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HomeMy WebLinkAbout FULL PACKET_2011-06-20MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA JUNE 6, 2011 CLOSED SESSION MEETING CALLED TO ORDER ATTENDANCE PUBLIC COMMENTS - None CLOSED SESSION ITEMS CITY HALL, 8T" FLOOR, ROOM 831 20 CIVIC CENTER PLAZA SANTA ANA, CA 5:16 P.M. COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE (5:25 p.m.) MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO (5:25 p.m.) COUNCILMEMBERS Absent: None STAFF Present: PAUL M. WALTERS, Interim City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council 1A CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) Carlos Contreras v. City of Santa Ana United States District Court Case No. SACV10-1131 Edward Cote v. City of Santa Ana United States District Court Case No. SACV10-2959 Amber Rodriguez, a minor, by and through her Guardian ad Litem, Arturo Rodriguez v. Oliver Grant, City of Santa Ana CITY COUNCIL MINUTES 1 JUNE 6, 2011 1 0A-1 Orange County Superior Court Case No. 30-2010-00356211 1B 1C 1D 1E South Coast Patients v. City of Santa Ana Orange County Superior Court Case No. 30-2010-00398670 CONFERENCE WITH LEGAL COUNSEL--ANTICIPATED LITIGATION pursuant to Government Code Section 54956.9(b) - One (1) Matter CONFERENCE WITH LEGAL COUNSEL-INITIATION OF LITIGATION pursuant to Government Code Section 54956.9(c) - Two (2) Matters CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6 Agency Negotiators: Personnel Services Executive Director, Kathie Gonzalez Employee Organizations: Santa Ana Police Officers Association (POA) Santa Ana Police Management Association (PMA) Santa Ana Fireman's Benevolent Management Association (FBA) Santa Ana Fire Management Association (FMA) Service Employees' International Union (SEIU) Full-Time Employees Service Employees' International Union (SEIU) Part-time Civil Service Employees Confidential Association of Santa Ana (CASA) Santa Ana Management Association (SAMA) Agency Negotiator: Interim City Manager, Paul Walters Employee Organizations: Executive Management (EM) PUBLIC EMPLOYEE EMPLOYMENT AND APPOINTMENT pursuant to Government Code Section 54957(b)(1) Title: City Attorney; and City Manager CLOSED SESSION REPORT - See Item 19A. for Report. ADJOURNED THE CLOSED SESSION MEETING AT 6:26 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 2 JUNE 6, 2011 1 0A-2 REGULAR OPEN SESSION CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:35 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: None STAFF Present: PAUL M. WALTERS, Interim City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council PLEDGE OF ALLEGIANCE MAYOR PULIDO INVOCATION ROGER ARAGON, POLICE CHAPLAIN AGENDA ITEMS TAKEN OUT OF ORDER (25J, 75113, AND 75C) 25J AGMT NO. 2011-142 - INTERIM MANAGEMENT ASSISTANCE SERVICES - City Manager's Office MOTION: Direct the City Attorney to prepare and, authorize the City Manager and Clerk of the Council to execute an agreement with Management Partners, Incorporated at $175 per hour with a monthly amount not to exceed $15,000. MOTION: Bustamante SECOND: Pulido VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) CITY COUNCIL MINUTES 3 JUNE 6, 2011 1 0A-3 ABSTAIN: None (0) ABSENT: None (0) 75B PUBLIC HEARING - METERED WATER RATE AND SEWER SERVICE CHARGE OF THE CITY - Public Works Agency Legal Notice published in the O.C. Reporter on May 20 and 27, 2011. Staff report presentation by Public Works Executive Director Raul Godinez, II. Background • The City's metered water rate and sewer service charge are adjusted annually as part of the overall City budget process. • This year's proposed increased rates will enhance the City's Capital Improvement Program (CIP) to ensure adequate and reliable water and sewer systems. Proposed Rate Increases • This year, a modest 2% rate increase is proposed for the water and sewer rates. • The water rate has two tiers, and is based on 100 cubic feet (CCF): o The Base Rate applies to consumption up to 44 CCF during a bi-monthly billing period. o The Tail Block Rate is charged for all water consumed above the Base Rate allocation. o The Typical single-family residential customer consumes 40 CCF during the bi-monthly billing period. • The Sewer Service Charge is a flat charge based on metered water consumption at a premise. • The Water Base Rate is proposed to increase from $2.673 to $2.727 per CCF • The Water Tail Block Rate is proposed to increase from $3.097 to $3.154 per CCF • The Sewer Service Charge is proposed to increase from $0.338 to $0.345 per CCF • The Water Base Rate increase of 0.0537 per CCF will add an estimated $1.07 monthly to the typical single-family residential water bill, based on 20 CCF of water usage. • The typical monthly sewer bill will increase by an estimated $0.14, based on the same 20 CCF of water usage. CITY COUNCIL MINUTES 4 JUNE 6, 2011 1 0A-4 Cumulative ate L Increases 70% 6o% 50% 40% 30% 20% wv o% 2007 66% ................. r ................................................ ?7........................................................................ z2`Yo y .zzlo ............................................................................................................................................................. 2008 2009 2010 2011 2012 Water Age of Water Mains Water Main Material 23 Mile, 11111 0-49 Years Old 50-7l Years Old IIIG 75+Yearc Old Cast Iron M Other rp IIII„ il' ?f/; ??? Capital Improvement Costs A Current Capital Improvement Prior Year Carry Forward z °% Water Rate Increase ,,........................ ... ..__...,...._. 89M 39,000,000 .. ....... S8,ooo,ooo f. sZ0o0,000 $6,000,000 $5,000,000 ` _.... ......... $4,000,000 r ' „_...... ' __._.._ ........ ........ 1.2 ........ $3, 000,000 f" „ .._...... '' ..._ _......_._. ....._._.. a,,z M ..___.__._. ....r, 3z,ooo,ooo ` 31.0 M r FY e011/12 CIP 79 Year Replacement Cyle CITY COUNCIL MINUTES 5 JUNE 6, 2011 1 0A-5 Water in Breaks in 201.1 The following Water Main Breaks have occurred this year: .............................................. Date ....................................................................................... Location Mai n Size ....................................... Materi al May 13. 3666 S. Bristol St 2" P.V.C. ............................................... (Irrigation) .............................................................................. .............................. April 25 2818 W. La Verne 8" C.I. ............... April 14 : . 122o E. Glenwood 12" D.I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . March to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Russell/Birch 4" C.I. March 8 2713 S. Pacific 8" C.I. March 7 709 E. Avalon . 6" ........................................... C.I. March z ............................................... 3oi N. Linwood ........................................................................................... 6 C.I. ........................................... Jan 26 2823 S. Bristol 16" D.I. _ Jan 1a 2031 N. Poinsettia 6" C.I. Total thru May= 9 Water Service Brea, cs ire iL 1 The follo wing Water Service Breaks have occurred th is year: 1 Date Size i Material - Date I Size Material Date I Size May 25 i ? Polyethylene I Mar 12 Copper Jan 12 1 1a y iy 1'/z" Polyethylene j 1 Mar n it /a" Polyethylene Jan 12 6" MaY3 _ 3/4" r Polyethylene ?.?. Mar 8 __.............................. . .. i' ..... ...... ?_ ..................................... _; Polyethylene - Jan ii 1 r" Apr 28 1° Polyethylene ( Mar z" e Polyethylene Jan 6 t" AP] 28 __.. 111 Polyethylene Mar3 _ _.._.......... 6" _.... Cast Iron _ . _ , Apr 26 t Polyethylene ?- ?I Feb 28 t Polyethylene __.._. Material Polyethylene , Cast Iron Copper ................. .. Copper Apr 20 1" Copper? J I Feb 28 z" Copper Total thru May = 36 Apr 20 t" Copper? I Feb 24 .... r" Polyethylene Apt zo .... ...............1;..... .....Polyethylene.....J .... Feb 23 I ...... ...... Z;>..... ;..Coppe1 ................. Apr it 1'/z" Polyethylene . Feb 17 2" Copper ................................. Apr 4 . z ..... .... , Copper 1 Feb 17 .................... 3/a" .......................................................... ;Copper t Mar 30 1 1/2' 1 Copper t Feb 8 1" Polyethylene Mar I' Copper Feb3 1" Polyethylene . i 1 I ar 16 1" Polyethylene 1 Jan 29 ......1" Polyethylene Mar 15 3/4" Copper ........... Jan 27 ...... 6" Cast Iron Mar 15 1.......... ..? Copper Jan 14 .......... .....?........2?.......... . Copper.............. ........ The Public Hearing opened at 7:14 p.m. The following spoke on the item- • Billy Leigh, opposed to the water rate increase. • Evelyn Bell, spoke on behalf of a condominium complex on McFadden with over 100 units, opposed to water rate increase. CITY COUNCIL MINUTES 6 JUNE 6, 2011 1 0A-6 Carol Winters, questioned budget forecast and allocations; asked to evaluate information based on actual consumption, and direct cost. *Finance staff to work with resident and provide information requested. The Public Hearing closed with no other members of the public speaking on the matter. Written communication received was provided to the City Council. Council discussion ensued. Notably, Mayor Pro Tern Alvarez inquired as to why the sewer system assessment report requested last year had not been provided to Council. Public Works Executive Director indicated that it had not been budgeted for last year, but has been included in this year's budget. Also, study on Tier 1 for low-income families. Reports will be submitted to Council in consideration of next's year's budget. Councilmember Benavides asked that all public hearing notices be re- formatted for ease of reader. MOTION: Adopt a resolution. RESOLUTION NO. 2011-029 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REVISING THE METERED WATER RATE AND SEWER SERVICE CHARGE MOTION: Alvarez SECOND: Tinajero VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) *Councilmember Tinajero left the meeting at 7:36 p.m. and did not return to the meeting. 75C PUBLIC HEARING - PROPOSED CITY'S FISCAL YEAR 2011-12 BUDGET AND MISCELLANEOUS FEES SCHEDULE - Finance & Management Services Legal Notice published in the Orange County Register on May 27, 2011 and June 3, 2011. The Public Hearing opened at 7:36 p.m. There were no speakers and the hearing closed. There was no written communication received. CITY COUNCIL MINUTES 7 JUNE 6, 2011 1 0A-7 MOTION: 1. Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS-2820 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROPRIATING MONIES TO THE SEVERAL OFFICES, AGENCIES AND DEPARTMENTS OF THE CITY FOR THE FISCAL YEAR COMMENCING JULY 1, 2011 2. Adopt a resolution. RESOLUTION NO. 2011-030 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO AMEND RESOLUTION NOS. 82-110, 91-066 AND 96-095 TO EFFECT CERTAIN CHANGES TO THE CITY'S BASIC CLASSIFICATION AND COMPENSATION PLANS. 3. Adopt a resolution. RESOLUTION NO. 2011-031 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ESTABLISHING A UNIFORM SCHEDULE OF MISCELLANEOUS FEES FOR FISCAL YEAR 2011-2012 AND REPEALING IN PART RESOLUTION NO. 2010-023 MOTION: Alvarez SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Pulido, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Tinajero (1) PRESENTATIONS Bustamante, Martinez, EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to: 25 YEARS OF SERVICE Domingo C. Cabrera, Police Officer, Police Department SPECIAL PRESENTATION - "State of the District Address" presented by Rancho Santiago Community College District Chancellor Raul Rodriguez and Santa Ana College President Erlinda Martinez - City Manager's Office CITY COUNCIL MINUTES 8 JUNE 6, 2011 1 0A-8 CERTIFICATES OF RECOGNITION presented by MAYOR PULIDO to Andrew Ayala (Lorin Griset Academy), Casey Clayson (Godinez Fundamental High School), Erika Fuentes (Saddleback High School), Jessica Gandara (Valley High School), Vannie Luong (Segerstrom High School), Ruth Madrid (Century High School), Angelica rtinez (Santa Ana High School), Samira Meza (Middle College High School), Christopher Muise (Mater Dei High School), Joshua Recinos (Chavez High School), Dulce Saavedra (Orange County High School of the Arts), and Jose Ventura (Santa Ana College) for receiving the Santa Ana Chamber of Commerce "Difference Makers" scholarship CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER MARTINEZ to Mike Harrah for the 10th Anniversary of Original Mike's SPECIAL RECOGNITION by Asphalt Recycling and Reclaiming Association (ARRA) Board Director Don Matthews to the City of Santa Ana for the Residential Street Repair Program CLOSED SESSION REPORT - Nothing to report. PUBLIC COMMENT • Michael and Martha Sanchez, representing Alzheimer's Association of Orange County encouraged the City Council and residents to partake in the upcoming Walk taking place on June 18th at the Tustin District. • Dave Simon of Animal Protection and Rescue League spoke in opposition to the elephant rides at the Santa Ana Zoo. • Heather Drennan, representing PETA, asked that Council consider stopping the elephant rides at the Zoo. • Stacey Clark, echoed Ms. Drennan's comments. • Matt Rossell, of Animal Defenders International, thanked the City Council for looking into the video that depicts elephant training measures; have full length video. • Monica Otero, against elephant cruelty. • Mike Tardif, read letter regarding allegations of improper conduct of a current Planning Commissioner. CONSENT CALENDAR ITEMS MOTION: Approve Consent Calendar Items 10A through 31B with the following modifications: • Mayor Pro Tern Alvarez voted "No" on item 19C. MOTION: Benavides SECOND: Alvarez CITY COUNCIL MINUTES 9 JUNE 6, 2011 1 0A-9 VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Tinajero (1) Items removed for separate action or modified are highlighted. Separate actions show the actual vote. Items without votes are adopted as part of the consent motion. ADMINISTRATIVE MATTERS MINUTES 10A MINUTES FROM THE REGULAR OPEN MEETING OF MAY 16, 2011 MEETING - Clerk of the Council Office MOTION: Approve Minutes. BOARDS / COMMISSIONS / COMMITTEES 13A APPOINTMENT - COMMUNITY REDEVELOPMENT & HOUSING COMMISSION - NOMINATED BY MAYOR PULIDO AS THE CITY-WIDE REPRESENTATIVE FOR A FULL TERM EXPIRING DECEMBER 11, 2012 - Clerk of the Council MOTION: Appoint. Residing Name Board/Commission Ward Monica O. Garcia Community Redevelopment & 2 *(Replaces, J. Villasenor) Housing Commission 13B APPOINTMENT - YOUTH COMMISSION (ALTERNATE) - NOMINATED BY COUNCILMEMBER BUSTAMANTE AS THE WARD 3 REPRESENTATIVE FOR A FULL TERM EXPIRING DECEMBER 11, 2012 - Clerk of the Council MOTION: Appoint. Residing Name Board/Commission Ward Joey Madrid Youth Commission (Alternate) 3 *(Replaces Jose Gonzalez) CITY COUNCIL MINUTES 10 JUNE 6, 2011 1 0A-10 13C COUNCIL COMMITTEE REPORTS - Police Department MOTION: Receive and file. Committee Name Public Safety MISCELLANEOUS ADMINISTRATION Date 03/22/2011 19A CLOSED SESSION REPORT - Nothing to report. 19B EXCUSED ABSENCES - None. 19C DESTRUCTION OF OBSOLETE CITY RECORDS - City Manager's Office and Personnel Services Agency 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 REQUEST FOR PROPOSALS FOR PLANNING AND ENVIRONMENTAL SERVICES TO UPDATE THE SANTA ANA GENERAL PLAN CIRCULATION ELEMENT - Planning and Building Agency MOTION: Authorize the Planning and Building Agency to send a Request for Proposals to qualified consulting firms to provide planning and environmental services for the update of the Santa Ana General Plan Circulation Element 19E REQUEST FOR PROPOSALS FOR ENVIRONMENTAL SERVICES AND PARK ANALYSIS FOR THE MCFADDEN/ORANGE PARK SITE - Planning and Building Agency MOTION: Authorize the Planning and Building Agency to send a Request for Proposals to qualified consulting firms to provide environmental services and a park analysis for proposed park on the Northeast corner of McFadden and Orange Avenues. CITY COUNCIL MINUTES 11 JUNE 6, 2011 1 0A-11 BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A SIGNAGE FOR MAPLE STREET BIKE TRAIL - Parks, Recreation and Community Services Agency MOTION: Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2011-211 - Recognizing $5,000 from One OC in the Recreation Special Fees and Donations revenue account and appropriate same to expenditure account SPECIFICATIONS - PURCHASE OF EQUIPMENT AND SERVICES MOTION: Award in accordance with Request for Council Action. (Items 22A through 22F) 22A SPEC. NO. 11-026 - PURCHASE AND IMPLEMENTATION OF THE CISCO INTRUSION PREVENTION SYSTEM (IPS) SOFTWARE APPLICATION - Award a contract to En Pointe Technologies in an amount not to exceed $25,000 - Finance & Management Services 22B SPEC. NO. 11-028 - FIREFIGHTING BOOTS - Award contract to Allstar Fire Equipment, Inc. in an amount of $51,461; and increase the aggregate limit by $25,000 for miscellaneous supplies in an amount not to exceed $76,461 annually - Finance & Management Services 22C SPEC. NO. 11-009 - VEHICLE TIRES - Award contracts for a one-year period, with provisions for two one-year renewals, in an annual aggregate amount not to exceed $140,000 with Santa Ana vendors: Parkhouse Tire Inc., Scher Tire Inc., and Taruli Tire Inc. - Finance & Management Services 22D SPEC. NO. 11-029 - ELECTRICAL SUPPLIES - Amend the contract with Curley Wholesale Electric by $25,000 for an annual amount not to exceed $50,000 - Finance & Management Services 22E SPEC. NO. 10-039 - CHANGE ORDER FOR ASPHALT STREET MAINTENANCE CONTRACT - With All American Asphalt - Public Works Agency CITY COUNCIL MINUTES 12 JUNE 6, 2011 1 0A-12 22F SPEC. NO. 07-058 - ANIMAL FOOD - Renew the contract with Midway City Feed Company in an amount not to exceed $70,000 - Finance & Management Services 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 251) 25A AGMT NO. 2011-143 - INTERNET ACCESS SERVICES - Execute an amendment with Cogent Communications, Inc., to exercise an option for the first one-year extension to the existing agreement in an amount not to exceed $40,000 per year - Finance & Management Services 25B AGMT NO. 2011-144 - PARKING ANALYSIS CONSULTANT - Execute an agreement with Kimley-Horn and Associates, Inc. in an amount of $74,750 - Community Development Agency 25C AGMT NO. 2011-145 - CAREER AND COUNSELING SERVICES AT THE SANTA ANA WORK CENTER - With Wesley A. Bosch in an amount of $90,000 for a one-year period - Community Development Agency 25D AGMT NO. 2011-146 - TELEPHONE SERVICE REIMBURSEMENT AT THE WORK CENTER - With the State Employment Development Department, in an amount not to exceed $45,486 - Community Development Agency 25E PARK LANDSCAPE MAINTENANCE SERVICES - Parks, Recreation & Community Services Agency • AGMT NO. 2011-147 - Execute a one-year agreement, with four one- year renewal options, with Master Landscape & Maintenance, Inc. to provide park landscape maintenance services in District 1 in an annual amount not to exceed $244,596 and approve a 10% contingency for unanticipated work for a total annual amount not to exceed $269,056. CITY COUNCIL MINUTES 13 JUNE 6, 2011 1 0A-13 • AGMT NO. 2011-148 - Execute a one-year agreement, with four one- year renewal options, with DMS Facility Services, LLC to provide park landscape maintenance services in District 2, in an annual amount not to exceed $350,820, and approve a 10% contingency for unanticipated work for a total annual amount not to exceed $385,902. • AGMT NO. 2011-149 - Execute a one-year agreement, with four one- year renewal options, with Pinnacle Landscape Company to provide park landscape maintenance services in District 3, in an annual amount not to exceed $334,932, and approve a 10% contingency for unanticipated work for a total annual amount not to exceed $368,425. • AGMT NO. 2011-150 - Execute a one-year agreement, with four one- year renewal options, with Marina Landscape, Inc. to provide park landscape maintenance services in District 4, in an annual amount not to exceed $609,142, and approve a 10% contingency for unanticipated work for a total annual amount not to exceed $670,056. • AGMT NO. 2011-151 - Execute a one-year agreement, with four one- year renewal options, with Midori Gardens to provide park landscape maintenance services in District A, in an annual amount not to exceed $238,476, and approve a 10% contingency for unanticipated work for a total annual amount not to exceed $262,324. 25F AGMT NO. 2011-152 - LIBRARY AUTOMATION SYSTEM SERVICE AND SUPPORT - Execute an amendment with The Library Corporation, Inc. in an amount not to exceed $37,220 - Parks, Recreation & Community Services Agency 25G BRISTOL STREET CORRIDOR (PROJECT NO. 116744 & 081700) SETTLEMENT AGREEMENTS- Public Works Agency • AGMT NO. 2011-153 - With Albert and Susanna Chu, tenant of the property located at 1631 North Bristol Street, Suite 209, in the amount of $15,000. • AGMT NO. 2011-154 - With Angel and Ethel Carrazco tenant of the property located at 1631 North Bristol Street, Suites 200 & 207, in the amount of $29,435. • AGMT NO. 2011-155 - With John Nunez dba Legal Support Services and Marketing, tenant of the property located at 1631 North Bristol, Suite 200 & 207, in the amount of $15,000. CITY COUNCIL MINUTES 14 JUNE 6, 2011 1 0A-14 • AGMT NO. 2011-156 - With Law Offices of William W. Green and Associates, tenant of the property located at 1631 North Bristol Street suites B-10, 204 & 310 and 828 North Bristol Suite 204, in the amount of $60,233.25. • AGMT NO. 2011-157 - With Bernard Baron dba Baron Income Tax, tenant of the property at 1631 North Bristol Street, Suite B-15, in the amount of $14,000. • AGMT NO. 2011-158 - With Saul Onofre and Maya Onofre dba Taqueria Zamora, tenant of the property located at 510 North Bristol Street, Suite D, in the amount of $34,000. • AGMT NO. 2011-159 - With Jesse Pacheco All State Insurance, tenant of the property located at 828 North Bristol Street, Suite 201, in the amount of $39,750. 25H AGMT NO. 2011-160 - FATS, OILS, & GREASE PROGRAM MANAGEMENT SERVICES - Execute an amendment with Environmental Engineering and Contracting, Inc. in an amount not to exceed $180,000 - Public Works Agency 251 AGMT NO. 2011-161 - DIGITAL WATER MAPPING SYSTEM SERVICES - Execute an amendment with iWater, Inc. for an amount not to exceed $99,500 for a total agreement amount of $485,500 - Public Works Agency LAND USE MATTERS CONDITIONAL USE PERMITIVARIANCES 31A CONDITIONAL USE PERMIT NO. 2011-06 TO ALLOW A 57-FOOT HIGH MONOPINE WIRELESS FACILITY FOR VERIZON WIRELESS LOCATED IN THE LIGHT INDUSTRIAL (M1) ZONING DISTRICT- 2624 SOUTH HICKORY STREET - FILED BY CORE COMMUNICATIONS - Planning and Building Agency Recommended action approved by the Planning Commission on May 9, 2011, by a vote of 7-0. MOTION: Receive and file the staff report approving Conditional Use Permit No. 2011-06 as conditioned. CITY COUNCIL MINUTES 15 JUNE 6, 2011 1 0A-15 31B VARIANCE NO. 2011-07 TO ALLOW A REDUCTION IN LOT SIZE AND SETBACKS FOR A VACANT BUILDING TO BE RE-OCCUPIED BY A NEW RESTAURANT, TAQUERIA DE ANDA, LOCATED IN THE BRISTOL STREET CORRIDOR PLAN NO. 1 (SP1) ZONING DISTRICT - 1221 NORTH BRISTOL STREET - FILED BY ARCHEION NEVADA - Planning and Building Agency Recommended action approved by the Planning Commission on May 9, 2011, by a vote of 6-0 (Yrarrazaval abstained). MOTION: Receive and file the staff report approving Variance No. 2011-07 as conditioned. **END OF CONSENT CALENDAR** BUSINESS CALENDAR ITEMS RESOLUTIONS 55A JOB-TRAINING PROGRAMS FUNDED BY WORKFORCE INVESTMENT ACT TITLE 1 SUB-GRANT FOR PROGRAM YEAR 2011-2012 - Community Development Agency MOTION: Adopt a resolution. RESOLUTION NO. 2011-032 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL NECESSARY DOCUMENTS FOR THE WORKFORCE INVESTMENT ACT SUB-GRANT WITH THE STATE OF CALIFORNIA, WORKFORCE INVESTMENT DIVISION MOTION: Alvarez SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Tinajero (1) CITY COUNCIL MINUTES 16 JUNE 6, 2011 1 0A-16 55B AMEND THE FLEXIBLE SPENDING PLAN AND CITY-SPONSORED EMPLOYEE GROUP BENEFIT POLICIES - Personnel Services Agency MOTION: Adopt a resolution. RESOLUTION NO. 2011-033 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING THE FLEXIBLE SPENDING PLAN MOTION: Alvarez SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Tinajero (1) 55C EXTENSION OF VARIANCE NO. 2007-09 AND MINOR EXCEPTION NO. 2007-04 TO ALLOW THE CONSTRUCTION OF A COMMERCIAL BUILDING AT 2230 NORTH TUSTIN AVENUE - Planning and Building Agency MOTION: Adopt a resolution. RESOLUTION NO. 2011-034 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FOR THE EXTENSION OF VARIANCE NO. 2007-09 AND MINOR EXCEPTION NO. 2007-04 FOR ONE YEAR FOR THE PROPERTY LOCATED AT 2230 NORTH TUSTIN AVENUE MOTION: Alvarez VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Sarmiento Alvarez, Benavides, Pulido, Sarmiento (6) None (0) None (0) Tinajero (1) Bustamante, Martinez, 55D GRANT APPLICATIONS FOR ORANGE COUNTY TRANSPORTATION AUTHORITY ENVIRONMENTAL CLEAN-UP TIER 1 GRANT PROGRAM - Public Works Agency CITY COUNCIL MINUTES 17 JUNE 6, 2011 1 0A-17 MOTION: Adopt a resolution. RESOLUTION NO. 2011-035 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE SUBMITTAL OF PROJECTS TO ORANGE COUNTY TRANSPORTATION AGENCY FOR FUNDING UNDER THE COMPETITIVE MEASURE M2 ENVIRONMENTAL CLEANUP PROGRAM MOTION: Sarmiento VOTE: AYES: SECOND: Benavides Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento (6) NOES: ABSTAIN: ABSENT: PUBLIC HEARINGS None (0) None (0) Tinajero (1) 75A PUBLIC HEARING - URBAN WATER MANAGEMENT PLAN - Public Works Agency Legal Notice published in the O.C. Reporter on May 27, 2011. There was no staff report presentation. The Public Hearing opened at 8:25 p.m. There were no speakers and the hearing closed. There was no written communication received. MOTION: Adopt the updated 2010 Urban Water Management Plan. MOTION: Alvarez SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento (6) NOES: None (0) ABSTAIN: None (0) ABSENT: Tinajero (1) 75B ITEM CONSIDERED OUT OF ORDER. CITY COUNCIL MINUTES 18 JUNE 6, 2011 1 0A-18 75C ITEM CONSIDERED OUT OF ORDER 75D PUBLIC HEARING - AMENDMENT APPLICATION NO. 2011-01, GENERAL PLAN AMENDMENT NO. 2011-02 AND VARIANCE NO. 2011-06 FOR A NEW MEDICAL OFFICE BUILDING LOCATED IN THE GENERAL COMMERCIAL (C2), SINGLE FAMILY RESIDENTIAL (R1), AND BRISTOL STREET SPECIFIC PLAN (SP-1) ZONING DISTRICTS AT 1306-1312 WEST SANTA ANA BLVD - FILED BY KEVIN COLEMAN - Planning and Building Agency Recommended Action approved by the Planning Commission on May 9, 2011 by a 7-0 vote. Legal Notice published in the O.C. Reporter and notices mailed on May 20, 2011. There was no staff report presentation. The Public Hearing opened at 8:29 p.m. There were no speakers and the hearing closed. There was no written communication received. MOTION: 1. Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS-2821 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ZONING THE PROPERTIES LOCATED AT 1306-1312 WEST SANTA ANA BOULEVARD FROM SINGLE-FAMILY RESIDENCE (R1) AND BRISTOL STREET SPECIFIC PLAN (SP-1) TO GENERAL COMMERCIAL (GC) (AA NO. 2011-01) 2. Adopt a resolution. RESOLUTION NO. 2011-036 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING GENERAL PLAN AMENDMENT NO. 2011-02 AND APPROVING VARIANCE NO. 2011-06 AS CONDITIONED TO ALLOW A REDUCTION IN LANDSCAPED SETBACKS FOR THE PROPERTY LOCATED AT 1306-1312 WEST SANTA ANA BOULEVARD MOTION: Bustamante VOTE: AYES NOES: SECOND: Alvarez Alvarez, Benavides, Pulido, Sarmiento (6) Bustamante, Martinez, None (0) CITY COUNCIL MINUTES 19 JUNE 6, 2011 1 0A-19 ABSTAIN: ABSENT: None (0) Tinajero (1) COUNCIL RECESSED AT 8:30 P.M. TO THE COMMUNITY REDEVELOPMENT AGENCY, FOLLOWED BY THE HOUSING AUTHORITY MEETING; THE CITY COUNCIL MEETING RECONVENED AT 8:31 P.M. WITH SAME MEMBERS PRESENT. COMMENTS 90A CITY MANAGER'S COMMENTS • Interim City Manager Paul Walters thanked the City Council for the support and opportunity to serve as Interim. 90B CITY COUNCILMEMBER COMMENTS Councilmember Sarmiento: • Thanked Paul Walters for taking on additional responsibilities as Interim City Manager. Councilmember Martinez- • Wished Ed Raya, Risk Manager, good wishes as he moves on to other endeavors; • Attended Connect-to-Council; thanked committee for organizing successful meeting for Ward 2 residents, and Parks and Recreation for creating pamphlet of events and services for Ward 2 residents; • Announced that many Summer programs offered; encouraged residents to contact City or school district for information; and • Happy Father's Day. Councilmember Bustamante: • Announced that City would be hosting an event in celebration of Independence Day on the 3rd of July at Centennial Park; encouraged all to attend this free event. Councilmember Benavides: • Welcomed Paul Walters in his new role as Interim City Manager; • Independence Day celebration being held on Sunday, July 3rd; • Downtown held monthly art-walk event - another great success; • Santa Ana Zoo hosting Sunset at the Zoo on Sunday, June 12t"; and • City of Santa Ana celebrating 125 years of incorporation. CITY COUNCIL MINUTES 20 JUNE 6, 2011 1 OA-20 Mayor Pro Tern Alvarez- • Thanked all for celebrations held for retired City Manager David Ream; • Interim City Manager Paul Walters brings a wealth of wisdom and thanked him for accepting additional responsibilities; • Suggested that City look into having a committee comprised of employees to review funds and make recommendations to the City Council as they relate to retirement (such program offered at the OC Water Board); and • Wished all a Happy Father's Day. Mayor Pulido: • Thanked Paul Walters for accepting the Interim City Manager position; and • Adjourned in memory of Gregory Cooper and Bud Bolden. ADJOURNED - 8:50 P.M. - The next meeting of the City Council is scheduled for Monday, June 20, 2011 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting in the Police Department Community Room, 60 Civic Center Plaza, Santa Ana, California. ADJOURN IN MEMORY OF GREGORY R. COOPER AND BUD BOLDEN Maria Huizar Clerk of the Council CITY COUNCIL MINUTES 21 JUNE 6, 2011 1 OA-21 1 OA-22 MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA JUNE 10, 2011 CALLED TO ORDER POLICE DEPARTMENT STAT-TRACK ROOM 60 CIVIC CENTER PLAZA SANTA ANA, CA 8:35 A.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO* COUNCILMEMBERS Absent: None STAFF Present: MARIA D. HUIZAR, Clerk of the Council *Councilmember Tinajero joined the meeting via teleconference from 201 E. Chapman, Fullerton, CA. A copy of the Agenda was posted at the door of his classroom pursuant to the Brown Act. PUBLIC COMMENTS - None CLOSED SESSION ITEMS The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matter will prejudice the position of the City. PUBLIC EMPLOYEE APPOINTMENT/INTERVIEWS pursuant to Government Code Section 54957 Title: City Attorney CLOSED SESSION REPORT - ADJOURNED - 1:30 P.M. Maria D. Huizar, Clerk of the Council MINUTES OF SPECIAL MEETING 1 OB_i JUNE 10, 2011 1 0B-2 MINUTES OF THE SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA CALLED TO ORDER JUNE 13, 2011 CITY HALL, 8T" FLOOR, ROOM 831 20 CIVIC CENTER PLAZA SANTA ANA, CA 5:39 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ' VINCENT F. SARMIENTO SAL TINAJERO** COUNCILMEMBERS Absent: None PUBLIC COMMENTS - None STAFF Present: MARIA D. HUIZAR, Clerk of the Council CLOSED SESSION ITEMS - The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matter will prejudice the position of the City. 1. PUBLIC EMPLOYEE APPOINTMENT pursuant to Government Code Section 54957 Title: City Attorney CLOSED SESSION REPORT - Nothing to report. ADJOURNED - 6:50 P.M. Maria D. Huizar, Clerk of the Counci *" Councilmembers Martinez and Tinajero joined the meeting via teleconference from Marriott Coronado, 2000 Second Street, Coronado, CA 92118 and from the Sheraton Dallas Hotel, 400 North Olive Street, Dallas, Texas 75201. A copy of the Agenda was posted at the door of their respective locations pursuant to the Brown Act. MINUTES OF SPECIAL MEETING 1 OC- 1 JUNE 13, 2011 1 0C-2 ORDINANCE NO. NS- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROPRIATING MONIES TO THE SEVERAL OFFICES, AGENCIES AND DEPARTMENTS OF THE CITY FOR THE FISCAL YEAR COMMENCING JULY 1, 2011 THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Iss05/25/11 SECTION 1: The City Council of the City of Santa Ana hereby, finds, determines and declares as follows: A. The City Manager has prepared and submitted to this Council, pursuant to the provisions of Section 605 of the City Charter, a proposed budget for expenditures for the fiscal year commencing July 1, 2011, together with his budget letter dated May 16, 2011. B. In accordance with Section 606 of the City Charter, a public hearing has been held upon the said proposed budget of expenditures after notice of such public hearing had been published in the manner prescribed in said Section 606 of the City Charter. C. The proposed budget of expenditures duly submitted and considered as hereinbefore stated, together with any supplemental revisions and amendments thereto, was approved, adopted and fixed by the Council as the annual budget of the City for the fiscal year commencing July 1, 2011, in the amounts and for the funds, purposes, functions, department activities and programs as therein set forth, including the Seven-Year Capital Improvement Program Plan update. Said adopted budget, including said supplemental revisions and amendments, together with a copy of this appropriation ordinance, shall be placed in the official files of the Clerk of the Council. SECTION 2: There are hereby appropriated to the several offices, agencies, and departments of the City, being the respective objects and purposes specified in that certain document entitled "City of Santa Ana Annual Budget 2011- 2012," a copy of which is on file in the Office of the Clerk of the Council, out of the various funds of the City for fiscal year 2011-2012, the several amounts stated as proposed expenditures from said funds, respectively, in those columns of said Budget that are headed "Approved Budget 11-12." Each aggregate of expenditures so specified in said Budget for said fiscal year for each program shall be deemed to be an appropriation for a single object and purpose within the meaning of Section 11 A-1 609 of the Charter, except that as to any office, department, or agency of the City for which more than one program is designated in Section 2 (General Fund Operating Budget) of the said Budget, the aggregate expenditure authorized for all programs in said Section 2 of each such office, department, or agency shall be deemed to be an appropriation for a single object and purpose within the meaning of Charter section 609. SECTION 3: The appropriations hereby made shall constitute the maximum expenditures authorized for the several offices, agencies, and departments opposite which the amounts of such appropriations are shown in such Budget. SECTION 4: No warrant shall be issued or indebtedness incurred for any purpose which exceeds the unexpended balance of the appropriations established by this ordinance, unless such appropriation shall have been amended or supplemented by the City Council in the manner set forth in Section 609 of the Charter. The City Manager is hereby authorized to make revisions between the items included within any such appropriation if, in his opinion, such revisions are necessary and proper. SECTION 5: The Executive Director of Finance and Management Services is hereby authorized to transfer monies in accordance with the Interfund Transfers listed in said Budget in such amounts and at such times during the fiscal year as he may determine necessary to the competent operation and control of City business, except that no such transfer shall be made in contravention of State law or City ordinance or exceed in total the amount stated herein or as amended by the City Council. SECTION 6: One certified copy of this appropriation ordinance together with a certified copy of each amendment thereto shall be transmitted by the Clerk of the Council to the Executive Director of Finance and Management Services. SECTION 7: Upon and from the effective date of this ordinance, expenditures of monies appropriated hereby are authorized beginning July 1, 2011. SECTION 8: The Clerk of the Council shall cause the title of this ordinance to be published as required by law. SECTION 9: All presently applicable documentation pertaining to the number, titles, qualifications, powers, duties, or compensation of officers or employees of the City, which has been previously approved by resolution or order of the City Council and which is currently on file with the Executive Director of Personnel Services is incorporated herein and is hereby approved. The City Manager is authorized to create, alter, or abolish any position of employment, or the number, title, qualifications, powers, duties, or compensation thereof, when such 11 A-2 action is appropriate to promote the efficiency of the City administrative organization; provided, however, that no such action shall be effective unless and until approved by resolution or order of the City Council. ADOPTED this day of June, 2011. APPROVED AS TO FORM: Joseph Straka Interim City Attorney By: Laura Sheedy Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT Councilmembers Councilmembers Councilmembers Councilmembers Miguel A. Pulido Mayor CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 11 A-3 11 A-4 ORDINANCE NO. NS-XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ZONING THE PROPERTIES LOCATED AT 1306-1312 WEST SANTA ANA BOULEVARD FROM SINGLE-FAMILY RESIDENCE (R1) AND BRISTOL STREET SPECIFIC PLAN (SP-1) TO GENERAL COMMERCIAL (GC) (AA NO. 2011-01) THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana does hereby find, determine and declare as follows: A. The Applicant is requesting adoption and approval of Amendment Application No. 2011-01, General Plan Amendment No. 2011-02, and Variance No. 2011-06 to allow a new medical office building at 1306-1312 West Santa Ana Boulevard. B. On May 9, 2011, the Planning Commission held a duly noticed public hearing and voted to recommend that the City Council: 1. Adopt an ordinance approving Amendment Application No. 2011-01. 2. Adopt a resolution approving General Plan Amendment No. 2011-02. 3. Adopt a resolution approving Variance No. 2011-06 as conditioned. C. Amendment Application No. 2011-01 came before the City Council of the City of Santa Ana for a duly noticed public hearing on June 6, 2011, to consider all testimony, written and oral. D. Amendment Application No. 2011-01 has been filed with the City of Santa Ana to zone a portion of the property located at 1306-1312 West Santa Ana Boulevard from Single-Family Residence (R1) and Bristol Street Specific Plan (SP-1) to General Commercial (GC). E. Amendment Application No. 2011-01 is consistent with the General Plan, including but not limited to its goals and policies: 1. The project will assist in promoting a balance of land uses that address community needs, as the residences in the area will continue to be served by a medical clinic that has been serving the local community for over 60 years. 11B-1 2. The project will promote land uses, such as professional and medical office uses, that will enhance the economic and fiscal viability of the City through an increase in property and sales tax. 3. The project will preserve and improve the character of the surrounding neighborhood through the construction of a new office building and numerous improvements intended for the site. 4. Policy 1.10 encourages the location of commercial uses at arterial roadway intersections in commercial districts. 5. Policy 2.2 supports commercial land uses in adequate amounts to accommodate the City's needs for services. 6. Policy 2.4 supports pedestrian access between commercial uses and residential neighborhoods which are in close proximity. 7. Policy 2.10 supports new development which is harmonious in scale and character with existing development in the area. F. The City Council has weighed and balanced the general plan's policies and has determined that based upon this balancing that the project at 1306-1312 West Santa Ana Boulevard is consistent with the purpose of the general plan. G. The City Council also adopts as findings all facts presented in the Request for Council Action dated June 6, 2011, accompanying this matter. For these reasons, and each of them, Amendment Application No. 2011-01 is hereby found and determined to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare. H. General Plan Amendment No. 2011-02 and Variance No. 2011-06 came before the City Council on June 6, 2011. This ordinance incorporates by reference, as though fully set forth herein, the General Plan Amendment and Variance in support of this ordinance and the findings made herein. Section 2. The real property located at 1306-1312 West Santa Ana Boulevard is hereby zoned from Single-Family Residence (R1) and Bristol Street Specific Plan (SP- 1) to General Commercial (GC). (AA No. 2011-01) Amended Sectional District Map number 11-5-10 showing the above described change in use district designation, is hereby approved and attached hereto as Exhibit "A" and incorporated by this reference as though fully set forth herein. This decision is based upon the evidence submitted at the above said hearing, which includes but is not limited to: the Request for Council Action dated June 6, 2011, and exhibits attached thereto and the public testimony written and oral, all of which are incorporated herein by this reference. 11 B-2 Section 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of , 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka City Attorney By: Ryan O. Hodge Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: Councilmembers Councilmembers Councilmembers Councilmembers 11 B-3 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 11 B-4 WESTMINSTER (17TH ST) AVE. L..I + + Cl C2 R1-B a ' R2 TM Q/ R2R1 Rl R2 R2 3N R3 R1 RI a O Rl - Rl Rl hP sr. R3 R2 3 a R2 R1 R1 A HA RI R3 ,, R1 RI R2 RL RI RI R1 A - RI R1 1 sP-1 C nl sr -. ,,, RI R1 R1 R1 5 R1 = R1 R1 Pt - - -bl i R1 Rl R2 x R1 R2 R1............ R1 R R1 RI " o Rz ,, R1 ?RlI RI Rt R1 R1 sv.1 m - CIVK CENTER DR. ... Rl R ,... , R1 P R2 -F,F R1 RI 3P I Rt R k? M1 1 RI _ R2 R2 R2 E R3 L R2 R2 R2 s R2 [ZE] - - ., SD-82 Rz Rz M1 o M1 M1 ' R1 Rl R1 ? Rt qt -; ? Ci x CI a Cl sP-1 ' _ ____ _ _ . _ _ _ s 1 s - M1 Cl III Cl R1 N 6 M1 R, R1 Cl Q c: M1 F-- _75ANTA ANA -{ ^ CnPP CDD wr. R1 Ri C1 R1 Rt C1 M1 R2 R2 ns. a SD-t7 R2 2 R2 R2 s.1 e I F: R J , R0sT M1 R M1 C2 F-RT?zE ?a c?W ? D R3 R2 R2 R2 R2 R2 R2 R2 E M a? M1 g All y z R2 R2 ? IMI R2 RZ R2 ? R2 ? "•R2r,a » m I „• ? o 1.s-m IR o-s ' ,: , > CR 1 P 11 ^ C2 Q C2 2 •^ Cl _ Cl " I C z-s1o + + r-+ a5-I9 F -16 FIRST ST. Zoning Districts SECTIONAL DISTRICT MAP 11-5-10 SCALP IN FEET ADOPTED BY THE SANTA ANA CITY COUNCIL, AUGUST 17, 1959 BY ORDINANCE INS394 3 DOo Al -B CI C7-MD C2 C3 C3-A 4 C5 CR GENERAL AGRICULTURAL PARKING MODIFICATION COMMUNITY COMMERCIAL COMMUNITY COMMERCIAL-MUSEUM DISTRICT GENERAL COMMERCIAL CENTRAL BUSINESS CENTRAL BUSINESS-ARTISTS' VILLAGE PLANNED SHOPPING CENTER ARTERIAL COMMERCIAL COMMERCIAL RESIDENTIAL C-SM -F GC Mt M2 MO O -OZ P PCD SOUTH MAIN STREET COMMERCIAL DISTRICT FLOOR AREA RATIO GOVERNMENT CENTER LIGHT INDUSTRIAL HEAVY INDUSTRIAL MILITARY OPERATIONS OPEN SPACE OVERLAY ZONE PROFESSIONAL PLANNED COMMUNITY DEVELOPMENT PD PRD R7 R2 R3 R4 RE SD SP PLANNED DEVELOPMENT PLANNED RESIDENTIAL DEVELOPMENT SINGLE-FAMILY RESIDENCE TWO-FAMILY RESIDENCE MULTIPLE-FAMILY RESIDENCE SUBURBAN APARTMENT RESIDENTIAL ESTATE SPECIFIC DEVELOPMENT SPECIFIC PLAN 60- MINIMUMFRONTAGE -6000 MINIMUM LOT AREA TN¢MAP I OFk 1 IRA, Olswlcr MAV OF THE CITY OF -1 ANA. ASADTRORIZEDRYCRYCOU- PESOLUTION NO 74161, DATED I I 1 &x4.1 REREMATTE5TTNATTNI1MAP¢PTRoE Copy oFTHE0 GRAL SECTIONAL DISTRICT MAP No s-m gnetl IAY TREViHo Ni u PLANExnCda EoFCIOR acv CerMi?aw Uate MaY1200) PES .i AA'ANX N0. OPC ,RES. NO. ADOP'ED DATE PES I AA r ANx NO AA 10 9 . 2 AA I- AA 1052 AA 1067 AA 96-2 AA 0003 PA 01-01 AA 02-8 P 04-3 DS-8 A 042 OPD'RES NO. NS 2036 I NC, 1137 NS-2139 NS 2228 NS 2291 NS-1451 NS 2465 NS 2515 5-2658 N 2706 AD-F-AT( II-20-89 717 91 - 819-91 7-18-94 6-3-9G 1016-00 4-16-01 9-16-02 16-04 I 9- PendiNg RFS I A . .A. ANx. NO DRO: RES. NO ADOP•FDDATC 5241 NS-411 11359 5;67 NS- 7 418-60 5443 NS-460 8 I 60 5456 S470 1 5482 NS-499 5488 NS-510 5508 NS-527 5501 NS-528 5513 NS 5N 5519 NS-540 56x9 NS-691 5796 NS.W7 5820 NS-899 823 N5902 691 --?- 5958 N51079 I 6036 NS1171 I 6044 NS1193 AA 756 NS -1348 I AA881 NS1679 AR. INS1747 AA 956 NS-1851 A9R6 51924 AA 966 NS-1944 - - 0.3-0 2-2061 3661 4761 9]61 921fi1 11-261 11-63 3667 12x67 124-67 31]-69 53-71 ]-273 12-1703 3-7-77 5263 917-84 7786 -20.87 1221-87 L SECTIONAL DISTRICT MAP - -5- 10 - PREPARED BY THE PLANNING DIVISION CITY OF SANTA ANA, CALIFORNIA 11 B-5 REVISED 9/24/08 en 1 11 B-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: PRIVATE SECTOR APPOINTMENT TO THE SANTA ANA WORKFORCE INVESTMENT BOARD CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15' Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Appoint Beatriz Gonzalez, Manager for Home Depot, as a private sector member to the Santa Ana Workforce Investment Board. WORKFORCE INVESTMENT BOARD RECOMMENDATION At its regular meeting of June 3, 2011, the Workforce Investment Board, by a vote of 17:0 (Beasley, Claudio, Conway, de Leon, Elliott, Figueroa, Gebre, Jimenez-Hami, Korthuis, Ray, Ruiz, and Su absent), recommended that the City Council appoint Beatriz Gonzalez, Manager for Home Depot, as a private sector member to 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 (WIB) and appointed 35 members. In accordance with the federal legislation, a majority of the Board members and the Board Chair must represent the private sector. The remaining Board members represent education, non-profit organizations, one-stop mandated partners and local labor organizations. There are two mandated private sector positions on the Board that are currently vacant. After an extensive recruitment campaign and interview process, the Workforce Investment Board recommends the appointment of Ms. Beatriz Gonzalez (replacing Lacroix) as a private sector member. Her resume is attached as Exhibit 1. FISCAL IMPACT There is no fiscal impact associated with this action. 13C-1 WIB Appointment - B. Gonzalez June 20, 2011 Page 2 1q" C,? 6, kdec? Nancy T. E ards Interim Exe tive Director Community Development Agency NTE/LAO/DS/kg Exhibit: 1. Resume 13C-2 My name is Beatriz Gonzalez, and I work for the number one home improvement retailer, Home Depot. I am honored to say that I have been part of this amazing organization for 17 yrs. I am currently the store manager for the Santa Ana store; located at 3500 MacArthur Blvd. Santa Ana, Ca. 92704 (714) 966-8551. Home Depot has over 1200 stores all over the U.S., Mexico, China, Canada, and hoping to expand to Brazil in the near future. Our company not only focuses on providing great prices, but also offering the best customer service. Home Depot focuses on a core of values that enforces customer service, taking care of our people, giving back to the community and creating shareholder value this are just to name a few. In the 17yrs of my career with the Home Depot I have obtained many titles and worked in a variety of markets. The most challenging and rewarding however, has been that of a store manager. Currently I manage 174 hourly associates, 15 department supervisors, and 5 salary managers. Like any other business our goal is to increase sales and profit year after year, this year my team and I will responsible for about 42 million dollars in sales. My number one priority is to gain market share and run a profitable business while controlling payroll, operational expenses, and shrink. One of the most important responsibilities as a store manager is to work well with employees and customers. The past 10 years have been all in store manager positions. I am very proud of the financial stability this company has given me and my family and also for the retail experience it has blessed me with. I would be humbled to be considered to serve as a member of the Workforce Investment Board. I hope to bring diversity and business skills to the table. I would also be honored to serve since I am a proud resident of Santa Ana. It would be a true pleasure to serve and contribute to this board in the upcoming years. EXHIBIT 1 13C-3 13C-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: PUBLIC SECTOR APPOINTMENT TO THE SANTA ANA WORKFORCE INVESTMENT BOARD CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on Vt Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Appoint Willia Edmonds, Job Developer for Goodwill Industries, fulfilling a required public sector membership on the Santa Ana Workforce Investment Board. WORKFORCE INVESTMENT BOARD RECOMMENDATION At its regular meeting of June 3, 2011, the Workforce Investment Board, by a vote of 17:0 (Beasley, Claudio, Conway, de Leon, Elliott, Figueroa, Gebre, Jimenez-Hami, Korthuis, Ray, Ruiz, and Su absent), the Workforce Investment Board recommended that the City Council appoint Ms. Willia Edmonds, Job Developer for Goodwill Industries, fulfilling a required public sector membership 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 represent the private sector. The remaining Board members represent education, non-profit organizations, One-Stop mandated partners and local labor organizations. Ms. Edmonds has been nominated by Goodwill Industries to replace Mr. Asif Sayed who passed away and had been serving on the Workforce Investment Board. Ms. Edmonds' resume and nomination letter are attached as Exhibit 1. 13D-1 WIB Appointment - Willia Edmonds June 20, 2011 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. "he,,13 c Nancy T. Ed rds Interim Exec ive Director Community Development Agency NTE/LAO/DS/kg Exhibit: 1. Resume/Nomination Letter 13D-2 WILLIA J. EDMONDS (714) 543-7379: Residence 2424 N. Tustin Ave, Apt Q-5 (714) 565-2614: Office Santa Ana, CA 92705 PERSONAL SUMMARY Extensive background in Operations Management, Corporate Planning, Finance, Human Resources, Training and Development and Arbitration in Fortune 500 companies and nonprofit sectors. Strong interpersonal communication, problem-solving and leadership skills. Sincere commitment to social programs in support of disadvantaged and disabled populations. Champion of children advocacy through judicial and social systems. PROFESSIONAL. SUMMARY 2002-Present GOODWILL OF ORANGE COUNTY- Santa Ana, CA Job Developer/Corporate Trainer • Manage caseload of 30-35 disadvantaged and disabled clients. Research and Maintain network of employers and job market information. Train, counsel, prepare and match clients with appropriate employment opportunities. Monitor job performance and retention; provide support and counsel when needed. 2000-Present ANTI-DEFAMATION LEAGUE - Orange/San Diego Counties; Long Beach, Los Angeles, San Francisco, CA Training Facilitator • Conduct classroom training for teachers, students, law enforcement officers and corporate executives to appreciate, respect and understand differences based on race, religion, ethnicity, sexual orientation, gender, ability, age and disabilities. 2000-2001 CITY OF GARDEN GROVE - Garden Grove, CA Acting Department Secretary • Supervised administrative support staff, monitored daily office operations. • Provided administrative support to department Director and Manager, including both confidential and personnel records and communications. ' • Processed facility reservations, permits, petty cash and credit card disbursements, financial deposits, work orders,,contracts and payments, correspondence, agendas, calendars, flyers, brochures, and monthly reports. • Responded to public inquiries and complaints in person, by telephone and in writing. 1999-2000 AMERICAN RED CROSS - Santa Ana, CA Office Coordinator Coordinated all departmental administrative functions; trained and supervised office clerical staff, ensured accurate and efficient office operations. • Created correspondence, including direct mail campaigns, acknowledgement letters and informational reports to various agencies. • Processed computerized mail mergers for major and planned-giving donors. Utilized Raiser's Edge software program. EXHIBIT 1. 13D-3 WILLIA J. EDMONDS PAGE 2 1997-1999 UNIVERSITY MEDICAL PRODUCTS - Irvine, CA Customer Service Supervisor • Created and implemented Customer Service Department policies and manual. Interviewed, hired, trained and supervised full and part-time Customer Service Representatives, Set goals and evaluated staff performance; expanded customer base and reduced department turnover by 50%. Created system to track progress of assistance program for Market Research Director, 1997-1997 AOL CONSULTING - Newport Beach, CA Human Resources Representative • Conducted applicant telephone interviews on behalf of client companies; assessed responses and qualifications, utilized profile to qualify, hold or pass applications. • Participated in development and implementation of Human Resources programs and processes for client companies that ensured efficient, legal and ethical operations. 1990-1996 ORANGE COUNTY REGISTER - Santa Ana, CA Operations Manager • Developed and implemented operating policies and procedures for new department within Advertising Division. • Managed and supervised 30 employees, two subordinate managers and three supervisors; established performance standards and implemented measurement tools to analyze advertising effectiveness. • Maximized field time for sales staff and minimized response time for customer resolutions; monitored personnel performance and recommended improvements for client service and staff productivity. • Prepared Executive Summary Reports on department performance; issued memoranda to inform senior management of industry developments in customer service as it applied to local and interstate print media, 1985-1990 TICOR REALTY TAX SERVICE - El Monte, CA Administrative Manager Directed operations of three managers and four supervisors; hired, trained and managed staff of 45 in data entry, accounting, customer service, contract file maintenance, mailroom, switchboard and custodial operations. Minimized operating expenses by utilizing controls on usage and purchasing; participated in annual budget planning and tracking. Trained staff and recommended program improvements and adjustments; served on special task force projects as assigned by senior management. 13D-4 Willia J. Edmonds - Personal BIO Extensive experience in Operations Management, Corporate Planning, Finance, Human Resources, Training and Development, Arbitration In Fortune 500 companies and nonprofit sectors. Champion of children advocacy through judicial and social systems-CASA (Court Appointed Special Advocate), Job Developer, Corporate Trainer- Goodwill of Orange County Goodwill of Orange County representative partner Santa Ana Work Center, WIA, WIB Programs- Santa Ana, CA Santa Ana Work Center Service Integration Planning Team member- Santa Ana, CA Training facilitator- Anti-Defamation League- Los Angeles, CA, Orange County, CA, San Diego, CA, San Francisco, CA Speech Language Pathology Assistant (degree pending) Office Coordinator, Red Cross- Santa Ana, CA Operations Manager, Orange County Register- Santa Ana, CA Administrative Manager, Ticor Realty Tax Services- El Monte, CA VP Director of Personnel, Affirmative Action Officer, Bank of Finance-Los Angeles, CA Former CASA Board of Directors Member- Santa Ana, CA Former Board of Directors Chair -Institute of Black Parenting - Los Angeles, CA Board of Directors Chair - Create A Miracle - Los Angeles, CA Goodwill of Orange County Coordinator In partnership with Santa Ana Youth Summer Employment Program for High School Students in the Santa Ana area President, African Cultural Arts Council, affiliate group- Bowers Museum, Santa Ana, CA 13D-5 GOODWILL OF ORANGE COUNTY The Trace of Independence January 8, 2010 Santa Ana Work Center P.O. Box 1988, M73 Santa Ana, CA 92702-1988 Re: Board Member Nomination Attention: Fran Jutzi/SAWIB, 410 North Fairview Santa Ana, CA 92703 voice: 714.547.6301 tty/tdd; 714.543.1373 fax; 714.541.6531 ocgoodwill.org shopgoodwil Icons Goodwill appreciates participating on the SA Workforce Investment Board for several years. First, with my appointment in early 2000, to the most recent Goodwill representative, Mr. Asif Syed. As the Board is aware Mr. Syed died very unexpectedly on December 8th. Our agency and I personally feel this loss. Although no one can "fill" Mr. Syed's place 1 do want to reiterate Goodwill's commitment to the Work Center and Board. If 1 may ask the Board to consider nomination of Willia Edmonds - Goodwill Job Developer to complete Mr, Syed's term on the board. We want to maintain our relationship and commitment to those with disabilities In our community. We would value your consideration; Wlllla has worked very close with the Work Center and would represent our agency, Sincerely, -A" ? 'P"4" Nancy A, Quarles M.R.A. Vice-President, Human Services Goodwill of Orange County, CA and Landmark Services BOARD OF DIRECTO1tS CHAIRMAN K. Brian Horton 1st Enterprise Bank PRESIDENT & CEO Dan S. Rogers Sam Anderson Community Volunteer Dan Armstrong Orange Community Bank Cheryl L. Barrett, Esq. Pertuzzo & Perruzzo, LLP Robert O. Briggs Investment Properties Group Kathy Bronstein KB Bronstein Consulting Robert D. Chickering Launch Steven M. Coyne The SM Coyne Company, Inc. Mark Daly International Printing & Packaging David L. De Filippo Union Bank of Californla shauna Farley Waltmar Poundation Marcia A. Forsyth, Esq. Rutan & Tucker, LLP Cindy Gittleman LosAlws Trophy California Marketing Group Greg Gluchowski Black & Decker John B, Heffernan, Esq. Heffeman & Boortz 'Thomas A, Jackson, CTIB World Travel Bureau, Inc, Michael Perry DLD Insurance Brokers Kenneth E. Petersen, Jr., JD First American Trust Thomas S• Salinger, Esq. Rutan & Tucker, LLP Adam R. Salts, Esq. Manatt, Phelps & Phillips, LLP Rogers A. Severson Saddleback Associates Carl R. Steen, Esq. Baker & Hostetler, LLP James P. Trainor Hyundai Motor America Todd Tripp, MPA Northwestern Mutual Michael Valentine RiverRock Real Estate Group Joann Waldron Community Volunteer Laurence J. Weese Hopkins Real Estate Group v out 13D-6 • MINUTES OF A SPECIAL MEETING OF THE CITY COUNCIL COMMITTEE ON PARKS, RECREATION, EDUCATION AND YOUTH March 31, 2011 CALL TO ORDER The special meeting convened at 4:43 p.m. in the City Hall, Room 831, 20 Civic Center Plaza, Santa Ana, California. ATTENDANCE Council members Present Michele Martinez (Chair); Vincent Sarmiento, Sal Tinajero Staff Present: Gerardo Mouet, Executive Director; Joe Straka, Interim City Attorney; Ron Ono, Administrative Services Manager; Heather Folmar, Library Services Manager; Jeannie Jurado, Community Services Supervisor; Jose Perez, Community Services Supervisor; Juan Lara, Community Services • Supervisor; Robert Carroll, Sr. Management Analyst, Hiram Uribe, Graphic Designer I. Public Present Derek Bordeaux, Bordeaux Community Center Sue Bordeaux, Bordeaux Community Center Judy Bordeaux, Bordeaux Community Center Andrea Howell, Bordeaux Community Center Coletta Franciscus, Bordeaux Community Center Judy Edge, Resident; Vic Edge, Resident; Steve McGuigan, Riverview West N/A & SA Zoo Board member, Claire Braeburn, America On Track Jazmin Acosta, America On Track Yelisbet Lucero, America On Track Yesenia Ruiz, America On Track Genesis Perez, America On Track Shayne Garcia, America On Track Alejandra Peratta, America On Track Abel Torres, Rumores News, Edgar Vazquez Santa Ana Soccer & Business Association and Interamerica Sports Association; Hector Pina, SA Soccer & Business Association • Jose Meza, SA Soccer & Business Association Humberto Muanllo, SA Soccer & Business Association PREY Special Meeting - MINUTES 1 March 31, 2011 13E-1 • Ruban Casho, Julio Ramon, Santa Ana Futbol Club; Hugo Fernandez, Clubes Unidos Adult Soccer League, Pedro Magallon, Clubes Unidos Adult Soccer League Jesus Rodriguez, Boy Scouts of America; Leonel Perez, Santa Ana Soccer Association Alfredo Gomez, Azteca Adult Soccer League Uriel Chavez, Calif. Youth Soccer League • APPROVAL OF MINUTES • Minutes of January 12, 2011 accepted as presented. • PRESENTATION BY DEREK BORDEAUX REGARDING THE YMCA • Derek Bordeaux presented the YMCA program and indicated they are focusing on Academic after-school type services and are merging city and culture type programs with the support from all neighborhood associations. On May 3rd, the YMCA is starting its basketball academy program and in June, will be starting the after summer school program. To accommodate the various programs, they are using other facilities in order to provide the needed services and programs. The YMCA is getting the support of Mater Dei High School. Mater Dei is sponsoring all the sports equipment. • • Councilmember Sarmiento indicated studies were done with developers to assist the YMCA. Recommend Derek Bordeaux present his program and vision to the Development Committee. • NO SMOKING IN CITY PARKS ORDINANCE • Juan Lara presented a power point presentation indicating a community interest in banding smoking in city parks. City Council passed a resolution pertaining to Healthy Eating and Active Living (HEAL) and directed staff to create of a no-smoking ordinance in city parks. Six Orange County cities, 107 California cities/counties and 478 United States cities/counties have implemented a no-smoking ordinance in city parks. Staff explained the effects of second hand smoking, it's relevance in our densely populated city and our strong emphasis in health living. Staff explained the State Law and other codes and ordinance that are in effect that support no smoking in buildings and parks • Claire Braeburn (America On Track) and America On Track Youth made a presentation on why there should be a non-smoking ordinance in parks. They citied second hand smoking is harmful to everyone and showed/indicated 4,345 cigarette butts were collected within a 3 hour period in Santa Ana parks. A survey was done and 93% of the individuals surveyed indicated "YES" they would like a smoke free park. • Public Comment: • o Judy Edge commented she is against a non-smoking ordinance. People should have the right to enjoy picnicking in the park and smoke PREY Special Meeting - MINUTES 2 March 31, 2011 13E-2 • after they eat. It's their life and they have the right to smoke outdoors if they want. With all the restricted ordinances, SAPD will not be able to enforce another ordinance with other major problems in the city. o Steve McGuigan commented it would be difficult to enforce this ordinance, unless the ordinance has a high penalty. He appreciated the intent of the ordinance. o Vic Edge commented he is a non-smoker and it would be difficult to stop persons from smoking, but we need to educate the public to discard their cigarette butts into urns not on the ground. Monies should be spent on other important things, rather than an ordinance that would be difficult to enforce. o Edgar Vazquez commented he has been in the soccer league for 20 years and does not allow smoking in his soccer league. He supports no smoking in city parks. • City Council Comments: o Councilmember Martinez commented we need to strike a balance with our various ordinances and look at both sides. She agrees funding may not be available to fully enforce this ordinance, but we need to start looking into providing a healthy environment for our children. o Councilmember Sarmiento commented he takes persons rights very seriously and we should not regulate if we don't have too. He had a • few questions on the enforcement cost and the environmental impact. He commented the air quality report citied industrial business caused pollution not cigarettes. Recommends this item be continued and presented to the Public Safety committee. o Councilmember Tinajero commented we need to make sure the ordinance has teeth for enforcement and agreed the item be continued and reviewed by the Public Safety Committee. RECOMMENDATION: Continue the item for discussion before the Public Safety Committee. • RFP FOR PROPOSALS FOR PROVIDING DISCOUNT PHARMACY CARD PROGRAM • Robert Carroll presented a request to release a Request for Proposal (RFP) to solicit companies that will provide a Discount Pharmacy Card to Santa Ana residents. The RFCA will be submitted to City Council for approval. The US Census Bureau estimates 32.7% of Santa Ana resident's 357,754 residents are uninsured. The Discount Pharmacy Card Program will save residents money on medication and provide a source of revenue to the City for health related educational classes to the public. • Gerardo Mouet indicated that similar programs currently exist, but people • need to ask the pharmacy. These other programs do not provide revenue to the city. PREY Special Meeting - MINUTES 3 March 31, 2011 13E-3 0 • REVIEW OF LIBRARY HOURS • Councilmember Sarmiento requested item #6 (Review of Library Hours) be moved to the next meeting. Councilmember Sarmiento left the meeting at 6:05pm. • UPDATE ON SPECIAL EVENT REQUEST PROCESS Jose Perez presented the Special Events Process and provided examples of what is a Special Event. A Special Event is for a limited duration and generally requires a pre-event meeting. Special Events are also allowed for league permit holders and for non-permit holders for events that go beyond the scope of the permit. To request a Special Event a request form must be submitted for approval in order to provide a 30 day notice to the displaced user. At times the Special Event request has been abused which results in the need to develop further clarification for Special Events and Transfers. • Public Comments: o Edgar Vasquez commented the original intent of the Special Events Process was to provide access to the SA Stadium Field to those that did not have annual permits. o Leonel Perez commented he thought the intent of the Special Events • Process was for annual and non-annual permits. He commented it was only for the Santa Ana Soccer Association and would like to proceed in good faith. o Alfredo Gomez commented he represents the Azteca Soccer League and belongs to the Santa Ana Soccer Association. He indicated the process worked in the past and a 30 day notice is okay. His concern is the time needed for leagues to do finals. o Pedro Magallon commented the Special Event Process was created due to over abuse by leagues. Abuse is because of a lack of soccer space. It has worked before and is concerned that the item is being presented without everyone's input. We need to work together. • Council Comments: o Councilmember Tinajero commented if the leagues want to have a Special Event, they need to submit an application, 45 day evaluation and time to submit a 30 day notice to the user. Is the purpose to create a new definition for Special Event? On Transfers if the leagues agree to transfer it should be fine. If the leagues do not agree, it should be staff that makes the decision. Issues always change and the system should be flexible in order to properly address them. PREY has discussed these issues a lot and takes up almost the entire agenda. We need to focus on services we provide to the community. • o Councilmember Martinez commented soccer seems to always be an issue. We need to define "Special Events". To continue a tournament is PREY Special Meeting - MINUTES 4 March 31, 2011 13E-4 • not considered a special event. We should not continue to displace other users under the mask of a Special Event. ADJOURNED: 6:33 p.m. u? Gerardo Mouet Executive Director, • 0 PREY Special Meeting - MINUTES 5 March 31, 2011 13E-5 13E-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: QUARTERLY REPORT FOR HOUSING DIVISION PROJECTS AND ACTIVITIES j f r ; CITY MANAGER RECOMMENDED ACTION Receive and file. CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15t Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its regular meeting on June 7, 2011, by a vote of 4:0 (Verino absent), the Community Redevelopment and Housing Commission approved the recommended action. DISCUSSION This status report for the quarter ending on March 31, 2011, provides statistics for the day-to-day affordable housing activities of the City and the Community Redevelopment Agency. The report is divided into three sections: Loan Activity, Loan Portfolio Management and Monitoring, and Development Projects. Loan Activity Applications The Housing Division offers several different programs. The loans offered include homebuyer down payment assistance and rehabilitation loans for historic single family, single family and mobile homes. Mobile home loans are offered as forgivable grants and are used to cover the cost of essential repairs. The Housing Division reviews applications to determine which program best fits the needs of the applicants. Applications are mailed out and received for these programs on a continuing basis. 19C-1 Quarterly Report for Housing Division Projects and Activities June 20, 2011 Paqe 2 Chart 1 shows the number of applications sent out by type through the third quarter of the fiscal year. Of the applications sent, eleven have been returned. As of the end of the third quarter, five were denied or dropped out due to title or equity issues. Six are in process. Single Family Rehab 7 Chart 1: LoanAppications Mailed Iomebuy er ssistarxe , 52 Loan Underwriting and Approval Process Mobile H om e, 19 In this process, staff reviews applicant eligibility, verifies income and assets, and oversees underwriting to determine eligibility per program guidelines. In addition, staff conducts an inspection of the unit, prepares a work write up to determine rehabilitation work to be performed, and develops a budget for the work. Due to the complex funding requirements, applicants may be in underwriting several months. The length of Chart 2: Loans A time in underwriting is largely determined by Approved the applicant's timely submittal of the a necessary paperwork. Once approved, staff 6 prepares all necessary loan documents, 4 makes arrangements for execution, and 2 reserves the required loan funds. Chart 2 ° shows the number of loans approved during Homeowner Homebuyer New the third quarter of the fiscal year. Table 1 Rehab Assistance Construction provides information on these loans. Sale Table 1- I nnns AnnrnvPri nl lrinn tha Thirri Or inrtcr Address Loan Amount Loan Type 1345 Cabrillo Park Drive #F09 $10,000 Homebu er Assistance 2234 Kilson Drive $35,091 Homeowner Rehab 1345 Cabrillo Park Drive #R04 $42,200 Homebu er Assistance 1046 Cabrillo Park Drive #A $10,000 Homebu er Assistance 1919 Sher Lane #15 $11,160 Homebu er Assistance 1118 Orange St. $228,000 New Construction Sale 1112 Orange St. $225,000 New Construction Sale 1527 S. Ross St. $10,000 Homebu er Assistance 1345 Cabrillo Park Drive #K05 $10,000 Homebu er Assistance 19C-2 Quarterly Report for Housing Division Projects and Activities June 20, 2011 Page 3 Construction Process During this phase, homeowners receiving rehabilitation loans are guided through an open selection of contractors to complete the work on their homes. Each homeowner is given a list of contractors that have been screened by staff for insurance and bonding requirements. However, homeowners are allowed to select any contractor that is licensed and meets these same requirements. Staff assists the homeowners in selection of a contractor, monitors the construction work, approves payments to contractors, and tracks expenditures to ensure they do not exceed available funds. Multifamily projects may involve additional issues such as compliance with prevailing wage requirements and/or Davis-Bacon. At the end of the third quarter, there were 34 multifamily units and four single family units for a total of 38 units underway. Loan Portfolio Management and Monitoring The Housing Division is responsible for ensuring the integrity of the residential loan portfolio. As of the end of the third quarter, the principal balance was $75,826,468. This is comprised of 460 loans of which 401 are deferred or residual receipt payment loans. As shown in Table 2, the loan portfolio generated $489,894 in payments of principal and interest during the first three quarters of the fiscal year: Table 2: Portfolio Revenue Loan Payoffs $179,213 Residual Receipts Pa ments $149,713 Amortized Loan Payments $160,968 Total $489,894 As part of the requirements for these funds, staff must monitor the owner-occupancy for single family homes that have received loans and the code compliance of units in rental projects with long-term affordability covenants. During the first three quarters of the fiscal year, 110 letters were sent to homeowners to verify that they continue to occupy the home as their primary residence. During the same three quarter period, staff conducted code compliance inspections for 15 HOME- assisted projects containing a total of 273 units. Of these units, only a sampling is required to be inspected. This quarter, 45 units were inspected and seven units failed. Project owners are required to make necessary repairs for all units found to be out of compliance, and all seven failed units were brought into compliance within two weeks after the initial inspection. 19C-3 Quarterly Report for Housing Division Projects and Activities June 20, 2011 Page 4 Development Projects NSP 1 Program The federal Neighborhood Stabilization Program (NSP) is intended to target and stabilize communities hardest hit with foreclosures. To date, the City has received three NSP awards. The first award (NSP 1) came through a noncompetitive process in the amount of $5,795,155. Under its terms, all grant funds must be obligated by September 5, 2010, and expended by March 26, 2013. In addition, NSP grantees must expend at least 25% of the funds on households who are very low-income. However, the City has exceeded this requirement by obligating $2.45 million or 42% of its grant to very low-income households. Currently, the City has expended $2.3 million or 33% of its funds dedicated to projects to serve very low-income households. As of the end of the third quarter, the City had obligated all of its NSP 1 funds in August 2010 and had expended more than $6.2 million or 107.3% of its grant amount, which includes program income generated by sales. This exceeded HUD's timeline requirement for grant expenditure. Currently the Program is only operating with program income, and these funds will diminish over time. NSP 1 includes the following four programs: Down Payment Assistance Program, Single-Family Acquisition-Rehabilitation Program, Historic/Condominium Acquisition-Rehabilitation Program and a Multifamily Acquisition-Rehabilitation Program. ANR Industries, the intermediary selected to implement homeownership programs including the Single-Family and Historic/Condominium, is responsible for the acquisition, rehabilitation, and resale of the foreclosed units. These homes are sold to families with incomes up to 120% of the area median (AMI). As of the end of the third quarter, ANR had used NSP 1 funds to acquire 34 single-family homes for rehabilitation and resale to qualifying families. ANR has spent more than $3.3 million in NSP 1 funds and has leveraged an additional $4.5 million in private funds to make these affordable units available. Chart 3 shows the status of all properties purchased with NSP 1 funds as of the end of the third quarter. Tables 3 and 4 provide additional detail. 35 30 25 20 15 10 5 0 Chart 3: NSP 1- Status of All Single Familv Properties 19C-4 Acquisition Under Resale Sold Rehabilitation Quarterly Report for Housing Division Projects and Activities June 20, 2011 Page 5 Table 3. NSP 1 Properties Under Pnhahilitatinn Address NSP is for Acquisition 1001 W. MacArthur Blvd #14 $110,704.98 Table 4- NSP 1 PrnnPrtiP.Q Availahla fnr _Cahn Address Affordability Level 1001 W. Stevens Ave #140 Moderate The partnership of OHDC and C&C Development was selected to implement the Multifamily Acquisition/Rehabilitation Program. To date, the partnership has used $1.4 million in NSP 1 funds to acquire a 14-unit multi-family property at 1410 North Durant Street. The rehabilitation is complete and the property is now occupied. The partnership also used $655,000 in NSP 1 funds to acquire two vacant parcels at 605-611 East Washington Avenue on which they will construct approximately 38 affordable rental units. They have submitted an application for tax credits, and expect to start construction in September of 2011. Both projects will be targeted to households at or below 50% of AMI. NSP 2 Program Chart 4: NSP 2 - Status of All Single Family Properties The City's second io award (NSP 2) for $10 a million was received through a highly 4 competitive process in 2 which only 15 local 6 government agencies Acquisition Under Resale sold were successful. Most Rehabilitation awards were made to nonprofit consortiums. Under the terms of this award, there is no obligation deadline to meet; however, there is an expenditure deadline. Fifty percent of the funds must be expended by February 11, 2012, and the remainder by February 11, 2013. As of the end of the third quarter, the City had expended nearly $2.6 million or 26% of the funds. NSP 2 implements three programs: Down Payment Assistance Program, Single-Family Acquisition-Rehabilitation Program, and a Multifamily Acquisition- Rehabilitation Program. ANR has spent more than $2.4 million in NSP 2 funds and has leveraged an additional $2.6 million in private funds to make these affordable units available. Chart 4 shows the status of all properties purchased with NSP 2 funds as of the end of the third quarter. Tables 5, 6, 7 and 8 provide additional detail. 19C-5 Quarterly Report for Housing Division Projects and Activities June 20, 2011 Page 6 Address NSP Funds for Acquisition 1230 S. Garnse St. $154,589.30 Table 5: NSP 2 Single Family Properties Acquired During the Quarter Table 6. NSP2 Properties Under Rahnhilitntinn Address Pro -ected Completion Date 1510 W. 12ffi St 0411512011 2201 S. Parton 0410712011 1104 S. Raitt 0410412011 Table 7: NSP2 Sinale Familv Properties Availahla fnr gala Address Affordability Level 503 S. Garnse St Moderate 2075 S. Van Ness Ave Moderate 1520 W. 6 St Moderate 2142 S. Park Dr Moderate 1231 S. Baker St Moderate 1422 S. Maple St Moderate 329 E. Camile St Moderate 214 N. Bush St Moderate 1201 W. 6 St Moderate Table 8: NSP 2 Sinale Family Pmnertia.c .11?nlrl l )i,rinrr th o nt in or Property Address Silent 2" Income Level 1527 S. Ross St. $10,000 Moderate NSP 3 Program The U. S. Department of Housing and Urban Development (HUD) has allocated the amount of $1,464,113 in NSP 3 funds to the City of Santa Ana. To receive these funds, the City adopted a substantial amendment to its Annual Action Plan and submitted it to HUD on February 28, 2011. The amendment was approved, and the City signed a grant agreement with HUD on March 10, 2011. The City will implement the following programs with these funds: • Acquisition/Rehab/Resale-50 Percent of Area Median Income • Acquisition/Rehab/Resale-120 Percent of Area Median Income • Administration In order to facilitate implementation of the first two programs, the City released a Request for Proposals (RFP) for intermediaries on February 28, 2011. 19C-6 Quarterly Report for Housing Division Projects and Activities June 20, 2011 Page 7 As required by regulations, comprehensive detailed quarterly reports on the City's NSP Programs (NSP 1 and NSP 2) are posted on the City's website at http://www.santa-ana.org/cda/NSP.asp. Scattered Sites On October 9, 2009, the Agency released a Request for Qualifications for the selection of qualified developers for 13 Agency-owned parcels. On December 21, 2009, the Agency selected three developers to construct single family and multifamily units on these parcels. Habitat for Humanity of Orange County was selected as developer for single family housing at sites identified as 719 & 812 North Concord Street; 1114, 1121 South Cypress Avenue; 1314 Eastwood Avenue; 4809 West Edinger Avenue, 4010 & 4018 West McFadden Avenue; 4106 & 4110 West McFadden Avenue; 717 East Third; and 1029 McLean Drive for a total of 17 single family units. A Disposition and Development Agreement (DDA) was approved by the City Council and Redevelopment Agency on March 21, 2011. They are currently going through the planning process. Also approved was OHDC and C&C Development as the developer for multi-family housing at sites identified as 217, 219 & 435, 437 South Birch Street; 2034 & 2038 North Bush Street; and North Spurgeon & East 22nd Street. They have submitted plans for the Birch Street and Bush Street properties. Their DDA was approved on September 7, 2010, for all sites except North Spurgeon, which is still being negotiated. They have applied for tax credits, which is necessary financing for the construction. Finally, the Agency selected Hope Builders, a Division of Taller San Jose, as developer for two single family homes on a site identified as 542 East Central Avenue. This site will afford Hope Builders further training in the construction of single family dwellings and assist in its mission of providing high quality construction jobs for local Santa Ana residents who are graduates of Taller San Jose. The Developer has submitted its plans into the City's site plan review process, while Agency staff continues working with them on its DDA. Station District On June 7, 2010, after an extensive public outreach process which garnered a great deal of input on community needs and issues, the City Council/Redevelopment Agency approved several actions to facilitate the development of an affordable housing project, located in the 94-acre Station District, that will enhance the Lacy neighborhood and support the transit vision for the area. The project is situated along a corridor and is a key connection from the 1-5 freeway into the Downtown, and will also serve as a major transportation link for the planned Go Local Fixed Guideway System. Related California/Griffin Realty Corporation, the master developer selected last year after a wide-reaching Request for Proposals process, helped spearhead the outreach efforts with support from the City. The first phase of the project will be 74 podium apartment units to be rented to extremely-low and very-low income households. In March the developer submitted an application to the State of California for low income housing tax credits which will provide critical financing for this phase. If 19C-7 Quarterly Report for Housing Division Projects and Activities June 20, 2011 Page 8 the application is approved, the developer anticipates that construction will start in October of 2011 and be completed in approximately 18 months. FISCAL IMPACT There is no fiscal impact associated with this action. ?a'Yl G? Nancy T. Ed rds Interim Exe ive Director Community Development Agency NTE/SLB/MA/kg 19C-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: CAL-EPA CERTIFIED UNIFIED PROGRAM AGENCY ELECTRONIC REPORTING GRANT 2010 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2nd Reading ? implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve the Appropriation Adjustment for the Cal-EPA - Certified Unified Program Agency Electronic Reporting Grant 2010 expenditure account. DISCUSSION Assembly Bill 2286 requires that the Certified Unified Program Agencies (CUPAS) within Orange County Health Services report hazardous materials business emergency plans electronically by January 1, 2013. Therefore, Santa Ana Fire Department as a Participating Agency (PA) within the CUPA must in turn report to the CUPA in the same manner. Cal-EPA has been authorized to provide every qualified PA with funding to assist in compliance efforts. FISCAL IMPACT Approval of the Appropriation Adjustment will increase revenues in the Cal-EPA Certified Unified Program Agency Electronic Reporting Grant 2010 revenue account (14615002-52025) by $20,000 and appropriate the same into the Certified Unified Program Agency Electronic Reporting Grant expenditure account (14615365-62300). APPROVED AS TO FUNDS AND ACCOUNTS: David Thomas Francisco Gutierrez Fire Chief Executive Director Fire Department Finance & Management Services Agency 20A-1 20A-2 CERTIFIED UNIFIED PROGRAM AGENCY ELECTRONIC REPORTING GRANT AGREEMENT BETWEEN THE CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY AND SANTA ANA FIRE DEPARTMENT CERTIFIED UNIFIED PROGRAM AGENCY AGREEMENT NO. G10-UPA-86 State and Grantee hereby agree as follows: 1. PROVISIONS. The following statute authorizes the State to enter into this Grant Agreement: a. California Health and Safety Code, division 20, chapter 6.11, section 25404 2. PURPOSE. The State shall provide a grant to and for the benefit of the Grantee for the purpose of allocating moneys from the regulated businesses oversight surcharge to the Certified Unified Program Agencies (CUPAs). Assembly Bill 2286 authorizes the Secretary to use funds from the oversight surcharge to provide certified unified program agencies and participating agencies assistance in implementing electronic Reporting requirements through grant funds for the purposes of the system. Up to 25% of the grant is authorized to be paid in advance on approval of the grant application. 3. GRANT AMOUNT. $ 20,000 a. Advanced Payment Amount. $ 0.00 4. TERM OF AGREEMENT. The term of the Agreement shall begin on January 1, 2010, and end on March 31, 2013. ABSOLUTELY NO INVOICES WILL BE ACCEPTED AFTER June 1, 2013. 5. REPRESENTATIVES. Either party may change its Representative(s) upon written notice to the other party. The Representatives during the term of this Agreement will be: California Environmental Protection Agency GRANT MANAGER James Bohon 1001 "1" Street, 2nd Floor Sacramento, California 95814 Phone 916 327-5097 Fax 916 322-5615 Email: jbohon cale a.ca. ov GRANTEE GRANT CONTACT if different from Project Director Name of Project Director, Title: Lori Smith, Administrative Chief / FM Name: Chris Ciraulo, Firefighter/HazMat Inspector Street Address: 1439 S. Broadway Street Address: 1439 S. Broadway City, Zip: Santa Ana, CA 92707 City, Zip: Santa Ana, CA 92707 Phone: 714-647-5700 Phone: 714-647-5750 Fax: 714-647-5751 Fax: 714-647-5751 e-mail: lsmithtjsanta-ana.org e-mail:cciraulo .santa-ana.oro 6. STANDARD AND SPECIAL PROVISIONS The following exhibits are attached and made apart of this Agreement by this reference: Exhibit A REPORTING AND INVOICING PROVISIONS Exhibit B SPECIAL AND GENERAL PROVISIONS Exhibit C GRANT APPLICATION Exhibit D TRANSITION PLAN 20A-3 Santa Ana Fire Department Electronic Reporting Grant Agreement No. G10-UPA-86 Page 2 of 6 7. GRANTEE REPRESENTATIONS. The Grantee accepts and agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents, and to fulfill all assurances, declarations, representations, and commitments made by the Grantee in its application, accompanying documents, and communications filed in support of its request for grant funding. 8. DEFINITIONS. The following defined terms apply throughout this Agreement: "Cal/EPA" means the California Environmental Protection Agency; "CUPA" means the Certified Unified Program Agency; "Grantee" means the Santa Ana Fire Department; "PA" means the Participating Agency; "Electronic Reporting" means the Electronic Reporting requirements of Assembly Bill 2286 "Secretary" means the Secretary of the California Environmental Protection Agency; and "State" means the State of California, including Cal/EPA. IN WITNESS THEREOF, the parties have executed this Agreement on the dates set forth below. By: Grantee Signature By: Donald A. Johnson, Assistant Secretary California Environmental Protection Agency Grantee Name, Title (Typed/Printed) Date Date 20A-4 Santa Ana Fire Department Electronic Reporting Grant Agreement No. G10-UPA-86 Page 3 of 6 EXHIBIT A REPORTING AND INVOICING PROVISIONS A. REPORTING PROVISIONS 1. The Grantee shall prepare and submit a Transition Plan Status Reports, including invoices for documentation of expenditures, to the Cal/EPA Grant Manager at the following address: California Environmental Protection Agency Unified Program Section Attn: Brittani Donnachie 1001 "1" Street, 2nd Floor Sacramento, California 95814 2. The Transition Plan Status Report and Invoice will be provided by Cal/EPA upon the approval of the Grant Application. 3. Each report shall have a cover letter certified by the Project Director or the Grant Contact. 4. For purposes of the Electronic Reporting Implementation Status Reports, the reporting period is as follows: Report Reporting Period Report Due Date Report 1 June 1, 2010, to September 30, 2010 November 1 2010 Report 2 October 1, 2010, to December 31, 2010 , February 1, 2011 Report 3 January 1, 2011, to March 31, 2011 May 1, 2011 Report 4 April 1, 2011, to June 30, 2011 August 1 2011 Report 5 July 1, 2011, to September 30, 2011 , November 1 2011 Report 6 October 1, 2011, to December 31, 2011 , February 1, 2012 Report 7 January 1, 2012, to March 31, 2012 May 1, 2012 Report 8 April 1, 2012, to June 30, 2012 August 1 2012 Report 9 July 1, 2012, to September 30, 2012 , November 1 2012 Report 10 October 1, 2012, to December 31, 2012 , February 1 2013 Report 11 January 1, 2013, to March 31, 2013 , May 1, 2013 B. INVOICING PROVISIONS 1. Invoices shall be used to depict the expenditures incurred by the Grantee in implementation of Electronic Reporting throughout the period of performance. 2. The invoice shall include all Electronic Reporting implementation expenditures incurred by the Grantee during the reporting period. 3. The invoice shall be submitted as an attachment to the Transition Status Report, in accordance with the submission schedule provided above. 4. The Grantee shall use the invoice template format provided by Cal/EPA. 20A-5 20A-6 Santa Ana Fire Department Electronic Reporting Grant Agreement No. G10-UPA-86 Page 4 of 6 EXHIBIT B SPECIAL AND GENERAL PROVISIONS A. SPECIAL PROVISIONS 1. AMENDMENTS: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in the Agreement is binding on any of the parties. 2. WAIVERS: Any term, provision, condition, or commitment of this Agreement may be waived at the discretion of Cal/EPA. All waivers shall be documented in writing. 3. DISPUTES: The Grantee shall continue with the responsibilities under this Agreement during any dispute. Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by the Cal/EPA Assistant Secretary for Local Programs or an authorized representative. The decision shall be in writing and a copy thereof furnished to the Representatives of this Agreement. The decision of the Assistant Secretary shall be final and conclusive unless, within thirty (30) calendar days after mailing of the decision to the Grantee, the Grantee furnishes a written appeal of the decision to the Secretary for Environmental Protection, with carbon copies furnished to the Cal/EPA Assistant Secretary for Local Programs and the Cal/EPA Grant Manager. The decision of the Secretary shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Grantee shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement. This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the Cal/EPA Assistant Secretary for Local Programs or the Secretary, on any question of law. 4. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS: The Grantee agrees that, at a minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of grant funds to a level of expenditure adequate to establish that such funds have not been used in violation of state law or this Agreement. The Grantee further agrees that it will maintain financial accounts in accordance with generally accepted accounting principles. Without limitation of the requirement to maintain financial management systems and accounting standards in accordance with generally accepted fiscal and accounting principles, the Grantee agrees to: a. Establish a financial account(s) and accounting system(s) that will adequately and accurately depict all Electronic Reporting Grant amounts received and expended during the term of this Agreement, including but not limited to: i. All Electronic Reporting implementation expenditures; and ii. Running balance of grant allocations and expenditures. 5. RECORDS MANAGEMENT: Maintain all documentation and financial records, as may be necessary, for the state to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations. Establish an official file for the allocation that shall adequately document all significant activities and actions relative to the Implementation of the Electronic Reporting Implementation, including but not limited to: a. Fiscal accounting; b. Electronic Reporting Implementation Status Reports; and, c. Invoicing and supporting documentation. 6. TIMELINESS: Time is of the essence in this Agreement. The Grantee shall proceed with Electronic Reporting implementation in an expeditious manner. The Grantee shall prepare and submit all required reports and invoices as stipulated in this Agreement. 20A-7 Santa Ana Fire Department Electronic Reporting Grant Agreement No. G10-UPA-86 Page 5 of 6 7. WITHHOLDING OF GRANT DISBURSEMENTS: Cal/EPA may withhold all or any portion of the allocations provided for by this Agreement in the event the Grantee: a. Materially violates, or threatens to materially violate, any term, provision, condition, or commitment of this Agreement; or b. Fails to maintain reasonable progress toward Electronic Reporting implementation. 8. FUNDS CONTINGENCY: Cal/EPA's obligations under this Grant Agreement are contingent upon the availability of funds. In the event funds are not available, the State shall have no liability to pay any funds whatsoever to the Grantee or to furnish any other considerations under this Grant Agreement. 9. BUDGET REVISIONS: Budget revisions of 15% or less of the total agreement allocation may be made in writing and approved by Cal/EPA without an amendment to the agreement. B. GENERAL PROVISIONS 1. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the consent of the State. 2. AUDIT: Grantee agrees that the Cal/EPA, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the expenditure of allocated moneys and performance of this Agreement. The Grantee agrees to maintain such records for a possible audit for a minimum of three (3) years after term of the Agreement, unless a longer period of records retention is stipulated. Grantee agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, the Grantee agrees to include a similar right of the State to audit records and interview staff in any contract related to performance of this Agreement. 3. COMPUTER SOFTWARE: The Grantee certifies that it has appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws. 4. CONFLICT OF INTEREST: The Grantee certifies that it is in compliance with applicable state and/or federal conflict of interest laws. 5. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the State of California. 6. INDEPENDENT ACTOR: The Grantee, and its agents and employees, if any, in the performance of this Agreement, shall act in an independent capacity and not as officers, employees or agents of the State. 7. NONDISCRIMINATION: During the performance of this Agreement, the Grantee and its contractors shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of sex, race, religion, color, national origin, ancestry, disability, sexual orientation, medical condition, marital status, age (over 40) or denial of family-care leave, medical-care leave, or pregnancy-disability leave. The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment. 8. NO THIRD PARTY RIGHTS: The parties to this grant Agreement do not create rights in, or grant remedies to, any third party as a beneficiary of this grant Agreement, or of any duty, covenant, obligation or undertaking established herein. 9. TERMINATION: The State may terminate this Agreement and be relieved of any payments should the Grantee fail to perform the requirements of this Agreement at the time and in the manner herein provided. In the event of such termination, the Grantee agrees, upon demand, to immediately return the remaining unused portion, if any, of the Grantee's allocation. 20A-8 Santa Ana Fire Department Electronic Reporting Grant Agreement No. G10-UPA-86 Page 6 of 6 10. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement shall continue to have full force and effect and shall not be affected thereby. 20A-9 20A-10 EXHIBIT C G1n-iIPA-R9 GRANT APPLICATION FORM 1. Entity Information: Unified Program Agency Name: City of Santa Ana Fire Department GRANTEE GRANT CONTACT if different from Project Director Name of Project Director, Title: Name: Lori Smith, Administrative Chief / FM Chris Ciraulo, Firefi hter/HazMat Inspector Street Address: Street Address: 1439 S. Broadway Same City, Zip: City, Zip: Santa Ana, Ca 92707 same Phone: Phone: 714-647-5700 714-647-5750 Fax: Fax: 714-647-5751 714-647-5751 e-mail: e-mail: IsmithO-santa-ana.orq cciraulo _santa-ana.ora 2. Grant Amount: $ 20.000 a. Advanced payment Requested: _0 (Up to 25% of the grant is authorized to be paid in advance on approval of the grant.) 