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FULL PACKET_2012-05-21
MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA MAY 7, 2012 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 5:08 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tem P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO (5:15 p.m.) COUNCILMEMBERS Absent: NONE STAFF Present: PAUL M. WALTERS, Interim City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS -None COUNCIL RECESSED to Room 147 for Closed Session discussion at 5:09 p.m. CLOSED SESSION ITEMS -The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matters will prejudice the position of the City in existing and anticipated litigation: 1A CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) Robert Mendoza vs City of Santa Ana, WCAB Case # ADJ6965479, et al (WC Claim # 83000047; 09-4926; 09-4979); Case Settlement Request. CITY COUNCIL MINUTES MAY 7, 2012 1OA-1 Santa Ana California Lodge. LLC v. City of Santa Ana Orange County Case No. 30-2012-00556147 1 B CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6 Agency Negotiators: Personnel Services Executive Director, Ed Raya Employee Organizations: Santa Ana Police Management Association (P MA) CLOSED SESSION REPORT -See Item 19A. for Report. ADJOURNED THE CLOSED SESSION MEETING AT 5:35 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 2 MAY 7, 2012 10A-2 REGULAR OPEN SESSION CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:00 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tem P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: None PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS STAFF Present: PAUL M. WALTERS, Interim City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council Mayor Pulido Tom Jones, Police Chaplain CERTIFICATE OF RECOGNITION presented by MAYOR MIGUEL PULIDO and COUNCILMEMBER MICHELE MARTINEZ to Santa Ana College Wrestler Jesse Ruiz, born and raised in Santa Ana, who has officially qualified for the 2012 London Olympics. CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER DAVID BENAVIDES to Chapter One Restaurant owners Jeff Jensen, Jeff Hall and Tim O'Connor for their community support and outreach efforts. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER DAVID BENAVIDES to Carr Intermediate School Teacher Dana Kassaei for her dedication to her students and sponsoring a successful 2012 8th Grade Washington, D.C. trip and to Carr Intermediate School student Keila Bustamante for her determination to improve in school and successfully fundraising to attend the Washington, D.C. trip. CITY COUNCIL MINUTES 3 MAY 7, 2012 10A-3 CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER CARLOS BUSTAMANTE to the Discovery Science Center for their leadership in providing inter- active science exploration activities, accepted by Joe Adams CERTIFICATES OF RECOGNITION presented by COUNCILMEMBERS CARLOS BUSTAMANTE and MICHELE MARTINEZ to the Mater Dei Boys and Girls Basketball Teams for winning the 2012 CIF Championships. Bovs Team Pierre Aguirre Elijah Brown Joshua Cook Austin DiCambio William Fay Stanley Johnson II Xavier Johnson Noah Ghods Troy Kramer James Kobayashi James McGee Brennan Merchant- Clarke Christopher Nealey Charlie Noebel Katin Reinhardt Matthew Seatter Mario Soto Eli Stalzer Alessandro Stecca Jordan Strawberry Anthony Taormina Andrew Tisdale Wakim Wakim Bovs Head Coach Gary McKnight Assistant Coaches Andy Foster Max Hoskins Bob Serven Sean Steveson Girls Team: Jordan Adams Cheyenne Allen Madison Bartyczak Allison Brown Emily Crum Dominique Culhno Kelsey Dalton Nirra Fields Margaret Frazier Nicole Guzman Khalia Lark Kau'ilani Miki-Han Alexas Williamson Amy Ogren Jaidyn Ondrejik Kaija Powell Andree Velasco Bianca Velasco Girl's Head Coach Kevin Kiernan Assistant Coaches Pete Bonny Alicia Komaki Sean McKeever PROCLAMATIONS presented by COUNCILMEMBER MICHELE MARTINEZ to Will Kempton, Orange County Transportation Authority CEO, in recognition of "National Bike to Work Week" and to Pauline Chow, Regional Policy Manager for Safe Routes to School, in recognition of "National Bike to School Day". CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER MICHELE MARTINEZ to the Healthy Schools Campaign "Cooking Up Challenge" event winners: 1 st Place team Alejandro Hernandez Ivan Lopez Team Captain, Ashley Blanco 2nd Place team Mary Lopez Cecilia Magana Team Captain, Carlos Ortiz 3rd Place Eloy Nieves Christian Soto Team Captain Elizabeth Duarte CITY COUNCIL MINUTES 10A-4 4 MAY 7, 2012 PROCLAMATION presented by COUNCILMEMBERS VINCENT SARMIENTO and MICHELE MARTINEZ to Francine Harris in recognition of Older Americans Month. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBERS SAL TINAJERO and MICHELE MARTINEZ recognizing City Youth Sports Basketball Program championship teams: Division C Team Heat Ramy Alhawari Ethan Becerra Andrew Contreras Noel Gallegos Christopher Garcia Victor Garcia Erick Lopez Luis Moran Adan Sodora Nathaniel Villa Nathaniel Zamudio Di B vision Tearn Celti cs Josh Becerra Carrera Pektra Monh Verak Monh Steven Nunez Jordan Rea Adam Salguero Jason Vilkinson CLOSED SESSION REPORT - City Attorney Carvalho announced reportable actions by the City Council and is included under Agenda Item 19A. AGENDA ITEM TAKEN OUT OF ORDER 75B PUBLIC HEARING - APPEAL NO. 2012-01 (HISTORIC RESOURCES COMMISSION APPLICATION NO. 2012-01 AND HISTORIC REGISTER CATEGORIZATION NO. 2012-01) FOR THE SEXLINGER PROPERTY LOCATED AT 1584 EAST SANTA CLARA AVENUE- Planning and Building Agency Recommended Action approved by the Planning Commission on April 51 2012 by a 5-2 vote (Christy and Yrarrazaval opposed, O'Callaghan absent). Legal Notice published in the O.C. Reporter on April 27, 2012 and notices mailed on April 26, 2012. Mayor suggested a continuance, to review correspondence received on the matter. No development issues pending, thus no issuance of permits during the 30 days. CITY COUNCIL MINUTES 5 MAY 7, 2012 1OA-5 MOT/ON: Continue consideration of matter to the June 4, 20'12 City Council Meeting. MOTION: Bustamante SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (O) ABSTAIN: None (O) ABSENT: None (O) PUBLIC COMMENT • Randall An, concerned with pending sale of Santora Building to church and their proposed use of the building; urged the City Council to hold vision for the area and not limit the arts movement; served on original Artist Village Task Force. • S. Keith DeWine, opined that artist movement has contributed to the revitalization of the area; area should continue to have vision to make global difference in the arts. • Stephen Anderson, proposed 300 seat auditorium at Santora Building by church would impact parking, traffic and business in the area. • Tixoc Ventura, (spoke in Spanish) thanked the City Council for not contracting out library services; commented on presentations earlier in the evening that highlight the accomplishments of the community's youth. • Alberto Marin, (spoke in Spanish), requested assistance with neighborhood issues in the Bristol/Edinger area. • Irma Macias, commented on neighborhood issues, including, drinking in public areas and trash. • Matthew Barrios Southgate, artist at Santora Building, opposed to the sale of Santora Building to a church; expressed safety concerns and requested that surveillance video, security guards, and fire sprinklers be addressed. • Theo Hirsch, asked if any preaching would take place at the Santora Building if purchased by the church. • Alicia Rojas of United Artist of Santa Ana, concerned with possible breach of contract on regulations to the Santora Building with the Redevelopment Agency; requested an extension of contract to have building remain as is; presented petition signed by more than 800 individuals that support efforts by the students and college. • John Von Szelisky, concerned with change and function of building if church renovates, and potential parking issues; noted that Santora Building is on the National Historic Registry and an architectural pride. • Charles Hart, spoke on Item 55A, concerned with proposed ordinance to repeal campaign contribution regulation; supports existing ordinance, opined that standards need to be upheld and provide for more accountability. CITY COUNCIL MINUTES MAY 7, 2012 1OA-6 • Debbie Friedman, President of the Friends of the Santa Ana Zoo, noted that organization applied for and received a grant in the amount of $75,000 to repair walkways; project has been completed; also Zoo has been re-accredited by the AZA; also, "Party for the Planet" event was great success. • Jorge Garcia, concerned with proposed ordinance to repeal campaign ordinance; should be leaders in campaign reform. • Antonio Bugarin of SACReD, (spoke in Spanish), resident of Lacy neighborhood, supports sunshine ordinance and opposed to repeal of campaign contribution ordinance. • Juan Carlos Madeco of SACReD, spoke on need for more transparency in local government; Ethics Committee to consider proposal and concerned with repeal of campaign contribution ordinance proposed. • Rob Cook, proposed that City Council not repeal campaign contribution ordinance, but instead impose the restriction for 12-months. • Leanna Galvan, urged the City Council continue arts programs since school cutting back; drive innovation in the City. • Desi Reyes, invited all to attend the 3?d Annual Harvey Milk Day event taking place in Downtown Santa Ana from 12-9 p.m. over the Memorial Day weekend. • Alfredo Amezcua, spoke on campaign contribution ordinance; suggested that Ethics Committee review the matter and proposed the City Council establish an Ethics Commission. • Jeff Dickman, concerned with need to repeal campaign contribution ordinance. Mayor Pulido established an Ad Hoc Committee comprised of Councilmembers Benavides, Bustamante and Martinez to address some concerns conveyed with the purchase of the Santora Building. Mayor Pro Tem Alvarez noted that Artist Village has been in community a long time; opposes a church moving into the Santora Building; inquired if restrictions on building known to the potential buyer; encouraged residents to meet with any of the councilmembers on the matter. Councilmember Bustamante, success of Downtown well known; important to maintain the vision for the area; expressed having conditions in perpetuity. Councilmember Martinez, noted that all parties involved need to understand zoning/land use, planning and building restrictions. Planning and Building Executive Director Jay Trevino explained that Santora Building has a National designation with strict regulations - character of building and exterior/interior need to be preserved, and currently zoned for office and retail uses; changes would have significant implications. Councilmember Sarmiento, would like to revise Arts Council and preserve intent of building; City Council has limited authority on sale, but would like to continue momentum of Artist Village; directed the City Attorney to research covenants or restrictions that could be embedded; buyer to review facade easement that may prevent auditorium. CITY COUNCIL MINUTES 7 MAY 7, 2012 10A-7 Councilmember Benavides, Artist Village helping image of City; City has committed funds to the area; will be meeting with prospective buyer and artist to discuss the issues. CONSENT CALENDAR ITEMS MOT/ON: Approve Consent Calendar Items 10A through 29C with the following modifications: • Mayor Pulido noted that there was a change on Item 22D. Pursuant to Gov. Code Section 54954.2(b), there was a need to change the recommended action, as listed on Agenda Item, that arose subsequent to the posting of the Agenda. The contractor withdrew their bid, thus, City staff recommends award to second lowest qualified bidder, GovPlace Corp. in the amount of $49,600. (Required five affirmative votes.) Change was considered as part of Consent Calendar. • Mayor Pro Tem Alvarez voted "No" on Item 19C; and • Councilmembers Martinez and Sarmiento abstained on Item 25C due to a campaign contribution. MOTION: Benavides SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (O) ABSTAIN: None (O) ABSENT: None (O) Items removed for Separate acton?or:modifi?d are ,higfalyighted Separate actions show the' actual ,vote. "Items "without emotes are adopted as part of #h'e consent r-notio?'; ADMINISTRATIVE MATTERS MINUTES 10A MINUTES OF THE REGULAR MEETING OF APRIL 16, 2012 -Clerk of the Council Office MOT/ON: Approve Minutes. CITY COUNCIL MINUTES 8 MAY 7, 2012 10A-8 MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT -City Attorney's Office MOT/ON: Approve as follow: Robert Mendoza vs City of Santa Ana, WCAB Case # ADJ6965479, et al (WC Claim # 83000047; 09-4926; 09-4979); Approve a Compromise and Release Settlement Agreement in the amount of $70,000. Santa Ana California Lodge. LLC v. City of Santa Ana Orange County Case No. 30-2012-00556147; Council provided staff direction. 19B EXCUSED ABSENCES -None 19C DESTRUCTION OF OBSOLETE CITY RECORDS -City Manager's Office MOT/ON: 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 Po Tem Alvarez voted "No" on Item 19C. 19D QUARTERLY REPORT OF CONTRACTS ENTERED INTO BY THE CITY MANAGER -Finance & Management Services MOT/ON: Receive and file the Quarterly Report of Contracts entered into between January 1, 2012 to March 31, 2012 valued at $25,000 and less. 19E REQUEST FOR PROPOSALS - PARKING MANAGEMENT PLAN AT SARTC -Public Works Agency MOT/ON: Authorize the Public Works Agency to issue a Request for Proposals for a parking management plan at the Santa Ana Regional Transportation Center. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A APPROPRIATION ADJUSTMENT ACCEPTING PROPOSITION 69 DNA FUNDING -Police Department CITY COUNCIL MINUTES 9 MAY 7, 2012 10A-9 MOT/ON: Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2012-167 - Recognizing Prop-69 DNA reimbursements funds of $16,365 into Police Special Revenue account and appropriate same into the Police Department Special Revenue -General Account expenditure account for the reimbursement cost associated with the collection of DNA collection in the amount of $16,365. SPECIFICATIONS -PURCHASE OF EQUIPMENT AND SERVICES MOT/ON: Award in accordance with Request for Council Action. (Items 22A through 22D) 22A SPEC. N0.08-066 -OFFSET PRINTING SERVICE -Renew the contract with Anytime Printing fora one-year period in an annual amount not to exceed $80,000 -Finance & Management Services 226 SPEC NO. 12-015 - VARIABLE FREQUENCY DRIVES AND MOTOR CONTROL CENTER UPGRADES -Award contracts with provision for two one-year renewals in an annual aggregate amount not to exceed $200,000 with the vendors listed below (Public Works Agency) -Finance & Management Services Vendor Location Carter Industrial, Inc. Los Alamitos Academy Electric, Inc. Orange F.M. Electric, Inc. Rancho Cucamonga 22C SPEC. NO. 12-011 -MISCELLANEOUS PLUMBING SUPPLIES -Award contracts for aone-year period, with provision for four, one-year renewals, in an annual aggregate amount not to exceed $120,000 with the vendors listed below -Finance & Management Services Vendor Location Ferguson Enterprises, Inc. Pomona Irvine Pipe & Supply, Inc. Santa Ana Plumbing & Industrial Supply Fullerton Smardan Supply Co. Fountain Valley 22D SPEC NO. 12-027 - HP STORAGE EQUIPMENT -Award a contract to GovPlace Corp in an amount not to exceed $49,600 - Finance & Management Services ' CITY COUNCIL MINUTES 10 MAY 7, 2012 1OA-10 PROJECTS/CHANGE ORDERS 23A CONTRACT AWARD WITH GREENLAND CONSTRUCTION, INC. FOR PLAZA SANTA ANA (PROJECT NO. 127532, NON-GENERAL FUND) - Public Works Agency, Community Development Agency and Parks, Recreation, and Community Services Agency MOT/ON: 1. Award a contract to Greenland Construction, Inc., the lowest responsible bidder, in the estimated amount of $180,967 for construction of the Plaza Santa Ana project. 2. Approve a Funding Analysis with a total estimated construction cost of $226,165. AGREEMENTS MOT/ON: 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 25H) 25A AGMT NO. 2012-083 - HISTORIC PROPERTY PRESERVATION AGREEMENT NO. 2011-06 -With Jerome Morin, property owner, for the structure located at 932 North French Street (Rutan House) - Planning and Building Agency 25B AGMT NO. 2012-084 - HISTORIC PROPERTY PRESERVATION AGREEMENT NO. 2012-01 - With Jose Luis Correa and Maria Esther Reynoso for the structure located at 2335 N. North Park Boulevard (Emison Georgieff House) -Planning and Building Agency 25C AGMT NO. 2012-085 - HISTORIC PROPERTY PRESERVATION AGREEMENT NO. 2012-02 -With Alfonso G. Cordero for Corbiz LLC for the structure located at 207 West Second Street (Southern Counties Gas Company) -Planning and Building Agency ?Councilmembers Martinez and Sarmiento abstained due to a conflict of interest -campaign contribution. CITY COUNCIL MINUTES 11 MAY 7, 2012 10A-11 25D COOPERATIVE AGREEMENTS - FUNDING ALLOCATIONS FOR THE HOUSING OPPORTUNITIES FOR PERSONS WITH AIDS PROGRAM FISCAL YEAR 2012-2013 -Community Development Agency Recommended Action approved by the Community Redevelopment and Housing Commission on April 17, 2012 by a 6-O vote (Reyes absent). • AGMT NO. 2012-086 -With the County of Orange Health Care Agency in an amount of $902,159 fora one-year term to provide supportive housing services to HIV/AIDS individuals in the County of Orange • AGMT NO. 2012-087 -With the City of Santa Ana and the Housing Authority of the City of Santa Ana in the amount of $600,000 for aone- year term for the implementation of the Housing Opportunities for Persons with AIDS Tenant-Based Rental Assistance Program 25E AGMT NO. 2012-088 -AMENDMENT - STEP 2 AND STEP 3 WORK FOR THE SANTA ANA-GARDEN GROVE FIXED GUIDEWAY PROJECT (PROJECT 126766, NON-GENERAL FUND) -Execute an amendment to the cooperative agreements with the Orange County Transportation Authority (OCTA), to reallocate $488,000 in funding from Step 3 Preliminary Engineering to Step 2 Environmental Analysis for the Santa Ana-Garden Grove Fixed Guideway Project -Public Works Agency 25F DEMOLITION SERVICES FOR CAPITAL IMPROVEMENT PROGRAM (CIP) PROJECTS (NON GENERAL FUND) -Public Works Agency AGMT NO. 2012-089 - With J & G Industries Incorporated in an amount not to exceed $400,000. • AGMT NO. 2012-090 -With American Wrecking Incorporated in an amount not to exceed $400,000. 25G AGMT NO_ 2012-091 - RIGHT-OF-WAY FOR THE AT-GRADE RAIL SAFETY ENHANCEMENT PROJECT -Execute an acquisition settlement agreement with Evans Roofing Company, Inc. in the amount of $285,000 for the property at 1101 E. Chestnut -Public Works Agency MISCELLANEOUS -BUDGET 29A 2010-2011 ANNUAL ACTION PLAN SUBSTANTIAL AMENDMENT - NEIGHBORHOOD STABILIZATION PROGRAM 3 (NSP3) TARGET GEOGRAPHY AREA -Community Development Agency CITY COUNCIL MINUTES 12 MAY 7, 2012 10A-12 Recommended Action approved by the Community Redevelopment and Housing Commission on April 3, 2012 by a 6-O vote (Bist absent). MOT/ON: Approve a substantial amendment to the 2010-2011 Annual Action Plan expanding the NSP3 Target Geography Area and authorize its submittal to the U. S. Department of Housing and Urban Development. 29B CONSOLIDATED PLAN ANNUAL UPDATE AND SUBSTANTIAL AMENDMENT TO THE 2011-2012 ACTION PLAN - Community Development Agency Recommended Action approved by the Community Redevelopment and Housing Commission on April 17, 2012 by a 6-O vote (Reyes absent). MOT/ON: Approve the Consolidated Plan Annual Update and authorize its submittal to the U. S. Department of Housing and Urban Development. 2. Approve the Substantial Amendment to the 2011-2012 Action Plan and authorize its submittal to the U. S. Department of Housing and Urban Development. 29C SUBSTANTIAL AMENDMENTS TO THE 2010-2011 AND 2011-2012 ANNUAL ACTION PLANS ADDING THE FORECLOSED HOMES ACQUISITION PROGRAM AND AMENDMENT TO CONTRACT WITH ANR SANTA NSP, LLC -Community Development Agency Recommended Action approved by the Community Redevelopment and Housing Commission on April 3, 2012 by a 6-O vote (Bist absent). MOT/ON: 1. Approve the Foreclosed Homes Acquisition Program and authorize the Executive Director of the Community Development Agency to execute all necessary documents. 2. Approve a substantial amendment to the 2010-2011 Annual Action Plan approving the use of HOME funds for the Foreclosed Homes Acquisition Program and authorize its submittal to the U. S. Department of Housing and Urban Development. 3. Approve a substantial amendment to the 2011-2012 Annual Action Plan approving the use of HOME and CDBG funds for the CITY COUNCIL MINUTES 13 MAY 7, 2012 10A-13 Foreclosed Homes Acquisition Program and authorize its submittal to the U. S. Department of Housing and Urban Development. 4. Authorize the City Manager and the Clerk of the Council to execute an amendment to the NSP2 Program Grant Services Agreement subject to nonsubstantive changes approved by the City Manager and City Attorney. AGMT NO. 2012-092 -Execute an amendment with ANR Santa Ana NSP, LLC in an amount not to exceed $5 million plus program income. ??END OF CONSENT CALENDAR'" BUSINESS CALENDAR ITEMS ORDINANCES/FIRST READING 50A REPEAL ORDINANCE NO. NS-2304 REGARDING CAMPAIGN CONTRIBUTIONS -City Manager's Office MOT/ON: Continue consideration of matter to the June 4, 2012 City Council Meeting. MOTION: Martinez SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (O) ABSTAIN: None (O) ABSENT: None (O) PUBLIC HEARINGS 75A PUBLIC HEARING - COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FISCAL YEAR 2012-2013 -Community Development Agency Legal Notice published in the Orange County Register on March 19, 2012_ CITY COUNCIL MINUTES 14 MAY 7, 2012 10A-14 Public hearing opened and closed on April 2, 2012; Continued from the April 2, 2012 City Council meeting by a vote of 6-O (Pulido absent). Continued from the April 16, 2012 City Council meeting by a vote of 7-O Councilmember Martinez commented on selection process. MOT/ON: 1. Approve the proposed Fiscal Year 2012-2013 Community Development Block Grant Program. 2. AGMT NO. 2012-093 - Execute memorandums of understanding with city departments and agreements with nonprofit agencies awarded funds as part of the approved program. MOTION: Martinez SECOND: Alvarez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (O) ABSTAIN: None (O) ABSENT: None (O) 75B AGENDA ITEM TAKEN OUT OF ORDER THE CITY COUNCIL MEETING RECESSED AT 8:36 P.M. TO THE HOUSING AUTHORITY MEETING, FOLLOWED BY THE SUCCESSOR AGENCY MEETING; THE CITY COUNCIL MEETING RECONVENED AT 8:37 P.M. WITH SAME MEMBERS PRESENT. COMMENTS 90A CITY MANAGER'S COMMENTS -None CITY COUNCIL MINUTES 15 MAY 7, 2012 10A-15 90B CITY COUNCILMEMBER COMMENTS Councilmember Tinajero: • Commented that the City Council showcased some of the accomplishments throughout the community (during the presentations portion of the meeting); proud of all; • Directed the Clerk of the Council to schedule a Special Meeting of the Ethics Committee on June 7t" to discuss proposed sunshine ordinance as prepared by SACReD; • Recognized Harvey Contreras, President of Valley Little League for going above-and-beyond the call of duty; have held several free community events; thanked for selflessness; • Recalled the City's determination to bring the Discovery Science Center to the city of Santa Ana; great addition to the City as well as the Artist Village. Councilmember Benavides: • Thanked speakers for their attendance and community representation; • "Cinco de Mayo" and Art Walk events over the weekend successful; • Congratulated, thanked and wished all a "Happy Mother's Day" and "Feliz Dia de Las Madres". Councilmember Sarmiento: • Reiterated comments made earlier on the Discovery Science Center; had record breaking exhibit on Star Wars; • Noted that outsourcing of the Santa Ana Zoo possibility; if so, would be handled through Request for Proposal process; • City recently held event commemorating the symbolic birthplace of Little Saigon; • Thanked speakers that spoke on Santora Building; and • Wished all a Happy Mother's Day. Councilmember Martinez: • Asked Police Chief Walters to talk about Peace Officers Memorial event held over the weekend. Chief Walters noted that Sergeant John Aguilar will be inducted into the Memorial in Sacramento; • Invited all to attend the Health and Fitness Fair on May 19?h at Godinez High School; • Suggested that Ethics Committee consider the proposed repeal of the campaign contribution ordinance; • Noted that City has made significant strides in the area transparency; SACReD and OCCCO have proposed sunshine ordinance; • Paid tribute to her mother and wished all a Happy Mother's Day. Councilmember Bustamante: • Congratulated Mater Die on basketball championships; CITY COUNCIL MINUTES 16 MAY 7, 2012 10A-16 • Commented that recent home refurbishing's have caused copper to be stolen from homes; thanked the Police Department for apprehending suspects; • Wish all Happy Mother's Day; and • Requested that meeting be adjourned in memory of his neighbor Howard Hughett. Mayor Pro Tem Alvarez: • Attended Habitat for Humanity home building event on Saturday, May 5th; recognized National Women Build Week; Habitat will host several events throughout the community; • "Cinco de Mayo" event brought over 200,000 people to the Downtown area; was great success; • Thanked mother for support over the years and wished all a Happy Mother's Day. Mayor Pulido: • Adjourned meeting in memory of Howard Hughett. ADJOURNED: - 9:10 P.M. -The next meeting of the City Council is scheduled for Monday, May 21 , 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 Police Community Room, 60 Civic Center Plaza, Santa Ana. California. Adjourned in Memory of Howard Hughett Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES 17 MAY 7, 2012 10A-17 10A-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING SUPPLEMENTAL LAW ENFORCEMENT SERVICES FUNDS (SLESF) FUNDING C CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1St Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Approve the appropriation adjustment recognizing Supplemental Law Enforcement Services Funds $255,328 into Police Grant Revenue account (account no. 12814002-52026) and appropriate same into the Police Department Grant expenditure account (account no.12814407- 61040) for gang enforcement and special operations overtime in the amount of $255,328. DISCUSSION The State of California provides grant funding to State law enforcement agencies through the Supplemental Law Enforcement Services Fund (SLESF). The grant requires that funding be allocated to counties and cities in accordance with specific requirements for front-line law enforcement services. Front line law enforcement typically includes community oriented policing projects and special law enforcement activities that require use of additional police officers in specially targeted saturation areas. Total funding allocation is based on annual estimated population figures for respective counties and cities. During FY 2011-12 the City received $255,328 of SLESF funding and approval of this appropriation adjustment will provide for additional overtime resources to assist with our front-line law enforcement efforts. FISCAL IMPACT Approval of the appropriation with the acceptance of SLESF funds in the City's Police Grants Revenue Account (account no. 12814002-52026) in the amount of $255,328, will increase the same into the Police Department Grant expenditure overtime account (account no. 12814407- 61040). APPROVED AS TO FUNDS AND ACCOUNTS: Paul M. Walters Francisco Gutierrez ,,,4 Chief of Police Executive Director I r Police Department Finance & Mngmt. Services Agency 20A-1 20A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: CONTRACT AWARD FOR TROPHIES, PLAQUES, AND AWARDS (SPEC 12-034) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15t Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Award contracts for the purchase of trophies, plaques, and awards for a one-year period, with provision for two, one year renewals, in an aggregate amount not to exceed $45,000 with the following vendors: Vendor Location Suburban Custom Awards & Framing Decatur, GA Golden Trophy Westminster, CA Crown Trophy Cypress, CA Players Choice Santa Ana, CA DISCUSSION The Parks, Recreation and Community Services Agency's sports and youth guidance programs require trophies, medals, and plaque awards to recognize participants for their achievements in various events throughout the year. In addition, other agencies require plaque awards to recognize outstanding employees and citizens of the community. The contract for trophies, plaques and awards is designed to provide quality products with prompt delivery, at significant savings based on quantity pricing. To help ensure that all necessary items are available when required, staff recommends awarding a contract to four vendors. The notice inviting bids was advertised on April 12, 2012, and bids were solicited. A summary of the bid invitations and bids received is as follows: 5 Invitations for Bid emailed 1 Invitation for Bid emailed to Santa Ana vendor 6 Bids received 1 Bid received from Santa Ana vendor 22A-1 Contracts Award for Trophies, Plaques and Awards May 21, 2012 Page 2 Bids were received and opened March 30, 2012 (Exhibit 1). The bids from Suburban Custom Awards & Framing, Golden Trophy, Crown Trophy, and Players Choice, a Santa Ana vendor, are responsive to the specifications. The bid from Suburban Custom Awards and Framing is inclusive of shipping and handling and states the company's ability to meet the specifications for service and delivery time for routine items. A local vendor will be used for rush orders. As a result of Santa Ana City Council Ordinance NS-2828 expanding the local vendor preference program, staff is contacting all vendors, including Players Choice, to inform them of the process to be designated a small Santa Ana business by the State Department of General Services. Fiscal Impact Funds are available in the various departmental operating Material & Supplies (account 63001). Francisco Gutierrez Executive Director Finance & Management Services Agency ??