement on the date and year first written above. CITY OF SANTA ANA ATTEST: MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney CONCORDE CONSULTING, INC. By: Laura Sheedy Assistant City Attorney (NAME) (Title) 25C-6 THIRD AMENDMENT TO AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT, is entered into on December 20, 2010, by and between SOFTMASTER, INC, a California corporation (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS: A. The parties entered into Agreement # A-2007-145, dated June 18, 2007, (hereinafter "said Agreement") by which Consultant has provided temporary technical personnel to assist the City's Information Technology department with various projects and on a consulting basis. B. The parties executed Amendments dated October 6, 2008, and September 8, 2009, by which the term was extended and compensation added to pay for services during the extended term. C. In accordance with the terms and conditions of said Agreement, the parties wish to again extend the term of said Agreement and increase compensation to pay for services during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: 1. Section 3, "Term", shall be deleted in its entirety and replaced with the following: "The term of said Agreement shall commence July 1, 2007 and terminate on expenditure of allocated funds, unless earlier terminated in accordance with Section 13, below. The City shall have the option, at City's discretion, to renew this Agreement for one (1) additional one-year period." 2. Section 4, "Compensation, shall be amended to increase total compensation by $3,290,000.00, to pay for additional services provided during the extended term of said Agreement. Said Section 4, shall read in full as follows: "a. The City agrees to pay, and Consultant agrees to accept as total payment for its services pursuant to this Agreement, the rates and charges set forth in Vendor's Cost Proposal, attached to said Agreement as Exhibit B. Total compensation, payable to any or all vendors for Temporary Technical Contract Service Personnel, collectively, shall be increased by $3,290,000 to pay for services during the extended term. Said total compensation shall be allocated among the Vendors selected by the City, at the City's sole discretion. 25C-7 b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed and/or products purchased, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City." 3. 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 Third Amendment to Agreement on the date and year first written above. CITY OF SANTA ANA ATTEST: MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney SOFTMASTER, INC. By: Laura Sheedy Assistant City Attorney (NAME) (Title) I 25C-8 THIRD AMENDMENT TO AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT, is entered into on December 20, 2010, by and between THE COMDYN GROUP, INC, a California corporation (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS: A. The parties entered into Agreement # A-2007-147, dated June 18, 2007, (hereinafter "said Agreement") by which Consultant has provided temporary technical personnel to assist the City's Information Technology department with various projects and on a consulting basis. B. The parties executed Amendments dated October 6, 2008, and September 8, 2009, by which the term was extended and compensation added to pay for services during the extended term. C. In accordance with the terms and conditions of said Agreement, the parties wish to again extend the term of said Agreement and increase compensation to pay for services during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: 1. Section 3, "Term", shall be deleted in its entirety and replaced with the following: "The term of said Agreement shall commence July 1, 2007 and terminate on expenditure of allocated funds, unless earlier terminated in accordance with Section 13, below. The City shall have the option, at City's discretion, to renew this Agreement for one (1) additional one-year period." 2. Section 4, "Compensation, shall be amended to increase total compensation by $3,290,000.00, to pay for additional services provided during the extended term of said Agreement. Said Section 4, shall read in full as follows: "a. The City agrees to pay, and Consultant agrees to accept as total payment for its services pursuant to this Agreement, the rates and charges set forth in Vendor's Cost Proposal, attached to said Agreement as Exhibit B. Total compensation, payable to any or all vendors for Temporary Technical Contract Service Personnel, collectively, shall be increased by $3,290,000 to pay for services during the extended term. Said total compensation shall be allocated among the Vendors selected by the City, at the City's sole discretion. 25C-9 b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed and/or products purchased, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City." 3. 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 Third Amendment to Agreement on the date and year first written above. CITY OF SANTA ANA ATTEST: MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney THE COMDYN GROUP, INC. By: Laura Sheedy Assistant City Attorney (NAME) (Title) 25C-10 THIRD AMENDMENT TO AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT, is entered into on December 20, 2010, by and between TELFORDS, a partnership (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS: A. The parties entered into Agreement # A-2007-146, dated June 18, 2007, (hereinafter "said Agreement") by which Consultant has provided temporary technical personnel to assist the City's Information Technology department with various projects and on a consulting basis. B. The parties executed Amendments dated October 6, 2008, and September 8, 2009, by which the term was extended and compensation added to pay for services during the extended term. C. In accordance with the terms and conditions of said Agreement, the parties wish to again extend the term of said Agreement and increase compensation to pay for services during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: 1. Section 3, "Term", shall be deleted in its entirety and replaced with the following: "The term of said Agreement shall commence July 1, 2007 and terminate on expenditure of allocated funds, unless earlier terminated in accordance with Section 13, below. The City shall have the option, at City's discretion, to renew this Agreement for one (1) additional one-year period." 2. Section 4, "Compensation, shall be amended to increase total compensation by $3,290,000.00, to pay for additional services provided during the extended term of said Agreement. Said Section 4, shall read in full as follows: "a. The City agrees to pay, and Consultant agrees to accept as total payment for its services pursuant to this Agreement, the rates and charges set forth in Vendor's Cost Proposal, attached to said Agreement as Exhibit B. Total compensation, payable to any or all vendors for Temporary Technical Contract Service Personnel, collectively, shall be increased by $3,290,000 to pay for services during the extended term. Said total compensation shall be allocated among the Vendors selected by the City, at the City's sole discretion. b. Payment by City shall be made within thirty (30) days following receipt of 25C-11 proper invoice evidencing work performed and/or products purchased, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City." 3. 