3. Scope of Work Grant funds are being applied for due to compliance requirements of AB 2286, which requires all regulated businesses and Unified Program Agencies (UPA) to use the Internet to file required Unified Program information electronically. The City of Santa Ana Fire Department is a Participating Agency (PA) under Orange County HCA/EH Certified Unified Program Agency (OC CUPA). Using EnvisionConnect, OC CUPA has created an EnvisionConnnect Portal for reporting businesses of a PA to utilize for electronic reporting in lieu of CERS. Santa Ana intends to secure a consultant, E-Compliance, for the transition to the Portal. The software used to submit electronically is called e-Submit. Data entered by regulated businesses into e-Submit transfers to OC CUPA via the portal. OC CUPA uses this data to prepare the consolidated invoice. The conversion to electronic reporting through the EnvisionConnect Portal began early 2010 and is now complete. A transition from our current online software to e-Submit will allow regulated businesses in Santa Ana to connect through the e-Submit portal with a limited learning curve. All participating agencies under OC CUPA who utilize the EnvisionConnect Portal are included in the joint Transition Plan submitted by OC CUPA. Each individual PA will continue to complete the milestones reported to Cal/EPA document on a quarterly basis. Page 1 of 3 20A-11 EXHIBIT C 4. Work Plan G 10-U PA-89 Period of Performance: January 1, 2012 through March 31, 2013 (no later than March 31, 2013) 1. Transition from current electronic system to the Portal (PA tasks) a. Prepare electronic files for a clean transition b. Prepare notifications and instructions for our customers c. Provide training to reacquaint emergency responders to new format 2. Software Upgrade for Electronic Submittal (Consultant tasks) a. Coordinate schedule for implementation b. Load software onto OC CUPA server and register SAFD within the network c. Acquire necessary administrator passwords and credentials d. Obtain sample operational directives and deployment tools e. Train on the use and administration of the program f. Configure two stand alone emergency response laptops S. Projected Budget: Program Costs Fiscal Year 09/10 Fiscal Year 10/11 Fiscal Year 11/12 Fiscal Year 12/13 Personnel Services* $ $ $ $ Operating Expenses $ $ $ $ Travel Expenses $ $ $ $ Supplies/Materials $ $ $ $ Equipment/Software $ $ $ $ Professional/Consultant Services $ $ $ $20000.00 FISCAL YEAR TOTAL $ $ $ $20000.00 TOTAL $20000.00 *Indirect costs may not exceed 35% of grant allotment Page 2 of 3 20A-12 EXHIBIT C G10-UPA-89 CERTIFICATION I certify under penalty of perjury that the information I have entered on this application is true and complete to the best of my knowledge and that I am an employee of the applicant authorized to submit the application of behalf of the application. I further understand that any false, incomplete, or incorrect statements may result in the disqualification of this application. By signing this application, I waive any and all rights to privacy and confidentiality of the proposal on behalf of the applicant, to the extent provided in this program. Applicant Signature Lori Smith ri n ncu rvaine or mppucani Page 3 of 3 20A-13 20A-14 EXHIBIT D G10-UPA-89 ELECTRONIC REPORTING TRANSITION PLAN Orange County HCA/EH Certified Unified Program Agency hereto referred to OC CUPA This transition plan covers the OC CUPA and its 10 Participating Agencies which are listed on page 11. TRANSITION PLAN REPRESENTATIVE Name of Project Director, Title: Pearl Boelter, Program Manager Street Address: 1241 E. Dyer, Suite 120 City, Zip: Santa Ana, 92705 Phone: (714) 433-6010 Fax: (714) 754-1768 E-mail: pboelter@ochca.com 1. General Description of Transition Plan Orange County Health Care Agency/Environmental Health's Certified Unified Program Agency (OCCUPA) and its 10 Participating Agencies (PA) began the transition from a paper-based reporting system to electronic reporting as mandated by Assembly Bill 2286 in 2007. OCCUPA chose a Regional Portal option with CERS upload/download capability. The Portal is hosted by OC CUPA with the 10 PAs having web-based connections. OC CUPA implemented the base Portal through another funding mechanism. AB 2286 funding will provide the OC CUPA and its PAs the ability to enhance Portal operations and implement the PA connections. The E-reporting grant projects will be completed by outside vendors, OC CUPA IT staff, and OC CUPA Portal team members. Here is a breakdown of Orange County's Unified Program with estimated dates of PA and OC CUPA program connections to the Portal. Each specific Agency listed in the table is responsible for the existing review and submittal of paper UPCFs for the program element(s) listed and will be responsible for the new electronic submittal review and approval which also includes assisting the businesses with their electronic submittals and sending mailers/educational information on the electronic submittals to the regulated businesses. AGENCY CUPA/PA PROGRAM ELEMENTS QTR OF PORTAL CONNECTION Costa Mesa Fire PA HMRRP/HMMP /2011 Fountain Valley Fire PA HMRRP/HMMP 4 /2011 Fullerton Fire PA HMRRP/HMMP UST 1S/2012 Garden Grove Fire PA HMRRP/HMMP 1st/2011 20A-15 EXHIBIT D G10-UPA-89 QTR/YR OF AGENCY CUPA/PA PROGRAM ELEMENT PORTAL CONNECTION Huntington Beach PA HMRRP/HMMP 3rd /2011 Fire LA County Fire PA HMRRP/HMMP 4 /2012 Dept (La Habra) Cal/ARP Newport Beach PA HMRRP/HMMP 15`/2010 Fire Orange Fire PA HMRRP/HMMP 15/2012 UST Orange County PA HMRRP/HMMP 2nd/2 )12 Fire Authority Cal/ARP 22 Cities & Unincorporated Santa Ana Fire PA HMRRP/HMMP 3F /2012 UST Orange County CUPA HMRRP/HMMP -City of 2" /2009 Environmental Brea Health Orange ounty C CUPA UST 1st/2011 Environmental With the exception of Health Anaheim, Fullerton, Orange, & Santa Ana Orange County CUPA HW/TP 4 /2011 Environmental Health Orange County CUPA APST 4 /2011 Environmental Health Orange County CUPA CalARP 4 /2011 Environmental Health OC CUPA and PA regulated businesses will be expected to submit Unified Program Consolidated Forms (UPCFs) information electronically via OC CUPA's EnvisionConnect Portal by January 1, 2013. The CUPA provides for contingencies on a case by case basis by which paper based UPCFs may be accepted and submitted through EnvisionConnect and the EnvisionConnect Portal. Multi jurisdictional businesses may submit via CERS which will be downloaded into Envision- Connect and the Portal. OC CUPA will upload existing Owner and Facility information to CERS. EnvisionConnect will capture the assigned CERS ID for future data exchanges. After initial upload, OC CUPA on behalf of its 10 PAs will participate in a frequent two-way data exchange between EnvisionConnect and CERS in order to synchronize the two systems. Therefore, the data exchange Page 2 of 12 20A-16 EXHIBIT D G10-UPA-89 will include both OC CUPA and PA data. Additional OC CUPA and PA data will be uploaded based on requests from State Agencies, and related to annual, semiannual, and quarterly report information. Currently, Orange County's Unified Program collects forms for the following programs: COLLECTION AGENCY COLLECTED METHOD BY CUPA PROGRAM # of Businesses* Electronic OC CUPA - CUPA HMRRP/HMMP City of Brea 192 Electronic Newport Beach Fire PA HMRRP/HMMP 205 CM, FV, F, Paper GG, HB, LACOFD, O, PA HMRRP/HMMP 5715 0(-FA SA Santa Ana Electronic Fire PA HMRRP/HMMP 525 Hazardous Waste Generator and Paper OC CUPA CUPA Hazardous Waste Onsite HW = 5792 Treatment Programs TP= 131 California Accidental Paper OC CUPA CUPA Release Prevention Program (CaIARP) 42 F LA , COFD, California Accidental Paper OCFA PAs Release Prevention 45 Program Cal/ARP Underground Storage Paper OC CUPA CUPA Tanks 680 F ll u erton, Underground Storage Paper Orange PA Tanks 123 S Electronic anta Ana PA Underground Storage Fire Tank 94 Paper OC CUPA CUPA Aboveground Petroleum Stora e Tank g 497 Total Comhint-d Ru cinacccc = stann Regulated businesses submit their paper based UPCFs by mail, by email, by fax, or directly to OC CUPA and PA staff. Non-responders are mailed reminders that are followed-up with phone calls. For Regional Portal implementation, the Unified Program Consolidated Form data is uploaded into OC CUPA's Regional Portal from EnvisionConnect and PA databases as well as some manual entry. Page 3 of 12 20A-17 EXHIBIT D G10-UPA-89 Initial data will be validated by either OC CUPA or PA program staff depending on which Agency administrates the specific Program Element; however, businesses will be required to review their Portal data online within 3-6 months after the transfer, and validate and/or update if there are changes. The OC CUPA and PAs will notify businesses by a work shop, mailed letter, email, and/or inspection report of their data availability in the Regional Portal, and request them to verify, and if necessary, update their data. CUPA and PA staff (based on program element) will review ongoing electronic submissions to determine approval status. Emails will be sent out by the Portal informing the businesses of the approval status and providing them with the information needed to achieve approval status. Final approval of submitted UPCF documents into the Portal will be targeted within 14 days of initial submittal. Exceptions to this timeframe will be allowed based on circumstances. After data transition is completed, paper UPCFs will be accepted, approved, and entered by the OC CUPA and PA on a case-by-case basis with the intent to transition all businesses to electronic submittals. OC CUPA inspection staff will assist businesses with general EnvisionConnect Portal operation during onsite inspections using laptops and wireless connections. There will also be OC CUPA and PA Portal Coordinators available to assist businesses via phone and email during regular business hours. Mailers (letters, flyers, and/or newsletters) will be sent to businesses to notify them about the transition process and what business owners need to do to comply. OC CUPA and Cal/EPA resource web links will be included in the mailers and on OC CUPA's web site so that businesses have access to more information about electronic reporting requirements. Businesses may take advantage of online training tutorials and scheduled workshops. OC CUPA conducted one workshop in 2009 and is scheduled to conduct a workshop in January 2011. The inspection and enforcement data electronic submittal requirement of AB2286will be addressed with the EnvisionConnect CERS upload being designed by Decade Software, and with the new Regional Portal PA Inspection and Enforcement module which will allow PAs to enter inspection and enforcement (I and E) data into the Portal. The PA's I and E data can then be uploaded into EnvisionConnect, consolidated with OC CUPA data, and then uploaded to CERS. 2. Needs Assessment The OC CUPA and its PAs recognize that converting their business-to-CUPA reporting system from paper/hardcopy to electronic will require an assessment of the resources needed to implement the new system. There are some critical needs that must be addressed in order to efficiently and effectively convert to and manage electronically reported data through CERS. This need assessment began for the OC CUPA in 2007 when the Regional Portal concept was initiated through OC CUPA's IT Project Request process and approved by the governing body. In order to complete OC CUPA's transition to regional electronic reporting the following needs and the plan to address them are listed below: • OC CUPA and PA staff apply for Cal/EPA electronic reporting grant funds to fully implement electronic reporting. The OC CUPA and each of the 10 PAs will apply for the funds separately and submit a joint transition plan. The funds will be needed for each PA connection to the Regional Portal and for the OC CUPA to enhance Portal functionality. • Transfer OC CUPA and PA hardcopy documents to EnvisionConnect, EnvisionConnect Portal, and CERS. A combination of technique A and B will be used. Page 4 of 12 20A-18 EXHIBIT D G10-UPA-89 oTechnique A: Part-time new hires for manual entry by PA - Under this option, the PA utilizes internal staff to enter chemical data into the Regional Portal. Owner, Facility, Program data will be transferred from the OC CUPA's EnvisionConnect database into the Portal. oTechnique B: Vendor contracted to transfer electronic data in EnvisionConnect or other databases into the EnvisionConnect Portal. This Technique applies to both the OC CUPA and the PAs that have chemical inventories and other program information in existing databases. • OC CUPA and PA staff need to assess existing data and new data submitted through the Portal for completeness, accuracy, and compliance with Title 27 Data Dictionary. This will be an ongoing process as new PAs and OC CUPA programs are added to the Portal. A test server is in place to assist with this verification. • OC CUPA with Decade Software will need to implement the EnvisionConnect upload/download feature to CERS for UPCF information and inspection and enforcement data. • OC CUPA and PAs review and consider fee adjustments to cover long-term operational costs. With the Portal PA billing module enhancement, PA staff resources required to maintain two separate billing databases will be eliminated. In addition, the OC CUPA staff resources to consolidate 11 billing databases will be reduced. Finally, electronic submittal of forms will reduce data entry staff resources. Therefore, the review and consideration of program fee adjustments to cover annual database maintenance costs will need to include the reduction and/or elimination of current manual database maintenance resources. • Review and update procedures for managing OC CUPA and PA's data in a Regional Portal. • OC CUPA and PA staff conduct EnvisionConnect Portal training for OC CUPA and PA staff. • OC CUPA and PA staff conduct EnvisionConnect Portal training for businesses (workshops, online, in the field). • OC CUPA needs to accommodate both CUPA and PA businesses that do not regularly use a computer and has plans to provide a computer station in the OC CUPA lobby. • OC CUPA needs to obtain EnvisionConnect and EnvisionConnect Portal technical support from Decade Software. OC CUPA will need to maintain annual contracts with Decade for Envision- Connect and its Portal. • OC CUPA staff will need to understand how CERS operates in order to assist those businesses that choose to use CERS for their electronic form submissions. • OC CUPA staff currently inspect using EnvisionConnect with field computers that either upload the inspection and violation data through a wireless connection or hardwired connection when they return to the office. The 10 PAs will manually enter their inspection and violation data into the Portal after an inspection and violation tracking module is developed. In the future, OC CUPA will encourage the PAs to transition to field computers that can then export/upload the information into the Portal. Funding for this automation will need to come from fees and/or enforcement case settlements. Collecting, Submitting, and Storing Unified Program Related Information OC CUPA and PA data will be exchanged with CERS through EnvisionConnect's upload/download feature. The OC CUPA will be responsible for the exchange of both CUPA and PA data. The automated exchange of data between CERS and EnvisionConnect will include documents regulated facilities are required to report/submit through the Portal. Regulated businesses will submit their information electronically into the EnvisionConnect Portal. By exception, the CUPA and its PAs may collect paper / hardcopy data from the regulated businesses. Page 5 of 12 20A-19 EXHIBIT D G10-UPA-89 The OC CUPA will enter the data into EnvisionConnect and the PAs will enter the data into the EnvisionConnect Portal. The EnvisionConnect Portal will synchronize with EnvisionConnect, which will then synchronize with CERS. The OC CUPA will be responsible for the oversight of the exchange between the Portal and the CUPA's EnvisionConnect database as well as the exchange between EnvisionConnect and CERS. 4. Management of Data Changes/Updates Businesses will submit UPCF changes/updates using the EnvisionConnect Portal. The OC CUPA is responsible for addressing the UPCF changes/updates for their program elements The 10 PAs are responsible for addressing the UPCF changes/updates for their program elements. Please see table on page 11 that lists the CUPA and PA agencies with their program elements. OC CUPA and PA staff (based on program element) will review submissions, compare with previously submitted information using the EnvisionConnect Portal comparison tool, and will make a determination on the approval status. If a business submission is not approved, OC CUPA and PA staff will enter a notation in the Envision- ConnectPortal specifying what is needed to complete the approval process. Businesses that receive an incomplete approval status from OC CUPA and PAs will receive an email notice of their status. Businesses will make the required corrections and resubmit to the OC CUPA or the PA based on the city and program element. Businesses will be notified by email of their approved submissions and the required data will be transferred to EnvisionConnect. Upload to CERS will be done at a predetermined time schedule with an agreed upon data transfer. Emails will be generated from the Agency (either OC CUPA or PA based on city and program element) and the OC CUPA will be responsible for the data transfer to Envision Connect and then to CERS. 5. Inspection/Enforcement OC CUPA will use EnvisionConnect to collect and manage inspection and enforcement information in the field. Inspectors will schedule inspections in EnvisionConnect using the field inspection workflow and laptops with wireless connections. OC CUPA will use EnvisionConnect to push inspection and enforcement information to CERS at a yet to be defined frequency acceptable to Cal/EPA. PAs will use the EnvisionConnect Portal to collect and manage inspection and enforcement information which will be uploaded to EnvisionConnect and then to CERS. The PA will input inspection and enforcement data into the individual PA Portal system connections manually. Automation of this process will be considered in the future, but not before the 1/1/13 electronic submittal deadline. The PA's inspection and enforcement data will be exported from their Portal into an Excel database and submitted to the OC CUPA for inclusion into their database until the system can be automated to upload into OC CUPA's EnvisionConnect database. 6. Billing/Invoicing Page 6 of 12 20A-20 EXHIBIT D G10-UPA-89 OC CUPA is responsible for conducting the Unified Program billing for all CUPA and the 10 PA regulated businesses. The OC CUPA will use EnvisionConnect to generate invoices for regulated businesses. EnvisionConnect will accept data from the Regional Portal PA billing module and specific OC CUPA fields in Envision Connect will be used to generate invoices. Billing/invoicing is performed by OC CUPA Accounting staff using EnvisionConnect's billing module. Data that is downloaded from CERS will not be needed to generate invoices. OC CUPA and PA fees are calculated based on program costs. The OC CUPA manager will work with the Budget Analyst to determine whether or not fees need to be increased to cover the operational costs of the Regional Portal. Each PA will need to make a similar analysis. As previously stated in the needs assessment, overall reductions in staff resources due to streamlining of the billing operations and reduction in data entry will be evaluated to determine the impact of the regional portal on program fees. 7. Training Staff Training Existing OC CUPA and PA staff will be trained as the Portal is implemented. The OC CUPA Portal team will schedule the trainings for the professional staff (OC CUPA and PA) who will be administrators or reviewers. In many cases due to staff resource constraints, a PA Portal reviewer is also the PA field inspector. Therefore, the OC CUPA Portal team will train the primary PA reviewer/inspector and that person will train any additional PA staff that will have access to the Portal for administrative and/or review activities. Engine companies will be trained to use the Regional Portal's Emergency Response (ER) module by PA staff. OC CUPA Portal team staff can be requested to assist in the ER trainings as needed. New staff will be scheduled for the initial EnvisionConnect and/or EnvisionConnect Portal training within two weeks after hire. OC CUPA Portal Coordinators will administer data management system training for all CUPA new hires. PA Portal Coordinators will administer data management system training for all PA new hires. OC CUPA will take advantage of ongoing online training provided by Decade Software Business Training a) OC CUPA and PAstaff will conduct regular Portal educational outreach and training to the regulated. Training will be in the form of workshops, in-person field training, online training, tip cards, and phone/email assistance. Based on our experiences with the city of Brea and Newport Beach, which have relatively small numbers of regulated businesses, the OC CUPA and the following PA s, Costa Mesa, Fountain Valley, La Habra, will conduct most of their assistance over the phone and through emails. Large PAs like the OCFA, Huntington Beach, Orange, and Fullerton will have at least 1-2 workshops, onsite assistance, online tutorials and phone/email assistance. Santa Ana Fire has already transitioned to electronic submittals and therefore no business training will be required. The OC CUPA that oversees the majority of UST sites, all of the hazardous waste and tiered permitting, the majority of CaIRP and all of the APST sites will do most of the onsite assistance while onsite during annual inspections and follow-up inspections using field computers and wireless connectivity. The onsite assistance could equate to anywhere from 1500-2000 We have conducted two workshops to date and will most likely conduct at least 4-6 more before 1/1/2013. Page 7 of 12 20A-21 EXHIBIT D G10-UPA-89 b) OC CUPA will conduct CERS training as needed based on the multi-jurisdictional business use of CERS. 8. Help System OC CUPA and PA will offer a basic level of assistance for the EnvisionConnect Portal to regulated businesses. Businesses may call or email OC CUPA and PA Portal Coordinator(s)for this assistance, but inspection staff may help as well. OC CUPA web site will contain guidance on the general operation of the EnvisionConnect Portal. For technical or complicated issues, with the EnvisionConnect Portal or the EnvisionConnect data management system, OC CUPA staff will contact Decade Software Technical Support by email at support@decadesoftware.com or the help line at 800-233-9232. 9. Service Contract and Grant (fiscal) OC CUPA and PA will apply for electronic reporting grants individually using the application provided by Cal/EPA. The funds will be used to cover the specific costs associated with Portal enhancements as well as implementing PA connections to the Portal. Following the fund distribution request are brief descriptions of each of the projects. As previously stated, the OC CUPA initiated the Regional Portal concept in 2007 with active implementation starting in 2008. The majority of the Portal base infrastructure was completed without the need for AB2286 funds. The OC CUPA would like to use AB2286 funds to enhance the Portal's functionality for both the regulated business community and the Agency (OCCUPA and PA) users. In addition, the proposed projects will contribute to the streamlining of CUPA business operations providing the businesses with a one-stop online option to submit forms, pay invoices, and submit plans. The enhancements to the Portal will also allow the OC CUPA and PAs to reduce the dependency on paper for processing billing changes and tracking of inspection and enforcement data. FUND DISTRIBUTION REQUEST Project Title Activity Total Cost EC Portal Redundancy Vendor costs $35,089 Servers $16 795 , Associated minor equipment $8293 Portal Digital Signature Vendor costs $27,188 Portal Billing Component Vendor costs $46,315 Servers $21,315 l Functionality Vendor costs $25 000* spection and F , rcement Module Vendor costs $15,000* Expansion of the PA Billing module for OC CUPA billing use Vendor costs $5000* OC CUPA staffin for g Portal Implementation Staffing costs $101,009** Page 8 of 12 20A-22 EXHIBIT D G10-UPA-89 OCFA (PA) Portal Connection Vendor costs $25,000 PA connections to Portal Vendor costs $200,000 *verbal vendor quotes - need to obtain written quotes from vendor **estimate which includes indirect costs, may be adjusted if vendors costs are modified EC Portal Redundancy Project will build an automatic back-up system for Portal operations which will provide full Portal operation if the existing Portal system fails. EC Portal Electronic Signature Electronic signatures will provide another layer of Portal business identification which will assist in online payments and billing collection operations. Portal Billing Component Project will build online payments of OC CUPA and PA fees within the Regional Portal Portal Functionality Project will enhance the user's (business, reviewer, and administrator) operations of the Portal (e.g. tabs, EPCRA compliance) PA Inspection and Enforcement Module Project will build a module to help PA's track specific inspection and violation data. Data will be moved from the Portal to EnvisionConnect on a set schedule. Expansion of the PA Billing Module for OC CUPA Billing Use The PA billing module was build prior to AB2286 grant funding. The expansion of this module for OC CUPA staff will streamline business status/address changes and eliminate the need for paper updates. OC CUPA Staffing for Portal Implementation The OC CUPA Portal Implementation team coordinates1) PA connections which include review of initial data, training, and establishment of username/passwords, 2) OC CUPA professional staff reviewer training, 3) business training, 4) overall Portal functionality, and 4) general project management tasks. The team meets with the Agency IT and vendor staff on a weekly conference call, conducts bimonthly meetings with the PAs (E-Reporting Committee), and addresses all of the database contracting and grant administration responsibilities. Staffing for ongoing Portal operational tasks associated with username/password requests, form review, Portal, coordination between the CUPA and PAs, and other general Portal management activities will be evaluated and compared with the reduction in staff resources associated with the current billing and form operations when considering the adjustment of programs fees. OCFA (PA) Portal Connection Since OCFA is a large PA (22 cities vs. 1 for the other PAs) the connection cost to the Regional Portal was greater than the $20,000 allotted by the AB2286 grant. The OC CUPA will cover the $25,000 difference. PA Connections to the Portal Page 9 of 12 20A-23 EXHIBIT D G10-UPA-89 With the exception of OCFA, each PA will be charged up to $20,000 by the vendor for a Regional Portal connection. This fee will include setting up the forms, data transfer if applicable, and establishing the Portal connection. 10. Ongoing Support and Maintenance OC CUPA's annual EnvisionConnect costs are currently projected not to change with CERS e- reporting. Annual database and Portal expenses are part of the OC CUPA's current annual budget and will be included in all future budgets. OC CUPA's annual EnvisionConnect costs increased with the implementation of the EnvisionConnect Portal. OC CUPA will support any ongoing additional costs through an increase of program fees unless a review determines that the efficiencies generated from the Portal use offset the operational costs. The 10 PAs will be responsible for annual Portal Connection maintenance costs that will be addressed through program fees on regulated businesses. A review to determine the efficiencies generated from the Portal use will be done to identify if an increase in program fees is necessary. Any costs associated with the automation of the PA's field inspections will be the responsibility of the PA's and will need to be covered with their program fees or other funding. 11. Electronic Reporting Transition Plan Tracking OC CUPAand PAs will submit a quarterly status report and invoice to Cal/EPA to update the progress of the CUPA transition plan. The following tables denote the list of milestones that will be tracked and reported to Cal/EPA. Milestones Reported to Cal/EPA Date 1 Estimated/actual start date of the CUPA Electronic Reporting Transition Plan 09110 2 Date CUPA select referred data exchange methodology 07/08 3 Date Electronic Reporting Transition Plan & Grant Application submitted 11/23/10 (first submittal 4 Date Cal/EPA awards rant 4/11 5 Date transfer of existing data from UPA system to CERS complete Est. 6/12 6 Date authorized business electronic submission Began 06/09 (ongoing) 7 Date CERS data exchange operational: business data Est. 6/12 8 Date CERS data exchange operational: inspection &enforcement data Est. 1212 9 Date CUPA electronic reporting transition process complete (including PAs Est. 12/12 Milestones Tracked b CUPA Date 1 Upgrade to current version of EnvisionConnect 12/09 2 Transfer CUPA hardco documents to EnvisionConnect if applicable) ongoing 3 Data remediation complete 12/12 4 Business outreach and training complete 12/12 Page 10 of 12 20A-24 EXHIBIT D G10-UPA-89 12. SB 2286 Grant Application Process OC CUPA and PAs will individually submit the joint Electronic Reporting Transition Plan along with their individual grant applications to the Cal/EPA. Grant funding will be forwarded to the agencies stated on the individual grant applications i.e. the OC CUPA will receive the CUPA's portion and each individual PA will receive $20,000. . Orange County's Unified Program Contact List Agency CUPA/PA Program(s) Contact Name Phone Email Costa Mesa PA Hazardous Michelle (714) Fire Materials Rudaitis 327-7402 mrudaitis@ci.costa-mesa.ca.us Fountain PA Hazardous Adria (714) Valley Fire Materials Paesani 593-4430 Adria.paesani@fountainvalley.org Garden Grove PA Hazardous Jeff (714) Fire Materials Guyer 741-5636 jeffreyg@ci.garden-grove.ca.us Hazardous Fullerton Fire PA Materials, Underground Grant Minor (714) 738-5359 grantm@fullertonfre.org Storage Tank Huntington PA Hazardous Dave (714) Beach Fire Materials Smythe 536-5469 dsmythe@surfcity-hb.org La Habra PA Hazardous Materials Dan (323) (LACOFD) , CaIARP Zenarosa 890-4026 dzenarosa@fre.lacounty.org Newport PA Hazardous Jenny (949) Beach Fire Materials Sudo 644-3361 jsudo@nbfd.net Hazardous Materials, Orange Fire PA Underground Rena Davis (714) 288-2541 rdavis@cityoforange.org Storage Tank Orange Hazardous County Fire Auth it PA Materials, Robert Distaso (714) 573-6253 robertdistaso@ocfa.org or y CalARP Orange County Environmental CUPA HM, HW, UST, APST Pearl Boelter (714)433- 6010 pboelter@ochca.com Health CalARP Page 11 of 12 20A-25 EXHIBIT D G10-UPA-89 Hazardous Santa Ana F ire PA Materials, Underground Chris (714) cciraulo@santa-ana org Storage Ci aulo 647-5750 . Tank Page 12 of 12 20A-26 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: AGREEMENT WITH SOUTHERN CALIFORNIA EDISON TO FUND ENERGY EFFICIENCY STRATEGIC PLAN AND APPROPRIATION ADJUSTMENT RECOGNIZING FUNDS CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Authorize the City Manager and the Clerk of the Council to execute the attached agreement with Southern California Edison to receive an amount not to exceed $729,928 in funding to implement specific energy efficiency strategic plan activities, consistent with the California Energy Efficiency Strategic Plan, subject to nonsubstantive changes approved by the City Manager and City Attorney. 2. Approve an Appropriation Adjustment accepting Energy Efficiency Strategic Plan funds in revenue account (accounting unit 10117002-57010) and appropriate the funds to the consulting services expenditure account (accounting unit 10117601-62300). DISCUSSION The California Public Utilities Commission has authorized Southern California Edison (SCE) to provide funding for energy efficiency strategic plan activities in support of the California Energy Efficiency Strategic Plan (CEESP). Only those cities that currently have a partnership with SCE to deliver energy efficiency programs are eligible. The City was awarded a partnership with SCE for 2010-2012. City staff applied for this funding and received an initial approval in the amount of $729,928. Approved tasks include performing a Green House Gas (GHG) baseline inventory and energy analysis, an energy chapter for a Climate Action Plan, California Green Building and LEED certification training and an Energy and Sustainability Consultant to coordinate and assist in implementation of these tasks. This funding will quantify GHG baseline inventory data that will be used in developing a long term plan for achieving energy savings and reducing GHG emissions within the City. The data, analysis and forecasts identified will be presented to Council and the community for input in selecting the best energy efficiency strategies for implementation. The training and certification will educate staff 20B-1 Agreement with Southern California Edison For Energy Efficiency Plan Activities June 20, 2011 Page 2 and committee/commission members to move towards more energy efficient building practices. These added projects will require contracting with an Energy and Sustainability Consultant to manage these processes. Moreover, the program will show that Santa Ana has made a commitment to energy efficiency and being a leader in energy management practices. The statement of work is attached. The agreement will begin June 20, 2011 and will end December 31, 2012. This is the City's third allocation of funding from Edison with a focus on energy efficiency. Due to the success of the first two partnerships, these funds have been made available in this funding cycle. ENVIRONMENTAL IMPACT There is no environmental impact to approving the energy efficiency strategic plan activities agreement. However, the development of an energy chapter within a Climate Action Plan will provide a road map for implementation of energy efficiency programs that will enhance our environment by improving air quality, reducing pollution and conserving natural resources. FISCAL IMPACT SCE has approved a not-to-exceed allocation of $729,928 through December 31, 2012. The City is required to pay for implementation costs up front from the Administrative Services program (accounting unit 10117601-62300) and to be reimbursed by SCE (accounting unit 10117002- 57010). APPROVED AS TO FUNDS AND ACCOUNTS: Ra Godinez II Executive Direc r Public Works Agency RG/CLK Exhibit: Agreement ?. Francisco Gutierrez Executive Director Finance and Management Services Agency 20B-2 SOUTHERN CALIFORNIA EDISON CALIFORNIA ENERGY EFFICIENCY STRATEGIC PLAN IMPLEMENTATION CONTRACT Santa Ana Strategic Plan Activities THIS CONTRACT FOR SERVICES ("Contract") is by and between SOUTHERN CALIFORNIA EDISON ("SCE") and City of Santa Ana] ("Implementer"), which Contract shall be effective as of , 2011 ("Effective Date"). SCE and Implementer may be referred to herein individually as a "Party" and collectively as the "Parties. WHEREAS, on October 11 2009 in Decision 09-09-47, the California Public Utilities Commission ("Commission") authorized certain energy efficiency programs, including the Energy Leader Partnership Program for the 2010-12 program cycle; WHEREAS, in Decision 09-09-047, the Commission further authorized SCE to conduct a solicitation for certain energy efficiency strategic planning activities in connection with, and to support, its approved Energy Leader Partnership Programs and local governments generally; WHEREAS, SCE has selected the Implementer to implement the Santa Ana Strategic Plan Strategy (referred to hereinafter as the "Program"), promoting long-term energy efficiency and climate action activities; WHEREAS, the Implementer shall implement the Program for the benefit of certain participating governmental jurisdictions and their constituents; WHEREAS, the Parties desire to enter into an agreement that supersedes any and all previous agreements relating to the Strategic Plan Strategies approved for funding, and sets forth the terms and conditions under which the Program shall be implemented with respect to the Parties; and NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1.0 DEFINITIONS: All terms used in the singular will be deemed to include the plural, and vice versa. The words "herein," "hereto," and "hereunder" and words of similar import refer to this Contract as a whole, including all exhibits or other attachments to this Contract, as the same may from time to time be amended or supplemented, and not to any particular subdivision contained in this Contract, except as the context clearly requires otherwise. "Includes" or "including" when used herein is not intended to be exclusive, or to limit the generality of the preceding words, and means "including without limitation." The word "or" is not exclusive. 20B-3 1. 1. Business Day: The period from one midnight to the following midnight, excluding Saturdays, Sundays, and holidays. 1.2. Calendar Day: The period from one midnight to the following midnight, including Saturdays, Sundays, and holidays. Unless otherwise specified, all days in this Contract are Calendar Days. 1.3. Contract: This document issued by SCE to Implementer, as may be amended in writing as provided herein, which authorizes the Work, states the terms and conditions, and incorporates by reference the Statement of Work and any other referenced documents, if applicable, all of which form the agreement (Contract) between the Parties, with the following priority in the event of conflicting provisions: Amendments, from the most recent to the earliest; the Statement of Work; this Contract; and any other referenced documents. 1.4. Energy Efficiency Measure (or Measure): As used in the Commission's Energy Efficiency Policy Manual, Version 4, August 2008. 1.5. EM&V: Evaluation, Measurement and Verification of the Program pursuant to Commission requirements. 1.6. Implementer Budget: The approved maximum budget for funding the performance by Implementer of the Program, as set forth in the Statement of Work attached hereto as Exhibit A. 1.7. Incentive: As used in the Commission's Energy Efficiency Policy Manual, Version 4, August 2008. 1.8. Jobsite: An SCE facility at or for which the Work is performed 1.9. Participating Municipality: Those jurisdictions or member cities that: (i) are located in SCE's service territory; and (ii) have been selected by SCE and Implementer to participate in the Santa Ana Strategic Plan Strategy as set forth in the Statement of Work. 1.10. Program: The Santa Ana Strategic Plan Strategy program. 1.11. Public Goods Charge (PGC): The funds which makeup the Implementer Budget and which are collected from electric utility ratepayers pursuant to Section 381 of the California Public Utilities Code for public purposes programs, including energy efficiency programs approved by the Commission. 1.12. Statement of Work (SOW): A statement of the tasks to be performed by the Implementer, commercial terms including the Implementer Budget, reporting requirements and other necessary information, as set forth in Exhibit A and incorporated herein as part of this Contract, as such SOW may be modified from time to time as provided herein. 1.13. Subcontractor- An entity contracting directly or indirectly with a Party, or any Subcontractor thereof, to furnish services or materials as part of or directly related to such Party's Work obligations. 20B-4 1. 14. Work: The work authorized by SCE for the Program as set forth in this Contract and as more fully described in the SOW attached hereto as Exhibit A. 2. PURPOSE The Program is funded by California utility ratepayers and is administered by SCE under the auspices of the Commission. The purpose of this Contract is to authorize the expenditure of PGC funds to Implementer for services performed pursuant to the terms of this Contract and to set forth the terms and conditions under which the Program will be implemented. The work authorized pursuant to this Contract is not to be performed for profit. The Program was designed in furtherance of California's Long-Term Energy Efficiency Strategic Plan adopted by the Commission in 2008 ("Strategic Plan"). The Strategic Plan was formulated and developed through a collaborative effort among key stakeholders, including local governments, SCE and other California investor-owned utilities, and the Commission's Energy Division, and provides a strategic menu list of options that local governments can address during the 2010-2012 program cycle. The goal of the strategic plan menu is to present activities centered on energy efficiency and to address the "Big, Bold" strategies found in the Strategic Plan. The strategies are designed to embed and institutionalize energy efficiency in policies, programs, and processes within local governments. 3. AUTHORIZED WORK 3.1. Scone. The Work authorized under this Contract is set forth in the Statement of Work (Exhibit A) and shall be performed pursuant to the terms of this Contract. 3.2. Goals and Objectives. The Program is designed to meet the specific goals, objectives and milestones within the schedule and budget set forth in the Statement of Work (Exhibit A). 4. OBLIGATIONS OF PARTIES 4.1. General Obligations of Implementer. 4.1.1. Implementer will appoint a Program representative ("Implementer Representative") who will be the primary contact between SCE and Implementer, and who will be authorized to act on behalf of Implementer in carrying out its obligations under this Contract. Such appointment shall be communicated in writing to SCE's designated Contract Program Manager within ten (10) Business Days following execution of this Contract. 4.1.2. Implementer shall be responsible for achieving the goals and objectives and producing the deliverables as set forth in the Statement of Work. 20B-5 4.1.3. Implementer shall perform its Work obligations within the Implementer Budget and in conformance with the schedule associated with such Work as set forth in the Statement of Work, and shall furnish the required labor, equipment and material with the degree of skill, care and professionalism that is required by current professional standards. 4.1.4. Implementer shall be primarily responsible for coordinating the preparation of all Program-related documents, including all required reporting of Implementer pursuant to Section 9, and any reporting required by the CPUC. Implementer shall obtain the approval of SCE prior to usage of any SCE Program documents or other energy efficiency program documents or materials offered by SCE. 4.1.5. Upon reasonable request, Implementer shall submit to SCE all contracts, agreements or other requested documents with Implementer's Subcontractors performing Work for the Program. 4.2. General Obligations of SCE. 4.2.1. SCE will appoint a Program representative ("SCE Representative" or "Contract Program Manager" PCPM' ]) who will be the primary contact between SCE and Implementer, and who will be authorized to act on behalf of SCE in carrying out SCE's obligations under this Contract. 4.2.2. SCE shall administer the PGC funds authorized by the Commission for the Program in accordance with this Contract. 5. MARKETING 5.1. Marketing Materials. Implementer shall obtain the approval of SCE when developing Program marketing materials and prior to distribution, publication, circulation, or dissemination in any way to the public by Implementer or by a Participating Municipality. In addition, all advertising, marketing or otherwise printed or reproduced material (including website material) used to implement, refer to or is in anyway related to the Program must contain the respective name and logo of SCE and, at a minimum, the following language: "This Program is funded by California utility ratepayers and administered by Southern California Edison under the auspices of the California Public Utilities Commission." 5.2. Outreach. Implementer shall obtain the approval of SCE prior to implementation by Implementer or a Participating Municipality, of any public outreach activities or campaigns for the Program (exhibits, displays, public presentations, canvassing, etc.), and any marketing materials used in connection with such outreach activity shall comply with all requirements of Section 6 of this Contract. 20B-6 5.3. Use of SCE Name. Implementer must receive prior review and written approval from SCE for the use of SCE's name or logo on any marketing or other Program materials. Implementer shall allow five (5) Business Days for SCE review and approval. If Implementer has not received a response from SCE within the five- (5-) Business-Day period, then it shall be deemed that SCE has approved such use. 5.4. Use of Commission's Name. No Party may use the name of the Commission on marketing materials for the Program without prior written approval from the Commission staff. In order to obtain this written approval, SCE must send a copy of the planned materials to the Commission requesting approval to use the Commission's name and/or logo. Notwithstanding the foregoing, the Parties shall disclose their source of funding for the Program by stating prominently on marketing materials that the Program is "funded by California ratepayers under the auspices of the California Public Utilities Commission." 6. CONTROL OF WORK 6.1. Compliance with Work Schedule: Implementer shall perform the Work in compliance with the Work schedule set forth in the Statement of Work. If performance of the Work (including any task, or achievement of any goals or objectives outlined in the Statement of Work) is delayed beyond the schedule for any reason, or if Implementer is aware that such Work will be delayed for any reason, Implementer shall notify the SCE Representative within thirty (30) Business Days in writing. SCE may, in its sole discretion, accept the delay, reduce the Work and Implementer Budget accordingly, or terminate the Contract, within sixty (60) Business Days following receipt of such written notice of delay from Implementer. Failure of Implementer to notify SCE in writing of such delay in the Work schedule within sixty (60) Business Days shall constitute a breach of this Contract and SCE may exercise any of the remedies set forth in this Section or in Section 23. 6.2. Changes to Work: 6.2.1 Changes. SCE may at any time make a written request for changes to the Work including additions, reductions, and changes to any or all of the Work. Such changes, if accepted by Implementer (which acceptance shall not be unreasonably withheld), shall be evidenced by a written change order signed by both parties. The Implementer Budget and Work schedule shall be equitably adjusted, if required, to account for such changes and shall be set forth in a change order. 6.2.2 SCE Authority to Shift Funds or Modify: Notwithstanding Section 6.2.1, SCE, may reallocate funds among the programs in its energy efficiency portfolio, or modify in any way the program, funding or Work. In the event that SCE elects to change or modify the funding, program or Work, Implementer shall be notified in writing and by a change order to this Contract. Such notification of change or modification will specify any changes to the Implementer's Scope of Work and may increase, decrease, or terminate overall program funding, However, such change or modification shall provide that Implementer shall in all cases be paid for Work performed and 20B-7 expenses incurred or committed in accordance with the Statement of Work through the effective date of the change order. 6.3. Stop Work Procedures: SCE may suspend Implementer's Work at any time upon notice to Implementer for convenience or for cause, including, without limitation, program funding, program implementation or management, safety concerns, fraud or complaints. Implementer shall stop performing the Work immediately upon receipt of such notice. Implementer shall resume the Work only upon receiving written notice from SCE that it may do so. Implementer shall in all cases (other than default) be paid for Work performed and expenses incurred or committed in accordance with the Statement of Work through the effective date of the stop work notice. 6.4. Key Personnel: Implementer shall deliver to SCE a list of Implementer's key personnel prior to commencing the Work. Implementer shall notify SCE of any changes to such list. The Implementer shall designate a person who shall coordinate all Work and communicate regularly for the Implementer with the SCE Representative. Implementer shall replace any key personnel requested by the SCE Representative for legal cause. 6.5. Subcontractors: Any Work subcontracted by Implementer shall be identified as such in the Contract and any Work subcontracted to an Implementer's affiliated entity shall be similarly specifically identified. For any subcontracted Work not identified in the approved Statement of Work, the prior written approval of the SCE Representative shall be required for each subcontractor, the activities to be performed, and the related charges. Implementer shall at all times be responsible for the Work, and for the acts and omissions of subcontractors and persons directly or indirectly employed by them. Implementer shall be solely responsible and liable for ensuring that the terms and conditions of all subcontracts are in accordance with this Contract, including but not limited to all invoicing requirements. Any review or approval by SCE of a subcontractor or a subcontract shall not relieve Implementer of its obligations hereunder. 6.6. Additional Instructions: Implementer shall comply only with verbal or written instructions for performance of Work received from CPM appointed (or replaced from time to time) pursuant to Sec 4.2, above. Implementer shall promptly reconfirm such instructions with the SCE Representative (CPM) and request that a corresponding change order be issued as necessary. 6.7. Emergencies: In an emergency endangering life or property, Implementer shall: a) perform Work or such other services or work as is necessary to meet the emergency; and b) immediately notify SCE. 6.8. Drafts: Draft copies of required reports shall be submitted to the SCE Representative for review for contractual compliance, satisfaction of SCE needs and good professional practices, comments, and approval, prior to the due date of such reports. SCE shall review and return such drafts within fifteen (15) Business Days after delivery to SCE. 20B-8 6.9. Inspection: SCE authorized representatives shall have the right to contact Implementer at reasonable times during regular business hours and to inspect, as appropriate, Implementer's performance of the Work. 6.10. Uncontrollable Forces: Implementer shall not be liable for delay in the Work schedule or inability to perform the Work due to any cause beyond its reasonable control, such as strike, flood, fire, lightning, epidemic, quarantine restriction, war, sabotage, act of a public enemy, earthquake, or critical material unavailability; provided that Implementer promptly notifies SCE in writing of the nature, cause, date of commencement, and expected impact of the event and has exercised due diligence in proceeding to meet the Work schedule. SCE shall extend the Work schedule for an equitable period due to such causes without any change in the Contract price. 7. FITNESS FOR DUTY/JOBSITE ACCESS REQUIREMENTS (IF APPLICABLE): 7.1 Fitness for Duty: 7.1.1 Implementer and its Subcontractor personnel on a Jobsite (defined in Section 1.8) (i) Shall report for work in a manner fit to do their job; (ii) Shall not be under the influence of or in possession of any alcoholic beverages or of any controlled substance (except a controlled substance as prescribed by a physician for such person so long as the performance or safety of the Work is not affected thereby); and (iii) Shall not have been convicted of any serious criminal offense which, by its nature, may have a discernible adverse impact on the business or reputation of SCE. 7.1.2 Inspection Searches by SCE authorized representatives may be made of lockers, storage areas, vehicles, persons or personal effects on SCE owned, or leased property at various times without prior announcement. Such facility inspections may be conducted using detection dog teams to search work areas and other common areas in order to detect evidence of unlawful drug use or the presence of pyrotechnics, explosives, firearms, weapons, or facsimiles thereof, alcoholic beverages and illegal drugs ("Prohibited Items"). Prohibited Items must not be brought onto, or kept on, SCE property. 7.1.3 Compliance: Implementer shall advise its employees of the requirement of this Section 7.1 ("Fitness for Duty Requirements") before they enter on the Jobsite and shall immediately remove from the Jobsite any employee determined to be in violation of these requirements. Implementer shall impose these requirements on its Subcontractors. SCE may cancel the Contract if Implementer violates these Fitness for Duty Requirements. 7.2. JOBSITE ACCESS REQUIREMENTS 7.2.1 Notification of Convictions: During application for Jobsite access, and/or during the Work, Implementer shall immediately notify SCE whenever Implementer becomes aware of evidence that any Implementer's or its 20B-9 Subcontractors' employee, who has, or will have, Jobsite access, has been convicted of a serious criminal offense. 7.2.2 Visitor Badge Requirement All visitors to a particular Jobsite must comply with that Jobsite's visitor access requirements. 7.3. Sexual Harassment: SCE supports a diverse work force and prohibits unlawful employment discrimination and harassment of every kind, including sexual harassment, in accordance with state and federal laws. Whenever present on SCE property or facilities, Implementer shall require its employees, Subcontractors, agents to comply with all applicable federal and state statutes, acts, regulations, codes and standards prohibiting conduct that might reasonably be construed as violating state or federal equal opportunity laws, including conduct such as making sexually suggestive jokes or remarks, touching, assaulting, making gestures of a sexual or suggestive nature, and impeding or blocking any SCE employee's, subcontractor's or agent's movement. 8. DOUBLE DIPPING PROHIBITED 8.1 If, in performing its respective Work obligations, Implementer engages contractors or vendors who provide incentives or services to SCE customers, Implementer shall take all appropriate steps to minimize double-dipping. As applicable: Prior to providing incentives or services to any eligible customer, Implementer shall require its subcontractors to obtain a signed form from such eligible customer stating that: 8.1.1. Such eligible customer has not received incentives or services for the same measure from any other SCE program or from another utility, state, or local program. 8.1.2. Such eligible customer agrees not to apply for or receive Incentives or services for the same measure from any other SCE program or from another utility, state, or local program. Each Party shall keep its customer-signed forms for at least five (5) years after the expiration or termination of this Contract. No Party shall knowingly provide an incentive to a Participating Municipality, or make payment to a subcontractor who is receiving compensation for the same product or service either through another ratepayer funded program, or through any other funding source. 9. REPORTING/EM&V 9.1 Re ortin . The Parties shall implement all reporting requirements set forth in the Statement of Work, including Appendix A and B of the Statement of Work. The reporting requirements set forth in such Appendix B will be amended when issued by the Commission for the 2010-2012 program cycle, and may be amended from time to 20B-10 time thereafter at the discretion of the Commission. Upon issuance by the Commission of revised reporting requirements for 2010-12 related to the Program, such Commission- approved reporting requirements shall replace the reporting requirements set forth in Appendix B of the Statement of Work in their entirety upon written notice to the Implementer, which notice shall include a copy of the revised Appendix B. 9.2 EM&V. The evaluators will be asked to prepare a Program logic model based upon the written proposal and on interviews with the Implementer. Research issues will be defined in collaboration with SCE program managers and may include questions such as: How well were program activities documented? How effectively was the proposed plan implemented? What could be done to improve the plan's effectiveness? Who are the decision- makers, and what information did they use to make their decisions? 10. PAYMENTS/COMMERCIAL TERMS 10.1 Implementer Budget. The Implementer Budget is set forth in the Statement of Work. Implementer shall not be entitled to compensation in excess of the Implementer Budget without a change order issued and signed by SCE. 10.2 Billing. Work will be performed on a time and material basis and subject to the following general provisions: 10.2.1 General Provisions. 10.2.1.1 All charges shall be directly identifiable to, and required for the Work. 10.2.1.2 Any charges for overtime shall require the prior written approval of the SCE Representative. Overtime rates shall be authorized and charged only for non-exempt personnel. 10.2.1.3 Implementer shall complete the Work within the amount authorized by the Contract and in accordance with the Work schedule. Implementer shall notify SCE's procurement agent responsible for the Contract and the SCE Representative at such time that it becomes reasonably apparent that the forecasted cumulative charges will exceed any amounts authorized by the Contract (whether by task, total amount of Contract, or both). Implementer shall not proceed with or be reimbursed for any Work performed, either beyond the effective period of the Contract, or exceeding the authorized amounts of the Contract, without a change order. 10.2.2 Labor Related Costs Under Time and Material Basis. Implementer shall invoice SCE at the fixed hourly rates for the applicable labor categories stated in the Contract for time spent directly engaged in performance of the Work by Implementer's employees. Such fixed hourly rates shall be inclusive of all of Implementer's overhead costs (including all taxes and insurance), administrative and general fees, and profit. 20B-11 10.2.3 Invoices. Implementer shall submit monthly invoices for the costs incurred in the prior month and shall include a breakdown for each milestone and deliverable identified in the Statement of Work. Each invoice shall include: 10.2.3.1 Status a. SCE's Contract number. b. Task description. c. Cost incurred to date. d. Current monthly amount invoiced. e. Cumulative amount invoiced to date. Current monthly and cumulative amounts authorized, and justification for all variances between amounts authorized and incurred or invoiced. f. Statement of deliverables for the period. 10.2.3.2 Labor a. Dates worked. b. Personnel name, work hours and classification. c. Personnel Fixed rate. d. Description of Work performed by task. e. Completion of Appendix "C" of the Statement of Work. 10.2.3.3 Reimbursable expenses (pre-approved by SCE a. Material costs. b. Subcontract costs. c. Out-of-pocket expenses. d. Travel costs. 10.2.4 Expenses. All reimbursable expenses shall be authorized by SCE in writing rior to the expenditure. Any expenses not so approved by SCE shall not be reimbursed. All expenses shall be charged at cost, without mark-up, and shall be necessary, reasonable and ordinary. 10.2.4.1 Material Costs. Material costs shall be substantiated with an invoice stating the unit price, quantity, and other information as required to identify the Work. 10.2.4.2 Subcontract Costs. Subcontracted Work shall be charged at the rates actually paid by Implementer, not to exceed the rates set forth in the Contract for Work by the Implementer. Implementer shall provide Subcontractor invoices for any Implementer invoice that includes Subcontractor costs. 20B-12 10.2.4.3 Out-of-Pocket expenses. Miscellaneous costs such as telephone communications, routine copying, electronic mail, facsimiles, computer time and in-house technical software are deemed to be included in Implementer's overhead costs will not be reimbursed. 10.2.4.4 Travel Costs. Approved air travel costs shall in no case exceed economy or coach fare, whichever is reasonably available. Automobile travel from Implementer's office to the Jobsite and to SCE's general offices shall be paid at the fixed mileage rate stated in the Contract, or if not stated, at SCE's rate for SCE employees. 10.2.5 Final Invoice. The final invoice shall be marked "FINAL" and must be received by SCE within sixty (60) calendar days after completion of the Work. SCE shall not be liable for payment of any late invoices that are received by SCE beyond the sixty (60) days. 10.2.6 Invoice Deficiencies. In the event SCE determines that Implementer's (or any of its subcontractors) invoices do not meet the invoicing requirements of the Contract, SCE will notify Implementer of the deficiencies and Implementer shall correct such deficiencies promptly. 10.2.7 Payment by SCE. SCE shall pay each correct invoice, submitted in accordance with the terms of the Contract, within thirty (30) days of SCE CPM's receipt of the correct invoice. 10.2.8 Records. Implementer shall maintain, for a period of five (5) years after final payment, complete accounting records (and supporting documentation) of all invoiced costs. SCE reserves the right to audit and copy any applicable documents related to the Work hours, all costs and expenses invoiced, and task completion records. Each invoice shall list the number of the Contract covered by such invoice. 11. COMPLIANCE WITH LAW; PERMITS, STATUTES AND CODES 11.1 The Implementer shall comply with, and shall ensure that the Work shall comply with the applicable requirements of all statutes, acts, ordinances, regulations, codes, and standards of federal, state, and local governments, and all agencies thereof. 11.2 Implementer shall conform to the applicable employment practices requirements of (Presidential) Executive Order 11246 of September 24, 1965, as amended, and applicable regulations promulgated thereunder. 11.3 Implementer Policy for Web Accessibility. To the extent required by law, if an Implementer currently hosts and manages a web site, on behalf of SCE, that contains public, customer-facing pages, content and/or transactions that is not already web accessible and compliant with Web Content Accessibility Guidelines version 2.0, Level AA (WCAG 2.0, Level AA), the Implementer must make updates to the web site pages, content and/or transactions to meet web accessibility compliance. As such, Implementers who plan to or currently host and maintain web sites that include web pages, content and/or transactions for SCE shall 20B-13 agree to the following terms regarding current and/or planned web sites unless Implementer is not required to do so by law: 11.3.1 All public facing web pages, transactions and content, including multi-media and interactive content and forms targeted for SCE customers, shall be made web accessible and meet the standards defined in WCAG 2.0, Level AA. Multi-media and interactive content within the scope of these terms include, and are not limited to, image files, video files, audio files, Flash movies and applications, Flex applications, Silverlight applications, functionality developed with AJAX and/or any other interactive technology not otherwise specified but utilized to serve up information and/or transactions on the web. 11.3.2 Attachments that are posted on a web page for download must also be made web accessible. Attachments include, and are not limited to, Adobe Acrobat PDF files, Microsoft Office files, or any other type of file intended for a customer to download and review offline. An exception may be allowed only if the content contained within the download is already offered on the web site in a web accessible format, and the downloadable attachment is duplicative to the content or transaction displayed on web pages. Such exceptions must be documented and requested by the Implementer, agreed upon by both Implementer and SCE, and granted by SCE prior to declaring any attachment exempt from web accessibility compliance. 11.3.3 Implementers must include compliance with WCAG 2.0, Level AA guidelines as part of the base system requirements for any work completed for SCE. Implementers are responsible for testing proposed web pages, content and/or transactions, and confirming compliance with WCAG 2.0 Level AA guidelines. Proof of testing may be documented in the form of test plans, test scripts, test results, and/or web accessibility audits (performed by the Implementer itself or an external party). SCE may, at any time, request for such documentation to confirm that testing was completed and that the published web page, content and/or transaction satisfies web accessibility compliance with WCAG 2.0, Level AA. 11.3.4 Upon deployment (i.e. publication for external consumption) of web accessible pages, content and/or transactions, Implementer must, to the best of its abilities, maintain compliance with WCAG 2.0, Level AA for as long as the web pages, content and/or transactions are made publicly available on the third-party hosted web site: 11.3.4.1 If Implementer must edit, enhance, modify, or update web pages, content and/or transactions, Implementer agrees to (re-)test for web accessibility compliance, and document test results to prove that said content continues to maintain web accessibility compliance. SCE may, at any time, request for such documentation to confirm that testing was completed and that the published web page, content and/or transaction satisfies web accessibility compliance with WCAG 2.0, Level AA. 20B-14 11.3.4.2 On a periodic basis, SCE may perform audits on the third- party hosted site to assess web accessibility compliance. Audits may be completed by manual evaluation or through the use of an automated testing tool. If SCE identifies any content that was previously communicated as being compliant but is subsequently found to be in violation, 1) SCE will identify, in writing, the specific web page, content or transaction form where the violation is found, the specific WCAG 2.0, Level AA guideline that has been violated, and what the specific violation is determined to be; 2) Implementer agrees to correct the item(s) in violation on its own accord, with no cost impact to SCE, in a timeframe that both SCE and Implementer agree to, not to exceed 30 calendar days. 11.3.4.3 SCE requires an annual web accessibility audit of SCE's web properties by an independent auditor. Any part or all pages of a third-party hosted web site may be included in the annual audit. If the independent auditor identifies any web page, content or transaction that was previously communicated as being compliant but is subsequently found to be in violation, 1) Auditor will identify, in writing, the specific web page content or transaction form where the violation is found, the specific WCAG 2.0, Level AA guideline that has been violated, and what the specific violation is determined to be; 2) SCE shall provide Implementer with audit report, 3) Implementer agrees to correct the item(s) in violation on its own accord, with no cost impact to SCE, in a timeframe that both SCE and Implementer agree to, not to exceed 30 calendar days. 11.3.5 If an existing third-party hosted web site utilizes a commercial off- the-shelf third-party software package to deliver any type of functionality that is customer-facing, the Implementer must work with the software manufacturer to determine whether the software produces web-accessible pages, content and/or transactions. 11.3.5.1 If the software manufacturer is unable to provide a product that produces web pages, content and/or transactions that meet WCAG 2.0, Level AA guidelines, the Implementer shall request the software manufacturer to produce such limitations in writing (i.e. in the form of product specifications, formal response from software manufacturer's technical support) and subsequently provide such documentation to SCE. 11.3.5.2 If the software manufacturer is unable to provide a product that produces web pages, content and/or transactions that meet WCAG 2.0, Level AA guidelines, the Implementer agrees to pursue, in good faith, an alternate product that can provide equivalent functionality and satisfy WCAG 2.0, Level AA web accessibility compliance requirements. 20B-15 11.3.6 If an Implementer plans to utilize a commercial off-the-shelf third- party software package to deliver any type of functionality that is customer- facing for a future web site, the Implementer agrees to pursue, in good faith, a product that can meet the desired business functionality requirements and WCAG 2.0, Level AA web accessibility compliance requirements. 11.3.6.1 If the Implementer is unable to locate a product that meets both business functionality requirements and web accessibility compliance requirements, the Implementer must communicate such limitations, in writing, and justify the software selection choice. Implementer shall also request the software manufacturer of desired product to produce such limitations in writing (i.e. in the form of product specifications, formal response from software manufacturer's technical support) and subsequently provide such documentation to SCE. SCE shall reserve final decision-making authority to approve the usage of such software to deliver desired business functionality.] 12. INDEMNITY/CONSEQUENTIAL DAMAGES 12.1 Indemnity. Implementer shall indemnify, defend and hold harmless SCE, and its respective successors, assigns, affiliates, subsidiaries, current and future parent companies, officers, directors, agents, and employees from and against any and all expenses, claims, losses, damages, liabilities, or actions in respect thereof (including reasonable attorneys' fees) to the extent arising from (a) any act or omission of Implementer, its subcontractors, or any of their respective employees, officers and agents, relating to this Contract, or (b) Implementer's breach of this Contract or of any representation or warranty of Implementer contained in this Contract. 12.2 NO CONSEQUENTIAL DAMAGES. EXCEPT AS PROVIDED IN SECTION 6.3, ABOVE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF OR UNDER-UTILIZATION OF LABOR OR FACILITIES, LOSS OF REVENUE OR ANTICIPATED PROFITS, COST OF REPLACEMENT POWER OR CLAIMS FROM CUSTOMERS, RESULTING FROM A PARTY'S PERFORMANCE OR NONPERFORMANCE OF THE OBLIGATIONS HEREUNDER, OR IN THE EVENT OF SUSPENSION OF THE WORK OR TERMINATION OF THIS CONTRACT. 13. DEVELOPMENTS/PROPRIETARY RIGHTS 13.1 Ownership. The Parties acknowledge and agree that SCE, on behalf of its customers, shall own all deliverables, data, reports, information, manuals, computer programs, works of authorship, designs or improvements of equipment, tools or processes (collectively "Developments") or other written, recorded, photographic or visual materials, intellectual property, inventions and trade secrets, and all deliverables produced in the performance of this Contract, whether proprietary or nonproprietary provided, however, that Developments do not include equipment or 20B-16 infrastructure purchased for research, development, education or demonstration related to energy efficiency. Although Implementer shall retain no ownership, interest, or title in the Developments except as may otherwise be provided in this Contract, it will have a permanent royalty-free, nonexclusive, irrevocable license to use such Developments. 13.2 Risk of Loss. Implementer shall have risk of loss of or damage to the undelivered Developments until completion of the Work. 13.3 Infringement. 13.3.1 Implementer represents and warrants that the Work performed by Implementer and/or its subcontractors shall be free of any claim of trade secret, trade mark, trade name, copyright, or patent infringement or other violations of any proprietary rights of any person. Implementer shall defend, indemnify and hold harmless, SCE, its officers, agents, employees, successors, and assigns from and against any and all liability, damages, losses, claims, demands, actions, causes of action, and costs including reasonable attorney's fees and expenses arising out of any claim, demand, or charge that use of the Work or Developments infringe upon any trade secret, trademark, trade name, copyright, patent, or other intellectual property rights. 14. INSURANCE 14.1 Implementer will maintain, the following insurance coverage or self insurance coverage, at all times during the term of this Contract, with companies having an A.M. Best rating of "A-, VII" or better, or equivalent: 14.1.1 Workers Compensation: statutory minimum. 14.1.2 Employer's Liability coverage: $1 million minimum. 14.1.3 Commercial General Liability: $2 million minimum per occurrence/$4 million minimum aggregate. Such insurances shall acknowledge SCE, its officers, agents and employees as additional insureds, be primary for all purposes, contain standard cross-liability or severability of interest provisions, and waive all rights of subrogation against SCE its officers, agents, employees and other contractors or subcontractors. 14.1.4 Commercial or Business Auto: $1 million minimum. Such insurance shall acknowledge SCE, its officers, agents and employees as additional insureds and be primary for all purposes. 14.1.5 Professional Liability (if applicable) : $1 million minimum. 20B-17 14.2 Evidence of Insurance. Upon request at any time during the term of this Contract, Implementer shall provide evidence that its insurance policies, as provided in this section are in full force and effect, and provide the coverage and limits of insurance that Implementer has represented and warranted herein to maintain at all times during the term of this Contract. 14.3 Self-Insurance. If Implementer is self-insured, it shall upon request forward documentation to SCE that demonstrates to SCE's satisfaction that Implementer self- insures as a matter of normal business practice before commencing the Work. SCE will accept reasonable proof of self-insurance comparable to the above requirements. 14.4 Notice of Claims. Implementer shall immediately report to SCE, and promptly thereafter confirm in writing, the occurrence of any injury, loss or damage incurred by Implementer or its subcontractors or their receipt of notice or knowledge of any claim by a third party of any occurrence that might give rise to such a claim. 14.5 Insurance Indemnification. If Implementer fails to comply with any of the provisions of this Section, "INSURANCE", or any insurance requirements in the Contract, Implementer shall, at its own cost, defend, indemnify, and hold harmless SCE, its affiliates and their officers, directors, agents, employees, assigns, and successors in interest, from and against any and all liability, damages, losses, claims, demands, actions, causes of action, costs, including attorney's fees and expenses, or any of them, arising out of or in connection with the performance or non-performance of the Work by Implementer or any subcontractor, or their officers, directors, employees or agents to the extent that SCE would have been protected had Implementer complied with all of the provisions of this section. 15. CUSTOMER CONFIDENTIALITY REQUIREMENTS Non-Disclosure. Although it is not anticipated that Implementer will receive any Confidential Customer Information as a result of this Contract, the following provisions will apply in the event such a release of Confidential Customer Information occurs. 15.1 Implementer, its employees, agents and Subcontractors shall not disclose any Confidential Customer Information (defined below) to any third party during the term of this Contract or after its completion, without Implementer having obtained the prior written consent of SCE, except as provided by law, lawful court order or subpoena and provided Implementer gives SCE advance written notice of such order or subpoena. Notwithstanding any other provisions in the Contract, Implementer's nondisclosure obligations with respect to SCE Confidential Customer Information shall survive any expiration or termination of the Contract in perpetuity. 15.2 Confidential Customer Information. "Confidential Customer Information" includes, but is not limited to, an SCE customer's name, address, telephone number, account number and all billing and usage information, as well as any SCE customer's information that is marked "confidential". If Implementer is uncertain whether any information should be considered Confidential Customer Information, Implementer shall contact SCE prior to disclosing the customer information. 20B-18 15.3 Non-Disclosure Ayreement. Prior to any approved disclosure of Confidential Customer Information, SCE may require Implementer to enter into a nondisclosure agreement. 15.4 Commission Proceeding's. This provision does not prohibit Implementer from disclosing non- confidential information concerning the Work to the Commission in any Commission proceeding, or any Commission- sanctioned meeting or proceeding or other public forum. 15.5 Return of Confidential Information. Confidential Customer Information (including all copies, backups and abstracts thereof) provided to Implementer by SCE, and any and all documents and materials containing such Confidential Customer Information or produced by Implementer based on such Confidential Customer Information (including all copies, backups and abstracts thereof), during the performance of this Contract shall be returned upon written request by SCE. 15.6 Remedies. The Parties acknowledge that Confidential Customer Information is valuable and unique, and that damages would be an inadequate remedy for breach of this Section 15 and the obligations of the Parties are specifically enforceable. Accordingly, the Parties agree that in the event of a breach or threatened breach of this Section 15 by Implementer, SCE shall be entitled to seek and obtain an injunction preventing such breach, without the necessity of proving damages or posting any bond. Any such relief shall be in addition to, and not in lieu of, money damages or any other available legal or equitable remedy. 16. SECURITY INCIDENT PROVISIONS 16.1 SCE Personal Information. 16.1.1 Definition. SCE Personal Information is defined as any information in the possession or under the control of SCE or any of its affiliates, or that is furnished or made available by SCE or any of its affiliates to Implementer in the performance of this agreement, that identifies, relates to, describes, or is capable of being associated with, any particular individual (whether SCE employee, customer, or otherwise), including, but not limited to, his or her name, signature, Social Security number, physical characteristics or description, address, telephone number, passport number, driver's license or state identification card number, insurance policy number, medical information or health insurance information, education, employment, employment history, bank account number, credit card number, debit card number, or any other financial information. 16.1.2 Nondisclosure of SCE Personal Information. Due to the nature of services provided to implement this Project, it is not intended that Implementer will have access to SCE Personal Information. However, Implementer, its employees, agents and subcontractors shall not disclose any SCE Personal Information (defined above) to any third party during the term of this Contract or after its completion, without Implementer having obtained the prior written consent of SCE, except as provided by law, lawful court order or subpoena and provided Implementer gives SCE advance written notice of such order or subpoena. 20B-19 16.1.3 Notwithstanding any other provision in the Contract or Contract, Implementer's nondisclosure obligations with respect to SCE Personal Information shall survive any expiration or termination of the Contract in perpetuity. Upon the expiration or termination of the Contract, or at any time upon request of SCE, all SCE Personal Information in any medium, including all copies or parts thereof, shall be returned to SCE or destroyed, except that Implementer may retain one copy of any materials prepared by Implementer containing or reflecting SCE Personal Information if necessary for compliance with its internal record-keeping or quality assurance requirements only. If destroyed, such destruction shall be certified in writing by Implementer. 16.2 Security Incidents. This section shall apply only to the extent Implementer is in possession or control of SCE Personal Information or SCE Confidential Customer Information. 16.2.1 Security Incident Response Plan. Implementer shall develop, implement and maintain a written plan and process for preventing, detecting, identifying, reporting, tracking and remediating Security Incidents ("Security Incident Response Plan" or "SIRP"). A Security Incident shall mean an event or set of circumstances that results in a reasonable expectation of a compromise of the security, confidentiality or integrity of SCE data or information under the Implementer's control. Examples of Security Incidents include are but not limited to: (i) Security breaches to Implementer's network perimeter or to internal applications resulting in potential compromise of SCE data or information. (ii) Loss of physical devices or media, e.g., laptops, portable media, paper files, etc., containing SCE data. (iii) Lapses in, or degradation of, Implementer's security controls, methods, processes or procedures. (iv) The unauthorized disclosure of SCE data or information. (v) Any and all incidents adversely affecting SCE's or its affiliates', as the case may be, information assets. 16.2.2 SIRP General Requirements. Implementer's SIRP will include Security Incident handling and response procedures, specific contacts in an event of a Security Incident, the contacts' roles and responsibilities, and their plans to notify SCE or its affiliates, as the case may be, concerning the Security Incident. The SIRP must be based on and meet all requirements of the following: 16.2.2.1 Federal and applicable state laws, statutes and regulations concerning the custody, care and integrity of data and information. In particular and without limitation, Implementer shall ensure that its SIRP and its business practices in performing work on behalf of SCE comply with California's Information Practices Act of 1977, California Civil Code §§ 1798.80 et seq., which addresses among other things the provision of notice to SCE or its affiliates, as the case may be, of any breach of the security of SCE Personal Information if it is reasonably believed to have been acquired by an unauthorized person. 20B-20 16.2.2.2 SCE information management and information security policies and procedures as made available to Implementer from time to time ("SCE Policies and Procedures"), including without limitation ITS-445 "Standards for Information Security Response - Third Parties." 16.2.3 Implementer Response to Security Incident. The following will apply in the event of a Security Incident: 16.2.3.1 Implementer will submit a Security Incident Report (SIR) to SCE's or its affiliates', as the case may be, IT Help Desk or IT Operations Center ("ITOC") in accordance with SCE Policies and Procedures including ITS-445, and applicable law. The SIR shall be given promptly upon discovery of an SI and in any event not more than four (4) hours after discovery of a suspected SI, or sooner if required by law, statute or regulation. If additional time is required under the circumstances of the SI to ascertain the nature or extent of the SI, to stabilize the Computing System or to ensure the integrity of SCE's or its affiliates', as the case may be, data and information, then Implementer shall promptly notify SCE or its affiliates, as the case may be, in writing of the existence of an SI initially, and keep SCE or its affiliates, as the case may be, informed of developments and new information. 16.2.3.2 At SCE's or its affiliates', as the case may be, request, Implementer will meet with SCE or its affiliates, as the case may be, to discuss the cause of the Security Incident, Implementer's response, lessons learned and potential improvements to Implementer's system security processes and procedures. 16.2.4 Compromise of SCE Personal Information. 16.2.4.1 Additional SIRP Requirements for Personal Information. With respect to any SCE Personal Information in the possession or under the control of Implementer, to protect SCE Personal Information from unauthorized access, destruction, use, modification or disclosure, Implementer shall: (a) Develop, implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect SCE Personal Information from unauthorized access, destruction, use, modification, or disclosure. (b) Develop, implement and maintain data privacy and security programs with administrative, technical, and physical safeguards appropriate to the size and complexity of the Implementer's business and the nature and scope of Implementer's activities to protect SCE Personal Information from unauthorized access, destruction, use, modification, or disclosure. 16.2.4.2 Notice Requirements for Personal Information. In the event of a Security Incident where SCE Personal Information was, or is reasonably believed to have been, acquired by an unauthorized person, Implementer shall immediately provide the SIR required by Section 16.2.3. Such SIR shall state that SCE Personal Information may be involved, and shall describe the suspected nature of such SCE Personal Information. 20B-21 16.2.5 SIRP Review. At SCE's or its affiliates', as the case may be, request, Implementer shall review the SIRP at least annually with SCE's or its affiliates', as the case may be, designated representatives to identify updates, changes or potential improvements; and a process to document these changes within ninety (90) days of any such changes. 16.2.6 Document Retention. Implementer shall maintain all documentation relating to Security Incidents, whether in written or electronic form, including without limitation, their identification, processing and resolution, for two (2) years after final resolution of the Security Incident, including the final resolution of all claims arising out of the Security Incident. 16.2.7 Indemnification for Security Incidents. Implementer shall, at its own cost, defend, indemnify and hold harmless SCE, its affiliates, officers, agents, employees, assigns and successors in interest, from and against any and all liability, damages, losses, claims, demands, actions, causes of action, costs, including attorney's fees and expense, fines or penalties, or any of them, resulting from any Security Incident. Any limitation of liability that may be in the Contract or Contract shall not apply to this Section 16.2.7. Implementer shall ensure that its employees, agents and contractors that perform services for Provider in connection with the Contract are informed of and comply with these Security Incident provisions. 17. CONFLICT OF INTEREST Implementer affirms that, to the best of its knowledge, there is no actual or potential conflict of interest between Implementer, its employees or their families, subcontractors, or business interests, and SCE. Implementer shall not hire any SCE employee or employee's spouse to perform any part of the Work. Implementer further affirms that it has set forth in its proposal for the Work: (a) all situations in which Implementer or an affiliated entity of Implementer has been or currently is an SCE Implementer, contractor, or employee; (b) all situations in which Implementer or an affiliated entity of Implementer has been or currently is in a joint venture arrangement or licensing relationship with SCE (other than an Energy Leader Partnership); and (c) any affiliated entity to which Implementer intends to subcontract any part of the Work. Implementer shall update such affirmations to SCE during performance of the Work within thirty (30) days following any change thereto. 18. TIME IS OF THE ESSENCE Implementer hereby acknowledges that time is of the essence in performing its obligations under this Contract. Failure to comply with milestones and goals stated in this Contract, including but not limited to those set forth in Exhibit A of this Contract, may constitute a material breach of this Contract, resulting in its termination, payments being withheld, Implementer Budgets being reduced or adjusted, funding redirected by SCE to other programs or partners, or other Program modifications as determined by SCE or as directed by the Commission. All Work must be performed and completed by October 15, 2012. 20B-22 19.IMPLEMENTER DISPUTES Any unresolved disputes between Implementer and SCE shall be referred to an SCE management representative and an officer of Implementer for resolution. Pending resolution, Implementer shall continue to perform the Work as directed by the SCE Representative, and SCE shall continue to make payments for the undisputed items. 20. RIGHT TO AUDIT SCE and the Commission shall have the right to audit Implementer at any time during the term of this Contract and for five (5) years thereafter. An audit may include, but is not limited to, a review of Implementer's financial records relating to the Work, program implementation procedures, program marketing material, program implementation documents, energy efficiency savings provided by the program, funds spent to date, information relating to the substantiation of program expenditures, incentives paid to date, customers given incentives to date, lists of employees and respective duties related to the Program, lists of subcontractors and their respective responsibilities or service provided. SCE may, in its sole discretion and at anytime, request information or data relating to the program, Work or this Contract, and Implementer shall provide such information in the format utilized by Implementer and within a reasonable time after Implementer's receipt of request by SCE. Nothing in this provision shall limit the type, format or frequency of such requests by SCE. 21. MODIFICATIONS Except as otherwise provided in this Contract, changes to this Contract shall be only be valid through a written amendment/change order to this Contract signed by both Parties. 22. TERM This Contract shall be effective as of the Effective Date (defined in the preamble to this Contract). Unless otherwise terminated in accordance with the provisions of Section 23 below, this Contract shall terminate at midnight November 30, 2012; provided however, that all Work and services shall be completed by the dates specified in the Statement of Work. 23. TERMINATION OR CANCELLATION 23.1 CPUC Authority To Modify: The Work and program under which the Work is authorized herein shall at all times be subject to the discretion of the California Public Utilities Commission (CPUC), including, but not limited to, review and modifications, or excusing performance hereunder, or termination as the CPUC may direct from time to time in the reasonable exercise of its jurisdiction. 20B-23 23.2 Termination for Convenience: Notwithstanding any other provisions of the Contract, SCE shall have the unilateral right to terminate the Work, or any portion thereof, or the Contract by the issuance of a change order, which shall not require Implementer's acceptance. Subject to the provisions of Section 23.3 and 23.4 hereof, SCE shall pay Implementer the termination charges set forth in the Contract pro-rated to the effective date of termination. If termination charges are not set forth in the Contract, Implementer shall in all cases be paid for Work performed and expenses incurred or committed in accordance with the Statement of Work through the effective date of the change order. SCE, at its option, may take possession of any Material paid for by SCE. The provisions of this Section 23.2 shall be Implementer's sole remedy resulting from such termination. 23.3 Cancellation for Default. In the event of: (a) the breach of or failure of Implementer to perform any of its material obligations under the Contract including, but not limited to, failure to complete the Work on time or failure to make satisfactory progress or persistent failure to pay labor and material claims; (b) the failure of Implementer to give SCE adequate assurance of performance within ten working days after written demand by SCE therefore when reasonable grounds for insecurity arise; or (c) the insolvency, bankruptcy or receivership of Implementer, then SCE may (a) withhold payment of any further monies which may be due Implementer until such condition is cured, and/or (b) declare Implementer to be in default of the Contract and notify Implementer in writing of such declaration and shall be entitled to cancel the Contract in whole or in part effective immediately upon written notice thereof. Any cancellation pursuant to this Section 23.3 shall not be deemed a "termination" for the purposes of Section 23.2 hereof. In the event of such cancellation, Implementer shall immediately stop Work and surrender to SCE's possession, complete and incomplete Documentation and other Information, Material, control and use of the Jobsite and all Implementer and SCE- owned equipment, facilities, and all other items which SCE may deem necessary or appropriate until the Work is completed. Implementer shall assign to SCE the outstanding subcontracts and Contracts as requested by the SCE Representative for such completion. SCE shall have the right to provide, or contract for, all additional labor, Material, and any other items which it may deem necessary to complete the Work. If the total of all expenses incurred by SCE to complete the Work is greater than the sum which would have been payable under the Contract if Implementer had completed the Work, the difference shall constitute a claim against Implementer. Such claim shall be due and payable within ten working days after presentation of the claim. Additionally, SCE shall have the right to pursue other remedies afforded by law. 23.4 Delivery of Materials: Without limiting the effect of the provisions of Sections 15 and 23.3 hereof, upon receipt of notice of termination or cancellation under this Section 23, Implementer shall immediately deliver to SCE all complete and incomplete Documentation, and all Material. If, at the time of termination or cancellation further sums are due Implementer, Implementer shall not be entitled to the sums until all Documentation and all Material required to be delivered to SCE are delivered. 20B-24 23.5 Cessation of Work: Upon receipt of notice of termination or cancellation for any reason, Implementer shall promptly cease all Work, as set forth in Section 6.3, above, except for additional Work that SCE may, in its discretion, request Implementer to perform. Additional Work shall be performed in compliance with the terms of the Contract. 24. WRITTEN NOTICES Any written notice, demand or request required or authorized in connection with this Contract, shall be deemed properly given if delivered in person or sent by facsimile, nationally recognized overnight courier, or first class mail, postage prepaid, to the address specified below, or to another address specified in writing by a Party as follows: Implementer City of Santa Ana Raul Godinez II Executive Director, Public Works Agency 20 Civic Center Plaza, M-21 Santa Ana, CA 92701 Telefacsimile 714-647-5622 SCE: Southern California Edison Jim Hodge 1515 Walnut Grove Ave 2C3-03 Rosemead, CA 91770 Notices shall be deemed received (a) if personally or hand-delivered, upon the date of delivery to the address of the person to receive such notice if delivered before 5:00 p.m. PST, or otherwise on the Business Day following personal delivery; (b) if mailed, three (3) Business Days after the date the notice is postmarked; (c) if by facsimile, upon electronic confirmation of transmission, followed by telephone notification of transmission by the noticing Party; or (d) if by overnight courier, on the Business Day following delivery to the overnight courier within the time limits set by that courier for next-day delivery. 25. INDEPENDENT CONTRACTOR Implementer is and will perform the work as an independent contractor for SCE. Nothing in this Contract shall be construed so as to render Implementer an employee, agent, representative, joint venturer or partner of SCE for purposes of carrying out this Contract. Implementer shall not enter into any contracts, agreements or other obligations with any other parties which bind, or are intended to bind, SCE without first receiving express written authorization from SCE. SCE and Implementer shall each maintain sole and exclusive control over its respective personnel and operations. 26. BENEFIT TO SCE CUSTOMERS Ratepayer funded programs must directly benefit customers in the service territory from which the funds are collected. The energy efficiency program implemented pursuant to this Contract is funded in whole or in part by funds collected from SCE's customers for public purpose programs, and therefore must directly benefit SCE's customers. PGC Funds are defined as those certain funds collected from electric utility ratepayers pursuant to Section 381 of the California Public Utilities Code for public purpose programs, including energy efficiency programs approved by the CPUC. 20B-25 27. NONDISCRIMINATION CLAUSE No Party shall unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability, mental disability, medical condition, age, marital status, and denial of family care leave. Each Party shall ensure that the evaluation and treatment of its employees and applicants for employment are free from such discrimination and harassment, and shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12990 (a)-(f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a)-(f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Each Party represents and warrants that it shall include the substance of the nondiscrimination and compliance provisions of this clause in all subcontracts for its Work obligations. 28 NONWAIVER CLAUSE None of the provisions of this Contract shall be considered waived by either Party unless such waiver is specifically stated in writing. 29. ASSIGNMENT No Party shall assign this Contract or any part or interest thereof, without the prior written consent of the other Party, and any assignment without such consent shall be void and of no effect. Notwithstanding the foregoing, if SCE is requested or required by the Commission to assign its rights and/or delegate its duties hereunder, in whole or in part, such assignment or delegation shall not require Implementer's consent and SCE shall be released from all obligations hereunder arising after the effective date of such assignment, both as principal and as surety. 30. SEVERABILITY In the event that any of the terms, covenants or conditions of this Contract, or the application of any such term, covenant or condition, shall be held invalid as to any person or circumstance by any court, regulatory agency, or other regulatory body having jurisdiction, all other terms, covenants, or conditions of this Contract and their application shall not be affected thereby, but shall remain in full force and effect, unless a court, regulatory agency, or other regulatory body holds that the provisions are not separable from all other provisions of this Contract. 31. GOVERNING LAW; VENUE This Contract shall be interpreted, governed, and construed under the laws of the State of California as if executed and to be performed wholly within the State of California. Any 20B-26 action brought to enforce or interpret this Contract shall be filed in Los Angeles County, California. 32. SECTION HEADINGS Section headings appearing in this Contract are for convenience only and shall not be construed as interpretations of text. 33. SURVIVAL Notwithstanding completion or termination of this Contract, the Parties shall continue to be bound by the provisions of this Contract which by their nature survive such completion or termination. 34. ATTORNEYS' FEES Except as otherwise provided herein, in the event of any legal action or other proceeding between the Parties arising out of this Contract or the transactions contemplated herein, each Party in such legal action or proceeding shall bear its own costs and expenses incurred therein, including reasonable attorneys' fees. 35. PRIOR WORK. In the event that Implementer performs any Work authorized by SCE but prior to the execution of this Contract, then such prior Work shall be considered performed subject to the provisions of this Contract. 36. ENTIRE AGREEMENT This Contract (including all of the exhibits and attachments hereto which are incorporated into this Contract by reference) contains the entire agreement and understanding between the Parties with respect to the Program and merges and supersedes all prior agreements, representations and discussions pertaining to the subject matter of this Contract. 37. COUNTERPARTS. This Contract may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall be deemed to be one and the same instrument. [SIGNATURE PAGE FOLLOWS] 20B-27 SIGNATURE PAGE IN WITNESS WHEREOF, the Parties hereto have caused this Contract to be executed by their duly authorized representatives. IMPLEMENTER ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: PAUL GODINEZ, II Executive Director Public Works Agency SCE: SOUTHERN CALIFORNIA EDISON By: Erwin Furukawa Title: Senior Vice President, Customer Service 20B-28 EXHIBIT A STATEMENT OF WORK (with Appendices A-C) 20B-29 City of Santa Ana SOW v4.9 TABLE OF CONTENTS SECTION 1: PROGRAM DESCRIPTION ............................ SECTION 2: OBJECTIVES ..............................................................................................................3 SECTION 3: GENERAL REQUIREMENTS ....................................................................................... ..3 SECTION 4: SCHEDULE OR TASKS DELAYS ................................................................................ ..4 SECTION 5: STATEMENT OF WORK ............................................................................................ ..4 Task 1 - Program Ramp-up ......................................... 4 ..................................................................... Task 2 - Strategic Plan Goal 4 ..................................•••• 5 Task 2.A - Develop the Baseline GHG Inventory Including an Energy Savings Analysis of the Baseline GHG for Both the Community and Municipal Operations ............................................. 5 Task 2.13 - Develop and Adopt an Energy Efficiency Chapter in a Climate Action Plan for Both the Community and Municipal Operations .................................................................................... 7 Task 3 - Strategic Plan Goal 5 ........................................................................................................... 9 Task 3.A - Provide California Green Building Code and LEED Certification Training ............ 9 Task 4 - Invoicing and Reporting ................. 10 Task 5 - Ramp-Down and Shut-Down Program .............................................................................. 12 Task 6 - Submit Final Program Report ............................................................................................ 12 SECTION 6: PAYMENT ............................................................................................................. .13 Table 1: Implementer T&M Fully Burdened Hourly Rates ................................................... .14 Table 2: Implementers Budget Breakdown ............................................................................ .16 SECTION 7: PERFORMANCE INDICATORS ................................................................................... .16 Appendix A: Monthly Invoicing and Reporting Requirements .................................................. 16 Appendix B: Regulatory Reporting Requirements ...................................................................... 19 Appendix C: Billing Schedule .................................................................................................... 24 TABLES Table 1: Implementer T&M Fully Burdened Hourly Rate ................................................................. 14 Table 2: Implementers Budget Breakdown ......................................................................................... 16 20B-30 City of Santa Ana SOW v4.9 Statement of Work PROGRAM IMPLEMENTER: CITY OF SANTA ANA PROGRAM NAME: SANTA ANA'S STRATEGIC PLAN STRATEGY(S) PROGRAM BUDGET: $729,928 SECTION 1: PROGRAM DESCRIPTION Pursuant to Decision 09-09-047, the CPUC authorized Southern California Edison ("SCE") to conduct strategic plan activities centered on energy efficiency and addressing the "Big, Bold" strategies and related local government goals found in the CPUC's California's Long-Term Energy Efficiency Strategic Plan ("CEESP")'. Based on this authorization, SCE conducted a solicitation seeking to fund activities that would lead to long-term, sustainable changes as opposed to supporting staffing resources or short-term initiatives that would cease to exist once the funding had ended. One of the selected programs in this solicitation is Santa Ana's Strategic Plan Strategy(s) (the "Program"). The Program will be implemented by the City of Santa Ana and will contain the following components: (1) the baseline Greenhouse Gas ("GHG") inventory including an energy savings analysis of the baseline GHG for both the Community and Municipal Operations, (2) an energy efficiency chapter in the climate action plan for both the Community and Municipal Operations, and (3) California Green Building Code and LEED Certification training. The Implementer will utilize the assistance of an energy sustainability Subcontractor to oversee the Program and a technical Subcontractor to prepare the baseline GHG inventory, including an energy savings analysis of the baseline GHG, and the energy efficiency chapter in the climate action plan. The Implementer will perform the tasks required in order to demonstrate how the Implementer can meet the objectives of the CEESP while utilizing the following CEESP Goals: Strategic Plan Goal 4: Local governments lead their communities with the innovative programs for energy efficiency, sustainability and climate change. • Strategic Plan Goal 5: Local government energy efficiency expertise becomes widespread and typical. 'Please go to w « californiaener;?yefliciencv.com for a copy of the CEESP. Southern California Edison Company Page: 1 20B-31 City of Santa Ana SOW v4.9 A. Defined Terms: Capitalized terms not otherwise defined in this Statement of Work ("SOW") will have the meaning ascribed to them in the Contract, which is attached to the SOW and incorporated herein by reference. 1. Business Day: The period from one midnight to the following midnight, excluding Saturdays, Sundays, and holidays. 2. Calendar Day: The period from one midnight to the following midnight, including Saturdays, Sundays, and holidays. 3. California Green Building Code: California Green Building Code is part I I of the Title 24 California Building Regulations, and focuses on green building design and construction practices. 4. Change Order: Document SCE issues to Implementer and, unless otherwise provided in the Contract, Implementer accepts, and which changes or modifies the terms of the Contract. 5. Community Operations: All residential, commercial, industrial and municipal facilities, and all residents living or working within the boundaries of the City of Santa Ana. 6. Contract: Document issued by SCE to facilitate payment to the Implementer for the Work described herein and the terms and conditions that will govern the Work to be performed. 7. Contract Program Manager or CPM: The SCE Representative who will manage the Program. 8. CPUC: The California Public Utilities Commission. 9. Implementer: The City of Santa Ana. 10. LEED: Leadership in Energy and Environmental Design. 11. Municipal Operations: Implementer owned and/ or managed facilities. 12. Performance Indicators: Specific, measureable, actionable, realistic and time-specific requirements that will directly and measurably contribute to SCE's business goals for the Agreement. 13. SCE Representative: The CPM or such other representative authorized by SCE to manage this Program. Southern California Edison Company Page: 2 20B-32 City of Santa Ana SOW v4.9 14. Invoice Reporting Tool or IR Tool: Invoice reporting tool used by SCE. 15. Subcontractor: An entity contracting directly or indirectly with Implementer to furnish services or materials as part of or directly related to Implementer's Work. 16. Title 24: California Code of Regulations (CCR), Title 24, also known as the California Building Standards Code (composed of 12 parts). Title 24, Part 6 sets forth California's energy efficiency standards for residential and nonresidential buildings and was established in 1978 in response to a legislative mandate to reduce California's energy consumption. The standards are updated periodically to allow consideration and possible incorporation of new energy efficiency technologies and methods. Title 24, Part 6 is the focus of the Work under this Agreement. 