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FULL PACKET_2012-03-05
MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA FEBRUARY 21, 2012 CLOSED SESSION MEETING CALLED TO ORDER POLICE COMMUNITY ROOM 60 CIVIC CENTER PLAZA SANTA ANA, CA 5:24 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO (5:41 p.m.) PUBLIC COMMENTS COUNCILMEMBERS Absent: None STAFF Present: PAUL M. WALTERS, Interim City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council None COUNCIL RECESSED to Police Chief's Conference Room, 4th Floor, 60 Civic Center Plaza for Closed Session discussion at 5:25 p.m. CLOSED SESSION ITEMS 1A CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6 Agency Negotiators: Personnel Services Executive Director, Ed Raya CITY COUNCIL MINUTES 1 FEBRUARY 21, 2012 1 0A -1 Employee Organizations: Santa Ana Police Officers Association (POA) Santa Ana Police Management Association (PMA) Santa Ana Firemen's Benevolent 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 M. Walters Employee Organizations: Executive Management (EM) 1 B CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) 1. Andres Junior Ramirez, et al. v. City of Santa Ana, Orange County Case No. 30- 2011- 00446307 2. Basilio Martinez v. City of Santa Ana, Orange County Superior Court Case No. 30- 2010 - 00430491 3. Santa Ana California Lodge LLC v. City of Santa Ana, Orange County Superior Court Case Nos. 30- 2009 - 00249020 and 30- 2009 - 00118768 *Councilmember Martinez left the meeting at 5:55 p.m. due to a conflict of interest (campaign contribution) and returned at 6:00 p.m. 1C CONFERENCE WITH LEGAL COUNSEL -- ANTICIPATED LITIGATION pursuant to Government Code Section 54956.9(b) - Two 1 D PUBLIC EMPLOYEE EMPLOYMENT AND APPOINTMENT pursuant to Government Code Section 54957(b)(1) CITY COUNCIL MINUTES 2 FEBRUARY 21, 2012 G r�7. Title: City Attorney; and City Manager CLOSED SESSION REPORT — See Item 19A for Report. ADJOURNED THE CLOSED SESSION MEETING AT 6:12 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 3 FEBRUARY 21, 2012 i NMI OPEN SESSION MEETING CALLED TO ORDER POLICE COMMUNITY ROOM 60 CIVIC CENTER PLAZA SANTA ANA, CA 6:19 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA ALVAREZ, Mayor Pro Tem P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO PLEDGE OF ALLEGIANCE CLOSED SESSION REPORT COUNCILMEMBERS Absent: None STAFF Present: PAUL M. WALTERS, Interim City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council MAYOR PULIDO See Agenda Item 19A for Report. PUBLIC COMMENT • John Carr, representing In God We Trust America, asked the City Council to consider adding discussion of "In God We Trust" motto in the Council Chamber at the next City Council meeting. • Larry DeCrona, representing Superior Property Services, spoke on Agenda Item 25E, objects to renewal of contract. • Barry Woods, representing Graffiti Control, spoke on Agenda Item 25E; urged City Council to vote no on item and re -bid the contract. • David Hunt, of Friedman, Stroffe and Gerard, commented on Agenda Item 25E; advocated on behalf of competitive company to re -bid contract. • Connie Hamilton, representing Connect -to- Council, hosting meeting at Washington Elementary School on February 291h at 7 p.m.; invited all to attend meeting. • Brad Torgan, representing the Silverstein Law Firm, addressed the City Council on Agenda Item 5513; opposed to staff recommendations; submitted letter of protest for the record. CITY COUNCIL MINUTES 4 FEBRUARY 21, 2012 1 0A -4 • Chris Roelle, representing the Santa Ana Firemen's Benevolent Association, commented on the 128 -year history of the Fire Department and serving the Santa Ana community; willing to go to the Orange County Fire Authority. • Thomas Gordon, commented on Agenda Item 25E, noted that contractor doing a good job; graffiti has not decreased; suggested that the City enforce ordinance and hold violators accountable. CONSENT CALENDAR ITEMS MOTION: Approve Consent Calendar Items 10A through 31B with the following modifications: • Mayor Pulido pulled Agenda Item 25E for separate discussion; and • Councilmember Martinez abstained on Agenda Item 31A due to a conflict of interest (campaign contribution). MOTION: Alvarez SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) ADMINISTRATIVE MATTERS MINUTES 10A MINUTES OF THE REGULAR MEETING OF FEBRUARY 6, 2012 - Clerk of the Council Office MOTION: Approve Minutes. BOARDS / COMMISSIONS / COMMITTEES 13A REAPPOINTMENT OF WORKFORCE INVESTMENT BOARD MEMBERS - Community Development Agency CITY COUNCIL MINUTES 5 FEBRUARY 21, 2012 1 0A -5 MOTION: Reappoint Rob Claudio, Gilbert Davila, David Elliott, Lee de Leon, Marjorie Knitter, Erlinda Martinez, Steve Piwnica, Clarence Ray, Carlos de la Riva, Stacey Sanchez, and Daniel Su to the Santa Ana Workforce Investment Board for four -year terms expiring March 31, 2015. 13B COUNCIL COMMITTEE REPORTS - Police Department MOTION: Receive and file the Public Safety Committee Minutes of September 27, 2011. MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT — None. 19B EXCUSED ABSENCES — None 19C QUARTERLY REPORT OF CONTRACTS ENTERED INTO BY THE CITY MANAGER - Finance & Management Services MOTION: Receive and file the Quarterly Report of Contracts entered into between October 1, 2011 to December 31, 2011, valued at $25,000 and less. 19D REQUEST FOR PROPOSALS FOR ENVIRONMENTAL SERVICES FOR THE BAT NHA BUDDHIST MEDITATION CENTER, 803 SOUTH SULLIVAN STREET - 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 for a new meditation center for the Bat Nha Buddhist Temple. 19E REQUEST FOR PROPOSALS FOR ENVIRONMENTAL SERVICES FOR THE CALVARY CHURCH EXPANSION PROJECT, 1010 NORTH TUSTIN AVENUE - 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 for the expansion of Calvary Church. CITY COUNCIL MINUTES 6 FEBRUARY 21, 2012 iil�l�� BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A AGREEMENTS WITH THE CALIFORNIA STATE LIBRARY AND APPROPRIATION ADJUSTMENT FOR LIBRARY SERVICES ENHANCEMENT GRANTS - Parks, Recreation & Community Services Agency MOTION: 1. Authorize the City Manager and Clerk of the Council to execute agreements, subject to non - substantive changes approved by the City Manager and City Attorney. • AGMT NO. 2012 -025 - With the California State Library in the amount of $5,000 for a Library Services and Technology Act (LSTA) program, Digitizing Yourself into the Internet Community. • AGMT NO. 2012 -026 - With the California State Library in the amount of $4,983 for a Library Services and Technology Act program, Literacy on the Move. • AGMT NO. 2012 -027 - With the California State Library in the amount of $3,000 for a Library Services and Technology Act program, Santa Ana Youth Overcoming Obstacles. 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2012 -125 - Recognizing $12,983 in the LSTA Grant Awards revenue account and appropriating same to expenditure account. SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES MOTION: Award in accordance with Request for Council Action. (Items 22A through 22C) 22A SPEC. NO. 12 -009 - AMMUNITION - Award a contract for a total aggregate amount not to exceed $98,500 with the vendors listed below (Police Department) - Finance & Management Services: Vendor Adamson Police Products Dooley Enterprises, Inc CITY COUNCIL MINUTES 7 1 0A -7 Location Los Alamitos, CA Anaheim, CA FEBRUARY 21, 2012 Grace Ammo, LLC Eagle, CO San Diego Police Equipment San Diego, CA 22B SPEC. NO. 12 -017 - SECURITY SYSTEM CAMERAS, HARDWARE, AND MAINTENANCE (UASI FUNDED) - Award a contract to Mallory Safety & Supply Company in an amount not to exceed $217,000 (Police Department) - Finance & Management Services 22C SPEC. NO. 11 -069 AND 12 -013 - CORBIN CENTER RE- ROOFING PROJECT (Parks, Recreation & Community Services Agency) - Finance & Management Services • Reject the contract award to Cook Coatings, Inc. for re- roofing the Corbin Center in an amount not to exceed $41,790. Award a contract to Foam Experts Roofing, Inc. for the Corbin Center re- roofing project in an amount not to exceed $41,000. PROJECTS /CHANGE ORDERS 23A CONTINGENCY INCREASE FOR BRISTOL - WARNER INTERSECTION (PROJECT NO. 091752) - Public Works Agency MOTION: Increase the contingency for the contract with Hillcrest Contracting Inc. for the construction of the Bristol- Warner Intersection Widening Project by $250,000 to a total estimated contract amount of $1,587,091 and authorize the City Manager to execute change orders in an amount not to exceed the authorized contingency. AGREEMENTS MOTION: Authorize the City Manager and Clerk of the Council to execute the following agreements, subject to non - substantive changes approved by the City Manager and City Attorney and /or actions as noted on the Request for Council Action report. (Item 25A through 25D and 25F) 25A AGMT NO. 2012 -028 - MEDICAL SUPPLIES AND PHARMACEUTICALS — Execute an amendment with Santa Ana Western Medical Center in an amount not to exceed $40,000 annually - Fire Department CITY COUNCIL MINUTES 8 FEBRUARY 21, 2012 illyx;� 25B AGMT NO. 2012 -029 - JAIL MANAGEMENT SYSTEM MAINTENANCE - With Advanced Technology Information Management Systems (ATIMS) in an amount not to exceed $105,000 - Police Department 25C AMENDMENTS - HOMELESSNESS PREVENTION AND RAPID RE- HOUSING PROGRAM AGREEMENTS - Community Development Agency • AGMT NO. 2012 -030 - With Olive Crest decreasing the Homelessness Prevention grant amount by $40,000. • AGMT NO. 2012 -031 - With Public Law Center increasing the Homelessness Prevention grant amount by $20,000. • AGMT NO. 2012 -032 - With Mercy House increasing the Homelessness Prevention grant amount by $20,000. 25D AGMT NO. 2012 -033 - FOUNTAIN MAINTENANCE SERVICES AT THE SANTA ANA REGIONAL TRANSPORTATION CENTER - Execute an amendment with Service 1st in an annual amount of $3,300 for a total agreement amount not to exceed $39,990 - Parks, Recreation & Community Services Agency and Public Works Agency 25E RENEWAL OF AGREEMENT FOR ,GRAFFITI REMi3lAL SERVICES Execute a renewal with Graffiti Protective Coatings, Inc., in an amount not to exceed $600,000 for the period of March 1, 2012 through February 28, 2013 - Public Works Agency Mayor Pulido requested a continuance to allow staff to review comments made at tonight's meeting and scope of service. MOTION: Continue consideration of matter for 30 days. MOTION: Alvarez SECOND: Sarmiento Council discussion ensued. Councilmember Martinez asked that item come back for council consideration in two -weeks rather than 30 days since contract expiring in February. Councilmember Bustamante echoed comments that contractor doing a good job, but would support motion. Councilmember Tinajerno clarified that City is enforcing graffiti ordinance. CITY COUNCIL MINUTES 9 FEBRUARY 21, 2012 LL1 A , SUBSTITUTE MOTION: Continue consideration of matter to the March 5, 2012 City Council Meeting. MOTION: Alvarez SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 25F AGMT NO. 2012 -034 — WEB -SITE MAINTENANCE AND COMMUNICATION SERVICES FOR EMERGENCY PREPAREDNESS (UASI FUNDED) - Execute an amendment with Westbound Communications in an additional amount of $24,000, for a new total contract amount of $174,000 — Police Department LAND USE MATTERS CONDITIONAL USE PERM ITIVARIANCES 31A CONDITIONAL USE PERMIT NO. 2011 -09 (APPEAL NO. 2011 -01) TO AMEND CERTAIN CONDITIONS FOR MARISCOS ZAMORA RESTAURANT - 3701 WEST MCFADDEN AVENUE, SUITES G -J; JOSEFAT ZAMORA, APPLICANT - Planning and Building Agency Recommended action approved by the Planning Commission on December 12, 2011, by a vote of 5 -2 (Acosta and Yrarrazaval opposed). Continued from the February 6, 2012 City Council Meeting by a vote of 5 -0 (Martinez and Pulido, absent). MOTION: Receive and file the staff report approving Conditional Use Permit No. 2011 -09 (Appeal No. 2011 -01). *Councilmember Martinez abstained on Item 31A due to a conflict of interest. (campaign contribution) 31 B CONDITIONAL USE PERMIT NO. 2011 -25 TO ALLOW THE CONSTRUCTION OF A 60 -FOOT HIGH WIRELESS FACILITY STEALTHED AS A EUCALYPTUS TREE LOCATED IN THE LIGHT CITY COUNCIL MINUTES 10 FEBRUARY 21, 2012 ii[ll_dl�� INDUSTRIAL (M1) ZONING DISTRICT - 1301 EAST WARNER AVENUE; FILED BY TRILLIUM CONSULTING INC., REPRESENTING AT &T WIRELESS - Planning and Building Agency Recommended action approved by the Planning Commission on January 23, 2012, by a vote of 6 -0 (Turner absent). MOTION: Receive and file the staff report approving Conditional Use Permit No. 2011 -25 as conditioned. * *END OF CONSENT CALENDAR ** BUSINESS CALENDAR ITEMS RESOLUTIONS 55A RESOLUTION CERTIFYING ENVIRONMENTAL IMPACT REPORT (EIR) FOR SAN LORENZO SEWER LIFT STATION AND CONCEPTUAL APPROVAL OF SAN LORENZO SEWER LIFT STATION PROJECT - Public Works Agency Item continued from the January 17, 2012, City Council meeting by a vote of 7 -0; continued from the February 6, 2012, City Council meeting by a vote of 5 -0 (Pulido and Martinez absent). Clerk of the Council Huizar noted that maps submitted by staff would be entered into the record. MOTION: 1. Adopt a resolution. RESOLUTION NO. 2012 -001 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CERTIFYING THE ENVIRONMENTAL IMPACT REPORT FOR THE SAN LORENZO SEWER LIFT STATION PROJECT, ADOPTING CERTAIN FACTS, FINDINGS AND A STATEMENT OF OVERRIDING CONSIDERATIONS, AND ADOPTING A MITIGATION MONITORING AND REPORTING PROGRAM 2. Conceptually approve the proposed San Lorenzo Sewer Lift Station as described in the Final EIR. MOTION: Alvarez SECOND: Bustamante CITY COUNCIL MINUTES 11 FEBRUARY 21, 2012 1 0A -11 VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 55B RESOLUTION SUSPENDING CREDIT CARD /ELECTRONIC FUNDS TRANSFER TRANSACTION FEE - Finance & Management Services MOTION: Adopt a resolution. RESOLUTION NO. 2012 -004 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA SUSPENDING THE CREDIT CARD / ELECTRONIC FUNDS TRANSFER TRANSACTION FEE MOTION: Alvarez SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) *Councilmember Martinez left the room due to a conflict of interest (campaign contribution) at 6:41 p.m. for Items 60A, 60B, and 60C. ADMINISTRATIVE MATTERS - BUSINESS 60A AGREEMENT WITH THE FIREMEN'S BENEVOLENT ASSOCIATION (FBA) - RIGHTS AND ENTITLEMENTS OF MEMBERS Council discussion ensued. Mayor Pro Tern Alvarez noted that discussion to contract fire services started many months ago, difficult because of great working relationships over the years; thanked all fire staff; many will remain in the City; City approving partnership with Orange County Fire Authority (OCFA); will re- evaluate contract in six years; urged all to provide feedback on services. Councilmember Sarmiento indicated that decision difficult, but needed for solvency of the City; thanked OCFA for partnership; negotiations have CITY COUNCIL MINUTES 12 FEBRUARY 21, 2012 1 0A -12 been smooth and thanked all for making that possible; OCFA acquiring high level staff. Councilmember Bustamante echoed comments; fire staff to wear different uniform, but remain in City and continue to provide high quality service to our community; will continue to attend events. Councilmember Benavides reflected that Santa Ana Fire Department has been tradition for past 128 years; OCFA offers great stability that will continue tradition. Councilmember Tinajero commented that OCFA taking on highly trained and motivated staff; thanked firefighters for being solution to City's financial problem. Mayor Pulido thanked Interim City Manager Paul Walters, Fire Chief Dave Thomas, and OCFA Chief Keith Richter for work in making partnership possible. MOTION: Authorize the City Manager and Clerk of the Council to execute the agreement, subject to non - substantive changes approved by the City Manager and City Attorney. AGMT NO. 2012 -035 - With the Firemen's Benevolent Association regarding the rights and entitlements of members should the City contract with the Orange County Fire Authority to provide firefighting and related services — Personnel Services Agency MOTION: Alvarez SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido, Sarmiento, Tinajero (6) NOES: None (0) ABSTAIN: Martinez (1) ABSENT: None (0) 60B AGREEMENT WITH THE FIRE MANAGEMENT ASSOCIATION (FMA) - RIGHTS AND ENTITLEMENTS OF MEMBERS Mayor Pro Tern Alvarez noted that Santa Ana Fire Department is designated as Class A, proud to have highest level; thanked fire management for making that possible; City reviewed other options prior to outsourcing, but OCFA most feasible. CITY COUNCIL MINUTES 13 FEBRUARY 21, 2012 1 0A -13 60C MOTION: Authorize the City Manager and Clerk of the Council to execute the agreement, subject to non - substantive changes approved by the City Manager and City Attorney. AGMT NO. 2012 -036 - With the Fire Management Association regarding the rights and entitlements of members should the City contract with the Orange County Fire Authority to provide firefighting and related services — Personnel Services Agency MOTION: Alvarez SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido, Sarmiento, Tinajero (6) NOES: None (0) ABSTAIN: Martinez (1) ABSENT: None (0) AGREEMENT WITH THE ORANGE COUNTY FIRE AUTHORITY (OFCA) - OUTSOURCING FIRE AND EMERGENCY MEDICAL SERVICES Mayor Pro Tern Alvarez stated for the record that the City will evaluate contract renewal in 2018; OFCA has requested protection from the City through posting of a bond not required by any other OCFA member agency; City to seek protection too and asked that bond requirement be reviewed in 2 years; concerned with unfunded liability; Public Safety Committee to have evaluation process for OCFA contract. MOTION: Authorize the City Manager and Clerk of the Council to execute the agreement, subject to non - substantive changes approved by the City Manager and City Attorney. AGMT NO. 2012 -037 — With the Orange County Fire Authority for the purposes of outsourcing fire and emergency medical services effective April 20, 2012 for an eight -year term with renewal options - City Manager's Office MOTION: Bustamante SECOND: Tinajero VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido, Sarmiento, Tinajero (6) NOES: ABSTAIN: None (0) Martinez (1) CITY COUNCIL MINUTES 14 FEBRUARY 21, 2012 1 0A -14 ABSENT: None (0) *Councilmember Martinez returned to the meeting at 7:09 p.m. COMMENTS 90A CITY MANAGER'S COMMENTS • Interim City Manager Walters thanked the City Council, staff, and union representatives for working on the Fire Department outsourcing. 90B CITY COUNCILMEMBER COMMENTS Councilmember Tinajero: • Commented on bittersweet decision to outsource the fire department, but OCFA is a great organization; budget efforts have realized significant savings. Councilmember Benavides: • Echoed comments made earlier; budget decisions have not been easy, but necessary to address $30 million deficit; have avoided massive layoffs; look forward to stability of the City. Councilmember Bustamante: • Acknowledged the Orange County Fire Authority efforts, keeping City logo on fire apparatus; look forward to great partnership. Councilmember Martinez: • Noted that she was not able to vote on fire outsourcing matters; thanked colleagues for making tough decisions; recognized professionalism and leadership of firefighters, community will continue to receive fire related services; thanked staff for moving City forward. Councilmember Sarmiento: • Cautioned that City making strides toward financial health, but more work needed; structural changes required; and • Fire Department recently recognized for 128th Anniversary; OCFA absorbing Class A fire department with highly trained and qualified personnel. *Councilmember Tinajero left the meeting at 7:19 p.m. and did not return. Mayor Pro Tern Alvarez: • Commented that all 10 fire stations to remain open; change staffing of each fire engine from 4 to 3 staff members; fire staff will continue to CITY COUNCIL MINUTES 15 FEBRUARY 21, 2012 1 0A -15 attend community events; fire station number changing to add a 70 in front, i.e. Station 1 will be 71; and • Urged all to visit the Santa Ana Fire Department Museum at Station 5. Mayor Pulido: • Noted that firefighters still voting (on rights and entitlements of members) as it related to the outsourcing of fire services; • City to host commemorative event to mark the partnership between the City and the OCFA; • City will continue to receive high quality fire services; and • Thanked all for efforts made to allow City to have better financial health. ADJOURNED- 7:25 P.M. - The next meeting of the City Council is scheduled for Monday, March 5, 2012 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting at 6:00 p.m. in the Council Chamber, 22 Civic Center Plaza, Santa Ana, California. Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES 16 FEBRUARY 21, 2012 iillym � REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: DESTRUCTION OF OBSOLETE CITY RECORDS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2006 -045. DISCUSSION On July 3, 2006, the City Council approved a resolution outlining the records retention schedule for the agencies, departments, and offices of the City. City records are governed by the Public Records Act which provides the time in which records need to be kept. The Citywide Records Team compiled the Citywide Records Retention Schedule which sets forth the retention period for a particular record. The Municipal Code requires that the destruction of a City record be approved by the City Attorney. In accordance with Section 513 of the Citywide Records Retention Schedule Resolution, the City Attorney has approved the list of records proposed for destruction from the departments as outlined in the attached documents. FISCAL IMPACT There is no fiscal impact associated with this item. 19C -1 19C -2 MEMORANDUM To: Laura Sheedy, Assistant City Attorney City Attorney's Office From: Mark Lawrence, Executive Assistant to the City Manager Date: March 1, 2012 Re: REQUEST FOR DESTRUCTION OF RECORDS The City Manager's Office requests your consent to destroy city records on the attached listing, in accordance with the retention schedule outlined in City Council Resolution 2006 -045. Thank you. Arl i 19C -3 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE CITY MANAGER'S OFFICE 2012 RECORD RECORD RECORD EXPIRATION CATEGORY SERIES DESCRIPTION DATES Chronological Files Staff Memoranda and Correspondence March 1. 2010 and prior Correspondence/ March 1. 2010 and prior Chronological Files Councilmember Self- explanatory Council Requests Mayor Inquiries processed for Mayor March 1. 2010 and prior Wards 1 through 6 Inquiries processed for Councilmembers March 1. 2010 and or+cr Correspondence General Correspondence Self- explanatory March " 2010 and orior Staff Inquiries processed for Staff March 1. 2010 and pnor Monthly Status City Manager Self- explanatory March 1, 2010 Reports and orlor Payroll Records Council /Staff Self- explanatory March 1. 2010 and orlor March 1. 2010 Travel Folders Council /Staff Self- explanatory and pnor APPROVE: Paul M. Walters Date Interim City Manager RECORDS DESTROYED: Volume in Cubic Feet Weight in Pounds 19C -4 CONSENT: 1V -2 �t Joseph Straka ate Interim City Attorno AUDITED BY: Mark Lawrence Date Exec. Assistant to the City Manager REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: QUARTERLY REPORT FOR HOUSING DIVISION PROJECTS AND ACTIVITIES: OCTOBER 2011 — DECEMBER 2011 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 February 21, 2012, by a vote of 6:0 (Morfin absent), the Community Redevelopment and Housing Commission approved the recommended action. DISCUSSION This status report for the quarter ending on December 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. Applications are mailed out Chart 1: Applications Mailed 19D -1 Single Family Rehab 12 Homebuyer Mobile Assistance 25 Home Hardship 3 Quarterly Report for Housing Division Projects and Activities: October 2011 — December 2011 March 5, 2012 Page 2 and received for these programs on a continuing basis. Chart 1 shows the number of applications sent out by type during the quarter. Of the applications sent, none have been returned. Loan Underwritinq and Approval Process 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 time in underwriting is largely determined by the applicant's timely submittal of the necessary paperwork. Once approved, staff prepares all necessary loan documents, makes arrangements for execution, and reserves the required loan funds. Three homebuyer assistance loans and two homeowner rehabilitation loans were approved during the second quarter of the fiscal year, and Table 1 provides details on these loans. Table 1: Loans Approved During the Second Quarter Address Loan Amount Loan Type 1319 Seventh Street $10,000 Homebu er Assistance 1634 Twelfth Street $10,000 Homebu er Assistance 2519 Jacaranda St. $16,649 Homeowner Rehab 432 Harbor Blvd., Sp 154 $5,000 Homeowner Rehab 701 Park PI. $20,160 Homebu er Assistance Chart 2 shows the number of loans approved during the fiscal year to date. 4 M Construction Process Chart 2. Loans Approved In FY Homeowner Rehab Home buyer Assistance 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 W01 MA Quarterly Report for Housing Division Projects and Activities: October 2011 — December 2011 March 5, 2012 Page 3 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 the 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 second quarter, there were four multifamily projects with 51 units under construction and five homeowner rehab projects under construction. 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 second quarter, the principal balance was $83,873,724. This is comprised of 477 loans of which 417 are deferred or residual receipt payment loans. As shown in Table 2, the loan portfolio generated $70,721 in payments of principal and interest during the quarter: Table 2: Portfolio Revenue Unscheduled Loan Payoffs $28,085 Amortized Loan Payments $42,636 Total $70,721 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 year to date 160 letters have been sent to homeowners to verify that they continue to occupy the home as their primary residence. Four homeowners have been found not to be in compliance with their loan terms because they no longer live in the homes the City assisted, and the City has begun the process to get repayment. During the second quarter, staff also conducted code compliance inspections for 39 units in nine projects. Regulations require that only a sample be selected for inspection. Staff also inspects the grounds and common areas such as laundry rooms to ensure they also meet City code requirements. All of the inspected units, as well as the grounds and common areas, were found to be in compliance. All of the units passed at the time of inspection, and no follow -up visits were required. 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 all three NSP awards for i Lei 051 Quarterly Report for Housing Division Projects and Activities: October 2011 — December 2011 March 5, 2012 Page 4 which it was eligible. 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 that have very low- incomes. The City has exceeded all of these requirements. All of our NSP 1 grant funds were obligated by August of 2010; and by the end of the second quarter, we had already expended more than $6.7 million or 116% of its grant amount. The amount spent is greater than the grant amount because it includes program income. The most current federal reports show that only 23% of NSP 1 grantees have spent 100% or more of their grant amount. Finally, the City has spent $2.34 million, or 33% of all of its NSP 1 funds, on projects that serve very low- income households exclusively. Currently NSP 1 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 second quarter, ANR had used NSP 1 funds to acquire 35 single - family homes and condominium units 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 single family properties purchased with NSP 1 funds as of the end of the second quarter. 40 Chart 3: NSP 1- Status of All Single Family Properties 35 30 25 20 15 10 5 0 Acquisition Under Resale Sold Rehabilitation No NSP 1 properties were sold during the second quarter. 19D -4 Quarterly Report for Housing Division Projects and Activities: October 2011 — December 2011 March 5, 2012 Page 5 The partnership of Orange Housing Development Corporation (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 36 affordable rental units. They were approved for tax credits and have started construction. Both projects will be targeted to households at or below 50% of AMI. NSP 2 Program The City's second award (NSP 2) for $10 million was received through a highly competitive process in which only 15 local government agencies were successful. Most 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 second quarter, the City had expended $7.7 million or 77% of its funds. The most current federal reports show that only 18% of NSP 2 grantees have spent 50% or more of their 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 $4.3 million in NSP 2 funds and has leveraged an additional $4.8 million in private funds to make these affordable units available. Chart 4 shows the status of all properties Chart 4: NSP 2- Status of All Single Family Properties 25 20 15 10 5 0 Acquisition Under Rehab Resale Sold purchased with NSP 2 funds as of the end of the second quarter. Tables 4, 5, and 6 provide additional detail. Table 4: NSP 2 Properties Under Rehabilitation A�OWa s Projected Completion Date 4keham 3/ 1/2012 1901-5 Quarterly Report for Housing Division Projects and Activities: October 2011 —December 2011 March 5, 2012 Page 6 Table 5: NSP 2 Single Family Properties Available for Sale Address Affordability Level 1340 S. Douglas Moderate 927 W. Berkeley Moderate 323 E. Chestnut Moderate 216 N. Bush Moderate 1119 W. 5 th Moderate Table 6: NSP 2 Single Family Properties Sold Durinq the Second Quarter Property Address Silent 2" Income Level 1634 W. 12th $10,000 Moderate 2047 S. Birch $10,000 Moderate 1319 W. 7th $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. The RFP solicited the services of an individual or firm qualified to acquire, rehabilitate, and resell foreclosed and abandoned single family homes in accordance with NSP 3 regulations. ANR Homes, Inc. was selected to receive the contract, and it was approved by City Council on June 20, 2011. As required by regulations, comprehensive detailed quarterly reports on all the City's NSP Programs are posted on the City's website at http:/ /www.santa - ana.org /cda /NSP.asp. i Lei Quarterly Report for Housing Division Projects and Activities: October 2011 — December 2011 March 5, 2012 Page 7 In -fill Development Projects Habitat for Humanity of Orange County expects to close escrow in February on the property at 717 E. Third Street. This will be the site of their first single family development. OHDC and C & C Development have begun construction of multi - family housing on the sites located at 217, 219 & 435, 437 South Birch Street, 2034 & 2038 North Bush Street, and 605 -611 E. Washington. Finally, the Redevelopment Agency selected Hope Builders, a subsidiary of Taller San Jose, as the developer for two single family homes on a site identified as 542 East Central Avenue. Unfortunately, staff and Hope Builders were unable to come to terms and sign a Disposition and Development Agreement prior to the elimination of the Agency. Station District The Station District Apartment Homes Phase I will include 74 units of large family affordable rental housing which are currently under construction and expected for completion in the 1St Quarter 2013. Phase II will include an additional 40 units of large family affordable rental housing involving a combination of new construction (25 units) and rehabilitation of existing residential structures (15 units). Phase II is expected to finalize financing and will commence construction in March 2012. In addition, a third phase of for sale housing, to be developed by City Ventures, will include approximately 24 units of large family homes, with the first component of eight townhomes expected to commence construction in Spring 2012. FISCAL IMPACT There is no fiscal impact associated with this action. Nancy T. E ards Interim Executive Director Community Development Agency NTE /SLB/TG /mlr 1901-7 i Lei lilloe,� REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: REPORT ON GREENHOUSE GAS INVENTORY AND CLIMATE ACTION PLAN PROCESS 4zitk 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 report on Greenhouse Gas Inventory and Climate Action Plan Process. DISCUSSION On November 7, 2011, City Council approved an agreement with ICLEI — Local Governments for Sustainability USA to develop a baseline greenhouse gas emissions inventory and a climate action plan. Funding for the project was made available through The California Public Utilities Commission, Local Government Strategic Plan for those cities with an existing Energy Efficiency Partnership with Southern California Edison (SCE). The contract with SCE requires that the work be completed by October 15, 2012. A number of factors are driving the City to develop a GHG Inventory and CAP including: • Assembly Bill 32: Requires Air Resources Board to adopt a statewide GHG emissions limit to reach 1990 levels by 2020. • Senate Bill 97: Directs the Governor's Office of Planning and Research to develop CEQA guidelines for the mitigation of GHG emissions or the effects of GHG emissions. • Senate Bill 375: Requires Air Resources Board to develop regional GHG emissions reduction targets for passenger vehicles. • California Energy Efficiency Strategic Plan: Goals and strategies for saving energy applicable to government, utilities and the private sector. Santa Ana has had an Energy Efficiency Partnership with SCE since 2008. SCE offered funding to partner cities for completion of tasks that support the California Energy Efficiency Strategic Plan. The SCE funding covers the entire Baseline GHG Emissions Inventory and the Energy Chapter of the CAP. 19E -1 Report on GHG Inventory and CAP Process March 5, 2012 Page 2 of 3 The purpose of the CAP is to reduce GHG emissions in both municipal operations and in the community. In addition, an Environmental Impact Report will be prepared that will streamline future development projects. Developers will have the CAP to refer to regarding mitigating project emissions and thus will avoid a separate mitigation review. Projects or measures identified in the CAP will also benefit non - development related projects by strategically positioning them as "shovel ready," especially those that are grant funded. Staff completed a Request for Proposal process to hire consultants to develop a GHG inventory and CAP. ICLEI and their subcontractors were chosen from an initial field of ten teams of proposers. The team is comprised of industry leaders in preparing these types of studies. In addition, a CAP Steering Committee has been developed to steer the effort and is comprised of staff from six City agencies and the City's Energy and Sustainability Consultant. They provide ongoing input on the process, including the community and selected stakeholders and feedback on emissions reduction measures. The first step was to identify the base year for data collection. The base year, 2008, is the earliest year with complete data and it is from this year that the GHG emissions forecast begins. The data gathering included energy used from utilities such as SCE and Southern California Gas, transportation information such as employee vehicle miles travelled and public transportation impacts, water used and pumped and solid waste disposed. The ICLEI team will convert the data collected to quantify the GHG emissions: • Carbon dioxide is the most common GHG and comes from the burning of fossil fuels (oil, natural gas, and coal), solid waste, trees and wood products. • Methane is emitted during the production and transport of coal, natural gas, and oil. Methane emissions also result from livestock and other agricultural practices and by the decay of organic waste in municipal solid waste landfills. • Nitrous oxide is emitted during agricultural and industrial activities, as well as during combustion of fossil fuels and solid waste • Fluorinated gases: Hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride are synthetic, powerful greenhouse gases that are emitted from a variety of industrial processes. The CAP will provide a comprehensive listing of programs with associated costs and provide an implementation and monitoring plan for reducing GHG emissions. The objective is to identify measures that are supported and implementable. 19E -2 Report on GHG Inventory and CAP Process March 5, 2012 Page 3 of 3 Each of the programs or measures will be evaluated by: • GHG reduction potential • Cost - effectiveness • Availability of funding and staff resources • Political support and feasibility • Co- benefits for other programs and priorities Public involvement is vital to the success of this CAP. Outreach includes providing an overview of the process to the community and key stakeholders to generate ideas and solicit feedback. Spanish and Vietnamese translators will be present. Also, a CAP webpage is being developed and will be live in early March. A resident survey will be linked to the page for those who are not able to attend community meetings and want to provide input. The upcoming events to begin gathering community input are scheduled for March 27 and 28, respectively: First Community Meeting — Residents and the general public will be invited to learn about and participate in the process of creating the CAP and discuss the greenhouse gas emissions inventory. Stakeholder Meetings — Four separate stakeholder groups will be invited to participate in the CAP and will include: City commissions and committees, businesses, architects and builders, and other interest groups. 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C;)' O Q) 0 �> m> p Q p ,� ca v c E Q m�UU)(D0(��QU O Vic) o<1: a) U U O E a) a) 0 O E im > 0 cu O U 0 < T (1) L — 44--- a) o c o O O 'U L L L c (n o E �P c a) a) cu 0 O •V a) oU ° �U� 0 c L U v cn U O Lf c ' cu Q c u M cu Cl) U O o _ Q — < c a) N L `n m N cn a) > O_ O m L Q ca N E U a) a) E L cu (' c O o U� v= a) U E a) E cn N � U S O U N O �. .�2 o Q a) Q U a) c co a) o E E Cl ca CY)ca -r- a'cu m cn 0 co —cu 000 m m moL.o�o Q w0a- 0Um o0 U)0v)v)0 19E -19 i: :.i a 0 (1) i v QL 0 fn 0 3: E E 0 U cn ti N U L Cl) 5CU G N L 0 a) Ca '4-a V J w N U L 2 0 cn 0 E E 0 U 0 U �/) /1 co N m I 19E -20 cn cm N L 0 R5 4-j C/) N co co N a) N .C: 0 U A, U 0 U Q N 4-a m E U (0 L 0 A L O c,. cl*-. c E o E 0 � 0 U O O � to r cn O C: cn CL u1 cn � E O O � O � O 0 Q U N 19E -21 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: CONTRACT AWARD TO PROFORCE LAW ENFORCEMENT FOR TASER ELECTRONIC CONTROL DEVICES (SPEC NO. 12 -019) L � 16 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: =--:• ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 s'Reading ❑ Ordinance on 2°dReading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Award a contract to Proforce Law Enforcement for Taser electronic control devices in an amount not to exceed $268,000. DISCUSSION The Santa Ana Police Department utilizes electronic control devices to gain control over violently resisting subjects. The new X26E will replace, supplement and upgrade the department's current inventory of X26 Taser electronic control devices. The X26 Tasers purchased in 2001 are obsolete and due for replacement. The X26E incorporates new technologies including a data chip that records the time, date and duration of discharge each time the Taser is used. ProForce Law Enforcement is the sole source distributor for the X26E Taser electronic control devices and accessories for California. As a result, staff recommends Council approval of the recommended action. FISCAL IMPACT Funds are available in the Criminal Activities D.O.J account (no. 02614450 63001). Paul M. Walters Chief of Police Police Department EG APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez 1Pr' Executive Director Finance & Mgmt. Services Agency 22A -1 22A -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: CONTRACT AWARD FOR EDNA PARK IMPROVEMENTS (PROJECT NO. 096036) (�W'l - '( 1 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 Green Giant Landscaping, Inc., the lowest responsible bidder, in accordance with unit bid prices for the base bid plus alternates one and two in the estimated amount of $264,000 for construction of the Edna Park Improvements. 2. Approve a funding analysis with a total estimated construction cost of $369,600. DISCUSSION Edna Park is a 2.6 -acre park north of Seventeenth Street running along the west side of the Santa Ana River at Santa Ana River Recreational Trail (Exhibit 1). It has historically served as a neighborhood park; however, its function as a trailside rest area has grown due to its proximity and connection to the recreational trail. Project improvements will support the needs of all these users and include a complete restroom renovation, new drinking fountains, water bottle refilling station, improved picnic areas, and enhanced lighting and landscaping. In addition, an equestrian area with hitching posts and water trough will be installed. The Notice Inviting Bids was advertised on December 14 and 15, 2011, with outreach efforts made to 17 Santa Ana contractors. Bids were opened on January 17, 2012. A summary of the bid notices and bid results follows: Contractors requesting bidding documents: 19 Santa Ana contractors receiving notices: 17 Total bids received: 16 Bids received from Santa Ana contractors: 1 23A -1 Contract Award for Edna Park Improvements March 5, 2012 Page 2 NAME OF RESPONSIVE BIDDER CITY BASE BID AMOUNT 1. Green Giant Landscape, Inc. La Habra $219,000.00 2. Micon Construction, Inc. Placentia $224,672.08 3. Lehman Construction, Inc. Tustin $229,785.00 4. Patscheck Construction, Inc. Costa Mesa $229,820.00 5. Kasa Construction, Inc. Ontario $235,999.00 6. Ted Enterprises, Inc. San Clemente $240,700.00 7. Fleming Environmental Fullerton $243,685.00 8. American Building Solutions, Inc. San Fernando $249,500.00 9. Alpha 1 Construction, Inc. Santa Fe Springs $254,824.00 10. Rezman, Inc. Brea $257,981.00 11. Ace CD, Inc. Glendora $258,700.00 12. Hondo Company, Inc. Santa Ana $258,960.00 13. O'Connell Engineering Construction, Inc. Winchester $279,000.00 14. STL Landscape, Inc. Los Angeles $288,000.00 15. Unique Performance Construction Costa Mesa $332,000.00 16. C.S. Legacy, Inc. Chino $333,277.00 The Engineer's estimate for this project was $242,000. A total of 16 bids were received and all were deemed responsive. The bid documents require the contractor to be selected based on the lowest base bid. The lowest base bid was submitted by Green Giant Landscape, Inc. for $219,000. A bid protest was submitted by the third - lowest bidder, Lehman Construction Inc., stating that the first and second low bidders failed to list a flooring subcontractor (Exhibit 2). A bid protest hearing was held on February 2, 2012; the protest was overruled with the conclusion that the failure to list the subcontractor did not provide an advantage to the low bidder nor did it disadvantage any of the other bidders and did not affect the outcome of the bid. Green Giant is the lowest responsible bidder (Exhibit 3). Therefore, staff recommends awarding base bid plus alternates one and two to Green Giant Landscape, Inc. in the amount of $264,000. ENVIRONMENTAL IMPACT Environmental Review #ER- 2006 -170 Negative Declaration have been filed Certificate of Categorical Exclusion Protection Act. has been completed, and pursuant to the California has been filed pursuant a Notice of Determination and Environmental Quality Act. A to the National Environmental Contract Award for Edna Park Improvements March 5, 2012 Page 3 FISCAL IMPACT The funding analysis shows a total estimated construction cost of $369,600 for the project (Exhibit 4). Funds are available in the State Resources Agency Grant Fund (accounting unit 16113262- 66220) and the Park Acquisition and Development Fund (accounting unit 31113260- 66220). r Raul Godinez Executive Dire or Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: { C Francisco Gutierrez Executive Director Finance & Management Services Agency Gerardo Mouet Executive Director Parks, Recreation, and Community Services Agency INCI An Exhibits: 1. Project Location Map 2. Protest Letter 3. City Response 4. Funding analysis Exhibit 4 FUNDING ANALYSIS PROJECT NO. 096036 EDNA PARK IMPROVEMENTS Construction Contract Contract Administration Inspection and Testing Survey Staking Contingencies TOTAL ESTIMATED CONSTRUCTION COSTS 23A -4 $264,000 $13,200 $18,480 $7,920 $66,000 $369,600 23A -5 I ' I ._J I I li I I Fn ElQ E' N IIW -- IJ IQ Ip T Q. ai W Ip N W a a FI Edna Park SANTA ANA P^ CITY COUNCIL AGENDA u DATE: MARCH 5i 2012 �P P �P _J i �O Y 111 ------ - - - - -- 17TH ST I � ' --- - - - - -- L 'L1J NTS FXHIRIT 1 JrH ORnNc PROJECT 09 -6036 i EDNA PARK IMPROVEMENTS 23A -7 09-6036 • I Park • • • • LE14MAN Exhibit CONSTRUCTION January 18, 2012 Raul Godinez II, Executive Director of Public Works City of Santa Ana 20 Civic Center Plaza M -21 Santa Ana, CA 92701 Re: BID PROTEST BY LEHMAN CO.NSTRJCTION, INC. Project No. 09 -6306: Edna Park Improvements Dear Mr. Godinez: On January 17, 2012, bids were opened for the above project. Lehman Construction is hereby filing a written bid protest due to the failure of the first (Green Giant Landscape) and second bidder (Micon Construction Inc.) to name an approved epoxy flooring contractor. In this extremely competitive bidding environment every bidder looks at ways to lower their bid. However, the bid specifications 20.00 Special Provisions- Eooxy 1= 1o;;;i�;, (copy enclosed), lists Sunbelt Flooring as a proprietary manufacturer and installer of " Heavy Duty Flooring #1100" for the floor coating on the restroom floors and selected walls. We actuary thought of cutting costs and self - performing the epoxy, but the available materials wouid not meet Sunbelts spec's so we included Sunbelt in our subcontractor list. Any proposed substitution of the Epoxy flooring by either Green Giant or Micon if the City so entertains, needs to be reviewed as part of this protest since the spec's are clear on the City's intent. If it is found that Sunbelt's epoxy system is required per the spec, then Sunbelt's subcontract would be more than 4 times the naming requirement of 1/2 of 1 %. Based on Green Giants bid of $219,000.00 they would have to name any sub over $1095,( $219,000.00 x.005 = $1095) Micon engineering would also be required to name Sunbelt. ( $224,672 x.005= $1123). The spec's are clear regarding the system the City asked for. The contract documents and Public contract code are clear regarding the subcontract naming require, - ,eats. We therefore ask the City to find Green Giant's and Micon's bids nonresponsive and award the project to Lehman Construction, Inc. Sincerely .Ul, Mark Lehm n 1` President, Lehman Construction, Inc. Enclosure cc: Green Giant Landscape (w /encl) Micon Construction Inc. (w /encl) Lehnt.tn Con,rrmrrmmi, [tit. - P.O. lima 3569 * T. ti A 678 1 - Phone 71/1.8;8.7577 - Fax 714.838.5077 (.mnrr 3A.4. )A, $ 20.00 SPECIAL PROVISIONS — Epoxy Flooring GENERAL 20.01 DESCRIPTION A. Section Includes 1. Provide labor and materials for a multiple component, seamless, anti- microbial, chemical & thermal shock resistant, epoxy flooring system, including surface preparation, primers, and finish coats. B. Acceptable Manufacturers and Installers 1. SUNBELT FLOORING, INC., Phone: (909) 606 -7623, Fax: (909) 606 -7685 2. Manufacturer approved Installer, who has technical qualifications, currently approved in writing, and facilities to install specified systems. 20.02 DELIVERY, STORAGE AND HANDLING A. Deliver material to job site in clean, clearly labeled containers and inspect prior to start of job. B. Store material in a dry, enclosed area protected from the elements. Keep temperature of storage area between 60 °F and 90 °F. 20.03 ENVIRONMENTAL REQUIREMENTS A. Cure new concrete no less than 28 days under good conditions. B. Verify that substrate is properly equipped with vapor barriers and perimeter drains. C. Verify supply of adequate utilities, including electric, water, heat (between 60 °F and 90 °F.) and lighting of no less than 80 ft candles measured at floor surface. D. Free work area of other trades during, and for a period of 24 hours, after floor installation. E. Protect finished floor from damage by subsequent trades. 20.04 WARRANTY A. Submit a one year warranty against defects in material and workmanship upon substantial completion of installation. 124 T J PRODUCTS 20.05 PRODUCT DESCRIPTION A. Sun Belt Flooring System as installed by Sunbelt Flooring Inc., including preparation and installation of the "Heavy Duty Flooring No. 1100 Chemical Resistant Industrial Floor'. B. Physical Properties Hardness (Shore D) ASTM D -2240 87 Compressive Strength ASTM C -579 10,718 psi 2,745 psi Tensile Strength ASTM C -307 Water AbS_Or ption ASTM C -413 7.Da s — 0.07/0 4,658 psi Flexural Strength _ ASTM D -790 ASTM C -580 Modulus of Elasticity 7 Days 2.2 x 10 6 psi Linear Shrinkage Coefficient of Thermal Expansion ASTM D- 2566_ ASTM D -696 0.02% _ 3.0 x 10" - 5 in /in/F Bond Strength to Concrete ASTM D-4541 >376 psi substrate fails Heat Resistance Limitation _ 140 °F — 18 Hours, Lab -6 Hours Impact Resistance ASTM D 2794 _ 1,66rich-pounds Flammability ASTM D -635 Self Extinguishing Flame S read/NFPA 101 ASTM E -84 Class B ASTM D-4060 Wear Index 30 Weight Loss 0.015 grams Abrasion Resistance CS 17 Wheel 1000 GM Load 1000 Cycles Coefficient of Friction Standard Slip- Resistant ASTM C 1028 Dry — 1.05 Wet — 0.94 C. Product Mixing 1. Mix on site with manufacturer supplied mix and measure apparatus to ensure a timely, accurate mix ratio and minimize waste. 125 WTAIMI C 3 0 \ /.��/ \ \ xi 7t I x ol z M < 060 z En .Sd u C, I j 0 N ru W 0 rts ow r-i r- 4.) C14 u ON � M 4-1 —1 -0 co 0 .,1 44 0 -0 0 > r-I (z :3 4.3 X -H w 0 " En SK 23A-1 1 MAYOR Miguel A. Pulido MAYOR PRO TEM Claudia C. Alvarez COUNCILMEMBERS David Benavides Carlos Bustamante Michele C. Martinez Vince Sarmiento Sal Tinajero February 9, 2012 EXHIBIT 3 CITY OF SANTA ANA 20 Civic Center Plaza • P.Q. Box 1988, M-21 Santa Ana, California 92702 Mark Lehman President LEHMAN CONSTRUCTION, INC. P.O. Box 3569 Tustin, CA 92781 Re: Project No. 09 -6036, Edna Park Improvements Dear Mr. Lehman: INTERIM CITY MANAGER Paul Walters INTERIM CITY ATTORNEY Joseph Straka CLERK OF THE COUNCIL Maria D. Huizar The Santa Ana Public Works Agency issued a Notice Inviting Bids for the above project. After bids were opened on January 17, 2012, the City received your bid protest from Lehman Construction, Inc., requesting that the low bidder and second bidder be disqualified for failure to comply with the bid specification requiring the listing of all subcontractors providing one -half of 1 % of the work. The protesting party has the burden of proof to demonstrate that the staffs determination of proposed low bidder is arbitrary and capricious, or unsupported by substantial evidence in the record. A protest hearing was held on February 2, 2012, at which you were present for Lehman Construction, Inc., and Don Henderson and Rosie Toledo were present for Green Giant Landscape, Inc. The following information was presented: • Green Giant Landscape, Inc. submitted the low bid of $219,000.00. One -half of 1 % of Green Giant's bid is $1095.00. • The bid specification named the required flooring system to be installed in the project: Sun Belt Flooring System as installed by Sunbelt Flooring, Inc., including preparation and installation of the "Heavy Duty Flooring No. 1100 Chemical Resistant Industrial Floor". • Green Giant's bid did not list a subcontractor for the epoxy flooring, and did not propose a substitute flooring system. 23A -12 City of Santa Ana Response to Bid Protest Project No. 09 -6036, Edna Park Improvements • Sunbelt Flooring submitted a bid to Green Giant Landscape, Inc., proposing to complete the epoxy flooring for a labor and materials cost of $5,150. The total cost includes twenty percent ($1,030) for labor and eighty percent ($4,120) for materials. • California Public Contract Code and the City's bid documents require the listing of all subcontractors for all subcontract work exceeding %% of the bid. Generally the law requires strict compliance with bid specifications. However a city may waive a minor deviation if the variance cannot have affected the amount of the bid or given a bidder an advantage or benefit not allowed other bidders — i.e, inconsequential deviations. Competitive bidding rules have been implemented to guard against favoritism, improvidence, extravagance, fraud and corruption; prevent the waste of public funds and to obtain the best result for the public. Additionally, the purpose of the subcontractors listing law is to prevent bid shopping after the opening of bids. The City specifically listed the flooring that must be used on the Edna Park Improvement Project. In the absence of a proposed substitute in its bid documents, the low bidder is required to utilize the named flooring manufacturer. Therefore, the failure to list the required flooring manufacturer as a subcontractor will not result in bid shopping, nor does it provide an advantage to the low bidder or put other bidders at a disadvantage. In this case, strict compliance with the bid specifications will result in the City paying more for the same project. This would contravene the purpose of the public bidding laws. Therefore, I am upholding staff's determination that Green Giant Landscape, Inc. is the low bidder, and will be recommending that the Edna Park Improvement Project be awarded to Green Giant Landscape, Inc. Sincerely MW Raul Godinez II, P Executive Director c: Mayor and Council Don Henderson 23A -13 Exhibit 4 FUNDING ANALYSIS PROJECT NO. 096036 EDNA PARK IMPROVEMENTS Construction Contract Contract Administration Inspection and Testing Survey Staking Contingencies TOTAL ESTIMATED CONSTRUCTION COSTS 23A -14 $264,000 $13,200 $18,480 $7,920 $66,000 $369,600 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: CONTRACT AWARD FOR SANTA ANA ZOO WALKWAY IMPROVEMENTS (PROJECT NO. 122621) L - (Ly- � 7, 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 Ben's Asphalt, Inc., the lowest responsible bidder, in accordance with unit bid prices for the base bid plus alternate one in the estimated amount of $62,675 for construction of the Santa Ana Zoo walkway improvements. 2. Approve a funding analysis with a total estimated construction cost of $75,000. DISCUSSION In September 2011, the Friends of Santa Ana Zoo received a donation of $75,000 from the McBeth Foundation to refurbish the asphalt and decomposed granite walkways and service roads throughout the Santa Ana Zoo at Prentice Park (Exhibit 1). The walkways and service roads have been maintained over the past 20 years with temporary patches and fixes. Replacement or permanent repairs are needed to provide safe access to the zoo for the public and staff. This project provides for the reconstruction of the walkways and service road. The Notice Inviting Bids was advertised on January 18 and 19, 2012, with outreach efforts to 17 Santa Ana contractors. Bids were opened on February 7, 2012. A summary of the bid notices and the bid results follows: Contractors requesting bid documents: 32 Santa Ana contractors sent bid notices: 17 Total bids received: 10 Bids received from Santa Ana contractors: 2 23B -1 Contract Award for Santa Ana Zoo Walkway Improvements March 5, 2012 Page 2 NAME OF RESPONSIVE BIDDER 1. Ben's Asphalt, Inc. 2 .Excel Paving Company 3. Newcon Development 4. Green Giant Landscape, Inc. 5. Super Technical, Inc. 6. Oliver Mahon Asphalt, Inc. 7. Century Paving, Inc. 8. Ted Enterprises CITY BASE BID AMOUNT Santa Ana $62,675 Long Beach $66,693 Santa Ana $73,800 La Habra $74,800 Anaheim $75,388 Costa Mesa $79,780 La Mirada $82,210 San Clemente $85,610 The engineer's estimate was $57,000. A total of 10 bids were received with eight being responsive. Ruiz Engineering, Inc. and EBS General Engineering submitted incomplete bids that were deemed nonresponsive. The bid documents require the contractor be selected by the lowest base bid. The lowest bid was submitted by Ben's Asphalt, Inc. in the amount of $62,175. Therefore, staff recommends awarding base bid plus alternate one in the total amount of $62,675. ENVIRONMENTAL IMPACT Environmental Review #ER- 2012 -02 is completed and a Negative Declaration is filed pursuant to the California Environmental Quality Act. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $75,000 for the project (Exhibit 2). Funds are available in the State Contract Services Fund (accounting unit 02213200- 62300). w4h�4-- Raul Godinez II Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 4-t-d�- Gerardo Mouet Executive Director Parks, Recreation, and Community Services Agency RG /ET Exhibits: 1. Project Location Map 2. Funding Analysis 23B -2 z O J FIRST STREET CHESTNUT AV EXHIBIT 1 SANTA ANA TITLE: CITY DA DATE: CONTRACT AWARD FOR P W A AGENDA DATE: March 5, 2012 SANTA ANA ZOO AC WALKWAY IMPROVEMENTS pag. � ^^ A ZQ J ECT 12 -2621) n D r m z Exhibit 2 FUNDING ANALYSIS PROJECT NO. 122621 SANTA ANA ZOO WALKWAY IMPROVEMENTS Construction Contract $62,675 Contract Administration $1,000 Inspection and Testing $2,800 Survey Staking $1,000 Contingencies $7,525 TOTAL ESTIMATED CONSTRUCTION COSTS 75 000 W REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: CONTRACT AWARD FOR CITYWIDE RESIDENTIAL STREET REPAIR — PHASE 16 AND SANTIAGO PARK ROADWAY IMPROVEMENT (PROJECT NOS. 126753, 112618 AND 127531) Zw�CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading F-1 Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Award a contract to R.J. Noble Company, the lowest responsible bidder, in accordance with unit bid prices in the estimated amount of $2,394,149.70 for construction of Citywide Residential Street Repair — Phase 16, Santiago Park and Memorial Park Neighborhood Roadway Improvements. 2. Approve a funding analysis with a total estimated construction cost of $2,992,500. DISCUSSION This phase of the City's Residential Street Repair Program consists of the remaining asphalt residential streets that are in need of repair. These segments of local streets have been identified as a high priority for rehabilitation in the City's pavement management system (Exhibit 1). The pavement is deteriorating due to weather, age, and heavy usage. The project provides for grinding asphalt, asphalt pavement overlay, reconstruction, and replacement of damaged concrete curbs, gutters, sidewalks, cross gutters, and curb ramps. Additionally, the Santiago Park roadway off of Memory Lane has been deteriorated due to age and use. The asphalt roadway serves the wildlife and watershed center, nature reserve, and archery range in Santiago Park. The project includes roadway improvements, decomposed granite, a retaining wall, and a wrought iron fence and gate. The project utilizes the most cost - effective, innovative, and environmentally sound technologies, including recycling of existing asphalt pavement. The project also provides for grinding asphalt, asphalt pavement overlay, and replacement of damaged concrete curbs, gutters, sidewalks, cross gutters, and curb ramps. Once completed, these improvements will enhance the ride quality, surface drainage, and appearance of the neighborhoods and park. 23C -1 Contract Award for Residential Street Repair — Phase 16 & Santiago Park Roadway Improvements March 5, 2012 Page 2 The Notice Inviting Bids was advertised on January 18 and 19, 2012, with outreach efforts made to 12 Santa Ana contractors. Bids were opened on February 14, 2012. A summary of the bid notices and the bid results follows: Santa Ana Contractors receiving notices: Contractors requesting bidding documents Bids received: Bids received from Santa Ana Contractors; NAME OF RESPONSIVE BIDDER 1. R.J. Noble Company 2. Excel Paving Company 3. Sequel Contractors 4. All American Asphalt 5. Elite Bobcat Service, Inc. 6. Hardy & Harper, Inc. 12 25 6 1 CITY Orange Long Beach Santa Fe Springs Corona Corona Santa Ana BID AMOUNT $2,394,149.70 $2,520,380.00 $2,537,826.00 $2,559,559.00 $2,598,953.00 $2,696,000.00 The Engineer's estimate was $2,259,020. A total of six bids were received and all were responsive. The lowest bid was submitted by R.J. Noble Company in the amount of $2,394,149.70. Therefore, staff recommends awarding the contract to R.J. Noble Company. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempt from further review. Categorical Exemption Environmental Reviews Nos. 2012 -01 and 2012 -11 will be filed for this project. In addition, a Certification of Categorical Exemption and a Statutory Worksheet have been prepared in accordance with the National Environment Policy Act. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $2,992,500 for the project (Exhibit 2). Funds are available in the Community Development Block Grant Fund (accounting unit 13518783 - 66220), Public Works Account for Residential Street Repair Fund (accounting unit 05817661- 66220), District 2 A &D /In -Lieu Fund (accounting unit 31213261- 66220), Deferred Maintenance Fund (01113260- 66220), Water Production and Supply Fund (accounting unit 06017640- 66220) and Capital Outlay /Park Improvements Fund (accounting unit 05113263- 66220). 