The URL can be used to link to this page

Home My WebLink About FULL PACKET_2012-04-02MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA MARCH 19, 2012 CLOSED SESSION MEETING CALLED TO ORDER POLICE COMMUNITY ROOM 60 CIVIC CENTER PLAZA SANTA ANA, CA 5:33 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor (5:35 p.m.) CLAUDIA ALVAREZ, Mayor Pro Tern (5:35 P.M.) P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: None STAFF Present: PAUL M. WALTERS, Interim City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council Quorum was established thru presence of Councilmembers Bustamante, Benavides, Martinez, Sarmiento, and Tinajero. MOTION: Elect Councilmember Bustamante Chair (pursuant to SAMC 2- 101 due to unavailability of Mayor and Mayor Pro Tern). MOTION: Benavides SECOND: Sarmiento VOTE: AYES: Benavides, Bustamante, Martinez, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Alvarez, Pulido (2) CITY COUNCIL MINUTES 1 1 0A -1 MARCH 19, 2012 PUBLIC COMMENTS -None COUNCIL RECESSED to Police Chiefs Conference Room, 4th Floor, 60 Civic Center Plaza for Closed Session discussion at 5:34 p.m. CLOSED SESSION ITEMS 1A CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) Robert Sayne vs. City of Santa Ana, WCAB Case Nos. ADJ3661283; ADJ783112, 88 ANA 202852 1 B PUBLIC EMPLOYEE EMPLOYMENT AND APPOINTMENT pursuant to Government Code Section 54957(b)(1) Title: City Attorney; and City Manager CLOSED SESSION REPORT — See Item 19A for Report. ADJOURNED THE CLOSED SESSION MEETING AT 6:23 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 2 G r�7. MARCH 19, 2012 CALLED TO ORDER OPEN SESSION MEETING POLICE COMMUNITY ROOM 60 CIVIC CENTER PLAZA SANTA ANA, CA 6:24 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES (6:30 p.m.) CARLOS BUSTAMANTE MICHELE MARTINEZ (6:30 p.m.) VINCENT F. SARMIENTO (6:36 p.m.) SAL TINAJERO COUNCILMEMBERS Absent: None STAFF Present: PAUL M. WALTERS, Interim City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council PLEDGE OF ALLEGIANCE MAYOR PULIDO CLOSED SESSION REPORT See Agenda Item 19A for Report. PUBLIC COMMENT None CONSENT CALENDAR ITEMS MOTION: Approve Consent Calendar Items 10A through 25F with the following modifications: • Mayor Pro Tern voted "No" on Agenda Item 19E; • Mayor Pro Tern Alvarez and Councilmember Tinajero abstained on Agenda Item 10A (considered when full quorum reached); and • Mayor Pulido pulled Agenda Items 20A and 20B for separate action (considered when full quorum reached). MOTION: Tinajero SECOND: Alvarez CITY COUNCIL MINUTES 3 MARCH 19, 2012 i NMI VOTE: AYES: Alvarez, Bustamante, Pulido, Tinajero (4) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Martinez, Sarmiento (3) ADMINISTRATIVE MATTERS MINUTES 10A MINUTES OF THE REGULAR MEETING OF MARCH 5, 2012 - Clerk of the Council Office MOTION: Approve Minutes. *Mayor Pro Tem Alvarez and Councilmember Tinajero abstained; Item approved 5 -0. ORDINANCES /SECOND READING In the event a Councilmember recorded an "abstention" before consideration of the following ordinance(s) on first reading, such abstention will also be reflected in the minutes for second reading. 11A LOCAL BUSINESS PREFERENCE ORDINANCE - Planning and Building Agency Placed on first reading at the March 5, 2012 City Council meeting and approved by a vote of 5 -0 (Alvarez and Tinajero absent). Published in the Orange County Reporter on March 9, 2012. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS -2828 - 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 CITY COUNCIL MINUTES 4 MARCH 19, 2012 1 0A -4 11B APPROVE AMENDMENT APPLICATION NO. 2011 -02 FOR 1302, 1306 AND 1310 EAST FOURTEENTH STREET FROM ARTERIAL COMMERCIAL (C5) TO SINGLE - FAMILY RESIDENCE (R1) - Planning and Building Agency Placed on first reading at the March 5, 2012 City Council meeting and approved by a vote of 5 -0 (Alvarez and Tinajero absent) Published in the Orange County Reporter on March 9, 2012. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS -2829 - 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) BOARDS / COMMISSIONS / COMMITTEES 13A APPOINTMENT — NOMINATED BY MAYOR PRO TEM ALVAREZ AS THE WARD 5 REPRESENTATIVE TO THE PERSONNEL BOARD FOR A PARTIAL TERM EXPIRING DECEMBER 11, 2012 - Clerk of the Council Office MOTION: Appoint. Residing Name Board /Commission Ward Luis R. Martinez Personnel Board 5 (Replaced E. Lombardo) MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT — City Attorney's Office MOTION: Approve a full settlement and release. CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) - Robert Sayne vs. City of Santa Ana, WCAB Case Nos. ADJ3661283; ADJ783112, 88 ANA 202852, in the amount of $24,000. 19B EXCUSED ABSENCES — None CITY COUNCIL MINUTES 1 0A -5 MARCH 19, 2012 19C CITY OF SANTA ANA GENERAL PLAN HOUSING ELEMENT ANNUAL PROGRESS REPORT — Planning and Building Agency MOTION: Authorize submittal of the General Plan Housing Element Annual Progress Report to the State of California Housing and Community Development (HCD). 19D REQUEST FOR PROPOSALS FOR TEMPORARY ENGINEERING AND TECHNICAL SUPPORT SERVICES - Public Works Agency MOTION: Authorize the Public Works Agency to issue a Request for Proposals to qualified firms to provide temporary staffing services to support various sections in the Public Works Agency. 19E DESTRUCTION OF OBSOLETE CITY RECORDS — Police Department MOTION: Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2006 -045. *Mayor Pro Tern Alvarez voted "No" on Agenda Item 19E. 19F REQUEST FOR PROPOSAL FOR TEMPORARY EMERGENCY TRANSPORTATION SERVICES (AMBULANCE) - City Manager's Office MOTION: Authorize the City of Santa Ana to release the Request for Proposals for temporary emergency medical transportation services. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS MOTION: Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2012 -143 - Recognizing State of California Office of Emergency Services 2011 Anti -Gang Initiative Supplemental Grant funds of $25,000 revenue account and appropriate the same to expenditure account CITY COUNCIL MINUTES 6 iil�l�� MARCH 19, 2012 MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) MOTION: 1. Award a contract to Hondo Company Inc., in the estimated amount of $614,859. 2. Approve a funding analysis with a total estimated construction cost of $737,831. 3. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2012 -144 - Recognizing $39,612 in the Parks District 3 Acquisition & Development Fund and appropriating the funds to expenditure account for the Golden Loop Bike Trail Rehabilitation and Maple Street Bike Trail Enhancement. MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) CITY COUNCIL MINUTES 7 MARCH 19, 2012 1 0A -7 SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES MOTION: Award in accordance with Request for Council Action. (Items 22A through 22E) 22A SPEC. NO. 09 -030 — CHAIN LINK FENCE RENTALS - Renew the contract with S & S Portable Services for a one -year period in an amount not to exceed $44,000 (Public Works Agency and Community Redevelopment Agency) - Finance & Management Services 22B SPEC. NO. 09 -037 - HAND TOOLS AND MISCELLANEOUS ITEMS - Renew the contract to W.W. Grainger, Inc. for a one -year period in an annual amount not to exceed $45,000 - Finance & Management Services 22C SPEC. NO. 12 -023 - TRAINING ROOM TECHNOLOGY UPGRADES - Award a contract to Mallory Safety & Supply Company in an amount not to exceed $163,000 (Police Department) - Finance & Management Services 22D SPEC. NO. 12 -020 - REPLACEMENT SERVERS AND STORAGE INCREASE EQUIPMENT - Award a contract to Govplace in an amount not to exceed $115,000 - Finance & Management Services 22E SPEC. NO. 12 -012 - CHEMICALS: SOIL, PLANT, AND WATER TREATMENT - Award contracts for a one -year period, with provision for three, one -year renewals in the annual amounts to the venders listed below - Finance & Management Services Vendor Location Amount Crop Production Services Santa Ana $55,000 Waterline Technologies Santa Ana $87,000 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 25F) 25A ALLOCATION OF FY 2012 -2013 EMERGENCY SOLUTIONS GRANT FUNDS AND SECOND INSTALLMENT OF EMERGENCY SOLUTIONS GRANT FUNDS - Community Development Agency CITY COUNCIL MINUTES 8 MARCH 19, 2012 1 0A -8 1. Approve the proposed FY 2012 -2013 Emergency Solutions Grant Program, which includes the second installment of FY 2011 -2012 Emergency Solutions Grant Funds. 2. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute agreements with non- profit agencies and/or sub - recipients awarded funds as part of the approved program, subject to non - substantive changes approved by the City Manager and City Attorney. AGMT NO. NAME ACTIVITY TYPE AMOUNT 2012 -047 Grandma's House of Hope Rapid Re- Housing $ 20,000.00 Shelter- Domestic Violence $ 12,900.00 Shelter- Domestic 2012 -048 Human Options Violence $ 15,100.00 2012 -049 Illumination Foundation Street Outreach $ 20,000.00 Shelter- Emergency $ 45,000.00 Shelter - Transitional $ 30,000.00 2012 -054 OC Mental Health Street Outreach $ 25,000.00 2012 -055 Public Law Center Homeless Prevention $ 40,000.00 2012 -056 Santa Ana Police Dept. Rapid Re- Housing $ 40,000.00 2012 -050 Interval House Rapid Re- Housing $ 40,000.00 2012 -058 SMEDA Shelter- Domestic Violence $ 27,000.00 2012 -051 Laura's House Shelter- Domestic Violence $ 12,000.00 2012 -052 Legal Aid Shelter -Legal $ 10,100.00 2012 -053 Mercy House Homeless Prevention $ 30,000.00 Raoid Re- Housing $ 30,000.00 Shelter- Emergency $ 45,000.00 Shelter - Transitional $ 30,000.00 2012 -054 OC Mental Health Street Outreach $ 25,000.00 2012 -055 Public Law Center Homeless Prevention $ 40,000.00 2012 -056 Santa Ana Police Dept. Street Outreach $ 35,000.00 2012 -057 Share Our Selves Homeless Prevention $ 42,793.01 2012 -058 SMEDA Homeless Prevention $ 40,960.00 2012 -059 The Villa Center Shelter- Transitional $ 10,100.00 2012 -060 Thomas House Shelter- Transitional $ 15,100.00 2012 -061 WISEPlace Homeless Prevention $ 25,000.00 Rapid Re- Housing $ 20,000.00 Shelter - Transitional $ 26,200.00 2012 -062 WTLC Shelter- Domestic Violence $ 39,500.00 2012 -063 Citv of Santa Ana Administration $ 60,679.15 CITY COUNCIL MINUTES 9 MARCH 19, 2012 25B AGMT NO. 2012 -064 — AMENDMENT FOR ENVIRONMENTAL IMPACT REPORT (EIR) FOR A 24 -UNIT SINGLE FAMILY RESIDENTIAL DEVELOPMENT AT 1584 EAST SANTA CLARA AVENUE - With URS Corporation in an amount not to exceed $21,739 - Planning and Building Agency 25C AGMT NO. 2012 -065 - AMENDMENT FOR ANNUAL MAINTENANCE AND SUPPORT OF THE COMPUTER AIDED DISPATCH (CAD) SYSTEM - With Tiburon Inc. in an amount not to exceed $71,000 - Police Department 25D AGMT NO. 2012 -066 - AMENDMENT TO ADD SCOPE OF SERVICES FUNDED BY URBAN AREAS SECURITIES INITIATIVE (UASI) - With GTSI Corporation in an amount not to exceed $29,817 — Police Department 25E AGMT NO. 2012 -067 — AMENDMENT FOR SERVERS AND TO REMOVE CITY OF BREA FROM THE COUNTY WIDE COMPUTER AIDED DISPATCH (CAD) - With FATPOT Technologies, Inc., in an amount not to exceed $90,000 — Police Department 25F AGMT NO. 2012 -068 - ELECTRIC VEHICLE (EV) CHARGING STATION UPGRADES -With Clipper Creek Inc. under the State - funded Reconnect California Program at no cost to the City - Finance & Management Services; Public Works Agency * *END OF CONSENT CALENDAR ** BUSINESS CALENDAR ITEMS RESOLUTIONS 55A NOTICE OF INTENT TO WITHDRAW AS A HAZARDOUS MATERIALS PROVIDER AGENCY TO THE ORANGE COUNTY -CITY HAZARDOUS MATERIALS RESPONSE AUTHORITY - City Manager's Office MOTION: Adopt a resolution. RESOLUTION NO. 2012 -008 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE WITHDRAWAL OF THE CITY OF SANTA ANA AS A HAZARDOUS MATERIALS PROVIDER CITY COUNCIL MINUTES 10 MARCH 19, 2012 ii[ll_dl�� AGENCY TO THE ORANGE COUNTY -CITY HAZARDOUS MATERIALS EMERGENCY RESPONSE AUTHORITY MOTION: Alvarez SECOND: Bustamante VOTE: AYES: Alvarez, Bustamante, Pulido, Tinajero (4) NOES: None (0) ABSTAIN: None (0) ABSENT: Benavides, Martinez, Sarmiento (3) PUBLIC HEARING 75A 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; FILED BY RYAN OGULNICK ON BEHALF OF VINEYARDS DEVELOPMENT CORPORATION AT THE MET, LLC - Planning and Building Agency Planning Commission opened Public Hearing on January 23, 2012 and continued to the February 13, 2012 meeting, three motions were considered and failed. Pursuant to the Planning Commission's bylaws, the applicant has requested the project be forwarded to the City Council for a final decision. Legal Notice published in the O.C. Reporter on February 24, 2012 and notices mailed on February 23, 2012. Continued from the March 5, 2012 City Council Meeting by a vote of 5 -0 (Alvarez and Tinajero absent). Staff report presentation by Jay Trevino, Executive Director of Planning and Building Agency The Met at South Coast - 200 East First American Way • Zoning Ordinance Amendment No. 2012 -01 • Mitigated Negative Declaration and Mitigation Monitoring Program No. 2011 -46 • Development Agreement No. 2004 -03 • Vesting Tentative Tract Map No. 2012 -01 • Site Plan Review No. 2012 -01 CITY COUNCIL MINUTES 11 MARCH 19, 2012 1 0A -11 Planning Commission Action • Held public meetings on 1.23.12 and 2.13.12 • Per Planning Commission bylaws, project forwarded to City Council at the request of applicant. Project Description • 278 residential units in five -story buildings • 51% 1- bedroom units • 49% 2 and 3- bedroom units • Average unit size 915 square feet • Open Space: 255 s.f. /unit • Tandem parking 42% • Contemporary architectural style with a variety of rooflines, varied facades and architectural projections at key corners • Exterior finishes include stucco, fiber cement panels, wood laminate panels, ceramic tile finishes, metal awnings and rails, and aluminum windows Zoning Ordinance Amendment • Specific Development No. 43 • Amend multi - family parking ratio • from 2.26 to 2.22 spaces per unit • Allow tandem parking • No current standard within SD -43 Development Agreement Amendment • Amendment Highlights • Term 10 years • New owner, Vineyard Development • New project design • Public Benefits • Park In -Lieu fee • Public Art • Inclusionary Housing fee Vesting Tentative Tract Map • Subdivision for condominium purposes • Home ownership • Conditions of approval California Environmental Quality Act (CEQA) • Mitigated Negative Declaration prepared to assess potential impacts • Public Review period 11.14.11 — 12.16.11 • Mitigation Measures and Monitoring Program provided *Councilmembers Martinez and Benavides joined the meeting at 6:30 p.m. Councilmember Sarmiento joined the meeting at 6:36 p.m. CITY COUNCIL MINUTES 12 MARCH 19, 2012 1 0A -12 Mayor Pulido opened the Public Hearing at 6:35 p.m. There were no speakers or written communication and the hearing closed. Council discussion ensued. Councilmember Benavides, noted that has received variations of the proposed project with additional modifications made since the Planning Commission considered the item; asked Planning and Building Executive Director Trevino to comment on current status of the project. Trevino noted that staff has held additional meetings with applicant; applicant has made additional improvements to the project including reduced number of units, changed unit mix, reduced percent of tandem parking, increased open space, and broaden menu of amenities. Mayor Pro Tern Alvarez, indicated that project has been reviewed by the Planning Commission and staff; applicant has met several times with staff; Planning Commission raised questions that have since been addressed; and staff recommends project. Mayor Pro Tern Alvarez noted that approximately 700 jobs expected in the next 2 years; City will have public benefit fees derived from this project; advised that the Tower could be built at a later date. Councilmember Sarmiento, asked Executive Director Trevino to discuss original vision; noted that current proposed project is .6 acres smaller than original project, had 18 story tower of stacked condominiums and an 8 story tower over parking lot, current project has similar parking structure and identical number of units; difference is type of construction and layout, developer has taken original project and made amendments are before the City Council for consideration. Councilmember Sarmiento expressed desire to maintain some of the original vision for undeveloped lot; site allows for vertical construction; concerned with the Planning Commission's inability to come to a consensus on the project and also the size of remnant parcel that will be hard to develop; proposed that developer amend to .8 acres to allow for future development of a tower; City Council will have opportunity before the next City Council meeting to discuss Tower (before final adoption of ordinance). Councilmember Martinez, asked applicant if agreeable to amendments requested; CEQA not invalidated with proposed changes to remnant parcel size - applicant agreed; Executive Director Trevino noted that CEQA was okay since project decreasing in size. Councilmember Bustamante, opined that consistency important as well as maintaining original vision for the site. Councilmember Benavides, asked for decorative fencing /screening around vacant fenced parcel, integrated sitting area to be available around water feature and retail. CITY COUNCIL MINUTES 13 MARCH 19, 2012 1 0A -13 Councilmember Tinajero inquired if livable wage jobs would be created. Applicant said yes. Mayor Pro Tern Alvarez, noted that project has been approved by Sandpointe Neighborhood Association and Nexus project; applicant has followed all requirements; moved to approve project as amended by Councilmember Sarmiento. Councilmember Sarmiento, noted that concessions have been made and remnant lot has potential for tower to be built in the future. Mayor Pulido, also noted that vision has to be consistent; few lots available in the City for vertical buildings; developer to continue working on development of a Tower. AMENDED MOTION: 1. Approve and adopt the Mitigated Negative Declaration and Mitigation Monitoring Program, Environmental Review No. 2011 -46. 2. Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS -2830 - 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) 3. Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS -2831 - 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 4. Adopt a resolution. RESOLUTION NO. 2012 -009 - 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 CITY COUNCIL MINUTES 14 1 0A -14 MARCH 19, 2012 5. Amend project to require .8 acres of remnant land instead of .6 in proposed development. MOTION: Alvarez VOTE: AYES: NOES: ABSTAIN: ABSENT: SECOND: Sarmiento Alvarez, Benavides, Sarmiento, Tinajero (6) None (0) None (0) Bustamante (1) Martinez, Pulido, THE CITY COUNCIL MEETING RECESSED AT 7:14 P.M. TO THE SUCCESSOR AGENCY MEETING; THE CITY COUNCIL MEETING RECONVENED AT 7:14 P.M. WITH SAME MEMBERS PRESENT. WORK STUDY SESSION WSA GREENHOUSE GAS INVENTORY • Rick Longobart, Fleet Manager, presented sustainability accomplishments and efforts to convert City's fleet. • Raul Godinez II, Executive Director of Public Works Agency introduced consultants who presented Climate Action Plan: 2008 Greenhouse Gas Emissions Inventory and Forecasts Overview Santa Ana has already made progress • Per capita emissions lower than most - Higher transit ridership than most of OC - More walking and biking than most of S. California - Lower water usage per capita compared to California • Lower emissions in the future will require new programs and policies CITY COUNCIL MINUTES 15 MARCH 19, 2012 1 0A -15 b.9AasiA3� C.] RM1iitlfi4U�? �SR3tea#rni h11�p4S411 'JIl�C:4SOiI Cd rt$ Santa Ana has already made progress • Per capita emissions lower than most - Higher transit ridership than most of OC - More walking and biking than most of S. California - Lower water usage per capita compared to California • Lower emissions in the future will require new programs and policies CITY COUNCIL MINUTES 15 MARCH 19, 2012 1 0A -15 • Ongoing activities are interrelated - Circulation Element Update - Climate Action Plan - Orange County Sustainable Communities Strategy Emissions Reduction Progress since 2008 • Analysis will identify actions that have been taken since the baseline year 2008 to the present — Allows successes to be showcased — Existing measures can provide foundation for more aggressive and expanded actions. • Methodology is consistent with the baseline inventory • Analysis is ongoing but initial results are available Community Highlights since 2008 • Significant reductions have been achieved through - - Transportation — SCE Small Business Energy Efficiency Retrofit Program — Recycling Program • Santa Ana achieved a 67% waste diversion rate, well in excess of State mandates. — Green waste diversion is a major component of the reductions achieved • Transportation measures are still being analyzed, but significant reductions are expected Government Operations Highlights since 2008 • Significant reductions achieved through system upgrades — LED streetlights and traffic lights • Through American Recovery and Investment Act (ARRA) the City made energy efficient improvements to municipal facilities and community parks. — Lighting and heating / air conditioning retrofits in City buildings — Lighting upgrades in community parks • Water measures achieved impressive results in the past — Water$mart Rebates for high- efficiency plumbing fixtures — Energy efficiency upgrades to water pumping facilities GHG Emissions Inventory - Approach • Based on a calendar year (2008) • Provides a reference point of emissions by sector: - Transportation - Building Design and Energy Use Patterns - Water Consumption - Solid Waste and Wastewater Generation - Other • Emissions = Activity data X GHG intensity CITY COUNCIL MINUTES 16 iillym � MARCH 19, 2012 (kWh) (CO2 per kWh) GHG Emissions Inventory — Methodology Data Sources • Electricity & Natural Gas — Local Utilities • Transportation — Fehr & Peers — Community Vehicle Miles Travel (OCTA Travel Demand Model) and municipal employee commute (employee survey) • Water — City staff • Wastewater — Orange County Sanitation District • Solid Waste — Waste Management and City staff GHG Emissions Inventory — Community (2008) Wastew; 1% Waste Genenatl 3% GHG Emissions Inventory — Community (2008) Mayor Pulido noted that Report available to the Public and urged Councilmembers and residents to review information. CITY COUNCIL MINUTES 17 MARCH 19, 2012 1 0A -17 COMMENTS 90A CITY MANAGER'S COMMENTS - None 90B CITY COUNCILMEMBER COMMENTS — None ADJOURNED - 7:55 p.m. - The next meeting of the City Council is scheduled for Monday, April 2, 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 18 MARCH 19, 2012 ii[ll_d_E:� 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: 11 A -1 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 eff stFe t narking mane TecquiFedfvr hye herdreGm ��.,n,�i s andl 2.5 off _stFeet,.1'parking cpanes shall' rcgi�. . more ivied units. Parking puGe mum he be GOvered. In addition, guest parking shall be provided as follows: 0.5 space eaGh unit up through ten (10) , 0.22 space for each unit iR eXGess of ton (10) Units up thmugh ene hu i. Adred (100) units, and 0.1 spa r it gf gne h� �RdFed (1 00) � snits Thus, a �pcx reask>- uR,rir�- E�x£2$S� 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 parkinq 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." 11 A -2 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: " fey 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. SUGh usable open 6paGe shall be divided between GOMmen and pFiyaato omen spano PFiyato avid open 6nano shall be required to be pFeyiide d for eanh Unit at a rate of no loss than ninety (90) square feet of the total omen snare required." 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 11 A -3 APPROVED AS TO FORM: Joseph A. Straka Interim City Attorney in 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 11 A -4 (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 11 A -5 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 11 A -6 ADOPTED this day of APPROVED AS TO FORM: Joseph A. Straka Interim City Attorney am Ryan O. Hodge Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT Councilmembers Councilmembers Councilmembers Councilmembers 2012. Miguel A. Pulido Mayor CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 11 A -7 Ordinance No. NS -XXX Page 3 of 3 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 behveen THE CITY OF SANTA ANA and VDC AT THE MET, LLC, A CALIFORNIA LIIVIITED LIABILITY COMPANY Dated: March 5, 2012 EXHIBIT 1 i_ ■_I =Q•i EDAMENDED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND GENEVA COMA40 VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY This RESTATED AND 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 RA4 PROPRR44ES,. INC., ^ VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (eelleetive!5 referred to herein as "Owner" or "Property Owner ") on the other hand. 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 (hereafte r 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 referred to herein as "Coastal Rim "). (2) A portion of the real property covered by the Original Agreement was subsequently acquired by 8A%er 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 r-eplaee amend the Original Agreement with the instant Develepxent Agreement, rendering the Original Agreement and the 2005 Agreement, and any edits amendments thereto, null and void as applied to Owner's Property (as the word "Property" is defined in sectio Section 2.3 herein). (4) As more particularly set forth in sec4ie Section 2.4 of this Agreement, Owner has proposed eenstrueting-at developing the northeast corner of MacArthur Boulevard and Imperial Promenade of an 18 residential level high rise projee4 and an eight stefy building, together- Wi . iately 13,000 squefe feet ef aneilla+y fetail, ef whieh no mefe flian 3,000 square fiae4 May b�-,-de, oted-to "fast food" or " take out" restaufa with a 5- sto1y, multi- family apartment community consisting of 278 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 1 11 A -9 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 Owner Coastal Rim's application for this the 2005 Agreement. The Planning Commission ' recommended to the City Council of City that it execute this the 2005 Agreement. On April 4, 2 11A -10 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 erCoastal Rim's application for t-1}i-s 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 application 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 raw, 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 purposes 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 uncertainty in planning for and securing the order] development evelopment of the Property, assure progressive installation of necessary improvements, provide public services appropriate to each stage of development of the Property, ensure attainment of the maximum effective utilization of resources within the City at 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 April 18, 2805 [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 pe agFaph Section 5.8 of this Agreement. 2.2 "Property Owner" or "Owner" means Coastal Rim P+epeF =estee —r, California Corporation, and Geneva CenHnon 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 Propel , and iiieludes Coastal -Ri-tm Proper-ties, r„^ 's sueees i„ ifiterest. 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. 2002 15 , Tentative Tract Map No. 200485 (County Map No. 1655€ ), Conditional Use Permit 3 11A -11 2984 -92 , Variance No. 2984 -1-1 , Zoning Ordinance Amendment No. 2994 -05 (amending SD -43), and Site Plan Review No. 2994 -06 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 (10) years from the date that the Council adopts its ordinance approving this Agreement ( "Effective Date" ; 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 4.3.1 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. 4 11A -12 Nor- shalkThe 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 reniedies provided in eeetio 8.4 f !his Agreement shall t ' ' d 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 emeept j+fv . +...v... in vvv..avu 6.3(5) of this Agreement. e v,1itiS1C. 5 11A -13 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 willfiil misconduct in the performance of this Agreement. This hold harmless Agreem t 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 paragr-aplr 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 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 6 11A -14 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 ulnick 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 11A -15 KIM IZ; "NOWIMEWAMN I VDC at the Met. LLC 828 North Ogden Drive Los Angeles, CA 90046 Attention: Ryan O ulnick 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 11A -15 5. 1.1 Cooperative Agreement for Off -Site Improvements. The Own Coastal Rim and the City, together with other parties, have eenEtiffefi4y 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 Rinds 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 occupane, 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 Cal.3d 465, 208 Ca1.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 Agreement. 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; 8 11A -16 (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, fumes, fitel 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. • �.. - - 9 11A -17 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, or 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 -2811 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 paragrap 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 11A -18 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 seetiei} 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 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 E.g., 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 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 from 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 apply to all units developed on the existina 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 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 ifteen percent (tl* 114 -19 bein�l5 %) 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 terns 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 °f ° ^^ °a in the site plat, review let4ef f Site Plan Review ,, NE). 2004 . 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 Developer 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 issti nee of the first b ila�.•* recording of f the Final Map. Such CC &R's must contain at a minimum, the following: (1) No more than four residents per tout, except that for three- bedroom units, there shall be no more than five residents per unit. 02M z (22) 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 12 11 A -20 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. (b5) 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., the i e law) that shall be imposed by the Home iuuniaiaiixii �erl xii�c�.V�Q�4Y7 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 -33I et seq_ pertaining to residential conversion projects, prior to recording of the Final Map. 5.9 Responsibility IFfor Costs of Work Aof 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 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 Wwith Governmental Requirements. Subject to and as otherwise provided by the terms of Section 5.1 above Owner shall carry out the design, 13 11 A -21 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 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; 11k -22 (3) Failure to comply with Governmental 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 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, 15 11 A -23 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. Ci�y may modify or add to the provisions of this Section 8.2 at the request of any institutional lender or pension trust moviding 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 16 11 A -24 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 has 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 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 11 A -25 invalid or unenforceable the remainder of the instrument, or the application of such term, provision, condition 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 permitted by 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. 9.4012 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. 18 11 A -26 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: JOSEPH A. STRAKA Interim City Attorney THE CITY OF SANTA ANA C PAUL M. WALTERS Interim City Manager VDC AT THE MET, LLC, A California Limited Liability Company IM Ryan Ogulnicl Its Manager 19 11 A -27 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 11 A -28 EXHIBIT "A" Property Legal Description REAL PROPERTY W 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 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 HEREWABOVE DESCRIBED. PARCEL C: AN EASEMENT FOR THE CONSRUCTION INSTALLATION MAINTENANCE AND REPAIR OF A STORMM 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. 11 A -29 EXHIBIT `B" Property Site Plan To be inserted 11 A -30 EXHIBIT "C" Public Art Plan 1. 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 paragrepl} 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 Art Plan shall be completely installed as provided in paragrap 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. 3. 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. 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, fiinctional 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. 11 A -31 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. 11 A -32 EXHIBIT "D" Cooperative Agreement for Off -Site Improvements 11 A -33 COOPERATIVE AGREEMENT FOR OFF -SITE IMPROVEMENTS THIS Agreement Is entered into this day of , 2005, by and between the SANDPOINTE NEIGHBORHOOD ASSOCIATION, INC., a California, non -profit public benefit and federa1501(e)(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 herein as "Nexus "), COASTAL RIM PROPERTIES, INC., a California corporation ("Geneva Commons "), the COMMUNITY 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") 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 Commons has proposed constructing at the northeast corner of MacArthur Boulevard and Imperial Promenade an approximately 278 -tutu 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 Sandpointe Neighborhood (" Neighborhood") and outside community and politleal 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. Sandpointe does not have the authority to bind any individual resident of the SandpointeNeighborhood. D. The Agency is a community redevelopment agency, as that term 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. B 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 devetopmdnt 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 -26130 t Page 30 of 51 11 A -34 supplement the mitigation measures and conditions of approval imposed by the City of their respective deveioprnents. 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 funding of the improvements but only from a portion of the tax increment actually generated by the Nexus and Geneva Commons Projects and to fund 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 and/or construction of certain, herein specified publicly owned improvements. H. Nexus has agreed to constnict 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 parties hereto do mutually agree as follows; i, SCOPE OF WORK A. Nexus shad construct and/or fluid 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 fund the Nexus Improvement, 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 %) 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,. tho Agency mud 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 ofresidential 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- {honed 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 panties acknowledge and agree that the total cost of the publicly owned improvements, Including studies, design and overhead, shall not exceed hive Million Dollars ($5,000,000.00). EXHIBIT A 2 Ordinance No. NS -2880 Page 31 of 81 11 A -35 2. COMPENSATION AND MMOD OF PAYMENT A, Nexus shall, within sixty (60) days of execution of lads 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 fluids to be used to pay for the 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 2.1). 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 die Nexus improvements. If, at airy time, either Geneva Commons or Nexus determines that such agreement is not possible, then the objecting party shall submii its dispute in writing, together with any evidence upon which it relies to the Executive Director of the City's Public Works Agency and tho other 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 Escrow no later than the date specified in paragraph 2.1), of this Agreement. D. Nexus shalt 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 of pr 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. EXHIBIT D Ordinance No. NS -2680 3 Page 32 of 51 11 A -36 E. The Agency shall pay the City its cost incurred by the City for the Publicly -Owned Improvements set forth in Exhibit A to phis 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. NEXUS CONSTRUCTION DRAWINGS AND RELATED DOCUMENT'S A. Nexus shall prepare and submit constriction 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 Plaits and (il) Final Site Plans. B. During the preparation of all drawings and plans, City staff and Nexus shall hold regularprogress 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 the fonnal 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 Sandpointo, 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, 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 the Schedule of Perfornianco 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 the Final Plans if the Final Plans do not conform to the Approved flans, the approved Preliminary Plans or do not conform to Exlilbit A to this Agreement, or are incomplete, EXHIBIT D 4 Ordinance No. NS -2880 Page 33 of 61 11 A -37 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 teasonably 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 Governmental Requirements. S. COMMENCBMENT AND COMPLETION OF CONSTRUCTION OF NEXUS IMPROVEMENTS a. Nexus shall construct and/or fund, 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 funds 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 13. 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 patties acknowledge and agree that tlto Block Wall identified as Item No, l 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 patties 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 th &t should any property owner reflnse to agree to permit the connstruotion and/or oxtorior 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 and 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 constnuction 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 and 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 -200 S Page 34 of 61 6. AGENCY NOTICE TO PROCEED FOR DESIGN AND CONSTRUCTION OF PUBLICLY OWNED rMPROVEMENTS Upon the issuance of a certificate of occupancy pursuant to the California Building Code foi'r (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 PubliclyOwncd 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 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 these Publicly -Owned Improvements, or any part thereof, shall be limited by the Agency's ability to fluid said work flom the project - specific tax increment gencrated'by tine Nexus Project; provided, however, that City and Agency shall construct item no. La. on the list of Publicly -Owned Improvements in Exhibit A to this Agreement regardless of the project- speciflo tax increment received by the Agency. 7. COMMENCEMENT AND COMPLETION OF CONSTRUCTION OF PUBLICLY OWNED IMPROVEMENTS a. City shall construct the Publicly -Owned improvements hn conformance with the schedule set forth in Exhibit C to this Agreement and the approved Final flans; 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 construction 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 tine Agency's sole and absolute discretion, b. City shall, at the conclusion of the plant establishment phase specified in Exhibit I3, additionally maintain the climbing vines and irrigation constructed by Nexus along the outside of the block wall, referenced in item no. I 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 tine City from any liabilitycaused by said climbing vines and/or irrigation. Sandpointe shall be responsible for obtaining signatures from these individual homeowners. LIA131LITY AND MDEMNIFICATION 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,persom, including employees or agents of Agency or City, and shall defend, indemnify EXHIBIT D 6 Ordinance No. NS -2680 Page 35 of fit 11 A -39 and savc Agency, City and Sandpointe, acid 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 fiom the negligent or wrongful acts or omissions of Nexus or Geneva 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 anyway 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 obligato 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, B. Prior to the commencement of construction, Nexus or any other party working within the real property of the City or Agoncy, sha11 obtain at its sole cost and file with the City and Agency, and maintain for the period covered by thls 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 fiat 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 employes. 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 chango 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 inay be necessary fox its proper protection in the prosecution of tllo 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 9. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS, Nexus shall carry out the design,. constriction, 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, mechanical EXHIBIT D Ordinance No. N&2680 7 Pago 36 of 61 11 A -40 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 seg., Government Code § 4450 et seq., and the Umuh Civil Rights Act, Civil Code § 51 et scq. C'Governmental 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 igjurcd 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 constituto a waiver of any default nor shall it change the time of-default. The 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 with the purpose of this Agreement. 12, APPLICABLE LAW This Agreement mid all questions relating to its validity, interpretation, perfonnance, and enforcement shall be governed sand construed in accordance with the laws of the State of California This Agreement has been executed and delivered in the State of Cali fomia and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be deternnined and governed by the laws of the State of California. All parties Airther 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 parties are cunnulative 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-2680 Page 37 of 51 11 A -41 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 conuntuueations 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 Uris section. City: City of Santa Ana Planning and Building Agency 20 Civic Center Plaza, M-20 Santa Ana, CA 92702 Attn: Stave ); larding, Executive Director Pliono: (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 tho City of Santa Ana 20 Civic Center plaza, M -29 Santa Ana, California 92702 EXHIBIT D Ordinance No. NS -2680 9 Page 38 of 51 11 A -42 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 I MacArthurPlaee, Suite 300 Santa Ana, California 92707 Attention: Cory W. Alder Geneva Commons: Coastal Rim Properties, Inc, 139 But 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) (tours 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 51 11 A -43 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 Nblicly -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 acid 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 references herein to Nexus shall be deemed to be references to Genova Commons. IfNexus 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 Improvemonts specified in Exhibit, A as a guide, designate which of the Nexus Improvements shalt be constructed 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 tornl "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 herein. 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 shal I include in .EXHIBIT D Ordinance No. NS -2680 1 i Page 40 of 61 11 A -44 Ole 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 affect unless Such written consent thereto be obtained from the City Council. Such transfer or assignment shall not relieve Nexus or Geneva Conunons 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 Commous. Any and all approved successors and assignees of Nexus or Genova Coomnons 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 there. 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 WHERE017, the parties hereto have executed this Agreement the date and year first above written. SANDPOINTE NEIGHBORHOOD, ASSOCIATION, INC. l!WWI NEXUS DEVEL OPMFNT CORPORATION/ CENTRAL DIVISION, INC. By Name Its 12 Ordinance No. NS -2884 Page 41 of 81 11 A -45 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, at ►d 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 Iiability to City witlzout 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 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 WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year fast above written. SANDPOINTB NEIGHBORHOOD, ASSOCIATION, INC. By Name Its NEXUS DEVELOPMENT CORPORATION/ CRNTRAL DIVISION, INC. By ZJ"- 4 q Name Its Ordinance No. NS -2880 12 Page 42 of 61 11 A -46 ATTEST: COMMUNITY DEVELOPMENT AGENCY OF THE CITY UE SANTA ANA By Patricia E, Healy Patricia C. Whitaker Secretary of Agency Executivo Director APPROVED AS TO FORM: Joseph W. Pletcher Agency General Counsel EXHIBIT D Ordnance No. NS -2680 14 Page 44 of 61 11 A -47 EXHIBIT A OFF -SITE 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 comer 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 oasement in favor of Nexus and permanent maintenance casement (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. e. Remove and replace 16 sections of white concrete block wall in immediate area of MacArthur Boulevard and Flower Street, and paint with ono 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 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 Main Street and Sunflower Avenue behind the existing concrete wall to be replaced. The 49 residential units are identified in Exhibit A -1 tQ this Agreement, b. Nexus shall assist Sandpointe in obWning/preparing necessary construction bids, documents and permits. e. Allowance will be paid by Nexus to Sandpointe for any applicable home upon receipt of botta fide construction or material invoicos. d. Allowance shall expire 12 months following the completion of the concrete wall EXHIBIT D 15 Ordinance No. NS -2680 Page 46 of 61 •� replacement improvements. o. 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, etc. as provided for in plans included as part of Definitive Easement Agreement. 4. Pay City $200,000 for City to implement a Neighborhood Traffic Management Plan ( "NTMP") to mitigate changes in traffic patterns or increased cut through traffic resulting from the Nexus and Geneva Commons Projects in the Sandpointo Neighborhood. NTMP costs shall include traffic studies, staff time to process neighborhood traffic plan, and the construction of appropriate traffic calming devices, including but not limited to semi- diverters, diagonal diverters, and street closures. The implementation of the NTMP shall be pursuant to procedures adopted by the City Council. 