17. Work: Any and all obligations of Implementer to be performed pursuant to and during the term of the Contract, any revision to the Contract, or a subsequent Contract or Contract Addendum incorporating this Statement of Work. The Work will include, but may not be limited to, the tasks described in Section 5 of this Statement of Work. SECTION 2: OBJECTIVES Through the Program, the Implementer will: • Establish the baseline GHG inventory, including an energy savings analysis of the baseline GHG for both the Community and Municipal Operations; • Develop an energy efficiency chapter in a climate action plan for both the Community and Municipal Operations; and • Provide California Green Building Code, and LEED certification training to city staff and members of legislative and advisory committees. SECTION 3: GENERAL REQUIREMENTS A. Notice to Proceed ("NTP"): Implementer may start Work only upon the occurrence of each of the following: 1. Implementer receives the Contract; 2. Implementer provides to the CPM a signed acknowledgement form of the Contract; and 3. CPM provides to Implementer written approval to proceed. B. Goals: The primary goal of the Program is to achieve the Objectives and Performance Indicators set forth herein, in the time frame herein. SCE will regularly review the Southern California Edison Company Page: 3 20B-33 City of Santa Ana SOW v4.9 implementation schedule (milestones, delivery dates, etc.) contained herein against actual Work performed by Implementer to assess the Program's progress. SECTION 4: SCHEDULE OR TASKS DELAYS If the schedule or a task (including achievement of goals as outlined herein) is delayed for any reason, Implementer has the responsibility to notify the CPM in writing within thirty (30) Business Days. SCE may accept the delay, allow time for the remedy of the delay, reduce both the budget and the Work, or terminate the Contract within thirty (30) Business Days following receipt of any written notice of delay from Implementer. SECTION S: STATEMENT OF WORK The Work for each of the CEESP Goals and associated tasks are described herein: Task 1- Program Ramp-up A. Attend Program Kick-off Meeting: Implementer's representative(s) will attend a half-day Program kick-off meeting with the CPM to discuss Program logistics, marketing coordination, evaluation, monitoring and verification coordination, invoicing requirements, scope of Work, and any remaining Contract issues at an SCE -designated location. To avoid duplication and unnecessary expenditures, CPM will provide information and guidance regarding currently available resources (for example: available training programs, templates, reach building codes etc.) to be used by the Implementer in assessing pre-existing resources. This will enable the Implementer to focus efforts in each Task on any gaps that may exist. Implementer's representative will attend the Program kick-off meeting at a time and place to be determined by SCE after the issuance of the NTP. B. Program Data, Invoicing, and Reporting Tool Training: The Implementer will attend a half-day workshop (Webcast) that provides training on the use of SCE's IR Tool. The Implementer will attend IR Tool training at a time and place to be determined by SCE after the issuance of the NTP. Deliverable(s) Due Date(s) I. Attend a half-day Program Kick-off Determined by SCE after the issuance of Meeting the NTP. 2. Attend a half-day IR Tool training session Determined by SCE after the issuance of and ongoing IR Tool update training. the NTP or notification of IR Tool ro ram changes. 3. Delivery flat files (first draft) to CPM for IR Tool training plus 10 Calendar Days. Southern California Edison Company Page: 4 20B-34 City of Santa Ana SOW v4.9 review and approval. 4. Delivery of flat files (final draft) to CPM for review and approval. IR Tool training plus 10 Calendar Days. Task 2 - Strategic Plan Goal 4 Strategic Plan Goal 4: Local governments lead their communities with innovative programs for energy efficiency, sustainability and climate change. 1. Task 2 (Strategic Plan Strategy 4.1): "Adopt a climate action plan, energy action plan or adopt energy efficient language into another policy document, such as a General Plan, to reduce community greenhouse gas emissions with a focus on energy efficiency. The climate action plan will be available to other jurisdictions." 2. Task 2A (Strategic Plan Task 4.1.4): "Conduct the energy efficiency savings analysis for an annual Greenhouse Gas inventory for the City/ County." 3. Task 2B (Strategic Plan Task 4.1.2): "Customize CAP with energy efficiency language and data." Task 2.A - Develop the Baseline Greenhouse Gas Inventory including an Energy Savings Analysis of the Baseline GHG for Both the Community and Municipal Operations As part of the Program, Implementer will use both the local government operations protocol and a community-wide protocol to help develop the baseline GHG inventory. Implementer will also develop an energy savings analysis based on the baseline GHG inventory for both the Community and Municipal Operations. Implementer will provide all materials developed under this task to CPM for review and comment. 1. Report on Status of Implementer or Subcontractor to Support the Task: Implementer will submit monthly reports to the CPM on the status of hiring the energy and sustainability Subcontractor and the technical Subcontractor to conduct the baseline GHG inventory, including an energy savings analysis for the baseline GHG; develop the energy efficiency chapter of the climate action plan; and coordinate LEED certification and California Green Building Code training. 2. Assessment and Planning Report for Conducting the Baseline GHG Inventory Including the Energy Savings Analysis for the Baseline GHG for Both the Community and Municipal Operations: Implementer will provide a plan to the CPM regarding the general method and describe the quantitative methodology, data collection effort, results to be reported and any software programs to be used to develop the baseline GHG inventory, including the energy savings analysis. Within 2 Calendar Days after Southern California Edison Company Page: 5 20B-35 City of Santa Ana SOW v4.9 the issuance of the NTP, SCE will provide the Implementer an assessment and planning report template to be used by the Implementer in developing this Task 2A. Draft Report on the Results of the Baseline GHG Inventory Including the Energy Savings Analysis for the Baseline GHG for Both the Community and Municipal Operations: Using the methodology reviewed by the CPM, Implementer will conduct the baseline GHG inventory including an energy savings analysis for the baseline GHG for both the Community and Municipal Operations, and provide the CPM a draft report with source files and back-up data. 4. Final Report on the Results of the Baseline GHG Inventory Including the Energy Savings Analysis for the Baseline GHG for Both the Community and Municipal Operations: Implementer will provide the CPM with the presentation documents submitted to the city council and a summary of the discussion with the city council on the baseline GHG inventory results. Implementer will also provide the CPM the final report for both the Community and Municipal operations. Report on Dissemination of the Baseline GHG Inventory Including the Energy Savings Analysis of the Baseline GHG to the Community: Implementer will provide the CPM copies of materials that were disseminated to the Community and a description of the dissemination method. 6. Monthly Status Report: Implementer will provide the CPM a monthly report of all on- going activities including a list of monthly achievements and outstanding issues. Task 2.A - Deliverables Due Date(s) - 1. Report on status of Implementer or Monthly to be completed by Subcontractor to support the Task September 30, 2011 with Invoicing Requirements (see Task 4) 2. Assessment and planning report for conducting No later than September 30, 2011 with the baseline GHG inventory including the energy Invoicing Requirements (see Task 4) savings analysis for the baseline GHG for both the Community and Municipal Operations 3. Draft report on the results of the baseline GHG No later than January 30, 2012 with inventory including the energy savings analysis Invoicing Requirements (see Task 4) for the baseline GHG for both the Community and Municipal Operations 4. Final report on the results of the baseline GHG No later than February 28, 2012 with inventory including the energy savings analysis Invoicing Requirements (see Task 4) for the baseline GHG for both the Community Southern California Edison Company Page: 6 20B-36 City of Santa Ana SOW v4.9 and Municipal Operations 5. Report on dissemination of the baseline GHG inventory and energy savings analysis for the No later than February 28, 2012 with Invoicing Requirements (see Task 4) baseline GHG to the Community 6. Monthly status report Monthly with Invoicing Requirements (see Task 4) Task 2.B - Develop and Adopt an Energy Efficiency Chapter in a Climate Action Plan for Both the Community and Municipal Operations Implementer will develop an energy efficiency chapter in a climate action plan including proposed GHG reductions, energy efficiency-related GHG mitigation measures, and the resulting energy savings from meeting the proposed GHG reductions. The energy efficiency chapter will also include the energy efficiency component of the GHG forecast. Implementer will provide all materials developed under this task to CPM for review and comment. 1. Assessment and Planning Report for the Development of an Energy Efficiency Chapter in a Climate Action Plan for Both the Community and Municipal Operations: The Implementer will provide the CPM with a draft template for the energy efficiency chapter in a climate action plan and a plan to develop the energy efficiency chapter. The plan will include a description of the methods to forecast the energy efficiency component of GHG forecast including the calculations of reductions in GHG emissions and electricity consumption. The plan will also include a preliminary list of existing energy efficiency related GHG mitigation programs and potential new energy efficiency related GHG mitigation measures that will be evaluated in the development of the energy efficiency chapter of the climate action plan. Within two (2) Calendar Days after issuance of the NTP, SCE will provide the Implementer an assessment and planning report template to be used by the Implementer in developing this Task 2B. 2. Draft Energy Efficiency Chapter for the Climate Action Plan for the Community and Municipal Operations: After the template for the energy efficiency chapter in the climate action plan has been finalized, Implementer will develop the draft energy efficiency chapter and the GHG forecast for the energy efficiency component. Implementer will also develop estimated reductions in GHG emissions and estimated energy savings from implementing existing energy efficiency related GHG mitigation programs and for all potential new energy efficiency related GHG mitigation measures. Implementer will include in the draft energy efficiency chapter initial recommendations and strategies for reducing electricity consumption and GHG emissions. Implementer will provide the draft energy efficiency chapter for the Community and Municipal Operations to the CPM. Southern California Edison Company Page: 7 20B-37 City of Santa Ana SOW v4.9 3. Report on Stakeholder Input: Implementer will facilitate multi-stakeholder meetings in determining a GHG emissions reduction target, proposed energy efficiency-related GHG mitigation measures and the resulting energy savings. Implementer will describe how stakeholder input was used to refine the energy chapter in the climate action plan. For all multi-stakeholder meetings, Implementer will also provide the CPM meeting date, location and contact information of meeting attendees. 4. Final Energy Efficiency Chapter for the Climate Action Plan for the Community and Municipal Operations: Implementer will provide the CPM with the final energy efficiency chapter, the energy efficiency component of the final GHG forecast and the recommendations to reduce electricity consumption and GHG emissions that were accepted by the city council. 5. Monitoring Framework for the Energy Efficiency Chapter in the Climate Action Plan Implementation: Implementer will develop a framework for monitoring the implementation of recommendations to reduce electricity consumption and GHG emissions. Implementer will provide the monitoring framework to the CPM. 6. Monthly Status Report: Implementer will provide the CPM a monthly report of all on- going activities including a list of monthly achievements and outstanding issues. Task 2 B - Deliverable(s) Due Date(s) I . Assessment and planning report for the No later than March 31, 2012 with development of an energy efficiency chapter in Invoicing Requirements (see Task 4) the climate action plan for the Community and Municipal Operations 2. Draft energy efficiency chapter for the climate No later than June 30, 2012 with action plan for the Community and Municipal Invoicing Requirements (see Task 4) Operations 3. Report on stakeholder input To be completed by September 30, 2012 with Invoicing Requirements ( see Task 4) 4. Final energy efficiency chapter for the climate No later than September 30, 2012 with action plan for the Community and Municipal Invoicing Requirements ( see Task 4) Operations 5. Monitoring Framework for the energy efficiency No later than September 30, 2012 with chapter in a climate action plan Invoicing Requirements (see Task 4) 6. Monthly status report Monthly with Invoicing Requirements (see Task 4) Southern California Edison Company Page: 8 20B-38 City of Santa Ana SOW v4.9 Task 3 - Strategic Plan Goal 5 Strategic Plan Goal S: Local go>>ernment energy efficiency expertise becomes widespread and typical. 1. Task 3.A. (Strategic Plan Task 5.1): Provide California Green Building Code, and LEED certification training to city staff, legislative and advisory bodies, the building industry, and other external partners who are stakeholders. Task 3.A - Provide California Green Building Code and LEED Certification Training Implementer will provide California Green Building Code and LEED Certification training to Implementer's staff and members of legislative and advisory groups. Implementer will also purchase all materials for the Green Building Code and LEED certification training including building code related books. Implementer will provide all materials developed under this task to CPM for review and comment. Assessment and Planning Report for California Green Building Code and LEED Certification Training: Implementer will assess available training for LEED certification and the California Green Building Code. The assessment may include training provided by US Green Building Council, California Building Officials, SCE, Everblue Training Institute, CALGreen, and other training providers. Implementer will consider course content, cost, training schedule and location in deciding the training offerings. The curriculum will include: 1) Training on the California Green Building Codes, and 2) LEED certification training. Exam costs, labor costs for staff to attend the training, and the costs of all training materials are included in the budget for this Contract. Implementer will also provide an implementation plan including a list of targeted attendees, quarterly schedule of training events, and a promotional plan to market the training to Implementer's staff, legislative and advisory groups. Within 2 Calendar Days after issuance of the NTP, SCE will provide the Implementer an assessment and planning report template to be used by the Implementer in developing this Task 3A. 2. Implementation Report: Implementer will provide LEED certification training to a minimum of 100 people and California Green Building Code Training to a minimum of 50 people. Implementer will provide an implementation report including a list of completed training events, list of attendees, copies of training materials, and list of attendees that became LEED certified. Southern California Edison Company Page: 9 20B-39 City of Santa Ana SOW v4.9 3. Report on Best Practices and Lessons Learned: Implementer will document changes in Implementer's policies and procedures and building practices resulting from attending the building training courses. 4. Monthly Status Report: Implementer will provide a monthly report of all on-going activities including a list of monthly achievements and outstanding issues. Task 3.A- Deliverable(s) Due Date(s) 1. Assessment and planning report for No Later than December 31, 2011 with California Green Building Code and LEED Invoicing Requirements (see Task 4) certification training 2. Provide quarterly schedule of training courses to Quarterly starting March 31, 2012 with CPM Invoicing Requirements (see Task 4) 3. Implementation report Monthly starting the month after the first training month with Invoicing Requirements (see Task 4). 4. Report on best practices and lessons learned Quarterly starting March 31, 2012 with Invoicing Requirements (see Task 4) 5. Monthly status report Monthly with Invoicing Requirements (see Task 4). Task 4 - Invoicing and Reporting A. IR Tool: After SCE provides Implementer training on the IR Tool, the Implementer will utilize the IR Tool, which serves three primary purposes: 1. Enables Implementer to provide SCE with required Program information; 2. Provides CPM the capability to access Implementer's Program information and create reports; and 3. Provides miscellaneous reporting support for SCE's internal and CPUC reporting requirements. B. Submission of Information into IR Tool: Implementer will update the IR Tool on a monthly basis in accordance with requirements delineated in Appendix A (Monthly Southern California Edison Company Page: 10 20B-40 City of Santa Ana SOW v4.9 Invoicing and Reporting Requirements). Implementer will work collaboratively with the CPM in tailoring the flat files for the Program. C. Monthly Invoicing and Reporting: All required monthly invoice reports can be generated via the IR Tool. Implementer will be responsible for implementing, adhering to, and the submission of, the items as described in Appendix A (Monthly Invoicing and Reporting Requirements) of this Statement of Work. The invoice reporting requirements may be amended from time to time, at which time SCE will notify Implementer of the changes and issue a new Appendix A. Implementer will implement these modifications in a timely manner and future invoice documentation will reflect them. D. SCE's Regulatory Reporting: Implementer will implement, adhere to, and submit the items as described in Appendix B (Regulatory Reporting Requirements), as SCE requests. The CPUC reporting requirements may be amended from time to time, at which time SCE will notify Implementer of the changes and issue a new Appendix B. Implementer will implement these modifications in a timely manner and future invoice documentation will reflect them. Implementer acknowledges that SCE may, in its sole discretion, require Implementer to provide such other reports or documentation that SCE deems appropriate or necessary ("Ad Hoc Reports"). Implementer will comply with any request for such Ad Hoc Report(s) within a reasonable time or, if applicable, within the time requested by SCE. Deliverable(s) Due Date(s) 1. Prepare and submit monthly invoices and Monthly, by the 15th Calendar Day for supporting documentation to SCE. Work completed the preceding month 2. Prepare and submit monthly regulatory Monthly, by the 15th Calendar Day for report, including flat files and monthly Work completed the preceding month deliverable work sheet. 3. Prepare and submit quarterly regulatory Quarterly, by the 30`" Calendar Day for reports (Appendix B) to SCE Work completed the preceding quarter, through October 31, 2012 4. Prepare and submit Ad Hoc Reports As SCE requests and/or requires 5. Prepare and submit final invoice and By November 15, 2012 for final invoice Program Report to SCE and by October 31, 2012 for final Southern California Edison Company Page: 11 20B-41 City of Santa Ana SOW v4.9 Program Report Task 5 - Ramp-Down and Shut-Down Program A. Program Ramp-Down: If there is a gap in Program services after October 15, 2012, Implementer will provide SCE with a ramp-down plan for the Program. To ensure complete Program shut-down, the Program ramp-down period will commence no later than September 1, 2012. Implementer's plan for Program ramp-down will take into consideration that all services described in Tasks 1, 2, 3 and 5 must be completed by October 15, 2012. Implementer will resolve all outstanding Program issues and begin preparation of the Final Report beginning September 1, 2012. B. Program Shut-Down: Implementer will provide to the CPM a plan with procedures on shutting down the Program. All Program operations will be completely shut down after the last day of the Contract effective period. Deliverable(s) Due Date(s) 1. Submit detailed ramp-down and shut-down plans and schedules to CPM for review and approval No later than September 1, 2012 2. Resolve outstanding Program issues and begin preparation of Final Report No later than September 1, 2012 3. Begin Program ramp-down No later than September 1, 2012 4. Complete all services - Tasks 1, 2, 3, and 5 No later than October 15, 2012 Task 6 - Submit Final Program Report After Program shut-down and follow-up issues have been completed and resolved, the Implementer will submit a final report that reviews the Program's progress and accomplishment (the "Final Report"). At a minimum, the Final Report will cover: A. Goal Attainment: Documentation that substantiates the Implementer's achievement of the objectives, Program Performance Indicators, and deliverables for the Contract. Southern California Edison Company Page: 12 20B-42 City of Santa Ana SOW v4.9 B. Program Achievement Discussion: Were the goals/objectives met? Were the Program Performance Indicators achieved? Complete Program achievement for each Program Performance Indicator and deliverable indicating the measureable Program accomplishments. C. Program Challenges: What were the significant obstacles that were overcome? D. Lessons Learned: Could a Program of this scale have accomplished more? E. Program Improvement Recommendations: What improvements could have been made to help the Program be even more successful? F. Program Next Step: Should the Program a) be mainstreamed, b) continued to be developed or, c) ended. Deliverables Due Date(s) 1. Submit draft Final Report for SCE review No later than October 15, 2012 and approval 2. Submit revised Final Report for SCE review The earlier of October 31, 2012 or within 2 and approval weeks of SCE comments SECTION 6: PAYMENT A. Payment Terms: The Implementer Budget will utilize 100% time and material based payments ("T&M payments"). Payment of Implementer's budget will be based on receipt by SCE of the deliverables set forth herein. All payments will be in accordance with the Billing Rates set forth in Table 1, below and Appendix C (Billing Schedule). All payments will be subject to the Contract and consistent with the budget breakdown set forth herein. Payment will be based on meeting deliverables and due dates set forth in Section 5 of this Statement of Work.) B. Implementer Budget Limit: Under no event will Implementer exceed the total amount budgeted by SCE for this Contract of $729,928. Southern California Edison Company Page: 13 20B-43 City of Santa Ana SOW v4.9 Table 1: Implementer T&M Fully Burdened Hourly Rates: Fully Burdened Hourly Rate for years 2010-2012' % of Total Implementer Job Function Sluour _ Hours Energy and Sustainability Consultant (to be determined through an RFP process) 250.00 N/A Exec. Director of planning & building 117.95 1.6 Building safety manager 92.93 1.3 Sr. Combination bldg. Inspector 67.29 1.8 Combination building inspector 69.83 2.9 Plumbing inspector 56.93 0.8 Sr. Electrical inspector 64.16 0.9 Sr. Electrical systems specialist 60.87 0.8 Sr. Plumbing/mech. Sys. Specialist 66.25 .9 Deputy building official/ plan check 111.04 1.5 Sr. Plan check engineer 87.87 1.2 Associate plan check engineer 84.31 1.2 Assistant plan check engineer II 78.07 1.1 Permit supervisor 59.50 0.8 Permit technician 49.21 1.4 Planning manager 111.90 1.6 Principal planner 94.52 2.6 Senior planner 76.09 2.1 Associate planner 72.40 4.7 Management analyst 42.06 0.6 Management aide 45.77 0.6 Exec Director of Public Works Agency 129.08 1.8 Admin serv manager 101.60 1.4 City engineer 116.09 1.6 Deputy city engineer 104.04 1.4 Projects manager 71.02 3.6 Public works maintenance manager 105.47 1.5 Assistant engineer ii 78.83 15.8 Senior civil engineer 96.23 15.0 Principal civil engineer 110.19 5.5 Construction inspector I 57.47 2.3 Southern California Edison Company Page: 14 20B-44 City of Santa Ana SOW v4.9 Construction inspector Il 51.13 0.7 Associate ark and landscape planner 68.11 .9 Assistant traffic operations engineer 72.39 1.0 Assist. Dir of community development 119.18 1.7 Community development district mgr. 82.08 2.2 De ut city manager for development 151.78 2.1 Economic development m r 114.19 1.6 Property rehabilitation Assistant 44.98 0.6 Redevelopment project manager in 76.4 1.9 Redevelopment program Manager 112.86 1.6 Residential construction Specialist 58.36 1.6 Assistant City Attorney 99.9 1.4 Facilities Maintenance Superintendent 100.17 1.4 Senior Management Analyst 67.69 .9 Average Fully Burdened Hourly Rate for All Staff S88 100% Notes: 1 Please refer to Contract Section 10.2.2 for more information on T&M Fully Burdened Hourly Billing Rates 2 Subcontracted Work shall be charged at the hourly rates actually paid by Implementer, not to exceed the hourly rates set forth in the Contract for Work performed by the Implementer. Implementer shall provide Subcontractor invoices for any Implementer's invoice that includes Subcontractor costs. Southern California Edison Company Page: 15 20B-45 City of Santa Ana SOW v4.9 Table 2: Implementers Budget Breakdown: Allowable Cost Item' % $ 1) Administration 5% $36,200 2) Marketing/Outreach Costs 1% $7,000 3) Direct Program Costs 94% $686,728 Total Implementer Budget: 1) + 2) + 3) 100% $729,928 Note: 1. Please refer to Appendix B for more information on Allowable Costs. SECTION 7: PERFORMANCE INDICATORS SCE will, at a minimum, monitor the Work based on the following Program Performance Indicators: A. Progress made against the goals, deliverables, and due dates above; B. Actual performance versus predicted performance as outlined herein. Appendix A: Monthly Invoicing and Reporting Requirements A. Requirements Monthly hard copy invoices are required at the 15th Calendar Day of each month for Work completed the preceding month with invoicing supporting files described herein. These invoices and supporting documents are for Work performed by the Implementer and all Subcontractors. On November 15, 2012 or sooner, Implementer will submit a final invoice associated with Program services that are tied directly to delivery of the Program deliverables. No Work except that associated with preparing. the Final Report (bask 6) and final invoice will be performed after October 15, 2012. Subsequent invoices will only contain expenses associated with closing out the Program (i.e., administration expenses, etc.) that are not directly tied to delivery of the Program goals. Southern California Edison Company Page: 16 20B-46 City of Santa Ana SOW v4.9 B. Procedures 1. Implementer uploads their Customer flat files into the IR Tool. The IR Tool creates a draft invoice for Implementer's review. 2. CPM reviews the draft invoice and advises the Implementer to re-submit their invoice if requested. Implementer is required to submit the following files to SCE by the 15th Calendar Day of each month with each of their invoice submission: • Invoice - Hard Copy and electronic copy uploaded into the IR Tool; • Program Tracking Flat File - Uploaded electronically into the IR Tool; • Financial Flat File - Uploaded electronically into the IR Tool; • Monthly Narrative - Hard Copy with invoice submission; • Deliverable Table - Uploaded electronically. • Allowable Cost Table (see Appendix B) - Hard Copy with invoice submission; and • Supporting documentation - Uploaded electronically into the IR Tool. 3. Upon approval by CPM, the invoice is paid. C. Monthly Narrative The monthly narrative will include a discussion on the following Program activities occurring during the month: • Administrative activities; • Marketing activities; • Direct Implementation activities; • Implementer's assessment of Program performance and Program status (is the Program on target, exceeding expectations, or falling short of expectations, etc.); • Discussion of changes in Program emphasis (new Program elements, less or more emphasis on a particular delivery strategy, Program elements discontinued, Measure discontinued, etc.); • Discussion of near term plans for Program over the coming months (i.e., marketing and outreach efforts that are expected to significantly increase Program participation, etc.); • Changes to staffing and staff responsibilities, if any; Southern California Edison Company Page: 17 20B-47 City of Santa Ana SOW v4.9 • Changes to contacts, if any; • Changes to Subcontractors and Subcontractor responsibilities, if any; and • Number of Program complaints received, if any. Southern California Edison Company Page: 18 20B-48 City of Santa Ana SOW v4.9 Appendix B: Regulatory Reporting Requirements 1. Program Reporting Implementer will provide SCE with the requisite information on the prior month's activities, accomplishments and expenditures related to its respective Work obligations, for purposes of preparing any reports required of SCE by the CPUC including Quarterly and Annual Reports. Requirements for these reports may change per the direction of the CPUC or the CPUC's Energy Division. The current reporting requirements are as follows: 2. Quarterly Report Implementer will provide SCE with the requisite information to be compiled for the quarterly portfolio reporting. 2.1. Expenditures for the Program per cost; Section 4, below contains a list of allowable costs. a. CPUC authorized budget b. Operating Budget c. Total Expenditures • Administrative Cost Marketing/Advertising/Outreach Costs Direct Implementation Cost 2.2. Program Narratives - For the Program, a description of the Program activities occurring during the quarter. a. Administrative activities b. Marketing activities c. Direct Implementation activities d. Implementer's assessment of Program performance and Program status (is the Program on target, exceeding expectations, or falling short of expectations, etc.) e. Discussion of changes in Program emphasis (new Program elements, less or more emphasis on a particular delivery strategy, Program elements discontinued, Measure discontinued, etc.) f. Discussion of near term plans for Program over the coming months (i.e., marketing and outreach efforts that are expected to significantly increase Program participation, etc.) g. Changes to staffing and staff responsibilities, if any h. Changes to contacts, if any i. Changes to Subcontractors and Subcontractor responsibilities, if any j. Number of Program complaints received Southern California Edison Company Page: 19 20B-49 City of Santa Ana SOW v4.9 2.3. Implementer will provide additional data or information as required by the CPUC. 3. Annual Reports Implementer will provide SCE with the requisite information to be compiled for the annually portfolio reporting. 3.1. Expenditures for the Program per cost; Section 4, below contains a list of allowable costs. a. CPUC authorized budget b. Operating Budget c. Total Expenditures • Administrative Cost Marketing/Advertising/Outreach Costs Direct Implementation Cost 3.2. Program Narratives - For the Program, a description of the Program activities occurring during the year. a. Administrative activities b. Marketing activities c. Direct Implementation activities d. Implementer's assessment of Program performance and Program status (is the Program on target, exceeding expectations, or falling short of expectations, etc.) e. Discussion of changes in Program emphasis (new Program elements, less or more emphasis on a particular delivery strategy, Program elements discontinued, etc.) f. Discussion of near term plans for Program over the coming months (i.e., marketing and outreach efforts that are expected to significantly increase Program participation, etc.) g. Changes to staffing and staff responsibilities, if any h. Changes to contacts, if any i. Changes to Subcontractors and Subcontractor responsibilities, if any j. Number of Program complaints received 3.3. Implementer will provide additional data or information as required by the CPUC. Southern California Edison Company Page: 20 20B-50 City of Santa Ana SOW v4.9 4. Allowable Costs Allowable Costs Table The cost items listed on the Allowable Costs sheet are the only costs that can be claimed for ratepayer- funded energy efficiency work. The costs reported should be only for costs actually expended. Any financial commitments are to be categorized as commitments. If the reporting entity does not have a cost as listed on the cost reporting sheet, then no cost is to be reported for that item. These Allowable Cost elements are to be used whenever costs are invoiced or reported to the CPM. If there is a desire to include additional Allowable Cost elements, the CPM should be contacted in order to seek approval from the CPUC. 3/30/2006 Cost Categories Allowable Costs Administrative Cost Category Managerial and Clerical Labor Implementer Labor - Clerical *Implementer Labor - Program Design T *InNIementer Labor - Program Development *Implementer Labor -_Program Planning *Inplementer Labor - ProgramlProject Management Implementer Labor - State Management Implementer Labor - Staff Supervision Human Resource Support and Development Implementer Labor- Human Resources Implementer Labor - Staff Development and Trai Implementer Benefits - Administrative Labor Implementer Benefits - Direct Implementation Labor Implementer Benefits - Marketing/Advertising/Outreach Labor Implementer Payroll Tax - Administrative Labor Implementer Payroll Tax - Direct Implementation Labor Implementer Payroll Tax - Marketing/Advertising/Outreach Labor Implementer Pension - Administrative Labor Implementer Pension - Direct Implementation Labor Implementer Pension - Marketing/Advertising/Outreach Labor *Travel and Conference Fees Implementer - Conference Fees Implementer Labor - Conference Attendance Implementer - Travel - Airfare Implementer - Travel - Lodging Implementer - Travel - Meals Implementer - Travel - Mileage Implementer - Travel - Parkin Implementer - Travel - Per Diem for Misc. Expenses Overhead (General and Administrative) - Labor and Southern California Edison Company Page: 21 20B-51 City of Santa Ana SOW v4.9 Allowable Costs Table The cost items listed on the Allowable Costs sheet are the only costs that can be claimed for ratepayer- funded energy efficiency work. The costs reported should be only for costs actually expended. Any financial commitments are to be categorized as commitments. If the reporting entity does not have a cost as listed on the cost reporting sheet, then no cost is to be reported for that item. These Allowable Cost elements are to be used whenever costs are invoiced or reported to the CPM. If there is a desire to include additional Allowable Cost elements, the CPM should be contacted in order to seek approval from the CPUC. 3/30/2006 Cost Categories Allowable Costs Materials Implementer Equipment Communications Implementer Equipment Computing Implementer Equipment Document Reproduction Implementer Equipment General Office Implementer Equipment Transportation Implementer Food Service Implementer Office Supplies Impleme ter Postage Implementer Labor - Accounting Support Implementer Labor - Accounts Payable Implementer Labor - Accounts Receivable Implementer Labor - Facilities Maintenance Implementer Labor - Materials Management Implementer Labor - Procurement Implementer Labor - Shop Services Implementer Labor - Administrative Implementer Labor - Transportation Services Implementer Labor - Automated Systems Implementer Labor - Communications Implementer Labor - Information Technology Implementer Labor - Telecommunications Marketing/Advertising/Outreach Cost Category Implementer - Bill Inserts Implementer - Brochures Implementer - Door Hangers Implementer - Print Advertisements Implementer - Radio Spots Implementer - Television Spots Implementer - Website Development Implementer Labor - Marketing Implementer Labor - Media Production Implementer Labor - Business Outreach Implementer Labor - Customer Outreach Implementer Labor - Customer Relations Direct Implementation Cost Cate o Financial Incentives to Customers Activity - Direct Labor Southern California Edison Company Page: 22 20B-52 City of Santa Ana SOW v4.9 Allowable Costs Table The cost items listed on the Allowable Costs sheet are the only costs that can be claimed for ratepayer- funded energy efficiency work. The costs reported should be only for costs actually expended. Any financial commitments are to be categorized as commitments. If the reporting entity does not have a cost as listed on the cost reporting sheet, then no cost is to be reported for that item. These Allowable Cost elements are to be used whenever costs are invoiced or reported to the CPM. If there is a desire to include additional Allowable Cost elements, the CPM should be contacted in order to seek approval from the CPUC. 3/30/2006 Cost Categories Allowable Costs Implementer Labor - Facilities Audits - Implementer Labor -Curriculum Development Implementer Labor - Customer Education and Trainin Implementer Labor-Pro ram Development Implementer Labor-Program/Project Manage nent Implementer Labor - Customer Equipment Testing and Diagnostics Installation and Service - Labor Implementer Labor - Customer Equipment Repair and Servicin Implementer Labor - Customer Equipment Repair and Servicing - Direct Implementation Hardware and Materials Implementer - Direct Implementation Literature - Implementer - Education Materials - Implementer - Energy Measurement Tools - Implementer - Installation Hardware - Implementer -Audit Applications and Forms - Rebate Processing and Inspection - Labor and Materials Implementer Labor - Field Verification - Implementer Labor - Rebate Processing - Implementer - Rebate Applications Southern California Edison Company Page: 23 20B-53 3 0 CO w 0 0) 3 0J t u ao ¢ x c V ° ?. n x ua c ai Q Q.. Q I?t N ci 0 U 0 W 0 ti 0 U s 0 20B-54 3 0 w 0 U a F a C m U C a° ? ? 19 - I, " v i2 E m ` o voe z = ? ? F g A d E y? ? 2 ? L a Y z=E?»? ? ? boa z '6 E° - x o . v=gm ivy w`g" c m d u o o m y III °= E mvgd8sgs€ ggE a N ?" n o= 3 I n = I Y= a? a Q?£ ? E o " u c ro ? ' D r r m ? ? d o` N N A? a ." g o E' 0- .2 ? °T c u A a Q O c >? c 9 a d - b E . ga sg ? Ay ? B` Ao s g ? ? 5 dt n a; s ? " ?q i d = '? x n c y c ? E ?- o 3 c 'a a? y= E g `g o- q"q O "? Ci o mrA m? w? N 9 < 9 s m E g'aq a?g t $ y y w w °? ?y E g E gya ,? e y; H? m ?N?f'aw a 3 9 d 0? w U O ? 'AE °m f a$ grim c? ? ? $ i 3tD as y3? :=Qay,?y m° o'W rn ;b O ?' n V?& N U P j I= E q N h C O A J d? SS n N: G s u V U N ??.. f Ti ? ? ? 2 N b.G U 0 W 0 ti 0 V x s 20B-55 20B-56 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING FY 2010/11 SUPPLEMENTAL LAW ENFORCEMENT SERVICES FUND CITY MANA ER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1St Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve an appropriation adjustment recognizing the FY 2010/11 Supplemental Law Enforcement Services Fund in the amount of $88,700 into the revenue account (account no 12814002-52001 ) and appropriate same into the expenditure accounts (account nos. 12814407 -various). DISCUSSION The State of California provides grant funding to state law enforcement agencies through the Supplemental Law Enforcement Services Fund (SLESF). This program requires that funding be allocated to counties and cities in accordance with specific requirements for front-line law enforcement services. Front-line law enforcement typically includes community oriented policing projects and special law enforcement activities that require use of additional police officers in specially targeted saturation areas. Total funding allocation is based on annual estimated population figures for respective counties and cities. Based on Santa Ana's estimated population figures for 2010, the Police Department has received a FY 2010/11 SLESF award of $88,700. This is the fifteenth year the Police Department has received funding from the State of California through this program. On October 4, 2010, Council approved the proposed expenditure plan for the FY 2010/11 SLESF. The Police Department proposes to utilize this funding to purchase equipment and supplies for front- line crime reduction efforts. The remaining funds will be used for enforcement activities including gang suppression, cruiser enforcement, and career criminal apprehension. 20C-1 SLESF Grant funds 2010-11 June 20, 2011 Page 2 FISCAL IMPACT Approval of the appropriation adjustment will increase revenues in the SLESF FY 2010/11 Year 15 revenue account (account no. 12814002-52001) by $88,700 and increase the same into the expenditure accounts (account nos.12814407 -various). APPROVED AS TO FUNDS AND ACCOUNTS: p 62.." _ L 1 Paul M. Walters Chief of Police Police Department lr?WN3t?*I )I r , ?? A Francisco Gutierrez (/A Executive Director Finance & Mgmt. Services Agency 20C-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: CONTRACT AWARD TO ZEBRON CONTRACTING, INC FOR SEWER MANHOLE REHABILITATION AND LINING (SPEC. NO. 11-032) /I CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1st Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to Zebron Contracting, Inc. for the rehabilitation and lining of sewer manholes in an amount not to exceed $75,000. DISCUSSION The Public Works Agency's Water Resources Division performs an ongoing assessment of the condition of concrete and brick sewer manholes throughout the City. Staff has determined that 39 manholes have deteriorated and require rehabilitation using a process that repairs and seals the interior of the manhole with a polyurethane coating. The recommended contract will result in the repair of leakages, prevent structural failure, and extend the life of existing manholes for a fraction of the cost of replacement. The notice inviting bids was advertised on May 26, 2011 and bids were solicited. A summary of the bid invitations and bids received is as follows: 3 Invitations For Bid mailed 3 Bids received Bids were received, opened on June 6, 20011, and evaluated (Exhibit 1). The bid received from Zebron Contracting, Inc. is responsive to the specifications and meets the City's requirements. ENVIRONMENTAL IMPACTS There is no environmental impact associated with this action. 22A-1 Contract Award for Sewer Manhole Rehabilitation and Lining June 20, 2011 Page 2 FISCAL IMPACT Funds are available in the Sanitary Sewer Service account (no. 05617640-66220). APPROVED AS TO FUNDS AND ACCOUNTS Raul Godinez II / Franc?s??d 1 / o Gutierrez J? Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG:RB KM 22A-2 ABSTRACT OF BID CONTRACT AWARD FOR SEWER MANHOLE REHABILITATION AND LINING (11-032 VENDOR LOCATION TERM OFFER: 39 EACH MANHOLE TOTAL BID BOND PROVIDED ZEBRON SUNCOAST CONTRACTING ENVIRONMENTAL NEWPORT BEACH POMONA NET 30 NET 30 $1,922 $74,958 CASHIER'S CHECK $2,327 $90,753 BID BOND SANCON ENGINEERING HUNTINGTON BEACH NET 30 $2,420 $94,380 BID BOND AWARD TO: ZEBRON CONTRACTING, INC. $75,000 Exhibit 1 22A-3 22A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: CONTRACT AWARD FOR MAINTENANCE AND SERVICE OF CHILLERS, COMPRESSORS AND HVACS (SPEC. NO. 11-012) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1St Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Award contracts for preventive maintenance and repair services of chillers, compressors and HVACs for a one-year period, with provisions for two one-year renewals, in an annual aggregate amount not to exceed $140,000 with the following vendors. Vendor Location ACCO Engineered Systems Costa Mesa Johnson Controls Whittier DISCUSSION The Finance and Management Services Agency Building Maintenance Division maintains approximately 50 buildings, including fire stations, recreation and community centers, libraries, City Hall, the Police Administration building and the Corporate Yard. These public buildings, ranging from ten to 50 years old, require various levels of service for complex mechanical systems, including heating and air conditioning equipment. To maintain these systems in good working condition, it is vital to have preventive maintenance and repair service available, including periodic inspections of chillers and boilers and repair of equipment on an as-needed base. These services ensure the City's mechanical systems operate efficiently, safely and meet all applicable laws and regulations. Contract awarded to the listed vendors affords the City the best coverage on the major brand equipment under operations in all buildings. The request for proposals was advertised on March 16, 2011, and offers were solicited. A summary of the RFP invitations and offers received is as follows: 14 Request for Proposals mailed 5 Proposals received 22B-1 Contract Awards for Maintenance and Service of Chillers, Compressors and HVACs June 20, 2011 Page 2 Proposals were solicited and opened on April 11, 2011. Proposals were evaluated based on the specifications, technical expertise, strength of company stability, customer service, pricing and references provided. The offers received from the recommended vendors received the highest percentage in the scoring process and meet or exceeds the evaluation criteria. FISCAL IMPACT Funds are available in the Building Maintenance Division contract services account (no.07310100- 62300). t1t? "RC?? ?' 1 .? Francisco Gutierrez Executive Director Finance and Management Services Agency KM 22B-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: CONTRACT AWARD TO AMTECH FOR ELEVATOR MAINTENANCE AND REPAIR SERVICES (SPEC. NO. 11-035) CITY M NAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on Vt Reading ? Ordinance on 2°d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to Pacific Coast Elevator dba Amtech Elevator Services for elevator maintenance and repair services for a one-year period, with provisions for two one-year renewals, in an annual amount not to exceed $45,000. DISCUSSION The Finance and Management Services Agency Building Maintenance Division maintains approximately 45 elevators in the City's 50 buildings, including libraries, City Hall, the Corporate Yard, and the Police Administration building. In order to comply with regulations from the State of California Department of Industrial Relations, Division of Occupational Safety and Health (Cal OSHA), regular preventive maintenance and periodical testing is necessary. Cal-OSHA inspects all elevators and escalators at least once a year. Upon successful inspection, a Conveyance Permit for each piece of equipment is issued. The service contract with Amtech includes regular lubrications, adjustment and replacement of parts, rewind of burned motors, replacement of electric coils, and prompt repairs of elevator trouble by trained certified operator technicians. The request for proposals was advertised on February 25, 2011, and offers were solicited. A summary of the RFP invitations and offers received is as follows: 8 Request for Proposals mailed 3 Proposals received 22C-1 Contract Awards for Elevator Maintenance and Repair Services June 20, 2011 Page 2 Proposals were solicited and opened on March 31, 2011. Proposals were evaluated based on the specifications, technical expertise, strength of company stability, customer service, pricing and references provided. The offers received from Amtech Elevator Services received the highest percentage in the scoring process and meet or exceeds the evaluation criteria. FISCAL IMPACT Funds are available in the Building Maintenance Division contract services account (no.07310100- 62300). Francisco Gutierrez Executive Director Finance and Management Services Agency KM 22C-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: CONTRACT AWARD TO SCHWARZE INDUSTRIES, INC. FOR STREET SWEEPERS (SPEC. NO. 11-036) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s' Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to Schwarze Industries, Inc. for the purchase of two CNG street sweepers in the amount not to exceed $619,960. DISCUSSION The Finance and Management Services Agency Facilities, Fleet Management and Central Stores Division's annual Equipment Replacement Program is included in the City's annual budget and identifies vehicles scheduled for replacement. Two street sweepers were identified for replacement in the 2010-11 budget. The Public Works Agency uses eleven street sweepers to sweep over 400 miles of roadway within the City, 73,000 curb miles, consisting of residential, commercial and industrial streets and removes over 39,000 cubic yards of gutter litter each year. As a result of age, engine hours, and condition, two street sweepers have continually had high maintenance costs. As such, it is no longer cost effective to continue to operate these vehicles. The replacement of the street sweepers will ensure the continuation of the weekly street sweeper program. To comply with Air Quality Management District standards, the new street sweepers will be compressed natural gas units. Although the Public Works Agency (PWA) has been contemplating possibly outsourcing part of their street sweeping operation, they envision maintaining part of their operation in-house. Additionally, one street sweeper was lost from the fleet after suffering an electrical fire last year. Given this, and the age of the remaining street sweeping fleet, both PWA and FMSA recommend the purchase of these two street sweepers. If portions of the street sweeping program are outsourced, the two new sweepers will be maintained as part of the City fleet and utilized by Staff to cover remaining operations. 22D-1 Contract Award for Street Sweepers June 20, 2011 Page 2 Santa Ana City Ordinance No. NS-2312 authorizes the City to purchase against contracts from any public agency utilizing a competitive bid process. A contract for street sweepers issued by the Houston-Galveston Area Council (H-GAC) was awarded as a result of open, competitive bidding and meets the City's requirements and qualifies for a contract to Schwarze Industries, Inc. FISCAL IMPACT Funds are available in the Equipment Replacement Machinery & Equipment account (no.07510101- 66400). APPROVED AS TO FUNDS AND ACCOUNTS Raul Godinez II Francisco Gutierrez Executive Directo Executive Director Public Works Agency Finance & Management Services Agency KM 22D-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE AGREEMENT WITH NEC CORPORATION OF AMERICA, INC. FOR TELEPHONE SYSTEM MAINTENANCE i CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 152 Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute a three-year agreement with NEC Corporation of America, Inc. to provide maintenance services and related equipment for the City's telecommunications system in an annual amount not to exceed $190,000 per year with provisions for three one-year renewals. DISCUSSION The City's voice communications network consists of 29 telecommunications systems that support every Agency and Department in the City. These systems are located at City Hall, Police Department headquarters, Police sub-stations and Jail, Fire Department headquarters and Fire stations, City Yard, Work Center, Parks and Recreation headquarters and centers, and the Santa Ana Zoo. The systems are linked internally through the main City Hall telephone system and include over 2,000 telephones and approximately 2,220 voice, fax and modem extensions. In order to ensure the proper functioning of this extensive system, the City contracts for maintenance services. Some of these services include: 1) providing an on-site dedicated service technician to perform repairs, moves, additions and changes; 2) 24-hour system monitoring and service response; 3) replacement of any and all defective telephone system equipment; 4) providing engineering support; and 5) providing new telephone equipment. A competitive procurement process was conducted to solicit proposals from telephone system maintenance /service vendors. A "Request for Proposal" (RFP) was developed which defined the City's telephone system maintenance and service requirements as well as proposal evaluation 25A-1 Agreement for Telephone System Maintenance June 20, 2011 Page 2 criteria. In May 2011, the RFP was posted on the City's website and sent to 17 prospective vendors. The City received six (6) written proposals. An evaluation team consisting of Police, Information Services and Telecommunications staff reviewed and evaluated the proposals. The evaluation team made its selection recommendation based on pre-established criteria. Based upon this review, the evaluation team's assessment is that NEC is the best qualified to provide telephone system maintenance services to the City and recommends that NEC be awarded the agreement. The agreement will take effect upon the end of the existing agreement so as to provide continuous uninterrupted service. FISCAL IMPACT Funds are budgeted and are available in the FY11-12 Communication Services account for contractual services (account no. 10210140-62300). APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25A-2 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND NEC Corporation of America, Inc. THIS AGREEMENT, is made and entered into this 21" day of June, 2011, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City") and NEC Corporation of America, Inc. ("Vendor"), collectively referred to herein as "the Parties". RECITALS A. The City desires to retain a Vendor having special skill and knowledge to provide full- service maintenance for the City's NEC Telephone System network as outlined in the RFP "QUALIFIED VENDORS TO PROVIDE TELEPHONE SYSTEM AND/OR VOICEMAIL SYSTEM MAINTENANCE FOR THE CITY OF SANTA ANA" B. Vendor represents that Vendor is able and willing to provide such services to the City C. In undertaking the performance of this Agreement, Vendor represents that it is knowledgeable in its field and that any services performed by Vendor under this Agreement will be performed in compliance with such standards THEREFORE, in consideration of their mutual and respective promises, the parties hereto do hereby agree as follows: Scope of Services The scope of services and deliverables are fully described in Section 5 Part A of the City's Request for Proposal: "QUALIFIED VENDORS TO PROVIDE TELEPHONE SYSTEM AND/OR VOICEMAIL SYSTEM MAINTENANCE FOR THE CITY OF SANTA ANA", dated May 2, 2011 (hereinafter "said RFP"), attached hereto as "Exhibit A", and incorporated by reference. All terms and conditions set forth in said RFP shall have full force and effect in this Agreement. The terms and conditions set forth in the Vendor's "Proposal for Qualified Vendors to Provide Telephone System and/or Voicemail System Maintenance for the City of Santa Ana", May 19, 2011, shall have full force and effect in this Agreement. Said terms and conditions are attached hereto as "Exhibit B", and incorporated herein by reference. 2. Term The services provided pursuant to this Agreement shall commence on July 1, 2011 and terminate on June 30, 2014, unless terminated earlier in accordance with Section 8, below. The City shall have the option to extend the term of this Agreement for three additional one-year terms. 25A-3 Compensation City agrees to pay, and Vendor agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. The total sum to be expended under this Agreement, shall not exceed $190,000, annually, during the term of this Agreement. 4. Insurance Prior to undertaking performance of work under this Agreement, Vendor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Vendor shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Vendor'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. Vendor shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit C upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Vendor, if Vendor 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, Vendor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. 25A-4 e. The following requirements apply to the insurance to be provided by Vendor pursuant to this section: (i) Vendor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Vendor 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 Vendor's right to be paid for its time and materials expended prior to notification of termination. Vendor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 25A-5 5. Billin Invoices (a) Billing is according to Generally Accepted Accounting Principles. Fees for licenses, products, and services specified throughout this agreement are billable per the schedules specified. Payment terms are net thirty (30) days from receipt of proper invoice. City will make a good faith effort to begin processing invoices for payment immediately upon receipt. (b) Invoices shall be mailed to: Attn: Carl J. Marek City of Santa Ana Telecommunications Services (M-77) P.O. Box 1988 Santa Ana, CA 92702-1988 *City will pay invoices 30 days after receipt of proper invoice and approval of service by the Telecommunications Coordinator. *The Agreement number must appear on all invoices. *No purchase orders will be issued. *All invoices must show the breakdown of work performed and products provided. 6. Confidentiality If Vendor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Vendor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Vendor disclosed in a publicly available source; (c) is in rightful possession of the Vendor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Vendor without reference to information disclosed by the City. 7. Discrimination Vendor 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. Vendor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 8. Termination of Agreement This Agreement may be terminated by the City upon thirty- (30) days written notice of termination. In such event, Vendor shall be entitled to receive and the City shall pay Vendor 25A-6 compensation for all services performed by Vendor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the City Manager, or his/her designee, may require Vendor to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Vendor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work, which fails to meet the standard of performance specified in this Agreement or any of the attachments hereto. Independent Contractor Vendor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Vendor performs the services which are the subject matter of this Agreement; however, the services to be provided by Vendor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Vendor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 10. Notice Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Finance and Management Services Agency Telecommunications Coordinator City of Santa Ana 20 Civic Center Plaza (M-77) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6722 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6515 25A-7 With courtesy copy to: NEC Corporation of America, Inc. A party may change its address by giving notice in writing to the other party. Thereafter, communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. Assignment/Subcontractors Inasmuch as this Agreement is intended to secure the specialized services of Vendor, Vendor 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. Vendor shall be fully responsible to the City for performance of subcontractors. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. Indemnification Vendor shall defend, indemnify and save harmless the City of Santa Ana, and its officers, agents, and employees, from any and all claims, demands, suits, actions or proceedings of any kind or nature (including workers' compensation claims and unemployment insurance claims) for damages to property and/or physical injury or death of any person in any way resulting from or arising out of the operations and acts of Vendor, its agents, employees or subcontractors, in the performance of this Agreement, except to the extent caused by or resulting from any act or omission of the indemnified parties. 13. Validity The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 14. Laws Governin this his Agreement This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. Exclusivity and Amendment of Agreement This Agreement, along with any and all related exhibits and attachments, supersedes all other agreements, either oral or written, between the parties hereto with respect to the retention of Vendor by the City, and contains all the covenants between the parties with respect to such 25A-8 employment. 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, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both the City and Vendor. 16. Miscellaneous Provisions a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 25A-9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council CITY OF SANTA ANA Paul M. Walters Interim City Manager APPROVED AS TO FORM: Joseph Straka Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: Francisco Gutierrez, Executive Director Finance & Management Services Agency NEC Corporation of America, Inc. Name: Title: Tax ID# 25A-10 Request for Proposal Qualified Vendors to Provide Telephone System and/or Voicemail System Maintenance for The City Of Santa Ana RFP# IS-502 KEY RFP DATES Issue Date 02 May 2011 Proposal Due Date 19 May 2011 Submission to City Council June 2011 Selection Notification June 2011 Exhibit A 25A-11 Table of Contents 1.0 Definitions .......................................................................................................3 2.0 Statement of Objectives for Services and Products Sought ..................................... 3 3.0 Overview of Existing Telecommunications Infrastructure ........................................ 3 4.0 Vendor Qualifications ........................................................................................ 4 5.0 Services Sought ............................................................................................... 4 5.1 Overview ................................................................................................. 4 5.2 General Services & Support ........................................................................ 5 5.3 On-Site Service Technician ......................................................................... 7 5.4 Event Monitoring Service for NEAX2400IPX ................................................... 8 5.5 Telephone Instruments .............................................................................. 9 5.6 Training ......................................... ..................................................... 9 5.7 Consultation Services ................................................................................ 9 6.0 Contents of Proposal ........................................................................................10 6.1 Transmittal Letter ....................................................................................10 6.2 Services Proposal with a Description of Qualifications to Perform Required Services .....................................................................10 6.3 Price Proposal ..........................................................................................12 7.0 The Proposal Evaluation and Selection Process .....................................................13 8.0 Instructions to Proposers ..................................................................................14 8.1 Where and When to Submit Proposals .........................................................14 8.2 Requesting a Copy of the RFP ....................................................................15 8.3 Questions Regarding Request For Proposal (RFP) ..........................................15 9.0 Terms and Conditions of Special Note .................................................................15 9.1 Documents to be Construed Together .........................................................15 9.2 Drug Policy and Screening .........................................................................15 9.3 Insurance ............................................................................................... 16 9.4 Invoices .................................................................................................. 17 9.5 Term of Agreement ..................................................................................17 9.6 Parking .......................................... .....................................................17 9.7 Prices ....................................... ..................................... 9.8 Reservations ........................................................................................... 17 9.9 Taxes ..................................... 17 ............ ...................... Appendices Appendix A: Proposal Response Form ........................................................................19 Appendix B: Description and Location of Equipment .....................................................38 Appendix C: Sample Agreement ................................................................................40 Appendix D: Sample Insurance Forms ........................................................................46 [Note: This document is formatted for a default HP 5500 Color LaserJet printer. Viewing or printing under other screen/printer drives may result in difference in page breaks and hence in page numbering.] 25A-12 1.0 DEFINITIONS The following words as used in this RFP shall be understood to refer respectively to: Word in RFP Definition "City" The City of Santa Ana, California "Department" The several departments and agencies therein "Vendor" The agreement is made by said City with the agent or legal representative who may be appointed to represent such person, firm or corporation in the signing and performance of said agreement. "Proposer" The person, firm or corporation who is responding to this request for proposal. "OEM" Original Equipment Manufacturer. "Certified" One who has successfully completed formal NEC training and has received a certificate on all of the City's NEC equipment as well as on the CENTIGRAM 640 Voicemail System and TIE Paragon 6/16 Key Systems. "Minor Repair" A repair that is isolated to a single telephone instrument or extension. "MAC" A non-maintenance Move, Addition or Change to the telecommunications infrastructure. "Normal Working Hours" 8:00 A.M. to 5 P.M. "Major System Failure" Refers to either of the following: The general inability of a system to receive or make outgoing calls A majority of either the Central Office or "Tie" trunks (OPX's, T-1 circuits) are inoperative More than 20% of either the stations or terminals on any one telephone or voicemail system are inoperative C Any outage to a system directly supporting public safety 2.0 STATEMENT OF OBJECTIVES FOR SERVICES AND PRODUCTS SOUGHT The City of Santa Ana is soliciting proposals from qualified Vendors to provide the City with a maintenance agreement for its telephone system network. To this end, the City seeks Vendors who are able to meet the qualifications set forth herein and can show themselves qualified to complete the scope of work. 3.0 OVERVIEW OF THE CITY'S TELECOMMUNICATIONS INFRASTRUCTURE The City of Santa Ana's Telephone system network currently serves 35 operating locations through an AT&T network configuration of local, T-1 and OPX lines. The existing telecommunications infrastructure consists of the following 29 telecommunications systems: 25A-13 Part A - NEC Systems • Five (5) NEC NEAX 2400 IPX (8800) PBXs • Two (2) NEC IVS2000 PBXs • Seven (7) NEC IPS2000 PBXs • Ten (10) NEC INFOSET408 Key Systems • One (1) NEC Mark II Hybrid Key System • Two (2) NEC Electra Professional Hybrid Key Systems • One (1) EDAC Voice Recorder Interface Unit with 60 ports • There are three locations with a total of thirteen (13) NEC VoIP telephones installed • There are approximately 3770 equipped voice ports citywide Part B - CENTIGRAM Voicemail System • One (1) CENTIGRAM 640 Voicemail System containing 40 ports and 120 hours of storage The City may at any time during the term of this agreement change with additions or subtractions the amount, type, location, etc. of the telephone systems/equipment to be supported by the Vendor. Charges will be adjusted in accordance with the Agreement between the Vendor and the City. Refer to Appendix B for the individual locations and descriptions of the above equipment. 4.0 VENDOR QUALIFICATIONS The selected Vendor will: Part A - NEC Systems • Be NEC certified/authorized on each of the various types of telecommunication systems used by the City of Santa Ana (see Section 3.0). • Maintain its NEC certification/authorization throughout the term of the agreement for the company and for every technician sent to service City of Santa Ana equipment. • Present evidence of NEC certifications/authorization to the City Telecommunications Coordinator as part of the proposal package that is submitted. Part B - CENTIGRAM Voicemail System • Present evidence of the ability and capability of the company to provide maintenance services on the CENTIGRAM 640 Voicemail System throughout the term of the agreement 5.0 SERVICES SOUGHT 5.1 Overview The City seeks a term of three (3) years with possible extensions of three (3) additional one-year periods at the City's discretion. The City seeks a Vendor to provide full-service maintenance for the City's NEC Telephone System network and/or CENTIGRAM Voicemail System. The City will consider this maintenance support in two separate ways: Part A - NEC Systems • The City's NEC telephone systems and related infrastructure and subsystems 25A-14 Part B - CENTIGRAM Voicemail System • The City's CENTIGRAM Voicemail System and its interface to the City's NEC system Proposals will be considered by each part separately. Maintenance and service may be proposed for either part or both parts 5.2 General Services & Support The Vendor shall: Part A - NEC Systems • Provide an on-site service technician to perform repair services and MAC's. (See section 5.3) • Provide all required maintenance (parts and labor) and maintain the equipment in good operating condition in accordance with the manufacturer's technical specifications. This is to include the most current software release for all telecommunications equipment at no additional charge. • Use only original equipment manufacturer (OEM) parts for repair or replacement of defective equipment such as circuit cards and telephone instruments (including corded and cordless telephones as well as hands-free headsets and amplifiers - PLANTRONICS) at no additional charge to the City. • Perform preventive maintenance of all systems and equipment at a minimum in accordance with manufacturer's specifications and/or requirements for the equipment, whichever is greater. ¦ Preventive maintenance shall be performed on a schedule which is workable with the City's operating requirements and which is mutually acceptable to the City and the Vendor. • Completed preventive maintenance checklists will be provided to the City Telecommunications Coordinator on a monthly basis. • Perform regular system backups and system de-fragmentations at least once a month on all telephone systems • Maintain an adequate on-site inventory of spare OEM parts for repairs and replacements. ¦ The Vendor will identify the amount and type of storage space it prefers. Actual storage space to be provided by City will be determined by the City Telecommunications Coordinator. Minor Repairs • Respond on-site within four hours (excluding weekends and holidays) of Vendor's receipt of the City's service request when Minor Repairs are necessary during normal City working hours (8-5). ¦ Minor Repairs should be completed within twenty-four (24) hours. 25A-15 Major System Failure • Respond on-site within 30 minutes of the City's notification by the Telecommunications Coordinator or his/her designee in case of Major System Failure during normal City working hours (8-5). ¦ In case of Major System Failure, before or after normal City working hours (8-5), or on weekends or days observed by the City as holidays, the Vendor shall respond on-site to notification of major failures within two (2) hours of said notification. ¦ Major System Failure repairs should be completed within twenty-four (24) hours. ¦ In the event that the Vendor has not repaired a Major System Failure within twenty-four (24) hours, Vendor will provide and install on-site loan equipment at no additional cost to the City, within forty-eight (48) hours after failure notification. ¦ The City Telecommunications Coordinator or his/her designee will determine the designation of any repair as either Minor or Major. • Serve as agent on the City's behalf for all telephone company associated service and repair issues. • Provide for use by the on-site technician (and all substitute or supplemental technicians) a portable or laptop maintenance terminal for use in supporting the City's telephone system. Part B - CENTIGRAM Voicemail System • Provide all required maintenance (parts and labor) and maintain the CENTIGRAM in good operating condition in accordance with the manufacturer's technical specifications. This is to include the most current software release at no additional charge. • Use only original equipment manufacturer (OEM) parts for repair or replacement of defective equipment • Perform preventive maintenance on the CENTIGRAM in accordance with manufacturer's specifications. ¦ Preventive maintenance shall be performed on a schedule which is workable with the City's operating requirements and which is mutually acceptable to the City and the Vendor. ¦ Completed preventive maintenance checklists will be provided to the City Telecommunications Coordinator on a monthly basis. • Perform monthly system backups and an Offline Run/Verify at least once every six months. • Maintain an adequate on-site inventory of spare OEM parts for repairs and replacements. ¦ The Vendor will identify the amount and type of storage space it prefers. Actual storage space to be provided by City will be determined by the City Telecommunications Coordinator. 25A-16 Minor Repairs • Respond within four (4) hours (excluding weekends and holidays) of Vendor's receipt of the City's service request when Minor Repairs are necessary during normal City working hours (8-5). ¦ Minor Repairs should be completed within twenty-four (24) hours. Major System Failure • Respond within two (2) hours of the City's notification by the Telecommunications Coordinator or his/her designee in case of Major System Failure during normal City working hours (8-5). ¦ In case of Major System Failure, before or after normal City working hours (8-5), or on weekends or days observed by the City as holidays, the Vendor shall respond to notification of major failures within four (4) hours of said notification. ¦ Major System Failure repairs should be completed within forty-eight (48) hours. ¦ In the event that the Vendor has not repaired a Major System Failure within forty- eight (48) hours, Vendor will provide and install on-site loan equipment at no additional cost to the City, within forty-eight (48) hours after failure notification. ¦ The City Telecommunications Coordinator or his/her designee will determine the designation of any repair as either Minor or Major. 5.3 On-Site Service Technician Part A - NEC Systems The Vendor will provide an NEC certified Service Technician dedicated solely to the City of Santa Ana. This dedicated technician will: • Work on-site at the City of Santa Ana for eight (8) hours per day and forty (40) hours per week. However, City may, with fifteen (15) day prior written notice change the number of days per week of on-site dedicated technician support, with a corresponding increase/reduction in the System Maintenance Related Charges, as set forth in Appendix A, Part 2 - Price Proposal. The City shall retain the right to specify the weekly business days on which the technician will be on-site. Further, the City may, with ten (10) day prior email notification to Vendor, designate one or more days within a given work week, for which on-site technician support will not be provided. For each day that on-site support is cancelled, a credit will be issued to the System Maintenance Related Charges, as set forth in Appendix A, Part 2 - Price Proposal. • Be on-call on a twenty-four-(24) hour, seven (7) day-a-week, as-needed basis. • Perform repair services on any and all voice communications equipment as directed by the City Telecommunications Coordinator. 25A-17 Will be available, when not responding to particular requests for repair services, to provide as-needed MAC services as directed by the City Telecommunications Coordinator. ¦ Repair and MAC priorities will be determined by the City Telecommunications Coordinator. ¦ Performance of MAC work during normal assigned hours will not incur any additional charge to the City. ¦ Should be capable of creating and modifying a mailbox on the CENTIGRAM Voicemail System and performing a system backup. • Have a working knowledge of, skills in, and experience with Category 5 cabling and termination in accordance with the Electronic Industries Association/ Telecommunications Industry Association (EIA/TIA) standard practices. ¦ Evidence of any related training to be presented to the City Telecommunications Coordinator as part of the proposal package that is submitted. In addition: • Should the assigned technician be absent or unavailable, the Vendor will provide an equally qualified and certified replacement technician. • The City reserves the right to review and approve the assignment of the dedicated technician if replacement (either temporary or permanent) of the existing technician is required. • The assigned technician's work hours may be adjusted by the City Telecommunications Coordinator from 8-5 on an as needed basis with prior notice to the Vendor to allow necessary work to be done during a period with less impact on the City's business operations. • If the Vendor elects at their choice to use more than one service technician to perform a task, there will not be any additional cost to the City. • Work outside the scope of work of this Proposal will be billed at agreed-upon service rates and only when authorized in advance by the City Telecommunications Coordinator or his/her designee. 5.4 Event Monitoring Service for NEAX2400IPX Part A - NEC Systems The Vendor shall provide, install and maintain, at no additional charge to the City, an Event Monitoring Service (with associated equipment) to each of the City's NEC NEAX 2400IPX systems or like systems. • The Event Monitoring Service shall monitor for system alarms and environmental conditions and connectivity provided by the City. • The Vendor shall continuously monitor the output of these Event Monitoring units on a twenty-four (24) hour per day, seven (7) days per week, fifty-two (52) weeks per year basis and will take prompt corrective action when an irregularity/problem is detected. 25A-18 In those instances when a major system or environmental problem is detected, the Vendor will promptly alert the City Telecommunications Coordinator or alternate designated City contact person. • In the event that the Event Monitoring Service fails to detect and alert of an environmental or system condition, which causes damage to the City's equipment: the Vendor shall make all necessary repairs to restore the equipment to the manufacturer's specifications and full operation at no additional cost to the City. 5.5 Telephone Instruments Part A - NEC Systems The Vendor will: • Service and maintain in good working condition all telephone instruments in use throughout the City on all City telephone systems in accordance with the manufacturer's technical specifications. This includes all Plantronics headsets/amplifiers used on City telephones. • Either repair or promptly replace faulty telephone instruments and Plantronics headsets/amplifiers with identical OEM equipment. • At all times, maintain on City premises, an adequate supply of spare OEM telephone instruments of each model currently in use on the City telephone systems. 5.6 Training Part A - NEC Systems During each year of the agreement, at a time selected by the City, one equipment-training course may be selected from the list below for each of three (3) persons designated by the City. The courses will be provided by the selected Vendor at no additional cost to the City. Courses: • NEAX2400IPX Customer Administration Programming • NEAX2000IPS Customer Administrative Programming • Basic IP Networking Fundamentals Further, the Vendor will provide additional training for any new systems that are purchased by the City from the Vendor during the term of agreement. 5.7 Consultation Services Part A - NEC Systems During the term of this agreement, the Vendor shall provide, at no additional cost, consultation services with regard to, but not limited to, such items as: • Upgrades to telephone equipment • Software options • Trunk and Central Office (CO) connectivity • Fiber optic installation • Productivity enhancements 25A-19 • VOIP options • Unified Messaging System options 6.0 CONTENTS OF PROPOSAL Proposals submitted in response to this RFP will consist of the following Sections: Section # Proposal Parts 1. A transmittal letter 2. A services proposal 3. A price proposal Each of the substantive components is discussed in more detail below 6.1 Section 1. Transmittal Letter May contain any introductory information at the Proposers discretion 6.2 Section 2. Services Proposal with a Description of Qualifications to Perform Required Services A Proposal Response Form for the service proposal has been provided in Appendix A. Proposers may fill in this provided form or submit a separate response which addresses each item. NOTE: The City realizes that the CENTIGRAM 640 is an older generation voicemail system and as such the availability of qualified maintenance providers may be limited. Proposers are therefore being given the option to submit proposals for NEC Telephone System maintenance and/or CENTIGRAM Voicemail System maintenance. The Proposal Response Form is divided accordingly: Part A - NEC Telephone System Maintenance and Part B - CENTIGRAM Voicemail System Maintenance. The Proposer should fill in Part A and/or Part B as appropriate. Proposals will be considered by each part separately. This proposal is intended to provide the City with an understanding of the Proposer's qualifications to provide NEC Telephone System maintenance and/or CENTIGRAM Voicemail System maintenance (see Section 4.0) and to identify the Proposer's capabilities to provide the specific services sought by the City (see Section 5.0). If, in the judgment of the Proposer, the desired objectives of one or more tasks described in Section 5.0 above could be achieved through a different approach, we encourage the Proposer to offer suggestions in its proposal. An important aspect of the services that the City seeks is prior experience in providing NEC Telephone System and/or Centigram Voicemail System maintenance services. Thus, the quality of prior experience by the proposing firm is very important. To help the City assess the overall qualifications of each Proposer, we ask that the Proposer submit the following materials (See Appendix A for Proposal Response Form - fill out Part A and/or Part B as applicable): a. Identify prime contact for the proposal (the name, title, address, telephone number, facsimile number, and email). b. The location/s from where the Proposer would provide services to the City io 25A-20 A summary description of: • The organization • The ownership • The major service/s offered by the Proposer's firm • The number of years that the Proposer has been in the business of providing NEC Telephone System maintenance and/or CENTIGRAM Voicemail System maintenance services d. A description of: • Overall qualifications of the Proposer and experience and ability to provide NEC Telephone System maintenance and/or CENTIGRAM Voicemail System maintenance services. • The firm's certifications/authorizations to provide services on NEC and/or CENTIGRAM systems/equipment as identified in section 4.0. Also provide evidence of such as part of the proposal. • Any unique qualifications and experience which distinguish Proposer's ability to provide NEC Telephone System and/or CENTIGRAM Voicemail System maintenance services. e. A confirmation of the Proposer's willingness and capability to agree to and to follow the terms and processes outlined in this RFP and resulting agreement including all administrative and billing procedures of the City. Any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability. • Identify whether the Proposer had a contract terminated for cause within the last 3 years. If so, include an explanation of the circumstances. • Identify whether either a customer or a vendor sued the Proposer in the last 3 years. If so, include an explanation of the circumstances. • Identify the percentage of Proposer's business consisting of servicing and supporting NEC Telephone Systems and/or CENTIGRAM Voicemail Systems. g. A description of: • The qualifications, experience and abilities to provide NEC Telephone System and/or CENTIGRAM Voicemail System maintenance services of the Proposer's candidate on- site technician, backup technicians, and any other engineering and service staff as applicable. • The certifications on NEC and/or CENTIGRAM systems/equipment (as identified in section 4.0) of the Proposer's candidate on-site technician, backup technicians, and any other engineering and service staff as applicable. ¦ Evidence of certifications as part of the proposal. • Any unique qualifications and experience as applicable which distinguish Proposer's candidate on-site technician's, backup technicians', and any other engineering and service staff's ability to provide NEC Telephone System and/or CENTIGRAM Voicemail System maintenance services. • For NEC Telephone System maintenance proposer only: Proposer's candidate on-site technician's and backup technicians' working knowledge of, skills in, and experience with Category 5 cabling and termination in accordance with the Electronic Industries Association/Telecommunications Industry Association (EIA/TIA) standard practices. ¦ Provide evidence of any related training as part of the proposal. h. Provide a response to the list of services sought by the City by completing the table titled "5.2 General Services & Support" located in the Proposal Response Form, Section 2. Services Proposal [see Appendix A]. ii 25A-21 References. Proposer must supply a MAXIMUM of three (3) references that will attest to the Proposer's ability within the last three years to provide services similar in scope and skills to those outlined in this proposal. For each reference, provide the following information: • The name of the reference organization ¦ Location • Contact point within the referenced organization ¦ Name ¦ Title ¦ email address ¦ Telephone number • The approximate period during which the services were provided. • A summary of services provided. 6.3 Section 3. Price Proposal A Price Proposal Response Form for the price proposal has been provided in Appendix A, Section 3. Price Proposal. There is one Price Proposal Response Form for NEC Telephone Systems maintenance Proposers (Part A) and one for CENTIGRAM Voicemail System maintenance Proposers (Part B). This proposal is intended to provide the City with an understanding of the Proposer's charges to provide NEC Telephone System maintenance and/or CENTIGRAM Voicemail System maintenance identified by the City in Section 5.0. These proposed prices will be used as part of the comparative analysis in the City's vendor selection process. As an input in their price proposal, Proposers will identify any and all charges for related services sought by the City and any others that the Proposer is offering to perform for the City. At a minimum, the price proposal will include: Part A - NEC Systems System Maintenance Related Charges: a. Station/Trunk Port Charges on a cost per port basis and then on the assumption of 3770 ports. Note: A port count will be conducted monthly by the on-site dedicated technician and verified by the Telecommunications Coordinator or his/her designee. If the port count changes from the previous month (either up or down), the port charge portion of the next monthly invoice will be adjusted to reflect the new port count. b. Charges for on-site dedicated technician with labor and other charges separated. c. Any other charges not otherwise identified above. Miscellaneous Charges if Proposer intends to bill for these: a. Travel Time b. Billable MAC work c. Any other related charges that a Proposer would bill the City must be identified and explained. Purchase Discounts: Provide the minimum discount on Equipment/Parts/Supplies not otherwise covered by the Agreement that the City might purchase from or through the Vendor. lz 25A-22 Part B - CENTIGRAM Voicemail System System Maintenance Related Charges: a. Voicemail Port Charges on a cost per port basis and then on the assumption of 40 ports. Note: The Voicemail port count will be verified annually before the beginning of each maintenance agreement year. Additionally, should the voicemail port count change at any time during the course of the maintenance contract year (either up or down), the port charge portion of the next monthly invoice will be adjusted to reflect the new port count. b. Voice Process System charges. c. Any other charges not otherwise identified above. Miscellaneous Charges if Proposer intends to bill for these: a. Travel Time b. Billable MAC work c. Any other related charges that a Proposer would bill the City must be identified and explained. Purchase Discounts: a. Provide the minimum discount on Equipment/Parts/Supplies not otherwise covered by the Agreement that the City might purchase from or through the Vendor. 7.0 THE PROPOSAL EVALUATION AND SELECTION PROCESS To assess qualifications in providing telephone system maintenance services and to determine the strength and stability of the Proposer, every Proposer is requested to complete and submit the Proposal Response Form (Appendix A) or to submit a separate response which addresses each item cited in Appendix A for which they are proposing. Step 1. The City's procurement process is based upon open competition through a defined evaluation and selection process. There are required inputs and deadlines to which there are no exceptions. The City will ensure that all Proposers strictly abide by these. It is the Proposer's task to demonstrate its ability to perform the specific services and provide the specific products identified in this RFP. Based on the information provided on the Proposal Response Form (Appendix A), each of the Proposers will be evaluated by a City selection team as to their qualifications and will be assigned a score from 0-100 (100 being best). Note that proposed price is only one of several criteria. It is not the City's intention to exclude very high bids or to automatically award an agreement to the Proposer of the lowest price for services. The City is attempting to get the best balance of service, value and price. The selection recommendation will be based on the accumulated point score for all criteria. Applicants will be evaluated on the following criteria with possible scoring points: 13 25A-23 Criteria Possible Points Proposer's certification/authorizations to provide maintenance 15% and support for NEC Telephone and/or CENTIGRAM Voicemail systems/equipment Experience & qualifications of Proposer to provide general 20% services & support for City NEC Telephone System infrastructure and/or CENTIGRAM Voicemail System Experience and qualifications of on-site technician, backup on- 20% site technicians and other staff resources that the Proposer makes available to City for NEC Telephone System and/or CENTIGRAM Voicemail System maintenance and support References 20% Pricing proposed 25% Total 100% Step 2. An interview by the evaluation team may be required for clarification purposes. However, only the top rated Proposers will be asked to participate in the interview process. Step 3. Based on the evaluation of the City selection team, a recommendation will be made to the City Council to authorize an agreement between the City and the selected Vendor. 8.0 INSTRUCTIONS TO PROPOSERS 8.1 Where and When to Submit Proposals Proposals shall be prepared and submitted in accordance with the requirements set forth in the RFP. The Proposer is to submit an original and two copies (total of three) of its proposal in a sealed package bearing the firm's name and address and clearly marked as follows: Proposal for Qualified Vendors to Provide Telephone System and/or Voicemail System Maintenance for The City of Santa Ana Proposals must be received and time-stamped by the Information Services Division on or before 19 May, 2011 @ 4:00 P.M. if walked in: if mailed: City of Santa Ana City of Santa Ana Information Services Telecommunications Services, M-77 Room B-22 P.O. Box 1988 Basement City Hall Santa Ana, CA 92702 20 Civic Center Plaza Santa Ana, CA 92701 14 25A-24 Directions: htti)://www.santa-ana.orci/pwa/documents/Civiccentermal)pdf Facsimile transmission (FAX) or E-MAIL copies are not acceptable. Please note that this is not a bid and therefore there is no formal "bid opening." This is a proposal and as such, the City's proposal procedures apply. 8.2 Requesting a Copy of the RFP Copies of this RFP may be requested from: • By mail: City of Santa Ana Telecommunications Services (M-77) P.O. Box 1988 20 Civic Center Plaza Santa Ana, CA 92702 • By phone: 714-647-6957 • By Fax: 714-647-6722 (Caution: do not submit proposals via fax or e-mail) • By email: cmarek@santa-ana.org 8.3 Questions Regarding Request for Proposal (RFP) Requests for information, technical questions, questions regarding this RFP or the process may be directed to: Carl J. Marek Telecommunications Coordinator Information Services Division phone: 714-647-6957 email: cmarek@santa-ana.org Address: City of Santa Ana Telecommunications Services (M-77) P.O. Box 1988 20 Civic Center Plaza Santa Ana, CA 92702 Attn: Carl J. Marek (M-77) Questions regarding this Request for Proposal should be directed only to the person designated above. Do not contact any other City employee or official regarding this RFP 9.0 TERMS AND CONDITIONS OF SPECIAL NOTE 9.1 Documents to be Construed Together The Request for Proposal and the Agreement to be entered into between the Vendor and the City, and all modifications of said documents, shall be construed together as one document. 9.2 Drug Policy and Screening The Vendor shall have a written Drug Policy that applies to any of it employees who perform work on City property. A copy of the policy will be provided upon request of the City. 15 25A-25 9.3 Insurance Proof of insurance is not required to be submitted with the proposal, but will be required prior to the City's award of the contract. Proposers should carefully consider the City insurance requirements and the related documentation. Proposals should be based on full and complete compliance with all parts and directions. 9.3.1 The Vendor will be required to have the following insurance: Commercial general liability - $1,000,000 or more covering bodily injury and property damage per occurrence. b. Business Auto including owned, non-owned, and hired vehicles - $1,000,000 or more covering bodily injury and property damage per occurrence. c. Workers' Compensation Coverage for employees, unless the Vendor is a sole proprietor with NO employees. 9.3.2 The Vendor will be required to provide the following insurance documents that contain specific modifications before any work can commence: a. Complete and provide an Additional Insured Endorsement form. (1) See Appendix D for City's preferred Additional Insured Endorsement form. b. Complete with modifications and provide a Certificate of Insurance form. (1) Include in the "Certificate Holder" block (left bottom corner) the statement: CITY OF SANTA ANA, ITS OFFICERS, AGENTS AND EMPLOYEES P.O. BOX 1988 SANTA ANA, CA 92702 (2) Modify the "Cancellation" block to read: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVE) T/l MAIL *30 DAYS NOTICE T??O??T?H/?E? CERTIFICATE ? HOLDER NAMED TO THE LEFT, ?T FAILURE T-E) T97?'VGH NOTICE SH7A [LL !MiSE NG E)BLI'GATIC)N GGR LIABIl er ANY KIND UPON TLJ rC /'e ENTC ^n REPRESENTATIVES -r?cr 4Pi4Pd? I?? ?cG(3) See Appendix D for sample of a properly completed Certificate of Liability Insurance form. c. Insurance companies may be California admitted or non-admitted carriers. If non- admitted, they need to be licensed to do business in California and proof may be required. d. Vendors who self-insure Workers' Compensation must submit a copy of their Certificate to Consent to Self-Insure from the State of California and provide third party administration information, if applicable. (1) See Appendix D for sample of a proof of Workers' Compensation Insurance form. 16 25A-26 9.4 Invoices Invoices, submitted in duplicate, shall be mailed to: City of Santa Ana Telecommunications Services (M-77) P.O. Box 1988 Santa Ana, CA 92702 The Agreement number must appear on all invoices. The City will pay invoices 30 days after receipt of invoice and approval of service by the Telecommunications Coordinator. The monthly invoice for maintenance services must contain a breakdown of all components of the monthly maintenance charges. 9.5 Term of Agreement The term of this Agreement shall be for three years. The City of Santa Ana reserves the right to exercise an option renewing this Agreement for an additional three (3) one-year periods, if the same prices, terms, and conditions are acceptable to both parties. This term is subject to final approval by the Santa Ana City Council. 9.6 Parking The City will provide parking for the dedicated technician as well as for any other employee of the Vendor who is also performing work for the City. However the City cannot guarantee availability of parking in which case the Vendor must bear the cost of alternative parking. 9.7 Prices No increase in price from those initially proposed and covered by the Agreement will be allowed during the period covered by this agreement without the City's concurrence and prior approval. 9.8 Reservations The City reserves the right to reject any and all proposals and any item or items therein, and to waive any non-conformity of proposals with this RFP, whether of a technical or substantive nature, as the interest of the City may require. 9.9 Taxes Prices proposed shall include all applicable federal, state, local and other taxes - all itemized separately. 17 25A-27 Appendices Appendix A - Proposal Response Form Appendix B - Description and Location of Equipment Appendix C - Sample Agreement Appendix D - Sample Insurance Forms 18 25A-28 Appendix A - Proposal Response Form (Fill in this form or submit a separate response which addresses each item.) Proposal for Qualified Vendors to Provide Telephone System and/or Voicemail System Maintenance for The City of Santa Ana Section 1. Transmittal Letter Proposing Vendors will include a transmittal letter which may, at their discretion, contain any introductory information that the Vendor feels is relevant. Section 2. Services Proposal Name of Proposing Firm: Proposer's Principal Location: Proposer's Location that will service the City: Contact Name for Proposal: Phone Number: Fax Number: email address Please submit answers to the following questions (Note: Proposer may attach additional pages as needed to complete responses.) GENERAL (To be completed by all Proposers) 1. Short summary description of the organization. {ref. section 6.2.c} 2. Short summary description of the ownership. {ref. section 6.2.c} 19 25A-29 3. Description of the major service/s offered by the Proposer's firm. {ref. section 6.2.c} 4. The number of years that the Proposer has been in the business of providing telephone and/or voicemail system maintenance. (If company name or ownership has changed of the period cited, please note and explain.) {ref, section 6.2.c} 5. A confirmation of the Proposer's willingness and capability to agree to and to follow the terms and processes outlined in this RFP and resulting agreement including all administrative and billing procedures of the City. {ref. section 6.2.e} 6. A description of any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability. {ref. section 6.211 7. Has your firm had a contract terminated for cause within the last 3 years? If so, please explain the circumstances. {ref. section 6.2.f} 8. Has either a customer or a vendor sued your firm in the last 3 years? If so, please explain the circumstances. {ref. section 6.2.f} 20 25A-30 9. References Provide a MAXIMUM of three (3) references from government agencies or commercial firms that will attest to your firm's ability within the last three years to provide services similar in scope and skills sought by the City in this RFP. Reference One: Name of Client Location where work was performed Knowledgeable contact name Contact's title Contact' email address Contact's hone number Approximate period during which the services were provided Description of services provided Reference Two: Name of Client Location where work was performed Knowledgeable contact name Contact's title Contact' email address Contact's hone number Approximate period during which the services were provided Description of services provided Reference Three: Name of Client Location where work was performed Knowledgeable contact name Contact's title Contact' email address Contact's hone number Approximate period during which the services were provided Description of services provided 21 25A-31 Part A - NEC Systems (To be completed by NEC Telephone Systems maintenance Proposers) Al. A description of the overall qualifications of the Proposer and experience and ability to provide telephone system maintenance for NEC-based telephone infrastructure. {ref. section 6.2.d} A2. Identify and provide evidence of the Proposer's certification/authorizations to provide telephone system maintenance for NEC systems/equipment identified in section 4.0 of the RFP. {ref. section 6.2.d} A3. A description of any unique qualifications and experience which distinguish Proposer's ability to provide telephone system maintenance for NEC systems. {ref. section 6.2.d} A4. What percent of your base business consists of servicing and supporting NEC telephone equipment? {ref. section 6.2.f} A5. A description of the qualifications, experience and abilities to provide telephone system maintenance services of the Proposer's candidate on-site technician, backup technicians, and any other on-site engineering and service staff. ? {ref. section 6.2.g} A6. Identify and provide the certifications on NEC systems/equipment (as identified in section 4) of the Proposer's candidate on-site technician, backup technicians, and any other on-site engineering and service staff. ? {ref. section 6.2.g} A7. A description of any unique qualifications and experience which distinguish Proposer's candidate on-site technician's, backup technicians', and any other on-site engineering and service staff's ability to provide telephone system maintenance services. ? {ref. section 6.2.g} 22 25A-32 A8. A description of the Proposer's candidate on-site technician's and backup technicians' working knowledge of, skills in, and experience with Category 5 cabling and termination in accordance with the Electronic Industries Association/ Telecommunications Industry Association (EIA/TIA) standard practices. ? {ref. section 6.2.g} A9. Provide evidence of any training to Item A8 above. {ref, section 6.2.g} Respond to each of the following services sought by the City and related terms and conditions as the Proposer's willingness and ability to provide or comply. Identify any exceptions. {ref. section 6.2.h} The City seeks a term of three (3) years with possible extensions of three (3) additional one-year periods at the Citv's discretion. The City seeks a Vendor to provide full-service maintenance ? Yes ? for the City's NEC Telephone System network. The Vendor shall: • Provide an on-site service technician to perform repair ? Yes ? No services and MAC's. (See section 5.3) • Provide all required maintenance (parts and labor) and ? Yes ? No maintain the equipment in good operating condition in accordance with the manufacturer's technical specifications. This is to include the most current software release for all telecommunications equipment at no additional charge to the City. • Use only original equipment manufacturer (OEM) parts for ? Yes ? No repair or replacement of defective equipment such as circuit cards and telephone instruments (including corded and cordless telephones as well as hands-free headsets and amplifiers - PLANTRONICS) at no additional charge to the City. • Perform preventive maintenance of all systems and ? Yes ? No equipment at a minimum in accordance with manufacturer's specifications and/or requirements for the equipment, whichever is greater. • Preventive maintenance shall be performed on a ? Yes ? No schedule which is workable with the City's operating requirements and which is mutually acceptable to the Citv and the Vendor. 