23C -2 Contract Award for Residential Street Repair — Phase 16 & Santiago Park Roadway Improvements March 5, 2012 Page 3 In r _ Raul odinez II Executive Director Public Works Agency Nancy T. Forivards Interim Exe tive Director Community Development Agency RG /ET Exhibits: 1. Project Location Map 2. Funding Analysis APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Gerardo Mouet Executive Director Parks, Recreation, & Community Services Agency 23C -3 23C -4 �( ���I�� FUNDING ANALYSIS PROJECT NOS. 126753, 127531 AND 112618 CITYWIDE RESIDENTIAL STREET REPAIR — PHASE 16 AND SANTIAGO PARK ROADWAY IMPROVEMENT Construction Contract $2,394,149.70 Contract Administration $143,640.00 Inspection and Testing $167,495.30 Survey Staking $47,800.00 Contingencies $239,415.00 TOTAL ESTIMATED CONSTRUCTION COSTS 2.992.500.00 Exhibit 2 23C -6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED ❑ As Recommended AGREEMENT RENEWAL WITH GRAFFITI ❑ As Amended ❑ Ordinance on 15' Reading PROTECTIVE COATINGS, INC., FOR ❑ Ordinance on 2nd Reading GRAFFITI REMOVAL SERVICES ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached renewal for graffiti removal services with Graffiti Protective Coatings, Inc., in an amount not to exceed $600,000 for the period of March 1, 2012 through February 28, 2013, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The Public Works Agency's Maintenance Division is responsible for citywide graffiti abatement, which is performed 365 days a year. Graffiti is typically removed within 24 hours based on requests received from City staff and residents through the City's graffiti hot -line telephone number. With the addition of real time dispatching, 58% of the requests for service received have been completed within the same day. In August 2009, staff conducted a Request for Proposal compliant with the City's public bidding requirements with notice to all potential bidders of whom the city was aware, in addition to the publication in the paper. In February 2011, Council approved an agreement with Graffiti Protective Coatings, Inc. for a one -year period with provisions for four one -year renewals. The City awarded the agreement with specific conditions to be met by the contractor to make an investment in the community. These conditions were met and included establishing an office space in Santa Ana, purchasing materials and supplies from a Santa Ana vendor, hiring residents of Santa Ana and pay their employees equal to, or greater than, the Orange County Living Wage. The contractor has consistently demonstrated the ability to meet the contract specifications by providing citywide color matching, daily upper -level graffiti removal, and facilitating graffiti crime analysis. During the first 10 months of the contract, 4,089,967 square feet of graffiti was abated, which is 12 percent more than the same 10 -month period of the prior year. 25A -1 Agreement Renewal with Graffiti Protective Coatings, Inc. for Graffiti Removal Services March 5, 2012 Page 2 The contractor has also exceeded the contract specifications by providing additional services during the first year at no additional cost to the City. These services included an additional 2,240 labor hours and the application of an anti - graffiti coating to the unpainted slump stonewalls along newly constructed Bristol Street to reduce the amount of water - blasting while allowing the vines to grow. During the first 5 months of the contract, a 6th truck was provided 40 hours a week to perform abatement in parks. The 6th truck is currently being provided on a part -time basis, 20 hours a week. Additionally, there are unlimited upgrades and support for the graffiti tracking software. A 4G tablet was made available to the Gang Task Force to allow access to the graffiti tracking system while in the field. There is a free Citizen's Smartphone App to report graffiti services requests. Furthermore, the contractor sponsored a community clean up day with 10 trucks, support staff and financial sponsorship. During the next contract year, the contractor will officially unveil the Citizen App with additional features to include a custom electronic "Thank You" with both before and after photos. Customers will also be able to provide feedback for the removal program through a survey. The contractor has agreed to provide a portal for the graffiti tracking data to be shared with the County of Orange TAGRS (Tracking Automated and Graffiti Reporting System) system which will allow countywide sharing of graffiti intelligence between law enforcement agencies. The contractor has exceeded staff expectations and has consistently demonstrated the ability to provide a high standard of service during its first year and has agreed to renew the contract with no increase in pricing. Staff recommends the approval of the first of 4 one -year renewals. FISCAL IMPACT Funds are available in the Environmental Sanitation Fund (accounting unit 06817642 - 62300). r Raul Godinez II Executive Director Public Works Agency RG /DM Exhibit: 1. Amendment APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25A -2 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on March 6, 2012, by and between Graffiti Protective Coatings, Inc., a California corporation ( "Contractor ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS: A. The parties entered into Agreement A- 2011 -028, dated February 7, 2011, (hereinafter "said Agreement ") by which Contractor has provided graffiti removal services. B. In accordance with the terms and conditions of said Agreement, the parties wish to exercise the first option to extend the term, and provide compensation during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: Section 2, COMPENSATION, shall be amended to add $600,000.00 to pay for graffiti removal services during the first one -year extension period, March 1, 2012 through February 28, 2013. 2. Section 3, TERM, shall be amended to reflect the Parties' mutual consent to extend the terms and conditions of said Agreement for the first one -year renewal period, through February 28, 2013. The term may be extended for up to three (3) additional one year periods, at the option of the City. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. CITY OF SANTA ANA ATTEST: MARIA D. HUIZAR PAUL M. WALTERS Clerk of the Council Interim City Manager APPROVED AS TO FORM: Laura Sheedy Assistant City Attorney GRAFFITI PROTECTIVE COATINGS, INC. RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II CARLA LENHOFF Executive Director - PWA President 25A -3 25A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: AMENDMENT TO AGREEMENTS WITH ORANGE COUNTY PUMP CORPORATION AND BAKERSFIELD WELL AND PUMP COMPANY FOR REHABILITATION OF WATER WELLS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached amendments to agreements with Orange County Pump Corporation and Bakersfield Well and Pump Company, subject to nonsubstantive changes approved by the City Manager and City Attorney, to provide water well rehabilitation services in an annual aggregate amount not to exceed $300,000. DISCUSSION The Public Works Agency operates 20 active water wells and seven water pumping stations to supply the city's drinking water. Staff has determined that through rehabilitation, the efficiency of a majority of the water wells can be increased to restore the wells to maximum water production capacity while using less electricity. On February 7, 2011, the City Council awarded contracts to Orange County Pump Company and Bakersfield Well and Pump Company with provisions for 3 one -year renewals. Both vendors have performed well during the past contract period and provided very responsive service to the City. In addition, both vendors provide specialized pump maintenance services that are periodically necessary. Staff recommends the agreements be renewed for a one -year term. This is the first of three possible one -year renewals. 25B -1 Amendment to Agreements for Rehabilitation of Water Wells March 5, 2012 Page 2 FISCAL IMPACT Funds are available in the Water Utility Water Production & Supply (Account No. 06017640- 62300). r Raul Godinez II Executive Direct Public Works Agency RG /RR APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibit: 1. First Amendment to Agreement with Orange County Pump Company 2. First Amendment to Agreement with Bakersfield Well and Pump Company EXHIBIT 1 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on March 5, 2012, by and between Orange County Pump Corporation, a California corporation ( "Contractor ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS: A. The parties entered into Agreement A -2011 -031, dated February 7, 2011, (hereinafter "said Agreement ") by which Contractor has provided water well and booster pump maintenance and repair services. B. In accordance with the terms and conditions of said Agreement, the City hereby exercises its first option to renew, and the parties agree to add compensation to pay for services during the extended term of said Agreement. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: 1. Section 2.a., COMPENSATION, shall be deleted in its entirety and replaced with the following: "a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit B -1, attached hereto and incorporated by this reference. The total sum to be expended among all contractors providing these services shall not exceed $300,000.00, annually, during the term of this Agreement." 2. Pursuant to Section 3, TERM, the City hereby exercises its option to renew the term for an additional one -year period, through December 31, 2012. All services provided since January 1, 2012 shall be included within this renewal term. The City shall have the option to renew this Agreement, on the same terms and conditions, for up to two additional one -year periods. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director Public Works Agency CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager ORANGE COUNTY PUMP CORPORATION CHRIS BROWN President 25B -4 I EXHIBIT B-1 25B-5 N r: .c w N T— 04 T- C�o X LLI lz 0 R ototo 00010, c� (D'o 0 q q 0 0 a 0 R -0 0 0, oil 0 0 0 0 0 . . . 0 to 0 in 90 0 W'S r. olow ui 6 0 0 6 co 0 to c; 0 W'l c� lco' M mi 0� &6 co CIO 6 ca 0 N 0 cm 0 . : 0 C4 co co 0 I 1 co 04 4Fli 4&1 W 1403. 41 CL , CY cc CL ;; A It CL cc 0 > C4 ff L r cb th ca 222 c 1� ID 0 cc 0 'o CL 1: 04 0) oz. c U) r- co 4) V cl) uJ: E CIO; Z a w 0 O in > > 0 cii 0 z 25B-5 N r: .c w N T— 04 T- C�o X LLI lz I � �� EXHIBIT 2 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on March 5, 2012, by and between Bakersfield Well and Pump Company, a California corporation ( "Contractor ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS: A. The parties entered into Agreement A- 2011 -032, dated February 7, 2011, (hereinafter "said Agreement') by which Contractor has provided water well and booster pump maintenance and repair services. B. In accordance with the terms and conditions of said Agreement, the City hereby exercises its first option to renew, and the parties agree to add compensation to pay for services during the extended term of said Agreement. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: 1. Section 2.a., COMPENSATION, shall be deleted in its entirety and replaced with the following: "a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit B -1, attached hereto and incorporated by this reference. The total sum to be expended among all contractors providing these services shall not exceed $300,000.00, annually, during the term of this Agreement." 2. Pursuant to Section 3, TERM, the City hereby exercises its option to renew the term for an additional one -year period, through December 31, 2012. All services provided since January 1, 2012 shall be included within this renewal term. The City shall have the option to renew this Agreement, on the same terms and conditions, for up to two additional one -year periods. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. /// 25B -7 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director Public Works Agency CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager BAKERSFIELD WELL AND PUMP COMPANY JOHN ZIMMERER Vice President § ) } ! .j 3 § � k ra � \ � { e I± �§ § 1z 0 \ { z } § § 2 z @ @ # ¥ @ K 2 2 k 2 0 0 } 8 7 G § § z \ ® - - - z 2 8 § k @ @ L # 0 0 { 8 7 G § z \ ) - ui § e $ -i -i _ -i § E § § k k ) j / % } ■ 2 § g � d § a U « < # t 0 k § § .� ,■ .D ] EXHIBIT B -1 - � @ 8 S ■ @ @ # 0 0 8 7 G § � \ ui � $ § d « z d ) u LU § I I¥ $ f 5 I ƒ$) x to LU i �f §J 0w n 2 §2 §' Iir x ° w z #2a m L 3 Q R r 3.: g ; \ £ tSG 3±§ � § wO Z- 0 0° Ib3 2 &2 2 e omomg ■\ \ k LU §Kq - } w-6Lu §} § j \ / §}- -/LU \ §u {pk§u Q. w <= z w� z u m uj �2$ k§ Iu § o ow° o,« 3 3: k n f m m■ e S r @ - � w-mm F&I M,LH LV-J REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED AMENDMENT TO AGREEMENT WITH ❑ ICLEI FOR PREPARATION OF A ❑ FOCUSED ENVIRONMENTAL IMPACT ❑❑ REPORT FOR THE CLIMATE ACTION PLAN J 1 7 1 � l 1 % ;Ll-rccl MANAGER RECOMMENDED ACTION As Recommended As Amended Ordinance on 15` Reading Ordinance on 2nd Reading Implementing Resolution Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached amendment to the agreement with ICLEI extending the agreement through 2013, for preparation of a focused Environmental Impact Report for the Climate Action Plan, in an amount not to exceed $135,948 subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION On November 8, 2011, the City approved a contract with ICLEI for the Baseline Greenhouse Gas Emissions Inventory and a Climate Action Plan (CAP). The CAP will provide a comprehensive plan for reducing the City's greenhouse gas (GHG) emissions from the City's municipal operations and from the community. The current agreement extends through October 15, 2012. The CAP will serve as a guiding document to identify ways in which the community and City can reduce GHG emissions. While the scope of these strategies will be analyzed and determined in partnership with the City, ICLEI, residents, and stakeholders, the implementation of those strategies will require integration with the City's General Plan. Amending the City's General Plan to incorporate components of the CAP requires the preparation of an environmental document under the California Environmental Quality Act (CEQA). The preparation of a focused environmental impact report for the CAP will satisfy the requirements of CEQA regarding amendments to the City's General Plan, but will also serve as a programmatic tiering document by which applicable developments with the City will be reviewed. If a proposed development is consistent with the emission reduction and adaption measures included in the CAP, the project would be considered to have a less- than - significant impact on climate change and emissions. When applicable, the preparation of this document will provide a substantial 25C -1 Amendment to Agreement with ICLEI March 5, 2012 Page 2 benefit to development that is consistent with the City's GHG emission reduction goals. AECOM, the subcontractor to ICLEI that is developing the GHG inventory, will also prepare the Focused Environmental Impact Report (EIR). Once completed, the Draft EIR will be circulated for public comment for 45 days. Comments received from the public and the applicable federal, state, and local agencies will be addressed in the "Response to Comments" section of the Final EIR. The Final EIR will then be forwarded to the Planning Commission for review. The City Council will determine whether to certify the Final EIR as complete according to CEQA requirements. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds will be included in the proposed Fiscal Year 2012 -2013 budget in the Planning and Building Agency Air Quality Improvement Trust Fund for Contract Services (Accounting Unit 03116510- 62300). This special revenue fund is the result of AB 2766 subventions given to the City to implement programs that reduce air pollution and will have no impact on the General Fund. �-- 'A �� - Jay M. Trevino Executive Director Planning and Building Agency Rau odinez II Executive Directo Public Works Agency JT /CK Exhibit: 1. Amendment APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25C -2 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on March 5, 2012, by and between ICLEI — Local Governments for Sustainability USA, a non -profit organization ( "Consultant ") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ( "City "). RECITALS: A. The parties entered into Agreement A -2011 -245, dated November 7, 2011, (hereinafter "said Agreement ") by which Consultant is preparing a Climate Action Plan ( "CAP ") which will include a Greenhouse Gas ( "GHG ") Inventory. B. The City desires to analyze the significant effects of the reduction of GHG emissions by preparing a focused Environmental Impact Report ( "EIR ") in conjunction with the development of the CAP. C. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Scope of Services to provide CEQA analysis of the CAP and increase compensation to pay for the additional services provided. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: 1. Section 1, SCOPE OF SERVICES, shall be deleted in its entirety and replaced with the following: "La. Consultant shall develop a comprehensive greenhouse gas (GHG) inventory for both the Community and Municipal Operations and a Climate Action Plan (CAP) for the City. The CAP will focus on energy efficiency, transportation and land use, planning/building standards, water, and solid waste. The CAP will provide cost - effective, sustainable solutions to reduce the City's environmental footprint. Consultant shall provide all required data to meet the reporting requirements arising from the SCE California Energy Efficiency Strategic Plan Implementation Contract between City and Southern California Edison and perform those services as set forth in Exhibit A, Project Approach and Scope of Work and Exhibit B, Project Schedule, attached to said Agreement and incorporated by reference. l .b. In conjunction with the development of the CAP, Consultant will prepare a focused Environmental Impact Report ( "EIR "), to analyze and mitigate significant effects of GHG, as set forth in Exhibit A -1, attached hereto and incorporated by this reference. By doing the analysis required by the California Environmental Quality Act ( "CEQA ") in conjunction with the CAP, the parties intend that the CAP will guide the City as a plan for the reduction of GHG emissions for future projects." Section 2.a., COMPENSATION, shall be deleted in its entirety and replaced with the following: "a. City agrees to pay, and Consultant agrees to accept as total payment for its services: • pursuant to Section La, above, the deliverable fees identified in Exhibit C to said Agreement, Fee Schedule; 25C -3 • pursuant to Section Lb, above, the fees identified in Exhibit C -1, attached hereto. The total sum to be expended under this Agreement shall not exceed $401,808, during the term of this Agreement. Funding for this project is subject to the continued funding under the California Energy Efficiency Strategic Planning Implementation Contract with the City." Section 4, TERM, shall be amended to extend the termination date to December 31, 2013. 4. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. 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 Interim City Manager RECOMMENDED FOR APPROVAL: ICLEI — LOCAL GOVERNMENTS FOR SUSTAINABILITY USA RAUL GODINEZ, II Executive Director Public Works Agency (NAME) (Title) 25C -4 AECOM Background + Project Understanding City of Santa Ana Climate Action Plan EIR EXHIBIT A -1 The City of Santa Ana has taken significant steps to reduce greenhouse gas (GHG) emissions and energy costs, and is seeking to expand on those initiatives through the development of a GHG Inventory and Climate Action Plan (CAP). ICLEI -USA, AECOM, Global Green, and Fehr & Peers are preparing the CAP for the City, with an anticipated completion date in October 2012. The CAP will include a GHG emissions inventory and forecast for both municipal operations and the community, establish GHG emissions targets for the City, and incorporate an implementation and monitoring strategy to ensure the City meets its goals. The California Environmental Quality Act (CEQA) Guidelines Section 15183.5 allows jurisdictions to analyze and mitigate the significant effects of GHGs at a programmatic level, by adopting a "plan for the reduction of GHG emissions ". Later, as individual projects are proposed, project- specific environmental documents may tier from and /or incorporate by reference that existing programmatic review in their cumulative impacts analysis. The City would like to use the CAP as a plan for the reduction of GHG emissions within the meaning established by the CEQA Guidelines. Among other provisions established within this portion of the recommendation to complete environmental review. The City has identified the need to prepare a focused Environmental Impact Report (EIR) to accompany the CAP as the preferred method of meeting this objective. Completing an EIR for the CAP may also affect the structure and content of the CAP itself. For example, mitigation measures that would otherwise be introduced in the EIR to reduce or avoid a significant environmental effect could instead be incorporated in the CAP. This would result in the need for an additional round of adjustments to the CAP between the preliminary draft CAP used to complete the project description for the EIR and the public review draft CAP released with the Draft EIR. ICLEI -USA will work with AECOM to accommodate this additional round of changes to the CAP and to coordinate the public review process for both documents. Scope of Work The following work plan describes the work proposed by task. AECOM anticipates preparation of a Focused EIR that examines only those technical areas that could be potentially significant as a result of implementing the CAP. State CEQA Guidelines, Section 15183.5(b)(1)(f) identifies that The services AECOM proposes to provide include: plans for the reduction of GHG emissions should be adopted in a public process following environmental review. A variety preparation of an EIR; of options are available to satisfy the CEQA Guidelines' 25C -5 AECOM City of Santa Ana Climate Action Plan EIR preparation of CEQA- required public notices (i.e., Notice of Completion [NOC], Notice of Preparation of an EIR, Notice of Availability of an EIR, and Notice of Determination [NOD] after project approval); and coordination between the City, ICLEI -USA, and AECOM. AECOM will attend a kick -off meeting with City staff prior to commencing work on the environmental document. Subjects for review and discussion at the meeting will include, but are not limited to: establishing and confirming the scope of work, level of analysis, budget, schedule, and communication protocols; identifying project databases, sources of information, and key contacts; and identifying key issues known to be of concern to agencies, interest groups, and the public. The City will provide specific technical studies prepared to date for similar projects, applicable exhibits, project description details, and materials to support development of the environmental document at the kick -off meeting. If the following CEQA issue areas are anticipated to be focused out as part of the IS /NOP and not evaluated further in the EIR: Aesthetics Agricultural and forestry resources Biological resources Cultural resources Geology and soils Hazards and hazardous materials Hydrology and water quality Land use and planning Mineral resources Population and housing Public services Recreation AECOM will prepare a draft IS /NOP for review by City staff (electronic version). Following review, AECOM will revise the IS /NOP and produce CD copies and hard copies of the final document. AECOM will deliver the IS /NOP to the State Clearinghouse and arrange for publication of the notice in a additional data is required, AECOM will submit a memo newspaper of general circulation (i.e., Orange County detailing data needs to the City, along with recommendations Register). The City will deliver the IS /NOP to responsible and on how best to fill them. trustee agencies and other interested parties. The IS /NOP will be circulated for public comment for 30 days, as required Task 1 Deliverables: under CEQA. Memo detailing data needs (if necessary) — electronic submittal Task 1 Meeting: One project kick -off meeting to be attended by the AECOM Project Manager AECOM will prepare an Initial Study /Notice of Preparation (IS /NOP) that includes a project description based on information to be provided by the City and project team and a summary of the probable significant effects on the environment. The NOP will describe where relevant project documents are available for review, where written comments on the scope of the EIR may be sent, and the deadline for submitting comments. The NOP will also identify the date and location of a public scoping meeting to be held for the project. One scoping meeting (assumed 2 hours, attended by the AECOM Project Manager) will be held during the NOP comment period. AECOM will prepare comment cards and a PowerPoint presentation for the scoping meeting and will present an overview of the environmental review process for the project. Following the conclusion of the 30 -day comment period for the IS /NOP, City staff and AECOM will review comments received on the IS /NOP to determine whether new issues have been raised that are not anticipated in this scope of work. If additional topics are identified that require further evaluation in the EIR, AECOM will prepare a refinement to the scope of work, budget, and schedule and will undertake the additional work only upon written authorization by the City. Meetings: The CAP will be focused on creating changes in the One scoping meeting (2 hours) attended by AECOM transportation system and efficiencies in utilities and energy Project Manager infrastructure. Based on the limited focus of the CAP itself, T k 2 Deliverables: 25C -9 AECOM City of Santa Ana Climate Action Plan EIR Draft IS /NOP (electronic version) for City review Noise, Public IS /NOP (15 hard copies to State Clearinghouse) NOC, NOA, newspaper notice AECOM will prepare an Administrative Draft EIR to address the impacts of implementation of the CAP. The EIR will contain an expanded analysis of the issue areas identified in the IS /NOP as having potentially significant impacts. As appropriate, the EIR will also identify potential mitigation measures that could further reduce the impacts of the CAP. Our analysis will be structured in a way that is consistent with CEQA, the State CEQA Guidelines, and relevant case law. We assume that City staff will review the Administrative Draft EIR and provide comments that represent the independent judgment of the City. We will participate in a meeting, if necessary, to discuss and clarify City staff comments. Introduction The introduction to the EIR will describe the organization of the EIR, type and use of the EIR, the environmental review process, the focus of the EIR analysis, other documents used in preparation of the EIR, lead and responsible agencies, and opportunities for public comment. Executive Summary The Executive Summary will summarize the main findings of the EIR. It will include a summary table that summarizes the impacts, the significance of each impact before mitigation implementation, recommended mitigation measures, and the significance of each impact after mitigation implementation. The Executive Summary will also summarize areas of controversy, alternatives analyzed, and significant and unavoidable impacts, if any. Project Description The project description will be based on information provided by the City and project team and will include: the regional and local setting; project history; project objectives; project characteristics and components; phasing and implementation; and other information important to understanding the proposed project. Environmental Setting, Impacts and Mitigation Measures Similar to our initial evaluation of potential project - related impacts explained under Task 2, we currently believe that the proposed project has the potential to affect or potentially affect the following environmental resource issue areas: Air quality, Greenhouse gas emissions, Transportation and traffic, and Utilities and service systems. Each issue area will each be addressed in an individual chapter that provides a detailed analysis of the existing setting, regulatory framework, project -level impacts, and cumulative impacts that would be associated with project implementation. The level of detail provided in the EIR will be greater than that of the IS. Each issue area chapter will define cumulative impacts, the cumulative context and scenario, geographic scope, and methods for characterizing cumulative impacts. AECOM will assess cumulative impacts using regional planning information. It is important to note that the cumulative contexts for assessing impacts will vary depending on the issue area being analyzed (i.e., the cumulative context for noise is localized whereas the cumulative context for air quality would be regional). Air Quality The air quality analysis will include a brief discussion of air quality conditions in the project study area and South Coast Air Basin including location of sensitive receptors in the city, ambient monitoring data, attainment designations, and emissions inventory. Natural factors in the project study area and air basin that affect the transport and dilution of pollutants will also be addressed. The South Coast Air Quality Management District (SCAQMD) is the agency principally responsible for comprehensive air pollution control in the South Coast Air Basin. SCAQMD CEQA Air Quality Handbook significance thresholds will be described for the evaluation of criteria air pollutant and precursor emissions, and toxic air contaminant (TAC) and odor exposures. Consistency with SCAQMD's Air Quality Management Plan (AQMP) will also be assessed. Temporary (short -term) construction - related and long -term operational air quality impacts from criteria pollutants and precursors will be assessed quantitatively for the proposed project. Air quality impacts will be analyzed in accordance with SCAQMD- recommended methodologies. Construction Emissions. AECOM will model total construction - related criteria pollutant and precursor emissions associated with CAP implementation using the latest versions of one or more of the following models at the time of the analysis: CalEEMOD, URBEMIS, EMFAC, and /or OFFROAD. We will consult with the SCAQMD to determine the preferred modeling approach. 25C -7 AECOM City of Santa Ana Climate Action Plan EIR If the CAP recommends construction of any physical facilities, which is considered unlikely, the air quality impact analysis will include a general discussion of temporary and short -term air pollutant emissions associated with construction projects identified in the CAP. Short -term increases in criteria air pollutant (i.e., respirable and fine particulate matter [PMlo and PM2.5, respectively)] and ozone precursor emissions (reactive organic gases [ROG] and oxides of nitrogen [NOJ) will be modeled. The modeling will take into account the size of the proposed facilities and infrastructure, construction phasing schedule, and other project- specific construction data (e.g., the amount of land to undergo ground disturbance or grading) to be provided by the City. Default settings of the URBEMIS model or SCAQMD- recommended adjustments will be used for construction parameters that are not known at the time of the analysis. Operational Emissions. AECOM will also include an analysis of long -term operation criteria air pollutant and precursor emissions for CAP implementation from area sources (e.g., equipment fuel combustion and natural gas usage) and mobile sources, using SCAQMD- recommended methodologies (URBEMIS, CalEEMOD, EMFAC, OFFROAD, and /or AP -42). Mobile emissions will be modeled using URBEMIS with default trip rates, or EMFAC, if project- specific trip generation information is provided. The EIR will include an analysis of long -term local mobile - source carbon monoxide (CO) impacts using SCAQMD - recommended screening techniques, such as The Transportation Project -Level Carbon Monoxide Protocol (CO Protocol). Stationary source emissions of criteria pollutants, precursors, and TACs will be discussed qualitatively in relation to SCAQMD permitting requirements. Compliance with SCAQMD rules and regulations, as required by law, will be included in the discussion and analysis of impacts. Sources of odor, both existing and possible near infrastructure improvement sites, will be identified along with a qualitative discussion of their resultant impacts on existing receptors. Cumulative air quality impacts, including consistency with SCAQMD's AQMP, will be addressed qualitatively. Temporary and short- and long -term project - generated increases in criteria air pollutant and precursor emissions, and exposure to TACs and odors will be compared with impacts found to be significant or potentially significant. The effectiveness of proposed mitigation measures will also be evaluated either quantitatively or qualitatively. Greenhouse Gas Emissions AECOM will conduct an analysis of impacts of the proposed project on GHG emissions as required by CEQA. The evaluation will provide a brief discussion of existing conditions and environmental setting in a global, federal, state, regional, and local context, including the state of the science and state, regional, and local GHG inventories. A summary of federal, state, and local climate change - related regulations, policies, and programs will be provided. The City's CAP will be described and relevant General Plan policies will be identified. SCAQMD is preparing GHG Significance Thresholds. With the City, AECOM will consult with SCAQMD regarding the CAP and the appropriate methodologies for assessing impacts. In the absence of guidance from SCAQMD, a GHG threshold of significance will be developed based on AECOM's extensive experience evaluating GHG impacts. GHG emissions methodology and impacts of the proposed project will be discussed; project - related GHG emissions will be evaluated quantitatively for determination of significance. The determination of significance will be based on whether the level of GHG emissions generated under the CAP constitute a substantial contribution to the significant adverse cumulative impacts of global climate change. If the construction of projects under the CAP or operational GHG emissions under the CAP violate the applicable thresholds of significance, mitigation measures (quantitative and best management practices) that clearly identify timing, responsibility, and performance standards to avoid or fully reduce adverse and potentially adverse effects will be developed and applied, where necessary, using the CAPCOA document: Quantifying Greenhouse Gas Mitigation Measures: A Resource for Local Government to Assess Emission Reductions from Greenhouse Gas Mitigation Measures. All aspects of the proposed project will be quantified in units of metric tons of carbon dioxide equivalent (CO2e). Construction Emissions. If the CAP recommends construction of any physical facilities, which is considered unlikely, AECOM will model total construction - related GHG emissions associated with buildout of the City's General Plan and implementation of the CAP using the latest versions of one or more of the following models at the time of the analysis: URBEMIS, CalEEMOD, EMFAC, and /or OFFROAD. SCAQMD's thresholds of significance. Mitigation measures that clearly identify timing, responsibility, and performance Operational Emissions. For the proposed project's standards will be prepared to avoid or fully reduce any 25C= lrational emissions, both the baseline (i.e., existing AECOM City of Santa Ana Climate Action Plan EIR conditions in the city) and the proposed project's operational GHG emissions will be quantified to determine the net change in GHG emissions associated with implementation of the CAP. TheGHG inventory and projections prepared for the CAP will be used in this analysis. CO2e emissions will be estimated based on the methodologies recommended by the International Panel on Climate Change, the California Climate Action Registry's General Reporting Protocol (Version 3.1), the International Council for Local Environmental Initiatives (ICLEI) Local Government Operations Protocol (Version 1.1), and the California Air Resources Board's Local Government Protocol for Greenhouse Gas Assessments (Version 1.1). Transportation and Traffic As part of development of the CAP and the City's work to complete an update to the General Plan Circulation Element, transportation studies have been prepared and are available for the CEQA analysis. AECOM will prepare the transportation and traffic impact analysis based on transportation studies provided by the City. Mitigation measures to reduce impacts on the transportation system will be recommended, as appropriate. AECOM would request that the City's traffic consultant for the Circulation Element update be made available to work with AECOM to understand the traffic modeling performed and assumptions made in the traffic report. AECOM does not propose doing any additional traffic modeling or analysis beyond that which is provided in the traffic study or provided by the City's traffic consultant. Noise The noise analysis will include a description of the existing noise environment along major roadways, based on existing environmental documentation. No noise monitoring is proposed as part of this scope because the type of noise that would occur as a result of project implementation largely already occurs throughout the city and at specific improvement sites. Furthermore, AECOM will use industry - standard typical noise levels for the equipment to be used for roadway and utilities improvements to accurately characterize the level of noise that could be generated with project implementation. Existing noise - sensitive receptors and noise sources will be identified and discussed. Relevant background information, including noise fundamentals, descriptors, and applicable federal, state, and local regulatory framework, will be described. The analysis will include an assessment of potential and distance). Project - generated noise levels at these receptors will be determined using the referenced noise measurement data along with standard noise modeling techniques (e.g., combined noise level from the simultaneous operation of individual pieces of equipment). Noise mitigation strategies such as operational modifications will be identified. The EIR will also include a discussion of potential impacts resulting from localized changes in traffic, if any, resulting from CAP implementation. The significance of potential impacts will be determined, and mitigation measures to minimize potential adverse impacts will be recommended, if needed to avoid, or fully reduce significant and potentially significant impacts. Utilities and Service Systems The utilities and service systems analysis will describe the existing utilities that serve the city and identify citywide demand for services, including water supply, wastewater collection and treatment systems, natural gas, and energy. Potential improvements to water and wastewater systems as well as electrical utilities will be identified and the impact of implementing those improvements and efficiencies described. It is anticipated that a solid waste disposal analysis would be focused out in the Initial Study presented in Task 2. The analysis will identify any utilities - related physical impacts associated with proposed utility expansion, including impacts related to construction of new facilities to serve the proposed project. Mitigation to avoid or fully reduce significant impacts will be indentified. Alternatives The EIR will include an analysis of a reasonable range of alternatives to the proposed project that could reduce or avoid the significant impacts identified for the proposed project. This chapter will include a comparative analysis of up to three alternatives to the proposed project, including the "No Project" Alternative required by CEQA. Alternatives will be designed to eliminate, avoid, or substantially reduce one or more significant environmental impacts of the project (see State CEQA Guidelines Code of Regulations Section 15126.6[a]). AECOM will address a reasonable range of alternatives designed to reduce or avoid potentially significant impacts of the proposed project. The project objectives (defined as a part of the Project Description) will inform development of alternatives. In addition, we will use input from the scoping process and the environmental analysis to help formulate the alternatives. Additional information to be provided by the City will aid in the formulation of the project objectives, as well as alternatives dered and alternatives considered and rejected from er consideration. temporary, short -term noise generation (i.e., construction) consi associated with identified roadway or utilities improvements furth and its impact on any nearby noise - sensitive receptors and their relative exposure (considering intervening ground t21 e AECOM CEQA- Mandated Sections City of Santa Ana Climate Action Plan EIR This section will summarize the cumulative impacts identified in each environmental resource issue chapter. This section will also discuss potential growth- inducing impacts of the proposed project and summarize any significant and unavoidable environmental effects. AECOM will provide the administrative draft EIR to the City for review and comment. Task 3 Deliverables: Administrative Draft EIR in MS Word and PDF format — electronic submittal AECOM will incorporate one round of consolidated City comments on the Administrative Draft EIR and submit the Public Draft EIR and Notice of Availability to the City for distribution for a 45 -day public comment period. AECOM will file 15 copies of the Executive Summary and 15 CDs of the entire document (as preferred by the State Clearinghouse) and an NOC with the State Clearinghouse. AECOM assumes the City will distribute the EIR to interested stakeholders, and /or publish the Notice of Availability in a newspaper of general circulation in the city. AECOM will participate in one public meeting during public review of the EIR to assist in the presentation, provide clarification of the analysis of the EIR, and receive public comments on the EIR. Task 4 Deliverables: 25 CD copies of the Draft EIR in PDF format to the City 5 hard copies of the Draft EIR for the City to distribute 15 executive summaries (hard copies) and 15 CDs of the entire document for delivery to the State Clearinghouse by AECOM Notice of Availability in MS Word and PDF format for the City — electronic submittal NOC for delivery to the State Clearinghouse by AECOM Task 4 Meetings: One public meeting /hearing attended by AECOM's Project Manager AECOM will review the comments received during the public review period on the Draft EIR. We will compile the responses to comments and make necessary changes to the Draft EIR to create the Administrative final EIR, which will include: an introductory chapter; enumerated comment letters and public hearing comments on the Draft EIR; responses to all comments on the Draft EIR; and a listing of revisions to the Draft EIR (if any). Based on initial evaluation of the project and potential community concerns, the level of comment received during public review of the Draft EIR could be substantial. AECOM has provided a reasonable estimate of the level of effort required to prepare responses to comments based on our experience with other similar projects. For purposes of this scope of work, we have assumed that responding to comments on the Draft EIR would require approximately 80 person- hours. If additional effort is required, we will discuss with the City a means to amend the scope of services to respond to additional comments. AECOM will respond to comments related to the potential physical impacts of the proposed project as they relate to the analysis of the EIR within the estimated level of effort. We have assumed that responses will involve explanation and clarification of the contents of the Draft EIR. We have not assumed that new technical analysis will be conducted as part of the response to comments. It is assumed that any comments related to the merits and /or economic feasibility of the CAP would be addressed by the City or project team. AECOM will prepare a draft mitigation monitoring and reporting program (MMRP). MMRPs are developed to ensure that the mitigation measures and any project revisions to minimize environmental impacts are implemented. It is critical that specific, measurable performance standards are established. The monitoring plan will incorporate features to monitor the success of mitigation, determine responsible parties for monitoring proposed mitigation, describe the role of the project proponent, identify guidelines and specifications for conducting monitoring and reporting results, and specify enforcement procedure for noncompliance. Task 5 Deliverables: Administrative Final EIR in MS Word and PDF format — electronic submittal Draft MMRP in MS Word and PDF format — electronic submittal 25C -10 AECOM City of Santa Ana Climate Action Plan EIR i'000 ), TaS!, 9 '}raft GIs,r ii- At ti. ,� �'i,v� f.� aj _�0t_° Following City staff review of the Administrative Final EIR, AECOM will make revisions to the Administrative Final EIR and will prepare one revised Final EIR, including a revised MMRP. We will provide an electronic copy of the FEIR in Adobe PDF format for posting on the City's Web site. The City will prepare the Findings of Fact and Statement of Overriding Considerations, if necessary. If requested by the City, AECOM can prepare the Findings of Fact and Statement of Overriding Considerations on a time - and - materials basis. Task 6 Deliverables: Final EIR in PDF format - electronic submittal { AECOM will participate in one City public meeting for certification of the EIR and consideration of approval of the CAP. It is assumed that City staff would prepare any necessary presentations, and that AECOM staff would support that process by assisting with a PowerPoint presentation, for example, or answering questions during the hearing. Following the certification hearing, AECOM will prepare and file a copy of the NOD with the State Clearinghouse. It is assumed that the City will file the NOD with the Orange County Clerk and that the City would be responsible for DFG fees associated with filing of the NOD. Task 7 Deliverables: Date - Stamped NOD — one electronic copy, one hard copy Task 7 Meetings: One public meeting /hearing attended by the AECOM Project Manager AECOM's Project Manager will oversee preparation of each component of the environmental analysis and coordinate interaction between the City, project team, and AECOM staff working on the EIR. AECOM's Project Director will provide internal quality control for the environmental document. AECOM's project management team will be available for regular project team conference calls and meetings. 7 As AECOM performs its environmental review alongside development of the Climate Action Plan, it may identify impacts resulting from CAP measures under consideration. In that case, ICLEI will work to revise its recommended CAP measures to mitigate any potential impacts upfront in the CAP, rather than have those impacts mitigated separately in the EIR. Depending on the conclusions of the Administrative Draft EIR, ICLEI will undertake a revision of the Draft Climate Action Plan to incorporate EIR mitigation measures directly into the CAP. Task 9 Deliverables: Draft Climate Action Plan Measures Task 8 Deliverables: Participation in project team conference calls and meetings by AECOM's Project Manager 25_11 AECOM Schedule City of Santa Ana Climate Action Plan EIR The following schedule has been formulated based on AECOM's experience and understanding of the CEQA process, as well as typical timeframes and review periods for various components of an EIR. If a more aggressive schedule is desired, AECOM would be happy to work with the City to determine how this could be accomplished. AECOM understands the importance of meeting the schedule outlined below and has confirmed technical staff immediate availability to meet either schedule, assuming that adequate information regarding the project and a mutually acceptable scope of services is available when the City provides AECOM with a notice to proceed. Other factors that could lengthen or shorten the schedule include dates of receipt of project information, length of City review, and unanticipated issues arising from the City or public review of the environmental document. City Review of Administrative Draft IS/NOP 6 -9 Public Review of IS/MND 11 -15 Task City Review of Administrative Draft EIR 26 -29 Task 4 Pmft EIR Public Review of Draft EIR 35 -38 TA*k 5, -i'', =K—i s, Aft: City Review of Administrative Final EIR 42 -45 25C -12 w c � a. § g < / 3 \ k U) \ L \ \ W � Q � � U) W � U) O U EXHIBIT C.1 2$ 0 o 0 0000000000000000000 VLO k 0 C #$�k&k Nco_oo0N CN Wn000 o -® _ 0 %2ar-2k0& o ®- 't (D ow�0w000 cCN Nco 000 0 _ V � / k $ 0 m k & q 7 2 2 2 � J @ c # o c - �o�tC U U) [2 y \ © +) L) a , E § 2 LD 222E k m22/ ]���a 0)k 2 co § »t a.wm -0 wo (D \ wa�aa0 § 7 a t � `§ f © § 02 E n 2 5 E §» > m \ § U) § 2 o t � Lo o E e® 20$ ,o rw M§ 88 m w22 =a E_ _ m/ = c kcg§ � §0 ��2\ �� ®t$ ° =G £�±� 0.0 ±ce�a 0 ��#e a w , _, = o, _ a) _ f a _ • = o o • f ■ $pf2xe:�o §'o� ®ca$625 @�_wLu 'uj.2 o� 5 w�aoze = <o7 »�04= LD ear- a 22 c2 ƒ7bo J) CO VLO(0 25C-1 3 � 0 Q L) LLJ 0 � k 0 0 LU u 0 � ■ LU �00000_ $2 ® o -® _ o ®- g o ®- $ _ 0 / k $ m k & q 2 2 2 J @ c # o c �o�tC U U) [2 y \ © +) L) a , E § 2 LD 222E m22/ ]���a 0)k 2 co § »t a.wm -0 wo (D wa�aa0 0 LU u 0 � ■ LU 25C -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: AGREEMENT WITH THE CONFIDENTIAL ASSOCIATION OF SANTA ANA r, �r - JT'CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Direct the City Attorney to prepare and authorize the City Manager and Clerk of the Council to execute an agreement with the Confidential Association of Santa Ana regarding wages and other terms and conditions of employment. DISCUSSION In December, 2011, the City requested that the Confidential Association of Santa Ana (CASA) defer a salary increase scheduled for January 1, 2012 as well as increase its contribution to the pension fund (CaIPERS). CASA has agreed to these requests, as follows: 1) Salary Increase: 2% increase scheduled for 1/1/12 has been deferred to such time as negotiations on the successor MOU are completed. 2) CalPERS Retirement: Effective January 1, 2012, all members shall contribute an additional .7% of their salary to CalPERS for the cost of the retirement benefit, for a total contribution of 8 %. FISCAL IMPACT There is a cost savings of $59,100 to the City for deferral of salary increases and increased CalPERS contribution for the remainder of the fiscal year. There are additional ongoing savings of $27,700 for increased CalPERS contributions. Edward S. Raya Francisco Gutierrez Executive Director Executive Director Personnel Services Agency Finance & Management Services Agency 1 25D -1 25D -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: AGREEMENT WITH THE SANTA ANA MANAGEMENT ASSOCIATION l CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: --• e ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Direct the City Attorney to prepare and authorize the City Manager and Clerk of the Council to execute an agreement with the Santa Ana Management Association regarding wages and other terms and conditions of employment. DISCUSSION The City requested that the Santa Ana Management Association (SAMA) negotiate adjustments to its current Memorandum of Understanding to effect certain reductions in salary and benefit costs to the City. The provisions of this agreement include: 1) Salary Increase: The 3.5% salary increase scheduled for July 1, 2012 will be deferred to July 1, 2013. 2) CALPERS Retirement: Effective January 1, 2012, SAMA employees will contribute an additional 1.7% to CalPERS for the cost of the 2.7% at 55 service retirement benefit, for a total contribution of 8 %. 3) Vacation Cash Out: SAMA employees will defer the cash -out of longevity vacation leave time for fiscal year 2012 -13. 4) Medical Retirement Subsidy Plan: The City's deposit of 1.75% of payroll shall be deferred until July 1. 2013. FISCAL IMPACT For the remainder of the current fiscal year, and two following fiscal years of this agreement, there will be a cost savings to the City of $503,627. APPROVED AS TO FUNDS AND ACCOUNTS: Edward S. Raya Francisco Gutierrez Executive Director Executive Director Personnel Services Department Finance & Management Services Agency�k-- 25E -1 25E -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: AGREEMENT WITH ALL CITY MANAGEMENT SERVICES, INC. (ACMS) FOR POLICE DEPARTMENT ADULT CROSSING GUARD PROGRAM - tIY�CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1St Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a 3rd Amendment to Consultant agreement with All City Management Services Inc. (ACMS), subject to non - substantive changes approved by the City Manager and City Attorney, to provide an Adult Crossing Program throughout the City of Santa Ana, in an amount not to exceed $850,000. DISCUSSION Adult Crossing Guards ensure the safe movement of elementary school children around school zones within the City of Santa Ana. All City Management Services, with the Santa Ana Police Department oversight, currently manages the Adult Crossing Guard Program. The Adult Crossing Guard Program provides crossing guard services to three school districts at 70 locations utilizing 78 crossing guards throughout the city. All City Management Services was awarded a one -year contract based on their Request for Proposal and is set to expire February 29, 2012. All City Management Services has demonstrated that the continued outsourcing of the Adult Crossing Guard Program has not diminished the level of professionalism provided to the City. Staff's evaluation determined that All City Management Services continues to meet all the requirements of the RFP and recommend entering into a one -year agreement amendment. FISCAL IMPACT Funds in the amount of $850,000 are available in the Police Department, Traffic Division Other Contractual Services Account (account no. 01114405 62300). aav ( yl- Pau M. Walters Chief of Police Police Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency 25F -1 25F -2 THIRD AMENDMENT TO ADULT CROSSING GUARD AGREEMENT THIS THIRD AMENDMENT TO AGREEMENT is entered into on February 29, 2012, by and between the City of Santa Ana, a charter city and municipal corporation of the State of California ( "City ") and All City Management Services, Inc., a California Corporation ( "Consultant "). RECITALS: A. City and Consultant entered into Agreement #A- 2010 -038, dated March 1, 2010, (hereinafter "said Agreement ") by which Consultant provided adult crossing guard services to City. B. City and Consultant entered into a First Amendment to Agreement #A -2010- 038 -001, dated March 1, 2010, amending the compensation from a not to exceed amount of $795,450.00 to a not to exceed amount of $826,783.00. C. City and Consultant entered into a Second Amendment to Agreement #A- 2011 -040, dated March 1, 2011, extending the term of said Agreement for an additional one- year period. D. In accordance with the terms and conditions of said Agreement, the parties wish to extend the term of said Agreement for an additional one -year period and increase compensation to pay for services provided during the additional term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: 1. Section 3, TERM, shall be amended to extend the term of said Agreement for an additional one year period through February 28, 2013. In order to provide continuous uninterrupted service, all services provided by Consultant since March 1, 2012, shall be included within the scope of services of this Agreement. 2. Section 2, COMPENSATION, shall be amended to increase compensation by an amount not to exceed $850,000.00 to pay for additional services provided by Consultant during the extended tern. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. 25F -3 IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: TERESA L. JUDD Assistant City Attorney 25F -4 CITY OF SANTA ANA Y� PAUL M. WALTERS Interim City Manager ALL CITY MANAGEMENT SERVICES, INC. (NA E) (Title) �a9 //� REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: MITIGATED NEGATIVE DECLARATION NO. 2012 -19 FOR McFADDEN- ORANGE (PACIFIC ELECTRIC) SITE CITY MANAGER RECOMMENDED ACTION 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 1) Approve and adopt the Mitigated Negative Declaration, Environmental Review Nos. 2012- 19 (McFadden Orange Site). 2) Authorize the City Manager to direct staff to research potential grant funding to develop a new park site at the McFadden and Orange site. DISCUSSION For the last three years, a coalition of neighborhood associations, known as the Pacific Electric Park Development Committee, has been working with staff to help develop a new park site at McFadden and Orange Avenue (1.4 acres). The Mitigated Negative Declaration was prepared by the Planning Center to address the environmental assessment requirement for this new park. The Mitigated Negative Declaration was released for public comment period on February 3, 2012 and ended on February 23, 2012. Throughout this process the community has been very supportive of a new park at McFadden and Orange Ave. The site is adjacent to the Pacific Electric Bike Trail and improvements at the new park will include bike racks, drinking fountain, benches, play equipment, native and drought tolerant planting, dry stream bed, community garden and fruit trees, a small amphitheatre for teaching gardening /drought tolerant planting, decomposed granite jogging path, irrigation and security lighting. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempted from further review. Mitigated Negative Declaration Review No. 2012 -19 McFadden /Orange Site (Pacific Electric Park) will be filed for this project. �p%� =v_i Mitigated Negative Declaration for McFadden /Orange Site March 5, 2012 Page 2 of 2 FISCAL IMPACT No fiscal impact is associated with this action. Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency a T vino, Ex ve Director Planning and Building Agency REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: RESOLUTION PERTAINING TO EXECUTIVE MANAGEMENT EMPLOYEES J 1M CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s` Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt a Resolution regarding certain terms and conditions of employment pertaining to Executive Management employees. DISCUSSION It is the City's desire that unrepresented Executive Management (EM) employees be subject to the following adjustments in wages and benefits: 1) CalPERS Retirement: Effective January 1, 2012, CaIPERS miscellaneous unrepresented Executive Management employees will make additional contributions to CalPERS for the cost of the 2.7% @ 55 retirement benefit, for a total contribution of 8 %. Effective January 1, 2012, CaIPERS safety unrepresented Executive Management employees (e.g., Police Chief and Fire Chief) will make additional contributions to CaIPERS for the cost of the 3% @ 50 retirement benefit, for a total contribution of 9 %. 2) Vacation Cash Out: Executive Management employees will defer the cash -out of longevity vacation leave time for the remainder of fiscal year 2011 -12. 55A -1 Resolution Pertaining to March 5, 2012 Page 2 FISCAL IMPACT Executive Management Employees There is a cost savings of $ 65,655 to the City for increased CalPERS contributions and deferral of longevity vacation cash -out for the remainder of the fiscal year. There are additional ongoing savings of $51,095 for increased CalPERS contributions. Edward S. aya Executive Director Personnel Services Agency 55A -2 Francisco Gutierrez Executive Director Finance & Management Services Agency RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO AMEND RESOLUTION NO. 91 -066 TO AMEND THE BASIC COMPENSATION PLAN FOR CERTAIN CLASSIFICATIONS OF EMPLOYMENT DESIGNATED AS UNREPRESENTED EXECUTIVE MANAGEMENT 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. Section 1004, Article X of the City Charter of the City of Santa Ana requires the City Manager to prepare, install and maintain a position classification and pay plan subject to civil service rules and regulations and the approval of the City Council. B. On July 1, 1991, the City Council passed and adopted Resolution No.91- 066, re- establishing the Basic Classification and Compensation Plan for classifications of employment designated as unrepresented Executive Management (EM). The City Council has amended Resolution No. 91- 066 on numerous occasions since its adoption. C. On March 19, 2001, the City Council passed and adopted Resolution No. 2001 -022, authorizing the amendment of the City's contract with the California Public Employees' Retirement System (CaIPERS) to provide the Section 22362.2 (3% at 50 Full Formula) retirement benefit for local safety members, including incumbents in the unrepresented Executive Management classifications of Fire Chief and Police Chief. D. On May 7, 2007, the City Council passed and adopted Resolution No. 2007 -041, amending Resolution 91 -066, to provide unrepresented Executive Management local miscellaneous employees with the same California Public Employees' Retirement System (CaIPERS) 2.7% at 55 retirement benefit as provided to several employee bargaining units, including the Santa Ana Management Association (SAMA), effective January 1, 2009. E. On January 1, 2011, the incumbent in the CaIPERS safety member, unrepresented Executive Management classification of Fire Chief began paying one and forty - three 'hundredths percent (1.43 %) of his salary towards the employee's individual retirement contribution. 55A -3 F. On December 1, 2011, the incumbent in the CaIPERS safety member, unrepresented Executive Management classification of Police Chief began paying four and forty -two hundredths percent (4.42 %) of his salary towards the employee's individual retirement contribution. G. On January 4, 2011, in an on -going effort to maintain the City's financial stability in a difficult economic climate, the City Council adopted Resolution No. 2011 -001, authorizing the City Manager to, among other things, defer longevity vacation and management vacation cash out for FY 2010 -11 for unrepresented Executive Management officers and employees. H. It is now the City's desire that unrepresented Executive Management officers and employees shall be subject to the following adjustments in wages and benefits: Effective January 1, 2012, CalPERS safety unrepresented Executive Management employees shall pay nine percent (9 %) of the employer contribution to CaIPERS for their retirement benefits as cost sharing pursuant to Government Code section 20516(f). All employee contributions for retirement benefits are paid to the employer cost (i.e., employer contribution) in accordance with Government Code section 20516(f). 