5. Nexus shall pay the City the full cost (sea 1lxhibit 13) for the installation of a Traffic Signal at the intersection of MacArthur Boulevard and Birch Street, Publiely..nwnpd ImTe1ngttts Utility Undergrounding a. Main Street — MacArthur to Sunflower b. MacArthur — Main to Flower c. Sunflower — Main to Plower (north side of street) EXHIBIT D Ordinance No. NS -2880 16 Page 46 of 51 11 A -49 EXHIBIT A -1 List of 49 Residential Units Raurpkxtt 38, 3925 S, Rose (i Ida io suallovnr) List of 8irgibla Homes (br (rmu 5unflowtr) 40. 405 W, Sunlimw Window Replaatttcnb' 41, 409 W. Omiflovmt (flonu Sunflower) Along Msin and SuMiowir SIBS ldF2rAIly1160 as I 43. s03 W. sunaoWtr 1_ 101 W. Murphy fildd to Main) 2. 37015, Alta (bask.$ to Main) 3. 3703 S, Aid" (hick$ to Meta) 4. 3709 S. Alder (sick! to Main) S. 3713 S. Alder (baclGt to Mtdn) 6 3717 8. Alder (bad(% to Mlle) 7. 3721 & Aker (WYA to Main) 8. 37z5 S. Alder (beds to Main) F. 3729 S. Alder (b+cb to Mein) 10, 38013. Aka' (bnda to Mern) 11, 31104 -Alder (backitomain 12, 3909 S, Akar (soaks to main) 13. 3513 S. Alder 044 s to Me14 14. 34118. Alkr (backs to Miln) 13, 342) S, Akio (backs to Main) 16. 3823 S. Alder (W)m to Alder) 17. 3829 S. Alder (f>scks to Main) 18. 3901 S. Alder (puke to KIM) 19. 3905 S. Atdar (bade to Mein) 20. 39099. Alder (butler to Main) 21, 102 W. Stiveni (bx ks to Malt attd MInI Vick t) 29. 106 W. Stevens (wks to Main vW Mini Matra) 23. 110 W, Stevens (Mrta to Mein and Mini Ma+13tt) 24, 114 W, Stavtenv (bA4$ to sunflower end Mini Mirksl) 25, 118 W. Slavers (backs to autfiower) 26. 122 W. Serums (Mdse W Sunflower) 27. 202 W.3bwms (back.$ to Nnflauw) 28. 906 W. Stevens (bitlo to Sunloww) 29. 210 W, Stevens (bido to Sunflower) 30, 214 WLSUVt q (Nda to 8unflaAW) 31. 3926 S, Timber (ifdw to sunflower) 42. 302 W. BtevCm (Daeki to Sunfio W) 33. 306 W.Swmu (backs (o.Stmfimsva•) 34. 310 W. St4veati (backa to sunflower) 33, 314 W. Stcvtt+i (back$ to Stulnana) 36, 318 s. Stavam (fucks to Sun(lowa) 37, 3922 S. Birch (slicks to sunfower) Raurpkxtt 38, 3925 S, Rose (i Ida io suallovnr) 39. 401 W. Sunfrow4 (rmu 5unflowtr) 40. 405 W, Sunlimw (}tons sunflower) 41, 409 W. Omiflovmt (flonu Sunflower) 42. $01 W. Sunflower rionts sunflower) 43. s03 W. sunaoWtr irlm u $unflowel) 44. $09 W. Sunflower (ftantft sunflowers 4$. 3)3W.Sunfloaer (Imts;Svanowar) Milo Attm lam CondomIxrurni 46.3620 AS, Main (side b Mein) 47.7632 A S. Main Om b Main) 48.36321) 3. Main ((Fonts Main) 49.3632 C S, Mdn (rionts Marn) 17 Ordinance No. NS -2680 , Page 47 of 51 11 A -50 EXH113IT 13 SCHEDULE OF NEXUS IMPROVEMENTS 1, 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 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. C. Construction Commencement -- Within thirty (30) days after approval of Building Permits. f. Construction Complete — Within one hundred twenty (120) days of commencement of construction, S. Ninety (90) day plant establishment phase after completion of constriction 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 construction complete date for item no. 1, above. b, Constriction 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; a. Nexus shall submit executed Definitive Basement Agreement to all parties no later than one hundred eighty (180) days of the Commencement Date. If Nexus fails to meet this deadline, which may be extended in writing by Nexus and Sandpointe, then Nexus shall deposit $ l.2 million from the Nexus Escrow into a separate escrow with terms providing for its withdrawal by Sandpointo, which are mutually agreeable to all parties, for use by Sandpointe on other projects to benefit the Sandpointe neighborhood. b. Nexus shall complete this item not later than eighteen (18) months from the M113 1T D Ordinance No. NS -2680 t R Page 48 of 61. 11 A -51 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 Council. S. Construction of Item No. 5 to Exhibit A shall conform to ilia 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 receipt of Nexus application to final any portion of its tentative tract map. Said estimate shall be conclusive. b. Noxus 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 plexus Project. Any deadline pursuant to this Exhibit C may be extended by mulual written agreement of Nexus and the City Manager or designee. EXHIBIT D 19 Ordinance No. N5 -2680 Page 49 of 61 11 A -52 EXHIBIT C SCHEDULE FOR PUBLICLY-OWNED IMPROVEMENTS 1. 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 Lnprovements 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 faith effort to offeotuate tho completion of these Publicly -Owned Improvements (which, under current law. must be designed and corwructed by Southern California Edison and not the City) prior to the dates specified above, EXHIBIT D Ordinance No. NS 2680 20 page 60 of 61 11 A -53 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 Sheet dedication 4" depressed curb Triple -left traffic mitigation measure including sigp bridge signal modification updated detection, and signing and striping on both streets Pavement Rehabilitation (minimum 2" grind and overlay) Installation of new public fire h,, drants Location Property frontage on First American Wax First American Way NIE comer of MacArthur & Imperial Promenade 10' along 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 Way 11 A -54 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: DESTRUCTION OF OBSOLETE CITY RECORDS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2006 -045. DISCUSSION On July 3, 2006, the City Council approved a resolution outlining the records retention schedule for the agencies, departments, and offices of the City. City records are governed by the Public Records Act which provides the time in which records need to be kept. The Citywide Records Team compiled the Citywide Records Retention Schedule which sets forth the retention period for a particular record. The Municipal Code requires that the destruction of a City record be approved by the City Attorney. In accordance with Section 5B of the Citywide Records Retention Schedule Resolution, the City Attorney has approved the list of records proposed for destruction from the departments as outlined in the attached documents. FISCAL IMPACT There is no fiscal impact associated with this item. 19C -1 19C -2 MEMORANDUM To: Laura Sheedy, Assistant City Attorney City Attorney's Office From: Mark Lawrence, Executive Assistant to the City Manager Date: April 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. 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 April 1. 2010 and prior Correspondence/ April 1, 2010 Chronological Files Councilmember Self- explanatory and prior Council Requests Mayor Inquiries processed for Mayor April 1, 2010 and prior Wards 1 through 6 Inquiries processed for Councilmembers April 1. 2010 and prior Correspondence General Correspondence Self- explanatory April 1. 2010 and prior Staff Inquiries processed for Staff April 1, 2010 and prior Monthly Status City Manager Self- explanatory April 1, 20,110 Reports and prior Payroll Records Council /Staff Self- explanatory April 1. 2010 and prior Apri! 1. 2010 Travel Folders Council /Staff Self- explanatory and prior APPROVE: � L �j , 7-74, Paul M. Walters Date Interim City Manager RECORDS DESTROYED: Volume in Cubic Feet Weight in Pounds 19C -4 CONSENT: Jose0h Straka Date Interim City Attorney AUDITED BY: Mark Lawrence Date Exec. Assistant to the City Manager MEMORANDUM Laura Sheedy To: Assistant City Attorney Interim Executive Director From: Community Development Agency Date: January 30, 2012 Subject: REQUEST FOR DESTRUCTION OF RECORDS The Community Development Agency requests your consent to destroy the city records identified on the attached listing in accordance with the retention schedule outlined in City Council Resolution 2006 -045. Thank you. Nancy T. E ards S C1 19C -5 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE Community Development Agency 2012 Record Record Category Series Record Description Record Dates Admin Services CDA Reports Audited Agency Financial 1989 -2000 statements, Redevelopment Agency Annual Report (Report to State Controller) Back -up paperwork for reports. Admin Services CDA Reports Audited Agency Financial 1990 -1996 statements, Redevelopment Agency Annual Report (Report to State Controller) Back -up paperwork for reports. PREPARED BY: Terri Eggers Date Senior Management Analyst Community Development Agency RECORDS DESTROYED: 3 boxes Number of boxes 19C -6 CONSENT BY: Nancy T. Edds Date Interim ExecutN16 Director Community Development Agency APPROVED BY: Josep Straka Date Interim City Attorney MEMORANDUM Laura Sheedy To: Assistant City Attorney Date: January 30, 2012 Interim Executive Director From: Community Development Agency Subject: REQUEST FOR DESTRUCTION OF RECORDS The Community Development Agency requests your consent to destroy the city records identified on the attached listing in accordance with the retention schedule outlined in City Council Resolution 2006 -045. -, - Thank you. 1--h 41�Z l 14- Nancy T. E ards 19C -7 77) CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE Community Development Agency 2012 Record Category Record Series Record Description Record Dates HOUSING Loan Files Approved rehab loans (paid off) and ineligible a lications 2003 -2006 PREPARED BY: d"vo (f4a a Xd,) a -("2- Ia, Terri Eggers ate Senior Management Analyst Community Development Agency RECORDS DESTROYED: 8 boxes Number of boxes 19C -8 CONSENT BY: Nancy T. Edwar Date Interim Execut a Direcor Community Development Agency APPROVED BY: )�, " r z 2 Lt)� I :�!* -)-- seph Straka Date Interim City Attorney MEMORANDUM To: Joseph Straka, Interim City Attorney City Attorney's Office From: Edward Raya, Executive Director Personnel Services Agency Date: March 19, 2012 Re: REQUEST FOR DESTRUCTION OF RECORDS The Personnel Services Department requests your consent to destroy city records on the attached list, in accordance with the retention schedule outlined in City Council Resolution 2006 -045. Thank you. 19C -9 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE PERSONNEL SERVICES DEPARTMENT 2006 PERSONNEL SERVICES DEPARTMENT RECORD RECORD _ RECORD RECORD CATEGORY SERIES DESCRIPTION DATES EMPLOYMENT Full /Part -Time U.S. Department of Justice Immigration and Hired April 1, 2009 ELIGIBILITY Employees Naturalization forms completed and signed and prior, or ERIFICATION by employee and reviewed and verified (with terminated April 1, (1 -9) necessary documentation) by employer 2011 and prior, representative.* whichever is later. * Will be purged PREPARED BY: Rosa Flores for Date Edward S. Raya Executive Director of Personnel Services RECORDS DESTROYED: Number of Boxes 19C -10 CONSENT BY: ^ 2Z � z ward & Ray Date Executive Director of Personnel Services a3 /�'Zzt- n �o Straka Date m City Attorney CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE PERSONNEL SERVICES DEPARTMENT 2006 PERSONNEL SERVICES DEPARTMENT RECORD RECORD RECORD RECORD CATEGORY SERIES DESCRIPTION DATES RECRUITMENTS Background Materials used in the preparation/ March 2009 and prior Materials implementation of recruitments. ** Bilingual Forms certifying bilingual capabilities fer March 2009 and prior Certification empleyees FeGeiViRg bilingual for pay a Forms applicants for recruitments which require bilingual capabiliity.* Ethnicity Stubs From employment applications submitted at March 2009 and prior recruitment time, are kept for outreach purposes.* Examination Examination answer sheets completed by March 2009 and prior Answer Sheets applicants during testing process and other testing materials.* Official Eligible Eligible lists signed by City Manager. Lists of March 2009 and prior Lists individuals placed on an eligible list card for hiring purposes (copies only - original signed eligible lists are with recruitment file folder according to classification title). ** See attached spreadsheet, dated March 31, 2012, with recruitment files to be purged /digitally imaged. * Will be purged ** Will be digitally imaged PREPARED BY: Rosa Flores for Date Edward S. Raya Personnel Services RECORDS DESTROYED: Number of Boxes 19C -11 CONSENT BY: U`( a 3/111n- E ward S. Ray Date Executive Director of Personnel Services APPROVED 40se)M Straka Date Interim City Attorney Attachment to April 2, 2012 Obsolete Records Destruction Schedule Listing To Be Purged after March 31, 2012 Bulletin Date Date Date Eligible List If Cancelled, Number Classification Posted Closed Established Date Cancelled 15-09 Public Works Crew Leader 01/26/09 02/06/09 02/25/09 N/A 19C -12 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE PERSONNEL SERVICES DEPARTMENT 2006 PERSONNEL SERVICES DEPARTMENT RECORD RECORD RECORD RECORD CATEGORY SERIES DESCRIPTION I DATES ENROLLMENT Dental Insurance Employee dental insurance enrollment forms " EE Separated March FORMS 2007 and prior (OFFICIAL) Flexible Spending, Enrollment forms for flexible spending program " EE Separated March Section 125 2007 and prior Life Insurance Employee life insurance enrollment forms " EE Separated March 2007 and prior Long -Term Employee Long -Term Disability Insurance EE Separated March Disability enrollment forms " 2007 and prior Insurance Medical Insurance Employee medical insurance enrollment forms " EE Separated March 2007 and prior EQUAL Employment and Personnel and employment records, including EE Separated March EMPLOYMENT personnel records application forms ", records pertaining to 2007 and prior OPPORTUNITY promotions ", layoffs " ", terminations ", salaries " COMMISSION and training" (EEOC) Involuntary Personnel records of terminated employee " EE Separated March termination 2007 and prior OFFICIAL Certification/ Request for Certification and /or reassignment EE Separated March PERSONNEL Reassignment forms which document and authorize hiring, 2007 and prior FILES Forms reassignment, or other employee actions. " Certificates of Certificates issued to EE which show completion EE Separated March Training date of training class(es)." 2007 and prior Commendation Letters of commendation and /or other EE Separated March Letters congratulatory documents received by and /or 2007 and prior issued to EE." Disciplinary Memorandums, letters, or other records of EE Separated March Actions proposed and /or implemented disciplinary 2007 and prior action(s). "" Doctor's Notes/ Notes /medical release forms, etc., submitted EE Separated March Medical Releases regarding employee's medical condition. " 2007 and prior Drug Screen Test Pre - placement and drug screening authorization EE Separated March and acknowledgement form(s) and results of 2007 and prior drug screening. " 19C -13 PERSONNEL SERVICES DEPARTMENT RECORD RECORD RECORD RECORD CATEGORY SERIES DESCRIPTION DATES OFFICIAL Family and Basic employee data (name, address, class title, EE Separated March PERSONNEL Medical Leave pay rate, hours worked per pay period; additions 2007 and prior FILES (FML) to or deductions from wages). Dates (or hours) FML designated/ taken; FML notices given to employer by employee; documents from employer describing FML policies; records of premium payments of employee benefits; records of any disputed confidential files: records /documents relating to medical certifications." Job Application Applications for employment and resumes (if any) EE Separated March for hired employees.* 2007 and prior Medical Leave of Leave of Absence forms used in the EE Separated March Absences" documentation of medical leave (including 2007 and prior pregnancy leave and Family and Medical Leave). *` Miscellaneous Documents not specifically mentioned but kept in EE Separated March Documents official personnel file. * ** 2007 and prior Notice of Form completed by employee and /or department EE Separated March Separation indicating effective date of separation, last day on 2007 and prior the job, reason for separation, etc. ** Oath of Office Form completed and signed by employee EE Separated March affirming allegiance to the Constitution of the 2007 and prior United States and the Constitution of the State of California.* Outside Form submitted by employee for approval for EE Separated March Employment employee to be engaged in outside employment.* 2007 and prior Performance Employee performance evaluation forms EE Separated March Evaluations completed by supervisory personnel re 2007 and prior employees' accomplishment of their assigned duties and responsibilities, etc.* PERS Enrollment Forms to enroll employees in the Public EE Separated March Employees' Retirement System (PERS) ** 2007 and prior Pre - Employment Forms completed by employee and medical clinic EE Separated March Medical to assess physical capability of employee prior to 2007 and prior hiring. ** Security Check Form completed by Personnel Svcs to request EE Separated March Form Police Dept to conduct security check on 2007 and prior employee prior to hiring.* Special Licenses Special licenses issued to employees from DMV, EE Separated March accredited schools, etc., verifying employee 2007 and prior meets certain job - related requirements.* 19C -14 PERSONNEL SERVICES DEPARTMENT RECORD RECORD RECORD RECORD CATEGORY SERIES _ _ DESCRIPTION DATES Tuition Copies of applications for training and EE Separated March Reimbursement educational assistance which show EE request, 2007 and prior Request department head approval, and final disposition of request." OFFICIAL Union Bank Form signed by employee authorizing leave hours EE Separated March PERSONNEL Donation Form be donated to the Union Business Leave Bank to 2007 and prior FILES be used by union leaders for Union Business.` W -4 form Employee's Withholding Allowance Certificate EE Separated March completed by EE authorizing employer to withhold 2007 and prior Federal income tax from employee's pay and /or for indicating exemption." Please see attached spreadsheet, dated March 31, 2011, listing personnel files to be purged /digitally imaged. Will be purged ** Will be digitally imaged " ** If non - medical records, will be purged; if medical records, will be digitally imaged. PREPARED BY: CONSENT BY: t Rosa Flores for Date Edward Raya Executive Director of Personnel Services RECORDS DESTROYED: Number of Boxes F Edward Raya Date Executive Director of Personnel Services APPROVED BY: „20 /.2- 19C -15 Interim City Attorney Attachment to April 2, 2012 Obsolete Records Destruction Schedule Listing To be Purged after March 31, 2012 Name EE Number Classification FT PT PTCS Separation Date Acuna, Fernando 104492 Police Cadet PT 01/18/07 Alba, Alessandro G. 104765 Tutor PT 03/13/07 Alberto, Eddmond 104610 Assistant Engineer 11 FT 01/02/07 Alvarado, Steve 10903 Maintenance Aide I PT 01/05/07 Alvarenga, Carlos D. 104521 Police Cadet PT 03/06/07 Archer, Philip E. 05028 Background Investigator PT 01/05/07 Arias, Caesar J. 104591 Police Officer FT 02/10/07 Avalos, Mario B. 104537 Program Leader Il PT 03/28/07 Baker, Kathleen 104468 Program Leader I PT 03/15/07 Berard Mendez, Michelle 103870 Correctional Officer FT 02/21/07 Brown, Susan L. 00750 Library Assistant PT 03/25/07 Buenafe, Emilyn 101569 Loss Control Analyst (UC) FT 02/02/07 Carlson, Debbie E. 100350 Program Coordinator PT 02/10/07 Cuadra, Nelly R. 102799 Account Clerk I PT 03/30/07 Deverona, Jeannette H. 104592 Program Coordinator PT 02/09/07 Diaz, Luis A. 102817 Program Coordinator PT 01/01/07 Ducker, Douglas 104503 Police Records Specialist FT 03/10/07 Elias, Maria L. 103799 Program Leader I PT 03/25/07 Estevez, Luis 104183 Senior Management Analyst (UC) FT 02/09/07 Fernandez, Mollie S. 09116 Clerical Assistant PT 02/12/07 Franco, Salvador 104233 Tutor PT 02/11/07 Graves, Harold D. 09248 Police Investigative Specialist PT 02/23/07 Iles, Andrew 104703 Senior Administrative Intern PT 03/29/07 Kaforski, Tony H. 104707 Secretary PT 02/21/07 Leifkes, Rebecca 101564 Housing Programs Analyst PTCS 03/08/07 Lopez, David L. 104822 Police Cadet PT 03/23/07 Lucatero Jr., Juan M. 104771 Firefighter (Probationary) FT 01/23/07 Macias, Rene 104813 Park Maintenance Assistant PT 02/09/07 Menendez, Aldo 101431 Mobile Library Clerk PT 02/01/07 Mills, Justin V. 104839 Senior Maintenance Worker PT 03/18/07 Molina- Espinoza, Carol 10804 Senior Management Analyst (UC) FT 03/02/07 Nava, Martha 09941 Program Leader 11 PT 02/16/07 Nguyen, Danny 104715 Senior Clerical Aide PT 03/22/07 Nguyen, Sandy 104186 Page PT 02/01/07 Ortiz, Leslie J. 104446 Page PT 01/16/07 Ramirez, Lizeth 104536 Assistant Librarian PT 02/17/07 Rico, Andrea 09937 Recreation Program Coordinator FT 02/02/07 Rosales, Raul A. 102822 Library Clerk I PT 02101/07 Salgado -Mora, Rosie A. 10019 Senior Clerical Aide PT 03/13/07 Sanchez, Jacqueline 104425 Police Cadet PT 01/17/07 Smith, Gerald 104652 Program Leader 11 PT 02/09/07 Song, Jin H. 104753 Account Clerk I PT 02/09/07 Soto, Mario 104841 Building Maintenance Technician FT 03/09/07 Sundstrom, Cristina 104796 Senior Office Assistant PTCS 02/12/07 Vu, Chieu T. 04956 Recreation Program Coordinator FT 01/31/07 Waltermire, Salvador R. 106483 Detention Officer FT 03/20/07 Zuniga, Manuel R. 199504 IProgram Leader II PT 02/15/07 19C -16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: CONTRACT RENEWAL TO CENTRAL COAST SURFACE GRINDING, INC. FOR ANNUAL SIDEWALK MAINTENANCE (SPEC. NO. 10 -048) C.E -cry 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 Renew the contract with Central Coast Surface Grinding, Inc. for sidewalk maintenance for a one -year period in an annual amount not to exceed $150,000. DISCUSSION The Public Works Agency is responsible for maintaining the sidewalks of Santa Ana. As such, staff evaluates the condition of the sidewalks and identifies uneven surfaces and cracks that require repair. Offset grinding is the preferred method to repair uneven surfaces caused by underlying tree roots that raise sidewalk areas, resulting in risks to pedestrian travel. During the previous contract term, at over 6,600 locations, 33,000 linear feet of sidewalk hazards were repaired using offset grinding. On January 4, 2011, the City Council awarded a contract to Central Coast Surface Grinding for a one year period with provisions for three, one -year renewals. Central Coast Surface Grinding has performed satisfactorily during the past contract period and has agreed to renew the contract without an increase in pricing. Staff recommends the first renewal of the contract. FISCAL IMPACT Funds are available in the Public Works Roadway Maintenance account (no. 02917660 62300). Raul Godinez II Executive Director Public Works Agency PG /EG APPROVED AS TO FUNDS AND ACCOUNTS: F Francisco Gutierrez 4, Executive Director Finance & Mgmt. Services Agency 22A -1 22A -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: CONTRACT AWARD TO XYLEM DEWATERING SOLUTIONS, INC. FOR A SANITARY SEWER BY -PASS PUMP SYSTEM (SPCC. NO. 12 -016) i - 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 Award a contract to Xylem Dewatering Solutions, Inc. for the purchase of a sanitary sewer by- pass pump system in an amount not to exceed $45,500. DISCUSSION The Public Works Agency maintains a sanitary sewer system consisting of approximately 390 miles of pipeline, served by two lift stations. In the case of an electrical or mechanical failure, a by -pass pump, housed at the City Yard, is available for deployment to either lift station. The current by -pass pump system is 15 years old and, due to age, cost of repair and inadequate functionality, has been identified for replacement. The notice inviting bids was advertised on February 28, 2012, and bids were solicited. A summary of the bid invitations and bids received is as follows: 14 Invitations for Bid mailed 3 Bids received The bids were received, opened on March 12, 2012 and evaluated (Exhibit 1). The bid received from Xylem Dewatering, Inc. is responsive to the specifications and meets the City's requirements. A 10 percent contingency has been included in the award amount for unforeseen expenses. FISCAL IMPACT Funds are available in the Sanitary Sewer Service account (no. 05617640 - 66400). Raul Godinez II Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez 22bFe4ltive Director a ce & Management Services Agency ABSTRACT OF BIDS CONTRACT AWARD FOR SEWER BY -PASS PUMP SYSTEM (SPEC. NO. 12 -016) Vendor Xylem Dewatering Solutions, Inc. Location Mira Loma, CA Total $41,325.74 Exhibit 1 Griffin Dewatering Corp. Ontario, CA $44,724.87 Charles King Co. Signal Hill, CA $54,791.95 ABSTRACT OF BIDS CONTRACT AWARD FOR SEWER BY -PASS PUMP SYSTEM (SPEC. NO. 12 -016) Vendor Xylem Dewatering Solutions, Inc. Location Mira Loma, CA Total $41,325.74 Exhibit 1 22B -4 Griffin Dewatering Corp. Ontario, CA $44,724.87 Charles King Co. Signal Hill, CA $54,791.95 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AP RI L 2, 2012 TITLE: CONTRACT AWARD FOR VEHICLE BODY REPAIR (SPEC. NO. 12 -025) A� 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 Award contracts for vehicle body repair for a six month period for an aggregate amount not to exceed $75,000 with the following vendors: Vendor Location Doffo Automotive Inc. Santa Ana Kelly's Body Shop Santa Ana Top Finish Collision Center Inc. Santa Ana DISCUSSION The Finance and Management Services Agency Facilities, Fleet Maintenance and Central Stores Division (FMCS) is responsible for the maintenance of 753 vehicles, including police patrol sedans. FMCS performs all maintenance work except accident repairs, body work, transmission jobs, and wheel alignments which are contracted out to minimize interruption of service. Contracting out the above work is a highly labor- intensive process that requires the involvement of Purchasing, Accounts Payable, Fleet Services, Accounting, and Risk Management staff. Moreover, the outside work is in many cases accident - related. Given these circumstances, and in response to the reduced staffing levels in the aforementioned agencies, FMCS is evaluating the possibility of engaging the services of an accident management collision company. Services would include documenting incidents, collection and review of repair estimates, monitoring repair progress, and handling of billing and collections. Also included would be non - accident related outside work as referenced above. At this juncture, the 2007 agreements and renewal options for the current vehicle body repair contractors have expired. Staff is requesting Council to approve a 6 -month contract with the current vendors to continue service while the Accident Management program proposal is evaluated. 22C -1 Contract Award for Vehicle Body Repair April 2, 2012 Page 2 FISCAL IMPACT Funds are available in the Fleet Maintenance & Repair Machines & Equipment account (no. 07510100- 62322). Francisco Gutierrez , Executive Director Finance and Management Services Agency KM 22C -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: AGREEMENT FOR ENVIRONMENTAL SERVICES WITH ICF JONES AND STOKES INCORPORATED TO PREPARE A MITIGATED NEGATIVE DECLARATION FOR THE BAT NHA BUDDHIST MEDITATION CENTER AT 803 SOUTH SULLIVAN STREET CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement with ICF Jones and Stokes Incorporated for environmental services in an amount not to exceed $77,340 for a new meditation center for the Bat Nha Buddhist Temple at 803 South Sullivan Street, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION In November 2011, the Bat Nha Buddhist Temple submitted plans to the City to construct a new two -story, 28,000 square foot meditation center on their existing parcels. During the site plan review process, it was determined that several environmental impacts may result from the project, which resulted in the need to prepare a mitigated negative declaration pursuant to the California Environmental Quality Act. A Request for Proposal was circulated to three qualified environmental firms in February 2012. After reviewing the submitted proposals, it was determined that ICF Jones and Stokes Incorporated would be the best suited company to prepare the environmental documentation for the project due to its track record of preparing high quality environmental studies, adherence to established budgets, its familiarity with the City and its detailed background and knowledge about this project. Therefore, it is recommended that ICF Jones and Stokes Incorporated be awarded this contract to complete the mitigated negative declaration for the project. The fee proposal to complete this effort is $77,340. Funding for the work will be provided by the Bat Nha Buddhist Temple. 25A -1 Agreement with ICF April 2, 2012 Page 2 FISCAL IMPACT Jones and Stokes Incorporated This agreement will not impact any City /Agency funds. Funds in the amount of $77,340 will be deposited by the Bat Nha Buddhist Temple into the Planning and Building Agency account for contractual services (No. 09801001- 24035) prior to the consultant commencing any work. Jay-M. Trevino Executive Director Planning and Building Agency VF:rb VAreports \Bat Nha MND contract.cc040212 Exhibit: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: -,At MMWC� 5�kc & ) �N-L . - Francisco Gutierrez Executive Director Finance & Management Services Agency 25A -2 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into this day of , 2012 by and between ICF .TONES & STOKES, INC., a Delaware corporation ( "Consultant "), and the City of Santa Ana, a charter city and municipal corporation of the State of California ( "City "). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of professional environmental reports and services. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably, be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Consultant shall provide professional environmental services, including the preparation of a Mitigated Negative Declaration regarding The Bat Nha Buddhist Meditation Center project located at 719 and 803 South Sullivan Street. The scope of services (including estimated fees and costs) is attached hereto as Exhibit A and is incorporated by this reference to this Agreement. 2. DELIVERY OF WORK PRODUCT Consultant shall deliver to City all work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with the City's computer system, as agreed between the Project Manager and Consultant. In regard to all copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings, films, recordings, videotapes, and computer programs, Consultant agrees, for itself and for its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty -free, nonexclusive, irrevocable license throughout the world for governmental put-poses to disclose, publish, translate, reproduce, and use such materials. EXHIBIT 1 25A -3 3. COMPENSATION City agrees to pay, and Consultant agrees to accept as total payment for its services, the cumulative rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $77,340.00 during the term of this Agreement. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on the date first written above and terminate upon the completion of the Scope of Services or depletion of the maximum contract amount as stated in Section 3 above, unless terminated earlier in accordance with provisions, below. The term of this Agreement may be extended upon a writing executed by both parties, including the City Manager and the City Attorney for the City. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. G. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insureds) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount 2 25A-4 of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not Iess than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (3 0) days prior written notice to the City. £ If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise due to negligent acts, omissions or willful misconduct, from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their 3 25A -5 behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from, and to the extent of Consultant's, negligent acts, omissions or willful misconduct in the performance of this Agreement. 8. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential _ information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: City of Santa Ana C/o Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 -1988 telefacsimile (714) 647 -6956 With copy to: Executive Director of PBA City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 4 1 Santa Ana, California. 92702 telefacsimile (714) 973 -1461 and City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647 -6515 To Consultant:ICF Jones & Stokes, Inc. Chad R. Beckstrom, AICP Principal /Irvine Branch Leader 1 Ada, Suite 100 Irvine, CA 92618 telephone (949) 636 -3235 cell (949) 395 -2796 telefacsimile (949) 636 -3031 cbeckstrom @icfi.com A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not he modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any proposal or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 5 25A -7 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions; a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. NON - DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services 'i hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City (ally, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH A. STRAKA Interim City Attorney By: Ryan O. Hodge Assistant City Attorney RECOMMENDED FOR APPROVAL: JAY TREVINO Executive Director - PBA CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager ICF JONES & STOKES, INC. CHAD R. BECKSTROM, AICP Principal/Ir-vine Branch Leader 7 EHIBIT A SCOPE OF SERVICES (Attached) 25A -10 Bat Nha Buddhist Meditation Center MND j City of Santa Ana Planning Divisio Scope of Services Pursuant to the request for proposal (RFP) and our understanding of the proposed project, ICF will prepare an IS /MND in accordance with State CEQA Guidelines, as well as all up -to -date CEQA- related legislation and case law. The environmental analysis will focus on the project, as delineated in the project description, preliminary engineering designs, and other information provided by the City and /or project applicant. Our scope of work for environmental review and technical services for the project is outlined below. Task ?. Project Initiation Meeting /Develop Project Description and Objectives Chad Beckstrom and Renee Escario, as the project management team, will meet with the City's project team within five days of the notice to proceed (NTP) to discuss the project issues, refine our scope if necessary, and gather project specific data and materials (including design details, construction assumptions, and construction schedule) to begin the environmental analyses. Following this meeting, 1CF will review this information to gain a firm understanding of the project and the issues. Our project management and necessary technical staff will conduct field visits to review the site and the overall context of the surrounding area. Renee and Chad will also work with the City to develop a detailed project description. Deliverables: • Attendance at one project initiation meeting (two team members attending) • Attendance at one site visit, including drive time and preparation • Draft and final project description • Memo documenting information requests Task 2. Prepare Technical Studies to Support IS /MND Due to the nature and location of the proposed project, we anticipate that the following technical studies will be required: • Air Quality Impact and GHG Analysis m Traffic Impact Analysis • Noise Impact Study a Cultural and Historic Resource Analysis We anticipate that the applicant would provide a preliminary level of site- specific technical analysis including visual simulations or renderings, a preliminary site plan, grading plans, a preliminary geotechnical study, and a water quality management plan. The ICF team's approach to each of these studies is provided in greater detail below. Air Quality Impact and GHG Analysis The air quality and GHG emissions assessment will be prepared consistent with the technical requirements and methodologies outlined in SCAQMD's CEQA Air Quality Handbook (as updated per the revisions posted on the SCAQMD website), Localized Significance Threshold Methodology for CEQA Evaluations,.and Particulate Matter (PM) 2.5 Significance Thresholds and Calculation Methodology guidance documents. For the evaluation of GHG emissions and climate change, specific methodologies and thresholds will be developed based on the latest information made available by the California Air Resources Board (ARB), Governor's Office of Planning and Research (OPR) and SCAQMD at time of project initiation. The air quality and climate change assessment will consist of the following: N Regulatory Setting and Existing Air Quality Conditions. The project site is located within the SCAQMD Source Receptor Area No. 20 (Central Orange County). The regulatory setting will include a summary of all pertinent statutes and regulations, including the federal Clean Air Act, California and National Ambient Air 25A -11 Bat Nha Buddhist Meditation Center MND I City of Santa Ana Planning Division Quality Standards, and SCAQMD Air Quality Management Plan (AQMP). The existing conditions will describe ambient air quality data from the Anaheim - Pampas Lane ambient air monitoring station. The local air quality conditions will be compared to national and state ambient air quality standards. • Demolition and Construction- Period Mass Emissions. The demolition and construction emissions inventory will include combustion emissions related to equipment operation; fugitive dust emissions related to demolition, site preparation and earthmoving activities; mobile (tailpipe) emissions related to construction worker and haul truck trips; and reactive organic compound emissions related architectural coatings application and asphalt pavement. The emissions inventory will be compiled on a daily basis and compared to SCAQMD regional and localized emissions thresholds to determine significance. • Operations- Period Mass Emissions Analysis. The operations emissions inventory will include mobile source emissions related to project - generated traffic (as identified by the traffic impact study), as well as stationary source emissions related to energy demand (i.e., electricity consumption). Emissions will be compiled using the CaIEEMod land use emissions model and compared to applicable SCAQMD daily emissions thresholds to determine significance. IN Localized Carbon Monoxide Concentration Analysis. Using the California Department of Transportation CO Protocol, this analysis will evaluate the degree to which project - related traffic volumes have the potential to effect local carbon monoxide (CO) concentrations. Potential impacts will be evaluated utilizing the CALINE4 dispersion model and EMFAC 2011 emissions factors at up to eight intersection locations. ® Potential for Health Risk Impacts. Impacts related to toxic air contaminant emissions during short -term construction and long -term operations will be evaluated qualitatively. Climate Change /GHG Emissions. Project - related GHG emissions will be estimated using the CalEEMod software program. ICF will analyze the project's direct GHG emissions related to construction activities and project - related trips, as well as indirect GHG emissions associated with electricity usage. Significance criteria will be developed based on current guidance from CARB, OPR and SCAQMD. * Consistency with AQMP. The analysis will evaluate the project's consistency with the SCAQMD's 2007 AQMP in accordance with the procedures set forth by the SCAQMD. Noise Impact Study ICF will conduct a noise analysis for the proposed project in accordance with CEQA requirements to evaluate potential impacts to existing and future noise- sensitive land uses. Our local noise engineer is certified by the INCE and has conducted numerous analyses for projects involving re- development and school projects that are adjacent to residential and sensitive (church /school) uses. Existing residences, churches and a preschool /daycare are located immediately adjacent to the project site, which could be impacted by noise from project demolition, construction and operation. Additionally, on -site temple and meditation uses adjacent to Sullivan Street are also considered to be noise - sensitive and could be impacted by project traffic. To identify the existing ambient noise environment in the project area, up to four short -term (up to 1 hour in duration) ambient noise measurements will be conducted at noise - sensitive locations in and around the project site. The noise measurements will be conducted using equipment and methods as proscribed by the American National Standard Institute and consistent with the standards of the practice for community noise analysis. Using the noise measurements as a baseline, potential construction noise impacts on nearby noise - sensitive land uses will be evaluated based on construction equipment data to be provided by the project applicant and noise modeling methods developed by the Federal Highway Administration (FHWA). Long -term (operational) noise effects from the project will also be addressed and will include evaluation of on -site activity noise levels and the ability of the noise to effect surrounding uses. Using traffic data provided by the project traffic consultant, traffic noise along roadways surrounding the project site will be modeled (using FHWA Traffic Noise Model version 2.5) for existing, future and future- with - project conditions. 1C "- 16Y..iVCt4 F � 25A -12 Bat Nha Buddhist Meditation Center MND i City of Santa Ana Planning Division The significance of noise impacts resulting from the proposed project will be assessed based on relevant thresholds (city, state and federal). If significant noise impacts are identified, mitigation measures to reduce impacts to a less- than - significant level (where feasible) will be recommended. The results of the noise analysis will be provided in the noise section of the ISIMND. Any technical data or modeling will be provided in an appendix. Cultural Resource Evaluation ICF recommends that a records and locality database search be conducted to evaluate the potential for archeological and paleontological resources to be found on the project site. This evaluation Wit: ® Conduct a literature and records search at the South Central Coastal Archaeological Information Center of the California Historical Resources Information System at California State University, Fullerton, to determine if any prehistoric or historical cultural resources have been recorded within project area. Review published geologic and paleontological literature and museum databases, including the Los Angeles County Museum of Natural History database. ® In coordination with the City, ICF will contact with the Native American Heritage Commission and local Native Americans regarding the project. Because the project area is completely developed, an archaeological field survey will not be conducted. The findings of the cultural and paleontological resource investigations will be used to provide an assessment of the sensitivity of the project area for prehistoric archaeological and paleontological resources. The findings of this research will be summarized in the Cultural Resource section of the IS/MND. The MND will also provide mitigation measures, if necessary. Historic Resource Evaluation ICF will conduct a historic analysis to evaluate potential impacts of the proposed project in accordance with CEQA requirements. The project would demolish two single - family homes and several ancillary buildings on the project site. The buildings on the 803 South Sullivan Street parcel appear to date from the early 1960s. However, the building on the northern parcel (719 South Sullivan Street) was built in 1927 and is a Craftsman style home that retains integrity and meets the 50 year old age crlterla for potentially historic resources. To identify any historical resources related to the 1927 building located on the 719 South Sullivan Street parcel an ICI= qualified architectural historian will conduct a field visit and research City data sources that might yield historic data regarding the project site. This analysis will determine if the site contains potentially historical resources per CEQA Guidelines Section 15064.5, which evaluate the building in relation to any significant contribution to important historic events, persons, or architecture. The historic findings will be summarized in the Cultural Resource section of the IS/MND. Because the project site is not anticipated to contain historic resources (per section 15064.5), this scope of work does not include preparation of DPR 523 forms, or further technical analysis beyond preparation of the MND section. Traffic Impact Analysis (TIA) As a subconsultant to ICF, Fehr & Peers will prepare a project - specific TIA to evaluate the traffic related impacts of the proposed project. The TIA will be summarized in the traffic section of the IS /MND and included as an appendix. The following tasks are proposed to be completed as part of the TIA; however, as described below, these tasks will be refined in coordination with the City Traffic Engineering Division upon receipt of additional project operational information. ® Confirm Traffic Analysis Scope. Fehr & Peers will meet with the City's traffic engineering team of to review and approve our approach to preparing the traffic study. Specific items that would be addressed in this scoping memorandum include: Page 11 25A -13 Bat Nha Buddhist Meditation Center MND I City of Santa Ana Planning Division — Study Intersections — Project Description — Project Trip Generation — Project Trip Distribution — Cumulative Projects — Process for Cumulative Project Forecast Methodology Thresholds of Significance Identification of Peak Hours to be Assessed Prior to this initial meeting, Fehr & Peers will prepare a memorandum recommending a proposed approach. Following this meeting, Fehr & Peers will update the memorandum as needed. 0 Existing Conditions Analysis. Fehr & Peers will analyze existing conditions within the study area and conduct a field review to document the existing roadway and intersection configurations within the study area. This will include lane widths, striping patterns, traffic, location of traffic control devices, sidewalks, parking, and transit facilities. Our scope assumes that we will evaluate the following four study intersections as part of this effort. Our fee assumes new AM and PM peak period intersections counts at all study locations. — Fairview Street & Willits Street — Sullivan Street & Willits Street — Fairview Street & McFadden Avenue — Sullivan Street & McFadden Avenue Level of Service (LOS) analyses will be prepared for all existing study intersections during both the morning (am) and evening (pm) peak periods. Additionally, our scope assumes analysis and counts at two roadway segments. • Project Traffic Forecasts. Fehr & Peers will identify project traffic estimates for daily and peak hour periods using information from the project sponsor related to operation of the proposed project. • Background Traffic Forecasts. Fehr & Peers will prepare traffic forecasts including: — Existing Conditions with Project Conditions — Project Opening Year No- Project Conditions — Project Opening Year with Project Conditions — Cumulative No- Project Conditions — Cumulative with Project Conditions The Opening Year and Cumulative Scenario volumes will be identified by applying an appropriate growth rate identified by the City of Santa Ana to the existing volumes and adding traffic from approved /pending projects in the area that are anticipated to be completed prior to the opening of the proposed project. ® Traffic Impacts and Mitigations. Fehr & Peers will identify impacts associated with the project traffic. if any impacts are identified, mitigations will be developed. These mitigations could include traffic signal installation, traffic signal improvements, intersection lane striping, localized street improvements, roadway widening, or other related items. N Site Plan and Alternative Modes Review. Fehr & Peers will conduct a review of the project site plan related to site access, internal circulation, parking, and emergency vehicle connectivity. Concurrent with this site plan review, Fehr & Peers will also determine if there are any conflicts with adopted programs and policies related to non - automotive travel modes like bicycles, pedestrians, and transit. 