23 25A-33 Will in & able to provide and/or comply able to • Completed preventive maintenance checklists will be ? Yes ? No provided to the City Telecommunications Coordinator on a monthly basis. • At least once a month, perform regular system backups & Li Yes ? No _ system de-fragmentations on all telephone systems. • Maintain an adequate on-site inventory of spare OEM ? Yes Li No parts for repairs and replacements. ¦ The Vendor will identify the amount and type of ? Yes Li No storage space it prefers. Actual storage space to be provided by City will be determined by the City Telecommunications Coordinator. • Respond on-site within four hours (excluding weekends La Yes ? No and holidays) of Vendor's receipt of the City's service request when Minor Repairs are necessary during normal City working hours (8-5). ¦ Minor Repairs should be completed within twenty- ? Yes ? No four (24) hours. • Respond on-site within 30 minutes of the City's Li Yes Li No notification by the Telecommunications Coordinator or his/her designee in case of Major System Failure during normal City working hours (8-5), ¦ In case of Major System Failure, before or after ? Yes Li No normal City working hours (8-5), or on weekends or days observed by the City as holidays, the Vendor shall respond on-site to notification of major failures within two (2) hours of said notification. ¦ Major System Failure repairs should be completed Li Yes ? No within twenty-four (24) hours. ¦ In the event that the Vendor has not repaired a Li Yes ? No Major System Failure within twenty-four (24) hours, Vendor will provide and install on site loan equipment at no additional cost to the City, within forty-eight (48) hour after failure notification. ¦ The City Telecommunications Coordinator or his/her ? Yes Li No designee will determine the designation of any repair as either Minor or Major. • Serve as agent on the City's behalf for all telephone Li Yes ? No company associated service and repair issues. • Provide for use by the on-site technician (and all ? Yes Li No substitute or supplemental technicians) a portable or laptop maintenance terminal for use in supporting the Citv's telephone svstem. 24 25A-34 Willin & able to rovide and/or com I Item Yes No Exception\s IL_ 5.3 On-Site Service Technician The Vendor will provide an NEC certified Service Technician ? Yes Lj No dedicated solely to the City of Santa Ana. This dedicated technician will: • Work on-site at the City of Santa Ana for eight (8) hours ? Yes ? No per day and forty (40) hours per week. However, City may, with fifteen (15) day prior written notice, change the number of days per week of the on-site dedicated technician support, with a corresponding increase/reduction in the System Maintenance Related Charges, as set forth in Appendix A, Section 3. Price Proposal. The City shall retain the right to specify the weekly business days on which the technician will be on- site. Further, the City may, with ten (10) day prior email notification to Vendor, designate one or more days within a given work week, for which on-site technician support will not be provided. For each day that on-site support is cancelled, a credit will be issued to the System maintenance Related Charges as set forth in Appendix A Section 3. Price Proposal. • Be on-call on a twenty-four-(24) hour, seven (7) day-a- ? Yes ? No week, as-needed basis. • Perform repair services on any and all voice ? Yes Li No communications equipment as directed by the City Telecommunications Coordinator. • Will be available, when not responding to particular Li Yes ? No requests for repair services, to provide as-needed MAC services as directed by the City Telecommunications Coordinator. • Repair and MAC priorities will be determined by the City Telecommunications Coordinator. ¦ Performance of MAC work during normal assigned ? Yes ? No hours will not incur any additional charge to the City. ¦ Should be capable of creating and modifying a Li Yes ? No mailbox on the CENTIGRAM Voicemail System and performing a system backup. • Have a working knowledge of, skills in, and experience Li Yes ? No with Category 5 cabling and termination in accordance with the Electronic Industries Association/ Telecommunications Industry Association (EIA/TIA) standard practices. In addition: • Should the assigned technician be absent or unavailable, ? Yes Li No the Vendor will provide an equally qualified and certified replacement technician. • The City reserves the right to review and approve the Li Yes Li No assignment of the dedicated technician if replacement (either temporary or permanent) of the existing technician is required. • The assigned technician's work hours may be adjusted by ? Yes L3 No the City Telecommunications Coordinator from 8-5 on an as needed basis with prior notice to the Vendor to allow necessary work to be done during a period with less impact on City's business operations. 25 25A-35 & able to • If the Vendor elects at their choice to use more than one Li Yes L3 No service technician to perform a task, there will not be any additional cost to the City. • Work outside the scope of work of this Proposal will be Li Yes Li No billed at agreed-upon service rates and only when authorized in advance by the City Telecommunications Coordinator or his/her designee. 5.4 EVENT MONITORING SERVICE FOR NEAX2400IPX The Vendor shall provide, install and maintain, at no Li Yes Li No additional charge to the City, an Event Monitoring Service (with associated equipment) to each of the City's NEC NEAX 2400IPX systems or like systems. • The Event Monitoring Service shall monitor for system Li Yes Li No alarms and environmental conditions and connectivity provided by the City. • The Vendor shall continuously monitor the output of these ? Yes ? No Event Monitoring units on a twenty-four (24) hour per day, seven (7) days per week, fifty-two (52) weeks per year basis and will take prompt corrective action when an irregularity/problem is detected. • In those instances when a major system or environmental ? Yes Li No problem is detected, the Vendor will promptly alert the City Telecommunications Coordinator or alternate designated City contact person. • In the event that the Event Monitoring Service fails to ? Yes Li No detect and alert of an environmental or system condition, which causes damage to the City's equipment: the Vendor shall make all necessary repairs to restore the equipment to the manufacturer's specifications and full operation at no additional cost to the City. 5.5 Telephone Instruments The Vendor will: ? Yes ? No • Service and maintain in good working condition all ? Yes Li No telephone instruments in use throughout the City on all City telephone systems in accordance with the manufacturer's technical specifications. • Either repair or promptly replace faulty telephone Li Yes Li No instruments with identical OEM equipment. • At all times, maintain on City premises, an adequate ? Yes ? No supply of spare OEM telephone instruments of each model currently in use on the City telephone systems. 5.6 Trainin During each year of the agreement, at a time selected by Li Yes No the City, one equipment-training course may be selected from the list below for each of three (3) persons designated by the City. The courses will be provided by the selected Vendor at no additional cost to the City. 26 25A-36 27 25A-37 Willina R • IVtAX L4uuiF'X Customer Administration Programming. Li Yes ? NO • NEAX 2000IPS Customer Administrative Programming. ? Yes ? No • Basic IP Networking Fundamentals. ? Yes ? No Further, the Vendor will provide additional training for any Li Yes ? No new systems that are purchased by the City from the Vendor during the term of agreement. 5.7 Consultation Services During the term of this agreement, the Vendor shall provide, at no additional cost, consultation services with regard to, but not limited to, such items as: Li Yes ? No • Upgrades to telephone equipment ? Yes ? No • Software options Lj Yes ? No • Trunk and Central Office (CO) connectivity Lj Yes ? No • Fiber optic installation ? Yes Li No • Productivity enhancements Lj Yes ? No • VOIP options ? Yes Lj No • Unified Messaging System options ? Yes Lj No 28 25A-38 Part B - CENTIGRAM (To be completed by CENTIGRAM maintenance Proposers) B1. A description of the overall qualifications of the Proposer and experience and ability to provide voicemail system maintenance for CENTIGRAM - based voicemail infrastructure. {ref. section 6.2.d} B2. Identify and provide evidence of the Proposer's ability and capability to provide voicemail system maintenance for a CENTIGRAM 640 Voicemail System identified in section 4.0 of the RFP. {ref. section 6.2.d} B3. A description of any unique qualifications and experience which distinguish Proposer's ability to provide voicemail system maintenance for CENTIGRAM systems. {ref. section 6.2.d} B4. What percent of your base business consists of servicing and supporting CENTIGRAM equipment? {ref. section 6.2.f} B5. Identify and provide the certifications on CENTIGRAM systems/equipment (as identified in section 4) of the Proposer's technicians and any other engineering and service staff. {ref. section 6.2.g} B6. A description of any unique qualifications and experience which distinguish Proposer's technicians and any other engineering and service staff's ability to provide voicemail system maintenance services. ? {ref. section 6.2.g} 29 25A-39 Respond to each of the following services sought by the City and related terms and conditions as the Proposer's willingness and ability to provide or comply. Identify any exceptions. {ref. section 6.2.h} Willing & able to provide and/or 5.2 General Services & Support The City seeks a term of three (3) years with possible ? Yes Li No extensions of three (3) additional one-year periods at the Citv's discretion. The City seeks a Vendor to provide full-service maintenance ? Yes Li No for the City's CENTIGRAM Voicemail System The Vendor shall: • Provide all required maintenance (parts and labor) and ? Yes Li No maintain the CENTIGRAM in good operating condition in accordance with the manufacturer's technical specifications. This is to include the most current software release for all telecommunications equipment at no additional charge to the City. • Use only original equipment manufacturer (OEM) parts for ? Yes Li No repair or replacement of defective equipment. • Perform preventive maintenance on the CENTIGRAM in ? Yes Li No accordance with manufacturer's specifications. ¦ Preventive maintenance shall be performed on a Li Yes Li No schedule which is workable with the City's operating requirements and which is mutually acceptable to the City and the Vendor. ¦ Completed preventive maintenance checklists will be ? Yes Li No provided to the City Telecommunications Coordinator on a monthly basis. • Perform monthly system backups and an Offline Li Yes ? No Run/Verify every six (6) months. • Maintain an adequate on-site inventory of spare OEM ? Yes ? No parts for repairs and replacements. ¦ The Vendor will identify the amount and type of L3 Yes Li No storage space it prefers. Actual storage space to be provided by City will be determined by the City Telecommunications Coordinator. • Respond within four hours (excluding weekends and Li Yes Li No holidays) of Vendor's receipt of the City's service request when Minor Repairs are necessary during normal City working hours (8-5). ¦ Minor Repairs should be completed within twenty- ? Yes ? No four (24) hours. • Respond within two (2) hours of the City's notification by u Yes Li No the Telecommunications Coordinator or his/her designee in case of Major System Failure during normal City working hours (8-5), ¦ In case of Major System Failure, before or after Li Yes ? No normal City working hours (8-5), or on weekends or days observed by the City as holidays, the Vendor shall respond to notification of major failures within four (4) hours of said notification. 30 25A-40 Willina & ¦ Major System Failure repairs should be completed L3 Yes 0 No within forty-eight (48) hours. ¦ In the event that the Vendor has not repaired a Li Yes ? No Major System Failure within forty-eight (48) hours, Vendor will provide and install on site loan equipment at no additional cost to the City, within forty-eight (48) hours after failure notification. • The City Telecommunications Coordinator or his/her ? Yes Li No designee will determine the designation of any repair as either Minor or Major. 31 25A-41 Lq 0 CL 0 L a a? V .L a M c 0 U N U C C N a-J C fo E U 4'-' C >1 fo ? 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E. d V ? c fC G m L R lu H 4a c O u d H m s v L 7 a N 41 3 O V H G ? ? 'di- 4A 4d!? iR A ? 'dl- ift { {f} {f} c U U U 4? N N O N E `70 c?? -0 - c a ? (1) c Ln aj c CL -C a) Luca N r ac (1) N L mica) - c: E4 o - c E4? o N A - c E4) o ajIZ (1) -C ( c 4+ () 01 C L=3 11 a) a? C L 4J ( c L - n m O 7 0) 0 =1 01 0 N N 4 N N E En N4? 44 L L 41 L Q C C E 2 E C 0 0 0 c QJ N C N c N E> m E> E> m N u u Q) u u u u -C ai L 4- to :3 s cu L 4? CA a L M -3- Q 73.E Q a .? N ,> (L) D ,> N d aOE 1 o -r- a`0E l aO? Ut Y N U) 0 z Ln m 25A-45 W U c (D d-J U) fu ^E W U_ \O a z U L V L m 4w L a 0 CL 0 E. En 0 w (1) N Ln ra tf 0 CL CL 0 Ul o2S a? U C fa c a? C fu E E a) Ln 4d'r if ifs 4d'r ift iA - -Ur if} 4d? - if- ifr 4d:? 4dr if} ift ifr if} if4 4A d L s H L 10 d y} tf} ifl- ifl- JA {{} 4A O L R d } if} if} {{} ifs y} 4A iPr C O L fC {j} i!} iPr it} {f} {Pr i& v u O c a c Im a, ra U i o u a u Y U N O L E O (ii U C N c CO co (a t 2: t N = f 6 C ca U a Q a 1 h 4O O t f M c d o Z n 0 ra ? U Z E E G7 g v u I u W M E 41 R V U "L t' 0- U U U r. _ O M Q M L. k > O 0 (U 41 Q u u ?? m cn (1) L fa cn s 0 Cfu Y 0 C x C o W H M N M U f" U 4? s ` 0) Q C1 E 0) 6 (U L W Z D a (n m w VI L v J--i u U W Utir QUA co O? W r? H FA M O L d a ?o 3 a? c d ?o c O a O }1 C G1 E Gl L p1 Q w O E d V .y 10 m H d m s u V R 0 oc d V C r0 C C x 0 H 25A-46 fu O z M V ro ^C W c ra N U) ^E W U_ ?O CD F- Z W U L. 0 V _ .L D_ a? m? L : m 0. H 'C 0 M 4) a 3 a? d oc 0 47 (1 L. s H }? L E } L O O13 a? 0 a? d H V 41 .N = m 0 co L m a? o+ L t u H O 4) C ?a d V H d p1 10 s U w 0 0 4) f W 4dj - 4,& if} if} if} ifr i? 4,A : {? jf? {f} if; ifr ift if} ? ? +R- ipr 4d) - if} io4 if; {ii if} if; ifs ifr 4A ifr if} 4A -fl- if} iPr if} if} if} JA if} if} if} m a) o a) a) N a) N U Ql Q1 Ol Q1 r0 00 ra (6 fu U O U V U U U C C U C C C a) 3 ~ > ° 0 ? a) -n s_- > a) J >C (0 4. O C L a) Z, C: a? n L ? Z C: (6 a) - a) 4-1 aJ -? a - a) _ 0 0 0 ZA Y 03 aEi Ln a) 0 z m 25A-47 N U O W N U) ^E W U_ O L.L. V H z LLJ U L0 V W 0 c 41 u L. c M o IL -- 4d) - A4 V?r if? {A V? ? -(A- A d i s F L R i fA- 0 a? ? -bF)- 4A d C O L R 4? 4-J c U U 4, u 4+ N O C) ? O O ? ? LO 0 41 -0 C 4? L 4? C (p C : ?p C _ M Q .Cr ? ; ; a ; Lu ca) N ac a) a) mica) N c Jr E 0 C -j O(U C -C O Q L 0 L 0) ?W ) (U? i(, o Q ° o Q o Q N N4? 4-1 L L Q '5 44 L 0 E C C E CC C = 0 0 v 0 w a) a? a) E > E > U) u Ln > {A w u U N U U L }I c = aj L a..+ N D aj L - N 7 .c L 4- N 7 7 0 N Q "d 3 a-. a CL -p - N a : - V > N'-- _ > N c > N -,-- G a o E a o E- at 0 E H V 0 L d a ?a 3 a? c a? ?a c 0 n O C d d L 01 a 0 E V .y f0 m .H c 0 V O H V L a in N N m 0 z 25A-48 Appendix B- DESCRIPTION AND LOCATION OF EQUIPMENT The City of Santa Ana's Telephone System Network serves a total of 35 service locations through an AT&T network configuration of local, Tie (T-1) and OPX lines with approximately 3770 voice and 40 voicemail ports. The City's 29 system locations are indicated below: NEAX 2400IPX (5 Systems) City Hall 20 Civic Center Plaza ..................................................... 1388 ports Police Department 60 Civic Center Plaza ..................................................... 1060 ports Fire Department 1439 S. Broadway ........................................................... 178 ports City Yard 220 S. Daisy Street ........................................................ . 208 ports Train Station 1000 E. Santa Ana Boulevard ........................................... . 232 ports NEAX IPS2000 (7 Systems] Memorial Center 2102 S. Flower Street ....................................................... . 36 ports Jerome Center 726 S. Center Street ........................................................ . 36 ports El Salvador Center 1825 W. Civic Center Drive ................................................ . 52 ports Santa Ana Senior Center 424 W. Third Street .......................................................... .44 ports Fire Station #5 120 W. Walnut Street ....................................................... . 68 ports Fire Training Center 3405 W. Castor Street ...................................................... . 52 ports Santa Ana Jail 62 Civic Center Plaza ........................................................ . 32 ports NEAX IVS2000 (2 Systems] Downtown Development 305 E. Fourth Street ......................................................... .64 ports Corbin/Southwest Senior Center 2201 W. McFadden Avenue ................................................ . 72 ports 39 25A-49 NEC INFOSET 408 (10 Systems) Fire Station #1 1029 W. 17th Street .......................................................... 12 ports Fire Station #2 1668 E. 4th Street ............................................................ 12 ports Fire Station #3 419 S. Franklin Street ........................................................ 12 ports Fire Station #6 950 W. Macarthur Avenue .................................................. 12 ports Fire Station #7 2317 S. Greenville Street ................................................... 12 ports Fire Station #8 501 N. Newhope Street ...................................................... 12 ports Fire Station #9 1320 E. Warner Avenue ........................................... .......... 12 ports Fire Station #10 2301 N. Old Grand Avenue ....................................... .......... 12 ports Santa Anita Center 300 S. Figueroa Street ............................................. .......... 12 ports Eddy West Stadium 602 N. Flower Street ............................................... .......... 12 ports NEC Electra Pro Elite (2 Systems) Santa Ana Zoo 1803 E. Chestnut Street ........................................... ..........40 ports Newhope Library Branch 122 N. Newhope Avenue .......................................... .......... 12 ports NEC MARKII (2 Systems) Westend Police Sub Station 3750 W. McFadden Avenue, Unit "I" ........... .. .......... 16 ports EDAC Voice Recorder Interface Unit (1 System) Police Department 60 Civic Center Plaza ............................................... .......... 60 ports Centigram 640 Voicememo Voice Processing System (1 System) City Hall 20 Civic Center Plaza ............................................... .......... 40 ports 40 25A-50 Appendix C - Sample Agreement AGREEMENT BETWEEN THE CITY OF SANTA ANA AND THIS AGREEMENT, is made and entered into this XX day of June, 2011, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City") and ("Vendor"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of telecommunications products and services as outlined in the RFP "QUALIFIED VENDORS TO PROVIDE TELEPHONE SYSTEM AND/OR VOICEMAIL SYSTEM MAINTENANCE FOR THE CITY OF SANTA ANA" B. Vendor represents that Vendor is able and willing to provide such services to the City C. In undertaking the performance of this Agreement, Vendor represents that it is knowledgeable in its field and that any services performed by Vendor under this Agreement will be performed in compliance with such standards THEREFORE, in consideration of their mutual and respective promises, the parties hereto do hereby agree as follows: Terms and Conditions The term of this Agreement shall be for period of three (3) years, with an option for the City to exercise an additional three one-year extensions. All terms and conditions more fully set forth in the Request for Proposal ("RFP"): "QUALIFIED VENDORS TO PROVIDE TELEPHONE SYSTEM MAINTENANCE AND/OR VOICEMAIL SYSTEM MAINTENANCE FOR THE CITY OF SANTA ANA", May 2011, shall have full force and effect in this Agreement. Said terms and conditions are attached hereto as Exhibit A, and incorporated herein by reference. All terms and conditions set forth in the Vendor's "Proposal for Qualified Vendors to Provide Telephone System and/or Voicemail System Maintenance for the City of Santa Ana", May 2011, shall have full force and effect in this Agreement. Said terms and conditions are attached hereto as Exhibit B, and incorporated herein by reference. Scope of Services The scope of services and deliverables are fully described in Section 5 of the RFP: "QUALIFIED VENDORS TO PROVIDE TELEPHONE SYSTEM AND/OR VOICEMAIL SYSTEM MAINTENANCE FOR THE CITY OF SANTA ANA." Compensation City agrees to pay, and Vendor agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. The total sum to be expended under this Agreement, shall not exceed 41 25A-51 $ during the term of this Agreement. 4. Insurance Prior to undertaking performance of work under this Agreement, Vendor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Vendor shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Vendor'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. Vendor shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Vendor, if Vendor 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, Vendor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. The following requirements apply to the insurance to be provided by Vendor pursuant to this section: (i) Vendor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Vendor 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 Vendor's right to be paid for its time and materials expended prior to notification of termination. Vendor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 42 25A-52 5. Billin Invoices (a) Billing is according to Generally Accepted Accounting Principles. Fees for licenses, products, and services specified throughout this agreement are billable per the schedules specified. Payment terms are net thirty (30) days from receipt of proper invoice. City will make a good faith effort to begin processing invoices for payment immediately upon receipt. (b) Invoices shall be mailed to: Attn: Carl J. Marek City of Santa Ana Telecommunications Services (M-77) P.O. Box 1988 Santa Ana, CA 92702-1988 *City will pay invoices 30 days after receipt of proper invoice and approval of service by the Telecommunications Coordinator. *The Agreement number must appear on all invoices. *No purchase orders will be issued. *All invoices must show the breakdown of work performed and products provided. 6. Confidentiality If Vendor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Vendor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Vendor disclosed in a publicly available source; (c) is in rightful possession of the Vendor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Vendor without reference to information disclosed by the City. 7. Discrimination Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 8. Termination of Agreement This Agreement may be terminated by the City upon thirty- (30) days written notice of termination. In such event, Vendor shall be entitled to receive and the City shall pay Vendor compensation for all services performed by Vendor prior to receipt of such notice of termination, subject to the following conditions: 43 25A-53 a. As a condition of such payment, the City Manager, or his/her designee, may require Vendor to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Vendor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work, which fails to meet the standard of performance specified in this Agreement or any of the attachments hereto. Independent Contractor Vendor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Vendor performs the services which are the subject matter of this Agreement; however, the services to be provided by Vendor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Vendor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 10. Notice Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Finance and Management Services Agency Telecommunications Coordinator City of Santa Ana 20 Civic Center Plaza (M-77) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (7140 647-6722 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6515 With courtesy copy to: Vendor 44 25A-54 11. Assignment/Subcontractors Inasmuch as this Agreement is intended to secure the specialized services of Vendor, Vendor 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. Vendor shall be fully responsible to the City for performance of subcontractors. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. Indemnification Vendor shall defend, indemnify and save harmless the City of Santa Ana, and its officers, agents, and employees, from any and all claims, demands, suits, actions or proceedings of any kind or nature (including workers' compensation claims and unemployment insurance claims) for damages to property and/or physical injury or death of any person in any way resulting from or arising out of the operations and acts of Vendor, its agents, employees or subcontractors, in the performance of this Agreement, except to the extent caused by or resulting from any act or omission of the indemnified parties. 13. Validi The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 14. Laws Governing this Agreement This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. Exclusivity and Amendment of Agreement This Agreement, along with any and all related exhibits and attachments, supersedes all other agreements, either oral or written, between the parties hereto with respect to the retention of Vendor by the City, and contains all the covenants between the parties with respect to such employment. 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, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both the City and Vendor. 16. Miscellaneous Provisions a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 45 25A-55 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council CITY OF SANTA ANA David N. Ream City Manager APPROVED AS TO FORM: Joseph Straka Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: Francisco Gutierrez, Executive Director Finance & Management Services Agency VENDOR [signature] Name: Title: Tax ID# 46 25A-56 Appendix D - Sample Insurance Forms Sample Additional Insured Endorsement Form ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents and volunteers are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, Califomia 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective , this endorsement form as a part of Policy # Issued to Named Insured Countersigned by Authorized Representative 47 25A-57 Sample Certificate of Liabilitv Form d.CWD_ CERTIFICATE OF LIABI F0060Ol1 LITY INSURANCE '"TM''?""" s7 Insurance Services Oreup, Inc. 704 Cedar Street ORLY AND OOMW4 NO WON THE CERTOWATE IIOLNK TM4 CMlMMTE 00 4 WW AUW06 EXT OR ALTER IM GWAIRA ! AFFO? BY THE PONCM O LOW. Cambridge M? 71413 COAIRAI4E4 AO CWAMI4 COMMON 0. Vbili leldNln PUMON C01rAMl A Tederal insurance Company Oft~ 4 00~ C COWIAW d "a* TOCM,VV T• %T THK POL•01li CF NMM1YAM OLRM BOLOW KAM ?i MW TO TW #WJW WUMAIM PON THE POLICY POND 01CICAT44N0rV&THBTAH0MANYLWQIM@MWT.T? 4R 001-111IOMOP MVOOI MACTOR6"NDOW '?TYMTl1FAWN,TOWNo ym •ilt?IM40r?T[ WY M OWAODOR•LAYL@LTAK Mtt OLEWPWM AP/IDIK DY VW PCLXM MCVAW WVj0N N>lAA" TO ALL TNR Tff&*. $00LU010MNANDOOMr01 WOOPSUCHPOLMMLLAMAIOMWYNALLTSMPNCUCNWfMIDCLAAW ? rn! M rlMMwat •eMA•nr MIIM•OR i' w VlOd,m OAf!«AM•?01YY} •0U0Yii MMN M1rLM•Mgemtl Lam saMMUUaLISY OlMN11KASSIMMU • 7 000 A x ? aOMaIiLOMAIO?NRKLMI•NRr 04/01/07 04/01/08 ruoouets.e••nw mm -!2,w,990 ' cusM•LUCS QsecZ•e sa?aoMwsMSV•IxMw tl 000 040 evows0tOM0w?6T0RSMW aMONaoaras¦e• -111A00 000 IrMfoMMMa/ .sy • •N•f>r ?..rwr• • 10,010 AVW OWOw UPMLM ARAM Coruas?s•MasL>?r • 1,000,000 MAL0041DAUX0 aeaNp?L+oMrreo• .__._,..?.. • A X X Mwo"uxN Mwa?anMwsAUMSS 04/01/97 04/03//4 ?ma P+?e'. ? • nLOra+rro•A••x • aMAMIuvmuvY AUleallr•MACeN{T • AWN" V4WAW**ftV'. q B"Mm w • - A00001M S 649 0suOSRnY aCM000400" • W *MXLAA MM AO•g00?NE : aniRlWwtMIM•11•LIA•wIM • weMrmLSwwre?noMAMO WWWWWWOL"T `• aaKMM i ? _ NCL a0•LMOt•rOWCYLMf • on?csfuA•c t•Ma amrurl•s?sLrLSra : C4RTN!1CATt HOLDER " k-. CITY OF SANTA ANA, ITS OFFICERS AGENTS AND EMPLOYEES T.O. BOX 1988 SANTA ANA. CA 92702 <<<- •NOULe Arr sr TMN Mi•0Vt ss•aMU•ao POLICA• at aMNeeLS •M•iN »t VWM? 1*A'MT6 NW "*"""1 G0wPWWvmL A% .?!!_ OY?ri N••Till McTIq T01iRO0RIMhWLTtlOiLOq 1MYL!a 10 TMK L•/T, O. 11<ilip i?ldsv? 48 25A-58 Sample Workers' Comp Form STATE P.O. BOX 420807, SAN FRANCISCO, CA 941424)807 COMPENSATION INSURANCta FUND CERTIFICATE OF WORKERS' COMPENSATION INSURANCE NOVEMBER S, 1997 POLICY NUMBER: CERTWICATE EXPIRES: 12-31-98 r CITY OF SANTA ANA INFORMATION SERVICES N-12 ATTN LYNDA KELLY P O BOx 1988 SANTA ANA CA 92702 JOB: VERIFICATION OF INSURANCE L This Is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California insurance Commissioner to the employer named below for the policy period indicated. _ This policy Is not subject to cancellation bythe Fund 9=" upon ten days' advance WnIW notice to the employer. We will also give you TEN days" advance notice should this policy be cancelled prior to its normal expiration. This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policies listed herein. Notwithstanding any requirement, term, or condition of any contract or other document with respect to which this Certificate of insurance may be issued or may pertain. the insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of such policies. AUTHORIZED REPREEENtATIVE PRESIDENT EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: 41,000,000 PER OCCURRENCE EMPLOYER r 49 25A-59 Empowered by Innovation NEC Original Submitted By: Peggy Castner Enterprise Account Manager 3900 Kilroy Airport Way Long Beach, CA 90806 714.287.4542 Peggy.castner@necam.com Submitted To: City of Santa Ana Telecommunications Services (M-77) P.O. Box 1988 20 Civic Center Plaza Santa Ana, CA 92702 Y ? a 11 25A-60 HIBI ° Response to the City of Santa Ana Telephone System and/or Voicemall System Maintenance DISCLAIMER NEC Corporation of America ("NEC") is grateful for the opportunity to provide our response to Response to the City of Santa Ana for Telephone System and/or Voicemail System Maintenance. While NEC realizes that, under certain circumstances, the information contained within our response may be subject to disclosure, NEC respectfully requests that all pricing, engineering design, and unique or specific hardware configurations provided herein be considered proprietary and confidential, and as such, not be released for public review. Please notify [Account Manager] at [Phone] promptly upon your organization's intent to do otherwise. NEC requests the opportunity to negotiate the final terms and conditions of sale should NEC be selected as the preferred vendor for this engagement. NEC Corporation of America 6535 North State Highway 161 Irving, TX 75039-2402 litt www.necanl.com Copyright 2011 NEC_ is a registered trademark of NEC Corporation of America, Inc. NEC Empowered by 1-.o tfm 7 25A-61 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Tab- le of Contents 1. TRANSMITTAL LETTER ....................................................................................................................................... 4 2. SERVICES PROPOSAL .......................................................................................................................................... 6 EXCEPTIONS AND CLARIFICATIONS .................................................................................................................25 3. PRICE PROPOSAL ..............................................................................................................................................26 Empowered by Innorat?on NU=IC 25A-62 Response to the City of Santa Ana Telephone System andlor Voicemail System Maintenance 1 a Transmittal Letter May 19, 2011 Mr. Carl J. Marek Telecommunications Coordinator Information Services Division 20 Civic Center Plaza Santa Ana, CA 92702 Dear Carl, Thank you for providing NEC Corporation of America the opportunity to respond to your Request for Proposal Telephone and Voicemail Maintenance. NEC's proposal for our engineering support services has been specifically designed to meet the City of Santa Ana's stated requirements. Selecting the right partner is the key to success for continuing your telephony maintenance project. NEC Corporation of America, the manufacturer of your current telephony system, has an established reputation of successfully supporting and managing our installed base of clients since the 1970's. NEC is uniquely qualified to be the business partner that the City of Santa Ana chooses to represent them on this project. • We have the inherent knowledge of the existing NEC solution combined with our highly certified engineers and our consistent long standing relationship, makes for a dynamic combination for the City of Santa Ana. • NEC will ensure the continuity to mitigate risk associated with EOL maintenance and provide City of Santa Ana with the continuity to ensure mission critical applications remain operational • NEC has the local presence and expertise to ensure responsiveness and SLA's required for the support • We have proposed an aggressively priced maintenance support model • NEC will provide the product roadmap to assist the City of Santa Ana in the future upgrade of the application including a plan that demonstrates show to upgrade without business disruption. We proposed our strategy for maintaining the existing voicemail system. This system has provided the City with almost two decades of service. During these next three years, The City of Santa Ana has a unique opportunity to evaluate newer, supported NEC systems for perhaps the same investment that you make in maintaining the current system. Thank you for the time you spent providing clarifications to our questions. Be assured of NEC's continued commitment to deliver a cost effective, consistent, and highly reliable solution for all locations and staff at the City of Santa Ana. As we proceed together toward that goal, our only meaningful measure of accomplishment will be the consistent satisfaction of our client. I Empowered by Innovation 4 25A-63 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance We will propose our strategy for maintaining the existing voicemail system. This system has provided the City with almost two decades of service. During these next three years, The City of Santa Ana has a unique opportunity to evaluate newer, supported systems for perhaps the same investment that you make in maintaining the current system. We will suggest some solutions to ponder and are always available to discuss the current trends in the communication industry with you. Thank you for the time you spent providing clarifications to our questions. Be assured of our commitment to deliver a cost effective, consistent, and highly reliable solution for all locations and staff at the City of Santa Ana. As we proceed together toward that goal, our only meaningful measure of accomplishment will be the consistent satisfaction of our client. Warm regards, Peggy Castner Enterprise Account Manager NEC Empo erect toy Innovation 5 25A-64 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance 2. Services Proposal Name of Proposing Firm: Proposer's Principal Location: Proposer's Location that will service the City Contact Name for Proposal: Phone Number: Fax Number: email address: NEC Corporation of America Dallas, TX - Corporate Office Long Beach, CA Peggy Castner 71.4.287.4542 714.832.3439 Peggy.c:astner@necam.com Please submit answers to the following questions (Note: Proposer may attach additional pages as needed to complete responses.) GENERAL (To be completed by all Proposers) 1. Short summary description of the organization. {ref. section 6.2.c} For more than 100 years, NEC has built inspired technology with the sole purpose of connecting people. From the dawn of telephony to the universe of broadband Internet technology, NEC has created tools that continue to define it as an innovator of practical technology for everyday use. Today NEC Corporation is a Global Fortune 500 company with more than 7.54,000 employees worldwide and $41 billion in revenues. NEC is a leader in technology solutions to meet the needs and demand for broadband network, e-commerce and enterprise business solutions. NEC is a provider of core technologies and services for the connected world, ranging from advanced semiconductors and device solutions, to high-speed optical communications, systems integration, enterprise-class hardware and e-commerce software applications. NEC Corporation of America was formed on July 1, 2006, from the combined operations of NEC America, NEC Solutions America and NEC USA. From server and storage solutions, digital presentation and visual display systems to IP voice and data solutions, biometric identification, optical network and microwave radio communications solutions, our clients gain access to more custornized solutions and resources to improve and maintain their competitive edge. vn_ NEC: Empowered by in-atlon 25A-65 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance NEC Corporation of America Unifying Business Communications Takayuki Okada President and CEO Masakki (Jim) Nakajima Senior Vice President Communications Technology Group Matthew J. Pierce Senior Vice President Solution Sales and Marketing EC Empowered by lnncv don NEC Corporation of America helps companies unify their business communications through Innovative software, applicallons, development fools, and services. NEC offers a complete portfolio for unified communicatlons, wireless, voice, data and managed services, as well as systems integration and application development. NEC Corpcratlon of America serves as the North American communications Integration arm of global giant NEC Corporation for Fortuna 1000, aswell as small to mid-shed businesses In vertical markets such as hospitality, education, government, and healthcare. For more Information, visit Makoto Omi Vice President Sales and Marketing Paul Covington Senior Vice President Operations Suichl Sagawa Vice President UC Products and Support 7 25A-66 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance NEC's comprehensive portfolio includes: SMB & Enterprise Communications Platforms Unified Communications Network Infrastructure vole Solutions Contact Center Applications Network Security Solutions Year Founded: NEC Corporation was founded July 17, 1099_ Financials: NEC Corporation reported net sales or approximately, $40 billion in fiscal year ending March 2008. Broadband & Carrier Services Wireless Solutions Digital Slgnage Infrastructure Services Managed Services Professional Services Employees: NEC Corporation employs more than 150,000 people worldvlide. NEC Corporation of America Headquarters: 6535 N. State Highway 161 Irving, TX 75039 1.800.240.0632 NEC Corporation is one of the world's leading providers of Internet, broadband network and enterprise business solutions dedicated to meeting the specialized needs of its diverse and global base of customers. NEC delivers tailored solutions In the key fields of computer, networking and electron devices, by Integrating its technical strengihs in IT and networks, and by providing advanced semiconductor solutions through NEC Electronics Corporation. Empowered by innovation, its solutions, products and services are backed by the leadership and expertise of one of the most successful global companies, conducting business for more than 100 years. For additional information, please visit the NEC home page at: !°° Emrwwere0 by Innovation S 25A-67 NEC's UNIVERON60 Communlcotlons Model Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance 2. Short summary description of the ownership. pref. section 6.2.c} NEC Corporation of America (NECAM) is a privately held subsidiary of NEC Corporation. As a general rule, NECAM does not disclose financial statements or related financial information to its customers, except where the size and/or scope of the contract might warrant such disclosure. NEC believes that the information in this report should be more than sufficient for Springfield City Schools to evaluate NEC's ability to fulfill its obligations. A copy of the annual reports for 2005 and 20010 can be downloaded at the following links: http://www.nec.co.jp/ir/en/material/annual/2009/index.html http://www.nec.co.jp/ir/en/material/annual/201.0/index.html 3. Description of the major service/s offered by the Proposer's firm. {ref. section 6.2.c} NECAM's service portfolio includes the following: ® SMB & Enterprise Communications Platforms b Unified Communications P Network Infrastructure b VolP Solutions P Contact Center Applications 6 Network Security Solutions ® Broadband & Carrier Services Wireless Solutions V Digital Signage b Infrastructure Services 6 Managed Services V Professional Services 4. The number of years that the Proposer has been in the business of providing telephone and/or voicemail system maintenance. (If company name or ownership has changed of the period cited, please note and explain.) {ref. section 6.2.c} NEC began manufacturing telephone systems in the 1920's and has continued to protect our client's investments in technology. We consistently offer innovative solutions and give our clients the ability to take advantage of them through upgrade paths and software assurance. We have always offered full service Maintenance to our client base. See the following diagram for NEC's complete technology timeline. NEC Empowered Gy lnnovadon 9 25A-68 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance CL EV TECHNOLOGY -00:4 ITNIJIT, R GE NE Ax 2400 IPX 2005 1 (CPL! Pen.tiain 1G) 2.003 1F (110 6, RCE V-70 0 It, Evolution ! 2;} (CPL Pentium III 601}) t 19 u l N TV ;XX 2400 IN-1X7 FusIota (CPL' Pentium 133) t 1996 j/N'FA- X 2400 I C'S (CPU Pentiam) 1995 ,' NEAUX 1-400 K-'S (CPL' 31 Bit 4S6) 1993 SEA 2400 IC.S (CPL' i? Bit q) 1989 \on Blocking TDS%VI Stored Frog (CPU 32 Bit 1-70) N , N 2400 RDti ion Blocking TDSYi', Stored VI,g...g (CPU, 16 Bit S086) 197 8 -°'"?iE.?•K 22 Time Division. Stoned pKpg (CPU S Bit SOSO) 1974 IN X 31 Space Division,. Stored Prola (Discrete CPL' 16 Bit) 5. A confirmation of the Proposer's willingness and capability to agree to and to follow the terms and processes outlined in this RFP and resulting agreement including all administrative and billing procedures of the City. {ref. section 6.2.e} Yes, NECAM is willing and capable of negotiating to mutually agreeable terms of the RFP and the resulting agreement including administrative and billing procedures. 6. A description of any other information the Proposer feels is relevant in helping the City gauge the Proposer's business stability. tref. section 6.2.f} NEC has partnered with the City of Santa Ana for over 15 years and has provided sales and engineering support as well as maintenance services. We believe the partnership has been extremely strong, built on mutual trust and the commitment to serve the City of Santa Ana. This is evident in the long term technical resources and management that have supported the City over the years. This long terra commitment provides tremendous value to the City, as our engineering corps has the history and the knowledge to keep you up and running. We also have the expertise to advise the City on beneficial new technologies. NEC: Empowered by Innovation 10 25A-69 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance 7. Has your firm had a contract terminated for cause within the last 3 years? If so, please explain the circumstances. {ref. section 6.2.f} No. 8. Has either a customer or a vendor sued your firm in the last 3 years? If so, please explain the circumstances. {ref. section 6.2.f} No. NIEEmpowered by Innovation 11 25A-70 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance 9. References Provide a MAXIMUM of three (3) references from government agencies or commercial firms that will attest to your firm's ability within the last three years to provide services similar in scope and skills sought by the City in this RFP. Reference One: Name of Client County of Santa Barbara Location where work was performed Santa Barbara, CA Knowledgeable contact (name) Carl Thornton Contact's title Communication Manager Contact' email address cthornton co.santa-barbara.ca.us Contact's phone number 805-681-5581 Approximate period during which the services were provided Currently under contract Description of services provided Maintenance Service Reference Two: Name of Client San Diego Data Processing (City of San Diego) Location where work was performed San Diego, CA Knowledgeable contact (name) Mike Straw Contact's title Telecommunications Manager Contact' email address mstraw@sddpc.org Contact's phone number 858-581-9799 Approximate period during which the services were provided Currently under contract Description of services provided Maintenance services Reference Three: Name of Client City of Rancho Cucamonga Location where work was performed Rancho Cucamonga, CA Knowledgeable contact (name) Keri Hinojos Contact's title Sr. Buyer Contact' email address keri.hinojos@cityofrc.us Contact's phone number 909)477-2700 ext. 2501 Approximate period during which the services were provided Currently under contract Description of services provided Maintenance Services NEC Empowered by InnowLion 12 25A-71 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Part A - NEC Systems (To be completed by NEC Telephone Systems maintenance Proposers) Al. A description of the overall qualifications of the Proposer and experience and ability to provide telephone system maintenance for NEC-based telephone infrastructure. {ref. section 6.2.d} NEC began manufacturing telephone systems in the 1970's and has continued to protect our client's investments in technology. We consistently offer innovative solutions and give our clients the ability to take advantage of them through upgrade paths and software assurance. We have always offered full service Maintenance to our client base. A2. Identify and provide evidence of the Proposer's certification/authorizations to provide telephone system maintenance for NEC systems/equipment identified in section 4.0 of the RFP. {ref. section 6.2.d} NEC Corporation of America is certified and authorized to provide telephone system maintenance for the 24001MX, 24001MG-XH, 24001MG/ICS and 2000IVS. NEC also has full knowledge of Centigram voicemail systems and EDAC. A3. A description of any unique qualifications and experience which distinguish Proposer's ability to provide telephone system maintenance for NEC systems. {ref, section 6.2.d} NEC's unique qualifications and experience are simply stated: who better to trust your telephony environment to then the manufacturer itself? We have the intellectual knowledge and property and the long standing engineering staff and field engineers who understand how our equipment functions -- inside and out! This is evident in the many cities and government agencies that rely on NEC for their communication requirements, A4. What percent of your base business consists of servicing and supporting NEC telephone equipment? {ref. section 6.2.f} NEC Corporation of America's mission is to provide customers with a world-class, end-to- end support solution for every aspect of their communications network: staging, configuring, deploying, maintaining, and upgrading. Add to this, support from our professionals with leading technical expertise and state-of-the-art resources and the result is a focused effort to provide our customers with the best support in the industry. With direct expertise of NEC technologies, NEC Corporation of America is able to extend to Santa Ana a worldwide infrastructure of expert knowledge. NEC Empowered by Irmo tlw 13 25A-72 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance A5. A description of the qualifications, experience and abilities to provide telephone system maintenance services of the Proposer's candidate on-site technician, backup technicians, and any other on-site engineering and service staff. ? {ref. section 6.2.g} NEC has been servicing this account with the same onsite technician since 1993. The same would apply to our back up technicians and engineers. Our technicians have a good understanding of the City's network and layout. NEC technicians and engineers very familiar with The City of Santa Ana's staff. A6. Identify and provide the certifications on NEC systems/equipment (as identified in section 4) of the Proposer's candidate on-site technician, backup technicians, and any other on-site engineering and service staff. ? {ref. section 6.2.g} NEC's current Santa Ana onsite technician holds certifications in 24001MX, 24001MO-M, 24001MG/ICS, 20001VS, knowledge of Centigram voicemail system and EDAC. The backup technician is certified on 24001PX, 2400Rf1S, 20001VS2, 20001PS. A7. A description of any unique qualifications and experience which distinguish Proposer's candidate on-site technician's, backup technicians", and any other on-site engineering and service staff's ability to provide telephone system maintenance services. ? {ref. section 6.2.g} We have been servicing this account with the same onsite technician since 1993. The same would apply to our back up technicians and engineers. Our technicians have a good understanding of the City's network and layout. A8. A description of the Proposer's candidate on-site technician's and backup technicians" working knowledge of, skills in, and experience with Category 5 cabling and termination in accordance with the Electronic Industries Association/ Telecommunications Industry Association (EIA/TIA) standard practices. ? {ref. section 6.2.9} NEC's current Santa Ana onsite technician is Cats certified. A9. Provide evidence of any training to Item A8 above. {ref. section 6.2.g} NEC's technicians and engineers have performed all necessary training for certification on these platforms. NEC Eff4 o ,erect by Innovation 14 25A-73 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Respond to each of the following services sought by the City and related terms and conditions as the Proposer's willingness and ability to provide or comply. Identify any exceptions. {ref. section 6.2.h) 1.11- It. -file I- _-AA- --A /.,.... ..?„ Exception\s 5.2 General Services & Su port The City seeks a term of three (3) years x Yes ? No with possible extensions of three (3) additional one-year periods at the City's discretion. The City seeks a Vendor to provide full- x Yes Li No service maintenance for the City's NEC Telephone S stem network. - - -- The Vendor shall: • Provide an on-site service technician to x Yes ? No perform repair services and MAC'S. (See section 5.3 • Provide all required maintenance (parts x Yes ? No *Except EOL equip. This also does not and labor) and maintain the equipment include upgrading or updating system in good operating condition in to current revision level when new accordance with the manufacturer's revision has been released or already technical specifications. This is to released. Additional charges will apply include the most current software when requesting to update to new release for all telecommunications software release. equipment at no additional charge to the City. • Use only original equipment x Yes ? No Yes, applicable to non-EOL equipment. manufacturer (OEM) parts for repair or EOL equipment will be replacement of defective equipment repaired/replaced on "best efforts" or such as circuit cards and telephone when replacements parts are instruments (including corded and available. This is not applicable to cordless telephones as well as hands- defective equipment caused by the free headsets and amplifiers - customer or "act of god". PLANTRONICS) at no additional charge to the Cit . • Perform preventive maintenance of all x Yes ? No systems and equipment at a minimum in accordance with manufacturer's specifications and/or requirements for the equipment, whichever is greater. • Preventive maintenance shall be x Yes ? No performed on a schedule which is workable with the City's operating requirements and which is mutually acceptable to the City and the Vendor. • Completed preventive x Yes ? No maintenance checklists will be provided to the City Telecommunications Coordinator on a month) basis. • At least once a month, perform regular x Yes ? No system backups & system de- fragmentations on all telephone HL BEC [NJ E.P-emd by4.,wa11- 15 25A-74 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Item Yes No Exception\s systems. • Maintain an adequate on-site inventory ? Yes x No *We don't not provide onsite crash kits of spare OEM parts for repairs and replacements. • The Vendor will identify the x Yes ? No amount and type of storage space it prefers. Actual storage space to be provided by City will be determined by the City Telecommunications Coordinator. • Respond on-site within four hours x Yes ? No *Applicable to NEC equipment only (excluding weekends and holidays) of Vendor's receipt of the City's service request when Minor Repairs are necessary during normal City working hours (8-5). • Minor Repairs should be completed x Yes ? No *Applicable to NEC equipment only within twenty-four 24 hours. • Respond on-site within 30 minutes of x Yes ? No the City's notification by the Telecommunications Coordinator or his/her designee in case of Major System Failure during normal City working hours (8-5), • In case of Major System Failure, x Yes ? No before or after normal City working hours (8-5), or on weekends or days observed by the City as holidays, the Vendor shall respond on-site to notification of major failures within two (2) hours of said notification. • Major System Failure repairs x Yes ? No *Except for EOL equipment. should be completed within Applicable to NEC equipment only. This twenty-four (24) hours. is not applicable to defective equipment caused by the customer or "act of god". • In the event that the Vendor has ? Yes x No *We do not supply loaner equipment. not repaired a Major System NEC will restore system to the best of Failure within twenty-four (24) their ability on "best efforts" basis. hours, Vendor will provide and install on site loan equipment at no additional cost to the City, within forty-eight (48) hour after failure notification. • The City Telecommunications x Yes ? No *The City's Telecommunications Coordinator or his/her designee Coordinator will consult with NEC and will determine the designation of come to an agreement to determine if any repair as either Minor or j repair is either Minor or Major. Ma or. • Serve as agent on the City's behalf for x Yes ? No all telephone company associated service and repair issues. • Provide for use by the on-site x Yes ? No technician (and all substitute or supplemental technicians a portable Emp-red by In-don 16 25A-75 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Willinn I ?kln f- :A- -A I .?.. Exception\s or laptop maintenance terminal for use in supporting the City's telephone system. 5.3 On-Site Service Technician The Vendor will provide an NEC certified x Yes ? No Service Technician dedicated solely to the City of Santa Ana. This dedicated technician will: • Work on-site at the City of Santa Ana x Yes ? No for eight (8) hours per day and forty (40) hours per week. However, City may, with fifteen (15) day prior written notice, change the number of days per week of the on-site dedicated technician support, with a corresponding increase/ reduction In the System Maintenance Related Charges, as set forth in Appendix A, Section 3. Price Proposal. The City shall retain the right to specify the weekly business days on which the technician will be on-site. Further, the City may, with ten (10) day prior email notification to Vendor, designate one or more days within a given work week, for which on-site technician support will not be provided. For each day that on-site support is cancelled, a credit will be issued to the System maintenance Related Charges as set forth in Appendix A, Section 3. Price Proposal. • Be on-call on a twenty-four-(24) hour, x Yes ? No seven (7) day-a-week, as-needed basis. • Perform repair services on any and all x Yes ? No *NEC & Centigram equipment only voice communications equipment as directed by the City Telecommunications Coordinator. • Will be available, when not responding x Yes ? No to particular requests for repair services, to provide as-needed MAC services as directed by the City Telecommunications Coordinator. Repair and MAC priorities will be x Yes ? No determined by the City Telecommunications Coordinator. Performance of MAC work during x Yes ? No *Applicable to dedicated onsite tech or normal assigned hours will not his backfill. Additional tech/eng incur any additional charge to the requested by the City to perform MAC City. will be billed at prevailing T&M rate. Should be capable of creating and x Yes ? No modifying a mailbox on the CENTIGRAM Voicemail System and performing a system backup. Empowered by kv .wtfon 17 25A-76 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Willin & able to rovide and/or com I Item Yes No . Exception\s • Have a working knowledge of, skills in, x Yes ? No and experience with Category 5 cabling and termination in accordance with the Electronic Industries Association/ Telecommunications Industry Association EIA/TIA standard practices. In addition: • Should the assigned technician be x Yes ? No --- , _-T.._._ *It will be at the discretion of NEC to absent or unavailable, the Vendor will decide a backfill of equivalent skills. provide an equally qualified and certified replacement technician. • The City reserves the right to review ? Yes x No and approve the assignment of the dedicated technician if replacement (either temporary or permanent) of the existing technician is re uired. • The assigned technician's work hours x Yes ? No *With 48 hour prior notification to may be adjusted by the City NEC. Telecommunications Coordinator from 8-5 on an as needed basis with prior notice to the Vendor to allow necessary work to be done during a period with less impact on City's business operations. • If the Vendor elects at their choice to ? Yes x No use more than one service technician to perform a task, there will not be any additional cost to the City. • Work outside the scope of work of this x Yes ? No Proposal will be billed at agreed-upon service rates and only when authorized in advance by the City Telecommunications Coordinator or his/her designee. 5.4 EVENT MONITORING SERVICE FOR NEAX2400IPX The Vendor shall provide, install and x Yes ? No *An event monitoring system is maintain, at no additional charge to the already in place. City, an Event Monitoring Service (with associated equipment) to each of the City's NEC NEAX 2400IPX systems or like systems. • The Event Monitoring Service shall x Yes ? No monitor for system alarms and environmental conditions and connectivity provided b the City. • The Vendor shall continuously monitor x Yes ? No the output of these Event Monitoring units on a twenty-four (24) hour per day, seven (7) days per week, fifty- two (52) weeks per year basis and will take prompt corrective action when an irre uiarit / roblem is detected. • In those instances when a major x Yes ? No NEC Enpowered by l-a[lon 18 25A-77 Response to the City of Santa Ana Telephone System and/or Voicemall System Maintenance Willinn IL ahla to nrnvirlP and /nr r•mmnly • Exception\s system or environmental problem is detected, the Vendor will promptly alert the City Telecommunications Coordinator or alternate designated City contact person. • In the event that the Event Monitoring ? Yes x No 't.To the extent such environmental Service fails to detect and alert of an system conditions are detectable by environmental or system condition, the Event Monitoring Service. This is which causes damage to the City's not applicable to defective equipment equipment: the Vendor shall make all caused by the customer, the City or necessary repairs to restore the "act of god". equipment to the manufacturer's specifications and full operation at no additional cost to the City.__ 5.5 Telephone Instruments The Vendor will: _ • Service and maintain in good working x Yes ? No condition all telephone instruments in use throughout the City on all City telephone systems in accordance with the manufacturer's technical specifications. • Either repair or promptly replace faulty X Yes ? No *Except EOL equipment/phones telephone instruments with identical OEM equipment. • At all times, maintain on City premises, ? Yes x No an adequate supply of spare OEM telephone instruments of each model currently in use on the City telephone systems. 5.6 Training During each year of the agreement, at a ? Yes ? No time selected by the City, one equipment-training course may be selected from the list below for each of three (3) persons designated by the City. The courses will be provided by the selected Vendor at no additional cost to the City. Courses: uv • NEAX 2400IPX Customer Administration Programming. ? Yes x No EOL Equipment. Formal training no longer offered. If customer request for training on 2400IPX, labor will be billed at prevailing engineering rate. • NEAX 2000IPS Customer Administrative Programming. ? Yes x No Formal training no longer offered. If customer request for training on 2000IPS, labor will be billed at prevailing engineering rate. • Basic IP Networking Fundamentals. ? Yes x No Formal training will be billed at current rate. NEC Empowered by Inn-d- 19 25A-78 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Willinn A ahi'm to nrnvir10 srsrl /nr r nw..ala. Item Yes No Exception\s Further, the vendor will provide additional training for any new systems that are purchased by the City from the Vendor during the term of agreement. x Yes ? No - -- --- ------- 5.7 Consultation Services During the term of this agreement, the Vendor shall provide, at no additional cost, consultation services with regard to but not limited to such items as: x Yes ? No • Upgrades to telephone equipment x Yes ? No • Software options x Yes ? No • Trunk and Central Office (CO) connectivity x Yes ? No • Fiber optic installation x Yes ? No • Productivity enhancements x Yes ? No • VOIP options x Yes ? No • Unified Messaging System options x Yes ? No V Y j-U Empowered Gy Innovation 20 25A-79 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Part B - CENTIGRAM (To be completed by CENTIGRAM maintenance Proposers) B1. A description of the overall qualifications of the Proposer and experience and ability to provide voicemail system maintenance for CENTIGRAM - based voicemail infrastructure. {ref. section 6.2.d} NEC began manufacturing telephone systems in the 1970's and has continued to protect our client's investments in technology. We consistently offer innovative solutions and give our clients the ability to take advantage of them through upgrade paths and software assurance. We have always offered full service Maintenance to our client base. B2. Identify and provide evidence of the Proposer's ability and capability to provide voicemail system maintenance for a CENTIGRAM 640 Voicemail System identified in section 4.0 of the RFP. {ref. section 6.2.d} NEC Corporation of America is certified and authorized to provide telephone system maintenance for the 24001MX, 24001MG-XH, 24001MG/ICS and 20001VS. NEC also has full knowledge of Centigram voicemail systems and EDAC. B3. A description of any unique qualifications and experience which distinguish Proposer's ability to provide voicemail system maintenance for CENTIGRAM systems. {ref. section 6.2. d } NEC's unique qualifications and experience are simply stated: who better to trust your telephony environment to then the manufacturer itself? We have the intellectual knowledge and property and the long standing engineering staff and field engineers who understand how our equipment functions - inside and out! This is evident in the many cities and government agencies that rely on NEC for their communication requirements. B4. What percent of your base business consists of servicing and supporting CENTIGRAM equipment? {ref. section 6.2.f} NEC Corporation of America's mission is to provide customers with a world-class, end-to- end support solution for every aspect of their communications network: staging, configuring, deploying, maintaining, and upgrading. Add to this, support from our professionals with leading technical expertise and state-of-the-art resources and the result is a focused effort to provide our customers with the best support in the industry. With direct expertise of NEC technologies, NEC Corporation of America is able to extend to Santa Ana a worldwide infrastructure of expert knowledge. NIEC Empowered by Irmo tlon 21 25A-80 Response to the City of Santa Ana Telephone System and/or Voicemall System Maintenance B5. Identify and provide the certifications on CENTIGRAM systems/equipment (as identified in section 4) of the Proposer's technicians and any other engineering and service staff. {ref. section 6.2.g} NE:C's current Santa Ana onsite technician holds certifications in 24001MX, 24001MG-XH, 24001MG/ICS, 20001VS, knowledge of Centigram voicemail system and EDAC. The backup technician is certified on 24001PX, 2400RDS, 20001VS2, 20001PS. B6. A description of any unique qualifications and experience which distinguish Proposer's technicians and any other engineering and service staff's ability to provide voicemail system maintenance services. ? {ref. section 6.2.g} NEC has been servicing this account with the same onsite technician since 1993. The same would apply to our back up technicians and engineers. Our technicians have a good understanding of the City's network and layout. NEC Empowered by Innovation 22 25A-81 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Respond to each of the following services sought by the City and related terms and conditions as the Proposer's willingness and ability to provide or comply. Identify any exceptions. {ref. section 6.2.h} Willinn IL -hl- te...rr,a.i.te -4 1 ..1., No Exception\s 5.2 General Services & Support The City seeks a term of three (3) years X Yes ? No *Through vendor Communitech with possible extensions of three (3) additional one-year periods at the City's discretion. The City seeks a Vendor to provide full- x Yes ? No *Through vendor Communitech service maintenance for the City's CENTIGRAM Voicemall System The Vendor shall: am-W MW • Provide all required maintenance (parts Yes x No *Through vendor Communitech, and labor) and maintain the voicemail is EOL. This also does not CENTIGRAM in good operating include upgrading or updating system condition in accordance with the to current revision level when new manufacturer's technical specifications. revision has been released or already This is to include the most current released. Additional charges will apply software release for all when requesting to update to new telecommunications equipment at no software release. additional charge to the City. • Use only original equipment x Yes ? No manufacturer (OEM) parts for repair or replacement of defective equipment. • Perform preventive maintenance on x Yes ? No *During normal business hours. the CENTIGRAM in accordance with manufacturer's specifications. • Preventive maintenance shall be x Yes ? No *During normal business hours. performed on a schedule which is workable with the City's operating requirements and which is mutually acceptable to the City and the Vendor. • Completed preventive maintenance x Yes ? No checklists will be provided to the City Telecommunications Coordinator on a month) basis. • Perform monthly system backups and x Yes ? No *During normal business hours. an Offiine Run/Verify every six (6) months. • Maintain an adequate on-site inventory ? Yes x No of spare OEM parts for repairs and replacements. - The Vendor will identify the amount x Yes ? No and type of storage space it prefers. Actual storage space to be provided by City will be determined by the City Telecommunications Coordinator. • Respond within four hours (excluding x Yes ? No weekends and holidays) of Vendor's receipt of the City's service request,. NEC Empowered by Inn-adon 23 25A-82 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance Willinn & nhlo to nrnvirlo nnrl /nr r nw...l.. Item Yes No Exception\s when Minor Repairs are necessary during normal City working hours (8- 5. • Minor Repairs should be completed x Yes ? No *Hardware replacement considered within twenty-four 24 hours. major. Excludes hardware. • Respond within two (2) hours of the x Yes ? No City's notification by the Telecommunications Coordinator or his/her designee in case of Major System Failure during normal City working hours 8-5 • In case of Major System Failure, x Yes ? No before or after normal City working hours (8-5), or on weekends or days observed by the City as holidays, the Vendor shall respond to notification of major failures within four (4) hours of said notification. • Major System Failure repairs should x Yes ? No *48 business hours be completed within forty-eight (48) hours. • In the event that the Vendor has not ? Yes x No repaired a Major System Failure within forty-eight (48) hours, Vendor will provide and install on site loan equipment at no additional cost to the City, within forty-eight (48) hours after failure notification. • The City Telecommunications x Yes ? No *In agreement with NEC. Coordinator or his/her designee will determine the designation of any re air as either Minor or Major. Empowered by Innovation 24 25A-83 Response to the City of Santa Ana Telephone System and/or Voicemail System Maintenance EXCEPTION and CLARIFICATIONS To Telephone System and/or Voicemail System Maintenance For The City of Santa Ana NEC Corporation of America ("NEC") appreciates the opportunity to submit its proposal for the City of Santa Ana in response to the Telephone System and/or Voicemail System Maintenance Request for Proposals ("RFP"). NEC has reviewed the terms set forth in the RFP and proposed clarifications and exceptions listed below, as it deems appropriate. While NEC realizes that, under certain circumstances, the information contained within our response may be subject to disclosure, NEC respectfully requests that all pricing, engineering design, and unique or specific hardware configurations provided herein be considered proprietary and confidential, and as such, not be released for public review. Please notify NEC promptly upon your organizations intent to do otherwise. Should NEC be successful in obtaining award for its proposal, NEC respectfully requests the opportunity to negotiate mutually acceptable terms and conditions. Page 16 9.12 {b),(2) EXCEPTION - NEC would like to revise the "Cancellation" block to read as follows.- "Should any of the described policies be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions". Age 17 9.9 Tapes CLARIFICATION --ALL SALES TAX AMOUNTS INCLUDED IN THIS PROPOSAL ARE ESTIMATES ONLY AND PROVIDED SOLELY FOR THE CITY OF SANTA ANA'S CONVENIENCE. NEC REPRESENTS THAT IT HAS ACTED IN GOOD FAITH AND EXERCISED REASONABLE DILIGENCE IN ESTIMATING SALES TAXES, HOWEVER, NEC RECEIVES NO DIRECT BENEFIT FROM SALES TAXES AND CANNOT BE RESPONSIBLE FOR ANY INADVERTENT ERRORS, AND/OR ANY ADJUSTMENTS TO THE SALES TAX RATES OR REGULATIONS BY THE APPLICABLE TAXING AUTHORITIES, WHICH MAY ULTIMATELY IMPACT THE ACTUAL INVOICE AMOUNTS. E EWq eted by lnmv tlon 25 25A-84 N N C C) Q C f6 m ? C C ? f6 O Z E U ar = T Cf) O •? N E C U_ O O a) d ? ? o v m E 2 T C17 a) C O C CL a? N H F .,f C) s? cy') N V r fa C E U a--' C fp >1 C ? N 4--0 (a C E ro w V C > O z d Q1 U z w w Z U L L 0 V_ V •L L Q }m? L L a a N D 6 25A-85 a7 0 ?C U C cts ? C c w ? C cu O U a) !n _I_- .? 0 N E C V O O U)> () ? O C N E a) CL) r- 0 .c o. 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N O O •C Of M E O C M 0 •- Z E S M G w III Will 25A-90 m a) G U Q c m of a IE5 fa d O E U 2 = T .-. fn O a) E C U o . o N > CD ? O f= ca E y T a) c 0 t CL a) a) f- ff) 3 d N U C t 4-J L i a? _: E : f L Q1 ? C Q ? C 0 N E t >v ) U vl m f gyp's ru ` E f Q) U .0 (D w U L- 0 4-- Q? N _U .L U I..L ? r"? Q co c L U _ O p ; uUp a U a o O O O O O C) 4.+ ef} 4jlr C) O O -b9- V?- U s' ? o Co O S O O O i,R 4 .Pr S I 1 1 O O O tfT tf+ k6- 41 s ? a) fn m w m z fu C cn -C L >_ a) t L O o o ?j a) a a c 4, 4? O t 4? = C +, +, al C fT E o r E T E ? L UI >1 Q A cr 41 o a) U aU W a ) •p 0. a) vl a) oEw o o? 41 L aJ C C 4-1 -C 4-1 C = 01 r O Q +' +, O }, O y L: O O ?: ? c E; vEa i ?E E' o A E ?> E a,> ,-j ? L E E +1 a? E ? (U f- L. 0 Q C L Q C L E' ? o CL) u O 4? O 4-1 U, (1) 4, 41 +1 3 L LO N O > a) L > a) +c, ° o o o 0 CL o a a U w. a U fQ U) N O Z N M g a E E 25A-91 25A-92 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: EXTENSION TO AGREEMENT WITH WEST COAST ARBORISTS FOR TREE MAINTENANCE SERVICES CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Approve a one-year extension to the agreement with West Coast Arborists, Inc. for street tree maintenance services in an amount not to exceed $865,350 for FY 2011-2012. DISCUSSION The Public Works Agency is responsible for the maintenance of approximately 65,000 street trees and 3,000 median trees. Maintenance staff schedules the pruning of the City's trees based on International Society of Arborists standards. The work performed is a component of the City's tree management program and is planned based upon the tree species pruning cycle. Since 1997, the City has utilized the services of West Coast Arborist (WCA) to provide tree maintenance services. The City and the contractor have had an excellent public/private partnership over the term of the contract working with neighborhoods and the community on tree care issues. The cooperation of WCA with City staff to implement a sound tree maintenance program was instrumental in the recognition of the City by the National Arbor Day Foundation as a Tree City USA. In June 2004, the City Council approved a five-year extension with West Coast Arborists, Inc. to provide general maintenance services for the City's urban forest. This extension included a provision for five additional one-year extensions. The existing agreement includes annual CPI increases for costs each year. The scope of services includes trimming, planting, and removal, stump grinding and emergency callouts. WCA recognizes that municipalities remain challenged by substantial reductions in revenue and increased operating costs and therefore have agreed to perform tree maintenance services under the same conditions with no increase in price, for Fiscal Year 2011-2012. For FY 2011-2012, services will be provided to programs in the Public Works, Community Development, and the Parks, Recreation and Community Services Agencies for a total not-to- exceed amount of $865,350. West Coast Arborists, Inc. has successfully provided the services specified in the agreement and staff recommends approval of the second one-year renewal. 25B-1 Agreement Extension for Tree Maintenance Services June 20, 2011 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds for this agreement are available in the following activities: Street Trees (accounting unit 06817643-62321), Water Production and Supply (accounting unit 06017640-62320), Median Maintenance (accounting unit 02917635-62320), Depot Operations (accounting unit 06717650- 62320), Parks Maintenance (accounting unit 01113250-62320), Civic Center Maintenance (accounting unit 07413250-62320), Stadium Maintenance (accounting unit 01113210-62320), and Downtown Maintenance (accounting unit 40718842-62300). APPROVED AS TO FUNDS AND ACCOUNTS: 7 Raul Godinez II Executive Directo Public Works Agency Gerardo Mouet Executive Director Parks, Recreation Community Services Agency Nancy Ed rds Interim Ex utive Director Community Development Agency RG/DM Exhibit 1: Agreement Extension Francisco Gutierrez Executive Director Finance & Management Services Agency 25B-2 FOURTH AMENDMENT TO AGREEMENT FOR TREE MAINTENANCE SERVICES THIS AMENDMENT, made and entered into this 20`x' day of June, 2011 by and between WEST COAST ARBORISTS, INC., hereinafter referred to as "CONTRACTOR" and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California, hereinafter referred to as "CITY". RECITALS The CITY and CONTRACTOR entered into that certain "Agreement for Tree Maintenance Services A-2004-116" dated June 21, 2004, hereinafter referred to as "said Agreement," setting forth the terms, scope and conditions of the services CONTRACTOR is to provide CITY. 2. By Amendments dated July 7, 2008, June 1, 2009 and June 21, 2010, the Parties agreed to adjust the unit pricing for tree trimming. 3. The parties hereto desire to amend said Agreement, adjusting the unit prices, extending the term for an additional one-year period and allocating funds to pay for services during the extended term. WHEREFORE, in consideration of the mutual and respective covenants hereinafter set forth, and subject to the terms and conditions hereof, the parties hereto do hereby agree as follows: A. Section 1, TERM, shall be amended to reflect City's exercise of its option to extend the term for an additional one-year period, through June 30, 2012. The City retains the option to extend the term of said Agreement for up to two additional one-year periods. B. Section 4.A., COMPENSATION AND PAYMENT TO CONTRACTOR, shall be amended to increase total compensation by Eight Hundred Sixty Five Thousand, Three Hundred Fifty Dollars ($865,350) to pay for the services rendered in conformance with standards set forth in the Contract Documents during the period commencing July 1, 2011, through June 30, 2012. Payment shall be made in accordance with the Schedule of Compensation attached as Exhibit B-1 hereto. C. Except as herein amended, all terms and conditions of said Agreement shall remain in full force and effect. 25B-3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA PAUL M. WALTERS Acting City Manager WEST COAST ARBORISTS, INC. RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director - Public Works Agency PATRICK MAHONEY President 25B-4 EXHIBIT B-1 SCHEDULE OF COMPENSATION Fiscal Year 2011-2012 ITEM DESCRIPTION UNIT PRICE 1 Tree Pruning Each $ 47.00 2 Service Request Pruning Each $ 55.90 3 Palm Pruning Each $ 24.00 4 Tree and Stump Removal Inch $ 18.70 5 Tree Only Removal Inch $ 13.00 6 Stump Only Removal Inch $ 5.90 7 Tree Planting 24"Box with RB Each $229.70 8 Arterial- Tree Planting 24" Box with RB Each $280.00 9 Infill- Tree Planting 24" Box with RB Each $280.00 10 Priority - Tree Planting 24"Box with RB Each $280.00 11 Tree Planting 36" Box with RB Each $954.70 12 Tree Well Installation Each $272.70 13 Root Pruning L.F. $ 8.60 14 Crew Rental - 3 man crew Hour $136.35 15 Emergency Crew Rental Hour $287.10 16 Watering Day $373.40 25B-5 25B-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: ALLOCATION OF WORKFORCE INVESTMENT ACT FORMULA YOUTH FUNDS FOR PY 2011-12 AND YOUTH SERVICE PROVIDER NAVIGATOR MOU TERM EXTENSION i j CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s' Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Approve and authorize the City Manager and Clerk of the Council to execute contracts for Workforce Investment Act Formula Youth funding of the following Youth Program Operators for Program Year (PY) 2011-2012, for a total of $668,000, for the period of July 1, 2011 through June 30, 2012: a. Taller San Jose to provide work experience, occupational skills training, supportive services, counseling, job preparation, and placement to 25 Out-of-School Youth in the amount of $150,000; b. Santa Ana Public Library to provide post secondary occupational skills training, work experience, leadership development, and supportive services for 12 In-School Youth and 8 Out-of-School youth in the amount of $150,000; C. Orange County Conservation Corps to provide work experience, alternative secondary education, post-secondary education resources, and supportive services for 23 Out-of-School Youth in the amount of $218,000; d. Orange County Children's Therapeutic Arts Center to provide tutoring, work experience, occupational skills training, job preparation, supportive services, mentoring, and counseling for 25 Out-of-School Youth in the amount of $150,000; 2. Extend the term of the Memorandum of Understanding with the Santa Ana WORK Center for the Youth Service Provider Navigator service to June 30, 2012 and allocate funding in the amount of $317,745 from PY 2011-12 funds. 25C-1 Allocation of WIA Youth Funds PY 11-12 & Navigator MOU Extension June 20, 2011 Page 2 WORKFORCE INVESTMENT BOARD RECOMMENDATION At its regular meeting on June 3, 2011, by a vote of 16:0 (Beasley, Claudio, Conway, de Leon, Elliott, Figueroa, Gebre, Jimenez-Hami, Korthuis, Ray, Ruiz, and Su absent; de la Riva abstained), the Workforce Investment Board: 1. Recommended that the City Council approve and authorize the City Manager and Clerk of the Council to execute contracts for Workforce Investment Act Formula Youth funding of the following Youth Program Operators for Program Year (PY) 2011-2012, for a total of $668,000, for the period of July 1, 2011 through June 30, 2012: a. Taller San Jose $150,000 b. Santa Ana Public Library $150,000 C. Orange County Conservation Corps $218,000 d. Orange County Children's Therapeutic Arts Center $150,000 By a separate vote of 15:0 (Beasley, Claudio, Conway, de Leon, Elliott, Figueroa, Gebre, Jimenez- Hami, Korthuis, Maldonado, Ray, Ruiz, and Su absent; de la Riva abstained), the Workforce Investment Board: 2. Recommended the term extension of the Memorandum of Understanding with the Santa Ana WORK Center for the Youth Service Provider Navigator service to June 30, 2012 and allocate funding in the amount of $317,745 from PY 2011-12 funds. DISCUSSION Under the Workforce Investment Act (WIA), the Santa Ana Workforce Investment Board (WIB) and its Youth Council are required to procure and make funding recommendations in order to provide WIA services to local qualified at-risk youth. On January 14, 2011, the Santa Ana WIB authorized the Youth Council to release a Request for Proposal (RFP) seeking providers of youth services for the period of July 1, 2011 through June 30, 2012 utilizing Program Year 2011-12 WIA youth funds. On February 24, 2011, the RFP was released to the public with fourteen agencies submitting proposals for consideration. On April 28, 2011, the RFP Review Committee, comprised of four Youth Council members, reviewed the proposals and finalized recommendations to fund four youth service providers. The requests are reflected in the recommended action (Exhibit 1-A and Exhibit 1-B). These funding recommendations take into account the WIA requirement to ensure at least thirty percent of the youth funds are spent on Out-of-School Youth and the Youth Council's commitment to serve the neediest youth as outlined by the Department of Labor's "New Services under the Workforce Investment Act." These recommendations are the first steps needed to ensure that at least eighty percent of the funds are obligated each year, as required by the Act. 25C-2 Allocation of WIA Youth Funds PY 11-12 & Navigator MOU Extension June 20, 2011 Page 3 On July 6, 2010, the City Council approved an extension of the term of the Memorandum of Understanding (MOU) with the Santa Ana WORK Center/Youth Service Program Navigator through June 30, 2011. The Youth Service Navigator assumes the responsibility of determining Workforce Investment Act (WIA) youth eligibility for WIA funded programs and services, provides technical assistance to youth service providers, shares best practice in case management, placement, exit, and follow-up services. In addition the Youth Service Navigator ensures the completion and accuracy of all required forms and documentation, works cooperatively with all youth service providers from the initial outreach, recruitment, and intake process to the successful completion, exiting, and follow-up of all WIA youth enrolled in the Youth Service Provider Network (YSPN). This extension would extend the term from July 1, 2011 through June 30, 2012. The Service Navigator Program Plan and budget for Program Year 2011-12 is attached (Exhibit 2). FISCAL IMPACT Funds for these contracts will be available in the Workforce Investment Act Youth accounts (account no. 12318750-69135 and account no. 12318755-various) upon City Council's Adoption of the Fiscal Year 2011-2012 budget. APPROVED AS TO FUNDS AND ACCOUNTS: It h ?7ha/nw(-'? e T. E ards Interim Exe tive Director Community Development Agency NTE/LAO/DS/kg 0.. Francisco Gutierrez Executive Director Finance &f?Management Services Agency Exhibits: 1-A. Sample Contract -Taller San Jose, OC Conservation Corps and OCCTAC 1-B. MOU - Santa Ana Library 2. YSPN MOU Extension 25C-3 25C-4 Contract No. AGREEMENT UNDER THE WORKFORCE INVESTMENT ACT THIS AGREEMENT, made and entered into this day of , 2011, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("CITY") and , a non-profit corporation ("CONTRACTOR"). W-I-T-N-E-S-S-E-T-H Recitals: A. CITY has been designated a Local Workforce Investment Area (LWIA) under the Workforce Investment Act of 1998, Public Law 105-220 ("the Act"). B. The State of California has created the LWIA to administer the Act programs operated by the State of California pursuant to the Act. C. As a LWIA, CITY is entitled to receive federal funds to establish programs to prepare economically disadvantaged youths for entry into the labor market and to provide basic skills development to those individuals who are economically disadvantaged or otherwise face serious barriers to succeeding in life. One goal of California's Workforce Investment System is to provide youth with the opportunities to achieve career goals that will allow them to successfully compete in the labor market and prepare them for higher education. D. CONTRACTOR is experienced in operating education, occupational development and employment programs for economically disadvantaged youths for entry into the labor market ("said program"). E. CONTRACTOR is willing to operate said program pursuant to the Act and California law. F. CONTACTOR acknowledges that awarded programs will operate for two program years: July 1, 2011 to June 30, 2012 and July 1, 2012 to June 30, 2013 (assuming the CONTRACTOR achieves designated outcomes). Funding for second program year will be contingent on CONTRACTOR'S achieved outcomes and fulfillment of contract obligations. Evaluations will take place during the third quarter of the first program year. Contractor evaluations will be assessed to determine funding for second program year. CONTRACTOR may be awarded second program year funding upon the approval of the Workforce Investment Board and City Council. Contracts may not begin until fully executed by Council. Contracts may be extended once if funds are EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-5 Page 1 of 17 available, contractor has complied with applicable Federal, State and local legislation, rules and regulations and contractor has met enrollment and program goals. WHEREFORE, for and in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereto do hereby agree as follows: 1. CONTRACTOR'S OBLIGATIONS A. CONTRACTOR agrees to provide the following services pursuant to said program, as more specifically set forth in CONTRACTOR'S Program Narrative contained in "Exhibit A" and in the Performance Standards "Exhibit B", attached hereto and by this reference incorporated herein. CONTRACTOR'S failure to provide said services may be grounds for CITY to readjust the level of payment to CONTRACTOR otherwise provided for hereinafter. B. CONTRACTOR agrees to provide benefits to individuals who participate in the activities and services funded by this Agreement ("participants") in accordance with the standards and requirements set forth in Workforce Investment Act of 1998, Public Law 105-220. C. CONTRACTOR agrees to perform the services set forth herein in a professional, timely and diligent manner. D. CONTRACTOR shall provide wages and benefits to individuals who participate in the activities and services funded by this Agreement ("participants") in accordance with the standards and requirements of the Act, including Section 181 of the Act. E. CONTRACTOR shall adhere to the Labor Standards described in the Act including Section 181 of the Act. F. CONTRACTOR agrees to comply with the "Complaint Handling Procedures Under the WIA", attached hereto as "Exhibit C" and incorporated herein as though fully set forth in 20 CFR §667.200, Subpart F. CONTRACTOR shall advise participants of their rights to file complaints under the Act and the procedures for resolution of any complaints. CITY's procedures for handling complaints alleging a violation of the Act, regulations, grants, or other agreements under the Act shall be followed and any decision of CITY, the State or the federal government relating to the complaint shall be binding and followed by CONTRACTOR. CONTRACTORS who are employers shall operate a grievance system that incorporates CITY's procedures for resolution of complaints relating to the terms and conditions of employment; these procedures shall be approved in writing by CITY. G. As a condition of this award of financial assistance under the Act to CONTRACTOR from CITY, CONTRACTOR assures, with respect to operation of all programs or activities funded with funds provided pursuant to the Act, and all agreements or arrangements to carry EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAC) 25C-6 Page 2 of 17 out such programs or activities, that it will comply fully with the nondiscrimination and equal opportunity provisions of the Act (Section 188) and compliance with Equal Employment Opportunity provisions in Executive Order (E.O.) 11246, as amended by E. 0. 11375 and supplemented by the requirements of 41 CFR Part 60; the Nontraditional Employment for Women Act of 1991; Title VI of the Civil Rights Act of 1964, as amended; section 504 of the Rehabilitation Act of 1973, as amended; the Age Discrimination Act of 1975, as amended; the Americans with Disabilities Act of 1990; and with all applicable requirements imposed by or pursuant to regulations implementing those laws, including, but not limited to, 29 CFR Part 33 and 37. The United States, the State of California and CITY have the right to seek judicial enforcement of this assurance. H. CONTRACTOR agrees that no participant(s) shall commence training prior to the approval of funding pursuant to Section 123 of the Act. 1. CONTRACTOR agrees to maintain such records and submit such reports, data and information, on the form and containing such information, at such times as CITY may request or require regarding the performance of CONTRACTOR'S services or activities, costs or other data, including but not limited to, participants' attendance, payroll records and job duty statements. CONTRACTOR agrees to forward to the Santa Ana Work Center Administrative Office, 1000 East Santa Ana Blvd., Suite 200, Santa Ana, California 92701 a completed Workforce Investment Act Application form (WIA EWIR) and supporting documents within 45 days of application date; a complete Workforce Investment Act Enrollment/Registration form (WIA EWIE) within 30 days of determination (reviewer) date; any subsequent updates to EWIE within 10 days of the begin date of activity or end date of an activity; Workforce Investment Act Youth Test Scores form (WIA EYTS) within 30 days of application date; Workforce Investment Act Exit form (WIA EWIT) within 15 days of completion/termination of active enrollment of trainee; and the Workforce Investment Act Follow-Up Contact Information form (WIA EWIF) within 21 days following 30, 60, 90,180, 270, and 360 days of exit. CITY, the State of California and the United States government and/or their representatives shall have access for purposes of monitoring, auditing and examining of CONTRACTOR'S activities, performance, books, documents, papers, and records of CONTRACTOR subcontractors, bookkeepers and accountants, and employees and participants related to this Agreement. Such agencies or representatives shall also schedule on-site monitoring in their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants and entering any premises or onto any site in which any of the services or activities funded hereunder are conducted or in which any of the records of CONTRACTOR are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. In the event CONTRACTOR does not make the above-referenced documents available within the City of Santa Ana, California, CONTRACTOR agrees to pay all necessary and reasonable expenses incurred by CITY in conducting any audit at the location where said records and books of account are maintained. EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-7 Page 3 of 17 All accounting records and evidence pertaining to all costs of CONTRACTOR and all documents related to this Agreement shall be kept available at the location where CONTRACTOR conducted the program, as well as in the County of Orange, for the duration of this Agreement and thereafter for three (3) years after completion of an audit. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which CITY, the State of California or the United States Government take exception, shall be retained beyond the three (3) years until resolution of disposition of such appeals, litigation, claims, or exceptions. J. Without prejudice to any other section of this Agreement, CONTRACTOR shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. Notwithstanding the foregoing, CONTRACTOR agrees to submit to CITY, the State of California and/or the United States Government or their representatives, all records requested for administrative purposes, including audits, examinations, monitoring and verification of records submitted by CONTRACTOR, costs incurred and services rendered hereunder. K. CONTRACTOR agrees to complete in triplicate, a monthly Invoice/Voucher on CITY's Invoice/Voucher form, showing in detail the amount of money already expended by CONTRACTOR hereunder, as this is a cash reimbursement contract. Accounting records must be supported by such source documentation such as cancelled checks, paid bills, payrolls, time and attendance records, contract and subgrant award documents [29 CFR-Subpart C, Section 97.20 (b)(6)]. CONTRACTOR agrees to submit the above-stated documents to the WIB Administrative Office, 1000 East Santa Ana Blvd., Suite 200, Santa Ana, California, 92701, by the tenth (10th) day of the month following the month in which CONTRACTOR'S services are performed. Should CONTRACTOR fail to deliver said documents to CITY, CITY shall have the option to cancel this Agreement by giving CONTRACTOR ten (10) days written notice thereof CONTRACTOR shall either return to the CITY excess revenues over costs or use such excess revenues as program income by utilizing such program income for additional training activities authorized under the Act. L. CONTRACTOR agrees to expend all funds in accordance with all applicable federal, state and local laws and regulations. CONTRACTOR also agrees to provide at CONTRACTOR'S own expense supplies and other costs of said PROGRAM. M. CONTRACTOR shall arrange independently for an audit that includes WIA funds received from CITY, in accordance with the Act, 20 CFR Section 667.200 and OMB Circular A- 133. CONTRACTOR shall submit one original of each required audit report to CITY within (30) days after the date received by CONTRACTOR. Should CONTRACTOR fail to comply with these requirements, CITY may at its option withhold payment of funds, or disallow funds or suspend additional grant funds. N. CONTRACTOR shall not expend funds pursuant to this Agreement to provide services to any participant where costs of training are paid for by any other person or entity. 0. CONTRACTOR shall comply with the provisions of Circular A-102 of the U.S. EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-8 Page 4 of 17 Office of Management and Budget (OMB) and the related "Common Rule" entitled "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Government", Subpart C, paragraphs 37 and 42, Circular A-128, and all other applicable federal statutes and executive orders and their implementing regulations, including regulations at 29 CFR Part 97. P. CONTRACTOR shall comply with the requirements of federal regulations found at 29 CFR 93 which provide that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, member of Congress or an officer or employee of a member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. CONTRACTOR shall sign a Certification Regarding Lobbying to that effect in a form as set forth in "Exhibit D," attached hereto and by this reference incorporated herein. CONTRACTOR shall submit said signed Certification to CITY prior to performing any of its obligations under this Agreement and prior to any obligation arising on the part of CITY to pay any sums to CONTRACTOR under the terms and conditions of this Agreement. Q. CONTRACTOR agrees to provide a drug-free work place and to execute a Drug Free Workplace Certification as set forth in "Exhibit E" attached hereto and incorporated herein by this reference. R. CONTRACTOR, in accordance with the Child Support Compliance Act, recognizes and acknowledges the importance of child and family support obligations and shall fully comply with all state and federal laws relating to child and family support enforcement, including, but not limited to: disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the state Family Code; and, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Employee Registry maintained by the California Employment Development Department (EDD). S. CONTRACTOR agrees to comply with all applicable provisions of the ACT and the federal regulations, including but not limited to the regulations found at 20 CFR part 629. T. CONTRACTOR agrees to that it is in compliance with the Certification Regarding Debarment ("Exhibit F") as required by the regulations implementing Executive Order 12549, Debarment and Suspension, 29 CFR Part 98, Section 98.510, Participants' Responsibilities. The regulations were published as Part VII of the May 16, 1988, Federal Register (Pages 19160- 19211). U. CONTRACTOR agrees to provide priority of services for veterans and eligible spouses pursuant to 20 CFR part 1010 and the regulations implementing priority of service for veterans and eligible spouses in Department of Labor job training programs under the Jobs for Veterans Act published at 73 Fed.Reg. 78132 on December 19, 2008. II. EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-9 Page 5 of 17 CITY'S OBLIGATIONS A. CITY agrees to pay to CONTRACTOR when, if and to the extent federal funds are received under the provisions of the Act a sum not to exceed $ .00 for CONTRACTOR'S performance in accordance with the Budget attached hereto as "Exhibit G" during the period of this Agreement. Said sum shall be paid after CITY receives invoices submitted by CONTRACTOR as provided hereinabove. B. CONTRACTOR has the ability to adjust line item amounts in the budget with the approval of the Executive Director, so long as the total Budget amount does not increase. C. CITY agrees to provide for on-site monitoring reviews of said program operation at least twice annually. In addition, monthly desk-top reviews of pertinent information will be conducted. D. CITY has the right to de-obligate the funds hereunder and take such funding back from CONTRACTOR due to any of the following reasons: (a) lack of performance by CONTRACTOR; (b) lack of fiscal accountability of CONTRACTOR; or (c) decrease in available funding. III. TIME PERIOD OF AGREEMENT This Agreement shall commence on , and all duties arising under this Agreement shall have been performed by The term of this Agreement may be extended by a writing executed by the Executive Director for the Community Development Agency and the City Attorney. IV. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. V. WORKER'S COMPENSATION AND EMPLOYER'S RIGHTS A. CONTRACTOR shall use appropriate funds received from CITY to provide EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-1 0 Page 6 of 17 workers' compensation to all those hired by CONTRACTOR under this Agreement. B. CONTRACTOR shall have the right to hire, dismiss, or promote its employees or contract personnel hired under this Agreement so long as its hiring or dismissal policy or standard does not violate Title VII of the Civil Rights Act of 1964, Fair Labor Standards Act of 1938, or any other applicable law, and CONTRACTOR maintains itself as an Equal Opportunity employer. VI. APPLICABLE GUIDELINES A. The parties hereto agree that CONTRACTOR shall comply with all applicable federal and state laws and regulations, including, but not limited to the Performance Standards (Exhibit B) and general program requirements described in Sections 106 and 141 of the Act (29 USC Sections 1516 and 1551) and applicable regulations, and the U.S. Department of Labor guidelines and regulations, including amendments or revisions made during the terms of this Agreement. Said applicable laws are hereby incorporated by reference and made as part of this Agreement as though fully set forth herein. B. CONTRACTOR also assures and certifies that: 1. CONTRACTOR acknowledges and confirms that the U.S. Department of Labor has established three (3) common measures for youth: (a) Placement in employment or education; (b) Attainment of degree or certificate; and, (c) Literacy or numeracy gains. With regard to the Summer Youth Program, the only measure is "Work Readiness". Pending WIA reauthorization and or U.S. Department of Labor and EDD updates, CONTRACTOR agrees to implement and shall meet any additional performance measures that may be subsequently required by the Workforce Investment Act or by any other Federal, State, and local law. 2. CONTRACTOR shall comply with Title VII of the Civil Rights Act of 1964 (P.L. 83-354) and in accordance with Title VII of the Act, no person shall, on the grounds of race, color, religion, sex, age, handicap or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. 3. CONTRACTOR shall comply with any and all federal laws limiting the political activity of employees hired under this Agreement. 4. CONTRACTOR shall comply with the requirements that no program under the Act shall involve political activities. 5. RECORD INSPECTION. CONTRACTOR shall provide the U.S. Department of Labor and the Controller General, by and through any authorized representative, as well as the WIB Administrative Office, access to and the right to examine all records, books, papers or documents relating to the accounting and use of funds under this Agreement for a three-year period from and after the effective date of this Agreement. EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAC) 25C-1 1 Page 7 of 17 6. No person with responsibilities in the operation of any program under the Act shall discriminate with respect to any program participant or any application for participation in such program because of race, creed, color, national origin, sex, political affiliation or beliefs. 