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 Third Amendment to Agreement on the date and year first written above. CITY OF SANTA ANA ATTEST: MARIA D. HUIZAR DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney TELFORDS By: Laura Sheedy Assistant City Attorney (NAME) (Title) 25C-12 A.aREQUEST FOR COUNCIL ACTIONa CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 20, 2010 TITLE: APPROVED ? As Recommended AGREEMENT AWARD FOR GRAFFITI ? As Amended REMOVAL SERVICES ? Ordinance on Reading El Ordinance on 2 n d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and the Clerk of the Council to execute the agreement with Graffiti Protective Coatings, Inc., to provide graffiti removal services, for an amount not to exceed $600,000 with an option to extend the agreement for four additional one-year renewals, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The Public Works Agency's Maintenance Division is responsible for citywide graffiti abatement. Graffiti abatement is performed 365 days a year. Graffiti is typically removed within 24 hours based on requests received from City staff and from residents through the City's graffiti hot-line telephone number. Contracting graffiti services has been pursued to provide enhanced service levels to the community. The contractor will be required to provide citywide color matching as part of the contract. Currently, staff does not provide color matching due to the cost to purchase specialized equipment for each employee. Color matching eliminates the patchwork of dissimilar colors at a specific location, which then removes the "graffiti scar" that often provokes additional graffiti to occur. Also, the contractor will be required to provide upper-level graffiti removal daily. By the contractor exclusively handling this service, the City's liability for potential damage to structures and employee injuries is eliminated. The contractor will be required to offer this service daily. Further, the City hires a second contractor at $120,000 a year to provide the Police Department with graffiti crime analyses. Graffiti Protective Coatings, Inc., will include this service in the proposed contract at no additional charge. 25D-1 Agreement Award for Graffiti Removal Services December 20, 2010 Page 2 A Request for Proposals was advertised on August 12 and 14, 2009, and proposals were solicited. A summary of the proposals requested and received is as follows: 11 Request for Proposals mailed 0 Request for Proposals mailed to Santa Ana vendors 2 Proposals received 0 Proposals received from Santa Ana vendors On August 26, 2009, two proposals were received and were evaluated by a City team comprised of representatives from the Public Works Agency, Police Department, and Community Development Agency using the following criteria: organizational credentials, experience, work plan, and pricing. The maximum obtainable score is 750. The ratings for the two respondents are as follows: FIRM LOCATION PRICE PER MONTH RATING Graffiti Protective Coatings, Inc. Los Angeles, CA $50,000 709 Urban Graffiti Enterprises Inc. Azusa, CA $37,500 507 Staff performed reference checks on both proposers and was informed by several cities that Urban Graffiti Enterprises Inc. did not perform and therefore their contract was not renewed. The proposal from Graffiti Protective Coatings, Inc., (GPC) received the highest overall rating, is responsive to the specifications, and meets the City's requirements. The GPC proposal included an extensive work plan and demonstrated the organizational credentials and staff experience necessary for removing graffiti. They have consistently demonstrated the ability to provide a high standard of service. Additionally, GPC provided staff with a written statement indicating the rate of pay for their employees exceeds the living wage standards for the Santa Ana and Orange County area. Thus staff recommends an agreement with GPC for an annual amount of $600,000 with no cost increases over the five-year term per Exhibit 1. There will be no layoffs of City employees as a result of this contract. City staff assigned to the graffiti removal program will be reassigned to the right-of-way maintenance program in the sanitation fund with no changes to their current salary rate. Current estimates are that up to 80 percent of the staff in the Maintenance Services Division are eligible to retire within the next five years. With a conservative assumption of one employee retiring per year, the Sanitation Fund will then realize a gradual cost savings. This reduction in personnel costs is an important long-term strategy to balance the sanitation fund given that any increase in this fund is subject to voter approval per Proposition 218. 25D-2 Agreement Award for Graffiti Removal Services December 20, 2010 Page 3 FISCAL IMPACT Funds are available in the Environmental Sanitation Fund (no. 06817642-62300). APPROVED AS TO FUNDS AND ACCOUNTS: Raul odinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG:DM Exhibit: 1. Letter from GPC 25D-3 25D-4 December 6, 2010 Ms, Darrell Mercado City of Santa Ana 220 S. Daisy Ave. Santa Ana, CA 92702 Ms. Mercado: In an effort to promote stability, guarantee residents and businesses with quality graffiti removal and customer service, GPC is committing to no increases in its unit cost for the next five years of contract service. By blitzing the City with an aggressive and thorough proactive "zero tolerance" effort, and including color matching and daily upper level graffiti removal city-wide to the contract, GPC is confident that within one year the amount of graffiti reoccurrences will decrease. As a result, GPC in coordination with City staff will re-evaluate required manpower after one year, and will remove one vehicle from service which would reduce our contractual obligation by $120,000. I would also like to inform you of GPCs efforts working directly with the community. GPC offers hands on workshops and sponsored clean-up events with neighborhood leaders and volunteers to educate them on graffiti removal along with leaving them training and supplies to continue helping in their community. Sincere , Carla Le ff, President 419 Larchmont Blvd Number 264 Los Angeles CA •000. Ph: (323) 464-4472 Exhibit 1 FaxI323) 656-3579 I [CF?ASF No, 6,124,17 25D-5 25D-6 GRAFFITI REMOVAL SERVICE AGREEMENT THIS AGREEMENT, made and entered into this 20"' day of December, 2010 by and between Graffiti Protective Coatings, Inc., a California corporation (hereinafter "Contractor"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a Contractor having special skill and knowledge in the field of graffiti removal. B. Contractor represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall provide graffiti removal services, with a staff of five (5) Graffiti Removal Persons, under the direction of City staff, as set forth in Exhibit A, attached hereto and incorporated to this Agreement by reference. Graffiti removal shall be performed every day of the week. It shall be Contractor's responsibility to schedule personnel to ensure graffiti removal is accomplished in a timely manner each day. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for its services, $50,000 per month, as set forth in Exhibit B, attached hereto and incorporated by reference. The total sum to be expended under this Agreement shall not exceed $600,000, annually, during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on January 1, 2011 and terminate on December 31, 2011, unless terminated earlier in accordance with Section 12, below. The contract may be extended on the written agreement of the parties, for up to four (4) additional one-year terms. Any such extension shall be subject to the same terms and conditions contained in this Agreement. Increases may be negotiated and adjusted prior to the commencement of any extended term, to be effective during such extended term. In the event sufficient budgeted funds are not available for a new fiscal period, the City shall notify Contractor 1 25D-7 of such occurrence and contract shall terminate on the last day of the current fiscal period without penalty or expense to the City. 4. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: (i) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. 2 25D-8 e. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Contractor's right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Contractor further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 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: 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: Public Works Agency - Maintenance Services City of Santa Ana 220 S. Daisy Avenue 3 25D-9 Santa Ana, California 92703 telefacsimile (714) 647-3345 Attn: Will Hayes 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 Contractor: Graffiti Protective Coatings, Inc. Carla Lenhoff 419 N. Larchmont Blvd., #264 Los Angeles, California 90004 telefacsimile (323) 464-4472 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 statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 10. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject of this Agreement performed by City personnel or by other Contractors retained by City. 11. TERMINATION This Agreement may be terminated by the City upon sixty (60) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all 4 25D-10 services performed by Contractor through the termination date, however, payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. Contractor shall have no other claim against City by reason of such termination. 12. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 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 or arise out of, in connection with or by reason of this Agreement. 14. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS Consultant shall carry out all services pursuant to this Agreement in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they may apply, and all other provisions of the City and its Municipal Code (as they may apply), and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seg. 15. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terns of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 5 25D-11 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 RECOMMENDED FOR APPROVAL: CONTRACTOR RAUL GODINEZ II (NAME) Executive Director - (Title) Public Works Agency Tax ID# 6 25D-12 EXHIBIT A SCOPE OF SERVICES 1. CONTRACTOR'S RESPONSIBILITIES - A. Work Assignments 1. Contractor will provide graffiti removal services for all streets, sidewalks, private and public property, parks, bike trials, flood channels, civic center and right-of-ways, located within city limits. 2. The Contractor shall contact the Project Manager and/or his/her designee each weekday, at a mutually agreed upon time, to discuss the Contractor's schedule for the day, pending work orders, areas to be maintained and areas to be inspected for approval. Weekend work orders will be assigned on Friday. 3. The Contractor shall receive work orders from the Project Manager and/or his/her designee via electronic mail, facsimile, or written, as agreed upon by the Project Manager and/or his/her designee and the Contractor. 4. Upon receipt of a work order, the Contractor shall inspect the location and determine the method of removal according to the PWA Graffiti Removal Standards, attached hereto as Attachment 1, which will maintain the integrity of the surface. 5. The Contractor shall provide services within twenty-four (24) hours of receiving work orders. In the event that a site cannot be abated within twenty-four (24) hours due to inclement weather, size of the site or any other reason, the Contractor shall notify the Project Manager and/or his/her designee with the status of the site prior to the end of the twenty-four (24) hour timeline. 6. Work may be assigned as a targeted graffiti route with graffiti removal. As directed by the Project Manager and/or his/her designee, the Contractor shall be assigned to schedule visits to specified sites, neighborhoods or corridors. The Contractor may be required to work with a site, neighborhood or corridor liaison in addition to the Project Manager and/or his/her designee. 7. The Contractor shall meet with the Project Manager and/or his/her designee one time per week at a mutually agreed upon time to discuss program status and issues. 8. The Project Manager and/or his/her designee or the Police Department may designate sites as needing an emergency response. An emergency work order will be issued immediately. Emergency response sites will have first priority and may require abatement on the same day. 9. The Contractor shall deliver completed work orders to the Project Manager and/or his/her designee via electronic mail, facsimile, mail or in person on, or prior to, the first working day of the week following assignment of the work order. Accommodations for special projects may be made. 10. Work on private property shall not be performed without the Contractor a Consent form signed by the owner or authorized by the Project Manager and/or his/ her designee. The Contractor shall obtain the signature of the property owner on the consent form prior to beginning work. Original consent forms shall be returned to the Project Manager and/or his/her designee on a weekly basis and are property of the City. The City will maintain a database of Consent Forms. B. Description of Work 1. The method of removal shall not leave shadows or ghosts and shall not follow the pattern of the graffiti such that letters or shapes remain apparent on the surface after markings have been removed. 2. Unless otherwise approved by the Project Manager and/or his/her designee, graffiti shall be removed so that virtually no trace of the pre-existing graffiti remains. 