/ 11* SH 22A-2 ABSTRACT OF BIDS CONTRACT AWARD FOR TROPHIES, PLAQUES AND AWARDS (12-034) VENDOR SUBURBAN AWARDS GOLDEN TROPHY CROWN TROPHY PLAYERS CHOICE LOCATION DACATOR, GA WESTMINSTER, CA CYPRESS, CA SANTA ANA, CA TROPHIES TOTAL AMOUNT $3,967.50 $3,317.50 $2,152.60 $5,048.08 PLAQUES TOTAL AMOUNT $6,703.00 $10,341.50 9,360.00 $12,241.46 MEDALLIONS TOTAL AMOUNT $1,943.20 $2,212.00 $1,372.00 $2,489.20 ACRYLIC TOTAL AMOUNT $25,975 $22,744.00 $32,450.00 $36,065.00 $55,843.74 LOCAL VENDOR 1% PREFERENCE ($558.44) TOTAL BID AMOUNT $38,588.70 $38,615.00 $45,334.60 $55,285.30 FIVE STAR RUBBER VENDOR STAMP ETC UNIQUE AWARDS LOCATION ANAHEIM ORANGE. CA TROPHIES TOTAL AMOUNT $6,502.00 $3,950.00 Plus .10 engraving charge after 40 PLAQUES letters TOTAL AMOUNT MEDALLIONS $8,347.66 $17,096.00 TOTAL AMOUNT ACRYLIC $2,800.00 $1,610 TOTAL AMOUNT $34,985.00 $41,040.00 TOTAL BID AMOUNT $52,634.66 $63,696.00 Exhibit 1 22A-3 22A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: CONTRACT AWARD TO DELL COMPUTER CORP FOR DESKTOP AND NOTEBOOK COMPUTERS (SPEC. NO. 12-042) CITY MANA ER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15t Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to Dell Computer Corporation for the purchase of computers and notebooks for the Police Department in the amount not to exceed $113,400. DISCUSSION The City of Santa Ana operates and maintains 1808 computers throughout the organization. Current hardware is between four and ten years old, is experiencing reliability issues, increased repair costs and impending obsolescence. In order to address this need, staff from Budget and the Application and Tech Support Division of the Finance and Management Services Agency is developing a phased plan to replace and upgrade existing hardware in every department. Ahead of this plan, the Santa Ana Police Department (SAPD) has identified funds from the asset seizure monies to accelerate the purchase of computer hardware. The SAPD utilizes approximately 300 computers to carry out daily operations. Most desktop computers are used by detectives and patrol officers to write police reports and conduct investigations. Notebook computers are used by the Evidence Section and Training Division where mobile computing is an essential part of conducting business and training offsite. The 70 desktop computers and 17 notebooks in this award will be issued to the areas identified as having the oldest units, ensuring continued service to the public. Santa Ana Ordinance No. NS-2312 authorizes the City to purchase against contracts from any public agency utilizing a competitive bid process. The Western States Contracting Alliance (WSCA) establishes California Multi-State Cooperative Agreements for Commodities, IT Goods and Services, and Telecommunication Goods and Services. WSCA agreements are available to all State of California governmental entities that expend public funds for the acquisition of both goods and services. Dell Computer Corporation is a manufacturer offering WSCA pricing. 22B-1 Contract Award for to Dell Computer for Desktop and Notebook Computers May 21, 2012 Page Two FISCAL IMPACT Funds are available in the Criminal Activities Department of Justice account (no. 02614450- 63001). APPROVED AS TO FUNDS AND ACCOUNTS: Paul M. Walters Chief of Police Police Department EG + 4 r Francisco Gutierrez Executive Director ?f Finance & Mgt. Services Agency 228-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: CONTRACT RENEWAL WITH GALE SUPPLY COMPANY FOR JANITORIAL PAPER GOODS (SPEC NO.07-108) 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 Renew the contract with Gale Supply Company for the purchase of janitorial paper goods for a one-year period in an annual amount not to exceed $85,000. DISCUSSION Most City of Santa Ana facilities are cleaned through contracted janitorial service, which includes the supplying of paper towels and toilet tissue and covers. Due to enhanced security needs, some City facilities - primarily the Police Administration and Holding facility - is cleaned by city employees. This requires the stocking of paper goods to service these facilities. The contract for janitorial paper goods is designed to provide quality products at significant savings based on quantity pricing. On March 3, 2008, the City Council awarded a contract to Gale Supply Company for a two-year period, with provision for two one-year renewals. Gale Supply Company has performed satisfactorily during the past contract period and has agreed to renew the contract without an increase in pricing. Staff recommends the second renewal of the contract at an annual amount of $85,000, based on past usage and staff projections for the next year. FISCAL IMPACT Funds are available in the various Operating Materials and Supplies accounts (63001). The amount of the contract is estimated, as the actual expenditures will depend upon the requirements throughout the annual period. Francisco Gutierrez Executive Director Finance and Management Services Agency ?r EG 22C-1 22C-2 REQUEST FOR -- . >, --= COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: MAY 21, 201 O TITLE: APPROVED AGREEMENTS WITH MERCHANTS ? As Recommended BUILDING MAINTENANCE AND BELL O As Amended (] Ordinance on 1s` Reading BUILDING MAINTENANCE FOR O ordinance on 2ntl Reading JANITORIAL SERVICE (] Implementing Resolution (] Set Public Hearing For_ ?-?????? CITY MANAGER CONTINUED TO FILE NUMBER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached agreement amendment with Merchants Building Maintenance in the amount of $92,823 for park restroom janitorial service in Districts 1 and 2, subject to non-substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and Clerk of the Council to execute the attached agreement amendment with Bell Building Maintenance Company in the amount of $76,389 for park restroom janitorial service in Districts 3 and 4, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The Parks, Recreation and Community Services Agency currently divides the City into four separate park maintenance districts. For the past four years, Merchants Building Maintenance has been performing park restroom janitorial service in Districts 1 and 2 and has been performing well. Staff is proposing atwo-year agreement amendment with Merchants Building Maintenance to continue janitorial service in Districts 1 and 2. The annual base contract cost is $84,384_ An additional $8,439 contingency is included for unforeseen emergencies, resulting in a total annual contract amount of $92,823_ The park restrooms in Districts 3 and 4 are serviced by Bell Building Maintenance. Staff is proposing atwo-year agreement amendment with Bell Building Maintenance to continue janitorial service in Districts 3 and 4. The annual base contract cost is $69,444. An additional $6,945 contingency is included for unforeseen emergencies, resulting in a total annual contract amount of $76,389. 25A-1 Park Restroom Janitorial Agreements May 21 , 2012 Page 2 FISCAL IMPACT Funds are available in the FY 2011-12 Park Services, M&R Buildings and Grounds account (no. 01113250 62320). Funds for FY 2012-13 will be identified in the FY 2012-13 budget. APPROVED AS TO FUNDS AND ACCOUNT: ?` Gerardo Mouet, Executive Director Parks, Rec_ and Com. Svcs. ???St\?p ?r ? ??. ?? Francisco Gutierrez, 3 Executive Director Finance and Mgt. Svcs. Agency 25A-2 SECOND AMENDMENT TO AGREEMENT THIS SECOND AMENDMENT TO AGREEMENT is entered into this 21s` day of May, 2012, between Merchants Building Maintenance Company, 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 parties entered into Agreement A-2008-092 dated May 23, 2008, hereinafter referred to as "said Agreement" by which Contractor provides park rest room maintenance services for Santa Ana park districts 1 and 2. B. By Amendment dated June 1, 2010, the City exercised its first option to extend the term for an additional two-year period. C. In accordance with the terms and conditions of said Agreement, the City desires to exercise its second option to extend the term for an additional two year period. 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 Second Amendment to Agreement, the parties agree as follows: 1 . Section 4, TERM, shall be amended to reflect City's exercise of the second option to extend the term for an additional two year period, through May 31, 2014, in an annual amount not to exceed $92,823. 2. Except as herein amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager MERCHANTS BUILDING MAINTENANCE COMPANY GEORGE RODRIGUEZ Branch Manager 25A-3 25A-4 SECOND AMENDMENT TO AGREEMENT THIS SECOND AMENDMENT TO AGREEMENT is entered into this 21s` day of May, 2012, between Bell Building Maintenance Company, 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 parties entered into Agreement A-2008-093 dated May 23, 2008, hereinafter referred to as "said Agreement" by which Contractor provides park rest room maintenance services for Santa Ana park districts 3 and 4. B. By Amendment dated May 22, 2010, the City exercised its first option to extend the term for an additional two-year period. C. In accordance with the terms and conditions of said Agreement, the City desires to exercise its second option to extend the term for an additional two year period. 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 Second Amendment to Agreement, the parties agree as follows: 1. Section 4, TERM, shall be amended to reflect City's exercise of the second option to extend the term for an additional two year period, through May 22, 2014, in an annual amount not to exceed $76,389. 2. Except as herein amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager APPROVED AS TO FORM: Laura Sheedy Assistant City Attorney BELL BUILDING MAINTENANCE COMPANY BRUCE M. HWANG Vice President of Operations 25A-5 25A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: AGREEMENT WITH DR. SCOTT WELDY TO PROVIDE VETERINARY SERVICES FOR THE SANTA ANA ZOO AT PRENTICE PARK ?? ? (?? CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended Q Ordinance on 1s` Reading 0 Ordinance on 2ntl Reading ? Implementing Resolution 0 Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with Dr. Scott Weldy for the provision of veterinary services at the Santa Ana Zoo at Prentice Park in the amount of $75,000 for aone-year term, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Zoo at Prentice Park is required by the United States Department of Agriculture and the Association of Zoos and Aquariums (AZA) to provide veterinary services for the collection of animals maintained at the Zoo. Dr. Scott Weldy has provided veterinary services and served as the official Veterinarian of Record for the Santa Ana Zoo at Prentice Park for the past four years. Dr. Weldy has extensive knowledge of the Santa Ana Zoo's animal collection and has more than 20 years experience with exotic animal veterinary medicine- Further, prior to his selection in 2008, Dr. Weldy had performed satisfactorily for ten years as backup vet for the Zoo's previous contract veterinarian and often filled in during her absence. Dr_ Weldy will continue to provide a comprehensive program of preventative and curative medical care for the entire Zoo collection- Dr. Weldy will visit Zoo facilities a minimum of 12 hours per week to examine the animals' health and sanitation, and assist with maintaining complete medical history records for each animal in the animal collection. This agreement amendment will be for a one year term and include $65,000 for standard veterinary services and $10,000 for reimbursable expenses, for a total not to exceed amount of $75,000. 25B-1 Agreement with Dr. Weldy May 21 , 2012 Page 2 FISCAL IMPACT Funds are available in the Santa Ana Zoo at Prentice Park, Other Contractual Services expenditure account (no. 01 1 1 3220-62300). Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency Approved as to Funds and Account: l Francisco Gutierrez, Executive Director Finance and Management Services Agency 25B-2 SECOND AMENDMENT TO CONSULTANT AGREEMENT THIS AMENDMENT, made and entered into this 23rd day of April, 2012 by and between Scott Weldy DVM, dba Serrano Animal 8c Bird Hospital (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The parties entered into Agreement # A-2010-083, (said "Agreement") by which Consultant has provided veterinarian services to the City. B. By Amendment A-2011-124, dated May 2, 2011, the parties extended the term and provided compensation to pay for services during the extended term. C. The parties wish to again amend the Agreement to modify the Compensation and 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 Amendment, the parties agree as follows: 1 . Section 1 , SCOPE OF SERVICES, Consultant will continue to provide those services for the Santa Ana Zoo at Prentice Park as set forth in Exhibit A, attached hereto and incorporated by this reference. 2. Section 2.a., COMPENSATION, shall be amended to provide an additional $65,000 to pay for services provided during the extended term of said Agreement, at the rates and charges set forth in Exhibit A. A maximum amount of $10,000 shall be available for reimbursable expenses, for a total not to exceed amount of $75,000 available during the term from August ] , 20 ] l through July 3 1, 2012. 3. Section 3, TERM, shall be amended to extend the term for an additional one-year period, through July 31, 2013, unless terminated earlier in accordance with the terms of said Agreement. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. /// // 25B-3 I]V WITNESS WHEREOF, the parties hereto have executed this Second Amendment the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager APPROVED AS TO FORM: SERRANO ANIMAL AND BIRD HOSPITAL Laura Sheedy Assistant City Attorney SCOTT WELDY, DVM Owner 25B-4 EXHIBIT A SCOPE OF SERVICES I. CONSULTANT OBLIGATIONS CONSULTANT agrees to render veterinary services to the Santa Ana Zoo at Prentice Park and in the home practice/place of business on a continuing basis for the duration of this Agreement, including, but not limited to the following: A. Serve as a medical officer for the Santa Ana Zoo's animal collection. B. Serve as caretaker of drugs, narcotics, and pharmaceutical equipment. CONSULTANT also will administer or supervise, including verbal and written communications on the administration of narcotics, pharmaceuticals, and pharmaceutical equipment for the animals in the collection. C. Provide a comprehensive program of preventative and curative medical care for the animal collection; including annual and routine exams, annual review of the nutritional needs of all species and recommendations for any dietary changes, and a comprehensive parasite treatment plan for all species. D. Consult with appropriate zoological and/or human experts and zoo staff to make recommendations regarding the nutritional and medical needs of the collection. E. Visit the Zoo facilities and examine the animal's health on average 12 hours per week. The Zoo Curator and the CONSULTANT will decides on the hours on an as needs basis. F. Assist the Zoo Curator in establishing and maintaining complete medical history records for each animal in the collection. G. Approve the detailed report of medical treatment administered and other services perfonned at each visit as prepared by Zoo staff (or by the veterinarian) and sign the zoo vet visit log (time sheet) for the Zoo Files. H. Exercise his/her best professional judgment and practice and make his/her best efforts to maintain the animals. Advise Zoo staff on maintenance of same so as to insure the best medical, husbandry, enrichment and living conditions possible for the animal collection. I. Provide telephone consultation, advice and instructions of prescriptions on a reasonably unlimited basis, either with staff or other consulting veterinarians. Provide a signature as our consulting/attending veterinarian, for necessary and required certificates, documents, licenses or permits. J. Provide a signature as the City consulting/attending veterinarian for necessary and required certificates, licenses, permits and other documents. K. Advise on and ordering of medicine, supplies or instruments L. Obtain at his/her cost, medical malpractice insurance. 25B-5 II. CITY OBLIGATIONS In order to assist CONSULTANT in execution of his/her responsibilities under this agreement and to enhance the care of the animals in the collection, the CITY agrees to do the following: A. Maintain a pharmaceutical safe for the storage of all controlled drugs and narcotics. B. Maintain a facility for the use in the surgery and/or treatment of the collection with recovery and holding cages and related equipment as necessary at the zoo. C. Provide CONSULTANT with staff support from Zoo personnel. D. Purchase equipment, biological, drugs, narcotics, pharmaceuticals and/or other medical supplies as necessary, upon request of CONSULTANT. E. Provide staff assistance for the capture and treatment of animals. F. Provide staff treatment of specimens on telephone or written instructions from CONSULTANT. G. Provide additional veterinarians, where advisable for emergencies and for these services. H. Maintain diagnostic or treatment notes filed in our records by backup veterinarians we may employ, for the CONSULTANT'S review or use. I. Pay for all outside laboratory expenses incurred as a result of CONSULTANT'S supervision of animals in the collection. J. Pay al] other expenses necessary for the care of the collection when recommended by CONSULTANT and approved by the Executive Director of the Parks, Recreation and Community Services Agency or his designated representative. III. COMPENSATION CONSULTANT agrees to perform the professional services as set forth herein and CITY agrees to pay CONSULTANT for all such services at the rate of $65,000 for twelve months for 12 hours per week at the Zoo. There will be additional charges at the normal clinic rate for animals taken to Dr. Weldy's place of business and for emergency calls to the zoo after Zoo hours. Contract amount not to exceed $75,000.00. Said fees shall be paid not later than 30 days after receipt of invoice from CONSULTANT. CITY agrees to pay cost of materials, supplies and laboratory fees incurred for treatment of Zoo specimens taken to CONSULTANT'S home hospital for treatment. 25B-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: AGREEMENT AMENDMENT WITH THE LIBRARY CORPORATION FOR LIRBARY AUTOMATION SYSTEM ?? ???? CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s` Reading ? Ordinance on 2ntl Reading ? Implementing Resolution 0 Set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENDED ACTION Authorize the City Manager and the Clerk of the Council to execute the attached amendment With The Library Corporation, Inc_ to provide database subscription service and maintenance in an amount not to exceed $34,466, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On June 16, 2003, the City Council approved an agreement between the City of Santa Ana and The Library Corporation, Inc. (TLC) to provide a library automation system. TLC provides the Library with a web based client server that manages our library cards and maintains an inventory of books in stock and checked out. The software is used by Library patrons to view the book catalog from one of the Library's catalog computers or online from home. The software includes a report module that prints a variety of reports; including what books are checked out most/least often and how many books the Library has in each collection. The acquisition module helps manage the book budget for each collection, provides a quick and efficient way to search for new books, processes orders, and catalogues the books into the correct Library collection. The service includes 24 hour telephone and online support, licensed software updates and enhancements, staff training, online access to cataloging resources, and enhanced content databases. The agreement is for the period of July 2012 through June 2013 in the amount not to exceed $34,466. FISCAL IMPACT Funds are available in the Library's Technology & Support Services account (01111190 62300). APPROVED AS TO FUNDS AND ACCOUNT: Gerardo Mouet, Francisco Gutierrez, Executive Director Executive Director Parks, Recreation and Community Services Finance and Management Services Agency Agency -.-t? 25C-1 25C-2 AMENDMENT TO AGREEMENT THIS AMENDMENT TO AGREEMENT ("Amendment") made and entered into this 21s` day of May, 2012, by and between The Library Corporation, Inc., a corporation organized under the laws of the State of Maryland, ("TLC") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and the laws of the State of California ("City"). RECITALS: A. On December 3, 2001, the parties entered into Agreement # A-2001-238, by which TLC has provided a library automation system for City. The Agreement has been amended to extend the term and provide compensation during the extended term. B. In order to provide continuous uninterrupted service, the Parties now desire to amend the Agreement to increase the compensation to pay for an additional one-year database subscription, support and maintenance service. WHEREFORE, in consideration of their mutual and respective promises, and subject to the terms and conditions of the Agreement as hereby amended, the parties hereby agree as follows: 1 . Section 2, shall be deleted in its entirety and replaced with the following: "This Agreement shall commence on December 3, 200] and terminate on June 30, 2013, unless terminated earlier in accordance with Section 3 of said Agreement. The term of this Agreement may be extended upon a writing executed by the Executive Director of Parks, Recreation and Community Services, the City Attorney, and The Library Corporation" 2. The compensation for the Agreement shall be increased by an additional $34,466.00 to pay for web based database subscription and maintenance services, including 24-hour telephone and online support, software updates and staff training for an additional one-year period, from July 1, 2012 through June 30, 2013. 3. Except as hereinabove modified, the terms and conditions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment to Agreement the date and year first above written ATTEST: MARIA D. HUIZAR Clerk of the Council Approved as to Form: Laura Sheedy Assistant City Attorney 25C-3 CITY OF SANTA ANA: PAUL M. WALTERS Interim City Manager THE LIBRARY CORPORATION, INC. sy: (Name): (Title): 25C-4 CLERK OF COUNCIL USE ONLY: MAY 21, 2012 TITLE: AGREEMENT FOR TEMPORARY ENGINEERING AND TECHNICAL SERVICES (NON-GENERAL FUND) APPROVED Q As Recommended Q As Amended Q Ordinance on 'I'? Reading ? Ordinance on 2ntl Reading (] Implementing Resolution ? Set Public Hearing For (,L_ ??? CITY MANA R RECOMMENDED ACTION CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement for temporary engineering and technical services, subject to nonsubstantive changes approved by the City Manager and City Attorney with PDS Tech, Inc. in an amount not to exceed $300,000. DISCUSSION On February 6, 2012, the City Council authorized the Public Works Agency to release a Request for Proposals (RFP) to qualified consulting firms to provide temporary engineering and technical staffing, as needed, in support of the City's Capital Improvement Program (CIP). These services will augment City staff and are required to complete the design and construction of the City's Capital Improvement projects on schedule to meet funding deadlines. The RFP for the above services was advertised on the City's website and sent to nearby temporary engineering and technical staffing firms. Three proposals were received and evaluated by personnel from the Public Works Agency. Each firm was rated according to its qualifications, experience, and capacity to perform the required work. The following is a list of the firms and their respective scores: NAME OF FIRM PDS Tech, Inc. Project Partners The Moote Group RANKING 88 83 50 Based on its available skilled personnel, experience with the City, client satisfaction, and the lowest competitive overhead rates, staff recommends that the firm of PDS Tech, Inc_ be retained for the temporary engineering and technical services. Services will be used on an as-needed basis until the contract amount is exhausted. 25D-1 Agreements for Temporary Engineering And Technical Services May 21 , 2012 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action- FISCAL IMPACT These services are on-call and will be used only when funds are available in the Capital Improvement Program. APPROVED AS TO FUNDS AND ACCOUNTS: r Raul odinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG/SA Exhibit: 1. Agreement 25D-2 EXHIBIT 1 AGREEMENT FOR PROVISION OF ON-CALL ENGINEERING AND TECHNICAL SUPPORT SERVICES THIS AGREEMENT, made and entered into this 21 s` day of May, 2012 by and between PDS Technical Services, 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 desires to retain a consultant having special skill and knowledge in the field of providing on-call technical and engineering labor services. B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall provide temporary engineering and technical services on an on-call basis for the Santa Ana Public Works Agency, as set forth in Exhibit A. The provision of said services will be in conformance with City's Request for Proposals dated February 6, 2012, and Consultant's Proposal dated April 26, 2012, both the RFP and Proposal are on file at the Santa Ana Public Works Agency and incorporated by this 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. 3. WORK PRODUCT All work product prepared by Consultant pursuant to this Agreement shall be the property of the City and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. Consultant shall submit all work product to City in hard copy and produced in a form compatible with City's computer system, as agreed between the City and C on su Itant. 25D-3 4. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. The total sum to be expended under this Agreement shall not exceed $300,000.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing service provided in the previous month, subject to City accounting procedures. The invoice shall include the temporary employee's name, the project title, tasks performed, number of hours worked and hourly rates. A copy of the timesheet(s) for the billing period shall be attached. 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 expenditure of allocated funds, unless terminated earlier in accordance with Section 14, below. 6. INDEPENDENT CONTRACTOR Consultant and its assigned personnel shall, during the entire term of this Agreement, be construed to be independent contractors and not employees 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 and its assigned personnel 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. 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, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. 25D-4 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 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. Consultant shall provide professional liability (errors and omissions) insurance covering such personnel's services, 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 (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. 8. INDEMNIFICATION Consultant agrees to and shall indemnify, defend 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 direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of effects 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 effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 25D-5 9. CONFIDENTIALITY If Consultant or its assigned personnel 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 telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-36) P.O. Box 1988 Santa Ana, California 92 702-1 9 8 8 telefacsimile (714) 647-5622 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-5635 25D-6 To Consultant: DJ Englert PDS Technical Services 161 Kalmus Drive, Suite H-4 Costa Mesa, California 92626 telefacsimile (714) 540-8092 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 exc 1 uded . 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. 14. TERMINATION This Agreement may be terminated by the City upon thirty X30) 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. 25D-7 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. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. /// /// /// /// 25D-8 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: SONIA R. CARVALHO City Attorney Bv: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA: PAUL M. WALTERS Interim City Manager PDS TECHNICAL SERVICES RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director Public Works Agency DJ ENGLERT Branch Manager Tax I D# 25D-9 EXHIBIT A SCOPE OF SERVICES TEMPORARY SUPPORT SERVICES I. GENERAL The City of Santa Ana (City) is soliciting proposals from qualified firms to provide temporary engineering and technical personnel on an as-needed basis. As temporary personnel needs are identified, the firm will be requested to provide appropriate candidates to each position. The City reserves the right to distribute the workload in any manner, which will best serve the City's interests. In general, the Engineering Division of the City's Public Works Agency will need temporary personnel for the design and construction of public improvement projects. SCOPE OF SERVICES On an as-needed basis, the Consultants will provide the City with temporary personnel qualified to perform various engineering, technical and administrative duties in support of general engineering/architectural/landscaping projects on arterial and local roads and public parks citywide. The projects may include street rehabilitation and widening, storm drain improvements; sewer improvements, waterline improvements, signing, striping, and signal modifications; landscaping and irrigation systems; and other related projects as required. In addition, City may need support services for construction management, legal survey documents, inspection, and office and accounting assistance. The positions the Consultant may need to fill include the following: Engineering/Technical Senior Civil Engineer (PE license required) • Senior Engineer Assistant Engineer CAD Drafter CAD Designer/Technician • Senior CAD Designer/Technician Land surveyor (LS license required) Construction/field Construction inspection • Field technician Administrative/Accountinc Accounting Assistant Administrative Assistant All technical positions shall be proficient in Microstation and Microsoft Office. The City currently uses Microstation Version V8i and Microsoft Office 2007. Licensed Civil engineer or land surveyor may be required to sign plans and legal 25D-10 documents, respectively. After a temporary position is identified by the City, the selected firms may be asked to provide resumes of candidates. The candidate will be required to provide temporary staff augmentation at City offices only. I11. CITY RESPONSIBILITIES • The City will provide the consultant with all records in the possession of City, which will be of assistance to the consultant in the performance of the work. The City will provide a workstation for each temporary employee. Control of assigning projects or tasks shall remain the total responsibility of the City of Santa Ana. IV. ACCEPTANCE OF CONTRACT The contents of the proposal of the successful consultants shall become a contractual obligation if a contract ensues. Failure of a Consultant to accept this obligation will result in the cancellation of any award. Any damage accruing to the City as a result of a failure to contract may be recovered from the consultant. 25D-11 Exhibit B ?"; ONCALL TEMPORARY EMPLOYMENT SERVICES CONTRACT CONSULTANT RATE COMPARISON FORM Consultant shall complete this form and include it along with the billing rates breakdown. The rate shown shall be the hourly rate the employee receives. This form will be used for fee comparison purposes only. TITLE .?- ?. ?.. CAD Drafter CAD DesignerlTechnician Senior CAD Designerlrechnician Assistant Engineer Senior Engineer Senior Civil Engineer Accounting Assistan# Administrative Assistant Land Surveyor Construction Inspection Field Technician HOURLY RATE RANGE $ 25 - 27 $28-34 $31-35 $25-33 $ 35 - 48 $45-58 $ 15-21 $ 15 - 21 $ 2d - 27 $24-28 $ 18-25 Page 9 of 21 25D-12 ? ONCALL TEMPORARY EMPLOYMENT SERVICES CONTRACT '? CONSULTANT RATE COMPARISON FORM Consultant shall submit aMark-Up Percentage Breakdown with fully burdened percentage (%) rate of the items listed below that may include, but not limited to: Mark Up Percentas?e (%) Ovar?iead FICA FUTA SUTA Local Tax General Liability Insurance Workers Comp 7.65 .a 6.2 .25 .75 5.5 ' ii s 2.85 ?. G©nara/ & Administrative Recruitment Beneft "' Profit TOTAL MARK UP TOTAL MARK UI? (without recruitment and benefit) `Benefit: identify what fire benefits are. 4 24 Page 10 of 2! 25D-14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: AGREEMENT WITH WESLEY A. BOSCH FOR CONSULTING SERVICES 1??? CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended Q As Amended ? Ordinance on 1?` Reading D Ordinance on 2ntl Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with Wesley A. Bosch to provide assessment and counseling services in the amount of $90,000 for the period of July 1 , 2012 through June 30, 201 3, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On May 18, 2009, the Santa Ana WORK Center (SAWC) released a Request for Qualifications for a career counselor to conduct mandatory assessment for training participants as required by the Workforce Investment Act (WIA). Services provided to WIA clients would also include career guidance, assistance with goal setting, and counseling to resolve personal and/or family issues that may be interfering with reemployment or training efforts. One proposal was received from Wesley A. Bosch. Mr. Bosch, a licensed family and marriage counselor, has been providing assessment, career guidance, and counseling services to clients at the SAWC for the past twelve years. Staff recommends that a contract with Mr. Bosch be approved to continue to provide services to SAWC clients. FISCAL IMPACT Funds will be available in the One Stop program account (no. 12318751 ), the One Stop Adult account (no. 12318753), and the One Stop Dislocated Worker account (no. 12318754). "Yl, air, cc?(,.c?( ?°cL?c>?C? Nancy T. E?wards Interim Executive Director Community Development Agency NTE/LO/CR/sv APPROVED AS TO FUNDS AND ACCOUNTS_ Francisco Gutierrez Executive Director ? Finance & Management Services Agency Exhibit: 1. Agreement 25E-1 25E-2 AGREEMENT WITH WESLEY A. BOSCH, M.A. UNDER THE WORKFORCE INVESTMENT ACT THIS AGREEMENT, made and entered into this 21s` day of May, 2012, by and between Wesley A. Bosch, M.A., hereinafter referred to as "CONSULTANT", and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California, hereinafter referred to as "CITY". W-I-T-N-E-S-S-E-T-H Recitals: A. CITY has been designated a Local Workforce Investment Area (LWIA) under the Workforce Investment Act of 1998, Public Law 1 OS-220 ("the Act"). B. The State of California has created the LWIA to administer the Act programs operated by the State of California pursuant to the Act. C. As a LWIA, CITY is entitled to receive federal funds to establish programs to prepare economically disadvantaged adults and youth for entry into the labor market and to provide job training to those individuals who are economically disadvantaged or otherwise face serious barriers in obtaining productive employment. One goal of California's Workforce Investment System is to provide individuals with the opportunities to achieve career goals that will allow them to successfully compete in the labor market and prepare them for higher education. D. CONSULTANT is experienced in providing assessment and career counseling for economically disadvantaged adults and youth for entry into the labor market ("said program"). E. CONSULTANT is willing to operate said program pursuant to the Act and California law. WHEREFORE, for and in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereto do hereby agree as follows: 1. TIME PERIOD OF AGREEMENT This Agreement shall commence as of July 1, 2012 and all services to be performed pursuant to this Agreement shall be completed on or before June 30, 2013. The term of this Agreement may be extended by a writing executed by the Executive Director of the Community Development Agency, or her designee, and the City Attorney. 25E-3 2. INDEPENDENT CONTRACTOR CONSULTANT agrees that CONSULTANT is an independent contractor and not an employee of CITY and all of CONSULTANT'S personnel shall be employees of CONSULTANT and not employees of the CITY. CONSULTANT shall pay all salaries and wages, employer's Social Security taxes, unemployment insurance and wages, and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. CONSULTANT shall not subcontract any of the services required hereunder without the prior written approval of the CITY. SCOPE OF SERVICES For and in consideration of the hereinafter stated payment by CITY to CONSULTANT, CONSULTANT agrees to perform, at its own cost and expense except for the compensation specified in this Agreement, the services specified in the Scope of Work attached hereto and incorporated herein as Exhibit A to this Agreement. 4. CONSULTANT OBLIGATIONS A. CONSULTANT agrees to maintain such records and submit such reports, data and information, on the form and containing such information, at such times as CITY may request or require regarding the performance of CONSULTANT'S services or activities, costs or other data, including but not limited to, participants' attendance, payroll records and job duty statements. B. CITY, the State of California and the United States government and/or their representatives shall have access for purposes of monitoring, auditing and examining of CONSULTANT'S activities, performance, books, documents, papers, and records of CONSULTANT, subcontractors, bookkeepers and accountants, and employees and participants related to this Agreement. Such agencies or representatives shall also schedule on-site monitoring in their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants and entering any premises or onto any site in which any of the services or activities funded hereunder are conducted or in which any of the records of CONSULTANT are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. In the event CONSULTANT does not make the above-referenced documents available within the City of Santa Ana, California, CONSULTANT agrees to pay all necessary and reasonable expenses incurred by CITY in conducting any audit at the location where said records and books of account are maintained. All accounting records and evidence pertaining to all costs of CONSULTANT and all documents related to this Agreement shall be kept available at CONSULTANT'S office or place of business for the duration of this Agreement and thereafter for three (3) years after completion of an audit. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance 25E-4 of this Agreement, or (b) costs and expenses of this Agreement to which CITY, the State of California or the United States Government take exception, shall be retained beyond the three (3) years until resolution of disposition of such appeals, litigation, claims, or exceptions. C. Without prejudice to any other section of this Agreement, CONSULTANT shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. Notwithstanding the foregoing, CONSULTANT agrees to submit to CITY, the State of California and/or the United States Government or their representatives, all records requested for administrative purposes, including audits, examinations, monitoring and verification of records submitted by CONSULTANT, costs incurred and services rendered hereunder. D. CONSULTANT agrees to expend all funds in accordance with all applicable federal, state and local laws and regulations. CONSULTANT also agrees to provide at CONSULTANT'S own expense supplies and other costs of said PROGRAM. E. CONSULTANT shall comply with the provisions of 48 CFR, Chapter 1, Parts 1-31.2, for commercial organizations and all other applicable federal statutes and executive orders and their implementing regulations. F. CONSULTANT shall comply with the provisions of E.O. 12549 and 12689, requiring compliance with the debarment and suspension requirements contained in 29 CFR Part 98. G. CONSULTANT shall comply with the requirements of federal regulations found at 29 CFR 93 which provide that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, member of Congress or an officer or employee of a member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. CONSULTANT shall sign a certification to that effect in a form as set forth in "Exhibit B," attached hereto and by this reference incorporated herein. CONSULTANT shall submit said signed certification to CITY prior to performing any of its obligations under this Agreement and prior to any obligation arising on the part of CITY to pay any sums to CONSULTANT under the terms and conditions of this Agreement. H. CONSULTANT agrees to provide a drug-free work place and to execute a certification as set forth in "Exhibit C" attached hereto and incorporated herein by this reference. I. CONSULTANT, in accordance with the Child Support Compliance Act, recognizes and acknowledges the importance of child and family support obligations and shall fully comply with all state and federal laws relating to child and family support enforcement, including, but not limited to: disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with Section 5200) of Part 5 of Division 9 of the state Family Code; and, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Employee Registry maintained by the California Employment Development Department (EDD). 25E-5 J. CONSULTANT agrees to comply with Title VI of the Civil Rights Act of 1964, and provisions of WIA Section 188, as well as Equal Employment Opportunity provisions in Executive Order ("EO") 1 1246, as amended by EO 1 1375, and supplemented by the requirements of 41 CFR Part 60. Section 188 ensures nondiscrimination and equal opportunity for various categories of persons, including persons with disabilities, who apply for and participate in programs and activities operated by recipients of WIA assistance. EO 11246 specifically prohibits federal contractors and subcontractors and federally assisted construction contractors, subcontractors or subgrantees that have contracts that exceed $10,000 from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. All covered contractors must take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. APPLICABLE GUIDELINES A. The parties hereto agree that CONSULTANT shall comply with all applicable federal and state laws and regulations, including but not limited to the U.S. Department of Labor guidelines and regulations, including amendments or revisions made during the terms of this Agreement. Said applicable laws are hereby incorporated by reference and made as part of this Agreement as though fully set forth herein. B. CONSULTANT also assures and certifies that: 1. CONSULTANT shall comply with any and all federal laws limiting the political activity of employees hired under this Agreement. 2. CONSULTANT shall provide the U.S. Department of Labor and the Controller General, by and through any authorized representative, as well as the Santa Ana Local Workforce Investment Area's Board, access to and the right to examine all records, books, papers or documents relating to the accounting and use of funds under this Agreement for athree-year period from and after the effective date of this Agreement. 3. No person with responsibilities in the operation of any program under the Workforce Investment Act grant shall discriminate with respect to any program participant or any application for participation in such program because of race, creed, color, national origin, sex, political affiliation or beliefs. 4. CONSULTANT shall maintain appropriate standards for health and safety in work and transportation situations. 5. CONSULTANT shall comply with general provisions, assurances, and certifications attached hereto as "Exhibit D" and incorporated herein. 6. Any literature distributed by CONSULTANT for the purpose of apprising businesses, participants, or the general public of its programs under this Agreement shall state that its programs are supported by the City of Santa Ana and the Santa Ana Workforce Investment Board, and shall 25E-6 state that the program is an "equal opportunity employer/program" and that "auxiliary aids and services are available upon request to individuals with disabilities." 7. CONSULTANT certifies that all property, finished or unfinished documents, data, studies and reports prepared or purchased by the CONSULTANT under this Agreement, will be disposed of in accordance with the direction of the CITY. In addition, any tools and/or equipment furnished to the CONSULTANT by the CITY and/or purchased by the CONSULTANT with funds pursuant to this Agreement, will be limited to use within the activities outlined in this agreement and will remain the property of the United States Government and/or CITY. Upon termination of this Agreement, CONSULTANT will immediately return such tools and/or equipment to the CITY or dispose of them in accordance with the direction of the CITY. 8. CONSULTANT certifies that this Agreement does not provide for the advancement or aid to any religious sect, church or creed, or sectarian purpose nor does it help to support or sustain any school, college, university, hospital or other institution controlled by any religious creed, church, or sectarian denomination, as specified by Article XVI, Section 5, of the Constitution of the State of California, regarding separation of church and state. 9. If the grant hereunder exceeds $100,000, CONSULTANT shall be in compliance with Section 306 of the Clean Air Act [(42 USC 1 875(h)]; Section 508 of the Clean Water Act (33 USC 1368); Executive Order 1 1738 and Environmental Protection Agency ("EPA") regulations (40 CFR Part 1 5) as any may now exist or be hereafter amended. Under these laws and regulations, the CONSULTANT assures that: (a) No facility to be utilized in the performance of the proposed grant has been listed on the EPA List of Violating Facilities; (b) It will notify CITY prior to award of the receipt of any communication from the Director, Office of Federal Activities, U.S. EPA, indicating that a facility to be utilized for the grant is under consideration to be listed on the EPA List of Violating Facilities; (c) It will notify the CITY and the EPA about any known violation of the above laws and regulations. 1 O. CONSULTANT may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. The Federal awarding agency(ies) reserve aroyalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so. 1 1 . CONSULTANT is subject to applicable regulations governing patents and inventions, including government-wide regulations issued by the Department of Commerce at 37 CFR part 401 , "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements." 12. Based on the population eligible to be served, or likely to be directly affected by the WIA program or activity, the services or information may need to be provided in a language other than English in order to allow such population to be effectively informed about or able to participate in the 25E-7 program or activity. Pursuant to 29 CFR 37.35, the CONSULTANT must take reasonable steps to provide services and information in appropriate languages after considering the scope of the program or activity, and the size and concentration of the population that needs services or information in a language other than English. 6. COMPENSATION CITY agrees to pay, and CONSULTANT agrees to accept for said services, total compensation in the amount not to exceed Ninetv Thousand Dollars ($90,000.00). CONSULTANT will submit a detailed invoice evidencing services performed. Final payment by the CITY shall be within 30 days following receipt of said invoice, subject to CITY accounting procedures. CONSULTANT acknowledges that approval of and funding for this Agreement is contingent upon State approval, and funds received or obligated from the State of California to CITY. If such approval of funds is not forthcoming, or is otherwise limited, CITY shall immediately notify CONSULTANT. Within twenty (20) days of receipt of such notice, CONTRACTOR shall modify or cease operations as directed by CITY and negotiate necessary modification to this Agreement and/or reimbursement of costs incurred hereunder. 7. MISCELLANEOUS PROVISIONS A. CONSULTANT covenants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of services required hereunder. B. CONSULTANT certifies that it will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex or age, in compliance with Title VII of the Civil Rights Act of 1964 (P. L. 83-354) and Government Code 12900, et seq. 8. HOLD HARMLESS CLAUSE CONSULTANT agrees to indemnify, defend and hold harmless CITY, its 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 acts or omissions of CONSULTANT or of any approved subcontractor or of the officers, agents, employees of CONSULTANT or of its subcontractors in the performance of this Agreement. 9. INSURANCE CONSULTANT shall obtain and maintain for the entire term of this Agreement comprehensive professional public liability insurance, in companies acceptable to the City, authorized. to issue such insurance in the State of California. Said insurance shall consist of the following: a. Professional Liability Insurance. CONSULTANT agrees to obtain and keep in force during the term of this Agreement a policy of professional public liability insurance insuring the CITY and 25E-8 CONSULTANT against any liability for accident, injury or death arising out of or related to this Agreement. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in any single accident or occurrence. Said policy of professional liability insurance shall be endorsed to provide to CITY at least thirty (30) days written notice prior to cancellation. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, CONSULTANT, if CONSULTANT has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. CONSULTANT agrees to comply with such provisions before commencing the performance of the work under this Agreement. c. The following requirements apply to the insurance to be provided by CONSULTANT pursuant to paragraph a., above: 1 . A certificate of insurance, to be approved in form by the City Attorney, shall be furnished to the City within 30 days of the execution of this Agreement. 2. 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. d. 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. 10. TERMINATION This Agreement may be terminated by either party at its sole discretion, upon thirty (30) days written notice to the other party. Notice shall be deemed served on the date of mailing. However, CONSULTANT may not terminate this Agreement if undue hardship will result to any participant. 11. DISPUTES Except as otherwise provided in this Agreement, any dispute concerning any question arising under this Agreement shall be decided by CITY. In such a case CITY shall reduce its decision to writing and mail or otherwise furnish a copy thereof to CONSULTANT. The decision of the CITY shall be final and conclusive unless within thirty (30) calendar days from the mailing or delivery of such copy, CITY receives from CONSULTANT written request to appeal said decision. Procedures governing the appeal shall be prescribed by CITY and/or the State of California in accordance with the Act and all corresponding regulations and OMB circulars. Pending final disposition of the appeal, CONSULTANT shall act in accordance with CITY'S decision unless the dispute involves a change order. 25E-9 12. BREACH -SANCTIONS If, through any cause, CONSULTANT violates any of the terms and conditions of this Agreement, and/or prior agreements whereby grant funds were received by CONSULTANT pursuant to this Agreement, or if CONSULTANT reports inaccurately or if any Audit Report makes disallowances, CONSULTANT shall promptly remedy its acts or omissions and/or repay CITY all amounts due CITY as a result of CONSULTANT'S violation. For any such failures or violations, CITY shall also have the right at its sole discretion to either: (1) discontinue program support until such time as CONSULTANT fulfills its obligations or remedies all violations of this agreement or prior agreements; and/or (2) collect outstanding amounts as determined by CITY due CITY by offsetting or debiting from current claims or invoices, if after thirty (30) days' written notice CONSULTANT has failed to repay same or a repayment schedule has not been made; and/or (3) terminate this Agreement by giving written notice to CONSULTANT of such termination in accordance the notice provision contained below. 13. NOTICES All notices, reports and correspondence between the parties hereto respecting this Agreement shall be in writing and deposited in the United States Mail, postage prepaid, addressed as follows: To CITY: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 647-6956 With courtesy copy to: Santa Ana Work Center 1000 E. Santa Ana Blvd., #200 Santa Ana, CA 92701 Telefacsimile (714) 565-2602 To CONSULTANT: Wesley A. Bosch 24001 Muirlands Blvd., #331 Lake Forest, CA 92630 Telefacsimile (714) 565-2602 25E-10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: Nancy T. Edwards Acting Executive Director Community Development Agency CITY OF SANTA ANA Paul M. Walters Interim City Manager CONSULTANT: Wesley A. Bosch, M.A. Tax ID#/SS#: 25E-11 25E-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: VARIANCE NOS. 2012-02 AND 2012-03 TO ALLOW A REDUCTION IN PARKING AND SETBACKS FOR A NEW HD SUPPLY REPAIR AND REMODEL FACILITY AT 1044 EAST FOURTH STREET - KSP STUDIO, INC., APPLICANT (?Z CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1 s` Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Variance No. 2012-02 as conditioned and Variance No. 2012-03 as conditioned. PLANNING COMMISSION ACTION On April 24, 2012, the Planning Commission adopted a resolution approving Variance No. 2012- 02 as conditioned to allow a reduction in landscaped setbacks and Variance No. 2012-03 as conditioned to allow a reduction in parking by a vote of 4:0 (Nalle abstained; Acosta and Gartner absent) to allow a vacant industrial building to be occupied by HD Supply Repair and Remodel, a contractor's warehouse business at 1044 East Fourth Street located in the Transit Village (SD- 84) zoning district. The Planning Commission added a condition to restrict the truck delivery hours to be between 6:00 a.m. and 9:00 p.m. as outlined in the attached staff report (Exhibit A). FISCAL IMPACT There is no fiscal impact associated with this action. ?1? Jay M. Trevino Executive Director Planning & Building Agency VF:rb vf\reports\Vas\VA12-02812-03 HD Supply 1044 E Fourth.cc Exhibit: A. Planning Commission Staff Report 31A-1 31A-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: APRIL 23, 2012 TITLE: PUBLIC HEARING - VARIANCE NOS. 2012-02 AND 2012-03 TO ALLOW A REDUCTION IN PARKING AND SETBACKS FOR A NEW HD SUPPLY REPAIR AND REMODEL FACILITY AT 1044 EAST FOURTH STREET Prepared by Vince Fregoso ct/N 4 xecutive Director PLANNING COMMISSION SECRETARY APPROVED ? As Recommended ? As Amended ? Set Public Hearing For DENIED ? Applicant's Request ? Staff Recommendation CONTINUED TO Planning Ma ger RECOMMENDED ACTION Recommend that the Planning Commission adopt a resolution: 1. Approving Variance No. 2012-02 as conditioned to allow a reduction in landscaped setbacks. 2. Approving Variance No. 2012-03 as conditioned to allow a reduction in parking. DISCUSSION Request of the Applicant KSP Studio, Inc., representing HD Supply Repair and Remodel, is requesting approval of two variances in order to allow a vacant industrial building to be occupied by HD Supply Repair and Remodel, a contractor's warehouse business. Specifically, the applicant is requesting approval of a variance from Sections 41-475(a) and 41-1390 of the Santa Ana Municipal Code (SAMC) to allow an industrial building to encroach into the required 20-foot front yard landscaped setback and to allow a reduction in required parking. Protect Location and Site Description The subject property is a 4.3 acre, irregularly shaped parcel of land located at the southwest corner of Fourth and Santa Fe Streets and is immediately east of the Atchison, Topeka and Santa Fe (AT&SF) railroad line. Two vacant industrial buildings, consisting of approximately 91,581 square feet, are located on the site. The front building (Building A) is approximately 56,538 square feet in size, while the rear building (Building B) Is approximately 35,043 square feet in size. The setback along Fourth Street ranges from zero feet for the building to 10 feet adjacent to the parking area to the east. Along Santa Fe Street, a 10-foot wide landscaped setback is provided. A total of 100 parking spaces are currently located on the site. The site is surrounded by industrial uses to the north and east, the First Street underpass to the south and the Santa Ana Regional Transportation Center and industrial uses to the west (Exhibits 1 and 2). EXHIBIT A 31A-3 Variance Nos. 2012-02 and 2012-03 April 23, 2012 Page 2 Proiect Description The applicant is proposing to occupy the two vacant industrial buildings on the site with HD Supply Repair and Remodel, a wholesale contractors home improvement operation. The building closest to Fourth Street (Building A) will contain items such as stone and glass tiles, entry doors, hardware and electrical components. The rear building (Building B) will primarily contain kitchen and bath fixtures such as vanities and cabinets. At the west side of Building A, a new material storage yard will be created. Within this yard, products such as lumber, masonry and stone will be stored either under a new canopy or within the secured, open yard area. Numerous improvements are proposed for the site and buildings. Site improvements include a new 10-foot landscaped setback along Fourth Street at the west side of the building. An existing 10-foot wide landscaped planter area along Santa Fe Street will be replanted with shrubs and ground cover, with the existing Podocarpus and Melaleucas trees trimmed. A new wrought iron fence will be installed along the west property line, with Bougainvillea vines planted in bare spots along the railroad line to continue the existing screening of the site from the railroad corridor. Also, a new trash enclosure will be constructed for the site. Finally, the parking area will be repaired, repaved and restriped to code and new site lighting will be included. Building improvements include a new fagade for the north elevation of Building A that faces Fourth Street, the repainting of both buildings and the screening of existing and new mechanical equipment. Additionally, new signs will be installed that are in compliance with the City's Sign Code (Exhibits 3, 4, 5 and 6). Access to the project site will only be provided from Fourth Street. Although a driveway exists along Santa Fe Street, this driveway will be closed at all times and secured with a gate that will only allow Fire and/or Police Department access. This was done in order to address the concerns of adjacent business owners and residents regarding the potential for increased truck traffic in the neighborhood. Project Background HD Supply Repair & Remodel is a leading home improvement and building materials supplier that sells wholesale to the public. The product offering and warehouse format of HD Supply Repair and Remodel have been structured to serve the unique needs of small remodeling contractors, tradesman and the "do-it yourself' individuals. HD Supply Repair & Remodel operates 10 locations throughout California, including seven in Southern California and three in Northern California. The buildings were constructed in 1964 and have historically been used by distribution and warehouse related uses. At the time of its construction, the building was in compliance with all development standards in place for an industrial use. In the mid 1980's, the City revised its development standards to require a minimum landscaped setback standard of 20 feet, thereby making the building and site non-compliant with today's development standards. 