7. CONTRACTOR shall maintain appropriate standards for health and safety in work and training situations. 8. CONTRACTOR shall comply with general provisions, assurances, and execute the Assurances and Certifications attached hereto as "Exhibit H" and incorporated herein. 9. EQUAL OPPORTUNITY. Any literature distributed by CONTRACTOR for the purpose of apprising businesses, participants, or the general public of its programs under this Agreement shall state that its programs are supported by the City of Santa Ana and the Santa Ana Workforce Investment Board, and shall state that the program is an "equal opportunity employer/program" and that "auxiliary aids and services are available upon request to individuals with disabilities." 10. Based on the population eligible to be served, or likely to be directly affected by the WIA program or activity, the services or information may need to be provided in a language other than English in order to allow such population to be effectively informed about or able to participate in the program or activity. Pursuant to 29 CFR 37.35, the Contractor must take reasonable steps to provide services and information in appropriate languages after considering the scope of the program or activity, and the size and concentration of the population that needs services or information in a language other than English. 11. CONTRACTOR certifies that all property, finished or unfinished documents, data, studies and reports prepared or purchased under this Agreement, will be disposed of in accordance with the direction of the CITY. In addition, any tools and/or equipment furnished to the CONTRACTOR by the CITY and/or purchased by the CONTRACTOR with funds pursuant to this Agreement, will be limited to use within the activities outlined in this agreement and will remain the property of the United States Government and/or CITY. Upon termination of this Agreement, CONTRACTOR will immediately return such tools and/or equipment to the CITY or dispose of them in accordance with the direction of the CITY. 12. CONTRACTOR certifies that this Agreement does not provide for the advancement or aid to any religious sect, church or creed, or sectarian purpose nor does it help to support or sustain any school, college, university, hospital or other institution controlled by any religious creed, church, or sectarian denomination, as specified by Article XVI, Section 5, of the Constitution of the State of California, regarding separation of church and state. 13. PATENT, COPYRIGHTS AND RIGHTS IN DATA. The CONTRACTOR will disclose to the CITY any invention, written product, computer program developed or data assembled as a result of performance of work under this Agreement within seventy four (74) days of invention, development or assembly. The CITY, State of California, and U.S. Department of Labor will have the right to patent any invention and copyright any written product or EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAC) 25C-1 Page 8 of 17 computer program or data generated by CONTRACTOR. Upon written request, CONTRACTOR will transfer all pertinent information, specifications and right, title and interest to the designated agency. 14. INVENTIONS, PATENTS AND COPYRIGHTS. A. Reporting Procedure. If any project produces patentable items, patent rights, processes, or inventions in the course of work under a U.S. Department of Labor (DOL) grant or agreement, the CONTRACTOR shall report the fact promptly and fully to the CITY. The CITY shall report the fact to the Grant Officer, at the DOL. Unless there is a prior agreement between the CITY and the DOL and its representative on these matters, the DOL shall determine whether to seek protection on the invention or discovery. The DOL and its representative shall determine how the rightsin the invention or discovery, including rights under any patent issued thereon, will be allocated and administered in order to protect the public interest consistent with the "Governmental Patent Policy" (President's Memorandum for Heads of Executive Departments and Agencies, August 23, 1971, and Statement of Government Patent Policy as printed in 36 FR 16889). B. Copyright Policy. 1. Unless otherwise provided in the terms of the grant or agreement, when copyright- able material is developed in the course of or under a DOL Grant or agreement, the author and the CITY which developed the work is free to copyright material or to permit others to do so. The CONTRACTOR and the Workforce Investment Board (WIB) shall have a royalty-free, nonexclusive and irrevocable license to reproduce, publish, use and to authorize others to use all copyrighted material. 2. The DOL reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes: (a) The copyright in any work developed under any grant, sub-grant, or contract under a grant or subgrant; (b) Any right of copyright to which a grantee, subgrantee or a CONTRACTOR purchases ownership with grant support; and (c) CONTRACTOR shall comply with the requirements of 29 CFR Part 97.34. C. Rights to Data. The DOL and the CITY shall have unlimited rights to any data first procured or delivered under this Agreement. 15. CLEAN AIR / CLEAN WATER ACT. If the grant hereunder exceeds $100,000, CONTRACTOR must comply with Section 306 of the Clean Air Act [(42 USC 1875(h)]; Section 508 of the Clean Water Act (33 USC 1368); Executive Order 11738 and Environmental Protection Agency ("EPA") regulations (40 CFR Part 15) as any may now exist or be hereafter amended. Under these laws and regulations, the CONTRACTOR assures that: (a) No facility to be utilized in the performance of the proposed grant has been listed on the EPA List of Violating Facilities; (b) It will notify CITY prior to award of the receipt of any communication from the Director, Office of Federal Activities, U.S. EPA, indicating that a facility to be EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-13 Page 9 of 17 utilized for the grant is under consideration to be listed on the EPA List of Violating Facilities; (c) It will notify the CITY and the EPA about any known violation of the above laws and regulations. C. CONTRACTOR agrees to adhere to the following STANDARDS OF CONDUCT: 1. General Assurance. Every reasonable course of action will be taken by CONTRACTOR in order to maintain the integrity of this expenditure of public funds and to avoid favoritism. This Agreement will be administered in an impartial manner, free from errors to gain personal, financial political gain. CONTRACTOR, its officers and employees, in administering this Agreement, will avoid situations which give rise to a suggestion that any decision was influenced by prejudice, bias, special interest or desire for personal gain. 2. Employment of Former State or CITY Employees. CONTRACTOR will ensure that any of its employees who were formerly employed by the State of California or CITY, in a position that could have enabled such individuals to impact policy regarding or implementation of programs covered by this Agreement, will not be assigned to any part or phase of the activities conducted pursuant to this Agreement for a period of not less than two years following the termination of such employment. 3. Conducting Business Involving Relatives No relative by blood, adoption or marriage of any executive or employee of CONTRACTOR will receive favorable treatment when considered for enrollment in programs provided by, or employment with, CONTRACTOR. 4. Conducting Business Involving Close personal Friends and Associates. Executives and employees of CONTRACTOR will be particularly aware of the varying degrees of influence that can be exerted by personal friends and associates and, in administering this Agreement, will exercise due diligence to avoid situations which give rise to an assertion that favorable treatment is being granted to friends and associates. When it is in the public interest for CONTRACTOR to conduct business with a friend or associate of an executive or employee of CONTRACTOR, an elected official in the area or a voting or non-voting member of the Workforce Investment Board (WIB), a permanent record of the transaction will be retained. 5. Avoidance of Conflict of Economic Interest. No executive or employee of CONTRACTOR elected official in the area, or voting or non-voting member of a WIB, will solicit or accept money or any other consideration from a third person, for the performance of an act reimbursed in whole or part by CONTRACTOR or CITY. Supplies, materials, equipment or services purchased with Agreement funds will be used solely for purposes asserted or allowed under this Agreement. No voting member of the WIB will cast a vote on the provision of services or vote on any matter which would provide direct financial benefit to that member or any business or organization which the member directly represents. 6. Salary and Bonus Limitations. All Subrecipients of WIA program funds are required to comply with federal requirements regarding the limitations on salary and bonus payments in accordance with Public Law 109-149, Section 7013. EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-1 4 Page 10 of 17 VII. HOLD HARMLESS A. CONTRACTOR shall indemnify and save harmless CITY, its officers, agents and employees, from and against any and all damages to property or injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, agents and employees, from any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers' compensation claims, resulting from or arising out of the negligent acts, errors or omission of CONTRACTOR, its employees or subcontractors. B. CONTRACTOR shall indemnify and save harmless CITY, its officers, agents and employees, from and against any and all damages to property or injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, agents and employees, from and against any and all claims, demands, suits, actions or proceedings therefore, resulting from or arising out of the intentional or malicious acts of CONTRACTOR, its employees or subcontractors. VIII. INSURANCE 1. Commercial General Liability. CONTRACTOR agrees to obtain and keep in force during the term of this Agreement a policy of comprehensive commercial public liability insurance insuring the State of California, CITY, and CONTRACTOR against any liability for accident, injury or death arising out of or in consequence of this Agreement. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in any single accident or occurrence. Said policy of comprehensive public liability insurance shall be endorsed to provide to CITY and to the State of California, Employment Development Department, at least thirty (30) days written notice prior to cancellation; name CITY, its officers, agents, employees, and volunteers, and the State of California, its officers, employees, and volunteers as Additional Insured; and state that such coverage is primary to any other coverage or self-insurance of the State of California and CITY (in substantially the form as Exhibit I, Additional Insured Endorsement, attached hereto). Governmental entities may substitute a certificate of self-insurance. 2. Automobile Liability Coverage. CONTRACTOR shall also obtain and maintain, during the effective period of this Agreement, broad form automobile liability coverage with a $1,000,000 limit unless reduced by CITY, which applies to both owned/leased and non-owned automobiles used by CONTRACTOR employees or participants in performance of this Agreement, or, in the event that CITY will not utilize such owned/leased automobiles but intends to require employees, participants or other agents to utilize their own automobiles in the performance of this Agreement, CONTRACTOR shall secure and maintain on file from all such employees, participants, or agents as self-certification of automobile insurance coverage. Governmental entities may substitute a certificate of self-insurance. EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-1 5 Page 11 of 17 3. Workers' Compensation. If CONTRACTOR is an "employer", as set forth in California Labor Code Section 3300 et seq., or utilizes participants as "employees," as set forth in California Labor Code Section 3350 et seq., CONTRACTOR shall obtain and keep in force during the term of this Agreement full Workers' Compensation insurance coverage for injuries suffered by participants. Said insurance policy shall guarantee CITY at least thirty (30) days written notice of cancellation or modification. CONTRACTOR shall carry medical and accident insurance for those participants not qualifying as "employees" for Worker's Compensation Coverage, pursuant to California Labor Code Section 3350, et seq. 4. Equipment Coverage. CONTRACTOR shall purchase a policy or policies of insurance covering loss or damage to any and all Equipment provided to or purchased by CONTRACTOR in accordance with this Agreement. Said insurance shall be in the amount of the full replacement value thereof, providing protection against the classification of fire, extended coverage, vandalism, malicious mischief, theft, and special extended perils. Governmental entities may substitute a certificate of self-insurance. 5. Proof of Insurance. Certificates and endorsements must be submitted and approved by CITY prior to any work under this Agreement. CONTRACTOR understands that CITY will make no payments under this Agreement until the required certificates and endorsements have been approved by CITY. IX. CORPORATE STATUS All corporate CONTRACTORS shall be in good standing, without suspension by the California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in corporate status or suspension shall be reported immediately to CITY. X. ASSIGNABILITY None of the duties of, or work to be performed by, CONTRACTOR under this Agreement shall be subcontracted or assigned to any agency, consultant, or person without the prior written consent of CITY. CONTRACTOR must submit all subcontracts and other agreements that relate to this Agreement to CITY. No subcontract or assignment shall terminate or alter the legal obligations of CONTRACTOR pursuant to this Agreement. XI. LAWS GOVERNING THIS AGREEMENT In its performance under this Agreement, CONTRACTOR shall fully comply with the requirements of the following, whether or not otherwise referred to in this Agreement: EXHIBIT I-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-1 6 Page 12 of 17 1. The Act and all applicable federal statutes, regulations, policies, procedures and directives, including but not limited to, 20 C.F.R. Parts 652 and 660 through 671. 2. All applicable State statutes, regulations, policies, procedures and directives; 3. All applicable CITY policies, procedures and directives; 4. All applicable local ordinances and requirements, including use permits and licensing; 5. Court orders applicable to its operation; and, 6. The terms and conditions of this Agreement. If any of the foregoing is enacted, amended, or revised, CONTRACTOR will comply with such or will notify CITY after enactment or modification that it cannot so comply. CITY may thereupon terminate this Agreement, if necessary. XII. EXCLUSIVITY AND AMENDMENT OF AGREEMENT This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the employment of CONTRACTOR by CITY, and contains all the covenants and agreements between the parties with respect to such employment. 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, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both CITY and CONTRACTOR. XIII. FRAUD CONTRACTOR shall immediately report to CITY all instances and facts concerning possible fraud, abuse or criminal activity relating to expenditure or receipt of funds under this Agreement. XIV. CONTINGENCY OF FUNDS CONTRACTOR acknowledges that approval of and funding for this Agreement is contingent upon State approval, and funds received or obligated from the State of California to CITY. If such approval of funds is not forthcoming, or is otherwise limited, CITY shall immediately notify CONTRACTOR. Within twenty (20) days of receipt of such notice, CONTRACTOR shall modify or cease operations as directed by CITY and negotiate necessary modification to this Agreement and/or reimbursement of costs incurred hereunder. EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-1 7 v / Page 13 of 17 XV. TERMINATION A. This Agreement may be terminated by either party at its sole discretion, upon thirty (30) days written notice to the other party. Notice shall be deemed served on the date of mailing. However, CONTRACTOR may not terminate this Agreement if undue hardship will result to any participant. B. In the event CONTRACTOR defaults by failing to fulfill all or any of its obligations hereunder, CITY may declare a default and termination of this Agreement by written notice to CONTRACTOR, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of such notice, unless such default is cured before the effective date of termination stated in such notice. If terminated for cause, CITY shall be relieved of further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by CITY in obtaining substitute performance. XVI. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning any question arising under this Agreement shall be decided by CITY. In such a case CITY shall reduce its decision to writing and mail or otherwise furnish a copy thereof to CONTRACTOR. The decision of the City shall be final and conclusive unless within thirty (30) calendar days from the mailing or delivery of such copy, CITY receives from CONTRACTOR written request to appeal said decision. Procedures governing the appeal shall be prescribed by CITY and/or the State of California in accordance with the Act and all corresponding regulations and OMB circulars. Pending final disposition of the appeal, CONTRACTOR shall act in accordance with CITY's decision unless the dispute involves a change order. XVII. BREACH - SANCTIONS If, through any cause, CONTRACTOR violates any of the terms and conditions of this Agreement, and/or prior agreements whereby grant funds were received by CONTRACTOR pursuant to this Agreement, or if CONTRACTOR reports inaccurately or if any Audit Report makes disallowances, CONTRACTOR shall promptly remedy its acts or omissions and/or repay CITY all amounts due CITY as a result of CONTRACTOR's violation. For any such failures or violations, CITY shall also have the right at its sole discretion to either: (1) discontinue program support until such time as CONTRACTOR fulfills its obligations or remedies all violations of this agreement or prior agreements; and/or (2) collect outstanding amounts as determined by CITY due CITY by offsetting or debiting from current claims or invoices, if after thirty (30) days' written notice CONTRACTOR has failed to repay same or a repayment schedule has not been made; and/or (3) EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAC) 25C-1 Q v Page 14 of 17 terminate this Agreement by giving written notice to CONTRACTOR of such termination in accordance the notice provision in Paragraph XVIII herein below. XVIII. NOTICES All notices, reports and correspondence between the parties hereto respecting this Agreement shall be in writing and deposited in the United States Mail, postage prepaid, addressed as follows: CITY: City of Santa Ana Manager, WIB Administrative Office P.O. Box 1988 (M-73) Santa Ana, CA 92702 and, CLERK: 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 CONTRACTOR: Phone: (714) Fax: (714) Attn: XIX. MERGER This Agreement, together with the attachments hereto, expresses the total understanding of the parties. There are no oral understandings of the parties or terms and conditions other than as stated herein. XX. VALIDITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. XXI. EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAC) 25C-1 9 Page 15 of 17 MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. EXHIBIT 1-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAQ 25C-20 Page 16 of 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above-written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph Straka Interim City Attorney BY: Lisa E. Storck Assistant City Attorney EXHIBIT I-A (This agreement serves as specimen for: a. Taller San Jose c. OC Conservation Corps and d. OCCTAC) CITY OF SANTA ANA, a municipal corporation of the State of California "CITY" By: Paul Walters Interim City Manager "CONTRACTOR" BY: Name: Title: Tax ID 25C-21 Page 17 of 17 Contract No. MEMORANDUM OF UNDERSTANDING UNDER THE WORKFORCE INVESTMENT ACT (City of Santa Ana/Parks, Recreation & Community Services Agency) THIS MEMORANDUM OF UNDERSTANDING, made and entered into this day of 2011, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("CITY") and the Parks, Recreation and Community Services Agency ("CONTRACTOR") W-I-T-N-E-S-S-E-T-H Recitals: A. CITY has been designated a Local Workforce Investment Area (LWIA) under the Workforce Investment Act of 1998, Public Law 105-220 ("the Act"). B. The State of California has created the LWIA to administer the Act programs operated by the State of California pursuant to the Act. C. As a LWIA, CITY is entitled to receive federal funds to establish programs to prepare economically disadvantaged youths for entry into the labor market and to provide basic skills development to those individuals who are economically disadvantaged or otherwise face serious barriers to succeeding in life. One goal of California's Workforce Investment System is to provide youth with the opportunities to achieve career goals that will allow them to successfully compete in the labor market and prepare them for higher education. D. CONTRACTOR is experienced in operating education, occupational development and employment programs for economically disadvantaged youths for entry into the labor market ("said program"). E. CONTRACTOR is willing to operate said program pursuant to the Act and California law. F. CONTACTOR acknowledges that awarded programs will operate for two program years: July 1, 2011 to June 30, 2012 and July 1, 2012 to June 30, 2013 (assuming the CONTRACTOR achieves designated outcomes). Funding for second program year will be contingent on CONTRACTOR'S achieved outcomes and fulfillment of contract obligations. Evaluations will take place during the third quarter of the first program year. Contractor evaluations will be assessed to determine funding for second program year. CONTRACTOR may be awarded second program year funding upon the approval of the Workforce Investment Board and City Council. Contracts may not begin until fully executed by Council. Contracts may be extended once if funds are EXHIBIT I-B 25C-22 Page 1 of 16 available, contractor has complied with applicable Federal, State and local legislation, rules and regulations and contractor has met enrollment and program goals. WHEREFORE, for and in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereto do hereby agree as follows: 1. CONTRACTOR'S OBLIGATIONS A. CONTRACTOR agrees to provide the following services pursuant to said program, as more specifically set forth in CONTRACTOR'S Program Narrative contained in "Exhibit A" and in the Performance Standards "Exhibit B", attached hereto and by this reference incorporated herein. CONTRACTOR'S failure to provide said services may be grounds for CITY to readjust the level of payment to CONTRACTOR otherwise provided for hereinafter. B. CONTRACTOR agrees to provide benefits to individuals who participate in the activities and services funded by this Agreement ("participants") in accordance with the standards and requirements set forth in Workforce Investment Act of 1998, Public Law 105-220. C. CONTRACTOR agrees to perform the services set forth herein in a professional, timely and diligent manner. D. CONTRACTOR shall provide wages and benefits to individuals who participate in the activities and services funded by this Agreement ("participants") in accordance with the standards and requirements of the Act, including Section 181 of the Act. E. CONTRACTOR shall adhere to the Labor Standards described in the Act including Section 181 of the Act. F. CONTRACTOR agrees to comply with the "Complaint Handling Procedures Under the WIA", attached hereto as "Exhibit C" and incorporated herein as though fully set forth in 20 CFR §667.200, Subpart F. CONTRACTOR shall advise participants of their rights to file complaints under the Act and the procedures for resolution of any complaints. CITY's procedures for handling complaints alleging a violation of the Act, regulations, grants, or other agreements under the Act shall be followed and any decision of CITY, the State or the federal government relating to the complaint shall be binding and followed by CONTRACTOR. CONTRACTORS who are employers shall operate a grievance system that incorporates CITY's procedures for resolution of complaints relating to the terms and conditions of employment; these procedures shall be approved in writing by CITY. G. As a condition of this award of financial assistance under the Act to CONTRACTOR from CITY, CONTRACTOR assures, with respect to operation of all programs or activities funded with funds provided pursuant to the Act, and all agreements or arrangements to carry out such programs or activities, that it will comply fully with the nondiscrimination and equal opportunity provisions of the Act (Section 188) and compliance with Equal Employment Opportunity provisions in Executive Order (E.O.) 11246, as amended by E.O. 11375 and supplemented by the EXHIBIT 1-B 25C-23 Page 2 of 16 requirements of 41 CFR Part 60; the Nontraditional Employment for Women Act of 1991; Title VI of the Civil Rights Act of 1964, as amended; section 504 of the Rehabilitation Act of 1973, as amended; the Age Discrimination Act of 1975, as amended; the Americans with Disabilities Act of 1990; and with all applicable requirements imposed by or pursuant to regulations implementing those laws, including, but not limited to, 29 CFR Part 33 and 37. The United States, the State of California and CITY have the right to seek judicial enforcement of this assurance. H. CONTRACTOR agrees that no participant(s) shall commence training prior to the approval of funding pursuant to Section 123 of the Act. 1. CONTRACTOR agrees to maintain such records and submit such reports, data and information, on the form and containing such information, at such times as CITY may request or require regarding the performance of CONTRACTOR'S services or activities, costs or other data, including but not limited to, participants' attendance, payroll records and job duty statements. CONTRACTOR agrees to forward to the Santa Ana Work Center Administrative Office, 1000 East Santa Ana Blvd., Suite 200, Santa Ana, California 92701 a completed Workforce Investment Act Application form (WIA EWIR) and supporting documents within 45 days of application date; a complete Workforce Investment Act Enrollment/Registration form (WIA EWIE) within 30 days of determination (reviewer) date; any subsequent updates to EWIE within 10 days of the begin date of activity or end date of an activity; Workforce Investment Act Youth Test Scores form (WIA EYTS) within 30 days of application date; Workforce Investment Act Exit form (WIA EWIT) within 15 days of completion/termination of active enrollment of trainee; and the Workforce Investment Act Follow-Up Contact Information form (WIA EWIF) within 21 days following 30, 60, 90,180, 270, and 360 days of exit. CITY, the State of California and the United States government and/or their representatives shall have access for purposes of monitoring, auditing and examining of CONTRACTOR'S activities, performance, books, documents, papers, and records of CONTRACTOR subcontractors, bookkeepers and accountants, and employees and participants related to this Agreement. Such agencies or representatives shall also schedule on-site monitoring in their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants and entering any premises or onto any site in which any of the services or activities funded hereunder are conducted or in which any of the records of CONTRACTOR are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. In the event CONTRACTOR does not make the above-referenced documents available within the City of Santa Ana, California, CONTRACTOR agrees to pay all necessary and reasonable expenses incurred by CITY in conducting any audit at the location where said records and books of account are maintained. All accounting records and evidence pertaining to all costs of CONTRACTOR and all documents related to this Agreement shall be kept available at the location where CONTRACTOR conducted the program, as well as in the County of Orange, for the duration of this Agreement and thereafter for three (3) years after completion of an audit. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) EXHIBIT 1-B 25C-24 Page 3 of 16 costs and expenses of this Agreement to which CITY, the State of California or the United States Government take exception, shall be retained beyond the three (3) years until resolution of disposition of such appeals, litigation, claims, or exceptions. J. Without prejudice to any other section of this Agreement, CONTRACTOR shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. Notwithstanding the foregoing, CONTRACTOR agrees to submit to CITY, the State of California and/or the United States Government or their representatives, all records requested for administrative purposes, including audits, examinations, monitoring and verification of records submitted by CONTRACTOR, costs incurred and services rendered hereunder. K. CONTRACTOR agrees to complete in triplicate, a monthly InvoiceNoucher on CITY's InvoiceNoucher form, showing in detail the amount of money already expended by CONTRACTOR hereunder, as this is a cash reimbursement contract. Accounting records must be supported by such source documentation such as cancelled checks, paid bills, payrolls, time and attendance records, contract and subgrant award documents [29 CFR-Subpart C, Section 97.20 (b)(6)]. CONTRACTOR agrees to submit the above-stated documents to the WIB Administrative Office, 1000 East Santa Ana Blvd., Suite 200, Santa Ana, California, 92701, by the tenth (10th) day of the month following the month in which CONTRACTOR'S services are performed. Should CONTRACTOR fail to deliver said documents to CITY, CITY shall have the option to cancel this Agreement by giving CONTRACTOR ten (10) days written notice thereof. CONTRACTOR shall either return to the CITY excess revenues over costs or use such excess revenues as program income by utilizing such program income for additional training activities authorized under the Act. L. CONTRACTOR agrees to expend all funds in accordance with all applicable federal, state and local laws and regulations. CONTRACTOR also agrees to provide at CONTRACTOR'S own expense supplies and other costs of said PROGRAM. M. CONTRACTOR shall arrange independently for an audit that includes WIA funds received from CITY, in accordance with the Act, 20 CFR Section 667.200 and OMB Circular A- 133. CONTRACTOR shall submit one original of each required audit report to CITY within (30) days after the date received by CONTRACTOR. Should CONTRACTOR fail to comply with these requirements, CITY may at its option withhold payment of funds, or disallow funds or suspend additional grant funds. N. CONTRACTOR shall not expend funds pursuant to this Agreement to provide services to any participant where costs of training are paid for by any other person or entity. 0. CONTRACTOR shall comply with the provisions of Circular A-102 of the U.S. Office of Management and Budget (OMB) and the related "Common Rule" entitled "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Government", Subpart C, paragraphs 37 and 42, Circular A-128, and all other applicable federal statutes and executive orders and their implementing regulations, including regulations at 29 CFR Part 97. P. CONTRACTOR shall comply with the requirements of federal regulations found at 29 CFR 93 which provide that no appropriated funds may be expended by the recipient of a EXHIBIT 1-B L^JC-L^J Page 4 of 16 federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, member of Congress or an officer or employee of a member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. CONTRACTOR shall sign a Certification Regarding Lobbying to that effect in a form as set forth in "Exhibit D," attached hereto and by this reference incorporated herein. CONTRACTOR shall submit said signed Certification to CITY prior to performing any of its obligations under this Agreement and prior to any obligation arising on the part of CITY to pay any sums to CONTRACTOR under the terms and conditions of this Agreement. Q. CONTRACTOR agrees to provide a drug-free work place and to execute a Drug Free Workplace Certification as set forth in "Exhibit E" attached hereto and incorporated herein by this reference. R. CONTRACTOR, in accordance with the Child Support Compliance Act, recognizes and acknowledges the importance of child and family support obligations and shall fully comply with all state and federal laws relating to child and family support enforcement, including, but not limited to: disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the state Family Code; and, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Employee Registry maintained by the California Employment Development Department (EDD). S. CONTRACTOR agrees to comply with all applicable provisions of the ACT and the federal regulations, including but not limited to the regulations found at 20 CFR part 629. T. CONTRACTOR agrees to that it is in compliance with the Certification Regarding Debarment ("Exhibit F") as required by the regulations implementing Executive Order 12549, Debarment and Suspension, 29 CFR Part 98, Section 98.510, Participants' Responsibilities. The regulations were published as Part VII of the May 16, 1988, Federal Register (Pages 19160- 19211). U. CONTRACTOR agrees to provide priority of services for veterans and eligible spouses pursuant to 20 CFR part 1010 and the regulations implementing priority of service for veterans and eligible spouses in Department of Labor job training programs under the Jobs for Veterans Act published at 73 Fed.Reg. 78132 on December 19, 2008. II. CITY'S OBLIGATIONS A. CITY agrees to pay to CONTRACTOR when, if and to the extent federal funds are received under the provisions of the Act a sum not to exceed $ .00 for CONTRACTOR'S performance in accordance with the Budget attached hereto as "Exhibit G" during the period of this Agreement. Said sum shall be paid after CITY receives invoices submitted by CONTRACTOR as provided hereinabove. B. CONTRACTOR has the ability to adjust line item amounts in the budget with EXHIBIT 1-B 25C-26 Page 5 of 16 the approval of the Executive Director, so long as the total Budget amount does not increase. C. CITY agrees to provide for on-site monitoring reviews of said program operation at least twice annually. In addition, monthly desk-top reviews of pertinent information will be conducted. D. CITY has the right to de-obligate the funds hereunder and take such funding back from CONTRACTOR due to any of the following reasons: (a) lack of performance by CONTRACTOR; (b) lack of fiscal accountability of CONTRACTOR; or (c) decrease in available funding. III. TIME PERIOD OF AGREEMENT This Agreement shall commence on , and all duties arising under this Agreement shall have been performed by The term of this Agreement may be extended by a writing executed by the Executive Director for the Community Development Agency and the City Attorney. IV. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. V. WORKER'S COMPENSATION AND EMPLOYER'S RIGHTS A. CONTRACTOR shall use appropriate funds received from CITY to provide workers' compensation to all those hired by CONTRACTOR under this Agreement. B. CONTRACTOR shall have the right to hire, dismiss, or promote its employees or contract personnel hired under this Agreement so long as its hiring or dismissal policy or standard does not violate Title VII of the Civil Rights Act of 1964, Fair Labor Standards Act of 1938, or any other applicable law, and CONTRACTOR maintains itself as an Equal Opportunity employer. VI. APPLICABLE GUIDELINES A. The parties hereto agree that CONTRACTOR shall comply with all applicable EXHIBIT I-B 25C-27 Page 6 of 16 federal and state laws and regulations, including, but not limited to the Performance Standards (Exhibit B) and general program requirements described in Sections 106 and 141 of the Act (29 USC Sections 1516 and 1551) and applicable regulations, and the U.S. Department of Labor guidelines and regulations, including amendments or revisions made during the terms of this Agreement. Said applicable laws are hereby incorporated by reference and made as part of this Agreement as though fully set forth herein. B. CONTRACTOR also assures and certifies that: 1. CONTRACTOR acknowledges and confirms that the U.S. Department of Labor has established three (3) common measures for youth: (a) Placement in employment or education; (b) Attainment of degree or certificate; and, (c) Literacy or numeracy gains. With regard to the Summer Youth Program, the only measure is "Work Readiness". Pending WIA reauthorization and or U.S. Department of Labor and EDD updates, CONTRACTOR agrees to implement and shall meet any additional performance measures that may be subsequently required by the Workforce Investment Act or by any other Federal, State, and local law. 2. CONTRACTOR shall comply with Title VII of the Civil Rights Act of 1964 (P.L. 83-354) and in accordance with Title VII of the Act, no person shall, on the grounds of race, color, religion, sex, age, handicap or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. 3. CONTRACTOR shall comply with any and all federal laws limiting the political activity of employees hired under this Agreement. 4. CONTRACTOR shall comply with the requirements that no program under the Act shall involve political activities. 5. RECORD INSPECTION. CONTRACTOR shall provide the U.S. Department of Labor and the Controller General, by and through any authorized representative, as well as the WIB Administrative Office, access to and the right to examine all records, books, papers or documents relating to the accounting and use of funds under this Agreement for a three-year period from and after the effective date of this Agreement. 6. No person with responsibilities in the operation of any program under the Act shall discriminate with respect to any program participant or any application for participation in such program because of race, creed, color, national origin, sex, political affiliation or beliefs. 7. CONTRACTOR shall maintain appropriate standards for health and safety in work and training situations. 8. CONTRACTOR shall comply with general provisions, assurances, and execute the Assurances and Certifications attached hereto as "Exhibit H" and incorporated herein. 9. EQUAL OPPORTUNITY. Any literature distributed by CONTRACTOR for the purpose of apprising businesses, participants, or the general public of its programs under this Agreement shall state that its programs are supported by the City of Santa Ana and EXHIBIT I-B 25C-28 Page 7 of 16 the Santa Ana Workforce Investment Board, and shall state that the program is an "equal opportunity employer/program" and that "auxiliary aids and services are available upon request to individuals with disabilities." 10. Based on the population eligible to be served, or likely to be directly affected by the WIA program or activity, the services or information may need to be provided in a language other than English in order to allow such population to be effectively informed about or able to participate in the program or activity. Pursuant to 29 CFR 37.35, the Contractor must take reasonable steps to provide services and information in appropriate languages after considering the scope of the program or activity, and the size and concentration of the population that needs services or information in a language other than English. 11. CONTRACTOR certifies that all property, finished or unfinished documents, data, studies and reports prepared or purchased under this Agreement, will be disposed of in accordance with the direction of the CITY. In addition, any tools and/or equipment furnished to the CONTRACTOR by the CITY and/or purchased by the CONTRACTOR with funds pursuant to this Agreement, will be limited to use within the activities outlined in this agreement and will remain the property of the United States Government and/or CITY. Upon termination of this Agreement, CONTRACTOR will immediately return such tools and/or equipment to the CITY or dispose of them in accordance with the direction of the CITY. 12. CONTRACTOR certifies that this Agreement does not provide for the advancement or aid to any religious sect, church or creed, or sectarian purpose nor does it help to support or sustain any school, college, university, hospital or other institution controlled by any religious creed, church, or sectarian denomination, as specified by Article XVI, Section 5, of the Constitution of the State of California, regarding separation of church and state. 13. PATENT, COPYRIGHTS AND RIGHTS IN DATA. The CONTRACTOR will disclose to the CITY any invention, written product, computer program developed or data assembled as a result of performance of work under this Agreement within seventy four (74) days of invention, development or assembly. The CITY, State of California, and U.S. Department of Labor will have the right to patent any invention and copyright any written product or computer program or data generated by CONTRACTOR. Upon written request, CONTRACTOR will transfer all pertinent information, specifications and right, title and interest to the designated agency. 14. INVENTIONS, PATENTS AND COPYRIGHTS. A. Reporting Procedure. If any project produces patentable items, patent rights, processes, or inventions in the course of work under a U.S. Department of Labor (DOL) grant or agreement, the CONTRACTOR shall report the fact promptly and fully to the CITY. The CITY shall report the fact to the Grant Officer, at the DOL. Unless there is a prior agreement between the CITY and the DOL and its representative on these matters, the DOL shall determine whether to seek protection on the invention or discovery. The DOL and its representative shall determine how the rightsin the invention or discovery, including rights under any patent issued thereon, will be allocated and administered in order to protect the public interest consistent with the "Governmental Patent Policy" (President's Memorandum for Heads of Executive Departments and Agencies, August 23, 1971, and Statement of Government Patent Policy as printed in 36 FR 16889). EXHIBIT 1-B 25C-29 Page 8 of 16 B. Copyright Policy. 1. Unless otherwise provided in the terms of the grant or agreement, when copyright- able material is developed in the course of or under a DOL Grant or agreement, the author and the CITY which developed the work is free to copyright material or to permit others to do so. The CONTRACTOR and the Workforce Investment Board (WIB) shall have a royalty-free, nonexclusive and irrevocable license to reproduce, publish, use and to authorize others to use all copyrighted material. 2. The DOL reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes: (a) The copyright in any work developed under any grant, sub-grant, or contract under a grant or subgrant; (b) Any right of copyright to which a grantee, subgrantee or a CONTRACTOR purchases ownership with grant support; and (c) CONTRACTOR shall comply with the requirements of 29 CFR Part 97.34. C. Rights to Data. The DOL and the CITY shall have unlimited rights to any data first procured or delivered under this Agreement. 15. CLEAN AIR / CLEAN WATER ACT. If the grant hereunder exceeds $100,000, CONTRACTOR must comply with Section 306 of the Clean Air Act [(42 USC 1875(h)]; Section 508 of the Clean Water Act (33 USC 1368); Executive Order 11738 and Environmental Protection Agency ("EPA") regulations (40 CFR Part 15) as any may now exist or be hereafter amended. Under these laws and regulations, the CONTRACTOR assures that: (a) No facility to be utilized in the performance of the proposed grant has been listed on the EPA List of Violating Facilities; (b) It will notify CITY prior to award of the receipt of any communication from the Director, Office of Federal Activities, U.S. EPA, indicating that a facility to be utilized for the grant is under consideration to be listed on the EPA List of Violating Facilities; (c) It will notify the CITY and the EPA about any known violation of the above laws and regulations. C. CONTRACTOR agrees to adhere to the following STANDARDS OF CONDUCT: 1. General Assurance. Every reasonable course of action will be taken by CONTRACTOR in order to maintain the integrity of this expenditure of public funds and to avoid favoritism. This Agreement will be administered in an impartial manner, free from errors to gain personal, financial political gain. CONTRACTOR, its officers and employees, in administering this Agreement, will avoid situations which give rise to a suggestion that any decision was influenced by prejudice, bias, special interest or desire for personal gain. 2. Employment of Former State or CITY Employees. CONTRACTOR will ensure that any of its employees who were formerly employed by the State of California or CITY, in a position that could have enabled such individuals to impact policy regarding or implementation of programs covered by this Agreement, will not be assigned to any part or phase of the activities conducted pursuant to this Agreement for a period of not less than two years following the termination of such employment. EXHIBIT 1-B 25C-30 Page 9 of 16 3. Conducting Business Involving Relatives No relative by blood, adoption or marriage of any executive or employee of CONTRACTOR will receive favorable treatment when considered for enrollment in programs provided by, or employment with, CONTRACTOR. 4. Conducting Business Involving Close personal Friends and Associates. Executives and employees of CONTRACTOR will be particularly aware of the varying degrees of influence that can be exerted by personal friends and associates and, in administering this Agreement, will exercise due diligence to avoid situations which give rise to an assertion that favorable treatment is being granted to friends and associates. When it is in the public interest for CONTRACTOR to conduct business with a friend or associate of an executive or employee of CONTRACTOR, an elected official in the area or a voting or non-voting member of the Workforce Investment Board (WIB), a permanent record of the transaction will be retained. 5. Avoidance of Conflict of Economic Interest. No executive or employee of CONTRACTOR elected official in the area, or voting or non-voting member of a WIB, will solicit or accept money or any other consideration from a third person, for the performance of an act reimbursed in whole or part by CONTRACTOR or CITY. Supplies, materials, equipment or services purchased with Agreement funds will be used solely for purposes asserted or allowed under this Agreement. No voting member of the WIB will cast a vote on the provision of services or vote on any matter which would provide direct financial benefit to that member or any business or organization which the member directly represents. 6. Salary and Bonus Limitations. All Subrecipients of WIA program funds are required to comply with federal requirements regarding the limitations on salary and bonus payments in accordance with Public Law 109-149, Section 7013. VII. HOLD HARMLESS A. CONTRACTOR shall indemnify and save harmless CITY, its officers, agents and employees, from and against any and all damages to property or injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, agents and employees, from any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers' compensation claims, resulting from or arising out of the negligent acts, errors or omission of CONTRACTOR, its employees or subcontractors. B. CONTRACTOR shall indemnify and save harmless CITY, its officers, agents and employees, from and against any and all damages to property or injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, agents and employees, from and against any and all claims, demands, suits, actions or proceedings therefore, resulting from or arising out of the intentional or malicious acts of CONTRACTOR, its employees or subcontractors. VIII. INSURANCE EXHIBIT I-B 25C-31 Page 10 of 16 I . Commercial General Liability. CONTRACTOR and any Subcontractor agree to obtain and keep in force during the term of this Agreement a policy of comprehensive commercial general liability insurance insuring the State of California, CITY, and CONTRACTOR against any liability for accident, injury or death arising out of or in consequence of this Agreement. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in any single accident or occurrence. Said policy of comprehensive public liability insurance shall be endorsed to provide to CITY and to the State of California, Employment Development Department, at least thirty (30) days written notice prior to cancellation; name CITY, its officers, agents, employees, and volunteers, and the State of California, its officers, employees, and volunteers as additional insured; and state that such coverage is primary to any other coverage or self-insurance of the State of California and CITY (see Exhibit I , Additional Insured Endorsement, attached hereto). Governmental entities may substitute a certificate of self-insurance. Any subcontractor to CONTRACTOR shall comply with these Insurance Provisions and provide the comprehensive commercial general liability insurance coverage as well as the Additional Insured Endorsement naming the CITY as additionally insured. 2. Automobile Liability Coverage. CONTRACTOR and any subcontractors shall also obtain and maintain, during the effective period of this Agreement, broad form automobile liability coverage with a $1,000,000 limit unless reduced by CITY, which applies to both owned/leased and non-owned automobiles used by CONTRACTOR employees or participants in performance of this Agreement, or, in the event that CITY will not utilize such owned/leased automobiles but intends to require employees, participants or other agents to utilize their own automobiles in the performance of this Agreement, CONTRACTOR shall secure and maintain on file from all such employees, participants, or agents as self-certification of automobile insurance coverage. Governmental entities may substitute a certificate of self-insurance. 3. Workers' Compensation. If CONTRACTOR and any subcontractor is an "employer", as set forth in California Labor Code Section 3300 et seq., or utilizes participants as "employees," as set forth in California Labor Code Section 3350 et seq., CONTRACTOR shall obtain and keep in force during the term of this Agreement full Workers' Compensation insurance coverage for injuries suffered by participants. Said insurance policy shall guarantee CITY at least thirty (30) days written notice of cancellation or modification. CONTRACTOR and any subcontractor shall carry medical and accident insurance for those participants not qualifying as "employees" for Worker's Compensation Coverage, pursuant to California Labor Code Section 3350, et seq. 4. Equipment Coverage. CONTRACTOR and any subcontractor shall purchase a policy or policies of insurance covering loss or damage to any and all Equipment provided to or purchased by CONTRACTOR or such subcontractor in accordance with this Agreement. Said insurance shall be in the amount of the full replacement value thereof, providing protection against the classification of fire, extended coverage, vandalism, malicious mischief, theft, and special extended perils. Governmental entities may substitute a certificate of self-insurance. IX. CORPORATE STATUS All corporate CONTRACTORS shall be in good standing, without suspension by the California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in EXHIBIT 1-B L^JC-3^ L Page 1 ] of 16 corporate status or suspension shall be reported immediately to CITY. X. ASSIGNABILITY None of the duties of, or work to be performed by, CONTRACTOR under this Agreement shall be subcontracted or assigned to any agency, consultant, or person without the prior written consent of CITY. CONTRACTOR must submit all subcontracts and other agreements that relate to this Agreement to CITY. No subcontract or assignment shall terminate or alter the legal obligations of CONTRACTOR pursuant to this Agreement. XI. LAWS GOVERNING THIS AGREEMENT In its performance under this Agreement, CONTRACTOR shall fully comply with the requirements of the following, whether or not otherwise referred to in this Agreement: 1. The Act and all applicable federal statutes, regulations, policies, procedures and directives, including but not limited to, 20 C.F.R. Parts 652 and 660 through 671. 2. All applicable State statutes, regulations, policies, procedures and directives; 3. All applicable CITY policies, procedures and directives; 4. All applicable local ordinances and requirements, including use permits and licensing; 5. Court orders applicable to its operation; and, 6. The terms and conditions of this Agreement. If any of the foregoing is enacted, amended, or revised, CONTRACTOR will comply with such or will notify CITY after enactment or modification that it cannot so comply. CITY may thereupon terminate this Agreement, if necessary. XII. EXCLUSIVITY AND AMENDMENT OF AGREEMENT This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the employment of CONTRACTOR by CITY, and contains all the covenants and agreements between the parties with respect to such employment. 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, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both CITY and CONTRACTOR. XIII. FRAUD EXHIBIT I-B 25C-33 Page 12 of 16 CONTRACTOR shall immediately report to CITY all instances and facts concerning possible fraud, abuse or criminal activity relating to expenditure or receipt of funds under this Agreement. XIV. CONTINGENCY OF FUNDS CONTRACTOR acknowledges that approval of and funding for this Agreement is contingent upon State approval, and funds received or obligated from the State of California to CITY. If such approval of funds is not forthcoming, or is otherwise limited, CITY shall immediately notify CONTRACTOR. Within twenty (20) days of receipt of such notice, CONTRACTOR shall modify or cease operations as directed by CITY and negotiate necessary modification to this Agreement and/or reimbursement of costs incurred hereunder. XV. TERMINATION A. This Agreement may be terminated by either party at its sole discretion, upon thirty (30) days written notice to the other party. Notice shall be deemed served on the date of mailing. However, CONTRACTOR may not terminate this Agreement if undue hardship will result to any participant. B. In the event CONTRACTOR defaults by failing to fulfill all or any of its obligations hereunder, CITY may declare a default and termination of this Agreement by written notice to CONTRACTOR, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of such notice, unless such default is cured before the effective date of termination stated in such notice. If terminated for cause, CITY shall be relieved of further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by CITY in obtaining substitute performance. XVI. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning any question arising under this Agreement shall be decided by CITY. In such a case CITY shall reduce its decision to writing and mail or otherwise furnish a copy thereof to CONTRACTOR. The decision of the City shall be final and conclusive unless within thirty (30) calendar days from the mailing or delivery of such copy, CITY receives from CONTRACTOR written request to appeal said decision. Procedures governing the appeal shall be prescribed by CITY and/or the State of California in accordance with the Act and all corresponding regulations and OMB circulars. Pending final disposition of the appeal, CONTRACTOR shall act in accordance with CITY's decision unless the dispute involves a change order. XVII. EXHIBIT 1-B LAJC-34 Page 13 of 16 BREACH - SANCTIONS If, through any cause, CONTRACTOR violates any of the terms and conditions of this Agreement, and/or prior agreements whereby grant funds were received by CONTRACTOR pursuant to this Agreement, or if CONTRACTOR reports inaccurately or if any Audit Report makes disallowances, CONTRACTOR shall promptly remedy its acts or omissions and/or repay CITY all amounts due CITY as a result of CONTRACTOR's violation. For any such failures or violations, CITY shall also have the right at its sole discretion to either: (1) discontinue program support until such time as CONTRACTOR fulfills its obligations or remedies all violations of this agreement or prior agreements; and/or (2) collect outstanding amounts as determined by CITY due CITY by offsetting or debiting from current claims or invoices, if after thirty (30) days' written notice CONTRACTOR has failed to repay same or a repayment schedule has not been made; and/or (3) terminate this Agreement by giving written notice to CONTRACTOR of such termination in accordance the notice provision in Paragraph XVIII herein below. XVIII. NOTICES All notices, reports and correspondence between the parties hereto respecting this Agreement shall be in writing and deposited in the United States Mail, postage prepaid, addressed as follows: CITY: City of Santa Ana Manager, WIB Administrative Office P.O. Box 1988 (M-73) Santa Ana, CA 92702 and, CLERK: 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 CONTRACTOR: Phone: (714) Fax: (714) Attn: XIX. MERGER This Agreement, together with the attachments hereto, expresses the total understanding of the parties. There are no oral understandings of the parties or terms and conditions other than as stated herein. EXHIBIT 1-B 25C-35 Page 14 of 16 XX. VALIDITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. XXI. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. EXHIBIT I-B 25C-36 Page 15 of 16 IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Understanding the date and year first above-written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph Straka Interim City Attorney BY: Lisa E. Storck Assistant City Attorney CITY OF SANTA ANA, a municipal corporation of the State of California "CITY" By: Paul Walters Interim City Manager "CONTRACTOR" Parks, Recreation & Comm. Services City of Santa Ana BY: Gerardo Mouet Executive Director EXHIBIT 1-B 25(?"-37 Page 16 of 16 MEMORANDUM OF UNDERSTANDING BETWEEN THE SANTA ANA WORKFORCE INVESTMENT BOARD/YOUTH COUNCIL AND THE SANTA ANA W/O/R/K CENTER/ YOUTH SERVICE PROVIDER NAVIGATOR This Memorandum of Understanding is entered this I" day of July 2011, by and between the Santa Ana Workforce Investment Board ("WIB")/Santa Ana Youth Council and the Santa Ana W/O/R/K Center ("Provider") acting in its capacity as the Youth Service Provider Navigator. 1. PURPOSE: The Santa Ana Youth Council designated the Santa Ana W/O/R/K Center as their "Service Navigator" for all WIA youth services, and its eligible participants. The Service Navigator's function within the Youth Service Provider Network is to coordinate services in a manner that eliminates bureaucracy from the participating providers. 2. STAFFING RESPONSIBILITY OF "PROVIDER": The Santa Ana W/O/R/K Center must provide sufficient staff to conduct the following roles: A. Assist with recruitment of potential WIA youth participants to Youth Service Provider Network B. Refer eligible youth to appropriate WIA youth providers C. Collect eligibility documentation (both at provider location and Service Navigator site) D. Certify WIA eligibility E. Ensure accuracy and timely submission of all Job Training Automated (JTA) MIS system forms F. Provide technical assistance and eligibility training to all providers G. Develop policies and procedures to ensure compliance with Federal, State and Local WIA rules, regulations and goals H. Track and maintain program/provider performance goals 1. Coordinate co-enrollment among youth providers J. Actively participate on the Santa Ana Youth Council K. Coordinate (and provide as needed) follow-up services with providers and participants L. Process payment for services within 30 days of receipt M. Conduct an annual fiscal monitoring of youth providers funded under WIA N. Provide on-going Labor Market Information related to youth to providers 0. Provide on-going ADA/EEO information/training P. Provide on-going information/training on Child Labor Laws Q. Provide legislative/regulatory updates on services, programs impacted by Youth Workforce Development EXHIBIT 2 1 25C-38 R. Collect, analyze and report to Youth Council the results of the Customer Satisfaction Surveys S. Create and implement a continuous improvement project based on the results of the Customer Satisfaction Survey T. Be available and prepared for monitoring by Federal, State and SAWIB staff 4. FOLLOW UP SERVICES: Follow-up services will be a coordinated effort between the W/O/R/K Center Service Navigator and the youth program operators. The purpose of follow-up is to determine a participant's employment and educational status after exiting the WIA program and to provide additional assistance if needed. 5. BUDGET: The W/O/R/K Center acting as the "Provider", shall provide all of the services discussed herein as well as those set forth in Exhibit A, for the monetary amount set forth in its budget attached hereto as Exhibit B. Said Budget may annually be updated as approved by the WIB. Individual line item amounts on said Budget may be revised with approval of both parties, however the total Budget amount cannot be increased. 6. DURATION: This MOU shall remain in effect until a written cancellation is submitted by either party giving a 30-day advance notice. 7. AMENDMENTS: Either party may propose amendments to this MOU at any time by providing written notice to the other. Amendments to this MOU shall require the approval of the authorized signatory for the WIB and the Executive Director for Community Development or her/his designee ("Executive Director"), on behalf of the W/O/R/K Center. 8. DISPUTES: The parties shall first attempt to resolve all disputes informally. Any party may call a meeting of all parties to discuss and resolve disputes. Should informal resolution efforts fail, the dispute shall be referred to the Executive Director to act as mediator, to attempt to resolve the dispute by holding an informal hearing with presentations by both parties. If the Executive Director's resolution efforts fail, any party may file a grievance with the City Manager for review and hearing. The parties agree to be bound by the final determination resulting from that procedure. All costs associated with the grievance procedure shall be borne by the losing party. 9. SEVERABILITY: If any part of this MOU is found to be null and void, or is otherwise stricken, the rest of this MOU shall remain in force. 10. HOLD HARMLESS: Each party to this MOU agrees to indemnify and hold harmless the other parties, their officers, agents, employees, and volunteers from and against any and all loss or damage, and from any and all suits, actions and claims filed or brought by any person or persons arising out of acts or omissions of the party or its officers, agents, employees or volunteers in the performance of this MOU. EXHIBIT 2 2 25C-39 11. DISCRIMINATION: Provider 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, and Provider affirms that it shall comply with all applicable federal, state and local laws and regulations. 12. AUTHORITY AND SIGNATURES: The individuals signing this MOU or its attachments have the authority to commit the party they represent to the terms of this MOU, and do so commit by signing. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council CITY OF SANTA ANA Paul Walters Interim City Manager APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Lisa Storck Assistant City Attorney EXHIBIT 2 Santa Ana Workforce Investment Board Lee McMurtray WIB Chairman 25C-40 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: AGREEMENT WITH ANR HOMES, INC. FOR THE IMPLEMENTATION OF THE NEIGHBORHOOD STABILIZATION PROGRAM 3 CITY MA GER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement with ANR Homes, Inc. for implementation of the Neighborhood Stabilization Program 3 activities in an amount not to exceed $1,317,703 plus program income, subject to non-substantive changes approved by the City Manager and City Attorney. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its regular meeting on June 7, 2011, by a vote of 4:0 (Verino absent), the Community Redevelopment and Housing Commission approved the recommended action. DISCUSSION The Dodd-Frank Act appropriated $1 billion for a third round of Neighborhood Stabilization (NSP 3) funds to be directly allocated to states and localities to stabilize neighborhoods that have been impacted by foreclosed or abandoned properties. Based on the funding distribution formula established by the U. S. Department of Housing and Urban Development (HUD), Santa Ana has been allocated $1,464,113. In order for a property to be eligible for this funding, the lender must have initiated the foreclosure process. The City will use its funds to acquire, rehabilitate, and resell to qualified homebuyers. On February 28, 2011, the City released a Request for Proposals (RFP) soliciting proposals for entities to assist in the implementation of the NSP 3 activities. Notice of the RFP's availability was mailed and emailed to 112 development firms who have expressed interest in housing-related RFPs. It was also noticed on the City's website and in the Orange County Reporter on February 28, 2011. A total of three proposals were received by the April 7, 2011, deadline of which two were considered responsive. The proposals were reviewed on May 3, 2011, by a team of three, including one staff person from the City of Long Beach. Proposals were scored in the following areas: Lead and Team Experience, Proposed Budget and Timeline, and Developer Fee. Because of the strict timelines imposed by HUD, the greatest weight was placed on experience in 25D-1 NSP 3 Implementation Agreement June 20, 2011 Page 2 purchasing, rehabilitating and selling foreclosed properties, and where applicable, on team member experience in working together in an efficient and timely manner. The table below lists responsive applicants and their scores from their proposal. Ac uisition/Rehabilitation/Resale - Single Family Program ANR Homes, Inc. 92 Neighborhood Housing Services of Orange County, Inc. 83 Based on the rating of its proposal, the interview and previous experience, ANR Homes, Inc. (ANR) is being recommended. ANR has been acquiring, rehabilitating and selling foreclosed properties since 1995. Working with many local government agencies and nonprofit corporations, ANR has rehabilitated more than 3,000 properties throughout Southern California. Additionally, through the City's previous allocations of NSP, ANR has acquired and rehabilitated 50 single family homes since July 2009 of which 36 have already been sold to income-qualified homebuyers. ANR also works with fourteen other public entities utilizing NSP funds throughout Southern California. As part of its proposal, ANR provided commitment letters from two financial institutions to leverage the City's NSP funds. With these funding commitments, ANR has the capacity to finance up to 80% of costs with its own acquisition/construction lender. This leveraging will allow the City to meet and possibly exceed its goals which were identified in the application to HUD as seven single family homes. The NSP funds will be used for acquisition and rehabilitation costs. Given the desire to recycle funds and stabilize communities as quickly as possible, ANR will be working with local real estate brokers that are most knowledgeable of the market and have a successful track record. FISCAL IMPACT Funds for the Acquisition/Rehabilitation/Resale Activities are available in the Neighborhood Stabilization Program 3 Grant Fund account (no. 14218762-62300). APPROVED AS TO FUNDS AND ACCOUNTS: -1K a 6 Nancy T. E ards Francisco Gutierrez Interim Exe tive Director Executive Director Community Development Agency Finance & Management Services Agency NTE/SLB/MA/kg Exhibit: 1. Agreement 25D-2 NEIGHBORHOOD STABILIZATION PROGRAM (PROGRAM 3) GRANT SERVICES AGREEMENT This Agreement is executed by and between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City") and ANR Santa Ana NSP, LLC, a California limited liability corporation ("Developer") as of June 21, 2011. RECITALS: A. Title III of Division B of the Housing and Economic Recovery Act of 2008 (Pub. L 110- 289, 122 Stat. 2654 enacted July 30, 2009), as amended, and an additional allocation of funds provided under Section 1497 of the Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. 111-203, approved July 21, 2010) makes available to certain qualified municipalities for certain qualified grant funds termed Neighborhood Stabilization Program ("NSP Funds") under a program termed the Neighborhood Stabilization Program (the "NSP"). B. On October 19, 2010, the U.S. Department of Housing and Urban Development ("HUD") issued a Notice of Funding Availability (NOFA) for Neighborhood Stabilization Program 3 Funds (NSP 3). In March 2011, the City adopted a Substantial Amendment to its 2010-2011 Consolidated Plan Annual Action Plan for $1.4 million. C. On March 4, 2011, the City was notified that its application under the NSP for NSP 3 Funds was approved by HUD. Funding for Developer is allocated for acquisition and rehabilitation of the single family components of the NSP3 program in an amount not to exceed $1,317,703 plus program income. D. The City has developed certain criteria and guidelines for implementation of its Neighborhood Stabilization Program for the NSP funds. The City has identified the target area as illustrated in the map attached hereto as Exhibit A. E. The City intends for the NSP funds to be primarily used for acquisition of foreclosed properties and any expenses related to the acquisition and disposition of such properties, including developer fees. Only in special circumstances will the NSP funds be used for the rehabilitation costs associated with foreclosed properties. NOW THEREFORE, the parties agree as follows: 100. DEFINITIONS "Affordable Sales Price" shall mean a purchase price which results in an affordable cost to a Low, Moderate, and/or Middle Income Purchaser. The Affordable Sales Price for Low Income households will be the product of 30% times 50% of the Area Median Income adjusted for family size appropriate for the unit. For Middle H 4wi Income households, the Affordable Sales Price will be the product of 35% times 100% of the Area Median Income, adjusted for family size appropriate for the unit. "Agency" means the Community Redevelopment Agency of the City of Santa Ana, a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000 et seq.) The principal office of the Agency is located at 20 Civic Center Plaza, Santa Ana, California, 92702. "Agreement" means this Neighborhood Stabilization Program Agreement between the City and the Developer, and any attachments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the NSP, and the NSP 3 Funds. "Blighted" a structure is blighted when it exhibits objectively determinable signs of deterioration sufficient to constitute a threat to human health, safety and welfare. "Building Permit" means the building permit(s) issued by City and required for the rehabilitation, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "City" means the City of Santa Ana, a charter city and municipal corporation. "Current Market Appraised Value" the current market appraised value means the value of a foreclosed residential property that is established through an appraisal made in conformity with the appraisal requirements of the Uniform Relocation Act (URA) 49 CFR 24.13 and completed within 60 days prior to the final offer made for the property. "Deed of Trust" means the Deed of Trust with the Developer encumbering the NSP Assisted Unit in the form attached hereto as Exhibit B. "Developer" means ANR Homes Inc., a California corporation, and its affiliate, ANR Santa Ana, NSP, LLC. "Eligible Property" shall mean a property that the City shall in its sole discretion determines meets NSP Program Criteria. "Executive Director" means the Executive Director of the Community Development Agency, or his/her designee. "Foreclosed" As defined by HUD for the purposes of NSP means "A home or residential property has been foreclosed upon if any of the following conditions apply" 2 ?W24 1 (a) The property's current delinquency status is at least 60 days delinquent under the Mortgage Bankers of America delinquency calculation and the owner has been notified; (b) the property owner is 90 days or more delinquent on tax payments; (c) under state, local, or tribal law, foreclosure proceedings have been initiated or completed; or (d) foreclosure proceedings have been completed and title has been transferred to an intermediary aggregator or servicer that is not an NSP grantee, contractor, subrecipient, developer, or end user. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "Homebuyer" shall be the qualified low, moderate, and/or middle income household that originally purchases the NSP Assisted Unit from the Developer. "Homebuyer Deed of Trust" means the deed of trust encumbering the NSP Assisted Unit, in the form attached hereto as Exhibit C to be executed by the Homebuyer at the time of sale. "Housing Rehabilitation Standards" NSP funded activities will adhere to the Housing Rehab Standards (attached hereto and incorporated herein as Exhibit D). This standard exceeds the HUD Housing Quality Standards. The Standards shall correct housing deficiencies and address items deemed essential for basic health, safety, and welfare. All work shall meet the Uniform Building Code (UBC), Uniform Plumbing Code (UPC), Uniform Mechanical Code (UMC), National Electric Code (NEC) as amended periodically. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Low Income" means an adjusted income which does not exceed fifty percent (50%) of the Orange County, California PMSA, adjusted for household size, as published by HUD. This income limit will be used to determine the Homebuyer's maximum income for eligibility to purchase a Low Income Unit. 3 ?Wl 1 "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMI". "Middle Income" means an adjusted income which does not exceed one hundred twenty percent (120%) of the Orange County, California PMSA, adjusted for household size, as published by HUD. This income limit will be used to determine the Homebuyer's maximum income for eligibility to purchase a Middle Income Unit. "Neighborhood Stabilization Program" (NSP) has the meaning set forth in the Recitals above. "Neighborhood Stabilization Program (NSP) Regulations" has the meaning set forth in the Recitals above. "NSP Assisted Units" shall mean those residential units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. "NSP Funds" shall mean the money provided under the NSP 3 Program for the acquisition and rehabilitation of the homes hereunder. "Target Area" shall mean the map attached hereto and incorporated herein as Exhibit A. "Term of Affordability" the term of affordability shall be forty-five (45) years. "Vicinity" shall mean the Target Area as identified by the City for the NSP funds and approved by HUD. 200. PROPERTY ACQUISITION 201. Selection of Properties by Developer. Developer shall with reasonable diligence seek to identify proposed Eligible Properties which it determines may meet NSP Program Criteria. Only vacant and foreclosed properties will be considered, unless otherwise authorized by the City. The Developer shall provide the City with its Acquisition/Rehabilitation Bid Analysis on each potential property to the City. Upon receipt of complete bid analysis, the City shall review said within two (2) working days, subject to final approval after inspection by City rehabilitation staff which shall occur within two (2) additional working days. The City will approve or reject properties for purchase through the NSP Program. Developer shall negotiate the purchase of the property with the current owner which must be consistent with NSP guidelines. Developer has the capacity to finance up to 80 percent of costs with its own acquisition/construction lender. Developer shall take, insure and hold title to the property, and prepare a scope of work to be reviewed by the City. The City anticipates mainly using NSP funds for acquisition, costs associated with maintenance, sales and other related soft costs. The actual number of housing units to be acquired and rehabilitated by Developer will be determined 4 ? 4WI OLJW by the City in its sole discretion based in part on the amount of NSP Funds awarded to Santa Ana. 202. Properties Provided by the National Community Stabilization Trust. The parties shall also be working in conjunction with the National Community Stabilization Trust (NCST) to identify potential eligible properties. Each of the parties has signed a Memorandum of Understanding with NCST and agreed to the Acquisition Program Guidelines issued by NCST. Any properties purchased in collaboration with NCST must comply with all NCST requirements and follow the NCST framework for acquisition of eligible properties. 203. Offer to Purchase. Any offers to purchase must include a contingency for appraisal to be in compliance with NSP Regulations. Once appraisal is in compliance, then a final offer to purchase may be submitted. 204. Appraisals. The City shall provide its approved list of appraisers to be used for all NSP activities to the Developer. Developer shall select and pay the appraiser directly as one of its development costs. 205. Funding of Acquisition. City shall deposit into escrow, funds for Developer as agreed upon during the Selection Phase. City shall record a lien, in the form of a Deed of Trust, against each of the selected properties equal to the amount of money deposited into escrow for such property. Said lien will be released upon sale of the Property to a qualified homebuyer, when the Deed of Trust and Promissory Note (attached hereto and incorporated herein as Exhibit E) are executed. The City is willing to subordinate its Deed of Trust to the primary lender. 300. REHABILITATION REQUIREMENTS. The following Rehabilitation Requirements shall apply to all NSP Assisted Units: 301. Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of governmental agencies required in connection with the rehabilitation of the Property. 302. Commencement and Completion of Rehabilitation. The Rehabilitation shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by any governmental authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 303. Rehabilitation Standards. Residential Rehabilitation Standards (24 CFR 570): Developer certifies that it will perform rehabilitation in conformance to the standards outlined in the City's Residential Rehabilitation Standards, which exceed the HUD Housing Quality Standards and with strict adherence to state and local building codes, safety standards, protection of historical integrity and for maximum achievement in the area of energy efficiency. Demolition shall be conducted in cases of extreme deterioration, to eliminate illegal additions, and in concert with local authorities. 5 i4WF OU- 304. Protection of Historical Structures (24 CFR Part 58/36CFR Part 800). Developer will comply with and obtain approval of the Federal and State Historic Preservation Commission(s) when rehabilitation activities are planned on a structure that is listed on the state historic registry, and will provide documentation of such approval to the City prior to commencement of any rehabilitation activities on a property which is funded through this program. 305. Lead-Based Paint. Developer shall comply with the requirements, as applicable of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846) and implementing regulations at 24 CFR 35 for any housing project it undertakes pursuant to this Agreement. For the activities outlined in this Agreement, Developer will be required to pay particular attention to subpart J (Rehabilitation); subpart K (Acquisition, Leasing, Support Services or Operation) and Subpart R (Methods and Standards for lead based paint hazard reduction activities). 306. Asbestos Abatement: The United States Environmental Protection Agency (EPA) has defined asbestos containing materials (ACM) to be any substance containing more than one percent (I%) or more asbestos by weight. All ACM's must be abated prior to demolition or renovation/remodeling activities by a Cal-OSHA licensed asbestos abatement contractor using methods in accordance with 8 CCR 1529 and SCAQMD Rule 1403. Asbestos abatement procedures should be monitored by a third party or consultant knowledgeable in asbestos abatement procedures and is, at a minimum, either a Cal-OSHA certified Site Surveillance Technician or Certified Asbestos Consultant. The survey for ACMs shall be performed in conjunction with the survey for lead-based paint. All suspect materials are sampled and tested in accordance with the general guidelines for bulk asbestos sampling as presented in Section 40, Part 763 (AHERA) of the Code of Federal Regulations (CFR) and the United States EPA. 307. Energy Efficient Products. Developer shall include energy efficient products in the rehabilitation of the homes. Such products include the following features: low-flush toilets, insulation, high heating efficiency systems, energy efficient windows and tankless water heaters. When the rehabilitation involves new landscaping, lawn areas are reduced and low-maintenance and drought tolerant plants are installed. 308. Rehabilitation Act - Section 504 (As Applicable). Section 504 of the Rehabilitation Act of 1973 prohibits discrimination in federally-assisted activities and programs on the basis of handicap, and imposes requirements to ensure that qualified individuals with handicaps have access to these programs and activities. 309. Property Standards. Developer shall cause the Property to meet the housing quality standards set forth in 24 CFR 882.109, as well as all applicable local, state and federal codes and ordinances, including zoning ordinances. Developer shall also cause the Property to 6 ??161 OU_ meet the current edition of the Model Energy Code published by the Council of American Building Officials. 400. REHABILITATION COSTS PAID WITH NSP FUNDS. In those special instances where Rehabilitation Costs will be paid with NSP Funds, the following procedures shall be followed: 401. Rehabilitation Costs Paid with NSP Funds. It is the intent of the parties to use NSP funds for acquisition and related soft costs. If there is a need to use NSP funds for rehabilitation, this section will apply. In the event that NSP Funds will be used for construction related expenses, Developer must also comply with the labor and Davis-Bacon regulations as set forth in Section 703 hereof. The documents referenced in this Section 400 (Payment Request, Release of Retention Funds, Notice of Completion) are attached hereto and incorporated herein as Exhibit F. 402. Disbursement Requests. The Rehabilitation Portion proceeds shall be disbursed on a line-item by line-item basis in accordance with the Rehabilitation Budget and subject to the conditions in this section. In no event shall City have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Rehabilitation Budget. Disbursements shall be made only upon Developer's written request in the form of a Disbursement Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as City may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to City, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b) all other documents and information reasonably required by City. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by City of proceeds of the NSP Funds, Developer shall deliver to City and to Bank a draw request ("Draw Request"), and all required supporting information as set forth in this Agreement or as otherwise reasonably required by City or Bank in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. City and Bank shall notify the other and Developer of approval or disapproval of each Draw Request within five (5) business days after receipt of the Draw Request, using the Bank's "Disbursement/Change Order Approval Notice". City and Bank shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 403. Manner of Disbursement. City may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by City. 7 ?W-6' 404. Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by City or Developer to be required to complete all matters included in any line item in the Rehabilitation Budget exceeds the amount allocated to that line item in the Rehabilitation Budget, (b) Rehabilitation Costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the Rehabilitation Portion is or may be insufficient to pay all Rehabilitation Costs that may be payable under this Agreement or otherwise in connection with the Rehabilitation, Developer shall, within ten (10) days after it receives written notice thereof from City of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to City that Developer has previously paid such excess or otherwise provided for such insufficiency (collectively, the "Excess Cost") with funds from a source other than the NSP Funds; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Rehabilitation Budget; provided, however, that the Executive Director's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non-interest bearing account (the "Overrun Account") with City from which withdrawals may be made only with the consent of the Executive Director but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Rehabilitation Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. City shall have no obligation to make further disbursements until Developer has paid or otherwise provided for the overrun as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by City prior to the disbursement of any remaining Rehabilitation Portion proceeds. 405. Cost Savings. Upon completion of and disbursement for all matters covered by any line items in the Rehabilitation Budget, any remaining undisbursed amounts allocated to that line item shall be reallocated to "Contingency" and thereafter be available for disbursement in accordance with the terms of this Agreement. 406. Retainage. City will withhold a Retainage of 10% from each Disbursement for each of the Hard Cost line items of the Project Cost Breakdown (and other line items thereof designated for withholding of retainage) until all conditions to the final Disbursement of Hard Costs have been satisfied. In lieu of City's withholding Retainage, Developer can by written notice to City elect not to draw any overhead or profit as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. City shall not retain funds for building materials purchased by Developer for which Developer supplies documentation to City proving payment in full or for soft costs. 407. Holdback. The retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as determined by the X-FiLB '?b Z Executive Director) for "punch-list" items. Such holdback will be released when all punch-list items have been completed to the satisfaction of City. 408. Waiver of Disbursement Conditions. Unless City otherwise agrees in writing, the making by City of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made, and such condition shall be condition to all further disbursements until fulfilled. 409. Modification of Disbursement Conditions and Procedures. The Executive Director shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the Rehabilitation Contract. 500. COVENANTS, RESTRICTIONS, SALE TO HOMEBUYERS 501. Reserved. 502. Selection of Broker by Developer. Developer shall select local real estate brokers that are most knowledgeable of the market and have a successful track record in the area. Selection of the broker will be based on criteria such as volume of sales in the area, days on the market, and comparison of listing price versus sales price, excluding foreclosed properties. The number of brokers shall be reviewed periodically based on program needs and volume. 503. NSP Assisted Units. Developer agrees to make available, restrict occupancy to, and sell each of the NSP Assisted Units to Low, Moderate, and/or Middle Income Households (as that term is herein defined) at an Affordable Housing Cost. In addition, the Developer agrees to cooperate with the Agency in any subsidized loan program the Agency may in its sole discretion make available to Low, Moderate, and/or Middle Income Household purchasers of some or all of the NSP Assisted Units. 504. Sales price. Single Family Homes: Upon completion, the homes will be marketed and sold to qualified households at 50 percent or 120 percent of the area median income, as determined by the City, for the sale amount indicated below. In no case shall the sales price be greater than the lesser of (a) fair market value or (b) the total costs to acquire and rehabilitate the property per NSP guidelines. The City assumes that properties cannot be sold for more than their market value, regardless of the development costs (acquisition, rehab, other eligible costs, developer fee). The City expects to reimburse eligible costs that cannot be recovered from the sale price. Amounts may be amended periodically to reflect changes in the market. 505. Selection of Buyers. The Developer shall provide the City with a copy of its Marketing Plan, attached hereto as Exhibit G, which shall set forth how the Developer plans to provide interested households with information about the NSP Assisted Units. The Developer shall be solely responsible for the selection of qualified purchasers of the NSP Assisted Units, 9 bu-i i subject to final approval by the City. Developer shall ensure that there will be adequate homebuyer education with HUD approved pre- purchase counseling. Pre-purchase counseling must be completed PRIOR to close of escrow. 506. Marketing Plan. The goal of the Marketing Plan is to insure that the marketing of affordable for-sale housing be as broad and inclusive as possible in order to inform and attract as many prospective buyers as possible. The Marketing Plan and the associated applicant selection procedures will be targeted to purchasers regardless of race, color, religion, sex, disability status, familial status or national origin. The Developer shall report to the City information regarding efforts taken to comply with this section through the Marketing Efforts Report (Exhibit H) 15 days after the end of each calendar quarter. Information shall also be provided on the Developer's website, City of Santa Ana website, City cable channel, Workforce Investment Board, Santa Ana Chamber of Commerce, Santa Ana Unified School District, Rancho Santiago Community College District, Community Development Resource Network Newsletter and through neighborhood associations. 507. Verification of Homebuyer Income. Prior to the sale of any NSP Assisted Unit to a Homebuyer, the Developer shall submit to the City a completed income computation and certification form from each Homebuyer of the NSP Assisted Unit in the form which is provided by the City. Each Homebuyer shall certify, to the best of the Homebuyer's knowledge, that it is a Low, Moderate, and/or Middle Income Household and meets the eligibility requirements established for the NSP Assisted Unit. The Developer shall obtain an income verification and lender's packet from the prospective purchaser of an NSP Assisted Unit (which shall be provided to the City). For purposes of this Program, income will be calculated per HUD guidelines for federal programs (Exhibit I: HUD Part 5 Income & Assets Definitions). For purposes of such certification, the Developer shall verify the income certification of the prospective Homebuyer in one or more of the following methods reasonably acceptable to the City: (a) obtain three (3) paycheck stubs from the prospective Homebuyer's three (3) most recent pay periods. (b) obtain a true copy of an income tax return from the prospective Homebuyer for the most recent three tax years in which a return was filed. (c) obtain an income verification certification from the employer of the prospective Homebuyer. (d) obtain an income verification certification from the Social Security Administration and/or the California Department of Social Services if the prospective Homebuyer receives assistance from such agencies. (e) obtain an alternate form of income verification reasonably acceptable to the City, if none of the above forms of verification is available to the Developer. 508. Affordability Documents at Time of Sale. At the closing of escrow for the Homebuyer's purchase of each NSP Assisted Unit, the City will require each income qualified 10 ? X5J 16-1 1 ? Homebuyer of such Unit to execute the following documents: the Homebuyer Deed of Trust (attached hereto as Exhibit C), Homebuyer Promissory Note (attached hereto as Exhibit J), and such further documents reasonably required by the City in a form provided by the City. Any Units assisted with tax increment money will also have a Notice of Affordability recorded against such Property (attached hereto as Exhibit K). The Promissory Note, and Deed of Trust shall contain a forty-five (45) year term. The principal loan amount of the Promissory Note shall be the amount of NSP Funds to create this homeownership opportunity, which will be determined based on the affordable sales price, the fair market value or the maximum sales price permitted under the NSP Program at the time of sale. In those instances where properties have an appraised Fair Market Value that is greater than the sales price, a silent second will be placed on the Property for that difference. All principal and interest shall be deferred until subsequent sale or transfer of the Property. The Deed of Trust will carry a 3% forgivable interest rate, and will be due and payable in forty-five (45) years. Interest will be forgiven at a rate of 1/45 th per year, at each anniversary date of the original sale, with all interest forgiven at the end of the forty-five (45) year affordability period. The covenants and restrictions must be fully explained to each Homebuyer and the entire explanation and execution of said document must be recorded by the Developer. A copy of said audio and visual recording shall be placed on a CD/DVD which shall be kept by the City. 509. Net Sales Proceeds and Distributions. Net sales proceeds shall be applied as follows: 1. First, to payments required on any acquisition and rehabilitation loan that has been secured with a first trust deed on the property sold; 2. Second, to the repayment of any equity contribution paid by Developer for the subject property; 3. Third, to pay for any Cost Overruns that have been approved in writing by the City in accordance with Section 404, which were unable to be paid with funds from the acquisition and rehabilitation loan; 4. Fourth, to the Developer Fee, as described in Section 601 to the repayment of the City loan, less the amount approved as a project subsidy at the time of the City's approval of the property for acquisition; 5. Fifth, to the repayment of the City Loan, less the amount approved as a project subsidy at the time of the City's approval of the property for acquisition; 6. Thereafter, if any, to the City. 510. Homebuyer Assistance. The Developer agrees to cooperate with the City in any subsidized loan program the City and/or Agency may in its sole discretion make available to Low, Moderate, and/or Middle Income Household purchasers of some or all of the NSP Assisted Units. 11 ? ff - I b 511. Affordable Housing Property Tax. Developer shall be responsible for applying to the County of Orange to request that the property tax be based on the restricted value with the affordability covenants that are recorded against each Affordable Unit. 512. Maintenance. The Deed of Trust shall require each of the households to maintain their property in conformance with local and state requirements. 513. Reasonable Efforts to Sell Affordable Units. The Developer agrees to exercise reasonable efforts consistent with prudent business practices to sell all of the NSP Assisted Units to owner-occupants as soon as practical following the completion of the rehabilitation. The Developer agrees that the NSP Assisted Units shall not be sold to the Developer or any party/employee related to the Developer. 514. Guarantee/Homeowner Protection Plan. Developer agrees to guarantee its work from defects for a period of at least one (1) year after rehabilitation is complete, with a five (5) year guarantee for the roof of each Unit. Developer shall provide each Homebuyer with all of the manufacturer's warranties and product information. Developer shall also provide the Homebuyers of each of the Affordable Units with a Homeowner Protection Plan. 515. Subsequent Sales/Recapture of Loan Amount. The Grant Deed from Developer to any proposed qualified household shall restrict the use of the Property to being owner- occupied. The Homebuyer Deed of Trust shall be recorded against the property with a term of 45 years. If said NSP Assisted Unit is sold prior to the expiration of the 45 year covenant of affordability the City must be repaid the full amount of its Promissory Note. Upon transfer and repayment to the City, the covenant of affordability shall no longer be applicable. 516. Maintenance Covenants. During the time of Developer's ownership of the Sites, the Developer shall maintain the Sites and all improvements thereon, including all landscaping, in compliance with the terms of all applicable provisions of the City of Santa Ana Municipal Code. Each Homebuyer shall be responsible for maintenance of his/her own property after transfer of title. 517. Nondiscrimination Covenants. Developer herein covenants by and for itself, its successors and assigns, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land. 600. DEVELOPER FEE AND PERFORMANCE. 601. Developer Fee. The Developer shall be paid ten percent (10%) of the cost of the acquisition sales price of each property, plus all rehabilitation costs, actual acquisition and sale closing costs, insurance related to acquisition and rehabilitation, property taxes and maintenance 12 i1b, LWJ-144 costs (utility and landscaping)subject to proper documentation evidencing such costs ("Developer Fee"). The Developer Fee shall be paid by the City to the Developer at the close of escrow to the qualified homebuyer. 602. Performance Measures. Due to the legislative deadlines, performance measurements will be monitored closely. The Developer's contract may be cancelled and the funds reallocated to other developers for failure to meet HUD deadlines. 603. Business License/Professional Licenses. Developer must obtain and maintain a valid business license in order to perform services in the City of Santa Ana. Also, Developer shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Developer shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 700. GOVERNMENTAL REQUIREMENTS 701. Economic Opportunities for Low Income People. (24 CFR 570.487, Section 3 of the Housing and Urban Development Act of 1968, 12 USC 1701 u, as amended by Section 915 of the Housing and Community Development Act of 1992). Developer certifies that it implements a policy in accordance with Section 3 of the Housing and Urban Development Act of 1968 that requires employment and other economic opportunities arising in connection with housing rehabilitation, housing construction and other public construction projects shall, to the extent feasible and consistent with existing federal, state and local laws and regulations, be given to low and very low-income persons. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. To the extent applicable, the Developer shall comply and/or cause compliance with Section 3 Clause requirements for the NSP. For example, when and if Developer or its contractor(s)/subcontractor(s) hire(s) full time employees, Section 3 is applicable and all disclosure and reporting requirements apply. To the maximum extent feasible, the Developer shall provide for the hiring of employees who reside in the vicinity of the Target area or contract with small businesses that are owned and/or operated by persons residing in the vicinity of the Target area. The Developer shall report to the City information regarding efforts taken to comply with this section through the Vicinity Hiring Report (Exhibit L) 15 days after the end of each calendar quarter. 702. Use of Debarred. Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 703. Conformance with Applicable Labor Law. If Section 401 applies, all laborers and mechanics employed by the Developer and any subcontractor in the performance of the 13 construction work under this Agreement (if any) shall be paid wages at rates not less than the prevailing wage as determined by the U.S. Department of Labor, under the Davis-Bacon Act. The Developer further agrees to comply with the provisions of the Copeland Act and the Contractor Work Hours and Safety Act. This paragraph does not apply to contracts which do not exceed $2,000. 704. Maintenance of Drug-Free Workplace. Developer shall certify that Developer will provide a drug-free workplace in accordance with 24 CFR 84.13. 705. Books and Records. Developer shall maintain complete books of account and other records, reports and information, as the Executive Director may reasonably require, reflecting its operations (in connection with any other businesses as well as with respect to the NSP Assisted Units), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, to meet the record keeping and reporting requirements required of it in accordance with 24 CFR 92.508. 706. Equal Opportunity and Fair Housing. Developer shall carry out the Rehabilitation and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing described in 24 CFR 92.350. Developer must also follow the requirements of Health and Safety Code section 33435. 707. Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth at 24 CFR 570.611, as well as state regulations pertaining to conflict of interest. 708. Program Income. When the City receives repayment from sales of the Properties, such funds are "Program Income". Program Income received by the City will be used for NSP activities. Program Income and reallocated funds identified for the single family component will be added to the Agreement with Developer. Developer agrees to comply fully with all federal, state, and local laws applicable to its operation whether or not referred to in this Agreement. 800. DEFAULTS, REMEDIES, TERMINATION 801. Default Remedies. Failure by either party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and failure to cure as described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default shall give written notice of Default to the other party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such party within thirty (30) days from receipt of such notice immediately, with due diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy with diligence. 