3. The Contractor shall protect the surfaces adjacent to the area to be abated. 7 25D-13 4. The Contractor shall abate the entire surface in the event that the graffiti covers a significant area of the surface. The Project Manager and/or his/her designee shall determine whether or not an entire surface will be abated on a case by case basis. 5. In the event that the Contractor arrives on site to find the graffiti has been abated, the Contractor shall notify the Project Manager and/or his/her designee and submit photos of the location within 24 hours. 6. The Contractor shall ensure protection of the work area at all times including, but not limited to: a. Barricading the area of work at distances so as not to allow persons who are not involved with the abatement into the area. b. Barricading area work performed within the public right-of-way. c. Using warning signs and sidewalk and street cones to inform the public of work being conducted as stipulated in watch handbook. d. Immediately correcting damage to the work site. e. Leaving work in undamaged condition. f. Providing signs to protect the finishes and the public. 7. The Contractor shall remove all equipment and materials from each site and leave the site broom clean at the completion of each removal location. 8. The Contractor shall dispose of all materials containers and excess materials in accordance with all applicable laws, regulations, ordinances, codes and any other legislative or statuary requirements. Material rinse residue shall be collected and disposed of appropriately. C. Photographic Documentation of Work 1. Photographs shall document the size, type of surface, hotline or no hotline, private or public property, paint or water blast of the area of graffiti to be abated. Photographs shall also document the address of the location of the graffiti. Equipment to take photographs will be provided by the City. D. Personnel 1. Contractor shall designate one specific individual to oversee and inspect work performed by Contractor's personnel assigned to this contract. The representative shall be immediately available during work activities to receive communications from the Project Manager and/or his/her designee. Such representative shall have a cell phone to in order to be contacted by the Project Manager and/or his/her designated staff. 2. Contractor shall make the designated representative available to accompany the City representative to inspect sites and/or work upon twenty-four (24) hours notice. 3. The Contractor shall utilize only trained, competent employees in the performance of this contract. At the request of the City, the Contractor shall remove from assignment to this contract any incompetent, abusive or disorderly employee, whether supervisory or non-supervisory. 4. Contractor shall ensure that all employees have immediate access to the Material Safety Data Sheet's (MSDS) for each product used in the performance of this contract. 5. Any person assigned to this contract found to be in possession of and/ or under the influence of intoxicants or narcotics shall be removed from assignment to this contract. This person may be subject to arrest and criminal prosecution. 6. Personnel employed by the Contractor shall be screened and are not to perform services under the contract without prior approval from the Contract Representative. All employees performing services must undergo a criminal background investigation prior to service under this contract. 8 25D-14 E. Equipment 1. The Contractor's vehicles and equipment shall be neat in appearance and easily identified. Identification on the Contractor's vehicles shall consist of, at a minimum, company name, local telephone number and contract services provided by City of Santa Ana in print no less than eight (8) inches tall. 2. The Contractor shall maintain its vehicles and equipment in safe and mechanically sound condition. 3. The Contractor shall provide all personnel, vehicles, supplies and equipment necessary to perform services. F. Compliance with Applicable Laws and Regulations 1. Contractor shall perform all requirements under and in strict observance of and compliance with all applicable laws, regulations, ordinances, codes and any other legislative or statutory requirements. 2. Contractor warrants that the performance of services under this contract shall be compliant with the current requirements of the Occupational Safety and Health Act (OSHA) and as it may be amended or updated throughout the term of this contract. G. Use of Products 1. The Contractor shall be in possession of a copy of the MSDS for each product used in the performance of work at all times. 2. Contractor shall ensure that all employees have immediate access to the Material Safety Data Sheet's (MSDS) for each product used in the performance of this contract. 3. All products used by the Contractor shall be manufactured products specifically intended for purpose for which they are being used. Contractor shall not devise any products of his/ her own making for use under this contract. The use of all products shall be in strict conformance with the manufacturer's specifications. 4. Contractor shall be in compliance with all provisions of the Federal Hazard Communication Act. H. Protection of the Public and Damages to existing Structures 1. The Contractor shall exercise caution at all times for the protection of persons and property. All fines, penalties and/ or repair changes resulting from the Contractor's actions and responsibility of the Contractor. 2. The Contractor shall not permit placing or use of equipment in such a manner as to block vehicle traffic lanes or create safety hazards. The Contractor shall be responsible for the use of all appropriate warning devices according to the watch handbook. 3. The Contractor shall avoid damage to existing structures. In the event that structure is damaged in the course of the work, the Contractor shall be solely responsible for its repair or replacement. 1. Invoices 1. All invoices for work performed under this contract shall be submitted electronically in an Excel 2003 format approved by the Project Manager and/or his/her designee. 2. The Invoice shall include the following: a. Contract number b. Contractor's invoice number c. Abatement site address d. Work order number e. Beginning and ending dates for services 9 25D-15 f. Square footage removed for each method of removal g. Total square footage removed h. Unit cost, subtotals and total for invoice II. SPECIFICATIONS- Painting 1. The Contractor shall professionally match existing paint using an approved paint palette. 2. The Contractor shall not paint previously unpainted surfaces and finishes such as slump stone, split face masonry, stone, brick or concrete block unless painting is specifically requested by the property owner or Project Manager and/or his/her designee. These specific requests shall be noted on the work order for the site. III. SPECIFICATIONS- Media Blasting and Chemical Removal 1. All chemical graffiti removal products shall be biodegradable and environmentally safe. 2. The Contractor shall perform all abrasive removal techniques so that the abatement area is blended into the adjacent surface. 