31A-4 Variance Nos. 2012-02 and 2012-03 April 23, 2012 Page 3 The building was occupied by various uses until 2006, when the last tenant, Homestead House f=urniture, vacated the site. The building has remained vacant ever since. In 2007 HD Supply first applied to occupy the building. They submitted an application and plans for site plan review and requested a parking variance. On March 26, 2007 the Planning Commission approved the parking variance (Variance No. 2007-01) and the action was confirmed by the City Council on April 26, 2007. However, due to a shifting economy, HD Supply elected to not move forward at that time. The Santa Ana Municipal Code states that a "variance shall automatically become void after two years from the effective date of such approval when the owner fails to institute an action to erect, build, alter, move or maintain the use of the property as specified in the terms and conditions of the variance" (SAMC Sec. 41-647). The applicant did not move forward with the project during the specified two-year period, nor did they request an extension. As such, HD Supply has decided to move forward with the use and has reapplied for the project. General Plan and Zoning Analysis The General Plan land use designation for the site is Urban Neighborhood (UN), which allows for a variety of uses - including those found in Overlay Zones. The proposed project is consistent with the General Plan. The subject site is located in the Transit Zoning Code (SD-84) zoning district. SD-84 is a zoning designation that has several objectives, including providing for the integration of new development with the rehabilitation of existing structures and providing for the mixture of development and open spaces that situates commerce, work places, residences and civic buildings within walking distance of transit. In addition, it allows for the reuse of existing industrial sites that are within an Industrial Overlay Zone (I-OZ). The project site is located within I-OZ-M2 - Industrial Overlay Zone-Heavy Industrial. This overlay zone refers back to the Santa Ana Municipal Code for permitted uses and development standards within the M2 zone. The M2 zone allows for all uses permitted within the M1 zone, which includes home improvement warehouse stores, such as HD Supply [SAMC Section 41-472(v)]. The project site is within this overlay zone and is therefore consistent with the zoning designation, but considered to be a legal nonconforming site due to its lack of compliance with the Industrial development standards. Proiect Analysis Variance requests are governed by Section 41-638 of the SAMC. Variance requests may be granted when it can be shown that the following can be established: • That there exists a special circumstance related to the property, such as size, shape, topography, location or surroundings. • That the granting of the variance is necessary for the preservation and enjoyment of substantial property rights. 31A-5 Variance Nos. 2012-02 and 2012-03 April 23, 2012 Page 4 0 That the granting of the variance will not be detrimental to the public or surrounding property. • That the granting of the variance will not adversely affect the General Plan. If these findings can be made, then it is appropriate to grant the variance. Conversely, the inability to make these findings would result in a denial. Using this information, staff has prepared the following analysis, which forms the basis for the recommendation contained in this report. In the case of proposed projects that are located on sites or in buildings considered to be legally non- conforming according to Article VI of the Zoning Ordinance, the project analysis begins with an assessment of the degree to which the proposed project triggers the need to bring such non- conforming aspects of the site into conformance with current standards. Regarding this project, Section 41-683 of the Santa Ana Municipal Code (SAMC) states that if a nonconforming building is vacant, unused or unoccupied for 12 consecutive months, any subsequent use must conform to current development standards, including parking and setbacks. As this particular building has been vacant for over five years, an industrial use would not be able to occupy the building until the entire site complies with current code requirements, or a variance is approved for those items that do not meet the current standards. In this case, the site is non- compliant as to parking and landscape setbacks. Parkinq Variance The SAMC does not specifically address parking ratios for home improvement warehouse stores. The standard Industrial parking rate is two parking spaces per 1,000 square feet of gross floor area [SAMC Sec. 41-1390] and the same rate is required for furniture and appliance stores [SAMC Sec. 41-1349]. As the property is located within an Industrial zone and the use is most like a furniture and appliance store in terms of its use of gross floor area, the rate of two spaces per 1,000 square feet of gross floor area was used to determine the required number of parking spaces. The total gross floor area for the two buildings is 91,581 square feet. This equates to a parking requirement of 183 spaces. The applicant proposes to use the existing parking spaces on the site, which when configured to meet current design standards, will provide 100 parking spaces - a reduction of 83 spaces. This is similar to the proposal approved in 2007, which permitted a reduction of 72 spaces. The previous proposal included the demolition of 3,561 square feet of one of the existing buildings, which lowered the overall parking requirement and, therefore, a lesser reduction. A parking study was prepared by Parsons Transportation Group to substantiate the parking reduction. In order to determine whether the existing number of parking spaces would be adequate to support the proposed HD Supply store, a new parking analysis was prepared by Austin-Foust Associates, Inc., a traffic engineering firm. The February 2012 Austin-Foust study analyzed an existing HD Supply facility in the City of Carson as well as reviewed the Parsons Transportation Group parking study that was the basis for the approval of Variance No. 2007-01. 31A-6 Variance Nos. 2012-02 and 2012-03 April 23, 2012 Page 5 The Parsons Study analyzed the parking demand of two HD Supply locations in the cities of Pomona and Montebello. The Parsons Study identified that the maximum parking demand at any time was 88 spaces for the Montebello store and 99 spaces for the location in Pomona. These stores are 76,000 and 65,000 square feet respectively. The Montebello store more closely approximates that which is proposed in Santa Ana because of its size (76,000 square feet) and its location in an industrial area. The Pomona store, with its somewhat higher parking demand, is situated in a large retail center and therefore had a slightly higher parking demand. Based upon the findings of the studies and actual parking demand case studies at the existing HD Supply locations, the Austin-Foust study concluded that the project provide one parking space per 950 square feet of building area for this type of use located in industrial areas. The study concludes that the peak parking demand on the single highest day of the year at the proposed Santa Ana HD Supply location will not exceed 96 parking spaces (including all contractor vehicles). Since 100 parking spaces are proposed to be provided on the site, the study concluded that there is adequate parking provided for HD Supply to occupy the proposed site (Exhibit 7). Landscape Setback Variance In this case the zoning requires a landscaped setback of not less than 20 feet [Section 41-475(a)) along Fourth Street since the front yard abuts a public street. The building has an existing front yard setback of zero feet immediately adjacent to the building. The applicant is requesting to allow the building to remain as is and the existing setback to remain at its current dimension. Compliance with the setback standard would require the removal of the front 20 feet of the building fronting Fourth Street, which is about 3,000 square feet. Although not a significant amount of square footage, it would result in a major hardship as the structural integrity of the building would be compromised by the removal of a structural bearing wall. In analyzing the variance requests, staff must be able to show that findings can be made that support the criteria listed above. The project site has a special circumstance related to its size, shape and location. The property was developed approximately 48 years ago on a parcel that was compliant with code in regards to setbacks and parking. The subject industrial site is a 4.3-acre irregularly shaped parcel constrained by the location and size of two existing industrial buildings on the property. Due to the size of the property and location of existing buildings, the number of parking spaces required by the parking code cannot physically be achieved on the property without reducing building square footage, which would make the project unviable and create a hardship for the applicant and owner of the property. A parking analysis prepared Austin-Foust Associates, Inc. concluded that the peak parking demand on the single highest day of the year would not exceed 96 parking spaces, including all contractor vehicles. The project provides 100 on-site parking spaces for customer use. Therefore, applying the strict letter of the City parking code would, in this particular case, deprive the subject property of attracting a use to the property 31A-7 Variance Nos. 2012-02 and 2012-03 April 23, 2012 Page 6 that is otherwise allowed by right in the I-OZ-M2 zone and would deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this chapter. Further, the building was constructed in compliance with development standards at that time, which allowed a reduced setback on Fourth Street. The demolition of a portion of the building to comply with the setback standard would affect the viability of the use at this location and would provide an undue hardship to the property owner. The granting of the variances is necessary for the preservation and enjoyment of substantial property rights. Compliance with the setback standard would require the demolition of approximately 3,000 square feet of building area, which would affect the structural integrity of the building and reduce the feasibility of the proposed use of the building, which impacts the property rights of the owners. Further, the granting of the parking variance will preserve the property owners right to develop and lease a vacant industrial property with a use that is allowed by right in the zoning district. The new use will help to revitalize a vacant industrial property which will preserve the property owners right to upgrade, develop and lease their property. The granting of the variance will not be detrimental to the public or surrounding properties as the building and site is proposed to be rehabilitated to comply with all applicable development standards except for the setback and parking requirements. Further, the project will be consistent with the objectives of the Transit Zoning Code, which include allowing the reuse of industrial properties in the Industrial Overlay Zone and the rehabilitation of existing buildings in the area. • Finally, the project will not adversely affect the General Plan. The proposed use will result in the improvement of two vacant buildings that will remove several undesirable elements from the property, including the rehabilitation of worn down structures, new site landscaping and the installation of lighting that does not impact the adjacent neighborhood. To minimize the effects of the reduced setback and parking, an extensive list of conditions are proposed. In particular, a condition has been added to prohibit the use of the driveway on Santa Fe Street, which will reduce the potential for traffic intrusion into the adjacent neighborhood. Also, a condition requiring employees to park their vehicles on-site, which will also reduce the potential for traffic impacts on the adjacent neighborhood, has been incorporated into the variances. Public Notification The project site is located within the Saddleback View Neighborhood Association. Staff attended a meeting with the Saddleback View Association in February 2012 to review the project and obtain neighborhood input. No significant issues were raised by the neighborhood at this meeting. In addition, the contacts of this Neighborhood Association were notified by mail 10 days prior to this public hearing. 31A-8 Variance Nos. 2012-02 and 2012-03 April 23, 2012 Page 7 The project site itself was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to property owners within 500 feet of the project site, as well as concerned citizens listed on the Permanent Notification List. At the time of this printing, one e-mail message of support for the project had been received (Exhibit 8). CEQA Analysis In accordance with the California Environmental Quality Act, the proposed project is exempt from further review pursuant to Section 15301. This Class 1 exemption allows the repair, maintenance and permitting of existing structures that are consistent with the zoning and general plan designations. Categorical Exemption Environmental Review No. 2011-64 will be filed for this project. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Variance Nos. 2012-02 and 2012-03 as conditioned. /L---:; Vince Fregoso AICP Principal Plann r VF:jm vAreports\Vas1VA12-02&12-03 HD Supply 1044 E Fourth.042312.po Attachments: Exhibit 1 - General Vicinity Map Exhibit 2 - Land Use Map Exhibit 3 -- Site Plan Exhibit 4 - Floor Plan Exhibit 5 - Building Elevations Exhibit 6 - Landscape Plan Exhibit 7 - Parking Study Exhibit 8 - Letter of Support 31A-9 0 0 D i1a ?? v R3,? ClY' 115619C?, -JS }on A CZ CI d C2+:a Cl+ta C27_? C2+u RI P7 R2 , '„ Ft g C2 C7 i P3 OI R3 O R3 _R,._ - Mi O Rl R3 R3 R3 R3 1.51 ???]a R3 R3 R3 R3 r R3 R3 R3 pl R3 o R3 AT R1 R1 R2 RI! AI R1 RI RI -•.•- R2 PI RI R1 O ]? Rl RI `. 1 RI RI RI R1 RI J F..,V,. f AI 1R1 NR, RI R1 Rl Rl Rt Rl RI Al GENERAL AGRICULTURALt CR COMMERCIAL RESIDENTIAL Al S1NGL&FA-MILY RESIDENCE -B PARHiNG MODIFICATION GC GOVERNMENTCEYTER A2 11V04AMILYRESIDENCE C-SAS COMMERCIAL SOUTH MAIN MI LIGHT INDUSTRIAL R3 MULTIPLE-FAMILY RE5IDENCE CI COMMUNIYCOMMERCIAL M2 HEAWINDUSTRIAL R4 SUBURBAN APARTMENTS CI-MD COMM. COMMERCIAL-MUSEUMOISTRICT ;d0 MiLfTARY OPERATIONS RE RESIDENTIALESTATE C2 GENERALCO.MMERCIAL O OPEN SPACE SD SPECIFIC DEVEEOPMENT C3 CENTRAL BUSINESS P PROFES510NAL SP SPECIFIC PLAN C3-A CENTRAL BUSINESS-ARTISr%AtLAGE PCD PLANNEOCOhV:UNETYDEVFLOPMENT C4 PLANNEDSNOPPING CENTER PRE) PLANNED RESIDENTIAL DEVELOPMENT CS ARTERIALCOMMERCIAL VA 2012-02 & 2012-03 A HD SUPPLY REPAIR AND REMODEL SYA 1044 EAST FOURTH STREET -500FEET I" = 1000FFET P L A N N I N G A N D B U I L D I N G A G E N C Y VICINITY MAP EXHIBIT 1 31 A-10 TER CON. IND. IND. COAL INDUSTRIAL a a a ? 8 a Q INDUSTRIAL G w G ? o 0 z z IND. - o z v FOURTH STREET C 11 E R C I L SFR ¢ - w c F BUILDING 'n v SINGLE F UL -A RE IDEN IAL O cl THIRD STREET z PROJECT 11 ¢ - SITE E J C M . SfR o F Z ¢ 2 7 5 Q v v o RES. z o v w W¢ SECOND STREET z a BULDING < SIN L£ R RES. FA! ILV COM. o R S. v C O M M E R C I A L IND. FIRST STREET INDUSTRIAL IND. C O M M R C 1 A L VA 2012-02 & 2012-03 r HD SUPPLY REPAIR AND REMODEL ??! 1044 EAST FOURTH STREET P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31 A-11 siivna aw NKId 911S LOLL6 v3vN vIwS 133USS Vl?'3 "01 730on3lu 8 ?IIHdMtJ Jl-Iddns dH F? o f?y? 1 N 'dn =$F 4 7 a 14 ig°aY gag ?y f e3i:`°y?a +1w5 y ..1r@csis ? a N so ? iI s ?o Ef a8 o e r f T Iy 3 u a IL e = M, - , HI jtf @ 9 e jqIII I :grills 1g=11 , a A+ I 31 A-TY V JN101ins - NV-1d'dOOIJ 4 I OLZB VO VW VINYs .M3 US Wt'3 fwt 13GOW3WR blbdM I.1ddns dH f F Fs O 0 i? T 5 -? 3 ?I (I I 5 is as°$ T C7 O r a EXHIBIT 4 31 AAT &a???¢ ? a4?•?? Iii ?? 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P;31 A-19 City of Santa Ana SANTA ANA HD SUPPLY REPAIR AND REMODEL SITE TRAFFIC AND PARKING ANALYSIS UPDATE Prepared by: Austin-Foust Associates, Inc. 2223 Wellington Avenue, Suite 300 Santa Ana, California 92701-3161 (714) 667-0496 February 14, 2012 EXHIBIT 7 31A-20 SANTA ANA HD SUPPLY REPAIR AND REMODEL SITE TRAFFIC AND PARKING ANALYSIS UPDATE In 2007, Austin-Foust Associates (AFA) conducted a parking and traffic study for HD Supply Repair and Remodel (HD Supply) for a proposed reuse of two existing buildings at 1044 E. Fourth Street in Santa Ana as a new supply repair and remodel facility. The project was approved by the City of Santa Ana for development, but was never completed and now there are some revisions proposed to the site plan. With this, along with the four years that have elapsed, the City requires the traffic and parking study must be updated to reflect current conditions, which AFA has completed in this revised and updated traffic and parking study. The project will provide 100 parking spaces compared to a City Code requirement of 183 (i.e., two spaces per thousand square feet). This study investigates the actual demand for parking as well as the trip generation and left turn access to/from the site in support of a request by the project for a possible variance. PARKING ANALYSIS The site, as illustrated in Figure 1, encompasses two existing buildings totaling 91,581 sf situated on E. Fourth Street in the midst of an industrial zone. Figure 2 provides a detailed plan of the proposed revisions to the existing facility. The site would be divided into two sections known as Box "A" and Box "B". Box "A" will be comprised of 56,538 sf, while Box "B" will be 35,043 sf. AFA conducted a literature search as well as actual case studies of the parking demand of former Contractor's Warehouse (now HD Supply), and the Carson, California HD Supply store. Literature Search Results The Institute of Transportation Engineers (ITE) produced a publication Parking Generation, 3rd Edition dated 2004 which is regarded as the best source in the industry on parking demand. This publication provides the following information with respect to parking demand for industrial and building supply users. Santa Ana I ID Supply Repair and Remodel Site Traffic and Parking Analysis Update Austin-Foust Associates, Inc. 1217001 rpt.doc 31A-21 w~ a N U in x? av ?a p t`??LU y !-? 31A-22 0 N _ 34 I 6 UH 1y 11? 1 yy , ' I ? 5g 66 I 1 m> ? y?> j tl tl .? 1 y 1 1.3 M 4[ 3 ? r P y a r ? ? . fit . • F a 4 y e r y [ `Z «ti ? I 1 iQ? ? 33 s ? r F; CCAe??aa 0?lb $ ? 1 ?mw r. I 1 11 ' 1.1€F ??NS J6 ? 1 , ? N lli, tj x N 4 fC E? a a { 1 1 ?JI ? a a { J Y ffau??je 6 iE c?a 888 E Q? abfidP a ? F€F E? nk. gg e ?b a b S{: + !aa MIN 0 & 000 ; ¢? N s M EY?? .n a fV 00 ? w ? H u7 1..1 0 y O ~ w c Q M N 0.1 0 E b ? C F. IA y T Q: T ,C A ? fL' 31A-23 Table I PARKING DEMAND FOR INDUSTRIAL TYPE USERS User Average Peak Parkin Demand s aces/TSF Range 1. Industrial 0.75 .36-1.19 2. Industrial Park 1.27 .55-2.44 3. Manufacturing 1.02 .82-1.27 4. Building Materials` 1.40 1.1-1.7 Average 1.11 A max size of 30,000 sf (excludes storage area for supplies/lumber) Although these land use categories do not precisely reflect the proposed use, they nevertheless provide an indication of the parking associated with typical industrial users, particularly for the industrial park classification. Examination of Table 1 reveals the average peak parking demand for industrial uses is 1.11 spaces per TSF. The proposed project will provide parking at the rate of 1.09 spaces (100 spaces for 91,581 sf). It should be noted these figures represent the maximum parking demand that occurs at any one time and not the "average" throughout the day. Case Study Results Included in the updated version of the traffic and parking study is parking count information for the Carson, California HD Supply store. The Carson store is 55 TSF, which is similar in size to the proposed Box "A" at the Santa Ana Store. The store was observed during one weekday in August, 2011 to analyze the parking conditions. The result of the parking observation revealed an absolute maximum parking demand of 61 spaces. That peak parking total consisted of 54 vehicles in the general customer parking lot and another seven contractor vehicles parked in the building supply area loading lumber and other materials. The original study conducted a case study of an existing HD Supply store, which is the now closed store in La Habra Contractor's Warehouse at 601 E. Imperial Highway which consisted of two buildings totaling 108,400 sf located in an industrial area in the City of La Habra. This location was the closest similar facility to the planned store in Santa Ana, and its peak parking was observed for six days (two Fridays, two Saturdays and two Sundays) in November and December 2006, and for one Monday in January 2007. The results of those parking observations revealed an absolute maximum parking demand of 42 spaces. That peak parking total consisted of 35 vehicles in the general customer parking lot and another seven contractor vehicles parked in the building supply area loading lumber and other materials. Santa Ana HD Supply Repair and Remodel Site 4 Austin-Foust Associates, Inc. Tragic and Parking Analysis Update 1217001 rpt.doc 31A-24 Another source of parking demand information is available from Parsons Transportation Group, Inc. who conducted case studies in 2005 of two Contractor's Warehouse Stores located in Pomona and Montebello. This study (copy attached) is quite comprehensive with regard to parking demand for this specific use and delves deeply into numbers of sales transactions and surrounding location (industrial versus retail) as well as actual parking counts to produce recommended parking guidelines. Summarizing briefly what this exhaustive study found was that the maximum parking demand at anytime was 88 spaces at Montebello and 99 spaces at Pomona. These stores are 76,000 sf and 65,000 sf, respectively. The report concludes that the absolute maximum peak parking demand on any day of the year is 88 spaces for Montebello and 116 spaces in Pomona. The Montebello store more closely approximates that which is proposed in Santa Ana because both of its size (76,000 sf) and its location in an industrial area. The Pomona store with its somewhat higher parking demand is situated in a conventional large retail center. The Parson's report provides an overall recommendation of one parking space per 950 sf (1.05 spaces per TSF) for this type of use located in an industrial area. TRAFFIC ANALYSIS Access to the site is provided by two driveways, one on East Fourth Street, and a second provided on Santa Fe Street which is for a truck dock. The main entrance will be Fourth Street between Terminal Street and Santa Fe Street. The second driveway on Santa Fe Street is restricted to a truck dock for delivery of supplies to the site by large tracker-trailer vehicles. This driveway is not used by the general public. Fourth Street is striped with four travel lanes and a two-way left turn median. No parking is permitted on Fourth Street which means visibility entering and exiting these access points is good. Access to the main parking lot is also provided by a driveway near the cul-de-sac end. The two-way left turn lane on Fourth Street serves both of the site entrance as well as Santa Fe Street. With the locations to enter the site from a left turn on Fourth Street (all of which include a left turn lane for stopping and waiting for a gap) no significant traffic queues are expected for the site. The prior study looked at the La Habra Contractor's Warehouse for a case study that included driveway counts of vehicles entering and exiting the property during the AM and PM peak periods on a Monday in January 2007 (actual data is included in the appendix). These counts show that the existing Contractor's Warehouse generates a modest 48 trips during the AM peak hour (26 trips inbound and 22 trips outbound) and 46 trips during the PM peak hour (21 trips inbound and 25 trips outbound). The Santa Ana HD Supply Repair and Remodel Site 5 Austin-Foust Associates, Inc. Traffic and Parking Analysis Update 1217001 rpt.doc 31A-25 proposed project is comparable in size and surroundings to the existing La Habra Contractor's Warehouse, and is expected to generate approximately the same number of peak hour trips. FOURTH STREET GAP ANALYSIS Measurements of the gaps in through traffic along Fourth Street at Santa Fe Street in Santa Ana were conducted during the AM and PM peak periods on a Monday in January 2007 (included in the appendix), and have been updated with traffic information conducted on August 11, 2011. Gaps of five seconds or more in both directions of traffic were recorded. Left buns into the site from westbound Fourth Street will require a gap of at least fora- seconds in the eastbound traffic to safely cross traffic and enter the site. Left turns out of the site will require approximately seven and one-half seconds to cross both directions of traffic; however, the existence of a two-way left-turn. lane on Fourth Street enables outbound left-turn traffic to complete the turn in two steps (i.e., the vehicle can cross eastbound traffic and wait in the median until an adequate gap in westbound traffic develops). Table 2 summarizes the number of gaps in both directions that are available on Fourth Street at the project site. As this table shows, there were 90 gaps of ten seconds or more in both directions of traffic during the AM peak hour. Assuming that 50 percent of project traffic is distributed to the east and 50 percent to the west, there were at least 90 gaps of sufficient duration to accommodate 24 left-turn vehicles (13 trips inbound from east of the site and 11 trips outbound to west of the site) during the AM peak hour. Similarly, there were at least 54 gaps to accommodate 23 left turn vehicles (11 inbound from the east and 13 outbound to the west) during the PM peak hour. Sufficient gaps of adequate length are available on Fourth Street to allow the project traffic to enter and exit the site via a left turn. Santa Ana HD Supply Repair and Remodel Site 6 Austin-Foust Associates, Inc. Traffic and Parking Analysis Update 1217001rpt.doc 31A-26 hne Period Table 2 GAP SURVEY RESULTS SUMMARY Gaps Between 5 -10 see Gaps Over 10 see AM Peak Hour 7:00 -- 7:15 37(23) 27(31) 7:15 - 7:30 42(19) 23(37) 7:30 - 7:45 36(10) 23(25) 7:45 - 8:00 26(12) 24(25) 8:00 - 8:15 39(11) 19(22) 8:15 - 8:30 32(9) 24(28) 8:30 - 8:45 30(2) 24(26) 8:45 - 9:00 (14) (33) TOTAL 7:30 - 8:30 90(100) PM Peak Hour 4:00 - 4:15 47(39) 14(27) 4:15 - 4:30 33(35) 17(26) 4:30 -4:45 38(32) 14(17) 4:45 - 5:00 41(26) 16(17) 5:00 - 5:15 38(32) 11(17) 5:15 - 5:30 29(36) 15(22) 5:30 - 5:45 53(37) 15(22) 5:45 - 6:00 27(40) 13(20) TOTAL 5:00 - 6:00 54(81) ' (XX) = Year 2007 data IMPACT OF TRAIN CROSSINGS The site is situated on Fourth Street immediately adjacent to the railroad crossing of the OCTA Metrolink mainline. The Santa Ana Regional Transportation Center (RTC) is situated just north of Fourth Street (at Santa Ana Boulevard). There are frequent train crossings at Fourth Street, which interrupts the traffic flow there. The passenger trains actually stop at the Santa Ana RTC but those stops do not block Fourth Street. Observations of the gaps in traffic on Fourth Street indicate that, while frequent train crossings do occur, they do not create a long-term blockage of the east-west flow. For example, examination of the gap data (see appendix) in the two peak periods (7-9 AM and 4-6 PM) reveals at no time was traffic flow on Fourth Street interrupted for more than one and a half minutes. Consequently, it is concluded that the existing train crossings albeit frequently, does not constitute a significant factor with respect to access to/from the site. In fact in one respect, access to and from the east is actually facilitated by the train crossings. Santa Ana 111) Supply Repair and Remodel Site 7 Austin-Foust Associates, inc. Traffic and Parking Analysis Update 1217001rpt.doc 31A-27 CONCLUSION In summary, based upon the finding of a literature search and actual parking demand case studies, it is concluded that an absolute peak parking demand on the single highest day of the year will not exceed 96 parking spaces and that includes all contractor vehicles. A total of 100 spaces (including four handicapped spaces) are being provided which results in a maximum 96 percent utilization even for the highest day of the year. During most of the time, the parking is expected to be at most about half fill] since the current parking at the La Habra site (maximum 42 spaces occupied) appears most representative of the planned Santa Ana site. In addition, the proposed project is estimated to generate approximately 50 AM peak hour and 50 PM peak hour trips. With two public driveway locations serving the site and the existence of a two-way left turn lane already in place on Fourth Street, no significant back-up of left hlrning traffic is anticipated at the project entrances. Sufficient gaps of adequate duration are available on Fourth Street during the peak hours to allow project traffic to enter and exit the site via a left turn. Observation of the effect of frequent train crossings of Fourth Street indicates these temporary blockages of through traffic albeit frequent are of short duration (less than one and a half minutes) and do not negatively impact access to the site. In fact in one respect, access to and from the east these train blockages actually improve accessibility of the site. Santa Ana HD Supply Repairand Remodel Site 8 Auslin-Foust Associates, lac. Traffic and Parking Analysis Update 1217001rpt_doc 31A-28 APPENDIX 1. "Parking Study of Two Contractor's Warehouse Final Report", Parsons Transportation Group, Inc., February 2006. 