802. Institution of Legal Actions. In addition to any other rights or remedies and subject to the restriction otherwise set forth in this Agreement, either party may institute and 14 ?10116 _16 action at law or equity to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Courts of the County of Orange, State of California, or in the District of the United States District Court in which such county is located. 803. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such right or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 804. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 805. Termination. This Agreement shall terminate on the earlier of: (a) expenditure of all NSP funds; (b) failure to cure a material breach after notice and time to cure; (c) February 1, 2014; (d) the date ninety (90) days following receipt by Developer of written notice of termination from the City; (e) upon mutual agreement of the parties, or (f) failure to meet Performance Measures as set forth in Section 602. 900. GENERAL PROVISIONS 901. Relationship between the Parties. Both parties expressly acknowledge it is the intention of the parties that this Agreement shall be a contract for services and shall not in any way create any employer/employee relationship between the parties or any co-venture or joint venture. Developer is an independent contractor who shall in no way be considered an employee of the City. It is expressly acknowledged and agreed that Developer shall be responsible for maintaining its own insurance as described in paragraph 906. 902. Notices. Any approval, disapproval, demand, document or other notice ("Notice") which either party may desire to give to the other party under this Agreement must be in writing and may be given by any commercially acceptable means to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice. To City: City of Santa Ana - Housing Division 20 Civic Center Plaza, M-37 Santa Ana, California 92701 Attention: Executive Director To Developer: ANR Homes, Inc. 10702 Hathaway Drive, Unit 1 15 ?w2i? Santa Fe Springs, CA 90670 Attention: George Jordan, Vice President Any written notice, demand or communication shall be deemed received immediate if delivered by hand and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 903. Modification of Terms. The Executive Director shall have the authority to make minor modifications to the terms contained herein with the prior approval of the City Attorney's Office. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party. 904. Limitation on Delegation. Inasmuch as this Agreement is intended to secure the specialized services of Developer, Developer may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other developers or consultants retained by the City. 905. Exclusivity and Amendment. This Agreement represents the complete and exclusive statement between the City and Developer, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Developer. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Developer nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 906. Insurance. The Developer shall take out and maintain or shall cause its contractor to take out and maintain until the completion of rehabilitation pursuant to the terms of this Agreement, a commercial general liability policy in the amount of Two Million Dollars ($2,000,000) combined single limit policy, and a comprehensive automobile liability policy in the amount of One Million Dollars ($1,000,000), combined single limit, or such other policy limits as the City may approve at its discretion, including contractual liability, as shall protect the Developer, City from claims for such damages. Such policy or policies must be written on an occurrence form. The Developer shall also furnish or cause to be furnished to the City evidence satisfactory to the City that Developer and any contractor with whom it has contracted for the performance of work on the Sites or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. Developer also agrees to provide insurance covering one hundred percent (100%) of the replacement cost of all insurable items within the Property in the event of fire, lightning, debris removal, windstorm, vandalism, malicious mischief, theft, mysterious disappearance and hazards, casualties and contingencies as are normally 16 and usually covered by all-risk policies in effect in the locality where the Property is situated. The Developer shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form approved by the City setting forth the general provisions of the insurance coverage. This countersigned certificate shall name the City and its respective officers, agents, and employees as an additionally insured party under the policy, and the certificates shall be accompanied by a duly executed enforcement evidencing such additional insured status (the City's preferred Additional Insured Endorsement is attached hereto as Exhibit M). The certificate and endorsement by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination. Coverage provided hereunder by the Developer shall be primary insurance and not be contributing with any insurance maintained by the City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of the City. The required certificate shall be furnished by the Developer at the time this Agreement is executed. Certificates verifying such coverage has been extended to the City of Santa Ana must be furnished to the City of Santa Ana City Attorney's Office (M-29), 20 Civic Center Plaza, Santa Ana, CA 92701 prior to the commencement of work hereunder. 907. Builders Risk Insurance. The Developer shall be responsible to cover the properties during the course of rehabilitation. It is recommended that such insurance provide coverage on an all risk basis, including theft and vandalism, for accidental losses, damage or destruction of the Property until each home is sold. 908. Right of Access. For purposes of assuring compliance with this Agreement, representatives of the City shall have the right of access to the properties, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including but not limited to, the inspection of the work being performed in rehabilitating the improvements so long as City representatives comply with all safety rules. The City (or its representatives) shall, except in emergency situations, notify the Developer prior to exercising its right pursuant to this section. 909. Developer Indemnity. Developer shall indemnify, defend and hold harmless City, its officers, agents, employees and volunteers from and against any and all loss or damage, expenses, injuries, death to any person, damage to real or personal property, claim, demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceeding of any kind arising out of this Agreement, implementation of this Agreement, the sale of the property by Developer, securing of financing, design development drawings, engineering, construction, reconstruction, structural integrity of the NSP Assisted Units, maintenance of the properties, operation, and subsequent sale of the NSP Assisted Units, including but not limited to: 17 (a) the presence, release, use, generation, discharge, storage or disposal of any hazardous materials, on, under, in or about, or the transportation of any such hazardous materials to or from, the NSP Assisted Units; (b) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the NSP Assisted Units; (c) latent material defects in rehabilitation work; (d) any construction defect; (e) personal injury, including death, of the employees, agents, officers, and/or volunteers of Developer, and/or any subcontractors, independent contractors, partners, and/or subsidiaries; (f) property damage claims of the employees, agents, officers, and/or volunteers of Developer, and/or any subcontractors, independent contractors, partners, and/or subsidiaries; (g) delay in rehabilitation; (h) personal injury, including death, of any third party; (i) property damage claims of any third party; and (j) the failure to make required real estate disclosures to subsequent buyers of the NSP Assisted Units. Developer's obligation to indemnify as set forth in this Agreement shall extend to loss or damage, expenses, injuries, death to any person, damage to real or personal property, claim, demand, suit, action, judgment, settlement, reasonable attorney's fees, costs, or proceedings of any kind that, are discovered or accrue, either before or after the termination of this Agreement. Notwithstanding the foregoing, Developer shall not be required to indemnify and hold harmless the City for liability attributable to the active negligence or intentional misconduct of the City or any of its boards, officers, employees, representatives or agents. 910. Attorney's Fees. In any action between the parties to interpret, enforce, reform, modify, rescind, or otherwise in connection with any of the terms or provisions of this Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs and reasonable attorneys' fees. 911. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 912. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by both parties. 18 Z'§b 913. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 914. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 915. JurisdictionNenue. This Agreement has been executed in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 916. Miscellaneous. a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 19 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first stated above. ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA PAUL WALTERS Interim City Manager APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: LISA E. STORCK Assistant City Attorney DEVELOPER: ANR HOMES, INC. By: GEORGE JORDAN Vice President 20 xj:ffiii? List of Exhibits A. NSP 3 Target Area Map B. Deed of Trust C. Homebuyer Deed of Trust D. Housing Rehabilitation Standards E. Promissory Note F. Payment Request, Release of Retention Funds, Notice of Completion G. Marketing Plan H. Marketing Efforts Report 1. HUD Part 5 Income & Assets Definitions J. Homebuyer Promissory Note K. Notice of Affordability L. Vicinity Hiring Report M. Additional Insured Endorsement ?W?ii EXHIBIT A NSP 3 Target Geography ER AV I T _T 1 i9 w n I ,•• ." .f - STANFORD ST x -- I I E. in m E ° ar g r ? rmr Q 7 , o °` ? O I P0.0 AST POMONq ST r - T - _._-- POMONq ST ? - 3 POMONA ST m 5 Y ° non 5 ? $ _ rw rm - I ?mr 1 ? - BERKELEY ST ( a - A @ - _ - t > _ x x_ s c d B ,,, 8 z OCCIDENTAL ST - __ OCCIDENTAL ST / - - , _ T ANDREW PL x ° Sr, NOR fwP[ - r e v s , , - ' ? i w .. S ST ANDREW K g" x >a. a a rte: m ? a >?__? I - I mr a ST GERTRUDE P[ - - ST GERTRUOE PL ' _ --- -- J - r°^ »?, - a e, i I Memorial Park of a. °I,r» e > m O - m y , _ ANAHURST PL r . w EDINGER AV r & 1-1 NSP3 Target Area Avg. Max Score = 18.96 0 200 400 600 Feet EXHIBIT B FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-37) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 667-2225 Attention: Housing Programs Coordinator DEED OF TRUST (INCLUDING AFFORDABLE HOUSING DEED RESTRICTIONS) THIS DEED OF TRUST is made as of the day of , 2009, by and between ANR Homes, Inc., a California Corporation or ANR Santa Ana, NSP, LLC ("Trustor"), whose address is , CA ; AmeriNational Community Services, Inc. (the "Trustee"), whose address is 8121 E. Florence Avenue, Downey, CA 90240, and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary") whose address is 20 Civic Center Plaza (M-37), P.O. Box 1988, Santa Ana, California 92702. FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the property located in the City of Santa Ana, County of Orange, State of California, that is described in the property description attached hereto as Exhibit A and by this reference incorporated herein (the "Property"). TOGETHER WITH all issues, profits, royalties, income and other benefits legally or illegally derived from the Property (collectively, the "issues"), provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain Neighborhood Stabilization Program Grant Services Agreement entered into between the Trustor and the Beneficiary, dated , 2009 (the "Agreement"), which Agreement is on file with the Beneficiary as a public record; TOGETHER WITH all interests, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property and the issues; TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, including, without limiting the generality of the foregoing, all tenements, hereditaments and appurtenances thereof and thereto; J"BI 6 bu-? EXHIBIT B TOGETHER WITH any and all buildings and improvements now or hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property, including without limitation, all fixtures, attachments, appliances, furnishings, equipment and machinery (whether fixed or movable) and other articles (including, in each instance, improvements, restorations, replacements, repairs, additions, accessions or substitutions thereto or therefor); TOGETHER WITH all leasehold estate, right, title and interest of Trustor in and to all leases or subleases covering the Property or any portion thereof now or hereafter existing or entered into, and all right, title and interest of Trustor thereunder, including, without limitation, all cash or security deposits, advance rentals, and deposits or payments of similar nature; TOGETHER WITH all right, title and interest of Trustor in and to all options to purchase or lease the Property or any portion thereof or interest therein, and any greater estate in the Property owned or hereafter acquired; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Property; TOGETHER WITH all the estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages; "Security." All of the foregoing, together with the Property, is herein referred to as the FOR THE PURPOSE OF SECURING: (a) Payment of an amount equal to the Loan Amount disbursed to Trustor in connection with the acquisition, rehabilitation, maintenance, and sale of the Property, as such terms are defined in the Agreement and the related Promissory Note dated of even date herewith by the Trustor as maker in favor of the Beneficiary as holder; and (b) Payment of such additional sums and interest thereon which may hereafter be loaned to Trustor, or its successors or assigns, by Beneficiary, when evidenced by a Promissory Note or notes or other document reciting that they are secured by this Deed of Trust; and (c) Performance of every obligation, covenant or agreement of Trustor referenced in the Agreement and Promissory Note; and 4ULBI bu-ig EXHIBIT B The terms, covenants and restrictions of said Agreement and Promissory Note are incorporated herein by reference. Any capitalized term not otherwise defined in this Deed shall have the meaning ascribed to such term in the Agreement. ARTICLE I. ACQUISITION, REHABILITATION, MAINTENANCE AND MODIFICATION OF THE PROPERTY Section 1.01 Acquisition and Rehabilitation. A. Acquisition. Acquisition of the Property shall follow the procedures set forth in the Agreement. B. Commencement of Rehabilitation. The parties agree that if the rehabilitation of the improvements are not carried on with reasonable diligence after acquisition of the Property, Beneficiary, after due notice to Trustor or any subsequent owner, is hereby invested with full and complete authority to protect such improvements from depredation or injury and to preserve and protect the personal property therein, and to continue any an all outstanding contracts for the rehabilitation of said building(s), to make and enter into any contracts and obligations wherever necessary, either in its own name or in the name of Trustor, and to pay and discharge all debts, obligations and liabilities incurred thereby. All such sums so advanced by Beneficiary shall be added to the principal of the indebtedness secured hereby and shall be secured by this Deed of Trust and shall be due and payable on demand. C. Maintain Property. The Trustor agrees that at all times prior to the date upon which the Loan Amount has been fully repaid to the Beneficiary and all other obligations the performance of which is secured by this Deed of Trust have been satisfied (the "Expiration Date") and the property sold to a qualified Low or Moderate Income Household, the Trustor will, at the Trustor's own expense, maintain, preserve and keep the Property or cause the Property to be maintained, preserved and kept in a condition substantially similar to other residential property similar in size, character, and quality to the Property consisting only of those uses allowed by the Agreement. The Trustor will make or cause to be made all repairs, replacements and renewals deemed proper and necessary by Trustor. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Property. D. Protect Against Liens. Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all claims for labor done and for material and services furnished in connection with the Security, diligently to file or procure the filing of a valid notice of completion upon completion of construction or any part of the Security, diligently file or procure the filing of a notice of cessation upon the event of a cessation of labor on the work or construction on the Security for a continuous period of thirty (30) days or more, and to take all other reasonable steps to forestall the assertion of claims of lien against the Security or any part thereof. Section 1.02 Granting of Easements. Trustor may grant easements, licenses, rights-of- way or other similar rights or privileges in the nature of easements with respect to any property or rights included in the Security without the prior written approval of the J4111BIJ? ou- EXHIBIT B Beneficiary. In the event such rights are granted, the Trustor shall promptly so advise the Beneficiary in writing. Article II. DEED RESTRICTIONS/AFFORDABILITY REQUIREMENTS 1. Pu ose. In accepting the Deed Restrictions, the undersigned Trustor understands and acknowledges that the Property acquisition is being financed, in part, due to a loan provided by the City of Santa Ana ("City") in accordance with the Agreement so that the Property can be rehabilitated and sold in accordance with the Neighborhood Stabilization Program ("NSP") guidelines to a low or moderate income homebuyer. In return for and in consideration of the opportunity for the Trustor to acquire the Property under the above referenced circumstances and for other good and valuable consideration, the receipt and legal sufficiency of which the undersigned hereby acknowledges, the Trustor on behalf of himself/herself and with the express intent to bind all those defined as "Owner", hereby agrees to the following: 2. Method of Sale. A. Procedures to Notify Cites Trustor agrees to make available, restrict occupancy to, and sell each of the NSP Assisted Units to Low or Moderate Income Households (as that term is herein defined) at an Affordable Housing Cost. In addition, the Trustor agrees to cooperate with the City in any subsidized loan program the City may in its sole discretion make available to Low or Moderate Income Household purchasers of some or all of the NSP Assisted Units. Trustor shall comply with all sections of the Agreement pertaining to sale of the Units. B. Disposition of the Subject Property Contrary to Agreement. If the Owner disposes of the Property contrary to this Deed of Trust, the City shall at any time thereafter, at its election, have the right to declare such disposition or other act null and void and/or seek enforcement of the terms and conditions hereof in any manner allowed by law or equity. 3. Terms of Purchase. Upon any sale of the Property, the following provisions shall govern: A. Escrow. The Owner acknowledges and agrees that the percentage amount of any deposit required pending close to escrow shall not exceed that customarily required for the purchase of residential units in the City of Santa Ana at the time of the escrow. Closing costs shall be allocated between buyer and seller according to the customary practices in the City of Santa Ana in effect at the time of an offer to purchase. The Owner shall agree to reasonable terms of sale which are consistent with promoting the purpose of this Deed of Trust. B. Condition to Close of Escrow. The escrow instructions may provide for conditions or contingencies of the type or nature commonly included within residential purchase escrows (including, but not limited to, financing contingencies, inspection rights, and preliminary title report approvals) to the obligation of the purchaser to purchase the Property from the then Owner, provided that any such conditions or contingencies (other than the status of title to the Property at the time of conveyance and other conditions which by their nature cannot be satisfied prior to closing) must be satisfied or waived on or before sixty (60) days after the bu-fi EXHIBIT B opening of an escrow between the Owner and an income qualified purchaser. The purchaser's qualifications are subject to prior review and approval by the City. C. Affordable Sales Price. Owner shall have the right to sell the Property to a low or moderate income household, for an Affordable Sales Price, for use as owner-occupied housing upon terms and conditions that are mutually acceptable to the City and Owner and in accordance with the following restrictions: (a) The term "Affordable Sales Price" shall mean a purchase price which results in an Affordable Housing Cost to a Low or Moderate Income Purchaser. The Affordable Housing Cost for Low Income households will be the product of 30% times 65% of the Area Median Income adjusted for family size appropriate for the unit. For Moderate Income households, the Affordable Housing Cost will be the product of 35% times 100% of the Area Median Income, adjusted for family size appropriate for the unit. (b) Prior to any sale of the Property, Owner shall provide the City with all income certifications as provided in the Agreement. (c) At the closing of escrow for the Low or Moderate Income purchaser's purchase of each NSP Assisted Unit, the City will require each income qualified homebuyer of such Unit to execute the following documents: the Homebuyer Deed of Trust, Homebuyer Promissory Note, and Notice of Affordability (as applicable), as well as such further documents reasonably required by the City in a form provided by the City. The Promissory Note and Deed of Trust shall contain a forty-five (45) year term. All principal and interest shall be deferred until subsequent sale or transfer of the Property. The Deed of Trust will carry a 3% interest rate, and will be due and payable in forty-five (45) years. Interest will be forgiven at a rate of 1/45 1h per year, at each anniversary date of the original sale, with all interest forgiven at the end of the forty-five (45) year affordability period. After expiration of the affordability period, the principal amount of the Note will be paid at transfer or sale. The covenants and restrictions must be fully explained to each Homebuyer and the entire explanation and execution of said document must be recorded by the Developer. A copy of said audio/visual recording shall be placed on a CD which shall be kept by the Developer and the City. (d) The deed of trust from Owner to any such proposed purchaser shall restrict the use of the Property to owner occupancy. 4. Severability. The provisions of this Deed of Trust shall be deemed independent and severable, and a determination of invalidity or partial invalidity or unenforceability of any one provision or portion hereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provisions hereof. Article III. TAXES AND INSURANCE; ADVANCES 1. Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, prior to delinquency, all taxes, assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security or any part thereof; provided, however, that Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as (a) the legality thereof shall be promptly and actively 11b WU_I EXHIBIT B contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to the terms hereof, and in accordance with generally accepted accounting principles. With respect to special assessments or other similar governmental charges, Trustor shall pay such amount in whole or in installments over a period of years. In the event that Trustor shall fail to pay any of the items required by this Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to fully pay any such item within seven (7) business days of the earlier of the receipt or mailing of such notice. Any amount so advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the maximum rate permitted under Section 1(2) of Article XV of the California Constitution, shall become an additional obligation of Trustor to the Beneficiary and shall be secured hereby, and Trustor hereby agrees to pay all such amounts. 2. Provisions Respecting Insurance. Trustor agrees to provide insurance covering one hundred percent (100%) of the replacement cost of all insurable items within the Property in the event of fire, lightning, debris removal, windstorm, vandalism, malicious mischief, theft, mysterious disappearance and hazards, casualties and contingencies as are normally and usually covered by all-risk policies in effect in the locality where the Property are situated. All such insurance policies and coverages (i) shall be maintained at Trustor's sole cost and expense so long as any part of the amounts secured by this Deed of Trust have not been paid, and (ii) shall be with insurers of recognized responsibility and in form and substance satisfactory to the Beneficiary, (iii) shall name Beneficiary as additional insured, and (iv) shall contain a provision to the effect that the insurer shall not cancel the policy or modify it materially and adversely to the interests of Beneficiary without first giving at least thirty (30) days' prior written notice thereof. Certificates of insurance for all of the above insurance policies showing the same to be in full force and effect shall be delivered to the Beneficiary upon demand therefor at any time prior to the Expiration Date. Should the Property be determined to be in a Flood Zone, Trustor is required to purchase Flood Insurance for the Property. Article IV. DAMAGE, DESTRUCTION OR CONDEMNATION 1. Damage and Destruction If, prior to the Expiration Date, the Property or any portion thereof is destroyed (in whole or in part) or is damaged by fire or other casualty, the Trustor shall (a) cause any insurance proceeds arising from insurance referred to herein and any other coverage acquired by the Trustor to be used to promptly rebuild and replace the Property, and (b) repair and replace the Property as necessary to bring the Property into conformity with the standards of construction and operation characteristic of residences of size, character, and quality similar to the Property. There shall be no abatement in, and Trustor shall be obligated to continue to pay, the amounts payable under the Agreement and this Deed of Trust. 2. Condemnation. If title to or any interest in or the temporary use of the Property or any part thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, including any proceeding or purchase in lieu thereof, the proceeds as a result of such taking shall be paid as provided by the law of the State of California to all persons or entities as their interests appear of record. 6 EXW1 25u-i6 EXHIBIT B Article V. REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE TRUSTOR 1. Defense of Title. The Trustor covenants that it is lawfully seized and possessed of title in fee simple to the Property, that it has the right to sell, convey or otherwise transfer or encumber the same, and that the Trustor, for itself and its successors and assigns, warrants and will forever defend the right and title to the foregoing described and conveyed property unto the Beneficiary, its successors and assigns, against the claims of all persons whomsoever, excepting only encumbrances approved by the Beneficiary. 2. Inspection of the Property. The Trustor covenants and agrees that at any and all reasonable times and upon reasonable notice, the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, without payment of charges or fees, to inspect the Property. Article VI. AGREEMENT; FURTHER ASSURANCES; PAYMENT 1. Other Agreements Affecting Property. The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under the Agreement and this Deed of Trust or any other agreement of any nature whatsoever now or hereafter involving or affecting the Property or any part thereof. 2. Further Assurances. At any time, and from time to time, upon request by the Beneficiary, the Trustor shall make, execute and deliver, or cause to be made, executed and delivered, to the Beneficiary and, where appropriate, cause to be recorded and/or filed, and from time to time thereafter to be re-recorded and/or re-filed, at such time and in such offices and places as shall be deemed desirable by the Beneficiary, any and all such other and further deeds of trust, security agreements, financing statements respecting personal property, instruments of further assurance, certificates and other documents as may, in the opinion of the Beneficiary, be necessary or desirable in order to effectuate, complete or perfect, or to continue and preserve, (a) the obligations of the Trustor under this Deed of Trust. 3. Agreement to Pay Attorney's Fees and Expenses. In the event of an Event of Default hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of any obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the indebtedness secured by the lien of this Deed of Trust, and shall bear interest from the date such expenses are incurred at the maximum rate permitted by Section 1(2) of Article XV of the California Constitution. 4. Payment of the Loan Amount. Upon the sale of the Property, the loan will be transferred from the Trustor to the qualified Homebuyer. The amount to be repaid shall be the amount of NSP Funds to create the homeownership opportunity, which will be determined based on the affordable sales price, the fair market value or the maximum sales price permitted under the NSP Z?B'3i bu- EXHIBIT B Program. In those instances where properties have an appraised Fair Market Value that is greater than the sales price, a silent second will be placed on the Property for that difference. 5. Subrogation: Payment of Claims. Provided that the Beneficiary gives notice of at least five (5) business days to the Trustor, the Beneficiary shall be subrogated to the claims and liens of all parties whose claims or liens are discharged or paid by the Beneficiary pursuant to the provisions hereof. 6. Use of the Property. The Trustor agrees and covenants to require its successors and assigns to use the Property as their primary residence in full compliance with the Agreement and Deed of Trust. 7. Transfer. No sale, transfer, lease, pledge, encumbrance, creation of a security interest in or other hypothecation of the Security shall relieve or release the Trustor from primary liability under this Deed of Trust or the Agreement. 8. Sale. Upon sale of the Property to a Low or Moderate Income Household, approved by Beneficiary in accordance with the Agreement, upon repayment to Beneficiary of the Loan Amount received for the sale of said Property, Beneficiary shall execute a reconveyance of the lien of this Deed of Trust from the Property. Article VII. EVENTS OF DEFAULT AND REMEDIES 1. Events of Default Defined. The occurrence of any failure of the Trustor to perform under the Agreement or this Deed of Trust, and the continuation of said failure for a period of thirty (30) business days as to monetary obligations and, except as otherwise set forth below, sixty (60) business days as to non-monetary obligations, after written notice specifying such failure and requesting that it be remedied (such notice being referred to herein as a "notice of default") shall have been given to Trustor from the Beneficiary, shall be an Event of Default under this Deed of Trust. If the default is such that it is not reasonably capable of being cured within sixty (60) days, and Trustor (i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then Trustor shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by the Beneficiary. In no event shall the Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) days after the notice of default is first given. 2. Acceleration of Maturity. If an Event of Default shall have occurred and be continuing, then the entire indebtedness secured hereby shall, at the option of the Beneficiary, immediately become due and payable without notice or demand which are hereby expressly waived, and no omission on the part of the Beneficiary to exercise such option when entitled to do so shall be construed as a waiver of such right. 3. The Beneficiary's Right to Enter and Take Possession. If an Event of Default shall have occurred and be continuing, the Beneficiary may: JIIIJIBIJ3 ou- EXHIBIT B (a) Either in person or by agent, with or without bringing any action or proceeding, or by a received appointed by a court, and without regard to the adequacy of its security, enter upon the Property and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Property, or part thereof or interest therein, increase the income therefrom or protect the Security hereof and, with or without taking possession of the Property, sue for or otherwise collect any rents, issues and profits thereof, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including attorneys' fees, upon any indebtedness secured hereby, all in such order as Beneficiary may determine. The entering upon and taking possession of the Property, the collection of such rents, issues and profits and the application thereof, as aforesaid, shall not cure or waive any Event or Default or notice of Event of Default hereunder or invalidate any act done in response to such Event of Default or pursuant to such notice of Event of Default and, notwithstanding the continuance in possession of the Property or the collection, receipt and application of rents, issues or profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, the Agreement or by law upon occurrence of any Event of Default including the right to exercise the power of sale. Trustor requests that a copy of any notice of default and a copy of any Notice of Sale hereunder be mailed to Trustor at the address herein given in Section VIII subsection 3; (b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver or specifically enforce any of the covenants hereof; (c) Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor's interest in the property to be sold, which notice Trustee or Beneficiary shall cause to be duly filed for recording in the Official Records of the County in which the Property is located; or (d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to the Property, including any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. 4. Foreclosure by Power of Sale. Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust which is secured hereby (and the deposit of which shall be deemed to constitute evidence that the Loan Amount is immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. Z4111BIJJ ou- EXHIBIT B (a) Upon receipt of such notice from the Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such notice of default and election to sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such notice of default and after notice of sale having been given as required by law, sell the Property, at the time and place of sale fixed by it in said notice of sale, either as a whole or in separate lots or Property or items as Trustee shall deem expedient and in such order as it may determine, at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warrant, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchase or purchases. (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of (i) the Loan Amount; (ii) all other sums then secured hereby; and (iii) the remainder, if any, to the person or persons legally entitled thereto. (c) Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may in its discretion, give a new notice of sale. 5. Receiver. If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under Security, and without regard to the then value of the Property or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receive or receivers of the Security (or a part thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Property, unless such receivership is sooner terminated. 6. Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. 7. Nonrecourse Loan. The indebtedness evidenced hereby is a nonrecourse obligation of 10 0 Bi -14 EXHIBIT B Trustor. Neither Trustor nor any other party shall have any personal liability for repayment of such indebtedness. The sole recourse of the Beneficiary under the Promissory Note and this Deed of Trust for repayment of the indebtedness shall be the exercise of its rights against the Security. The foregoing shall not: (1) constitute a waiver of any obligation evidenced by the Promissory Note or this Deed of Trust; (2) limit the right of the Beneficiary to name Trustor as a party defendant in any action or suit for judicial foreclosure and sale under the Promissory Note and this Deed of Trust or any action or proceeding hereunder so long as no judgment in the nature of a deficiency judgment shall be asked for or taken against Trustor; (3) release or impair the Promissory Note or the lien of this Deed of Trust; (4) prevent or in any way hinder the Beneficiary from exercising, or constitute a defense, an affirmative defense, a counterclaim, or other basis for relief in respect of the exercise of, any other remedy against the Property or any other instrument securing this Promissory Note or as prescribed by law or in equity in case of default; (5) prevent or in any way hinder the Beneficiary from exercising, or constitute a defense, an affirmative defense, a counterclaim, or other basis for relief in respect of the exercise of, its remedies in respect of any deposits, insurance proceeds, condemnation awards or other monies or other collateral or letters of credit securing the Promissory Note; (6) relieve Trustor of any of its obligations under any indemnity delivered by Trustor to the Beneficiary; or (7) affect in any way the validity of any guarantee from any person of all or any of the obligations evidenced and secured by the Promissory Note and this Deed of Trust. The foregoing provisions of this paragraph are limited by the proviso that in the event of the occurrence of an Event of Default beyond applicable notice and cure periods, Trustor and its successors and assigns shall have personal liability hereunder for any deficiency judgment, but only if and to the extent Trustor, its principals, shareholders, partners or its successors and assigns received revenues, or other payments or proceeds in respect of the Property, which other revenues, or other payments or proceeds have not been used for the payment of ordinary and reasonable acquisition costs and expenses for the Property, operating expenses of the Property, ordinary and reasonable capital improvements to the Property, debt service on the Promissory Note, real estate taxes and insurance in respect of the Property, basic management fees, but not incentive fees, costs and expenses to sell the Property to a Low/Moderate Income Household pursuant to the terms of the Agreement and all other kinds of costs and expenses set forth in the approved Project Budget in connection with the acquisition, rehabilitation and sale of the Property, which are then due and payable. In addition, the Beneficiary may recover directly from Trustor or any other party: (a) any damages, costs and expenses incurred by the Beneficiary as a result of fraud or any criminal act or acts of Trustor or any partner, shareholder, officer, director or employee of Trustor or of any general or limited partner of Trustor; (b) any damages, costs and expenses incurred by the Beneficiary as a result of any misappropriation of funds provided for the construction of the Improvements on the Parcel, proceeds and revenues from the operation of the Improvements, or proceeds of insurance policies or condemnation proceeds; (c) all court costs and attorneys' fees reasonably incurred in enforcing or collecting upon any of the foregoing exceptions (provided that the Beneficiary shall pay Trustor's reasonable court costs and attorneys' fees if Trustor is the prevailing party in any such enforcement or collection action). ib1WU-%6 EXHIBIT B 8. No Waiver. (a) No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a waiver of any such Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. No consent or waiver, expressed or implied, by the Beneficiary to or of any breach by the Trustor in the performance of the obligations hereunder shall be deemed or construed to be a consent to or waiver of obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any rights, powers or remedies consequent on any breach or Event of Default by the Trustor. (b) If the Beneficiary (i) grants forbearance or an extension of time for the payment of any sums secured hereby, (ii) takes other or additional security or the payment of any sums secured hereby, (iii) waives or does not exercise any right granted herein, or in the Agreement, (iv) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements of this Deed of Trust or the Agreement, (v) consents to the filing of any map, plat or replat affecting the Security, (vi) consents to the granting of any easement or other right affecting the Security, or (vii) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer, endorser, surety or guarantor (unless expressly released); nor shall any such act or omission preclude the Beneficiary from exercising any right, power, or privilege herein granted or intended to be granted upon the occurrence of the Event of Default then made or of any subsequent Event of Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or any part of the Property, the Beneficiary, without notice, is hereby authorized and empowered to deal with any such vendee or transferee with reference to the Security (or a part thereof) or the indebtedness secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the Trustor and without in any way releasing or discharging any liabilities, obligations or undertakings of the Trustor. 9. Suits to Protect the Security. The Beneficiary shall have power (upon ninety (90) days notice to the Trustor) to (a) institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Security (and the rights of the Beneficiary as secured by this Deed of Trust) by any acts which may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its interest (as described, in this Deed of Trust) in the Security and in the rents, issues, profits and revenues arising therefrom, and (c) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rules or order would impair the security thereunder or be prejudicial to the interests of the Beneficiary. 12 Vsu-i6 EXHIBIT B 10. Trustee May File Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claims and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings for the entire amount due and payable by the Trustor under this Deed of Trust at the date of the institution of such proceedings and for any additional amount which may become due and payable by the Trustor hereunder after such date. Article VIII. MISCELLANEOUS 1. Amendments. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. 2. Reconveyance by Trustee. Upon written request of Beneficiary stating that all sums secured hereby have been paid or forgiven, and upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey to Trustor, or to the person or persons legally entitle thereto, without warranty, any portion of the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any reconveyance may be described as "the person or persons legally entitled thereto." The Beneficiary may provide the Trustee with instructions allowing partial reconveyance of the Deed of Trust if requested by Trustor. 3. Notices. Whenever Beneficiary, Trustor or Trustee shall desire to give or serve any notice, demand, request or other communication with respect to this Deed of Trust, each such notice, demand, request or other communication shall be in writing and shall be effective only if the same is delivered by personal service or mailed by registered or certified mail, postage prepaid, return receipts requested, or by facsimile transmission, addressed as set forth below. Any party may at any time change its address for such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such change. To City: City of Santa Ana - Housing Division 20 Civic Center Plaza, M-37 Santa Ana, California 92701 Attention: Executive Director To Developer: ANR Homes, Inc. 10702 Hathaway Drive, Unit 1 Santa Fe Springs, CA 90670 Attention: George Jordan, Vice President 4. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. 13 x"Blj3 ou- EXHIBIT B 5. Captions. The captions or headings at the beginning of each section hereof are for the convenience of the parties and are not a part of this Deed of Trust. 6. Invalidity of Certain Provisions. Every provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid on and applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust. 7. No Merger. If title to the Property shall become vested in the Beneficiary, this Deed of Trust and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger and, in such event, Beneficiary shall continue to have and enjoy all of the rights and privileges of Beneficiary under this Deed of Trust. In addition, upon foreclosure under this Deed of Trust pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any portion of the Security shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at any such foreclosure shall so elect. No act by or on behalf of Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless Beneficiary or such purchaser shall give written notice of termination to such tenant or subtenant. 8. Acceptance of Terms by Owner. By acceptance of this Deed of Trust, the Owner accepts and agrees to be bound by all of the covenants and restrictions included herein. 9. Governing Law. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date and year first above written. TRUSTOR: ANR HOMES, INC. By: GEORGE JORDAN Vice President 14 Z136 EXHIBIT B Ho WU -56 EXHIBIT C FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana 20 Civic Center Plaza (M-37) P.O. Box 1988 Santa Ana, CA 92702-1988 Attention: Housing Programs Coordinator CITY DEED OF TRUST INCLUDING AFFORDABLE HOUSING DEED RESTRICTIONS (Neighborhood Stabilization Program Homeownership Program) THIS DEED OF TRUST INCLUDING AFFORDABLE HOUSING DEED RESTRICTIONS is made as of the day of , 20 , by and between ("Trustor"), whose address is Street, Santa Ana, CA 92701; AmeriNational Community Services, Inc. (the"Trustee"), whose address is 8121 E. Florence Avenue, Downey, CA 90240, and the City of Santa Ana, a charter city and municipal corporation (the "Beneficiary") whose address is 20 Civic Center Plaza (M-37), P.O. Box 1988, Santa Ana, California 92702. FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the property located at in the City of Santa Ana, County of Orange, State of California, that is described in the property description attached hereto as Exhibit A and by this reference incorporated herein (the "Property"). TOGETHER WITH all issues, profits, royalties, income and other benefits legally or illegally derived from the Property (collectively, the "issues"), provided that so long as Trustor is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements contained herein between the Trustor and the Beneficiary ("Deed") and the Promissory Note ("Note") in the amount of $ which documents are on file with the Beneficiary as a public record; TOGETHER WITH all interests, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property and the issues; City.HO.DOT Page 1 of 13 2/8/10 ?IOU -I4 6 EXHIBIT C TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, including, without limiting the generality of the foregoing, all tenements, hereditaments and appurtenances thereof and thereto; TOGETHER WITH any and all buildings and improvements now or hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property, including without limitation, all fixtures, attachments, appliances, furnishings, equipment and machinery (whether fixed or movable) and other articles (including, in each instance, improvements, restorations, replacements, repairs, additions, accessions or substitutions thereto or therefor); TOGETHER WITH all leasehold estate, right, title and interest of Trustor in and to all leases or subleases covering the Property or any portion thereof now or hereafter existing or entered into, and all right, title and interest of Trustor thereunder, including, without limitation, all cash or security deposits, advance rentals, and deposits or payments of similar nature; TOGETHER WITH all right, title and interest of Trustor in and to all options to purchase or lease the Property or any portion thereof or interest therein, and any greater estate in the Property owned or hereafter acquired; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Property; TOGETHER WITH all the estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages; All of the foregoing, together with the Property, is herein referred to as the "Security." FOR THE PURPOSE OF SECURING: (a) Performance of every obligation, covenant or agreement of Trustor referenced in this Deed of Trust, and the Promissory Note ("Note"); and (b) Maintenance of the term of affordability for low or moderate income households for at least forty-five (45) years or until the Promissory Note is paid in full, and (c) The repayment of the sums evidenced by the Promissory Note to the Beneficiary executed by Trustor of even date herewith City.HO.DOT Page 2 of 13 2/8/10 JW24T EXHIBIT C (d) Use of the Property as an Owner-Occupied, single family residence. The terms, covenants and restrictions of this Deed and the Promissory Note are incorporated herein by reference. ARTICLE I. DEED RESTRICTIONS/AFFORDABILITY REQUIREMENTS 1. Purpose. In accepting these Deed Restrictions, the undersigned Trustor understands and acknowledges that the Property (also referred to herein as the "Affordable Unit") is being sold to the Trustor at an affordable sales price, so as to make the Property affordable to the Trustor. The Owners hereunder are purchasing this Property with a silent second loan from the Agency through the City of Santa Ana's Neighborhood Stabilization Homeownership Program. Pursuant to this Program, the City and Owner have agreed to impose certain continuing obligations relating to and on the Property. In return for and in consideration of the opportunity for the Trustor to purchase the Property under the above referenced circumstances and for other good and valuable consideration, the receipt and legal sufficiency of which the undersigned hereby acknowledges, the Trustor on behalf of himself/herself and with the express intent to bind all those defined as "Owner", hereby agrees to the following: 2. Method of Sale. A. Procedures to Notify City 1. Notice of Proposed Sale. If at any time during the duration of the Forty Five (45) year affordability period, the Trustor, as Owner, desires or elects to sell, transfer, convey, assign or otherwise dispose the Property ("dispose"), the Owner may sell it and pay off the City Promissory Note. Owner is required to notify the City in writing to that effect and shall provide such information as the City may reasonably require regarding the proposed sale. Said writing (hereinafter referred to as the "Notice of Intended Sale") shall state the street address of the Property and the Owner's full name(s). Once the City Promissory Note is paid off completely by Owner, the long term affordability obligations (45 year restriction) hereunder shall be released. The Notice, together with the City required information shall be personally delivered or deposited into the U.S. mail, postage prepaid, first class, certified mail, return receipt requested, addressed to: COMMUNITY DEVELOPMENT AGENCY OF THE CITY OF SANTA ANA 20 Civic Center Drive (M-37) Santa Ana, California 92702 Attn: Housing Division B. Notice of Default Under Deed of Trust or Mortgage and City's Right to Enforce. The Owner covenants to cause to be filed in the Office of the Recorder of the County City.HO.DOT Page 3 of 13 2/8/10 1B141 EXHIBIT C of Orange a request for a copy of any notice of sale or notice of default under any deed of trust or mortgage with power of sale encumbering the Property or any party thereof. Such request shall specify that any such notice shall be mailed to: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA 20 Civic Center Drive (M-37) Santa Ana, California 92702 Attn: Housing Division C. Disposition of the Property Contra! ty o Agreement. If the Owner disposes of the Property contrary to this Deed of Trust, the City shall at any time thereafter, at its election, have the right to declare such disposition or other act null and void and/or seek enforcement of the terms and conditions hereof in any manner allowed by law or equity. 3. Severability. The provisions of this Deed of Trust, including without limitation, shall be deemed independent and severable, and a determination of invalidity or partial invalidity or unenforceability of any one provision or portion hereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provisions hereof. ARTICLE II. GENERAL CONDITIONS/MAINTENANCE 1. Maintenance. The Trustor agrees that at all times prior to the date upon which the Loan Amount has been fully repaid to the Beneficiary and all other obligations the performance of which is secured by this Deed of Trust have been satisfied (the "Expiration Date") the Trustor will, at the Trustor's own expense, maintain, preserve and keep the Property or cause the Property to be maintained, preserved and kept in a condition substantially similar to other residential property similar in size, character, and quality to the Property consisting only of those uses allowed by the Agreement. The Trustor will make or cause to be made all repairs, replacements and renewals deemed proper and necessary by Trustor. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Property. Owner, or its successor or assigns, shall maintain the Property in compliance with all applicable housing quality standards, and all applicable local code requirements, and shall keep the Property free from any unreasonable accumulation of debris or waste materials. All graffiti and defacement of any type, must be removed and any necessary repairs made within five (5) days of their creation and/or notice to the Owner. 2. Monitoring by the City. On or about July 1 of each calendar year, the City will mail a form to the record owner of the Property to confirm that the Property is owner-occupied. The owners of the Property shall complete the form and return it to the City within thirty (30) calendar days after receipt of the request from the City. 3. Owner Occupancy. The Trustor agrees and covenants to use the Property as its primary residence in full compliance with this Agreement for Forty-Five (45) years. City and Owner acknowledge that this owner-occupancy covenant is a condition to and consideration for Owners eligibility for the Neighborhood Stabilization Program Homeownership Program. City.HO.DOT Page 4 of 13 2/8/10 251B14i EXHIBIT C In administering this Program, the City is implementing the objective of increasing the ratio of decent, safe and sanitary owner-occupied single-family residences to rental property throughout the City of Santa Ana. In furtherance of this public use and purpose, Owners for itself and its successors and assigns, agree not to rent, lease, license or otherwise permit a non-owner of the Property to take possession and control thereof. Owner and its successors in interest agree and consent that this owner-occupancy restriction may be enforced by the City through specific performance. ARTICLE III. TAXES AND INSURANCE; ADVANCES 1. Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, prior to delinquency, all taxes, assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security or any part thereof; provided, however, that Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as (a) the legality thereof shall be promptly and actively contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to the terms hereof, and in accordance with generally accepted accounting principles. With respect to special assessments or other similar governmental charges, Trustor shall pay such amount in whole or in installments over a period of years. 2. Insurance. Trustor agrees to provide insurance covering one hundred percent (100%) of the replacement cost of all insurable items within the Property in the event of fire, lightning, debris removal, windstorm, flood, vandalism, malicious mischief, theft, mysterious disappearance and hazards, casualties and contingencies as are normally and usually covered by all-risk policies in effect in the locality where the Property are situated. All such insurance policies and coverages (i) shall be maintained at Trustor's sole cost and expense so long as any part of the amounts secured by this Deed of Trust have not been paid, and (ii) shall be with insurers of recognized responsibility and in form and substance satisfactory to the Beneficiary, (iii) shall name Beneficiary as additional insured, and (iv) shall contain a provision to the effect that the insurer shall not cancel the policy or modify it materially and adversely to the interests of Beneficiary without first giving at least thirty (30) days' prior written notice thereof. Certificates of insurance for all of the above insurance policies showing the same to be in full force and effect shall be delivered to the Beneficiary upon demand therefor at any time prior to the Expiration Date. Should the Property be determined to be in a Flood Zone, Trustor is required to purchase Flood Insurance for the Property. ARTICLE IV. DAMAGE, DESTRUCTION OR CONDEMNATION 1. Damage and Destruction If, prior to the Expiration Date, the Property or any portion thereof is destroyed (in whole or in part) or is damaged by fire or other casualty, the Trustor shall (a) cause any insurance proceeds arising from insurance referred to herein and any other coverage acquired by the Trustor to be used to promptly rebuild and replace the Property, and (b) repair and replace the Property as necessary to bring the Property into conformity with the standards of construction and operation characteristic of residences of size, character, and quality similar to the Property. There shall be no abatement in, and Trustor shall be obligated to continue to pay, the amounts payable under this Deed of Trust. City.HO.DOT Page 5 of 13 2/8/10 EXHIBIT 1 25D-44 EXHIBIT C 2. Condemnation. If title to or any interest in or the temporary use of the Property or any part thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, including any proceeding or purchase in lieu thereof, the proceeds as a result of such taking shall be paid as provided by the law of the State of California to all persons or entities as their interests appear of record. ARTICLE V. REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE TRUSTOR 1. Defense of Title. The Trustor covenants that it is lawfully seized and possessed of title in fee simple to the Property, that it has the right to sell, convey or otherwise transfer or encumber the same, and that the Trustor, for itself and its successors and assigns, warrants and will forever defend the right and title to the foregoing described and conveyed property unto the Beneficiary, its successors and assigns, against the claims of all persons whomsoever, excepting only encumbrances approved by the Beneficiary. 2. Inspection of the Property. The Trustor covenants and agrees that at any and all reasonable times and upon reasonable notice, the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, without payment of charges or fees, to inspect the Property. Article VI. AGREEMENT; FURTHER ASSURANCES; PAYMENT 1. Other Agreements Affecting Property. The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under this Deed of Trust or any other agreement of any nature whatsoever now or hereafter involving or affecting the Property or any part thereof. 2. Further Assurances. At any time, and from time to time, upon request by the Beneficiary, the Trustor shall make, execute and deliver, or cause to be made, executed and delivered, to the Beneficiary and, where appropriate, cause to be recorded and/or filed, and from time to time thereafter to be re-recorded and/or re-filed, at such time and in such offices and places as shall be deemed desirable by the Beneficiary, any and all such other and further deeds of trust, security agreements, financing statements respecting personal property, instruments of further assurance, certificates and other documents as may, in the opinion of the Beneficiary, be necessary or desirable in order to effectuate, complete or perfect, or to continue and preserve, (a) the obligations of the Trustor under this Deed of Trust. 3. Agreement to Pay Attorney's Fees and Expenses. In the event of an Event of Default hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of any obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the indebtedness secured by the lien of this Deed of Trust, and shall bear interest form the date such expenses are incurred at the maximum rate permitted by Section 1(2) of Article XV of the California Constitution. City.HO.DOT Page 6 of 13 2/8/10 ?XJW -146 EXHIBIT C 4. Payment of the Promissory Note Amount. The Trustor shall pay to the Beneficiary an amount equal to the Amount of the Promissory Note, in the amount(s) and by the time(s) set out in the therein. The failure to pay said Amount constitutes an Event of Default under the Promissory Note authorizing and permitting the Beneficiary to exercise the remedies set forth herein. 5. Subrogation: Payment of Claims. Provided that the Beneficiary gives notice of at least five (5) business days to the Trustor, the Beneficiary shall be subrogated to the claims and liens of all parties whose claims or liens are discharged or paid by the Beneficiary pursuant to the provisions hereof. 6. Use of the Property. The Trustor agrees and covenants to use the Property as its primary residence in full compliance with the Agreement until the Termination Date. 7. Transfer. No sale, transfer, lease, pledge, encumbrance, creation of a security interest in or other hypothecation of the Security shall relieve or release the Trustor from primary liability under this Deed of Trust or the Agreement. Article VII. EVENTS OF DEFAULT AND REMEDIES I . Events of Default Defined. The occurrence of any failure of the Trustor to perform under this Deed of Trust or the Promissory Note, and the continuation of said failure for a period of thirty (30) business days as to monetary obligations and sixty (60) business days as to non-- monetary obligations, after written notice specifying such failure and requesting that it be remedied (such notice being referred to herein as a "notice of default") shall have been given to Trustor from the Beneficiary, shall be an Event of Default under this Deed of Trust. If the default is such that it is not reasonably capable of being cured within sixty (60) days, and Trustor (i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then Trustor shall have additional time as is reasonably necessary to cure the default prior to exercise of any remedies by the Beneficiary. In no event shall the Beneficiary be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) days after the notice of default is first given. 2. Acceleration of Maturity. If an Event of Default shall have occurred and be continuing, then the entire indebtedness secured hereby shall, at the option of the Beneficiary, immediately become due and payable without notice or demand which are hereby expressly waived, and no omission on the part of the Beneficiary to exercise such option when entitled to do so shall be construed as a waiver of such right. 3. The Beneficiary's Right to Enter and Take Possession. If an event of Default shall have occurred and be continuing, the Beneficiary may: City.HO.DOT Page 7 of 13 2/8/10 ?W?4T6 EXHIBIT C (a) Either in person or by agent, with or without bringing any action or proceeding, or by a received appointed by a court, and without regard to the adequacy of its security, enter upon the Property and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Property, or part thereof or interest therein, increase the income therefrom or protect the Security hereof and, with or without taking possession of the Property, sue for or otherwise collect any rents, issues and profits thereof, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including attorneys' fees, upon any indebtedness secured hereby, all in such order as Beneficiary may determine. The entering upon and taking possession of the Property, the collection of such rents, issues and profits and the application thereof, as aforesaid, shall not cure or waive any Event or Default or notice of Event of Default hereunder or invalidate any act done in response to such Event of Default or pursuant to such notice of Event of Default and, notwithstanding the continuance in possession of the Property or the collection, receipt and application of rents, issues or profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, the Agreement or by law upon occurrence of any Event of Default including the right to exercise the power of sale. Trustor requests that a copy of any notice of default and a copy of any Notice of Sale hereunder be mailed to Trustor at the address herein given; (b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver or specifically enforce any of the covenants hereof; (c) Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor's interest in the property to be sold, which notice Trustee or Beneficiary shall cause to be duly filed for recording in the Official Records of the County in which the Property is located; or (d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to the Property, including any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. 4. Foreclosure by Power of Sale. Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust which is secured hereby (and the deposit of which shall be deemed to constitute evidence that the Note Amount is immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. City.HO.DOT Page 8 of 13 2/8/10 EXHIBIT 1 25D-47 EXHIBIT C Upon receipt of such notice from the Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such notice of default and election to sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such notice of default and after notice of sale having been given as required by law, sell the Property, at the time and place of sale fixed by it in said notice of sale, either as a whole or in separate lots or Property or items as Trustee shall deem expedient and in such order as it may determine, at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warrant, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchase or purchases. ii. After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of (i) the Note Amount;(ii) all other sums then secured hereby; and (iii) the remainder, if any, to the person or persons legally entitled thereto. iii. Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may in its discretion, give a new notice of sale. 5. Receiver. If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under Security, and without regard to the then value of the Property or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receive or receivers of the Security (or a part thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Property, unless such receivership is sooner terminated. 6. Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. 7. No Waiver. City.HO.DOT Page 9 of 13 2/8/10 EXHIBIT 1 25D-48 EXHIBIT C a. No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a waiver of any such Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. No consent or waiver, expressed or implied, by the Beneficiary to or of any breach by the Trustor in the performance of the obligations hereunder shall be deemed or construed to be a consent to or waiver of obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any rights, powers or remedies consequent on any breach or Event of Default by the Trustor. b. If the Beneficiary (i) grants forbearance or an extension of time for the payment of any sums secured hereby, (ii) takes other or additional security or the payment of any sums secured hereby, (iii) waives or does not exercise any right granted herein, (iv) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements of this Deed of Trust, (v) consents to the filing of any map, plat or replat affecting the Security, (vi) consents to the granting of any easement or other right affecting the Security, or (vii) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer, endorser, surety or guarantor (unless expressly released); nor shall any such act or omission preclude the Beneficiary from exercising any right, power, or privilege herein granted or intended to be granted upon the occurrence of the Event of Default then made or of any subsequent Event of Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or any part of the Property, the Beneficiary, without notice, is hereby authorized and empowered to deal with any such vendee or transferee with reference to the Security (or a part thereof) or the indebtedness secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the Trustor and without in any way releasing or discharging any liabilities, obligations or undertakings of the Trustor. 8. Suits to Protect the Security. The Beneficiary shall have power (upon ninety (90) days notice to the Trustor) to (a) institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Security (and the rights of the Beneficiary as secured by this Deed of Trust) by any acts which may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its interest (as described, in this Deed of Trust) in the Security and in the rents, issues, profits and revenues arising therefrom, and (c) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rules or order would impair the security thereunder or be prejudicial to the interests of the Beneficiary. 9. Trustee May File Proofs of Claim. In the case of any receivership, insolvency, City.HO.DOT Page 10 of 13 2/8/10 EXHIBIT EXHIBIT C bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claims and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings for the entire amount due and payable by the Trustor under this Deed of Trust at the date of the institution of such proceedings and for any additional amount which may become due and payable by the Trustor hereunder after such date. Article VIII. MISCELLANEOUS 1. Amendments. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. 2. Reconve ay nce by Trustee. Upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey to Trustor, or to the person or persons legally entitled thereto, without warranty, any portion of the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any reconveyance may be described as "the person or persons legally entitled thereto." The Beneficiary may provide the Trustee with instructions allowing partial reconveyance of the Deed of Trust if requested by Trustor. 3. Notices. Whenever Beneficiary, Trustor or Trustee shall desire to give or serve any notice, demand, request or other communication with respect to this Deed of Trust, each such notice, demand, request or other communication shall be in writing and shall be effective only if the same is delivered by personal service or mailed by registered or certified mail, postage prepaid, return receipts requested, or by telecopier or facsimile transmission, addressed to the address set forth below. Any party may at any time change its address for such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such change. To Beneficiary: City of Santa Ana Housing Division 20 Civic Center Plaza, M-37 Santa Ana, California 92701 Attention: Deputy City Manager of Development Services 4. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. 5. Captions. The captions or headings at the beginning of each section hereof are for the convenience of the parties and are not a part of this Deed of Trust. 6. Invalidity of Certain Provisions. Every provision of this Deed of Trust is intended to be City.HO.DOT Page 11 of 13 2/8/10 EXHIBIT EXHIBIT C severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid on and applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust. 7. No Merger. If title to the Property shall become vested in the Beneficiary, this Deed of Trust and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger and, in such event, Beneficiary shall continue to have and enjoy all of the rights and privileges of Beneficiary under this Deed of Trust. In addition, upon foreclosure under this Deed of Trust pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any portion of the Security shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at any such foreclosure shall so elect. No act by or on behalf of Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless Beneficiary or such purchaser shall give written notice of termination to such tenant or subtenant. 8. Acceptance of Terms by Owner. By acceptance of this Deed of Trust, the Trustor accepts and agrees to be bound by all of the covenants and restrictions included herein. 9. Governing Law. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of California. 10. Non-Discrimination. Trustor herein covenants by and for itself, its successors and assigns, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date and year first above written. By: City.HO.DOT Page 12 of 13 2/8/10 EXHIBIT 1 25D-51 EXHIBIT C EXHIBIT A LEGAL DESCRIPTION Real property in the City of Santa Ana, County of Orange, State of California, described as follows: City.HO.DOT Page 13 of 13 2/8/10 EXHIBIT 1 25D-52 EXHIBIT D NSP REHABILITATION STANDARDS PREFACE The primary purpose of these standards is to address the quality of workmanship and materials expected, and to achieve consistency throughout the NSP3 program activities administered by the City of Santa Ana. These standards are not intended to reduce or exclude the requirements of any federal, state or local codes, standards, ordinances and regulations that apply to residential rehabilitation. WORKMANSHIP All work shall be performed in a professional and workmanlike manner. The quality and durability of the work shall meet or exceed the standards established by the construction industry and various trades. MATERIALS & EQUIPMENT • All materials and equipment shall comply with and be installed in accordance with the manufacturer's requirements and all applicable codes, standards, ordinances and regulations. If a discrepancy occurs between the requirements, the more stringent shall prevail. • Unless otherwise specified, all materials and equipment shall be medium grade. • Economy grade materials and equipment are unacceptable. • All materials and equipment shall be new, in excellent condition, and delivered to the job in the manufacturer's original packaging. • The description of materials and equipment found in this document establish a minimum standard. ENERGY EFFICIENCY, WATER CONSERVATION & RECYCLED MATERIALS To the extent possible and practical, standard measures related to energy conservation, energy efficiency, water conservation and the use of recycled materials have been incorporated herein. Gut rehabilitation or new construction of residential buildings up to three stories will be designed to meet the standard for Energy Star Qualified New Homes. Gut rehabilitation or new construction of mid or high rise multi-family housing must be designed to meet the American Society of heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 90.1-2004, Appendix G plus 20 percent. LEAD-BASED PAINT All housing built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead-based paint hazards. HUD's guidelines are available at http://www.hud.gov/offices/lead/lbp/hudguidelines /index cfm. BUILDING STANDARDS Minimum Standard • The site shall be hazard-free and sanitary. • The site and all paving shall drain away from the dwelling and accessory buildings. • Paving and walkways shall be hazard-free and intact. • Landscaping and irrigation systems shall be hazard-free and in relatively good condition. All dead vegetation shall be removed. • Fencing, walls and gates hazard-free and intact. All gates shall be in EXHIBIT 1 25D-53 EXHIBIT D good working order. • The site shall be free from trash, debris and hazardous materials. • Accessory buildings shall be safe and sound. Paving . All new paving and walkways shall be constructed with concrete (2,000 PSI @ 28 days). • Driveways shall be reinforced with wire mesh. Sawn expansion- contraction joints shall be placed every 8 feet in both directions. • All paving and walkways shall be finished with a light broom texture. • All walkways shall be at least 3 feet wide. Sawn expansion- contraction joints shall be placed eve 4 feet. Landscaping & Irrigation • To the extent possible and practical all new landscaping shall be drought resistant. • When a lawn is being replaced, the new lawn area shall be reduced to aid in the reduction of water consumption. • New irrigation controllers shall be weather or sensor based and EPA Water-Sense qualified. • All new irrigation systems shall be designed to conserve water. Fences, Walls & Gates • All new wood fences shall be made from good quality materials. They shall be properly supported with 4X4 pressure treated posts (8 feet O.C.) and 2X4 rails (top and bottom). The posts shall be embedded in a concrete footing at least 18" deep. • All new block walls shall be constructed with 6X8X16 concrete block. They shall be properly supported by a continuous footing and reinforced with steel bar. Minimum Standard • Safe and structural) sound. Rehabilitation • Porches, steps, balconies and railing that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Concrete • 2,000 PSI (minimum). Finishes • Zero or low VOC primers, paint and coatinas. Minimum Standard • Safe and structurally sound. Rehabilitation Foundations that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, raised foundations shall be complete) insulated. Concrete • 2,000 PSI (minimum). Minimum Standard Safe, structural) sound and weather-tight. Rehabilitation • Exterior walls that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as Iona as EXHIBIT 1 2501-54 EXHIBIT D compliance with the minimum standard will be achieved. • Seal all joints. • If the project involves a gut rehab, all exterior walls shall be insulated. EXTERIOR DOORS Minimum Standard Safe, sound, weather-tight and in good working order. • Five or more ears of practical utility. Rehabilitation • Exterior doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. New Doors • EPA Energy Star qualified, zero or low VOC finish. New Hardware Reputable manufacturer, lifetime finish. Minimum Standard • Safe, sound and in good working order. • Five or more ears of practical utility. Rehabilitation • Garage doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Minimum Standard • Safe, sound, weather-tight and in good working order. • Five or more ears of practical utility. Rehabilitation Windows that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. New Windows Reputable manufacturer. • EPA Energy Star qualified. Minimum Standard • Homes built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead-based paint hazards. • All exterior paint shall be intact and corrosion free. • Five or more years of practical utility. Rehabilitation • All surfaces to be painted shall be prepared properly. All loose material and peeling paint shall be removed. • All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All stucco surfaces to be painted shall receive a complete and even coverage of stucco paint. • All wood surfaces to be painted shall receive a complete and even coverage of flat exterior paint. • Poor workmanship will not be tolerated. New Paint Reputable manufacturer. • Highest quality available. 2501-55 EXHIBIT D • Zero or low VOC paint, caulking and fillers. Minimum Standard • Safe and structurally sound. • All plaster, drywall and paneling shall be safe and intact. Rehabilitation Walls, floors and ceilings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, the attic, walls and floor on raised foundations shall be insulated. FLOOR COVERINGS Minimum Standard • Safe, sound and sanitary. • Five or more ears of practical utility. Rehabilitation • Floor coverings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Floor Carpet & Pad (Reputable manufacturer, recycled materials). Coverings • Resilient Flooring (Reputable manufacturer, 10 year wear warranty). • Ceramic Tile (Reputable manufacturer) INTERIOR DOORS Minimum Standard • Safe, sound and in good working order. • Five or more ears of practical utility. Rehabilitation • Interior doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Doors & • Doors (Reputable manufacturer, masonite, raised panel). Hardware Hardware (Reputable manufacturer, lifetime finish). Minimum Standard • Homes built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead-based paint hazards. • All interior paint shall be intact, corrosion-free and sanitary. • Five or more years of practical utility. Rehabilitation • All surfaces to be painted shall be prepared properly. All loose material and peeling paint shall be removed. • All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All surfaces to be painted shall receive a complete and even coverage of flat paint (semi-gloss in kitchens, bathrooms and laundry rooms). • Poor workmanship will not be tolerated. New Paint • Reputable manufacturer. • Highest quality available. • Zero or low VOC paint, caulkinq and fillers. EXHIBIT 1 2501-56 EXHIBIT D KITCHEN CABINETS & COUN TER TOPS Minimum Standard • Cabinets shall be safe, sound, sanitary and in good working order. • Countertops shall be safe, sound, sanitary and watertight. • Five or more ears of practical utility. Rehabilitation • Cabinets and countertops that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Cabinets • Reputable manufacturer. • Solid hardwood face-frames, door-frames and drawer fronts. • Metal and nylon drawer guides. • Low or zero VOC adhesives and finishes. Replacement • Reputable manufacturer. Countertops • 4" ceramic tile, 6" backsplash, bull-nose edge. KITCHEN FIXTURES, EQUIP MENT & APPLIANCES Minimum Standard • Safe, sound, sanitary and in good working order. • Faucets shall (at a minimum) be equipped with a low-flow aerator. • Five or more years of practical utility. Rehabilitation . Kitchen fixtures, equipment and appliances that do not meet the mi nimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Sinks • Reputable manufacturer. • 18- ua a (minimum) stainless steel. Replacement Faucets • EPA Water-Sense qualified. • Reputable manufacturer. • Brass construction, metal housing. Replacement Disposals Reputable manufacturer. • 1/2 HP motor (minimum). • Stainless steel swivel lugs. Replacement EPA Energy Star qualified. Dishwashers • Reputable manufacturer. Replacement Range EPA Energy Star qualified. Hoods • Reputable manufacturer. Replacement Ranges • Reputable manufacturer. • Pilot-free ignition. • Four sealed burners. • Self-cleaning oven with timer. Replacement Cook Tops • Reputable manufacturer. • Pilot-free ignition. • Four sealed burners. Wall Ovens • Reputable manufacturer. • Pilot-free ignition. • Self-cleaningoven with timer. BATHROOM FIXTURES & EQUIPMENT EXHIBIT 1 2501-57 EXHIBIT D Minimum Standard • Safe, sound, sanitary and in good working order. • Faucets shall (at a minimum) be equipped with a low-flow aerator. • Showerheads shall (at a minimum) be equipped with low-flow ae rator. • Porcelain sinks shall be free from any cracks or chips. • Steel sinks shall be free from any rust or corrosion. • Five or more ears of practical utility. Rehabilitation • Bathroom fixtures and equipment that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be ac hieved. • Toilets that require more than 1.6 GPF shall be replaced regardless of their condition. Replacement Sinks • Reputable manufacturer. • Cast iron, white enamel finish. Replacement Faucets • EPA Water-Sense qualified. • Reputable manufacturer. • Brass construction, metal housing. Replacement Toilets • Reputable manufacturer. • EPA Water-Sense qualified (1.28 GPF) Replacement Tubs • Reputable manufacturer. • Cast iron body, white enamel finish, slip resistant bottom. • EPA Water-Sense qualified plumbing fixtures. Replacement • Reputable manufacturer. Combination • Cast iron body, white enamel finish, slip resistant bottom. Tub-Showers • 4" ceramic tile surround. • Anodized aluminum doors with tempered glass. • EPA Water-Sense qualified plumbing fixtures. Replacement Showers • Reputable manufacturer. • 4" ceramic tile. • Anodized aluminum door with tempered glass. • EPA Water-Sense qualified plumbing fixtures. Replacement • Reputable manufacturer. Medicine Cabinets • Steel body, beveled mirror door. Towel Bars & Toilet • Reputable manufacturer. Paper Holders • Metal construction, polished chrome finish. Minimum Standard Safe, sound and leak-free. Rehabilitation • Piping (supply, waste and vent) that does not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Copper, type "L". Water Suppl Piping Replacement Schedule 40 ABS. Waste & Vent Pipina EXHIBIT 1 25D-58 EXHIBIT D WATER HEATERS Minimum Standard • Safe, sound and in good working order. • Five or more ears of practical utility. Rehabilitation • Water heaters that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement • Reputable manufacturer. Water Heaters (Tank) • EPA Energy Star qualified. • 40-gallon insulated tank. Replacement • Reputable manufacturer. Water Heater • EPA Energy Star qualified. (Tank-Less) ELECTRICAL SERVICE A ND WIRING Minimum Standard • Safe, sound and in good working order. • 100-ampere minimum service. Rehabilitation Electrical service panels, breakers and wiring that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Knob and tube wiring shall be replaced regardless of its condition. • Overhead wiring from a dwelling to a detached garage or accessory building shall be installed underground regardless of its condition. Replacement • Reputable manufacturer. Service • 100-ampere (minimum). Replacement Romex (NM cable). Wiring Minimum Standard • Safe, sound and in good working order. • Light fixtures shall (at a minimum) be equipped with CFL bulbs. • Exterior lighting fixtures used for security shall be equipped with a motion sensor. Rehabilitation Electrical switches, outlets and lighting fixtures that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • All new light fixtures shall be U.L. approved and Energy Star qualified. • Outlets located within 6 feet of a source of water shall be ground fault protected. • Exterior switches and outlets shall be weatherproof. Replacement U.L. approved. Switches & Outlets Replacement Reputable manufacturer. Lighting Fixtures • U.L. approved and EPA Enerav Star aualified. EXHIBIT EXHIBIT D HVAC Minimum Standard . Safe, sound and in good working order. • Eight or more ears of practical utility. Rehabilitation . HVAC that does not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Tune-up all HVAC equipment (as a minimum). • Seal all ducts (as a minimum). • All new HVAC equipment shall be sized properly. Furnaces Reputable manufacturer. • EPA Energy Star qualified. Central Air Conditioners Reputable manufacturer. • EPA Energy Star qualified. Thermostats . Reputable manufacturer. • EPA Energy Star qualified. • Programmable. Minimum Standard • Additions and alterations that were constructed without a building permit and are clearly substandard shall be removed. • Additions and alterations that were constructed without a building permit, but appear to be compliant, shall be inspected by the City's Building Official to determine if a building permit can be issued and they can be saved. EXHIBIT 1 2501-60 EXHIBIT E PROMISSORY NOTE SECURED BY DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA Address: Santa Ana, California $ .00 52009 FOR VALUE RECEIVED, ANR Santa Ana, NSP, LLC, a limited liability company ("Borrower"), hereby promises to pay to the CITY OF SANTA ANA, a charter city and municipal corporation ("City"), or order, a principal amount not to exceed DOLLARS ($ .00) or so much thereof as may be advanced by the City to the Borrower, due and payable upon sale to a qualified Homebuyer, pursuant to the Neighborhood Stabilization Program Grant Services Agreement dated concurrently herewith, between Borrower and the City (the "Agreement"), which is incorporated herein by this reference. Title III of Division B of the Housing and Economic Recovery Act of 2008 (Pub. L 110-289, 122 Stat. 2654 enacted July 30, 2009) makes available to certain qualified municipalities for certain qualified grant funds termed Neighborhood Stabilization Program ("NSP Funds") under a program termed the Neighborhood Stabilization Program (the "NSP"). Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to City hereunder is subject to the terms of the Agreement, the Deed of Trust and this Note. Said documents are public records on file in the offices of the City, and the provisions of said documents are incorporated herein by this reference. Definitions: For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "Affordable Sales Price" shall mean a purchase price which results in an Affordable Housing Cost to a Low or Moderate Income Purchaser. The Affordable Housing Cost for Low Income households will be the product of 30% times 65% of the Area Median Income adjusted for family size appropriate for the unit. For Moderate Income households, the Affordable Housing Cost will be the product of 35% of 100% of the Area Median Income, adjusted for family size appropriate for the unit. These income limits will be used to determine a Homebuyer's maximum income for eligibility to purchase a Low or Moderate Income Unit. "City Loan" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the Deed of Trust. "Deed of Trust" shall mean the Deed of Trust in favor of the City, securing the City Loan, substantially in the form attached to the Agreement as Exhibit C, which is incorporated herein by this reference. 1 EXHIBIT 1 25D-61 EXHIBIT E "Homebuyer" shall mean the qualified Low or Moderate Income Household that originally purchases the NSP Assisted Unit from the Developer. "Low Income" means an adjusted income which does not exceed eighty percent (80%) of the Orange County, California PMSA, adjusted for household size, as published by HUD. "Moderate Income" means an adjusted income which does not exceed one hundred twenty percent (120%) of the Orange County, California PMSA, adjusted for household size, as published by HUD. "Neighborhood Stabilization Program" (NSP) has the meaning set forth in the Recitals above. "Property" shall mean each piece of real property acquired pursuant to the terms of the Agreement. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty-five percent (35%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. 2. This Note evidences the obligation of Borrower to the City for the repayment of the City Loan of NSP Funds attributable to the acquisition and rehabilitation (if any) of the Property. 3. This Note is payable at the principal office of City of Santa Ana - Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Att: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 4. This Note shall be secured by the Deed of Trust. 5. Upon the City approved Sale of the Property to a Low or Moderate Income Household for the Affordable Sales Price pursuant to the terms of the Agreement, the loan will be transferred to the Homebuyer. The loan amount will be the amount of NSP Funds to create this homeownership opportunity which will be determined based on 2 25?B161 EXHIBIT E the affordable sales price, the fair market value or the maximum sales price permitted under the NSP Program at the time of such sale. 6. (a) Prior to the sale of the Property to an income qualified purchaser, Borrower shall not assign or attempt to assign the Agreement or any right therein, nor make any total or partial sale, transfer, conveyance or assignment of the whole or any part of the Property, or any portion thereof or interest therein (referred to hereinafter as a "Transfer"), without prior written approval of the City, except as otherwise permitted in this Note. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. (b) Any such proposed transferee shall have the experience, qualification and financial responsibility necessary and adequate as may be reasonably determined by the City, to fulfill the obligations undertaken in the Agreement and this Note by the Borrower. Any such proposed transferee, by instrument in writing satisfactory to the City and in form recordable among the land records of Orange County, for itself and its successors and assigns, and for the benefit of the City shall expressly assume all of the obligations of Borrower under the Agreement and Deed of Trust, and agree to be subject to all conditions and restrictions applicable to Borrower in this Note. There shall be submitted to the City for review all instruments and other legal documents proposed to effect any such transfer; and if approved by the City its approval shall be indicated to Borrower in writing. (c) In the absence of specific written agreement by the City, no unauthorized Transfer, or approval thereof by the City, shall be deemed to relieve the Borrower or any other party from any obligations under the Agreement. (d) In the event of a Transfer prior to the time the City Loan is paid in full without the prior written consent of the City, the proceeds resulting from such Transfer shall be paid to the City to the extent necessary to pay in full the principal balance of the City Loan. (e) As used herein, "transfer" includes the sale, agreement to sell, transfer or conveyance of the Property, or any interest therein, whether voluntary, involuntary, by operation of law or otherwise, or similar instrument affecting all or a portion of the Property. "Transfer" shall not include a conveyance of the Property to a limited partnership in which Borrower is a general partner, a limited liability company in which Borrower is the managing member, or to a corporation that is wholly owned by Borrower and that is formed for the sole purpose of owning and operating the Property, or the sale back to Borrower. (f) The term "Sale" means any transfer, assignment or conveyance 3 EXHIBIT 1 25D-63 EXHIBIT E to a Low or Moderate Income Household, for primary residential occupancy of the Property, as approved by City. (g) Upon the sale of the Property, approved by City in accordance with the Agreement and the Deed of Trust, City shall release the applicable Property from the Deed of Trust and execute a reconveyance of the lien of the Deed of Trust from the Property. (h) The City shall not unreasonably withhold, condition or delay its approval of any matter for which its approval is required hereunder. Any disapproval shall be in writing and contain the City's reasons for disapproval. 7. Borrower agrees for itself, its successors and assigns, that the use of the Property shall be subject to the restrictions on income and occupancy set forth in the Agreement and the Deed of Trust. 8. The City Loan evidenced hereby is a nonrecourse obligation of the Borrower. Neither Borrower nor any other party shall have any personal liability for repayment of the City Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the City Loan shall be the exercise of its rights against the Property and related security thereunder. The foregoing shall not: (1) constitute a waiver of any obligation evidenced by this Note or the Deed of Trust; (2) limit the right of the City to name Borrower as a party defendant in any action or suit for judicial foreclosure and sale under this Note and the Deed of Trust or any action or proceeding hereunder so long as no judgment in the nature of a deficiency judgment shall be asked for or taken against Borrower; (3) release or impair this Note or the lien of the Deed of Trust: (4) prevent or in any way hinder City from exercising, or constitute a defense, an affirmative defense, a counterclaim, or other basis for relief in respect of the exercise of, any other remedy against the Property or any other instrument securing this Note or as prescribed by law or in equity in case of default; (5) prevent or in any way hinder City from exercising, or constitute a defense, an affirmative defense, a counterclaim, or other basis for relief in respect of the exercise of, its remedies in respect of any deposits, insurance proceeds, condemnation awards or other monies or other collateral or letters of credit securing this Note; (6) relieve Borrower of any of its obligations under any indemnity delivered by Borrower to City; or (7) affect in any way the validity of any guarantee from any person of all or any of the obligations evidenced and secured by this Note and the Deed of Trust. The foregoing provisions of this paragraph are limited by the proviso that in the event of the occurrence of a default, Borrower and its successor and assigns shall have personal liability hereunder for any deficiency judgment, but only if and to the extent Borrower, its principals, shareholders, partners or its successors and assigns received revenues, or other payments or proceeds in respect of the Property, which other revenues, or other payments or proceeds have not been used for the payment of ordinary and reasonable operating expenses of the Property, ordinary and reasonable capital improvements to the Property, debt service on this Note, real estate taxes in respect of the Property and basic management fees, but not incentive fees, payable to an entity or person unaffiliated with Borrower in connection with the operation of the 4 EXHIBIT 1 25D-64 EXHIBIT E Property, which are then due and payable. In addition, City may recover directly from Borrower or any other party: (a) any damages, costs and expenses incurred by City as a result of fraud or any criminal act or acts of Borrower or any partner, shareholder, officer, director or employee of Borrower or of any general or limited partner of Borrower; (b) any damages, costs and expenses incurred by City as a result of any misappropriation of funds provided for the construction of the Improvements on the Property, proceeds and revenues from the operation of the Improvements, or proceeds of insurance policies or condemnation proceeds; (c) all court costs and attorneys' fees reasonably incurred in enforcing or collecting upon any of the foregoing exceptions (provided that City shall pay Borrower's reasonable court costs and attorneys' fees if Borrower is the prevailing party in any such enforcement or collection action). 9. Borrower waives presentment for payment, demand, protest, and notices of dishonor and of protest; the benefits of all waivable exemptions; and all defenses and pleas on the ground of any extension or extensions of the time of payment or of any due date under this Note, in whole or in part, whether before or after maturity and with or without notice. Borrower hereby agrees to pay all costs and expenses, including reasonable attorney's fees, which may be incurred by the holder hereof, in the enforcement of this Note, the Deed of Trust or any term or provision of either thereof. 10. Upon the failure of Borrower to perform or observe any other term or provision of this Note, or upon the occurrence of any event of default under the terms of the Deed of Trust or the Agreement or, the holder may exercise its rights or remedies thereunder. 11. Failure or delay by Borrower to perform any term or provision of the Agreement, this Note or the Deed of Trust constitutes a default under this Note. a. City shall give written notice of default to Borrower, specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. b. Any failures or delays by City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by City in asserting any of its rights and remedies shall not deprive City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. c. If a monetary event of default occurs under this Note, the Deed of 5 EXHIBIT 1 25D-65 EXHIBIT E Trust or any other applicable document or instrument, prior to exercising any remedies, the City shall give Borrower written notice of such default. Borrower shall have seven (7) days after such notice is given within which to cure the default prior to exercise of remedies by City under this Note and/or the Deed of Trust. d. If a non-monetary event of default occurs under the terms of the Agreement, this Note, the Deed of Trust, prior to exercising any remedies hereunder or thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under the applicable agreement, this Note and/or the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then Borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within ninety (90) days after the notice of default is first given. 11. Notwithstanding specific provisions of this Note, nonperformance hereunder shall not be deemed to be in default where delays or defaults are due to: war, insurrection; strikes; lockouts; riots; floods, earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental agency or entity (except that an any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Times of performance under this Note may also be extended in writing by the City and Borrower. 12. If the rights created by this Note shall be held by a court of competent jurisdiction to be invalid or unenforceable as to any part of the obligations described herein, the remaining obligations shall be completely performed and paid. 13. Borrower shall have the right to prepay the obligation evidenced by this Note, or any part thereof, without penalty. IN WITNESS WHEREOF, Borrower has executed this Note as of the day and year set forth above. 6 EXHIBIT 1 25D-66 EXHIBIT E ANR Santa Ana, NSP, LLC a Limited Liability Company By: George Jordan Vice President EXHIBIT 1 25D-67 EXHIBIT F PROGRESS PAYMENT REQUEST Date Project Number: Homeowner: Address: Telephone #: PROGRESS PAYMENT #: AMOUNT APPROVED: AMOUNT RETAINED (-10%) AMOUNT TO BE DISBURSED: PAYABLE TO: V OFFICE USE ONLY V SOURCE OF. FUNDS AMOUNT ? HOME o'CALHOME Q TAX INCREMENT E CDBG E. TOTAL DISBURSEMENT IDS NUMBER; ESCROW NUMBER: ACCOUNT NUMBER / W.O. #: CONTRACTOR The undersigned CONTRACTOR: (1) Certifies that to the best of their knowledge, information and belief, the work summarized on the attached invoice and covered by this Progress Payment Request has been completed in accordance with the Housing Rehabilitation Work Contract; (2) Certifies that they have obtained all required building permits, inspections and approvals for the work covered by this Progress Payment Request; (3) Certifies that they have not promised or given the HOMEOWNER a cash payment or rebate. Date Contractor (Signature) HOMEOWNER The undersigned HOMEOWNER: (1) Certifies that to the best of their knowledge, information and belief, the work summarized above and covered by this Progress Payment Request has been completed to their satisfaction and in accordance with the Housing Rehabilitation Work Contract; (2) Authorizes payment to the CONTRACTOR in the amount requested; (3) Acknowledges and agrees that inspections by the City's Residential Construction Specialist (RCS) are performed for financial purposes and to ensure compliance with program requirements, and should not be relied upon as a surety that the work was done properly. Date Homeowner (Signature) CITY OF SANTA ANA Based on site observations, the undersigned Residential Construction Specialist (RCS) certifies that to the best of their knowledge, information and belief, the work summarized above and covered by this Progress Payment Request has been completed in accordance with the Housing Rehabilitation Work Contract and complies with program requirements. Date Residential Construction Specialist (Signature) The undersigned certify that to the best of their knowledge, information and belief, this Progress Payment Request has been properly prepared and documented and authorize the disbursement of funds to cover the amount requested. Date Date Required Attachments: Contractor's Invoice, Full Release Senior Residential Construction Specialist (Signature) Housing Programs Coordinator (Signature) CITY OF SANTA ANA Housing & Neighborhood Development 20 Civic Center Plaza / 3rd Floor / P.O. Box 1988 / M-26 / Santa Ana, CA 92702 (714) 667-2250 25D-6S EXHIBIT F CITY OF SANTA ANA Housing & Neighborhood Development 20 Civic Center Plaza / 3rd Floor / P.O. Box 1988 / M-26 / Santa Ana, CA 92702 (714) 667-2250 FINAL PAYMENT REQUEST Date: V OFFICE USE ONLY V Project Number: Homeowner: Address: Santa Ana, CA Telephone PROGRESS PAYMENT #: AMOUNT APPROVED: AMOUNT RETAINED (-10%) AMOUNT TO BE DISBURSED: PAYABLE TO: SOURCE OF FUNDS Ci HOME D CALHOME D TAX INCREMENT 17 CDBG TOTAL DISBURSEMENT IDS NUMBER: ESCROW NUMBER: ACCOUNT NUMBER / W.O.