2. Effective January 1, 2012, CalPERS miscellaneous unrepresented Executive Management employees shall pay eight percent (8 %)* of the employer contribution to CalPERS for their retirement benefits as cost sharing pursuant to Government Code section 20516(f). All employee contributions for retirement benefits are paid to the employer cost (i.e., employer contribution) in accordance with Government Code section 20516(f). * Percentage equal to the percentage paid by classifications represented by SAMA. 3. Continue to defer longevity vacation and management vacation cash out for the remainder of FY 2011 -2012. It is now desired to amend Council Resolution No. 91 -066 to effect these changes for unrepresented Executive Management employees. Section 2: That Resolution No. 91 -066, as amended, is hereby further amended as follows: That Section 6.1 Retirement Plan Contributions, as amended, is hereby further amended to read as follows: 55A -4 A. General. The terms of the existing contracts between the City and the California Public Employees' Retirement System (CaIPERS) governing the City retirement benefits for eligible affected management employees are incorporated by reference herein. The City shall continue to make contributions to CaIPERS in accordance with its contracts with CaIPERS for eligible affected employees covered by said contract as amended. B. Deferred Retirement. The City will continue to make payment to CaIPERS on behalf of each eligible affected employee in an amount required to pay one hundred percent (100 %) of the employee's individual retirement contribution which is equal to eight percent (8 %) for CaIPERS miscellaneous members and equal to nine percent (9 %) for CaIPERS safety members. Such payments shall be credited to the individual employee's PERS account. Such payments are not increases in base salary and no salary rate range applicable to any of the employees covered by this Resolution shall be changed or deemed to have been changed by reason thereof. As a result, the City will not treat these payments as ordinary income and thus will not withhold federal or state income tax from said payments. The City previously received a ruling from the Internal Revenue Service confirming that such payments are deferred compensation and not ordinary income. In the event that the City receives a new ruling from the Internal Revenue Service that such payments are ordinary income of the employees instead of deferred compensation, the City's obligation to make such payments shall discontinue and in place thereof the base salary of each said employee shall forthwith be increased by eight percent (8 %) for CaIPERS miscellaneous members and nine percent (9 %) for CaIPERS safety members. For the purpose of reporting an employee's compensation to CaIPERS, the City shall include these payments as if they were a part of the employee's base salary. C. 3% at 50 Service Retirement Benefit for CaIPERS Safety Members. The City agreed to amend its contract with CaIPERS to provide safety members, unrepresented Executive Management employees with the 3% at 50 Service Retirement Benefit effective July 1, 2001. D. 2.7% at 55 Service Retirement Benefit for CaIPERS Miscellaneous Members. The City agreed to amend its contract with CaIPERS to provide miscellaneous members, unrepresented Executive Management employees with the 2.7% at 55 Service Retirement Benefit effective January 1, 2009. E. Employee Contribution for Retirement Benefit. 1. Effective January 1, 2012, CaIPERS safety members, unrepresented Executive Management employees shall pay nine percent (9 %) of the employer contribution to CaIPERS for their retirement benefits as cost sharing pursuant 55A -5 to Government Code section 20516(f). All employee contributions for retirement benefits are paid to the employer cost (i.e., employer contribution) in accordance with Government Code section 20516(f). 2. Effective January 1, 2012, CalPERS miscellaneous members, unrepresented Executive Management employees shall pay eight percent (8 %)* of the employer contribution to CalPERS for their retirement benefits as cost sharing pursuant to Government Code section 20516(f). All employee contributions for retirement benefits are paid to the employer cost (i.e., employer contribution) in accordance with Government Code section 20516(f). * Percentage equal to the percentage paid by classifications represented by SAMA. Section 3: That except as amended by this Resolution, all other provisions of Resolution No. 91 -066, as amended, shall remain in full force and effect. Section 4: This Resolution shall be operative from and after January 1, 2012. ADOPTED this 5th day of March, 2012. APPROVED AS TO FORM: City Attorney's Office By: Joseph Straka Interim 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 Resolution No. 2012- to be the original resolution adopted by the City Council of the City of Santa Ana on Date: 55A -7 Clerk of the Council City of Santa Ana REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: PUBLIC HEARING — AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2004 -03, ZONING ORDINANCE AMENDMENT 2012 -01, VESTING TENTATIVE TRACT MAP NO. 2012 -01 (COUNTY MAP NO. 17437) AND SITE PLAN REVIEW NO. 2012 -01 FOR A NEW MULTI- FAMILY RESIDENTIAL DEVELOPMENT AT 200 EAST FIRST AMERICAN WAY CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 15t Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER For the January 23, 2012 meeting staff recommended that the Planning Commission: Approve and adopt the Mitigated Negative Declaration and Mitigation Monitoring Program, Environmental Review No. 2011 -46. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2012 -01. 3. Adopt an ordinance approving an amendment to Development Agreement No. 2004 -03. 4. Adopt a resolution approving Vesting Tentative Tract Map No. 2012 -01 (County Map No. 17437) as conditioned. 5. Adopt a resolution approving Site Plan Review No. 2012 -01 as conditioned. PLANNING COMMISSION ACTION At its meeting on January 23 the Planning Commission discussed the project including issues related to the unit mix, tandem parking, ingress /egress and open space. Ultimately, the item was continued to the next meeting for further discussion, and in hopes that all seven commissioners would be present (Commission Turner was absent). At its meeting on February 13 the Planning Commission again discussed the project, although Commissioner Yrarrazaval was absent at this meeting. A discussion ensued and there was a motion (motion by Turner, second by Nalle) to continue the matter and give the applicant direction to bring the open space into compliance with SD -43, reconsider the unit mix, incorporate the .6 acre portion and provide more details concerning the landscape and parking management plans (Exhibit A). 75A -1 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 March 5, 2012 Page 2 Before a vote on the original motion, a substitute motion was made (motion by Mill, second by Acosta) to approve the project. But after further Commission discussion the vote on this substitute motion failed on a 3:3 vote (Commissioners Mill, Acosta and Gartner in favor; Commissioners Alderete, Nalle and Turner opposed). The Commission then returned to the original motion by Commissioner Turner to continue the item and provide the applicant with direction for changes. This motion failed on a 2:4 vote (Commissioners Nalle and Turner in favor; Commissioners Alderete, Acosta, Gartner and Mill opposed). A third motion was made by Commissioner Gartner and seconded by Commissioner Alderete to continue the item for two weeks to allow staff time to rebut the issues that were raised by the applicant during public testimony. This motion also failed by a vote of 2:4 (Commissioners Alderete and Gartner in favor; Commissioners Acosta, Mill, Nalle and Turner opposed). Pursuant to the Planning Commission's bylaws, the applicant has requested the project be forwarded to the City Council for a final decision. AIRPORT LAND USE COMMISSION ACTION In accordance with State law, the zoning ordinance amendment and the project's close proximity to the John Wayne Airport requires the project to be submitted to the Airport Land Use Commission (ALUC) for a determination of consistency with the Airport Environs Land Use Plan ( AELUP) for John Wayne Airport. The project received FAA clearance on January 26, 2012 with Aeronautical Study No.2012 -AWP- 393 -OE. At the regular meeting of the ALUC for Orange County on February 16, 2012, the Commission found that the proposed Met at South Coast Multi - Family project located at 200 First American Way consistent with the AELUP for JWA and that the project was consistent with the AELUP for Heliports. With the determination, the Commission requested and the applicant and City staff agreed to the following conditions: In accordance with California Business and Professions Code section 11010(b)(13), the Final Tract Map and the Deed Disclosure Notice for residential property shall include the following language: "NOTICE OF AIRPORT IN VICINITY This property is presently located in the vicinity of an airport, within what is known as an airport influence area. For that reason, the property may be subject to some of the annoyances or inconveniences associated with proximity to airport operations (for example: noise, vibration, or odors). Individual sensitivities to those annoyances can vary from person to person. You may wish to consider what airport annoyances, if any, are associated with the property before you complete your purchase and determine whether they are acceptable to you." 75A -2 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 March 5, 2012 Page 3 2. Designated outdoor common or recreational areas shall provide outdoor signage informing the public of the presence of operating aircraft. Project Changes by the Applicant Subsequent to the February 13 Planning Commission meeting the applicant contacted staff to discuss possible project changes. Staff and the applicants held extensive discussions during the week of February 20. These discussions were productive and resulted in significant project improvements including (Exhibit 13): • Reduce total unit count by 6 units, from 284 to 278 units • Improve the unit mix by: o Increasing the number of two and three bedroom units from 106 units (38 %) to 136 units (49 %) o Decreasing the number of one bedroom units from 178 (63 %) to 142 (51%) • Increase the average unit size from 885 sq. ft. to 915 sq. ft. • Reduce tandem parking spaces from 344 (54 %) to 257 (42 %) • Increase open space from 58,150 sq. ft. (202 sq. ft. per unit) to 70,976 sq. ft. (255 sq. ft. per unit). This complies with the City standards set forth in SD-43. Staff believes these changes address the remaining concerns. Incorporating these changes will ensure that the project will meet or exceed the standard of other recent high quality projects in the City. For example, to address the City's Housing Element goal to provide family sized housing the applicant added 30 additional two and three bedroom units. This improved unit mix furthers the Housing Element goal. Moreover, it is equivalent to the unit mix approved for the nearby Lyon project. Additionally, the applicant agreed to reduce the number of tandem parking spaces in an effort to ensure that residents will enjoy ample and convenient parking. With this change The Met will have a slightly lower tandem parking ratio than what was approved for the nearby Lyon project. Project Features and Amenities The applicant has incorporated a rich variety of project amenities commensurate with those provided by other recently- approved projects, including the nearby Lyon project. These amenities include: • The pool and fitness center have increased in size, and a business center has been added, in response to Planning Commission comments. 75A -3 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 March 5, 2012 Page 4 • A premium rooftop open space, i.e., the yoga veranda, is provided and will afford residents with extensive views over MacArthur Place. • A game lounge and a pet park have been added. • Various other rooftop open spaces with seating areas and other amenities are also provided for residents. • Water features and other landscape enhancements are proposed for the two corner plazas, and the main plaza will showcase a public art feature. • The central open space deck will house the enlarged pool, Jacuzzi, permanent cabanas, poolside bar, barbecues, fire pits and an outdoor fireplace. • Private storage for residents will be provided within the parking garage. • Each unit will enjoy high -end amenities such as granite counters, in -unit laundry appliances, hardwood cabinets, premium flooring and appliances. General Plan and Zoning Analysis The General Plan land use designation for the site is District Center (DC), which allows for major development sites such as the multi - family residential development. District Centers are designed to serve as anchors to the City's commercial corridors, and to accommodate major development activity. The project site is consistent with this General Plan land use designation. The site is surrounded by residential and retail uses to the south; office development to the north; a parking structure to the east; and residential and retail uses to the west. The zoning for the site is MacArthur Place District Center, Specific Development District No. 43. This zone allows for a mix of uses including office, restaurant, retail, hotel and residential land uses. The applicant has requested amendments to SD -43 to allow for tandem parking and to approve the overall parking ratio of 2.2 stalls per unit for the project. The 2.2 space parking ratio is consistent with that applied to both the Nexus and Lyons projects which are located nearby. Tandem parking is also provided in both the Nexus and Lyon projects. Nexus was approved with 14% tandem spaces and Lyon was approved with 43% tandem spaces. The Met now proposes 42% tandem spaces. Overall, with these amendments, the proposed project would be consistent with the zoning designation. Summary The Met would serve to strengthen MacArthur Place as a major development area by incorporating high quality architectural and urban design, quality materials and rich array of amenities. The project also improves on the pedestrian connections and urban design within MacArthur Place: the fagade along MacArthur is a significant improvement over the three -level parking garage proposed in the Geneva Commons project; and the generously - scaled public plaza at The Met's main corner on MacArthur will help form pedestrian connections to the north and south sides of MacArthur Place. 75A-4 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 March 5, 2012 Page 5 The Met will provide its residents with a level of amenities meeting or exceeding the high standards the City has come to expect. The open space amenities include both rooftop and plaza areas that give residents many options — and these areas are amenitized with a business center, fitness center, lounges, a pet park, pools, cabanas, fireplaces, barbeques, water features and public art. The project has been revised to address issues raised by the Planning Commission and staff — and these changes have further improved the project. The unit mix has been improved, the average unit size has increased, the number of tandem parking spaces has been reduced, the amount and type of open space has been expanded and the overall number of units has decreased. FISCAL IMPACT There is no fiscal impact associated with this action. RECOMMENDATION As amended by the applicant's proposed project changes, and the ALUC conditions addressed herein, staff recommends that the City Council: 1. Approve and adopt the Mitigated Negative Declaration and Mitigation Monitoring Program, Environmental Review No. 2011 -46. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2012 -01. 3. Adopt an ordinance approving an amendment to Development Agreement No. 2004 -03. 4. Adopt a resolution approving Vesting Tentative Tract Map No. 2012 -01 (County Map No. 17437) as conditioned. 5. Adopt a resolution approving Site Plan Review No. 2012 -01 as conditioned. J VcutiTve . revino Director Planning & Building Agency SK:rb sk \reports \The Met.030512.cc Exhibit: A. Planning Commission Staff Report B. Applicant Project Revision Letter 75A -5 75A -6 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: FEBRUARY 13, 2012 TITLE: PUBLIC HEARING — AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2004-03, ZONING ORDINANCE AMENDMENT 2012 -01, VESTING TENTATIVE TRACT MAP NO. 2012 -01 (COUNTY MAP NO. 17437) AND SITE PLAN REVIEW NO. 2012 -01 FOR A NEW MULTI- FAMILY RESIDENTIAL DEVELOPMENT AT 200 EAST FIRST AMERICAN WAY Prepared by Sergio Klotz ti Executive Director RECOMMENDED ACTION Recommend that the City Council: PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended • As Amended • Set Public Hearing For DENIED • Applicant's Request • Staff Recommendation CONTINUED TO Planning (Manager 1. Approve and adopt the Mitigated Negative Declaration and Mitigation Monitoring Program, Environmental Review No. 2011 -46. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2012 -01. 3. Adopt an ordinance approving an amendment to Development Agreement No. 2004 -03. 4. Adopt a resolution approving Vesting Tentative Tract Map No. 2012 -01 as conditioned. 5. Adopt a resolution approving Site Plan Review No. 2012 -01 as conditioned. DISCUSSION Request of the Applicant Vineyard Development is requesting approval of an amendment to an existing development agreement, zoning ordinance amendment, vesting tentative tract map and site plan review to allow the construction of a multi- family residential project with 284 units at 200 East First American Way. Protect Location and Site Description The proposed project lies within the MacArthur Place District Center (SD 43), a master planned, 62- acre mixed -use project located on the north side of MacArthur Boulevard between Main Street and the Newport-Costa Mesa (SR -55) Freeway. EXHIBIT A 75A -7 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 2 The subject site is a vacant, 3.1 -acre rectangular shaped parcel situated at the northeast corner of MacArthur Boulevard and MacArthur Place. Currently, the MacArthur Place District Center area is developed with approximately 894,000 square feet of office uses, 20,000 square feet of retail space, a 7 -story, 251 room DoubleTree Hotel and 346 for -sale and rental residential units. Surrounding land uses include several office buildings to the north, the Hutton Center retail and office development to the south, a parking structure to the east used by First American, and a mixed use retail /residential project to the west, The Pinnacle Apartments (Exhibits 1 and 2). MacArthur Place District Center (SD 43) Project Description The proposed project is a 284 -unit multi - family development consisting of three five -story buildings over a podium parking garage. The applicant is processing a condominium map for the project, but it is currently proposed to operate as an apartment complex, with units avaNable for rent. Access to the project will be provided from First American Way with a service entrance provided from an existing driveway located along the eastern edge of the project site. Due to the complex nature of the project, a description of each of the project components is provided in more detail below. An analysis of each of the project features will be provided in the Project Analysis section of the report. ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 3 Unit Mix — The project is proposed to consist of a mix of one, two and three bedroom units. The units will range in size from 744 square feet for the smallest one - bedroom unit to 1,383 square feet for a three- bedroom unit. Table 1 below provides a breakdown of the units within the project. Table 1 — Unit Mix The Met Unit Summary Unit Type Units Proposed Percent of total Square Footage 1 bedroom 171 60% 744 -804 1 bedroom with mezzanine 7 2% 912 2 bedroom 101 36% 1,004 -1,163 3 bedroom 5 2% 1,383 Proposed Parking Stall Type Total 284 100% n/a Parkin — Parking for the project is proposed to be provided within a semi - subterranean parking structure, which will consist of one level above grade and two levels below with some variation in the amount of structure exposed above grade due to differences in site elevation. The overall parking ratio was calculated at 2.2 spaces per unit, regardless of bedroom count, for a total of 625 spaces. The applicant proposes to provide an additional 7 spaces of guest parking, for a total of 632 spaces — an overall parking ratio of 2.22 spaces per unit. The applicant proposes to provide this parking in a combination of standard single -car stalls and tandem stalls. Table 2 details the proposed parking. Table 2 — Proposed Parking Summary The Met Proposed Parking Summary Proposed Parking Apartment unit parking 2.0 spaces/unit 568 spaces Guest parking 0.2 spaces/unit 57 spaces Additional guest parking 7 spaces Total 2.2 spaces/unit 632 spaces Proposed Parking Stall Type Standard single-car stall 288 spaces (46% Tandem car stall _ 344 spaces 54% 75A -9 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 4 Architecture — The architectural style proposed for this mid -rise project is contemporary. Proposed building materials include stucco, fiber cement panels, wood laminate panels, ceramic tile finishes, metal awnings and rails, and aluminum windows. The project includes a variety of rooflines, varied facades and architectural projections at key corners, with the highest point of the building being 128 feet. Amenities — Exterior amenities include a water feature, landscaping and public art within the public plaza located at the southwest and northeast corners of the project. The ground level interior courtyard will have a pool and Jacuzzi, outdoor kitchen, and seating areas. The project is proposed to have two rooftop decks which include seating areas, outdoor kitchen with barbeques, shade canopy, cabanas, a hearth, yoga court and putting green. A fitness room is also proposed along with a leasing office (Exhibits 3, 4, 5 and 6). Open Space — The project proposes 202 square feet of open space per unit. Of the 284 units, 132 units will have private open space in the form of balconies or patios. The remainder of the open space is aggregated within the courtyard and rooftop decks. Landscaping — The project proposes to provide perimeter landscaping to a standard of 20 feet along MacArthur Blvd. and 15 feet along MacArthur Place and First American Way. The project interior also includes landscaping within the courtyard areas. A vacant 0.6 -acre portion of the site located at the northeast corner of the site is proposed to remain vacant with a landscaped perimeter to screen the lot, otherwise it will not be integrated into the larger project (Exhibit 6). A detailed landscape plan has not yet been submitted. Proiect Background The Met parcel is part of the larger master plan called the MacArthur Place District Center, a mixed use development plan that was approved by the City Council via a Specific Development (SD 43) on January 4, 1988. In 2005, a project referred to as Geneva Commons and filed by Mola Development was approved on The Met site allowing two buildings of 8 and 18 stories containing 278 residential condominium units. Although the project was entitled, permits were never obtained for its construction. In early 2011, Vineyard Development filed plans in order to construct The Met project. With the exception of the subject site, the remainder of the properties have been fully developed with a mix of office, retail, residential and hotel uses. The total project area houses the headquarters of First American Title, a DoubleTree Hotel, Class A office towers, the Pinnacle Apartments and Vantage Townhomes, and a small commercial development along MacArthur Crescent. General Plan and Zoning Analysis The General Plan land use designation for the site is District Center (DC), which allows for major development sites such as the multi- family residential development. District Centers are designed to serve as anchors to the City's commercial corridors, and to accommodate major development 75A -10 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 5 activity. The project site is consistent with this General Plan land use designation. The site is surrounded by residential and retail uses to the north; office development to the south; office and retail uses to the east; and residential uses to the west. The zoning for the site is MacArthur Place District Center, Specific Development District No. 43. This zone allows for a mix of uses including office, restaurant, retail, hotel and residential land uses. The applicant has requested several amendments to SD 43 in order to allow for an increase in the total number of units permitted within the zone, a reduction in the amount of open space required per unit, a reduction in the overall parking ratio for the project, and to allow for tandem parking, which is not currently allowed in this zone for residential development. With these amendments, the proposed project would be consistent with the zoning designation. Proiect Analysis Zoning Ordinance Amendment — the applicant is requesting amendments to the existing zoning, SD 43 to increase the maximum number of permitted residential units, reduce the parking ratio, allow for the use of tandem parking stalls, and reduce the open space requirement. Each of these requested amendments is analyzed in more detail below. Increase in Maximum Number of Residential Units — SD 43 currently allows a maximum of 624 residential units. MacArthur Place currently has two residential developments with a total of 346 units. The Pinnacle Apartments, located at the northeast corner of Main Street and MacArthur Boulevard, was approved in 1993 and contains 273 units. The Vantage Townhomes development was approved to allow 93 for -sale units. The Met is proposed to contain 284 units, which, added to the existing 346 units, exceeds the maximum permitted units by six. The applicant is requesting an amendment to SD 43 to increase the maximum number of permitted units to 630. Amendments to SD 43 are needed to Section III.A.2 (Maximum Permitted Building Density /intensity) and to Section V. (Development Standards /Residential Permitted Density). It is proposed that these sections be modified to allow 630 units, which will include the existing 346 units and the proposed 284 -unit development. Reduction in Multi - Family Residential Parking Ratio — Additionally, amendments are needed to revise the parking requirements for multi - family residential uses. SD 43 currently has a graduated parking ratio for individual units based on bedroom count and a similar graduated guest parking ratio based on the overall unit count. As proposed, the project will provide a total of 632 spaces at an overall ratio of 2.2 spaces per unit, regardless of bedroom count, and inclusive of guest parking, which provides seven more spaces than the 2.2 per unit ratio. The parking standards contained within SD 43, if applied to the proposed project, would require a total of 642 parking spaces — 601 for the units and 41 for guest parking. This creates the need for a reduction in the required parking of 17 spaces. Due to the fact that the applicant proposes to provide 632 spaces, the effective reduction will be 9 spaces; however, the SD should be amended to reflect the overall ratio of 2 spaces per unit and 0.2 spaces per unit for guest parking. The following table provides a comparison. 75A -11 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 6 Table 3 — Parking Standards Comparison SD 43 Standards " `"The.N[et Diiff "erence 642 spaces 625 spaces + 7 additional guest.L632 total 9 spaces For purposes of further comparison, the following table shows the parking ratios used for the other multi - family projects in the MacArthur Place area. Table 3a -- Multi - Family Parking Ratio Comparison MacAr#h.u.r Place;:Multi Fam�i Pa_rkirt "i�atio'C,Qm °`orison The Pinnacle SD 43) Geneva Commons Nexus Towers Lon The Met 2.01 2.45 2.31 2.2 2.2 Allowance for Tandem Parking to Satisfy Parking Requirement — The Santa Ana Municipal Code contains provisions for tandem parking to satisfy some portion of any required parking, but only for commercial development. SD 43 does not contain any specific standards allowing the use of tandem parking within the project area. The applicant proposes to have 54% of the parking stalls designed as tandem spaces. The project that was previously approved on the site, Geneva Commons, was designed with 11 % tandem parking, which was permitted through a variance to the parking standards. Both the Nexus Towers and the Lyon Properties project also included a percentage of tandem parking, however the existing multi - family project to the west, the Pinnacle Apartments, contains no tandem parking and was developed pursuant to the existing zoning. As proposed, the applicant is requesting an amendment to SD 43 that would allow for tandem parking up to 54% of total parking. The following table provides a comparison. Table 4 — Tandem Parking Project Comparison MacArthur :Piave Tandem son The Pinnacle SD 43 Geneva Commons Nexus Towers Lon The Met 0% 11% 14% 43% 54% This table is organized in order of project approval. There has been a trend toward increasing the percentage of tandem parking allowed for projects recently approved in this area. Staffs research has found that tandem parking can be successful if it is only used for one - bedroom apartments and if the stall is assigned to a specific unit. In addition, the apartment property manager must be experienced with managing tandem stalls, have a detailed parking management plan and actively enforce the use of the tandem stalls rather than allowing the second car to use guest stalls. Due to the fact that no new 75A -12 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 7 multi- family projects have been built in the City with the proposed percentage of tandem parking, the appropriateness of this percentage is not clear. However, it is consistent with the percentage of tandem spaces per one - bedroom units that was provided at the Lyon project. The Lyon project has 51% of its unit mix as one - bedroom units with 43% of its spaces as tandem spaces — 8% fewer than the percentage of units. The Met proposes a unit mix of one - bedroom units at 62% with 51% tandem units — also 8% fewer than the percentage of one - bedroom units. Staff proposes to include conditions of approval to address the ongoing management of a tandem parking program and the proposed amendment to SD 43 will address the need to link percentage of tandem with percentage of one - bedroom units. This could affect the future unit reconfiguration, if any, of the proposed project. Unit Mix and Average Unit Size — Although SD 43 does not regulate unit bedroom mix and would, therefore, not require any amendments to the zoning for the proposed project, unit size and mix have been consistent policy concerns of the Planning Commission as they have been considered to be indicators of a project's quality and long term success. The following table provides a comparison of The Met's proposed unit mix and average unit size compared to other recently approved projects in the area. Table 5 — Unit Mix Comparison The Housing Element identifies a need for larger units within future projects in order to accommodate the larger family sizes unique to the City of Santa Ana. Staff has provided this comment to the developer. The latest submittal proposes to include 5 three - bedroom units and 7 one - bedroom units that also have a mezzanine /loft space in the plan. At an average of 885 square feet per unit, the average unit size proposed for The Met is lower than recently approved projects in the MacArthur Place area. The proposed project proposes a higher percentage of 1- bedroom apartments that have a small overall unit size. The following table details the 1- bedroom average unit size. 75A -13 Tie Geneva Nexus Lyon The Met Piinr►acle COmmOnS Towers Studio 6% 0% 0% 0% 0% 1 bedroom 46% 7% 18% 51% 62% 2 bedroom 40% 87% 82% 44% 36% 3 bedroom 8% 6% 0% 5% 2% Avg._ 1,126 s . ft. 1 1,413 sq. ft. 1 1,413 s . ft. 902 sq. ft. 885 sq. ft. The Housing Element identifies a need for larger units within future projects in order to accommodate the larger family sizes unique to the City of Santa Ana. Staff has provided this comment to the developer. The latest submittal proposes to include 5 three - bedroom units and 7 one - bedroom units that also have a mezzanine /loft space in the plan. At an average of 885 square feet per unit, the average unit size proposed for The Met is lower than recently approved projects in the MacArthur Place area. The proposed project proposes a higher percentage of 1- bedroom apartments that have a small overall unit size. The following table details the 1- bedroom average unit size. 75A -13 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 8 Table 6 — Average Size Analysis for 1- Bedroom Units Table 6 illustrates that the majority of the units in The Met project, 62 %, have an average unit size of only 758 square feet. Reduction in Open Space Requirement — The open space provision within SD 43 requires that each residential development provide usable open space at a rate of 250 square feet per unit. The applicant estimates that the project provides for 202 square feet of open space per unit, however this calculation includes two public plazas at the perimeter of the project, as well as miscellaneous open space, which is comprised of building step - backs and pedestrian connections /spaces between buildings that the developer felt were not part of the main open space elements. Neither of these can be counted toward the requirement of usable open space, thereby reducing the usable open space per unit to 173 square feet. Balconies that meet the minimum dimension of 6 feet in each direction with a minimum of 90 square feet are provided on 127 of the units. The applicant is requesting an amendment to SD 43 in order to reduce the required open space. The following table will illustrate similar projects approved in the past and their open space allowance. Table 7 — Open Space Comparison The Met ern ace;Com Tfle Mkt Selroom Avera Geneva Commons S. uae Feet Lyon The Met Unit Model No. of Units S . Ft. Total S . Ft. Avg. S . Ft. IA 105 744 78,120 744 1B 56 756 42,336 756 1C 10 804 8,040 804 2F 7 912 6,384 912 Total 178 3,216 134,880 5 Average 1- Bedroom Unit Size = 758 s . ft, 62% of total units Table 6 illustrates that the majority of the units in The Met project, 62 %, have an average unit size of only 758 square feet. Reduction in Open Space Requirement — The open space provision within SD 43 requires that each residential development provide usable open space at a rate of 250 square feet per unit. The applicant estimates that the project provides for 202 square feet of open space per unit, however this calculation includes two public plazas at the perimeter of the project, as well as miscellaneous open space, which is comprised of building step - backs and pedestrian connections /spaces between buildings that the developer felt were not part of the main open space elements. Neither of these can be counted toward the requirement of usable open space, thereby reducing the usable open space per unit to 173 square feet. Balconies that meet the minimum dimension of 6 feet in each direction with a minimum of 90 square feet are provided on 127 of the units. The applicant is requesting an amendment to SD 43 in order to reduce the required open space. The following table will illustrate similar projects approved in the past and their open space allowance. Table 7 — Open Space Comparison The Met ern ace;Com ":arisorr SD 43 (Pinnacle Apts.) ) Geneva Commons Nexus Towers Lyon The Met 250 s . ft. /unit 282 s . ft. /unit 250 sq. ft. /unit 200 s . ft. /unit 173 s . ft. /unit 75A -14 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 9 The Planning Commission previously requested that the open space amenities, such as the pool, be of adequate size to be usable. In order to provide a guideline for assessing the adequacy of the open space amenities, Table 8 provides a comparison of the amenities provided in the Lyon project, a recently approved and relatively comparable project, with those proposed for The Met. Table 8 — Amenities Comparison Amenity Feature ; The Pinnacle Lyon - The_Met 273 units' ':' '3Q units 2.8 units Pool 2,100 s . ft. 1,344 s . ft. 756 s . ft. Club Room /Fitness Facility 6,830 s . ft. 6,750 s . ft. 3,050 s . ft. Courtyards 18,900 s . ft. 19,140 s . ft. 22,100 s . ft. Roof Deck n/a 37,900 s . ft. in one deck 12,550 s . ft. in two decks At its January 23, 2012 Planning Commission hearing there was discussion in regards to the overall open space proposed, amenities and location of the space. The applicant has submitted a revised open space plan (Exhibit 10). At the time of packet distribution, staff was continuing to evaluate the recent submittal. Amendment to the Development Agreement In 2005, the City approved several entitlements, including a development agreement, with Mola Development for the Geneva Commons development. The development agreement established development intensity, permitted uses and development standards for the term of the agreement. Further, the approved development agreement required certain improvements and public benefits such as in -lieu fees for parkland dedication, payment of an inclusionary housing fee, and the execution of an off -site improvement agreement with the Sandpointe Neighborhood Association. The Geneva Commons project did not proceed and the property was acquired by Vineyard Development, who has proposed a mid -rise residential development. The amendments to Development Agreement No. 2004 -03 recognize Vineyard as the primary developer and owner of the project and the primary deal points are essentially the same as those contained in the previous Development Agreement. The amendments reflect the new scope of the project, such as an increase in the number of units, as well as a new development design. All other elements of the development agreement will remain (Exhibit 7). The development agreement is a legal contract between the developer and the City that defines the terms and nature of development proposed for the project site. This agreement establishes development intensity, permitted uses and standards for the term of the agreement. In exchange for the City vesting the proposed project, the development agreement requires certain improvements and public benefits (Exhibit 7). The primary deal points of the agreement include: 75A -15 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 10 Ten Year Term: The right to build out the project as entitled for a period of ten years, with one two -year extension. 2. Public Art: Committing one -half of one percent (.5 %) of the value of the project, as determined by standard building permit valuation, for the installation on the site, at a prime location visible to the public, of permanent work(s) of public art. The work(s) of public art shall be in place no later than the first certificate of occupancy for the project and shall be maintained in perpetuity by the property owner(s). In the event the project is not constructed, the developer shall donate an amount equal to the one -half of one (0.5) percent public art commitment to the City for acquisition and installation of public art at a City designated location no later than the end of the term of the agreement. 3. Park In -Lieu Fee: Paying the City a fee of $35.50 per square foot for parkland dedication in lieu of the dedication of parkland as required in the City's Subdivision Ordinance (Section 34- 204 et seq. of the Santa Ana Municipal Code). Additionally, the fee may be increased yearly by the average rate of increase in land costs in the City of Santa Ana, as that increase is established by an independent trade publication or source specified in the Agreement. The fee shall be paid prior to issuance of a building permit. Based on the development proposed, this is expected to amount to a fee of approximately $2.1 million. 4. Inclusionary Housing Fee: Paying the City a $3,000.00 per unit inclusionary housing fee prior to issuance of each building permit. The developer may be relieved of this requirement if it enters into an agreement with the Housing Authority of the City of Santa Ana to either rehabilitate and sell or lease, with affordability covenants as required by State law, 42 inclusionary housing units and /or provide for up to 60 percent of these inclusionary units to moderate income residents at its project. Based on the development proposed, this is expected to amount to a fee of approximately $852,000.00. 5. CC &R's: Preparation of Covenants, Conditions and Restrictions (CC &R's) for the project that include provisions such as allowing no more than four residents per unit, requiring the units to be owner- occupied and at no time may the entire unit be rented, limiting home based businesses to those allowed by the Municipal Code, and establishing a significant financial penalty (i.e., the maximum permitted by law) to be imposed by the Home Owners Association (HOA) to any member who violates these provisions. Tentative Tract Map Although The Met project is a proposed rental project, the applicant is requesting approval of a vesting tentative tract map for condominium purposes. Based on a review of the vesting tentative tract map by the Planning Division and Public Works Agency, the project has been designed to be in compliance with the applicable development standards found in Chapters 34 (Subdivision) and 41 (Zoning) of the Santa Ana Municipal Code and the SD -43 zoning document, if amended (Exhibit 8). 75A -16 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 11 The documents allowing the sale of units, including the subdivision map and covenants, conditions and restrictions (CC &Rs), will be recorded for the Met project as a condition of approval, which allows Vineyard the ability to sell units in the future. Site Plan Review Section 41- 593.5(c) of the Santa Ana Municipal Code requires a review by the Planning Commission of all plans within a specific development plan area to ensure the project is in conformity with the plan's development standards. As previously discussed, the proposed project lies within the MacArthur Place District Center Specific Development (SD 43) and the applicant has requested several amendments to the SD in order to accommodate the project. In addition to analyzing the project's conformance with the zoning standards, Site Plan Review also addresses project features such as architecture, landscaping, amenities, public realm features and building materials. Remnant Property The project site for The Met is a 3.1 acre parcel and, as proposed, the apartment project and its attendant improvements will only occupy 2.5 acres, leaving a remnant of 0.6 acres. The proposed site plan treats this remnant as an area that is not integrated into the project and that will include perimeter trees to screen the vacant lot. It will not exist as a separate legal parcel. Although there is no proposal at this time, the developer has stated that they wish to reserve this remnant for potential future development, and, as such, have not integrated it into a comprehensive site plan. If the proposed project is approved, the remnant will not be vested with any development rights, nor will it have any permitted use, such as additional open space for the project's tenants. If the developer, or subsequent property owner, wish to develop the remnant in the future, the property would need to go through a new entitlement process that could include a zone amendment, parcel map and environmental review. Planning Commission Review On January 23, 2012 the Planning Commission conducted a public hearing to consider the adoption of the various discretionary actions. During the hearing the public provided oral and written testimony regarding the actions required for the proposed Met project. Following the public hearing, the Planning Commission continued the item to the February 13, 2012 hearing in order to allow all of the Planning Commissioners an opportunity to be present. Public Notification The project site is not located within a neighborhood association, but is adjacent to the Sandpointe Neighborhood Association. Given Sandpointe's involvement in the entitlements for MacArthur Place and MacArthur Place South, City staff directed the applicant to meet with the Association Board to discuss and review the revised project. A meeting occurred in November 2011. A follow -up meeting was held on January 18, 2012 to provide an update and obtain feedback on the proposed project. 75A -17 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 12 Finally, the contacts for this Neighborhood Association were notified by mail 10 days prior to this public hearing. Further, through the California Environmental Quality Act process, the neighborhood contacts, as well as adjacent properties and public agencies were notified of the release of Mitigated Negative Declaration (MND) prepared for the project and invited to provide comments. The notice identified the environmental process, availability of documents and contact information. The project site itself was posted with two notices 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, as well as concerned citizens listed on the Permanent Notification List. The City received written comments on the MND, which are contained within the Final MND, and was also contacted by the MacArthur Place Business Association requesting that the applicant contact them to comply with the CC &R's requiring that the project be brought before the Association for architectural review. At the time of this printing, no additional correspondence, either written or electronic, had been received from any members of the public. CEQA Analysis As part of the City's permitting process, the proposed project is required to undergo an environmental review in accordance with the California Environmental Quality Act (CEQA). In accordance with the CEQA, the recommended actions have been reviewed through a Mitigated Negative Declaration (MND), Environmental Review No. 2010 -46. Section 15063 of the State CEQA Guidelines and Sections 15070 -15075 of Article 6 guide the process for the preparation of a mitigated negative declaration. This MND, as required by CEQA, contains 1) a project description; 2) a description of the environmental setting, potential environmental impacts, mitigation measures for any significant effects, and consistency with plans and policies; and 3) names of preparers. The mitigation measures included in this IS /MND are designed to reduce or eliminate the potentially significant environmental impacts described herein. The scope of the MND evaluates the proposed project's effects on the following resource topics: • aesthetics • agriculture and forestry resources • air quality • biological resources • cultural resources • geology /soils • greenhouse gas emissions 75A -18 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 13 • hazards & hazardous materials • hydrology /water quality • land use /planning • mineral resources • noise • population /housing • public services • recreation • transportation /traffic • utilities/ service systems The City prepared a draft MND and posted the Notice of Intent (NOI) to adopt an MND at the Orange County Clerk's office; the NOI was published in the Orange County Register on November 14, 2011. The City circulated the draft MND for a 32 -day public review between November 14, 2011, and December 16, 2011. The draft MND was available for public review at the Santa Ana City Hall, the City of Santa Ana Main Library, and on the City's website. This final IS /MND contains the original draft IS /MND as published, as well as comments received on the draft IS /MND and the responses of the lead agency to significant environmental points raised in the review and consultation process. The intent of the final IS /MND is to provide a forum to air and address comments pertaining to the analysis contained in the draft IS /MND and to provide an opportunity for clarification, corrections, or minor revisions to the draft IS /MND as needed. Comments were received during the public review period. Pursuant to Section 15088 of the State CEQA Guidelines, the City, as the lead agency for the project, has reviewed all comments received on the draft IS /MND (Exhibit 9). As a result of the environmental analysis, mitigation measures have been provided to address potential environmental impacts. A list of these mitigation measures are found within the MND document. Mitigation measures have been outlined to address potential impacts on air quality, biological resources, geology /soils /seismicity, greenhouse gas emissions, noise, public services, and transportation and circulation. Airport Land Use Commission Review In accordance with State law, the zoning ordinance amendment and the project's close proximity to the John Wayne Airport requires the project to be submitted to the Airport Land Use Commission (ALUC) for a determination of consistency with the Airport Environs Land Use Plan (AELUP) for John Wayne 75A -19 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 14 Airport. To comply with this mandate, the City will be referring the project to the ALUC. Submittal to ALUC cannot occur until the FAA has provided clearance and after the Planning Commission action, but prior to City Council action. An application has been submitted for FAA review and clearance and is pending, though such clearance is expected given the project's height as compared to the other buildings in the immediate vicinity. After the Planning Commission hearing of January 23, 2012, staff received from the FAA written documentation of no hazard to air navigation for the Met at South Coast. This determination allows staff to submit to the ALUC for a determination of consistency. On February 1, 2012 staff submitted a request for determination. The item is anticipated to be placed onto the ALUC's February 16, 2012 agenda. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission recommend that the City Council approve the amendment to Development Agreement No. 2004 -03, Zoning Ordinance Amendment No. 2012 -01, Vesting Tentative Tract Map No. 2012 -01 as conditioned and Site Plan Review No. 2012 -01 as conditioned. The staff analysis identified areas where the proposed project did not meet the standards set by other projects recently approved within the MacArthur Place area, as well as identifying portions of the plans that are lacking in information. Conditions of approval have been included in the attached resolutions to require more detailed plans. Should the Commission have additional concerns about the proposed project, it is recommended that additional conditions and /or additional Commission review be considered. SK:jm skheportsWhe W421312.pc 75A -20 ZOA No. 2012 -01, DA No. 2004 -03, VTTM No. 2012 -01, and SPR No. 2012 -01 February 13, 2012 Page 15 Attachments: Exhibit 1 — General Vicinity Map Exhibit 2 — Land Use Map Exhibit 3 — Site Plan Exhibit 4 — Floor Plan Exhibit 5 — Building Elevations Exhibit 6 — Landscape Plan Exhibit 7 — Amendment to the Development Agreement Exhibit 8 — Vesting Tentative Tract Map Exhibit 9 — Final Mitigated Negative Declaration and Mitigation Monitoring & Reporting Program Exhibit 10 — Open Space Plan 75A -21 Ml = V V Ml Ml L 8 Mi SD -63 i i SD -12 M1 C2 m MI i II cs i 1 jl— 1� = -'I =r ,I 11 - ••' DYER RD. it II II CS FI � •' II II Ml - M1 E MI -MI M2 Rl 11 II FI I P E� IJ l 'I�Jn wmn w. RT R1 Ml t P'a CR M1 = Ml , SRI R1 uw oa R1 P SD-43 R1 RT � RT � Rl SD -03 4 R1 C4 x R1 8 fir rw=cw,�r c sDai PROJECTSITE ni s :.... 34, C5 I \ ( SD -76 C4 5O.76- R y t Ri i Rl- O SD -76 `. 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Box 1988 Santa Ana, California 92702 EXEMPT FROM RECORDING FEES GOVERNMENT CODE § 6103 AMENDED DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY Dated: January 23, 2012 EXHIBIT 7 75A -65 USTAT791) AND NO AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY•OE SANTA ANA AND GENEVA VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY This REST -A BD AND NOVATBDAMENDED DEVELOPMENT AGREEMENT ( "Agreement ") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duty authorized under the Constitution and laws of the State of California (referred to herein as "City ") on the one hand, and COASTAL RIM PROPBRMES; INC., A GAL1F0RNL&- WR-PGRAT4QN -and VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (ee11ee!We4 referred to herein as- "Owner" or "Property Owner ") on the other' band. 1. RECITALS. The Amended Agreement is entered into with reference to the following facts; 1.1 Purpose. (1) The purpose of this Agreement is to facilitate the development of a small portion of the real property which was the subject of a Development Agreement entered into on January 4, 1988 and recorded as Document 88- 260709 in the Office of the Recorder of the County of Orange (herea"- the "Original Agreement "). The Original Agreement was subsequently amended on or about June 4, 2001, by Document No. 20010429519 the Office of the Recorder of the County of Orange. The real property which was the subject of the Original Agreement is zoned by the City as Specific zoning District No. 43 ( "SD -43 "), On April 4, 2005, the City entered into a Deyeloprnent Agreement (the "2005 A reement" ) with Coastal Rim Properties, Inc. and Geneva Commons, LLC (collectively referred to herein as "Coastal Rim "). (2) A portion of the real property covered by the Original Agreement was subsequently acquired by G mek Coastal Rim, who hm applied to the City to amend SD -43 and have approved a new tentative map, and other entitlements. (3) The City and Owner agree that the changes Owner seeks in the Original 2005 Agreement substantiate the need to replaee amend the Original Agreement with the instant Development Agreement, rendering the Original Agreement and the 2005 Agreement, and any ef4ts amendments thereto, null and void as applied to Owner's Property (as the word "Property" is defined in seetlorr Section 2.3 herein). (4) As more particularly set forth in seetisn Section 2.4 of this Agreement, Owner has proposed eenstr eting-aa -developing the northeast corner of MacArthur Boulevard and Imperial Promenade an . m° + °'y''7O • „'• .,,.n om prejeet eensiating lu of an 18 Fesidentiat lovel high *i e lrejeet -air ui- lding, together -with appFoximately 13,000 s feet oc anaillary retail, of which no , be-d ed' or L'take- et }t'- '- restaurarrte with a S -stay, multi - family apartmen t community consisting of 284 residential units, with 2 levels of subterranean parking, and a level of podium deck parking in 2 separate buildings (the "Project ", as further defined in Section 2.4 [rl�Q•1� herein). 1,2 Code Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869,5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Agreement pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This Agreement is intended to assure adequate public facilities at the time of development. (2) This Agreement is intended to assure development in accordance with City's General Plan, applicable Specific Plans and Specific Development District No, 43. (3) This Agreement will permit achievement of goals and objectives as reflected in Government Code Sections 65864 through 65869.5, the City's General Plan, all applicable Specific Plans and Specific Development District No, 43. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (5) This Agreement will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (6) Many of the extraordinary and significant benefits identified as consideration to City for entering into this Agreement are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process, 1,3 Owner. Owner represents and warrants that it has a legal or equitable interest in the real property located in City of Santa Ana, California, legally described on Exhibit A attached hereto and incorporated herein, and graphically described on Exhibit B attached hereto and incorporated herein. The Property is currently vacant. 1.4 Interest of Owner, Owner hereby represents that it has an equitable and . legal interest in the Property. Owner further hereby represents that it has approved this Agreement and is authorized to enter into this Agreement. 1.5 Planning Commission - Council Hearings, On November 22, 2004, the Planning Commission of the City (`Planning Commission' ), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the OwnerCoastal Rim's application for this the 2005 Agreement. The Planning Commission recommended to the City Council of City that it execute "the 2005 Agreement, On April 4, 2 75A -67 2005, the City Council of the City of Santa Ana ( "Council "), after providing notice as required by law, held a public hearing to consider the- OwnerCoastal Rim's application for the 2005 Agreement, which the Council approved by adopting Ordinance No NS -2680 on April 18, 2005. The Owner has submitted a new and modified site plan review package to the City amending the previously approved plan On January 23 2012, the Planning Commission of the City, after duly giving notice pursuant to Government Code sections 65090 and 65091 held a public hearing to consider the Owner's application for this Ag eement The Planning Commission recommended to the Council that it execute this Agreement. On [insert date]., the Council, after providing notice as required by law, duly held a public hearing to consider the Owner's application for this Aareement. 1.6 Council Findings. The Council finds that this Agrcement and its �utposes is are consistent with Government Code Sections 65864 through 65869.5, and with the objectives, policies general land uses, and prod am specified in the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. Among other things, this Agreement will reduce uncertainty in planning for and securing ensure attainment of the maximum effective utilization of resources within the CLtyat the least cost to its citizens, expand the availability of high— quality, affordable housing stock to the City's citizens contribute to the economic stability and revitalization of the community, enhance the City's property tax revenues, and otherwise achieve the goals and purposes for which Government Code Sections 65864 through 65869.5 were enacted. 1.7 City Ordinance. On Aia418,2005 (insert date] the Council adopted Ordinance No. NS- approving this Amended Agreement. The ordinance becomes effective thirty (30) days thereafter. 2. DEFINITIONS. In the Agreement, unless the context otherwise requires: 2.1 "Final Design" means the final design documents for work of public art, which is set forth in greater detail in paragraph Section 5.8 of this Agreement. 2.2 "Property Owner" or "Owner" means Coastal Rim � ^per ies; W., a Califemia Cerperatio"nd eneve Comm collectively VDC at the Met, LLC, a California Limited Liability Company and its successors or assigns who or which may acquire Owner's equitable and legal interest in the Property, being the person, persons, or entity having a legal or equitable interest in the Property-,and-includes riu^ °min interest. 2.3 "Property" is the real property described in Exhibit A and referred to in Exhibit B. 14 "Project" is the development of the Property as generally set forth in Section l .1(4) of this Agreement, Environmental Review No. 2002 215 , Tentative Tract Map No, 2004 -05 (County Map N6. 16556 - ), Conditional Use Permit ��_Q196� 2004 02 , Variance No. X894 —ki __, Zoning Ordinance Amendment No. 2904 -95 (amending SD -43), and Site Plan Review No, 2894 -06 25 "Public Art Plait" means the conceptual Plan attached hereto as Exhibit C. The parties recognize that the Plan does not set forth certain elements of the Public Art to be installed in conjunction with this Project, including the location of the Public All, and is therefore subject to refinement. prior to the time of installation, by agreement of the Owner and the City's Executive Director of Planning and Building. 3. EXHIBITS. The following documents referred to in the Agreement are attached to this Agreement and are identified as follows: Exhibit Referred to Designation Description in Section A Property Legal Description 1.23 B Property Graphical Description (Site Plan) 1.23 C Public Alt Plan 2.5 D Cooperative Agreement for Off -Site Improvements 5.1.1 E Remaining Offsite Mitigation Measures 5.1.2 4, GENERAL PROVISIONS. 4.1 Property Subject to the Agreement. Until released pursuant to the provisions of Section $.3 below, no property shall be released from this Agreement until Property Owner has fully performed its obligations arising out of the Agreement. 4.2 Duration of Agreement. The term of this Agreement shall be for ten (10) years from the date that the Council adopts its ordinance approving this Agreement ( "Effective Date" J; provided, however that the Owner may request one two -year extension from the Executive Director of the Planning and Building Agency, which request shall not be unreasonably denied. 4.3 Assignment. Owner shall have the right to transfer or assign the Property, and its interests in and rights and obligations tinder this Agreement, in whole or in paid, to any person, entity (public or private); partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that except as provided in section 4.11 of this Agreement, the rights of Owner tinder this Agreement may not be transferred or assigned unless the written consent of the Council is first obtained and any transfer or assignment of the rights under this Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this- Agreement if the City grants written consent to transfer the rights. 4 75A -69 Nwr shall --tThe rights of the Owner hereunder shall not be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. Such transferor assignment shall not relieve Owner of any duty, obligation or liability to City without the consent of the City. During the tern of this Agreement, any approved assignee or transferee of (lie rights under this Agreement shall observe and perform all of the duties and obligations of Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. Upon assignment or transfer of the rights of Owner: under this Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. 