0 Draft Report. Fehr & Peers would produce a professional traffic engineering draft traffic impact report. It is anticipated that a draft report would be produced, with the report updated following the receipt of any comments from the project team and City staff. CF- 25A -14 Bat Nha Buddhist Meditation Center MND I City of Santa Ana Planning Division Task 2a. Prepare Aesthetics Evaluation to Include in ISIMND Because the project would result in large -scale changes in visual bulk and scale of development within the residentially designated project vicinity, this scope of work includes preparation of a detailed aesthetics analysis as detailed below: Aesthetic /Light and Glare Analysis Because potential aesthetic impacts may occur from the change from existing conditions and development of the proposed meditation facility that will include a 45 -foot high structure adjacent to existing single family residential uses. ICF's visual resources specialist will prepare a detailed visual analysis that will address impacts to the aesthetic conditions in the surrounding vicinity. The visual analysis will provide a narrative of the physical setting will be presented in terms of the visual character and quality of the viewsheds, key vantage points (vistas), and important visual resources within the project viewshed. Additionally, the setting will include an inventory of the viewer groups that have visual access to the site, along with their relative sensitivity to changes in views, and will identify the applicable aesthetic policies in the general plan, and development standards in the zoning ordinance that may be relevant to the project. ICF will provide a qualitative evaluation of the changes to the visual environment that would occur as a result of the project. The analysis would focus on project's features that have the capability of modifying the aesthetic character and quality of the project area and are the most sensitive public views, which include the bulk and scale of the proposed structures. Additionally, we will evaluate the project in terms of visual /aesthetic goals, objectives, and policies contained in relevant planning programs. Mitigation measures will be explored and recommended, as appropriate. This analysis would utilize the project plans visual simulations, renderings and elevation graphics provided by the applicant. We also assume that any proposed features such as planting plans, lighting plans, and proposed aesthetic treatments will be supplied by the applicant. ICF will conduct an analysis of light and glare that could be generated by the project. We will identify existing lighting sources in the project area, and determine the sensitivity for the introduction of new lighting sources on the project site. We will review lighting design plans, and identify the location of receptors that may be affected by the lighting system. ICF will review applicable municipal code guidance for lighting, and any other standards that may be used as a threshold related to light trespass limitations (i.e., spill light). Glare could potentially impact nearby single - family residential uses as a result of external building lighting or lighting within the parking areas if not adequately shielded. If available, ICF will also analyze the proposed exterior architectural treatments of the proposed design to understand and analyze if any exterior spectral surfaces would have the potential to produce fugitive glare. A qualitative assessment of the impacts from new lighting and glare will be prepared, and mitigation measures will be identified if necessary, which may include design measures to minimize spill light and glare. Task 3. Prepare Administrative Draft 1SIMND To utilize time most efficiently, preparation of the technical studies would occur concurrently with preparation of the administrative draft MND. ICF will prepare an administrative draft IS /MND for the project, which will include an evaluation of the environmental resources contained in the CEQA Environmental Checklist. The analyses will include: • Discussion of existing conditions • Identification, analysis, and evaluation of all potential environmental impacts N Examination and recommendation of feasible ways to eliminate or minimize adverse environmental impacts N Discussion of cumulative Impacts 25A -15 Bat Nha Buddhist Meditation Center MND { City of Santa Ana Planning Division We will provide substantial evidence to support the findings in the CEQA Environmental Checklist, providing both quantitative and qualitative analysis. To support the conclusions of the analysis for some of the topic areas, we will use the technical studies and analyses described previously. The cumulative impacts analysis will focus on the potential for environmental Impacts from this project, along with other proposed and reasonably foreseeable projects in the area. We will develop the list of cumulative projects in coordination with City staff, and reach out to other agencies (i.e., Santa Ana Unified School District). We will evaluate and discuss the project's contribution to the overall cumulative baseline to identify any potential "cumulatively considerable" impacts. ICF will prepare a fully edited administrative draft IS /MND for the City's review and comment. Following the City's review of the administrative draft document, ICF will incorporate the City's comments, revise the document accordingly, and provide a draft document for City review prior to public distribution. Deliverables a Administrative draft IS /MND including all technical studies — 5 hard copies and one round of review is included in the budget ® Screencheck draft IS /MND including all technical studies — 5 hard copies and one round of review is included in the budget N Electronic files and CD of each draft Task 4. Prepare and Circulate Public Draft IS /MND, NOI, and NOC Upon the Citys approval of the draft IS /MND, we will prepare and produce copies for public review. ICF will prepare a notice of intent (NOI) for posting at the County Clerk and a notice of completion (NOC) for submittal to the State Clearinghouse. ICF will circulate the IS /MND for a 30 -day public review period. We will work in consultation with City staff to develop a distribution list for the IS /MND, we will distribute the document to state and local agencies, and other recipients for public review and comments, as determined by the City and we will post the NOI at the County Clerk's office. As is practice in working with the City, we assume that City staff will draft the notice for a newspaper of regional circulation. Deliverables ® Print and mail up to 10 copies of the public review IS /MND * 10 CDs containing Adobe Acrobat files of the draft ISIMND ® Post NOI at the County Clerk ® Submit the NOC along with 15 hard copies of the IS /MND to the State Clearinghouse 11 Print NOI suitable for distribution (up to 30 copies) 0 Provide PDF version suitable for the City to post on the City website. Tasks. Prepare Response to Comments and Fina11S /MND Prepare Response to Comments ICF will work with City staff to address comments received during public review of the IS /MND. Based on our understanding of the City process, this scope of work includes preparation of responses to comments received during the public review period. These responses to comments, along with any changes to the IS /MND, will be submitted to the City first as an administrative final IS /MND. We assume 20 hours of ICF technical staff's time to respond to comments. Page 14 25A -16 Bat Nha Buddhist Meditation Center MND I City of Santa Ana Planning Division Prepare Mitigation, Monitoring, and Reporting Program ICF will prepare a mitigation monitoring and reporting program (MMRP) that will identify mitigation measures, timing, responsibility for implementation, and monitoring methods. We will work with City staff to identify appropriate responsible parties, methods, and timing. iCF will provide the MMRP in conjunction with the administrative final IS /MND. Following the City's review and approval of the administrative final IS /MND, we will provide a final IS /MND to the City prior to distributing the final IS /MND to commenting parties. The budget assumes two rounds of review and revision of the final IS /MND. Per the RFP, we have assumed 10 hard copies and 10 CDs of the final 1S /MND will be provided. After certification of the iS /MND by the City Council, ICF will prepare the NOD and coordinate with the City to post it with the County Clerk. Deliverables • Administrative final IS /MND — 5 hardcopies and 1 CD • Final IS /MND — 10 hardcopies and 10 CDS • Electronic files containing Microsoft Word and Adobe Acrobat files of the final IS /MND • Posting of NOD at County Clerk Task 6. Attend Meetings and Project Administration Project Coordination Meetings with City Staff and Applicant ICF staff will be available to attend project meetings with City staff. These may include meetings with the applicant to understand the project, administrative draft document review meetings, focused issue discussion meetings, or preparation for public hearings. Per the RFP, this scope of work includes project manager and project director attendance at eight project coordination /progress meetings with City staff. In addition, this scope includes Fehr & Peers' attendance at one kick off meeting, three project team meetings related to the preparation and review of the traffic study. Planning Commission and City Council Study Sessions and Public Hearings ICF will be available to attend Planning Commission and City Council study sessions and hearings related to the proposed project. We will produce presentation materials as necessary, and be available to discuss the environmental review process and results of the draft and final IS /MNDs. We will assist City staff, at their direction, through the public comment and certification processes, briefings to commissioners and City Council members, and other means of support as may be appropriate. Per the RFP, this scope of work includes the meeting times listed below. Deliverables; • Two project coordination /progress meetings • One Planning Commission study session • One Planning Commission hearing • One City Council hearing • Additional meetings as necessary (to be billed separately on a time and materials basis) In addition, this scope includes Fehr & Peers' attendance at one Planning Commission meeting and one City Council meeting. ICF- 25A-1 7 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ( "additional insureds ") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective , this endorsement form as a part of Policy # _ Issued to Named Insured Countersigned by Authorized Representative REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: MEMORANDUM OF UNDERSTANDING WITH WORKFORCE INVESTMENT ACT MANDATED PARTNER — ORANGE COUNTY SMALL BUSINESS DEVELOPMENT CENTER 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 Authorize the Mayor, City Manager and Clerk of the Council to execute the attached Memorandum of Understanding with the Orange County Small Business Development Center, for workforce investment services, subject to non - substantive changes approved by the City Manager and City Attorney. WORKFORCE INVESMENT BOARD RECOMMENDATION At its regular meeting of March 15, 2012, by a vote of 21:0 (Claudio, Conway, Gebre, Gonzalez, Knitter, Korthuis, Maldonado, Martinez, Piwnica, Tucker, Wadhera absent, Didion abstained), the Workforce Investment Board recommended that the City Council approve and authorize the Mayor, City Manager and Clerk of the Council to execute the Memorandum of Understanding with the Orange County Small Business Development Center. DISCUSSION The Workforce Investment Act (WIA) requires the Santa Ana Workforce Investment Board (WIB) establish a one -stop delivery system, whose objective is to provide workforce development services for local adults, dislocated workers, youth and employers. The one -stop delivery system is a network of WIA- mandated and optional partners who are responsible for providing services for training and employment opportunities authorized by the Act. The Santa Ana WIB is required to establish and maintain Memorandum of Understandings (MOU) with the mandated partners. The MOU provides for collaboration by all of the one -stop partners and creates a seamless system of service delivery. The MOU contains the provisions required by the WIA such as identifying partner services to be provided through the one -stop delivery system, the funding of these services and operating costs of the system, and the methods for referral. The MOU will remain in effect until terminated by repeal of the WIA by the 25B -1 MOU WIA Mandated Partner — OC SBDC April 2, 2012 Page 2 federal government or by a written request to withdraw by the Orange County Small Business Development Center. FISCAL IMPACT There is no fiscal impact associated with this action. awn Nancy T. E ards Interim Exe tive Director Community Development Agency NTE /LAO /kg Exhibit 1: Memorandum of Understanding 7 Will it 701MINNNOWN EXHIBIT 1 w :151 Memorandum of Understanding (MDU) Pursuant to the Workforce Investment Act of 1998 (WIA) 1, PARTIES: The parties to this Memorandum of Understanding (MOU) are the Mayor and City Council of the City of Santa Ana, the Santa Ana Workforce Investment Board (WIB), and several agencies (having signed Attachment "A ", "One- Stop Partner Commitment" and, if physically located at the One -Stop location, Attachment "B ", "Resource Sharing Agreement" and Attachment "C ", "Memorandum of Operation" if applicable functioning as "One -Stop Partners" within the Santa Ana One -Stop System (hereinafter referred to as the Santa Ana W /O /R/K Center). 2. PURPOSE: The Santa Ana W /O/R/K Center, through its central location at the Santa Ana Regional Transportation Center, 1000 E. Santa Ana Blvd., and its satellite facilities, shall provide and /or coordinate workforce investment services to individuals, providing them with the necessary skills to participate in building a world -class workforce in Santa Ana. Services and referrals provided at the Santa Ana W /O/R/K Center may include, but are not limited to, the following: • Eligibility determination • Outreach, intake and orientation to services available • Initial assessment of skills, aptitudes, abilities and supportive services • Job search and placement assistance, career counseling • Provision of employment data and labor market information • Provision of performance information • Employment referral • Provision of support and follow -up services • Identification of skills required to be competitive in the local labor market • Filing for Unemployment Insurance claims • Access to CalJOBS for Labor Exchange services • Help in establishing eligibility for Ca1WORKS and financial aid • Occupational skills training • On-the-job training • Workplace learning with classroom training • Skills upgrading and retraining • Entrepreneurial training • Job readiness training • Adult education and literacy 25B -4 • Services for persons with disabilities • Serve mature workers by operating as a specialized recruitment arm for One -Stop Partners working collaboratively to connect mature workers to employers with labor shortages • Customized training for employment with specific employer • Employer services, including: job listing; job matching; candidate screening and testing; outplacement services; job analysis; and, information on available tax credits, business development planning and labor market trends. 3. DURATION: (a) This MOU shall remain in effect until (i) terminated by the repeal of the Workforce Investment Act or otherwise by action of law, or (ii) with respect to the One -Stop Partner, the date on which such One -Stop partner withdraws from the MOU pursuant to Section 3 (c) hereof, Should any One -Stop Partner withdraw, this MOU shall remain in effect with respect to other remaining One -Stop Partners. (b) This MOU is of no force or effect until signed by authorized representatives of the participating agencies, and approved by the Chief Local Elected Official or his /her designee. The MOU, once signed, becomes part of the local WIA Plan. (c) Any party may withdraw from this MOU by giving written notice of intent to withdraw at least 30 calendar days in advance of the effective withdrawal date. If agreed to by all parties, the timeframes for notice may be reduced or extended. Notice of withdrawal shall be given to the WIB at the address Iisted in the signed attachments of this MOU, and to the contact person so listed, considering any information updates received by the parties pursuant to Section 1. Courtesy notification shall be made to all parties of this MOU in a timely manner. 4. MODIFICATION AND ASSIGNMENT: This MOU may be modified at any time by written agreement of the parties. Assignment of responsibilities under this MOU by any of the parties shall be effective upon written notice to the WIB. Any assignee shall also commit in writing to the terms of this MOU. 5. ONE -STOP SYSTEM DESCRIPTION: The one -stop system description in the local WIA plan, including modifications thereto, is incorporated into this MOU by reference. b. RESERVED 7. CONFIDENTIALITY: The WIB agrees that when any individual applies for or receives services from and the partner agency through the One -Stop Center, all information regarding such 25B -5 application for or receipt of services shall be confidential information subject to the provisions of 34 CFR 361.38. The parties agree to honor the confidentiality provisions as described in the local WIA plan, including modifications thereto, and incorporated into this MOU by reference. Exchanged information shall remain private and confidential in accordance with the most restrictive confidentiality requirements of any of the parties collecting, receiving or sharing information. S. RESOURCE SHARING: The parties agree to share resources in accordance with the attached Resource Sharing Agreement. It is expressly understood that this MOU does not constitute a binding financial commitment, but rather an intent to commit specific resources in the firture as the parties' allocations and budgets are known and the one -stop system evolves. The one -stop system is a work in progress and its costs and the partners' resource contributions will not remain static from month to month or from year to year. The Resource Sharing Agreement is meant to be reviewed yearly and may be modified as needed by any partner as long as it is identified as a revision, and it is signed and dated by the agency Administrator. 9. DISPUTES: The parties shall first attempt to resolve all disputes informally. Any party may call a meeting of all parties to discuss and resolve disputes. Should informal resolution efforts fail, the dispute shall be referred to the Chair of the WIB, who shall place the dispute upon the agenda of its next regular or special meeting of the Board's Executive Committee. The Executive Committee shall attempt to mediate and resolve the dispute. Finally, if the Executive Committee's resolution efforts fail, any party may file a grievance in accordance with the State of California's WIA grievance procedures. The parties agree to be bound by the final determination resulting from that procedure. All costs associated with the grievance procedure shall be borne by the losing party, 10. SEVERABILITY: If any part of this MOU is found to be null and void, or is otherwise stricken, the rest of this MOU shall remain in force. 11. JURISDICTION: Jurisdiction over any disputes under this MOU shall reside in Orange County, California. 12. HOLD HARMLESS CLAUSE: Each party to this MOU agrees to indemnify and hold harmless the other parties, their officers, agents, employees, and volunteers from and against any and all loss or damage, and from any and all suits, actions and claims filed or brought by any person or persons arising out of acts or omissions of the party or its officers, agents, employees in the performance of this MOU. I 13. SIGNAGE & COMMUNICATION OF PARTICIPATION: The Santa Ana WORK Center shall provide wall signage listing the names of current participating partners. Where practical, the Santa Ana WORK Center will list partner agencies on forms and marketing materials distributed to the public. 14. ACCESSIBILITY ASSURANCES AND CERTIFICATIONS: The parties agree to abide by all applicable non- discrimination federal and state laws. The WEB and the One -Stop partners will ensure that policies and procedures established by the WIB and the One -Stop partners are in compliance with the Americans with Disabilities Act (ADA). The Santa Ana WORK Center will assure its services and premises are accessible to persons with disabilities under the requirements of the Americans with Disabilities Act. 15. INSURANCE: The One -Stop Partners agree that their current in force insurance or self - insurance coverage programs shall apply to their operations performed under the Workforce Investment Act and at the WORK Center, including commercial general liability, property damage liability, business personal property, workers' compensation and employee dishonesty/crime coverages. The City of Santa Ana shall be named as additional insured for such insurance and the coverage shall be primary and non - contributory with regard to the City. 16. AUTHORITY AND SIGNATURES: The individuals signing this MOU and its attachments, which are incorporated herein by reference, have the authority to commit the party they represent to the terms of this MOU, and do so commit by signing. 25B -7 THIS MEMORANDUM OF UNDERSTANDING is hereby signed and agreed to on the date first written above. FOR THE LOCAL ELECTED OFFICIAL Signature Miguel A Pulido Mayor; City of Santa Ana Name and Title 20 Civic Center Plaza Santa Ana, CA 92701 Address FOR THE CITY OF SANTA ANA ATTEST: Date CITY OF SANTA ANA Maria D. Huizar, Clerk of the Council Paul Walters, Interim City Manager ORANGE COUNTY SMALL BUSINESS DEVELOPMENT CENTER (ONE - STOP PARTNER) Signature Date Leila Mozaffari, Director Name and Title 2323 N. Broadway, Santa Ana, Ca 92706 Address Approved as to Form: JOSEPH STRAKA, Interim City Attorney By: Lisa E. Storck, Assistant City Attorney THIS MEMORANDUM OF UNDERSTANDING is hereby signed and agreed to on the date first written above. 96� Attachment "A" One -Stop Partner Commitment 1. PARTIES: The parties to this Memorandum of Understanding (MOU) are the Mayor and City Council of the City of Santa Ana, the Santa Ana Workforce Investment Board (WIB), the Orange County Small Business Development Center OCSBDC and other agencies (identified in the "One -Stop Partner Commitment ", Attachments "A" and `B: to this MOU) functioning as "One -Stop Partners" within the Santa Ana One -Stop System (hereinafter referred to as the Santa Ana WORK Center). In addition to accepting the provisions contained in the MOU, the Orange County Small Business Development Center ( OCSBDC) commits to the following: • The OCSBDC and WORK Center staff will familiarize themselves with each other's organizations in order to facilitate the referral process. • The OCSBDC and WORK Center will collaborate as required by their mutual ftinding sources. • The WORK Center staff will refer business to the OCSBDC for consulting, training, and access to resources that a business may need. The OCSBDC will refer clients to the Santa Ana WORK Center Business Service Unit for hiring and other labor issues that the business owner may have. Full -time equivalents (FTEs) of Agency Staff Assigned to Santa Ana W /O/R/K Center: Not Applicable Hours /days per week Agency Staff Assigned to Santa Ana W /O /R/K Center: Not Applicable PERFORMANCE GOALS: Customer Service All on -site, One -Stop Partners shall commit to the following goals for the W /O/R/K Center: I . To conform to a uniform policy of customer service; 2. To develop customer service principles all One -Stop Partners must implement; 3. To implement an on -going system for measuring customer service levels; and, 4. To participate in a task force empowered to oversee, measure and respond to customer service data. W. .-1 Attachment "A ", Page 2 AUTHORITY AND SIGNATURES: The individuals signing this MOU and its attachments which are incorporated therein have the authority to commit the party they represent to the terms of this MOU, and do so commit by signing. FOR THE Orange County Small Business Development Center (Legal Name of Partner Agency) Signature Leila Mozaffari, Director Name and Title 2323 N Broadway Santa Ana, CA 92706 Address MOU Partner rev 6 -10 Date 7 CITY OF SANTA ANA WORKFORCE INVESTMENT BOARD ONE STOP PARTNER MEMORANDUM OF UNDERSTANDING SERVICES MATRIX FOR THE ORANGE COUNTY SMALL BUSINESS DEVELOPMENT CENTER Programs Represented Services Provided Method of Service Delivery (Check all that apply) Referral Method (Check all that apply) Contribution to One Stop System Performance ® Employmen ♦ Training seminars on ❑ Co- location of staff ❑ In person ®Customer t and business topics for small ❑ Co- location of ❑ By phone Satisfactions Training companies services ❑Online p Provide activities ♦ Customized business E Cross training of E Refer direct to Coordination under Title I consulting by industry staff the OCSBDC and Services of the experts in Strategic ❑ On -line for Workforce Business Planning; Marketing Planning; ®On site — OCSBDC Investment Act, Financial Statement office development, analysis, cash flow mgmt.; Procurement; use of technology in expansion of sales and operations. 0 Finance facilitation including capital needs analysis, loan doe review and referral to financial institutions ♦ Information on licenses & permits, corporate structure, taxes and insurance ' Criteria to be determined by the State of California and the Santa Ana Workforce Investment Board 25B -11 Attachment B ► ► ► ► 111- -iliq / ' w , . ► �. i • i i s :-Fffal \_ t i 25B -12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: APRIL 2, 2012 TITLE: APPROVED AGREEMENT WITH MACADEE ❑ As Recommended CONSTRUCTION INC. FOR REWIRING ❑ As Amended ❑ Ordinance on 1St Reading STREET LIGHTS ON BROADWAY AND ❑ Ordinance on 2nd Reading SYCAMORE STREET ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO LL_ FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached agreement with Macadee Construction, Inc. to rewire the streetlight system on Broadway and Sycamore Street for an amount not to exceed $172,000, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The street lighting systems on Broadway and Sycamore Street are high voltage, low amperage systems that are antiquated and obsolete. The system is a single -wire series that has been a constant source of maintenance problems. This system uses a one -of -a -kind incandescent lamp that the manufacturer has stopped producing. The City has a small supply of replacement lamps and there are no more available on the market. This creates an urgent need to install modern street light fixtures. To install more updated fixtures, the system needs to be rewired to enable a multiple wire 240 -volt system. The intent is to use the existing conduit, remove the obsolete series -type wire and install new wires with new fixtures, ballasts, and lamps. On February 9, 2012, Requests for Proposals were mailed to 27 electrical contractors, ten of which are based in Santa Ana. A total of 7 proposals were received on March 1, 2012, none from Santa Ana contractors. The proposals were evaluated by a panel comprised of representatives from the Public Works Agency using the following criteria: organizational credentials, experience, work plan, and pricing. The ratings for the 7 respondents are as follows: 25C -1 Agreement With Macadee Electrical Construction Inc. For Rewiring Street Lights April 2, 2012 Page 2 RANK SCORE FIRM LOCATION BASE PROPOSAL 1 93 Macadee Electrical Construction, Inc. Chino $156,889 2 85 Republic ITS, Inc. Anaheim $164,700 3 83 Aegis, Inc. Anaheim $168,493 4 62 PTM General Engineering Service, Inc. Riverside $164,000 5 60 C.T. &F., Inc. Bell Gardens $165,309 6 55 CP Engineering, Inc. La Puente $182,964 7 45 Steiny and Company, Inc. Baldwin Park $177,000 Staff is recommending an agreement with the top -rated firm, Macadee Electrical. FISCAL IMPACT Funds are available in the Street Lighting Program (accounting unit 01117630- 66220). The funding estimate includes the base bid of $156,889 plus $15,111 in contingencies for unforeseen circumstances. These funds are a portion of the General Fund allocation for maintenance of effort which is required for the continued receipt of gas tax and Measure M funding. Raul Godinez II Executive Directo Public Works Agency RG /KW Exhibit: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez t, Executive Director Finance & Management Services Agency 25C -2 EXHIBIT 1 AGREEMENT FOR PROVISION OF ELECTRICAL CONTRACTING SERVICES THIS AGREEMENT, made and entered into this 2nd day of April, 2012 by Macadee Electrical Construction, Inc., a California corporation (hereinafter "Contractor "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The City desires to retain a Contractor having special skill and knowledge in the field of street light repair and installation. B. Proposer represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall rewire the existing street light system and install new fixtures on the existing street light poles on Broadway and Sycamore Street (hereinafter "Project "), as set forth in Exhibit A, attached hereto and incorporated by this reference. 2. COMPENSATION a. The City agrees to pay, and Contractor agrees to accept as total payment for its services, a fixed price of $156,889. The City has allocated an additional $15,111 contingency amount, to be expended only at the written direction of the Executive Director of Public Works for additional services required due to unforeseen circumstances. The total sum to be expended under this Agreement shall not exceed $172,000 during the term of this Agreement. b. Payment to Contractor shall be made after completion and City acceptance of the Project. Contractor shall submit a detailed report of work performed and materials used in the Project. Within thirty (30) days after receipt of such report, City shall pay Contractor, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on March 30, 2013. However, contractor shall perform all work items required by this Agreement within a period of ten (10) weeks from Agreement commencement unless terminated earlier in accordance with Section 13. 25C -3 4. OWNERSHIP OF REPORTS AND DOCUMENTS The originals of all maps, drawings, plans, graphs, letters, documents, reports and other products and data produced under this Agreement shall be delivered to, and become the property of City. Copies may be made for Contractor's records but shall not be furnished to others without written authorization from City. Such deliverables shall be deemed works made for hire and all rights in copyright therein shall be retained by City. 5. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship or a joint venture relationship; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employer's Social Security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Contractor's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Workers Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for Workers Compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than One Million Dollars ($1,000,000.00) per accident. d. If Contractor is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per claim. e. The following requirements apply to the insurance to be provided by Contractor pursuant to this section: 25C -4 (i) Contractor shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of Insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be cancelled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Contractor fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Contractor's right to be paid for its time and materials expanded prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, Contractors, special counsel, and representatives from liability: 1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Contractor or its subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in Section 1 of this Agreement: and 2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this section or by reason of the terms of, or effects, arising from this Agreement. The Contractor further agrees to indemnify, hold harmless, and pay all cost for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, effects arising from this Agreement. City may make all reasonable decisions with respect to its representative in any legal proceeding. 8. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of nonuse and nondisclosure shall not apply to any information that 1) has been disclosed in publicly available sources; 2) is, through no fault of the Contractor, disclosed in a publicly available source; 3) is in rightful possession of the Contractor without an obligation of confidentially; 4) is required to be disclosed by operation of law; or 5) is independently developed by the Contractor without reference to information disclosed by the City. 25C -5 9. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance if services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this section, to the following persons: To City: Clerk of the City Council City of Santa Ana P.O. Box 1988 M -30 Santa Ana, CA 92702 -1988 Fax: 714- 647 -6956 With courtesy copies to: Executive Director, Public Works Agency City of Santa Ana P.O. Box 1988 M -21 Santa Ana, CA 92702 Fax: 714- 647 -5069 and: City Attorney City of Santa Ana P.O. Box 1988 M -29 Santa Ana, CA 92702 Fax: 714- 647 -6515 To Contractor: Macadee Electrical Construction, Inc. 4755 Lanier Road Chino, CA 91710 Fax: 909 - 627 -3772 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an 25C -6 authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate neither Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without prior written consent of the City, and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by the City personnel or by other Contractor retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive, and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, State and local laws and regulations. 15. JURISDICTION — VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of services hereunder and required by the laws and regulations of the United Sates, the State of California, the City of Santa Ana and all other governmental 25C -7 agencies. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. RESPONSIBILITY FOR DAMAGES The Contractor shall be responsible for all damages to persons and/or property that occur as a result of the fault or negligence of said Contractor or its subcontractors, agents, employees, or other persons acting on their behalf in connection with the performance of this Agreement. 18. FAILURE TO PERFORM SATISFACTORILY a. Contractor acknowledges and agrees that if the Contractor fails to perform the work as specified herein, the Director, 1) will pay only for the amount of service received as determined by the Director with an appropriate downward adjustment in contract price, or 2) may have such required work done by City forces or otherwise, and charge the cost thereof to the Contractor. Such adjustments will be the estimated cost for performance by City forces plus City overhead and will include overtime pay as required to complete work. b. If Contractor performs the work in such a manner that the amount of payment withheld due to substandard performance, nonperformance and /or forfeiture for non- completion per schedule totals five percent (5 %) of the total contract price, the City shall notify the Contractor of such noncompliance. If the Contractor continues to perform the work in such a manner that the amount of payment withheld due to substandard performance, nonperformance and /or forfeiture for non- completion per schedule totals ten percent (10 %) of the total contract price, this Agreement may be terminated at the City's option. In the event of termination for unsatisfactory performance, the original Contractor shall reimburse the City for damage accrued due to changing contractors. 19. SAFETY REQUIREMENTS All work performed under this contract shall be performed in such a manner as to provide required maximum safety to the public and where applicable, comply with all safety standards required by CAL - OSHA. The Director reserves the right to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance of the work under this contract. 20. HAZARDOUS CONDITIONS The Contractor shall maintain all work sites free of hazards to persons and/or property resulting from its operations. Any hazardous condition noted by the Contractor, which is not a result of its operations, shall be immediately reported to the Public Works Agency. 21. ACCESS TO PRIVATE PROPERTY Prior to the commencement of any work that will restrict access to private property the Contractor shall notify each affected property owner or responsible person, informing him or her of the nature of and the approximate duration of the restriction. 25C -8 22. PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS The Contractor shall be responsible for the protection of all improvements adjacent to the work, such as sprinkler systems, drain pipes, lawns, brick work, plantings, masonry work, fences, wall, sidewalks, street paving, etc., located on either public or private property. If any improvements are damaged they shall be replaced in kind at the Contractor's expense. 23. TRAFFIC CONTROL The Contractor shall conduct all work in a manner that will insure continuous traffic flow on the street at all times. In situations where it is necessary to restrict traffic flow per WATCH, the Contractor will contact the Director for approval. 24. MISCELLANEOUS TRAFFIC DEVICES Contractor shall provide all traffic control and miscellaneous traffic devices as may be required for routine and/or extraordinary maintenance perform pursuant to this Agreement. Signs used for handling traffic during the course of this contract shall be in accordance with the WATCH published by Building News, Inc., and made a part of these special provisions. The method in which signs, barriers and other miscellaneous traffic devices are used during construction and/or repair shall be in accordance with the publication mentioned. A copy of said publication is on file in the Santa Ana Public Works Agency — Administration Division. All signs shall be illuminated or reflectorized when they are used during hours of darkness. All cones, pylons, barricades, or posts used in the diversion of traffic shall be provided with flashers, or other satisfactory illumination if in place during hours of darkness. 25. WORK BY CITY FORCES BECAUSE OF NONCONFORMANCE TO CONTRACT Should the Contractor fail to correct deficiencies or public nuisances that have been created because of its operation, then such deficiency or public nuisance will be considered to be of an emergency nature and cause the City to make corrective work. Such work will be done on a force account basis with an additional callout charge of Two Hundred Dollars ($200.00) for each callout. 26. APPRENTICESHIP STANDARDS Where required under law, Contractor shall assume full responsibility for compliance with apprenticeship standards as established by Section 1777.5 of the California State Labor Code. 27. SUBCONTRACTORS The successful proposer shall not, without the written consent of the City: a. Substitute any person or firm as subcontractor in place of the subcontractor designated in the original proposal. b. Permit any subcontract to be assigned or transferred or allow it to be performed by anyone other than the original subcontractor listed in the proposal. 25C -9 c. Subcontract any portion of the work after bid is submitted if the cost thereof exceeds one -half (1/2) of one (1) percent of the total proposal and a subcontractor was not designated for the work in the original proposal. 28. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council JOSEPH STRAKA Interim City Attorney as 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 MACADEE ELECTRICAL CONSTRUCTION, INC. KEVIN MC CARTHY Corporate Secretary Tax ID# 25C -10 EXHIBIT A SCOPE OF SERVICES This Request for Proposal calls for the removal and replacement of the existing street light cable on Broadway between 17`h Street and Santa Clara Street and on Sycamore Street between Russell Street and Borchard Street. This project will require replacing all the cable in the entire system with three new #8 THW wires. The 46 existing poles are required to be rewired with new #12 THW wire, the existing fixtures removed and salvaged, replaced with new 150W high pressure sodium fixtures and lamps (Broadway, double fixture king poles) or 70W metal halide fixtures and lamps (Sycamore, single fixture concrete poles). The new fixtures may need minor modifications to fit existing pole configurations. Costs for modification shall be included in the lump sum proposal amount. Three new service pedestals will be furnished and installed by the Proposer. Proposer shall locate and intercept existing conduit adjacent to service pedestal and install conduits and pull box adjacent to pedestal. All costs for conduit work, including hardscape replacement, to connect to service pedestal shall be included in lump sum costs. New wire shall be placed into and connected properly in service pedestal. All work, equipment, labor and materials necessary to provide complete functioning system shall be included in the Proposal pricing. Existing globes shall be protected, cleaned and reused. The existing streetlight systems were installed in the early 1920's and are obsolete. The exact condition and location of the underground conduit is unknown although the existing cable was installed 10 years ago. The City expects the existing cable to be used to pull in the new wire. Pre - lubrication of the conduits may be necessary. The City does not anticipate that much of the existing conduit will need to be repaired. All costs for conduit repair excluding materials will be included in the costs proposed for hourly work. The Proposer may need to excavate and access and disconnect the existing conduit sweeps at the pole foundations to properly pull the new wire. All costs for excavation, including hardscape replacement and conduit disconnect /reconnect shall be included in the lump sum price. 25C -11 EXHIBIT 1 BROADWAY AND SYCAMORE STREET REWIRING PROJECT PART 1— SCOPE OF WORK The Broadway Circuit has approximately 5000 linear feet of wiring The Sycamore Circuit has approximately 2500 linear feet of wiring Scope of work includes the following: • Install 3 new service pedestals per plans and specifications • Remove existing cable from conduit. • Intercept existing conduit and install new conduit and pull boxes to connect to new service point as shown on plan. • Re -wire system using existing conduit. • Replace any deteriorated conduit only if it is impossible to pull the new wire through. • Remove and salvage existing fixtures. • Rewire poles and install new fuses, fixtures, lamps etc. per City Standard #1126 -F. Material List: • Fixtures: Broadway: Antique Ballasts Ballast socket assembly A25 150S MOG PWT GR5 TB 150W multi -tap ballast w /starter (56 + 4 spare) Sycamore: Ameron Ballasts ELECASSY- N "AC07MH w/ Type 5 refractor 240v 70w Metal Halide PULSE START 70W multi -tap ballast w /starter (20 +2 spare) • Wire: #8 THW red, black, green/ #12 THW red, black, green • Lamps: Broadway: 150W HPS Sycamore: Philips CDM 70 /C /U /M MH LAMP (26 + 2 spare) • Conduit: 2" Schedule 80 PVC • Fuses: 240V l0A with holder per City Standard 41126 -F Broadway 2 per pole Sycamore 1 per pole • Service Pedestals: Milbank MILCP3B1 1115A22SP33 120/240V w/ GFI duplex receptacles; base MILCP 16PDMNTCALT 25C -12 PART H SPECIFICATIONS EXCAVATING AND BACKFILLING Excavating and backfilling shall conform to Section 86.2.01, "Excavating and Backfilling"of the California State Specifications (CSS) and these Special Provisions. The following paragraph shall be added to Section 86 -2.01: All excavated material in roadway shall be removed from the site and backfilled with compacted crushed aggregate base material topped with temporary asphalt concrete on the same working day as removed. A temporary alternative to backfilling, with permission of the Agency, shall be the placement of steel plates with temporary asphalt concrete ramping at edges of the steel plates. Such plating shall not be allowed for more than five (5) working days, after which backfill shall be required. Slurry backfill: Use of a one -sack cement and sand slurry provided by a commercial ready -mix concrete vendor may be permitted except in parkway areas. The slurry shall be placed monolithic from the bottom of the excavation to the bottom of the existing structural section or sidewalk; or as directed by the Agency. CONDUIT Roadway lighting conduit shall conform to the provisions in Section 86 -2.05, "Conduit ", of CSS and these Special Provisions. Roadway lighting conduit shall be schedule 80 PVC unless shown otherwise on the plans. Insulated bonding bushings will be required. All conduits, excluding SCE service conduits, shall be installed at the depth not less than 42" below finished grade in pavement areas 24" in sidewalk and parkway areas. Only when conduits are to be installed between adjacent pull boxes, from street light pole to pull box or pull box to cabinet where the in- between distance is too short to meet the 42" depth and the 45- degree sweep requirements, the conduit may be installed at lower depth but not less than 18" below finished grade. After conductors have been installed, the ends of conduits shall be sealed with industry grade sealing compound. Replace sidewalk and pavement in -kind to match existing material, color, and pattern, from score mark to score mark after pull boxes and conduit have been installed. Payment for replacement of sidewalk, pavement, hardscape and landscaping shall be included in lump sum price. All costs for potholing, trenching, boring etc shall be included in lump sum price. PULL BOXES Pull boxes shall conform to the provisions in Section 86 -2.06, "Pull Boxes" of CSS, CSP ES -8 and these Special Provisions. Notes 4(a)(5) and 4(b)(10) on CSP ES -8 shall not apply. Pull box size shall be Number 5 except where shown otherwise on the plan or as directed by the Agency. Bottoms shall be bedded in crushed rock. Pull boxes shall not be grouted. Pull boxes shall be polymer concrete reinforced with heavy -weave fiberglass. Pull box covers shall be lightweight (BES lite non - concrete, or approved equal). Pullbox lids shall be stamped "LIGHTING ". New pull boxes shall not be installed within any curb access ramp. 25C -13 CONDUCTORS Conductors shall conform to the provisions in Section 86 -2.08, "Conductors" of CSS and these Special Provisions. Wire shall be THW. VIVA 111710Ci Wiring shall conform to Section 86 -2.09, "Wiring ", of CSS and these Special Provisions. If necessary, multiple lighting circuit conductors can be soldered and insulated by "Method B" as shown in CSP ES -13A. Conductors No. 8 AWG or larger shall be spliced by the use of "C" shaped compression connectors and soldering. Compression -type terminals (spade or eyelet) shall not be permitted for termination on solid conductors. PART 111. SPECIAL PROVISIONS SCOPE OF WORK The Request for Proposals calls for work on a historic high voltage series type street light system. The work consists of removal of existing high voltage wiring and fixtures from existing conduit and historic streetlight poles, installing new wire, ballasts and lamps and connecting to new 120/240V electrical service point. The successful Contractor will intercept existing conduit and reroute it with new conduit to new electrical service cabinet (City installed). The Contractor shall provide at its own risk and cost all labor, materials, tools, equipment, and traffic control per the Work Area Traffic Control Handbook ( "WATCH "). II. FUNCTIONS AND RESPONSIBILITIES A. DIRECTOR The Director shall have the authority to accept /reject materials, workmanship and to make minor changes in work or schedule. When the performance of the work or completion per schedule is determined to be substandard, Director may 1) recommend that all or a portion of payment be withheld, and/or forfeiture for delay be assessed; 2) direct the work be accomplished by a separate contractor, in order to complete the necessary work as close to schedule as possible and withhold the resulting costs. Payment to be withheld shall be deducted from the next monthly payment due to the Contractor, or if the amount is insufficient to cover payment, the Contractor shall be liable and will be billed accordingly. The Director or his authorized representative shall decide all questions, which may arise as to the manner of performance and completion per schedule, acceptable fulfillment of the contract by the Contractor, interpretation of the specifications, and compensation to include completion of work by alternate sources. B. CONTRACTOR I . Local Office. The Contractor shall maintain a local office with a competent representative who can be reached during normal working hours and authorized to discuss matters pertaining to this contract with the Director. Contractor will not be allowed to store equipment or materials at any contracted area. 25C -14 2. Submittals. The Contractor shall submit to the Director at the beginning of work, 1) a detailed job schedule, 2) names and titles of all persons working on the project, and 3) materials to be used on the project for approval. All submittals shall be periodically updated as necessary. The Director shall be immediately notified of any deviation from schedule or material usage. 