#: AMOUNT CONTRACTOR The undersigned CONTRACTOR: (1) Certifies that to the best of their knowledge, information and belief, the work summarized on the attached invoice and covered by this Final Payment Request has been completed in accordance with all of the terms and conditions of the Housing Rehabilitation Work Contract; (2) Certifies that they have obtained all required building permits, inspections and approvals for the work covered by this Final Payment Request; (3) Certifies that they have not promised or given the HOMEOWNER a cash payment or rebate. Date Contractor (Signature) HOMEOWNER The undersigned HOMEOWNER: (1) Certifies that to the best of their knowledge, information and belief, the work summarized above and covered by this Final Payment Request has been completed to their satisfaction and in accordance with the terms and conditions of the Housing Rehabilitation Work Contract; (2) Authorizes payment to the CONTRACTOR in the amount requested; (3) Acknowledges and agrees that inspections by the Residential Construction Specialist (RCS) are performed for financial purposes and to ensure compliance with program requirements, and should not be relied upon as a surety that the work was done properly. Date Homeowner (Signature) CITY OF SANTA ANA Based on site observations, the undersigned Residential Construction Specialist (RCS) certifies that to the best of their knowledge, information and belief, the work summarized above and covered by this Final Payment Request has been completed in accordance with the terms and conditions of the Housing Rehabilitation Work Contract and in compliance with program requirements. Date Residential Construction Specialist (Signature) The undersigned certify that to the best of their knowledge, information and belief, this Final Payment Request has been properly prepared and documented and authorize the disbursement of funds to cover the amount requested. Date Date Senior Residential Construction Specialist (Signature) Housing Programs Coordinator (Signature) Required Attachments: Contractor' s Invoice, Full Release, Punch List, Certificate of Final Inspection, Notice of Completion (if applicable) 08/2005 2501-69 EXHIBIT F k ?1 CITY OF SANTA ANA Housing & Neighborhood Development 20 Civic Center Plaza / 3rd Floor / P.O. Box 1988 / M-26 / Santa Ana, CA 92702 (714) 667-2250 AUTHORIZATION FOR RELEASE OF RETENTION FUNDS Date: Project Number: Homeowner: Address: Santa Ana, CA Telephone #: PROGRESS PAYMENT #: AMOUNT APPROVED: AMOUNT RETAINED (-10%) AMOUNT TO BE DISBURSED: PAYABLE TO: V OFFICE USE ONLY V SOURCE OF FUNDS D HOME CALHOME Ll TAX INCREMENT F1 CDBG AMOUNT TOTAL DISBURSEMENT IDS NUMBER: ESCROW NUMBER: ACCOUNT NUMBER / W.O* CONTRACTOR The undersigned CONTRACTOR certifies that to the best of their knowledge, information and belief, all charges for labor and material incurred by CONTRACTOR and used in construction pursuant to the Housing Rehabilitation Work Contract have been paid in full, and that no liens and/or legitimate claims have been reported. Date Contractor (Signature) HOMEOWNER The undersigned HOMEOWNER: (1) Certifies that to the best of their knowledge, information and belief, the CONTRACTOR has complied with the Housing Rehabilitation Work Contract and that no liens and/or legitimate claims have been reported; (2) Authorizes the release of the retention funds to the CONTRACTOR. Date Homeowner (Signature) CITY OF SANTA ANA The undersigned Residential Construction Specialist (RCS) certifies that to the best of their knowledge, information and belief, the CONTRACTOR has complied with the Housing Rehabilitation Work Contract and is entitled to receive the retention funds withheld during construction. Date Residential Construction Specialist (Signature) The undersigned certify that to the best of their knowledge, information and belief, this Request For Retention Funds has been properly prepared and documented and authorize the disbursement of funds in the amount requested. Date Senior Residential Construction Specialist (Signature) Date Housing Programs Coordinator (Signature) Required Attachments: 02/2004 25D-70 EXHIBIT F Order No. Escrow No. Project No. RECORDING REQUESTED BY CITY OF SANTA ANA GOVT. CODE § 6103 WHEN RECORDED MAIL TO: City of Santa Ana 1 Housing 20 Civic Center Plaza 1 Third Floor I M-26 Santa Ana, CA 92701 NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN THAT: 1. The undersigned is OWNER or agent of the OWNER of the interest or estate stated below in the property hereinafter described. 2. FULL NAME of the OWNER is: 3. The FULL ADDRESS of the OWNER is: 4. The NATURE OF THE INTEREST or ESTATE of the undersigned is: In Fee (If other than fee, strike "in fee" and insert, for example, "purchaser under contract of purchase", or "lessee".) 5. The FULL NAMES and FULL ADDRESSES of ALL PERSONS, if any, WHO HOLD SUCH INTEREST or ESTATE with the undersigned as JOINT TENANTS or as TENANTS IN COMMON are: NAMES ADDRESSES 6. The FULL NAMES and FULL ADDRESSES of the predecessors in interest of the undersigned if the property was transferred subsequent to the commencement of the work of improvement herein referred to: NAMES ADDRESSES 7. A work of improvement on the property hereinafter described was COMPLETED: 8. The work of improvement completed is described as follows: 9. The NAME OF THE ORIGINAL CONTRACTOR, if any, for such work of improvement is: 10. The street address of said property is: 11. The property on which said work of improvement was completed is in the CITY OF SANTA ANA, County of Orange, State of California, and is described as follows: Printed name of OWNER or AGENT of OWNER Signature of OWNER or AGENT of OWNER Verification for INDIVIDUAL owner: I the undersigned declare under penalty of perjury under the laws of the State of California that I am the owner of the aforesaid interest or estate in the property described in the above notice. I have read said notice and I know and understand the contents thereof, and that the facts stated therein are true and correct. Printed name of OWNER named in paragraph 2 Date and Place Signature of OWNER named in paragraph 2 Verification for NON-INDIVIDUAL owner: I the undersigned declare under penalty of perjury under the laws of the State of California that I am the of the aforesaid interest or estate in the property described in "President, Partner, Manager, Agent, Etc." the above notice; that I have read the said notice, that I know and understand the contents thereof, and that the facts stated therein are true and correct. Printed name of person signing on behalf of OWNER Date and Place Signature of person signing on behalf of OWNER 1054(3/81) MYL-71 EXHIBIT G Marketing Plan ANR and Allegiant Group Properties, Inc., our affiliated real estate company, have extensive experience developing and selling homes to first-time and moderate income buyers. We believe there are many elements to successfully marketing rehabilitated homes to moderate-income families, including: Use of Experienced Real Estate Community While Allegiant Group Properties is a licensed real estate company, we recognize the value in listing our rehabilitated properties with a local real estate agent who has extensive experience in the Santa Ana market. This is particularly true in a challenging market, such as we are facing now, where the majority of sales transactions are REOs and short sales. We have an established relationship with Realty Analytics (RA), a real estate research company that extensively analyzes data available from multiple listing services in order to identify the highest-performing listing agents in any given market. As a result of the research they provided us at the onset of our NSP1 work in Santa Ana, we established relationships with 5 experienced Santa Ana listing agents after a screening and interview process. We have been working with three of these agents throughout out NSP1 and NSP2 efforts in the City, and would anticipate continuing these relationships through NSP3 should we be selected as the City's Developer Partner. The remaining two agents we identified but are not currently utilizing can be added as back-up agents for NSP3 efforts should volume increase and we need additional agent capacity. Additionally, due to the high-volume of work we provide our current Santa Ana NSP agents, we have been successful in negotiating reduced commission rates on all NSP 1 and 2 listings we assign. This would be of great benefit to the City for NSP3 efforts in that overall project costs would continue at a reduced rate from what a typical Developer Partner would propose. Industry typical real estate commissions are 6% (3% to Listing Agent and 3% to Buyer's [Selling] Agent), and our current agent structure in Santa Ana reduces commissions to a total of 4.5% (2% to Listing Agent and 2.5% to Buyer's [Selling Agent]). In the Santa Ana market we also recognize the importance of affiliating with agents who understand the various cultures that are represented in the city and who have bilingual capabilities as well as experience working with first-time and moderate income buyers. The Agents whom have been successful working with us on NSP1 and NSP2 efforts all have strong ties to the community, and are either bi-lingual themselves (Spanish speaking) or have access to bi-lingual communicators in their offices. All of our current NSP1 and NSP2 agents have experience with down payment assistance and/or layered financing in Santa Ana and/or other cities so they clearly understand the special requirements of processing these types of transactions. EXHIBIT 1 2501-72 EXHIBIT G 2. Relationships with Homebuyer Counseling Organizations ANR works closely with local non-profit organizations that provide counseling to first-time homebuyers to identify families that have completed training courses and are prepared to buy, but still need to identify a home to purchase. We have established relationships with Neighborhood Housing Services of Orange County (NHS-OC) as well as Consumer Credit Counseling Services of Orange County (CCCS-OC), and both organizations have been trained in the Santa Ana Neighborhood Stabilization Program, understand the benefits of the program for prospective homebuyers, and both agencies are currently referring prospective homebuyers to the program as an existing business practice at their homebuyer education classes and seminars. Both of these organizations have also been provided with flyers and website information for the current Santa Ana Homeownership Program (NSP1 and NSP2) we have been administering to date, and these flyers as well as website access are both available in their offices and distributed to interested parties. 3. Incentives and Down Payment Assistance Promotion The City of Santa Ana offers a down payment assistance program that provides zero percent interest loans up to ten percent (10%) of the sales price or $40,000. ANR and our selected listing agents have been successfully promoting the availability of this program and the City's American Dream Down Payment Initiative (ADDI) funds (only at the City's direction), and have been successful in facilitating sales to homebuyers seeking these alternative sources of financial assistance. We would propose to continue our efforts in promotion of the Down Payment Assistance Program, and would also continue to place program flyers in all available homes for sale, as well as continue promotion via individual listing agents educating their offices as well as other agents in the community they have relationships with. 4. Use of www.santaanahomeownership.org and www.santaanahomeownership.com ANR designed and implemented www.santaanahomeownership.org and www.santaanahomeownership.com, a comprehensive website for the Santa Ana Home Ownership Program (NSP1 and NSP2), that includes basic program information, home features, eligibility requirements and other purchase information for prospective buyers set-up in an extremely user-friendly interface. We also have included City down payment assistance flyers and eligibility requirements, and the website has become EXHIBIT 1 25D-73 EXHIBIT G a very success marketing tool for the program. Agents are able to identify program requirements online, educate their clients, and also view new properties to market to their buyer pools. Properties are added to the website upon acquisition close of escrow and listed in `Coming Soon' status, moved to listed 'Available' (with a new `after' photo) once rehabilitation is complete and the City approves list pricing, then moved to 'Sold' upon a buyer's successful close of escrow. The www.santaanahomeownership.org and www.santaanahomeownership.com websites have also enabled NSP1 and NSP2 prospective buyers to contact ANR staff directly, and this has given us an additional ability to market the program in a personal and more direct way to prospective buyers. Buyers are able to call ANR's staff and ask questions, voice concerns, or inquire about current properties, and their calls/email inquiries are all handled same-day. .r r..oen w t? r5 xawy ?..s++av...i. e p guar V- Vawcwms..a M.ewnvn Mrna- M?VM'p+ i8 .... b?.ao.re. c....,.. ? .,y:c,.s• zi c._i .' we • rb,.. y,.,y. f.b• ?. Mop r iwl. Rwx.?r 6 i.?li? 0 1?:r? plMal {? • vllx 5. Implementation of Santa Ana Home Ownership Program signage to brand the program At the on-set of our NSP1 efforts in Santa Ana, we implemented a sign program that adds visibility to the Santa Ana Home Ownership Program and helps brand homes that are being readied for sale. Prospective buyers may be driving through a community, will see a Program Sign, and are given direct access via our website listed to instantly obtain more information about both the home and the program. These signs have also helped with the word of mouth marketing of the program. EXHIBIT 1 25D-74 EXHIBIT G CITY OF SANTA ANA Home Website address has since been Ownership changed to www.santaanahomeownership.org Program www.santa-ana.org/cda/home.asp bye 0 Neighborhood Stabilization Program 6. Marketing to City Residents and Persons employed in City businesses/Grass-roots marketing Our Listing Agents work with their established community relationships to help spread the word and brand the Santa Ana Home Ownership Program in a number of ways: a. Hand delivered or direct mailed "Just Listed" postcards and/or flyers to local residents (within a designated radius of a new listing) b. Open house events held on-site to allow neighbors and prospective buyers to tour properties, and spread the word about the program c. Outreach to local businesses and large employers to identify persons that may be working in the area but living elsewhere and are unaware of Santa Ana NSP homes. This may include conducting seminars for large-scale employers in lunch rooms or other employer-approved facilities, as well as proposing employee payroll stuffers or utility company invoice marketing for residents. d. Community outreach and face to face door knocking of neighbors in the area of a new listing. 7. MILS Listing and Agent to Agent Marketing a. All Listing Agents we work with input new listings into the Multiple Listing Service (MLS) to give them maximum exposure to the Agent community. Research tells us that in some cases, over 70% of homes are sold using the MLS as the primary source of info, and in that instance you have a buyer who is already working with and Agent and the Agent views the MLS listing for our NSP home. b. E-blasts (also a form of internet marketing) of new Santa Homeownership Program listings are sent out by our agents to their own offices, as well as other local real estate offices, informing other Agents about the program and new properties available for sale. EXHIBIT 1 25D-75 EXHIBIT G c. Work with local MLS for potential program advertising opportunities on their website and in newsletters. a. Hold Broker caravans for MLS members to expand visibility of properties to Agent community both in and outside the City. 8. Additional Marketing As Needed ANR is also experienced in several other marketing methods for NSP and other moderate -income home sale efforts, and can employ the following marketing tactics as needed, or upon direction of City staff: a. Direct mail or door hangers to local apartment communities and other known high-rental neighborhoods b. Develop incentive programs for Police, Sheriff, Teachers or other civil servant occupations c. Implement social marketing via set-up of Facebook page and other social media d. Develop monthly e-communications to email inquiries from the www.santaanahomeownership.org website EXHIBIT 1 25D-76 EXHIBIT H MARKETING EFFORTS REPORT Medium Frequency and/or Language Location Dates EXHIBIT 1 25D-77 EXHIBIT I Chapter Three - Calculating Annual (Gross) Income Exhibit 3.1 - 24 CFR Part 5 Annual Income Inclusions 1. The full amount, before any payroll deductions, 5. of wages and salaries, overtime pay, commissions, fees, tips and bonuses, and other compensation for personal services. 3. 4. The net income from the operation of a business or profession. Expenditures for business expansion or amortization of capital indebtedness shall not be used as deductions in determining net income. An allowance for depreciation of assets used in a business or profession may be deducted, based on straight-line depreciation, as provided in Internal Revenue Service regulations. Any withdrawal of cash or assets from the operation of a business or profession will be included in income, except to the extent the withdrawal is reimbursement of cash or assets invested in the operation by the family. Interest, dividends, and other net income of any kind from real or personal property. Expenditures for amortization of capital indebtedness shall not be used as deductions in determining net income. An allowance for depreciation is permitted only as authorized in number 2 (above). Any withdrawal of cash or assets from an investment will be included in income, except to the extent the withdrawal is reimbursement of cash or assets invested by the family. Where the family has net family assets in excess of $5,000, annual income shall include the greater of the actual income derived from all net family assets or a percentage of the value of such assets based on the current passbook savings rate, as determined by HUD. The full amount of periodic amounts received from Social Security, annuities, insurance policies, retirement funds, pensions, disability or death benefits, and other similar types of periodic receipts, including a lump-sum amount or prospective monthly amounts for the delayed start of a periodic amount (except for certain exclusions, listed in Exhibit 3.2, number 14). Payments in lieu of earnings, such as unemployment and disability compensation, worker's compensation, and severance pay (except for certain exclusions, as listed in Exhibit 3.2, number 3). 6. Welfare Assistance. Welfare assistance payments made under the Temporary Assistance for Needy Families (TANF) program are included in annual income: • Qualify as assistance under the TANF program definition at 45 CFR 260.31; and • Are otherwise excluded from the calculation of annual income per 24 CFR 5.609(c). If the welfare assistance payment includes an amount specifically designated for shelter and utilities that is subject to adjustment by the welfare assistance agency in accordance with the actual cost of shelter and utilities, the amount of welfare assistance income to be included as income shall consist of: • the amount of the allowance or grant exclusive of the amount specifically designated for shelter or utilities; plus • the maximum amount that the welfare assistance agency could in fact allow the family for shelter and utilities. If the family's welfare assistance is reduced from the standard of need by applying a percentage, the amount calculated under 24 CFR 5.609 shall be the amount resulting from one application of the percentage. 7. Periodic and determinable allowances, such as alimony and child support payments, and regular contributions or gifts received from organizations or from persons not residing in the dwelling. 8. All regular pay, special pay, and allowances of a member of the Armed Forces (except as provided in number 8 of Income Exclusions). Last Modified: January 2005 Technical Guide for Determining Income and Allowances for the HOME Program - 20 EXHIBIT 1 2501-78 EXHIBIT I Chapter Three - Calculating Annual (Gross) Income Exhibit 3.2 - 24 CFR Part 5 Annual Income Exclusions 1. Income from employment of children (including foster children) under the age of 18 years. 2. Payments received for the care of foster children or foster adults (usually persons with disabilities, unrelated to the tenant family, who are unable to live alone). 3. Lump-sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and worker's compensation), capital gains, and settlement for personal or property losses (except as provided in Exhibit 3.1, number 5 of Income Inclusions). 4. Amounts received by the family that are specifically for, or in reimbursement of, the cost of medical expenses for any family member. 5. Income of a live-in aide (as defined in 24 CFR 5.403). 6. Certain increases in income of a disabled member of qualified families residing in HOME- assisted housing or receiving HOME tenant- based rental assistance (24 CFR 5.671(a)). 7. The full amount of student financial assistance paid directly to the student or to the educational institution. 8. The special pay to a family member serving in the Armed Forces who is exposed to hostile fire. maintenance, resident initiatives coordination, and serving as a member of the PHA's governing board. No resident may receive more than one such stipend during the same period of time. (e) Incremental earnings and benefits resulting to any family member from participation in qualifying state or local employment training programs (including training not affiliated with a local government) and training of a family member as resident management staff. Amounts excluded by this provision must be received under employment training programs with clearly defined goals and objectives, and are excluded only for the period during which the family member participates in the employment training program. 10. Temporary, nonrecurring, or sporadic income (including gifts). 11. Reparation payments paid by a foreign government pursuant to claims filed under the laws of that government by persons who were persecuted during the Nazi era. 12. Earnings in excess of $480 for each full-time student 18 years old or older (excluding the head of household or spouse). 13. Adoption assistance payments in excess of $480 per adopted child. 9. (a) Amounts received under training programs I 14. funded by HUD. (b) Amounts received by a person with a disability that are disregarded for a limited time for purposes of Supplemental Security Income eligibility and benefits because they are set side for use under a Plan to Attain Self- Sufficiency (PASS). (c) Amounts received by a participant in other publicly assisted programs that are specifically for, or in reimbursement of, out-of-pocket expenses incurred (special equipment, clothing, transportation, childcare, etc.) and which are made solely to allow participation in a specific program. (d) Amounts received under a resident service stipend. A resident service stipend is a modest amount (not to exceed $200 per month) received by a resident for performing a service for the PHA or owner, on a part-time basis, that enhances the quality of life in the development. Such services may include, but are not limited to, fire patrol, hall monitoring, lawn 15 16 17 Deferred periodic amounts from supplemental security income and social security benefits that are received in a lump sum amount or in prospective monthly amounts. Amounts received by the family in the form of refunds or rebates under state or local law for property taxes paid on the dwelling unit. Amounts paid by a state agency to a family with a member who has a developmental disability and is living at home to offset the cost of services and equipment needed to keep the developmentally disabled family member at home. Amounts specifically excluded by any other Federal statute from consideration as income for purposes of determining eligibility or benefits under a category of assistance programs that includes assistance under any program to which the exclusions set forth in 24 CFR 5.609(c) apply. A notice will be published in the Federal Register and distributed to housing owners identifying the benefits that qualify for this exclusion. Technical Guide for Determining Income and Allowances for the HOME Program - 21 EXHIBIT 1 25D-79 EXHIBIT I Chapter Three - Calculating Annual (Gross) Income Updates will be published and distributed when necessary. The following is a list of income sources that qualify for that exclusion: • The value of the allotment provided to an eligible household under the Food Stamp Act of 1977; • Payments to volunteers under the Domestic Volunteer Service Act of 1973 (employment through AmeriCorps, VISTA, Retired Senior Volunteer Program, Foster Grandparents Program, youthful offender incarceration alternatives, senior companions); • Payments received under the Alaskan Native Claims Settlement Act; • Income derived from the disposition of funds to the Grand River Band of Ottawa Indians; • Income derived from certain submarginal land of the United States that is held in trust for certain Indian tribes; • Payments or allowances made under the Department of Health and Human Services' Low-Income Home Energy Assistance Program; • Payments received under the Maine Indian Claims Settlement Act of 1980 (25 U.S.C. 1721); • The first $2,000 of per capita shares received from judgment funds awarded by the Indian Claims Commission or the U.S. Claims Court and the interests of individual Indians in trust or restricted lands, including the first $2,000 per year of income received by individual Indians from funds derived from interests held in such trust or restricted lands; • Amounts of scholarships funded under Title IV of the Higher Education Act of 1965, including awards under the Federal work- study program or under the Bureau of Indian Affairs student assistance programs; • Payments received from programs funded under Title V of the Older Americans Act of 1985 (Green Thumb, Senior Aides, Older American Community Service Employment Program); • Payments received on or after January 1, 1989, from the Agent Orange Settlement Fund or any other fund established pursuant to the settlement in the In Re Agent Orange product liability litigation, M.D.L. No. 381 (E.D.N.Y.); • Earned income tax credit refund payments received on or after January 1, 1991, including advanced earned income credit payments; • The value of any child care provided or arranged (or any amount received as payment for such care or reimbursement for costs incurred for such care) under the Child Care and Development Block Grant Act of 1990; • Payments received under programs funded in whole or in part under the Job Training Partnership Act (employment and training programs for Native Americans and migrant and seasonal farm workers, Job Corps, veterans employment programs, state job training programs and career intern programs, AmeriCorps); • Payments by the Indian Claims Commission to the Confederated Tribes and Bands of Yakima Indian Nation or the Apache Tribe of Mescalero Reservation; • Allowances, earnings, and payments to AmeriCorps participants under the National and Community Service Act of 1990; • Any allowance paid under the provisions of 38 U.S.C. 1805 to a child suffering from spina bifida who is the child of a Vietnam veteran; • Any amount of crime victim compensation (under the Victims of Crime Act) received through crime victim assistance (or payment or reimbursement of the cost of such assistance) as determined under the Victims of Crime Act because of the commission of a crime against the applicant under the Victims of Crime Act; and • Allowances, earnings, and payments to individuals participating in programs under the Workforce Investment Act of 1998. Last Modified. January 2005 Technical Guide for Determining Income and Allowances for the HOME Program - 22 EXHIBIT 1 25D-80 EXHIBIT I Chapter Three - Calculating Annual (Gross) Income Exhibit 3.3 - Sample Format for Computing Part 5 Annual Income 1. Name: 2. Identification No.: ASSETS Family Member Asset Description Current Cash Value of Assets Actual Income from Assets 3. Net Cash Value of Assets ................................ 3. 4. Total Actual Income from Assets ................................................................. 4. 5. If line 3 is greater than $5,000, multiply line by _ (Passbook Rate) and enter results here; otherwise, leave blank. 5. ANTICIPATED ANNUAL INCOME Family Members a. Wages/ Salaries b. Benefits/ Pensions c. Public Assistance d. Other Income e. Asset Income Enter the greater of lines 4 or 5 from above in e. 6. Totals a. b. C. d. e. 7. Enter total of items from 6a. through 6e. This is Annual Income ....................... ...... 7. Signature For Office Use Only Income Limit Income Limit of Household Technical Guide for Determining Income and Allowances for the HOME Program - 23 EXHIBIT 1 2501-81 EXHIBIT I Chapter Three - Calculating Annual (Gross) Income Exhibit 3.4 - Calculating Part 5 Annual Income - Example Family Members Position in Family Age Income Sources George Jefferson Head 53 Works full-time at $7.25/hour; also receives $400/month from the government as a result of a settlement in the Agent Orange product liability litigation. Eloise Jefferson Spouse 48 Works 18 hours/week at a bank at $7.50/hour; also receives $50/month from her mother to help with expenses. Lionel Jefferson Son - 19 - Full-time student at City College where he has a part-time, 15-hour/week job in the student bookstore at $6.00/hour for the 46 weeks when classes are in session. Under the HOME Program, the Income Limit for a family of three in the jurisdiction is $23,900. Are the Jefferson's eligible for HOME assistance? Assume for this example that the Jefferson's have no assets. ANTICIPATED ANNUAL INCOME Family Members a. Wages/ Salaries b. Benefits/ Pensions c. Public Assistance d. Other Income e. Asset Income George $15,080 Enter the Eloise $7,020 $600 greater of Lionel $480 lines 4 or 5 from above in e. 6. Totals a. $22,580 b. C. d. $600 e. N/A 7. Enter total of items from 6a. through 6e. This is Annual Income ............................. 7. $23,180 This family is eligible for assistance because its total income of $23,180 is below the Low-Income Limit. Explanation George George's earning from work count as income, but his income from the Agent Orange Settlement Fund ($4,800/year) does not. Thus, George's income is $7.25/hour x 40 hours/week x 52 weeks/year, or $15,080. Eloise Eloise's income from wages of $7.50/hour x 18 hours/week x 52 weeks, or $7,020. In addition, her regular gift income of $50/month or $600/year counts as income. (The gift income is counted as "other income.") Lionel Because Lionel is a full-time student and is not the head of household or spouse, only the first $480 of his earnings count toward the family income. Technical Guide for Determining Income and Allowances for the HOME Program - 24 EXHIBIT 1 2501-82 EXHIBIT I Chapter Three - Calculating Annual (Gross) Income Exhibit 3.5 - Calculating Part 5 Annual Income - Exercise Family Members Position in Family Age Income Sources Blanche Deverou Head 55 Works 6 hours/night, 4 nights/week at $5.00/hour as a waitress; also earns an average of $551night in tips. Rose Nylen Friend 58 Earns $6.50/hour as a full-time aide in a hospital; employer reports that her wages will increase to $6.75/hour, 7 weeks from the effective date of this calculation. Dorothy Spornac Friend 61 Earns $60/day as a substitute teacher, and works an average of 3 days/week for the 40 weeks school is in session (she made $7,200 last year); also receives $40/month in Food Stamps. Under the HOME Program, the Income Limit for a household of three is $38,500. Assuming that these are the only sources of income, does the household qualify for assistance? Complete the following table to calculate annual income (as defined in 24 CFR Part 5) for the household. Answers are found on the following page. ANTICIPATED ANNUAL INCOME Family Members a. Wages/ Salaries b. Benefits/ Pensions c. Public Assistance d. Other Income e. Asset Income Blanche Enter the Rose greater of Dorothy lines 4 or 5 from above in e. 6. Totals a. b. C. d. e. N/A 7. Enter total of items from 6a. through 6e. This is Annual Income ............................. 7. Technical Guide for Determining Income and Allowances for the HOME Program - 25 EXHIBIT 1 25D-83 EXHIBIT I Chapter Three - Calculating Annual (Gross) Income Exhibit 3.5 - Calculating Part 5 Annual Income - Exercise (continued) ANSWERS ANTICIPATED ANNUAL INCOME Family Members a. Wages/ Salaries b. Benefits/ Pensions c. Public Assistance d. Other Income e. Asset Income Blanche $17,680 Enter the Rose $13,980 greater of Dorothy $7,200 lines 4 or 5 from above in e. 6. Totals a. $38,860 b. C. d. e. N/A 7. Enter total of items from 6a. through 6e. This is Annual Income ............................. 7. $38,860 The household is not eligible for assistance. Its income exceeds the Low-Income Limit by $360. Explanation Blanche Blanche's income must include both wages and tips. (The tips are included as wage/salary income.) Her wage income is $6,240 annually ($5.00/hour x 6 hours/night x 4 nights/week x 52 weeks/year) and her tip income is $11,440 annually ($55/night x 4 nights/week x 52 weeks/year). Rose Rose's wage income must be calculated in two steps. For the first 6 weeks of the year, she earns $6.50/hour. Her income at this wage is $6.50/hour x 40 hours/week x 6 weeks = $1,560. For the next 46 weeks, her wage will be $6.75/hour. Her income at this wage is $6.75/hour x 40 hours/week x 46 weeks = $12,420. Dorothy Dorothy made $7,200 last year, and there is no reason to expect that she will work more or less often in the coming year. Her income is, therefore, estimated at $7,200. Per the Income Exclusions (see Exhibit 3.2), the income she receives from Food Stamps is excluded from this calculation. Technical Guide for Determining Income and Allowances for the HOME Program - 26 EXHIBIT 1 2501-84 EXHIBIT I Chapter Three - Calculating Annual (Gross) Income Exhibit 3.6 - Calculating Part 6 Annual Income - Example Family Members Position in Family Age Income Sources Murphy Brown Head 38 Earns $550 semi-monthly as a manager in the housewares department of the local Kmart, and receives $100/month in child support. Eldon Bernakey Boyfriend 36 Earns $250/week as a part-time painting instructor at the local school for the 40 weeks/year when school is in session; attends evening classes at the Art Institute, which he pays with a State Student Incentive Grant of $3,500; and pays $50/month in child support for his twins - when he can. Ave Brown Son 3 No income. Under the HOME Program, the Income Limit for a family of three in the jurisdiction is $25,700. Is this household eligible for HOME assistance? ANTICIPATED ANNUAL INCOME Family Members a. Wages/ Salaries b Benefits/ Pensions c. Public Assistance d. Other Income e. Asset Income Murphy $13,200 $1,200 Enter the Eldon $10,000 greater of lines 4 or 5 from above in e. 6. Totals a. $23,200 b. C. d. $1,200 e. N/A 7. Enter total of items from 6a. through 6e. This is Annual Income ............................. 7. $24,400 This family is eligible for assistance. Its total income is $24,400, which is below the Low- Income Limit. Explanation Murphy Murphy's annual wage income is $550 semi-monthly x 24 periods/year, or $13,200. In addition, she receives $100/month x 12 months = $1,200/year. This is other income. Eldon Eldon's wage income is based on 40 weeks of work: $250/week x 40 weeks/year, or $10,000 annually. His scholarship does not count as income. The child support Eldon pays cannot be deducted from his income. Technical Guide for Determining Income and Allowances for the HOME Program - 27 EXHIBIT 1 2501-85 EXHIBIT J CITY OF SANTA ANA Neighborhood Stabilization Program Homeownership Program PROMISSORY NOTE Santa Ana, California 20 FOR VALUE RECEIVED, , the undersigned (`Borrower"), promises to pay to the City of Santa Ana, a charter city and municipal corporation ("Lender") at City Hall, 20 Civic Center Plaza, P.O. Box 1988, (M-25) Santa Ana, California 92702, or at such other address as Lender may direct from time to time in writing, Dollars ($ ) (the "Note Amount") together with interest thereon at the rate set forth herein. All sums hereunder shall be payable in lawful money of the United State of America and all sums shall be credited first to interest then due and the balance to principal. The obligation of the Borrower with respect to this Note is secured by that certain Deed of Trust Including Affordable Housing Deed Restrictions ("Deed of Trust"), executed by the Borrower concurrently herewith. Borrower shall be required to pay any and all service charges associated with the City Loan. This Note evidences the obligation of Borrower to Lender for repayment of funds loaned pursuant to California Redevelopment Law to finance the purchase of that certain real property (the "Property") located at , Santa Ana, California. 1. Interest Rate. Simple interest shall accrue in the Note Amount at a rate of Three (3%) per annum for forty-five (45) years, except as set forth below. 2. Payments/Maturity Date. For value received, the Borrower(s), jointly and severally, agree to pay the Lender, the total sum of $ with interest from , 20 , on unpaid principal at the rate of 3% per annum. All principal and interest shall be deferred until subsequent sale or transfer of the Property. The Deed of Trust will carry a 3% interest rate, and will be due and payable in forty-five (45) years. Interest will be forgiven at a rate of 1/45th per year, at each anniversary date of the original sale, with all interest forgiven at the end of the forty-five (45) year affordability period. After the expiration of the affordability period, the principal amount of the Note will be paid at transfer or sale. The balance of all unpaid principal shall be due and payable on the date forty-five years from the date hereof (the "Maturity Date"). Notwithstanding the foregoing, if on the Maturity date the Borrower has complied with this Note and the Deed of Trust (as such terms are defined below) and has not been in default under said documents, the amount owed pursuant to this Note shall be considered mature, so long as all principal and all related costs have been paid to the Lender. EXHIBIT 1 25D-86 EXHIBIT J No periodic payments are required hereunder. Borrower agrees to pay the unpaid principal balance, unpaid accrued interest, and any other amounts due under this Note upon the earlier of: i. at the end of the forty-five (45) year term of affordability; ii. when the Property is sold; iii. when the Property is not properly being used as the Borrower's principal residence; iv. The City discovers that Borrower knowingly or willfully made a misstatement or misrepresentation pertaining to Borrower's status as an Eligible Person or Family; and V. An uncured default in performance or breach by Borrower of any provision of this Promissory Note, the City Deed of Trust Including Affordable Housing Deed Restrictions. 3. Permitted Transfers. The City Loan is not assumable except under the following limited circumstances: i. The transfer of the Property to the surviving joint tenant by devise, descent or operation of the law, on the death of a joint tenant; ii. A transfer of the Property where the spouse becomes an owner of the property; iii. A transfer of the Property resulting from a decree of dissolution of marriage, legal separation or from an incidental property settlement agreement by which the spouse becomes an owner of the Property; iv. A transfer to an inter vivos trust in which the Borrower is and remains the beneficiary and occupant of the property. 4. Acceleration of Payment. The principal amount of this loan, together with any then outstanding accrued interest thereon shall become immediately due and payable, at the option of the holder and without demand or notice, upon the occurrence of any of the following events: i. In the event of a default under the terms of this Note or the Deed of Trust; ii. In the event that the Borrower shall cease to occupy the Property as Borrower's principal place of residence; or iii. In the event of any sale, transfer, lease, or encumbrance of the Property without Lender's prior written consent in violation of Paragraph 3 of this Note. EXHIBIT 1 25D-87 EXHIBIT J 5. Default and Acceleration. All covenants, conditions and agreements contained in the Deed of Trust are hereby made a part of this Note. The Borrower agrees that the unpaid balance of the then principal amount of this Note, together with all accrued interest thereon and charges owing, shall, at the option of the Lender or, if so provided in this Note and Deed of Trust executed by the Borrower, shall automatically, become immediately due and payable, and thereafter until paid bear interest at the rate of 3 % per annum, upon the failure of the Borrower to make any payment hereunder as and when due; upon the failure of the Borrower to perform or observe any other term or provision of this Note, or upon the occurrence of any event (whether termed default, event of default or similar term) which under the terms of the Deed of Trust, shall entitle the Lender to exercise rights or remedies thereunder. 6. Security for Note. This Promissory Note is secured by the Deed of Trust of even date herewith executed by Borrower as Trustor in favor of Lender as Beneficiary encumbering the Property described therein (Exhibit A to the Deed of Trust). 7. Prepayment of Note Amount. Borrower may prepay to Lender the full Note Amount, at any time prior to the due date of the Note Amount without penalty. The affordability covenants related to the Property, as set forth in the Deed of Trust shall remain in effect against the Property for forty-five (45) years from date of recordation, unless Borrower sells the Property and repays the City the loan amount, plus interest, from said sale. Agreement. This Promissory Note is made and delivered pursuant to and in implementation of the Deed of Trust signed by the Borrower dated as of the same date as this document, a copy of which is on file as a public record with the Lender and is incorporated herein by reference. The Borrower acknowledges that but for the execution of this Promissory Note, the Lender would not make the loan contemplated therein. . 9. Lender May Assign. Lender may, at its option, assign its right to receive payment under this Promissory Note without necessity of obtaining the consent of the Borrower. 10. Borrower Assignment Prohibited. In no event shall Borrower assign or transfer any portion of this Agreement without the prior express written consent of the Lender, which consent may be given or withheld in the Lender's sole discretion. Likewise, no assumption of the Loan shall be EXHIBIT 1 25D-88 EXHIBIT J permitted at any time. This Section shall not prohibit the Lender's right to assign all or any portion of its rights to the loan proceeds hereunder. 11. Attorney's Fees and Costs. In the event that any action is instituted to enforce payment under this Promissory Note, the Borrower promises to pay all sums as a court may fix for court costs and reasonable attorney's fees. 12. Non-Waiver by Lender. No waiver of any breach, default or failure of condition under the terms of the Note or Deed of Trust shall thereby be implied from any failure of the Lender to take, or any delay by the Lender in taking action with respect to such breach, default or failure or from any previous waiver of any similar or unrelated breach, default or failure; and a waiver of any term of the Note, Deed of Trust, or any of the obligations secured thereby must be made in writing and shall be limited to the express written terms of such waiver. 13. Successors Bound. This Promissory Note shall be binding upon the parties hereto and their respective heirs, executors, administrators successors and assigns. 14. Severability. The provisions hereof shall be deemed independent and severable, and a determination of invalidity or unenforceability of any one provision or portion hereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provisions hereof. 15. Joint and Several Liability. If this Note is executed by more than one person or entity as Borrower, the obligation of each such person or entity shall be joint and several. No person or entity shall be a mere accommodation maker, but each shall be primarily and directly liable hereunder. 16. Time of the Essence; Venue. Time is of the essence with respect to every provision hereof. This Note shall be constructed and enforced in accordance with the laws of the State of California, except to the extent that Federal laws preempt the law of the State of California, and all persons and entities in any manner obligated under this Note consent to the jurisdiction of any Federal of State Court within the State of California having proper venue and also consent to service of process by any means authorized by California or Federal law. EXHIBIT 1 25D-89 EXHIBIT J 17. Notices. Except as may be otherwise specified herein, any approval, notice, direction, consent, request or other action by the Lender shall be in writing and must be communicated to the Borrower at the address of the Property, or at such other place or places as the Borrower shall designate to the Lender in writing, from time to time, for the receipt of communications from the Lender. Mailed notices shall be deemed delivered and received five (5) working days after deposit in the United States mails in accordance with this provision. Executed as of the date set forth above in Santa Ana, California. Borrower: Print Name: Signature: Borrower: Print Name: Signature: City.HO.PromNote.docx 5 2/8/10 EXHIBIT 1 25D-90 EXHIBIT K RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Community Redevelopment Agency City of Santa Ana 20 Civic Center Plaza (M-37) Santa Ana, CA 92702 Attn: Executive Director NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY Street, Santa Ana, CA (Owner-Occupied Unit) NOTICE IS HEREBY GIVEN, that the Community Redevelopment Agency of the City of Santa Ana (the "Agency"), to carry out certain obligations under the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000 et seq.) and the Redevelopment Plan for the Merged Redevelopment Project Areas, has required , (the "Owner") to enter into certain affordability covenants and restrictions entitled, DEED OF TRUST INCLUDING AFFORDABLE HOUSING DEED RESTRICTIONS (the "Restrictions") Recorded with the County Recorder concurrently with this Notice, with reference to certain real property located at Street, Santa Ana (the "Property"), within Orange County, California, Assessor's Parcel No. , and further described in Exhibit "A," attached hereto and incorporated herein by reference. The affordability covenants and restrictions contained in the Restrictions include without limitation and as further described in the Restrictions: 1. bedroom, bathroom house to be restricted to low/moderate income households for a period of 45 years. This Notice of Affordability Restrictions is being recorded for the purpose of providing notice only and it in no way modifies the provisions of the Restrictions. In the event of any conflict between this Notice and the Restrictions, the terms of the Restrictions shall prevail. EXHIBIT 1 25D-91 EXHIBIT K The Restrictions have been recorded concurrently herewith and shall remain in effect for forty-five (45) years, unless the Property is sold pursuant to the terms included in the Restrictions. This Notice is being recorded and filed by the Agency in compliance with Health and Safety Code sections 33334.3 and/or section 33413, as amended effective this date, and shall be indexed against the Agency and the Owner. IN WITNESS WHEREOF, the parties hereto have caused this Notice of Affordability Restrictions to be executed on the date set forth at the beginning of this Notice. COMMUNITY REDEVELOPMENT AGENCY of the City of Santa Ana a public body, corporate and politic By: Nancy T. Edwards, Interim Executive Director Community Redevelopment Agency APPROVED AS TO FORM: JOSEPH W. FLETCHER Agency General Counsel By: Lisa E. Storck, Assistant Counsel OWNER: By: EXHIBIT 1 25D-92 EXHIBIT L VICINITY HIRING REPORT Job/Position Dates Advertising Location Available/Posted Medium EXHIBIT 1 25D-93 EXHIBIT M ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: I . The City of Santa Ana located 20 Civic Center Plaza M-26, Santa Ana, California 92701; and their respective officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the Community Redevelopment Agency of the City of Santa Ana, 20 Civic Center Plaza (M-26), Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to this endorsement form as a part of Named Insured Countersigned by Authorized Representative EXHIBIT 1 25D-94 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FY 2011/2012 ALLOCATION AMENDMENTS t CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s' Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Approve the allocation amendments to the Fiscal Year 2011-2012 Community Development Block Grant Program (Exhibit 1). 2. Authorize the City Manager to submit the approved program to the United States Department of Housing and Urban Development for the City's Fiscal Year 2011-2012 allocation of Community Development Block Grant funds and execute the grant agreement with the United States Department of Housing and Urban Development (HUD). 3. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute memorandums of understanding with city departments and agreements with nonprofit agencies awarded funds as part of the approved program. DISCUSSION On April 18, 2011, the City Council approved the Fiscal Year 2011/2012 Community Development Block Grant (CDBG) program. At the time, the U. S. Department of Housing and Urban Development had not notified the City of the amount of funds to be received from this grant; therefore, the assumption of an 8% decrease in funding was utilized. The City has since received information about the actual grant funding for FY 2011/2012. The decrease is approximately 16.5% or $1,234,885 less than the 2010/11 funding levels. Based on the actual 2011/12 allocations, a recommendation to amend the approved CDBG program to the amounts listed below is proposed. 25E-1 CDBG FY 2011/12 Allocation Amendments June 20, 2011 Page 2 CDA-Administration Orange County Fair Housing Council PBA & CAO-Code Enforcement PRCSA-After School Tutoring PRCSA-Project PRIDE PRCSA-Senior Health and Nutrition Police Dept.-Helicopter Program Fire Dept-Truck Public Facility Improvements-Various Public Facility Improvements-4th and French Paint Your Heart Out CDA-Multi-Family Rehab Loans TOTAL 2011/2012 CDBG ALLOCATION 900,000 73,832 1,550,000 237,000 150,000 60,000 485,000 890,000 1,455,913 200,000 90,000 125,000 $ 6,216,745 Adjustments were made to the After School Tutoring, Project PRIDE and Helicopter programs in order to reduce the amount allocated to public services so that the City complies with the 15% statutory cap placed on such activities and to reflect the actual cost of the helicopter program. Additionally, an adjustment was made to the Fire Dept-Truck project to reflect the actual cost of the equipment. The balance of the adjustment was made to Public Facility Improvements-Various. FISCAL IMPACT Upon approval of the revised allocations, the approved Fiscal Year 2011-2012 Community Development Block Grant funds will be reduced by $583,255 in the CDBG Capital Programs account (no. 13518783-various). APPROVED AS TO FUNDS AND ACCOUNTS: Nancy . E ards Interim Exe tive Director Community Development Agency Francisco Gutierrez Executive Director Finance & Management Services Agency NTE/FH/mlr Exhibit: 1. 2011/12 CDBG Allocation Amendments 25E-2 O N N O O O O O O O O m O M O O O U) N W O M M O O 0000 O O O O O ' O r' N 000 00 O O 0000 O 00)0 ' O O O O N O M M O O r-O OLn - N OLnO 1. O Ld w W Or- r- Ln Ln ) 0000 MU M A LOO It 0) N N d O O U') U*) N O 00 qqT N L() N O O r 1- 1 N N d Ef3 EFT EFT EFT EfT EFT EFT EF} EFT EFT EFT EFT EFT EFT EfT EA EFT ER EFT O w a N qZ LL N TY ?V 0 0 N m 0 ? W Z ? W O? as 00 ? J aW W D Z D O U O O O O U7 O LL7 N ? Z N N Z 2 O O ' O O O N o% -o 1- Z N O CO co N U') ? N co Lo _ N J v W O Z U > cn? O LL a a EA EfT EFT v)- EFT V). EfT EFT EFT ER H9 EFT EFT 61 U)- 6F? EFT EA >- O N N O O 0000 O O co O co O O O 0 Co Z O M M O O 0000 O 0(00 CO O O O 0 N O 000 00 O O 0000 O OHO .- o o o 0 W J O M M O O Ln 1 O O 147 O ti O O Ln Ln C N Or- r- LO U7 M?O't 00 Oti0 r- O N co U 00 CA O U') U') N CO O O P- N O N O Z r r V (O o?DLi r ( Na O a V Q EFT EFT EfT EFT 64% EFT U). EfT EFT EFT EFT EFT EFT EFT EfT EF T EFT EFT F- N J N N Q ca Z W CD 0 00 N O [I- O ? (A p W N O 6R EFT EFT c c ca CL otS U O _ U (ten .E c O Q IL c .? ;° ad o C O (U ~ c ? 2' ° c r N 'C O NEU _Q N c a: ? c Q ? 0 Q 00 CD C) MOO O O O MC C O O O ? N O O CO O O ?COCOO M CO CO M ? CO ?- EFT EFT EFT EFT Es 61) EFT C N ° m N c ? W c o 7 a c U E (§ E 3 c Z `' H U 4 00 O -a ` JOR W =3 cc ? LU c O g O ? E 0 t U v U 4) U) u m .0 O r- r- C) Q IL Cn N CI) w C) 06 V w U) co a) O m ? W of W O 25E-3 0 LO LO O M co O co co 1-7 .;i Ln EFT EFT EFT EfT EFT c d .r_ E m > Uo - (0- .-w E O cu c 'c c v FT- Q n c V a) a) a) ? E E E 0 Q) (D CD d o 0 ~ 0 E aaa m E EE > j F • • , U U U E m i L C L L r ? ,U •U U .? a 7 a UL.L a- a_ d to O O O C) OOO C) O O U7 Ln 0 M (A 'V 04 N M m EFT EFT U, EFT Oil o a O (4 r d as c N O o J = c U ° 0? o E m N O d2F-LL C: ;r a O C Q O 'Fu a) 0 2 d W U xx w 25E-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: AGREEMENT FOR LAW ENFORCEMENT HELICOPTER SERVICES J CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement with the orange County Sheriff's Department for helicopter services, subject to non-substantive changes approved by the City Manager and City Attorney in the annual amount not to exceed $345,633. DISCUSSION In October 1994, the City of Santa Ana began participating in the Airborne Law Enforcement Services (ABLE) program. ABLE was a regional helicopter program, which combined resources from the City of Costa Mesa, the City of Newport Beach and the City of Santa Ana. On July 1, 2011, the ABLE program will cease to exist. Law enforcement helicopters allow the Police Department to provide a rapid enhanced response to incidents posing the greatest risk to the public, including: robberies, burglaries, assaults, and fleeing felons. Therefore, to continue this service the Police Department solicited proposals from various neighboring agencies. Four proposals were submitted, but one was withdrawn. After a review of the proposals, the Orange County Sheriff's Department's proposal was selected to enter into a contract for service. The helicopter operated by the Sheriff's Department contained more advanced equipment than the other agencies. Additionally, they were the only submittal that would include a City of Santa Ana Police Department staff member as part of the flight crew. The purpose of the contract with the Orange County Sheriff's Department is to provide helicopter services for the City of Santa Ana from July 1, 2011 through June 30, 2012. This program is being funded by the Community Development Block Grant (CDBG) Program and will comply with program regulations. In addition, the Santa Ana Police Department will provide one full-time sworn pilot/observer to the Orange County Sheriff's Department, which will partially be funded by CDBG for a total CDBG funding amount of $485,000. 25F-1 Agreement for Law Enforcement Helicopter Services June 20, 2011 Page 2 FISCAL IMPACT Funds are available in the FY 11/12 Community Development Block Grant Fund account (accounting unit 13518783-62300). APPROVED AS TO FUNDS AND ACCOUNTS: Paul M. Walters Chief of Police Police Department .p t Francisco Gutierrez Executive Director Finance & Management Services Agency ? t ?h C-Gt-C.cJ?-"ICJ Nancy T. E ards Interim Exe tive Director Community Development Agency EXHIBIT: 1. Agreement 25F-2 AGREEMENT FOR LAW ENFORCEMENT HELICOPTER SERVICES BETWEEN THE CITY OF SANTA ANA AND THE COUNTY OF ORANGE This Agreement is made by and between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, hereinafter referred to as "CITY", and the COUNTY OF ORANGE, a political subdivision of the State of California, hereinafter referred to as "COUNTY", based on the following: A. COUNTY, through its SHERIFF-CORONER (hereinafter referred to as "SHERIFF"), employs, maintains, trains and equips personnel capable of responding to requests for law enforcement helicopter services from ground based law enforcement personnel. B. CITY is responsible for providing law enforcement services within its jurisdiction, which include law enforcement helicopter services. C. The CITY, as an entitlement recipient and grantee of the United States Department of Housing and Urban Development ("HUD") Community Development Block Grant ("CDBG") Program, desires to enter this Agreement with the COUNTY for the expenditure of CDBG funds in accordance with Title 24, Part 570 of Code of Federal Regulations 24 CFR 570.000, et seq. ("CDBG Reg's"). D. COUNTY represents that it is not listed as debarred, is able and willing to provide such services to the CITY, and will comply with all applicable CDBG Reg's. E. COUNTY represents that it is qualified and willing to operate said services and COUNTY and CITY certify that the activities carried out with funds provided under this Agreement will meet one or more of the CDBG program's National Objectives (24 CFR Part 570.208). TERM This Agreement shall commence on July 1, 2011 and end on June 30, 2012, unless earlier terminated by either party. This Agreement is subject to renewal for successive one (1) year terms as mutually agreed to by the parties. PURPOSE 1.01 The purpose of this Agreement is to provide law enforcement helicopter services to CITY'S land and residents and for CITY to pay for the cost of the services provided by COUNTY. Page 1 of 7 25F-3 1.02 Nothing in this Agreement shall be interpreted to give CITY a right to services from COUNTY. COUNTY expressly retains all rights and powers to direct, manage, maintain, train, employ, equip, operate and control all equipment, facilities, properties and personnel in providing law enforcement helicopter services to CITY pursuant to this Agreement. CITY acknowledges and agrees that the efficient use of public safety helicopter services requires a timely and prioritized response of a helicopter. CITY agrees that COUNTY will have the sole discretion to determine the priority of calls for service and when an assignment of an air crew to a call will be terminated. 1.03 Notwithstanding anything in the Agreement to the contrary, the CITY expressly retains all rights and powers to direct, manage, maintain, train, employ, equip, operate and control all equipment, facilities, properties and personnel in providing ground based public safety services to its land and residents. COUNTY PROVIDED SERVICES 2.01 COUNTY will furnish the CITY with public safety helicopter services as more particularly set forth in Exhibit "A," attached hereto and incorporated herein by this reference. COUNTY and helicopter aircrews retain the sole and exclusive discretion as to the specific type, nature, timing and duration of the services performed pursuant to this Agreement. 2.02 In no event shall SHERIFF or the aircrew be responsible for the direction and control of ground based law enforcement personnel and equipment of CITY during the course and scope of the services performed pursuant to this Agreement. 2.03 Due to the source of funding, COUNTY agrees to comply with the applicable CDBG Reg's set forth in the CDBG ADDENDUM attached hereto and incorporated herein as Exhibit B. CITY DUTIES 3.01 CITY shall pay COUNTY as determined by COUNTY pursuant to Paragraph 4.01 of this Agreement, for services provided by COUNTY under this Agreement. The services performed by the SHERIFF helicopter shall commence as of the date and time the helicopter is dispatched to, or arrives over, the airspace of the CITY, whichever occurs first. These services shall continue until the aircrew notifies the CITY that the assignment is complete or that the assignment must be terminated due to a higher priority assignment. Services performed by SHERIFF helicopter for the CITY shall be defined as: A. A direct request for air support services by the CITY where a SHERIFF helicopter arrives over the incident as logged by the aircrew (operationally identified as Helicopter Assigned) or; B. Any public safety call generated by the CITY and monitored by a SHERIFF aircrew in which they arrive over the incident as logged by the aircrew (operationally identified as Call Monitored and Responded) or; Page 2 of 7 25F-4 C. Routine patrol over CITY's jurisdictional areas and observe an incident (operationally identified as Observation Response); or D. Dispatched to a special assignment (operationally identified as Detailed Assignment). The CITY may authorize its ground based public safety supervision to cancel any response by SHERIFF helicopter. 3.02 CITY agrees to comply with the Federal Aviation Regulations (FAR) Part 91 and SHERIFF's Operations Manual section 1.18.0 in making calls for services, which establishes priority for calls to SHERIFF. 3.03 CITY agrees to install within its communications/dispatch center any radio equipment necessary to communicate directly with SHERIFF on the designated "SHERIFF CALL" frequency (800 MHz Talk Group). All costs associated with said installation shall be paid by CITY. ANNUAL FLIGHT HOURS, COST AND PAYMENT 4.01 The COUNTY shall provide Three Hundred and Sixty-Six (366) flight hours to the CITY. Pursuant to Government Code Section 51350, CITY agrees to pay to COUNTY the full cost of performing the services mutually agreed upon in this Agreement. CITY shall pay COUNTY the annual operating cost as set forth in Exhibit "A," for Three Hundred and Sixty-Six (366) flight hours of service provided to CITY under this Agreement ("Contract Amount"). Any services in excess of Three Hundred and Sixty-Six (366) flight hours, on an annual basis, shall be billed at the hourly rate set forth in Exhibit "A." CITY shall not receive a refund if the total flight hours, on an annual basis, are less than Three Hundred and Sixty-Six (366) flight hours. Upon thirty (30) days written notice to CITY, COUNTY may adjust the hourly rate in Exhibit "A" based on COUNTY's annual operating cost and the average time per call. COUNTY will provide CITY with a monthly invoice that is one twelfth of the annual Contract Amount. CITY shall pay COUNTY the Contract Amount set forth in Exhibit "A" in accordance with COUNTY Board of Supervisors' approved County Billing Policy, which is attached hereto as Exhibit "C." 4.02 COUNTY will provide the CITY with a monthly service statement detailing all calls for service and time spent on routine patrol over the CITY's jurisdiction as provided by SHERIFF aircrews. The CITY shall notify the SHERIFF's Special Enforcement Bureau Commander within ten (10) days of receipt of the monthly statement of any disputed calls for service. The Special Enforcement Bureau Commander and the CITY Supervisor will review the service provided by SHERIFF on a monthly basis to ensure that it coincides with the service level as set forth in Exhibit "A." The Special Enforcement Bureau Commander will be responsible for resolving disputes and adjusting service levels to coincide with Exhibit "A." Page 3 of 7 25F-5 INDEMNIFICATION 5.01 CITY agrees that COUNTY should be fully protected from any loss, injury, damage, claim, lawsuit, cost or expense arising out of, or in any way related, to the performance of services pursuant to this Agreement. Accordingly, the provisions of this Agreement should be construed and interpreted to provide the fullest possible protection to COUNTY. CITY acknowledges that COUNTY would not provide services in the absence of the commitments of CITY as specified in this Agreement. 5.02 To the fullest extent permitted by law, CITY shall defend at its expense including attorney's fees and with counsel approved in writing by COUNTY, indemnify and hold harmless COUNTY and its officers, employees, and agents (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate directly or indirectly to any services provided under this Agreement including, but not limited to, activities that relate in any way to this Agreement including the negligent and/or willful acts, errors and/or omissions of CITY, its elected and appointed officials, officers, agents, employees, subcontractors or independent contractors. Notwithstanding the foregoing, nothing herein shall be construed to require CITY to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. 5.03 COUNTY shall defend at its expense including attorney's fees and with counsel approved in writing by CITY, indemnify and hold harmless CITY and its officers, employees, and agents with respect to any claim, loss, liability, damage, lawsuit, cost or expense that arises out of, or is in any way related, to the sole negligence or willful misconduct by COUNTY, its elected and appointed officials, officers, agents, employees, subcontractors or independent contractors. 5.04 If judgment is entered against CITY and COUNTY by a court of competent jurisdiction because of the concurrent active negligence of either party, CITY and COUNTY agree that liability will be apportioned as determined by the court. Neither party shall request a jury apportionment. MISCELLANEOUS PROVISIONS 6.01 Each party to this Agreement shall immediately notify the other of any litigation or claim that is asserted by or against either party regarding this Agreement. 6.02 The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. Page 4 of 7 25F-6 6.03 If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this agreement shall continue in full force and effect. 6.04 This Agreement may be modified or amended only by a written document executed by both COUNTY and CITY. 6.05 The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 6.06 This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 6.07 A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 6.08 Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred, contracted or subcontracted out without the prior written approval of COUNTY and CITY. 6.09 All notices authorized or required by this Agreement shall be effective when written and deposited in the United States mail, first class postage prepaid and addressed as follows: CITY: City of Santa Ana - Clerk of the Council 20 Civic Center Plaza (M-30) Santa Ana, CA 92702 With Courtesy Copy: ATTN: CHIEF OF POLICE - City of Santa Ana 60 CIVIC CENTER PLAZA SANTA ANA, CA 92702 Page 5 of 7 25F-7 COUNTY: ATTN: LAW ENFORCEMENT CONTRACT MANAGER SHERIFF-CORONER DEPARTMENT 320 N. FLOWER STREET, SUITE 108 SANTA ANA, CA 92703 Termination notices shall be effective when written and deposited in the United States mail, certified, return receipt requested and addressed as above. Page 6 of 7 25F-8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in the County of Orange, State of California. CITY OF SANTA ANA DATED: Paul Walters, Interim CITY MANAGER City of Santa Ana COUNTY OF ORANGE DATED: BY: ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Lisa E. Storck, Assistant City Attorney Chair of the Board of Supervisors Signed and certified that a copy of this document has been delivered to the Chair of the Board per G.C. Sec. 25103, Resolution 79-1535 Attest: Darlene J. Bloom Clerk of the Board of Supervisors Orange County, California APPROVED AS TO FORM: Office of the County Counsel Orange County, California BY:,' Deputy RECOMMENDED FOR APPROVAL: Paul Walters Chief of Police RECOMMENDED FOR APPROVAL: Sandra Hutchens Sheriff-Coroner Page 7 of 7 25F-9 25F-10 EXHIBIT "A" The fees set forth in this exhibit represents the total cost of service provided by the COUNTY, through its SHERIFF-CORONER (SHERIFF), to the City of Santa Ana, referred to herein as CITY for fiscal year 2011-12. ANNUAL OPERATING COST JULY 1, 2011 THROUGH JUNE 30, 2012 $345,632 HOURLY RATE FOR HOURS IN EXCESS OF THREE HUNDRED AND SIXTY-SIX (366) FLIGHT HOURS BETWEEN JULY 1, 2011 THROUGH JUNE 30, 2012 $944.35 The annual operating cost shall be divided into twelve equal monthly payments of $28,802.66 ($345,632 divided by 12 months). PERIOD COVERED - July 1, 2011 to June 30, 2012 (twelve-month term). Total Contract Amount For Services $ 345,632 Contracted Hourly Rate for Hours in excess Of Three Hundred and Sixty-five (365) hours annually $ 944.35 Annual Flight Hours 366 Flight Time Per Day (in minutes) 00:60 Management of flight time provided to the CITY shall be the responsibility of the SHERIFF's Special Enforcement Bureau Commander. Flight time over the City will be recorded and monitored daily for the purpose of providing service in accordance with the above table. The CITY will be provided with a detailed log of calls and flight time for each monthly billing period. Due to the inherent unknown nature in the need for airborne law enforcement service, SHERIFF will adjust daily service levels to coincide with the above table. In recognition that it will not always be possible to meet this goal (by either exceeding or failing short), SHERIFF will compensate for variations to arrive at an appropriate "daily average," on a monthly basis. Exhibit A Page 1 of 1 25F-11 25F-12 EXHIBIT B ADDENDUM CONTAINING CDBG REQUIREMENTS FOR HELICOPTER SERVICES AGREEMENT Pursuant to 24 CFR 85.36(1) Contract provisions. COUNTY hereby agrees that the Agreement for Helicopter Services must contain the following provisions with which it shall comply: 1. Record Keeping/Reporting. County shall keep and maintain complete and adequate records and reports to assist City in meeting and maintaining its record keeping responsibilities under Title 24, Part 570 of Code of Federal Regulations 24 CFR 570.000, et seq. 2. Access to Records. City and the United State Government and/or their representatives shall have access for purposes of monitoring, auditing, and examining County's activities and performance, to books, documents and papers, and the right to examine records of County's subcontractors, bookkeepers and accountants, employees and participants in regard to said program. City and the United States Government and/or their representatives shall also schedule on-site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder are conducted or in which any of the records of County are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. 3. Location of Records/Required Length of Record Keeping. All accounting records, reports, and evidence pertaining to all costs, expenses and the funds received by County and all documents related to this Agreement shall be maintained and kept available at County's office or place of business for the duration of the Agreement and thereafter for five (5) years after completion of an audit in conformity with the CDBG Reg's. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which City or any other governmental agency takes exception, shall be retained beyond the five (5) years until complete resolution or disposition of such appeals, litigation claims, or exceptions. In the event County does not make the above-referenced documents available within the city of Santa Ana, California, County agrees to pay all necessary and reasonable expenses incurred by City in conducting any audit at the location where said records and books of account are maintained. 4. Drug Free Workplace. County certifies that it has established the following drug free workplace policy: 1. The unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the workplace for any employee involved in a federally funded program. 2. As an employee working in conjunction with a federally funded program, the employees of County will be required to: a) Abide by the terms above in statement 1. b) Notify appropriate officials of County and City officials of any criminal drug statute conviction for a violation occurring in the workplace not later than five days after such conviction. 3. The City and the United State Department of Housing and Urban Development will be notified within ten days after receiving notice of any such violation. 4. Within 30 days of receiving such notice, appropriate personnel action will be taken against such employee, up to and including termination. Each such employee shall be required to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement, or other appropriate agency. Page 1 of 2 25F-13 5. Nondiscrimination. County agrees that no person on the ground of race, age, color, national origin, religion, disability or sex will be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds received pursuant to this Agreement. County affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 6. Assignability. None of the duties of, or work to be performed by, County under this Agreement shall be subcontracted or assigned to any agency, County, or person without the prior written consent of City. County must submit all subcontracts and other agreements that relate to this Agreement to City. No subcontract or assignment shall terminate or alter the legal obligations of County pursuant to this Agreement. 7. Termination. A. This Agreement may be terminated on thirty (30) days' written notice by either party. In the event of such termination, County shall only be entitled to reimbursement for approved expenses incurred to the effective date of termination. B. This Agreement may be suspended or terminated by City upon five (5) days' written notice for violation by County of Federal Laws governing the use of Community Development Block Grant Funds. In the event of such suspension or termination, County shall only be entitled to reimbursement for approved expenses incurred up to the effective date of suspension or termination. C. Pursuant to 24 CFR 85.43, in the event County defaults by failing to fulfill all or any of its obligations hereunder, City may declare a default and termination of this Agreement by written notice to County, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of such notice, unless such default is cured before the effective date of termination stated in such notice. If terminated for cause, City shall be relieved of further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by City in obtaining substitute performance. D. The grant of funds under this Agreement may be terminated for convenience in accordance with 24 CFR 85.44. 8. Good Standing. Contractor shall be in good standing, without suspension by the California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in the corporate status or suspension of County shall be reported immediately to CITY. Page 2 of 2 25F-14 EXHIBIT C COUNTY BILLING POLICY APPROVED BY BOARD MINUTE ORDER DATED OCTOBER 27, 1992 POLICY All County agencies/departments/districts (County) governed by the Board of Supervisors shall bill contracting entities for materials and/or services provided under contract in accordance with the following standardized billing and collection policy. Billing frequency is dependent on whether the contract is a fixed price or actual cost contract. Payment due date is designed to be both responsive to the County's cash flow needs and reasonable enough as to not require special processing by the contracting entity. If payments are not received by the required due dates, a late payment fee shall be computed and billed to the contracting entity in accordance with the requirements of this procedure. Nothing herein shall affect the liability, including pre-judgment interest, of the contracting party for services or materials in as much as this is a policy to enact standard billing practices. II. DEFINITIONS A. Contract for the purposes of this policy - A contract is a formal written agreement, a purchase order from the contracting entity, or any other acceptable mutual understanding between the contracting parties. B. Received by the County - The phrase "received by the County", as used in Section VI of this policy, refers to the date a payment is received by the County. It is defined as the date the payment is in the County's possession. It is not the date the payment is posted or deposited by the County. III. FIXED PRICE CONTRACTS A. Fixed Price (One-Time/Non-Recurrinq Contracts) - Invoices that represent a billing for a one-time, non-recurring provision of materials and/or services shall be issued no later than five (5) working days after delivery by the County of the materials and/or services. Examples of such one-time, non-recurring provision of materials and/or services might be a city contracting with the Sheriff for security service at a parade or sporting event; or, a city purchasing a computer listing containing certain city-requested data. Payment due date shall be invoice date plus 30 days. B. Fixed Price (Ongoing/Recurring Contracts) - Invoices that represent a billing for an ongoing, recurring provision of materials and/or services shall be issued according to the following frequency: 1. Annual Billings that total $10,000 or less per 12-month period shall be billed via one (1) annual invoice. Annual invoices will be issued for each 12-month period of the contract, or portions thereof. Invoices shall be issued no later than five working days after the beginning of each 12-month period. Payment due date shall be invoice date plus 30 days. Page 1 of 4 25F-15 2. Quarterly Billings that are greater than $10,000 but not more than $200,000 per 12- month period, shall be billed in quarterly installments. Quarterly invoices will be issued representing the contract amount for each 12-month period of the contract, or portions thereof, prorated into four (4) installments. Invoices shall be issued no later than 30 days after the beginning of each quarter. Payment due date shall be 60 days after the beginning of each calendar quarter. 3. Monthly Billings that are greater than $200,000 per 12-month period shall be billed in monthly installments. Monthly invoices will be issued representing the contract amount for each 12-month period of the contract, or portions thereof, prorated into 12 installments. Invoices shall be issued on or before the first day of each service month. Payment due date shall be 30 days after the beginning of each service month. An example of a fixed price contract for ongoing, recurring provision of materials and/or services might be a city contracting with the Sheriff for law enforcement services. IV. ACTUAL COST CONTRACTS A. Actual Cost (One-Time/Non-Recurring Contracts) - Invoices that represent a billing for a one-time, non-recurring provision of materials and/or services shall be issued after delivery by the County of the materials and/or services and no later than 15 days after actual cost data is available. Payment due date shall be invoice date plus 30 days. B. Actual Cost-(-on-going/Recurring Contracts) - Invoices that represent a billing for an ongoing, recurring provision of materials and/or services shall be issued on a monthly basis and shall represent the cost of materials and/or services provided to the contracting entity during the previous calendar month. Such invoices shall be issued no later than 15 days after the close of the monthly billing period. If the County agency/department/district does not utilize a monthly billing cycle, the invoice shall be issued no later than 15 days after actual cost data is available. Payment due date shall be invoice date plus 30 days. Examples of actual cost contracts for the ongoing, recurring provision of materials and/or services might be a city contracting with the County for communications equipment repair or waste disposal at a County landfill. V. PAYMENT DUE DATES Notwithstanding the provisions of Sections II and III above, payment due date shall be at least invoice date plus 30 days. If the County is late in issuing an invoice, the contracting entity would always have at least invoice date plus 30 days to pay. If the County is early in issuing an invoice, the contracting entity would still have a payment due date of either 60 days after the beginning of the quarter (quarterly invoices) or 30 days after the beginning of the service month (monthly invoices). (EXAMPLES: An invoice for October service, dated and issued October 8 (late) would have a payment due date of November 7. An invoice for August service, dated and issued July 20 (early) would have a payment due date of August 30.) Page 2 of 4 25F-16 VI. LATE CHARGES The late payment of any invoiced amount by a contracting entity will cause the County to incur costs not contemplated by the County/contracting entity agreement, the exact amount of such cost will be extremely difficult to ascertain. Such costs include, but are not limited to, costs such as administrative follow-up and processing of delinquent notices, increased accounting costs, etc. Late charges will be assessed in the following situations: - Over-the-counter payments will be assessed a late charge if any payment is not received by the County by the payment due date. - Payments transmitted to the County via the U.S. Mail that have the payer's postage meter mark will be assessed a late charge if any payment is not received by the County by the payment due date plus one day. - Payments transmitted to the County via the U.S. Mail that have a U.S. Post Office postmark dated after the payment due date will be assessed a late charge. The late charge assessed in each of these situations shall be three-quarters of one percent (0.75%) of the payment due and unpaid plus $100.00 for late payments made within 30 days of the payment due date. An additional charge of three-quarters of one percent (0.75%) of said payment shall be added for each additional 30-day period that the payment remains unpaid. Late charges shall be added to the payment and invoiced to the contracting entity in accordance with this policy. VII. COLLECTIONS Any invoice remaining unpaid 90 days after the invoice date shall be referred to the Auditor- Controller for subsequent collection action, such as deduction from contracting entity moneys on deposit with the County Treasurer in accordance with Government Code Section 907 and any other applicable provision of law. Non-payment of invoices and applicable late charges will constitute a breach of contract for which the County retains all legal remedies including termination of the contract. VIII. DISCOUNT FOR EARLY PAYMENT Any payment received by the County from a contracting entity 20 days or more before the payment due date shall be entitled to a discount of one-quarter of one percent (0.25%). If the contracting entity takes a discount, and the payment is received by the County less than 20 days before the payment due date, County staff shall immediately notify the contracting entity by telephone that the discount should not have been taken and that the balance is due by the original payment due date. If the balance is not received by the County in accordance with the dates as specified in Section VII, applicable late charges shall be calculated on the balance due. Page 3 of 4 25F-17 IX. DEFERRED REVENUE At fiscal year end, any portion of revenue invoiced (not necessarily received) during the fiscal year being closed out that represents charges or prepayment for materials and/or services for the upcoming fiscal year shall be reclassified from a revenue account to a deferred revenue account (liability). In the new fiscal year the deferred revenue shall be reclassified to a revenue account. (EXAMPLE: On June 1, 19X1, a city is invoiced $48,000 which represents charges for the 12-month period June 1, 19X1 to May 31, 19X2. The amount to be reclassified to deferred revenue would be $44,000, representing 11/12ths of the total amount. In July 19X1, the $44,000 would be reclassified to revenue.) Reclassification entries shall be made by Auditor-Controller Agency Accounting units, or for those agencies/departments/districts without such a unit, the agency/department/district shall notify the Auditor-Controller of the amounts to be reclassified. X. COST RECOVERY All County agencies/department/districts shall include all costs of providing contracted services in contract rates. Including all direct costs, allocated indirect costs such as departmental and County (CWCAP) overhead, and cost of capital financing. XI. EXISTING CONTRACTS Billing terms and provisions contained in existing contracting entity agreements (existing as of the date this policy is approved by the Board of Supervisors) shall remain in effect for the life of the contract. However, when these existing contracts are renegotiated, they shall contain the billing provisions as set forth in this policy. XII. DEVIATIONS FROM POLICY Deviations from this policy shall be approved by the Board of Supervisors. Proposed deviations by agencies/departments/districts shall be submitted to the CEO for concurrence in advance of filing an Agenda Item Transmittal (AIT) with the Clerk of the Board. The CEO, or his/her designee, shall advise the agency/department/district of approval or disapproval of the proposed deviations. If a County agency/department/district submits a contract to the Board of Supervisors for approval, and the billing provisions in the contract deviate from this policy, the agency/department/district shall specifically advise the Board of Supervisors in the AIT of the deviation, the reason for the deviation, and of the CEO's recommendation relative thereto. Page 4 of 4 25F-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: MODIFICATIONS TO CONDITIONAL USE PERMIT NO. 1996-30 FOR THE VELVET LOUNGE LOCATED AT 416 WEST FOURTH STREET - JASON KORDAS, APPLICANT CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Receive and file the staff report approving modifications to Conditional Use Permit No. 1996-30 as conditioned. PLANNING COMMISSION ACTION On May 23, 2011, the Planning Commission adopted a resolution approving Conditional Use Permit No. 1996-30 as conditioned by a vote of 7:0 to allow expansion into the basement level and allowing entertainment seven days a week between the hours of 7:00 a.m. to 2:00 a.m. for the Velvet Lounge located at 416 West Fourth Street in the Specific Development No. 84/Transit Zoning Code-Downtown (SD84/Transit Zoning Code-Downtown) zoning district. The Planning Commission added a condition to limiting entrance into the establishment after 10:00 p.m. to those persons 18 years of age and older, as outlined in the attached staff report (Exhibit A). FISCAL IMPACT There is no fiscal impact associated with this action. q?-? Jay Trevino Executive Director Planning & Building Agency SK: rb skVeportslcup963o mod.Velvet Lounge= Exhibit: A. Planning Commission Staff Report 31A-1 31A-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: MAY 23, 2011 TITLE: PUBLIC HEARING - MODIFICATIONS TO CONDITIONAL USE PERMIT NO. 1996-30 FOR THE VELVET LOUNGE LOCATED AT 416 WEST FOURTH STREET, JASON KORDAS, APPLICANT Prepared by Sergio Klotz PLANNING COMMISSION SECRETARY APPROVED ? As Recommended ? As Amended ? Set Public Hearing For DENIED ? Applicant's Request ? Staff Recommendation CONTINUED TO Executive Director Planning Mana r RECOMMENDED ACTION Adopt a resolution approving modifications to Conditional Use Permit No. 1996-30 allowing expansion into the basement level and entertainment seven days a week between the hours of 7:00 a.m. to 2:00 a.m. as conditioned. Request of Applicant Jason Kordas, the applicant for the Velvet Lounge, is requesting approval of two modifications to the conditions of approval for Conditional Use Permit No. 1996-30, which allowed for a Type 47 ABC license. Specifically, the applicant is requesting to allow for entertainment to be offered seven days per week instead of being limited to Friday and Saturday as currently conditioned, and to allow for the entertainment hours to extend until 2:00 a.m. instead of 10:00 p.m. as currently conditioned. The applicant is also requesting to expand the restaurant operations into a basement area of the restaurant that was originally planned as a wine cellar/dining area. Project Location and Site Description The Velvet Lounge will occupy the space of the former Jason's restaurant on the first floor of an existing two-story, multi-tenant building located on the south side of West Fourth Street, between Birch and Ross Streets. The site contains an 8,356 square foot building that was constructed in approximately 1922. The first floor consists of an existing restaurant space, second floor with professional offices and storage within the basement level. In addition, the applicant will be utilizing an existing 830 square foot outdoor patio located along the front entrance facing Fourth Street. The site has no on-site parking, but utilizes the public parking garage at Third and Birch Streets. The site is surrounded by commercial and office uses to the east and west; the Ronald Reagan Federal Courthouse to the north; and a parking structure, surface parking lot and Birch Park to the south (Exhibits 1 and 2). 2 31A-3 Modification to CUP No. 96-30 May 23, 2011 Page 2 Protect Description The Velvet Lounge is an independently operated restaurant and lounge that offers dining and entertainment to its patrons. The operation will offer dining until approximately 9:00 p.m. and then shift to a club/entertainment venue with a more limited menu, as well as entertainment and dancing. Entertainment will include DJ, karaoke, live band, cabaret theatrical performances and vocal impersonator reviews. Dancing anticipated will include public dancing along with employed dancers located throughout the establishment. Any dancing component of the business would be required to comply with Chapter 11 - Dancing of the SAMC. The requested modifications to the existing CUP would allow the applicant to offer entertainment seven days per week, instead of the permitted two (Friday and Saturday), extend the hours of entertainment until 2:00 a.m. to coincide with their hours of operation and expand the restaurant into a basement area of the restaurant. The storage area for the alcoholic beverages will be located on the first floor. A total of 67 square feet will be utilized for alcohol storage as dry, cold and display areas. The overall storage of alcoholic beverage consists of approximately 1.1 percent of the floor area and is less than five percent of the gross floor area of the restaurant as required by the City's policies for gross floor area dedicated to alcohol storage (Exhibit 3). Proiect Backaround The building located at 416 East Fourth Street began its life as the home of an Army Supply Store in 1922. Over the years it housed the West Fourth Street Furniture Exchange, the Cotton King & Queen Variety Goods Store, a custom framing store, auction house, and second-hand store before it was almost completely reconstructed in the early 1980's and the lower floor was improved as a restaurant. Since that time it has housed a number of eating establishments, as well as a variety of office tenants on the upper floors. In 1996, the Boardwalk Restaurant was granted a conditional use permit (CUP No. 1996-30) allowing alcohol service within an existing eating establishment. In 2005, the Boardwalk Restaurant was granted an amendment to the conditional use permit changing some conditions of approval allowing for operations until 2:00 am on Fridays and Saturdays; dancing; up to six musicians with amplified instruments; and a wine cellar within the basement. The limitation in hours was approved at the request of the applicant due to the fact that their business model did not include a large entertainment component. Conditions were imposed to ensure that the eating establishment would operate in concert with the surrounding uses. The conditions that were imposed were intended to mitigate potential impacts created by the use and help to ensure the use would not negatively affect the surrounding community. 31A-4 Modification to CUP No. 96-30 May 23, 2011 Page 3 These conditions have been applied to all eating establishments requesting alcohol sales. More specifically, all of the establishments within the downtown area have received similar conditions allowing alcohol sales, entertainment, and late night hours of operation. Similar establishments include Bistro 400, Memphis, Gypsy Den, Lola Gaspar, Chapter One, and The Crosby. Some, like Conditional Use Permit No. 1996-30, have conditions limiting their operation merely due to the request submitted with that particular application (Exhibit 4). In 2006 Jason Kordas assumed the lease of the restaurant space and opened Jason's, a full-service restaurant and catering business. In recent years Mr. Kordas has focused more on the catering side of his business using the existing kitchen and dining space, and the public aspect of the restaurant was closed. Mr. Kordas will continue to oversee and run the dining portion of the Velvet Lounge operation. General Plan and Zonina Consistency The General Plan land use designation for the site is District Center (DC). District Center districts provide highly visible and accessible commercial development within the City's major development areas such as the downtown area and along the City's arterial transportation corridors. These districts also provide important neighborhood facilities and services, such as this restaurant. The project site is consistent with this General Plan land use designation. The zoning for the site is Specific Development No. 84 (SD-84/Transit Zoning Code). The project is further located within the Downtown district. The Downtown district allows for retail and service uses such as restaurants, making the proposed use consistent with the zoning code. Project Analvsis Conditional Use Permit requests are governed by Section 41-638 of the SAMC. Conditional Use Permit requests may be granted when it can be shown that the following can be established: • That the proposed use will provide a service or facility which will contribute to the general well being of the neighborhood or community. • That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. • That the proposed use adversely will not affect the present economic stability or future economic development of properties surrounding the area. • That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. 31A-5 Modification to CUP No. 96-30 May 23, 2011 Page 4 • That the proposed use will not adversely affect the General Plan of the city or any specific plan applicable to the area of the proposed use. If these findings can be made, then it is appropriate to grant the conditional use permit amendments. Conversely, the inability to make these findings would result in a denial. Using this information staff has prepared the following analysis, which, in turn forms the basis for the recommendation contained in this report. In analyzing the conditional use permit amendment request, staff believes that the following findings of fact warrant approval of the conditional use permit. The proposed alcohol beverage license will continue to provide an ancillary service to the restaurant customers by allowing them the ability to purchase beer, wine and distilled spirits with their food. This will thereby benefit the community by providing a restaurant with an additional and complementary food-related amenity. Conditions have been placed on the alcoholic beverage control license which will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. • The proposed amendments to the on-sale consumption of beer, wine and distilled spirits at this location will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the alcoholic beverage control license that will mitigate any potential negative or adverse impacts created by the use. • The proposed use will not adversely affect the economic stability of the area, but will instead allow the restaurant to compete with other restaurants in the area that also offer alcoholic beverages for sale to their guests and other visitors. It is anticipated that the addition of a restaurant to the downtown area with evening entertainment will provide an additional dining and entertainment option for patrons. As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant selling alcohol pursuant to Chapter 41 of the Santa Ana Municipal Code and the guidelines established by the Planning Commission for restaurants selling alcohol with their meal. The facility continues to contain the kitchen equipment necessary to be considered a bona fide restaurant use and maintain a restaurant related alcoholic beverage control license. Additionally, the restaurant will utilize less than five percent of the gross floor area for the storage of alcoholic beverages, which is below the maximum threshold established by the Planning Commission. • The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. A restaurant with an ancillary alcohol license provides a dining service to the residents of Santa Ana. 31A-6 Modification to CUP No. 96-30 May 23, 2011 Page 5 Police Deaartment Analvsis The Police Department reviews conditional use permit applications for the sale of alcoholic beverages because there is a strong correlation between the availability of alcohol and crime. Studies have shown that alcohol is a contributing factor in crimes, such as drunk driving, fatal traffic collisions, homicide, assaults, rape, domestic violence, drunk in public and other nuisance type of offenses. Without stringent controls to address the location of alcohol outlets, there is a strong likelihood that an overconcentration will create blight and adversely impact the community. The approval of a license in an area deemed over concentrated and high in crime may affect the quality of life and police resources in the area, and aggravate existing conditions. Since the City's overconcentration standards do not apply to on-sale establishments, the Police Department considered two factors when reviewing this application, crime rate and sensitive land uses. The Police Department has determined that this establishment is located in an area that is above average in police-related incidents. This site is located within Reporting District No. 165, which ranks 5th out of 102 citywide districts in total number of police-related incidents. In terms of land uses, there is a public park and senior residential tower located within 500 feet of this proposed use. Loud music or noise may impact those residents. Based on the above average crime rate, the Police Department recommends approval of the CUP amendment provided that conditions are imposed to ensure that this location operates as a bona fide eating establishment and does not aggravate existing conditions or negatively impact adjacent land uses. Public Notification The project site is located within the boundaries of the Downtown Association. The president of the Association was notified by mail 10 days prior to this public hearing. In addition, separate meetings with Tish Leon, neighborhood representative for the residential project immediately south of the project site, as well as Latino Health Access, who recently took ownership of the building immediately to the west of the subject property, were held to ensure that they were noted of the project and to see if there were any areas of concern. No areas of concern were identified by the Neighborhood Association representative, nor was there a request that the applicant present the project to a meeting of their members. Latino Health Access was concerned with adequate security due to some of the evenings programs conducted. The project site itself was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to all property owners within 500 feet of the project site. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. 31A-7 Modification to CUP No. 96-30 May 23, 2011 Page 6 CEGA Compliance This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The recommendation is exempt from further review pursuant to Section 15301. This Class 1 exemption applies to alterations to an existing operation or facility with negligible expansion. Categorical Exemption Environmental Review No. 2011-44 will be filed for this project. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve the modifications to Conditional Use Permit No. 1996-30 as conditioned. Sergio Klotz, AICP v Principal Planner SK:jm Wreportstup96-30 mod.Velvet Lounge.5.23.11.pc Attachments: Exhibit 1 - Vicinity Map Exhibit 2 - Land Use Map Exhibit 3 - Floor Plan Exhibit 4 - Matrix 31A-8 ' tis?o FIRST SEVENTEENTH ST. st0 2a-J Ilsm I U l_J%_ __ c LJ I I IJ t LJ I I I Li L_ t--_.-_- - - + n.e.m SPA Cl ]Rl' Cl Cl Cl SP-3 SP-3 SP-3 R1 +r Rl Rl wr R3- R3- R3- sr Rl Rj NON HDR HDO R3- R)- , Sp RI ^ wr loi w? .3 RI Li/f HD O ?p' nr R2 O R2 Rl RI RI Rl Rt q2 R3- R3- 11 How R} SP j SP-3 SP-3 HOD Har `e ! r t r7 ,w1ws ' e N R2 R2 R2 P P R2 -3 3 L b ?i RI Rl R7 Rl RI oz R2 R2 ? ? D P R2 $R3 SO- SP-3 IL 75 SP R1 R1 RI P Pa R2 R2 L -1 SP-3 Rl P I R1 ]Rl R7 et o P D ? P P P-3 SP-3 SP-3 GC GC oCH L ODi ?m [ I SP I R2 ? P m DT Dr D O OS Dr or SD43 o- )9 P T ? cl IK D7 r-011 , i W10 nLf4 p io 5D_20 SD-20 P ' - - - - - CIVICQIfIFA oR I W-1 P P ¦ ? c guy C4 R1 RI ? ? GC I ? ]GC D ?L? ? r ?i SP.I i ? III. L Al 53W6NLAC7<i0.1L7lR4LT OR 00MMf3Y7nLFESDF3JTIAL RI 9NG1.ERS1AILYRESDBdML CM ra11TOteJ3rimsnsillssvlLUC1E Pm plnNNtiD oDMMUN7nDas»Rlaar s' spF3711CPLAN -B HIRONGMODIFiGlION OC O066iANF3lTt>3flH2 RZ 1V10FP3AILYf>1390BdCE C9d 00MMF3'Y2AL9JllIHMAIN Mi UCMINDU6lFiAL Ri MUL1IRED8491YMULIFLE CI 00MMUNIT/07MMHY3AL M2 H6AWINDUSIRAL FAMILYfi33DF3J(E C1-MD ODMM.OCMMF3i7AUMUSEL1M01SlRCT MO MIIfWNOF8MM710NS Fit 57.084NAR4RfMBd15 C2 Ce*i4LOCMAAFfC]AL 0 OF813i1CE FE Fi®DBdf1ALWNlE C3 03fiR4L919NEES P gCFESSgL1L 91 S-10ACDBA3I)RdW G RANJ®910tiiNGCBlIH2 Fib RANII®Fi®OBlIIALOFi!9.OFMF3JT CS ARI6iALOCMNiF37<14L CUP 1996-30 MODIFICATION A VELVET LOUNGE RESTAURANT c9,, 416 WEST FOURTH STREET - - =500 FEEr 1" = 1000 F73=T P L A N N I N G A N D B U I L D I N G A G E N C Y VICINITY MAP EXHIBIT 1 31A-9 5TH STREET LH- W w V Lu Q ? a ?. N z w a O 4TH STREET F- J W a C M RCIA w COMMERCIAL z O LA COMMERCIAL w LL O = a N PUBLIC PARKING U N GARAGE O m CUP 1996-30 MODIFICATION VELVET LOUNGE RESTAURANT I? 416 WEST FOURTH STREET P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31 A-10 in N WEST 4TH STREET W 'Y in N EXHIBIT 3 Page 1 of 4 31 A-11 y 3 N r ? Z ? o LOLZ6 b'.'? HNb' b?1N`dS 'I S Hlt?1S3M 9 LI RR U9 P 71 ? 