4.3.1 Permitted Assignments. The prohibition against transfer of ownership of the Property as defined in section 4.3 above shalt not apply to, and the City hereby consents to, the following: a. Associations, including limited partnerships, limited liability companies, or joint ventures with other entities for the purpose of performing Owner's obligations under this Agreement, provided Owner retains sole operational and managerial control. b. Easements or temporary permits to facilitate development of the Property. C. Deeds of trust or other financing documents executed for the purpose of securing loans to Owner made to finance the development of the Property, and transfers to any person or entity pursuant to a foreclosure or deed in lieu of foreclosure of such deed of trust or other, similar, financing documents and any subsequent transfer by any such person or entity. 4.4 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time or cancelled by the mutual consent of the parties, but only in the same manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term "Agreement" or "Development Agreement" as used herein shall include any amendment properly approved 'and executed. 4.5 Enforcement. Notwithstanding Government Code Section 65865.4, this Agreement is enforceable by any party to the Agreement in any manner provided by law. The retner#ies- previciefl -ir eetie.. 8.4 of this Agreement shall .,o"islud"nd City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this Agreement exeept as May-be (Sj-ef-th�rt. 75A -70 4.6 Hold Harmless, Property Owner agrees to and shall hold City, its officers, agents, employees, consultants, special counsel, and representatives ,( "City Parties", collectively) harmless from liability: (1) for damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise due to negligent acts, omissions or willful misconduct, from the direct or indirect operations of the Property Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the Project; and (2) from any claim that damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from, and to the extent of Prop"I Owner's negligent acts, omissions or willful misconduct in the performance of this Agreement This hold harmless Agent Agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this paragraph Section or due by reason of the terms of, or effects, arising from this Agreement or any approval or certification by the City relating to the Project, regardless of whether or not the City prepared, supplied or approved this Agreement, plans or specifications, or both, for the Project. The Property Owner further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement or any approval or certification by the City relating to the Project, or asserting that damages, just compensation, restitution, judicial or equitable relief is due to personal or property rights by reason of the terms of, or effects arising from Property Owner's negligent acts omissions or willful misconduct in the performance of this Agreement, City may make all reasonable decisions with respect to its representation in any legal procceding. 4.7 Binding Effect of Agreement. To the extent not otherwise provided in Section 4.3 of this Agreement, the burdens of the Agreement bind, and the benefits of the Agreement inure, to the parties' successors in interest transferees and assigns. 4.8 Relationship of the Parties. The contractual relationship between City and Owner arising out of the Agreement is one of independent contractor and not agency or partnership. This Agreement does not create any third party beneficiary rights. 4.9 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: if to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M -31 P.O. Box 1988 Santa Ana, California 92702 6 75A -71 and, telefacsimile (714) 647 -6954 City Attorney City of Santa Ana 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647 -6515 If to Owner, to: C-.AAqfAl ��sperEies,Ms; •139 -- East- Alten-Avenue Santana, GaWem i 7• Attentiew Ffmee Meta WeAesimile-. (714) 708 08B VDC at the Met. LLC 828 North, Ogden Drive Los Angeles, CA 90046 Attention: R, an O ulg nick Facsimile number: A party may change its address by giving notice in waiting to the other party. Thereafter, any notice, tender, demand, delivery, or other conununication shall be addressed and transmitted to the new address or facsimile number. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, Nveekeiids, federal, state, County, or city holidays shall be excluded. 5. DEVELOPMENT Or THE PROPERTY. 5.1 Existing Rules, Regulations and Policies. fn accordance with (lie terms of Government Code section 65866, the City and the Owner agype that Tthe rules, regulations and official policies governing the permitted use(s) of the Property, with respect to and only with respect to the permitted use(s) zoning design, setbacks, density, height, size of structures, permitted uses, and intensity of use of the Property (collectively, the "Existing Development Regulations" ), shall be those rules, regulations, and policies applicable to the Property as of the effective date of this Agreement. 7 75A -72 5.1.1 Cooperative Agreement for Off -Site Improvements. TlIeOwfiev Coastal Rim and the City, together with other parties, have coneurtent-ly executed a Cooperative Agreement for Off Site Improvements concurrently with the Original nal Agreement, a true and correct copy of which is attached hereto as Exhibit D and incorporated herein by this reference. Owner agrees to comply in all respects with its obligations under said Agreement, and agrees and acknowledges that a material breach of said agreement shall constitute a material breach of this Agreement. Despite anything to the contrary, Owner is not required to construct atry offsite improvements other than as expressly required in this Agreement, in any environmental documentation related to this Project, or in any condition of approval in any discretionary action related to this Project. 5.1.2 Remaining Offsite Mitigation Measures. The additional offsite mitigation treasures, beyond those set forth in the agreement referenced in section 5. 1.1 of this Agreement, which must be constructed by Owner are as set forth in Exhibit E to this Agreement. All fiends or costs for offsite mitigation measures required pursuant to the approvals set forth in section 2.4 of this Agreement shall be paid the earlier of (1) the time called for in the said approvals, or (2) no later than recordation of the final subdivision trap for the Project; or U3 issuance of certificates of occupancy, whichever comes first. 5.2 Exclusion from Existing Rules, Regulations and Policies. Pursuant to Government Code Section 65866, and Pardee Construction Co. v. City of Camarillo (1984) 37 CaDd 465, 208 Cal.Rptr. 228, 690 P.2d 701, City retains the right to enact police power regulations on matters not covered by section 5.1 of this Agreement, including without limitation: a. Regulation of (lie rate and amount of growth is not abrogated by the City, in that the parties agree and acknowledge that the City hereby retains the police power to provide for change in regulations, ordinances, policies, and plans relating to moratoria, building permit allocations,. timing, and sequencing of development and the financing and provision of adequate public facilities at the time of development. b. Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with section 5.1 of this Agreement. As used herein, "Existing Development Regulations" shall not include municipal laws and regulations that do not conflict with Owner's vested rights to develop and use the Property in accordance with this Agreemctrt. Owner and its successors and assigns and all persons ford entities in occupation of any portion of the Property shall comply with such non - conflicting laws and regulations as niay from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non - conflicting laws and regulations include the following: (1) Taxes, assessments, fees and charges, except as otherwise specifically provided in this Development Agreement; (2) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; 75A -73 (3) Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city-wide basis; and - (4) Procedural Ades of general City-wide application. C. In recognition of the need for City services, including but not limited to police, fire and park, to meet the demand generated by new, cumulative residential development in the City, District, Owner will not object to participation in a conununity facilities district, assessment district, or other similar Rinding mechanism, to provide Rinds for such services, should any such a mechanism be established. d. No vested rights as to any requirements in this section either as to existing or Riture regulations, ordinances, policies, and plans are hereby conferred. 5.3 Design and Construction Standards and Specifications. The design and construction standards and specifications for all Project construction, including without limitation the facilities set forth in the Public Art Plan, shall be subject to applicable design standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 FAA Approval. Owner shall obtain and maintain, during the term of the agreement, any and all necessary approvals from the FAA for the Project. Should such approvals lapse, and not be reinstated or reapproved prior to the issuance of the first building permit, the City shall have the right to terminate the agreement, 5.4.1. Avigation Easement. The Owner shall, prior to issuance of the first building permit for the Project, execute an avigation easement in a form approved by the City Attorney, which shall be recorded with the Recorder of the County of Orange. The avigation easement shall prohibit any and all claims, actions or lawsuits of any kind or type for nuisance or interference with use and enjoyment of the underlying Property or the Project including but not limited to noise, sound, vibration, fumes, Riel particles, dust, discomfort or other environmental effects incident to aircraft operations as well as any inconvenience or annoyances caused by the operations of the John Wayne Airport (SNA). The avigation easement shall grant the right to enter or penetrate into or transmit through the airspace above, on or in the vicinity of the Property for the unobstructed use, passage or operation of all types of aircraft and the right to create or generate all things and consequences to the Property that may be, or may be alleged to be, incident to or resulting from the use of said Airspace and any and all related aircraft and airport operation. The City shall be the benefited party in the avigation easement, but said easement shall'be assignable by the City to a third party, including but not limited to John Wayne Airport (SNA), without consent of Owner. 5.42. Limit an Fast bead - acrd- T-alEeut Restaurants. M no time shall +�,n Owner- pernitinere -than 3,-09A- square feet of !he .1--e—ail spaeo in We Projeet to be deyeted to « f e » n " k� -6�#t t r ms. For - ,purposes of Na A gryenwnt restaurant shall not be 2ti ' n 9 75A -74 deemed to be a "fast feed" or "fako out" restfairant if it provide sit -1—m%-AI-Ing areas and. emAusive -table ee -fey ar deking- on"eliyering- meal"n"evemges,— nd4ok" tit seFY angel} services; 5.5 Future Discretionary Approvals, This Agreement shall not prevent the City, when considering requests for discretionary approvals not covered by Section 5.1 of this Agreement subsequent to the effective date of this Agreement, from applying new rules, regulations, and policies which are applicable to the Property, including but not limited to, changes in the general plans, specific plans, zoning, subdivision or building regulations, nor shall this Agreement prevent the City from denying or conditionally approving any subsequent applications for land use entitlements based on such existing or new rules, regulations, and /or policies; provided, however, that such new rules, regulations, and official policies are of general application to all development within the City and are not imposed solely with respect to the subject property. In addition, this Agreement shall not prevent the City from exercising its police power to protect the health, safety, and welfare of the public. This police power, exercised in accordance with Section 5.2 of this Agreement, is paramount to any rights or obligations created or existing between the parties. 5.6 Processing fees, All fees and charges intended to cover City costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and/or environmental review, which are existing or may be revised or adopted during the term of this Agreement, shall apply to the development of the Property. 5.7 Amendments or Additions to Citywide Fee Programs. This Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees ") adopted by the City after the effective date of this Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, of and (3) are not imposed to either (a) mitigate, offset or compensate for Project impacts which were analyzed in the negative declaration prepared for the Project, or (b) duplicate any project design features conditions of approval, Agreements, or mitigation measures contained in the Development Plan or this Agreement. The current entitlement fees shall be locked in as of the date of this Agreement, and there shall be no additional entitlement fees for the Project. However, building permit fees, including fees for now permits required after the date of this Agreement, will not be locked in at any rate, but rather will be the amount at the time of pulling building permits. Any deferral of development impact fees will only be allowed in accordance with Santa Ana Ordinance No. NS -2814 adopted by the Santa Ana City Council on February 22, 2011, 5.8 Development, Construction and Completion of Work of Public Art. In consideration for the extraordinary and significant benefits set forth in this Section, the Owner has been legally vested under pafagraplt Section 5,1 with regard to the zoning, permitted uses of land, density, height, setback, design, size of structure and intensity of use of the Property.; Owner shall include within the Project at a prime location visible to the public, a single or 10 75A -75 grouped permanent work of public art (the "Public Art "). The Public Art shall conform in all respects to Exhibit C of this Agreement. Facilities specified in seetien Section 5.8.1 below must be designed and/or constructed prior to (lie triggering event. In the event that Owner fails to meet either of the triggering events set forth in seetietr Sectio n 5.8.1., below, Owner shall pay. the City an amount equivalent to one -half of one percent (0.5 %) of the estimated value of its Project, as conclusively specified by the Executive Director of the City's Planning and Building Agency, to be used by the City to acquire other public art for other locations within the City, in which case, Owner will not be considered in default under this Agreement. 5.8,1 Work of Public Art. Items to Be Complete Triggering Event LE& New Use or New Area 1. Submit Final Design of Public Art. Prior to issuance of first Building Permit or five Final design must conform to Public Art (5) years from the effective date of this Agreement, Plan. whichever comes first. 2. Install Public Art. Prior to City's issuance of the first Certificate of Occupancy for any building or structure, or the expiration of the term of this Agreement, whichever comes first. With respect to the Final Design, Owner shall complete all construction and development, shall submit all plans, drawings, and other documents, and perform all of its obligations under this Agreement within the times specified above. During periods of construction of the work of public art encompassed in the Public All Plan, Owner shall submit to the City a writton report of the progress of the construction when and as reasonably requested by the City. The report shall be in such form and detail as may be reasonably required by the City, and shall include a reasonable number of construction photographs (if requested) taken from the last report by Owner. Development scheduling or date or times of performance may be subject to revision from time to time if first mutually agreed to in writing. Such revisions do not constitute amendments requiring fiirther notice and public hearing. 5.8.2. Inclusionary lousing Fee. Owner shall pay to the City the sum of $3,000.00 per residential unit as a condition of issuance of each building permit. This fee shall anoly to all units develoaed on the existing three and one -tenth (3.1) _aross acres. This fee shall be used by the City for planning (including but not limited to preparation of one or more elements of its general plan or for zoning amendments), conceptual design, final design, bid preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill, and/or construction of new or substantially rehabilitated existing affordable housing in the City. Alternatively, Owner may at any time cease making such payments if it enters into an agreement with the Community Redevelopment Agency or the Comnunity Development Agency of the City of Santa Ana to either (i) newly construct or rehabilitate and sell or lease, with affordability covenants as required by State law, 43 inclusionary housing units totaling fifteen percent (that 11 75A -76 be-n-15%) of the housing units proposed for the Project as provided by Health & Safety Code section 33413(b)(2)(A)), and/or (b) provide for up to sixty percent (60 %) of these inclusronary units to moderate income residents at its Project, consistent with Health & Safety Code section 33413(b)(2). 5.8.3 No Redevelopment Subsidy. The Owner shall not be entitled to request or accept any agreement with the Santa Ana Community Redevelopment Agency for economic, debt service payments, or other assistance for the development of the Project. Failure to comply with this provision shall be deemed in and of itself to constitute a failure to in good faith comply with terms or conditions of this Agreement pursuant to the terms of Government Code section 65865.1. 5.8.4. In -Lieu ParIc Development Fee. The Owner shall pay an in -lieu park development fee amount equivalent to the Park Dedication requirement te£e}eneed -in the -site plan - review- letter -for Iite Nan Rovie . Ne. _0 96. The fee shall be assessed at the value of $35.50 per square foot of area to be dedicated pursuant to the standard established by section 34 -204 et seq, of the Santa Ana Municipal Code, as specified in said City's site plan review letter; provided, however that the fee may be increased yearly beginning twelve months following the effective date of this agreement, by the average rate of increase in land costs in tine City of Santa Ana, as that increase is established by the "Construction Cost Index -Los Angeles," published by Engineering News - Record, or substitute index chosen by the Executive Director of Planning and Building should that Index be discontinued. The fee shall be paid prior to issuance of each building permit. The City shall use said fees for new parkland, capital improvements at existing parks, and deferred maintenance at existing parks (tip to a maximum of fifty percent of amount of the fee), and seventy five percent (75 %) of said fees shall be utilized by the City in the Quadrant of the City (as set forth in the City's Park A &D Fee program) in which the Project is located. If not used or appropriated this fee shall be returned to Develops Owner, consistent with the provisions of (and subject to the exceptions contained within) the California Mitigation Fee Act, Government Code § 66000 et sett. 5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions, and Restrictions (CC &R's) must be provided and approved by the Planning and Building Agency's Executive Director for the project prior to the issuance of the first- building perini recording of the Final Man. Such CC &R's must contain at a minimum, the following: (1) No more than four residents per unit, except that for three - bedroom units, there shall be no more than five residents per unit. (2) '_-""`xl7 -the exte—alt permitted by 1.. all nid -e-Du ffil and live we+k ::`::4v shall remain ee"iGd and shall not allow rental of a entire uCti C� (32) No home occupancy shall be permitted in a unit, except in accordance with section 41 -192 et sett, of the Santa Ana Municipal Code. (,13) Assignment of repair of perimeter walls and common areas, including landscaping, will be specified in the CC &R's in the event of 12 75A -77 damage. (54) Disclosure and release: CC &R's shall provide notice to prospective owners of the urban character of the City and this area, including but not limited to the permitted uses of the property and buildings in the immediate area of the development (e.g., MacArthur Place, Griffin Towers, and surrounding property zoned and /or devoted to commercial use), and shall provide a release of all claims against the City which may arise from or relate to the disclosed matters. (05) Terms and Content, - i. CC &R's are to be in effect in perpetuity. ii, Any proposed modifications to the CC &R's will require approval by the Agency's Executive Director. iii, CC &R's shall provide a significant financial penalty (i.e., th® �er�t�ittefl- lay -kaw) that shall be imposed by the Home Owner's Association to any member who violates these provisions If the Project requires a conversion from rental units to condominiums at the time of recording; the Final Man the Owner must abide by and comply with the requirements and_ conditions of Santa Ana Municipal Code sections 3d -331, et seq., pertaining to residential conversion projects, prior to recording of the Final Map, 5.9 Responsibility li�for Costs of Work Oof Public Art. The City and Owner agree that Owner shall be responsible for all costs associated with the design, construction, maintenance and repair of the work of public at provided for in the Public Art Plan. 5.10 Moratoria. Moratoria enacted by the City for the public health, safety, and welfare, which are imposed on the Property or Project, shall toll the time periods set forth in this Agreement. 5.11 City to Receive Contract Documents. Owner shall furnish City, upon written request, copies of contracts and supporting documents relating to the work of public art. 5,4 -312 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of those approvals, and in no event shall such conditions be affected by the termination, cancellation, rescission, revocation, or default or expiration of this Agreement. 5.4413 Compliance Wtivith Governmental Requirements. Subieet to and as otherwise provided by the terms of Section 5.1 above, Owner shall carry out the design, 13 75A -78 construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Properly and the Project, and all other provisions of the City and its Municipal. Code (as they apply to -the Property and the Project), and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. {"Governmental Requirements "). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section 65865. 1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter ') stating that based upon information known or made known to the City Council, the City Planning Commission and /or the City Planning Director, the Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 6.3 Failure of Periodic Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. 7. DEFAULT. 7.1 Events of Default. Property Owner is in default under this Agreement upon the happening of one or more of the following events or conditions: (1) If a warranty, representation, or statement made or furnished by Property Owner to the City in conjunction with the Project is false or proves to have been false in any material respect when it was made, (2) ' A finding and determination made by the City following a periodic review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Property Owner has not complied in good faith with one or more of the terms or conditions of this Agreement-, 14 75A -79 (3) Failure to comply with Governmental Requirements regulations; (4) Any other event, condition, act, or omission of Owner, or of its officers, agents, employees, consultants, special counsel, or representatives, which materially interferes with the intent and objectives of this Agreement. 7.2 • Procedure upon Default. (1) Upon the occurrence of an alleged default, City shall give Property Owner (the "defaulting party ") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the manner in which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day cure period without cure, City may terminate or amend this Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be cured within said thirty (30) day cure period, City may terminate or amend this Agreement in accordance with the procedure adopted by the City should at any time Owner fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. (2) City does not waive any claim of defect in performance by Property Owner, if on periodic review the City does not propose to modify or terminate this Agreement, (3) Non - performance shall not be excused because of a failure of a third person. (4) An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Property Owner, shall be sufficient to terminate this Agreement and a hearing on the matter shall not be requited. (5) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Property Owner, unless such an activity constitutes a breaclt of this Agreement by the City, or the City undertakes such an activity which renders impossible Owner's performance of its obligations or exercise of any of its rights vested under this Agreement. (6) All other remedies at law or in equity which are not inconsistent with the provisions of this Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination, In no event shall Property Owner be entitled to any damages against City upon lawful termination of this Agreement. 7.4 Institution of Legal Action. In addition to any other rights or remedies, i5 75A -80 either party may institute legal action to cure, correct, or remedy any default or breach, to speciIcally enforce any covenants or Agreements set forth in the Agreement, or to enjoin any threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the purpose of the Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 8. ENCUMBRANCES AND RE, LE, ASES ON PROPERTY. 8.1 Discretion to Eneumber. This Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, fiom encumbering the Property or any portion of the Property or any improvement on the Property by any mortgage, deed of trust, or other' security device scouring financing with respect to the Property or its improvement. 8.2 Errtitlenterrt to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Property or any part thereof and their successors and assigns shall, upon written request to City, be entitled to receive from City written notification of any default by Owner of the performance of Owner's obligations under the Agreement which has not been cured within thirty (30) days following the date of default. Qty mgy modify or add to the provisions of this Section 8.2 at the request of any institutional lender or pension trust ppoviding financing so o long as such requested modifications or additions pertain only, to the rights of a Mortgagee hereunder and are not otherwise inconsistent with the terms of this Agreement. 8.3 Releases. City agrees that upon written request of Property Owner and payment of all fees and performance of the requirements and conditions required of Owner by this Agreement with respect to the Property, or any portion thereof, City may execute and deliver to Owner appropriate release(s) of further obligations imposed by this Agreement in form and substance acceptable to the Orange County recorder or as may otherwise be necessary to effect the release, 9. MISCELLANEOUS PROVISIONS, 9,1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Arnendnients. This Agreement constitutes the entire understanding and Agreement of the parties with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements between the parties respecting this Agreement. All waivers of the provision of this Agreement trust be in writing and signed by the appropriate authorities of City or of Owner.. All amendments to this Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Within ten (10) days following the effective date of this Agreement, a copy of this Agreement shall be recorded in the Official Records of Orange County, California. Upon the completion of 16 75A -81 performance of this Agreement or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, California, 9.3 Project as.a Private Undertaking. It is specifically understood by the parties that; (a) the Project is a private development for purposes of Government Code Section 65864 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the Rill power and exclusive control of the Property subject to the obligations of Owner set forth in this Agreement, 9.4 Incorporation of Recitals, The Recitals set forth in Section 1 of this Agreement are part of this Agreement. 9.5 Captions. The captions of this Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement, 9.6 Consent. Where the consent or approval of a party is required in or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each other in good faith, and assist each other in the performance of the provisions of this Agreement, 9.8 Thne of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this Agreement 69 have been entered into or the action or inaction of any other affected governmental jurisdiction prevents or precludes compliance with one or more provisions of this Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Agreement, The parties shall, within thirty (30) days, meet and confer ill good faith ill a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an Agreement on the effect of such federal or state law or regulation upon the Agreement, the matter shall be scheduled for hearing before the Ci Council. Public notice of such hearing shall be given pursuant to Goverment Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.10 Severability. If any term, provision, condition, or covenant of this Agreement, or the application thereof to any party or circumstances, shall to any extent be held 17 75A -82 invalid or unenforceable the remainder of the instrument, or the application of such term, provision cow ndition or covenants or the application of such 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 thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent uermitted by law. 911 Counterparts. This Agreement has been executed in one or more counterparts each of which has been deeined an original, but all of which constitute one and the Same instilment. 9.412 Recording. The City Clerk shall cause a copy of this Agreement to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the effective date of this Agreement. 9.13 Estoppel Certificate, Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified either orally or in writing, or, if so amended, identifying the amendments, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. The City Manager of the City shall have the right to execute any certificate requested by Owner hereunder. The City acknowledges that a certificate hereunder may be relied upon by transfers, Mortgagees, or other parties. 18 75A -83 IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa Ana and by Propetly Owner. Dated this ____ day of '20— Approved as to Form: : JOSEPH A. Sl'RAKA Interim City Attorney THE CITY OF SANTA ANA Lo PAUL M. WALTERS Interim City Manager VDC AT THE MET, LLC, A California Limited Liability Company By Ryan Ogulnick Its Manager 19 75A -84 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE On this day of , 200. , before me, a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein natned, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and official seal. NOTARY PUBLIC STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of , 200_, before me, a Notary Public in and for said state, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the of ., the that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its Board. WITNESS my hand and official. seal. NOTARY PUBLIC 75A -85 EXHIBIT «A" Property Legal DescriMion REAL PROPERTY IN THE CI'T'Y OF SANTA ANA COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL A: LOT I AS SHOWN ON EXHIBIT `B" OF LOT LINE ADJUSTMENT NO -98 -001 IN THE CITY OF SANTA ANA, COUNTY OF ORANGE STATE OF CALIFORNIA, RECORDED APRIL 9 1998 AS INSTRUMENT NO. 19980210009 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL B: A NON - EXCLUSIVE RECIPROCAL EASEMENT FOR VEHICULAR INGRESS, EGRESS AND ACCESS AS SET FORTH IN THAT CERTAIN DECLARATION AND GRANT OF EASEMENTS RECORDED APRIL 9 1998 AS INSTRUMENT NO. 19980210011 AND IN THAT CERTAIN AMENDED AND RESTATED DECLARATION AND GRANT OF EASEMENTS RECORDED APRIL 15, 1998 AS INSTRUMENT NO. 19980222444, AND IN THAT CERTAIN AMENDED AND FULLY RESTATED RECIPROCAL EASEMENT AGREEMENT RECORDED NOVEMBER 11, 2004 AS INSTRUMENT NO. 2004001056213, ALL OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN PARCEL A HEREINABOVE DESCRIBED, PARCEL C: AN EASEMENT FOR THE CONSRUCTION, INSTALLATION, MAINTENANCE _ AND REPAIR OF A STORM DRAIN AND RELATED IPROVEMENTS AS SET FORTH IN THAI' CEK1'AIN _STORM DRAIN EASEMENT AND MAINTENANCE AGREEMENT RECORDED APRIL 18 2005 AS INSTRUMENT NO, 2005000291720 OF' OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. [rl,Qq,l, EXHIBIT "B" PropeLty Site Plan To be inserted 75A -87 EXHIBIT IBC" Public Ail Plan Public art valued at one -half of one percent (0.5 %) of the total Project building permit valuation is required. Public art shall be comprised of a single art piece or grouped art pieces to be placed at a final location to be determined as specified in paragraph section 2.5 of this Agreement. The public art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, and/or capture or reinforce the unique character of the new place. A comprehensive Public Art Plan indicating compliance with this requirement, and which proposes specific pieces of art for specific locations or applications, shall be submitted to the Planning Commission prior to the completion of the project's first phase. All public akt approved by the Planning Commission in the Public Ail Plan shall be completely installed as provided in paragmph section 5.8.1 of this Agreement, 2. Art should be sited to complement features such as plaza or architectural components so that the art is an integral part of the development site. Public art should be constructed using durable materials and finishes including but not limited to stone or metal. 4. No art piece provided pursuant to the public art requirement shall include advertising of any type, including but not limited to products, services or businesses. S. All public art provided pursuant to the public art requirement shall be properly maintained at all times, be free of any graffiti and shall not incorporate any flashing or distracting form of illumination. 6. All art pieces approved and installed pursuant to the Public Art Plan shall remain on the project site and may not be removed without the approval of the Planning Comrnission.- 7. Expenses Not Allowed from Art Allocation i. Expenses to locate the artist (e,g., airfare for artist interviews, etc.) ii. Architect and Landscape Architect fees. iii. Landscaping around a sculpture that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by tine artist, and ornamental enhancements. iv. Utility fees associated with activating electronic or water generated artwork. FWMOOIOO� v, Lighting elements not integral to the illumination of the ail piece. vi, Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. vii. Dedication ceremonies, including sculpture unveilings or grand openings. [r" -O20, EXHIBIT "D" Cooperative Agreement for Off-Site Improvements *TC COOPERATIVE AGREEMENT FOR OFF -SITE IMPROVEMENTS THIS Agreement Is entered into this - day of -, 2005, by and between the SANDPOINTR NEIGHBORHOOD ASSOCIATION, INC., a California, non -profit public benefit and federal 501(c)(3) corporation ( "Sandpointe "), the NEXUS DEVELOPMENT CORPORATION /CENTRAL DIVISION, INC. a California corporation and The Grand Plan 2, LLC, a California Limited Liability Company (collectively referred to heroin as "Nexus"), COASTAL RIM PROPERTIES, INC., a California corporation ( "Genova Commons'), the COMMUNr Y REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate and politic (the "Agency "), 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 (the "City"). WITNBSSETH A. Nexus has proposed constructing at Hutton Center a five level residential condominium project, two 23- residential level condominium high -rise and one 24- residential level condominium (for a total not to exceed 835 condominium units), together with ancillary retail not to exceed 14,000 square feet (the "Nexus Project'). B. Geneva Commons has proposed constructing at the northeast comer of MacArthur Boulevard and Imperial Promenade an approximately 278 -tint condominium project consisting of an 18- residential level high rise project and an night -story building, together with ancillary retail (the "Geneva Commons Project'), C. Sandpointe is a non - profit corporation that serves as a conduit between the Sandpointo Neighborhood ("Neighborhood") and outside community and political interests. Sandpointe Neighborhood is a residential neighborhood of single family and some multi - family homes in the southeast portion of Santa Ana. The Sandpointe Neighborhood consists of approximately 800 residences. Sandpoint* does not have the authority to bind any individual resident of the Sandpointe Neighborhood, D. The Agency is a community redevelopment agency, as that term is defnaed in California Health & Safety Code § 33100. In 1982, the Agency created the South Main Redevelopment Project Area ( "Project Area"), and Nexus and Geneva Commons are located within the Project Area. I's. Sandpointe has identified certain physical improvements needed in the area of the Neighborhood that are necessitated by or would in some way offset the impact of the two development projects. Nexus and Geneva Commons desire to contribute towards the cost and/or construction of those improvements to the Sandpointe neighborhood in addition to and to EXHIBIT D Ordinance No. NS -2660 Page 30 of 61 75A -91 supplement the rn�itigation measures and conditions of approval imposed by the City of their respective developments. Those improvements are set forth in Exhibit A, attached hereto and made a part hereof by this reference ("Improvements"). F. The Agency is willing to assist in the finding of the improvements but only from a portion of the lax increment actually generated by the Nexus and Geneva Commons Projects and to bind speoirled improvements that would reduce blight and benefit the Project Area. 0, The City's participation in this Agreement is limited to coordination of funding and/or construction of certain, herein specified publicly owned improvements. H. Nexus has agreed to construot some of the Improvements, and pay for the construction of others, as more fully set forth below ("Nexus Improvements'). Geneva Commons has agreed to pay for a portion of the Nexus Improvements. NOW, THEREFORE, the parties hereto do mutually agree as follows; SCOPE OF WORK A. Nexus shall construct and/or fluid the improvements identified as "Nexus Improvements" in Exhibit A hereto according to the schedule set forth in Bxhibit B to this Agroomont, attached hereto and incorporated herein by this reference. Nexus shall be entitled to till use of the funds deposited in the Nexus Escrow to undertake the Nexus Improvements. B. In consideration for Nexus' agreement to construct and/or fund the Nexus frnprovomont, Geneva Commons agrees to contribute a sum equal to its pro -rata share of residential units between itself and Nexus (which is currently twenty -five percent (25 0/,D) pursuant to those numbers set forth in sections A and B of the Recitals above) of the cost of the Nexus Improvcments, towards the cost thereof payable at the time called for below. Notwithstanding the foregoing, if Nexus has -not executed this Agreement prior to the date this Agreement becomes binding on Geneva Commons (which the parties agree shall conclusively deemed to be the first day upon which this Agreement has been executed by Geneva Commons, the City,-the Agency and Sandpointo), then Geneva Commons pro -rata share contribution to the Nexus Escrow shall be conclusively fixed at twenty-five (25 %) regardless of the actual number of residential units approved for it and Nexus. C, If the entire Nexus and Geneva Commons Projects are corfstructed, Agency shalt cause the construction of the improvements identified as "Publicly -Owned Improvements" in Exhibit A hereto according to the schedulo sot forth in Exhibit C to this Agreement, attached hereto and incorporated herein.by this reference. The parties acknowledge and agree that the total cost of the publicly owned improvements, including studies, design and overhead , shall not exceed Five Million Dollars ($5,000,000.00). EXHIBIT D 2 Ordinance No. NS -2880 Page 31 of 51 75A -92 2. COMP13NSATION AND MIITHOD OF PAYMENT A, Nexus shall, within sixty (60) days of execution of tins Agreement, open an escrow account at First American Title Insurance Company, 2 First American Way, Santa Ana, California, or an equivalent escrow company approved in advance by Geneva Commons and Sandpointe, for deposit of !finds to be used to pay for the Nexus Improvements (referred to heroin as the "Nexus Escrow'). B. Sandpointe shall deposit $1,000.00 into the Nexus Escrow on the Escrow Submission Date no later than the date the of the first payment made pursuant to paragraph 2.D. of this Agreement. C. Prior to the deadline specified in paragraph 2,D, of this Agreement, Nexus and Geneva Commons shall meet and confer in good faith to agree upon the estimated cost of the Nexus Improvements, If, at any time, either Geneva Commons or Nexus determines that such agreement is not possible, then the objecting party shall submit its dispute in writing, together with any evidence upon whichit relies to the Executive Director of the City's Public Works Agency and tho otter party . Within fifteen (15) days of its receipt of said notice, the non - objecting party shall then have fifteen (15) days to submit any response it has to the City and the objecting party. The Executive Director of the City's Public Works Agency or designee shall then, within thirty (30) days of receipt of the response, if any, or the expiration of said deadline, inform both Geneva Commons and Nexus in writing of the final determination of the estimated total cost, which all parties agree shall be conclusive and binding upon both Nexus and Geneva Commons. Thereafter, Nexus and Geneva Commons shall deposit their respective shares of the estimated cost of the Nexus Improvements as set forth in paragraph I.B. of this Agreement, less $1,000,00, into the Nexus Rwrow no later than the date specified in paragraph 2.1). of this Agreement. D. Nexus shall pay into the Nexus Escrow no later than (i) the date the first building permit is issued by the City for the Nexus Project, or (ii) a date ninety (90) days after the issuance of entitlements to Nexus, provided no litigation or referendum petition challenging Nexus has been filed and served on the City, whichever comes later. Geneva Commons shall pay into the Nexus Escrow no later than (i) the date the first building permit is issued by the City for the Geneva Commons Project, or (ii) a date ninety (90) days after the issuance of entitlements to Geneva Commons, provided no litigation or referendum petition challenging Geneva Commons has been filed and served on the City, whichever comes later. BXBIBIT D Ordinance No. NS -2680 Page 32 of 51 75A -93 E. The Agency shall pay the City its cost incurred by the City for the Publicly -Owned Improvements set forth in Bxhlbit A to this Agreement; provided, however that total commitment by the City and Agency toward the Publicly-Owned Improvements shall not exceed FIVE MILLION DOLLARS ($5,000,000.00). If the items set forth as Publicly -Owned Improvements In Exhibit A are found to cost more than this sum, then the Agency shall, in the exercise of its sole and absolute discretion, limit or eliminate Publicly -Owned Improvements set forth in Exhibit A; provided, however, that the Agency shall proceed with the Publicly -Owned Improvements in the order as set forth in said Exhibit. 3. NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENTS A. Nexus shall prepare and submit construction drawings and related documents for items listed on Exhibit A to the City for review (including, but not limited to, architectural review) and written approval as and at the times established in the Schedule of Performance set forth in Exhibit B to this Agreement. The construction drawings and related documents shall be submitted in two stages: (i) the Preliminary Site Plans and (ii) Final Site Plans, B. During the preparation of all drawings and plans, City staff and Nexus shall hold regular progress meetings to coordinate the preparation of, submission to, and review of construction plans and related documents by the City. The City staff and Nexus shall communicate and consult informally as ftNuently as is necessary to insure that the formal submittal of any documents to the City can receive prompt and speedy consideration. C. Any revision or correction of plans required by the City shall be deemed approved by the Agency, Genova Commons and Sandpointe. D. Neither the City, the Agency, Sandpointe or Geneva Commons shall have any ownership interest in, or any right to use, the Preliminary Site Plans or the.Finai Site Plans submitted by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the right to use any such plans or drawings to any person or entity. 4. APPROVAL OF NEXUS PLANS, DRAWINGS AND RELATED DOCUMENTS A. The City shall have the right of reasonable review (including, but not limited to, architectural review) of all plans, drawings and related documents including any proposed changes therein, The City shall approve or disapprove such plans, drawings, and related (and any proposed changes therein) within the times established in tine Schedule of Performance set forth in Exhibit B hereto. Such approval shall not be unreasonably withheld. B. Any disapproval shall state in writing the reasons for disapproval. The City shall have the right to disapprove, in its reasonable discretion, any of Ilse Final Plans if the Final Plans do not conform to the Approved Plans, the approved Preliminary plans or do not conform to Exhibit A to this Agreement, or are incomplete. EXHIBIT D 4 Ordinance No. NS -2680 Page 33 of 61 75A -94 C. The City shall state in writing the reasons for disapproval of the Final Plans within sixty (60) days of receipt of copies of such Final Plans. Failure to respond within this sixty (60) day period shall not be grounds for resubmittai. D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the plans, drawings or related documents in a manner that reasonably satisfies the reasons for disapproval and shall resubmit such revised portions to tho City as soon as possible after receipt of the notice of disapproval, Plans, drawings, and related documents receiving City approval shall not be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related documents comply with all Governmental Requirements. S. COMMENCEMENT AND COMPL,IMON OF CONSTRUCTION OF NEXUS 1MPROVEMENTS a. Nexus shall construct and/or fltnd, utilizing the Nexus Escrow, the improvements in conformance with Exhibit A to this Agreement and the approved Final Plans. To the extent that the cost of the Nexus Improvements, constructed in conformance with Exhibit A to this Agreement and the approved Final Plans, exceeds the Rinds in the Nexus Escrow, Nexus and Geneva Commons shall be solely resj�onsiblo for said costs, with each responsible for any additional cost to the same percentage as Is set forth in paragraph I.B. of this Agreement, Nexus shall complete or fund, as the case may be; the construction of the improvements in conformance with the schedule set forth in Exhibit B to this Agreement, b. The parties acknowledge and agree that the Block Wall identified as Item No. 1 on Exhibit A will be constructed on the properties of dozens of individual homeowners in the Sandpoint* neighborhood, none of whom am parties to this Agreement. The parties agree to use their best efforts to obtain permission of each of these individual property owners to construct this Block Wall and to permit the City to permanently maintain the climbing ivy along the exterior of the wall, However, it Is the parties understanding and intent that should any property owner refuse to agree to permit the construction and/or exterior ivy maintenance ("hold outs'), that the Block Wall will be consbueted regardless of any holdouts, and that Nexus shall construct the Block Wall in such fashion as to join the Block Wail to existing wall segments owned by hold outs mid minimize any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe and its officers, directors, employees and agents harmless from any claim by any and all property owners including such hold outs arising out of the construction of the Block Wall in which Sandpoint*, or its officers, directors, employees or agents are named. Nexus shall be permitted to select counsel to defend Sandpoint* at the expense of Nexus. In the event of potential conflict of interest between Sandpointe and Nexus, Sandpointe shall have the right to select independent counsel. All fees acid costs of independent counsel selected by Sandpointe for defense of any claim arising out of or relating to any claims described herein shall be paid by Nexus on behalf of Sandpointe. EXHIBIT D Ordinance No. NS -2880 S Page 34 of 51 75A -95 G. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS Upon the issuance of certificate of occupancy pursuant to time California Building Code far (1) all residential units in a minimum of two of the three high -rise towers in the Nexus Project, and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a notice to protect. to design and construct the Publicly -Owned Improvements as set forth in Exhibit A. If only a portion of the residential, units have been constructed within five (5) years ofthe date of the Commencement Date, then the Agency shall only give the City a notice to proceed with a partial list of items as set forth in Exhibit C to this Agreement. The Agency's obligation to pay for the Publicly -Owned Improvements, and the City's obligation to complete those Publicly -Owned Improvements, or any part thereof, shall be limited by the Agency's ability to fbmd said work from the projeot-specific tax increment gencrated'by the Nexus Project; provided, however, that City and Agency shall construct item no. La. on the list of Publioly -Owned Improvements in Exhibit A to this Agreement regardless of the project- specifle tax increment received by the Agency. 7. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY OWNED RMROVEMBNTS a. City shall construct the Publicly -Owned Improvements in conformance with the schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however, that the Agency and City shall have no obligation once the cost of the Publicly -Owned Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of die Publicly -Owned Improvements, including all design, administrative and construction costs exceed $5,000,000.00, then the City shall construct only that portion of due Publicly Owned Improvements as specified in Exhibit C in the exercise of the Agency's solo and absolute discretion, b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B, additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of the block wall, referenced in item no. 1 on Exhibit A hereto, but the City's obligation to maintain the climbing vines shall only apply to those property owners who execute a fagade easement with the City in a form approved by the City Attorney permitting the City to maintain said climbing vines and indemnifying time City from any liability caused by said climbing vines and/or irrigation. Sandpointe shall be responsible for obtaining signatures from these individual homeowners. 8. LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY INJURY AND PROPERTY DAMAGE INSURANCE A, From and after the Effective Date, Nexus and Geneva Commons agree to and shall indemnify and hold Agency, City and Sandpointe, and their respective officers, directors, agents and employees harmless from and against all damages to property or injuries to or death of any person or persons, including employees or agents of Agency or City, and shall defend, Indemnify EXHIBIT D b Ordinance No. Ns -2880 Page 35 of 51 and save Agency, City and Sandpointe, and their 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 of or by anyone whomsoever, in any way resulting from the negligent or wrongfid acts or omissions of Nexus or Geneva Corrurions or their respective employees, agents or subcontractors, For itself and no other, Sandpointe agrees to hold harmless Agency, City and their respective officers, directors, agents and employees from and against all damages to property or injuries to or death of any person or persons, in any way resulting from the negligent or wrongful acts or omissions of Nexus or Geneva Commons, or their respective employees, agents or subcontractors. This Agreement shall not be interpreted or construed to obligate Sandpointe, its officers, directors or agents, or the Neighborhood to defend, indemnify or to answer in any way for the Agency the City or their respective officers, directors, agents or employees for such claims, 13. Prior to the commencement of construction, Nexus or any other party working within the real property of the City or Agency, shall obtain at its sole cost and isle with the City and Agency, and maintain for the period covered by this Agreement, a policy or policies of liability insurance or a certificate of such insurance, consistent with this Agreement, naming Agency, the City and Sandpointe, their officers, directors, agents, and employees, as insured or additional insured, which provides coverage not less than that provided in the form of a comprehensive general liability insurance policy against liability for any and all claims and suits for damages or Injuries to persons or property resulting from or arising out of operations of Nexus, Its officers, directors, agents, or employees. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($ 1,000,000) combined single limit, or its equivalent. Said policy or policies shall also contain a provision that no termination, cancellation, or change of coverage of insured shall be effective until after thirty (30) days notice thereof has been given in writing to City and Agency. Nexus shall give to Agency and City prompt and timely notice of claim made or suit instituted arising out of Nexus operations hereunder. Nexus may procure and maintain, at its own cost and expense, any additional kinds and amounts of insurance, which in its own judgment may be necessary for its proper protection in the prosecution of the work. All insurance policies shall be written by responsible and solvent insurance companies and shall include an additional insured endorsement in substantially the form of Exhibit D, attached hereto and incorporated heroin by this reference 9. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Nexus shall carry out the design,. construction, and operation of the Nexus Improvements in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of Cali fornla, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exerefsing jurisdiction over the City or Nexus, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, meohanical EXHIBIT D Ordinance No. N8.2680 i Page 36 of 61 75A -97 and electrical codes, and all other provisions of the City and its Municipal Code, and all-applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et seq. ("Govenumental Requirements "). 10, DEFAULTS AND REMEDIES If any party defaults In performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay In giving such notice shall not constitute a waiver of any default nor shall it change the time of-default. Thu defaulting party must, within thirty (30) days, following service of said notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. 11. INSTITUTION OF LEGAL ACTIONS Subject to the provisions of Section 13. hereof, In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover damages for any default, or to obtain any other remedy consistent wills the purpose of this Agreement, 12, APPLICABLE LAW This Agreement and all questions relating to its validity, interpretation, performance, and enforoentent 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. All 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. 13. RIGHTS AND REMEDIES ARE CUMULATIVE Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of die parties are cumulative and the exercise by either party of one or more of such rights 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. EXHIBIT D R Ordinance No. NS -2880 Page 37 of 61 •1;� 14. DAMAGES In the event that tho Agency or City is liable for damages to Nexus, Sandpointe and/or Geneva Commons, such liability shall not exceed costs incurred by Nexus, Sandpointe and/or Geneva Commons in the performance of this Agreement and shall not extend to compensation for loss of futtue income, profits or assets. 15. NOTICES, DEMAND AND COMMUNICA'T'IONS Formal notices, demands and communications between the parties shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer as designated below. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may t)rom time to time designate by mail as provided in this section. City: City of Santa Ana Planning and Building Agency 20 Civic Center Plaza, M -20 Santa Ana, CA 92702 Attn: Stave Harding, Executive Director Phone: (714) 667 -2700 Fax: (714) 973 -1461 with copy to: City Attorney 20 Civic Center Plaza, M -29 Santa Ana, California 92702 Agency: Community Development Agency City of Santa Ana 20 Civic Center Plaza, M -25 Santa Ana, CA 92702 Attn: Patricia C. Whitaker, Executive Director Phone: (714) 647 -5360 Fax: (7t4)647-6549 with copy to: Agency General Counsel Community Redevelopment Agency of the City of Santa Ana 20 Civic Center plaza, M -29 Santa Ana, California 92702 EXHIBIT D Ordinance No. N &2880 9 Page 38 of tit 75A -99 Sandpointo: Sandpointe Neighborhood Association, Inc. P.O. Box 27122 Santa Ana, California 92799 Attention: Bob 131aok Nexus: Nexus Development Corporation/Central Division, Inc.. The Grand Plait 2 1 MacArthur Place, Suite 300 Santa Ana, California 92707 Attention: Cory W. Alder Geneva Commons: Coastal Rim Properties, Inc. 139 East Alton Avenue Santa Ana, California 92707 Attention: Franco Mola A party may change its address by giving notice in writing to the other parties. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it tins been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time Games, weekends, federal, state, County or City holidays hall be excluded. EXHIBIT D 10 Ordinance No. NS -28130 Page 39 of 61 75A -100 16. ' EFFECTIVE DATE AND TERM OF AGREEMENT This Agreement shall take effect from and after the date of adoption and approval by the City and the Agency pursuant to. official action of the governing bodies thereof and shall be effective until completion and acceptance of the Nexus Improvements and Publicly -Owned Improvements. If Geneva Commons is approved by the City and Nexus is not, then Geneva Commons shall take over Nexus' obligations to construct a portion of the Nexus Improvements under this Agreement, but shall be required to (i) meet and confer with the Agency and Sandpointe, and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be'constructed using Geneva Commons twenty-five percent (25 %) share of the estimated cost of tho total Nexus Improvements, and (ii) the parties agree and acknowledge that all references heroin to Nexus shall be deemed to bo rofbrences to Geneva Commons. If Nexus is approved and Geneva Commons is not, then Nexus, the Agency and Sandpointe shall meet and confer in good faith, and using the order of the Nexus improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constmoted using Nexus seventy-five percent (75 %) share of the estimated cost of the total Nexus Improvements, 17. COMMENCEMENT DATE For purposes of this Agreement the terns "Commencement Date" shall refer to the period after issuance of City entitlements and shall be deemed to be a data ninety (90) days after the issuance of entitlements to Nexus and Geneva Commons (whichever comes later). The Commencement bate shall be tolled should a valid referendum petition be presented challenging either project, or timely litigation be filed and served challenging any of the entitlements, including approval pursuant to the California Environmental Quality Act. 18. INTEGRATION This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreement between the parties with respect to all or any the matters addressed heroin. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the parties, and all amendments hereto must be in writing and signed by the appropriate authorities of the parties, 19. ASSIGNMENT Nexus and Geneva Commons shall have the right to transfer or assign this Agreement, in whole, to any person, entity (public or private), partnership, joint venture, flan or corporation who is the owner of the real property referenced in the Recital hereto at any time during the term of this Agreement; provided, however, the rights of Nexus or Geneva Commons under this Agreement may not be transferred or assigned unless the written consent of the City Council is first obtained and any transfer or assignment of the rights under this Agreement shall Include in .EXHI.EIT D Ordinance No. NS -2880 i t Page 40 of 51 75A -101 the City grants written consent to transfer the rights, Not shall the rights of Nexus or Geneva Commons hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall he wholly void and of no force and affect unless such written consent thereto be obtained from the City Council. Such transfer or assignment shall not relieve Nexus or Geneva Commons of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Nexus or Geneva Commons contained in this Agreement as such duties and obligations pertain to the Nexus or Geneva Commons, Any and all approved successors avd assignees of Nexus or Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint and several. IN WITMS W IWOF, the parties hereto have executed this Agreement the date and year fhst above written. SANDPOINTE NEIGHBORHOOD, ASSOCIATION, INC. L� : •L.! NBXUS DEVELOPMENT CORPORATION/ CENTRAL DIVISION, INC, By _ Name Its 12 Ordinance No. NS -2680 Page 41 'of 61 the City grants written consent to transfer tha rights. Not shall the rights of Nexus or Geneva Commons hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the City Council. Such transfer or assignment shall not relieve Nexus or Geneva Commons of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Nexus or Geneva Commons contained in this Agreement as such duties and obligations pertain to the Nexus or Geneva Commons, Any and all approved successors and assignees of Nexus or Geneva Commons shall have ail of the same rights, benefits, duties, obligations, and liabilities of Nexus or Geneva Commons under this Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them. Upon assignment or transfer of the rights of Nexus or Geneva Commons under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint and several. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. SANDPOINTE NEIGHBORHOOD, ASSOCIATION, INC. By Name Its - - - -� NEXUS D13VELOPMENT CORPORATION/ Q9NTRAL DIVISION, INC. By Name Its Ordinance No. NS -2880 12 Page 42 01 61 75A -103 AI rBST: COMMUNITY DEVELOPMENT AGENCY OF THE CITY OF SANTA ANA By Patricia E, Healy Patricia C. Whitaker Secretary of Agency Executive Director APPROVED AS TO FORM: Josoph W. Fletcher Agency General Counsel EXHIBIT D Ordinance No. NS 2880 14 Page 44 of tit 75A -104 EXH113IT A OFFS -81TE IMPROVEMENTS Block Wall a. Main Street between Murphy & Sunflower, and house located at 101 W. Murphy b. North side of Sunflower between Main & alley adjacent to four plexes, excluding sections of wall at corner of Main & Sunflower at rear of commercial building o. Plaster and paint with one color selected by Association d. $3,000 per house payment for repair /replacement of landscaping associated with wall improvements upon execution of Nexus right -of -entry for constntction and exterior -wall maintenance easement, Ills payment shall be made by Nexus at the time the individual property owner executes the construction casement in favor of Nexus and permanent maintenance easement (for the climbing vines) in favor of the City. For any "hold outs" (as defined in paragraph 6.b, of this Agreemeni, Nexus shall make the $3,000 payment to Sandpointo in trust for each hold out, o. Remove and replace 16 sections of white concrete block wall in immediate area of MacArthur Boulevard and Flower Street, and paint with one color selected by Association, f. Remove and replace 4 sections of white concrete block wall along Wool Alton Avenue and paint with one color selected by Association, g. Nexus shall install climbing vines, species identified by the City, along the outer edge of the wall, install irrigation to feed said climbing vines which shall be connected and metered by Nexus at the nearest City water supply, and shall reconstruct the sidewalk to the City's specifications after installation of the irrigation lines and block wall. h. Wall replacement specifications shall be established pursuant to paragraph 4 of this Agreement. i. Nexus shall maintain, and replace as necessary, the climbing vines during a ninety (90) day plant establishment phase following item no. l.g. 2. Window Replacements a. Nexus shall provide $3,500 construction allowance per house for sound proof window replacements for up to 49 residential units located along Matti Street and Sunflower Avenue behind the existing concrete wall to be replaced. The 49 residential units are identified in Exhibit A -1 to ibis Agreement. b. Nexus shall assist Sandpointo in obtaining/proparing necessary construction bids, documents and permits. e. Allowance will be paid by Nexus to Sandpointo for any applicable home upon receipt of bona tide construction or material invoices. d. Allowance shall expire 12 months following the completion of the concrete wall EXHIBIT D t i Ordinance No. NS -2680 Page 45 of 61 75A -105 replacement improvements. e. Window specifications shall be established pursuant to paragraph 4 of this Agreement. 3. Taft Elementary Loading Zone a. Nexus shall construct all improvements necessary to effectuate Definitive Easement Agreement between Santa Ana Unified School District, Nexus and South Coast Church. b . Improvements to loading zone shall include driveway approaches, traf'f"ic lanes on site, striping, church building renovations, portable classroom relocations, computer lab on school and church properties, etc. as provided for in plans included as part of Definitive Easement Agreement. 4. Pay City $200,000 for City to implement a Neighborhood Traffic Management Plan (" NTMP ") to mitigate changes in traffic patterns or increased out through traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointe Neighborhood. NTMP costs shall include traffic studies, staff time to process neighborhood traffic plan, and the construction of appropriate traffic calming devices, including but not limited to semi- diverters, diagonal diverters, and street olosures. The implementation of the NTMP shall be pursuant to procedures adopted by the City Council. 5. Nexus shalt pay the City the fttli cost (seo Exhibit B) for the installation of a Traffic Signal at the Intersection of MacArthur Boulevard and Birch Street. Utility Undergrounding a. Main Street — MacArthur to Sunflower b. MacArthur — Main to Flower c. Sunflower — Main to Flower (north side of street) EXHIBIT D Ordinance No. N$-2680 16 Page 46 of 61 75A -106 EXHIBIT A -1 List of 49 Residential Units Yoorplamm 38. 392$ 8, Roos (Aid" to SunAowsr) List of 6Agible Homes fbr (rmt1Sunnowet) 40. 403 W, 8umnower Window±tepteoetnenb 41. 409 W. Sun4wwr nu Sunflower) Alontt Wit end Swifioaer 31nSie K 43. 303 W. SunOowa 1. 101 W. Mv,mltylfiotagr rybY (side* to Meln) 2. 3701 S, Aides tbecks IQ MOM) 3. 370$ S. Alder ow % to Main 4, 3709 S. Aidor (p*ciu to Main) S. 3713 S. Alder (basit+t to Mein) 6. • 3717.4. Alder (kdto to Meln) 7. 37118, Aldet WYA to Msin) S. 3717 s. Alder (Mike W Main) 9, 3719 S. Aldo (back* to Mein) 10, 31013. Aidse (helu to Maln) 11, 3305 S. Alder (b d" to Molm 12, 3809 S. Alder (books to Maim 13. 3813 S. Aldo (both* to MsAa 14. 3819 S. Alder (bet(* to Win) 13. 31113, Alder (backs to Moir) 1b. 3323 8, Al4w (fwcaw to Alda) 17. 309 S, Alder (rocks to MAID) 18. 3901 S. Alder (Wcks to M*ln) 19. 39W S. Alder (Decks to Mile) 20. 3909 S. Alder (baalu to Main) 21. 102 W, S(nwA (beck? to Matti end MIWIMN") 22. 104 W. Stevens (ttaelo to Matti end MIMI Mallet) 23. ) I 0 W. 8two o (bads to Malp ad MW Mwka) 24, 114 W. Stmos ( bads IQ Sunftow and NMI Market) 23. 118 W, 8imm (444 to $unnowet) 26. 122 W. Stavats (bolo to Sumilowa 21. 207 W. stevau (badw to ttunnowa) 28. 106 W, Stevens (bado to sunn"W) 39. 210 W. Stevats (bit b to Sunnowu) 30, 214 W.IStevons (Micky to Sunnowa) 31. 3926 8. Timber (I ides to suriamw) 32. 301 W. Stoups* (books to Sltnnow&) 33. 306 W.3tcvcns (bitch to$unnewa) 34. 310W.$towns =tosunhoway 33. 314 W. Stevsm (bark$ to Sun UZ 36. 31= 8. Stevan (bads to Wow) 17. 39128.101mh (" to8unfltnva) Yoorplamm 38. 392$ 8, Roos (Aid" to SunAowsr) 39. 401 W.Sunffowat (rmt1Sunnowet) 40. 403 W, 8umnower (hW aunflowrr) 41. 409 W. Sun4wwr nu Sunflower) 42. SO) W. Sunftoo"'W Sunflower) Em 43. 303 W. SunOowa nu sun0owrr) 44. S09W.Sutnflowdr (honu8unllawer 4$. 313 W. Sunflower I front; sundouw� MllnAtttsttton Condsmtltluml 46.3620 AS. Main (1140 to Main) 47.3632 A S. Mdn (fronts Mala) 48.363211 S. Main (Army Mde) 49.3532 C S. Main (from Main) 17 Ordinance No. NS -2680 I . Page 47 of 61 75A -107 EXHIBIT B SCHEDULE OF NEXUS IMPROV13MENTS 1. Construction of Item No. I to Exhibit A shall conform to the following schedule: a. Preliminary Site Plans -- Due within thirty (30) days of the Commencement Date. C. Final Plans Due within sixty (60) days of City approval of Preliminary Site Plans, together with proposed Bight -Of -Entry and Maintenance Basement for review of City and Sandpointo. d. Building Permits, Construction Right-Of-Entry (in favor of Nexus), and Permanent Maintenance Easement for Exterior of Wall (in favor of City) -- Application, right of entries and easements shall be submitted no late than sixty (60) days after City approval of Final Plans. e. Construction Commencement -- Within thirty (30) days after approval of Building Permits. f. Construction Complete -- Within one hundred twenty (120) days of commencement of construction, g. Ninety (90) day plant establishment phase after completion of construction of climbing vines and irrigation. 2. Construction of Item No. 2 to Exhibit A shall conform to the following schedule: Final building permit plans shall be submitted by individual Sandpointe homeowners to City no later than construction complete date for item no. above. Construction shall be complete pursuant within one hundred twenty (120) days of Issuance of City Building Permit. 3. Construction of Item No. 3 to Exhibit A shall conform to the following schedule: Nexus shall submit executed Definitive Easement Agreement to all parties no later than one hundred eighty (180) days of the Commencement Date. If Nexus fails to meat this deadline, which may be extended in writing by Nexus and Sandpointe, then Nexus shall deposit $1.2 million from the Nexus Escrow into a separate escrow with terms providing for Its withdrawal by Sandpointe, iahieh'are mutually agreeable to all panics, for use by Sandpointe on other projects to benefit the Sandpointe neighborhood. Nexus shall complete this item not later than eighteen (18) months from the EXHIBIT D Ordinance No. NS -2880 18 Page 4 8 of 61 Commencement Date. 4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of the first final map for the Nexus Project. The City shall follow the Neighborhood Traffic Management Plan Polioy adopted by the City Council. S. Construction of Item No. 5 to Exhibit A shall confortn to the following schedule: a. The City shall provide Nexus with a preliminary estimate of this cost within thirty (30) days of the Commencement Date. This preliminary estimate shall be updated, If necessary, upon the City's reoeipt of Nexus application to final any portion of its tentative tract map, Said estimate shall be conclusive. b. Noxus shall pay the City the catimated cost of this item not later than approval of the first final map for the Nexus Project. c. The City shall complete construction of this item prior to the first certificate of occupauxcy for the Nexus Project, Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus and the City Manager or designee. EXHIBIT D 19 Ordinance No. NS -2880 Rage 48 of 51 75A -109 EXHIBIT C SCHEDULE FOR PUBLICLY -OWNED IMPROVEMENTS 1. City shall complete item no, l.a, on Exhibit A of Publicly -Owned Improvements not Iater than Jame 2005. 2. City shall complete item no. IN on Exhibit A of Publicly -Owned hnprovements not later than five (5) years after the Agency provides City with the then estimated cost of the project, 3. City shall complete item no. Lo. on Exhibit A of Publicly -Owned improvements not later than five (5) years after the Agency provides City with the then estimated cost of the project, Notwithstanduig this schedule, City shall make a reasonable good faith effort to ef1eotuate the completion of these Publicly -Owned Improvements (which, under current law. must be designed and constructed by Southern California Edison and not the City) prior to the dates specified above, EXHIBIT D Ordinance No. NS -2680 eft Page 60 of 81 75A -110 EXHIBIT "E" Remaining Offsite Mitigation Measures The Met at South Coast Public Improvements Improvement New sidewalk New driveway ( "pan" style Dedication for 25' x 25' comer cut -off Sidewalk easement Street dedication 4" depressed curb Triple -leis traffic mitigation measure, including sign, bridge, signal modification, updated detection, and signing: and striping on both streets _Pavement Rghabilitation (minimum 2" wind and overlay} Installation of new public fare hydrants Location Property frontage on First American Way First American Wav NIB comer of MacArthur & Imperial Promenade 10' along property frontage of MacArthur Blvd. GO' from street centerline along_ MacArthur Blvd, Emerf,,ciipy access on MacArthur Blvd. Southbound Imperial Promenade at MacArthur Blvd On Imperial Promenade and First American Way along property frontage from curb to street centerline Along MacArthur Blvd. and First American Way 75A -111 B :13S Nnd I Z1 f0 /10 I ,:rx.- .t«,...:::..::.; ..:•.•.;�- _ >s••..:n. -w,. ZE E✓3 �_ z �) c' � gg g ti d � 5 � �`b� � °aka` s s• s:§ s F m I I OII� ' �. �Jd�o• I t 1_f i (Q `� 0. -- O Lu �+i Q Z �, rj�i ' I Irr. I o ~_ / _- ✓ / I f rRS; 4 LL LLJ rL Cc - I •: � w 4o I I / � �R f�`7ia'�1 z Y c z EXHIBIT 9 THE MET AT SOUTH COAST MULTI - FAMILY RESIDENTIAL PROJECT INITIAL STUDY /MITIGATED NEGATIVE DECLARATION Including the Final Mitigated Negative Declaration, Mitigation Monitoring & Reporting Program, and Response to Comments is available for review at the following: www.Santa- ana.org Planning and Building Agency Planning Counter, First Floor 20 Civic Center Plaza Santa Ana, CA 92701 Santa Ana Public Library 26 Civic Center Plaza Santa Ana, CA 92701 Sergio Klotz — (714) 667 -2796 to arrange an appointment for review 75A -113 r 3 N O 'o a:)vie vnHiav:>vw 7"I"AtIM4 �h N N NN N N N N N N ~MYIww VI IANw w ZN E ci (.1, (.1, o: w -t CY y ♦� -o p h OO N h Yin P 2 W v c N W ^ W IL y tl N Y. 14. N N J w w M. Y. w w K. w -+ NNNN 0 0 NN 6i QSi n y; c3 �u 000$ ®000 N .- ae v d m W N Y y'j N w ~ Z o go xs w 3 O N Ilk < u o P O �'G .0 w c u u N y 4 !4 ® N u (� C d C N N 0 w C < 1i • ®••® V h Z V 1r16 tl $ 4 Y = h t o; �N N Z e W tX M� ►a�► a O a_• o< oaio'� •ao O O r r d use <.a�Y r 3 N O 'o a:)vie vnHiav:>vw 7"I"AtIM4 VINEYARDS DEv ELo PMI:NT CORPORATION February 24, 2012 To: Jay Trevino, Executive Director Planning & Building Agency, City of Santa Ana Re: The Met Project Highlights and Revisions Dear, Mr. Trevino: We appreciate all of your hard work on The Met project over the last 14 months. It is our vision that The Met will exceed the standards and quality of any similar project in the City of Santa Ana. Therefore, we have enhanced aspects of the design of The Met in the following manner: • Reduction of unit count from 284 units to 278 units (confirms to SD 43 unit allowance) • Increase in two and three bedroom unit count, from 106 units (38 %) to 136 (49 %) • Average unit square footage increase from 885sf to 915 sf, • Increase in open space from 202 sf per unit to 255 sf per unit, to exceed SD -43 code • Reduction in tandem parking from 344 stalls (54 %) to 257 stalls (42 %) • Addition of the following amenities: yoga veranda, business center, game lounge & pet -park; which marks our amenity package to be the most extensive in the City of Santa Ana • Increase size of fitness center to from 850 sf to 1,900 sf • Increase in pool size • Increase rooftop lounge amenity area In addition, we have received FAA clearance and the Orange County Airport Land Use Commission approval and have agreed to the one stipulation to install site signage to conform to ALUC's requirements. Again, thank you for your and staff's time and efforts throughout the past year. Sincerely, Robert H. Bisno and Ryan A. Ogulnick EXHIBIT B VINEYARDS DEVELOPMENT CORPORATION 828 NORTH OGDEN DRIVE . LOS ANGELES CA 90046 T 310,13"71 .8227 • VINEYA,RLISDC -COM 75A -115 75A -116 ORDINANCE NO. NS -XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING SPECIFIC DEVELOPMENT NO. 43 (SD -43) TO ALLOW THE CONSTRUCTION OF A MULTIFAMILY RESIDENTIAL PROJECT WITH 278 UNITS AT 200 EAST FIRST AMERICAN WAY (ZOA NO. 2012 -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 proposed Zoning Ordinance Amendment No. 2012 -01 is to amend the existing zoning in Specific Development No. 43 (SD -43) to reduce the parking ratio, allow for the use of tandem parking stalls, and amend the open space requirement. B. On January 23, 2012, the Planning Commission held a duly noticed public hearing, and decided to continue the matter to February 13, 2012. Staff recommended that the Planning Commission vote to recommend that the City Council adopt Zoning Ordinance Amendment No. 2012 -01 to amend Specific Development No. 43 (SD -43) to increase the maximum number of permitted residential units, reduce the parking ratio, allow for the use of tandem parking stalls, and reduce the open space requirement. On February 13, 2012, the Planning Commission split by a vote of 3:3 (Commissioner Yrarrazaval absent) on a motion to approve the project, thus creating an impasse. Pursuant to Planning Commission Bylaws (Resolution 01-44, § 8e), the applicant desired to proceed to City Council. C. Zoning Ordinance Amendment No. 2012 -01 came before the City Council of the City of Santa Ana for a duly noticed public hearing on March 5, 2012, to consider all testimony, written and oral. D. The City Council adopts as findings all facts presented in the Request for Council Action dated March 5, 2012, accompanying this matter. For these reasons, and each of them, Zoning Ordinance Amendment No. 2012 -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. Section 2. Specific Development No. 43 (SD -43) is hereby amended as follows: 75A -117 A. Reduction in Multi - Family Residential Parking Ratio. Amendments are needed to revise the parking requirements for multi - family residential uses. SD -43 currently has a graduated parking ratio for individual units based on bedroom count and a similar graduated guest parking ratio based on the overall unit count. As proposed, the project will provide a total of 632 spaces at an overall ratio of 2.22 spaces per unit, regardless of bedroom count, and inclusive of guest parking, which provides seven more spaces than the 2.22 per unit ratio. The parking standards contained within SD -43, if applied to the proposed project, would require a total of 642 parking spaces - 601 for the units and 41 for guest parking. This creates the need for a reduction in the required parking of 17 spaces. Due to the fact that the applicant proposes to provide 632 spaces, the effective reduction will be 9 spaces; however, the SD shall be amended to reflect the overall ratio of 2 spaces per unit and 0.22 spaces per unit for guest parking. Specifically, Section V.I. (Development Standards /Residential Permitted Density; Parking) shall be amended to read as follows: "A minimum of 2.0 off - street parking spaces per unit shall be required for baGheler all units. 2.3 off stTee+ narking spaces are requimd fer Nye bedroom � snits and 2.5 off street parking 6nanes sh he real irerl . In addition, guest parking shall be provided as follows: 0.5 space -fer eanh unit up through ten (1 0) , R46 0.22 space for each unit in ov�� en (10) units up ugh on (100) units, and 0.1 spat for each unit reXneS of one hundFed (100) u Thus, a minimum of 2.22 off - street parking spaces shall be provided per unit in total." B. Allowance for Tandem Parking to Satisfy Parking Requirement. The Santa Ana Municipal Code contains provisions for tandem parking to satisfy some portion of any required parking, but only for commercial development. SD- 43 does not contain any specific standards allowing the use of tandem parking within the project area. The applicant proposes to have 42% of the parking stalls designed as tandem spaces. Thus, SD-43 shall be amended to allow for tandem parking up to 42% of total parking, so long as there is a link between the percentage of tandem and percentage of one - bedroom units. Specifically, the following shall be added to the end of Section V.I. (Development Standards /Residential Permitted Density; Parking) as follows: "Tandem parking shall be allowed up to a maximum rate of 42% of the total parking stalls for a property, so long as no more than 51 % of the total units on the property are studio or one bedroom units." 75A -118 C. Reduction in Open Space Requirement. The open space provision within SD -43 requires that each residential development provide usable ground level open space at a rate of 250 square feet per unit. Such usable open space shall be divided between common and private open space. Private open space shall be required to be provided for each unit at a rate of no less than 90 square feet of the total open space provided. Ground level open space or common open space must be provided within 500 feet of any residential unit on the site. The applicant estimates that the project provides for 255 square feet of open space per unit, however this calculation includes rooftop open space that cannot be counted as ground level open space. Thus, SD -43 shall be amended to not distinguish between ground level and rooftop open space. Specifically, Section V.E. (Development Standards /Residential Permitted Density; Usable Open Space) shall be amended to read as follows: "Ground ley Open space must be provided within 500 feet of any residential unit on the site at a rate of 250 square feet of area for each unit. private open spans Private and required to be provided fer each � snit at a ``r`"�'+t``o^^i``^^f ``n''G less Ythan ninety (90) square feet of the tetal open spaGe ei 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 12012. Miguel A. Pulido Mayor 75A -119 APPROVED AS TO FORM: Joseph A. Straka Interim City Attorney as Ryan O. Hodge Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75A -120 (ROH 03/05/12) ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Amended Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. This Amended Development Agreement came before the Planning Commission for a duly noticed public hearing on January 23, 2012. At that time, the Planning Commission continued the matter to February 13, 2012. Staff recommended that the Planning Commission vote to recommend approval of this Amended Development Agreement. On February 13, 2012, the Planning Commission split by a vote of 3:3 (Commissioner Yrarrazaval absent) on a motion to approve the project, thus creating an impasse. Pursuant to Planning Commission Bylaws (Resolution 01 -44, § 8e), the applicant desired to proceed to City Council. D. Entering into this Amended Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of The Met to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. E. The project and the use that the owner proposes in connection with the property have been extensively reviewed and considered by the City, and such proposed development and use have been found to accommodate the City's recommendations and suggestions in order to protect the public's interest to enhance the desirability of such proposed development and use. The terms and conditions of Ordinance No. NS -XXX Page 1 of 3 75A -121 this Amended Development Agreement have been found to be fair, just and reasonable, and the City has concluded that the pursuit of the Project will serve the interests of the City. F. The City Council has held a noticed public hearing on this Ordinance and has considered all testimony presented thereto. G. Mitigated Negative Declaration and Mitigation Monitoring Program, Environmental Review No. 2011 -46, have been approved and certified by this Council by resolution simultaneously with the introduction of this ordinance. H. The proposed project will not adversely affect the General Plan, as is expressly set forth in the Request for Council Action dated March 5, 2012, together with all supporting documents, including but not limited to, proposed resolutions, which are incorporated herein by this reference. Section 2. The Amended Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City with such non - substantive changes as may be authorized by the City Manager and City Attorney. The Clerk of the Council is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. Section 3. This ordinance shall not be effective unless and until Resolution No. 2012- is adopted and becomes effective. If said resolution is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this ordinance shall be null and void and have no further force and effect. Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Ordinance No. NS -XXX Page 2 of 3 75A -122 ADOPTED this day of , 2012. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph A. Straka Interim City Attorney By: Ryan O. Hodge Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT Councilmembers Councilmembers Councilmembers Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75A -123 Ordinance No. NS -XXX Page 3 of 3 75A -124 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M -30 P.O. Box 1988 Santa Ana, California 92702 EXEMPT FROM RECORDING FEES GOVERNMENT CODE § 6103 AMENDED DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA and VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY Dated: March 5, 2012 EXHIBIT 1 75A -125 EDAMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY This RESTATED A14D NOVA AMENDED DEVELOPMENT AGREEMENT ( "Agreement ") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California (referred to herein as "City ") on the one hand, and COASTAL RIM -PROPERT49S, INC., A "Y"FTI-COTITMONI'SVDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (eellectively referred to herein as "Owner" or "Property Owner ") on the other hand. I . RECITALS. The Amended Agreement is entered into with reference to the following facts: 1.1 Purpose. (1) The purpose of this Agreement is to facilitate the development of a small portion of the real property which was the subject of a Development Agreement entered into on January 4, 1988 and recorded as Document 88- 260709 in the Office of the Recorder of the County of Orange (heireafte the "Original Agreement "). The Original Agreement was subsequently amended on or about June 4, 2001, by Document No. 20010429519 the Office of the Recorder of the County of Orange. The real property which was the subject of the Original Agreement is zoned by the City as Specific Zoning District No. 43 ( "SD -43 "). On April 4, 2005, the City entered into a Development Agreement the "2005 Agreement ") with Coastal Rim Properties, Inc. and Geneva Commons, LLC (collectively refereed to herein as "Coastal Rim "). (2) A portion of the real property covered by the Original Agreement was subsequently acquired by 9rvxer Coastal Rim, who has applied to the City to amend SD -43 and have approved a new tentative map, and other entitlements. (3) The City and Owner agree that the changes Owner seeks in the Original 2005 Agreement substantiate the need to r-eplaee amend the Original Agreement with the instant Develepmefit. Agreement, rendering the Original Agreement and the 2005 Agreement, and any 441s amendments thereto, null and void as applied to Owner's Property (as the word "Property" is defined in seetio Section 2.3 herein). (4) As more particularly set forth in aee4iex Section 2.4 of this Agreement, Owner has proposed eonstmeting at developing the northeast corner of MacArthur Boulevard and Imperial Promenade building, of an 18 residential level high rise projeet and an eight stei3- together- wi . iately 13,000 square fee4 ef meillafy feiail, of w-hieh no more than 3,000 9"are fee4 May �c��edto "fast food's "takes out" Testa •�•a with a 5- story, multi -famil apartment community consisting of 278 residential units, with 2 levels of subterranean parking, and a level of podium deck parkin in n 2 separate buildings (the "Project ", as further defined in Section 2.4 75A -126 herein). 1.2 Code Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and Owner in the development process. City enters into the Agreement pursuant to the provisions of the Government Code and applicable City policies. The parties acknowledge: (1) This Agreement is intended to assure adequate public facilities at the time of development. (2) This Agreement is intended to assure development in accordance with City's General Plan, applicable Specific Plans and Specific Development District No. 43. (3) This Agreement will permit achievement of goals and objectives as reflected in Government Code Sections 65864 through 65869.5, the City's General Plan, all applicable Specific Plans and Specific Development District No. 43. (4) Owner is required by existing City regulations to provide mitigation for certain impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (5) This Agreement will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (6) Many of the extraordinary and significant benefits identified as consideration to City for entering into this Agreement are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1.3 Owner. Owner represents and warrants that it has a legal or equitable interest in the real property located in City of Santa Ana, California, legally described on Exhibit A attached hereto and incorporated herein, and graphically described on Exhibit B attached hereto and incorporated herein. The Property is currently vacant. 1.4 Interest of Owner. Owner hereby represents that it has an equitable and legal interest in the Property. Owner further hereby represents that it has approved this Agreement and is authorized to enter into this Agreement. 1.5 Planning Commission - Council Hearings. On November 22, 2004, the Planning Commission of the City ( "Planning Commission "), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owne Coastal Rim's application for this the 2005 Agreement. The Planning Commission recommended to the City Council of City that it execute the 2005 Agreement. On April 4, 2 75A -127 2005, the City Council of the City of Santa Ana ( "Council "), after providing notice as required by law, held a public hearing to consider the -nOw ei Coastal Rite's application for t-1}is the 2005 Agreement, which the Council approved by adopting Ordinance No. NS -2680 on April 18, 2005, The Owner has submitted a new and modified site plan review package to the City amending the previously approved plan On January 23, 2012 the Planning Commission of the City, after duly giving notice otice pursuant to Government Code sections 65090 and 65091, held a public hearing to consider the Owner's gpplication for this Agreement. The Planning Commission recommended to the Council that it execute this Agreement On [insert date] the Council, after providing notice as required by law, duly held a public hearing to consider the Owner's application for this Agreement. 1.6 Council Findings. The Council finds that this Agreement and its purpose s is are consistent with Government Code Sections 65864 through 65869.5, and with the objectives policies general land uses and program specified in the General Plan, applicable Specific Plan(s) as well as all other applicable ordinances, plans, policies and regulations of the City. Among other things this Agreement will reduce uncertain1y in planning for or and securing the orderly development of the Property, assure progressive installation of necessary improvements, provide public services appropriate to each stage of development of the Propeft ensure attainment of the maximum effective utilization of resources within the City at the least cost to its citizens expand the availability of highh- quality, affordable housing stock to the City's citizens contribute to the economic stability and revitalization of the community, enhance the City's property tax revenues and otherwise achieve the goals and purposes for which Government Code Sections 65864 through 65869.5 were enacted. 1.7 City Ordinance. On ^ pr4l 18, 2005 [insert date] , the Council adopted Ordinance No. NS- approving this Amended Agreement. The ordinance becomes effective thirty (30) days thereafter, 2. DEFINITIONS. In the Agreement, unless the context otherwise requires: 2.1 "Final Design" means the final design documents for work of public art, which is set forth in greater detail in paragraph Section 5.8 of this Agreement. 2.2 "Property Owner" or "Owner" means Ceast^' epeAies, California Carperation, and Geneva Conunon collectively VDC at the Met, LLC, a California Limited Liability Company, and its successors or assigns who or which may acquire Owner's equitable and legal interest in the Property, being the person, persons, or. entity having a legal or equitable interest in the Property, .' Wrest. 2.3 "Property" is the real property described in Exhibit A and referred to in Exhibit B. 2.4 "Project" is the development of the Property as generally set forth in Section 1.1(4) of this Agreement, Environmental Review No. 2001 02 215 , Tentative Tract Map No. 2904 -85 (County Map No. 4655 € ), Conditional Use Permit 75A3128 2984 -A2 , Variance No. 298/1 -1-f , Zoning Ordinance Amendment No. 2884$5 (amending SD -43), and Site Plan Review No. 2884 -96 2.5 "Public Art Plan" means the conceptual Plan attached hereto as Exhibit C. The parties recognize that the Plan does not set forth certain elements of the Public Art to be installed in conjunction with this Project, including the location of the Public Art, and is therefore subject to refinement prior to the time of installation, by agreement of the Owner and the City's Executive Director of Planning and Building. 3. EXHIBITS. The following documents referred to in the Agreement are attached to this Agreement and are identified as follows: Exhibit Referred to Designation Description in Section A Property Legal Description 1.23 B Property Graphical Description (Site Plan) 1.23 C Public Art Plan 2.5 D Cooperative Agreement for Off -Site Improvements 5. 1.1 E Remaining Offsite Mitigation Measures 5.1.2 4. GENERAL PROVISIONS. 4.1 Property Subject to the Agreement. Until released pursuant to the provisions of Section 8.3 below, no property shall be released from this Agreement until Property Owner has fully performed its obligations arising out of the Agreement. 4.2 Duration of Agreement. The term of this Agreement shall be for ten (19) years from the date that the Council adopts its ordinance approving this Agreement "Effective Palen; provided, however that the Owner may request one two -year extension from the Executive Director of the Planning and Building Agency, which request shall not be unreasonably denied. 4.3 Assignment. Owner shall have the right to transfer or assign the Property, and its interests in and rights and obligations under this Agreement, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that except as provided in section 43.1 of this Agreement, the rights of Owner under this Agreement may not be transferred or assigned unless the written consent of the Council is first obtained and any transfer or assignment of the rights under this Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this Agreement if the City grants written consent to transfer the rights. 75A -129 Nor The rights of the Owner hereunder shall not be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force-and effect unless such written consent thereto be obtained from the Council. Such transfer or assignment shall not relieve Owner of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement shall observe and perform all of the duties and obligations of Owner contained in this Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this Agreement. if the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this Agreement. Upon assignment or transfer of the rights of Owner under this Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. 4.3.1 Permitted Assignments. The prohibition against transfer of ownership of the Property as defined in section 4.3 above shall not apply to, and the City hereby consents to, the following: a. Associations, including limited partnerships, limited liability companies, or joint ventures with other entities for the purpose of performing Owner's obligations under this Agreement, provided Owner retains sole operational and managerial control. b. Easements or temporary permits to facilitate development of the Property. C. Deeds of trust or other financing documents executed for the purpose of securing loans to Owner made to finance the development of the Property, and transfers to any person or entity pursuant to a foreclosure or deed in lieu of foreclosure of such deed of trust or other, similar, financing documents and any subsequent transfer by any such person or entity. 4.4 Amendment or Cancellation of Agreement. This Agreement may be amended from time to time or cancelled by the mutual consent of the parties, but only in the same manner as its adoption by an ordinance as set forth in Government Code Section 65868. The term "Agreement" or "Development Agreement" as used herein shall include any amendment properly approved and executed. 4.5 Enforcement. Notwithstanding Government Code Section 65865.4, this Agreement is enforceable by any party to the Agreement in any manner provided by law. The r-emedies provided in Seetion 8,4 of this AgFeement shall not inelude, and City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this Agreement except as may-be pi!evided in Section 6.3(5) of this Agreement. 75A5130 4.6 Hold Harmless. Property Owner agrees to and shall hold City, its officers, agents, employees, consultants, special counsel, and representatives ( "City Parties ", collectively) harmless from liability: (1) for damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise due to negligent acts, omissions or willful misconduct, from the direct or indirect operations of the Property Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the Project; and (2) from any claim that damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from, and to the extent of Property Owner's negligent acts, omissions or willfid misconduct in the performance of this Agreement This hold harmless Agreem agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this paragrapl3 Section or due by reason of the terms of, or effects, arising from this Agreement or any approval or certification by the City relating to the Project, regardless of whether or not the City prepared, supplied or approved this Agreement, plans or specifications, or both, for the - Project. The Property Owner fiurther agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement or any approval or certification by the City relating to the Project, or asserting that damages, just compensation, restitution, judicial or equitable relief is due to personal or property rights by reason of the terms of, or effects arising from Property Owner's negligent acts, omissions or willful misconduct in the performance of this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 4.7 Binding Effect of Agreement. To the extent not otherwise provided in Section 4.3 of this Agreement, the burdens of the Agreement bind, and the benefits of the Agreement inure, to the parties' successors in interest, transferees and assigns. 4.8 Relationship of the Parties. The contractual relationship between City and Owner arising out of the Agreement is one of independent contractor and not agency or partnership. This Agreement does not create any third party beneficiary rights. 4.9 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: If to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M -31 P.O. Box 1988 Santa Ana, California 92702 75A6131 and, telefacsimile (714) 647 -6954 City Attorney City of Santa Ana 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647 -6515 If to Owner, to: VDC at the Met. LLC 828 North Ogden Drive Los Angeles, CA 90046 Attention; Ryan O u� lnick Facsimile number: A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address or facsimile number. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 5. DEVELOPMENT OF THE PROPERTY. 5.1 Existing Rules, Regulations and Policies. In accordance with the terms of Government Code section 65866, the City and the Owner agree that Tthe rules, regulations and official policies governing the permitted use(s) of the Property, with respect to and only with respect to the permitted use(s) zoning, design, setbacks, density, height, size of structures, permitted uses, and intensity of use of the Property (collectively, the "Existing Development Regulations "), shall be those rules, regulations, and policies applicable to the Property as of the effective date of this Agreement. 7 75A- -132 �• A• VDC at the Met. LLC 828 North Ogden Drive Los Angeles, CA 90046 Attention; Ryan O u� lnick Facsimile number: A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address or facsimile number. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 5. DEVELOPMENT OF THE PROPERTY. 5.1 Existing Rules, Regulations and Policies. In accordance with the terms of Government Code section 65866, the City and the Owner agree that Tthe rules, regulations and official policies governing the permitted use(s) of the Property, with respect to and only with respect to the permitted use(s) zoning, design, setbacks, density, height, size of structures, permitted uses, and intensity of use of the Property (collectively, the "Existing Development Regulations "), shall be those rules, regulations, and policies applicable to the Property as of the effective date of this Agreement. 7 75A- -132 5. 1.1 Cooperative Agreement for Off -Site Improvements. The QW* Coastal Rim and the City, together with other parties, h"e eenetiffengy executed a Cooperative Agreement for Off. -Site Improvements concurrently with the Original < Agreement, a true and correct copy of which is attached hereto as Exhibit D and incorporated herein by this reference. Owner agrees to comply in all respects with its obligations under said Agreement, and agrees and acknowledges that a material breach of said agreement shall constitute a material breach of this Agreement. Despite anything to the contrary, Owner is not required to construct any off site improvements other than as expressly required in this Agreement in any environmental documentation related to this Project or in any condition of approval in any discretionary action related to this Project. 5.1.2 Remaining Offsite Mitigation Measures. The additional offsite mitigation measures, beyond those set forth in the agreement referenced in section 5. 1.1 of this Agreement, which must be constructed by Owner are as set forth in Exhibit E to this Agreement. All fiends or costs for offsite mitigation measures required pursuant to the approvals set forth in section 2.4 of this Agreement shall be paid the earlier of (1) the time called for in the said approvals, or (2) no later than recordation of the final subdivision map for the Project, or 3 issuance of certificates of occupancy, whichever comes first. 5.2 Exclusion from Existing Rules, Regulations and Policies. Pursuant to Government Code Section 65866, and Pardee Construction Co. v. City of Cainerrillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, City retains the right to enact police power regulations on matters not covered by section 5.1 of this Agreement, including without limitation: a. Regulation of the rate and amount of growth is not abrogated by the City, in that the parties agree and acknowledge that the City hereby retains the police power to provide for change in regulations, ordinances, policies, and plans relating to moratoria, building permit allocations, timing, and sequencing of development and the financing and provision of adequate public facilities at the time of development. b. Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with section 5.1 of this Agreement. As used herein "Existing Development Regulations" shall not include municipal laws and regulations that do not conflict with Owner's vested rights to develop and use the Property in accordance with this Aareement. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non - conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non - conflicting laws and regulations include the following: (1) Taxes, assessments, fees and charges, except as otherwise specifically provided in this Development Agreement; (2) Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; 75A -133 (3) Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city -wide basis; and (4) Procedural rules of general City -wide application. C. In recognition of the need for City services, including but not limited to police, fire and park, to meet the demand generated by new, cumulative residential development in the City, District, Owner will not object to participation in a community facilities district, assessment district, or other similar funding mechanism, to provide funds for such services, should any such a mechanism be established. d. No vested rights as to any requirements in this section either as to existing or future regulations, ordinances, policies, and plans are hereby conferred. 5:3 Design and Construction Standards and Specifications. The design and construction standards and specifications for all Project construction, including without limitation the facilities set forth in the Public Art Plan, shall be subject to applicable design standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 FAA Approval. Owner shall obtain and maintain, during the term of the agreement, any and all necessary approvals from the FAA for the Project. Should such approvals lapse, and not be reinstated or reapproved prior to the issuance of the first building permit, the City shall have the right to terminate the agreement. 5.4.1. Avigation Easement. The Owner shall, prior to issuance of the first building permit for the Project, execute an avigation easement in a form approved by the City Attorney, which shall be recorded with the Recorder of the County of Orange. The avigation easement shall prohibit any and all claims, actions or lawsuits of any kind or type for nuisance or interference with use and enjoyment of the underlying Property or the Project including but not limited to noise, sound, vibration, Rimes, fiiel particles, dust, discomfort or other environmental effects incident to aircraft operations as well as any inconvenience or annoyances caused by the operations of the John Wayne Airport (SNA). The avigation easement shall grant the right to enter or penetrate into or transmit through the airspace above, on or in the vicinity of the Property for the unobstructed use, passage or operation of all types of aircraft and the right to create or generate all things and consequences to the Property that may be, or may be alleged to be, incident to or resulting from the use of said Airspace and any and all related aircraft and airport operation. The City shall be the benefited party in the avigation easement, but said easement shall be assignable by the City to a third party, including but not limited to John Wayne Airport (SNA), without consent of Owner. �.. - :...:: _ 75A9134 deemed to be a "fast food" "take t" restaurant if it r id@ sit do 7 di u i exelusive table sefviee for ordering and delivering meals and beverages, And- t1p. nut- ilia, . 4., sueh s r i ees, - 5.5 Future Discretionary Approvals, This Agreement shall not prevent the City, when considering requests for discretionary approvals not covered by Section 5.1 of this Agreement subsequent to the effective date of this Agreement, from applying new rules, regulations, and policies which are applicable to the Property, including but not limited to, changes in the general plans, specific plans, zoning, subdivision or building regulations, nor shall this Agreement prevent the City from denying or conditionally approving any subsequent applications for land use entitlements based on such existing or new rules, regulations, and /or policies; provided, however, that such new rules, regulations, and official policies are of general application to all development within the City and are not imposed solely with respect to the subject property. In addition, this Agreement shall not prevent the City from exercising its police power to protect the health, safety, and welfare of the public. This police power, exercised in accordance with Section 5.2 of this Agreement, is paramount to any rights or obligations created or existing between the parties. 5.6 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and /or environmental review, which are existing or may be revised or adopted during the term of this Agreement, shall apply to the development of the Property. 5.7 Amendments or Additions to Citywide Fee Programs. This Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees ") adopted by the City after the effective date of this Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, of and (3) are not imposed to either (a) mitigate, offset or compensate for Project impacts which were analyzed in the negative declaration prepared for the Project, or (b) duplicate any project design features conditions of approval, Agreements, or mitigation measures contained in the Development Plan or this Agreement. The current entitlement fees shall be locked in as of the date of this Agreement, and there shall be no additional entitlement fees for the Project. However, building permit fees, including fees for now permits required after the date of this Agreement, will not be locked in at any rate, but rather will be the amount at the time of putting building permits. Any deferral of development impact fees will only be allowed in accordance with Santa Ana Ordinance No. NS-2814 adopted by the Santa Ana City Council on February 22, 2011. 5.8 Development, Construction and Completion of Work of Public Art. In consideration for the extraordinary and significant benefits set forth in this Section, the Owner has been legally vested under paragraph Section 5.1 with regard to the zoning, permitted uses e€ land, density, height, setback, design, size of structure and intensity of use of the Proper�ty.; Owner shall include within the Project at a prime location visible to the public, a single or 75k- -135 grouped permanent work of public art (the "Public Art "). The Public Art shall conform in all respects to Exhibit C of this Agreement. Facilities specified in seetie Section 5.8.1 below must be designed and/or constructed prior to the triggering event. In the event that Owner fails to meet either of the triggering events set forth in seetio Section 5.8.1., below, Owner shall pay the City an arnount equivalent to one -half of one percent (0.5 %) of the estimated value of its Project, as conclusively specified by the Executive Director of the City's Planning and Building Agency, to be used by the City to acquire other public art for other locations within the City, in which case, Owner will not be considered in default under this Agreement. 5.8.1 Work of Public Art. Items to Be Complete Triggering Event (Rg., New Use or New Area) 1, Submit Final Design of Public Art. Prior to issuance of first Building Permit or five Final design must conform to Public Art (5) years from the effective date of this Agreement, Plan. whichever comes first. 2. Install Public Art. Prior to City's issuance of the first Certificate of Occupancy for any building or structure, or the expiration of the term of this Agreement, whichever comes first. With respect to the Final Design, Owner shall complete all constriction and development, shall submit all plans, drawings, and other documents, and perform all of its obligations under this Agreement within the times specified above. During periods of construction of the work of public art encompassed in the Public Art Plan, Owner shall submit to the City a written report of the progress of the construction when and as reasonably requested by the City. The report shall be in such form and detail as may be reasonably required by the City, and shall include a reasonable number of construction photographs (if requested) taken fiom the last report by Owner. Development scheduling or date or times of performance maybe subject to revision from time to time if first mutually agreed to in writing. Such revisions do not constitute amendments requiring further notice and public hearing. 5.8.2. Inclusionary Housing Fee. Owner shall pay to the City the sum of $3,000.00 per residential unit as a condition of issuance of each building permit. This fee shall annly to all units developed on the existine three and one -tenth (3.1) P-ross acres. This fee shall be used by the City for planning (including but not limited to preparation of one or more elements of its general plan or for zoning amendments), conceptual design, final design, bid preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill; and/or construction of new or substantially rehabilitated existing affordable housing in the City. Alternatively, Owner may at any time cease making such payments if it enters into an agreement with the Community Redevelopment Agency or the Community Development Agency of the City of Santa Ana to either (i) newly construct or rehabilitate and sell or lease, with affordability covenants as required by State law, 42 inclusionary housing units totaling fifteen ep rcent (fit 75A1136 being --15 %) of the housing units proposed for the Project as provided by Health & Safety Code section 33413(b)(2)(A)), and/or (b) provide for up to sixty percent (60 %) of these inclusionary units to moderate income residents at its Project, consistent with Health & Safety Code section 33413(b)(2). 5.8.3 No Redevelopment Subsidy. The Owner shall not be entitled to request or accept any agreement with the Santa Ana Community Redevelopment Agency for economic, debt service payments, or other assistance for the development of the Project. Failure to comply with this provision shall be deemed in and of itself to constitute a failure to in good faith comply with terms or conditions of this Agreement pursuant to the terms of Government Code section 65865.1. 5.8.4. In -Lieu Park Development Fee. The Owner shall pay an in -lieu park development fee amount equivalent to the Park Dedication requirement r d in the •+ plan review le#e,• for . The fee shall be assessed at the value of $35.50 per square foot of area to be dedicated pursuant to the standard established by section 34 -204 et seq. of the Santa Ana Municipal Code, as specified in said City's site plan review letter; provided, however that the fee may be increased yearly beginning twelve months following the effective date of this agreement, by the average rate of increase in land costs in the City of Santa Ana, as that increase is established by the "Construction Cost Index -Los Angeles," published by Engineering News- Record, or substitute index chosen by the Executive Director of Planning and Building should that Index be discontinued. The fee shall be paid prior to issuance of each building permit. The City shall use said fees for new parkland, capital improvements at existing parks, and deferred maintenance at existing parks (up to a maximum of fifty percent of amount of the fee), and seventy five percent (75 %) of said fees shall be utilized by the City in the Quadrant of the City (as set forth in the City's Park A &D Fee program) in which the Project is located. If not used or appropriated this fee shall be returned to Develope Owner, consistent with the provisions of (and subject to the exceptions contained within) the California Mitigation Fee Act, Government Code § 66000 et seq. 5.8.5 Covenants, Conditions, and Restrictions. Covenants, Conditions, and Restrictions (CC &R's) must be provided and approved by the Planning and Building Agency's Executive Director for the project prior to the issu nee of the first building „ °,..,,:t recording of the Final Map. Such CC &R's must contain at a minimum, the following: (1) No more than four residents per unit, except that for three- bedroom units, there shall be no more than five residents per unit. (2) � � 0 ewtent pefmitted by law, all r-esidei-Aial and live work unit (32) No home occupancy shall be permitted in a unit, except in accordance with section 41 -192 et seq. of the Santa Ana Municipal Code. {43) Assignment of repair of perimeter walls and common areas, including landscaping, will be specified in the CC &R's in the event of 75A2137 damage. ( -54) Disclosure and release: CC &R's shall provide notice to prospective owners of the urban character of the City and this area, including but not limited to the permitted uses of the property and buildings in the immediate area of the development (e.g., MacArthur Place, Griffin Towers, and surrounding property zoned and/or devoted to commercial use), and shall provide a release of all claims against the City which may arise from or relate to the disclosed matters. (65) Terms and Content: CC &R's are to be in effect in perpetuity. ii. Any proposed modifications to the CC &R's will require approval by the Agency's Executive Director. iii. CC &R's shall provide a significant financial penalty (the .hied by law) that shall be imposed by the Home Owner's Association to any member who violates these provisions If the Project requires a conversion from rental units to condominiums at the time of recording the Final Map, the Owner must abide by and comply with the requirements and conditions of Santa Ana Municipal Code sections 34 -331, et seq., pertaining to residential conversion projects prior to recording of the Final Map. 5.9 Responsibility Pfor Costs of Work 9of Public Art. The City and Owner agree that Owner shall be responsible for all costs associated with the design, construction, maintenance and repair of the work of public art provided for in the Public Art Plan. 5.10 Moratoria. Moratoria enacted by the City for the public health, safety, and welfare, which are imposed on the Properly or Project, shall toll the time periods set forth in this Agreement. 5.11 City to Receive Contract Documents. Owner shall furnish City, upon written request, copies of contracts and supporting documents relating to the work of public art. 5.4412 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of those approvals, and in no event shall such conditions be affected by the termination, cancellation, rescission, revocation, or default or expiration of this Agreement. 5.4-413 Compliance Wwith Governmental Requirements. Subject to and as otherwise provided by the terms of Section 5.1 above, Owner shall carry out the design, 75A3138 construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisions of the City and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et .seq., Government Code § 4450 et seq., and the Unruh Civil Rights Act, Civil Code § 51 et serf. ( "Governmental Requirements "). 6. ANNUAL REVIEW, 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by Owner with the terms of this Agreement. Pursuant to Government Code Section 65865. 1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of the Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with the Agreement after armual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter ") stating that based upon information known or made known to the City Council, the City Planning Commission and/or the City Planning Director, the Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 6.3 Failure of Periodic Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this Agreement shall not constitute or be asserted by any party as a breach of the Agreement by Owner or City. 7. DEFAULT. 7.1 Events of Default. Property Owner is in default tinder this Agreement upon the happening of one or more of the following events or conditions: (1) If a warranty, representation, or statement made or furnished by Property Owner to the City in conjunction with the Project is false or proves to have been false in any material respect when it was made; (2) A finding and determination made by the City following a periodic review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Property Owner has not complied in good faith with one or more of the terms or conditions of this Agreement; 75k-1 39 (3) Failure to comply with Governmental Requirements regulations; (4) Any other event, condition, act, or omission of Owner, or of its officers, agents, employees, consultants, special counsel, or representatives, which materially interferes with the intent and objectives of this Agreement. 7.2 Procedure upon Default. (1) Upon the occurrence of an alleged default, City shall give Property Owner (the "defaulting party ") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the manner in which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day cure period without cure, City may terminate or amend this Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be cured within said thirty (30) day cure period, City may terminate or amend this Agreement in accordance with the procedure adopted by the City should at any time Owner fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. (2) City does not waive any claim of defect in performance by Property Owner, if on periodic review the City does not propose to modify or terminate this Agreement. (3) Non - performance shall not be excused because of a failure of a third person. (4) An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Property Owner, shall be sufficient to terminate this Agreement and a hearing on the matter shall not be required. (5) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Property Owner, unless such an activity constitutes a breach of this Agreement by the City, or the City undertakes such an activity which renders impossible Owner's performance of its obligations or exercise of aU of its rights vested under this Agreement. (6) All other remedies at law or in equity which are not inconsistent with the provisions of this Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Property Owner be entitled to any damages against City upon lawful termination of this Agreement. 7.4 Institution of Legal Action. In addition to any other rights or remedies, 75A5140 either party may institute legal action to cure, correct, or remedy any default or breach, to specifically enforce any covenants or Agreements set forth in the Agreement, or to enjoin any threatened or attempted violation of the Agreement; or to obtain any remedies consistent with the purpose of the Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 8. ENCUMBRANCES AND RELEASES ON PROPERTY. 8.1 Discretion to Encumber. This Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion of the Property or any improvement on the Property by any mortgage, deed of trust, or other security device securing financing with respect to the Property or its improvement. 8.2 Entitlement to Written Notice of Default. The mortgagee of a mortgage or beneficiary of a deed of trust encumbering the Property or any part thereof and their successors and assigns shall, upon written request to City, be entitled to receive from City written notification of any default by Owner of the performance of Owner's obligations under the Agreement which has not been cured within thirty (30) days following the date of default. Cfty may modify or add to the provisions of this Section 8.2 at the request of any institutional lender or pension trust providing financing so long as such requested modifications or additions pertain only to the rights of a Mortgagee hereunder and are not otherwise inconsistent with the terms of this Agreement. 