3. Identification. All vehicles and equipment on the project site shall be properly marked with company identification. 4. Licenses and Permits. The Contractor shall, prior to award of contract and without additional expense to the City, possess all licenses and permits required for the performance of the work required by this contract, including but not limited to State License C -10 and a City of Santa Ana Business License. 5 Work Force a. The Contractor shall ensure that all work under this Agreement is supervised by personnel who are technically qualified and possess the management skills required to implement modern methods and newly developed procedures. b. The Contractor shall ensure that all work under this Agreement is performed by fully qualified, experienced personnel, directly employed by the Contractor or its listed subcontractors. All subcontractors that will perform work under this agreement shall be listed on this proposal. No other subcontractors shall be permitted without prior written consent by the Director. C. The Contractor shall be responsible for skills, methods, appearance and action of Contractor's employees and its subcontractors and for all work done. The Contractor's employees shall be United States citizens and/or legal residents. d. The Contractor shall perform the work provides pursuant to this Agreement under the direction of the Director. The Director may make inspections at any time and may request that the Contractor perform additional work or services to bring Contractor's performance to the level required by this agreement. 6. Material. The Contractor shall submit to the Director a list of all materials that the Contractor proposes to the use in the execution of this work. Said list shall be submitted before use of any product, pursuant to the provisions of this Agreement. All materials used or submitted shall be in full compliance with all federal, State, County and local agency laws, guidelines and requirements. 7. Recycling. All waste (including construction and demolition materials) resulting from work performed under this Agreement shall be recycled. The Contractor will be responsible for the disposal of all non - recyclable waste in accordance with all applicable local, State and federal laws and regulations. A recycling and disposal plan must be submitted for approval prior to start of work. 8. General Maintenance and Clean-Up. All trash and debris shall be removed from all worksites at the end of each day. The Contractor shall keep sidewalks and all paved areas in parkway swept and cleaned of any debris, dirt, or soil. 9. Emergency Service. The Contractor shall be able to receive and respond to the City's call for emergency service twenty -four (24) hours per day, seven (7) days per week. Response time shall be immediate but not more than two (2) hours to remove or eliminate a public safety hazard. Contractor shall provide the City with a local telephone number where contractor can be contacted twenty -four (24) hours per day, seven (7) days per week. 25C -15 SANTA CLARA AV 0 _ -- 2112 2106 Mo III I. .......... . .......... 2032 < 0 cc m zow---------------- 1122 ------------- 1906 1102 - 1816 EXHIBIT I CONSTRUCTION NOTE (DFURNISH AND INSTALL 120/240 VOLT TYPE III SERVICE PEDESTAL EXUr. COMWINPLAO Q 3•8TWN IN EXISTING CONDUIT. PROTECT EXISTING CONDUIT OFURNISH AND INSTALL 2- CONDUIT. ------ - - 0, m 20TH ST 1901 I 19TH ST Ir 18TH ST < 177D OM 17TH ST 25C -16 Ts LEGEND EXISTING CONDUIT BUFFALO AV ■ ■ L LIGHT SERVICE PEDESTAL LIGHT FIXTURE SERVICE POINT zlm--------------- INSTALL PULLBOX IN EXISTING CONDUIT RUN ------------ ------------- 2D43 r — 3 0, m 20TH ST 1901 I 19TH ST Ir 18TH ST < 177D OM 17TH ST 25C -16 Ts EXHIBIT I RUSSELL AVE ILol 1202 1201 ----------------- ----------------- -- — ------------ 1207 1208 1205 ----------------- ----------------- ----------------- ILo) 1212 I 1209 ----------------- ----------------- 1215 i i 1214 j CO 1215 ----------------- ----------------- r ---------------- ! F- 1217 1218 1217 al ! ----------- r ----------------- ---------- — -- — 1E�21 r 1221 1 1222 CC r----------------- ---------------- ---------------- 1225 1 1226 1225 r---------------- 1229 1230 11229 r---------- — ----------------- -------------- -- 1233 1232 1235 r----------------- ----------------- 11239 1240 -1-239-1 F-- -- -- --- - -- - --I ----------------- 11243 1242 11245 J. -------- -------- -- ---- — ----- al 1245._ -__ 141 j1249 1246 1249 11253 WILSHIRE AVE 1301 1302 1 1 ----------------- L ----------------- I 11305 1 1306 r----------------- ----------------- 1:309 1312 ----------------- ________________I 1315 1315 1314 ----------------- ----------------- 1319 1 1318 If______ __ _______----------------- 1321 1324 r --- -------------- it 1325 1326 1331 1332 ----------------- L 1335 1336 F------------------ 1340 1339 1342 1345 1346 1 1401 14021 - --A 1405 1204 1210 1216 1218 1230 1234 1246 1306 1310 j z 1221 1229 1231 --- --- --------- 1235 - - - - - - - - - - - 1237 ----------- - 1245 11247 25C -17 CONSTRUCTON NOTE 403 1322 j IN EIISTIIG CONDUIT. .... L._. -- I Oi FURI- 1407 -------------------- LEGEND EXI15MG CONDUT 1344 UC4iT SERVICE PEDESTAL 1417 : LIGHT FixTuRE -- -- -- -- -- -- -- - -- -- -- BORCHARD AVE 1421 1427 25C -17 CONSTRUCTON NOTE (D x —TILL -121@ 100 T. III —110E 5- Q 3-8TWN IN EIISTIIG CONDUIT. IIDTECT E.ISIING DUIT Oi FURI- - INS— z'CONOUI T. LEGEND EXI15MG CONDUT UC4iT SERVICE PEDESTAL LIGHT FixTuRE SERVICE POINT INSTALL PULLBOX IN EXUING CONDUIT RUN 25C -18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: ACQUISITION SETTLEMENT AGREEMENT FOR BRISTOL STREET CORRIDOR (PROJECT NO. 081700) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached acquisition settlement agreement with Abel Torres in the amount of $22,000 subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION On February 2, 2009, the City Council approved the purchase agreement between the City and Mary Jane Draganza as Trustee of the Draganza Family Trust. The agreement was to purchase the property located at 517 North Bristol as part of the second phase of the Bristol Street Widening Project between Third Street and Civic Center Drive. As part of the relocation process, the tenant, Abel Torres, is entitled to goodwill benefits. Staff has been negotiating with Mr. Torres and has reached a comprehensive settlement agreement. The compensation amount is the based on a loss -of- goodwill study prepared by an appraiser licensed by the State of California. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared Environmental Impact Report/Environmental Impact Assessment EIR No. 89 -01 approved by City Council in 1990. 25D -1 Acquisition Settlement Agreement For Bristol Street Corridor April 2, 2012 Page 2 FISCAL IMPACT Funds are appropriated in the Select Street Construction Fund (accounting unit 05917661- 66100). APPROVED AS TO FUNDS AND ACCOUNTS: �' nt\M�3jlS�► � Raul Godinez II Francisco Gutierrez F Executive Directo Executive Director Public Works Agency Finance & Management Services Agency RG /SA Exhibit 1: Agreement 25D -2 EXHIBIT 1 ALL INCLUSIVE SETTLEMENT AGREEMENT This Agreement ( "Agreement ") is made by and between the City of Santa Ana, a public body, corporate and politic ( "Agency ") and Abel Torres ("Tenant "). The Agency and Tenant are hereinafter sometimes referred collectively as the "Parties." RECITALS A. Tenant operates a business, commonly known as Rumores, and is the occupant of real property located at 517 N. Bristol St., Santa Ana, CA (the "Property "). B. The Property has been acquired by the Agency for the Bristol Street Widening Project. Tenant currently occupies the Property under a lease dated May 6, 1985, which commenced on May 6, 1985 and ends upon thirty days of written notice (collectively, the "Lease "). C. The Parties desire to resolve all issues relating to the Agency's acquisition of the Property in accordance with the terms and conditions set forth below. D. The Parties acknowledge that the payment as set forth in Section 1(a) and other consideration given in connection with this Agreement are the result of a compromise and settlement of disputed claims, and shall never, at any time or for any purpose, be considered an admission of liability or responsibility on the part of any of the parties herein released. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants hereinafter set forth, it is hereby agreed by and among the Parties that: 1. Consideration (a) The Agency shall pay to Tenant the sum of $22,000.00 (Twenty -Two Thousand Dollars) (Tenant Settlement Payment) as total compensation for goodwill loss and any and all related expenses and claims as more fully described in paragraph 1(b) below. Upon full execution of this Agreement, the Agency will begin processing a payment, payable to Abel Torres, in the amount of $22,000.00 less any deductions described in paragraphs 1 (c) of this Agreement, after Tenant vacates the Property, signs a Certificate of Abandonment, provides all keys to the Property to the Agency or to the Agency's relocation consultant, and provides written verification that all hazardous materials have been legally and properly moved. (b) Tenant agrees, that the consideration received pursuant to paragraph 1(a) above constitutes full satisfaction of any and all obligations of the Agency to Tenant, including, without limitation, any obligations for relocation assistance, relocation benefits, moving expenses, interest of any kind in the real estate and leasehold, loss of business goodwill, compensation for personal property (loss of inventory), furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or damages of any nature. 1 of 7 25D -3 (c) Tenant vacated the premises on March 30, 2012. 2. Release (a) Nothing contained herein shall constitute a release or discharge by either party for any of the undertakings of the other party to this Settlement Agreement. This Agreement shall serve as a full release and discharge by the Parties, on behalf of themselves, their agents, representatives, assigns, trustees, administrators, attorneys, heirs, relatives, spouses, ex- spouses, beneficiaries, and successors in interest, in consideration of the mutual covenants and promises contained herein, of the Tenant, the City of Santa Ana, the City of Santa Ana Public Works Agency, and those parties' accountants, other professionals, agents, representatives, assigns, employees, administrators, trustees, insurers, attorneys, heirs, beneficiaries, and successors in interest (collectively the "Released Parties "), from all rights, claims or cross - claims, demands, actions, or causes of action, including those for damages, compensation, relocation assistance, relocation benefits, loss of goodwill, property interest, compensation for personal property (loss of inventory), furniture, fixtures and equipment, punitive damages, interest, costs, attorney's and appraisal fees, injunctive or declaratory relief, or for relief by way of writ of mandate, or for demands, damages, refunds, debts, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes, and causes of action of whatever kind, at law or in equity, that the Parties have now or may have against any of the Released Parties arising from the facts and circumstances described in this Agreement including but not limited to (1) the acquisition of the Property by the Agency, (2) Tenant's leasehold interest, if any, in the Property (or any portion thereof) or (3) any other right or interest Tenant may have, assert, or claim by reason of Agency's actions or failure to act, including, but not limited to, any claim to relocation assistance, relocation benefits or compensation for property or loss of goodwill from the Agency. (b) In making this release, the Parties intend to and do release, acquit and discharge the Released Parties, and each of them, from any liability of any nature whatsoever for any claim, injury, damages, or equitable or declaratory relief of any kind, whether the claim, or any facts on which such claim might be based, is known or unknown to the party possessing the claim. Each party expressly acknowledges and waives any and all rights under Section 1542 of the California Civil Code, which the Parties understand provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his /her favor at the time of executing the release, which if known by him /her must have materially affected his /her settlement with the debtor. Each party acknowledges the foregoing waiver of the provisions of California Civil Code Section 1542 was separately bargained for and expressly consents that this Agreement shall be given full force and effect in accordance with each and all 2 of 25D-4 of its express terms and provisions, including those terms and provisions relating to unknown or unsuspected claims, demands and causes of action, if any, to the same effect as those terms and provisions relating to any other claims, demands and causes of action herein above specified. (c) Each party acknowledges that it may hereafter discover facts or law different from or in addition to those which it now believes to be true with respect to the release of claims. Each party agrees that the foregoing release shall be and remain effective in all respects notwithstanding such different or additional facts or law or any party's discovery thereof. The Parties shall not be entitled to any relief in connection therewith, including, but not limited to, any damages or any right or claim to set aside or rescind this Agreement. (d) None of the Parties or their respective agents nor any related entities have made any statement or presentation to the other regarding any fact relied upon in entering into this Agreement and the Parties, and each of them, expressly do not rely upon any statement, representation or promise of any other party or nay party's agent or related entities in executing this Agreement, except as is expressly set forth herein. Each of the Parties has made such investigation of the facts and law pertaining to the subject matter of this Agreement as it deems necessary, and has consulted with legal counsel of its own choosing concerning these matters. (e) Tenant hereby represents and warrants as of the Effective Date of this Agreement that (1) to its actual knowledge, no other entity or person has any right, title, or interest whatsoever in the released claims, and (2) that there has been no assignment, transfer, conveyance or other disposition by Tenant of any of the released claims, and that Tenant will not make any such assignment, transfer, conveyance or other disposition subsequent to the Effective Date of this Agreement. Tenant acknowledges that the Authority has relied and is relying upon such representations and warranties in entering into this Agreement. (f) Tenant will Hold Harmless and defend Agency, its employees, agents, contractors or representatives from any claims that may arise from Tenant's nondisclosure of any other interests in the Property or personal property referenced by this agreement. (g) This Agreement represents a settlement of doubtful and disputed claims between the Parties and does not constitute any admission of liability by either party to the other party to this Agreement. 3. Third Party Beneficiaries Except as explicitly set forth herein, nothing in this Agreement is intended to create any third party beneficiaries under this Agreement, and no person or entity other than Authority and Tenant shall be authorized to enforce the provisions of this Agreement. 2 5t('5 4. Attorney's Fees In the event of litigation relating to or arising out of this Agreement, the prevailing party shall be entitled to be reimbursed by the non - prevailing party for all reasonable costs and expenses incurred thereby, including, but not limited to reasonable attorney's fees and costs for services rendered to such prevailing party. 5. Indemnity Each party shall indemnify, defend and hold the other party and the Released Parties harmless from and against any claims, damages, demands, liabilities, losses, judgments, expenses and attorney's fees and /or costs resulting from the breach by such indemnifying party of any provision of this Agreement, the falsity of any representation or warranty made by the indemnifying party contained in this Agreement. 6. Entire Agreement This Agreement together contains the entire Agreement of the Parties, and supersedes any prior written or oral agreements between them, concerning the subject matter of this Agreement. 7. Partial Invalidity In the event that any term, covenant, condition or provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. 8. Waiver and /or Modification The provisions of this Agreement may not be waived, altered, amended or repealed, in whole or in part, except upon a written agreement signed by each of the Parties. The waiver by one party of the performance of any provisions of this Agreement shall not invalidate this Agreement, nor shall it be deemed a waiver of any other provision hereof. 9. Headings The headings, subheadings and numbering of the different paragraphs of this Agreement are inserted for convenience and for reference only and shall not be considered for any purpose in construing this Agreement. 10. Governing Law The rights and obligations of the Parties under this Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 25 f'6 11. Successors In Interest Subject to any restrictions against assignment contained herein, this Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representatives, executors, estates, heirs, legatees, agents and related entities of each of the Parties. 12. Necessary Acts Each of the Parties agrees to perform such further acts, and execute and deliver such further documents, as may be reasonably necessary to carry out the provisions of this Agreement. 13. Advise of Counsel The Parties, and each of the, acknowledge that in connection with the negotiations and execution of this Agreement, they have each been represented by independent counsel of their own choosing and the Parties executed the Agreement after review by such independent counsel; or, if they were not so represented, said non - representation is and was the voluntary, intelligent and informed decision and election of the party not so represented; and, prior to executing the Agreement, each party has had an adequate opportunity to conduct an independent investigation of all the facts and circumstances with respect to the matters which are the subject of this Agreement including but not limited to the advisability of entering into this Agreement and the meaning of California Civil Code Section 1542. 14. Authority to Execute This Agreement Each person executing this Agreement on behalf of an entity represents that he or she is authorized to execute this Agreement on behalf of that entity and to bind that entity to the terms of this Agreement. 15. Construction Each party has cooperated in the drafting and preparation of this Agreement. In any construction to be made of this Agreement, or of any of its terms and provisions, the same shall not be construed against any party. 16. Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. 25f'7 17. Voluntary greement The Parties, and each of them, further represent and declare that they have carefully read this Agreement and know the contents thereof, and that they sign the same freely and voluntarily. 18. Notices All notices, requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and shall either be delivered personally or be sent by telegram or by regular or certified first class mail, postage prepaid, deposited in the United States mail, and properly addressed to the party at its address set forth below, or at any other address that such party may designate by written notice to the other ply: To Agency: Souri Amirani Interim City Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza, M -36 Santa Ana, California 92701 To Tenant: Abel Torres Rumores 429 S. Bristol Street, Ste. 4 Santa Ana, CA 92703 Facsimile (714) 547 -3674 19. Jurisdiction and Venue Any action or proceeding concerning this Agreement shall be filed and prosecuted in the appropriate California court in the County of Orange, California. Each party hereto irrevocably consents to the personal jurisdiction of the court. The Parties each hereby expressly waive the benefit of any provision of law providing for a change of venue to any other court, including, without limitation, federal Agency court, due to any diversity of citizenship between the Parties or due to the fact that either the Authority is a party to such action or proceeding. Without limiting the generality of the foregoing, the Parties specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394 or other state or federal statutes or judicial decisions of similar effect. 256-8 IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. TENANT: Rumores Mr. Abel Torres Title Tax Identification No. Date CITY OF SANTA ANA i Paul M. Walters Interim City Manager ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney Dated Dated BY: Dated Jose Sandoval Senior Managing Assistant City Attorney 25b-9 25D -10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: QUITCLAIM AND SALE OF SURPLUS PROPERTY TO RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT Gc.c.•.fL lX.`_ CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER 1) Authorize the City Manager and Clerk of the Council to execute a quitclaim deed relinquishing the City's fee interest in a portion of former College Avenue to Rancho Santiago Community College District. 2) Direct the City Attorney to prepare and authorize the City Manager and Clerk of the Council to execute an agreement for the sale of City surplus property located at the northeast corner of College Avenue and Washington Avenue to Rancho Santiago Community College District for $1.00. DISCUSSION On November 20, 2006, the City Council adopted resolution number 2006 -081, approving the City to vacate portions of College Avenue, 15th Street, and Martha Lane (Exhibit 1). The streets were vacated to allow for the use by the Rancho Santiago Community College District (District) on its master plan campus expansion. During the vacation processing, the District provided the City with a title report that identified the District as the owner of the fee title of the streets, subject to street easements by the City. Consequently, no transfer of the underlying fee title was deemed necessary at the time of the street vacation. However, a more recent title report provided by the District for the processing of the Santa Ana College lot merger identifies the City as the fee owner of a 140 square foot portion of College Avenue just north of Washington Avenue (Exhibit 2). Staff has independently researched recorded deeds and concurs with the ownership determination in the recent title report. The District is requesting the City to quitclaim the spandrel- shaped property, which will be incorporated into the Santa Ana College boundary. Section 2 -709 of the Municipal Code provides for a direct sale without the necessity for competitive bidding with a two - thirds vote of approval by the City Council. Based on staff's evaluation, which considered the property's small size, irregular shape, and limited utility, the land has a nominal value. Staff recommends the sale of the property of the property for $1.00 to the District. 25E -1 Quitclaim and Sale of Surplus Property April 2, 2012 Page 2 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed request is not considered to be a project. No further action is required. FISCAL IMPACT The $1.00 land sale proceeds will be received into the General Fund for Sale of Land Account (accounting unit 01102002- 57071). APPROVED AS TO FUNDS AND ACCOUNTS: i Raul Godinez II Francisco Gutierrez Executive Directo Executive Director G" D Public Works Agency Finance & Management Services Agency RG:TH Exhibits: 1. Location Map 2. Location Map 3. Agreement 25E -2 17TH STREET 16TH STREET Lu - W W W � > < - Q 1 Q Qi w 15TH STREET HE MARTHALANE T WASHINGTON AVENUE LEGEND: VACATED STREET AREA EXHIBIT 1 SANTA ANA D COLLEGE Z w w 0 W J J O U SEE EXHIBIT 2 SANTA ANA Title: CITY COUNCIL QUITCLAIM A PORTION OF COLLEGE AVENUE W N AGENDA DATE: TO RANCHO SANTIAGO COMMUNITY COLLEGE APRIL 2, 2012 25E_3DISTRICT PUBLIC WORKS AGENCY w w H J O H Q' 00 25E -4 LEGEND: I 0 0 M I R I _ -.-- ------------------ WL WASHINGTON AVENUE VACATED STREET AREA AREA BEING QUITCLAIMED EXHIBIT 2 SANTA ANA Title: CITY COUNCIL P W A AGENDA DATE: QUITCLAIM A PORTION OF COLLEGE AVENUE TO PUBLIC APRIL 2, 2012 RANCHO SANTIAGO COMMUNITY COLLEGE DISRICT s O BACK OF WALK 25E -6 EXHIBIT 3 PURCHASE AND SALE AGREEMENT Property Address: Corner of Washington Avenue and College Avenue, Santa Ana, California THIS PURCHASE AND SALE AGREEMENT (the "Agreement ") dated, for identification purposes only, as of , 2012, is made and entered into by and between the CITY OF SANTA ANA, a charter city and municipal corporation ( "Seller "), and RANCHO SANTIAGO COMMUNITY COLLEGE DISTRICT, a political subdivision of the State of California ( "Buyer "), with reference to the following. In consideration of the mutual covenants set forth herein, Buyer and Seller agree as follows: RECITALS A. Seller owns that certain lot of land consisting of approximately 140 square feet at the corner of Washington Avenue and College Avenue, Santa Ana, California and more specifically described in Exhibit "A" and shown in Exhibit "B" attached hereto (the "Property "); B. The Property, as shown in Exhibit "B" is adjacent to the former College Avenue, which the City Council of the City of Santa Ana has vacated and title to which has reverted to Buyer. C. However, title to the Property is in the name of Seller. D. To clear title, Buyer and Seller have agreed to this Purchase and Sale Agreement so that Seller may quit claim any title it may have in the Property to Buyer. 1. Agreement to Sell and to Purchase. Subject to the terms and conditions of this Agreement, Seller agrees to sell and Buyer agrees to purchase the Property. 2. Purchase Price. The "Purchase Price" for the Property is One Dollar ($1.00) receipt of which by Seller is hereby acknowledged. 3. Quit Claim Deed. The transfer of the Property shall be by quit claim deed conveyance from Seller to Buyer showing title vested in Buyer. 4. Transfer Costs. Buyer shall pay all recording fees and all fees and costs for any new financing. Buyer shall pay the premium for the title insurance policy, should it seek title insurance. 5. Condition of Property. Buyer acknowledges that Buyer is purchasing the Property with full knowledge of its condition and that no representations or warranties of any kind whatsoever, express or implied, have been made by Seller or by -1- 25E -7 Seller's agents. Buyer further agrees to purchase the Property in "AS IS" condition with all faults. 6. As -Is Sale. BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER SET FORTH IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS, OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO: (A) THE NATURE, QUALITY, OR CONDITION OF THE PROPERTY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, INCLUDING, BUT NOT LIMITED TO, ANY STATE OR FEDERAL ENVIRONMENTAL LAW, RULE OR REGULATION; (E) THE HABITABILITY, MERCHANTABILITY, OR FITNESS OF THE PROPERTY FOR A PARTICULAR PURPOSE; OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, SELLER IS CONVEYING THE PROPERTY TO BUYER "AS IS, WHERE IS ", AND WITH ALL FAULTS AND SPECIFICALLY AND EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF OF THE SELLER, EXCEPT FOR THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER SET FORTH IN THIS AGREEMENT. -2- 25E -8 7. Brokers. Buyer represents and warrants to Seller and Seller represents and warrants to Buyer that it has not engaged or employed a broker to whom a commission or finder's fee is payable in connection with this transaction. Buyer and Seller each ( "Indemnitor ") agree to indemnify and hold the other harmless from and against all liability, claims, demands, damages, or costs of any kind arising from or connected with any broker's or finder's fees or commission or charge claimed to be due any person arising from Indemnitor's conduct with respect to this transaction. 8. Assignment. Buyer and Seller agree that this Agreement shall be binding upon their respective heirs, executors, administrators, successors or assigns but is assignable by Buyer only by written consent of the City Manager, which consent the City Manager may withhold in his sole and absolute discretion. 9. Notices. All notices, demands and requests which may be given by either party to the other shall be in writing and shall be deemed to be given upon personal delivery or forty -eight (48) hours after deposit in the United States mail, certified, return receipt requested, postage prepaid, addressed to the party to be notified at their respective headquarters. Either party may designate by written notice to the other party in the manner set forth in this Agreement another address for notice. 10. Miscellaneous Provisions. 10.1 Waiver. The waiver of any provision of this Agreement shall be invalid unless evidenced by a writing signed by the party to be charged therewith. The waiver of, or failure to enforce, any provision of this Agreement shall not be a waiver of any further breach of such provision or of any other provision hereof. The waiver by either or both parties of the time for performing an act shall not be a waiver of the time for performing any other act or acts required hereunder. 10.2 Modifications. No change or addition to this Agreement or any part hereof shall be valid unless in writing and signed by each of the parties. 10.3 Governing Law. This Agreement shall be governed by California law. 10.4 Headings. The headings in this Agreement are for convenience only and shall not be used to interpret this Agreement. 10.5 Further Acts. Each party agrees to take such further action and to execute and deliver such further documents as may be necessary to carry out the purposes of this Agreement. 10.6 No Attorneys' Fees. If either party incurs attorneys' fees to enforce this Agreement or because of a breach of this Agreement by the other party, the prevailing party shall not be entitled to recover attorneys' fees from the other party. -3- 25E -9 10.7 Time. Time is of the essence with respect to this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. "Buyer" "Seller" ATTEST: MARIA D. HUIZAR By: Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney M. Laura Sheedy Assistant City Attorney CITY OF SANTA ANA, a charter city and municipal corporation Its: 25E -10 EXHIBIT "A„ STREET VACATION QUITCLAIM THAT PORTION OF LOT 5 IN BLOCK B OF TRACT NO. 451, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, PER MAP FILED IN BOOK 16, PAGE 41 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: PARCEL 5 AS DESCRIBED IN THE GRANT DEED TO SAID CITY OF SANTA ANA, RECORDED APRIL 27, 1979 IN BOOK 13123, PAGE 1068, OF OFFICIAL RECORDS, IN SAID OFFICE OF THE COUNTY RECORDER. ALSO BEING A PORTION OF PARCEL 1 DESCRIBED IN RESOLUTION 2006 -0081 OF THE CITY COUNCIL OF THE CITY OF SANTA ANA VACATING PORTIONS OF COLLEGE AVENUE RECORDED MAY 8, 2008 AS INSTRUMENT NO. 2008000219381 OF OFFICIAL RECORDS, IN SAID OFFICE OF THE COUNTY RECORDER. CONTAINING 138 SQUARE FEET, MORE OR LESS. ALSO AS SHOWN ON EXHIBIT "B" ATTACHED HERETO AND HEREBY MADE A PART HEREOF. SUBJECT TO COVENANTS, CONDITIONS, RESTRICTIONS, RESERVATIONS, EASEMENTS AND RIGHTS -OF -WAY OF RECORD, IF ANY. NAL PREPARED BY: STANTEC CONSULTING INC. UNDER THE DIRECTION OF: IL Nae 0 c,,�,,.• •1111 * JAMES 0. STEINES, P.L.S.6086 REVISED MARCH 29, 2011 SEPTEMBER 10, 2010 J.N. 2042 415330 V:\ PROJECTS\ 14153.00\ Surmap\DOC \LEGALS\ STREET QUITCLAIM.dor 25E -11 1 OF 1 25E -12 EXHIBIT : *B» 5MEET I OF 1 PORTION OF LOT 5 OF TR. NO. 44551. M.M. 1G / 41, IN THE CITY OF SANTA ANA. COUNTY OF ORANGE, STATE OF CALIFORNIA STREET VACATION QUTCLAM N13110, I SCALE= 1" 30' TR• X10. 451 z Q kO � TWO 3 4 W boo 5 I "o°, L v U o° OC N M M, �6 / 41 0 a V v 30' 30' PARCEL 5 G O, + N O.R. 13123 / IOG8 2'5.34' -'� O G /L WASHINGTON AVENUE N N LEGEND �C.4 F0 JAME5 O. STEINE5, P.L.5. G08G it QUITCLAIM AREA 25E -14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: AMENDMENT TO AGREEMENT WITH THE PLANNING CENTER FOR ENVIRONMENTAL SERVICES FOR THE WARNER AVENUE WIDENING FROM MAIN STREET TO GRAND AVENUE (PROJECT NO. 091749) C TY MANAGER i 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 Authorize the City Manager and Clerk of the Council to execute the attached amendment No.5 to the agreement with The Planning Center, subject to nonsubstantive changes approved by the City Manager and City Attorney, to provide environmental services for the Warner Avenue widening from Main Street to Grand Avenue, in the amount of $44,415 plus a contingency of $31,653 for a total agreement not to exceed $575,000 and extend the term of the agreement to December 31, 2013. DISCUSSION On June 2, 2008, the City Council awarded a contract to The Planning Center to provide environmental services and related technical studies for the City. On February 17, 2009, the Public Works Agency utilized The Planning Center under Amendment No.1 to prepare preliminary engineering and environmental documents in accordance with the California Environmental Quality Act (CEQA) for the Warner Avenue widening between Main Street and Grand Avenue. The CEQA preparation is underway and was scheduled to be circulated for public review in June 2012. Subsequently, the City extended the term of the agreement at the end of each fiscal year (2010 to 2012) through Amendments Nos. 2, 3 and 4. The City is updating its Circulation Element to incorporate Complete Streets policies (roadways designed and operated to enable safe access and mobility for all travelers). To make the CEQA documents for the project consistent with the Circulation Element update, additional analysis is required by The Planning Center. The original scope of services needs to be amended to include additional preliminary engineering, environmental, and public outreach services for a total of $76,068 and the term of the agreement needs to be extended from June 30, 2012 to December 31, 2013. 25F -1 Agreement with The Planning Center for Environmental Services for the Warner Avenue Widening April 2, 2012 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Transportation System Improvement Area E fund (accounting unit 03417660- 66220, project 091749) Raul Godinez II Executive Director Public Works Agency RG /KN Exhibit: 1. Project Location Map 2. Agreement Amendment No. 5 APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25F -2 25F -4 AMENDED AND RESTATED AGREEMENT FOR PROVISION OF ENVIRONMENTAL CONSULTING SERVICES THIS AGREEMENT, made and entered into this 2 "a day of April, 2012 by and between The Planning Center, a California corporation (hereinafter "Consultant "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The City and Consultant entered into Consultant Agreement A- 2007 -167, dated June 18, 2007 (hereinafter "said Agreement "), by which Consultant has provided environmental review and consulting services on an on -call basis. B. The term of said Agreement has been extended through June 30, 2012. C. By Authorization dated February 17, 2009, Consultant has commenced services necessary for the engineering and environmental review the Warner Avenue Widening Project (hereinafter "said Project "). D. The City has requested additional engineering and environmental review to accommodate different Project approaches, which will result in the provision of additional services by Consultant. E. The Parties desire to amend and restate the Agreement for provision of engineering and environmental services related to the Warner Avenue Project. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform engineering and environmental review services for the Warner Avenue Widening Project, as set forth in Consultant's Proposal dated January 26, 2009, attached hereto as Exhibit A to this Agreement, and incorporated by reference. Consultant shall provide the additional engineering and environmental review necessary to review the additional alignment and street width options to comply with complete streets requirements and update the environmental, air quality and traffic analyses, as set forth in Consultant's Proposal dated February 10, 2012, attached hereto as Exhibit B and incorporated by reference. 2. REPRESENTATIVES For purposes of implementing this Agreement, the representative of City shall be the Executive Director of the Public Works Agency, or his designated representative, and the representative of the Consultant shall be the President or his /her designated representative. Except as may be otherwise stated herein, such representatives shall have the authority to act on behalf of their respective parties in carrying out the terms of this Agreement. 25k 3. DELIVERY OF WORK PRODUCT - OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this Agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant shall deliver to City any work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with City's information systems, as agreed between the Project Manager and Consultant. In regard to all material produced as a deliverable under this Agreement, including but not limited to records, papers, drawings, specifications, programs, systems and other materials prepared by Consultant, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material shall be the property of the City, and may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty-free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 4. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for all services set forth in Section 1, above, an amount of $543,347, as set forth in Exhibit C, attached hereto and incorporated by this reference. City may authorize in writing, additional services at the hourly rates set forth in Exhibit C, Fee Schedule. The total amount to be expended pursuant to this Agreement, including a contingency for additional authorized services, shall not exceed $575,000, during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 5. TERM This Agreement shall commence on the date first written above and terminate on City's acceptance of all services, unless terminated earlier in accordance with Section 14, below. 6. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 20-6 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 combined single limit. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, and $2,000,000 in the aggregate. this section: The following requirements apply to the insurance to be provided by Consultant pursuant to (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 25�-7 8. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligence, recklessness or willful misconduct of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the negligence, recklessness or willful misconduct of Consultant arising from this Agreement. The Consultant 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 asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 9. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 10. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 11. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 25F-8 With courtesy copies to: and Fax 714- 647 -6956 Executive Director of the Public Works Agency City of Santa Ana 20 Civic Center Plaza (M -36) P.O. Box 1988 Santa Ana, California 92702 Fax 714 - 647 -5635 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax 714 - 647 -6515 To Consultant: The Planning Center 3 MacArthur Place, Suite 1100 Santa Ana, California 92707 Fax 714 - 966 -9221 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, 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. 12. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 13. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 5 25F -9 14. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. However, any use of unfinished work product shall be at City's sole risk. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 15. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 16. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 17. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 18. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. 25F610 c. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH 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 THE PLANNING CENTER JOANN C. HADFIELD Director, Environmental Services 25F-1 1 25F -12 EXHIBIT A CONSULTANT PROPOSAL JANUARY 26, 2009 25F -13 INSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES 7- -C i CLERK OF COUNCIL DATE: Aura 15 ZOOS FIRST AMENDMENT TO CONSULTANT AGREEMENT A -2008 -139 THIS FIRST AMENDMENT TO CONSULTANT AGREEMENT is entered into on June 2, 2008, by and between THE PLANNING CENTER, a California corporation ( "Consultant") and the City of Santa Ana, a charter city and municipal corporation of the State of California ( "City"). RECITALS: A. The parties entered into Agreement # A- 2007 -167, dated June 18, 2007, (hereinafter "said Agreement ") by which Consultant has provided environmental consulting services. B. In accordance with the terms and conditions of said Agreement, the parties wish to extend the term of said Agreement and amend the Scope of Services and Fee Schedule to reflect additional staff and increased fees 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 Consultant Agreement, the parties agree as follows: 1. Section 1, SCOPE OF SERVICES, shall be deleted in its entirety and replaced with the following: "Consultant shall provide traffic/ transportation technical study services pursuant to the California Environmental Quality Act and the National Environmental Policy Act, as set forth in City's Request for Qualifications for Environmental Consultants, incorporated to this Agreement by reference, and Consultant's Proposal, attached to this First Amendment to Agreement as Exhibit A -1 and incorporated by reference. Said services shall be provided at request of the Executive Director of the Planning and Building Agency, as evidenced by a writing signed by the Executive Director and the City Attorney." 2. Section 3.a., COMPENSATION, shall be amended by replacing the fee schedule set forth in Exhibit A with the new fee schedule set forth in Exhibit A -1, attached hereto. Section 3, TERM, shall be amended to extend the termination date to June 30, 2009 4. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. 25F -14 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Consultant Agreement on the date and year first written above. CITY OF SANTA ANA ATTEST: PATRICIA F. HEAAY.Y DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney Laura Sheedy Assistant City Attorney 25F -15 THE PLANNING CENTER A C, HADFIELD Director WILLIAM HALLIGAN, E Vice President 25F -16 EXHIBIT A -1 SCOPE OF SERVICES 25F -17 I J TFE RANNIWG CENTER Governmental Services Planning & Urban Design Environmental Studies School Facilities Planning 1580 Metro Drive iApril 10, 2008 Costa Mesa, CA 92626 Phone: 714.966.9220 Mr. Pedro Guillen C Fax: 714.sss.s221 City of Santa Ana Planning & Building Agency www.planningcentercom 20 Civic Center Plaza, M -20 Santa Ana, CA 92701 Re: Statement of Qualifications to Provide Environmental Services to the City of Santa Ana Dear Mr, Guillen: Although mostly built -out, the City of Santa Ana is characterized by a diversity of projects, including a variety of community projects, commercial development, redevelopment and restoration projects, ongoing public works upgrades, and civic center projects. It is also characterized by a well - informed citizenry. The Planning Center understands the importance of defensible environmental documentation and just as importantly — strict adherence to process under the California Environmental Quality Act (CEQA). We submit the enclosed Statement of Qualifications in accordance with the City's Request for Qualifications. The Planning Center has enjoyed our ongoing working relationship with the Planning Department and looks forward to the possibility of also supporting other City Departments in complying with CEQA requirements. �. Our staff experience on City projects includes preparation of the MacArthur Place Mixed -Use Urban Village EIR, the Xerox Center EIR, and the Fairview Road Widening project. The Planning Center is also currently preparing the City of Santa Ana's 2008 -2014 Housing Element Update. This experience has provided us with specific knowledge of the City staff, City Council and Commissions, citizen groups, and CEQA policies and procedures. The Planning Center has a depth of resources to meet the City's environmental services needs. We currently employ approximately 85 individuals, more than 70 of whom are professional staff, including in- house specialists in air quality, noise, and site assessment. In conjunction with preparation of project - specific technical studies, our specialists also are available to provide peer review of technical studies ' prepared by others. William Halligan, Esq., Vice President, Environmental Services, is proposed to serve as Project Director ' for environmental services to the City. Bill has been involved in the preparation of over 100 environmental documents during his career and serves as a frequent guest lecturer on CEQA and associated case law. He is a member of The State Bar of California, specializing in environmental and land use law. JoAnn Hadfield, Director, Environmental Services, is proposed as Project Manager for this project and key contact person for the City. With a background in urban planning and civil engineering, she complements Bill's legal background. A recognized CEQA expert, JoAnn has over 25 years of CEQA experience and frequently participates in CEQA panels for the Association of Environmental Professionals. 