3. Should one location require more than one removal technique and the total square footage of the abatement does not exceed one hundred fifty (150) feet, the City shall not be charged the minimum charge for both techniques. The Contractor may charge the average of the minimum charges for the techniques used. IV. WORKING HOURS Working hours shall be no earlier than 6:00 a.m. to no later than 5:00 p.m. weekdays. On Saturdays, Sundays and holidays, the Contractor shall respond to all graffiti telephone hotline requests received by 12 noon. Contractor shall respond to graffiti removal request received between 12 noon on Saturday and 12 noon on Sundays by 5:00 p.m. that same Sunday. If the Contractor cannot respond to a request made after 12 noon on a Sunday or holiday, Contractor will inform City on the following workday and abatement responsibility will be assigned by City. V. Work by the City Staff Because of Nonconformance to Contract Should the Contractor fail to correct deficiencies or public nuisances that have been created because of Contractor's operation, the City will proceed to take corrective measures and this project will be considered as an emergency. Such work will be done on a staff account basis with an additional callout charge of $75 for each callout. It should be noted that there is a minimum of a two-hour charge for labor on any callout. Contractor shall provide experienced and knowledgeable professional staff. Contractor's Project Manager and staff shall be responsive and maintain excellent working relationships with city residents, property owners, government officials and City staff. The Contractor shall be committed to provide adequate staffing levels at all times in order to adhere to established schedules. The Contractor will be required to carry a State of California Painting Contractor's License and a City of Santa Ana Business License and shall be knowledgeable and very familiar with federal, state and local regulations. Contractor services will include but not limited to attendance at City Commission, City Council and neighborhood meetings as determined by staff. Subcontractors shall be the responsibility of the prime Contractor and the City shall assume no liability of such subcontractor. The City reserves the right to reject, replace and approve any and all subcontractors. 10 25D-16 EXHIBIT B FEESCHEDULE Contractor will provide five (5) graffiti removal personnel - Paint and water blast combo, each working 40 hours per week. Contractor shall schedule personnel such that graffiti removal occurs seven (7) days per week, including weekends and holidays. Contractor employees working pursuant to this Agreement will perform approximately 2,500 to 3,000 removals per month and remove 50,000 to 60,000 sq. ft. of graffiti per month. City shall pay $10,000 per Contractor employee assigned to City graffiti abatement (40 hours per week) for a total not to exceed amount of $50,000 per month. City may increase the number of graffiti removal personnel at no additional increase in the unit bid price. Said fee shall include all Contractor costs including direct and indirect labor costs, overhead, materials, printing, travel and mileage. 11 25D-17 25D-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 6, 2010 TITLE: APPROVED RESOLUTION AND AGREEMENT ? As Recommended WITH PUBLIC AGENCY RETIREMENT ? As Amended Reading Ils' SERVICES FOR SOCIAL SECURITY El Ordinance on El Ordinance on 2 n nd Reading ALTERNATIVE PROGRAM SERVICES ? Implementing Resolution ? Set Public Hearing For CONTINUED TO l FILE NUMBER CITY MANAGER RECOMMENDED ACTION 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. 55A-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 55A-2 Lss 11/23/10 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 20, 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 20, 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 20, 2010. Resolution No. 2010- 55A-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. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By. Laura Sheedy Assistant City Attorney Resolution No. 2010- 55A-4 Page 2 of 3 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2010-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 2010- 55A-5 Page 3 of 3 55A-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 55A-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. 5. 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. 8. 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 55A-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 55A-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 55A-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 tern 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 55A-11 55A-12 EXHIBIT 1 A 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 55A-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 55A-14 EXHIBIT 1 B FEES FOR SERVICES 1. 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 55A-15 55A-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 55A-17 55A-18 PARS BENEFIT TRUST FBO CITY OF SANTA ANA PARS 3121 PART-TIME SEASONAL TEMPORARY DEFERRED COMPENSATION PLAN Effective TRUST DOCUMENT 1 55A-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 55A-20 PARS Benefit Trust FRO 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 FRO 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 3 55A-21 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 OnoinLi 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 4 55A-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 Manamer. 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 5 55A-23 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 6 55A-24 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 7 55A-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 8 55A-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 9 55A-27 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. 10 55A-28 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 11 55A-29 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 Subject 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 Manner 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. 12 55A-30 ARTICLE V RESTRICTIONS ON TRANSFER 5.1 Persons to Receive Payment. (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 Resitznation 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 Deshmation 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. 