8.3 Releases. City agrees that upon written request of Property Owner and payment of all fees and performance of the requirements and conditions required of Owner by this Agreement with respect to the Property, or any portion thereof, City may execute and deliver to Owner appropriate release(s) of further obligations imposed by this Agreement in form and substance acceptable to the Orange County Recorder or as may otherwise be necessary to effect the release. 9. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory; "may" is permissive. If there is more than one signer of this Agreement, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This Agreement constitutes the entire understanding and Agreement of the parties with respect to the matters set forth in this Agreement. This Agreement supersedes all negotiation or previous Agreements between the parties respecting this Agreement. All waivers of the provision of this Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Within ten (10) days following the effective date of this Agreement, a copy of this Agreement shall be recorded in the Official Records of Orange County, California. Upon the completion of 75A6141 performance of this Agreement or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, California. 9.3 Project as a Private Undertaking. It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this Agreement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this Agreement are part of this Agreement. 9.5 Captions. The captions of this Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement. 9.6 Consent, Where the consent or approval of a party is required in or necessary under this Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The parties shall cooperate with, deal with each other in good faith, and assist each other in the performance of the provisions of this Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this Agreement liras have been entered into or the action or inaction of any other affected governmental jurisdiction prevents or precludes compliance with one or more provisions of this Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this Agreement. The parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an Agreement on the effect of such federal or state law or regulation upon the Agreement, the matter shall be scheduled for hearing before the City Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.10 Severability. If an, term, erm, provision, condition, or covenant of this Agreement, or the application thereof to any party or circumstances, shall to any extent be held 757- -142 invalid or unenforceable, the remainder of the instrument or the application of such term, provision condition or covenants or the application of such tern, 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 thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 9.11 Counterparts. This Agreement has been executed in one or more counterparts each of which has been deemed an original but all of which constitute one and the same instrument. 9.4 -912 Recording. The City Clerk shall cause a copy of this Agreement to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the effective date of this Agreement. 9.13 Estoppel Certificate. Either party may, at any time, and from time to time, deliver written notice to the other party requesting such party to certify in writing that, to the knowledge of the certifying party, (i) this Agreement is in frill force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified either orally or in writing, or, if so amended, identifying the amendments, and (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. The City Manager of the City shall have the right to execute any certificate requested by Owner hereunder. The City acknowledges that a certificate hereunder may be relied upon by transfers, Mortgagees, or other parties. 75A8143 IN WITNESS WHEREOF, this Agreement has been executed by the City of Santa Ana and by Property Owner. Dated this _ day of , 20 Approved as to Form: LM JOSEPH A. STRAKA Interim City Attorney THE CITY OF SANTA ANA 11A PAUL M. WALTERS Interim City Manager VDC AT THE MET, LLC, A California Limited Liability Company .A Ryan Ogulnick Its Manager 75A-1 44 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of , 200_, before me, a Notary Public in and for said state, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and official seal. NOTARY PUBLIC STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of , 200_, before me, a Notary Public in and for said state, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the of ., the that executed the within instrument, known to me to be the person who executed the within instrument on. behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its Board. WITNESS my hand and official seal. NOTARY PUBLIC 75A -145 EXHIBIT "A" Property Legal Description REAL PROPERTY IN THE CITY OF SANTA ANA COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL A: LOT 1 AS SHOWN ON EXHIBIT `B" OF LOT LINE ADJUSTMENT NO. 98.001 IN THE CITY Or SANTA ANA, COUNTY OF ORANGE STATE OF CALIFORNIA, RECORDED APRIL 9 1998 AS INSTRUMENT NO. 19980210009 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL B: A NON - EXCLUSIVE RECIPROCAL EASEMENT FOR VEHICULAR INGRESS, EGRESS AND ACCESS AS SET FORTH IN THAT CERTAIN DECLARATION AND GRANT OF EASEMENTS RECORDED APRIL 9 1998 AS INSTRUMENT NO. 19980210011 AND IN THAT CERTAIN AMENDED AND RESTATED DECLARATION AND GRANT OF EASEMENTS RECORDED APRIL 15 1998 AS INSTRUMENT NO. 19980222444, AND IN THAT CERTAIN AMENDED AND FULLY RESTATED RECIPROCAL EASEMENT AGREEMENT RECORDED NOVEMBER 11 2004, AS INSTRUMENT NO. 2004001056213, ALL OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN PARCEL A HEREINABOVE DESCRIBED. PARCEL C: AN EASEMENT FOR THE CONSRUCTION INSTALLATION MAINTENANCE AND REPAIR OF A STORM DRAIN AND RELATED IPROVEMENTS, AS SET FORTH IN THAT CERTAIN STORM DRAIN EASEMENT AND MAINTENANCE AGREEMENT RECORDED APRIL 18 2005 AS INSTRUMENT NO. 2005000291720 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. 75A -146 EXHIBIT "B" Property Site Plan To be inserted 75A -147 EXHIBIT "C" Public Art Plan Public art valued at one -half of one percent (0.5 %) of the total Project building permit valuation is required. Public art shall be comprised of a single art piece or grouped art pieces to be placed at a final location to be determined as specified in pafagmph section 2.5 of this Agreement. The public art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, and /or capture or reinforce the unique character of the new place. A comprehensive Public Art Plan indicating compliance with this requirement, and which proposes specific pieces of art for specific locations or applications, shall be submitted to the Planning Commission prior to the completion of the project's first phase. All public art approved by the Planning Commission in the Public All Plan shall be completely installed as provided in paw section 5.8.1 of this Agreement. 2. All should be sited to complement features such as plaza or architectural components so that the art is an integral part of the development site. Public art should be constructed using durable materials and finishes including but not limited to stone or metal. 4. No art piece provided pursuant to the public art requirement shall include advertising of any type, including but not limited to products, services or businesses. 5. All public art provided pursuant to the public art requirement shall be properly maintained at all times, be free of any graffiti and shall not incorporate any flashing or distracting form of illumination. 6. All art pieces approved and installed pursuant to the Public Art Plan shall remain on the project site and may not be removed without the approval of the Planning Commission. 7. Expenses Not Allowed from Art Allocation i. Expenses to locate the artist (e.g., airfare for artist interviews, etc.) ii. Architect and Landscape Architect fees. iii. Landscaping around a sculpture that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by the artist, and ornamental enhancements. iv. Utility fees associated with activating electronic or water generated artwork. 75A -148 v. Lighting elements not integral to the illumination of the art piece. vi. Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. vii. Dedication ceremonies, including sculpture unveilings or grand openings. 75A -149 EXHIBIT "D" Cooperative Agreement for Off -Site Improvements 75A -150 COOPERATIVE AGREEMENT FOR OFF -SITE 1MPROVEMENTS THIS Agreement is entered into this day of , 2005, by and between the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INC., a California, non -profit publio benefit and federal 501 (e)(3) corporation ( "Sandpointe!% the NEXUS DEVELOPMENT CORPORATIONICENTRAL DIVISION, INC. a California corporation and The Grand Plan 2, LLC, a California Limited Liability Company (collectively referred to herein as "Nexus "), COASTAL RIM PROPERTIES, INC., a California corporation ( "Genova Commons "), the COMMUNITY REDEVFLOPMENT AGENCY OF THE CITY OF SANTA ANA, apublic body corporate and politic (the "Agency "), and the CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and lays of the State of California (the "City") WITNESSETH A. Nexus has proposed constructing at Hutton Center a five level residential condominium project, two 23- residential level condominium high -rise and one 24- residential level condominium.(for a total not to exceed 835 condominium units), together with ancillary retail not to exceed 14,000 square feet (the "Nexus Project"), B. Geneva Cortunons has proposed constiveting at the northeast corner of MacArthur Boulevard and Imperial Promenade an approximately 278 -unit condominium project consisting of an 18- residential level high rise project and an eight -story building, together with ancillary retail (the "Geneva Commons Project'). C. Sandpointo is a non -profit corporation that serves as a conduit between the Sandpointe Neighborhood ("Neighborhood") and outside community and political interests. Sandpointe Neighborhood is a residential neighborhood of single family and some multi- family homes in die southeast portion of Santa Ana. The SandpointeNoighborhood consists of approximately 800 residences. Sandpointe does not have the authority to bind any individual resident ofthe SandpointeNeighborliood. D. The Agency is a community redevelopment agency, as that teen is defined in California Health & Safety Code § 33100. In 1982, the Agency created the South Main Redevelopment Project Area ( "Project Area "), and Nexus and Geneva Commons are located within the Project Area. E. Sandpointe has identified eortain physical improvements needed in the area of the Neighborhood that am necessitated by or would in some way offset the impact of the two developmdnt projects. Nexus and Geneva Commons desire to contribute towards the cast and/or construction of those improvements to the Sandpointe neighborhood in addition to and to EXHIBIT D Ordinance No. NS -2660 t Page 30 of 61 75A -151 supplement the mitigation measures and conditions of approval imposed by the City of their respective developments. Those improvements are set forth in Exhibit A, attached hereto and made a part hereof by this reference ( "Improvements "). F. The Agency is willing to assist in the flinding of the improvements but only from a portion of the tax increment actually generated by the Nexus and Geneva Commons Projects and to Hurd specified improvements that would reduce blight and benefit the Project Area. G. The City's participation in this Agreement is limited to coordination of funding an(/or construction of certain, herein specified publicly owned improvements. H. Nexus has agreed to constrict some of the improvements, and pay for the construction of others, as more fully set forth below ("Nexus Improvements "). I, Geneva Commons has agreed to pay for a portion of the Nexus Improvements, NOW, THEREFORE, the patties hereto do mutually agree as follows; SCOPE OF WORK A. Nexus shall construct mid/or Rrsd the improvements identified as "Nexus Improvements" in Exhibit A hereto according to the schedule set forth in Exhibit B to this Agreement, attached hereto and incorporated herein by this reference, Nexus shall be entitled to full use of the funds deposited in the Nexus Escrow to undertake the Nexus Improvements. B. In consideration for Nexus' agreement to construct and/or fluid the Nexus Improvement, Geneva Commons agrees to contribute a sum equal to its pro -rata share ofresidential units between itself and Nexus (which is currently twenty -five percent (25 %) pursuant to those numbers set forth in sections A and B of the Recitals above) of the cost of the Nexus Improvements, towards the cost thereof payable at the time called for below. Notwithstanding the foregoing, if Nexus has-not executed this Agreement prior to the date this Agreement becomes binding on Geneva Commons (which the parties agree shall conclusively deemed to be the first day upon which this Agreement has been executed by Geneva Commons, the City; thcAgency and Sandpointe), then Geneva Commons pro -rata share contribution to the Nexus Escrow shall be conclusively fixed at twenty-five (25 %) regardless of the actual number of residential units approved for it and Nexus. C. If the entire Nexus and Geneva Commons Projects are constructed, Agency shall cause the construction of the improvements identified as "publicly -Owned Improvements" in Exhibit A hereto according to the schedule set forth in Exhibit C to this Agreement, attached hereto and incorporated herein by this reference. The patties acknowledge and agree that the total cost of the publicly owned improvements, Including studies, design and overhead , shall not exceed Five Million Dollars ($5,000,000.00), EXHIBIT A 2 Ordinance No. NS -2680 Page M of 51 75A -152 2. CO1v ENSATION AND METHOD OF PAYMENT A. Nexus shall, within sixty (60) days of execution of this Agreement, open an escrow account at First American Title Insurance Company, 2 First American Way, Santa Ana, California, or an equivalent escrow company approved in advance by Geneva Commons and Sandpointe, for deposit of funds to be used to pay for lire Nexus Improvements (referred to herein as the "Nexus Escrow' ). B. Sandpointe shall deposit $1,000.00 into the Nexus Escrow on the Escrow Submission Date no later than the date the of the first payment made pursuant to paragraph 2.D. of this Agreement, C. Prior to the deadline specified in paragraph 2.1), of this Agreement, Nexus and Geneva Commons shall meet and confer in good faiths to agree upon the estimated cost of the Nexus Improvements. If, at ally time, either Genova Commons or Nexus determines that such agreement is not possible, then the objecting party shall submit its dispute in writing, together with any evidence upon which it relies to the Executive Director of the City's Public Works Agency and the other party , Within fifteen (1 S) days of its receipt of said notice, the non - objecting party shall then have fifteen (15) days to submit any response it has to the City and the objecting party. The Executive Director of the City's Public Works Agency or designee shall then, within thirty (30) days of receipt of the response, if any, or the expiration of said deadline, hnform both Geneva Commons and Nexus in writing of the final determination of the estimated total cost, which all parties agree shall be conclusive and binding upon both Nexus and Geneva Commons. Thereafter, Nexus and Geneva Commons shall deposit their respective shares of the estimated cost ofthe . Now Improvements as set forth in paragraph I.B. of this Agreement, less $1,000.00, into the Nexus Escrow no later than the date specified in paragraph 2.D, of this Agreement. D. Nexus shall pay into the Nexus Escrow no later than (i) the date the first building permit is issued by the City for the Nexus Project, or (ii) a date ninety (90) days after the issuance of entitlements to Nexus, provided no litigation or referendrnn petition challenging Nexus has been filed and served on the City, whichever comes later. Geneva Commons shall pay into the Nexus Escrow no later than (i) the elate the first building permit is issued by the City for the Geneva Commons Project, or (ii) a date ninety (90) days after the issuance of entitlements to Geneva Commons, provided no litigation or referendum pe tition challenging Geneva Commons has been filed and served on the City, whichever comes later. EXHIBIT D Ordinance No. NS -2680 Page 32 of tit 75A -153 E. The Agency shall pay the City its cost incurred by the City for the Publicly - Owned Improvements set forth in Exhibit A to this Agreement; provided, however that total dommitment by the City and Agency toward the Publicly -Owned Improvements shall not exceed FIVE MILLION DOLLARS ($5,000,000.00), If the items set forth as Publicly -Owned Improvements in Exhibit A are found to cost more than this sum, then the Agency shall, in the exercise of its sole and absolute discretion, limit or eliminate Publicly -Owned Improvements set forth in Exhibit A; provided, however, that the Agency shall proceed with the Publicly -Owned improvontents in the order as set forth in said Exhibit. NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENTS A. Nexus shall prepare and submit construction drawings and related documents for items listed on Exhibit A to the City for review (including, but not limited to, architectural review) and written approval as and at the times established in the Schedule of Performance set forth in Exhibit B to this Agreement. The constriction drawings and related documents shall be submitted in two stages : - (i) the Preliminary Site Plans And (ih) Final Site Plans, B. During the preparation of all drawings and plans, City staff and Nexus shall hold regular progress meetings to coordinate the preparation of, submission to, and review of . construction plans and related documents by the City. The City staff and Nexus shall communicate and consult informally as frequently as is necessary to insure that tho formal submittal of any documents to the City can receive prompt and speedy consideration. C. Any revision or correction of plans required by the City shall be deemed approved by the Agency, Geneva Commons and Sandpointe. D. Neither the City, the Agency, Sandpointe or Geneva Commons shall have any ownership interest in, or any right to use, the Preliminary Site Plans or the, Final Site Plans submitted by Nexus, nor shall the City, the Agency, Sandpointe or Geneva Commons authorize the right to use any such plans or drawings to any person or entity, APPROVAL OF NEXUS PLANS, DRAWINGS AND RELATED DOCUMENTS A. The City shall have the right of reasonable review (including, but not limited to, architectural review) of all plans, drawings and related documents including any proposed changes therein, The City shall approve or disapprove such plans, drawings, and related (and any proposed changes therein) within the times established in the Schedule of Performance set forth in Exhibit B hereto. Such approval shall not be unreasonably withheld. D. Any disapproval shall state in writing the reasons for disapproval. The City shall have the right to disapprove, in its reasonable discretion, any of the Final Plans if the Final Plans do not conform to the Approved Plans, the approved Preliminary Plans or do not conform to Exhibit A to this Agreement, or are incomplete. EXHIBIT D a Ordinance No. NS -2880 Page 33 of St 75A -154 C. The City shall state in writing the reasons for disapproval of the Final Plans within sixty (60) days of receipt of copies of such Final Plans. Failure to respond within this sixty (60) day period shall not be grounds for resubmittal. D. Nexus, upon receipt of a notice of disapproval, shall revise such portions of the plans, drawings or related documents in a manner that reasonably satisfies the reasons for disapproval and shall resubmit such revised portions to the City as soon as possible after receipt of the notice of disapproval. plans, drawings, and related documents receiving City approval shall not be subsequently disapproved. Nexus shall ensure that all of its plans, drawings and related documents comply with all Government Requirements. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF NEXUS IMPROVEMENTS a. Nexus shall construct and/or fund, utilizing the Nexus Escrow, the improvements hi conformance with Exhibit A to this Agreement and the approved Final Plans. To the extent-that the cost of the Nexus Improvements, constructed in conformance with Exhibit A to this Agreement and the approved Final Plans, exceeds the fiends in the Nexus Escrow, Nexus and Geneva Commons shall be solely responsible for said costs, with each responsible for any additional cost to the same percentage as is set forth in paragraph 13, of this Agreement. Nexus shall complete or fluid, as the case may be; the construction of the improvements in conformance with the schedule set forth in Exhibit B to this Agreement. b. The parties acknowledge and agree that the Block Wall identified as Itern No, I on Exhibit A will be constructed on the properties of dozens of individual homeowners in the Sandpointe neighborhood, none of whom are parties to this Agreement, The parties agree to use their best efforts to obtain permission of each of these individual property owners to constrict this Block Wall and to permit the City to permanently maintain the climbing ivy along the exterior of the wall, However, it is the parties understanding and intent that should any property owner retbse to agree to permit the construction and/or exterior ivy maintenance {"hold outs"), that the Block Wall will be constructed regardless of any hold -outs, and that Nexus shall construct the Block Wall in such fashion as to join the Block Wall to existing wall segments owned by hold outs acid minimize any negative aesthetic impact caused by such hold outs. Nexus agrees to hold Sandpointe and its officers, directors, employees and agents harmless from any claim by any and all property owners including such hold outs arising out of the construction of the Block 'Wall in which Sandpointe, or its officers, directors, employees or agents are named. Nexus shall be permitted to select counsel to defend Sandpointe at the expense of Nexus. In the event of a potential conflict of interest between Sandpointe and Nexus, Sandpointe shall have the right to select independent counsel. All fees mid costs of independent counsel selected by Sandpointe for defense of any claim arising out of or relating to any claims described herein shall be paid by Nexus on behalf of Sandpointe. EXHIBIT b Ordinance No. NS -2880 S Page 34 of 81 75A -155 6. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS Upon the issuance of a certificate of occupancy pursuant to the California Building Code foir (i) all residential units in a minimum of two of the three high -rise towers in the Nexus Project, and (ii) all residential units in the Geneva Commons Project, the Agency shall give the City a notice to proceed to design and construct the PubliolyOwnvd Improvements as set forth in Exhibit A, If only a portion of the residential. units have been constructed within five (5) years of the date of the Commencement Date, then the Agency shall only give the City a notice to proceed with a pailial list of items as set forth in Exhibit C to flits Agreement. The Agency's obligation to pay for the Publicly -Owned improvements, and the City's obligation to complete these Publiely -Owned Improvements, or any part thereof, shall be limited by the Agency's ability to fund said work from the project- specific tax increment generated'by the Nexus Project; provided, however, that City and Agency shall construct item no, La. on the list of Publioly -Owned Improvements in Exhibit A to We Agreement regardless of ifte project - specific tax increment received by the Agency. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY OWNED iMPROVEMBNTS a. City shall construct the Publicly -Owned improvements In conformance with the schedule set forth in Exhibit C to this Agreement and the approved Final Plans; provided, however, that the Agency and City shall have no obligation once the cost of the Publicly Owned Improvements exceeds Five Million Dollars ($5,000,000.00). If the cost of the Publicly -Owned Improvements, including all design, administrative and eonstruction'costs exceed $5,000,000.00, then the City shall construct only that portion of the Publicly Owned Improvements as specified in Exhibit C in the exercise of the Agency's sole and absolute discretion. b. City shall, at the conclusion of the plant establishment phase specified in Exhibit B, additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of the block wall, referenced in item no. I on BxNbit A hereto, but the City's obligation to maintain the climbing vines shall only apply to those property owners who execute a fagade easement with the City In a form approved by the City Attorney permitting the City to maintain said climbing vines and indemnifying the City from any liability caused by said climbing vines and/or irrigation. Sandpointe shall be responsible for obtaining signatures from these individual homeowners. LIABILITY AND INDEMNIFICATION DURING CONSTRUCTION; BODILY INJURY AND PROPERTY DAMAGE INSURANCE A. From and after the Effective Date, Nexus and Geneva Commons agree to and shall Indemnify and hold Agency, City and Sandpointe, and their respective officers, directors, agents and employees harmless from and against all damages to property or injuries to or death of any person or.persons, including employees or agents of Agency or City, and shall defend, indemnify EXHIBIT D 6 Ordinance No. NS -2080 page 35 of 61 75A -156 and save Agency, City and Sandpointe, and their 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 of or by anyone whomsoever, in any way resulting fzonr the negligent or wrongful acts or omissions of Nexus or Oeneva Commons or their respective employees, agents or subcontractors. For itself and no other, Sandpointe agrees to hold harmless Agency, City and their respective officers, directors, agents and employees from and against all damages to property or injuries to or death of any person or persons, in any way resulting from the negligent or wrongful acts or omissions of Nexus or Geneva Commons, or their respective employees, agents or subcontractors. This Agreement shall not be intorpreted or construed to obligate Sandpointe, its officers, directors or agents, or the Neighborhood to defend, indemnify or to answer in any way for the, Agency the City or their respective officers, directors, agents or employees for such claims, 13. Prior to the commencement of construction, Nexus br any other party working within the real property of the City or Agency, shall obtain at its solo cost and file with the City and Agency, and maintain for the period covered by this Agreement, a policy or policies of liability insurance or a certificate of such insurance, consistent with this Agreement, naming Agency, the City and Sandpointe, their officers, directors, agents, and employees, as insured or additional insured, which provides coverage not less than Qrat provided in the form of a comprehensive general liability insurance policy against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of operations of Nexus, its officers, directors, agents, or employees. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($1,000,000) combined single limit, or its equivalent. Said policy or policies shalt also contain a provision that no termination, cancellation, or change of coverage of insured shall be effective until after thirty (30) days notice thereof has been given in writing to City and Agency. Nexus shall give to Agency and City prompt and timely notice of claim made or suit instituted arising out of Nexus operations hereunder. Nexus may procure and maintain, at its own cost and expense, any additional kinds and amounts of insurance, which in its own judgment may be necessary for its proper protection in the prosecution of the work. All insurance policies shall be written by responsible and solvent insurance companies and shall include an additional insured endorsement in substantially the form of Exhibit D, attached hereto and incorporated herein by this reference COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Nexus shall carry out the design, construction, and operation of the Nexus Improvements in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City or Nexus, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, meohanical EXHIBIT D Ordinance No. NS 2680 7 Page 36 of 61 75A -157 and electrical codes, and all other provisions of the City and its Municipal Code, and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disability Act, 42 U.S,C. § 12101 et seq., Government Code § 4450 et seq., and the Umth Civil Rights Act, Civil Code § 51 et seq. C Govenunental Requirements "), 10. DEFAULTS AND REMEDIES If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting parry shall be entitled to cure the default in accordance with this section. The, injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of*fault. Tire defaulting party must, within thirty (30) days, following service of said notice, continence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. 11. INSTITUTION OF LEGAL ACTIONS Subject to the, provisions of Section 13. hereof, in addition to any other rights or remedies, either party may institute, legal action to cure, correct or remedy any default to recover damages for any default, or to obtain any other remedy consistent wish the purpose of this Agreement. 12, APPLICABLE LAW 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 Call forma 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. All 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. 13. RIGHTS AND REMEDIES ARE CUMULATIVE Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the patties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for tiie same default or any other default by the other patty. EXHIBIT D R Ordinance No. NS -2680 Page 37 of 61 75A -158 14. DAMAGES In the event that the Agency or City is liable for damages to Nexus, Sandpointe and/or Geneva Commons, such liability shall not exceed costs incurred by Nexus, Sandpointe and/or Geneva Commons in the performance of this Agreement and shall not - extend to compensation for loss of future income, profits or assets. 15, NOTICES, DEMAND AND COMMUNICATIONS Formal notices, demands and communications between the parties shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the.principal offices of the Agency and the Developer as designated below. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this section, City: City of Santa Ana Planning and Building Agency 20 Clvie Center Plaza, M-20 Santa Ana, CA 92702 Attn; Steve (larding, Executive Dircctor Phone: (714) 667 -2700 Pax: (714) 973 -1461 with copy to; City Attorney 20 Civic Center Plaza, M -29 Santa Ana, California 92702 Agency: Community Development Agency City of Santa Ana 20 Civic Center Plaza, M -25 Santa Ana, CA 92702 AM, Patricia C. Whitaker, Executive Director Phone: (714) 647 -5360 Fax: (714) 647 -6549 with copy to: Agency General Counsel Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza, M -29 Santa Ana, California 92702 EXHIBIT D Ordfnance No. NS -2680 9 Page 36 of tit 75A -159 Sandpointe: Sandpointe Neighborhood Association, Inc. P.O. Box 27122 Santa Ana, California 92799 Attention: Bob Black Nexus: Nexus Development Corporation/Central Division, Inc. The Grand Plan 2 1 MacArthur Place, Suite 300 Santa Ana, California 92707 Attention: Cory W. Alder Geneva Commons: Coastal Rim. Properties, Inc. 139 Bast Alton Avenue Santa Ana, California 92707 Attention: Franco Mola A party may change its address by giving notice in writing to the other parties. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting, facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays hall be excluded. EXHIBIT D 10 ordinance No. NS -2680 Page 39 of tit 75A -160 16. EFFECTIVE DATE AND TBRM OF AGREEMENT This Agreement shall take effect from and after the date of adoption and approval by the City and the Agency pursuant to. official action of the governing bodies thereof and shall be effective until completion and acceptance of the Nexus - Improvements and Publicly -Owned Improvements: If Geneva Commons is approved by the City and Nexus is not, then Geneva Commons shall take over Nexus' obligations to construct a portion of the Nexus Improvements under this Agreement, but shall be required to (i) meet and confer with the Agency and Sandpointe, and using the order of the Nexus Improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constructed using Geneva Commons twenty-five percent (25 %) share of the estimated cost of the total Nexus Improvements, and (ii) the parties agree and acknowledge that all roforences herein to Nexus shall be deemed to be references to Geneva Commons. IfNexus is approved and Geneva Commons is not, then Nexus, the Agency and Sandpointo shall meet and confer in good faith, and using the order of the Nexus improvements specified in Exhibit A as a guide, designate which of the Nexus Improvements shall be constructed using Nexus seventy -five percent (75 %) snare of the estimated cost of the total Nexus Improvements. 17. COMMENCEMENT DATE . For purposes of this Agreement the terns "Commencement Date" shall refer to the period after issuance of City entitlements and shall be deemed to be a date ninety (90) days after the issuance of entitlements to Nexus and Geneva Commons (whichever comes later). The Commencement Date shall be tolled should a valid referendum petition be presented challenging either project, or timely litigation be filed and served challenging any ofthe entitlements, including approval pursuant to the California Environmental Quality Act. 18, INTEGRATION This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreement between the parties with respect to all or any the matters addressed heroin. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the parties, and all amendments hereto must be in writing and signed by the appropriate authorities of the parties, 19. ASSIGNMENT Nexus and Geneva Commons shall have the right to transfer or assign this Agreement, in whole, to any person, entity (public or private), partnership, joint venture, firm or corporation who is the owner of the real property referenced in the Recital hereto at any time during the term of this Agreement; provided, however, the rights of Nexus or Geneva Commons under this Agreement may not be transferred or assigned unless the written consent of the City. Council is first obtained and any transfer or assignment of the rights under this Agreement shall include in .EXHIBIT D Ordinance No. NS -2680 1 i Page 40 of 61 75A -161 the City grants written consent to transfer the rights, Nor shall the rights of Nexus or Geneva Commons hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the City Council. Stich transfer or assignrnent shall not relieve Nexus or Geneva Corwrions of any duty, obligation or liability to City without the consent of the City. During the term of this Agreement, any approved assignee or transferee of the rights under this Agreement sball observe and perform all of the duties and obligations of Nexus or Geneva Commons contained in this Agreement as such duties and obligations pertain to the Nexus or Geneva Commous. Any and all approved successors od assignees of Nexus or Geneva Commons shall have all of the same rights, benefits, duties, obligations, and liabilities of Nexus or Geneva Commons under this Agreement, If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to pexsons for development by them, Upon assignment or transfer of the rights of Nexus or Geneva Commons under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint and several. IN WITNESS '4MREOP, the parties hereto have executed this Agreement the date and year first above written, SANDPOI NTE MIGi-II3ORHOOD, ASSOCIATION, INC. e; NEXUS DEVELOPMENT CORPORATION/ CENTRAL DIVISION, INC, By Name Its 12 Ordinance No. NS -2680 Page 41 'of 61 75A -162 the City grants Nvritten consent to transfer the rights. Not shall tbo. rights of Nexus or Geneva Commons hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Banlcruptey Act, acid any such assignment or transfer shall be wholly void and of no force and effect unless such written consent thereto be obtained from the City Council. Such transfer or assignment shall not relieve Nexus or Geneva Commons of any duty, obligation or liability to City without the consent of the City. During the terns of this Agreement, any approved assignee or transferee of the rights undt<r this Agreement shall observe and perform all of the duties and obligations of Nexus or Geneva Commons contained in this Agreement as such duties and obligations pertain to the Nexus or Geneva Commons. Any and all approved successors and assignees of Nexus or Geneva Commons shall have all of the same rights, benofits, duties, obligations, and liabilities of Nexus or Geneva Commons under this Agreement; If the Property is subdivided,'any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them. Capon assignment or transfer of the rights of Nexus or Geneva Commons under this Agreement, the obligations of the assignor and the transferee or assignee shall be joint and several. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. SANDPOINTB NEIGHBORHOOD, ASSOCIATION, INC. By Name Its NEXUS DEVELOPMENT CORPORATION/ CBNTRAL DIVISION, INC. By Z"t-1 4z O Name Its Chdinance No. NS-2660 12 Page 42 of 61 75A -163 ATTEST: COTvIIyIU'NITY DEVELOPMENT AGENCY OF THE CITY UP SANTA ANA By Patricia B, Healy Patricia C. Whitaker Secretary of Agency Executive Director APPROVED AS TO PORM: Joseph W, Pletcher Agency General Counsel EXHIBIT D Ordinance No. NS -2680 14 Page 44 of 69 75A -164 EXHIBIT A OFF -SITE IMPROVEMENTS Block Wall a. Main Street between Murphy & Sunflower, and house located at 101 W. Murphy b. North side o #'Sunflower between Main & alley adjacent to four plexes, excluding sections of wall at corner of Main & Sunflower at rear of commercial building c. Plaster and paint with one color selected by Association d. $3,000 per house payment for repair /replacement of landscaping associated with wall improvements upon execution of Nexus right -of -entry for construction and exterior -wall maintenance easement. This payment shall be made by Nexus at the time the individual property owner executes the construction casement in favor of Nexus and permanent maintenance easement (for the climbing vines) in favor of the City. For any "hold outs" (as defined in paragraph 6.b. of this Agreement, Nexus shall make the $3,000 payment to Sandpointe in trust for each hold out, o. Remove and replace 16 sections of white concrete block wall in immediate area of MacArthur Boulevard and Flower Street, and paint with one color selected by Association. f. Remove and replace 4 sections of white concrete block wall along West Alton Avenue and paint with one color selected by Association. g. Nexus shall install climbing vines, species Identified by the City, along the outer edge of the wail, install irrigation to feed said climbing vines which shall be connected and metered by Nexus at the nearest City water supply, and shall reconstruct the sidewalk to the City's specifications after installation of the irrigation lines and block wall. h. Wall replacement specifications shall be established pursuant to paragraph 4 of this Agreement. i. Nexus shall maintain, and replace as necessary, the climbing vines during a ninety (90) day plant establishment phase following item no. 1.g. 2. Window Replacements a. Nexus shall provide $3,500 construction allowance per house for sound proof window replacements for up to 49 residential units located along Mali) Street and Sunflower Avenue behind the existing concrete wall to be replaced. The 49 residential units are identified in Exhibit A -I to this Agreement. b. Nexus shall assist Sandpointe in oblaining/preparing necessary construction bids, documents and permits. e. Allowance will be paid by Nexus to Sandpointe for any applicable home upon receipt of bona fide construction or material invoices. d. Allowance shall expire 12 months following the completion of the concrete wall EXHIBIT D t 5 ordinance No. NS -2844 Page 45 of tit 75A -165 replacement improvements. e. 'Window specifications shall be established pursuant to paragraph 4 of this Agreement. 3, Taft Elementary Loading Zone a. Nexus shall construct all improvements necessary to effectuate Definitive Easement Agreement between Santa Ana Unified School District, Nexus and South Coast Church. b , improvements to loading zone shall include driveway approaches, traffic lanes on site, striping, church building renovations, portable classroom relocations, computer lab on school and church properties, We. as provided for in plans included as part of Definitive Easement Agreement. 4. Fay City $200,000 for City to implement a Neighborhood Traffic Management Plan ( "NTMP") to mitigate changes in traffic patterns or increased out through traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointo Neighborhood. NTMP costs shall include traffic studies, staff time to process neighborhood traffic plan, and the consttuction of appropriate traffic calming devices, including but not limited to semi- diverters, diagonal diverters, and street olosures. The implementation of the NTMP shall be pursuant to procedures adopted by the City Council. 5. Nexus shall pay the City the Rill cost (sec ]exhibit 13) for the installation of a Traffic Signal at the intersection of MacArthur Boulevard and Birch Street, Pn flely -Owned Imnrnvamatltts I Utility Undergrounding a, Main Street — MacArthur to Sunflower b. MacArthur -- Main to Flower c. Sunflower — Main to Flower (north side of street) EXHIBIT D Ordinance No. NS -2680 16 Page 46 of 51 75A -166 SMSIt Pinttiyliemal 1_ 101 W. Murphy 2, 37015, Alga 1 3703 8. Aldot 4. 3709 S. Alder 3. 3713 S. Alder 6. 3717 S. Alder 7. 3721 S. Alder S. 37z5 S. Aida 9. 3719 $- Alder 10, 311013. Alder 11. 311034-Alder 12. 3809 S. Aldan 13. 3813 S. Alder 14. 3811 S. Aldw 13, 382) S, Aldo 16, 3323 S. Alder 17, 3829 S. Alder 18. 390181 Alder 19. 3903 S, Alder 20. $909 S. Alder 21. 101 W. Stweat 22. 106 W, covens 23. 1 to W, Stwem 24. 114 W,Stavens 25. 1(8 W, slo era 26. 122 W. Steam 27. 207 W.Sekwem 28. 206 W. Stevens 29. 21 o W. Stevms 30. 214 W. Stevens 31. 3926 S.'rimba 42. 302 W. Stovem 33. 306 W.3wmu 34. 310 W. S14mi 3s, 314 W. Stcvw 36, alb S, Stevan 37. 3922 S. Stroh Fnnrpk,xtd EXHIBIT A -1 List of 49 Residential Units List ofBllgiblo Kano fbt Window Rcplacetncnia" Alons*11in and Sunflowu (elder to Main) (back# to Main) (halts to Main) (paeki to Main) (bi4sSc+t M Maln) (baba to Milo) (bmkx to Main) (bade to Main) (was to Mein) (bacta to Maln) (bIw to MNn (W.ks to MAM)) (b4dwto Milo (bade# to Meln) (back4 W Main) (hacks to Alder) (Mdcs to Msln} (barter to Mrh, (backs to Main) (badce to Main) (backs lo Win attd M1niMRtktt) (book+ to Main and Mini Market) (bteta to Main ad Mini Markel) (pact# to sunflowNer &W)4101 MRrieel) (backs to 8vunowu} (backs to Sutt(low (backs to 8enflower) (bada to Snnfl"W) (batki to 5unfltnww) (husks to Suat7ovrw) (aidw to 9unttowa) poc to Svnflow) (backs to.. unflower) (haslet# to sunflower (backs fo SunflO„W (backs to Sunjlowvtx) (backs to Sunflower) 38, 392$ S, Roes (Aldo# to Sunflower) 39. 491 W. Sunflower (rronle Soaflowsr) 40. 409 W. Sunnower (Boras Sunflower) 41, 409 W. SunfloWff (rronfs sunflower) 42. $01 W. Sunflower mono# sunflower} 43. 305 W. Sunflower �rront+Sunpowes) 44. 509 W, Sunflower (neat## Sunflower 4$, 513W,Sunikoww r (frentsUnflower) Milo Attraction Cottdomlrrtuma 46.3620 AS. Mau (sl4as to Main) 47,3632 AS. Mo9n (=b Main) 48.3632 R S. Main (Oronts Main) 49.3632 C S, Min {fronts Main) 17 Ordinance No. NS -2680 , Page 47 of 81 75A -167 EXH113IT 13 SCHEDULE OF NEXUS IMPROVEMENTS Constriction of Item No. 1 to Exhibit A shall conform to the following schedule: a. Preliminary Site Plans — Due within thirty (30) days of the Commencement Date, c. Final Plans — Due within sixty (60) days of City approval of preliminary Site Plans, together with proposed Right -Of -Entry and Maintenance Easement for review of City and Sandpointe. d, Building Permits, Construction Right -Of- -Entry (in favor of Nexus), and Permanent Maintenance Easement for Exterior of Wall (in favor of City) w Application, right of entries and easements shall be submitted no late than sixty (60) days after City approval of Final Plans, e. Construction Commencement -- Within thirty (30) days after approval of Building Pormits. f. Construction Complete — Within one hundred twenty (120) days of commencement of construction, g. Ninety (90) day plant establishment phase after completion of construction of climbing vines and irrigation. 2. Construction of Item No. 2 to Exhibit A shall conform to the following schedule: a. Final building permit plans shall be submitted by individual Sandpointe homeowners to City no later than constriction complete date for item no. 1, above. b. Construction shall be complete pursuant within one hundred twenty (120) days of issuance of City Building Permit. 3. Constmvtion of Item No. 3 to Exhibit A shall conform to the following schedule: a. Nexus shall submit executed Definitive Easement Agreement to all parties no later than one hundred eighty (180) days of the Commencement Date. If Nexus fails to incot this deadline, which may bo extended in Writing by Nexus and Sandpointe, then Nexus shall deposit $1.2 million from the Nexus Escrow into a separate escrow with terms providing for its withdrawal by Sandpointe, which are mutually agreeable to all patties, for use by Sandpointo on other projects to benefit the Sandpointe neighborhood. b. Nexus shall complete this item not later than eighteen (18) months froth the EXHIBIT D Ordinance No. NS -2880 is Page A8 of tit. MEN [196 Commencement Date. 4. Nexus shall pay City for item no. 4 to Exhibit A not later than approval of the first final map for the Nexus Project, The City shall follow the Neighborhood Traffic Management Plan Policy adopted by the City Comicil. S. Construction of Item No. 5 to Exhibit A shall conform to the following schedule: a. The City shall provide Nexus with a preliminary estimate of this cost within thirty (30) days of the Co mmencement Date. This preliminary estimate shall be updated, if necessary, upon the City's receipt of Nexus application to final any portion of its tentative tract map. Said estimate shall be conclusive. b. Nexus shall pay the City the estimated cost of this item not later than approval of the first final map for the Nexus Project. c. The City shall complete construction of this item prior to the first certificate of occupancy for the Nexus Project. Any deadline pursuant to this Exhibit C may be extended by mutual written agreement of Nexus and tite City Manager or designee. EXHIBIT D 19 Ordinance No. MS -2880 Pago 49 of 61 75A -169 EXHIBIT C SCHEDULE FOR PUBLICLY -OWNED IMPROVEMENTS I , City shall complete item no. I.a. on Exhibit A of Publicly -Owned Improvements not later than Jane 2005, 2. City shall complete item no. I.b. on Exhibit A of Publicly -Owned improvements not later than five (5) years after the Agency provides City with the then estimated cost of the project. 3, City shall complete item no. I.e. on Exhibit A of Publicly -Owned Improvements not later than five (5) years after the Agency provides City with the then estimated cost of the project. Notwithstanding this schedule, City shall make a reasonable good falth effort to offeotuate the completion of these Publicly -Owned Improvements (which, under current law. must be designed and cormtnicted by Southern California Edison and not the City) prior to the dates specified above, EXHIBIT D Ordinance No. NS 2680 20 Page 50 of 61 - 75A -170 EXHIBIT "E" Remaining Offsite Mitigation Measures The Met at South Coast Public Improvements Improvement Location New sidewalk Property frontage on First American Way New driveway( "pan" style) First American Way Dedication for 25'x 25' comer cut -off NIE comer of MacArthur & Imperial Promenade Sidewalk easement Street dedication 4" depressed curb Triple -left traffic mitigation measure including sign bridge, , signal modification, updated detection, and signing and striping on both streets Pavement Rehabilitation (minimum 2" grind and overlay} Installation of new public fire hydrants 10' alone property frontage of MacArthur Blvd. 60' from street centerline along MacArthur Blvd. Emergency access on MacArthur Blvd. Southbound Imperial Promenade at MacArthur Blvd On Imperial Promenade and First American Way along property frontage from curb to street centerline Along MacArthur Blvd. and First American `I►!� A 75A -171 75A -172 ROH — 03/05/12 RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING MITIGATED NEGATIVE DECLARATION AND MITIGATION MONITORING PROGRAM, ENVIRONMENTAL REVIEW NO. 2011 -46; APPROVING VESTING TENTATIVE TRACT MAP NO. 2012 -01 AS CONDITIONED; AND, APPROVING SITE PLAN REVIEW NO. 2012 -01 AS CONDITIONED FOR THE PROPERTY LOCATED AT 200 EAST FIRST AMERICAN WAY 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. Vineyard Development is requesting approval of an amendment to an existing development agreement, zoning ordinance amendment, vesting tentative tract map, and site plan review to allow the construction of a multifamily residential project with 278 units at 200 East First American Way. B. This Resolution came before the Planning Commission for a duly noticed public hearing on January 23, 2012. At that time, the Planning Commission continued the matter to February 13, 2012. Staff recommended that the Planning Commission vote to recommend that the City Council: 1. Approve and adopt the Mitigated Negative Declaration and Mitigation Monitoring Program, Environmental Review No. 2011 -46. 2. Adopt an ordinance approving Zoning Ordinance Amendment No. 2012 -01 to amend Specific Development Plan No. 43. 3. Adopt an ordinance approving Amendment to Development Agreement No. 2004 -03 for the VDC at The Met project. 4. Adopt a resolution approving Vesting Tentative Tract Map No. 2012 -01 (County Map No. 17437) as conditioned. 5. Adopt a resolution approving Site Plan Review No. 2012 -01 as conditioned. On February 13, 2012, the Planning Commission split by a vote of 3:3 (Commissioner Yrarrazaval absent) on a motion to approve the project, thus creating an impasse. Pursuant to Planning Commission Bylaws (Resolution 01 -44, § 8e), the applicant desired to proceed to City Council. Resolution No. 2012 -xxx 75A-1 7 3 Page 1 of 6 C. In accordance with State law, the zoning ordinance amendment and the project's close proximity to the John Wayne Airport (JWA) requires the project to be submitted to the Airport Land Use Commission (ALUC) for a determination of consistency with the Airport Environs Land Use Plan ( AELUP) for JWA. The project received FAA clearance on January 26, 2012, with Aeronautical Study No.2012 -AWP- 393 -OE. At the regular meeting of the ALUC for Orange County on February 16, 2012, the Commission found that the proposed Met at South Coast Multi - Family project located at 200 First American Way is consistent with the AELUP for JWA, and that the project is consistent with the AELUP for Heliports. D. Vesting Tentative Tract Map No. 2012 -01 (County Map No. 17437) has been filed seeking approval of a vesting tentative tract map for condominium purposes. 1. To adopt a Vesting Tentative Tract Map, California Government Code Section 66474 requires the following findings: The proposed project, as conditioned, and its design and improvements are consistent with the District Center designation on the General Plan and are otherwise consistent with all other elements of the General Plan. The proposed subdivision, Vesting Tentative Tract Map No. 2012 -01 is consistent with the District Center land use designation and density prescribed and all other elements of the General Plan. The proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. The proposed subdivision conforms to the minimum condominium requirements, as well as meets the letter and intent of the State of California Subdivision Map Act Provisions. Vesting Tentative Tract Map No. 2012 -01 is in keeping with the Site Plan Review (Development Project No. 2011 -11) and Chapter 34 and 41 of the Santa Ana Municipal Code. Covenants, Conditions and Restrictions (CC &Rs) are required for the project, which need to be approved by the City prior to City Council approval of the final map. iii. The project site is physically suitable for the type and density of the proposed project. The proposed site consists of approximately three acres of land within SD -43, which is physically Resolution No. 2012 -xxx 75A-1 74 Page 2 of 6 suitable for the residential development as proposed. Access to the site will occur on First American Way for automobiles. There are no physical constraints on the site to preclude development. iv. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. A mitigated negative declaration (MND) was prepared pursuant to the California Environment Quality Act for the project. The MND has provided mitigation measures to address plant and wildlife populations existing on the project site. Therefore, the proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. V. The design or improvements of the proposed project will not cause serious public health problems. The proposed subdivision is not going to have any detrimental effects upon the general public. The MND has identified and addressed impacts and provided mitigation measures to address potential impacts from the project. vi. The design or improvements of the proposed project will not conflict with the easements acquired by the public at large for access through or use of property within the proposed project. There is no easement for public access on this property, therefore the proposed project will not conflict with easements necessary for public access through or use of the property. Public access will be provided from First American Way, MacArthur Boulevard and MacArthur Place. E. The Applicant is requesting site plan approval for the project (Site Plan Review No. 2012 -01). The zoning designation for the subject property is Specific Development Plan No. 43 (SD -43). Section 41- 593.5(c) of the Santa Ana Municipal Code requires review of all plans within a specific development plan area to ensure the project is in conformity with the Specific Plan. Resolution No. 2012 -xxx 75A -175 Page 3 of 6 2. Considering adoption of the amendments to SD-43 requested by the applicant, the project is in compliance with all applicable development standards outlined within the Specific Development Plan (SD -43). 3. Considering adoption of the amendments to SD-43 requested by the applicant, the project has been determined to be in compliance with applicable parking, landscaping and architectural provisions governing the project. Section 2. The City Council has reviewed and considered the information contained in the initial study and the mitigated negative declaration and mitigation monitoring program, Environmental Review No. 2011 -46, prepared with respect to this Project. The City Council has, as a result of its consideration and the evidence presented at the hearings on this matter, determined that, as required pursuant to the California Environmental Quality Act ( "CEQA ") and the State CEQA Guidelines, a mitigated negative declaration and mitigation monitoring program adequately addresses the expected environmental impacts of this Project. On the basis of this review, the City Council finds that there is no evidence from which it can be fairly argued that the Project will have a significant adverse effect on the environment. The City Council hereby certifies and approves the mitigated negative declaration and mitigation monitoring program and directs that the Notice of Determination be prepared and filed with the County Clerk of the County of Orange in the manner required by law. Pursuant to Title XIV, California Code of Regulations ( "CCR ") § 735.5(c)(1), the City Council has determined that, after considering the record as a whole, there is no evidence that the proposed project will have the potential for any adverse effect on wildlife resources or the ecological habitat upon which wildlife resources depend. The proposed project exists in an urban environment characterized by paved concrete, roadways, surrounding buildings and human activity. Therefore, pursuant to Fish and Game Code § 711.2 and Title XIV, CCR § 735.5(a)(3), the payment of Fish and Game Department filing fees is not required in conjunction with this project. Section 3. The City Council of the City of Santa Ana after conducting the public hearing hereby approves: A. Mitigated Negative Declaration and Mitigation Monitoring Program, Environmental Review No. 2011 -46. B. Vesting Tentative Tract Map No. 2012 -01 as conditioned in Exhibit "A" attached hereto and incorporated herein. C. Site Plan Review No. 2012 -01 as conditioned in Exhibit "B" attached hereto and incorporated herein. These decisions are based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Council Action dated March 5, 2012, and exhibits attached thereto; and the public testimony, written and oral, all of which are incorporated herein by this reference. Resolution No. 2012 -xxx 75A -176 Page 4 of 6 Section 4. This Resolution shall not be effective unless and until Ordinance No. and Ordinance No. become effective. If said ordinances are for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise do not go into effect for any reason, then this resolution shall be null and void and have no further force and effect. Section 5. This decision rendered by the City Council of the City of Santa Ana is final and is subject to judicial review pursuant to California Code of Civil Procedure section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the Council's decision and these findings. ADOPTED this day of APPROVED AS TO FORM: Joseph A. Straka Interim City Attorney al Ryan O. Hodge Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT Councilmembers Councilmembers Councilmembers Councilmembers 2012 Miguel A. Pulido Mayor 75A -177 Resolution No. 2012 -xxx Page 5 of 6 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2005 -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. 2012 -xxx 75A -1 78 Page 6 of 6 Conditions for Approval for Vesting Tentative Tract Map No. 2012 -01 (County Map No. 17437) Should the Planning Commission approve Vesting Tentative Tract Map No. 2012 -01, the approval is subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this vesting tentative tract map. The applicant must remain in compliance with all conditions listed below throughout the life of the vesting tentative tract map. Failure to comply with each and every condition may result in the revocation of the vesting tentative tract map. A. Planning Division All proposed improvements must conform to the Site Plan Review approval of DP No. 2011 -11 and the staff report exhibits. 2. Any amendment to this vesting tentative tract map must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. Landscaping, once installed, shall be maintained per the approved landscape plan. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy and per the approved plan. 4. A Parking Management Plan documenting how the tandem parking stalls along with other parking operation will function must be submitted and approved prior to submittal into building plan check. The project shall incorporate on -site professional property management for the residential component. 5. Covenants, Conditions and Restrictions (CC &Rs) shall be provided for the project. At a minimum, the CC &Rs shall include provisions pertaining to owner occupancy, restrictions on home -based businesses, the prohibition of storage on balconies, and a restriction on truck delivery hours to non -peak periods shall be submitted prior to building plan check. 6. Prior to submittal into building plan check, detailed elevations shall be submitted to include exterior finishes, materials, and colors subject to approval of the Planning Division. Such plans shall include revised interior 7'6W-t;ft 9 VTTM NO. 2012-01 MARCH 5, 2012 PAGE 2OF7 elevations that use the exterior finishes and materials in the same quantity, subject to the approval of the Planning Division. 7. All parking for the project shall be made available free of charge. Two parking spaces per dwelling unit shall be provided as a part of the deed for each dwelling unit. 8. A Public Art Plan which proposes a specific work(s) of art for a specific location(s) shall be submitted to the Planning Commission for review and approval. All public art approved by the Planning Commission shall be completely installed prior to the issuance of a certificate of occupancy for the project. 9. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. 10. A detailed amenity deck plan must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the hardscape design, lighting concepts and outdoor furniture for the amenity deck as well as an installation plan. The exact specifications for these items are subject to the review and approval of the Planning Commission. The amenity deck shall be maintained in the same condition as installed at the time of occupancy. 11. A detailed water feature plan must be reviewed and approved prior to issuance of any building permits. The plan shall include a minimum of one water feature within each public plaza, interior courtyard and roof top deck and include elevations, hardscape design, lighting concepts and an installation plan. The exact specifications for these items are subject to review and approval of the Planning Division. The water feature(s) shall be maintained in the same condition as installed at the time of occupancy. 12. At a minimum, the following items must be included as exterior amenities for the development: bike racks, enhanced paving on the walkways, an outdoor fireplace, barbeque and a pool on the amenity deck. The exact specifications for these items are subject to the review and approval of the Planning Division. 