25F-18 J_ a 0 0 H�_ City of Santa Ana April 1&, 2008 Page 2 of 2 The Planning Center declares that the only person, persons, company, or parties interested in the proposal as principals are named herein. The proposal is made without collusion with any other person, persons, company or parties submitting a proposal, and it is in all respects fair and in good faith without collusion or fraud. The signers of the proposal have full authority to bind the principal proposer. The Planning Center looks forward to the opportunity to continue service to the City of Santa Ana in providing timely, defensible, and cost - efficient environmental documentation. Respectfully submitted, T E PLANNING CENTER Dwayne Me rs, AIC Principal, vironmental Services THE PLAAkNING� CENTE William Halligan, Esq. Vice President, Environmental Services 25F -19 THE PLANNING CENTER JoAnn C. Hadfie Director, Environmental Services �1 G. 1 '.l 1 1. INTRODUCTION r 1. Introduction his proposal presents the Qualifications of The Planning Center to provide and conduct environmental consultant services to the City of Santa Ana. We have prepared this package in response to a City reQuest for proposals for environmental consultants. The City of Santa Ana's Planning and Building Agency Department maintains a master list of EIR consultants, and it is our objective to be placed upon that list for future environmental consultant needs. It is our understanding that the City will direct all RFPs to those selected consultants on the list for all of their environmental work. Our designated Project Managers, William Halligan, EsQ, Vice President, Environmental Services, and JoAnn C. Hadfield, Director, Environmental Services, Costa Mesa Office, have an extraordinary amount of experience preparing environmental documents. Bill has been involved in the preparation of over 100 environmental documents during his career and serves as a frequent guest lecturer on CEQA and associated case law. He is also a member of The State Bar of California, specializing in environmental and land use law. JoAnn's public and private sector experience encompasses policy planning; site - specific, community, and regional land use planning; and entitlement and regulatory permit processing. Her experience also includes coordination and processing of regulatory permits through her working knowledge and ongoing relationships with myriad federal, state, regional, and local agencies. The Planning Center has experience with the City of Santa Ana, having prepared the MacArthur Place mixed -use "urban village" EIR the Xerox Center EIR, and currently working on the Village Green EIR to name a few. The Planning Center's previous experience preparing environmental documents for the City of Santa Ana has provided us with an exceptional knowledge of City staff, City Council and commissions, citizen groups, the City's General Plan, Zoning Ordinance, CEQA policies and guidelines, and significance thresholds. The Planning Center is also currently preparing the the City's 2008 -2014 Housing Element Update. The Planning Center staff is well experienced with the preparation of environmental documents and looks forward to continuing its relationship with the City of Santa Ana. Legal Entity: The Planning Center is a California Corporation. Taxpayer ID: 95- 2975827 NONDISCRIMINATION In compliance with state and federal antidiscrimination laws, The Planning Center does not exclude or discriminate on the basis of race, color, national origin, or sex in consideration of contract award opportunities. In addition, The Planning Center will consider, and utilize subconsultants, bidders, and vendors in a manner consistent with nondiscrimination objectives. SUBCONSULTANTS The Planning Center has ongoing relationships with several consulting firms, including several high profile firms within close proximity to our headQuarters. Once contacted by the City of Santa Ana for a specific project, we will select the technical subconsultants necessary for the successful completion of the requested scope of services from the City's list of Qualified consultants. The Planning Center may also bring in other firms not included in this list, when necessary to provide specialized expertise. 1 Qualifications to the City of Santa Ana THE PLANNING CENTER I Page I 25F -20 1 0 1 1 � J 2, Firm Qualifications Since its tounding in 1975, The Planning Center has been devoted to developing viable, imaginative plYiplutions'to the physical, social, economic, and environmental challenges that arise from urbanization. We are a private consulting firm providing multidisciplinary services to both governmental agencies and the private sector. We provide assistance to local, state, and federal government agencies and to the private sector, navigating our clients through the myriad regional, state, and federal planning and environmental requirements. The Planning Center currently employs approximately 100 individuals, 80 percent of whom are professional staff. They possess the qualities, capabilities, and experienceyou need for any assignment. Our mission is to create better places, in collaboration with our clients, for people to live, work, learn and enjoy their lives. • Policy and general plan preparation • Policy and regulatory specific plan preparation • Land use and site planning • Landscape architecture • Design guidelines • Redevelopment and rehabilitation plans • Housing elements • Congestion management planning • Computerized planning system applications • Economic and Financial Services Specific environmental services of The Planning Center include: California Environmental Quality Act (CEQA) • Negative Declarations (NDs) • Initial Studies (ISs) • Environmental Impact Reports (EIRs) • Mitigation Plans and Mitigation Monitoring Plans • Environmental Analysis • EIR and EIS preparation • Site assessment services • Air quality planning • Air quality assessments • DTSC compliance • CDE and Title S requirements • Health Risk Assessments • Building Health Assessments • Methane Mitigation • Remediation Services Environmental Science and Engineering Services • Air Quality Studies • Noise Studies • Phase I Environmental Site Assessments (ESA) • Preliminary Environmental Assessments (PEA) • Regulatory Agency Coordination and Review of National Environmental Policy Act(NEPA) Environmental Documents • Findings of No Significant Impact (FONSI) • Health Risk Assessments (Toxic Air Emissions) • Environmental Assessments (EAs) . Geohazard Studies • Environmental Impact Statements (EISs) • Railroad Risk Studies • Section 4 (F) Evaluations • Pipeline/Water Storage Tank Risk Studies Community Involvement • EMF Management Plans • Environmental Issue Scoping N • Methane Mitigation • Committee Workshops • Asbestos and Lead Management • Public Hearing Presentations Qualifications to the City of Santa Ana THE PLANNING CENTER Page 2 25F -21 Staff Assistance • Document Preparation • Environmental Program Management • Third -Party Review/Expert Witness • RFP Preparation • Resolutions and MOUs • Statements of Findings and Overriding Considerations Exhibits /Graphics • AutoCAD • Geographic Information Sy," • Visual Simulations, includin Anaois 2.1 Office Locations and Primary Contacts COSTA MESA Corporate Headquarters 1580 Metro Drive Costa Mesa. CA 92626 Tel: 714.966.9220 1 Fax: 714.966.9221 LOS ANGELES INLAND EMPIRE 9841 Airport Boulevard, Suite 1010 2131 South Grove Avenue, Suite A Los Angeles, CA 90045 Ontario, CA 91761 Tel: 310.670.9221 1 Fax: 310.670.95 12 Tel: 909.930.1380 1 Fax: 909.930.1365 COACHELLA VALLEY UTAH 69930 Highway 111, Suite 105 136 West 12300 South, Suite 200 Rancho Mirage, CA 92270 Draper, LIT 84020 Tel: 760.324.4996 1 Fax: 760.324.4665 Tel: 80 1.553.8822 I Fax: 801.53 3.8823 PRIMARY CONTACTS William Halligan, EsQ. Vice President, Environmental Services E -mail: whalliga@planningcenter.com Extension 348 to the City of Santa Ana 1 25F -22 MEN L_ (GIS) IoAnn C. Hadfield Director, Environmental Services, Costa Mesa Office E -mail: ihadfieldCa?olanninecenter.com Extension 319 THE PLANNING CENTER I Page 3 2.2 Our Commitment to You Full Range of Professional Service. Most clients who use planning and research services in to AV's highly charged governmental decision- making environment need a diverse team of highly trained and experienced pro essibnals. Recognized Excellence. The Planning Center is recognized as one of the top west coast planning firms andlis noted For, the Quality of its work. The firm's reputation for excellence in land use planning and design is its trademark. Your need for excellence and Quality is well served by our established reputation, earned through the firm's consistent production of effective, achievable plans and programs. The Planning Center has never refused to complete a contract and will not accept other projects that may represent a conflict of interest. Depth of Staff. The Planning Center's key personnel have substantial experience with the different levels of government, resulting in an ideal team to address the critical challenges posed by emerging planning reQuirements. You can call upon us to assemble the multiple disciplines foryour project into an integrated framework under the direction of our principals. We offer a broad range of in- house technical expertise to assist you in solving your difficult environmental problems and meeting the requirements of regulatory agencies. Principal and Senior Project Management Involvement. The principals' involvement in each project ensures efficient management, critical attention to detail, and the greatest possible pool of experience. We consider it essential that the principals and senior project managers have hands -on involvement with the project from start to completion. Responsiveness to Client Needs. We understand the importance of project timing and adherence to project schedules. We are freQuently reQuired to work within tight project schedules. With a staff of over 85 people, we have the ability-to arrange staffing assignments and resources to meet our clients' needs. Creative and Workable Solutions. Even projects that share common elements benefit from a fresh evaluation. We take a creative approach to our projects, considering each one objectively and using all our experience and imagination to formulate a plan and programs that are workable. Governmental Services. Uniting public- and private- sector interests in a dynamic urban development setting is a formidable challenge. The Planning Center is acknowledged for coordinated public planning strategies and practical solutions to the complexities of private /public cooperation. Our team of experienced, knowledgeable professionals is technically proficient in numerous areas, assuringyou of competent, expert support. Recognition. Al of us enjoy being told that we have done our job well. Formal recognition for professional Quality work is a gratiying acknowledgement of ongoing excellence. By meeting the challenge to do Quality work foryou, The Planning Center has succeeded in being recognized by local governments, the land development industry and professional associations. As rewarding as this type of recognition of planning achievement is, our greatest satisfaction comes from the ongoing relationships with those we serve. You are the ultimate judges of our firm's service. 2.3 Our Approach to Environmental Planning Environmental analysis is not simply the accounting of impacts, but should address serious environmental concerns and find opportunities to solve problems. We believe it is an integral part of the planning process and belongs in the initial stages of any to the City of Santa Ana 25F -23 THE PLANNING CENTER j Page 4 r L t project development. The Planning Center's approach to environmental studies combines creath and attention to detail. Our obligations to our clients include the following. Quality. We value our reputation as a Quality firm, providing Quality products and services to 2 highest levels of Quality, The Planning Center exercises Quality control procedures wherein all prc Quality control. See Section 2.5 below for details on these procedures. Professionalism. Our clients deserve high - Quality work — objective, unbiased reporting and impeccable accuracy of detail. Equally important, we strive to stay on the leading edge of our profession. Defensibility. CEQA is constantly changing through court interpretations, statutory amendments and amendments to the guidelines. The Planning Center closely tracks these changes to ensure that its environmental documents are legally adequate. Timely Performance. Criticisms of CEQA are often related to the amount of time needed to satisfy its requirements. We pride ourselves in our ability to apply the resources necessary to satisfy our commitments. The Planning Center has a tremendous amount of resources from which to rely on. We have over 100 employees within our five offices. As a result, we have the ability to pull in additional staff when necessary to maintain very demanding schedules at no additional cost to the City. 2.4 Quality Control To ensure the highest level of quality in the documents produced by the firm, we have established a number of procedures that are strictly followed for each project to ensure that all deliverables are free of errors. Each employee, highly skilled in his or her own area of expertise, makes passes through each document at various stages before a document leaves the building, ensuring accuracy and consistency in content and format. Our goal is for each project team to work as a "well -oiled machine" to efficiently provide the best products and services. The chain of Quality control measures is as follows: r. ► The Project Manager (PM) meets with technical (research/writing) staff and graphics staff to make assignments and communicate deadlines. LL ► Technical staff work on their portions, remaining in regular contact with PM, who fields any Questions. In this way, the _ PM remains abreast of any issues that may arise and can deal with them in a timely manner. ► Graphics staff utilize company graphics templates to ensure consistency between document graphics and text pages. We produce projects in- house, rather than sending out to a service bureau, so that we can ensure an even higher level of quality control, as well as reduced costs to our clients. ► The PM folds the various sections together, carefully reviewing, correcting, and refining content and making into one cohesive document. ► The PM submits the document to technical editing staff, who look for and correct inconsistencies and grammatical errors and report oversights to the PM. w ► The PM submits the document to word processing (WP) and graphics staff for formatting. WP prints the document for the PM. ► The PM reviews the document again and submits to a technical Quality control officer (Principal or Director), who thoroughly reviews the document. liptions to the City of Santa Ana THE PLANNING CENTER Page S 25F -24 ?.Y ► The PM collects Principal's and /or Director's comments and incorporates changes according) ► PM submits document to WP and Graphics, who again follow respective Checklists. WP prints PM, and Graphics staff prints graphics. ► PM reviews and assembles the text document and graphics, and submits to Production Staff (c ► Production Staff thumbs through the document page by page to ensure that all graphics are j place, reporting any errors to PM. Production Staff submits copies to PM. ► PM makes the last page -by -page pass through the document. The Planning Center has invested a number of high Quality, high -speed copy machines, including color machines, as well as folding and binding machines. Because we produce our projects in- house, we can ensure a higher level of Quality control and reduced costs to our clients. The Planning Center believes these Quality control procedures ensure the highest Quality and in a most efficient (affordable) manner. to the City of Santa Ma 25F -25 THE PLANNING CENTER I Page 6 � X (t" S r_ document for the nng/ .° ,inding). ent and in proper The Planning Center has invested a number of high Quality, high -speed copy machines, including color machines, as well as folding and binding machines. Because we produce our projects in- house, we can ensure a higher level of Quality control and reduced costs to our clients. The Planning Center believes these Quality control procedures ensure the highest Quality and in a most efficient (affordable) manner. to the City of Santa Ma 25F -25 THE PLANNING CENTER I Page 6 1 L 1 3, Key Personnel e Planning Center assembles teams of highly trained, experienced, and motivated planners from flffl -4u and environmental specialists to fit the specific needs of each project. Outside consultants may be added cover certain technical areas. Dwayne Mears, will serve as Principal -in- Charge of Environmental organizational chart with key staff members and possible subconsultants can be found on the next page. DWAYNE S. MEARS, AICP Principal, Environmental Services f tit �61he team to Services. An Dwayne Mears manages the Environmental Services staff, coordinates multidisciplinary project teams, has expert knowledge in CEQA compliance and litigation support, and works to maintain Quality control. He has managed and /or overseen more than 500 CEQA industrial projects for the City of Industry. Dwayne has also directed assignments for over 450 new and expanding schools. In addition, Dwayne's extensive experience includes environmental compliance documents for a wide variety of projects, including, but not limited to: • industrial facilities • hazardous waste facilities • major storm drains reclaimed water facilities • wastewater treatment projects • roadway and freeway improvements WILLIAM HALLIGAN, ESQ. Vice President, Environmental Services • major entertainment complexes • residential communities • mixed -use and commercial properties • regional shopping centers • schools and colleges • medical and healthcare centers In his public and private sector planning experience, Bill Halligan has prepared environmental documents for a diverse range of projects. He also provides third -party review for legal adeouary. Bill is an active member of the American BarAssociation and the Orange County Bar Association, and serves as Chapter Director of the Orange County Chapter of the Association of Environmental Professionals (AEP). Bill also serves on the AEP State Legislative Review Committee. He is a freQuent guest lecturer on CEQA and associated case law for AEP's CEQA Workshop Series, LIC Irvine's Graduate School of Management Program, and Cal Poly, Pomona. Bill's legal background and experience allow environmental documents prepared by The Planning Center to continually withstand legal challenge. JOANN C. HADFIELD Director, Environmental Services, Costa Mesa Office Focusing on CEQA and NEPA compliance services, ►oAnn Hadfield has prepared environmental documents for hundreds of projects, including highly technical, controversial, and large -scale EIRs/EISs. These diverse projects have spanned major commercial, residential, industrial, and infrastructure projects. IoAnn is well versed in managing the entire environmental process, including project scoping, environmental documentation, public ` noticing and participation, and resource permitting. 4 to the City of Santa Ana 25F -26 THE PLANNING CENTER I Page 7 The Planning Center 2008 Standard Fee Schedule Staff Level Hourly Rate Principal $200-$250 Director/Team Leader $150 -$200 Sr. Planner /Scientist/Designer II $130-$200 Sr. Planner /Scientist/Designer 1 $110-$150 Associate Planner /Scientist/Designer II $1004125 Associate Planner /Scientist/Designer 1 $904105 Assistant Planner /Scientist/Designer II $75495 Assistant Planner /Scientist/Designer I $60 -$75 GIS /CAD Operator 11 $954130 GISICAD Operator 1 $85 -$100 Graphic Artist II $75 -$125 Graphic Artist 1 $65485 Planning Tech nician/lntern $55 -$75 Technical Editor $90 -$95 Word Processing $70 -$80 ClericaUAdministrator $55 -$95 Third -Party CEQA Review $200 Expert Witness 2 x Normal Hourly Rate Other direct costs are billed at cost plus 12.5 %. Mileage reimbursement rate is the standard IRS - approved rate 25F -27 1 ACORD CERTIFICATE OF LIABILITY INSURANCE OP ID DATEjMM /DD/ PLANN -1 06/30 08 08 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Alliant Insurance Services, Inc ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE (Lic- OC36861) HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P O Box 3280 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. i Bernardino CA 92413 -3280 B X one: 909 -886 -9861 Fax: 909- 886 -2013 INSURERS AFFORDING COVERAGE NAIC # INSURED INSURER A: praetorian Insurance Co (How) 550,000 A-208 INSURER B: Evanston Insurance Co (PTN PERSONAL d ADV INJURY Plannin Center Inc INSURER INSURER C: General ins Co of Am ca eri (SAP 39012 INSURER D: Safeco Insurance Company 24740 1580 Metro Drive Costa Mesa CA 92626 INSURER E: GENERAL AGGREGATE COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR NS TYPE OF INSURANCE POLICY NUMBER DATE MMIDDrYY DATE MMIDD ' LIMITS GENERAL LIABILITY EACH OCCURRENCE $5,000,000 B X X COMMERCIAL GENERAL CLAIMS MADE ', X 1 OCCUR 08PKG0041 07/01/08 occurence) 550,000 MED EXP (Any one person) S 5 , 000 PERSONAL d ADV INJURY $5,000,000 _ GENERAL AGGREGATE $5,000,000 GEN L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMPIOP AGG $5,000,000 POLICYF_j ' P£ O LOC i C AUTOMOBILE LIABILITY ANY AUTO 01CH8545351 07/01/08 07/01/09 COMBINED (EaaccidetSINGLELIMIT $1,000,000 X BODILY INJURY (Pef person) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per accident) $ HIRED AUTOS NON -OWNED AUTOS 7 PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ ANY AUTO $ D EXCE ISIUMBRELLA LIABILITY OCCUR F7 CLAIMSMADE OIXS1497242 07/01/08 07/01/09 EACH OCCURRENCE s4,000,000 AGGREGATE $ 4,000,000 OVER AUTO $ DEDUCTIBLE & EL ONLY $ X RETENTION $10,000 $ A WORKERS COMPENSATION AND EMPLOYERS* IETORILITY ANY PROPRIETOR/PARTNERlEXECUTIVE OFFICER/MEMBER EXCLUDED? M describe under SPECIAL PROVISIONS below P0011020036446 07/01/08 07/01/09 %� TORY LIMITS ER E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE - EA EMPLOYEE $1 000,000 , E.L. DISEASE --POLICY LIMIT $ 1 , 000 , 000 OTHER C Property 02CE1731802 07/01/08 07/01/09 Pollution $5,000,000 B Pollution/Prof OBPKGM0041 07/01/081 07/01/09 Prof $5,0001000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS Operations pertaining to named insured for certholder; Professional Liab includes E60 Coverage. Certholder its officers, agents, employees and volunteers are addrl insd /prim wrdg /waiver as respect gen'l liab per IE0036 4/04 & IE0054 4/04 as required by written contract. *30 day N 0 C except 10 day for non - payment of premium. a.cn r ry i�^ I C nvw�n UANGtLLA FION City of Santa Ana Melanie McCann 20 Civic Center Plaza, M -20 Santa Ana CA 92701 ACORD 25 (2001108) CITYSAO I SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBUGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. 25F -28 ACORD CORPORATION POLICY NUMBER: 08PKGM00041 ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS /COMPLETED OPERATIONS LIABILITY COVERAGE PART CONTRACTORS POLLUTION LIABILITY COVERAGE PART PROFESSIONAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: AS PER WRITTEN CONTRACT (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section In is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. "Insureds are advised that certificates of insurance should be used only to provide evidence of insurance in lieu of an actual copy of the applicable insurance policy. Certificates should not be used to amend, expand, or otherwise alter the terms of the actual policy." ALL OTHER TERMS AND CONDITIONS REMAIN THE SAME. IE -0036 -0404 l 00 25F -29 POLICY NUMBER: 08PKGM00041 ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART CONTRACTORS POLLUTION LIABILITY COVERAGE PART PROFESSIONAL LIABILITY COVERAGE PART THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY. SCHEDULE Name of Person or Organization: AS PER WRITTEN CONTRACT A. WHO IS AN INSURED (SECTION IT) is amended to include as an insured the person or organization shown in the schedule. But only with respect to liability arising out of "your work" for that insured by or for you. B. As respects additional insureds as defined above. This insurance also applies to "bodily injury" or "property damage" arising out of your negligence when the following written contract requirements are applicable: 1. Coverage available under this coverage part shall apply as primary insurance. Any other insurance available to these additional insured's shall apply as excess and not contribute as primary to the insurance afforded by this endorsement. 2. We waive any right of recovery we may have against these additional insured's because of payments we make for injury or damage arising out of "your work" done under a written contract with the additional insured. 3. The term "insured" is used separately and not collectively, but the inclusion of more than one "insured" shall not increase the limits or coverage provided by this insurance. "Insureds are advised that certificates of insurance should be used only to provide evidence of insurance in lieu of an actual copy of the applicable insurance policy. Certificates should not be used to amend, expand, or otherwise alter the terms of the actual policy." tE- 0054 -04U4 25F -30 EXHIBIT B CONSULTANT'S SUPPLEMENTAL PROPSAL FEBRUARY 10, 2012 25F -31 February 10, 2012 Kenny Nguyen, PE Senior Civil Engineer City of Santa Ana, Public Works Agency 20 Civic Center Plaza Santa Ana, California 92701 Subject: Request for Contract Amendment — Warner Avenue Widening Project (Engineering, Traffic, & Environmental) (SNT- 08.3E) Dear Mr. Nguyen This request for a contract amendment details additional tasks and associated costs to complete the engineering and environmental documentation for the Warner Avenue Widening Project. Additional tasks are required to address City- requested changes to the alignment and street widths, delays in the project, outdated environmental analysis, new case law regarding traffic analysis, and updated air quality modeling requiring supplemental technical analysis; all of which could not have been foreseen at the time of our original proposal. Our scope of work and cost estimate have been structured to follow our original task numbering and describe the changes or supplemental work that must be completed for each task. Project Background The kick off meeting for this project was on March 1, 2009. Since the kick -off meeting, alternative concepts have been prepared that evaluate combinations of 100 -, 110 -, 120 -foot right -of -way within varying segments of Warner Avenue. The concepts address property take on the south only, the north only, and on both sides of the street. The City has requested additional engineering designs to identify alternative bike crossings that would connect the bike path on the north and south sides of Warner Avenue without the need for a midblock traffic light. Additionally, the City would like to see alternative plans that would minimize property take and reduce the number of remnant parcels along the north side of Warner Avenue. Revised Scope of Work ENVIRONMENTAL This request includes the following tasks beyond our approved scope of work TASK 1. ENVIRONMENTAL STUDIES No change; this task is complete (Phase I hazards assessment). TASK 2. DATA COLLECTION No change. Data Collection is complete for the initial phase of the environmental document. TASK 3. INITIAL STUDY New alternative designs for the bike path crossing and to minimize property take will be developed. The Initial Study will be updated based on the final preferred alignment and preliminary engineering plans. Orange County �. "ri i •� _. y;ti'.. 'I' .�, _ !t _r,ir ._C. -� r -_,c ..air'. ,:.r ...• www.planningcenter.com 25F -32 February 10, 2012 Page 2 TASK 4. NOP No change; this task has not started. TASK 5. ADMINISTRATIVE DRAFT EIR The Administrative Draft EIR is nearly complete based on the previously selected preferred alignment and design alternatives. This task will update the EIR to reflect an updated, preferred alignment (if selected) and /or the alternative bike crossing and alignment as new project alternatives. EIR text and figures will be updated based on the final preferred alignment; preliminary engineering plans, and revised technical studies. TASK 6. DRAFT EIR No change; this task has not started. TASK 7. ADMINISTRATIVE DRAFT FINAL EIR No change; this task has not started. TASK 8. FINAL EIR No change; this task has not started. TASK 9. NOD No change; this task has not started. TASK 10. MANAGEMENT & COORDINATION The original budget for this task was based on an anticipated 16 -month project duration. The project kick -off meeting was held on March 12, 2009, and work continued through April 2010 when the CEQA document was placed on hold until the project could be better defined. Work then commenced in October 2011 with a 2nd kick- off meeting. We anticipate the engineering and CEQA process may take another 10 months depending on the public outreach schedule. Therefore, we have included time for project management and coordination based on an additional 6 months of work beyond the anticipated 16 -month work schedule. TASK 11. PROJECT MEETINGS As shown in table below, a total of 5 project meetings were included in our original scope. To -date we have attended 8 project meetings. To cover the fees for these additional meetings and to control the costs for this amendment we have eliminated the following specific meetings previously assumed in the original scope of work: Draft EIR review meeting, Final EIR review meeting, and Planning Commission Hearing preparation meeting. It is our assumption that we will coordinate these efforts via email and phone calls under our project coordination budget. We have also eliminated attendance at one of the two hearings anticipated for each Planning Commission and City Council. If additional meetings are requested by the City additional fees may be requested. TASK 12. ETAC AND RDA MEETINGS Originally our attendance at two meetings was included in this task. The RDA meeting is no longer required and has been eliminated. TASK 13. PUBLIC SCOPING MEETING One meeting; no change 25F -33 February 10, 2012 Page 3 TASK 14. PLANNING COMMISSION Two hearings; revised to include attendance at one hearing. TASK 15. CITY COUNCIL Two hearings; revised to include attendance at one hearing. TASK ORIGINAL PROPOSAL AMENDMENT Task 1 1 . Project Meetings 5 Total 8 Total 1. Kick -off meeting 1. Kick -off meeting (March 1, 2009) 2. Team meeting 2. Team meeting (May 14, 2009) 3. Draft EIR review 3. Project Status Meeting (April 12, 2010) 4. Final EIR review 4. 2nd kick -off (October 5, 2011) 5. Planning Commission hearing 5. City Council hearing / workshop preparation (October 17, 201 1) 6. Project Status Meeting (November 29, 201 1) 7. Project Team Meeting (December 14, 2011) 8. Project Team Meeting (January 5, 2012) Task 12. ETAC + RDA 2 1 (but can be used for other meeting requirement) Task 13. Public Scoping Meeting 1 1 Task 14. Planning Commission 2 1 Task 15. City Council 2 1 Total Meetings 12 12 TASK 16. NOISE & VIBRATION Using the revised traffic study specifics, we will reassess the noise conditions for existing conditions (if changed from 2009), as well as the future scenarios for the buildout year with and without the project. The analysis will include revisions to the assessment of future noise impacts for sensitive receptors that are currently in the second and third row from the street, but will be adjacent to the roadway following the street widening. It is assumed that the remainder of the previous noise technical report sections, such as the baseline survey, the construction analyses, and the assessment of stationary sources, can be used in their entirety without updates or modifications. TASK 17. AIR QUALITY AND GREENHOUSE GAS EMISSIONS The air quality modeling and analysis is currently based on the traffic analysis prepared by IBI Group in November 2009. The baseline and forecast year traffic volumes will be revised by IBI Group; therefore, revisions to the air quality and greenhouse gas (GHG) emissions analysis will be required to ensure the environment document is internally consistent. In addition, since 2009 the South Coast Air Quality Management District (SCAQMD) has released a new air quality model for analyzing construction and operational impacts. Construction impacts were previously analyzed using the URBEMIS2007 model and will be updated using SCAQMD's new CaIEEMod program in accordance with SCAQMD guidance. 25F -34 February 10, 2012 Page 4 ENGINEERING Project Management, Meetings, and Coordination IBI engineering staff will coordinate and attend a Project Development Team (PDT) meeting to discuss the desired modifications to the PE design and plans. IBI engineering staff will also attend any subsequent meetings necessary and will be responsible for leading the discussion for any engineering related items in the agenda. IBI will provide meeting notes for each meeting related to items discussed regarding engineering - related agenda items. Project Scoping and Development of Build Alternatives The city has indicated at least one more alternative which shall be analyzed and could be part of the Preferred Alternatives. IBI will provide support to the City for the additional alternative design. Hydrology Study (Conceptual WQMP) and Drainage Report Subsequent to the modification of the preferred build alternative by the City, the Preliminary Drainage Report shall be revised to include the additional modifications requested and any other details needed to address other City requests. Preliminary Engineering Plans Subsequent to the modification of the preferred Build Alternative by the City, the PE plans shall be revised to include the additional modifications requested and any other details needed to address other City requests. Cost Estimates The preliminary cost estimate shall be updated to reflect not only the modifications of the preferred build alternative design but also current (2011) unit cost for all pay items identified in the estimate. Preliminary Engineering Report The PE report will be updated with the newest information from the following sections: Civil Roadway Traffic Analysis Utilities and Drainage Right -of -Way Based upon the discussion items identified above, The IBI Group will prepare a final report to submit to City staff for review and concurrence. TRAFFIC IMPACT ANALYSIS IBI Group will update the Traffic Impact Analysis (TIA) Report previously prepared and completed in April 2010 for the Warner Avenue project according to the latest adopted City of Santa Ana standards and guidelines and new case law. This augment request incorporates the following additional work elements beyond our original scope of work: 25F -35 February 10, 2012 Page 5 Data Collection /Existing Traffic Conditions The original traffic impact analysis prepared for the Warner Avenue project included the analysis of existing traffic conditions without the project for the year 2009. All traffic counts at the 15 study intersections collected by IBI Group were conducted in 2009 as well. As part of the traffic study update, IBI will revise the analysis to reflect a 2012 existing year, consistent with the anticipated release date of the Notice of Preparation for the environmental document. The City of Santa Ana has directed IBI to use the 2009 traffic counts in the updated traffic analysis to avoid conducting new traffic counts. Two methods were discussed: applying a default growth factor of one percent annually to 2009 counts to estimate Year 2012 conditions, or conducting a few spot check traffic counts to confirm that 2009 counts are the same as 2012 or to identify an annual growth factor. This update requires the following new work elements that were not in the original scope of work: • Update Existing No Project Analysis — Pending direction from the City of Santa Ana, the existing no project analysis will be updated to reflect Year 2012 conditions. • Incorporate Existing Plus Project Analysis — The recent Sunnyvale court case highlighted the requirement that traffic studies prepared in support of CEQA documents must include an analysis of Existing Plus Project conditions.' This analysis was not included in the April 2010 TIA and will be added to the report as part of this update. Future Conditions The April 2010 TIA included the analysis of No Project and With Project conditions for a 2020 opening year and 2035 buildout year. With the change in the Existing Conditions year from 2009 to 2012, the analysis results for the Year 2020 and 2035 conditions will need to be updated. Future traffic volumes were obtained by applying annual traffic volume growth forecasts to existing traffic counts using forecasts produced by OCTA with the Orange County Transportation Analysis Model ( OCTAM). We do not anticipate the need to obtain new OCTAM forecasts from OCTA. However, the Year 2020 and 2035 traffic volume forecasts must be updated with a baseline of the 2012 existing traffic counts to ensure consistency between analysis years in the report. Documentation IBI Group will update and revise the TIA report to reflect the analysis updates and additional analysis scenarios highlighted in the above tasks. A new report will be prepared and delivered for incorporation into the environmental document prepared for the project. Revisions to other subconsultant documents are not anticipated at this time. — VA Consulting: Utility Relocations — Cogstone: Archaeological Assessment — Urbana: Historical Resource Survey Report — GeoLogic Associates: Geotech Study — California Property Specialists, Inc.: Relocation Impact Statement — Draft [City consultant] ' On December 16, 2010, the Sixth District of the California Court of Appeal issued its decision in Sunnyvale West Neighborhood Association v. City of Sunnyvale, invalidating an environmental impact report (EIR) for a major roadway extension project. http: / /Ianduselaw.imbm.com /2011105/ court - decision - changes -cega- related- traffic - impact- analyses.htmi 25F -36 February 10, 2012 Page 6 Cost Estimate The approved budget for this project is $498,923, as shown below. To complete the additional tasks, a budget increase of $44,415 is requested. The total contract for our environmental services for the Warner Avenue Widening Project will be $543,347 upon approval of this amendment. Table 1. Contract Amendment Cost Estimate TASK EXISTING CONTRACT AMENDMENT TOTAL CONTRACT CONTRACT REQUEST WITH AMENDMENT LABOR Task 1. Environmental Study - Hazards 12,030 0 12,030 Task 2. Data Collection 6,440 0 6,440 Task 3. Initial Study 7,920 2,180 10,100 Task 4. NOP 1,600 0 1,600 Task 5. Admin. Draft EIR 91,550 6,940 98,490 Task 6. Draft EIR 2,220 0 2,220 Task 7. Admin. Final EIR 26,340 0 26,340 Task 8. Final EIR 8,700 0 8,700 Task 9. NOD 1,580 0 1,580 Task 10. Management & Coordination 33,400 7,560 40,960 Task 11. Project Meetings 8,280 0 8,280 Task 12. ETAC Meeting 3,200 0 3,200 Task 13. Public Scoping Meeting 1,160 0 1,160 Task 14. Planning Commission Hearings 3,200 0 3,200 Task 15. City Council Hearings 3,200 0 3,200 Inhouse Technical Studies Noise Study 7,470 4,860 12,330 Air Quality Study & $19,646 0 19,646 Greenhouse Gas Emission Study 7,410 3,280 10,690 Labor Subtotal $225,700 $24,820 $250,520 SUBCONSULTANTS (INCLUDING 10% MARKUP) IBI $134,623 19,595 154,218 Urbana $19,646 0 19,646 VA $70,500 0 $70,500 Geologic $20,550 0 $20,550 Cogstone $6,999 0 $6,999 Subconsultant Subtotal $252,318 $19,595 $271,913 REIMBURSABLES Reimbursable Subtotal 1 20,913 1 0 1 20,913 GRAND TOTAL 1 $498,932 1 $44,415 $543,347 25F -37 25F -38 EXHIBIT C FEE SCHEDULE 10 25F -39 February 10, 2012 Page 7 The Planninca Center - 2012 Standard Fee Schedule STAFF LEVEL HOURLY RATE Principal $200 —$250 Director/Team Leader $140 —$225 Senior Planner /Scientist/Designer II $135 —$215 Senior Planner /Scientist/Designer 1 $115 —$155 Associate Planner /Scientist/Designer II $105 —$130 Associate Planner /Scientist/Designer 1 $95 —$110 Assistant Planner /Scientist/Designer 11 $80 —$100 Assistant Planner /Scientist/Designer 1 $60 —$80 GIS /CAD Operator II $100 —$135 GIS /CAD Operator 1 $90 —$105 Graphic Artist 11 $85 —$130 Graphic Artist 1 $75 —$95 Planning Technician /Intern $60 —$80 Technical Editor $95 —$100 Word Processing $75 —$85 Clerical /Administration $60 —$100 Third -Party CEQA Review $225 Expert Witness 2 x Normal Hourly Rate Notes: 1) Other direct costs are billed at cost plus 10 %. 2) Mileage reimbursement rate is the standard IRS - approved rate. Respectfully submitted, THE PLANNING CENTER JoAnn C. Hadfield Director, Environmental Services 25F -40 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: AGREEMENT WITH CARE AMBULANCE SERVICES FOR TEMPORARY EMERGENCY TRANSPORTATION SERVICES (AMBULANCE) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: �l >y� ;U�I�� 0 As Recommended � As Amended � Ordinance on �s` Reading � Ordinance on 2"d Reading � Implementing Resolution � Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute an agreement with Care Ambulance Services Inc. for temporary emergency transportation services in an amount not to exceed $1 ,200,000 for a period of 120 days with the ability to extend 30 days, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The recently approved Orange County Fire Authority (OCFA) contract includes provisions fora re- alignment of Emergency Medical Services (EMS) delivery. On March 19, 2012 Council approved a request to release a proposal for temporary emergency transportation services due to the extended Request for Proposal process seeking a long term Emergency Transportation provider. This independent Request for Proposal process for temporary services has been completed. The provider's services shall include the provisions of all 9 -1 -1 Emergency Transportation Services together with the provisions of labor, materials, supplies and equipment. Selection of the temporary provider will not result in any added benefit in the review of proposals for the long term 911 Emergency Transportation Services. FISCAL IMPACT Funds are budgeted in the Fire Department, Fire Suppression and EMS, Contract Services - Professional account (01 1 1 5330- 62300). APPROVED AS TO FUNDS AND ACCOUNTS: Dave Thomas Francisco Gutierrez Fire Chief Executive Director Fire Department Finance &Management Services Agency 25G -1 25G -2 3/28/12 TEMPORARY 9 -1 -1 EMERGENCY TRANSPORTATION AGREEMENT THIS AGREEMENT, made and entered into this 2 "d day of April, 2012 by and between a California corporation, (hereinafter "PROVIDER "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "CITY "). RECITALS: A. CITY OF SANTA ANA issued a Request for Proposals, dated March 20, 2012, for the provision of temporary 9 -1 -1 emergency ambulance transportation services in the City of Santa Ana (the "RFP "); and B. In response to the RFP, PROVIDER submitted its Proposal dated March _, 2012 (the "Proposal "), a copy of which is attached hereto and incorporated herein by this reference as Exhibit "A "; and C. PROVIDER is an ambulance provider fully licensed and otherwise qualified to perform the work required by this Agreement, and was selected by CITY following evaluation of proposals submitted in response to the RFP; and D. CITY desires to utilize the services of PROVIDER to provide primary ambulance transportation services and other related services in accordance with the terms of the RFP and applicable federal, state and local laws; and E. In undertaking the performance of this Agreement, PROVIDER represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from an emergency transportation provider. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. CONTRACT DOCUMENTS AND ORDER OF PRECEDENCE a. This Agreement shall consist of (a) this Agreement; (b) the CITY's RFP, (c) and PROVIDER'S Proposal satisfying the requirements in the RFP. This Agreement, the RFP, and the Proposal, shall be hereinafter collectively referred to as the "Contract Documents ". The Contract Documents constitute the entire agreement between the parties. This Agreement contemplates that PROVIDER will do whatever is required to perform the work in accordance with the terms of the Contract Documents and in accordance with any applicable governmental laws and regulations, whether specifically identified in the Contract Documents or not. Should any inconsistency be found to exist between the aforesaid Contract Documents and this written Agreement, the provisions of this Agreement shall control. b. All provisions of the Contract Documents shall be binding on PROVIDER. In the event there is any discrepancy between the terms and conditions of one or more of the aforementioned Contract Documents, the Order of Precedence shall be used to resolve the discrepancy unless both parties mutually 1 25G -3 3/28/12 agree in writing to an alternative decision. The Order of Precedence for these documents shall be as follows: 1) First, this Agreement (together with any Amendments thereto). 2) Second, the RFP 3) Third, PROVIDER'S Proposal. 2. SCOPE OF SERVICES a. PROVIDER will perform all of the services described in this Section for CITY. The details of the services to be provided by PROVIDER are described in detail in the Contract Documents. Those services shall include the provision of all 9 -1 -1 Emergency Transportation Services, including but not limited to the First Tier Service and the Mutual Aid Service (as defined below), together with the provision of any labor, material, supplies and equipment related to the provision of those services, and any other duties, obligation or services required of PROVIDER in the Contract Documents. (All of the services to be provided by PROVIDER under this Agreement shall be hereinafter collectively referred to as "9 -1 -1 Emergency Transportation Services "). PROVIDER shall perform the 9 -1 -1 Emergency Transportation Services in accordance with the terms and conditions contained in this Agreement, and as described in Contract Documents. b. All emergency transportation personnel assigned by PROVIDER or by the Mutual Aid Provider to perform 9 -1 -1 Emergency Transportation Services under this Agreement shall be hereinafter referred to as the "Transportation Personnel ". c. Without limiting PROVIDER'S obligation to comply with all of its duties and obligations under the Contract Documents, the 9 -1 -1 Emergency Transportation Services to be provided by PROVIDER shall include, but shall not be limited to, each of the following: 1. First Tier Service. PROVIDER will provide with its own forces a sufficient number of fully equipped ambulances and Transportation Personnel, so as to provide, in accordance with industry standards and this RFP, all of the CITY'S needs for 9 -1 -1 Emergency Transportation Service, being able to respond 24 hours a day 7 days a week to all 91 1 and other emergencies as required (the "First Tier Service" or "First Tier "). The First Tier Service will be designed by PROVIDER to ensure that there are enough of PROVIDER'S own ambulances and Transportation Personnel available to meet 100% of the anticipated number of calls for 9 -1 -1 Emergency Transportation Service in the City of Santa Ana. The First Tier Service shall meet the response times and all other requirements of this RFP for the 9 -1 -1 Emergency Transportation Service. 