2. La Habra Contractor's Warehouse Trip Generation Data (2007) 3. Fourth Street Gap Survey Data (2007) 4. Carson HD Supply Parking Survey (2011) 5. Fourth Street Gap Survey Data (2011) Santa Ana HD Supply Repair and Remodel Site A-1 Austin-Foust Associates, hic. Traffic and Parking Analysis 1217001rpt.doc 31A-29 Parking Study of Two Contractors' Warehouse Stores FINAL REPORT Prepared For: Home Depot USA, Inc. Prepared by: M PARSONS TRANSPORTATION GROUP, INC. February 27, 2006 Parking Study of Two Contractors' Warehouse Stores FINAL REPORT Prepared For: Home Depot USA, Inc. Prepared by: t=M PARSONS TRANSPORTATION GROUPM INC. February 27, 2006 31A-;31 TABLE OF CONTENTS 1 List of Tables ....................................................................................................... ii ........................... Executive Summary ....................................................................................................................... iii 1. Introduction .................................................................................................................................1 Purpose of the Study ............................................................................................................1 Study Procedure ...................................................................................................................1 2. Store Characteristics ...................................................................................................................3 Study Stores .........................................................................................................................3 Design Day ...........................................................................................................................3 3. Parking Studies ...........................................................................................................................5 Parking Lot Use ...................................................................................................................5 Customer Activity ................................................................................................................7 4. Analysis Results ..................................................................... Data Comparison ........................................................ Design Day Adjustment ........................................... Analyzing Parking Demand ............................................ 5. Conclusions & Recommendations ......................................... Appendices A - Parking Lot Surveys B - Hourly Parking Lot Occupancy and Customer Counts i ....................................................9 ....................................................9 ................................................10 ..................................................11 ..................................................14 31 A.M LIST OF TABLES 1. Summary of Study Store Characteristics .............................................................................3 2. Peak Hours of Customer Activity and Parking Demand .....................................................7 3. Visiting Customers versus Transactions ..............................................................................8 4. Employees, Customers, and Transactions on the Study Day ..............................................9 5. Peak Parking Demand on Study Day, Design Day, and Busiest Day ................................10 11 31 AL33 EXECUTIVE SUMMARY Parsons Transportation Group Inc. (Parsons) was retained by The Home Depot to perform a parking study for two of its Contractors' Warehouse stores in the Los Angeles area. Specifically, this study provides a detailed analysis of daily parking activity at two Contractors' Warehouse stores in the Los Angeles area during the fall of 2005. These analyses result in parking demand relationships that can be used by Home Depot to estimate the parking requirements of future Contractors' Warehouse stores, both inside and outside of Southern California. Conclusions & Recommendations • None of the Contractors' Warehouse store parking lots filled to capacity on any of the study days. • The average peak occupancy among the study stores was 69% of the parking spaces available for use. The lowest peak occupancy was 61 % and the highest was 78%. • At the Pomona store, a certain number of parking spaces were taken out of service by the placement of stacks of building materials and the storage of rental equipment and forklifts. • The 5°i busiest day was chosen for the design day in this analysis. This means that each store would have adequate parking spaces for the parking demand experienced every hour of every day of the year except for during the peak hours of demand on the 4 busiest days of the year. • The two study stores exhibited similar patterns of parking lot use, and experienced similar peak hours of customer and parking activity. However, each store experienced different transaction-based characteristics. This is likely due to the fact that the Montebello store is located in an industrial area and the Pomona store is located in a retail shopping center. (The Pomona store had a higher relative parking demand because it had more visiting customers who did not make a purchase.) • Based on this study, it appears that Contractors' Warehouse stores located in retail shopping centers attract more browsing customers and therefore need more parking than stores located in industrial areas. • The resultant design-day square footage rates varied between the study stores, ranging from 598 square feet per required parking space at the Pomona store to 957 square feet per required parking space at the Montebello store. • In terms of building space, the average square footage rate between the study stores was 777 square feet per required parking space. The use of this average to calculate future parking demand is not recommended. iii 31 A-z-34 • Previous parking studies have shown that there is virtually no correlation between the square footage of a store and its resultant peak parking demand. If using square footage to predict parking needs, a rate of one parking space per 600 square feet could be applied to new Contractors' Warehouse stores that will be located in shopping centers, and a rate of one parking space per 960 square feet could be applied to new stores that will be located in industrial areas. If only one rate is to be used, it should be the maximum rate observed: one parking space would be required for every 600 square feet of the building in order to provide enough parking for the peak parking demand at all types of stores on the 5"' busiest day of the year. • Previous parking studies have shown that the number of transactions and/or the amount of annual sales are better predictors of parking demand than square footage. For example, if there are two stores of identical size, the store with more customer traffic (and therefore sales) will have a higher parking demand than the store with fewer customers. • The resultant parking ratios ranged from 2,738 annual transactions per required parking space at the Montebello store to 1,915 annual transactions per required parking space at the Pomona store. • The average transaction rate is 2,327 annual transactions per required parking space. Using the average rate would over-estimate the parking needed for lower performing stores and under-estimate the parking needed for higher performing stores, and therefore is not recommended. • It is recommended that the different rates be used according to the store location type. Specifically, a rate of one parking space per 1,915 annual transactions could be applied to new Contractors' Warehouse stores that will be located in shopping centers, and a rate of one parking space per 2,740 annual transactions could be applied to new stores that will be located in industrial areas. • More store locations would need to be studied in order to refine these rates and/or calculate a more robust average rate for both store types. • It is important to note that the rates detailed above do not predict the additional amount of parking needed to provide cart storage, sales displays, and storage of store merchandise and equipment. The additional parking spaces required for these uses must be estimated and added to the parking demand predicted by the equations in order to arrive at the total number of parking spaces to build. • The predicted parking demand should be increased by one parking space to account for stray carts that may take a parking space out of service for a short time. rv 31Az35 • The number of parking spaces that will be used to display merchandise and/or stockpile merchandise and equipment must be decided upon on a store-by-store basis (or by a corporate-wide decision) and then added to the predicted parking demand. v 31 A46 1. INTRODUCTION Parsons Transportation Group Inc. (Parsons) was retained by The Home Depot to perform a parking study for two of its Contractors' Warehouse stores in the Los Angeles area. This report summarizes the methodology, procedures, and results of the detailed analysis of parking activity at the stores in Montebello and Pomona, California during the fall of 2005. Purpose of the Study This study was conducted to enhance the parking demand estimation capabilities of Home Depot store planners. Specifically, this study provides a detailed analysis of daily parking activity at two Contractors' Warehouse stores in the Los Angeles area. These analyses result in parking demand relationships that can be used by Home Depot to estimate the parking requirements of future Contractors' Warehouse stores, both inside and outside of Southern California . Recommendations are made based upon data collected during field studies conducted by Parsons and based on existing store sales and transactions data provided by Contractors' Warehouse. Study Procedure The analysis of parking demand at two Contractors' Warehouse stores in Southern California involved the accomplishment of the following tasks: • Parsons visited each study store, determined the number of parking spaces available at each location, and documented any special characteristics of each store. • Parsons conducted parking occupancy counts at each study store over the course of the study day, and counted the number of customers entering the store. Each store was studied on a Saturday due to the anticipated peak parking lot occupancy on that day of the week. Hourly parking occupancy counts were collected at each store between 8 AM and 4 PM. Customers entering the store were also counted during the time of the parking study. • Contractors' Warehouse staff provided Parsons with a summary of the previous year's transaction data for each of the study stores. This included the number of transactions recorded at each store on every day of the year, which allowed the determination of the busiest day, the average day, and the 5"' busiest day. • Analyses were performed using the results of the parking and customer counts to establish relationships between parking, store size, sales and transaction data, and number of customers. In addition, comparing the transactions of one of the store's busiest days with those occurring on Parking Study of Two Contractors Warehouse Stores - Final Report Page 1 31A.%37 the day of study allowed Parsons to estimate what the parking demand would have been on that busiest day. • The results of the analysis were used to predict parking demand for a typical design day for a planned Contractors' Warehouse store. • A report was prepared providing the findings and conclusions of the study. Parking Study of Two Contractors Warehouse Stores - Final Report Page 2 31 Q1- 38 2. STORE CHARACTERISTICS This section of the report describes the characteristics of the two Contractors' Warehouse stores in the Los Angeles area that were analyzed in this parking study. Study Stores There are nine Contractors' Warehouse stores in Southern California. Home Depot staff selected two locations for inclusion in this parking study: the store in Montebello, California, and the store in Pomona, California. These two stores were selected to be representative of the average customer and parking activity for the nine stores. The Montebello store has about 75,600 square feet of space and the Pomona store has 65,800 square feet. Table 1 summarizes the characteristics of each store. Table 1- Summarv of Sttidv Store Characteristics Characteristic Montebello Store Pomona Store Address 7601 Telegraph Road Montebello, CA 90640 1680 W. Mission Blvd. Pomona, CA 91766 Store Number 703 705 Store Size 75,618 sq.ft. 65,367 sq.ft. Total Transactions in 2004 216,311 209,521 Average Daily Transactions in 2004 599 580 Busiest Month in 2004 October October Busiest Day of the Week in 2004 Saturday Saturday Average Saturday Transactions in 2004 683 727 Transactions on Busiest Day in 2004 879 881 Busiest Day in 2004 Saturday, October 23 Saturday, October 16 "d Busiest Day in 2004 Thursday, November 11 Saturday, October 23 3`d Busiest Day in 2004 Friday, November 26 Saturday, November 6 `h Busiest Day in 2004 Saturday, November 6 Saturday, May 22 5`h Busiest Day in 2004 Saturday, January 3 Saturday, May 29 Parking Spaces Available on Study Day 113 163 Ludy Day Saturday, October 1, 2005 Saturday, October 8, 2005 Design Day The "design day" refers to the day of the year that experiences the maximum level of parking activity that can be accommodated by the parking lot that will be built as a result of the design methodology. Rather than a specific date of the year, the design day is defined by how much parking activity takes place. In other words, the goal is to provide just enough parking spaces to accommodate the demand on the selected design day, which could be the busiest day of the year, the 5`h busiest day, the 101h busiest day, etc., which could occur in different months for different stores. Parking Study of Two Contractors Warehouse Stores - Final Report Page 3 31A-.6139 Contractors' Warehouse provided transaction data for both study stores for the calendar year 2004. The busiest days of the year for each store were ranked based on the number of transactions, and the first five busiest sales days were identified. These data showed that the peak sales day at both stores occurred in October. In fact, the busiest days at both stores occurred mostly in the fall. The data also showed that the majority of the five busiest days at each store occur on a Saturday. Regardless of the month in which it occurs, the design day specifies what level of estimated parking demand should be accommodated. If a planner wishes to provide enough parking spaces to accommodate the estimated maximum number of parking spaces that would ever be demanded at a store, the design day would be the busiest day of the year. However, designing parking lots for their maximum demand is not practical from an efficiency or cost-effectiveness perspective. For example, if enough parking spaces are provided to accommodate the absolute peak demand (the 100`x' percentile), there would be a certain number of spaces provided that would only be needed for one day during the entire year, and then for only one or two hours of that specific day. In contrast, choosing the 5"' busiest day as the design day would mean that some customers may not be able to find a parking space immediately during the peak hour of the busiest four or five days of the year; however, they should have no problem finding a parking space in the lot at any other time. The commonly used design level for a regional shopping center is the 20'1' busiest hour, which typically occurs on the 101h busiest day. For this analysis, the 5'h busiest day was chosen as the design day for Contractors' Warehouse stores because it provides adequate parking for the vast majority of the year while still providing a savings in the number of parking spaces that need to be built. This design day reflects the 99'h percentile and means that each store would have adequate parking spaces for the parking demand experienced every hour of every day of the year except during the peak hours of demand on the four busiest days of the year. This is an adequate choice considering the cost of allocating land to parking use and the relatively few customers that would be affected. The parking studies were conducted on a Saturday in October in an attempt to study parking activity during the busiest time of the year on the busiest day of the week (based on the 2004 data). The sales and transaction data provided by Contractors' Warehouse were used to adjust the study day activity levels to the selected design-day levels. Design-day peak parking demand values were calculated by factoring the study data up or down to reflect the activity levels at the stores on their 5''' busiest days. In the case of the Pomona store, the number of transactions was less than the 5'1' busiest day in 2004, and so the peak parking demand was factored up. In contrast, the number of transactions at the Montebello store was larger than the 5'h busiest day in 2004, and so the peak parking demand was factored down. Parking Study of Two Contractors Iarehouse Stores - Final Report Page 4 31A40 3. PARKING STUDIES The annual transaction data supplied by Contractors' Warehouse for 2004 showed that, for both stores, the busiest day of the week was Saturday; the busiest month was October; and the busiest consecutive 8 howl occurred from 8 AM to 4 PM. Therefore, parking demand studies were conducted at the two study stores in October 2005, and both of the studies were conducted on a Saturday between 8 AM and 4 PM. Each store was contacted prior to the study to ensure that no unusual activities would be taking place at the store or in the parking lot on the day of the study. Parking Lot Use As shown in Table 1, 113 parking spaces were available for use at the Montebello store and 163 spaces were available at the Pomona store. The "parking spaces available" represents the actual number of parking spaces that were open for customer (and employee) parking on the day of the study. In some cases, not all of the parking spaces constructed at a store are available to park in because some may be taken "out of service" by the placement of sales displays, building materials, and/or the temporary storage of equipment. The Montebello store did not have any parking spaces taken out of service, but the Pomona store had a total of 22 spaces taken out of service by the storage of bathtubs, rental equipment, and forklifts. Despite this, the Pomona store still had more parking spaces available for customers than the Montebello store. In addition, it appeared the number of spaces taken out of service appeared to be typical of the Pomona store's routine operations, most likely due to the fact that the smaller Pomona store had more parking available to it. Detailed surveys of each store's parking lot layout and use are presented in Appendix A. At the top of each hour during the parking study, a complete inventory of the number of parking spaces occupied in the store parking lot was taken. This inventory was taken on an aisle-by-aisle basis so that a general spatial pattern of parking use could be determined as well as a numerical one. In terms of numbers, neither of the Contractors' Warehouse store parking lots filled to capacity on the study days. The Montebello store experienced a peak occupancy of 78% of the parking spaces available for use, while the Pomona store experienced a peak occupancy of 61 %. This equates to an average peak occupancy between the stores of 69%. The peak parking occupancy occurred at 2 PM at the Montebello store and at 3 PM at the Pomona store (see Table 2). Spatially, several patterns of parking lot use became apparent during the hourly parking inventory counts that warrant discussion. These include customer and employee parking habits, lumberyard activity, and day laborer activity. Of the two locations, the Pomona store has a more traditional retail store parking lot as it is located in a shopping center in a generally suburban (retail/residential) area. As such, its parking lot generally extends along the length of the warehouse and is well defined and landscaped. The Montebello store is in an industrial area and has a less traditional parking lot, with most of the parking concentrated in one corner of the property. Both stores have lumber yard parking areas that operate differently from traditional parking areas. Parking Study of Two COIM-act07 s Warehouse Stores --- Final Report Page 5 31441 Employees were observed parking in the parking areas closest to the side of the building at the Montebello store, while customers primarily used the parking areas closest to the entrance as well as the areas oriented with the entrance, but yet further from the building. At the Pomona store, employees were observed parking mostly in areas of parking that were furthest from the building, while customers parked in the areas closest to the building, extending towards the street. As stated before, this appeared to be a more traditional parking pattern for a large retail store. The lumber yards at each store operated with customers driving in with their vehicles, mostly trucks, and stopping temporarily along the yard to select and load their goods (lumber, planting material, cement, etc.). According to Contractors' Warehouse employees, each lumber yard can average 30 to 50 vehicles per hour driving through and selecting their building material on busy days. Once the material has been loaded, the customer drives to a station where a Contractors' Warehouse employee inspects the material and hands a ticket to the customer. The customer then parks in the lumber yard parking area and goes into the main warehouse to pay for their purchase. At both stores, the lumber yard parking area is striped as angled parking with larger than normal spaces to facilitate easy movements into and out of the area by large vehicles and vehicles with trailers. The limber yard parking demand at the Montebello store often exceeded its capacity of 15 parking spaces. Because there were more vehicles than striped parking spots at times, customers would often park parallel to the walls and behind other vehicles. In addition, as customers were driving out of this area, congestion was apparent at the "check station" because a line of cars were waiting for an employee to check that the items in the vehicle matched their purchase ticket. This situation often created operational and parking delays in the area. In contrast, the lumber yard parking at the Pomona store was larger, providing 32 larger than normal parking spaces. In addition, it was apparent that this area originally provided more parking spaces but that some of the space was being used to store bathtubs, rental equipment, and forklifts. The larger area available for lumber yard parking allowed room for turning movements and other related operations so the area did not exhibit significant congestion. Another unique factor observed at these Contractors' Warehouse parking lots was the activity of day laborers. Both stores attracted day laborers who generally stand around the entrance of the parking lot waiting for possible work from a contractor visiting the store. Some of the day laborers drive to the store and park their cars there, but most carpool or are dropped off at the store by someone else. At the Montebello store, those day laborers who parked there used one of the areas most utilized by Contractors' Warehouse customers, as opposed to using the parking that is farthest from the entrance. In contrast, day laborers parked in the parking area farthest from the entrance along the street at the Pomona store. Additional day laborer activity includes an office trailer that is setup on the edge of the Pomona parking lot that offers assistance to the day laborers. Also, a catering service arrived and parked their truck and food-trailer in the parking lot of the Montebello store, serving food primarily to the day laborers. This catering service apparently operates six days a week from 12:30 PM to 4:30 PM. Finally, stores such as Contractors' Warehouse that cater to contractors and home improvement customers typically experience a certain percentage of vehicles in their parking lot that are towing trailers in order to carry the lumber and other supplies purchased at the store. Surprisingly, no Parking Sturdy of Two Cont1•actom Warehouse Stores - Final Report Page 6 31A-142 vehicles with trailers were observed at either store on the study days. This was despite the fact that a large number of customers used the lumber yard. Conversations with store staff revealed that Saturdays typically see mostly residential customers and that the contractors typically frequent the stores on weekdays. It is on those days that employees report seeing vehicles towing trailers. Even so, the overall proportion of trailers is apparently small compared to the overall number of parked cars. As mentioned before, the lumber yards are built to accommodate vehicles parking and turning around with trailers. Customer Activity During the same time that the parking inventories were being conducted, a constant count of customers entering the store was being collected. This count included every person entering the store, though a distinction was made between visiting customers and visiting children. Specifically, visiting customers are defined as adults with purchasing power that visit the store (children who accompany their parents do not have purchasing power and are therefore not considered visiting customers). To more closely correspond with potential transactions, two adults entering the store as a couple were counted as "one customer." The number of visiting customers entering the store relates directly to the number of parking spaces occupied in the parking lot. More specifically, the number of customers entering the store during successive hours of the day combined with the average time customers spend in the store results in the number of vehicles parked in the parking lot at any given time. Table 2 summarizes the peak hour of customer activity and the peak hour of parking demand for each study store. Table 2 - Peak Hours of Customer Activity and Parkine Demand Peak Flour of Customers Entering the Time of Peak Parking Spaces Spaces Store # Store Name Customers * Store During Parking Demand Occupied Entering the Store Peak Hour* Peak 703 MONTEBELLO 8 to 9 AM 133 2 PM 88 705 POMONA 11 to 12 noon 125 3 PM 99 *Excludes children. Couples were counted as "1 customer." As shown in Table 2, the peak hour of customer activity at each store (entering the store) occurred before noon. While one store experienced its peak between 8 and 9 AM, the other experienced its peak between 11 AM and 12 noon. However, both experienced their heaviest periods of customer activity between 8 AM and 12 noon (see Table 3). In