13. An interior building amenity plan of the Recreation Room must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the various finishes and equipment to be provided in these A VTTM NO. 2012 -01 MARCH 5, 2012 PAGE 3OF7 rooms. The exact specifications for these items are subject to the review and approval of the Planning Division. 14. The following items must be included as interior amenities within the common areas: granite counter tops, hardwood flooring or equivalent, and gas fireplaces. The exact specifications for these items are subject to the review and approval of the Planning Division. 15. The following items must be included as interior amenities within each unit: granite counter tops or equivalent, hardwood flooring or equivalent, General Electric Monogram appliances or equivalent, tiled bathroom and shower walls, stain grade hard wood cabinets and individual laundry hook -ups. The exact specifications for these items are subject to the review and approval of the Planning Division. 16. An elevator lobby plan of each lobby must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the finishes and flooring to be provided. The exact specifications for these items are subject to the review and approval of the Planning Division. 17. Pedestrian walkways shall be provided through the project. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting, and landscape planters. The materials and design of the walkway is subject to the review and approval of the Planning Division. 18. A Resident Storage Plan shall be provided for the project. Storage shall be available at no cost to the residents. 19. Cast iron drain pipes shall be provided for the project. 20. Smart wiring, including cable television and high -speed cable for computers, shall be provided for each unit and within the project's common areas. 21. Signage to direct guests to the parking structure shall be provided. A directional sign plan needs to be submitted and approved by the Planning Division prior to issuance of a certificate of occupancy. 22. Construction workers for the project shall be prohibited from parking in the adjacent neighborhoods. A VTTM NO. 2012 -01 MARCH 5, 2012 PAGE 4OF7 23. Prior to issuance of building permits, a Waste Management Plan shall be submitted to the Planning Division and Public Works Agency for approval. The plans shall include information on items such as pick -up, delivery, and types of bins required. The plan shall fully address operational as well as daily management functions and responsibilities. 24. Prior to occupancy of any units, a rental housing execution plan must be submitted to the Planning Division for review and approval. At a minimum, the plan shall identify the location of employee and visitor parking, the location of the rental office, hours of operation for the rental office, and signage affiliated with the Rental Housing Operational Plan. In addition, the rental plan must clearly note that the parking and project amenities must be provided free of charge to the residence. 25. Prior to submittal into building plan check, the design for the courtyard gates shall be submitted to the Planning Division for approval. The fences /gates shall be decorative and ornamental in nature as they are the entries to the interior courtyards. 26. The following best management practices (BMPs) need to be incorporated into the project construction and operation to minimize green house gas impacts: a. Install energy efficient lighting, appliances, heating, and cooling systems. b. Install efficient lighting for street and other outdoor lighting. C. Reduce unnecessary outdoor lighting. d. Provide education on energy efficiency to residents and /or tenants. e. Install water - efficient irrigations systems and devices. f. Design buildings to be water - efficient. Install water - efficient fixtures and appliances. g. Provide education about water conservation. h. Provide easy and convenient recycling opportunities for residents and tenants. i. Provide education on recycling waste. 27. In accordance with California Business and Professions Code section 11010(b)(13), the Final Tract Map and the Deed Disclosure Notice for residential property shall include the following language: "NOTICE OF AIRPORT IN VICINITY 7%A- Ik VTTM NO. 2012-01 MARCH 5, 2012 PAGE 5 OF 7 This property is presently located in the vicinity of an airport, within what is known as an airport influence area. For that reason, the property may be subject to some of the annoyances or inconveniences associated with proximity to airport operations (for example: noise, vibration, or odors). Individual sensitivities to those annoyances can vary from person to person. You may wish to consider what airport annoyances, if any, are associated with the property before you complete your purchase and determine whether they are acceptable to you." 28. Designated outdoor common or recreational areas shall provide outdoor signage informing the public of the presence of operating aircraft. 29. Prior to issuance of any building permit, a storage plan shall be submitted and approved indicating storage areas measuring a minimum of 256 cubic feet per residential unit within the project's garage and assigned to each unit at no additional cost. 30. Prior to submittal into Building Plan Check, a landscape plan shall be submitted. Such landscape plan shall be approved prior to issuance of any building permits. 31. Prior to submittal into building plancheck, submit revised plans indicating a new unit mix, adding a new smaller 1- bedroom floor plan option no smaller than 614 s.f. and the number of smaller units not to exceed nine. 32. Prior to submittal into building plancheck provide revised plans reflecting the following changes as reflected in the applicant's letter dated February 24, 2012: a. Maximum unit count of 278. b. Minimum 136 (49 %) total units containing two and three bedrooms. C. Average overall project unit size of 915 s.f. d. Minimum 255 s.f. per unit of open space. e. Maximum 257 tandem parking stalls (42 %). f. Addition of the following amenities: yoga veranda, business center, game lounge and pet -park. g. Minimum 1,900 s.f. fitness center. h. Minimum 1,625 s.f. pool. i. Minimum 17,647 s.f. rooftop lounge amenity area. ri C.-T, VTTM NO. 2012-01 MARCH 5, 2012 PAGE 6 OF 7 33. Project and amenities shall be consistent in quality, detail and finishes with all graphics, exhibits and other representations submitted by the applicant. B. Police Department The elevator lobby shall be redesigned by removing the elevator alcove and providing a secure lobby enclosed with fire rated glass partitions. 2. A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance /camera equipment (on each floor of parking structure, stairwells, and elevator lobby /cab) with internet viewing capability for the tenants of the project, and access control hardware. The project will be required to have a minimum of two state licensed uniformed security personnel. One security officer will be required for the residential buildings and one for the parking garage. Entrances /exits to the parking structure must be equipped with rolling overhead gates. 3. A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance /camera equipment (on each floor of parking structure, stairwells, and elevator lobby /cab) with internet viewing capability for the tenants of the project, and access control hardware. The project will be required to have a minimum of two state licensed uniformed security personnel. One security officer will be required for the residential buildings and one for the parking garage. Entrances /exits to the parking structure must be equipped with rolling overhead gates. Redesign Elevator lobby — Remove elevator alcove and provide a secure lobby enclosed with fire rated glass partitions. A minimum 12 -inch shatterproof convex mirror shall be installed at each stair landing. All doors leading into stairwells shall be equipped with a minimum 5 -inch by 20 -inch fire rated window. The last flight of stairs shall be fully enclosed at its base. Duress alarms allowing voice communication with security personnel shall be placed in strategic locations, approved by the Police Department, throughout the parking garage. The elevator /stairwells serving the parking structure of the project shall be equipped with card readers at the garage levels to restrict unauthorized access into the residential areas. The elevator lobby shall be designed and constructed of material that allows maximum visibility of the interior of the lobby from the parking decks. Glazing material will be used to its maximum extent. Alternate means and methods can be proposed that mitigate the concerns specified above with Police Department approval. 7 %X-�s4 VTTM NO. 2012 -01 MARCH 5, 2012 PAGE 7OF7 4. The City of Santa Ana parking structure design standards shall be followed in its entirety. 5. A minimum 12 -inch shatterproof convex mirror shall be installed at each stair landing. All doors leading into stairwells shall be equipped with a minimum 5 -inch by 20 -inch fire rated window. The last flight of stairs shall be fully enclosed at its base . 6. The City of Santa Ana parking structure design standards shall be followed in its entirety. Duress alarms allowing voice communication with security personnel shall be placed in strategic locations, approved by the Police Department, throughout the parking garage. 7. All project walkways shall be illuminated to a minimum maintained 1 footcandle of light. 8. The elevator /stairwells serving the parking structure of the project shall be equipped with card readers at the garage levels to restrict unauthorized access into the residential areas. The elevator lobby shall be designed and constructed of material that allows maximum visibility of the interior of the lobby from the parking decks. Glazing material will be used to its maximum extent. 9. A repeater may be required for the project to insure adequate Police and Fire Communications from within the structures. 7%X-'t T85 UWAl oo Conditions for Approval for Site Plan Review No. 2012 -01 Site Plan Review No. 2012 -01 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this site plan review approval. The applicant must remain in compliance with all conditions listed below throughout the life of the site plan review approval. Failure to comply with each and every condition may result in the revocation of the site plan review approval. A. Planning Division 1. All proposed improvements must conform to the Site Plan Review approval of DP No. 2011 -11 and the staff report exhibits. 2. Any amendment to this site plan must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. Landscaping, once installed, shall be maintained per the approved landscape plan. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy and per the approved plan. 4. A Parking Management Plan documenting how the tandem parking stalls along with other parking operation will function must be submitted and approved prior to submittal into building plan check. The project shall incorporate on -site professional property management for the residential component. 5. Covenants, Conditions and Restrictions (CC &Rs) shall be provided for the project. At a minimum, the CC &Rs shall include provisions pertaining to owner occupancy, restrictions on home -based businesses, the prohibition of storage on balconies, and a restriction on truck delivery hours to non -peak periods shall be submitted prior to building plan check. 6. Prior to submittal into building plan check, detailed elevations shall be submitted to include exterior finishes, materials, and colors subject to approval of the Planning Division. Such plans shall include revised interior elevations that use the exterior finishes and materials in the same quantity, subject to the approval of the Planning Division. Exhibit "B" 75A -187 SPR NO. 2012 -01 MARCH 5, 2012 PAGE 2OF7 7. All parking for the project shall be made available free of charge. Two parking spaces per dwelling unit shall be provided as a part of the deed for each dwelling unit. 8. A Public Art Plan which proposes a specific work(s) of art for a specific location(s) shall be submitted to the Planning Commission for review and approval. All public art approved by the Planning Commission shall be completely installed prior to the issuance of a certificate of occupancy for the project. 9. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the hardscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on the preliminary landscape plan. In addition, the plan shall specify the incorporation of the `temporary landscape area' as a permanent landscape feature of the project. The exact specifications for these items are subject to the review and approval of the Planning Division. 10. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. 11. A detailed amenity deck plan must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the hardscape design, lighting concepts and outdoor furniture for the amenity deck as well as an installation plan. The exact specifications for these items are subject to the review and approval of the Planning Commission. The amenity deck shall be maintained in the same condition as installed at the time of occupancy. 12. A detailed water feature plan must be reviewed and approved prior to issuance of any building permits. The plan shall include a minimum of one water feature within each public plaza, interior courtyard and roof top deck and include elevations, hardscape design, lighting concepts and an installation plan. The exact specifications for these items are subject to review and approval of the Planning Division. The water feature(s) shall be maintained in the same condition as installed at the time of occupancy. Exhibit "B" SPR NO. 2012 -01 MARCH 5, 2012 PAGE 3OF7 13. At a minimum, the following items must be included as exterior amenities for the development: bike racks, enhanced paving on the walkways, an outdoor fireplace, barbeque and a pool on the amenity deck. The exact specifications for these items are subject to the review and approval of the Planning Division. 14. An interior building amenity plan of the Recreation Room must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the various finishes and equipment to be provided in these rooms. The exact specifications for these items are subject to the review and approval of the Planning Division. 15. The following items must be included as interior amenities within the common areas: granite counter tops, hardwood flooring or equivalent, and gas fireplaces. The exact specifications for these items are subject to the review and approval of the Planning Division. 16. The following items must be included as interior amenities within each unit: granite counter tops or equivalent, hardwood flooring or equivalent, General Electric Monogram appliances or equivalent, tiled bathroom and shower walls, stain grade hard wood cabinets and individual laundry hook -ups. The exact specifications for these items are subject to the review and approval of the Planning Division. 17. An elevator lobby plan of each lobby must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the finishes and flooring to be provided. The exact specifications for these items are subject to the review and approval of the Planning Division. 18. Pedestrian walkways shall be provided through the project. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting, and landscape planters. The materials and design of the walkway is subject to the review and approval of the Planning Division. 19. A Resident Storage Plan shall be provided for the project. Storage shall be available at no cost to the residents. 20. Cast iron drain pipes shall be provided for the project. 21. Smart wiring, including cable television and high -speed cable for computers, shall be provided for each unit and within the project's common areas. Exhibit "B" -07•, SPR NO. 2012 -01 MARCH 5, 2012 PAGE 4 OF 7 22. Signage to direct customers and guests to the adjacent parking structure shall be provided. A directional sign plan needs to be submitted and approved by the Planning Division prior to issuance of a certificate of occupancy. 23. Construction workers for the project shall be prohibited from parking in the adjacent neighborhoods. 24. Prior to issuance of building permits, a Waste Management Plan shall be submitted to the Planning Division for approval. The plans shall include information on items such as pick -up, delivery, and types of bins required. The plan shall fully address operational as well as daily management functions and responsibilities. 25. Prior to occupancy of any units, a rental housing execution plan must be submitted to the Planning Division for review and approval. At a minimum, the plan shall identify the location of employee and visitor parking, the location of the rental office, hours of operation for the rental office, and signage affiliated with the Rental Housing Operational Plan. In addition, the rental plan must clearly note that the parking and project amenities must be provided free of charge to the residence. 26. Prior to submittal into building plan check, the design for the courtyard gates shall be submitted to the Planning Division for approval. The fences /gates shall be decorative and ornamental in nature as they are the entries to the interior courtyards. 27. The following best management practices (BMPs) need to be incorporated into the project construction and operation to minimize green house gas impacts: a. Install energy efficient lighting, appliances, heating, and cooling systems. b. Install efficient lighting for street and other outdoor lighting. C. Reduce unnecessary outdoor lighting. d. Provide education on energy efficiency to residents and /or tenants. e. Install water - efficient irrigations systems and devices. f. Design buildings to be water - efficient. Install water - efficient fixtures and appliances. g. Provide education about water conservation. 1:M1117fili:11 75A -190 SPR NO. 2012 -01 MARCH 5, 2012 PAGE 5OF7 h. Provide easy and convenient recycling opportunities for residents and tenants. i. Provide education on recycling waste. 28. In accordance with California Business and Professions Code section 11010(b)(13), the Final Tract Map and the Deed Disclosure Notice for residential property shall include the following language: "NOTICE OF AIRPORT IN VICINITY This property is presently located in the vicinity of an airport, within what is known as an airport influence area. For that reason, the property may be subject to some of the annoyances or inconveniences associated with proximity to airport operations (for example: noise, vibration, or odors). Individual sensitivities to those annoyances can vary from person to person. You may wish to consider what airport annoyances, if any, are associated with the property before you complete your purchase and determine whether they are acceptable to you." 29. Designated outdoor common or recreational areas shall provide outdoor signage informing the public of the presence of operating aircraft. 30. Prior to issuance of any building permit, a storage plan shall be submitted and approved indicating storage areas measuring a minimum of 256 cubic feet per residential unit within the project's garage and assigned to each unit at no additional cost. 31. Prior to submittal into Building Plan Check, a landscape plan shall be submitted. Such landscape plan shall be approved prior to issuance of any building permits. 32. Prior to submittal into building plancheck, submit revised plans indicating a new unit mix, adding a new smaller 1- bedroom floor plan option no smaller than 614 s.f. and the number of smaller units not to exceed nine. 33. Prior to submittal into building plancheck provide revised plans reflecting the following changes as reflected in the applicant's letter dated February 24, 2012: a. Maximum unit count of 278. b. Minimum 136 (49 %) total units containing two and three bedrooms. Exhibit "B" 75A -191 SPR NO. 2012 -01 MARCH 5, 2012 PAGE 6OF7 C. Average overall project unit size of 915 s.f. d. Minimum 255 s.f. per unit of open space. e. Maximum 257 tandem parking stalls (42 %). f. Addition of the following amenities: yoga veranda, business center, game lounge and pet -park. g. Minimum 1,900 s.f. fitness center. h. Minimum 1,625 s.f. pool. i. Minimum 17,647 s.f. rooftop lounge amenity area. 34. Project and amenities shall be consistent in quality, detail and finishes with all graphics, exhibits and other representations submitted by the applicant. B. Police Department The elevator lobby shall be redesigned by removing the elevator alcove and providing a secure lobby enclosed with fire rated glass partitions. 2. A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance /camera equipment (on each floor of parking structure, stairwells, and elevator lobby /cab) with internet viewing capability for the tenants of the project, and access control hardware. The project will be required to have a minimum of two state licensed uniformed security personnel. One security officer will be required for the residential buildings and one for the parking garage. Entrances /exits to the parking structure must be equipped with rolling overhead gates. 3. A security plan must be submitted to the Police Department at the plan check stage for approval. The plan must cover all aspects of the projects security including security personnel, surveillance /camera equipment (on each floor of parking structure, stairwells, and elevator lobby /cab) with internet viewing capability for the tenants of the project, and access control hardware. The project will be required to have a minimum of two state licensed uniformed security personnel. One security officer will be required for the residential buildings and one for the parking garage. Entrances /exits to the parking structure must be equipped with rolling overhead gates. Redesign Elevator lobby — Remove elevator alcove and provide a secure lobby enclosed with fire rated glass partitions. A minimum 12 -inch shatterproof convex mirror shall be installed at each stair landing. All doors leading into stairwells shall be equipped with a minimum 5 -inch by 20 -inch fire rated window. The last flight of stairs shall be fully enclosed at its base. Duress alarms allowing voice communication with security personnel shall Exhibit "B" 75A -192 SPR NO. 2012 -01 MARCH 5, 2012 PAGE 7OF7 be placed in strategic locations, approved by the Police Department, throughout the parking garage. The elevator /stairwells serving the parking structure of the project shall be equipped with card readers at the garage levels to restrict unauthorized access into the residential areas. The elevator lobby shall be designed and constructed of material that allows maximum visibility of the interior of the lobby from the parking decks. Glazing material will be used to its maximum extent. Alternate means and methods can be proposed that mitigate the concerns specified above with Police Department approval. 4. The City of Santa Ana parking structure design standards shall be followed in its entirety. 5. A minimum 12 -inch shatterproof convex mirror shall be installed at each stair landing. All doors leading into stairwells shall be equipped with a minimum 5 -inch by 20 -inch fire rated window. The last flight of stairs shall be fully enclosed at its base . 6. The City of Santa Ana parking structure design standards shall be followed in its entirety. Duress alarms allowing voice communication with security personnel shall be placed in strategic locations, approved by the Police Department, throughout the parking garage. 7. All project walkways shall be illuminated to a minimum maintained 1 footcandle of light. 8. The elevator /stairwells serving the parking structure of the project shall be equipped with card readers at the garage levels to restrict unauthorized access into the residential areas. The elevator lobby shall be designed and constructed of material that allows maximum visibility of the interior of the lobby from the parking decks. Glazing material will be used to its maximum extent. 9. A repeater may be required for the project to insure adequate Police and Fire Communications from within the structures. Exhibit "B" 75A -193 75A -194 Mitre - Ramirez, Norma Subject: FW: The Met Project- Notice of Public Hearing March 5, 2012 From: Luckham, Elise [mai Ito: eluckham @firstam.com] Sent: Wednesday, February 29, 2012 3:31 PM To: Richard Barretto; Higgins, Taig; Huizar, Maria; Robert Bisno Cc: Miller, Steven K. Subject: The Met Project- Notice of Public Hearing March 5, 2012 We are in receipt of the Notice of Public Hearing for The Met project to be heard before the City Council on Monday, March 5, 2012. Please note the following concern that First American has with the project: After reviewing the Appendix E Traffic Impact Analysis report dated November 9, 2011 and prepared by Linscott Law & Greenspan Engineers we note that the intersection we are most concerned about increased traffic into is the intersection of First American Way and First American Way South. Although 16 intersections were considered in the study, this intersection, immediately adjacent to subject property was not evaluated. We are concerned about increased congestion and safety risks with an additional 300 vehicles passing through the intersection, particularly during the highest traffic hours at the start and end of the business day and around the lunchtime hours. The current egress for the subject property routes ALL vehicles to this intersection for, what will in most cases, be a u -turn. Each direction of the 3 -way stop has multiple lanes so it will not be evident that a left turn is a u -turn and there is increased risk of a collision in our opinion. While the project itself is not problematic to the neighboring businesses, the increased traffic at the intersection mentioned is of great concern and we believe requires additional analysis. Please make the Council aware of our concerns so that they can be addressed accordingly. Thank you. Elise Luckham VP, Director Corporate Real Estate First American First American 1 First American Way, Santa Ana, CA 92707 Direct: 714 - 250 -3111 Fax: 714 - 824 -5868 Email: eluckhamCalfirstam.com A member of the First American Financial Corporation family of companies I NYSE: FAF This message may contain confidential or proprietary information intended only for the use of the addressee(s) named above or may contain information that is legally privileged. If you are not the intended addressee, or the person responsible for delivering it to the intended addressee, you are hereby notified that reading, disseminating, distributing or copying this message is strictly prohibited. If you have received this message by mistake, please immediately notify us by 75A -195 75A -196 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: PUBLIC HEARING - LOCAL BUSINESS PREFERENCE ORDINANCE CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt an ordinance amending the Santa Ana Municipal Code to provide Santa Ana and Orange County businesses a percentage preference for all requests for proposals, contracts and bids where the City is not otherwise restricted from offering such a preference. 2. Adopt a resolution providing Santa Ana Businesses with a seven percent preference and Orange County businesses a four percent preference for all requests for proposals, contracts and bids where the City is not otherwise restricted from offering such a preference. BACKGROUND In 2010, the City released 57 requests for proposals or bids to provide goods, materials or professional services to the City. The total value of these contracts totaled more than $6.5 million dollars. In response to general direction from the City Council an interdepartmental committee including: the Planning and Building Agency, Public Works Agency, City Attorney's Office, Finance and Management Services Agency and the Community Development Agency was formed to research and analyze local preference as a method to continue the City's support and promotion of local businesses. A local business preference allows the City to promote local businesses, as well as benefit from enhanced economic activity as dollars re- circulate in the local economy by way of multiplier effects. Multiplier effects have been shown to benefit the community in three unique ways: 1. Direct effects — Benefits the local economy by directly investing money through the awarding of a City contract to a local business. 2. Indirect effects — Indirect effects occur when money awarded to a local business results in inter - industry purchases of materials, supplies, goods and services. Another potential indirect effect is the increase in employment associated with greater workloads /demands. 75B -1 Local Business Preference Ordinance March 5, 2012 Page 2 A Study in Phoenix, Arizona by the economic consulting firm Civic Economics found that when using a local vendor, 33.4 percent of the total contract revenue remained in the community compared to only 11.6 percent when using a national vendor'. Fora $100,000 contract, this results in an additional $21,800 dollars staying in the local economy in addition to the initial contract amount. A similar study from Austin, Texas found that for every $100 dollars spent locally, $45 dollars remained in the local economy, compared to only $13 dollars spent at a "big box" vendor2. Another study by the Center for Economic Research and Education of Central California found in the City of Fresno that while the proposed local preference program would cost the City $243,565 in higher contract amounts, it would result in over $3.3 million dollars in output via multiplier effects in the community3. 3. Induced effects — Induced effects are the increases in household income as a result of both the direct and indirect effects. Increases in household income have been found to modify spending patterns and increase consumption. In these ways, the benefits to the City of awarding a contract to a local business extend beyond the value of the initial contract. While the exact value of multiplier effects are difficult to predict, various studies regarding local sourcing of materials, supplies and services have found a consistent increase in the amount of money that remains in the local economy when a local vendor is utilized. This increase in money has also been correlated with increases in employment, as well as taxable transactions for the City. The City has for many years used a one percent bid preference for Santa Ana businesses. The rationale for this preference is that the City receives one percent of the sales tax captured on taxable sales, which offsets the costs. Recent analysis by the Finance and Management Services Agency indicates, however, that this preference amount has had little or no effect on the actual number of Santa Ana businesses becoming the lowest bidder and thus being awarded City contracts. DISCUSSION Sections 421 and 422 of the City's Charter outline purchasing regulations and requirements for Public Works and Non - Public Works contracts and thus structure how local preference can be implemented (Exhibit 1). A review of the City's charter language by the City Attorney's Office has concluded that local preference may not be given for Public Works construction involving "the erection or improvement of public buildings, streets, drains, sewers or parks." Contracts involving maintenance and repair of these facilities would be eligible for a preference. In addition to charter restrictions, several funding sources including Caltrans, HUD, State and Federal grants contain language that precludes the use of a local preference. Given these limitations, the proposed local preference program will apply to all contracts and bids not otherwise restricted by the funding source, the City charter, State or Federal law. 1 Dan Houston, "Procurement Matters: The Economic Impact of Local Suppliers," Civic Economics (November 2007). 2 Dan Houston and Dr. Michael Oden, "Big Box Retail and Austin: An Independent Review," Civic Economics (October 2004) 3 Dr. Antonio Avalos and Dr. Edward Birdyshaw, "Assessing the Economic Impact of a Local Preference Ordinance in the City of Fresno," Center for Economic Research and Education of Central California (January 2007). 75B -2 Local Business Preference Ordinance March 5, 2012 Page 3 Additionally, it is recommended that the local preference ordinance only apply to eligible contracts up to $100,000. This recommendation is based on a review of other cities parameters, as well as an analysis of the City's most typical contracts. For example, a comparison of other cities local preference ordinance showed indicated a range from $30,000 up to $1,000,000, with a majority in the $100,000 dollar range (Exhibit 2). Further, an analysis of City of Santa Ana bids /RFP's in 2010 showed a mean contract value of $126,122 and a median contract value of $53,130. This lower median value indicates that a majority of City contracts are below the proposed $100,000 threshold and thus would be eligible for local preference. Tiered Preference System Santa Ana lies in the center of urban Orange County. As such, the Santa Ana economy is to a large degree tied to the regional economy, similar to how the City is tied to the region in terms of air quality, water quality, regional transportation, etc. To balance the City's goal to promote Santa Ana businesses while being mindful of the City's place within the regional economy, a tiered preference level is proposed. This tiered system is proposed to provide Santa Ana businesses with a seven percent preference and other Orange County businesses with a four percent preference. The recommended seven percent preference best balances the costs of doing business (sales tax, business license tax, etc.) with providing local businesses with an advantage in winning city contracts. Analysis of a 20- contract sample of Santa Ana contracts indicated that a seven percent preference would have resulted in approximately 25 percent of contracts being awarded to local businesses. The proposed preference levels are also consistent with several nearby cities that have recently adopted local preference ordinances, including the City of Los Angeles (8 %) and the City of Long Beach (10 %). Administration /Implementation In an effort to minimize additional burdens on local businesses staff proposes to use the California Department of General Services Small Business Certification program. This State administered program, will ensure that businesses in the City and County that are competing for City contracts meet the definition of a small local business while not overly burdening local businesses with complicated forms and applications (Exhibit 3). Once a local business is certified by the state it is cataloged in an online database that can be used by the City when determining whether a business qualifies for the City's local preference program. The use of the State Department of General Services for certification is also used by the City of Los Angeles as part of their local preference program. The California Department of General Services essentially functions as the business manager and procurement office for the state and is the primary administrator of the Small Business Services certification program. This program certifies small businesses in order to assist them in receiving 75B -3 Local Business Preference Ordinance March 5, 2012 Page 4 State Contracts. Becoming a certified small business can be done online through the state's e- procurement website free of charge. Once a business is certified it will be electronically notified of available state bid solicitations as well as receive a five percent preference on State contracts. There are currently 128 Santa Ana businesses already certified by the California Department of General Services as a Small Business. The local preference ordinance will give preference to businesses during the procurement for both bids for materials, supplies, labor and equipment and requests for proposals for professional services. The following are examples of how the local preference ordinance will apply in these two scenarios: Example 1. Bid for materials supplies labor and equipment: Orange County Santa Ana Business Other Lowest Bid Bid Amount $95,000 $93,000 $90,000 7% local preference 14% local preference I N/A Amount used for selection $88,350 I $89,280 $90,000 of contract awarded In the above scenario, the Santa Ana business would be awarded the contract. The contract amount would be the original bid of $95,000. Example 2. Requests for proposals for professional services: In a Request for Proposal (RFP) for professional services price alone may not be criterion upon which a contract is awarded. In this example, the local preference will increase the total evaluation points a business receives. These evaluations are typically done on a 0 to 100 point scale. Santa Ana f Orange County Other Highest Rt1SpgG f in Ri minGec I G41n1i ln+iron Original evaluation points received 91 95 97 7% local preference 14% local preference I N/A I Total evaluation points after I g7 4 98-8 97 local preference added 75B -4 Local Business Preference Ordinance March 5, 2012 Page 5 In this scenario the Orange County business would be awarded the contract as its total evaluation points would become the highest with the local preference. As in scenario number one above, the use of local preference will not affect the final contract amount. Modifications /Adjustments It is recommended that the local preference program be adopted by ordinance, and the percent of preference be adopted by Resolution with seven percent for local businesses and four percent for Orange County businesses. Adopting the specific percentage preference levels by resolution will allow the City Council to modify preference levels as it deems appropriate. Outreach Efforts Recognizing that the final measure of effectiveness for the proposed ordinance will depend on the extent that it is utilized by the local businesses community; staff reached out to local chambers of commerce as well as the Orange County Business Council to seek their input on the proposed ordinance. A summary of the proposed ordinance was sent to the Santa Ana Chamber of Commerce, the Hispanic Chamber of Commerce, the Vietnamese American Chamber of Commerce, the Black Chamber of Commerce and the Orange County Business Council for their review. Responses received to the proposed ordinance were supportive with an official letter of support from the Orange County Business Council (Exhibit 4). Should the proposed ordinance be adopted, additional marketing and outreach will be undertaken to ensure that local businesses are aware of the opportunities provided by this ordinance. One example of this additional outreach would be the creation of an online business registry through the City's website where local businesses could sign up to receive RFPs or bid requests for particular categories of goods or services. Categories in the registry could include: engineering services, financial services, environmental services, office supplies, fleet, information technology and tools /equipment. The City would then send RFP's or bid requests to all businesses that expressed an interest in a particular category. FISCAL IMPACT Based on the information available regarding bids for materials, supplies, labor and equipment and requests for proposals, the estimated fiscal impact would be $26,000 annually (Exhibits 5 & 6). It is important to note that while this fiscal impact represents the direct cost to the City as a result of paying higher contracts; it does not account for the numerous economic benefits that local preference ordinances have been shown to have on the local economy. 75B -5 Local Business Preference Ordinance March 5, 2012 Page 6 Based on 2010 contract information, a 25 percent increase in local vendors being awarded City contracts would have resulted in approximately $280,000 additional dollars circulating in the local economy as a direct effect, with additional money entering the local economy through indirect and induced effects as discussed above. a . Trevino Executive Director Planning & Building Agency M F:rb rbVeportslocal Business Preference Ordinance 03- 05 -12.cc APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibits 1. Charter Excerpt 2. Local Preference Contract Value Restrictions 3. Department of General Services Eligibility Requirements for Small Business Certification 4. Letter of support from Orange County Business Council 5. Fiscal Impact Calculations 6. Fiscal Impact Comparisons Citv Charter Excerpt Sec. 421— Non - public works contracts. (a) The City shall not be bound by any contract, unless the same shall be made in writing by order of the City Council, except as hereinafter provided, and signed by an officer on behalf of the City who has been authorized to do so by the City Council. The approval of the form of all contracts shall be endorsed thereon by the City Attorney, or his or her designated representative. (b) The City Council may by ordinance authorize the City Manager to bind the City on contracts for such amounts as may be established from time to time. At least quarterly, the City Manager shall place on the City Council agenda for information, a report of contracts let by the City Manager pursuant to authority granted hereby. That report shall include the identities of contractors and amounts of each contract. (c) The City Council shall establish by ordinance rules and procedures for competitive bidding for purchases of, or contracts for materials, supplies, equipment, or services, including exceptions from formal bidding as the City Council may deem appropriate, including providing for emergencies. Nevertheless, such rules and procedures shall provide, where feasible, for review of such alternative sources of such materials, supplies, equipment, or services, including professional services, as may be available in competition with one another and selection therefrom on the basis of obtaining maximum quality goods, services, or performance at minimum cost, and may provide for use of other public agency bidding and contracting processes where found to be otherwise consistent with this Charter. Nothing herein contained shall authorize any person to bind the City on any such contract if the same be a portion of a larger purchase or series of purchases which, in the aggregate, exceed the authority set by the City Council hereunder. (Ord. No. NS -1405, 3- 13 -78, approved at election 6 -6 -78; Ord. No. NS -1642, 8 -2 -82, approved at election 11 -2 -82; Ord. No. NS -2715, 7 -3 -06, approved at election 11 -7 -06) Sec. 422 — Public works contracts (a) For purposes of this section, "public works construction" shall be deemed to mean a project for the erection or improvement of public buildings, streets, drains, sewers, or parks. Maintenance and repair of public buildings, streets, drains, sewers, or parks shall not be considered as public works construction. (b) Every contract for public works construction in excess of that amount set from time to time by ordinance of the City Council pursuant to (c) below, shall be made by the City Council with the lowest and best bidder after publication for at least two (2) days in a newspaper of general circulation in the City of notice calling for bids and fixing a period during which such bids will be received, which shall be for not less than ten (10) days after the first publication of said notice, except where alternate contracting procedures are utilized pursuant to (c), below. (c) The City Council shall adopt by ordinance rules and procedures for competitive bidding for all public works contracts, which rules and procedures shall establish limits for public works contracts approved by the City Manager. Such rules and procedures shall establish criteria for thresholds for formal and informal bidding, and notice requirements therefor; standards for rejection of bids and dispensing with bidding; criteria and procedures for prequalifying bidders and contractors; and utilization of alternate project delivery systems such as design -build contracts. For purposes of this Article, "design- build" means a range of methods of procuring design and construction from a single source, where the selection of the single source occurs before the development of complete plans and specifications. Notwithstanding the foregoing, any rule permitting dispensing of bidding and /or performing work with City forces for any reason including an emergency shall require the affirmative votes of at least two - thirds (2/3) of the members of the City Council. (Ord. No. NS- 2715, 7 -3 -06, approved at election 11 -7 -06) EXHIBIT 1 75B -7 Local Preference Contract Value Restrictions City Local Preference Contract Amount Restrictions San Francisco 5%-15% Under 10 Million Long Beach 10% 100,000 Los Angeles 8% 1,000,000 Costa Mesa 5% 100,000 Concord 5% 100,000 Fresno 5% 500,000 Hayward 5% Under $200,000 = $5,000 $200,000 - $400,000 = $7,500 $400,000 - $750,000 = $8,750 over $750,000 = $10,000 San Juan Capistrano 3% No limit San Jose 5% 100,000 Santa Cruz 3% Over $10,000 and within 3% of lowest price Thousand Oaks 5% 100,000 Lansing 500,000 Phoenix 2.5%-5% 5% for contacts up to $250,000 2.5% for $250,000 - $500,000 Detroit 6%-10% 10% for purchases up to $10,000 8% up to $100,000 6% up to $500,000 Boise Contracts over $50,000 Kethickan, AK 10% 100,000 EXHIBIT 2 California Department of General Services Eligibility Requirements In order for a small business to be eligible for certification, the small business must meet the following requirements: • Be independently owned and operated; • Not dominant in field of operation; • Principal office located in California; • Owners (officers, if a corporation) domiciled in California; and, • Including affiliates, be either, • A business with 100 or fewer employees; an average annual gross receipts of $14 million or less, over the last three tax years; • A manufacturer* with 100 or fewer employees; or, • A microbusiness. A small business will automatically be designated as a microbusiness, if gross annual receipts are less than $3,500,000; or the small business is a manufacturer with 25 or fewer employees. * For Small Business Certification purposes, a manufacturer is a business that is both of the following: 1. Primarily engaged in the chemical or mechanical transformation of raw materials or processed substances into new products. 2. Classified between Codes 31 to 339999, inclusive, of the North American Industrial Classification System (NAICS) Manual, published by the United States Census Bureau, 2007 edition. EXHIBIT 3 .� ORANGE COUNTY BUSINESS COUNCIL January 26, 2012 2 Park Plaza, Suite 100 1 Irvine, CA 92614 -5904 1 P 949.476.2242 1 F 949.476.0443 ! www.ocbc.org Mr. Jay Trevino City of Santa Ana Planning and Building Agency 20 Civic Center Plaza, M20 Santa Ana, CA 92702 Mr. Trevino: Rtcoje 11% 14N3 AD On behalf of the Orange County Business Council (OCBC), I am writing to you regarding the City of Santa Ana's Local Preference Ordinance scheduled to be heard for the City Council's consideration on March 6, 2012. I want to commend staff for their outside the box and innovative approach to promoting economic development on a local level.. Through initiatives such as OCBC's "Turning Red Tape into Red Carpet Awards ", OCBC has sought to honor and recognize the hard work of local governments throughout the county who have cut through red tape to create a more business - friendly environment in Orange County As communicated to OCBC, the Santa Ana Local Preference Ordinance would establish a 4% preference for small Orange County Businesses, and a 7% preference for small Santa Ana businesses on all qualifying bids for materials, supplies, labor, equipment, or services. In addition, the local preference would only apply to all proposals /contracts between $5,000 and $100,000 where the City is not otherwise restricted from offering a preference due to funding source, the City Charter, State or Federal Law. OCBC strives to champion a vibrant and competitive economic climate, particularly when it comes to the use of taxpayer dollars in the procurement process by public agencies. As such, OCBC would be supportive of an Ordinance which would allow for the use of local preference in occasions where competitive bids and proposals are deemed to be equal and meet all requirements set forth by the City. EXHIBIT 4 THE LEADING VOICE OF BUSINESS IN ORANGE COUNTY 75B-1 0 Mr. Jay Trevino January 26, 2012 Page 2 We applaud staff's efforts to promote local businesses in working to bolster economic activity in the Orange County community. Since Lucy "Dtnn Preside t nd jo Orange Cou usiness Council 75B -11 Local Preference Ordinance • The City released 57 bids for materials, supplies, labor and equipment or requests for proposals in 2010. • Of these, 31 would have been eligible for local preference based on the criteria established in the proposed ordinance • Based on the analysis of a 20- contract sample by the Finance and Management Services Agency, a local preference of 7% would result in approximately 25% of contracts going to local businesses. Fiscal Impact Calculations: Number of eligible contracts (31) Total value of eligible contracts ($1,446,609) Average price per contract ($46,664.81) $46,664.81 x 7% preference = Average additional cost per contract ($3,266.54) # of eligible contracts (31) x Estimated % to local businesses (25 %) = 8 contracts Number of local Average additional _ Estimated additional cost per year business contracts X City cost per contract for Local Preference Program (8) ($3,266.54) ($26,132.32) * - Examples of contracts that would not be eligible include: Contracts over $100,000, Public Works Construction contracts, cancelled bids, etc. EXHIBIT 5 75B -12 Fiscal Impacts Maximum Contract Amount Number of qualifying contracts Fiscal Impact $100,000 31 $26,132.32 $150,000 34 $34,264.17 $250,000 39 $52,217.90 EXHIBIT 6 75B -13 75B -14 2/7/12 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING ARTICLE VII.II OF CHAPTER 2 OF THE SANTA ANA MUNICIPAL CODE, ESTABLISHING A PREFERENCE FOR LOCAL BUSINESSES IN THE PROCUREMENT OF MATERIALS, SUPPLIES, LABOR, EQUIPMENT OR SERVICES THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City of Santa Ana encourages businesses to locate in the City and desires to support businesses located in the City of Santa Ana and the surrounding Orange County area; and B. An examination of contracts awarded by the City indicates that local businesses are under - represented in providing goods and services to the City; and C. Awarding contracts to local businesses promotes not only those local businesses, but also simulates economic activity throughout the community as the City directly invests in its local businesses; and D. The investment in local businesses results in a multiplier effect arising from those businesses increasing purchases of materials, supplies, equipment and labor from other local sources, resulting in the re- circulation of local dollars in the local economy; and E. As a result of additional local opportunities, household spending increases, which increases taxable transactions occurring in the local community; and F. Providing a bid preference for small local businesses will increase the number of local businesses that participate in City contracting, which will increase the circulation of city dollars, stimulate a stronger economic base and decrease the unemployment rate in the City. 75B -15 2/7/12 Section 2. The adoption of this ordinance is exempt from CEQA and a Notice of Exemption will be filed if this ordinance is adopted. Section 3. Section 2 -802 of the Santa Ana Municipal Code is hereby amended such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 2 -802. Definitions For purposes of this article, the following definitions shall apply: Agency shall mean the Executive Director of the City agency or department which has responsibility for awarding a contract for services. Agreement or contract shall mean a legal contract which complies fully with the provisions of section 421 of the city's charter and this article. The words agreement and contract may be used interchangeably in this article. Electronic shall mean electrical, digital, magnetic, optical, electromagnetic, or any other similar technology. Local Business shall mean a business certified by the State Department of General Services as a Small Business, which has a substantial presence through either a headquarters or branch office within the geographical boundaries of the City, and which headquarters or branch office was established prior to the city inviting bids for the respective procurement. Said business must possess a current business license and certificate of occupancy. For purposes of this ordinance, a Post Office box address within the City shall not qualify as a valid business location. Materials, supplies, labor and equipment shall mean those goods or services, but excluding services and public works construction, that are readily ascertainable and measurable by an objective standard in terms of quantity or quality so as to be susceptible to competitive bidding. Orange County Business shall mean a business certified by the State Department of General Services as a Small Business, which has a substantial presence through either a headquarters or branch office within the geographical boundaries of Orange County, and which headquarters or branch office was established prior to the City inviting bids for the respective procurement. Said business must possess a current business license to perform work in Santa Ana. For purposes of this ordinance, a Post Office box address within the County shall not qualify as a valid business location. 75B -16 2/7/12 Public notice shall mean the distribution or dissemination of information to interested parties using methods that are reasonably available. Such methods can include publication in newspapers of general circulation, electronic or paper mailing lists, and web site(s) designated by the city and maintained for that purpose. Purchasing manager shall mean that city employee or official so designated by the city manager and authorized to carry out the responsibilities under this article, including the promulgation and enforcement of administrative procedures. Purchase order (PO) shall mean that standardized contract developed pursuant to subsection 2 -8030) issued to the vendor of materials, supplies, labor and equipment. Services shall mean the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. Services are of an advisory nature, provide a recommended course of action or personal expertise, have an end product comprised of a transmittal of information, written or verbal, and that is related to the governmental functions of administration, management, program management or innovation. The product may include anything from answers to specific questions to design of a system or plan, and includes provision of workshops, seminars, retreats, and conferences for which expertise is necessary. This term shall not include employment agreements or collective bargaining agreements. This term shall not include contracts for the construction, alteration, improvement, repair, or maintenance of real or personal property. Section 4. Section 2 -803.1 is added to Chapter 2 of the Santa Ana Municipal Code to read in full as follows: Section 2 -803.1 Local Preference in Contracts for Materials, Supplies, Labor and Equipment. Except for those contracts for which the Charter of the City of Santa Ana prohibits the provision of a local preference, and /or those contracts funded through programs or partners which prohibit the use of a local preference, the City Council authorizes the purchasing manager to extend a preference to Local Business and Orange County Business as set forth herein. (a). In the procurement of material, supplies, labor and equipment involving expenditures between five thousand dollars ($5,000.00) and one hundred thousand dollars ($100,000.00), the purchasing manager shall 75B -17 2/7/12 extend a preference to each local business and each Orange County business, which preference shall be applied to the bid which provides maximum quality at minimum price. Said preference shall be set by Resolution of the City Council. (b). If the bidder submitting the maximum quality at minimum cost bid is not a local business or an Orange County business, and if a local business or an Orange County business has submitted a responsive and responsible bid, and with the benefit of the applicable preference, the bid submitted by local business or Orange County business is equal to or less than the original maximum quality at minimum cost bid, the contract shall be awarded to the local business or the Orange County business at its submitted bid price. If two (2) or more low bids received are equal after the application of the preference, the contract shall be awarded in the following order: 1) to a local business 2) to an Orange County business 3) to the bidder submitting the maximum quality at minimum cost bid. The city shall reserve the right to reject any or all bids. (c). In order for the preference to apply, a bidder must certify under penalty of perjury, that the bidder qualifies as a local business or Orange County business. The preference is waived if the certification does not appear on the bid. Section 5. Section 2 -805 of the Santa Ana Municipal Code is hereby amended such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 2 -805. Procurement of materials, supplies, labor, and equipment between five hundred dollars ($500.00) and twenty -five thousand dollars ($25,000.00). (a) For those agreements exceeding five hundred dollars ($500.00) but not exceeding five thousand ($5,000.00), the city manager may bind the city on contracts for materials, supplies, labor, and equipment in amounts not exceeding five thousand dollars ($5000.00) in any one contract or in the aggregate with any one vendor or service provider. These contracts can be entered into administratively without the need for informal or formal bidding. (b) Unless exempt from bidding pursuant section 2 -807, all contracts 4 2/7/12 involving an expenditure between five thousand dollars ($5,000.00) and twenty - five thousand dollars ($25,000.00) for materials, supplies, labor, and equipment shall be let to the lowest responsible budder on the basis of obtaining maximum quality at minimum cost in accordance with procedures established by the purchasing manager. Those procedures shall provide for at a minimum the following: (1) There shall be a written or verbal invitation for bid which shall include the following information: A general description of the things to be purchased or project, the time and place for bid opening when applicable, bid instructions, and the terms and conditions of the bid and any resulting contract. The purchasing manager shall make a good faith effort to notify all businesses engaged in providing such materials, supplies, labor, and equipment located within the boundaries of the city of the opportunity to bid. (2) Where required by state or federal law or regulations, or upon request by a bidder, the bids shall be opened, if sealed, and declared in public at the time and place stated on the "Invitation for Bid." Section 6. Section 2 -806 of the Santa Ana Municipal Code is hereby amended such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 2 -806. Procurement of materials, supplies, labor, and equipment in excess of twenty -five thousand dollars ($25,000.00). Unless exempt from bidding pursuant to section 2 -807, all contracts involving an expenditure in excess of twenty -five thousand dollars ($25,000.00) for materials, supplies, labor, and equipment shall be let to the lowest Fespo,nsible biddef on the basis of obtaining maximum quality at minimum cost, in accordance with procedures established by the purchasing manager. Those procedures shall provide for at least the following: (a) Public notices inviting bids shall include a general description of the things to be purchased and the time and place for bid opening. Adequate public notice of the invitation for bids shall be given a reasonable time prior to the date set forth therein for the opening of bids, in accordance with regulations established by the purchasing manager. To the extent that public notice is by way of publication in 75B -19 - - - - - - - ONNININNIN Section 6. Section 2 -806 of the Santa Ana Municipal Code is hereby amended such that it reads as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 2 -806. Procurement of materials, supplies, labor, and equipment in excess of twenty -five thousand dollars ($25,000.00). Unless exempt from bidding pursuant to section 2 -807, all contracts involving an expenditure in excess of twenty -five thousand dollars ($25,000.00) for materials, supplies, labor, and equipment shall be let to the lowest Fespo,nsible biddef on the basis of obtaining maximum quality at minimum cost, in accordance with procedures established by the purchasing manager. Those procedures shall provide for at least the following: (a) Public notices inviting bids shall include a general description of the things to be purchased and the time and place for bid opening. Adequate public notice of the invitation for bids shall be given a reasonable time prior to the date set forth therein for the opening of bids, in accordance with regulations established by the purchasing manager. To the extent that public notice is by way of publication in 75B -19 2/7/12 a newspaper of general circulation, such publication shall be for at least two (2) days, the first of which shall be at least ten (10) days before the date set for opening bids. (b) Invitation of bids shall be mailed or transmitted by other means established by the administrative code but not recited over the telephone or in person. Any interested bidder may obtain an invitation for bid. (c) All bids shall be submitted sealed in accordance with the instructions contained in the "Invitation for Bid" form. (d) The bids shall be opened in public, at the time and place stated on the "Invitation for Bid." All bids shall be publicly declared. Section 7. Section 2 -808 is added to Chapter 2 of the Santa Ana municipal Code to read in full as follows: Section 2 -808 Local Preference in Contracts for Services Except for those contracts for which the Charter of the City of Santa Ana prohibits the provision of a local preference, and /or those contracts funded through programs or partners which prohibit the use of a local preference, the City Council authorizes the Agency to extend a preference to Local Business and Orange County Business as set forth herein. (a) Contracts for services shall be awarded on the basis of demonstrated competence and on the professional qualifications necessary to for the satisfactory performance of the services required. In evaluating proposals for service contracts in amounts up to one hundred thousand dollars ($100,000.00), proposers which qualify as Local Business or Orange County Business shall be eligible for preference points. The preference shall be added to the proposal to reach a final score in determining the most advantageous proposal. Said preference shall be set by Resolution of the City Council. (b). A non local proposer associating with a Local Business or Orange County Business, shall be eligible for the local preference if a minimum of fifty percent (50 %) of the contract value will be performed by the Local Business or Orange County Business. Section 8. Any provision of the Code that is inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no 75B -20 2/7/12 further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. Section 9. 