2. Mutual Aid Service. PROVIDER will also enter into a mutual aid agreement with a separate qualified ambulance service provider doing business in Orange County, to provide backup services in the event the First Tier Service is unable to respond to a call for Emergency Services (hereinafter "Mutual Aid Contract," "Mutual Aid Service," "Mutual Aid Service" or "Mutual Aid "). The company providing the Mutual Aid Service will be hereinafter referred to as the "Mutual Aid Provider." In providing 9 -1 -1 Emergency Transportation Services the Mutual Aid Provider must meet the same RFP requirements, response times, and otherwise provide the same level of service, as PROVIDER is required to provide under the Agreement. The Mutual Aid Contract and the Mutual Aid Provider must be approved by the CITY and the OCFA prior to provision of any service by PROVIDER, such approval not to be unreasonably withheld. The 2 25G -4 3/28/12 intent of this RFP is that PROVIDER will provide a sufficient level of coverage under the First Tier Service, such that services under the Mutual Aid Service will only be needed in rare circumstances, if at all. PROVIDER will be solely responsible for paying the Mutual Aid Provider for any services rendered under the Mutual Aid, which amount will be the Mutual Aid Provider's sole compensation for services rendered under the Mutual Aid. d. BLS and ALS Services. All Transportation Personnel assigned to perform 9 -1 -1 Emergency Transportation Services under this Agreement, whether under the First Tier Service or Mutual Aid Service, will provide Basic Life Support ( "BLS ") services and transport patients to medical facilities when required. OCFA, in cooperation with the Transportation Personnel, will provide on -scene Advanced Life Support ( "ALS ") services. e. All Transportation Personnel assigned to perform 9 -1 -1 Emergency Transportation Service under this Agreement, whether under the First Tier Service or Mutual Aid Service, must at all times meet the minimum qualifications required to provide services pursuant to this Agreement. f. PROVIDER and the Mutual Aid Provider will provide type III emergency transport (ambulance) vehicles (including all costs related to maintenance, fuel, insurance, repair costs and communication equipment) for all 9 -I -I Emergency Transportation Services provided under the First Tier Service and the Mutual Aid Service. 3. COMPENSATION a. CITY shall pay PROVIDER for furnishing the material and doing the prescribed work at the daily prices or lump sum prices set forth in PROVIDER'S Proposal ( "Contract Price "). Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City b. PROVIDER'S sole compensation for providing all 9 -1 -1 Emergency Transportation Services, specifically including but not limited to the First Tier Service and Mutual Aid Service will be the Contract Price. PROVIDER will not be entitled to bill CITY or any of its customers any additional amount for any services provided under this Agreement, unless it is first approved in writing by CITY. c. The payment of the Contract Price includes the provision of the Mutual Aid Service. PROVIDER will be solely responsible for compensating the Mutual Aid Provider for any 9 -1 -1 Emergency Transportation Services it may provide in the City of Santa Ana under this Agreement, which compensation will be at the rate set forth in the Mutual Aid Contract or as otherwise required by law. PROVIDER and the Mutual Aid Provider will not have any recourse against the CITY to recover for any 9 -1 -1 Emergency Transportation Services provided under either the First Tier Service or the Mutual Aid Service, except as specifically authorized in the Agreement. PROVIDER'S sole compensation will be the Contract Price it receives from CITY. In the event of a dispute between the Mutual Aid Provider and PROVIDER, the Mutual Aid Provider's sole remedy will be against PROVIDER. This fact will be clearly stated in the Mutual Aid Contract, and PROVIDER must agree to indemnify and defend CITY against any claims or demands arising out of, or which are in any way related to, any services provided under the Mutual Aid Service. The Mutual Aid Contract will include similar provisions requiring the Mutual Aid Provider to indemnify CITY for any claims or demands made by PROVIDER or other parties related to the 9 -1 -1 Emergency Transportation Services it may provide. 3 25G -5 3/28/12 4. BILLING a. CITY shall be responsible for the billing and collection of all amounts owed by customers /patients provided 9 -1 -1 Emergency Transportation Services in the City of Santa Ana, whether for services provided by PROVIDER, the Mutual Aid Provider, OCFA, City of Santa Ana, or their respective employees, agents, volunteers, or subcontractors. CITY, in its discretion, will be free to bill for these services in whatever manner it may deem appropriate, and may combine billings for various services provided. PROVIDER and the Mutual Aid Provider will actively cooperate with CITY to provide whatever information or assistance CITY may reasonably require so that it can process customer /patient billings in a timely manner. This will include, but is not limited to, PROVIDER providing CITY with a detailed list of all the 9 -1 -1 Emergency Transportation Services provided by both PROVIDER and the Mutual Aid Provider during the preceding month. The specific information to be provided by PROVIDER in the monthly reports will be determined by CITY, and may be modified by CITY from time to time to meet its reasonable needs. Failure to provide accurate information in a timely manner will constitute a material breach of this Agreement. b. The entire proceeds of all such billings and collection efforts will be the sole property of CITY. Neither PROVIDER nor the Mutual Aid Provider will have any right to the proceeds of any billings or collections for services provided under the First Tier Service, the Mutual Aid Service or for any other services provided under this Agreement, unless specifically authorized in writing by CITY. PROVIDER's Contract Price shall be sufficient to provide the required level of service under both the First Tier Service and the Mutual Aid Service, without expecting any additional amounts in compensation. 5. TERM a. The effective date of this Agreement shall be 0800 hours on April 20, 2012, ( "Effective Date "), at which time PROVIDER will assume full responsibility for the provision of 9 -1 -1 Emergency Transportation Services within the City of Santa Ana. At the sole discretion of the CITY, the Effective Date may be postponed in order to protect public health and safety, or in the event PROVIDER is for any reason unable to commence performance at that time. b. This term of this Agreement is not to exceed 120 days. However, in the event City has not awarded an agreement for provision of EMS Transportation Services, the of the term of this Agreement may be extended for up to an additional thirty (30) days upon a writing executed by the City Manager. 6. INDEPENDENT CONTRACTOR a. PROVIDER shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the CITY, the County of Orange or OCFA. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the CITY to exercise discretion or control over the professional manner in which PROVIDER performs the services which are the subject matter of this Agreement; however, the services to be provided by PROVIDER shall be provided in a manner consistent with all applicable standards and regulations governing such services. PROVIDER shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. The parties understand and agree that PROVIDER, its officers, agents and employees (which term specifically includes, but is not limited to, the Transportation Personnel) are not employees of the CITY, the County, or OCFA, and are not entitled to any of the rights, benefits, or privileges of City of Santa Ana, County, or OCFA employees including, but not limited to, medical, unemployment, or workers' compensation insurance. 4 25G -6 3/28/12 7. INSURANCE A. Prior to undertaking 9 -I -1 Emergency Transportation Services pursuant to this Agreement, PROVIDER shall obtain, maintain and keep in full force and effect insurance as described below: 1) Commercial General Liability Insurance. PROVIDER shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of PROVIDER'S operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $10,000,000 per occurrence, $1 0,000,000 in the aggregate. 2) Ambulance Medical Malpractice Insurance in an amount not less than $3,000,000 per occurrence. If the policy carries an annual aggregate, such aggregate shall be in an amount not less than $6,000,000 per occurrence. Such insurance coverage may be combined with either the general or automobile liability coverage required above; provided, however, if the insurance coverage is so structured, the combined coverage shall be in an amount not less than $5,000,000 per occurrence, with an annual aggregate of not less than $10,000,000. 3) Comprehensive Business Automobile Liability Insurance in an amount not less than $3,000,000 per occurrence, covering owned, non -owned and hired vehicles, written on an occurrence form. If policy carries an annual aggregate, such aggregate shall be in an amount not less than $6,000,000 per occurrence. PROVIDER shall provide Business Automobile Liability coverage for all vehicles under both the First Tier Service and the Mutual Aid Service. This specifically includes, but is not limited to, PROVIDER'S obligation to provide Business Automobile Liability coverage for any vehicles provided by CITY /OCFA for use by PROVIDER under the First Tier, as well as for any vehicles provided by PROVIDER directly. 4) Workers' Compensation and Employers' Liability Insurance in a statutory amount for workers' compensation and in an amount not less than $1,000,000 for employers' liability. Such insurance shall contain a waiver -of- subrogation clause in favor of the CITY and OCFA, and their respective officers, officials, employees and agents. B. PROVIDER shall comply with the following requirements: 1) If the above - required insurance coverage does not provide for an annual aggregate which is twice the per- occurrence limit, in the alternative the insurance policy (policies) shall be amended (by appropriate ISO endorsements) so that the policy limits apply solely to this Agreement. 2) The above - required liability insurance shall be in a form which supports coverage for the provisions of the indemnification clause required under this Agreement, including a claim brought against the CITY and /or OCFA for the injury to, or death of an employee or agent of PROVIDER. 3) In the event of a claim (claims) against the above - referenced liability policies which reasonably may deplete one -half or more of the aggregate limits, PROVIDER shall immediately notify CITY. In the event a claim (claims) against the above - referenced liability policies which are reasonably expected to deplete 90% of the aggregate limits, PROVIDER shall, at PROVIDER'S expense, reinstate 5 25G -7 3/28/12 the aggregate limits at least to an amount equal to one -half of the face amount of the aggregate limits on the policies. 4) All insurance required pursuant to this section shall be issued by a company authorized by the Insurance Department of the State of California and rated A -VII or better by the latest edition of Best's Key Rating Guide. 5) No insurance required herein shall provide for a deductible in excess of $5,000 or a self - insured retention in any amount, without prior written consent of the CITY and OCFA; and, the granting or denying of such consent shall be at the sole and absolute discretion of the CITY and OCFA. C. Endorsements. 1) All insurance required herein shall be endorsed to state that "Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior to written notice by certified mail, return receipt requested, has been given to the CITY OF SANTA ANA and OCFA." 2) The liability policies required herein, except workers compensation and employers' liability, shall, by endorsement, contain the following provisions: (a) "The CITY OF SANTA ANA and OCFA, and their respective officers officials, employees, representatives, and volunteers, are hereby declared to be additional insureds as respects the operations, activities, work, errors, or omissions of the named insured arising out of or in connection with any contract or agreement with the CITY OF SANTA ANA." (b) "This insurance is primary to, and shall not contribute with, any insurance or self - insurance maintained by the CITY OF SANTA ANA, by OCFA, or by any of the designated additional insureds." (c) "This insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability." 3) Worker's Compensation policies shall be endorsed to state that the insurer waives all rights of subrogation against the CITY OF SANTA ANA and OCFA, and their respective officers, officials, agents, employees, and volunteers for losses arising from work performed by the PROVIDER under this Agreement. D. All insurance coverages shall be confirmed by execution of endorsements and certificates of insurance. PROVIDER is required to file the completed policy endorsements and certificates with CITY and OCFA on or before the Effective Date of this Agreement, and to thereafter maintain current endorsements on file with CITY and OCFA. The completed endorsements and certificates of insurance are subject to the approval of CITY and OCFA. E. Nothing in this section shall be construed as limiting in any way; the Indemnification and Hold Harmless clause contained herein in this Agreement, or the extent to which PROVIDER may be held responsible for payments of damages to persons or property. F. CITY or OCFA shall have the right at any time to review the coverage, form, and limits of insurance required herein. If, in the sole and absolute discretion of the CITY and /or OCFA, the insurance provisions in this Agreement do not provide adequate protection for the CITY and /or OCFA, the CITY and /or OCFA shall have the right to require PROVIDER to obtain insurance sufficient in coverage, form, 6 25G -8 3128/12 and limits to provide adequate protection and PROVIDER shall promptly comply with such requirement. The CITY's and OCFA's requirements shall not be unreasonable, but shall be adequate in the sole opinion of the CITY and OCFA to protect against the kind and nature of risks which exists at the time a change of insurance is required, or thereafter. G. Alternate forms of insurance, that meet the above requirements, must be approved by the CITY's and OCFA's Risk Manager prior to awarding a contract and beginning any work under this Agreement. S. INDEMNIFICATION PROVIDER agrees to and shall indemnify and hold harmless the CITY, OCFA and their respective officers, officials, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the PROVIDER or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the 9 -1 -1 Emergency Transportation Services. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the CONTRACTOR, its employees, agents and /or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of the PROVIDER, its employees, agents and /or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the CITY or OCFA, or their respective officers, officials, agents, employees or volunteers, based upon the work performed by the PROVIDER, its employees, agents and /or authorized subcontractors under this Agreement, whether or not the PROVIDER, its employees, agents and /or authorized subcontractors are specifically named or otherwise asserted to be liable. Notwithstanding the foregoing, the PROVIDER shall not be liable for the defense or indemnification of the CITY or OCFA for claims, actions, complaints or suits arising out of the sole negligence or willful misconduct of the CITY or OCFA. 9. AUDITS AND INSPECTIONS At any time during normal business hours, and as often as may reasonably be deemed necessary by CITY, CITY may observe and inspect PROVIDER'S business office, and PROVIDER must make promptly available to the CITY for its examination all of PROVIDER'S records that pertain to performance of the Agreement. The CITY may audit, examine, and copy any and all PROVIDER records pertaining to their performance of the Agreement, including but not limited to, personnel records, daily logs, conditions of employment, and all other data. Reasonable notice shall be given to PROVIDER prior to such inspection. 10. PROVIDER RESPONSIBILITY Except as may be specifically stated herein to the contrary, it shall be the responsibility of PROVIDER to provide all Transportation Personnel with whatever resources and equipment are necessary to perform the 9 -1 -1 Emergency Transportation Services, and to otherwise satisfy all of the terms and conditions set forth in the Contract Documents at all times during the Term of this Agreement. Except where it may be specifically permitted in the Agreement, PROVIDER may not use any outside ambulance service providers or other resources to satisfy its obligations to provide 9 -1 -1 Emergency Transportation Services to the CITY, without first obtaining the prior written consent of the CITY. Notwithstanding the granting of any such approval by the CITY, nothing stated herein shall relieve 7 25G -9 3/28/12 PROVIDER of its duties and responsibilities under the Agreement, and any additional cost incurred shall not be charged to the County, CITY or OCFA. 11. FAMILIARITY WITH WORK By execution of this Agreement, PROVIDER warrants that: A. It has thoroughly investigated and considered the 9 -1 -1 Emergency Transportation Services to be performed; B. It possesses any and all licenses which are required under relevant local, State, or Federal law to perform the 9 -1 -1 Emergency Transportation Services contemplated by this Agreement, and shall maintain all appropriate licenses during the performance of this Agreement. C. It has expertise in the provision of 9 -1 -1 Emergency Transportation Services as that term is defined in this Agreement; D. It carefully considered how the 9 -1 -1 Emergency Transportation Services should be performed; and E. It fully understands the difficulties and restrictions attending the performance of the 9 -1 -1 Emergency Transportation Services under this Agreement. 12. REPRESENTATIVES AND NOTICE The OCFA Fire Chief or his designee shall be the representative of OCFA on behalf of the CITY for purposes of this Agreement and may issue al] consents, approvals, directives and agreements on behalf of the CITY, called for by this Agreement, except as otherwise expressly provided in this Agreement. shall be the representative of PROVIDER for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of PROVIDER, called for by this Agreement, except as otherwise expressly provided in this Agreement. All notices and written communications sent by one party to the other shall be personally delivered or sent by registered or certified U.S. Mail, postage prepaid, return receipt requested, to the following addresses indicated below: If to OCFA: Attn: Clerk of the Authority 1 Fire Authority Road Irvine, CA 92602 With copy to: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax 714- 647 -6956 If to CONTRACTOR: Attn: 8 25G -10 3/28/12 The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, or forty -eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. Either party may change its address by giving notice in writing to the other party. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between CITY and PROVIDER, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by CITY and by an authorized representative of PROVIDER. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate PROVIDER nor CITY. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of PROVIDER, PROVIDER may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the CITY and any such assignment, transfer, delegation or subcontract without the CITY's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the CITY's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERMINATION This Agreement may be terminated by the parties as hereinafter provided: a. PROVIDER may terminate this Agreement for cause, upon thirty (30) days prior written notice to CITY. b. CITY may terminate this Agreement for cause by providing PROVIDER seven (7) days prior written notice of termination for cause and the factors constituting cause. c. CITY may terminate this Agreement for any reason upon by providing thirty (30) day prior written notice of termination. d. CITY may terminate this Agreement immediately if the OCFA Fire Chief or designee (in his or her reasonable discretion) determines that continued operations by PROVIDER following a breach would constitute a danger to the public health, safety or general welfare. 16. BREACH OF AGREEMENT a. Factors Constituting Breach and Cause. Factors constituting a breach of this Agreement and also warranting Cause for termination include but are not limited to each of the following: 1. A failure by PROVIDER to perform the covenants and requirements set forth in the Contract Documents in the time and manner specified, and as required by this Agreement. 9 25G -11 3/28/12 2. Failure of PROVIDER to perform the 9 -1 -1 Emergency Transportation Services in a manner which enables the CITY or PROVIDER to remain in compliance with the requirements of the County of Orange Emergency Medical Services ( "OCEMS ") ambulance ordinance and related rules and regulations. 3. Supplying the CITY /OCFA with materially false or misleading information during the RFP process or during the course of producing any required reports to the CITY or OCFA. 4. Willful falsification or unreasonable withholding of data supplied to the CITY or OCFA or to OCEMS during the Term of this Agreement, including but not limited to: dispatch data, patient report data, response time data, financial data, or omission of other data required under this Agreement. 5. Failure of PROVIDER's employees to conduct themselves in a professional and courteous manner, and to present a professional appearance. 6. Failure of PROVIDER to maintain all required vehicle maintenance schedules and records reasonably required by CITY or OCFA. 7. Failure of PROVIDER to maintain all training and continuing education as required by OCFA and OCEMS policies and procedures and State regulations. 8. PROVIDER'S failure or refusal to respond to any request by CITY or OCFA concerning the manner or means by which PROVIDER is providing the operation of 9 -1 -1 Emergency Transportation Services in the CITY under this Agreement and pursuant to the Contract Documents. 9. Transfer or assignment of ownership or other interest in PROVIDER contrary to the terms of this Agreement [ "Assignment "]. ] O. Disruption of service due to failure to maintain ambulance maintenance schedule. 11. The lapse of any license, permit or approval issued PROVIDER by a federal, state or local government, which license, permit or approval is /are reasonably necessary for the provision of the 9 -1 -1 Emergency Transportation Services contemplated by the Contract Documents. 12. PROVIDER is enjoined or prohibited by any court of competent jurisdiction from performing services under this Agreement. 13. Lapse of insurance required under this Agreement. 14. Failure to manage and resolve citizen complaints to the satisfaction of the CITY or OCFA. ] 5. Failure to meet the on -time performance criteria as required in the RFP. 16. The breach or default of, or a failure to comply Agreement, any material provision of the RFP, or herein or incorporated by reference. 10 25G -12 with, any material provision of this of any covenant specifically contained 3/28/12 b. Right to Cure. In the event of any dispute arising under this Agreement, the injured Party shall notify the injuring Party in writing of its contentions by submitting a claim therefore. The injured Party shall continue performing its obligations hereunder so long as the injuring Party cures any default within thirty (30) days after service of the notice; provided, however, if a breach of this Agreement creates an immediate danger to the health and safety or general welfare to the CITY, in the reasonable discretion of the Fire Chief or designee, may take immediate action to remedy the breach itself and /or terminate this Agreement. Notwithstanding the preceding, if the Fire Chief or designee finds that PROVIDER is diligently proceeding with all steps necessary to cure such default, the Fire Chief or designee in conjunction with the CITY may, in his sole discretion, extend the time period by which PROVIDER must cure such deficiencies, including the effective date of such termination. c. Waiver. No waiver of any Event of Breach or Default shall be valid or effective unless in writing and signed by CITY. Any waiver of any one Event of Default or Breach shall not constitute, or be construed as creating, a waiver of any other Event of Default or Breach. d. Action Following Termination. Should this Agreement be terminated for breach, PROVIDER agrees that CITY and /or OCFA, in their discretion, may take immediate possession of any CITY or OCFA materials, equipment, and supplies PROVIDER may have used in the performance of the 9 -1 -1 Emergency Transportation Services. Notwithstanding the above, should this Agreement be terminated for breach, CITY or OCFA shall have the option to take over the delivery of the 9 -1 -] Emergency Transportation Services itself, using CITY personnel or contractors; contract on a temporary emergency basis with other providers of emergency transport ambulance services; seek new proposals for service; or such other option as may be deemed necessary and legally available to CITY. e. No Limitation on CITY's Rights. Nothing herein shall act as any limitation upon the remedies available to CITY whether at law, or otherwise, in the event of a breach or default of this Agreement. 17. DISCRIMINATION PROVIDER shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. PROVIDER affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 18. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 19. LICENSES PROVIDER shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. PROVIDER shall notify CITY and OCFA immediately and in 1] 25G -13 3/28/ 12 writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 20. COUNTERPARTS This Agreement may be executed in one or more counterparts by the parties hereto. All counterparts shall be construed together and shall constitute one Agreement. 21. MISCELLANEOUS PROVISIONS a. Each undersigned represents and wan -ants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAK.A Interim City Attorney By: Laura Sheedy Assistant City Attorney 12 25G -14 CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager PROVIDER REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: AGREEMENT WITH BEST, BEST AND KRIEGER sj j &ITY MANAGER 'V RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: _--;• 1W ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2"d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Direct and authorize the City Manager and the Clerk of the Council to execute an agreement with the law firm of Best, Best and Krieger designating Sonia R. Carvalho as City Attorney for the City of Santa Ana. DISCUSSION The City Charter Section 701 authorizes the City Council to appoint a City Attorney. The City Attorney is the legal advisor for the Council. He or she provides general legal advice on all aspects of City business and represents the City in legal actions. The City Attorney position has been vacant since 2010, though the duties have been performed on an interim basis by an acting City Attorney. Following a recruitment and thorough analysis of the most effective method of providing executive legal services to the City, it is recommended that the City contract with the firm of Best, Best and Krieger (BB &K) to appoint Sonia Carvalho as the City Attorney. BB &K is a full - service law firm with more than 200 attorneys in eight offices across California and an office in Washington, D.C. Sonia R. Carvalho is a partner in the Municipal & Redevelopment Law practice group of BB &K. She has held the positions of City Attorney for the City of Azusa and the City of Claremont, City of Colton and the City of Yorba Linda. Ms. Carvalho is also the Co -chair of the firm's Public Policy and Ethics sub - practice group. Ms. Carvalho attended the University of California at Irvine and graduated Phi Beta Kappa with a Bachelor of Arts degree, cum laude. She received her J.D. from UCLA School of Law. Ms. Carvalho was admitted to the California Bar in 1992. 25H -1 Agreement with Best, Best and Krieger April 2, 2012 Page 2 Based on expertise and a competitive pricing structure, the firm of BB &K, and specifically Ms. Carvalho, is the most appropriate choice to meet the full - service legal needs of the City. FISCAL IMPACT General legal services will be for 150 hours per month and will be billed at the rate of $25,000 per month. Additionally, general legal services of up to 10 hours per month may be provided by BB &K at the sole discretion of the City Attorney at a blended rate of $250 per hour not to exceed a maximum of $25,000 in any one Fiscal Year. Total annual cost for general city attorney legal services will not exceed $325,000. Funds are available in the Contract Services — Professional Fund (accounting unit 01108032- 62300). APPROVED AS TO FUNDS AND ACCOUNTS Edward S. Raya Francisco Gutierrez Executive Director Executive Director Personnel Services Agency Finance & Management Services Agency k 25H -2 PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF SANTA ANA AND BEST BEST AND KRIEGER LLP FOR CITY ATTORNEY SERVICES This PROFESSIONAL SERVICES CONTRACT FOR CITY ATTORNEY SERVICES (the "Agreement ") is effective as of the 2nd day of April, 2012, by and between the law firm of BEST BEST & KRIEGER LLP, a California limited liability partnership ( "BB &K "), and the CITY OF SANTA ANA, a municipal corporation (the "City "). The term "City" shall also include all boards, commissions, financing authorities, and other bodies of City. 1. APPOINTMENT City Council hereby appoints and designates Sonia R. Carvalho ( "Carvalho ") as the City Attorney, and hires BB &K as its City Attorney, to render such legal services as are customarily rendered by such officials and as further specified herein and as required by Charter Section 703, including, but not limited to, attending meetings of the City Council, Planning Commission, and other boards and bodies of City, and its affiliated agencies, as directed by the City. Notwithstanding the foregoing appointment, the designated City Attorney may be established from time to time or modified solely by resolution of the City Council. BB &K represents it employs, or will employ at its own expense, all personnel required for the satisfactory performance of any and all tasks and services set forth herein, except that BB &K shall not be required to hire any person already employed by the Office of the City Attorney who may be assigned tasks by, and who is supervised by Carvalho. BB &K shall not replace the designated City Attorney (or any successor to such person) without the City Council's prior approval. A temporary assignment of another attorney besides Carvalho due to vacation, illness or leave if necessary will be done only with the approval of the City Manager. City Attorney may appoint various assistants and deputies as City Attorney deems appropriate through the City's Personnel Department and only with the approval of the City Manager without the need for amendment hereof. 2. SCOPE OF WORK AND DUTIES A. General City Attorney Services: BB &K, specifically Carvalho, shall, as directed by the City, perform any and all work necessary for the provision of City Attorney services to City, including, without limitation, the following: (i) Attend all meetings of the City Council, and provide advice or opinion in writing whenever requested to do so by the City Council or by any of the officers, boards, commissions, committees, officers, and employees of the City as requested by the City Council, or City Manager, or his /her designee, in accordance with such policies and procedures as may be established by City from time to time; (ii) Attend, as necessary, all meetings of the Planning Commission and other board and commission meetings on request of the City Manager or his /her designee unless excused by the City Manager or his /her designee; (iii) Represent and advise the City Council and all City officers in all matters of law pertaining to their offices; 251 -3 (iv) Be available for telephone consultation with City staff, as needed on legal matters which are within their area of operation and maintain regular office hours at City Hall as requested by the City Manager at times mutually agreed to by the City Manager and designated City Attorney, attend Executive Team staff meetings, meet with individual Council members as necessary; (v) Prepare or review necessary legal documents such as: ordinances and resolutions; all agreements of any nature; all real property instruments of any nature including purchase agreements and escrows, leases, covenants, deeds, easements and licenses; bond size, amount, and offering terms and conditions; public works construction documents including bid specifications, contracts, bonds, insurance, liens and related documents; memorandums of understanding; franchise agreements; and all similar documents, all as requested by City; (vi) Utilizing existing staff in the Office of the City Attorney employed by the City, prosecute on behalf of the people such criminal cases for violation of the Charter or City ordinances, and of misdemeanor offenses and infractions arising upon violations of the laws of the state as in his opinion, or that of the City Council, or of the City Manager, warrant his attention; (vii) Utilizing existing staff in the Office of the City Attorney employed by the City, represent and advise City on pending and potential litigation as requested by City; notwithstanding the foregoing, it is expressly understood that BB &K shall not be responsible for any pending litigation matter(s) handled by attorneys previously or otherwise employed by the City until all files have been transferred to BB &K and BB &K has specifically appeared in the matter(s) as attorneys of record on behalf of City; (viii) Monitor pending and current legislation and case law as appropriate; (ix) Supervise and manage all work of subordinate staff, including supervision of all staff of the Office of the City Attorney; (x) Supervise outside legal services; (xi) Represent and appear for the City, any City officer or employee, or former City officer or employee, in any or all actions and proceedings in which the City or any such officer or employee, in or by reason of his official capacity, is concerned or is a party; (xii) Represent and advise the Successor Agency and officials in all matters of law pertaining to their office; (xiii) Represent and advise the Housing Authority and Authority officials in all matters of law pertaining to their offices; and (xiv) Perform other related duties as required. B. Special Legal Services: City Attorney, utilizing City Attorney staff to the extent they are available, will provide representation to City in all of its legal affairs, including, but not limited to, municipal law, land use, environmental, toxics, mining, water, tort defense, personnel, labor representation, code enforcement, criminal prosecution, successor agency, housing, and other matters, except where conflicts exist or where the City Council may otherwise direct. The City Attorney 251 -4 shall represent City in all of the foregoing legal matters, and in initiating and defending all litigation unless otherwise directed by the City Council. C. Additional Specialized Legal Services: When requested in writing by the City Manager, City Attorney will provide cable television, finance, franchising, contracts, airport, water, waste water, electricity, waste management, transportation, enterprise and other specialized services which may require the assistance of special legal counsel. D. General Communication: The City Attorney will keep City informed as to the progress and status of all pending matters in accordance with such procedures as the City may establish from time to time. The City Attorney is expected to manage, control and oversee the delivery of legal services in a competent, professional, and cost - effective manner. All legal services shall be properly supervised and all personnel shall be qualified to handle the work assigned. If, with the approval of the City Council outside special counsel is retained, unless otherwise directed by the City Council, such special counsel shall be supervised by the City Attorney. E. Coordination of Services: All legal services shall be coordinated under the direction of the City Manager. Notwithstanding any other provision contained herein, any Additional Specialized Legal Services can only be authorized by the City Council or City Manager. Nothing in this Contract shall be construed in any manner as limiting the ultimate and absolute discretion of the City Council, at any time, to assign or reassign a legal matter of City from or to BB &K. 3. CITY DUTIES City agrees to provide such information, assistance, cooperation, and access to books, records, and other information as is necessary for BB &K to effectively render its professional services under this Contract. The City desires services to be rendered whenever possible on site; as such the City, at City's expense, will make available sufficient office space, furniture, telephones, computers, facsimile machines, and secretarial support, as approved by the City Manager, as may be necessary therefore. City further agrees to abide by this Contract, and to timely pay BB &K's bills for fees, costs, and expenses, as established by this Agreement. However, nothing in this Section, or any other part of this Agreement, shall be construed in any manner as limiting the ultimate and absolute discretion of the City Council, at any time, to assign or reassign legal matters of City from or to BB &K. 4. PERSONNEL City Attorney staff may be modified only as provided in Section 1 above and except as so provided, City Attorney will exercise discretion to utilize whichever attorney(s) (and staff) it determines to be best suited to render efficient and effective legal services under this Contract. City Attorney shall also, in accordance with City's rules and regulations, have authority to hire staff in the Office of the City Attorney. 5. COMPENSATION A. Compensation shall be as set forth in Exhibit A. B. Payment of Compensation shall be as set forth in Exhibit B. 6. BOND OR FINANCIAL SERVICES: SERVICES FOR THIRD PARTIES Notwithstanding the foregoing, (i) in the event City determines BB &K shall act as Bond Counsel 25H -5 for the issuance of City bonds, the compensation provisions set forth in Exhibit A -1 shall apply; and (ii) where legal services are subject to cost recovery from a private third party, such as a developer, the hourly rate will be Three Hundred Dollars ($300) per hour, or such other increased hourly rate as has been agreed to by such third party. 7. COSTS AND OTHER CHARGES BB &K may incur various costs and expenses in rendering the legal services required by this Agreement which, if customary and necessary for the performance of legal services hereunder, with the prior approval of the City Manager shall be reimbursable by City. These costs and expenses are described in more detail in Exhibit A. All clerical services, ordinary travel costs (e.g., from the BB &K office to court or City Hall), and miscellaneous expenses (e.g., telephone and facsimile charges) are included within the rates set forth above, and there shall be no additional charges for such expenses. City agrees to reimburse BB &K for expenses such as experts' or consultant fees, or litigation expenses such as court reporters, which shall be passed through to the City at the actual costs thereof. Reimbursable costs shall not include any overhead or administrative charge by BB &K or BB &K's cost of equipment or supplies except as provided herein. Any item of expense must be explained in writing and approved by the City Manager in advance. The City will not reimburse BB &K for costs for which no backup materials are provided. City Attorney may determine it necessary or appropriate to use one or more outside investigators, consultants, or experts in rendering the legal services required (particularly if a matter goes into litigation). City will be responsible for paying such fees and charges. City Attorney will not, however, retain the services of any outside investigators, consultants, or experts without the prior written approval of City Manager and /or the City Council. City Attorney will select any investigators, consultants, or experts to be hired only after approval of City Manager. Extraordinary travel expenses, including transportation, meals, and lodging, when incurred on behalf of the City shall be reimbursed by City only with the prior written approval of City Manager. 8. STATEMENTS BB &K shall render to City a statement for fees, costs, and expenses incurred on a monthly basis. The Statement for General Legal Services shall be a single invoice for the compensation as set forth in Exhibit A. Statements for all other services shall indicate the basis of the fees, including the hours worked, the hourly rate(s), and a brief description of the work performed. Separate billing categories can be established to track costs associated with City funding categories or to track project costs, or such other basis as the City may direct. Reimbursable costs shall be separately itemized. The City reserves the right to require additional substantiation of any claimed expense or item billed by BB &K. Any work product or memoranda or other written material described in the invoices shall be produced to the City Manager as requested. Services under this Contract shall not be billed in more than one -tenth of an hour (i.e., six minute) increments and shall represent the devotion of a full six minutes to a task before such an increment is billed. Under no circumstances shall BB &K use "block billing" procedures, wherein a list or a series of activities is done with only an aggregate amount of time specified. All tasks set forth in BB &K's billing documentation shall be highly specific and highly detailed. Overly generalized listings of task descriptions such as "research," "pre -trial preparation," "review contract," or "prepare for negotiations," will not be acceptable without an additional description of the work performed. BB &K shall provide a detailed description that will provide a meaningful record to an independent auditor reviewing said task description. •1 •�, BB &K shall carefully examine all bills submitted for services rendered under this Contract to ensure that appropriate billing practices are employed in billing the City hereunder. To that end, BB &K agrees that: (a) They shall only bill for time which is specifically devoted to the Scope of Work; (b) They shall not bill for the use of legal professionals for secretarial work or administrative work; (c) They shall not bill for review of junior attorneys' work; (d) They shall only devote resources which are reasonably necessary for the performance of the required services; and (e) They shall utilize a billing format that sets forth sufficient detail to permit full scrutiny by City or any City- retained auditors, of all charges, except as specified in Exhibit "A." Payments shall be made by City within sixty (60) days of receipt of the statement, except for those specific items on an invoice which are contested or questioned and are returned by City with a written explanation of the question or contest, within thirty (30) days of receipt of the invoice. 9. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT The experience, knowledge, capability and reputation of BB &K, its partners, associates, and employees, was a substantial inducement for City to enter into this Agreement. Therefore, BB &K shall not contract with any other person or entity to perform, in whole or in part, the legal services required under this Agreement without the written approval of City. In addition, neither this Agreement, nor any interest herein, may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily, or by operation of law, whether for the benefit of creditors, or otherwise, without the prior written approval of City. Adding attorneys to BB &K, changes in the partnership, name changes and similar changes shall not be deemed a transfer or assignment requiring approval of City or amendment hereof. 10. INDEPENDENT CONTRACTOR BB &K shall perform all legal services required under this Agreement as an independent contractor of City, and shall remain, at all times as to City, a wholly independent contractor with only such obligations as are required under this Agreement. Neither City, nor any of its employees, shall have any control over the manner, mode, or means by which BB &K, its agents or employees, render the legal services required under this Agreement, except as otherwise set forth. City shall have no voice in the selection, discharge, supervision or control of BB &K employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. 11. INSURANCE BB &K shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement, including any extension thereof, the following policies of insurance: (a) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than a combined single limit of One 25FU -7 Million Dollars ($1,000,000.00), and One Million Dollars ($1,000,000.00) products and completed operations. (b) Workers' Compensation Insurance. A policy of workers' compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both BB &K and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement. (c) Automobile Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than a combined single limit liability of One Million Dollars ($1,000,000.00). Said policy shall include coverage for owner, non - owner, leased and hired cars. (d) Errors and Omissions Insurance. A policy of professional liability issuance written on a claims made basis in an amount not less than Three Million Dollars ($3,000,000.00). Except for the policy of professional liability insurance, all of the above policies of insurance shall be primary insurance and shall name City, its officers, employees and agents as additionally insured. Except for the policy of professional liability insurance, the insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Except for the policy of professional liability insurance, all of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are cancelled, the attorney shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City. Failure to do so is cause for termination. 