13 55A-31 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 55A-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 Liability. (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. (0 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 55A-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 Agency. (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 55A-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 Ai!ency 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 55A-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 18 55A-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 55A-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. ADOPTION Executed this day of , 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 By: (Signature) (typed or printed name) (title) UNION BANK, N.A. TRUSTEE Accepted this _ day of , 20_ Accepted this day of , 20 By: By: (Signature) (Signature) (typed or printed name) (typed or printed name) (title) (title) PUBLIC AGENCY RETIREMENT SERVICES TRUST ADMINISTRATOR Accepted this _ day of , 20 By: (Signature) (typed or printed name) (title) 20 55A-38 THE CITY OF SANTA ANA PUBLIC AGENCY RETIREMENT SYSTEM 3121 PART-TIME SEASONAL TEMPORARY DEFERRED COMPENSATION PLAN Effective NB 1:564577.3 55A-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 I :564577.3 1 55A-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 1. 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. NB I :564577.3 2 55A-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 55A-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. N131:564577.3 4 55A-43 ARTICLE lI 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 55A-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 1:564577.3 6 55A-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 55A-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 55A-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 55A-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 NB 1:564577.3 10 55A-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 55A-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 55A-51 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 I :564577.3 13 55A-52 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. NB 1564577.3 14 55A-53 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. NB 1:564577.3 15 55A-54 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. NB 1:564577.3 16 55A-55 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. NB 1564577.3 17 55A-56 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. N131:564577.3 18 55A-57 "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 NB 1:564577.3 19 55A-58 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 seq. "Trust" means the trust established as part of the Public Agency Retirement Trust to hold the assets of the Plan. NB I :564577.3 20 55A-59 "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 1:564577.3 21 55A-60 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 BY: TITLE: DATE: 55A-61 55A-62 TABLE OF CONTENTS Page Introduction 1 Article I Participation ........................................................................................................2 1.1 Eligibility for Benefits 2 1.2 Participation ................................................................................................2 1.3 Reemployment as an Eligible Employee 2 1.4 Qualified Military Service 2 1.5 Designation of Beneficiary 3 Article II 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 Article III Vesting 8 3.1 Vesting ........................................................................................................8 Article IV 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 I I 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 Article VI Miscellaneous 16 6.1 Participant's Right Not Subject to Execution 16 6.2 Investment 16 NB 1:5645773 55A-63 TABLE OF CONTENTS (continued) Page 6.3 Valuation 16 6.4 Unclaimed Benefits 17 Article VII Definitions 18 7.1 Definitions 18 Appendix A Minimum Distribution Requirements ......................................................A-1 NB 1:564577.3 -ii- 55A-64 APPENDIX A Minimum Distribution Requirements A.l 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-1 55A-65 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: (1) 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 NB 1:564577.3 A-2 55A-66 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. NB 1:564577.3 A-3 55A-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 or (b) the calendar year in which the Employee has a Break in Employment. NB 1:564577.3 A-4 55A-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 55A-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 55A-70 NB 1:564577.3 A-2 55A-71 55A-72 REQUEST FOR COUNCIL/r, AGENCY ACTION MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 20, 2010 TITLE: APPROVED ? As Recommended JOINT PUBLIC HEARING -AGREEMENTS FOR ? As Amended ACQUISITION AND SALE OF REAL PROPERTY AND ? Ordinance on 1st Reading ESCROW INSTRUCTIONS FOR 602 N. GARFIELD ? Ordinance on 2nd Reading AVENUE AND 809-11 AND 902 BROWN STREET ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER E ECUTIVE ' IRECTOR RECOMMENDED ACTION CITY COUNCIL 1. Adopt a resolution making certain findings with respect to the consideration to be received by the Community Redevelopment Agency pursuant to a Purchase and Sale Agreement between the Agency and the City for the sale of various properties: 602 N. Garfield Avenue and 809-11 Brown Street (APNs 398-312-10 & 11) and 902 Brown Street (APN 398-315-01). 2. Authorize the City Manager to execute all required documents for the acquisition of real property from the Santa Ana Community Redevelopment Agency located at 602 N. Garfield Avenue and 809-11 Brown Street (APNs 398-312-10 & 11) in the amount of $150,000, and 902 Brown Street (APN 398-315-01) for the amount of $95,000, plus normal closing costs and escrow fees. COMMUNITY REDEVELOPMENT AGENCY Adopt a resolution authorizing the sale of Agency-owned property located at 602 N. Garfield Avenue and 809-11 Brown Street (APNs 398-312-10 & 11) and 902 Brown Street (APN 398-315- 01) to the City of Santa Ana and authorizing the Executive Director to execute all required documents. DISCUSSION During the course of its regular activities, the Community Redevelopment Agency acquired a number of properties for residential development in what is now known as the Station District. The 8OA-1 Joint Public Hearing - Sale of Agency Owned Property December 20, 2010 Page 2 subject properties, located in the Lacy neighborhood at 602 N. Garfield Avenue, and 809-11 and 902 Brown Street, are situated adjacent to Garfield Elementary School (Exhibit 1). It was determined during community outreach efforts with area residents and the Santa Ana Unified School District that the properties were better suited for open space uses to serve the neighborhood. Specifically, the properties at 602 N. Garfield Avenue and 809-11 Brown Street have been identified as a site for a public parking lot to service community/open space uses, and the 902 Brown Street property is proposed to be developed as a neighborhood-serving open space/park use. The design of the parking lot is underway. With respect to the open space lot, sometimes referred to as the "tot lot," its design is yet to be determined. Recent community meetings have been held to generate input on the use of the lot as well as the community