3omnwi JAXIMn -ro ?aE --- ci t "T" ------ - --- a# a _ o HA.? att: A 933 7 ?? 9 1II? 111 ' 0 ©1 i c? z z 0 z n 8 LL Z b u? Page 2 of 4 31 A-12 t c? L _ H w G <?< n? LO/-Z6 VO 'VNV V1NVS 0 Rm ona 4?ao N + ¢ U < 1S Hlb 1S3M 9 Lb r R a a ° Q U. momnoi ANAIMA W A= w G71S? ICA! gig 161 fin I 01 0 a y z U. o t z b W Page 3 of 4 31 A-13 , ® Fii H + Q < `? L04M `d0 VNV ` INVS 'IS H1b 1S3M 9 t, o o R o ? B i a a M ° W s L 3oNno7 JAA73n 3f ?m Q I m° Q u ?b b Y z ec @ ? S {_ uJ .'u ua u err } u? n ll ?? o _ n n u v? ?o f n 1 4$? . - n 1 $ M r r n - u4 I - ? 1 r1-1 E?- pig i Fb?iawb s left Wy 118 ; 5? 1 _ .7 1 S I G? o aW ed 1 " I I t- I a Page 4 of 4 sn ? Aa s rrr r . ? Wit Nil I M O Po I ZI N - 5 W A8 6??7 [Jill ©ll SI 4 K 9I LL Z s W W-? 31A-14 a py ^ x X x X O y a x x x x x >? x X X U U ?? L?+ ?R, o kn b 0 .r O ? v3 o id W 3 3 0 0 .? • W > 'd 3 bq a O O pUp 0 bA U v? N c? O O , U N w M f F [? 0 a 0 ? 0 ? 0 ? 0 a 0 a ?° o : :?+ ? a ? a, ? 3 a 3 a 0 A b p a b 3 A 0 EXHIBIT 4 31 A-15 h Q' 31 A-16 ROH - 05/23/11 RESOLUTION NO. 2011-10 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA MODIFYING CONDITIONAL USE PERMIT NO. 1996-30 AS CONDITIONED FOR THE PROPERTY LOCATED AT 416 WEST FOURTH STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of modification to Conditional Use Permit No. 1996-30 to allow expansion into the basement level and entertainment seven days a week between the hours of 7:00 a.m. to 2:00 a.m. as conditioned, for the Velvet Lounge located at 416 West Fourth Street. B. In 1996, the Planning Commission of the City of Santa Ana approved Conditional Use Permit No. 1996-30 as conditioned allowing alcohol service within an existing eating establishment. C. Santa Ana Municipal Code Section 41-196 and 41-638 authorizes the Planning Commission to modify a conditional use permit upon making certain findings. 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or the community? The proposed conditional use permit modifications will continue to provide an ancillary service to the restaurant customers by allowing them the ability to purchase beer, wine and distilled spirits with their food. This will thereby benefit the community by continuing to provide a restaurant with an additional and complementary food-related amenity. Conditions have been placed on the alcoholic beverage control license which will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed amendments to the existing conditional use permit for the on-sale consumption of beer, wine and distilled spirits at the restaurant will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the alcoholic Resolution No. 2011-10 Page 1 of 9 31 A-17 beverage control license that will mitigate any potential negative or adverse impacts created by the use. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed use will not adversely affect the economic stability of the area, but will instead allow the restaurant to compete with other restaurants in the area that also offer alcoholic beverages for sale to their patrons. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant selling alcohol pursuant to Chapter 41 of the Santa Ana Municipal Code and the guidelines established by the Planning Commission for restaurants selling alcohol with their meal. The facility has the kitchen equipment necessary to be considered a bona fide restaurant use and continues to be eligible to obtain a restaurant related alcoholic beverage control license. Additionally, the restaurant will utilize less than five percent of the gross floor area for the storage of alcoholic beverages, which is below the maximum threshold established by the Planning Commission. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. A restaurant with an ancillary alcohol license provides a dining service to the residents of Santa Ana. D. This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The recommendation is exempt from further review pursuant to Section 15301. This Class 1 exemption applies to alterations to an existing operation or facility with negligible expansion. Categorical Exemption Environmental Review No. 2011-44 will be filed for this project. Section 2. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves the modifications to Conditional Use Permit No. 1996-30 as conditioned in Exhibit A attached hereto and incorporated as though fully set forth herein. This decision is based upon the evidence submitted at the abovesaid hearing, which includes but is not limited to: the Request for Planning Commission Action dated May 23, 2011, and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. Resolution No. 2011-10 Page 2 of 9 31 A-18 ADOPTED this 23rd day of May, 2011, by the following vote: AYES: Commissioners Acosta, Alderete, Yrarrazaval (7) None (0) None (0) None (0) Gartner, Mill, Nalle, Turner, NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: Eric Alderete Chairman APPROVED AS TO FORM: Joseph A. Straka, City Attorney By: Ryan O. Hodge Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARTHA RAMIREZ, Secretary of the Planning Commission, do hereby attest to and certify the attached Resolution No. 2011-10 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on May 23, 2011 . Date: Secretary of the Planning Commission City of Santa Ana Resolution No. 2011-10 Page 3 of 9 31 A-19 Modified Conditions of Approval for Conditional Use Permit No. 1996-30 Should modification to Conditional Use Permit No. 1996-30 be approved, the project shall comply with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. In addition, it shall meet the following conditions: The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the variance. Failure to comply with each and every condition may result in the revocation of the variance. (Added language underlined, deleted language in strikeout.) A. Planninq Division 1. All proposed site improvements shall conform with Site Plan Review approval of DP 96-22 and DP 10-30. (Modified by the Planning Commission May 23, 2011) 2. The restaurant shall remain a bona fide eating establishment as defined by the Alcoholic Beverage Control Board and by the standards established by the Planning Commission. These guidelines state that restaurant establishments include the following: a. One conventional range/oven. b. A double sink. C. A 25 cubic foot refrigerator. d. A four-foot by six-foot food preparation area. e. An automatic dishwasher. 3. The interior lighting shall be in accordance with the Alcoholic Beverage Control regulations. 4. There shall be no gaming devices, such as pool tables, pinball machines, motion picture booths, etc. 5. There shall be no conduct or entertainment allowed on the premises as prohibited by Chapter 12 of the Santa Ana Municipal Code (S.A.M.C.). 6. The trash enclosure area must be cleaned and kept in clean conditions at all times. 7. There shall be no parking on the Fire Department fire lanes or any other prohibited areas. Resolution No. 2011-10 Page 4 of 9 31A-20 MAY 23, 2011 PAGE 2 OF 6 8. There shall be no sales or consumption of alcohol on outdoor areas until a street encroachment permit has been issued and the activity conforms to the City's design standard. 9. The outdoor area(s) shall cease to operate or allow customers into such area(s) from 1:00 a.m. until 7:00 a.m. Monday through Sunday. B. Police Department The existing restaurant and exterior lighting must conform with the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project's lighting, door/window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 2. Prior to the issuance of Letter of Approval to the Alcohol Beverage Control Board, all conditions must be complied with. 3. The applicant shall be responsible for maintaining the premises free of litter and graffiti, including the area adjacent to the premises over which he has control. All graffiti shall be removed within 24 hours of occurrence. 4. The sales, service, and consumption of alcoholic beverages shall be permitted only in conjunction with food service between the hours of 7-9:00 a.m. and 2:00 a.m. (Modified by the Planning Commission May 23, 2011) 5. Live entertainment provided shall be limited to a maximum of six musicians with amplified instruments located in the restaurant interior only. 6. Live entertainment is allowed seven days a week only en F=Fidays and Sys between the hours of -79:00 a.m. to 4-2:00 a.m. and at no other time. (Modified by the Planning Commission May 23, 2011) 7. The subject alcoholic beverage license shall not be exchanged for a public premises type of license nor operated as a public premises. 8. There shall be no exterior advertising of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages. 31A-21 MAY 23, 2011 PAGE 3 OF 6 9. There shall be no coin-operated games, of pool tables, amusement machines or video games maintained on the premises at any time. (Modified by the Planning Commission May 23, 2011) 10. The quarterly gross sales of alcoholic beverages shall not exceed the gross sales of food during the same period. These records are to be kept no less frequently than on a quarterly basis and shall be made available to the City, if requested. (Added by the Planning Commission May 23, 2011) 11. No alcoholic beverages shall be consumed on any property adjacent to the licensed premises under the control of the licensee with the exception of the outdoor dining area once that area conforms to the proposed design standards for outdoor dining areas. 12. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. (Modified by the Planning Commission May 23, 2011) 13. There shall be no A44 public telephones Ghall be located on the exterior 0RteFi9F of the licensed premises. Interior pay phones must be designed to allow outaoina calls only. (Modified by the Planning Commission May 23, 2011) 14. At all times when the premises is open for business, the sale and service of alcoholic beverages shall be made only in conjunction with the sale and service of food. 15. The premises shall be maintained as a bona fide eating establishment and shall provide a menu containing an assortment of foods normally offered in such restaurants. 16. The premises shall not be operated as an adult entertainment business as such term defined in Santa Ana Municipal Code Chapter 41-1701.6. 17. Music/noise shall not be audible beyond 20 feet from the exterior of the premises in any direction. (Modified by the Planning Commission May 23, 2011) 18. Neither the applicant, nor any person or entity operating the premises with the permission of the applicant, shall violate the City's adult entertainment ordinance contained in Santa Ana Municipal Code Section 12-1 and 12-2. 31A-22 MAY 23, 2011 PAGE 4OF6 19. The use shall be evaluated after 90 days, six months, one year and annually thereafter in order to determine compliance with the above conditions. 20. The applicant(s) shall not share any profits, or pay any percentage or commission to a promoter or any other person, based upon monies collected as a door charge, donation, cover charge, or any other form of admission charge, including minimum drink orders, or the sale of drinks. 21. There shall be no exterior advertising of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages on the premises. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. 22. It shall be the applicant(s) responsibility to ensure that no alcoholic beverages are consumed on any property adjacent to the licensed premises under the control of the applicant(s), with the exception of the enclosed patio areas. 23. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted within 24 hours of being applied. 24. Queuing lines shall be managed in an orderly manner and all disruptive and intoxicated patrons shall be denied entry. The business owner shall be responsible for monitoring the queuing lines at all times. (Modified by the Planning Commission May 23, 2011) 25. The outdoor Queuing line shall not block public walkways or obstruct the entry or exit doors of adjacent businesses. Stanchions or barriers must be used to maintain order at all times the queue exceeds 25 patrons. (Modified by the Planning Commission May 23, 2011) 26. Food or alcohol may not be served to patrons waiting to enter the establishment. (Modified by the Planning Commission May 23, 2011) 27. The applicant shall submit a monthly schedule of concerts and events to the police department. (Modified by the Planning Commission May 23, 2011) 31A-23 MAY 23, 2011 PAGE 5OF6 28. At all times, that dancing and/or entertainment is being conducted, the applicant shall employ a minimum of one (1) uniformed, licensed security guard in the Few alley aFea for every 100 persons in attendance per event, for keeping the peace. Mandated securitv officers will be required to use a radio frequency and communication equipment that is specified by the Police Department. This specified radio equipment must be purchased and maintained by the establishment. Each guard in the establishment must be provided a radio. Guards will be required to provide escort service to patrons of the establishment if requested. Mandated security guards will be reauired to participate in mutual aid activities with the Police Department and other guard companies in the downtown area participate in mutual aid communications and information sharing meetings This guard shall ensure the safety of those patrons going to or from their vehicles in the parking structure at Third and Birch Streets. (Modified by the Planning Commission May 23, 2011) 29. An electronic incident log shall be maintained at the licensed premises on a continual basis with at least one year of entries and be readily available for inspection by a police officer or electronic transmission to the Santa Ana Police Department. The log is for recording any physical altercations iniuries, and objectionable conditions that constitute a nuisance occurring in, on, or at the licensed premises, including the immediately adjacent area that is owned, leased, or rented by the licensee. The loci will indicate date, time, description of incident, and action taken. "Obiectionable conditions that constitute a nuisance" means disturbance of the peace public drunkenness, drinking in public, harassment of passersby, agambling, prostitution, loiterin public urination lewd conduct drug trafficking, or excessive loud noise. (Modified by the Planning Commission May 23, 2011) 30. The police department will require State licensed security -guards to perform crowd control inside and outside of the establishment based upon the type of activities anticipated at the location or based upon prior history of activity at this establishment or other similar businesses. (Modified by the Planning Commission May 23, 2011) 31A-24 MAY 23, 2011 PAGE 6 OF 6 31. Security personnel required by the conditional use permit issued for the licensed premises shall be in a uniform or clothing, which is readily identifiable as a security person. They shall maintain order and enforce the establishment's no loitering policy, and shall take "reasonable steps" (as that term is defined in subparagraph (3) of Section 24200 of the California Business and Professions Code) to correct objectionable conditions that constitute a nuisance. (Modified by the Planning Commission May 23, 2011) 32. The owner or manager of the licensed premises shall maintain on the premises a written security policy and procedures manual addressing at a minimum the following items: Handling obviously intoxicated persons; establishing a reasonable ratio of employees to patrons, based upon activity level, in order to monitor beverage sales and patron behavior; handling patrons involved in fighting or arguing; handling loitering about the building and in the immediate adjacent area that is owned, leased, rented or used under agreement by the Licensee(s); verifying ape/checking identification of patrons; warning patrons of reaching their drinking limit/potential intoxication and refusing to serve; calling the police regarding observed or reported criminal activity. (Modified by the Planning Commission May 23, 2011) 33. If there is a marked or noticeable increase in the number of Dolice-related incidents on or near the premises, as such increase may be determined by the Chief of Police, the permittee shall increase the number of uniformed, licensed security guards to a total number of guards as determined by the Chief of Police Department. (Modified by the Planning Commission May 23, 2011) 34. This land use authorization is only for a Type 47 on-sale beer & wine, public eating-place, any other license use at this location will require a new land use clearance. 35. No persons under the age of 18 shall be permitted entry into the establishment after 10:00 p.m., seven days a week. (Modified by the Planning Commission May 23, 2011) 31A-25 31A-26 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: VARIANCE NO. 2011-05 TO ALLOW THREE SECONDARY WALL SIGNS AT EL SUPER LOCATED AT 2445 SOUTH BRISTOL STREET - BODEGA LATINA CORPORATION, APPLICANT CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s` Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Receive and file the staff report approving Variance No. 2011-05 as conditioned. PLANNING COMMISSION ACTION On May 23, 2011, the Planning Commission adopted a resolution approving Variance No. 2011- 05 as conditioned by a vote of 7:0 to allow three secondary wall signs on the primary elevation at El Super at 2445 South Bristol Street located in the General Commercial (C2) zoning district. The Planning Commission made no changes to the recommended conditions of approval outlined in the attached staff report (Exhibit A). FISCAL IMPACT There is no fiscal impact associated with this action. J . Trevino Executive Director Planning & Building Agency VC:rb vc\reports\VA11-05 ElSuperWallSigns.cc Exhibit: A. Planning Commission Staff Report 31 B-1 31 B-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: MAY 23, 2011 TITLE: PUBLIC HEARING - VARIANCE NO. 2011-05 FILED BY BODEGA LATINA CORPORATION TO ALLOW THREE SECONDARY WALL SIGNS AT EL SUPER LOCATED AT 2445 SOUTH BRISTOL STREET Prepared by Verny Carvajal e---? Exe utive Director RECOMMENDED ACTION PLANNING COMMISSION SECRETARY APPROVED ? As Recommended ? As Amended ? Set Public Hearing For DENIED ? Applicant's Request ? Staff Recommendation CONTINUED TO " oy-6"&? Planning Man ger Adopt a resolution approving Variance No. 2011-05 as conditioned. Request of Applicant Robin Bell, representing Bodega Latina Corporation, dba El Super, is requesting approval of a variance from the Santa Ana Municipal Code (SAMC) in order to allow secondary signs on the primary elevation of an El Super retail store building at 2445 South Bristol Street. Specifically, the applicant is requesting a variance from Section 41-863 of the SAMC to allow three additional secondary wall signs to describe goods and services for an existing supermarket. Project Location and Site Description El Super is located within a larger integrated shopping center located at the southeast comer of Bristol Street and Warner Avenue. The subject property is a 4.68 acre parcel and contains a freestanding building totaling 45,700 square feet of retail space. The building is served by a 193- stall parking lot located in front and to the rear of the building. At approximately 39,000 square feet, El Super is the primary tenant on the site. The building sits back approximately 220 feet from Bristol Street and is situated about mid block between Warner and Central Avenues (Exhibits 1, 2 and 3). Proiect Description Bodega Latina Corporation, dba El Super, started operations in Southern California in 1997. The company is part of Grupo Chedraui, one of the largest retail chains in Mexico. Headquartered in Southern California, El Super is a food retailer focused on providing high quality groceries in a clean and modern environment. El Super currently operates two full service supermarkets in Santa Ana including one other location at 3700 West McFadden Avenue. The store that is the subject of this application is located at 2445 South Bristol Street and is proposing to install additional wall signs. 1 31 B-3 Variance No. 2011-05 May 23, 2011 Page 2 The proposed signs would be located at the primary (west) elevation of the building and include one 18-square foot "Panaderia" (bakery) sign, one 19.5-square foot "Caniceria" (butcher) sign, and one 20.38-square foot "Tortilleria" (tortillas) sign. The site also includes two wall signs facing the north and south side of the building at a 45 degree angle to the street and a freestanding sign that would be retained as part of this project. Project Backaround El Super recently re4enanted the building previously occupied by Circuit City. Though not part of this application, the applicant applied for and obtained Conditional Use Permit No. 2011-04 to allow the off-premise sale of beer, wine and distilled spirits as part of its retail operation. In addition, various site improvements including a new fagade, parking lot resurfacing and pedestrian walkway were approved and recently completed. General Plan and Zonina Consistency The General Plan land use designation for the site is General Commercial (GC), which supports important neighborhood facilities and services such as this shopping center. General Commercial districts are key components and provide highly visible and accessible commercial development along the City's arterial transportation corridors such as South Bristol Street. The project site is consistent with this General Plan land use designation. The site is surrounded by commercial uses to the north, west and south; and multi-family residential and a convalescent care hospital to the east. The zoning for the site is General Commercial (C2). The C2 zoning district allows for retail and services uses such as supermarkets, making the proposed use consistent with the zoning code. Project Analysis Variance requests are governed by Section 41-638 of the SAMC. Variance requests may be granted when it can be shown that the following can be established: • That there exists a special circumstance related to the property, such as size, shape, topography, location or surroundings. • That the granting of the variance is necessary for the preservation and enjoyment of substantial property rights. • That the granting of the variance will not be detrimental to the public or surrounding property. • That the granting of the variance will not adversely affect the General Plan. 31 B-4 Variance No. 2011-05 May 23, 2011 Page 3 If these findings can be made, then it is appropriate to grant the variance. Conversely, the inability to make these findings would result in a denial. Using this information staff has prepared the following analysis, which in turn forms the basis for the recommendation contained in this report. El Super has two existing wall-mounted signs over the main entry which are located on a building wall and positioned at 45 degree angles from the building elevation, causing them to function as dedicated secondary wall signs on the north and south building elevation. The unique architectural feature of the building creates a unique circumstance. As previously discussed, the applicant is proposing to install three additional secondary wall signs that would say "Panadeda," "Camiceria" and "Tortilleria" (Exhibits 4 and 5). Section 41-863 of the Santa Ana Municipal Code allows one wall sign per tenant space per elevation and is intended to minimize visual clutter and blight on buildings located on commercial corridors. In this case there are already two existing wall signs placed on the primary elevation, although the signs are technically facing to the north and south. These signs were permitted and are in compliance with the current sign code. The proposed "Panaderia," "Camiceria" and "Tortilleria" signs are not permitted by code since retail wall signage is limited to one wall per building elevation. The applicant contends that due to the addition of a new and unique component to the existing El Super use, the additional signage is justified in order to identify this activity and remain competitive in the local marketplace. In addition, the nature of the business is not clearly stated in their name and the applicant wishes to maintain a corporate conformity with other grocery locations within the City. In analyzing the variance request staff considered the criteria listed above. The El Super building itself has a primary, street-facing elevation of approximately 180 linear feet. Were this to be divided into individual tenant spaces, this elevation would be permitted to have substantially more than three signs depending on the number of tenants. This large building elevation can support the addition of three secondary signs without creating sign clutter. The addition of the three signs is not substantial enough to create a detriment, nor does the request adversely affect the General Plan. Based on this rationale and on previous Planning Commission determinations of similar requests by supermarket uses in the City, staff recommends that this variance request be approved. Public Notification The project site is located on the borders of the following Neighborhood Associations: Sunwood Central, Rose Baker and Thornton Park. Each of the presidents of these Neighborhood Associations was notified by mail 10 days prior to this public hearing. In addition, each representative was contacted to ensure that they were notified of the project and to see if there were any areas of concern. No areas of concern were identified by any of the Neighborhood Association presidents, nor was there a request that the applicant present the project to a meeting of their members. 31 B-5 Variance No. 2011-05 May 23, 2011 Page 4 The project site itself was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to all property owners within 500 feet of the project site. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. CEQA Compliance In accordance with the California Environmental Quality Act the recommended action is exempt for further review per Section 15061(b)(3), which is a general rule exemption applying to projects that have no possibility of having a significant effect on the environment. Categorical Exemption Environmental Review No. 2010-148 will be filed for this project. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Variance No. 2011-05 as conditioned. Vemy Carvajal Senior Planner Vincent Fr oso, P Principal Pla r VC:jm VdrepoAS\VA11-05 ElSuperWallftns.pc Attachments: Exhibit 1 - General Vicinity Map Exhibit 2 - Land Use Map Exhibit 3 - Existing Site Plan Exhibit 4 - Primary Building Elevation Exhibit 5 - Secondary Wall Specifications 31 B-6 CIO WARNER AVE. 235-10?+` , ,vUUI000UU R4 1 - R1 / R1 C2 C2 i Rt R1 R1 R1 rRl R1 Rt n 11] .1 Rt R1 R1 RA"V RD C4 R2-P A I ? ? I Al G&9FALAGRC&n Lt CR COMMEFGALR®DOOK Rt SNOLEFAMILYRMDUfAL -8 RYNNGMODIRCUI0N CC GOoHiJMDITCRRER R2 TAOFAMMLYF850DICE GSA OCMMSUALSOMMAIN Mt UGHTINOUSNAL R3 MLAXPLEDDSTYMULTI E 01 0CMMIRYTY00MM0l0& M2 HEAWINDUSTRAL FAMILYFES084CE C1-1D COMM.OOMMDM]AUMUSSADISIRCT MO MIUtARfCF9i%706 RA SJEUFVANA8%RIM9l18 C2 Me7ALCCMMKK 0 OM4S#CE FE FESODPIIALEWE C3 CROWBAN856 P RUFE39CNAL SD MFICDEYB.OFmExT 03A C90)%.aAANR 6A7A1.S WU" F CD RAW.WCpMAAt1N7YL1RaCRM&YT 9p sqowRm GI PLANNE1)9 PRN0CFNIHt RD RANNDFMDWTlALDB6.0MEPfT Cb ARMRALCpAMHr MM AY VARIANCE 2011-5 A 2445 SOUTH BRISTOL STREET EL SUPER FWr 17'= 1 OW FEAT P L A N N I N G A N D B U I L D I N G A G E N C Y VICINITY MAP EXHIBIT 1 31 B-7 WARNER AVE. OMMERCIA C O M M E R C i A L F V1 v - I- C Ln rn •- c y J - O Z va LL"O Multi- < _ E Family g d Residence a O CENTRAL AVE. VARIANCE 2011-5 2445 SOUTH BRISTOL STREET n EL SUPER P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 C O M M E R C I A L C O M M E R C I A L C O M M E R C I A L C 0 14 M E R C I A L anvil 'd R e 31 B-8 '°° 'col `?le!?1' PW ??!?' o?w/vv :n•v ' _ ? .rr r?o. er.eoo? 4•r 1N3W3AOtldWI1NrN31 no owrru.am tl3d0>t 73 nn an.•v r•a• j Ji fill!] 91 1 y{{si ty? i? S ;? l3 t?3 ?? sd JIM 3,??1 l i t t R t t 1g--*Us -IoLus1d9 EXH1B1T 3 31 B-9 ?s..l ? -o ?? a n u ? ? i ? lp; 1 3 - ? ? c A W ° - ?? ? k F ' r F u A 1 Y' a'} ,? w m?e I a ? O 9E E 9 B c? a IZQ 1 t :??C ?' :a 1 1 la ? 3 a H 2 O o b a k yJ` ? kLl 115 3 x s W 0 6 an N z i i :b i `bi 0 A? } v 0 li. ? o z ' EXHIBIT 4 31 B-10 C n ° oYgY? ?" F? ; a LL ? o _ tS u =i JI p z Z" _ a pp Y m -02 E Z S 8 - jiy ?? ?? M O o ?S N C p ` 9 ?4 E? NI ?? oC i, E - a V g F ?. t? P1?a?° 0 C c$ O T71 7? 7)7; e ?sesgg = o N r? GUIP ` fV a F- ? w {./1 N M Ln L1? ?- o w w .- o? Z w r C3 CD C> p O W U.J ¢ 4 Z w Eke a ?' C.D z Z W z cy co v? Q C3r c? v, CF in rr CC UJ J M JJ5 F ? r , o ?r i'd ?b 3 ?oSBS Z J?o a ? W ? -gad°?d¢g z zr ~z F?pp?????3 o°LLC b LL b ' 6 o zroo z ? C ? C v. `?- ?z F W r W CL ....... .9l w9t ? ? „g? ? 31 -11 EXHIBIT 5 31 B-12 ROH - 05/23/11 RESOLUTION NO. 2011-09 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING VARIANCE NO. 2011-05 AS CONDITIONED TO ALLOW THREE SECONDARY WALL SIGNS AT EL SUPER ON THE PROPERTY LOCATED AT 2445 SOUTH BRISTOL STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Variance 2011-05, to allow three secondary wall signs at El Super located at 2445 South Bristol Street. B. Variance No. 2011-05 came before the Planning Commission on May 23, 2011, for a duly noticed public hearing. C. Section 41-863 of the Santa Ana Municipal Code allows one wall sign per tenant space per elevation and is intended to minimize visual clutter and blight on buildings located on commercial corridors. D. The Planning Commission determines that for Variance No. 2011-05, the following findings, which must be established pursuant to Santa Ana Municipal Code Section 41-638 in order to grant a variance from the provisions of the Santa Ana Municipal Code, have been established: That because of special circumstances applicable to the subject property, including size, shape, topography, location, or surroundings, the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this chapter. El Super has two existing wall-mounted signs over the main entry which are located on a building wall and positioned at 45 degree angles from the building elevation, causing them to function as dedicated secondary wall signs on the north and south building elevations. The unique architectural feature of the building creates a unique circumstance applicable to the property. In addition, the building itself has a primary, street-facing elevation of approximately 180 linear feet. Were this to be divided into individual tenant spaces, Resolution No. 2011-09 31 B-13 Page 1 of 4 this elevation would be permitted to have substantially more than three signs. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The installation of additional signage will allow El Super the ability to identify goods and services available within the store. The variance will also allow El Super the ability to utilize the property in a manner that is consistent with similar sized uses. The additional signs are consistent with Policy 2.2 of the Land Use Element that supports commercial uses in adequate amounts to accommodate the City's needs for goods and services. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The three secondary signs will not be detrimental to the surrounding area, as a condition of approval has been added that will limit the amount of secondary signage allowed on the site. This will assist in minimizing the visual clutter found on structures with multiple wall signs. The height, size and appearance of the signs will blend with established shopping center and will not be materially detrimental to the public welfare or injurious to surrounding property. 4. That the granting of a variance will not adversely affect the General Plan of the City. The granting of the variance will not adversely affect the City's General Plan in any way as the land use designation of General Commercial (GC) allows signage in conjunction with retail uses in the land use designation. E. In accordance with the California Environmental Quality Act the recommended action is exempt for further review per Section 15061(b)(3), which is a general rule exemption applying to projects that have no possibility of having a significant effect on the environment. Categorical Exemption Environmental Review No. 2010-148 will be filed for this project. Section 2. The Planning Commission of the City of Santa Ana, after conducting the public hearing, hereby approves Variance No. 2011-05 as conditioned in Exhibit A attached hereto and incorporated herein as though fully set forth. This decision is based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Staff reports and exhibits attached thereto; and, the public testimony, all of which are incorporated herein by this reference. Resolution No. 2011-09 31 B-14 Page 2 of 4 ADOPTED this 23rd day of May, 2011, by the following vote: AYES: Commissioners Acosta, Alderete, Yrarrazaval (7) None (0) None (0) None (0) Gartner, Nalle, Mill, Turner, NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: Eric Alderete Chairman APPROVED AS TO FORM: Joseph Straka, City Attorney By: Ryan O. Hodge Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARTHA RAMIREZ, Clerk of the Planning Commission, do hereby attest to and certify the attached Resolution No. 2011-09 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on May 23, 2011 Date: Clerk of the Planning Commission City of Santa Ana 31 B-15 Resolution No. 2011-09 Page 3of4 Conditions for Approval for Variance No. 2011-05 Variance No. 2011-05 is approved subject to compliance, to the reasonable satisfaction of the Planning Commission, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the variance. Failure to comply with each and every condition may result in the revocation of the variance. A. Planning Division 1. The project shall remain in compliance with Site Plan review DP No. 2010- 52. 2. The project shall comply with all conditions of approval as part of previous entitlements including Conditional Use Permit No. 2011-04. 3. The maximum number of secondary wall signs shall be limited to three in addition to the two existing tower-mounted wall signs and a one-word description of additional goods and services located within the establishment. 4. Any amendment to this variance must be submitted to the Planning Division for review. At this time, staff will determine if administrative relief is available or if the variance must be amended. 5. The proposed sign will be limited to the location and size as indicated on the approved plan per the attached exhibit. Exhibit "A" 31 B-16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: ANNUAL STATEMENT OF INVESTMENT POLICY CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2Id Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENDED ACTION 1. Adopt a Resolution approving the City's Investment Policy. 2. Receive and file the Annual Statement of Investment Policy. DISCUSSION The Finance and Management Services Agency Executive Director annually renders to the City Council a Statement of Investment Policy. The purpose of the policy is to provide for the prudent investment of idle funds. The criteria for selecting investments and the order of priority are safety, liquidity, and yield. The investment policy applies to all financial assets of the City. FISCAL IMPACT There is no fiscal impact associated with this action. Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibit 1 Resolution Exhibit 2 Investment Policy 55A-1 55A-2 Iss: 6/06/11 RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE CITY'S STATEMENT OF INVESTMENT POLICY BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of Santa Ana hereby finds, determines and declares as follows: A. California Government Code, §53646, provides that each city may have a written statement of investment policy to govern investment of the city's monies. B. Pursuant to §53646, the City Treasurer shall annually submit a statement of investment policy, for City Council consideration. C. The City Treasurer has submitted the attached Statement of Investment Policy to this Council at its regular meeting of June 20, 2011, for its consideration. Section 2. The City Council of the City of Santa Ana has duly considered and approves the City's statement of investment policy submitted by the City Treasurer. Section 3. The City Treasurer shall submit quarterly reports to the City Council stating all investments made in the preceding quarter and that such investments have been made in conformance with the City's investment policy. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of , 2011. Exhibit 1 Miguel A. Pulido Mayor 55A-3 APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Laura Sheedy Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of Council City of Santa Ana 55A-4 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2011/2012 INTRODUCTION: This statement is intended to outline the policies for prudent investment of idle City funds by providing guidelines for suitable investments while maximizing the efficiency of the City's Cash Management Program. Under the direction of the Executive Director, Finance and Management Services, the responsibility for the day to day investment of the City's funds is delegated to the Treasury Manager only. The investment policy applies to all financial assets of the city, which are pooled in an actively managed portfolio. The investment pool or portfolio will be referred to as the "Fund" throughout this document. Bond proceeds shall be invested in accordance with requirements and restrictions outlined in the bond documents. Bond proceeds are not considered part of the Fund nor subject to this Investment Policy. The City's Cash Management Program is designed to accurately monitor and forecast expenditures and revenues, thus enabling the investment of funds to the fullest extent possible. Maturities are matched as closely as possible to coincide with cash requirements. The investment policies and practices of the City of Santa Ana are based upon Federal, State and Local law and prudent money management. The primary goals of these policies are: 1. To assure compliance with all Federal, State and Local laws governing the investment of monies. 2. To provide for the safety of principal and sufficient liquidity. 3. To provide an investment return within the parameters of this Statement of Investment Policy and the Investment Portfolio Guidelines. Officers and employees involved in the investment process shall refrain from personal business activity that could conflict with the proper execution and management of the investment program, or that could impair their ability to make impartial decisions. Employees and investment officials shall disclose any material interests in financial institutions with which they conduct business. They shall further disclose any personal financial/investment positions that could be related to the performance of the investment portfolio. Employees and officers shall refrain from undertaking personal investment transactions with the same individual with whom business is conducted on behalf of their entity. OBJECTIVES: SAFETY OF PRINCIPAL - Safety of principal is the foremost objective of the City of Santa Ana. Each investment transaction shall be undertaken in a manner that seeks to Exhibit 2 55A-5 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2011-2012 ensure preservation of capital in the overall portfolio. The objective will be to mitigate credit risk and interest rate risk. A. Credit Risk Credit Risk is the risk of loss due to the failure of the security issuer or backer. Credit risk may be mitigated by: Limiting investments to the safest types of securities; Pre-qualifying the financial institutions, broker/dealers, intermediaries, and advisors with which an entity will do business; and Diversifying the investment portfolio so that potential losses on individual securities will be minimized. B. Interest Rate Risk Interest rate risk is the risk that the market value of securities in the portfolio will fall due to changes in general interest rates. Interest rate risk may be mitigated by: Structuring the Fund so that securities mature to meet cash requirements for ongoing operations, thereby avoiding the need to sell securities on the open market prior to maturity, and By investing operating funds primarily in shorter-term securities. The cash flow is updated on a daily basis and will be considered prior to the investment of securities, which will reduce the necessity to sell investments for liquidity purposes. 2. LIQUIDITY - The investment portfolio shall remain sufficiently liquid to meet all operating requirements that may be reasonably anticipated. This is accomplished by structuring the portfolio so that securities mature concurrent with cash needs to meet anticipated demands (static liquidity). Furthermore, since all possible cash demands cannot be anticipated, the portfolio should consist largely of securities with active secondary or resale markets (dynamic liquidity). 3. YIELD - The City's Fund shall be designed with the objective of attaining a market- average rate of return throughout budgetary and economic cycles taking into account the investment risk constraints and liquidity needs. Return on investment is of least importance compared to the safety and liquidity objectives described above. The core of investments are limited to relatively low risk securities in anticipation of earning a fair return relative to the risk being assumed. Securities shall not be sold prior to maturity with the following exceptions: 1) a declining credit security could be sold early to minimize loss of principal; 2) a security swap would improve the quality, yield, or target duration in the 55A-6 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2011-2012 portfolio; or 3) liquidity needs of the portfolio require that the security be sold. The market-average rate of return is defined as the average return on three-month U.S. Treasury Bills. The City strives to maintain one hundred percent (100%) investment of idle funds after consideration for a compensating balance to cover the cost of services provided by the bank. The funds available for investment are determined by cash flow projections updated daily. Investments are monitored so that legal limits on types of investments are not exceeded. AUTHORIZED INVESTMENTS: The "prudent person" standard shall be applied in the context of managing the overall portfolio. Investment officers acting in accordance with written procedures and this investment policy and exercising due diligence shall be relieved of personal responsibility for an individual security's credit risk or market price changes, provided deviations from exceptions are reported in a timely fashion and the liquidity and the sale of securities are carried out in accordance with the terms of this policy. Investments shall be made with judgment and care, under circumstances then prevailing, which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not for speculation, but for investment, considering the probable safety of their capital as well as the probable income to be derived. The City is governed by the California Government Code, Section 16429.1, and Title 5, Division 2, Part 1, Chapter 4, entitled Financial Affairs, commencing with section 53630. Santa Ana further restricts the permitted investments to those listed below. Within this scope, the City diversifies its investments by maturity dates and types of investments. Concentration limits are indicated for all investment categories except Treasury securities, which are considered the safest investments. A. United States Treasury Bills, Notes, and Bonds, for which the full faith and credit of the United States are pledged for payment of principal and interest. Purchases of this category shall not exceed five years to maturity. There is no percentage limit in this category. B. Obligations issued by a Federal Agency or a United States Government Sponsored Enterprise. Federal Agency Issues include, but are not limited to GNMA (Government National Mortgage Association), FFCB (Federal Farm Credit Bank), FHLB (Federal Home Loan Bank Board), FHLMC (Federal Home Loan Mortgage Corporation), FNMA (Federal National Mortgage Association), SLMA (Student Loan Mortgage Administration), FHA (Federal Housing Administration) and TVA (Tennessee Valley Authority). Although there is no percentage limitation on these issues, the "prudent 55A-7 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2011-2012 investor' rule shall apply for a single agency name as U.S. Government backing is implied rather than guaranteed. C. Bills of exchange or time drafts drawn on and accepted by a commercial bank, otherwise known as banker's acceptances, which are eligible for purchase by the Federal Reserve System. Purchases of banker's acceptances may not exceed one hundred, eighty (180) days or forty percent (40%) of the cost value of the Fund which may be invested pursuant to this section. However, no more than thirty percent (30%) of the City's cost value of the Fund may be invested in the bankers acceptances of any one commercial bank pursuant to this section. D. Commercial paper of "prime" quality of the highest ranking or of the highest letter and number rating as provided for by Moody's Investor Services, Inc. (Moody's), Standard and Poor's (S&P) or Fitch Financial Services, Inc. (Fitch). The corporation that issues the commercial paper shall be organized and operating within the United States, shall have total assets in excess of five-hundred, million dollars ($500,000,000), and shall issue debt, other than commercial paper, if any, that is rated "A" or higher by Moody's or S&P or Fitch. Eligible commercial paper shall have a maximum maturity of two-hundred seventy (270) days or less. The City may purchase no more than ten percent (10%) of the outstanding commercial paper of any single corporate issue. Purchases of commercial paper may not exceed twenty-five percent (25%) of the surplus money which may be invested. E. Negotiable certificates of deposit issued by a nationally or state-chartered bank, a savings association or a federal association (as defined by Section 5102 of the Financial Code), a state or federal credit union or by a state-licensed branch of a foreign bank. However, the City shall not invest in negotiable certificates of deposit issued by a state or federal credit union if a member of the City Council or any City personnel with investment decision making authority also serves on the board of directors, or any committee appointed by the board of directors, or the credit committee or the supervisory committee of the state or federal credit union issuing the negotiable certificates of deposit. The City's investment in negotiable certificates of deposit may not exceed thirty percent (30%) of the cost value of the Fund. The amount so invested shall be subject to the limitations of Government Code Section 53638 which generally provides that the deposit shall not exceed the shareholder's equity of any depository bank, or the total net worth of any depository savings association or federal association, or the total of the unimpaired capital and surplus of an insured industrial loan company. F. Repurchase Agreements. For purposes of this section, the term "repurchase agreement" means a purchase of securities by the local agency pursuant to an agreement by which the seller will repurchase the securities on or before a specified date and for a specified amount and will deliver the underlying securities to a third party 55A-8 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2011-2012 custodian. The City may invest in repurchase agreements with primary dealers of the Federal Reserve with which the City has entered into a PSA master repurchase contract which specifies terms and conditions of repurchase agreements. The market value of securities used as collateral for repurchase agreements shall not be allowed to fall below 102 percent of the value of the repurchase agreement and shall be valued daily by the tri- party custodial agent. Securities that can be pledged for collateral shall consist only of investments permitted within this policy with a maximum maturity of five (5) years. If there is a default of the broker, the collateral securities can be sold. Since the securities are valued daily, it is likely that the sale proceeds will equal or exceed the value of the repurchase agreement amount. Purchases in this category shall not exceed ninety (90) days or thirty percent (30%) of the cost value of the Fund. G. Local Agency Investment Fund - State Pool. The City may invest in the Local Agency Investment Fund (LAIF) established by the State Treasurer under California Government Code Section 16429.1 for the benefit of local agencies. Although there is no percentage limitation on this fund, the "prudent investor" rule shall apply for a single agency name. H. Medium Term Corporate Notes issued by corporations organized and operating within the United States or by depository institutions licensed in the United States or any state and operating within the United States. Notes eligible for investment shall be rated in a rating category of "A" or its equivalent or better by a nationally recognized rating service. Purchases in this category shall not exceed three (3) years to maturity or fifteen percent (15%) of the cost value of the Fund. Purchases in a single issuer in this category shall not exceed five percent (5%) of the cost value of the Fund. Shares of beneficial interest issued by diversified management companies that are money market funds registered with the Securities and Exchange Commission under the Investment Company Act of 1940. The company shall have met either of the following criteria: Attain the highest ranking or the highest letter and numerical rating provided by not less than two of the three following: Moody's, S&P or Fitch, and 2. Retained an investment adviser registered or exempt from registration with the Securities and Exchange Commission with not less than five (5) years experience managing money market funds with assets under management in excess of five- hundred, million dollars ($500,000,000). The purchase price of shares of beneficial interest, (mutual funds) purchase pursuant to this subdivision shall not include any commission that these companies may charge. J. Ineligible investments. Investments not described herein are ineligible investments. The City shall not invest any 55A-9 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2011-2012 funds in inverse floaters, range notes, or interest only strips that are derived from a pool of mortgages. In addition, the City shall not invest any funds in any security that could result in zero interest accrual if held to maturity. However, prohibited securities that are in the City's portfolio, as of the date of this policy adoption, may be held until their maturity dates. DEPOSITORY SERVICES Money must be deposited in state or national banks, state or federal savings associations or state or federal credit unions in the state. It may be in inactive deposits, active deposits or interest-bearing active deposits. The deposits cannot exceed the amount of the bank's or savings and loan's paid up capital and surplus. The bank or savings and loan must secure the active and inactive deposits with eligible securities having a market value of one-hundred, ten percent (110%) of the total amount of the deposits. State law also allows as an eligible security, first trust deeds having a value of one- hundred, fifty percent (150%) of the total amount of the deposits. A third class of collateral is letters of credit drawn on the Federal Home Loan Bank (FHLB). The treasurer may waive, at his discretion, security for that portion of a deposit which is insured pursuant to federal law. Currently, the first two-hundred, fifty-thousand dollars ($250,000) of a deposit is federally insured. It is to the City's advantage to waive this collateral requirement for the first $250,000 because we receive a higher interest rate. QUALIFIED DEALERS AND INSTITUTIONS: The City shall transact business only with banks, savings and loans and registered investment securities dealers. The purchase by the City of any investment other than those purchased directly from the issuer, shall be purchased either from an institution licensed by the State as a broker-dealer, as defined in Section 25004 of the Corporations Code, who is a member of the National Association of Securities Dealers, or a member of a Federally regulated securities exchange, a National or State-Chartered Bank, a Federal or State Association (as defined by Section 5102 of the Financial Code), or a brokerage firm designated as a Primary Government Dealer by the Federal Reserve Bank. The City's Treasurer's staff shall investigate all institutions which wish to do business with the City, in order to determine if they are adequately capitalized, make markets in securities appropriate to the City's needs, and agree to abide by the conditions set forth in the City of Santa Ana's Investment Policy and Investment Portfolio Guidelines. This will be done annually by having the Financial Institutions complete and return the appropriate questionnaire, and an audited Financial Statement must be provided within one-hundred, twenty (120) days of the Institution's fiscal year-end. 55A-10 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2011-2012 SAFEKEEPING OF SECURITIES: To protect against potential losses caused by collapse of individual securities dealers, all securities owned by the City except securities used as collateral for repurchase agreements, shall be kept in safekeeping with "perfected interest" by a third party bank trust department, acting as agent for the City under the terms of a custody agreement executed by the bank and by the City. All securities will be received and delivered using standard delivery versus payment procedures. INTERNAL CONTROLS: The Executive Director, Finance and Management Services is responsible for establishing and maintaining an internal control structure designed to ensure that the assets of the entity are protected from loss, theft or misuse. The Executive Director, Finance and Management Services has developed a system of internal investment controls and a segregation of responsibilities of investment functions in order to assure an adequate system of internal control over the investment function. Internal control procedures address wire controls, separation of duties, delivery of securities to a third party for custodial safekeeping, and written procedures for placing investment transactions. Cash balances are reconciled daily by non-investment employees and reconfirmed by the City's accounting staff. In addition, the City's accounting staff also verifies investment activities and holdings on a monthly basis. The Executive Director, Finance and Management Services shall establish a process for annual independent review by an external auditor to the extent contemplated by generally accepted auditing standards. REPORTING: Under the provisions of Section 53646 of the Government Code, the Executive Director, Finance and Management Services shall render a report to the City Council, City Manager, and the internal auditor containing detailed information on all securities, investments, and moneys of the City. The report will be submitted on at least a quarterly basis and provided to the Council within thirty (30) days following the end of the quarter. The report will contain the following information on the funds that are subject to this investment policy: 1) the type of investment, name of the issuer, date of maturity, par and cost in each investment, 2) the weighted average maturity of the investments, 3) any investments, including loans and security lending programs, that are under the management of contracted parties, 4) the market value and source of the valuation, 5) a description of the compliance with the statement of investment policy, and 6) a statement denoting the City's ability to meet its pool's expenditure requirements for the next six months. 55A-11 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2011-2012 POLICY REVIEW: This investment policy shall be reviewed at least annually to ensure its consistency with the overall objectives of preservation of PRINCIPAL, LIQUIDITY, AND YIELD and its relevance to current law, financial and economic trends, and to meet the needs of the City of Santa Ana. Francisco Gutierrez Executive Director Finance & Management Services Agency 55A-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: RESOLUTION AUTHORIZING THE SUBMITTAL OF PROPOSITION 84 STATEWIDE PARK DEVELOPMENT AND COMMUNITY REVITALIZATION GRANT APPLICATION FOR ROOSEVELT/WALKER JOINT USE SITE IMPROVEMENTS r f I J CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt a resolution authorizing the submittal of Proposition 84 Statewide Park Development and Community Revitalization Grant application in the amount of $5,000,000 for park improvements at the Roosevelt and Walker Elementary Schools Joint Use Site. DISCUSSION On November 2006, California voters passed Proposition 84, a $5.4 billon "Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act. The bond act provided $368 million in grant funding for new parks and recreational opportunities in critically underserved communities. The $368 million was divided into two rounds of grant opportunities. In the first round the City was successful in receiving $4.4 million for recreational improvements on the Willard Intermediate Park site and $3.5 million for Latino Health Access Community Center/Park. Latino Health Access (LHA) recently entered into a one year Memorandum of Understanding (MOU) with the Santa Ana Unified School District (SAUSD) to make Roosevelt Elementary School accessible for public access/use after school hours. LHA will not be able to sustain this MOU for more than a year and approached the City on the possibility of the City continuing this agreement after a year. After reviewing a number of sites, staff believes the Roosevelt/Walker Elementary School Site will be the most competitive for this grant opportunity. A possible 30 year Joint Use Agreement was discussed with the SAUSD and both City/District staffs agree to neigotiate an agreement if the City is successful in obtaining this grant. The Joint Use Agreement will be simular to the agreements being negotiated for the Willard and Garfield School sites. The City will manage reservations of the site for youth programs, after school and on weekends. The site will also be designed for public access during school hours. This area is void of park open space and meets the criteria of a critically underserved community. Staff is recommending City Council approve the resolution to apply for the second round of Proposition 84 grant funding at Roosevelt/Walker Elementary School to make recreational improvements available for community use. 55B-1 Resolution - Proposition 84 Grant June 20, 2011 Page 2 A minimum of 5 community meetings will be held to obtain community input on the park improvements. A concept plan will be prepared based on the community input and will be presented to the Santa Ana Unified School District Board of Education and the City Council in July. FISCAL IMPACT There is no fiscal impact associated with this action. X?t? V Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency 55B-2 RESOLUTION NO. 2011-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE APPLICATION FOR STATEWIDE PARK DEVELOPMENT AND COMMUNITY REVITALIZATION PROGRAM GRANT FUNDS UNDER THE SAFE DRINKING WATER BOND ACT OF 2006. Iss6/9/2011 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. In November 2006, the people of the State of California passed Proposition 84: The Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond Act; and B. One component of Proposition 84, the Statewide Park Development and Community Revitalization Program of 2008 ("Statewide Park Program), funds grants for the creation of new parks and recreation facilities in critically underserved communities throughout California; and C. The State Department of Parks and Recreation has been delegated the responsibility for the administration of the Statewide Park Program, setting up necessary procedures governing the Program; and D. Said procedures established by the State Department of Parks and Recreation require the applicant to certify by resolution the approval of application(s) before submission of said application(s) to the State; and E. If selected, the City of Santa Ana will enter into a contract with the State of California to complete the grant project; Section 2. The City Council hereby approves the filing of an application for Five Million Dollars ($5,000,000) under the Statewide Park Development and Community Revitalization Program for Roosevelt and Walker Joint Use Recreational Site Improvements, and (a) Certifies that said applicant has or will have available, prior to commencement of any work on the project included in this application, sufficient funds to complete the project; and, Resolution No. 2011-XXX 55B-3 Page 1 of 3 (b) Certifies that the applicant has or will have sufficient funds to operate and maintain the project(s); and, (c) Certifies that the applicant has reviewed, understands, and agrees to the General Provisions contained in the contract shown in the Grant Administration Guide; and, (d) Delegates to the City Manager or the Executive Director of the Parks, Recreation and Community Services Agency or his designee, the authority to conduct all negotiations, sign and submit all documents, including, but not limited to applications, agreements, amendments, and payment requests, which may be necessary for the completion of the grant scope; and (e) Agrees to comply with all applicable federal, state and local laws, ordinances, rules, regulations and guidelines. Section 3. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 12011. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Laura Sheedy Assistant City Attorney Resolution No. 2011-XXX 55B-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. 2011-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. 2011-XXX 55B-5 Page 3 of 3 55B-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 20, 2011 TITLE: OPPOSITION TO THE CITIZENS REDISTRICTING COMMISSION'S PROPOSED REDISTRICTING IN SANTA ANA CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15f Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager to prepare a letter on behalf of the City Council and the City of Santa Ana to the Citizens Redistricting Commission in opposition to the proposed redistricting of the City's State Assembly, State Senate, and Congressional Districts. DISCUSSION The Citizens Redistricting Commission (CRC) was created by California voters to re-draw State Congressional, Assembly, Senate and Board of Equalization Districts. Currently, the Commission is taking public testimony from local area residents to redraw existing legislative districts in central Orange County. On June 10, 2011, CRC issued a preliminary proposed redistricting map for the cities of Santa Ana and Anaheim which would divide the two cities into separate Assembly, Senate, and Congressional Districts. Historically, Santa Ana and Anaheim flatlands have been identified as "Communities of Interest" through shared socio-economic demographics. The two cities are linked by a large blue collar working class-immigrant population. Both areas share significant populations that are primarily Spanish speaking, young median age, and have common health issues related to diabetes, obesity, and a lack of medical insurance. Additionally, Santa Ana and Anaheim have common interests related to a variety of regional transportation and important infrastructure projects. Both cities are pursuing fixed-guide way projects and are currently serving as major public transportation hubs and pursuing multi-modal transportation centers known as the Anaheim Regional Transportation Center, and the Santa Ana Regional Transportation Center. Santa Ana and Anaheim are older, more densely populated cities with common issues related to aging infrastructure, and along with Fullerton, Anaheim and Santa Ana are the only three cities with direct membership in both the Metropolitan Water District and the Orange County Water District, thus sharing common water resources and needs. Also, because of the common socio- 65A-1 Opposition to the Citizens Redistricting Commission's Proposed Redistricting in Santa Ana June 20, 2011 Page 2 economic demographics, Anaheim and Santa Ana's population tend to share similar transportation habits such as higher bus ridership, and similar recycling and disposal habits - more likely to change their own oil and wash their own car, for example. The Santa Ana and Anaheim Police Departments have also collaborated on numerous programs and projects throughout their respective histories. One important joint program is the Urban Areas Strategic Initiative (UASI) which was designed by the federal government to facilitate a county-wide strategy, training, and exercise program to increase homeland security and public safety. Through this collaborative effort the cities of Santa Ana and Anaheim have distributed over $60 million dollars in Orange County to strengthen the County's ability to prevent and respond to terrorist attacks and natural disasters. Other collaborative efforts with the City of Anaheim include the CAD2CAD project that when finalized will allow all fire dispatch centers in Orange County to automatically dispatch emergency units from other jurisdictions should additional assistance be required. Santa Ana and Anaheim are the lead cities partnering on this project, and also maintain mutual aid agreements for emergency response assistance. Dividing the state and federal legislative districts in Santa Ana and Anaheim will dilute the voice of this working class area and place our residents into more affluent areas that may not have similar interests. If approved, the CRC's proposed map will substantially alter the socio- economic composition of Santa Ana's legislative districts and profoundly impact the lives of our residents. It is imperative that Santa Ana and Anaheim flatlands remain in the same state and federal legislative districts to maximize our "Communities of Interest" and to ensure that our residents can continue to elect candidates of their choice who represent their common interests. FISCAL IMPACT There is no fiscal impact associated with this action. 65A-2 REQUEST FOR COUNCIL/ AGENCY'' ACTION MEETING DATE: JUNE 20, 2011 TITLE: AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND ESCROW INSTRUCTIONS FOR 415 AND 423 S. RAITT STREET CITY MANAGER EXECUTIV IRECTOR RECOMMENDED ACTION CITY COUNCIL CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1 st Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager, or designee, to execute the attached agreement for the sale of real property located at 415 and 423 S. Raitt Street (APN 007-213-12 and APN 007-213-14) to the Community Redevelopment Agency, subject to non-substantive changes approved by the City Manager and City Attorney. COMMUNITY REDEVELOPMENT AGENCY Authorize the Executive Director, or designee, to execute the attached agreement for the purchase of real property located at 415 and 423 S. Raitt Street (APN 007-213-12 and APN 007-213-14) in the amount of $1,076,093, plus closing costs and escrow fees, subject to non-substantive changes approved by the Executive Director and Agency General Counsel. DISCUSSION On December 16, 2002, the City Council approved the acquisition of the real property located at 415 and 423 S. Raitt Street (Exhibit 1) for the sum of $1 million plus normal closing costs and escrow fees. Federal HOME Program grant funds were approved for the purchase which closed escrow on April 17, 2003. The property encompassed 44,002 square feet of land and contained two single-family residences. The intent of the purchase was to assist an adjacent property owner, the nonprofit Civic Center Barrio Housing Corporation (CCBHC), to develop an affordable rental housing project that would complement its existing project at 405 S. Raitt Street. CCBHC has been unable to complete the site plan review process, and consequently has also 8OA-1 Joint - Sale of 415 and 423 S. Raitt Street June 20, 2011 Page 2 been unable to complete a project budget and obtain financing. The U. S. Department of Housing and Urban Development has determined that the project is out of compliance with HOME Program regulations due to the length of time it has taken to complete the project. In order to rectify this situation, the City must sell the property so that the HOME funds can be repaid. Agency purchase of the property will enable it to develop affordable units that will assist both the City and the Agency to meet their affordable housing requirements. Once the sale is completed, the Agency will issue a Request for Proposals for the development of the site. ENVIRONMENTAL COMPLIANCE In accordance with the California Environmental Quality Act, this sale is exempt from further review. Categorical Exemptions numbered ER-2011-48 and 49 will be filed for this project finding that it is exempt pursuant to California Code of Regulations, Title 14, Division 6, Chapter 3, Sections 15312 (a), and 15332(d). This action results in a transfer of title only, and 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. These properties do not possess significant value as wildlife habitat as they are in a developed location. FISCAL IMPACT Funds to purchase the property are available in the Tax Increment Housing Set-Aside account (no. 50718830-66100). APPROVED AS TO FUNDS AND ACCOUNTS: dd& 1 Shelly L dry-Bayle Francisco Gutierrez Housing Manager Executive Director Community Development Agency Finance & Management Services Agency Exhibit: 1. Site Map 2. Purchase Agreement and Escrow Instructions 8OA-2 PINE ST. vi z / u, CHESTNUT AVE. a z z a oc W U. H N `W$ Q ? N Q ? CC p LL MYRTLE ST. ui W114t44 2 CAMILE PL. _ - l7 ui ui - z 0 oZc ? - z Lu Lu W 0- LL 3 415 AND 423 SOUTH RAFT STREET EXHIBIT 1 8OA-3 8OA-4 AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND ESCROW INSTRUCTIONS THIS AGREEMENT, entered into this day of , 2011, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic, (hereinafter referred to as the "Agency") and the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "City"). WITNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, City agrees to sell to Agency, and Agency agrees to purchase from City, all that certain real property (hereinafter referred to as "said real property") described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 415 and 423 S. Raitt Street, Santa Ana, CA) Said sale and purchase of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance by City. City agrees to convey said real property to Agency, by Grant Deed, at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, within thirty (30) days from and after the date on which the Agency has approved this Agreement. 2. Title to be Convey. City agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by City to Agency, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances, liens, leases, clouds or defects in title except those exceptions shown in Paragraph 14 below. City hereby warrants that the title to said real property to be conveyed by City to Agency shall be free and clear as above provided. City further agrees that acceptance by Agency of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance, lien, lease, cloud or defect in title, shall not constitute a waiver by Agency of its right to the full and clear title hereinabove agreed to be conveyed by City to Agency, nor of any right which might accrue to Agency because of the failure of City to convey title as hereinabove provided. 3. Reserved. 4. Escrow. Agency agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which the Agency has approved this Agreement. This Agreement constitutes the joint escrow instructions of the Agency and the City and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. EXHIBIT 2 8OA-5 The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Exhibit "B" attached hereto and incorporated herein by this reference, in writing, delivered to the Agency and to the City within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent hereunder. Agency agrees to bear and Escrow Agent is hereby authorized to charge to the Agency the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of said real property to Agency. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Exhibit "B" of the General Provisions of this Agreement. 5. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to Agency as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. City shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to Agency is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to Agency is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by City before conveyance of said real property to Agency. 6. Payment of Purchase Price. Agency agrees to pay to City, and City agrees to accept from Agency, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any), severance damages, and relocation claims pursuant to Government Code §7260 et seq., the total sum of One Million Seventy Six Thousand Ninety Two Dollars and Ninety Six Cents ($1,076,092.96). Agency agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the parties have approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Agency upon and after: (a) Conveyance of said real property by City to Agency as hereinabove provided; (b) Acceptance by Agency of a Grant Deed conveying said real property to Agency; (c) Delivery to Agency of the policy of title insurance as hereinabove provided; (d) Recordation of the Deed conveying said real property to Agency. 7. Possession. City agrees to deliver to Agency, on the date the Deed conveying said real property to Agency is recorded, quiet and peaceful possession of said real property, which shall be made free by City of all personal property. 8. Waivers. The waiver by Agency of any breach of any covenant or agreement herein contained on the part of City shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or EXHIBIT 2 2 8OA-6 agreement nor a waiver of any breach of any other covenants or agreements contained herein. 9. Heirs, Assigns, Etc. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 10. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 11. Permission to Enter on Premises. City hereby grants Agency, and its authorized agents, permission to enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 12. Just Compensation. City acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes any and all fixtures and equipment, goodwill (if any) and severance. 13. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-22, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing address of the Agency is 20 Civic Center Plaza, M-25, Santa Ana, California, 92702. 14. Exceptions. Agency agrees to accept title to said real property subject to the following: None 15. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by Agency shall lay at rest, each, every and all issue(s) that were raised or could have been raised in connection with the acquisition of said real property by Agency. 16. Hazardous Waste. Neither City nor, to the best of City's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property. Agency shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. 51317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. 56901 et sec . (42 U.S.C. 56903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as EXHIBIT 2 3 8OA-7 amended by Liability Act, 42. U.S.C. 59601 et seq. (42 U.S.C. 59601). 17. Compliance With Environmental Laws. To the best of City's knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. 18. Indemnity. City agrees to indemnify, defend and hold the Agency harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or up to the date this escrow shall close. City shall not be responsible for acts or omissions to act post close of this escrow. 19. Contingency. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the Agency herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance and approval. 20. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Agency and City. 21. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 22. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 24. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof. EXHIBIT 2 4 8OA-8 The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. 25. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 26. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 27. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 28. Authority to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify Agency fully, including reasonable costs and attorney's fees, for any injuries or damages to Agency in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 29. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 30. Release. The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived. Civil Code section 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Notwithstanding the provisions of Civil Code section 1542, City hereby irrevocably and unconditionally releases and forever discharges the Agency and each and all of its officers, agents, directors, supervisors, employees, representatives, and its successors and assigns and all persons acting by, through, under, or in concert with the Agency from any and all charges, complaints, claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or "claims") which City at any time heretofore had or claimed to have or which City at any time hereafter may have or claim to have, including, without limitation, any and all claims related or in any manner incidental to this transaction. EXHIBIT 2 5 8OA-9 IN WITNESS HEREOF, the parties have executed this Agreement as of the date first written below. ATTEST: BY Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph Straka Interim City Attorney/Agency General Counsel BY: Lisa E. Storck, Assistant City Attorney Assistant General Counsel CITY OF SANTA ANA BY: BY: Paul Walters Interim City Manager COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic Nancy T. Edwards Interim Executive Director EXHIBIT 2 6 80A-10 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: EXHIBIT 2 80A-11 EXHIBIT "B" GENERAL ESCROW PROVISIONS All disbursements shall be made by Escrow's check. All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "close of escrow" means the date on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30- day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized. There shall be no prorations of any existing insurance policies in this escrow. You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by you in connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10.00 per month. Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to any instructions must be in writing. The Agency agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. EXHIBIT 2 s 8OA-12 When recorded, please mail this instrument and tax statements to: Community Redevelopment Agency City of Santa Ana 20 Civic Center Plaza, M-37 Santa Ana, California 92701 F- L Free recording requested by THE CITY OF SANTA ANA PER USE GOVERNMENT CODE SECTION 6103. SPACE ABOVE THIS LINE FOR RECORDER'S CANCEL APPROVED AS TO APPROVED BY DESCRIPTION DESCRIPTION A,P. R/W MAP PROJECT TAXES FORM BY ATTY. DIRECTOR WRITTEN BY CHECKED-O.K. NUMBER NUMBER NUMBER GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, Does Hereby Grant to the COMMUNITY REDEVELOPMENT AGENCY FOR THE CITY OF SANTA ANA, a public body, corporate and politic, fee simple title to the real property in the City of Santa Ana, County of Orange, State of California, described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF; Dated By: Paul Walters, Interim City Manager EXHIBIT 2 8OA-13 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: EXHIBIT 2 to 80A-14 REQUEST FOR COUNCIL/ AGENCY ACTION MEETING DATE: JUNE 20, 2011 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED ? As Recommended JOINT PUBLIC HEARING - APPROPRIATION ? As Amended ADJUSTMENT, RESOLUTION AND AGREEMENT ? Ordinance on 1st Reading FOR ACQUISITION AND SALE OF REAL ? Ordinance on 2nd Reading PROPERTY AND ESCROW INSTRUCTIONS FOR ? Implementing Resolution 335 EAST MCFADDEN AVENUE ? Set Public Hearing For CONTINUED TO r IdOlt-t ?' ?? -, ? d ,Q FILE NUMBER CITY MANAGER EXECUTIV IRECTOR RECOMMENDED ACTION CITY COUNCIL 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 335 East McFadden Avenue (APN 011-065- 19). 2. Authorize the City Manager, or designee, to execute the attached agreement for the acquisition of real property from the Community Redevelopment Agency located at 335 East McFadden Avenue (APN 011-065-19) in the amount of $272,860, plus normal closing costs and escrow fees, subject to non-substantive changes approved by the City Manager and City Attorney. 3. Approve an appropriation adjustment recognizing $280,000 in the Residential Development - District 3 revenue account (no. 31313002-53300) and appropriating the same to expenditure account (no. 31313260-66100). COMMUNITY REDEVELOPMENT AGENCY Adopt a resolution authorizing the sale of Agency-owned property located at 335 East McFadden Avenue (APN 011-065-19) to the City of Santa Ana pursuant to the Purchase and Sale Agreement and making certain findings with respect thereto, on behalf of the Community Redevelopment Agency. 8OB-1 Joint Public Hearing - Sale of Agency-Owned Property June 20, 2011 Page 2 2. Authorize the Executive Director, or designee, to execute the attached agreement for the sale of real property to the City of Santa Ana located at 335 East McFadden Avenue (APN 011- 065-19) in the amount of $272,860, plus normal closing costs and escrow fees, subject to non-substantive changes approved by the Executive Director and Agency General Counsel. DISCUSSION During the course of its regular activities, the Community Redevelopment Agency (Agency) acquired a number of properties for residential development through freeway widening and/or street realignment activities, including the subject property. The subject property is located at 335 East McFadden (Exhibit 1) and lies within the Eastside Neighborhood. It is zoned R1 and was initially to be developed as affordable for-sale single family homes. During the developer selection process for the Infill Scattered Sites Project, this property and the five adjacent City-owned properties were removed to allow staff and the community time for the consideration of alternative uses. This approval would consolidate ownership of all the lots and allow further explorations of options as well as funding sources. Under the proposed purchase agreement, the Agency-owned property at 335 East McFadden Avenue will be purchased by the City using District 3 Acquisition and Development funds. The property is currently vacant, and its proposed purchase price of $272,860 is based on its current appraised fair market value. A public notice was published on June 6 and June 13, 2011, in the Orange County Reporter. ENVIRONMENTAL COMPLIANCE In accordance with the California Environmental Quality Act, this sale is exempt from further review. Categorical Exemption number ER-2011-47 will be filed for this project finding that it is exempt pursuant to California Code of Regulations, Title 14, Division 6, Chapter 3, Section 15332(d) and (3). This action results in a transfer of title only and 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. FISCAL IMPACT Funds to purchase the property are available in the District 3 Acquisition and Development account (no. 31313260-66100). Proceeds from the sale of the property to the City of Santa Ana will be deposited in the Agency's Merged Low and Moderate Income Housing Fund account (no. 50718002-58500). 8OB-2 Joint Public Hearing - Sale of Agency-Owned Property June 20, 2011 Page 3 Gerardo Mouet Executive Director Parks, Recreation & Community Services a? Shelly L dry-Bayle, Housing tanager Community Development Agency NTE/SLB/ RO/mlr Exhibit: 1. Map 2. Council Resolution 3. CRA Resolution 4. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: ?\T -1 _? \??.A a fk Francisco Gutierrez Executive Director Finance & Management Services Agency 8OB-3 8OB-4 1015 1012 ' 1019 tO1H 1015 M ^? h ^? .'^,, ?' n M M M ?i n .. h n H h 1021 1020 NORMANDY PL 1023 Iota D N N N m (O N 'N N ?1 1029 1028 1033 1033 030 103 0 1037 F H 1028 !C 1101 1102 1101 ? ? h a p r v 1105 1106 HARWOOD PL 2108 1121 ? ? ? ? '0 ? o v o n 1125 A 4 1112 !u 5{ J127 JJ14 K b 1123 1129 ? ? ? `^ m ` N v r r OLD MC FADDEN AV p o '?v h N 1201 1203 l203 q ?p ?f tl 1205 1108 . 1105 1204 1209 1211 12J1 1213 1214 1215 1208 )217 J11A 1217 f217 2 h M 335 E McFadden Avenue EXHIBIT 1 '^ M M1 M rn ^? n M rn ? m ? 1702 1207 1208 121! 1717 1215 !Z!f !1!A 80B-5 ?961117-Mo, 6/13/11 LES RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE SALE OF AGENCY OWNED PROPERTY LOCATED AT 335 EAST McFADDEN AVENUE; 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 sec..) 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 purchased the property located at 335 E. McFadden Avenue for residential development (the "Property"). C. 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. D. 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 (hereinafter referred to as the "Agreement"). The City will be utilizing District 3 Acquisition and Development Funds to purchase the Property. E. 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. F. The City and Agency held a public hearing on the proposed sale/purchase 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. G. In accordance with the California Environmental Quality Act (CEQA), this project is exempt from further review. A Categorical Exemption (ER-2011-47) has been filed for this project EXHIBIT 2 8OB-7 finding that it is exempt pursuant to California Code of Regulations, Title 14, Division 6, Chapter 3, Section 15332(d) and (3). This action results in a transfer of title only, and 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. H. The City hereby finds that the purchase of the Property will assist in the elimination of blight and is consistent with the adopted implementation plan. 1. The City hereby finds and determines that the information set forth herein is true and correct. J . The City hereby approves the purchase of the Property. 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 or his/her designee 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 Property to the City shall be deposited into the Agency's Merged Low and Moderate Income Housing Fund. Section 5. The Clerk of the Council shall attest to and certify the vote adopting this Resolution. EXHIBIT 2 2 8OB-8 ADOPTED this day of , 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Lisa E. Storck Assistant City Attorney AYES NOES: Councilmembers: 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. 2011- to be the original resolution adopted by the City Council of the City of Santa Ana on Date EXHIBIT 2 Clerk of Council City of Santa Ana 3 8OB-9 8OB-10 6/13/11 LES RESOLUTION NO. 2011- A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY FOR THE CITY OF SANTA ANA APPROVING THE SALE OF AGENCY OWNED PROPERTY LOCATED AT 335 EAST McFADDEN AVENUE; 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 sea.) 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 the property located at 335 E. McFadden Avenue (the "Property") for residential development. C. 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. D. 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 (hereinafter referred to as the "Agreement"). The City will be utilizing District 3 Acquisition and Development Funds to purchase the Property. E. 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. F. 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. EXHIBIT 3 8OB-11 G. In accordance with the California Environmental Quality Act (CEQA), this project is exempt from further review. A Categorical Exemption (ER-2011-47) has been filed for this project finding that it is exempt pursuant to California Code of Regulations, Title 14, Division 6, Chapter 3, Section 15332(d) and (3). This action results in a transfer of title only and 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. H. The Agency hereby finds that the sale of the Property will assist in the elimination of blight and is consistent with the adopted implementation plan. 1. The Agency hereby finds and determines that the information set forth herein is true and correct. J . The Agency hereby approves the sale of the Property 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 or her/his designee 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 Property to the City shall be deposited into the Agency's Merged Low and Moderate Income Housing Fund. Section 5. The Secretary for the Agency shall attest to and certify the vote adopting this Resolution. EXHIBIT 3 2 8OB-12 ADOPTED this day of , 2011. Miguel A. Pulido Chair APPROVED AS TO FORM: Joseph Straka, Interim Agency General Counsel By: Lisa E. Storck Assistant Counsel AYES: NOES: ABSTAIN: NOT PRESENT Boardmembers: Boardmembers: Boardmembers: 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. 2011- to be the original resolution adopted by the Community Redevelopment Agency of the City of Santa Ana on 2011. Date: Secretary, Community Redevelopment Agency City of Santa Ana EXHIBIT 3 3 8OB-13 8OB-14 AGREEMENT FOR PURCHASE/SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS THIS AGREEMENT, entered into this _ day of 2011, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic, (hereinafter referred to as the "Agency") and the CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter referred to as the "City"). WITNESSETH For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the terms, conditions and provisions hereinafter set forth, Agency agrees to sell to City, and City agrees to purchase from Agency, all that certain real property located in the State of California, County of Orange, City of Santa Ana (hereinafter referred to as "said real property") described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 335 E. McFadden Avenue, Santa Ana, CA) Said sale and purchase of said real property shall be in accordance with and subject to all of the following terms, conditions, promises, covenants, agreements and provisions, to wit: 1. Conveyance by Agency. Agency agrees to convey said real property to City, by Grant Deed, at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, within thirty (30) days from and after the date on which the City has approved this Agreement. 2. Title to be Conveyed. Agency agrees that, except as may hereinafter be otherwise expressly provided, said real property shall be conveyed by Agency to City, as aforesaid, free and clear of any and all conditions, restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances, liens, leases, clouds or defects in title except those exceptions shown in Paragraph 14 below. Agency hereby warrants that the title to said real property to be conveyed by Agency to City shall be free and clear as above provided. Agency further agrees that acceptance by City of any deed to said real property, with or without knowledge of any condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance, lien, lease, cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove agreed to be conveyed by Agency to City, nor of any right which might accrue to City because of the failure of Agency to convey title as hereinabove provided. 3. Reserved. 4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First American Way, Santa Ana, California, (the Escrow Agent) within five (5) days from and after the date on which the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and the Agency and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the escrow. EXHIBIT 4 1 8OB-15 The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this Section 4 and of the General Provisions described in Exhibit "B" attached hereto and incorporated herein by this reference, in writing, delivered to the City and to the Agency within five (5) days after delivery of this Agreement, shall carry out its duties as Escrow Agent hereunder. City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes, recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures Section 1265.240. The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 4, Section 6, Section 11 and Exhibit "B" of the General Provisions of this Agreement. 5. Property Taxes. Such real property taxes, if any, on said real property for the fiscal year within which said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California. Agency shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of California for that portion of property taxes on said real property for said fiscal year which have been paid prior to the date the deed conveying said real property to City is recorded which is allocable to that portion of the fiscal year which begins on the date the deed conveying said real property to City is recorded and made uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California. All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance is made shall be paid by Agency before conveyance of said real property to City. 6. Payment of Purchase Price. City agrees to pay to Agency, and Agency agrees to accept from City, as and for the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty), goodwill (if any), severance damages, and relocation claims pursuant to Government Code §7260 et seq., the total sum of Two Hundred Seventy Two Thousand Eight Hundred Sixty Dollars ($272,860.00) City agrees to deposit said purchase price in escrow with the Escrow Agent within THIRTY (30) days from and after the date on which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to Agency upon and after: (a) Conveyance of said real property by Agency to City as hereinabove provided; (b) Acceptance by City of a Grant Deed(s) conveying said real property to City; (c) Delivery to City of the policy of title insurance as hereinabove provided; (d) Recordation of the Deed(s) conveying said real property to City. 7. Possession. Agency agrees to deliver to City, on the date the Deed conveying said real property to City is recorded, quiet and peaceful possession of said real property, which shall be made free by Agency of all personal property. 8. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of Agency shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. EXHIBIT 4 2 8OB-16 9. Heirs, Assigns, Etc. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. 10. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 11. Permission to Enter on Premises. Agency hereby grants City, and its authorized agents, permission to enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary inspections. 12. Just Compensation. Agency acknowledges and agrees that said purchase price is just compensation at fair market value for said real property and includes any and all fixtures and equipment, goodwill (if any) and severance. 13. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-22, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing address of the Agency is 20 Civic Center Plaza, M-25, Santa Ana, California, 92702. 14. Exceptions. City agrees to accept title to said real property subject to the following: None 15. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every and all issue(s) that were raised or could have been raised in connection with the acquisition of said real property by City. 16. Hazardous Waste. Neither Agency nor, to the best of Agency's knowledge, any previous owner, tenant, occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or transported any Hazardous Materials to or from the Property. Agency shall not cause or permit the presence, use, generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. 56901 et seg. (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as amended by Liability Act, 42. U.S.C. 59601 et seq. (42 U.S.C. 59601). EXHIBIT 4 3 8OB-17 17. Compliance With Environmental Laws. To the best of Agency's knowledge the Property complies with all applicable laws and governmental regulations including, without limitation, all applicable federal, state, and local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters, including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city within which the subject property is located, the California Department of Health Services, the Regional Water Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all applicable federal, state, and local agencies and bureaus. 18. Indemnity. Agency agrees to indemnify, defend and hold the City harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the transportation of any such materials to or from, the Property, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or from, the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage, cost, or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, pollution, contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to liability created prior to or up to the date this escrow shall close. Agency shall not be responsible for acts or omissions to act post close of this escrow. 19. Contingency. It is understood and agreed between the parties hereto that the completion of this transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance and approval. 20. Modification and Amendment. This Agreement may not be modified or amended except in writing signed by the Agency and City. 21. Partial Invalidity. Any provision of this Agreement that is unenforceable or invalid or the conclusion of which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but all the remaining provisions of this Agreement shall remain in full force. 22. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 23. Governin Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 24. No Reliance By One Party On The Other. Each party has received independent legal advice from its attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based upon any attribution to such party as the source of the language in question. EXHIBIT 4 4 8OB-18 25. No Third Party BenefidM. This Agreement is intended to benefit only the parties hereto and no other person or entity has or shall acquire any rights hereunder. 26. Duty To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this Agreement, without cost. 27. Applicability of Agreement To Assignees. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to this Agreement. 28. Authority to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this 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. 29. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 30. Release. The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State of California are hereby waived. Civil Code section 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Notwithstanding the provisions of Civil Code section 1542, Agency hereby irrevocably and unconditionally releases and forever discharges the City and each and all of its officers, agents, directors, supervisors, employees, representatives, and its successors and assigns and all persons acting by, through, under, or in concert with the City from any and all charges, complaints, claims, and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or "claims") which Agency at any time heretofore had or claimed to have or which Agency at any time hereafter may have or claim to have, including, without limitation, any and all claims related or in any manner incidental to this transaction. EXHIBIT 4 5 8OB-19 IN WITNESS HEREOF, the parties have executed this Agreement as of the date first written below. ATTEST: BY: BY: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: CITY ATTORNEY/AGENCY GENERAL COUNSEL BY: Lisa E. Storck, Assistant City Attorney Assistant General Counsel CITY OF SANTA ANA, a charter city and municipal corporation Paul Walters Interim City Manager COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic BY: Nancy T. Edwards Interim Executive Director EXHIBIT 4 6 80B-20 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: EXHIBIT 4 7 80B-21 8OB-22 EXHIBIT "B" GENERAL ESCROW PROVISIONS All disbursements shall be made by Escrow's check. All funds received in this escrow shall be deposited in one or more of your general escrow accounts with any bank doing business in the State of California and may be transferred to any other general escrow account or accounts. The expression "close of escrow" means the date on which instruments referred to herein are filed for record. All adjustments are to be made on the basis of a 30- day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance of a policy of title insurance called for, is hereby authorized. There shall be no prorations of any existing insurance policies in this escrow. You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney or attorneys involved in this transaction upon request of such lenders, brokers or attorneys. Should you before or after close of escrow receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein affected hereby, you shall have the right to discontinue any or all further acts on your part until such conflict is resolved to your satisfaction, and you shall have the further right to commence or defend any action or proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by you in connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a suit in interpleader brought by you. In the event you file a suit in interpleader, you shall ipso facto be fully released and discharged from all obligations imposed upon you in this escrow. If for any reason funds are retained or remain in escrow, you are to deduct therefrom a reasonable monthly charge as custodian thereof of not less than $10.00 per month. Time is declared to be the essence of these instructions. If you are unable to comply within the time specified herein and such additional time as is required to make an examination of the official records, you will return all documents, money or property to the party entitled thereto upon satisfactory written demand and authorization. Any amendment of and/or supplement to any instructions must be in writing. The Agency agrees to sell and the buyer agrees to buy the property herein described upon the terms hereof. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. EXHIBIT 4 s 8OB-23 8OB-24 When recorded, please mail this instrument and tax statements to: Clerk of the Council ? City of Santa Ana Fi 20 Civic Center Plaza, M-30 ? Santa Ana, California 92701 Free recording requested by THE CITY OF SANTA ANA PER J GOVERNMENT CODE SECTION 6103. SPACE ABOVE THIS LINE FOR RECORDER'S US CANCEL APPROVED AS TO APPROVED BY DESCRIPTION DESCRIPTION A,P. R/W MAP PROJECT TAXES FORM BY ATTY. DIRECTOR WRITTEN BY CHECKED-O.K. NUMBER NUMBER NUMBER X Hein zo0ars 011-065-19 GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the COMMUNITY REDEVELOPMENT AGENCY FOR THE CITY OF SANTA ANA, Does Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California, fee simple title to the real property located at 335 E. McFadden Avenue, in the City of Santa Ana, County of Orange, State of California, described as follows: SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF; Dated } STATE OF CALIFORNIA )SS. COUNTY OF 1 On before me, personally appeared proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/ their signatures) on the instrument the person(s) or the entity upon be- half of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature BY: Nancy T. Edwards, Interim Executive Director Community Redevelopment Agency (This area for official notary seal) MAIL TAX STATEMENTS AS DIRECTED ABOVE EXHIBIT 4 9 8OB-25 8OB-26 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: EXHIBIT 4 10 8OB-27 8OB-28