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. Section 10. This ordinance shall become effective thirty days after its adoption by the City Council. ADOPTED this day of 2012 APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Laura Sheedy Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers 75B -21 Miguel A. Pulido Mayor 7 2/7/12 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75B -22 Lss2/7/12 RESOLUTION NO. 2012 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA SETTING A LOCAL PREFERENCE LEVEL IN THE PURCHASE OF GOODS, SUPPLIES, LABOR, EQUIPMENT AND PROFESSIONAL SERVICES 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. Section 2 -803.1 of the Santa Ana Municipal Code (Code), adopted by Ordinance NS — XXXX, provides that the City Council may set by resolution the level of preference to be provided to local businesses in the procurement of goods, supplies, labor and equipment. B. Section 2 -808 of the Santa Ana Municipal Code (Code), adopted by Ordinance NS — XXXX, provides that the City Council may set by resolution the level of preference to be provided to local businesses in the procurement of services. C. The City Council fines that as to the local preference in procurement: An analysis of recent procurements indicates that if a preference of seven percent (7 %) were extended to local business, and a preference of four percent (4 %) were extended to Orange County business, approximately twenty -five percent (25 %) of Santa Ana contracts would be awarded to local business or Orange County business; and 2. The estimated fiscal impact of extending a local preference is $XXX; and 3. A seven percent preference for local business assists in balancing the cost to the local business associated with doing business in the City, including business license tax, sales tax and property tax; and 4. Because the city lies in the center of Orange County, extending a preference to Orange County businesses will provide benefit to the regional economy, including the City. Resolution No. 2012 -XXX 75B -23 Page 1 of 2 D. Based upon all the testimony, reports and other evidence submitted on this matter, the City Council makes the above - specified findings. The Request for Council Action dated March 19, 2012 regarding this resolution, together with Ordinance No. NS- XXXX and the Request for Council Action which accompanied said Ordinance are incorporated herein by this reference as though fully set forth. Section 2. The City Council hereby establishes a preference of seven percent (7 %) for local businesses and a preference of four percent (4 %) for Orange County businesses. Section 3. The Purchasing Manager shall implement this preference in the purchase of goods, supplies, labor and equipment. The Agency shall implement this preference in procurement of services. Section 4. This Resolution shall take effect on the effective date of the Ordinance Establishing a Local Purchasing Preference, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of APPROVED AS TO FORM: Joseph Straka, Interim City Attorney in Laura Sheedy Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN Councilmembers NOT PRESENT: Councilmembers 2112 Miguel A. Pulido Mayor Resolution No. 2012 -XXX 756-24 Page 2 of 2 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2012 -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. 2012 -XXX 756-25 Page 3 of 2 75B -26 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 5, 2012 TITLE: PUBLIC HEARING — GENERAL PLAN AMENDMENT NO. 2011 -03 AND AMENDMENT APPLICATION NO. 2011 -02 FOR 1302, 1306 & 1310 EAST FOURTEENTH STREET AND VARIANCE NO. 2011 -09 FOR 1302 EAST FOURTEENTH STREET, TO CONSTRUCT A NEW SINGLE FAMILY HOUSE AT 1302 EAST FOURTEENTH STREET — GAMALIEL VASQUEZ, APPLICANT C CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: - -;• % ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution approving General Plan Amendment No. 2011 -03 for 1302, 1306 and 1310 East Fourteenth Street. 2. Adopt an ordinance approving Amendment Application No. 2011 -02 for 1302, 1306 and 1310 East Fourteenth Street. 3. Adopt a resolution approving Variance No. 2011 -09 for 1302 East Fourteenth Street as conditioned. PLANNING COMMISSION ACTION On January 23, 2012, the Planning Commission recommended that the City Council adopt a resolution approving General Plan Amendment No. 2011 -03 for 1302, 1306 and 1310 East Fourteenth Street; adopt an ordinance approving Amendment Application No. 2011 -02 for 1302, 1306 and 1310 East Fourteenth Street; and adopt a resolution approving Variance No. 2011 -09 for 1302 East Fourteenth Street as conditioned by a vote of 6:0 (Turner absent) to allow the construction of a new single - family residence at 1302 East Fourteenth Street. As part of this request, two adjacent parcels are also proposed to be redesigned from commercial to a residential general plan land use and zoning designation; and approval to reduce the required prevailing front yard setback at 1302 E. Fourteenth Street. The Planning Commission made no changes to the recommended conditions of approval outlined in the attached staff report (Exhibit A). 75C -1 GPA No. 2011 -03, AA No. 2011 -02 & VA No. 2011 -09 March 5, 2012 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. J . Trevino Executive Director Planning and Building Agency MM:rb mm\ PLANCOM\ gpa11 .03aa11 -02va11 -09 \1302_14thSt.cc 75C -2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: JANUARY 23, 2012 TITLE: PUBLIC HEARING — GENERAL PLAN AMENDMENT NO. 2011-03 AND AMENDMENT APPLICATION NO. 2011-02 FOR 1302, 1306 & 1310 EAST FOURTEENTH STREET AND VARIANCE NO. 2011-09 FOR 1302 EAST FOURTEENTH STREET, TO CONSTRUCT A NEW SINGLE FAMILY HOUSE AT 1302 EAST FOURTEENTH STREET Prepared by Melanie G. McCann Executive Director RECOMMENDED ACTION Recommend that the City Council: PLANNING COMMISSION SECRETARY APPROVED 0 As Recommended 0 As Amended O Set Public Hearing For DENIED O Applicant's Request O Staff Recommendation CONTINUED TO "A:��_A Planning Man er 1. Adopt a resolution approving General Plan Amendment No. 2011 -03 for 1302, 1306 and 1310 East Fourteenth Street. 2. Adopt an ordinance approving Amendment Application No. 2011 -02 for 1302, 1306 and 1310 East Fourteenth Street. 3. Adopt a resolution approving Variance No. 2011 -09 for 1302 East Fourteenth Street as conditioned. DISCUSSION Reauest of the Applicant Mr. Gamaliel Vasquez, property owner of 1302 East Fourteenth Street, is requesting approval of a general plan amendment, amendment application, and variance to allow the construction of a new single- family residence. As part of this request, two adjacent parcels are also proposed to be redesignated from commercial to a residential general plan land use and zoning designation. Additionally, the applicant is requesting approval of a variance from Sections 41 -603 of the Santa Ana Municipal Code (SAMC) to reduce the required 29 foot prevailing front yard setback for 1302 East Fourteenth Street. Protect Location and Site Description The overall project site includes three parcels. One parcel Is a 4,813 square foot vacant lot located on the southeast corner of Fourteenth Street and Grand Avenue, proposed by the applicant for a new single - family residence. The other adjacent two parcels are located to the east of the vacant EXHIBIT A 75C -3 GPA No. 2011 -03, AA No. 2011 -02 & VA No. 2011 -09 January 23, 2012 Page 2 parcel at 1306 and 1310 East Fourteenth; each with an existing single - family residence. The project area is surrounded by single family residences to the north and east, a multiple- family apartment complex and vacant lot to the south, and a combination of single family and commercial uses to the west (Exhibits 1 and 2). Project Description The applicant proposes to construct a 1,170 square foot single -story, single family residence with an attached 448 square foot two -car garage at 1302 East Fourteenth Street. The current General Plan land use designation for the vacant site and two adjacent residentially developed lots is General Commercial (GC), and zoned as Arterial Commercial (C5). This land use designation and zoning does not permit single family residences. As highlighted below, the proposed one -story residence has been designed to meet or exceed the single family residential standards, with the exception of the front yard setback. The proposed residence includes three bedrooms, two bathrooms, and an attached two -car garage (Exhibits 3 and 4). The architecture of the proposed new residence includes multiple building materials including brick veneer and stucco; as well as accents of wood siding and window trim. The proposed architecture meets the Citywide Design Guidelines and is compatible with the existing architectural styles of the neighborhood and housing along Fourteenth Street. A six foot decorative block perimeter wall is proposed, with an enhanced landscape edge along Grand Avenue (Exhibits 5 and 6). Project Background The vacant lot at 1302 East Fourteenth Street is a remnant parcel from the Santa Ana Freeway realignment and improvements, and identified in the 1 -5 Widening Remnant Parcels Reuse Plan (9995) for future residential development. In 2002, the applicant submitted a similar request to amend the General Plan land use and zoning designation and allow a variance to construct a single - family residence at 1302 East Fourteenth Street. Initially, staff recommended approval of the required discretionary actions. The proposal was reviewed by the Planning Commission at its April 8 and May 23, 2002 meetings, at which time the Planning Commission raised issues with the 75C -4 Proposed Required Front yard 24.4 ft 29 ft Side yard East 5 ft 5 ft Side yard West loft loft Rear yard 21.5 ft 20 ft Lot size 4,813 ft 4,000 ft (if resulted from legal subdivision) Street frontage 62.64 ft 50 ft Lot coverage maximum 34.4% 35% On -site parking 4 space (2 enclosed) 4 space (2 enclosed) The proposed residence includes three bedrooms, two bathrooms, and an attached two -car garage (Exhibits 3 and 4). The architecture of the proposed new residence includes multiple building materials including brick veneer and stucco; as well as accents of wood siding and window trim. The proposed architecture meets the Citywide Design Guidelines and is compatible with the existing architectural styles of the neighborhood and housing along Fourteenth Street. A six foot decorative block perimeter wall is proposed, with an enhanced landscape edge along Grand Avenue (Exhibits 5 and 6). Project Background The vacant lot at 1302 East Fourteenth Street is a remnant parcel from the Santa Ana Freeway realignment and improvements, and identified in the 1 -5 Widening Remnant Parcels Reuse Plan (9995) for future residential development. In 2002, the applicant submitted a similar request to amend the General Plan land use and zoning designation and allow a variance to construct a single - family residence at 1302 East Fourteenth Street. Initially, staff recommended approval of the required discretionary actions. The proposal was reviewed by the Planning Commission at its April 8 and May 23, 2002 meetings, at which time the Planning Commission raised issues with the 75C -4 GPA No. 2011 -03, AA No. 2011 -02 & VA No. 2011 -09 January 23, 2012 Page 3 proposed land use, potential noise impacts to the residence once constructed, and the proposed Grand Avenue widening project. As proposed, the project has been designed with a six foot perimeter wall to provide privacy and deflect noise from Grand Avenue traffic. In addition, per California Energy Code requirements, the windows for the residence will be insulated and dual glazed. The public right -of -way for Grand Avenue adjacent to the subject site was fully widened and improved at the time of the 1 -5 Widening Project. These improvements reduced the subject parcel at 1302 East Fourteenth Street to 4,813 square feet, and included the construction of a median barrier to restrict entry onto Fourteenth Street. At the Planning Commission's direction, the City's Housing Division met with the applicant in an effort to exchange this site with an Agency -owned property that would be suitable for single family residential development. None of the offers for land exchange were accepted by Mr. Vasquez. On September 19, 2002, the Planning Commission recommended denial of Mr. Vasquez's discretionary requests by a vote of 7 -0; with City Council adopting a resolution on October 6, 2003 to deny that proposal. Mr. Vasquez has chosen to pursue the project again, by submitting a new General Plan Amendment, Zoning Amendment and Variance applications in 2011. Proiect Analvsis General Plan Amendment The existing General Plan land use designation for the project area is General Commercial (GC) with a maximum allowable 0.5 floor area ratio. General Commercial districts are primarily located on commercial corridors and major arterial roadways in the City. They provide accessible commercial development along the City's arterials as well as provide support facilities and services, including retail, office, restaurants and various other services. The parcel located at 1302 East Fourteenth Street is a vacant remnant property as a result of the 1 -5 Freeway widening. Due to its limited lot size of 4,813 square feet and lack of driveway access onto Grand Avenue, this parcel is not considered viable for a freestanding commercial use, without the potential of intrusion on the adjacent residential neighborhood to the east. The General Plan land use designation proposed for the three parcels in the project area is Low Density Residential intended for a maximum of seven dwelling units per acre (Exhibit 7). The total land area included within the proposed General Plan Amendment No. 2011 -03 is 18,699 square feet or .43 acres (Exhibit 8). Amending the General Plan land use designation from General Commercial (GC) to Low Density Residential (LR7) will allow for consistency between the two existing single family homes and the City's General Plan land use vision. The proposed Low Density Residential land use designation will also act to implement the Land Use Element goal of preserving existing residential 75C -5 GPA No. 2011 -03, AA No. 2011 -02 & VA No. 2011 -09 January 23, 2012 Page 4 neighborhoods from commercial intrusion; as well as the Housing Element goal to encourage the maintenance, preservation and upgrade of neighborhoods, and provide additional affordable housing opportunities for the community. The proposed residential General Plan land use designation will also allow the applicant a viable use of his property at 1302 East Fourteen Street. Finally, the project will preserve and improve the character of the surrounding neighborhood and travel corridor aesthetics through the development of the existing vacant site. Amendment Application The proposed project area is within the Arterial Commercial (C5) zoning district, which does not identify a single family residence as a permitted use. The project area includes the applicant's vacant 4,813 square foot parcel at 1302 East Fourteenth Street; as well as the two adjacent 6,943 square foot adjacent parcels at 1306 and 1310 East Fourteenth Street, developed in the early 1950s as single family residences. The proposed amendment application (zone change) is needed to change the zoning from Arterial Commercial (C5) to Single - Family Residence (R1) to facilitate construction of a residence on the vacant lot, and preserve the two adjacent single family residences. The proposed R1 zoning will also allow the project sites to be consistent with the existing R1 zoning of the remaining residential properties and neighborhood to the east of the project sites (Exhibit 9). In addition, City zoning law states that structural alterations and additions may be made to existing single - family residences only if they are located in a residential zone. Thus, changing the existing commercial zone to the Single Family Residence (R1) zoning district will benefit the two existing single family residences (1306 and 1310 East Fourteenth Street) by reducing barriers to future home improvements or modification to their residences. Variance The applicant is requesting a variance from the prevailing front yard setback for single family residences. The project proposes a 24.4 feet front yard setback, which is a 16 percent reduction of the 29 feet prevailing front yard setback on East Fourteenth Street. 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. 75C -6 GPA No. 2011 -03, AA No. 2011 -02 & VA No. 2011 -09 January 23, 2012 Page 5 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 forms the basis for the recommendation contained in this report. Regarding this project, Section 41 -603 of the Santa Ana Municipal Code (SAMC) states that in residential zones "...where forty (40) percent or more of the lots any block... are developed with building, the required front yard for any new building or alteration to an existing building shall be not less than the arithmetical average of the front yard..." The prevailing average front yard setback along East Fourteenth Street is 29 feet. As proposed, the new single family residence will provide a 24.4 foot setback along Fourteenth Street. The applicant is requesting approval to allow the reduced setback to remain as proposed, which would require the approval of a variance from the code as discussed above. In analyzing the variance request staff must be able to show that findings can be made that support the criteria listed above. The project site has a special circumstance related to its size, shape and location. The property is located at the southeast corner of Fourteenth Street and Grand Avenue. The lot size was reduced to 4,813 square feet as a result of the Santa Ana Freeway (1 -5) Widening Project. The proposed one -story, single - family residence is well designed and complies with the development standards set forth in Chapter 41 of the Santa Ana Municipal Code including side and rear setbacks, parking and landscaping. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. Allowing the building to be constructed with a reduced front yard setback will allow the owner the ability to develop the property with a well- designed single - family residence that is consistent with the Single - Family Residence (R1) zoning district. Shifting the structure to comply with the 29 foot prevailing front setback standard would reduce the feasibility and livability of the proposed residence, which impacts the property rights of the owner. The granting of the variance will not be materially detrimental to the public or surrounding properties as the building and site have been designed to comply with all applicable development standards except for the front yard setback. The new building and related site improvements and landscaping will enhance this property as well as the surrounding properties. The brick veneer base and entry of the house chimney and stucco materials, as well as the wood window trim and wood siding accents at the eaves, are proposed to enrich the elevation and be compatible with the existing architectural style in the adjacent neighborhood. • Finally, the project will not adversely affect the general plan as the new single family house is a permitted use in the proposed Low Density Residential land use designation. In addition, the project is consistent with several goals and policies of the General Plan. Specifically, the Land Use Element Policy 2.10 supports new development which is harmonious in scale and 75C -7 GPA No. 2011 -03, AA No. 2011 -02 & VA No. 2011 -09 January 23, 2012 Page 6 character with the existing development, and Policy 3.5 encourages new development that is compatible in scale, and consistent with the architectural style and character of the neighborhood. Housing Element Goal 2 seeks to provide a diversity of quality housing, affordability levels, and living experiences that accommodate Santa Ana's residents and workforce of all household types, income levels, and age groups to foster an inclusive community. Public Notification The project site is located within with the Mabury Park Neighborhood Association and just east of the Grand Sunrise Neighborhood Association boundaries. Neighborhood leaders were contacted for both respective neighborhood associations. Upon request, staff and the applicant attended and made presentation to the Grand Sunrise Neighborhood Association in May 2011. The Mabury Park Neighborhood Association chairperson was also invited to attend. At the conclusion of the meeting, neighborhood association attendees were supportive of the proposed project. The applicant contacted the two other affected properties on Fourteenth Street in the fall of 2011. City staff followed -up to these same owners at 1306 and 1310 East Fourteenth Street with phone calls and a letter sent November 30, 2011. In conversation with City staff, the property owner at 1306 East Fourteenth expressed his concern with the existing overflow parking onto Fourteenth Street by the adjacent multiple family apartments, as well as the addition of on- street parking needs that would be created by the proposed new single family residence. The contacts of the Neighborhood Associations were notified by mail 10 days prior to this public hearing. 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 surrounding property owners within 500 feet of the project site, as well as concerned citizens listed on the Permanent Notification List. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission recommend that the City Council approve General Plan Amendment No. 2011 -03, Amendment Application No. 2011 -02, and Variance No. 2011 -09 as conditioned. 75C -8 GPA No. 2011 -03, AA No. 2011 -02 & VA No. 2011 -09 January 23, 2012 Page 7 CEQA Analysis In accordance with the California Environmental Quality Act, the proposed project is exempt from further review pursuant to Section 15303, Class 3 for a project that includes new construction of up to three single family residences in an urban area. Categorical Exemption Environmental Review No. 2008 -34 will be filed for this project. Melanie G. McCann, AICP Associate Planner MM:jm mm1PLANCOMtgpa 11 -03aa 11- 02va11- 0911302_14thSt.po Attachments: Exhibit 1 — General Vicinity Map Exhibit 2 — Existing Land Use Map Exhibit 3 — Site Plan Exhibit 4 — Floor Plan Exhibit 5 — Building Elevations Exhibit 6 — Landscape Plan Exhibit 7 — General Plan Land Use Map Exhibit 8 — Revised Land Use Element Exhibit 9 — Zoning Map 75C -9 Sergio Klotz, AIC Principal Planner SEVENTEENTH ST. 0 CS 9F C5 cs PI c I I RI J.a C2 N 0 R I c R R I K 1 4s R I RI cs C2 RI RI RI Ry ROJECTSrTE' 11� o R2 R) RI W 0 RI RI RI M2 3 o 7�. 0 R3 N RI' O Sad, N A� 1 11 R1 N SD-21 R1 RI RI S Fyr A F�• pl,ij. O, a,�„ t, N12 0 M1 F13 R3 RI RI M2 FRU2 Rl P2 per. l R 7-1- 11 RI RI RI M2 M' 2 mss P p CI ID AC2'17� "1 ,.DP 1 p—, E�i AFM-21 M2 -- t R2 R2 P2 - R2 mi R2 —, 1� C2 M2 fL. 114 F2-8 R2 C2 R2 cS R2 C2 cl C2 C2 + I ST ST. FIRST ST. Al MAPALAGROATLIPALt CR OOMMBMLFE90MM R1 9NO-FFAMILYFESIDEVIAL -8 PAR41FIGIVOURWON GC O04A3i� WrCENRR m TWFAMILYRUOUXE G&A 0CWGUALSW111MAIN Mt UGHTINDUSTRAL m KILMLEOMSTYMULTIFLE cl 0WAUNITTY001AMMAL M2 HMVY INDUS!"RAL WAILYFESDeXE Cl-MD cWm. WAMU4AUMU93PA cisim CT mo IMUTAR(OPERAIMS PA 9.1l31F8kNAPAMENTS C2 GENMALMIMUC[k 0 OPEN GRACE HE tmwimLeATE C3 COITPALBLONESS p PFUESSIMAL S) 9MFlG0EVaGWM M-A C8fTl;1SL0U9NVS&ARTl6TVtiAGE r(D RANNEDCOMWATYI)BRUVENT w %WRCRm C4 PLANNE)S-1OFFINGCENTIR PFO RANNED FERDMAL DBAiCW1WT cs ARTUVICUAMUCIAL A---h GPA 2011-3/AA 2011-2NA 2011-9 A (w" VASQUEZ RESIDENCE sky, 1302-1310 EAST FOURTEENTH STREET 500 FEEr 1" = 1000 FEET P L A N N I N G A N D 8 U I L D I N G A G E N C Y VICINITY MAP EXHIBIT I 75C -10 S J N R G E S ! J } a L Y J w �� COMMERCIAL c Z to (TARGET) 5 I p ww E Z A M I W w w S 1 D N C t7 w o l7 w Q S I N G L E M I L Y Z N" R E 5 I D I C E vi a W u 1STH STREET 15TH STREET S N LF FA I Y 7M.F.R. RESI ENCE C MMECIAI S NGLE F ME Y RE IDENC SI GL Y 14TH STREET ENC ESI ENC 14TH F- Z i S N L F M I L Y STREET R R S D III E c E m J SIN tE FAMILY ¢ Q _ w u w R SIDE CE ¢ Z Z ¢ cc VACANT w �_ Q } U' ¢ Z J �^ O u w 0 W RETAIL w w ? aZ comm. MULTI- FAMILY "' A LL p RESIDENCE o L„ Ll..l J W '� Vt Sq�Tq a ac VACANT Lu ZCr qNq 3 Project Area FRFEiZ/,g�, S I N R G E S ! N M C I E L Y J w �� 5 I L E A M I lJ7 w R E S 1 D N C E z Cr GPA 2011 -3 /AA 2011 -2NA 2011 -9 VASQUEZ RESIDENCE r1 1302 -1310 EAST FOURTEENTH STREET P L A N N I N G A N D B if I L D I N G A G E N C Y EXISITING LAND USE MAP EXHIBIT 2 75C -11 yo'YNy vmvs "is Hit' j isv3 zoo :ssuaayomains NVId 3J z3nbsvA -mrivwvo 3:JN3a158� v s�estiavwmm ►oo•aa• BOP "%Wv �mwvw 2 G�k t i _t `is kh � .fit I a J€gt j33. g an 6 5. Y 1 ZKK HRR;I. ZAS M Millen lll. Q R 1�. i w t 0 ;Ooj;s 4M4 75C -12 IV - ai 06- k- ,.V-.WE EXHIBIT 4 75C -13 141 ?F- &I C W lu IL Sol 0 0 rim 6� loom 1 1I 1 � M-NiR 1A ji iiiiiiiiiiii M MR0 SOMWAN 1 ,.V-.WE EXHIBIT 4 75C -13 141 ?F- &I C W lu IL Sol 0 0 rim 6� n MH t h 3 � 75C -14 � figg, �efi8�R 0 z EXHIBIT 5 wa +xs r.+ VD 'vw vmvs "Js HIV 1 J sv3 ZO£ 1 p r ° � aas r�l+u sni i�aFarsrrntF3MMt :883Tt4QV4HtUI(1g r �ry 3x� 3d" 'N"' z3nbsvA *i3nvwv� } Nd"Id 3dVOSONdl :ao.4 3ON30193H y F an a jr bc8 �� ti0j, e f�F3£19 E�JS, kg F i 6 }i yy �'�3FVae }P.P crs �•3 i i �` a �'�gp €g 1t �1a F' (� fpt i�1li } MR, MIY /Q ja � �I��MU d9l yd E e e a e { [N t ; tE 'ac i9 s� 7� P fFF Ii Yi gpi Y � i c� a � � r i }g4 }f�dE�ie- s � : i £� ��€ ;s� pia a °F� €3 p Si �� EE a �= 6 #•4i} E� } E 7 5GE 1 f v3 u €a 3 3 5 1 Y i j 5 s ti i e 'e ISO.�od_ e a x e e e ! E C g } a j 88 } }�sf p e e b Od oaap 1 4N 14 z Y f 1 00000000 a �tyi Iii =. �i ii �� YYP:i ill ! i 66S1a a? 6I a : b i4 �rli 7? jG 1t �1a F �f If F 3�? ;o t }! �1 3QE e e a e { [N t ; tE 'ac i9 s� 7� P fFF Ii Yi gpi Y � i c� a � � r i }g4 }f�dE�ie- s � : i £� ��€ ;s� pia a °F� €3 p Si �� EE a �= 6 #•4i} E� } E 7 5GE 1 f v3 u €a 3 3 5 1 Y i j 5 s ti i e 'e ISO.�od_ e a x e e e ! E C g } a j 88 } }�sf p e e b Od oaap 1 4N 14 z Y f 1 00000000 a �tyi Iii =. �i ii �� YYP:i ill ! i 66S1a a? 6I a : b i4 �rli 7? 15TH STREET Lu z D O O LnS' H Q w S %)Iq STREET 4 V4 w Z w Q 0 z l7 1%kF 1STH STREET 14TH CTRGf =T Existing General Commercial (GC) Designation Exisiting Low Density Residential (1-117) Designation Proposed Change from GC to LR7 G PA 2011 -3 /AA 2011 -2 /VA 2011 -9 VASQUEZ RESIDENCE 1302-1310 EAST FOURTEENTH STREET P l A N N I N G A N D B U 1 L D I N G A G E N C Y GENERAL PLAN LAND USE DESIGNATION MAP EXHIBIT 7 75C -16 City of Santa Ana General Plan Land Use Element 1998 City of Santa Ana Planning Division w� Adopted February 2, 1998 (Reformatted January 2010) TIM following is a chronology of the approved general plan antendntents that have been incorporated into this document since the comprehensive update of (he General Plan Land Use Element adopted by the Santa Ana City Council February 2, 1998 (G!'A 1997 -05): GPA 201 i-03(pendi GPA 2011.02 (June 6, 2011) GPA 200701 (March 19, 2007) CPA 2006-01 (October 2, 2006) CPA 2003 -02 (June 16, 2003) GPA 2003 -01 (February 18, 2003) CPA 2000 -03 (December 4, 2000) GPA 2000 -02 (November 20, 2000) CPA 2010.01 (June 7, 20 10) CPA 2006 -02 (July 20, 2009) CPA 200501 (December 5, 2005) GPA 2005 -02 (October 17, 2005) CPA 2002 -01 (September 3, 2002) CPA 2002 -03 (August 19, 2002) CPA 1999 -02 (October 18, 1999) CPA 1999 -01 (August 16, 1999) CPA 2007.03 (May 18, 2009) CPA 2004.03 (February 2, 2009) CPA 2004 -01 (April 5, 2005, as passed by the voters of Santa Ana) CPA 2001.03 (February 19, 2002) CPA 2001.02 (January 7, 2002) CPA 1998 -04 (October 5, 1998) CPA 1998 -05 (September 21, 1998) CPA 2008 -01 (May 5, 2008) CPA 200702 (June 18, 2007) CPA 2004 -04 (Juty 19, 2004) CPA 200406 (July 6, 200x) CPA 2000 -09 (May 7, 2001) CPA 2000 08 (February 5, 2001) CPA 1998 -01 (day 4, 1998) EXHIBIT 8 75C'-1 7 LAND USE ELEMENT Residential The Land Use Plan provides for three distinct residential land use designations. Residential development is also permitted in two other designations: District Center and Urban Neighborhood. The Santa Ana Land Use Plan includes the following residential land use designations: ■ The Low Density Residential (LR -7) designation applies to those areas of the City which are developed with lower density residential land uses. The allowable maximum development intensity is 7 units per acre. Development in this category is characterized primarily by single - family homes. This designation applies to a large proportion of the City (6,466.06 465-.-6 acres) representing 47 percent of the City's total land area. ■ The Low - Medium Density Residential (LMR -11) designation applies to those sections of the City which are developed with residential uses at permitted densities of up to l l units per acre. The land area included in this designation is approximately 433.7 acres. The great majority of the land designated as Low- Medium Density Residential is located in the westerly portion of the City, north and south of First Street. Properties with this designation are typically characterized by mobile home parks, a mixture of duplexes and single family residences, or small lot subdivisions. ■ The Medium Density Residential (MR -15) designation applies to those sections of the City which are developed with residential uses at densities of up to 15 units per acre.. Development in this designation is characterized by duplexes, apartments, or a combination of both. A total of 385.3 acres is designated as Medium Density Residential. The designation applies to areas located in the vicinity of downtown, areas north and south of ;MacArthur Boulevard, and in other areas where there arc established multiple- family development projects. CITY OF SANTA ANA GENERAL PLAN 715- 1 is tr 7 A -19 s LAND USE ELEMENT ■ The General Commercial (GC) district applies to commercial corridors in Santa Ana including those located along Main Street, Seventeenth Street, Harbor Boulevard, and other major arterial roadways in the City. The intensity standard applicable to this designation is a floor area ratio of 0.5 -1.0, though most General Commercial districts have a FAR of 0.5. A total of 1,071.6- 17;142 -21:0 acres ofland is included in this designation. General Commercial districts are key components in the economic development of the City. They provide highly visible and accessible commercial development along the City's arterial transportation corridors. In addition, General Commercial land uses provide important neighborhood facilities and services, including shopping, recreation, cultural and entertainment activities, employment, and education. The districts also provide support facilities and services for industrial areas includingoflice and retail, restaurants and various other services. The General Commercial development standards are based upon the character and intensity of development, as well as the degree of access and market demand for these properties. The relationships to adjacent land uses, are also considered. Uses typically located in this district are: ■ Business and professional offices; ■ Retail and service establishments; ■ Recreational, cultural, and entertainment uses; and ■ Vocational schools. General Commercial Districts have a floor area ratio of0.5 with the exception of the Mid -town area which has an floor area ratio of up to 1.0. ■ One Broadway Plaza District Center is a separate land use designation as it has an F.A.R. of 2.9, which exceeds the typical District Center intensity limit. Additionally, it does not include a residential component. One Broadway Plaza is envisioned as a landmark professional office complex that will be a focal point in the Downtown Redevelopment area serving the Civic Center complex, Downtown, and Midtown urban areas. The City's District Centers and major development areas are shown in Exhibit A -5. CITY OF SANTA ANA GENERAL PLAN lgeof `19 r 't ,t LAND USE ELEMENT Table A -4 Land Use Plan Build -out Capacities rtals/ IMtt Low Density Residential Low Medium Density Residential !R -7 Acres $6�� Intensity/ Densli 7 Mae —_ -- Effective BuNdoulr 45,262 du lhlR 11 MR -15 433.7 385.3 11 dWae 15 Wait; 4,771 du 5,779 � Medium tensity Residential -- - ._ Subtotal EII�AfF� Downtown Metro East — - Transit Village Other2 Urban Neighborhood — Subtotal Professional & Admin. Office _ _ 411 2,057,824 sf _. _5 12 du 1,661 du 5,551,-.du,- 2,761 du DC 62.5 FAR 3.0 2.057,624 sf 11661 ft DC -- 86.3 — FAR 3.0 3,245,185 st 5,551 du 3,245,185:1 402,864 s DC 51.4 FAR 5.0 -- 402,864 sf 2,761 du OC 301.2 90 du /dc FAR 1.0.2.0 11,808,950 sf 2,710 du 23,617,901 21710 du Ertl MA FAR 0.5.1.5 724,249 sf 2,177 du 14,860 du 724,249s 30,048,0231 s 27.5244S8d1 2,177 du Pol0 858.4 FM all-11.41 18,239,072 dt i6,W, *Ili 14,W do Commercial GC 1:071.6 1,072 0 FAR 05-1.0 23.338,795 sf 23,349,- 1�0-si _ _ UGeneral 696228 s1 One Broadway Plaza District Cb' 8ubtotal Will toflM Open Space Subtotal OBPDC Mla NRS 4.3 1 7 9. FAR 2.8 543,193 sf 543,193 of — - -- -- FM 0.46 1 FM 8145 42Xt 794 41 8,837,1W at -_74,7W � 1 117,344,394 d1 I.Sfttl 2783 06 1,017.6 FAR 0.2 8,867,509 sf 15,605,267 s1 8,867,509 sf 26,211,903 di 1,814.2 FAR =floor area ratio, d u. = dwelling unit; s.r. = square feet (of (feet area). Acreage shown In table does not include roads in right -at -way.' I Effective capacity for non - residential development assumes development possible under the lower range of FAR intensity standards with the exception of the Metro East District Center, Transit Village District Center, Downtown District Center, and Urban Neighborhood areas. The Metro East District Center, Transit Village District Center, Downtown District Center, and Urban Neighborhood areas allow a range of intensity for mixture of residential and non - residential development based on the zoning development standards. Residential effective capacity was calculated by adding the14,660 units possible in the District Center and Urban Nelghborhood with the existing 74,588 (Census 2000) housing units. 2 Land use designation permits both residential and non - residential development. Build -out assumes 90% of land area will be developed as commercial and 10% will be developed as residential. Land use designation permits high intensity office development with ancillary retail use. This table has been revised to correspond with the GIS Land Use Map illustrated in Exhibit 2. CITY OF SANTA ANA GENERAL PLAN �gdf620 �r t 0, A -35 C14 LLJ co i 7p El 1� 0 — 0 o M f IN cc t -4 75C-21 C: U) cu E :11 FL 0--o < 0 C: )) ! ® ! :..i:::.'........ ! ! ) CU < > co U- 4 J., -------- -- 75C-22 15TH STREET w z w Q 0 O O V) Q Lit S%,q STREET qN,q ua D z ua a a z Q a 0 FRFk GPA 2011 -3 /AA 2011 -2NA 2011 -9 VASQUEZ RESIDENCE t� 1302 -1310 EAST FOURTEENTH STREET C�,( 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 ZONING MAP EXHIBIT 9 75C -23 Existing Zone C5 (Arterial Commercial) ' • • Existing Zone R2 (Two-Family Residence) %\ Existing Zone C4 (Planned Shopping Center) Existing Zone R1 (Single Family Residence) Proposed Zone Change from CS to R1 GPA 2011 -3 /AA 2011 -2NA 2011 -9 VASQUEZ RESIDENCE t� 1302 -1310 EAST FOURTEENTH STREET C�,( 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 ZONING MAP EXHIBIT 9 75C -23 75C -24 ROH - 01/23/12 RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING GENERAL PLAN AMENDMENT NO. 2011 -03 FOR THE PROPERTIES LOCATED AT 1302, 1306 AND 1310 EAST FOURTEENTH STREET AND APPROVING VARIANCE NO. 2011 -09 AS CONDITIONED TO ALLOW A REDUCTION IN THE FRONT YARD SETBACK FOR THE PROPERTY LOCATED AT 1302 EAST FOURTEENTH STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting General Plan Amendment No. 2011 -03 to amend the General Plan to change the parcels located at 1302, 1306 and 1310 East Fourteenth Street, from General Commercial (GC) to Low Density Residential (LR7) to allow the construction of a new single - family residence. A true and correct copy of the amendments to the General Plan is attached herewith as Exhibit "B" and incorporated herein by this reference. B. On January 23, 2012, the Planning Commission held a duly noticed public hearing and voted to recommend that the City Council adopt a resolution approving General Plan Amendment No. 2011 -03. C. On March 5, 2012, the City Council of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral, related to General Plan Amendment No. 2011 -03. D. The Council finds that General Plan Amendment No. 2011 -03 is consistent with the General Plan, including, but not limited to, its policies and goals to preserve existing residential neighborhoods from commercial intrusion and to encourage the maintenance, preservation and upgrade of neighborhoods, and provide additional affordable housing opportunities for the community. In addition, the project will allow for consistency between the two existing single family homes and the City's General Plan land use vision. The project will also allow the applicant a viable use of his property at 1302 East Fourteenth Street. Further, the project will preserve and improve the character of the surrounding neighborhood and travel corridor aesthetics through the development of the existing vacant site. Resolution No. 2012 -XXX 75C -25 Page 1 of 6 E. The Council finds that the City's general plan is designed, as it must be, to accommodate a wide range of competing interests — including those of developers, neighborhoods and homeowners, prospective homebuyers, environmentalists, current and prospective business owners, jobseekers, taxpayers, and providers and recipients of all types of city - provided services — and to present a clear and comprehensive set of principles to guide development decisions. The City's general plan sets forth these guiding principles. Once in place, it is the province of this Council to examine the specifics of a proposed project to determine whether it would be in harmony with the policies stated in the general plan. F. The City Council has weighed and balanced the general plan's policies, both new and old, and has determined that based upon this balancing that General Plan Amendment No. 2011 -03 is consistent with the purpose of the general plan. G. Applicant is requesting approval of Variance No. 2011 -09 to allow a reduction in the front yard setback for a new single family residence at 1302 East Fourteenth Street. H. On January 23, 2012, the Planning Commission held a duly noticed public hearing and voted to recommend that the City Council adopt a resolution approving Variance No. 2011 -09 as conditioned herewith in Exhibit "A" and incorporated herein by this reference. On March 5, 2012, the City Council of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral, related to Variance No. 2011 -09. J. Variance No. 2011 -09 has been filed with the City of Santa Ana seeking to reduce the required front yard setback for single family residences. Section 41 -603 of the Santa Ana Municipal Code requires that, "...where forty (40) percent or more of the lots any block... are developed with building, the required front yard for any new building or alteration to an existing building shall be not less than the arithmetical average of the front yard..." The prevailing average front yard setback along East Fourteenth Street is 29 feet. As proposed, the new single family residence will provide a 24.4 foot setback along Fourteenth Street. K. Santa Ana Municipal Code Section 41 -638 authorizes the Planning Commission to grant a variance upon making certain findings. 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 provisions of this Chapter. Resolution No. 2012 -XXX Page 2 of 6 75C-26 The project site has a special circumstance related to its size, shape and location. The property is located at the southeast corner of Fourteenth Street and Grand Avenue. The lot size was reduced to 4,813 square feet as a result of the Santa Ana Freeway (1 -5) Widening Project. The proposed one -story, single - family residence is well designed and complies with the development standards set forth in Chapter 41 of the Santa Ana Municipal Code including side and rear setbacks, parking and landscaping. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. Allowing the building to be constructed with a reduced front yard setback will allow the owner the ability to develop the property with a well- designed single - family residence that is consistent with the Single - Family Residence (R1) zoning district. Shifting the structure to comply with the 29 foot prevailing front setback standard would reduce the feasibility and livability of the proposed residence, which impacts the property rights of the owner. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The granting of the variance will not be materially detrimental to the public or surrounding properties as the building and site have been designed to comply with all applicable development standards except for the front yard setback. The brick veneer base and entry of the house chimney and stucco materials, as well as the wood window trim and wood siding accents at the eaves, are proposed to enrich the elevation and be compatible with the existing architectural style in the adjacent neighborhood. 4. That the granting of a variance will not adversely affect the General Plan of the City. Finally, the project will not adversely affect the general plan as the new single family house is a permitted use in the proposed Low Density Residential land use designation. In addition, the project is consistent with several goals and policies of the General Plan. Specifically, the Land Use Element Policy 2.10 supports new development with is harmonious in scale and character with the existing Resolution No. 2012 -XXX 75C -27 Page 3 of 6 development, and Policy 3.5 encourages new development that is compatible in scale, and consistent with the architectural style and character of the neighborhood. Housing Element Goal 2 seek to provide a diversity of quality housing, affordability levels, and living experiences that accommodate Santa Ana's residents and workforce of all household types, income levels, and age groups to foster an inclusive community. L. In accordance with the California Environmental Quality Act, the proposed project is exempt from further review pursuant to Section 15303, Class 3 for a project that includes new construction of up to three single family residences in an urban area. Categorical Exemption Environmental Review No. 2008 -34 will be filed for this project. Section 2. The City Council hereby approves General Plan Amendment No. 2011 -03 and Variance No. 2011 -09. 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 March 5, 2012, and exhibits attached thereto, and the public testimony written and oral, all of which are incorporated herein by this reference. ADOPTED this day of , 2012. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph A. Straka Interim City Attorney By: Ryan O. Hodge Assistant City Attorney Resolution No. 2012 -XXX Page 4 of 6 75C_28 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. 2012 -XXX Page 5 of 6 75C -29 75C -30 Conditions for Approval for Variance No. 2011 -09 Should the City Council approve Variance No. 2011 -09, the approval is subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or 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. All proposed improvements must conform to the Site Plan Review approval of DP No. 2008 -06 and the staff report exhibits. 2. Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. Landscaping, once installed, shall be maintained per the approved landscape plan. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy and per the approved plan. Exhibit A Resolution No. 2012 -XXX Page 6 of 6 75C -31 75C -32 City of Santa Ana General Plan Land Use Element 1998 City of Santa Ana Planning Division i' Adopted February 2, 1998 (Reformatted January 2010) The following is a chronology o£the approved general plan amendments that have been incorporated into this document since the comprehensive update of the General Plan Land Use Element adopted by the Santa Ana City Council February 2, 1998 (GPA 1997 -05 GPA 2011 -03 (March 5, 2012) GPA 2007 -01 (March 19, 2007) GPA 2003 -02 (June 16, 2003) GPA 2000 -03 (December 4, 2000) GPA 2011 -02 (June 6, 2011) GPA 2006 -01 (October 2, 2006) GPA 2003 -01 (February 18, 2003) GPA 2000 -02 (November 20, 2000) GPA 2010 -01 (June 7, 2010) GPA 2005 -01 (December 5, 2005) GPA 2002 -01 (September 3, 2002) GPA 1999 -02 (October 18, 1999) GPA 2008 -02 (July 20, 2009) GPA 2005 -02 (October 17, 2005) GPA 2002 -03 (August 19, 2002) GPA 1999 -01 (August 16, 1999) GPA 2007 -03 (May 18, 2009) GPA 2004 -01 (April 5, 2005, as passed by GPA 2001 -03 (February 19, 2002) GPA 1998 -04 (October 5, 1998) GPA 2004 -03 (February 2, 2009) the voters of Santa Ana) GPA 2001 -02 (January 7, 2002) GPA 1998 -05 (September 21, 1998) GPA 2008 -01 (May 5, 2008) GPA 2004 -04 (July 19, 2004) GPA 2000 -09 (May 7, 2001) GPA 1998 -01 (May 4, 1998) GPA 2007 -02 (June 18, 2007) GPA 2004 -06 (July 6, 2004) GPA 2000 -08 (February 5, 2001) EXHIBIT B 75C -33 f� �., e ►� �!ii��ri �g �' "mot A rr 21 a u A 74 6f, 10 A11- A .eta- R 41a,1a -4 r:,�uc.t �w e 114. ��t �ttl(liifk ��1. ����j =�,•r ». J {�(' Y f s ai![i Of LAND USE ELEMENT guidance for the purpose of ensuring navigable airspace is not impacted by future development in the City. REDEVELOPMENT PLANS An estimated 5,185 acres (8.1 square miles) of land in Santa Ana is currently included in one Merged Project Area. Prior to August 2004, this Project Area was divided into six separate redevelopment project areas as described below. Of this total, 9 percent (464 acres) is in residential use, 32 percent (1,678 acres) commercial, 40 percent (2,075 acres) industrial, with other uses accounting for the remaining 19 percent (968 acres). The following six redevelopment plans have been adopted: ■ Santa Ana Redevelopment Plan. This plan which encompasses 694 acres, was adopted in 1973 to revitalize the downtown area, improve traffic circulation, reestablish businesses, and stimulate private investment; ■ North Harbor Boulevard Redevelopment Plan. Adopted in 1982, the Plan covers 470 acres along Harbor Boulevard. The Plan for this area was adopted to define future development, and create design standards for new development in the area. ■ Inter -City Commuter Station Redevelopment Plan. This plan, also adopted in 1982, focuses on approximately 525 acres designed to provide for the development of a commuter rail station and to promote supporting uses. ■ South Main Street Redevelopment Plan. Adopted in 1982, the plan applies to 1,500 acres in one of the primary commercial and industrial districts of the City; ■ South Harbor Boulevard/Fairview Street Redevelopment Plan. Adopted in 1982, this 1,085 acre plan covers a key industrial area in the vicinity of Harbor Boulevard and Fairview Street; and ■ Bristol Corridor Redevelopment Plan. Adopted in 1989, the plan promotes the redevelopment of a 781 acres area along the Bristol Street corridor of the City. The location of the redevelopment project areas are shown in Exhibit A -1. d .k, A -4 CITY OF SANTA ANA GENERAL PLAN 75C -35 4 •' �+ o i e i i � _�t eo R mR � Z a LL All Dal s z z u V 75C -36 LAND USE ELEMENT Residential The Land Use Plan provides for three distinct residential land use designations. Residential development is also permitted in two other designations: District Center and Urban Neighborhood. The Santa Ana Land Use Plan includes the following residential land use designations: ■ The Low Density Residential (LR -7) designation applies to those areas of the City which are developed with lower density residential land uses. The allowable maximum development intensity is 7 units per acre. Development in this category is characterized primarily by single - family homes. This designation applies to a large proportion of the City (6,466.0 acres) representing 47 percent of the City's total land area. ■ The Low - Medium Density Residential (LMR -11) designation applies to those sections of the City which are developed with residential uses at permitted densities of up to 11 units per acre. The land area included in this designation is approximately 433.7 acres. The great majority of the land designated as Low - Medium Density Residential is located in the westerly portion of the City, north and south of First Street. Properties with this designation are typically characterized by mobile home parks, a mixture of duplexes and single family residences, or small lot subdivisions. ■ The Medium Density Residential (MR -15) designation applies to those sections of the City which are developed with residential uses at densities of up to 15 units per acre. Development in this designation is characterized by duplexes, apartments, or a combination of both. A total of 385.3 acres is designated as Medium Density Residential. The designation applies to areas located in the vicinity of downtown, areas north and south of MacArthur Boulevard, and in other areas where there are established multiple - family development projects. w ... w CITY OF SANTA ANA GENERAL PLAN A -19 75C -37 f11.U1��9����t�►r1 ■ The General Commercial (GC) district applies to commercial corridors in Santa Ana including those located along Main Street, Seventeenth Street, Harbor Boulevard, and other major arterial roadways in the City. The intensity standard applicable to this designation is a floor area ratio of 0.5 -1.0, though most General Commercial districts have a FAR of 0.5. A total of 1,071.6 acres of land is included in this designation. General Commercial districts are key components in the economic development of the City. They provide highly visible and accessible commercial development along the City's arterial transportation corridors. In addition, General Commercial land uses provide important neighborhood facilities and services, including shopping, recreation, cultural and entertainment activities, employment, and education. The districts also provide support facilities and services for industrial areas including office and retail, restaurants and various other services. The General Commercial development standards are based upon the character and intensity of development, as well as the degree of access and market demand for these properties. The relationships to adjacent land uses, are also considered. Uses typically located in this district are: • Business and professional offices; • Retail and service establishments; • Recreational, cultural, and entertainment uses; and • Vocational schools. General Commercial Districts have a floor area ratio of 0.5 with the exception of the Mid -town area which has an floor area ratio of up to 1.0. ■ One Broadway Plaza District Center is a separate land use designation as it has an F.A.R. of 2.9, which exceeds the typical District Center intensity limit. Additionally, it does not include a residential component. One Broadway Plaza is envisioned as a landmark professional office complex that will be a focal point in the Downtown Redevelopment area serving the Civic Center complex, Downtown, and Midtown urban areas. The City's District Centers and major development areas are shown in Exhibit A -5. CITY OF SANTA ANA GENERAL PLAN 75C -38 A_21 I� ■ �! IV 1� F LAND USE ELEMENT Table A -4 Land Use Plan Build -out Capacities FAR= floor area ratio; d.u.= dwelling unit; s.f.= square feet (of If area). Acreage shown in table does not include roads in right -of -way. 1 Effective capacity for non - residential development assumes development possible under the lower range of FAR intensity standards with the exception of the Metro East District Center, Transit Village District Center, Downtown District Center, and Urban Neighborhood areas. The Metro East District Center, Transit Village District Center, Downtown District Center, and Urban Neighborhood areas allow a range of intensity for mixture of residential and non - residential development based on the zoning development standards. Residential effective capacity was calculated by adding thel4,860 units possible in the District Center and Urban Neighborhood with the existing 74,588 (Census 2000) housing units. 3 Land use designation permits both residential and non - residential development. Build -out assumes 90% of land area will be developed as commercial and 10% will be developed as residential. 3 Land use designation permits high intensity office development with ancillary retail use. This table has been revised to correspond with the GIS Land Use Map illustrated in Exhibit 2. c., ,q mfr CITY OF SANTA ANA GENERAL PLAN A -35 75C -39 Intensity/ I Effective Buildout' Theoretical Land Use Residential Acres Degsik Buildout Low Density Residential LR -7 6,466.0 7 du /ac 45,262 du Low Medium Density Residential LMR -11 433.7 11 du /ac 4,771 du Medium Density Residential MR -15 385.3 15 du /ac 5,779 du Subtotal 7,284.8 Non Res. 89,448 du' Res. Non-Res. 55,812 du Res. Mixed Use District Center Downtown DC 62.5 FAR 3.0 2,057,824 sf 1,661 du 2,057,824 sf 1,661 du Metro East DC 98.3 FAR 3.0 3,245,185 sf 5,551 du 3,245,185 sf 5,551 du Transit Village DC 51.4 FAR 5.0 402,864 sf 2,761 du 402,864 si 2,761 du Other DC 301.2 90 du /ac FAR 1.0 -2.0 11,808,950 sf 2,710 du 23,617,901 s 2,710 du Urban Neighborhood UN 148.1 FAR 0.5 -1.5 724,249 sf 2,177 du 724,249 s 2,177 du Subtotal Commercial 658.4 18,239,072 sf 14,860 du 30,048,0231 s 14,860 du Professional & Admin. Office PAO 633.0 FAR 0.5 -1.0 13,787,219 sf 27,574,438 sf General Commercial GC 1,071.6 FAR 0.5 -1.0 23,338,795 sf 46,677,589 sf One Broadway Plaza District Ctr3 OBPDC 4.3 FAR 2.9 543,193 sf 543,193 sf Subtotal Industrial 1,709.9 37,669,207 sf 74,795,221 sf Industrial IND 2,188.2 FAR 0.45 42,892,704 sf 42,892,704 sf 1 Institutional5 INS 796.3 FAR 0.2 -0.5 6,937,758 sf 17,344,394 sf t_t Open Space OS 1,017.8 FAR 0.2 8,867,509 sf 8,867,509 sf Subtotal 1,814.2 15,805,267 sf 26,211,903 sf FAR= floor area ratio; d.u.= dwelling unit; s.f.= square feet (of If area). Acreage shown in table does not include roads in right -of -way. 1 Effective capacity for non - residential development assumes development possible under the lower range of FAR intensity standards with the exception of the Metro East District Center, Transit Village District Center, Downtown District Center, and Urban Neighborhood areas. The Metro East District Center, Transit Village District Center, Downtown District Center, and Urban Neighborhood areas allow a range of intensity for mixture of residential and non - residential development based on the zoning development standards. Residential effective capacity was calculated by adding thel4,860 units possible in the District Center and Urban Neighborhood with the existing 74,588 (Census 2000) housing units. 3 Land use designation permits both residential and non - residential development. Build -out assumes 90% of land area will be developed as commercial and 10% will be developed as residential. 3 Land use designation permits high intensity office development with ancillary retail use. This table has been revised to correspond with the GIS Land Use Map illustrated in Exhibit 2. c., ,q mfr CITY OF SANTA ANA GENERAL PLAN A -35 75C -39 75C -40 ORDINANCE NO. NS -XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ZONING THE PROPERTIES LOCATED AT 1302, 1306 AND 1310 EAST FOURTEENTH STREET FROM ARTERIAL COMMERCIAL (C5) TO SINGLE - FAMILY RESIDENCE (R1) (AA NO. 2011 -02) 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 -02, General Plan Amendment No. 2011 -03, and Variance No. 2011 -09 to allow the construction of a new single - family residence at 1302 East Fourteenth Street. A true and correct copy of the amendments to Sectional District Map 8 -5 -9 is attached herewith as Exhibit A and incorporated herein by this reference. B. On January 23, 2012, 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 -02. 2. Adopt a resolution approving General Plan Amendment No. 2011 -03. 3. Adopt a resolution approving Variance No. 2011 -09 as conditioned. C. Amendment Application No. 2011 -02 came before the City Council of the City of Santa Ana for a duly noticed public hearing on March 5, 2012, to consider all testimony, written and oral. D. Amendment Application No. 2011 -02 has been filed with the City of Santa Ana to zone the properties located at 1302, 1306 and 1310 East Fourteenth Street from Arterial Commercial (C5) to Single - Family Residence (R1). E. Amendment Application No. 2011 -02 is consistent with the General Plan, including but not limited to its goals and policies: 1. The project will allow for consistency between the two existing single family homes and the City's General Plan land use vision. 75C -41 2. The project will act to implement the Land Use Element goal of preserving existing residential neighborhoods from commercial intrusion; as well as the Housing Element goal to encourage the maintenance, preservation and upgrade of neighborhoods, and provide additional affordable housing opportunities for the community. 3. The project will allow the applicant a viable use of his property at 1302 East Fourteenth Street. 4. The project will preserve and improve the character of the surrounding neighborhood and travel corridor aesthetics through the development of the existing vacant site. 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 1302 East Fourteenth Street is consistent with the purpose of the general plan. G. The City Council also adopts as findings all facts presented in the Request for Council Action dated March 5, 2012, accompanying this matter. For these reasons, and each of them, Amendment Application No. 2011 -02 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 -03 and Variance No. 2011 -09 came before the City Council on March 5, 2012. 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 properties located at 1302, 1306 and 1310 East Fourteenth Street are hereby zoned from Arterial Commercial (C5) to Single- Family Residence (R1). (AA No. 2011 -02) 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 March 5, 2012, and exhibits attached thereto and the public testimony written and oral, all of which are incorporated herein by this reference. Section 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. 75C -42 ADOPTED this day of , 2012. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph A. Straka Interim City Attorney Ryan O. Hodge Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: Councilmembers Councilmembers Councilmembers Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached 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 75C -43 75C -44 17TH ST Rl! IE 6' tt4RNaR' M_ W— R7 R7 "C55 R7 � `- idgiT �° iRN R1 R1 `I 1pMn� 14TNn #. 1om47 - 14TH ST R1 Rl tCS. 4 44.N WA01Mg70X AV 01M11i01a11W 4 R7 R1 Y MLMNSrON AV- `, I Rl ° I t 17TH ST P 3 MST t r c c Sm n E' per V IES.IAA.l"x O 1073 jwn AA746 74771 AA-Ml 141X1 MW AIIXI46 J7070.W? MIT/ 74462 MS34 1 AAl61 AAMt M0113 1A.1,967 1A.ki AA 1011 Mt Mt M10M 7402 -t ORD.I RE&140. X11274 NSIM1 N11327 NS -1303 0111467 744 N1f4p 7" X11462 NS -1111 X11111 X11710 X11711 NS-M1S NS-11M NS -1112 M1142 NS-IM NS-20M NS,=1 X7.2001 X7.2101 04131 13444 ADOMDDATE P1174 11 -17 -74 11 -1174 12 -1177 12.1471 11)7 .6177 14-77 1411 11.1441 1-1442 1.1712 3.1► 11-446 11747 1 -1.17 2-HS 1741 11-2046 lli X46 1.23.71 11 "1 41542 RSS.IMIANRNO 3416 SECTIONAL DISTRICT MAP !-5J ADOPTED BY THE SANTAANA CITY COUNCIL, MARCH 2, 1559 BY ORDINANCE NS-253 scAU IN Faar SM 5734 7741 Stl4 o l000 MINIMUM FRO14 GE -5 MINIMUM LOT AREA 99 — — 5717 30]0 — Al GENERAL AGRICULTURAL C4M SOUTH MAIN STREET COMMERCIAL DISTRICT PD PLANNED DEVELOPMENT 90]] -B PARKING MODIFICATION -F FLOOR AREA RATIO PRO, PLANNED RESIDENTIAL DEVELOPMENT 1178 MAP IB THE OFFMJAL SECTIONAL Cl COMMUNITY COMMERCIAL GC GOVERNMENT CENTER R7 SINGLE - FAMILY RESIDENCE DISTRICT MAP OF THE CITY OF SANTAANA Cl MID COMMUNITY COMMERCIAL-MUSEUM DISTRICT M1 LIGHT INDUSTRIAL R2 TYMO- FAMILY RESIDENCE AS AUTHOPao By CITY C40UNM P&SOLUTION NO. W43. DAT®11.1N4,1 C2 GENERAL COMMERCIAL M2 HEAVY MIDUSTRIAL R3 MULTBILE- FAMILY RESIDENCE HEREWATMATTHATTHISMAPMATRUE C2 CENTRAL BUSINESS MO MILITARY OPERATIONS R4 SUBURBAN APARTMENT ��944. AL SECTIONAL dSTRN:T CYA CENTRAL BUSINESS - ARTISTS' VILLAGE O OPEN SPACE RE RESIDENTIAL ESTATE sw. C4 PLANNED SHOPPING CENTER -OZ OVERLAYZONE $O SPECIFIC DEVELOPMENT JAYTREW4 CS ARTERIAL COMMERCIAL P PROFESSIONAL SP SPECIFIC PLAN E¢amw D RECTOR P- x+ W S SULOM AOENCY CR COMMERCIAL RESIDENTIAL PCD PLANNED COMMUNITY DEVELOPMENT CMaa'/N p.y Mw 9, 2007 IES.IAA.l"x O 1073 jwn AA746 74771 AA-Ml 141X1 MW AIIXI46 J7070.W? MIT/ 74462 MS34 1 AAl61 AAMt M0113 1A.1,967 1A.ki AA 1011 Mt Mt M10M 7402 -t ORD.I RE&140. X11274 NSIM1 N11327 NS -1303 0111467 744 N1f4p 7" X11462 NS -1111 X11111 X11710 X11711 NS-M1S NS-11M NS -1112 M1142 NS-IM NS-20M NS,=1 X7.2001 X7.2101 04131 13444 ADOMDDATE P1174 11 -17 -74 11 -1174 12 -1177 12.1471 11)7 .6177 14-77 1411 11.1441 1-1442 1.1712 3.1► 11-446 11747 1 -1.17 2-HS 1741 11-2046 lli X46 1.23.71 11 "1 41542 RSS.IMIANRNO 3416 6524 5511 SM 5734 7741 Stl4 — — 5717 30]0 — 7000 70]0 5011 7012 9035 5774 90]] am Sm 0744 ORD.IRE$NO. X141] X331] NS874 143917 143871 NSYS ism N1746 N "1] N"11 N7" X101/ N39T! N7i0] 1411040 N 1011 X41670 X11052 MS1011 M11p50 Yi /067 NoL'm N Ill AOOPTEDDATE 0440 11 -1"I INS-571 5982 3-190 0-1642 "43 S-M 1441 43185 1786 781 1846 6446 7$21 12.180 1221.70 1111.74 1121 -70 1121.70 1241.70 12-21.7011"1-70 1211 -M 1117.72 SECT140,N^L DISTRICT M^P 3-5-9 PREPARED BY THE PLANNING DIVISION - CITY OF SANTA ANA, CALIFORNIA I W'tll*T-'f'145 75C -46