12. INDEMNIFICATION A. BB &K agrees to indemnify City, its officers, employees and agents against, and will hold and save each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities ") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the work, operations or activities of BB &K, its agents, employees, subcontractors, or invitees, provided for herein or arising from the acts or omissions of BB &K hereunder, or arising from BB &K's performance of or failure to perform any term, provision, covenant or condition of this Agreement, except to the extent such claims or liabilities arise from the negligence or willful misconduct of City, its officers, agents or employees. B. City acknowledges BB &K is being appointed as City Attorney pursuant to the authority of Government Code Section 36505, and has the authority of that office. Accordingly, the City is responsible pursuant to Government Code Section 825 for providing a defense for the City Attorney for actions within the scope of its engagement hereunder. Therefore, City agrees to undertake its statutory duty and indemnify BB &K, its officers, employees and agents against and will hold and save each of them harmless from, any and all claims or liabilities that may be asserted or claims by any person, firm or entity arising out of or in connection with the work, operations or activities of BB &K within the course and scope of its performance hereunder, but nothing herein shall require City to indemnify BB &K for liability arising from its own negligence or alleged negligence. In connection herewith: (i) City will promptly provide a defense and pay any judgment rendered against the City, its officers, agency or employees for any such claims or liabilities arising out of or in connection with such work, operations or activities of City hereunder; �J_ ■_iZ�7 (ii) In the event BB &K, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against City for such damages or other claims solely arising out of or in connection with the work operation or activities of City hereunder, City agrees to pay to BB &K, its officers, agents or employees any and all costs and expenses incurred by attorney, its officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. 13. NOTICES Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified, or by delivery of same into the custody of the United States Postal Service, or its lawful successor; postage prepaid and addressed as follows: CITY: City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Attention: City Manager ATTORNEY: Best Best & Krieger LLP 5 Park Plaza, Suite 1500 Irvine, California 92614 494 - 263 -2600 (office) Attention: Sonia R. Carvalho Best Best & Krieger LLP 3750 University Avenue, Suite 400 Riverside, CA 92502 Attn: Managing Partner Service of a notice by personal service shall be deemed to have been given as of the date of such personal service. Notice given by deposit with the United States Postal Service shall be deemed to have been given two (2) consecutive business days following the deposit of the same in the custody of said Postal Service. Either party hereto may, from time to time, by written notice to the other, designate a different address or person which shall be substituted for that specified above. 14. NON - DISCRIMINATION In connection with the execution of this Agreement, BB &K shall not discriminate against any employee or applicant for employment because of race, religion, marital status, color, sex, handicap, sexual persuasion, or national origin. BB &K shall take affirmative action to ensure that applicants are employed, and that employees are treated fairly during their employment, without regard to their race, religion, color, sex, marital status, handicap, sexual persuasion, or national origin. Such actions shall include, but not be limited to, the following: employment, promotion, demotion, transfer, duties assignment; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 15. TERM, DISCHARGE AND WITHDRAWAL This Agreement shall commence on April 2, 2012, and shall remain in full force and effect until terminated by either party hereto. After November 1, 2012, City may discharge BB &K at any time. The City Attorney shall have no right to hearing or notice, and may be discharged with or without notice. BB &K may withdraw from City's representation at any time, to the extent permitted by law, and the Rules of Professional Conduct, upon at least sixty (60) days' written notice to City. In the event of such discharge or withdrawal, City will pay BB &K professional fees and costs, in accordance with this Agreement, for all work done (and costs incurred) through the date of cessation of legal representation, including, without limitation, proration of the monthly retainer amount to the date of such cessation. City agrees to execute, upon request, a stipulation in such form as to permit BB &K to withdraw as City's attorneys of record in any legal action then pending. BB &K shall deliver all documents and records of City to City, or to counsel designated by City, and assist to the fullest extent possible in the orderly transition of all pending matters to City's new counsel. 16. CONFLICTS BB &K represents that it currently has no client with interests adverse to those of the City with respect to this Contract. BB &K shall not accept cases that may include causes of action against the City. 17. INTERPRETATION OF AGREEMENT AND FORUM This Contract shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. In the event of any dispute hereunder, forum shall be the Superior Court, Orange County. 18. INTEGRATED AGREEMENT: AMENDMENT This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. No prior oral or written understanding shall be of any force or effect with respect to those matters covered in this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 19. CORPORATE AUTHORITY The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that in so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. 25H -10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date of execution by the City. Dated: April 2, 2012 ATTEST: By: MARIA D. HUIZAR Clerk of the Council Dated: April 2, 2012 "CITY" CITY OF SANTA ANA, a municipal corporation By: PAUL WALTERS, Interim City Manager APPROVED AS TO FORM: By: JOSEPH STRAKA Interim City Attorney "BEST BEST & KRIEGER LLP" By: 251 -11 Sonia R. Carvalho 25H -12 EXHIBIT "A" BILLING RATES (1) The City expects that General legal services (which include services described in Section 2 of the Contract) are anticipated to be for one hundred and fifty (150) hours per month and the City agrees to compensate BB &K at the rate of Twenty -Five Thousand ($25,000) per month. The parties agree and understand that the City shall pay BB &K $25,000 regardless of the amount of hours billed, in recognition that the City is securing the services and availability of Carvalho during the term of this Agreement. BB &K will issue an invoice that outlines the days and total amount of hours billed for "General Legal Services." These general entries will only require that the generalized topic of the legal services be described. For example, "General Legal Services -- Office Hours." Other work performed shall comply with the requirements of Section 8(e) of this Agreement. Notwithstanding anything herein to the contrary, additional General legal services may be provided by BB &K at the sole discretion of the City Attorney at a blended rate of Two Hundred Fifty Dollars ($250) per hour for attorneys and One Hundred Fifty Dollars ($150) per hour for paralegals in an amount not to exceed a maximum of Twenty Five Thousand Dollars ($25,000) in any one Fiscal Year. (2) Special legal services shall include legal services described as Special Legal Services in Section 2 of the Contract. All such matters shall be billed at the rate of Two Hundred Fifty Dollars ($250) per hour only when prior written approval has been obtained from City Manager. Additional Specialized Legal Services shall include those described in Section 2 of the Contract and shall be billed at the rates identified in the specific engagement for such matter and approved in writing by the City Manager. Such rates for Additional Specialized Legal Services shall range between $200 and $350 per hour. (3) Whenever possible all work should be completed on -site using City employees and City equipment at no charge to BB &K. If it is necessary to perform work on BB &K's premises or outside City Hall and such work has been authorized by the City Manager and /or the City Council, BB &K will be reimbursed for out - of- pocket expenses including telecopier, messenger, courier, and other communication costs; reproduction expense; computer research services (at actual cost); court reporters; mileage costs for travel to court and administrative proceedings (IRS standard rate); travel expenses outside of Southern California; and other costs and expenses incurred on City's behalf. (4) When authorized by the City Manager and /or City Council the use of BB &K paralegals, irrespective of matter, the reimbursement rate shall be One Hundred Ten Dollars ($110) per hour. (5) The foregoing fee arrangement shall remain in effect until adjusted by the City Council via separate resolution, provided however, that on July 1, 2013 and each July 1st thereafter, all hourly rates or flat fee amounts would be increased by an amount mutually agreeable. (6) Bond and finance fees shall be as set forth in Exhibit A -1 set forth hereto 25H -13 25H -14 Exhibit B BILLING STATEMENT AND PAYMENT The Firm's fees are charged on a monthly basis for and are generally billed monthly with payment due within thirty (30) days after the date of the bill. The current monthly rate for the City Attorneys will be set forth in the billing statement as well as the hourly rate and staff working on matters as provided by City Manager and /or City Council will be set forth in the billing statement. Travel time is billable, except commute time to and from City Hall. Services under this Contract shall not be billed in more than one -tenth of an hour (i.e., six minute) increments and shall represent the devotion of a full six minutes to a task before such an increment is billed. Under no circumstances shall BB &K use "block billing" procedures, wherein a list or a series of activities is done with only an aggregate amount of time specified. All tasks set forth in BB &K's billing documentation shall be highly specific and highly detailed, except as provided for in billing General legal services as set forth in Exhibit A . Overly generalized listings of task descriptions such as "research," "pre -trial preparation," "review contract," or "prepare for negotiations," will not be acceptable without an additional description of the work performed , except as provided for in billing General legal services as set forth in Exhibit A BB &K shall provide a detailed description that will provide a meaningful record to an independent auditor reviewing said task description. The City reserves the right to require additional substantiation of any claimed expense or item billed by BB &K. Any work product or memoranda or other written material described in the invoices shall be produced to the City Manager as requested. The Firm will incur various costs and expenses in performing legal services. These costs and expenses are separately billed to the client and include fees fixed by law or assessed by public agencies, litigation costs including deposition, reporter fees, and transcript fees, long distance telephone calls, messenger and other delivery fees, postage, photocopying and other reproduction costs when necessitated and authorized by the City, all based on the actual and reasonable cost. Firm shall provide backup documentation. It is understood that Firm will not charge for mileage between its office and City facilities, nor for local telephone calls or calls made to the City. In exchange, Firm shall not be charged for calls made or received at the City, whether local or long- distance, or for copying charges since copying on -site will reduce the charge to the client. The monthly billing statements for fees and costs shall indicate the basis of the fees, including a detailed and auditable breakdown of the hours worked, the billable rates charged and description of the work performed. All bills are expected to be paid within sixty (60) days of the date of the billing statement. Registration fees for attorneys attending conferences and seminars are paid by the Firm and are never charged to the City (unless expressly requested by the City). 25H -15 25H -16 EXHIBIT "A -1" BB &K SCHEDULE OF PUBLIC FINANCE FEES For bond counsel and special counsel services in connection with the financing of public facilities, BB &K shall be compensated, depending upon the type of bonds, certificates of participation or other obligations which are to be issued, based on the following schedules. Unless otherwise mutually agreed, our fees as bond counsel on these financings will be payable from proceeds of each series of the bonds upon their issuance. 1. Certificates of Participation and Revenue Bonds. For services in connection with the issuance and sale of certificates of participation and revenue bonds, BB &K shall be paid a fee which will be the greater of (i) $35,000 or (ii) an amount based on the total principal amount of the certificates of participation or bonds to be sold, computed as follows: 35% of the first $10 million of the amount of the certificates or bonds issued, plus .25% of the next $10 million of the amount thereof, plus .125% of the amount thereof, if any, over $20 million. Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third party, at BB &K's option it may proceed on a hourly basis at the private posted rates of the attorneys involved. 2. Community Facilities Districts. For services in connection with the issuance and sale of bonds of community facilities districts, BB &K shall be paid a fee which will be the greater of (i) $35,000 or (ii) an amount based on the total principal amount of the bonds to be sold, computed as follows: 35% of the first $10 million of the amount of the bonds issued, plus 25% of the next $10 million of the amount thereof, plus 125% of the amount thereof, if any, over $20 million. Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third party, at BB &K's option it may proceed on a hourly basis at the private posted rates of the attorneys involved with respect to services rendered for the formation of or annexation to a CFD, as well as the negotiation and preparation of funding agreements and joint financing agreements. Hourly compensation shall be payable solely from deposits of third parties and bond counsel fees shall be payable solely from the proceeds of the sale of bonds. 3. Assessment Districts. For services in connection with the issuance and sale of bonds of assessment districts, BB &K shall be paid a fee which will be the greater of (i) $35,000 or (ii) an amount based on the total principal amount of the bonds to be sold, computed as follows: 35% of the first $6 million of the amount of the bonds issued, plus 25% of the next $10 million of the amount thereof, plus 125% of the amount thereof, if any, over $16 million. Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third party, at BB &K's option it may proceed on a hourly basis at the private posted rates of the attorneys involved with respect to services rendered for the formation of or annexation to an AD, as well as the negotiation 25H -17 and preparation of funding agreements and joint financing agreements. Hourly compensation shall be payable solely from deposits of third parties and bond counsel fees shall be payable solely from the proceeds of the sale of bonds. 4. Investment and Other Agreements. For investment agreements, derivative transactions or interest rate swaps relating to of any bond issue, a separate fee will be charged depending on the type of derivative. Generally, our fee for a derivative transaction mirrors our bond counsel fee. Review of investment agreements will be charged at our hourly rates. 5. Disclosure Counsel. Our disclosure counsel fees for financings of the City of Santa Ana in the range of $10 million to $30 million will be $25,000. Our disclosure counsel services will include preparation and delivery of a preliminary official statement, bond purchase contract, final official statement, and continuing disclosure undertaking. If the transaction exceeds $30 million, we will seek additional compensation based upon an arrangement with the City of Santa Ana. The fees include our disclosure counsel services described above together with travel expenses to two meetings at the City of Santa Ana offices. These fees do not include attendance at any ratings presentations of the City of Santa Ana or related expenses. If other services are requested by the City of Santa Ana which are not within the scope of those provided for above, they will be performed on an hourly basis at the private posted rates of the attorneys involved. Our fees for bond and disclosure counsel will be payable from proceeds of each series of the bonds upon their issuance, and are not contingent on the bonds being sold. 6. Issuer's Counsel Opinions. For all Issuer's Counsel Opinions provided by BB &K in connection with any bond financing, fees shall be the following: (1) for opinions on financings for which BB &K does not provide bond counsel and disclosure counsel services, $10,000; (2) for opinions on financings for which BB &K provides bond counsel services only, $5,000; (3) for opinions on financings for which BB &K provides disclosure counsel services only, $2,500; and (4) for opinions on financings for which BB &K provides both bond and disclosure counsel services, there will be no charge. 7. Other Public Finance Services. If other services are requested by the City of Santa Ana which are not within the scope of those provided for above, they will be performed on an hourly basis at the at the private posted rates of the attorneys involved. REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: CONDITIONAL USE PERMIT NO. 2012 -04 TO ALLOW A 60 -FOOT HIGH WIRELESS FACILITY FOR VERIZON WIRELESS AT 1200 EAST GLENWOOD PLACE — CORE DEVELOPMENT SERVICES, APPLICANT CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2012 -04 as conditioned. PLANNING COMMISSION ACTION On March 12, 2012, the Planning Com Permit No. 2012 -04 as conditioned by construct a 60 -foot high wireless facilit y 1200 East Glenwood Place located in Commission amended Planning Division and deleted Condition No. 10 (Exhibit A). FISCAL IMPACT mission adopted a resolution approving Conditional Use a vote of 5:0 (Yrarrazaval abstained, Mill absent) to stealthed as a eucalyptus tree for Verizon Wireless at the Light Industrial (M1) zoning district. The Planning Condition No. 4 to delete subsection (a) of the condition There is no fiscal impact associated with this action. " 4a:tz�' L'. Jay M. Trevino Executive Director Planning & Building Agency AP: rb ap \reports \CUP12 -04 Verizon.040212.cc Exhibit: A. Planning Commission Staff Report 31A-1 'ki r =v , REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: MARCH 12, 2012 TITLE: PUBLIC HEARING - FILED BY CORE DEVELOPMENT SERVICES FOR CONDITIONAL USE PERMIT NO. 2012 -04 TO ALLOW A 60 -FOOT HIGH WIRELESS FACILITY FOR VERIZON WIRELESS AT 1200 EAST GLENWOOD PLACE Prepared by Ali Pezeshkpour I� Executive Dire or RECOMMENDED ACTION PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO AA- e� -- Planning M ger Adopt a resolution approving Conditional Use Permit No. 2012 -04 as conditioned. DISCUSSION Request of Applicant Core Development Services, representing Verizon Wireless, is requesting approval of a conditional use permit to allow the construction of a 60 -foot high wireless facility disguised as a eucalyptus tree at 1200 East Glenwood Place. Protect Location and Site Description The project is proposed to be constructed on a 0.43 -acre (18.657 square foot) parcel of land located at the southeast corner of South Standard Avenue and East Glenwood Place. The site is currently improved with a 7,234 square foot industrial building that is occupied by Lamination Depot. Land uses surrounding the site include industrial and warehouse uses to the north, south and east, and residential uses to the west (Exhibits 1 and 2). Project Description Verizon is proposing to construct a 60 -foot high wireless facility disguised as a eucalyptus tree. This facility is intended to provide increased cellular coverage and call capacity in this area of the City. To give the facility the appearance of a natural tree, the tower has been designed to have branches that will extend three feet above the antennas to a maximum height of 60 feet. Equipment for the wireless facility will be installed within an enclosure that measures approximately 8 -feet by 30 -feet for a total of 237 square feet. This enclosure will be located at the rear (west) of the existing building, while the monopole itself will be freestanding to the south of the equipment enclosure. Two 36 -inch box eucalyptus trees will be installed to the east and west of the facility to assist with the stealthing of the monopole, with vines planted along the block walls of the equipment enclosure (Exhibits 3, 4 and 5). EXHIBIT A lkii[_i CUP No. 2012 -04 March 12, 2012 Page 2 The proposed wireless facility will contain three arrays with four panel antennas on each side, for a total of 12 panel antennas. A GPS and parabolic antenna will also be located on the monopole. Project Background In March 2011, Core Development Services submitted plans to install a new wireless facility at this location. After a review of the proposal, staff recommended the moving of the equipment area to the rear (west) of the property while keeping the monopole to the south to assist with the stealthing of the facility, the maintenance of existing and the planting of new landscaping and to comply with the City's parking standards. The revised plans for the project now comply with staff's recommendations. The site is owned by David Foster and is occupied by Lamination Depot, a light manufacturing operation. David Foster will be leasing a 237 square foot area at the west and south sections of the site to Verizon for the installation of the equipment enclosure and monopole, respectively. General Plan and Zoning Consistency The General Plan land use designation for the site is Industrial (IND), which allows for manufacturing and industrial uses. Uses such as wireless facilities are consistent with this General Plan land use designation. The zoning for the site is Light Industrial (M -1). The Light Industrial zoning district is a zone that also allows for manufacturing, industrial and warehouse uses. The proposed use is also consistent with the zoning designation. Project Analysis In July 1998, the City Council adopted Ordinance No. NS -2356, which established regulations for wireless communication facilities throughout the City. Major wireless facilities, which are ground mounted facilities such as the one proposed, or roof mounted and higher than 10 feet above the roof of a building, are required to have a stealth design and be located in an area that provides the greatest amount of visual screening. Further, these major facilities require the approval of a conditional use permit. Also, Section 41 -198.4 of the Santa Ana Municipal Code (SAMC) identifies several site improvements that may be required at sites with major wireless facilities. These improvements include: 1. Landscaping around the base of the facility, including vines, groundcover and a 24 -inch box tree; 2. Decorative fencing (wrought iron or block) around the facility; 3. A six -foot high solid wall between the facility and property zoned or used for residential; 4. One parking space, if on -site parking is not available; 5. Repairing, repaving and restriping of a parking lot which is in poor condition; 6. The repainting of buildings on a site; and 7. The construction of a new trash enclosure. 31A-4 CUP No. 2012 -04 March 12, 2012 Page 3 Conditional Use Permits are governed by Section 41 -638 of the SAMC. Conditional use permits may be granted when it can be shown that the following can be established: • That the proposed use will provide a service or facility which will contribute to the general well being of the neighborhood or community. • That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. • That the proposed use will not adversely affect the present economic stability or future economic development of properties surrounding the area. • That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. • That the proposed use will not adversely affect the General Plan of the city or any specific plan applicable to the area of the proposed use. If these findings can be made, then it is appropriate to grant the conditional use permit. Conversely, the inability to make these findings would result in a denial. Using this information staff has prepared the following analysis, which, in turn forms the basis for the recommendation contained in this report. In analyzing the conditional use permit request, staff believes that the following findings of fact warrant approval of the conditional use permit. Section 41- 198.5(b) of the SAMC establishes site selection order of preference criteria for wireless facilities. These provisions require the exploration of various options before proposing a new monopole. The applicant has explored alternatives to this monopole, including providing a roof mounted facility on an existing building in the area and co- locating on another facility. The heights of the buildings (predominantly one story) in the immediate area do not provide the necessary height to provide adequate service. Also, there are no wireless facilities close enough to provide the necessary coverage and capacity that Verizon requires. Site improvements are proposed for the site that will bring the site into compliance with the wireless communications facility ordinance. First, two 36 -inch box eucalyptus trees will be planted near the facility to assist in the stealthing of the monopole. Second, decorative vines will be planted along the block wall that will be used to secure the wireless equipment. The remaining items were found to be in compliance with the requirements of the wireless facilities ordinance. • The project will provide a service or facility which will contribute to the community. The proposed monopole will provide a service to Santa Ana residents, businesses and motorists who subscribe to Verizon's services by reducing the gaps in cellular service and providing additional calling capacity for its users in the south -east sector of Santa Ana. 31A-5 CUP No. 2012 -04 March 12, 2012 Page 4 • The proposed wireless facility at this location will not be detrimental to persons residing or working in the area as the proposed facility will be in compliance with Federal law that govern health related issues for wireless facilities, including safety regulations from the Federal Communications Commission (FCC) and Federal Aviation Administration (FAA). • The proposed monopole, in conjunction with the new live eucalyptus trees and site improvements, will be compatible with the surrounding area and will not adversely affect the economic viability in the area. The stealth appearance and site enhancements will maintain and increase the economic stability for this industrial corridor. • The use will comply with all provisions pertaining to the construction and installation of wireless facilities identified in Chapter 41 (Zoning Code) of the Santa Ana Municipal Code. • The proposed monopole will not adversely affect the General Plan as cellular facilities that are designed to be compatible with the surrounding environment are consistent with the goals and objectives of the Industrial (IND) General Plan land use designation. Further, Policy 2.2 encourages land uses that accommodate the City's needs for services. A facility disguised as a eucalyptus tree monopole would provide the best stealth possible for this location. The facility is located within an industrial district and will be installed on the south side of the building, away from other industrial buildings. Within the corridor, there is a mixture of tree species. The eucalyptus tree design will easily blend into the area and will be designed to allow for future co- location by another provider. Of the various tree designs, the eucalyptus tree is a design that can stealth the equipment needed by additional wireless providers. All associated wiring and conduit for the facility will be underground or hidden within the interior of the monopole. This location is also optimum to provide the coverage necessary for existing and expanding service. The proposed cellular antennas will provide a benefit to Santa Ana residents, businesses and motorists who subscribe to Verizon by closing service gaps in the area. Equipment for the facility will be located within a new enclosure behind the building, with vines planted on the block wall to assist in screening the wireless facility. The proposed wireless facility complies with the City's Wireless Communications Facility Ordinance and will provide needed service to this area of the City. Further, the project is consistent with the goals and objectives of the General Plan, including Policy 2.2 of the Land Use Element, which encourages land uses that accommodate the City's needs for services. Public Notification The project site is not located within the boundaries of a Neighborhood Association. The project site was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and notices were sent to all property owners within 500 feet of the project site. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. lkl_I�Q� CUP No. 2012 -04 March 12, 2012 Page 5 CEQA Compliance This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The project is exempt from further review pursuant to Section 15303. This Class 3 exemption allows in -fill developments for the construction and location of limited numbers of new, small facilities or structures. Categorical Exemption Environmental Review No. 2012 -2 will be filed for this project. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Conditional Use Permit No. 2012 -04 as conditioned. 1 Ali Pezes k our Planning Intern AP:jm a&eportMOUPICUP12 -04 Verizon.0312Q.pc Attachments: Exhibit 1 —Vicinity Map Exhibit 2 — Land Use Map Exhibit 3 — Site Plan Exhibit 4 — Elevations Exhibit 5 — Photo Simulations 31A-7 Vince Fr oso, AIC Princip I Planner + + Si, xr3_ie _ DU�IU UUUUU s s J Ml ml Ski RI Rl Of Rl HH11 R2 R2 RI RI Rl M RI YMI MI 5 RI 0 C2 RI H Nil EDINGER ltl'� Ml LLI I Rl + xaH ml sa Rl R1 RI Rl Rl CI cl ml I R3 R3 Rl Al RI C2 C- R2-B t sp.441 g; I Rl ED RI j M1 _JUL ir I I f�u R3 cl RI .I Rli MI MI I C- —R ]Rl RI R Al Rl RI I R2 R2 C) PROJECT SITE ro -PI L-JL-jl 0 1 R1 RY R1 ]l Rl rn- Rl RI ml ml WANNER AVE. Al GENMMAMOATLIRALt (p 03WHUALFUIDUMAL RI SNGLEFAMILYFE9MMAL �B WNW MCCIFICKnON oc GomlmEurcffm R R2 TV0FMLYRE9DffXE GEM 0DklMEFUAl8WMMAJN Ml UGMNOUSTRAL R3 NwLnPLEDEN9WMULllPLE clt C0MfAUNrlYCUNBXlk V2 HFAWINOUSTRAL FAMILYRMDENCE Cl-MD a)WA-MAMEFOAMIUMN USMCT MO MUTAWOPERV"S R4 aALR3kNAPART?JMTS C2 GENERALCUIMSUAL 0 OPEN MkCE FE FESDefTIALES7ATE C3 C6lTRAL5JSNE% p MnMU4AL SD SFE0FlCDRSCWENT M-A CEffW.lRJSKIR&ARTISTMLIAGE PCD RAWDCONINILRAIYODALOWENT 5J SWFICPL-AN 04 n-ANNE1)3l"NGCUflFR PFD 05 ARTE14ALWAMMak CUP 2012-4 A, AIN VERIZON WIRELESS "cu I "Y 1200 EAST GLENWOOD PLACE 500 Fa7 V= 1000 FEET P L A N N I N G A N D 8 U I L Q I N G A G E N C Y EXHIBIT 1 VICINITY MAP lki CUP 2012 -4 ' VERIZON WIRELESS, 1200 EAST GLENWOOD PLACE P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 �I I 14 LU od Nua Aga W Z oz LU N Y H V n m a Alk JL �I , I � r IIII , fal gn �s r --------- ---- -_ `---- ..----- D- - - - - -_ 311N3AH Qt�VaNV1S - — - — z 5 a W F� H J J W 0 I , I � r IIII , fal gn �s r --------- ---- -_ `---- ..----- D- - - - - -_ 311N3AH Qt�VaNV1S - — - — z 5 a W F� H J J W 0 L 31` --`� ROH — 03/12/12 RESOLUTION NO. 2012 -02 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2012 -04 TO ALLOW A 60 -FOOT HIGH WIRELESS FACILITY ON THE PROPERTY LOCATED AT 1200 EAST GLENWOOD PLACE BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Conditional Use Permit No. 2012 -04 came before the Planning Commission of the City of Santa Ana for a duly noticed public hearing on March 12, 2012. B. Conditional Use Permit No. 2012 -04 has been filed with the City of Santa Ana seeking to allow a 60 -foot high wireless facility stealthed as a Eucalyptus tree on the property located at 1200 East Glenwood Place. C. Pursuant to Santa Ana Municipal Code Section 41- 198.10, a Conditional Use Permit is required for major wireless communication facilities established in the City of Santa Ana. D. Santa Ana Municipal Code Section 41 -638 authorizes the Planning Commission to grant a conditional use permit upon making certain findings. 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or the community? The proposed 60 -foot tall eucalyptus- disguised cellular monopole will provide a service to Santa Ana residents, businesses and motorists who subscribe to Verizon's services by reducing the gaps in digital cellular service and providing additional calling capacity for its users, especially for those users traveling within the southeastern sector of Santa Ana. 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? Resolution No. 2012 -02 Page 1 of 6 31 A -13 Federal law exempts local jurisdictions from regulating health related issues as these issues are covered under Federal laws. However, the proposed facility will be in compliance with both the Federal Communications Commission (FCC) and Federal Aviation Administration (FAA) safety regulations. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed facility, in conjunction with the new eucalyptus trees and required site improvements, will be compatible with the surrounding area and will not adversely affect the economic viability in the area. The stealth appearance and site upgrades will be the major solution to maintaining and increasing the economic stability for this industrial corridor. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? The cellular facility has been designed to comply with the regulations and conditions identified in Chapter 41 of the Santa Ana Municipal Code for a major wireless facility. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed facility will not adversely affect the General Plan as cellular facilities that are designed to be compatible with the surrounding environment are consistent with the goals and objectives of the Industrial (IND) General Plan land use designation. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for services. E. This project was reviewed in accordance with the Guidelines for the California Environmental Quality Act. The project is exempt from further review pursuant to Section 15303. This Class 3 exemption allows in -fill developments for the construction and location of limited numbers of new, small facilities or structures. Categorical Exemption Environmental Review No. 2012 -2 will be filed for this project. Section 2. The Planning Commission, after conducting the public hearing, hereby approves Conditional Use Permit No. 2012 -04 as conditioned in Exhibit "A" attached hereto and incorporated herein. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated March 12, 2012, and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. ADOPTED this 12th day of March , 2012 by the following vote: Resolution No. 2012 -02 Page 2 of 6 31A -14 AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: Acosta, Alderete, Gartner, Nalle, Turner (5) None (0) Mill (1) Yrarrazaval (1) Eric Alderete Chairman APPROVED AS TO FORM: Joseph A. Straka, Interim City Attorney By: Ryan O. Hodge Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Martha Ramirez, Planning Commission Secretary, do hereby attest to and certify the attached Resolution No. 2012 -02 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on March 12, 2012. Date: Planning Commission Secretary City of Santa Ana 31 A -15 Resolution No. 2012 -02 Page 3 of 6 Conditions for Approval for Conditional Use Permit No. 2012 -04 Conditional Use Permit No. 2012 -04 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 conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. A. Planning Division 1. The applicant must comply with all conditions and requirements of the Development Review Committee for the development project (DP No. 2011 -5). 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. The proposed monopole shall be constructed as per approved plans and any existing landscaping shall be protected in place during the construction period for the 60 -foot wireless facility. 4. The proposed monopole shall be constructed per the following specifications: a. fell density 'th limited 6paGing between the hrannhe6; 70 pernent of the hrannhee ehould he eight feet or Ionger.Modified by Planning Commission on March 12, 2012 b. Branch disbursement should be random so that longer branches and shorter branches are intermingled to give a natural appearance. C. Branches should exceed all antennas by a minimum of 12 inches. d. Branches should start at 15 feet above the ground. e. There should be a minimum space of seven feet between the top of the antenna and the top of the branches. Resolution No. 2012 -02 Page 4 of 6 MARCH 12, 2012 PAGE 2OF3 f. Branches should have a sweep similar to that of an actual Eucalyptus Tree. g. Branch foliage color should be an olive green with some other appropriate coloring to match an actual Eucalyptus Tree. A sample shall be submitted for approval prior to fabrication. h. Full bark cladding with a custom color should be submitted for approval prior to fabrication. i. All antennas shall be covered with "antenna socks" that match the approved foliage color. j. All "stand -off mounts" and support pipe mounts shall be concealed behind antennas and painted a darker shade or green (or black) with a "flat" paint finish to reduce reflection and visibility of the mounting. k. Include the tree specifications (selected manufacturers and models) with photo simulations (also a site plan review requirement). I. Show the location of the GPS antenna on all elevations. M. Provide a "unistrut" detail for the utility cabinet; an "H- frame" is not acceptable. n. Provide a note on the plans stating "install underground utilities sleeving for two carriers during construction of the structure ". Shrouds on the outside of the pole are not acceptable. o. All exterior conduit and electrical meters shall be installed and screened in one metal enclosure painted to match the structure. 5. The permit applicant shall provide a 24 -hour phone number to which interference problems may be reported. This condition will also apply to all existing facilities in the City of Santa Ana. 6. The permit applicant will provide a "single point of contact" in its Engineering and Maintenance Departments to insure continuity on all interference issues. The name, telephone number, fax number and e-mail address of that person shall be provided to the City's designated representative upon activation of the facility. Resolution No. 2012 -02 Page 5 of 6 31 A -17 MARCH 12, 2012 PAGE 3OF3 7. The permit applicant shall insure that lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the failure of any lessee or other users under the control of permit applicant to comply. 8. The permit applicant shall provide a coverage and cell site location map for each existing and proposed facility in Santa Ana. 9. Locate all equipment and related appurtenances (Appleton plug and electric meter) on the inside of the existing equipment enclosure or inside the building and underground all electrical power from the utility source shown on the approved site plan. The ie +inn building 6hall be Fepainted. The appliGan+ shall submit n�in+ G910r , f.,�9F the Fepainting to the Planning Divisie n. Modified by Planning Commission on March 12, 2012 11. Conditional Use Permit No. 2012 -04 expires 10 years from the date of City Council approval. Resolution No. 2012 -02 Page 6 of 6 ikii_[_d_E:� REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: EXTENSION OF CONDITIONAL USE PERMIT NO. 2008 -37 TO ALLOW THE EXPANSION OF THE ALLIANCE CHURCH OF ORANGE AT 2130 NORTH GRAND AVENUE <2, �' a)�' CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: • : 011 ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt a resolution approving the extension of Conditional Use Permit No. 2008 -37. DISCUSSION In March 2008, the City Council approved Conditional Use Permit No. 2008 -37 to allow an expansion to the Alliance Church of Orange at 2130 North Grand Avenue. The conditional use permit allowed the construction of a 14,500 square foot gymnasium building as well as approximately 6,100 square feet of new classroom space. Due to a significant shift in the overall economy over the past few years, the Alliance Church had been unable to secure the funds necessary to begin the project. As a result, the entitlements for the site are ready to expire. Pursuant to Section 41 -647 of the Santa Ana Municipal Code (SAMC), conditional use permits (CUP) automatically become void should the property owner fail to institute an action to comply with the provisions of the CUP within two years of its approval. This section of the code also allows the property owner to request an extension of the entitlement up to a period of three years from the date of expiration. Since construction has yet to begin, the applicant would like to maintain the entitlements for the conditional use permit and is requesting a one year extension of the entitlements. The applicant has been working with their architect to prepare structural plans for submittal into Building plan check. Since the applicants are hopeful that they can move forward within the next few months, the Planning Division recommends that the entitlements for the church expansion project be extended by a period of one year from the date of approval to March 2, 2013. Environmental Impact In accordance with the California Environmental Quality Act, this project is exempt from CEQA per Section 15061 (b)(3). This determination has been made as it has been determined that the proposed action will not cause a significant effect on the environment. 55A -1 Extension of CUP No. 2008 -37 April 2, 2012 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. L y M. Trevino Executive Director Planning and Building Agency VF:rb vAreports \CUP08 -37 2 n extension.cc 55A -2 ROH — 04/02/12 RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FOR THE EXTENSION OF CONDITIONAL USE PERMIT NO. 2008 -37 FOR ONE YEAR FOR THE PROPERTY LOCATED AT 2130 NORTH GRAND AVENUE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. In March of 2008, the City Council approved Conditional Use Permit No. 2008 -37 to allow an expansion to the Alliance Church of Orange at 2130 North Grand Avenue. B. On March 7, 2011, the City Council approved a one (1) year extension of Conditional Use Permit No. 2008 -37. C. The applicant has requested another one (1) year extension for Conditional Use Permit No. 2008 -37. It is the Planning Division's policy to recommend no more than one year extensions, mainly in an effort to encourage the construction of previously approved projects. As a result, the Planning Division recommends that the entitlements for the church expansion project be extended by a period of one (1) year to March 2, 2013. D. The extension request came before the City Council on April 2, 2012. E. Due to the significant shift in the overall economy over the past few years, the Alliance Church had been unable to secure the funds necessary to begin the project. The applicant has been working with their architect to prepare structural plans for submittal into Building plan check. F. Pursuant to City of Santa Ana Municipal Code section 41 -647, where construction does not commence, these types of entitlements expire after two years unless the applicant applies for, and the City Council approves, an extension. The extension may not be for a period or periods exceeding (3) years in total beyond the date it would otherwise become void. G. In accordance with the California Environmental Quality Act, this project is exempt from CEQA per Section 15061(b)(3). This determination has been made as it has been determined that the proposed action will not cause a significant effect on the environment. Resolution No. 2012 -XXX 55A -3 Page 1 of 3 Section 2. Conditional Use Permit No. 2008 -37 is hereby extended for a period of one (1) year to March 2, 2013. This decision is based upon the evidence submitted, which includes, but is not limited to, the Request for Council Action dated April 2, 2012, and exhibits attached thereto, and any public testimony, all of which are incorporated herein by this reference. Section 3. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of April, 2012. 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 Miguel A. Pulido Mayor Resolution No. 2012 -XXX Page 2 of 3 55A -4 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: Clerk of the Council City of Santa Ana Resolution No. 2012 -XXX 55A -5 Page 3 of 3 LAWMM-O, REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: NOMINATE AND APPOINT A REPRESENTATIVE TO THE ORANGE COUNTY FIRE AUTHORITY (OCFA) BOARD 1 -'CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: u2 03WIC J ❑ As Recommended ❑ As Amended ❑ Ordinance on 15t Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Nominate a councilmember and adopt a resolution appointing a representative to the Orange County Fire Authority DISCUSSION The City of Santa Ana entered into a Joint Powers Agreement with the Orange County Fire Authority (OCFA) on February 21, 2012, to provide fire related services. The City of Santa Ana, as a member of the Orange County Fire Authority Joint Powers Authority (JPA), is entitled to appoint a representative director and alternate to the Board of Directors. The director and alternate must be an elected official, shall serve at the pleasure of the Council, and may be removed at any time, with or without cause. FISCAL IMPACT None Maria D. Huizar, Clerk of the Council -' 55B -1 I RESOLUTION NO. 2012 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA, DESIGNATING AND APPOINTING ITS REPRESENTATIVE TO THE ORANGE COUNTY FIRE AUTHORITY'S BOARD OF DIRECTORS WHEREAS, the City, as a "member" of the Orange County Fire Authority Joint Powers Authority (JPA) is entitled to appoint a representative director ( "Director ") and alternate to the Orange County Fire Authority's Board of Directors, and WHEREAS, each member agency, by resolution of its governing body, shall designate and appoint one representative to act as its Director on the Authority Board of Directors, except the County whose Board of Supervisors shall appoint two representatives to act as its Directors, and WHEREAS, each Director shall be a current elected member of the governing body, and WHEREAS, each Director shall hold office until the selection of a successor by the appointing body, and WHEREAS, each member agency shall also appoint an alternate representative to act in each Director's absence; and WHEREAS, each alternate shall be a current elected member of the member agency's governing body, and WHEREAS, each Director and alternate is to serve at the pleasure of his or her appointing body and may be removed at any time, with or without cause, at the sole discretion of that appointing body, and WHEREAS, any vacancy shall be filled in the same manner as the original appointment of a Director and /or alternate. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Santa Ana, California, does hereby designate and appoint Council Member as representative to the Orange County Fire Authority Board of Directors. PASSED, APPROVED, AND ADOPTED this 2nd day of April, 2012. Resolution No. 2012 -XXX 556-3 Page 1 of 2 APPROVED AS TO FORM: An Joseph Straka, Interim City Attorney AYES NOES: ABSENT: ABSTENTIONS: 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 -XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Resolution No. 2012 -XXX Page 2 of 2 Clerk of the Council, City of Santa Ana 55B -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 2, 2012 TITLE: RESOLUTION AUTHORIZING ABSENCE WITH PAY FOR APPROVED CITY EMPLOYEES WHO STAFF POLLING LOCATIONS ON ELECTION DAY 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 Adopt a resolution authorizing the City Manager to approve absence with pay for approved City employees who volunteer to staff a polling location on election day. DISCUSSION On January 8, 2002, the Orange County Board of Supervisors initiated a program in which County employees volunteer to serve as poll workers on election days. The intent of the program is to provide a stable pool of trained poll workers during elections to ensure that each polling place operates efficiently and effectively. On March 19, 2012, the County of Orange Registrar of Voters asked Santa Ana and other cities to assist in this effort by releasing employees on June 5, 2012 to supplement the number of County employees and other poll workers operating polling locations on this primary election day. City employees who volunteer and are approved by their supervisors for this duty will be released from work for training and election day duties. These volunteers will work from approximately 6:00 a.m. to 9:30p.m. on election day and will receive their normal workday salary. A three -hour training on election day duties will be provided by the County and will include preparing and closing the polling place, issuing ballots, explaining the electronic voting system, and answering voters' procedural questions. FISCAL IMPACT As City employees will be released from budgeted positions, there will be no additional costs associated with this action. However, there will be a loss of productive work hours and a 55C -1 Proposed Authorization of Absence with Pay for City Employees Who Staff Polling Stations On Election Day Page 2 corresponding loss in service provided, the impact of which will be determined by the number of employees who volunteer for this assignment. Qii to �0 Maria D. Huizar, Clerk of the Council Attachment 1 — Resolution 55C -2 RESOLUTION NO. 2012 -XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING ABSENCE WITH PAY FOR CITY EMPLOYEES WHO VOLUNTEER TO STAFF POLLING STATIONS FOR THE COUNTY ON ELECTION DAY BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council of the City of Santa Ana hereby finds, determines, and declares as follows: A. On January 8, 2002, the Orange County Board of Supervisors initiated a program in which County employees volunteer to serve as poll workers on Election Day. Its primary objective is to ensure that poll locations throughout Orange County are staffed with a sufficient number of trained poll workers. B. On March 19, 2012, the County of Orange Registrar of Voters requested that the City of Santa Ana release City employees for the State Primary election on June 5, 2012, in order to allow them to volunteer as poll workers on Election Day at polling stations in Orange County. The City complied with this request. Section 2: In the interest of upholding its civic responsibilities and in reflection of its position as the largest city in Orange County and the County seat for all government operations, the City Council hereby authorizes the City manager to develop policies and procedures that allow for the release of City employees on Election Day to act as volunteer poll workers for the County at polling locations in Orange County. All work releases shall be voluntary and employees will receive their normal salary for the day released without regard to the actual hours the employee spends acting as a volunteer. Employees shall also be released for any mandatory training required of volunteer poll workers. Grant funded positions will not be allowed to participate since they have special provisions that apply to their work hours Section 3: This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of April , 2012. 55C -3 Miguel A. Pulido Mayor APPROVED AS TO FORM: City Attorney's Office By: Joseph Straka Interim City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 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 55C -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AP RI L 2, 2012 TITLE: PUBLIC HEARING — COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FY 2012 -2013 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: r-1T"J.*T-.T4MWW ❑ As Recommended ❑ As Amended ❑ Ordinance on 15t Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Approve the proposed Fiscal Year 2012 -2013 Community Development Block Grant Program. 2. Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute memorandums of understanding with city departments and agreements with nonprofit agencies awarded funds as part of the approved program. DISCUSSION Since Fiscal Year 1974 -1975, Santa Ana has received Community Development Block Grant (CDBG) funds to improve low- and moderate - income neighborhoods, eliminate blight and create a more stable economic base. These funds have been used for a diverse range of programs including housing, street improvements, parks and public facilities improvements, social services, historic preservation and community services. In past years, the City has used an application process to make public service funds available to nonprofit organizations that meet one of the priorities identified in the City's Consolidated Plan (the City's five -year strategic plan that identifies housing and community needs that are required by the U. S. Department of Housing and Urban Development [HUD]). Like communities throughout the nation, the current economic climate continues to present serious budget challenges to Santa Ana. These challenges include an increased demand for a variety of municipal services, the elimination of redevelopment tax increment, the redirection of local revenues to the state, and an overall decline in various tax revenues. To address these challenges, the City continues to make the difficult decision to limit the amount of CDBG funds available for nonprofits for the 2012 -2013 Fiscal Year to City- managed programs. 75A -1 Public Hearing — CDBG Program FY 2012 -2013 April 2, 2012 Page 2 The proposed Fiscal Year 2012 -2013 CDBG program and budget (Exhibit 1) consists of the staffs funding recommendations for the program. The City Council public hearing will provide an opportunity for public input and the completion of the process necessary to submit our locally approved program to HUD. FISCAL IMPACT Approval of the recommended action will authorize the City Manager to submit the approved program to HUD and to execute a grant agreement, which will result in the City's CDBG letter of credit being augmented by an estimated $5,680,480. Nancy T. wards Interim Ex6butive Director, Community Development Agency NTE /FH /mlr Exhibit: 1: Program Recommendations APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 75A -2 Community Development Agency CDBG FUNDING PLAN CITY CAPITAL IMPROVEMENTS Public Facilities- Various Residential Streets PROPOSED PLAN PROGRAM Public Facilities- Park - Maybury lighting FY 12/13 ADMINISTRATION & PLANNING Public Facilities-Park-El Salvador Walkway $ Program Administration -CDBG $ 664,576 Program Administration -HOME $ 200,000 Neighborhood Improvement - Admin. $ 200,000 Fair Housing Council of Orange County $ 71,520 CODE ENFORCEMENT Single Family Rehab -Non Profit $ Code Enforcement $ 1,250,000 Legal Services $ 50,000 SOCIAL SERVICES TOTAL $ PD -PAAL Program $ 144,000 PD -HEART Program $ 35,000 PD -GRIP Program $ 185,000 PRCSA- Library Tutors $ 258,072 PRCSA- Project Pride $ 150,000 PRCSA- Senior Meals $ 80,000 CITY CAPITAL IMPROVEMENTS Public Facilities- Various Residential Streets $ 748,632 Public Facilities- Park - Maybury lighting $ 435,000 Public Facilities-Park-El Salvador Walkway $ 171,000 Public Facilities- Park - Windsor Walkway $ 134,400 Public Facilities- Park - Centennial Rock Slope $ 112,280 Public Facilities- Park - Madison Community Garden $ 376,000 HOUSING REHABILITATION Single Family Rehab -Non Profit $ 90,000 Single Family Rehab -City $ 200,000 Multi Family Rehab Loans $ 125,000 TOTAL $ 5,680,480 CDBG ALLOCATION $ 5,680,480 SURPLUS /DEFICIT $ _ EXHIBIT 1 75A -3 75A-4 COMAUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM 75A -5 AGENCY: PROJECT NAME 0 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM Community Development Program Administration -CDBG AMOUNT REQUESTED: $ 664,576 The City is requesting funding for the administration and oversight of the CDBG program. 75A -6 a COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Community Development PROJECT NAME: Program Administration -HOME AMOUNT REQUESTED: $ 200,000 The City is requesting funding for the administration and oversight of the HOME program. Under the CDBG regulations CDBG funds may be used for the administration of the HOME program. 75A -7 u COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Community Development PROJECT NAME: Planning- Neighborhood Improvement AMOUNT REQUESTED: $ 200,000 The City is requesting funding to provide information and other resources to residents and citizen organizations participating in the planning, implementation, or assessment of activities being assisted with CDBG funds. [W'Q96� COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Orange County Fair Housing PROJECT NAME: Santa Ana Fair Housing Education, Counseling and Enforcement AMOUNT REQUESTED: $ 71,520 Orange County Fair Housing is requesting funding to provide fair housing education, counseling and enforcement services to current or potential Santa Ana households. Additionally landlord/tenant counseling will be provided to assist housing providers and consumers. The agency estimates that it will serve 990 households. 75A -9 a COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Planning and Building /City Attorney's Office PROJECT NAME: Code Enforcement AMOUNT REQUESTED: $ 1,300,000 Community Development Block Grant funds will support the salaries and benefits of Community Preservation personnel performing residential code enforcement activities in targeted areas of the city. Funding will also be used for salaries and benefits of city attorneys for the prosecution of cases. 75A -10 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Police Department PROJECT NAME: PAAL Program AMOUNT REQUESTED: $ 144,000 The program takes a three -step approach. The first step is to provide safe haven where youths can gather without the fear of violence or intimidation. At the haven, youths will be provided with an environment that enables them to study, complete homework, and to work on school projects. Youths will have access to computers, school supplies, educational materials, and private tutoring all at no cost. The focus is on academic achievement. Second, youths will have the chance to participate in recreational and educational field trips. These field trips concentrate on broadening the knowledge and social awareness of youths to opportunities they might not be cognizant of due to their socioeconomic status. Finally, the sport and athletic programs coached by police officers teach youths the importance of teamwork, sportsmanship, and the fact that police officers are humans sincerely interested in their development. This aspect of the program builds the bonds of trust and communication between youths and police officers. The CDBG funds would be used to increase the programs positive involvement in the community by adding services to approximately 1,100 aditional Santa Ana youth. This would be accomplished by opening a second SAPAAL facility in the Villa Del Sol apartment complex. This facility would serve approximatley 40 kids per day, Monday through Friday from 2:30 to 6:30 PM. Two part-time recreation coordinators would be hired with the CDBG funds to work at this facility and would provide an environment that enables them to study, complete homework, work on school projects and interact on a daily basis with police officers in a positive manner. 75A -11 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Police Department PROJECT NAME: HEART Program AMOUNT REQUESTED: $ 35,000 The Santa Ana Police Department recognizes that criminalization of homeless individuals is not the solution to this ever growing problem. While enforcement is definitely needed to maintain public safety, cleanliness and order in the Civic Center and surrounding area, it must be coupled with alternatives that will prevent the homeless person from having continuous contact with the police. Taking from HUD's Continuum of Care philosophy, the Santa Ana Police Department, and specifically the Civic Center Detail, seeks to create a program that will identify and determine individual needs, partner with entities that provide assistance to the homeless population, and then unite the two thereby providing a viable option for the homeless. The ultimate goal will be to provide a measureable program with its sight set on self - sufficiency for those desiring to escape homelessness. The Santa Ana Police Department's Homeless Evaluation/Assessment Response Team (HEART) will achieve this goal. This program will be established to provide long -term solutions beyond the short-term solutions offered through enforcement of laws and ordinances. This will occur by: • Identification of the homeless and understanding of individual needs • Identifying entities that can provide resources • Creating partnerships and providing referrals. • Program maintenance and management The Civic Center Detail is best suited for implementation of this program for several reasons. The officers provide service to this area seven days a week. The officers have been trained to treat each person with the respect and dignity they deserve and as such have built a good rapport within the Civic Center. Furthermore, the officers have the opportunity to contact the non -profit organizations that currently provide services to the homeless population. Lastly, many relationships with outside entities that can provide services already exist with the supervisors that oversee the Detail. Additionally funds will be used for a referral and service coordinator. 75A -12 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Police Department PROJECT NAME: GRIP Program AMOUNT REQUESTED: $ 1851000 This project is designed to provide sustainability of a suitable living environment by expanding intervention, prevention, and suppression programs aimed at reducing criminal activities of gangs. It utilizes a combination of prevention, outreach, probation checks, and arrests to deter the criminal activities of gangs and their members. The GRIP has previously determined what areas in the entire City qualify as low -mod by census tract. The neighborhood selected is one that is in a qualified census tract and one that the City constantly does projects in with other funds to help eliminate blight and reduce criminal activity. GRIP is a program that involves a collaboration of several agencies with the goal of preventing children from joining a criminal street gang. GRIP does not work with gang members, but target students 4th -8th grade students who are at -risk of joining a gang. There are many components of the GRIP program which are all implemented with the goal of preventing Orange County children from joining a criminal street gang. These components include educating parents, faculty and students about the negative impact of criminal street gangs and the signs that a child may be at -risk of joining a gang. GRIP also conducts curfew sweeps. These curfew sweeps are law enforcement operations which involve police officers targeting juvenile curfew violators on school nights. GRIP also conducts Truancy Sweeps. The Truancy Sweeps involve going to the home of chronically truant students and intervening with the students and their parents GRIP conducts Intervention meetings called Strike Team meetings. These are interventions with the minors and the parents of the minors that the GRIP schools have identified as being at -risk of joining a criminal street gang. At these intervention meetings, the parents are informed of their responsibilities under the law and parents and students are required to sign a behavior contract and are given the necessary resources to make positive changes. The GRIP program has several positive incentive programs in place to reward students who meet their goals set by the GRIP partners. The GRIP program also initiates and leads community Gang Prevention programs, including parent greeter and neighborhood watch programs. 75A -13 a COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Parks, Recreation, and Community Services Agency PROJECT NAME: Library Tutor Program AMOUNT REQUESTED: $ 258,072 The program provides free bilingual after- school homework help in all school subjects by providing tutoring to all Santa Ana students in grades K -12 at the two library sites (Main Library and Newhope Library) and Jerome Center. Tutors work with individual students to help them understand and complete homework assignments, as well as assisting students who are having difficulties with basic reading and math skills. The program provides: • Free homework help for all Santa Ana students (5 -12) • Qualified bilingual tutors; • Access to computers and the Internet to fill the technological gap between schools and homes; • Interactive academic enhancement through educational software; • Computer workshops on various topics, creative writing workshops, Buddy Programs, college and career guidance programs and mentoring opportunities 75A -14 0 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Parks, Recreation, and Community Services Agency PROJECT NAME: Project PRIDE AMOUNT REQUESTED: $ 150,000 The program will provide positive alternatives for youths through family and teen recreation and volunteer activities and provides opportunities for family member's to make meaningful contributions to their communities and helps them earn respect. The Family PRIDE clubs will participate in recreational excursions and four special events including a family picnic, family camp out, arts and crafts competitions and holiday dinner. During the grant year, Project PRIDE will coordinate Family PRIDE clubs at eight sites in Santa Ana. A total of 900 Santa Ana residents are estimated to be served. 75A -15 6 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Parks, Recreation, and Community Services Agency PROJECT NAME: Senior Meals AMOUNT REQUESTED: $ 80,000 The program will provide the following. Congregate Meals: Participants in the Senior Lunch Program will be provided a daily (Monday- Friday) hot nutritional lunch at 3 nutrition sites in Santa Ana. Locations: Southwest Senior Center Santa Ana Senior Center Vietnamese Community Center Participants will also be part of nutrition education on various senior health topics every quarter by our Dietician. Home Delivered Meals: Participants in the Home Delivered Meals program will receive 3 meals per day 5 days per week and case management services. Meals will be delivered by paid and volunteer drivers. Eligibility and case management services will be provided by CSS Case Managers. Participants will also have access to other services at no charge including in -home services, respite services, home safety equipment, and other resources. 75A -16 { COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Public Works Agency /Parks, Recreation, and Community Services Agency PROJECT NAME: Public Facility Improvements AMOUNT REQUESTED: $ 1,977,312 CDBG funding requested will be used to fund improvements of public facilities in CDBG eligible areas of the City that receive the highest priority based on the City's needs. Below is a list of the proposed projects for FY 12/13 • Neighborhood Streets • Maybury Park Lighting • El Salvador Park Wallcway • Windsor Park Wallcway • Centennial Park Rock Slope • Madison Park Community Garden 75A -17 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2011 -12 PROGRAM AGENCY: Paint Your Heart Out PROJECT NAME: Paint Day Santa Ana AMOUNT REQUESTED: $ 90,000 The purpose of Paint Day Santa Ana is to restore hope to low- income seniors and disabled homeowners by completing repairs, restoring and painting their homes, at no cost to homeowners. The program counters neighborhood blight and promotes community pride through volunteerism. PYHO's 500- member Paint Day Santa Ana volunteer army completes the home refurbishing work. Hundreds of volunteers will be recruited from the community to repair and refurbish 15 homes in the City of Santa Ana for low- income to moderate- income senior and /or disabled homeowners. The restoration of hope and revitalization of community takes place annually on Paint Day Santa Ana. Each home receives an average of $7,000 in exterior and landscape improvements. Specific services provided during the year to execute Paint Day Santa Ana include: 1) screening applicants on the waiting list, 2) outreach to the target neighborhoods for additional applicants, 3) meeting with community leadership to accomplish project goals, 4) training project volunteers, 5) securing resources to perform repairs, prep work and painting, 6) assessing all selected homes and creating work plans for each, 7) completing the prep and painting of 15 homes, an 8) recognizing volunteers and sponsors. Santa Ana residents will receive home restoration services for Paint Day that may include: 1) repairs around the house 2) replacing broken windows & locks 3) landscaping/tree trimming 4) garage door replacement/repairs 5) stucco repair and wood replacement 6) referral to CAPOC 7) handrails if needed 8) lead paint abatement 9) prepping and exterior painting 10) waste removal 11) other needed repairs as discovered Completed repairs will average $7,000 per house and will denote approximately $105,000 in Santa Ana community improvements 75A -18 { COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Community Development Agency PROJECT NAME: Single — Family Rehabilitation Loans AMOUNT REQUESTED: $ 200,000 Community Development Block Grant funds will support property owners in rehabilitating their personal residence. The purpose of the program is to stabilize and improve single - family owner occupied housing stock in the city. 75A -19 0 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM CITY OF SANTA ANA CITY AGENCY PROPOSAL FISCAL YEAR 2012 -13 PROGRAM AGENCY: Community Development Agency PROJECT NAME: Multi - Family Rehabilitation Loans AMOUNT REQUESTED: $ 125,000 Community Development Block Grant funds will support property owners in rehabilitating their rental property. The purpose of the program is to stabilize and improve multi - family rental housing stock in the city. Property owners must agree to set aside a portion of the rehabilitated units at an affordable rental rate for low- income households. 75A -20 REQUEST FOR COUNCIL/ SUCCESSOR AGENCY ACTION MEETING DATE: APRIL 2, 2012 TITLE: COOPERATIVE AGREEMENT BETWEEN CITY AND SUCCESSOR AGENCY, SUCCESSOR AGENCY ADMINISTRATIVE BUDGET AND COOPERATIVE AGREEMENT RESOLUTION .,0_.CITY MANAGER RECOMMENDED ACTION CITY COUNCIL 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 and authorize the City Manager and Clerk of the Council to execute the attached Cooperative Agreement with the City of Santa Ana, acting as Successor Agency to the former Community Redevelopment Agency of the City of Santa Ana (Successor Agency) for reimbursement of financial, administrative, and operational services, subject to non - substantive changes approved by the City Manager and City Attorney, and Oversight Board approval pursuant to Sections 34171(d)(1)(F) and 34178(a) of the Dissolution Act. SUCCESSOR AGENCY ACTION Approve and authorize the City Manager and Clerk of the Council to execute the attached Cooperative Agreement with the City of Santa Ana (City) for reimbursement of financial, administrative, and operational services, subject to non - substantive changes approved by the City Manager and City Attorney, and Oversight Board approval pursuant to Sections 34171(d)(1)(F) and 34178(a) of the Dissolution Act. 2. Adopt a resolution approving the Successor Agency's proposed Administrative Budget for February 1, 2012 through June 30, 2012 and authorizing the Successor Agency to enter into an agreement for reimbursement of financial, administrative and operational services, subject to Oversight Board approval pursuant Sections 34171 and 341770) of the Dissolution Act. Cooperative Agreement Between City And Successor Agency, Successor Agency Administrative Budget and Cooperative Agreement Resolution April 2, 2012 Page 2 DISCUSSION On January 9, 2012, City Council adopted Resolution No. 2012 -002 and designated the City of Santa Ana as the Successor Agency for the former Community Redevelopment Agency of the City of Santa Ana (Successor Agency), and the Housing Authority of the City of Santa Ana as the Successor Housing Agency pursuant to California Health and Safety Code Section 34176. On February 1, 2012, the former redevelopment agency was dissolved and the City assumed the role of the Successor Agency. Additionally, on March 1, 2012, the required Recognized Obligation Payment Schedule (ROPS) was prepared and posted on the City's website for the period covering January — June 2012, and received and filed by the Successor Agency on March 19, 2012. Further actions are now proposed in furtherance of ABX1 26, the Dissolution Act. Dissolution Act Section 341770), as modified by the Supreme Court's opinion in the matter of California Redevelopment Association, et al. v. Ana Matosantos, requires the Successor Agency to prepare a proposed "Administrative Budget" covering the period from February 1, 2012 through June 30, 2012 and submit it to the Oversight Board for approval. Pursuant to Section 341770), the Administrative Budget is to include the estimated amounts of the Successor Agency's administrative costs for the six -month fiscal period (first period is February 1, 2012 to June 30, 2012 based on reformed dates), the proposed sources of payment for the identified costs, and proposals for arrangements for administrative and operations services provided by the City to the Successor Agency. Attached is the proposed Successor Agency Administrative Budget (Exhibit 1) to be submitted to the Oversight Board of the Successor Agency for approval at their April 10 meeting. Following the Oversight Board action pursuant to Section 34177(k), the Successor Agency would then provide the administrative cost estimate from the approved Administrative Budget that are to be paid from the property tax revenues deposited into the Redevelopment Property Tax Trust Fund for the six month period through June 30, 2012 to the County of Orange Auditor - Controller. Additionally, to ensure provision of the necessary services from the City to support Successor Agency responsibilities in winding down the activities of the former redevelopment agency and under the proposed Administrative Budget, it is necessary that the City and the Successor Agency enter into an agreement (Exhibit 2) for reimbursement of costs incurred by City to support Successor Agency operations and obligations [pursuant to Sections 34171(d)(1)(F) and 34178(a) of the Dissolution Act]. This agreement is also subject to Oversight Board approval. FISCAL IMPACT California Health and Safety Code Section 34173(e) stipulates that "the liability of any successor agency, acting pursuant to the powers granted under the act adding this part, shall be limited to the extent of the total sum of property tax revenues it receives pursuant to this part and the value of x:11 Cooperative Agreement Between City And Successor Agency, Successor Agency Administrative Budget and Cooperative Agreement Resolution April 2, 2012 Page 3 assets transferred to it as a successor agency for a dissolved redevelopment agency." Thus, the City's obligations as Successor Agency are limited by the amount of property taxes and the value of assets it receives in its role as the Successor Agency. Nancy T. E ards Interim Executive Director Community Development Agency NTE /SG /mlr EXHIBITS: 1. Resolution 2. Cooperative Agreement �;117Ma ;� j i SUCCESSOR AGENCY RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ACTING AS SUCCESSOR AGENCY TO THE FORMER COMMUNITY REDEVELOPMENT AGENCY ADOPTING AND APPROVING THE SUCCESSOR AGENCY'S PROPOSED ADMINISTRATIVE BUDGET PURSUANT TO HEALTH AND SAFETY CODE SECTION 341770), AND AUTHORIZING THE SUCCESSOR AGENCY TO ENTER INTO AN AGREEMENT WITH THE CITY OF SANTA ANA FOR REIMBURSEMENT OF FINANCIAL, ADMINISTRATIVE AND OPERATIONAL SERVICES PURSUANT TO HEALTH AND SAFETY CODE SECTION 34171; AND MAKING OTHER FINDINGS IN CONNECTION THEREWITH BE IT RESOLVED BY THE MEMBERS OF THE SUCCESSOR AGENCY OF THE CITY OF SANTA ANA, AS FOLLOWS: Section 1. The City Council of Santa Ana, acting as Successor Agency, hereby finds, determines and declares as follows: A. The Community Redevelopment Agency of the City of Santa Ana ( "Agency ") was established as a redevelopment agency that was previously organized and existing under the California Community Redevelopment Law, Health and Safety Code Section 33000, et seq. ( "CRL "), and previously authorized to transact business and exercise powers of a redevelopment agency pursuant to action of the City Council of the City of Santa Ana ( "City "). B. Assembly Bill x1 26 added Parts 1.8 and 1.85 to Division 24 of the California Health & Safety Code, which laws cause the dissolution and wind down of all redevelopment agencies ( "Dissolution Act "). C. On December 29, 2011, in the petition California Redevelopment Association v. Matosantos, Case No. S194861, the California Supreme Court upheld the Dissolution Act and thereby all redevelopment agencies in California were dissolved as of and on February 1, 2012 under the dates in the Dissolution Act that were reformed and extended thereby ( "Supreme Court Decision "). D. The Agency is now a dissolved redevelopment agency pursuant to the Dissolution Act. E. By a resolution considered and approved by the City Council at an open public meeting the City chose to become and serve as the "Successor Agency" to the dissolved Agency under the Dissolution Act. The Housing Authority was designated the "Successor Housing Agency ", at said meeting as well. EXHIBIT 1 96117 M F. As of and on and after February 1, 2012, the City serves and acts as the "Successor Agency" and will perform its functions as the successor agency under the Dissolution Act to administer the enforceable obligations of the Agency and otherwise unwind the Agency's affairs, all subject to the review and approval by a seven - member oversight board ( "Oversight Board "). G. Health and Safety Code Section 341770), as modified by the Supreme Court decision, requires the Successor Agency to prepare a proposed administrative budget covering the period from February 1, 2012 through June 30, 2012 and submit it to the Oversight Board for approval. H. Pursuant to Section 341770), the Successor Agency's "Administrative Budget" is to include all of the following: (a) estimated amounts of the Successor Agency's administrative costs for the up- coming six month fiscal period; (b) the proposed sources of payment for the costs identified in (a); and (c) proposals for arrangements for administrative and operations services provided by the City serving as Successor Agency. I. Pursuant to Section 34180(h) the Successor Agency may request authorization from the Oversight Board for the Successor Agency and the City of Santa Ana to enter into an agreement to ensure provision of the necessary services from the City to support Successor Agency responsibilities in winding down the activities of the former community redevelopment agency, including the estimated costs set forth in the Administrative Budget. J. The Successor Agency desires to enter into that certain "Cooperative Agreement Between the City of Santa Ana and the City Acting as the Successor Agency for the Former Community Redevelopment Agency" ( "Cooperative Agreement "), which agreement will authorize the reimbursement of costs incurred by the City to support Successor Agency operations and obligations. K. Pursuant to the Dissolution Aci including those approved by this Resolution, business days pending any request for review and if the DOF requests review hereof, DOF request to approve the Oversight Board actiot reconsideration and the action, if subject to rE approved by DOF. the actions of the Oversight Board, do not become effective for three (3) by the Department of Finance ( "DOF "), will have 10 days from the date of its or return it to the Oversight Board for view by DOF, will not be effective until L. Health and Safety Code Section 34173(e) provides that "the liability of any successor agency, acting pursuant to the powers granted under the act adding this part, shall be limited to the extent of the total sum of property tax revenues it receives pursuant to this part and the value of assets transferred to it as a successor agency for a dissolved redevelopment agency." Thus, the City's obligations as Successor Agency are limited by the amount of property taxes and the value of assets it receives in its role as the Successor Agency. NOW, THEREFORE, BE IT RESOLVED BY THE SUCCESSOR AGENCY: ;117X, Section 2. The foregoing recitals are incorporated into this Resolution by this reference, and constitute a material part of this Resolution. Section 3. Pursuant to the Dissolution Act, the Successor Agency approves the proposed Administrative Budget, attached hereto as Attachment No. 1 and incorporated by this reference. Such approval is conditional upon approval of the Oversight Board. Section 4. Pursuant to the Dissolution Act, the Successor Agency is authorized to enter into the Cooperative Agreement with the City substantially in the form of the Agreement attached hereto as Attachment No. 2 and incorporated by this reference. Such approval is conditional upon approval of the Oversight Board. Section 5. Upon authorization of the Oversight Board, the Successor Agency shall transmit the Administrative Budget to the County Auditor - Controller. Section 6. The Clerk of the Council shall certify the adoption of this Resolution. �96117M { ADOPTED this day of April 2012. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Lisa E. Storck Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2012- to be the original resolution adopted by the City Council in its role as the Successor Agency on April _, 2012. Date: Maria D. Huizar, Clerk of the Council Materials to Follow: Attachments 1 and 2 for Exhibit 1 Proposed Administrative Budget x;11 . J �:ll1_dl--j COOPERATIVE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND THE CITY OF SANTA ANA ACTING AS THE SUCCESSOR AGENCY FOR THE FORMER COMMUNITY REDEVELOPMENT AGENCY FOR FINANCIAL, ADMINISTRATIVE, AND OPERATING SERVICES THIS COOPERATIVE AGREEMENT made and entered into this _ day of April 2012, by and between the City of Santa Ana, a charter city and municipal corporation, organized and existing under the laws of the State of California, hereinafter referred to as "City," and the City of Santa Ana acting as the successor agency for the former Community Redevelopment Agency of the City of Santa Ana, hereinafter referred to as "Successor Agency." RECITALS: A. The Community Redevelopment Agency of the City of Santa Ana ( "Agency ") was established as a community redevelopment agency that was previously organized and existing under the California Redevelopment Law, Health and Safety Code Sections 33000, et seq. ( "CRL "), and previously authorized to transact business and exercise the powers of a redevelopment agency pursuant to action of the City Council of the City. B. The Housing Authority of the City of Santa Ana is a housing authority and public body corporate and politic organized, existing, and operating pursuant to the California Housing Authorities Law, Health and Safety Code Sections 34200, et seq. C. Assembly Bill X1 26 added Parts 1.8 and 1.85 to Division 24 of the California Health and Safety Code, which laws cause the dissolution and wind down of all redevelopment agencies in California ( "Dissolution Act"). D. On December 29, 2011, the California Supreme Court upheld the Dissolution Act and thereby all redevelopment agencies in the State of California were dissolved effective February 1, 2012. E. By resolution considered and approved by the City Council at an open public meeting on January 9, 2012, the City chose to become and serve as the "Successor Agency" to the dissolved Agency under the Dissolution Act, and chose for its Housing Authority to become the "Successor Housing Agency ". All of the assets, properties, contracts, leases and records of the former Agency (except for most affordable housing assets) were automatically transferred by operation of law to the City acting as Successor Agency. F. As of February 1, 2012, the City serves as the Successor Agency and will perform its functions as the Successor Agency under the Dissolution Act to administer the enforceable EXHI3IT 2 obligations of the Agency and otherwise unwind the Agency's affairs, all subject to the review and approval by a seven member Oversight Board formed thereunder. City as Successor Agency is engaged in activities necessary and appropriate to winding down the activities of the former Agency's Merged Project Area consisting of six (6) project areas that were originally adopted and amended by ordinances of the City Council. G. Employees of the City will perform day -to -day administration and operation of the Successor Agency's duties and functions. Since the Agency was originally formed, and upon Successor Agency's effectiveness as of February 1, 2012, the City has provided and shall continue to provide services to the Successor Agency, including but not limited to administrative, accounting, auditing, planning, purchasing, engineering, legal, risk management, financial, clerical, record keeping, and other services necessary for the Successor Agency to carry out its responsibilities. H. The City and Successor Agency desire to affirm and' document an on -going cooperative arrangement regarding administrative, financial, and operational services and payment for services and goods by entering into a new contract whereby City agrees to provide operational and administrative services and Successor Agency agrees to pay City for the cost of said services to be provided by City for Successor Agency in an amount equal to the Successor Agency Administrative Budget prepared pursuant to Health and Safety Code Section 34177 0) and program and project expenses defined hereinbelow for each six -month fiscal period under the term of this Agreement, and approved by the Oversight Board. I. The parties agree and acknowledge that this Agreement is subject to Oversight Board review and approval and that the Oversight Board's actions shall not become effective for three business days, pending any request for review by the California Department of Finance ( "DOF "). If DOF requests review of the Board action, it shall have ten days from the date of its request to approve the Board action or return it to the Board for reconsideration, and the action, if subject to review by DOF, shall not be effective until approved by DOF. NOW THEREFORE, for and in consideration of their mutual covenants and promises, hereinafter set forth, and subject to the terms, conditions and other provisions of this Agreement hereinafter set forth, the parties hereto do hereby agree as follows: 1. Reimbursement of Administrative Expenses. The Successor Agency shall be liable to the City for the payment of its Administrative Expenses as set forth in this Agreement and as adopted as part of an Administrative Budget by the Successor Agency, as approved by the Oversight Board, as such Administrative Budget may be amended, revised or reconciled from time to time. These Administrative Expenses shall be in addition to any direct program or project expenses ( "Project Expenses ") incurred and noted on the Enforceable Obligations Payment Schedule (`BOPS ") and in the Recognized Obligation Payment Schedule ( "ROPS "), including salary and benefits of employees, and any contracts for goods and services funded by the Successor Agency for Project Expenses. The Successor Agency shall also be liable to the City for payment of these Project Expenses where they are adopted as part of the EOPS or ROPS. VA 2. Services to be Provided. City agrees to continue to aid and cooperate in the planning, undertalcing, construction and operation of remaining enforceable obligations of the Successor Agency previously incurred by the former Agency within the City, provided the cost of such services are paid by Successor Agency. At the request of Successor Agency through the City Manager and duly authorized designees, City and its officers and employees shall perform services for Successor Agency in carrying out its work related to meeting the former Agency's enforceable obligations and for winding down the activities of the former Agency and shall have the access to any and all personnel, equipment, necessary and applicable contracts and consultant agreements, goods and the facilities of the' departments and offices of the City. Those City officers and employees who are also performing work with or related to the Successor Agency shall perform services for each agency in a dual capacity. The City Manager, and other appropriate City officials on behalf of the City, and the Executive Director of the former Agency, and other appropriate Successor Agency staff on behalf of the Successor Agency, and their duly authorized designees shall determine and establish the procedures to be followed in requesting and rendering such services. The costs of administrative services shall be considered Administrative Expenses in the Administrative Budget. The costs of other Successor Agency Project Expenses which are supported by City services are identified in line items on the EOPS or ROPS and not part of the estimated Administrative Expenses identified in Section 1. 3. Meeting Facilities. City agrees to make available to Successor Agency which office space and meeting space as is necessary for conducting meetings and the business of such agency, including use of the City Council Chambers, City Hall and appropriate conference room(s) for open public meetings, closed session meetings, and study session meetings of the Successor Agency and Oversight Board, and meetings of Successor Agency staff, counsel, consultants, and other representatives. Each entity shall use such space in accordance with the rules and regulations of the City as applicable to other buildings and offices of the City. 4. Succeeding Years during Term of Agreement The procedure set forth herein shall be undertaken by Successor Agency, the Oversight Board, and City for each successive six -month fiscal period during the term of this Agreement based on each approved Administrative Budget and ROPS prepared pursuant to the Dissolution Act. 5. City Cost Allocation Plan; Estimated Cost of Administrative Services and Facilities Expenses shall be calculated in the manner set forth in the City's cost allocation plan, or other applicable reasonable cost allocation and accounting plan approved by the parties that conforms with generally accepted accounting principles and that is generally applicable to all users of services and facilities of the City. The specific costs to be allocated herein shall be based upon the cost of the following categories of services: 5.1 Wage and Benefits Successor Agency. Wage and Benefit expenses incurred in connection with City employees described to perform administrative services or certain work for Successor Agency associated with "Project Expenses" (related to enforceable obligations), include salaries, wage and fringe benefit administration (including, but not limited to, medical and 3 life insurance, retirement system, vacation and sick leave provisions). The Successor Agency shall follow the City's Personnel Policy and labor contracts, rules and regulations, including procedures affecting conflict of interest, use of funds and procedures on hiring and firing. The costs attributable to employees who devote less than 100% of their time to the Successor Agency shall be allocated in accordance with the City's costs allocation plan. 5.2 General Overhead. A general indirect administrative operating expense and overhead support charge which shall be determined in accordance with the City's cost allocation plan and Successor Agency's Administrative Budget. 5.3 _Specific Services. All expenses that City may actually incur in providing specific administrative services on behalf of Successor Agency include, but are not limited to: audit services, lease of space to accommodate Successor Agency's activities, City Treasurer service, property insurance for Successor Agency's properties, contracts for real estate, data and information, records, department supplies and equipment, mail and postage services, equipment maintenance and IT support. Operational services which relate to specific program and projects, including but not limited to project management, legal services, engineering design, real estate services, construction management, planning, contract costs, contract administration, inspection, surveys shall not be considered administrative services but direct specific program and project expenditures ( "Project Expenses "). 6. Provisions Severable. If any provision of this Agreement or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Agreement which can be given effect without the invalid provision or application, and to this end the provisions of this Agreement are severable. The City Council and Successor Agency each hereby declare that it would have approved this Agreement irrespective of the invalidity of any particular portion thereof. 7. Effective Date of Agreement. This Agreement shall become effective as of the first day noted above and shall continue thereafter until modified or terminated by the parties hereto. This Agreement is subject to Oversight Board review. 8. Miscellaneous Provisions A. Brown Act. The Successor Agency meetings are noticed, open and public as required by the Ralph M. Brown Act (Government Code section 54950, et seq., as amended). B. Public Records Act. The Successor Agency complies with the Public Records Act (Government Code section 6250, et. seq, as amended) and unless a records clearly falls within an exception, such records are made available to the public in compliance with the City's policies and procedures. �9* j 1 C. Political Reform Act. The Successor Agency board members comply with the conflict of interest rules promulgated by the Political Reform Act in conformity with State law[Government Code Section 87300, as amended]. D. CEQA Guidelines. The Successor Agency shall follow City policies and procedures with regard to CEQA. E. Governing 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. F. Amendment. This Agreement may be amended as the parties hereto may mutually agree by an instrument in writing executed by the parties hereto. G. Newspaper of General Circulation The Successor Agency shall follow City policies and procedures as to designation of the newspaper of general circulation which will be used when the Successor Agency is required to give notice regarding matters within the community (Government Code Section 6040, as amended). H. Review of Bond Document Covenants The Successor Agency has established a routine audit and control procedure that ensures that the Successor Agency's ongoing activities comply with the bond document covenants. IN WITNESS WHEREOF, the parties hereto have executed this Cooperative Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph Straka Interim City Attorney /General Counsel By: Lisa E. Storck Assistant City Attorney /Asst. Counsel CITY OF SANTA ANA By: Paul Walters Interim City Manager CITY AS SUCCESSOR AGENCY By: Paul Walters Interim City Manager RECOMMENDED FOR APPROVAL: By: Nancy T. Edwards Interim Exedutive Director Commupity Development Agency