contrast, the peak time of parking occupancy occurred in the afternoon (2 PM at one store, and 3 PM at the other). In general, the peak parking demand occurs two to three hours after the end of the peak morning period of customer activity. Due to the complexity of the relationship between the number of customers entering the store and the time each spends in the store, there is no direct correlation between number- of customers entering the store and number of vehicles parked in the parking lot. Instead, the peak parking occupancy is typically correlated with the amount of daily business a store transacts. Detailed counts of customers entering the store and the corresponding number of parking spaces occupied for each hour of the study are presented in Appendix B. In terms of customers and transactions, if a visiting customer purchases something in the store, he/she becomes a transaction. (Contractors' Warehouse's data lists transactions as "customers," but Parking Study of Two Contractors Warehouse Sto1•es - Final Report Page 7 31A43 we reserve that term for people visiting the store, regardless of whether they purchased anything). While it is unknown how many visiting customers actually became transactions over the course of the day, a comparison can be made during the eight hours of data collection on the study days. Table 3 shows the number of visiting customers observed entering each store versus the number of transactions recorded on an hour-by-hour basis for each store. These data shows that there is no direct correlation between customers entering the store and transactions recorded at the cash registers, though they generally track each other in a relative order of magnitude. Typically the number of transactions is lower than potential customers overall, but sometimes the number of transactions is higher in a specific hour. The former is due to some potential customers who do not make a purchase, and the latter is due to customers arriving in one hour and not making their purchase until a later hour. Table 3 - Visiting Customers versus Transactions Montebello Store October 1, 2005 Pomona Store October 2005 Hour of the Study Day Visiting Customers Entering the Store* Transactions Visiting Customers * Entering the Store* Transactions 8 to 9 AM 133 60 89 112 9 to 10 AM 120 83 125 107 10 to 11 AM 125 81 107 96 11 to 12 noon 83 77 121 90 12 to 1 PM 82 76 70 71 1 to 2 PM 104 86 104 94 2 to 3 PM 80 86 95 76 3 to 4 PM 77 64 88 62 'Excludes children. Couples were counted as I customer." Parking Sturdy of Two Contractors Warehouse Stores - Final Report Page 8 31A-44 4. ANALYSIS RESULTS Developing a method of estimating future design-day parking demand entailed conducting several analyses using the data collected. First, the consistency of the data collected from each site was compared. Second, possible relationships between parking demand, sales activity levels (sales and transactions), square footage, and other store characteristics were examined to determine the best possible predictor of parking demand. Third, the study day parking demand values were adjusted to the peak hour of the 5`h busiest day. Fourth, a range of parking demand rates was determined based on the results of the parking study. Data Comparison Several components of the data collected were compared between the study sites to assist in determining whether the data was biased or unreasonable. These components included the number of transactions, sales totals, visiting customers, parking demand patterns, and peak hours of activity. Comparisons of several of these components have already been described in the previous chapter. Specifically, both study stores had roughly the same building configuration, experienced the same patterns of parking lot use, and experienced similar peak hours of customer and parking activity. Surprisingly, both stores also had essentially the same number of visiting potential customers. However, as shown in Table 4, each store experienced different transaction-based characteristics. While not directly comparable due to their different study dates, the Montebello store brought in 76% more in sales on October I than the Pomona store brought in on October 8. Not only did the Montebello store have more transactions, but the average transaction amount was 42% higher than that of the Pomona store ($142 versus $100). These results are partially due to the fact that the Montebello store is about 16% larger than the Pomona store, but could also be partly due to their different location types (industrial versus retail areas). For example, the Pomona store, which is located in a retail shopping center, had a higher percentage of visiting customers who did not make a purchase. Table 4 - Employees, Customers, and Transactions on the Studv Dav Store Average Transactions Visiting Store # Store Name Size Employees Transaction Total During Customers* (sq.ft.? Amount Transactions 8 Hours of During 8 Hours Stud of Stud 703 MONTEBELLO 75,618 46 $142.58 970 708 804 705 POMONA 65,367 33 $100.63 753 613 799 *Excludes children. Couples were counted as "l customer." These comparisons reveal that the two stores exhibit similar customer and parking activity patterns during the course of the day, but that the magnitude of this activity differs between the stores, likely due to store size and location type. A larger set of study stores would be necessary to determine whether these relationships are statistically significant. Parking Study of Two Contractor s Warehouse Stores - Final Report Page 9 31 Aa45 Design Day Adjustment To adjust the study data to design-day levels, the annual transaction data provided by Contractors' Warehouse (for the calendar year 2004) were analyzed to determine the design day adjustment factors needed for each store. As discussed previously, the design-day level chosen for this study was the 5th busiest sales day of the year. To determine the appropriate adjustment factor for each store, the daily transaction total from the 5"' busiest day of the year according to the Contractors' Warehouse data was divided by the daily transactions total that occurred during the study day. The calculations for determining the design-day adjustment factor for the Pomona store are shown below: Daily Transactions on Design Day = Adjustment Factor Daily Transactions on Study Day Example: 5"' busiest day in 2004 had 832 transactions Study day had 753 transactions 832 - 753 = 1.105 Study day experienced a peak parking demand of 99 spaces. Estimated design-day peak parking demand = 99 x 1.105 = 109 spaces Conducting the study in October appears to have been successful because the Montebello store had more transactions on the study day than even the busiest day in 2004. Without having the transaction totals for 2005, it was therefore assumed that the study day was the busiest day of 2005. Therefore, the peak parking demand for the Montebello store was factored down to represent the 5th busiest day. Table 5 shows the peak parking demand observed on the study days as well as the peak parking demand calculated for the design day (the 5th busiest day of the year) and for the busiest day. As shown in the table, the calculated design-day peak parking demand is higher than that observed on the study day for both stores. Based on the daily transaction total of the study day, the peak parking demand calculated for the 5th busiest day includes 11 more occupied spaces than during the study day at the Pomona store. Since the Montebello store happened to be studied on the assumed equivalent of the busiest day of the year for that store, its 5t busiest day peak parking demand is 9 spaces fewer than that observed on the study day. Also shown in the table, none of the design-day peak parking demands exceeded the capacities of the store parking lots, and neither do the busiest- day peak parking demands. In fact, both stores have about 3 0 or 50 more parking spaces than would be needed on the 5"' busiest day. Table 5 - Peak Parking Demand on Study Day, Design Day, and Busiest Day Parking Peak Peak Parking Peak Parking Excess Parking Total Capacity Parking Demand Demand Capacity, Store Store Name Parking Available Demand Calculated Calculated based on # Capacity on Study Observed for for the 5 and 1 Day y on Study Design Day 0' Busiest Day Busiest Day Da 5 Busiest 703 MONTEBELLO 113 113 88 79 88 34 25 705 POMONA 185 163 99 109 116 54 47 "Parking capacity available on study day minus the peak parking demand for the Stn or 16' Busiest Days Parking Study of Two Contractors Warehouse Stores - Final Report Page 10 31A46 Analyzing Parking Demand Typically, the design-day adjusted parking demands shown in Table 5 would be analyzed to determine which variables correlated most closely and would be the best predictors of parking for the Contractors' Warehouse stores. The 5`h busiest day peak parking demand would be compared to daily and annual number of transactions, square footage, and other store characteristics. In previous parking studies conducted for Home Depot, square footage typically showed the worst correlation with parking demand and annual sales (or transactions) typically showed the best correlation. However, since there are only two stores in this study, no statistical analysis can be conducted to determine which characteristics are the best predictors of parking demand. This is due to the fact that there are only two data points, between which any equation will yield a straight line, and therefore all variables will appear equally good at predicting the parking demand. Instead, this section of the report will detail the average relationships that exist between the various store characteristics and the parking demand. Square Footage The easiest method of predicting parking demand for a proposed store would be to base it on the square footage planned for the store. However, previous parking studies have shown that there is virtually no correlation between the square footage of a store and its resultant peak parking demand. While average rates can be extracted from this data that can be used to generally estimate the number of parking spaces that can adequately serve a store of a certain size regardless of customer activity, these rates would over-predict the amount of parking needed for a store with lower sales activity. The ratio of parking spaces needed to square footage varied greatly between the study stores as described above. The resultant parking ratios ranged from 957 square feet per required parking space at the Montebello store to 598 square feet per required parking space at the Pomona store. This shows that the Pomona store has about twice as much parking demand per square foot as the Montebello store (likely due to its location in a shopping center). The average rate is 777 square feet per required parking space. Using the average rate would over-estimate the parking needed for lower performing stores, which would be acceptable (though less cost-effective). However, using the average rate would under-estimate the parking needed for higher performing stores, which would be unacceptable. Therefore, the maximum observed rate would have to be used in order to provide enough parking for all store types; however, this would over-estimate parking needed for lower performing stores and be a waste of land and resources. This dilemma demonstrates why basing parking needs on square footage alone is inefficient and not cost-effective. Despite its shortcomings, if it is absolutely necessary to predict parking needs based on square footage, these general rates can be used. Specifically, a rate of one parking space per 600 square feet could be applied to new Contractors' Warehouse stores that will be located in shopping centers, and a rate of one parking space per 960 square feet could be applied to new stores that will be located in industrial areas. More store locations would need to be studied in order to refine these rates and/or calculate a more robust average rate for both store types. Barring that, the maximum parking-to- Parking Study of Two Contractors Tarehouse Stores - Feral Report Page 11 31A;147 square footage rate observed in this study would normally be used in order to cover the needs for all types of stores. In other words, the results from this analysis show that one parking space would be required for every 600 square feet of the building in order to provide enough parking for the peak parking demand at all types of stores on the 5"' busiest day of the year. Transactions While more difficult to estimate for a proposed store, previous parking studies have shown that the number of transactions and/or the amount of annual sales are better predictors of parking demand than square footage. An illustration of why sales data are better predictors of parking demand than square footage is that if there are two stores of identical size, the store with more customers (and therefore sales) will have a higher parking demand than the store with fewer customers. While it is true that larger stores have the potential for attracting more customers, a large store with few customers will have less parking needs than a smaller store with more customers. These relationships are intuitive because the number of transactions is very closely related to the number of customers visiting the store. Visiting customers are defined as adults with purchasing power that visit the store (children who accompany their parents do not have purchasing power and are therefore not considered visiting customers). A transaction occurs when a visiting customer becomes a transaction by purchasing something. Therefore, if it is assumed that there is one transaction per vehicle, transactions should then be closely related to vehicle traffic. In addition, assuming some average sale amount per customer, the total sales figures would also be closely related to transactions, customers, and vehicle traffic. The ratio of parking spaces needed to annual transactions varied between the study stores, but not as widely as the square footage-based ratios. The resultant parking ratios ranged from 2,738 annual transactions per required parking space at the Montebello store to 1,915 annual transactions per parking space at the Pomona store. This shows that the Pomona store has more parking demand per transaction than the Montebello store (again, likely due to its location in a shopping center where it will have more browsing customers). The average rate is 2,327 annual transactions per parking space. Again, using the average rate would over-estimate the parking needed for lower performing stores and under-estimate the parking needed for higher performing stores. Therefore, until more data can be collected, it is recommend that the different rates be used according to the store location type. Specifically, a rate of one parking space per 1,915 annual transactions could be applied to new Contractors' Warehouse stores that will be located in shopping centers, and a rate of one parking space per 2,740 annual transactions could be applied to new stores that will be located in industrial areas. More store locations would need to be studied in order to refine these rates and/or calculate a more robust average rate for both store types. AdjustmeniN for Other Parking Lot Uses While the rates and equations detailed above account for the customer, employee, and day-laborer demand for parking spaces, they do not address the other uses of Contractors' Warehouse parking lots. As described previously, there are three other uses of the parking lot beyond providing parking spaces for customers and employees. The first use is cart storage, which is directly related to customer use of the parking lot. The other two uses are sales displays and storage of store Parking Study of Two Contractors Warehouse Stores - Final Report Page 12 31A48 merchandise and equipment, both of which do not have to be provided in the parking lot, but often are. These parking lot uses increase the number of spaces needed in a parking lot beyond what can be predicted by square footage or transaction data. While difficult to quantify, a parking lot must provide additional spaces to accommodate stray abandoned carts that customers will inevitably leave behind. Assuming that cart return corrals are provided separately (rather than placing them in parking spaces), a certain number of parking spaces will likely be taken out of service by stray carts, so the predicted parking capacity should be increased by a similar number of parking spaces. While this has been observed to be a bigger problem at some Home Depot stores, the two Contractors' Warehouse study locations both had aggressive cart collection schedules (with employees collecting stray carts twice an hour). In general, the equivalent of one parking space was taken out of service at any time by stray carts. Therefore, only one parking space needs to be added to the predicted parking capacity to account for stray carts. The number of parking spaces used to display merchandise and/or store stockpiles of merchandise and equipment cannot be related to the level of predicted parking demand. This decision must be made on a store-by-store basis, or via a corporate-wide decision. Currently, the number of spaces taken out of service for these purposes varied from zero at one store to 22 spaces at the other. Once a store or corporate decision has been made as to how many parking spaces will be used for displays and/or storage, that number should be added to the number of parking spaces predicted by the rates above. Parking Study of Two Contractors farehouse Stores - Final Report Page 13 31 A-49 5. CONCLUSIONS & RECOMMENDATIONS Based upon the parking demand studies conducted at two Contractors' Warehouse stores in the Los Angeles area, the following conclusions and recommendations are presented: • None of the Contractors' Warehouse store parking lots filled to capacity on any of the study days. • The average peak occupancy among the study stores was 69% of the parking spaces available for use. The lowest peak occupancy was 61% and the highest was 78%. • At the Pomona store, a certain number of parking spaces were taken out of service by the placement of stacks of building materials and the storage of rental equipment and forklifts. • The 5'E' busiest day was chosen for the design day in this analysis. This means that each store would have adequate parking spaces for the parking demand experienced every hour of every day of the year except for during the peak hours of demand on the 4 busiest days of the year. • The two study stores exhibited similar patterns of parking lot use, and experienced similar peak hours of customer and parking activity. However, each store experienced different transaction-based characteristics. This is likely due to the fact that the Montebello store is located in an industrial area and the Pomona store is located in a retail shopping center. (The Pomona store had a higher relative parking demand because it had more visiting customers who did not make a purchase.) Based on this study, it appears that Contractors' Warehouse stores located in retail shopping centers attract more browsing customers and therefore need more parking than stores located in industrial areas. • The resultant design-day square footage rates varied between the study stores, ranging from 598 square feet per required parking space at the Pomona store to 957 square feet per required parking space at the Montebello store. • In terms of building space, the average square footage rate between the study stores was 777 square feet per required parking space. The use of this average to calculate future parking demand is not recommended. Parking Study of Two Contractors Warehouse Stores - Final Report Page 14 31 A260 • Previous parking studies have shown that there is virtually no correlation between the square footage of a store and its resultant peak parking demand. If using square footage to predict parking needs, a rate of one parking space per 600 square feet could be applied to new Contractors' Warehouse stores that will be located in shopping centers, and a rate of one parking space per 960 square feet could be applied to new stores that will be located in industrial areas. If only one rate is to be used, it should be the maximum rate observed: one parking space would be required for every 600 square feet of the building in order to provide enough parking for the peak parking demand at all types of stores on the 5`j' busiest day of the year. • Previous parking studies have shown that the number of transactions and/or the amount of annual sales are better predictors of parking demand than square footage. For example, if there are two stores of identical size, the store with more customer traffic (and therefore sales) will have a higher parking demand than the store with fewer customers. • The resultant parking ratios ranged from 2,738 annual transactions per required parking space at the Montebello store to 1,915 annual transactions per required parking space at the Pomona store. • The average transaction rate is 2,327 annual transactions per required parking space. Using the average rate would over-estimate the parking needed for lower performing stores and under-estimate the parking needed for higher performing stores, and therefore is not recommended. • It is recommended that the different rates be used according to the store location type. Specifically, a rate of one parking space per 1,915 annual transactions could be applied to new Contractors' Warehouse stores that will be located in shopping centers, and a rate of one parking space per 2,740 annual transactions could be applied to new stores that will be located in industrial areas. • More store locations would need to be studied in order to refine these rates and/or calculate a more robust average rate for both store types. • It is important to note that the rates detailed above do not predict the additional amount of parking needed to provide cart storage, sales displays, and storage of store merchandise and equipment. The additional parking spaces required for these uses must be estimated and added to the parking demand predicted by the equations in order to arrive at the total number of parking spaces to build. • The predicted parking demand should be increased by one parking space to account for stray carts that may take a parking space out of service for a short time. • The number of parking spaces that will be used to display merchandise and/or stockpile merchandise and equipment must be decided upon on a store-by-store basis (or by a corporate-wide decision) and then added to the predicted parking demand. Parking Study of Two Contractors I3'arehouse Stores --- Final Report Page 15 31 A&51 Appendix A Parking Lot Surveys 31 Q262 ?.1 ''i^? V/ O r.+ C O C r? J rc •I ,.jr ' eul m Ez ?l a. y of ` rvn rof ro Q! ` w. y a t+i ?• f a s E ? I!_ LL N ?- if ?. ? 1 Y? • ? ! f 4.. N s m y 2 u i P?cag wnl r 1 t N 31 A-53 ?r O O O O a b Lnn r n A •s7 r ?r i I M a 31A-54 Appendix B Hourly Parking Lot Occupancy and Customer Counts 31 X55 i O O CO c E O O V ? d U N COwmcow0lgl- otimLO M . ? /? r r r T T T 00 T M CL Q co (D (0 () co co LO (D (.0 't CO f-- (D LO M ++ 00 T O r r r r T r 0 co r r 0 r t L ? O a E-- co O MIt Co 0 0(Or LO d'in LO (DCO 0 T 0 (D r r C) r- LO co LO r O LO i J (O O 0) LO r In "T (D (D 00 0 r CO N O (D r T O (D M M ai O LO m m O CO P- M (D 0 I- d' d' LO M r 00 0 O 00 T N O ?- r r r CO O LL N (?! LSS 7 0 Il_ LO N O (D dt r- 0 CO ?t (D LO N f` r O (D T T Q r r T co ? r r ? N m Co M O It O O LO LO (0 LO T c} M LO r 0 0 O ti r r 0 r r T N r N r O M ti ?- O M (D LO It M LO d' (D (D N U) M O O r r 0 c- T T- CO r r r T r O T 0 M 0 O) LO LO LO LO O CIF) 0 LO N LO T O O r r O r r T 1` C V O • LC N ? r- 0 1 qr LO d C) d M ?t T r- t} O 0 M ? r 0 O N 41 (D O () C LO (n + 0 I? V' (D ?t d' O Lo 0 LO r O LO O CAS 0 r r cD p C V/ C 00 cn C EL CO. O a C c aa)) QUU Y ` W L o a) ?, O ? CD ¢mU? WtL_ Q E 00 LL O O O O O O O O O V N to 0 N V O :3 w w V U U U U U U U U U c a) m u f &uw co co (n u) co I F- A- )Uc t` (D M LO (O rn E 0 U fu O raoI- m CO O O (C) r - O ?t O r- d' N C? O O O O N LL i O O O CY) c a m LO CY) M O 00 .- r- O N O f? (N O M M CA r Il- u') r O O r c O N r M M O O M M O O LO M M I-- W (D CC), M a) N r r e- r r O am r O > 0. Q M 0 r W CC) M O M M O O 0 W M I` W I` I` lqr M N ?- r N N OD co T2 C R1 O aF- C) d c1 (n (n OD U") N LO N 00 M N O O CA 00 r d O r OD d' d (O lC) Q l(? r f? N r M M O O N M r r r r t-- IO Il- M I- O M r I-- O(D d M 0 CO N 1f) O V- IM N (D -gr M N w O O w (D N d' N (O M N M IO I, ti II` N Q O 100 M (n O (A N v-- C) (14 LO C) O V- O T- C> 00 O r c- ?- O r r M L I- (D O 00 (9 O V (tf c O O Eu' rn - O d c m a N c c a o _ O ° O r -0 O O o w ? a C) O o E L 0 A O 0 LL. 0 :3 N cn cA (? O r W 1- 1_ W M I\ O M I~ N M T- CO M N d.?tr? O r o N c- 0 M h W 1_ M N r I~ O M I\ N M 'r' 1- "t N µ 00 r O 'd' (U d' l(') M In r M O N ? N O O 0 It O N O t- r OD O r O r 0 h CO O M r M O M M N d' r O t() O O O ?- OD T VJ N () L) M O O't 't U? M N r co o O 00 N M N 't ct O't CL O 6C) C i lSi Il 4) QCOUi]WLL.(72-?? 1Q0]rN O- c c c c c c c c c c c c m m> >- 0 0 0 0 0 0 0 0 0 0 0 0 IM M (o m V U U U U (? U U U U U U U O O p) O C= .?., n - O ?'cncncncncnu?QQQ=f° A- TRAFFIC DATA SERVICES, INC SUMMARY OF VEHICULAR TURNING MOVEMENTS LOCATION: CONTRACTORS WAREHOUSE FILENAME; 01716131 601 E. IMPERIAL DATE: 1/22107 CITY: LA HABRA DAY: MONDAY DRIVEWAY # PERIOD 1 2 3 4 5 Total BEGINS IN OUT IN OUT IN OUT IN OUT IN OUT IN OUT 7:00 AM 6 2 1 0 1 0 7 2 :16 AM 2 3 1 1 1 0 4 4 :30 AM 6 0 1 3 0 3 7 6 :45 AM 2 1 3 2 2 1 7 4 8:00 AM 3 3 2 2 0 0 5 6 :15AM 6 0 1 1 0 0 7 7 :30 AM 6 2 2 2 0 0 7 4 :45 AM 1 7 2 1 0 0 3 8 4:00 PM 3 6 2 0 2 0 7 6 :16PM 1 4 3 3 0 0 4 7 :30 PM 5 4 4 2 0 1 9 7 :45 PM 1 6 0 0 0 0 1 5 6:00 PM 2 3 0 0 3 0 5 3 :15 PM 2 6 2 1 0 0 4 7 :30 PM 1 1 0 1 0 0 1 2 :46 PM 0 2 1 1 0 0 1 3 TOTAL: 45 66 26 20 9 5 COMMENTS: SEE PICTURE 0 0 0 0 79 80 31 A=?8 TRAFFIC DATA SERVICES, INC. PARKING STUDY LOCATION: CITY: CONTRACTORS WAREHOUSE 601 E. IMPERIAL HWY LA HABRA FILENAME: 01716PK1 LATE: 1122/07 DAY: MONDAY Time ZONES ZONES Period Beginning 1 2 3 4 5 6 7 6 9 10 11 12 TOTAL SPACES: 93 93 6:00 AM :30 AM 7:00 AM 18 18 :30 AM 23 23 8:00 AM 28 28 :30 AM 28 28 9:00 AM 32 32 :30 AM 10:00 AM :30 AM 11:00 AM :30 AM 12:00 PM :30 PM 1:00 PM :30 PM 2:00 PM .30 PM 3:00 PM :30 PM 4:00 PM 28 28 :30 PM 26 28 6:00 PM 22 22 :30 PM 19 19 6:00 PM 18 18 :30 PM 7:00 PM :30 PM 8:00 PM :30 PM 9:00 PM :30 PM COMMENTS. 31 k-59 _..------ ..._._.__....._._......... .-_..__..__.____.._.-.-----------..-_ . From: Diane Forsyth [mailto:dforsyth@socal.rr.com] Sent: Monday, April 16, 2012 10:46 AM To: Fregoso, Vince Cc: Mark Forsyth Subject: Variance 2012-02 and.2012-03 for 1044 East Fourth Street We wholeheartedly support this project. The entire neighborhood will benefit from the influx of new business. Mark and Diane Forsyth FORSYTH STEEL CO., INC. A Certified HUB Zone Firm 104 North Hathaway Street Santa Ana, CA 92701 (714) 288-1334 EXHIBIT 8 31A-60 ROH - 04/23/12 RESOLUTION NO. 2012-02 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING VARIANCE NOS. 2012-02 AND 2012-03 AS CONDITIONED TO REDUCE THE REQUIRED PARKING AND SETBACKS FOR THE PROPERTY LOCATED AT 1044 EAST FOURTH STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of Variance No. 2012-02 to allow a reduction in landscaped setbacks and Variance No. 2012-03 to reduce the required parking standards for a new HD Supply Repair and Remodel facility at 1044 East Fourth Street. B. Variance Nos. 2012-02 and 2012-03 came before the Planning Commission of the City of Santa Ana for a duly noticed public hearing on April 23, 2012, to consider all testimony, written and oral. C. Variance No. 2012-02 has been filed with the City of Santa Ana seeking to allow an industrial building to encroach into the required 20-foot front yard landscaped setback. Section 41-475(a) of the Santa Ana Municipal Code requires a twenty (20) foot setback for a yard abutting a public arterial street as designated in the general plan of the city. 2. The building has an existing front yard setback of zero feel immediately adjacent to the building. The applicant is requesting to allow the building to remain as is and the existing setback to remain at its current dimension. 3. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a variance upon making certain findings. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of provisions of this Chapter. Resolution No. 2012-02 Page 1 of 12 31A-61 The project site has a special circumstance related to its size, shape and location. The subject industrial site is a 4.3-acre irregularly shaped parcel constrained by its location along Fourth Street. Several buildings currently exist along this corridor that are not in compliance with the setback standards. Compliance with the setback standard would make the site less competitive with surrounding buildings and would deprive the property of privileges allowed to other similar parcels. ii. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. Compliance with the setback standard would require the demolition of approximately 3,000 square feet of building area, which would reduce the feasibility of the proposed use of the building. Further, the structural integrity of the building would be affected since the portion of the building that would need to be demolished is a structural bearing wall, which will impact the property rights of the owners. The granting of the variance is necessary to preserve the property owner's rights and the variance will allow the owner to rehabilitate and improve the site for a contractors warehouse use that is consistent with the general plan designation. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. Granting of the variance will not be detrimental to surrounding properties. Conditions of approval related to loitering, traffic and parking have been incorporated into the project that will minimize impacts to these properties, which will allow the owner of the site to lease their property to an industrial user that is otherwise allowed by right in the I-OZ-M2/SD-84 zoning district. Resolution No. 2012-02 Page 2 of 12 31A-62 iv. That the granting of a variance will not adversely affect the General Plan of the City. The project will not adversely affect the General Plan as the use is consistent with the land use designation. The proposed contractors warehouse use will result in the improvement of a vacant site that will remove several undesirable elements from the property, which include poorly maintained landscaping, a deteriorated building and damaged fencing. The rehabilitation of the site is consistent with Goal 3, which encourages the rehabilitation of properties in the City that improve the character of neighborhoods. D. Variance No. 2012-03 has been filed with the City of Santa Ana seeking to allow a reduction in required parking. Section 41-1390 of the Santa Ana Municipal Code requires at least two (2) spaces for each one thousand (1,000) square feet of gross floor area for industrial uses. 2. The total gross floor area for the two buildings is 91,581 square feet. This equates to a parking requirement of 183 spaces. The applicant proposes to use the exiting parking spaces on the site, which when configured to meet current design standards, will provide 100 parking spaces - a reduction of 83 spaces. 3. Santa Ana Municipal Code Section 41-638 authorizes the Planning Commission to grant a variance upon making certain findings. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this chapter. The project site has a special circumstance related to its size, shape and location. The subject industrial site is a 4.3-acre irregularly shaped parcel constrained by the location and size of two existing industrial buildings on the property. Due to the size of the property and location of existing buildings, the number of parking spaces required by the parking code cannot physically be achieved on the property without reducing building square footage which would make the project unviable and create a hardship for Resolution No. 2012-02 Page 3 of 12 31A-63 the applicant and owner of the property. A parking analysis was prepared by Austin-Foust, with additional analysis prepared by The Parsons Group. Based upon the finding of a literature search and actual parking demand case studies at existing HD Supply locations, the study concluded that the peak parking demand on the single highest day of the year will not exceed 96 parking spaces, including all contractor vehicles. The project provides 100 on-site parking spaces for customer use. Therefore, applying the strict letter of the City parking code would, in this particular case, deprive the subject property of attracting a use to the property that is otherwise allowed by right in the I-OZ-M2/SD-84 zoning district and therefore would deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this chapter. ii. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. The granting of the parking variance will preserve the property owners right to develop and lease a vacant industrial property with a use that is allowed by right in the I-OZ-M2/SD-84 zoning district. The new use will help to revitalize a vacant industrial property which will preserve the property owners right to upgrade, develop and lease their property. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The findings of the parking study completed by Austin-Foust Associates, Inc., a traffic engineering firm, with additional analysis by Parsons Transportation Group, Inc., indicate that the peak parking demand on the single highest day of the year will not exceed 96 parking spaces including all contractor vehicles. The project provides 100 on-site parking spaces for customer use. Based upon the findings of the parking study, there will be adequate parking on the subject site at times of peak demand and therefore, the granting of the parking variance will Resolution No. 2012-02 Page 4 of 12 31A-64 not be materially detrimental to the public welfare or injurious to surrounding property. Granting of the variance will allow the owner of the site to lease their property to an industrial user that is otherwise allowed by right in the I-OZ-M2/SD-84 zoning district. Granting of the parking variance will allow the property owner the right to utilize their property in a manner that is consistent with surrounding industrial uses. iv. That the granting of a variance will not adversely affect the General Plan of the City. The granting of the parking variance would not adversely affect the General Plan of the City. The property in question is located within the Urban Neighborhood General Plan designation, which permits the Home Improvement Warehouse use, proposed by the applicant. Since parking is ancillary to the primary use of the property as a home improvement warehouse, the granting of the parking variance would under the circumstances of this particular case, have no adverse affect on the General Plan of the City. E. In accordance with the California Environmental Quality Act, the proposed project is exempt from further review pursuant to Section 15301. This Class 1 exemption allows the repair, maintenance and permitting of existing structures that are consistent with the zoning and general plan designations. Categorical Exemption Environmental Review No. 2011-64 will be filed for this project. Section 2. The Planning Commission, after conducting the public hearing, hereby approves Variance No. 2012-02, as conditioned in Exhibit "A" attached hereto and incorporated herein, to allow a reduction in landscaped setbacks and Variance No. 2012-03, as conditioned in Exhibit "B" attached hereto and incorporated herein, to reduce the required parking standards for a new HD Supply Repair and Remodel facility at 1044 East Fourth Street. 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 April 23, 2012, and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. Resolution No. 2012-02 Page 5 of 12 31A-65 ADOPTED this 23`d day of April, 2012. AYES: Commissioners: Alderete, Mill, Turner, Yrarrazaval (4) NOES: Commissioners: None (0) ABSENT: Commissioners: Acosta, Gartner (2) ABSTENTIONS: Commissioners: Nalle (1) Eric Alderete Chairman APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan O. Hodge Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARTHA RAMIREZ, Secretary of the Planning Commission, do hereby attest to and certify the attached Resolution No. 2012-02 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on April 23, 2012 . Date: Secretary of the Planning Commission City of Santa Ana Resolution No. 2012-02 Page 6 of 12 31A-66 Conditions for Approval for Variance No. 2012-02 Should the Planning Commission approve Variance No. 2012-02, the approval is subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the variance. Failure to comply with each and every condition may result in the revocation of the variance. A. Planning Division 1. All proposed improvements must conform to the Site Plan Review approval of DP No. 2011-24 and the staff report exhibits. 2. Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. Landscaping, once installed, shall be maintained per the approved landscape plan. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy and per the approved plan. 4. The required trees shall be upgraded to 36-inch boxed size and shrubs shall be upgraded to 5-gallon size throughout the project. 5. Vine pockets are required to be added to the wall that is proposed at the west property line. 6. The parking reduction shall not exceed 83 spaces and is valid for I-OZ-M2 uses only. Any future uses which are not permitted in the I-OZ-M2 zoning district, shall comply with the parking standards in place at that time or shall seek a future variance. 7. The variance is only valid for the configuration of the existing buildings and site layout as shown on the approved site plan. 8. All trash receptacles and bins located outside of the buildings shall be located in a trash enclosure with minimum dimensions that meet City Standards. Resolution No. 2012-02 Page 7 of 12 31A-67 APRIL 23, 2012 PAGE 2OF3 9. Prior to Certificate of Occupancy, all potholes and deteriorated paving on the site shall be repaired and the site slurry coated and double striped to City standards. Site paving and striping shall be repaired and maintained as part of a regularly scheduled maintenance program. 10. The site occupant shall be responsible for maintaining the premises free from graffiti, including the side of the buildings adjacent to the railroad tracks. All graffiti shall be removed within 24 hours. 11. Prior to issuance of a certificate of occupancy, the building operator shall submit a Shopping Cart Containment Plan to the Planning and Building Agency. 12. There shall be no outdoor storage, parking lot sales, displays, equipment lease/rental or similar activities in any exterior area of the site, with the exception of limited outdoor storage of materials in the screened storage area on the west side of Building A as depicted on the site plan. 13. The height of materials stacked outdoors shall not exceed the height of the screen wall/landscaping provided. 14. There shall be no backing of trucks from Fourth Street on to the site or from the site on to Fourth Street. 15. A new eight foot tall wrought iron fence shall be constructed along the west property line. 16. Bougainvillea shall be planted at eight foot intervals and irrigation shall be provided along the new wrought iron fence, except where prohibited by Metrolink. 17. New fencing shall match the existing wrought iron fencing material existing on the site. 18. The access gate located on Santa Fe Street shall be closed at all times, with the exception of emergency access by Police and Fire personnel. 19. All employees shall park their vehicles on-site. 20. The variance shall be reviewed by the Planning Division for compliance at six months, one year and annually thereafter from the date of Certificate of Occupancy for the project. Resolution No. 2012-02 Page 8 of 12 31A-68 APRIL 23, 2012 PAGE 3OF3 21. There shall be no truck deliveries between the hours of 9:00 p.m. and 6:00 a.m. (Added by the Planning Commission April 23, 2012) B. Police Department The existing building and parking lot must conform with the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing projects lighting, door/window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 2. The business operator shall post "No Loitering/Trespass" signs/placards in the parking lot and on the building pursuant to California Penal Code ("CPC") section 602. It shall be the business operator's responsibility to ensure that CPC section 602 is complied with at all times that the premises is in operation. Resolution No. 2012-02 Page 9 of 12 31A-69 Conditions for Approval for Variance No. 2012-03 Should the Planning Commission approve Variance No. 2012-03, the approval is subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the variance. Failure to comply with each and every condition may result in the revocation of the variance. A. Planning Division 1. All proposed improvements must conform to the Site Plan Review approval of DP No. 2011-24 and the staff report exhibits. 2. Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. Landscaping, once installed, shall be maintained per the approved landscape plan. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy and per the approved plan. 4. The required trees shall be upgraded to 36-inch boxed size and shrubs shall be upgraded to 5-gallon size throughout the project. 5. Vine pockets are required to be added to the wall that is proposed at the west property line. 6. The parking reduction shall not exceed 83 spaces and is valid for I-OZ-M2 uses only. Any future uses which are not permitted in the I-OZ-M2 zoning district, shall comply with the parking standards in place at that time or shall seek a future variance. 7. The variance is only valid for the configuration of the existing buildings and site layout as shown on the approved site plan. 8. All trash receptacles and bins located outside of the buildings shall be located in a trash enclosure with minimum dimensions that meet City Standards. Resolution No. 2012-02 Page 10 of 12 31A-70 APRIL 23, 2012 PAGE 2OF3 9. Prior to Certificate of Occupancy, all potholes and deteriorated paving on the site shall be repaired and the site slurry coated and double striped to City standards. Site paving and striping shall be repaired and maintained as part of a regularly scheduled maintenance program. 10. The site occupant shall be responsible for maintaining the premises free from graffiti, including the side of the buildings adjacent to the railroad tracks. All graffiti shall be removed within 24 hours. 11. Prior to issuance of a certificate of occupancy, the building operator shall submit a Shopping Cart Containment Plan to the Planning and Building Agency. 12. There shall be no outdoor storage, parking lot sales, displays, equipment lease/rental or similar activities in any exterior area of the site, with the exception of limited outdoor storage of materials in the screened storage area on the west side of Building A as depicted on the site plan. 13. The height of materials stacked outdoors shall not exceed the height of the screen wall/landscaping provided. 14. There shall be no backing of trucks from Fourth Street on to the site or from the site on to Fourth Street. 15. A new eight foot tall wrought iron fence shall be constructed along the west property line. 16. Bougainvillea shall be planted at eight foot intervals and irrigation shall be provided along the new wrought iron fence, except where prohibited by Metrolink. 17. New fencing shall match the existing wrought iron fencing material existing on the site. 18. The access gate located on Santa Fe Street shall be closed at all times, with the exception of emergency access by Police and Fire personnel. 19. All employees shall park their vehicles on-site. 20. The variance shall be reviewed by the Planning Division for compliance at six months, one year and annually thereafter from the date of Certificate of Occupancy for the project. Resolution No. 2012-02 Page 11 of 12 31A-71 APRIL 23, 2012 PAGE 3 OF 3 21. There shall be no truck deliveries between the hours of 9:00 p.m. and 6:00 a.m. (Added by the Planning Commission April 23, 2012) B. Police Department The existing building and parking lot must conform with the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing projects lighting, door/window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 2. The business operator shall post "No Loitering/Trespass" signs/placards in the parking lot and on the building pursuant to California Penal Code ("CPC") section 602. It shall be the business operator's responsibility to ensure that CPC section 602 is complied with at all times that the premises is in operation. Resolution No. 2012-02 Page 12 of 12 31A-72 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: ORDINANCE AMENDING SANTA ANA MUNICIPAL CODE CHAPTER 10, ARTICLE XII, PERTAINING TO PROXIMITY RESTRICTIONS FOR REGISTERED SEX OFFENDERS TO CHILDREN'S FACILITIES ??-? ?h%C.wQ ?.c.c l CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended Q As Amended 0 Ordinance on 1?` Reading D Ordinance on 2"d Reading ? Implementing Resolution Q Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt an Ordinance amending Chapter 10, Article XII, of the Santa Ana Municipal Code, pertaining to the proximity restrictions of registered sex offenders to children's facilities. DISCUSSION In May 2006, the City of Santa Ana was one of the first California agencies to adopt a registered sex offender proximity ordinance. (Ordinance No. NS-2712). The ordinance prohibits registered sex offenders from being on or within three-hundred (300) feet of designated children's facilities for the purpose of loitering, loitering for the purpose of observing children, or from returning to the location after being told to leave. Under the City's current ordinance, "sex offender" is defined as a person required to register with a governmental entity as a sex offender when the underlying offense was a crime involving a child. "Child or children" means any person under the age of eighteen (18) years. "Children's facilities" include public and private schools for minors, commercial day care centers, city parks, the Discovery Science Center, the Bowers Kidseum, the McFadden Learning Center, and the Newhope Branch library. NEW DEVELOPMENTS On April 5, 201 1 , the Orange County Board of Supervisors adopted an ordinance prohibiting all registered sex offenders from entering into or upon Orange County parks and related recreational areas without written permission from the Orange County Sheriff. The county ordinance applies to all persons required to register pursuant to Penal Code section 290, et seq., and is not limited to those sex offenders whose underlying crime involved a child or children. Following the adoption of the county ordinance, Orange County District Attorney Tony Rackauckas sent letters to cities within Orange County, recommending that they adopt an ordinance similar to the county ordinance. (See attached letters to the City of Lake Forest, dated November 1 5, 201 1 , and to the City of Santa Ana, dated May 14, 2012.) District Attorney 50A-1 Chapter 1 O, Article XII of the Santa Ana Municipal Code May 21 , 2012 Page 2 Rackauckas has also met with Chief of Police Paul Walters and Mayor Pro Tem Alvarez to provide additional information regarding the county ordinance and other cities' recent adoptions of similar sex offender proximity ordinances, as well as information regarding sex crimes occurring against children within Orange County. PUBLIC SAFETY COMMITTEE REVIEW On April 24th, 2012, the Santa Ana Public Safety Committee considered whether the City of Santa Ana's sex offender ordinance should be revised, as recommended by District Attorney Rackauckas. After discussion by Committee members and staff, which included a reference to a recent sexual offense committed against a minor that occurred in the City of Tustin's library (see attached District Attorney Press Release, posted March 13, 2012), a motion was made and unanimously passed to recommend the City Council consider adopting a revised ordinance that contains provisions similar to the county ordinance. The Committee also recommended that KidWorks, the Orange County Children's Therapeutic Arts Center, and the Main Library be included in the list of children's facilities. The revised ordinance recommended by the Public Safety Committee would redefine "sex offender" to include all persons who are required to register when the underlying offense involved a child or children, including but not limited to child pornography, or any person required to register pursuant to Penal Code sections 290, et seq., similar to the county ordinance. In addition, the revised ordinance would (1) retain the current three-hundred (300) foot proximity prohibition for the specific intent of observing children or if the offender returns after being told to leave, (2) delete the loitering alone language, (3) add the .county's presence prohibition inside the designated children's facilities, and (4) add penalties and severability clauses. Lastly, as was also recommended by the Public Safety Committee, the revised ordinance adds KidWorks, the Orange County Therapeutic Arts Center, and the Main Library to the list of children's facilities. FISCAL IMPACT There is no fiscal impact associated with this action. ???- Paul Walters Chief of Police Police Department Attachments: 1. Orange County District Attorney's Letters to the Cities of Lake Forest and Santa Ana 2. Orange County District Attorney's Press Release, dated March 3, 2012 50A-2 ? x _w?_ ?? ?` ? a Y\ O :q ?? '? ??_ ?°LL'/ TT C4V\ TONY RACKAUCKAS ORANGE COUNTY ?iSTRICT ATTORNEY ORANGE COUNTY OISTRIGT ATTORNEY'S OFFICE 40T CMG CENTER DRIVE WEST • SANTA ANA, GA 92701 (714) 834-3636 November 1 S, 2011 Mayor Peter Herzog City of Lake Forest 25550 Commercentre Drive Suite 100 Lake Forest, CA 92630 Re: Orange County Sex Offender Ordinance Dear Mayor Herzog: Thank you for taking a large step toward increasing public safety by considering enacting an ordinance in your city to prohibit registered sex offenders from entering parks where ?;hildren regularly gather- I understand that at the urging of Councilman Scott Voights, the Council has voted to agendize this issue at a later date to discuss this very important #opic to protect children in Lake Forest. As I wrote to you previously, the Board of Supervisors unanimously passed a County ordinance on April 5, 2011, to create child safety zones to protect children from sexual predators in parks, playgrounds and beaches. Many other cities have either enacted or in the process of enacting their own ordinance to protect children from sexual predators. Yesterday, Hugo Godinez was convicted in a court trial for violating the Orange County Codified Child Safety Zone Ordinance 3-18-1. He is required to required to register as a sex offender for life because he was convicted of misdemeanor sexual battery on June 23, 201 O. On Aug. 16, 201 O, and May 2, 201 1 , Godinez signed two Department of Justice forms acknowledging he understood the terms and conditions of his registration. On the same date, Godinez met with a deputy probation officer to discuss Ordinance 3-18-1 pertaining to restricting registered sex offenders' access to locations where children regularly gather such as Orange County parks. The defendant signed a copy of the Ordinance. On May 5, 2011, at around 10:53 a.m., Hugo Godinez entered Mile Square Regional Park in the City of Fountain Valley. This park is known to be a gathering place for families on holidays. The 20-acre park includes two lakes, three 18- hole golf courses, archery range, baseball and softball fields, and picnic shelters. There is 55 acre recreation center with tennis courts, basketball courts, racquetball courts, a gymnasium, the Kingston Boys 8 Girls Club, and a community center. On this particular date, there were many people, including children, celebrating Cinco de Mayo. The defendant did not le:3ve the park until 2 p.m. There were VeriTracks Global Positioning Satellite System prints out showing the defendant's movements. He later admitted to an Orange County Sheriff's Deputy on the Sex Offender Notification and registration (SONAR) detail that he went to Mile Square regional Park and stayed at the Park for several hours while knowing he was not supposed to be there and knowing it was wrong. He will be sentenced on November 1 7, 2011 . 50A-3 In August 2011, Richard Ernest Hibbard, 72, transient, became the first defendant to be convicted under the County Child Safety Zone Ordinance. Hibbard is a registered sex offender stemming from a misdemeanor child annoyance conviction from Los Angeles. Since then, in 1998, 2002, 2007, 2009, 2010, and 2011, he was convicted of numerous felonies and misdemeanors for failing to register as a sex offender. On July 21 , 201 1 , at about S p. m., deputies- from the Orange County Sheriff's Department (OCSD) responded to Dana Point Harbor. A citizen approached OCSD deputies and asked them to keep an eye on the defendant because he was "belligerent around the kids," using profane language and talking loudly. There were at least 10 children in the immediate vicinity where Hibbard had been standing on the dock sidewalk. On Aug. 10, 2011, he pleaded guilty to being in violation of Ordinance 3-18-3 (prohibited offender entering a county park) and was sentenced to 31 days in jail. In October 2011, the City of Westminster became the first Orange County city to convict a sex offender for violating the Child Safety Zone Ordinance. Steve James Dietrich is a registered sex offender stemming from convictions for rape by force and oral copulation with a minor under 14 years of age by force or fear. On July 16, 2011 , and Aug. 6, 201 1 , Dietrich was cited by the same police officer for entering a park where children regularly gather. He was convicted on October 17, 2011. Dietrich was sentenced to probation and 60 days in jail. There are several cities undertaking this issue and considering enacting an ordinance modeled after that of the County. Others are considering "residence restriction" types of ordinances or "loitering" types of statutes. Some cities are considering limiting the ban to those who have prior convictions with child victims. Although a ban against those individuals with convictions against child victims would be a good start, I would appreciate it if you would consider some of the points contained in this letter. You may find that we considered many of the same issues you are tackling and may come to similar conclusions. RECENT DEVELOPMENTS You may have heard that the Eldorado District Attorney released a disturbing videotape of child predators Philip and Nancy Garrido. The married couple was sentenced in Aprit 2011 to 431 years and 36 years to life in prison, respectively, for abducting former-Orange County resident, 11-year-old Jaycee Lee Dugard, from a school bus stop and sexually assaulting her for 20 years. In one of the video clips, Phillip Garrido is singing in a park while directing his wife Nancy Garrido how to shoot the video. He asks her, "Got me good?" "I can see you really good," she answers- She then films a little girl on playground equipment behind him, the child's legs splayed. There are also other children playing on swings and on the playground. The Garridos are sexual predators, watching and filming children in parks. You can view the chilling video on the Internet at http://documents.latimes.com/garrido-dugard-evidence/. In July of this year, a 33-year-old man was arrested after putting his hand down the pants of a 6- year-old girl and touching her vagina while at a movie night at the Grand Park in Aliso Viejo. She was standing just 1 O feet from her father. This case is pending. In April of this year, a Lake Forest woman called the police when she saw a registered sex offender/child pornographer with a video camera near her children while they were playing at a park. The Orange County Sheriff's Department (OCSD) deputies who responded told her that the man could not be arrested because he was not on probation or parole, and there is no such law in the City of Lake Forest. 