center; however, the priority at this time is finalizing the design, construction and joint use arrangements for the community center. This action only facilitates transfer of ownership from the Agency to the City. Future actions will address any construction on the properties. Under the proposed purchase agreements, the Agency-owned properties will be purchased by the City utilizing Community Development Block Grant (CDBG) funds. The properties are all currently vacant and are being sold to the City for the appraised fair market value. ENVIRONMENTAL COMPLIANCE In accordance with the National Environmental Policy Act, a certification of Categorical Exclusion and Statutory Worksheet has been prepared due to the use of Federal funds. In accordance with the California Environmental Quality Act, this project is exempt from further review. A Categorical Exemption has been filed for this project finding that it is exempt pursuant to California Code of Regulations, Title 14, Division 6, Chapter 3, Sections 15303, 15305 and 15332. This action results in only minor alterations in land use limitations which do not result in any changes in land use or density, is consistent with the applicable general plan and zoning designation, is adequately served by public services, and because there is a transfer of title only, will not result in any significant effects relating to traffic, noise, air quality, or water quality. Any future development will be limited to construction of small structures or facililites such as public parking and recreation/playground improvements. 8OA-2 Joint Public Hearing - Sale of Agency Owned Property December 20, 2010 Page 3 FISCAL IMPACT Funds to purchase the properties are available in the Community Development Block Grant Fund account (no. 13518783-66100). Proceeds from the sale of the property to the City of Santa Ana will be deposited in the Agency's Merged Housing Fund account (no. 50718002-58500). APPROVED AS TO FUNDS AND ACCOUNTS: Shelly L ndry-Bayl Francisco Gutierrez Housing Manager Executive Director Community Development Agency Finance & Management Services Agency CJN/SG/mlr Exhibit: 1. Map 2. Council Resolution 3. CRA Resolution 8OA-3 8OA-4 ~ PNC~ S O Z GENj~P aP r_ L~J~C v v 1, = O 9 V Z S ~ ~ ~v ~ 9C0 C' 7 ~ s 'yG Z~ s 9~ 6~J0 . P 'c9 SPNZP PN 0 A 6R0~ 6TH S T. 6TH S T. r N Q GARFIELD ~ ELEMENTARY 5TH 5 T. Z ~ SCHOOL ~ 5TH 5 T. o w ~ 1- H V ~ Z Q ~ J g ~ a 4TH S T. r= r N 5 a w w - a w m 3RD ST. I IT-1 1 --1 F7 0 809-811 Brown St. © 902 Brown St. © 602 N. Garfield St. EXHIBIT 1 8OA-5 80A-6 12/9/10 LES RESOLUTION NO. 2010- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE SALE OF AGENCY OWNED PROPERTY LOCATED AT 602 N. GARFIELD AVENUE, 809- 811 BROWN STREET AND 902 BROWN STREET; AUTHORIZING THE CITY MANAGER TO EXECUTE DOCUMENTS AS NECESSARY; AND MAKING CERTAIN FINDINGS WITH RESPECT THERETO, ON BEHALF OF THE CITY BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby, finds, determines and declares as follows: A. Pursuant to Sections 33334.2(a) and 33334.6(c) of the California Community Redevelopment Law (California Health and Safety Code Section 33000 et seg.) not less than 20 percent of all taxes which are allocated to the Community Redevelopment Agency of the City of Santa Ana ("Agency") are set aside by the Agency in a Low- Moderate-Income Housing Fund and used by the Agency for the purpose of increasing, improving and preserving the community's supply of low and moderate housing available at affordable housing costs to persons and families of low- and moderate-income, including very-low- income persons. B. During the course of its regular activities, the Agency has purchased a number of properties for residential development in what is now known as the Station District, including the vacant properties located at 602 N. Garfield Avenue, 809-811 Brown Street, and 902 Brown Street (the "Properties"). The Properties are situated adjacent to Garfield Elementary School. C. During community outreach efforts, it was determined that the Properties were better suited for open space/public uses to serve the neighborhood, with the final design yet to be determined (the "Project"). D. California Community Redevelopment law (Health and Safety Code section 33433) requires that before any Agency owned property, acquired in whole or in part with tax increment moneys, is sold for development, the sale must first be approved by the legislative body by resolution after a public hearing. E. The Agency proposes to sell the Property to the City of Santa Ana at the current appraised fair market value, pursuant to the terms and provisions of Purchase/Sale Agreement(s) (hereinafter referred to as the "Agreements"). The City will be utilizing Community Development Block Grant (CDBG) funds to purchase the Properties. F. Grant funds under the CDBG program must be used for eligible activities, per Title 24 CFR 570.201, in which the end use meets a U.S. Department of Housing and Urban 8OA-7 Development national objective, per Title 24 CFR 570.208. The City has made the determination that the use of CDBG funds under this resolution has met these requirements. G. The City has duly considered all of the terms and conditions of the proposed purchase, and believes that the proposed purchase is in the best interests of the City and the health, safety, morals and welfare of its residents, and in accord with the public purpose and provisions of applicable state and local laws and requirements. H. The City and Agency held a public hearing on the proposed Project and the Agreements as required by Section 33433 of the Community Redevelopment Law, after having duly provided notice of such public hearing in accordance with state law. 1. In accordance with the National Environmental Policy Act (NEPA), a Categorical Exclusion and Statutory Worksheet has been prepared due to the application of federal funds by the City for the purchase price. J. In accordance with the California Environmental Quality Act (CEQA), this project is exempt from further review. A Categorical Exemption has been filed for this project finding that it is exempt pursuant to California Code of Regulations, Title 14, Division 6, Chapter 3, Sections 15303, 15305 and 15332. This action results in minor alterations in land use limitations which do not result in any changes in land use or density, is consistent with the applicable general plan and zoning designation, is adequately served by public services, and because there is a transfer of title only, will not result in any significant effects relating to traffic, noise, air quality, or water quality. Any future development will be limited to construction of small structures or facilities such as public parking and recreation/playground improvements. K. The City hereby finds that the purchase of the Properties will assist in the elimination of blight and is consistent with the adopted implementation plan. L. The City hereby finds and determines that the information set forth herein is true and correct. M . The City hereby approves the purchase of the Properties. Section 2. The City Manager or his/her designee is hereby authorized, on behalf of the City, to execute such documents that are to be signed by the City in connection with the purchase, and to make such changes of a non-substantive nature to such documents as the City Manager shall deem appropriate. A copy of any such documents, when executed, shall be placed on file in the office of the Clerk of the Council. Section 3. The City Manager is hereby authorized, on behalf of the City, to sign all documents necessary and appropriate to carry out and implement the purchase and to administer the City's obligations, responsibilities and duties to be performed. Section 4. Proceeds of the sale of said Properties to the City shall be deposited into the Agency's Low-Moderate-Income Housing Fund. 2 8OA-8 Section 5. The Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of , 2010. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Lisa E. Storck Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. 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 3 8OA-9 I 8OA-10 12/9/10 LES RESOLUTION NO. 2010- A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY FOR THE CITY OF SANTA ANA APPROVING THE SALE OF AGENCY OWNED PROPERTY LOCATED AT 602 N. GARFIELD AVENUE, 809-811 BROWN STREET AND 902 BROWN STREET; AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE DOCUMENTS AS NECESSARY; AND MAKING CERTAIN FINDINGS WITH RESPECT THERETO, ON BEHALF OF THE AGENCY 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. Pursuant to Sections 33334.2(a) and 33334.6(c) of the California Community Redevelopment Law (California Health and Safety Code Section 33000 et seq.) not less than 20 percent of all taxes which are allocated to the Community Redevelopment Agency of the City of Santa Ana ("Agency") are set aside by the Agency in a Low- Moderate-Income Housing Fund and used by the Agency for the purpose of increasing, improving and preserving the community's supply of low and moderate housing available at affordable housing costs to persons and families of low- and moderate-income, including very-low- income persons. B. During the course of its regular activities, the Agency has purchased a number of properties for residential development in what is now known as the Station District, including the vacant properties located at 602 N. Garfield Avenue, 809-811 Brown Street, and 902 Brown Street (the "Properties"). The Properties are situated adjacent to Garfield Elementary School. C. During community outreach efforts, it was determined that the Properties were better suited for open space/public uses to serve the neighborhood, with final design yet to be determined (the "Project"). D. California Community Redevelopment law (Health and Safety Code section 33433) requires that before any Agency owned property, acquired in whole or in part with tax increment moneys, is sold for development, the sale must first be approved by the legislative body by resolution after a public hearing. E. The Agency proposes to sell the Property to the City of Santa Ana at the current appraised fair market value, pursuant to the terms and provisions of Purchase/Sale Agreement(s) (hereinafter referred to as the "Agreements"). The City will be utilizing Community Development Block Grant (CDBG) funds to purchase the Properties. F. Grant funds under the CDBG program must be used for eligible activities, per Title 24 CFR 570.201, in which the end use meets a U.S. Department of Housing and Urban 8OA-11 Development national objective, per Title 24 CFR 570.208. The City has made the determination that the use of CDBG funds under this resolution has met these requirements. G. The Agency has duly considered all of the terms and conditions of the proposed sale, and believes that the proposed sale is in the best interests of the City and the health, safety, morals and welfare of its residents, and in accord with the public purpose and provisions of applicable state and local laws and requirements. H. The Agency and City held a public hearing on the proposed Project and the Agreements as required by Section 33433 of the Community Redevelopment Law, after having duly provided notice of such public hearing in accordance with state law. 1. In accordance with the National Environmental Policy Act (NEPA), a Categorical Exclusion and Statutory Worksheet has been prepared due to the application of federal funds by the City for the purchase price. J. In accordance with the California Environmental Quality Act (CEQA), this project is exempt from further review. A Categorical Exemption has been filed for this project finding that it is exempt pursuant to California Code of Regulations, Title 14, Division 6, Chapter 3, Sections 15303, 15305 and 15332. This action results in minor alterations in land use limitations which do not result in any changes in land use or density, is consistent with the applicable general plan and zoning designation, is adequately served by public services, and because there is a transfer of title only, will not result in any significant effects relating to traffic, noise, air quality, or water quality. Any future development will be limited to construction of small structures or facilities such as public parking and recreation/playground improvements. K. The Agency hereby finds that the sale of the Properties will assist in the elimination of blight and is consistent with the adopted implementation plan. L. The Agency hereby finds and determines that the information set forth herein is true and correct. M . The Agency hereby approves the sale of the Properties to the City. Section 2. The Executive Director or her/his designee is hereby authorized, on behalf of the Agency, to execute such documents that are to be signed by the Agency in connection with the sale, and to make such changes of a non-substantive nature to such documents as the Executive Director shall deem appropriate. Section 3. The Executive Director is hereby authorized, on behalf of the Agency, to sign all documents necessary and appropriate to carry out and implement the sale and to administer the Agency's obligations, responsibilities and duties to be performed. Section 4. Proceeds of the sale of said Properties to the City shall be deposited into the Agency's Low-Moderate Income Housing Fund. Section 5. The Secretary for the Agency shall attest to and certify the vote adopting this Resolution. 2 8OA-12 ADOPTED this day of , 2010. Miguel A. Pulido Chair APPROVED AS TO FORM: Joseph W. Fletcher, Agency General Counsel By: Lisa E. Storck Assistant Counsel AYES: Boardmembers: NOES: Boardmembers: ABSTAIN: Boardmembers: NOT PRESENT: Boardmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Secretary of the Community Redevelopment Agency, do hereby attest to and certify the attached Resolution No. 2010- to be the original resolution adopted by the Community Redevelopment Agency of the City of Santa Ana on , 2010. Date: Secretary, Community Redevelopment Agency City of Santa Ana 3 8OA-13 8OA-14