50A-4 NARROWING THE BAN TO SIMPLY PROHIBIT "LOITERING" Limiting the ban to prohibit sex offenders from "loitering" in parks would not be effective. State law already prohibits sex offenders from loitering "about any school or public place at or near which children attend or normally congregate ." (Penal Code § 653b.) This would presumably apply to parks. Penal Code 653b, however, is not effective because it requires the sex offender to remain at the location or re-enter the location after being asked to leave. So long as the sex offender has not been asked to leave, he is not in violation of Penal Code 653b. In addition, it is difficult to prove loitering in a trial. "Loitering" means "to delay, to linger, or to idle about a school or public place without lawful business for being present." (Penal Code § 653b, subd. (d).) It would be difficult to prove a sex offender was "loitering" in a park when that person was simply sitting on a park bench or on the grass or strolling through the park. Even videotaping or photographing may not be considered "loitering," as those are common activities of lawful citizens. Yet, these are some of the very activities the proposed Ordinance seeks to preclude with respect to sex offenders. Their presence in parks allows them to identify, observe, and possibly interact with potential victims whom they seek to groom and eve+ntually exploit. Finally, any loitering prohibition may be preempted by Penal Code 653b. (See O'Connell v. City of StocKton (2007) 41 Ca1.4"' 1061, 1067 [a local ordinance may be preempted where it enters an area expressly or impliedly fully occupied by state law].) For these reasons, limiting the ban to "loitering" in parks would not provide an effective tool to protect children from sex offenders' activities in parks. GENESIS AND PROCESS IN DEVELOPING THE COUNTY SEX OFFENDER ORDINANCE In 2010, registered sex offender Eric Hinnenkamp lived 155 feet from a Fullerton park where children regularly gather. He was a Los Angeles County parolee who was released from prison to an apartment in Huntington Beach. Hinnenkamp inherited a house from his parents in Fullerton and was intending to live at the residence. According to Megan's Law website, his prior convictions included felony lewd conduct on child victims, indecent exposure, and restrained sexual battery. Understandably, local citizens became alarmed and asked law enforcement fora solution. The Orange County District Attorney (OCDA) began researching legal solutions and coming up with practical applications in response. Meanwhile, the OCDA also monitored the development of Chelsea's Law in the State legislature. The result was the development and enactment of the County Child Safety Ordinance, which closed a loophole in the existing law. RESIDENCY RESTRICTIONS V_ CHILD SAFETY ZONES The OCDA initially considered enacting both sex offender restrictions, which generally fall into two categories: (1) Residency restrictions; and (2) Child safety zones. Residency restrictions restrict an offender from residing within a specified distance of certain locations, such as schools and parks. Child safety zones restrict offenders' movement within and/or arouno areas where children congregate, such as schools, parks, libraries, etc. Residency Restrictions The available research found by the OCDA suggests that residency restrictions have little impact on sex offender recidivism and may even compromise public safety. Generally, researchers have been unable to correlate any meaningful relationship between residential proximity to schools, parks, etc. and sexual recidivism. Research indicates that residency restrictions diminish housing options in urban areas, which forces offenders to move to more rural locations. This limits offenders' access to social services and community resources that help prevent recidivism by transitioning into the community- Residency restrictions also 50A-5 decrease employment opportunities for offenders and increase their transience and homelessness. These unintended consequences reduce the number of offenders accurately tracked by local law enforcement agencies. The research findings were anecdotally supported by conversations with local and State law enforcement officials. For more detailed discussions of this topic, please see the articles and the sources cited in the quarterly bulletin Geography and Public Safety, Vol. 2, Issue 1, May 2009, and listed at: http://www.olP. usdoi.oov/nii/maps/gos-bulletin-v2i 1 .odf. Residency restrictions also face constitutional challenges relating to the right to privacy, the right to intrastate travel, substantive due process and other rights. The outcome of such challenges is uncertain in California. In /n re E.J. (2010) 47 Cal.4th 1258, the California Supreme Court suggested a residency restriction must be narrowly tailored to further the government interest of protecting children from sex offenders. The Court remanded the petitioners' constitutional claims to the trial court for evidentiary hearings concerning, among other things, the supply of available housing for each sex offender in their respective community. If a residency restriction makes a substantial portion of a community off-limits to sex offenders., it may be difficult to sustain its constitutionality. Meanwhile, the OCDA was waiting for the enactment of Chelsea's Law, which contained the language of the County Ordinance. Chelsea's Law -Amended The language in the drafted sex offender ordinance is adapted from proposed language in Chelsea's Law and from Penal Code 626.81, which prohibits sex registrants from entering school grounds without written permission. Until recently, Chelsea's Law (AB 1844) would have added as Penal Code 647.9 much of the language set forth in the County Ordinance. On July 15, 2010, Chelsea's Law was amended to delete the originally proposed language as Penal Code 647.9. The bill was signed into Law on Sept. 8, 20'10. Instead, the bill added section 3053.8 to the Penal Code. That section precludes Penal Code 290 registrants from entering parks where children gather without express permission, but only applies the restriction to parolees who served prison time for certain sexual offenses in which one or more of the victims was under 14 years of age. Thus, the "park restriction" in Chelsea's Law does not apply to sex registrants who have been discharged from parole. Some of these sex registrants are subject to lifetime parole and some are be subject to parole for 20 years, depending upon the particular crime committed. LEGAL ISSUES EXPLORED: Child Safety Zones -Constitutionality A court will examine each law to determine whether it is narrowly tailored to the government interest. Child safety zone laws appear easier to defend than residency restrictions. Safety zone Taws are more narrowly tailored fo furthering the interest of protecting children by keeping sex offenders away from areas in which children congregate. The more broadly a restriction sweeps, the more likely a court will find it is not narrowly tailored. The more tailored a law appears to protect children from sex offenders, while still permitting legitimate activities by the sex offenders, the more likely it will survive a constitutional challenge. 50A-6 'there ar-e two types of constitutional challenges: (1) a facial challenge, which considers only the text of the law and seeks to void the law as a whole; and (2) 2n as-applied challenge, which considers the law's application to a particular challenger's facts. (Tobe v. Crty of Santa Ana (1995) 9 Cal.4th 1069, 1084.) To defeat the entire law in a facial challenge, the challenger must show it "inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions." (ibid.) For example, a particular offender may argue a law aimed at all sex offenders - as opposed to a law tailored to sex offenders whose victims were children - is not narrowly tailored. It seems unlikely, however, that a court would find the law totally conflicts with constitutional principles, since many of the registered sex offenders committed crimes against children. Furthermore, many offenders have both adult and child victims (e.g. Rodney Alcala as further explained later) while others commit crimes which may lead to future victims (e.g. indecent exposure defendants commit offenses in public places with children). Thus, the law would not be constitutionally overbroad when applied to those offenders. A particular offender could bring an as-applied constitutional challenge. Such a challenge considers whether the law is being applied in a constitutionally impermissible manner. (Tobe v. City of Santa Ana, supra, 9 Cal.4th 1069, 1084.) The court evaluates the propriety of the application on a case-by-case basis to determine whether to relieve the defendant of the sanction. (ibid.) This could preclude application of the relevant law to a particular sex offender, but would not render the law constitutionally infirm as to others. Retroactivity In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party's liability for, an event, transaction, or conduct that was completed before the law's effective date. (1n re E.J., supra, 47 Cal.4th 1258, 1273.) Therefore, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute's effective date. (/bid.) In /n re E.J., supra, 47 Cal.4th 1258, the court indicated it may be impermissible to apply the 2,000-foot residency restriction to a sex offender who acquired housing before the law's effective date. (/d. at pp. 1275-1276.) The offender would not have had notice of the restriction before the conduct to which the law speaks occurred. (/d. at p. 1276, citing Doe v. Schwarzenegger (E.D. Cal. 2007) 476 F.Supp.2d 1178, 1179, fn. 1 [residency restriction could not be applied retroactively to persons paroled and released from prison prior to the law's effective date]-) For our purposes, the last act necessary to trigger application of child safety zone laws would seem to be the offender's unlawful entry and/or loitering upon property within a protected zone. Thus, application to all offenders would not seem to be impermissibly retroactive. Ex Post Facto An impermissible ex post facto law is one which makes more burdensome the punishment for a crime after its commission. (!n re E.J., supra, 47 Cal.4th 1258, 1279.) Because the child safety zone laws would not be applied retroactively, they would not raise ex post facto issues. (/n re E,J, supra, 47 Cal. 4th 1258, 1279-1280 [ex post facto only applies to laws applied retroactively]. ) 50A-7 Will enactment of such an ordinance create a cause of action if a registered sex offender does harm a child at a park where there is such an ordinance? Government Code section 845 - Failure to provide any or adequate police protection; Responding to alarm states as follow: Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service. A police department shall not fail to respond to a request for service via a burglar alarm system or an alarm company referral service solely on the basis that a permit from the city has not been obtained. PRACTICAL ISSUE CONSIDERED What resources will the enactment of this ordinance take away from police? The OCDA believes the enactment of this ordinance will cause a minimal shift in resources. A typical scenario would be a parent calling the police when they see a person acting suspiciously in a park around children. This law is an additional tool for law enforcement to contact and arrest registered sex offenders in parks where children regularly gather. Since the passage of the County Ordinance, the OCSD had 1l7 requests by eight sex offenders. One waiver has been granted. ORANGE COUNTY ORDINANCE Sec. 3-18-1. -Purpose and intent. It is the purpose and intent of this article to protect children from registered sex offenders by restricting sex offenders' access to locations where children regularly gather. It is intended to reduce the risk of harm to children by impacting the ability of sex offenders to be in contact with children. It is further the intent of this article to provide additional restrictions beyond those provided for in state law by restricting sex offenders from certain limited locations, and by allowing for criminal penalties for violations of this article. It is not the intent of this article to allow conduct otherwise prohibited by state law, or to contradict state law. Orange County Parks are recognized by the County of Orange Board of Supervisors as locations where children regularly gather. (Ord. No. 1 1-O 12, § 1, 4-5-1 1) Sec_ 3-18-3. -Prohibitions. Any person required to register pursuant to California Penal Code sections 290, et seq. who enters into or upon any Orange County Park where children regularly gather without written permission from the Orange County Sheriff or Sheriff's designee is guilty of a misdemeanor. Each entry into any such area, regardless of the time period between entries, shall constitute a separate offense under this article. (Ord. No. 11-012, § 1 , 4-5-11 ) Sec. 3-18-4. -Penalties for violation. Punishment for a violation of this article shall be as follows: 50A-8 (1) Upon a first conviction, by imprisonment in a county jail for a period of not more than six (6) months, or by a fine not exceeding five hundred dollars ($500.00), or by both imprisonment and a fine. (2) Upon a second conviction, by imprisonment in a county jail fora period of not less than ten (10) days and not more than six (6) months, or by both imprisonment and a fine not exceeding five hundred dollars ($500.00). Upon a second conviction, however, the person shall not be released on probation, parole, or any other basis until he or she. has served not less than ten (10) days. (3) Upon a third or subsequent conviction, by imprisonment in a county jail for a period of not less than ninety (90) days and not more than six (6) months, or by both imprisonment and a fine not exceeding five hundred dollars ($500.00). Upon a third or subsequent conviction, however, the person shall not be released on probation, parole, or any other basis until he or she has served not less than ninety (90) days. (Ord. No. 11-012, § 1, 4-5-11 ) Definitions There are two main terms to define: 1) park; and 2) the administrative official from whom written permission must be obtained. Some local jurisdictions may choose to leave the term as drafted without further definition. Relevant State law provisions do not define the term "park." (Penal Code § 3003.5 [precludes sex registrants from residing within 2000 feet of a "park where children regularly gather"]; Chelsea's Law (Penal Code § 647.9) [would preclude certain parolees from entering "any park where children regularly gather"].) Some local jurisdictions may want to further define the term. Some cities have local ordinances defining the term "park." For example, Grover Beach defines a "park" as "any city, county, school district, state or federal public park or playground where children are likely to be." Santa Clarita states a "'[p]ark' shall include any areas owned, leased controlled, maintained, or managed by a public entity which are open to the public where children regularly gather and which provide recreational, cultural, and/or community service activities including, but not limited to, playgrounds, playfields, athletic courts, trails, paseos, and open space." Huntington Beach states a "'[p]ark' includes every park, recreation center, lake, pond or other body of water, riding and hiking trail, parking lot and every other recreation facility owned, managed and/or controlled by the City and under jurisdiction of the Director." Each local jurisdiction should decide whether it wishes to further define the term "park" depending upon its particular circumstances. Orange County chose to define the area as places where "children regularly gather" and specifically named certain places. Similarly, each local jurisdiction should consider the appropriate entity from where permission must be obtained before a sex registrant can enter a park. The appropriate person may vary depending upon how the local jurisdiction is organized. In Orange County, the Beard of Supervisors believed that the Orange County Sheriff, who has investigative and authority and patrol responsibility in the defined areas, would be in the best position to give exemptions. The court may imply knowledge (scienter) element to the crime. A court would require evidence showing the defendant knew or reasonably should have known the "park" was a place where children regularly gather. 50A-9 Some cities are contemplating whether to limit the ban to sex offenders who have been convicted of a crime against a child under the age of 18. LIMITING THE BAN TO REGISTERED SEX OFFENDERS "WHO HAVE BEEN CONVICTED OF A CRIME AGAINST A CHILD UNDER THE AGE OF 78" While drafting the County Ordinance, Supervisor Shawn Nalson and Orange County District Attorney Tony Rackauckas actively contemplated whether to exclude a certain class of offender in the proposed sex-offender statute. Of concern were those who, while a teenager, were convicted of engaging in consensual sex with a younger teenager and now must register as a sex offender for life, although he has subsequently grown up with no further violations. Since then, others have voiced their concern of former "fraternity boys" who they believe now have the requirement to register as sex offenders after being arrested for urinating in public. There seem to be many myths as to the persons who are required to register as sex offenders. PENAL CODE SECTION 290 (c) states: The following persons shall be required to register: Any person who, since July 1 , 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 (murder) committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulation of a minor), or 289 (forcible sexual penetration), Section 207 (forcible kidnapping) or 209 (forcible kidnapping for ransom) committed with intent to violate Section 261(rape), 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulations of a minor), or 289 (forcible sexual penetration), Section 220 (forcible and or in concert or assault with intent to commit rape, sodomy, oral copulation, lewd acts upon a child or penetration, Section 243.4 (sexual battery), paragraph (1 ), (2), (3), (4), or (6) of subdivision (a) of Section 261 (rape of a mentally incapacitated victim, forcible rape, rape of a victim who in unable to resist due to intoxication, rape of an unconscious victim and rape using threat to retaliate, paragraph (1) of subdivision (a) of Section 262 spousal rape) involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1 (forcible rape, spousal rape, sexual penetration acting on concert of another), 266 (enticing a minor into prostitution or procurement of sex with another man by fraud), or 266c (sexual intercourse or penetration, oral copulation or sodomy using fraud or force), subdivision (b) of Section 266h (pimping a minor for prostitution), subdivision (b) of Section 266i (pandering a minor for prostitution), Section 266j (making available or transporting a minor for lewd acts), 267 (taking a minor from parents or guardian for prostitution), 269 (aggravated sexual assault of a child under 14 where the perpetrator is more than 7 years older involving forcible rape, oral copulation, sexual penetration or sodomy), 285 (incest), 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulation of a minor), 288.3 (contacting of a minor to commit forcible kidnapping or kidnapping for ransom, rape, child endangerment, sodomy, lewd acts upon a child, oral copulation of a minor, forcible sexual penetration, possession ofi child pornography, 288.4, contact with a minor with sexual intent), 288.5 (continuous sexual abuse of a child), 288.7 (sexual intercourse, sodomy, penetration of a child under the age of 10), 289 (forcible sexual penetration), or 311.1 (distributing child pornography), subdivision (b), (c), or (d) of Section 311.2 (production of child pornography), Section 311.3 (developing or exchanging child pornography), 311.4 (employing minor to assist in distribution of child pornography), 311.10 (advertising or distributing child pornography), 311.1'1 (possession of child pornography), or 647.6 (child annoyance) former Section 647a, subdivision (c) of Section 653f (solicitation of forcible and or acting in concert, rape, sodomy, oral copulation, lewd acts upon a child, and sexual penetration, subdivision 1 or 2 of Section 314, indecent exposure, any offense involving lewd or lascivious conduct under Section 272, 50A-10 contrlbuting to a delinquency of a minor, or any felony violation of Section 288.2, sending harmful material to a minor with sexual intent; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above- mentioned offense. As to the issues of statutory rape cases, Penal Code 261.5, 290 and 290.006, do not require registration for the offense. Penal Code 261 .5 prohibits sexual intercourse with persons under 18 years old. (Penal Code § 261.5(a).) In general, the penalties for violating the statute vary depending upon whether there is an age difference of more than two years, more than three years, or whether the perpetrator is over age 21 and the victim is under age 16. (Penal Code § 261.5.) None of the offenses carries mandatory registration- Penal Code 290.006 gives the court discretion to impose registration in any offense wh?:re the person committed the offense as a result of "sexual compulsion or for purposes of sexual gratification." This statute provides a good mechanism to distinguish between young offenders who may be sexual predators and/or dangerous and young offenders who fall into the facts as described above. The offenders described above are not likely to be required to register. On the other hand, some individuals who violate Penal Code 261.5 -even at a young age - were identified and found to be sexual predators and/or dangerous by the court. If those are the facts, then it would not be wise to exclude all registrants who violate Penal Code 261.5 from the proposed park-restriction law. Another statute pertaining to unlawful sex with minors is Penal Code section 288. Among other things, that section punishes those who sexually molest a child under 14, or molest a child who is 14 or 15 years old where the perpetrator is more than 10 years older than the child. (Penal Code §288(c)(1).) Individuals who violate Penal Code 288 are required to register under Penal Code section 290 should not be excluded from the proposed park-restriction statute. Obviously, there is no requirement for registration for urinating in public, usually municipal code violations. The OCDA consulted its prosecutors in the Sexual Assault Unit, including the supervisor of the Unlt, Assistant District Attorney Rosanne Froeberg. They all strenuously advised against narrowing the application of the ordinance stating that law enforcement cannot classify 290 registrants based upon the particular type of sex offense they commit and predict the type of future sex offense based upon past sex offenses. Just because a 290 registrant's prior sex offense did not involve a child does not mean his future offenses will not involve children. SEX OFFENDERS VIOLATE AGAINST BOTH ADULTS AND CHILDREN A case in point is one of Orange County's most notorious and dangerous serial killers, Rodney Alcala. Alcala's first known victim was an adult female. He sexually assaulted her in an alley while he was serving in the U.S. Army. His future victims included both children and adults. In 1968, he violently kidnapped and brutally sexually assaulted an 8-year-old girl he had never met. In 1971 and 1977, he brutally sexually assaulted and murdered two women in New York, both 23 years old. After returning to California, he raped, sodomized and murdered 18-year-old Jill Barcomb by smashing her face with a rock and strangling her in November 1977. In December 1977, Alcala raped, sodomized and murdered 27-year-old Georgia Wixted by beating her face with a claw hammer and strangling her. In June 1979, Alcala raped and murdered 33- 50A-11 year-old Charlotte Lamb by beating her and strangling her with shoe laces. In June 1979, Alcala raped and murdered Jill Parenteau by strangling her with a cord. On June 20, 1979, Alcala kidnapped 12-year-old Robin Samsoe from Huntington Beach, murdered her, and dumped her body in the San Gabriel Mountains. Although her body was badly decomposed, her remains showed that Alcala had knocked out her front teeth. Her earring was later found in his sick victim "souvenir" trove in his locker. He was sentenced to the death penalty in Orange County for the California murders in 2010. New York charged Alcala with the two murders in January 2011, and he is awaiting trial. Alcala not only had both adult and child victims, he moved back and forth between the victims' age groups. PARENTS AND GRANDPARENTS WHO USE THEIR CHILDREN TO GAIN ACCESS TO VICTIMS Some people argue that some sex offenders are parents and grandparents with children who want to go to parks, thus they should have access to parks. Most sex offenders also happen to be parents and/or grandparents. In many instances, they use their children to gain access to other children to molest. George England was convicted for using his adopted 7-year-old daughter to molest three girls ages nine to 10. England drilled a hole in the wall from his bedroom into the bathroom in order to watch them and take nude photos of the young girls as they bathed, whom he repeatedly molested. Although Jackie Zudis (she has agreed to be named publicly) was sexually assaulted by England for more than a decade in some of the most egregious ways including being made to have sex with the defendant's dog, she most regrets being the instrument to the other girls' sexual assault by England. A grandfather named Octavio Cortez was convicted for molesting three girls ages four to seven, including putting his hands down one of the Jane Doe's pants and touching her vagina while she was playing with "B;3rbies" with the defendant's granddaughter. Patricia Anne Serrano, 43, Fountain Valley is awaiting trial on charges she molested and engaged in substantial sexual contact with her twelve-year-old son's friend. INDECENT EXPOSURE Some defendants are required to register because they are convicted of indecent exposure. Our Court of Appeal, 4`h District, recently upheld the sex offender registration requirement for indecent exposure in People v. Oona/d Honan (2010) 186 Cal. App. 4th 175. The Court held that a person who exposes his private parts with the intent "to direct public attention to his genitals" is necessarily engaged in a purposeful and aggressive sexual display designed to provoke others. Although violators of this section are misdemeanants, their conduct is one that should be prohibited from parks. In many cases, these registrants engage in 314 (indecent exposure) in view of children in parks and park restrooms where children regularly gather. In other cases, many defendants who have Penal Code 314 (indecent exposure) convictions are also child molesters. It makes little sense not to include this class of registrants when deciding who to ban from parks in creating safety zones. CHILD PORNOGRAPHY Another class of registrants who would not be included in the limited version of the ordin? nce is those who must register after a conviction for possessing child pornography. Shockingly, a lot of the child pornography being circulated today depicts very young children, sometimes even babies, engaged in various sex acts with inanimate and live objects, sometimes with other 50A-12 children and adult subjects. Some child pornography includes depictions of forcible encounters. Although child pornography shows the result of a violation of children, it would not technically be a violation with a child victim as is written ordinances limiting the ban against offenders with convictions involving child victims. There is no reason why any adult would possess child pornography, except those who have abnormal sexual desire towards children. In the case of Alejandro Avila, the man who abducted, sexually assaulted and murdered 5-year- old Samantha Runnion in 2002, Avila spent days prior to committing his heinous act aga?nst the little girl he had never met looking at child pornography of a girl about the same age as Samantha and fantasizing about molesting children. As mentioned above, an Orange County mother was at a park enjoying the playground with her children. She saw a man holding a video camera near her children. She recognized the man from the Megan's Law website. She called the Orange County Sheriff to report the incident. The deputy sheriff could not arrest the sex offender because he was not on probation or parole. A proposed ordinance limiting the ban to offenders with child victims would not cover this defendant because his registration was based on a possession of child pornography conviction. ANALYSIS OF LAKE FOREST SEX OFFENDERS ON MEGAN'S LAW Available public records show many sex offenders who have both child and adult victims. Many offenders on the Megan's Law website have registered for committing sex offenses against both children and adults, possessing child pornography and flashing. There are other registered sex offenders in Lake Forest not listed on the public website but are known to law enforcement. A review of the public information listed on the Megan's Law website for Lake Forest shows the following: There are 17 individuals who were required to register due to felony convictions for Penal Code 288, lewd acts upon a child, or other crimes perpetrated on a child victim. One of the 17 of the sex offenders was also convicted of sex crimes committed by force or fear. He was convicted of lewd acts with a child under 14 years of age by force or fear. Five of the 17 sex offenders, committed in addition to lewd acts other related sex crimes. One was convicted of contacting a minor with the intent to commit a specified sex offense. One was convicted of attempt to send harmful matter with intent of seduction of a minor, and attempt to distribute harmful matter depicting aminor/sent to a minor via Internet or email. Two were also convicted of continuous sexual abuse of a child. Of the 17, two were also convicted of sexual penetration with foreign object of a victim under 14 or under 16 years of age. Two of the 17 were also convicted of more serious sex offenses due to their age difference with their victims. Their offenses consisted of lewd acts with a child 14 or 15 years of age and the offender is 1 O or more years old than the victim, and oral copulation with a minor under 16 years of age and offender is 21 or more years of age. Four of the 17 sex offenders were convicted of sending, selling, distributing, or possession of obscene matter depicting a minor in sexual conduct. In addition, one of these four was also convicted of indecent exposure and misdemeanor child annoyance. Another one in this group was convicted of enticing a minor female for prostitution. 50A-13 Two of the 17 sex offenders were also on the registry after being convicted of misdemeanor child annoyance. These 17 sex offenders would be banned from Lake Forest parks if either version of the ordinance passes- Two of the registered sex offenders in Lake Forest were required to register based on non- Califomia sex offenses, thus it is unclear whether they will be banned from parks if the version limiting the ban to child sex offenders passes. The following 5 sex offenders would still be allowed in Lake Forest parks if the version limiting the ban to sex offenders with prior child victims were to be passed. One sex offender was convicted of a sex crime where the victim was unable to give consent. This individual was convicted of oral copulation with a victim unconscious of the nature of the act. Four individuals have violent sex offense convictions against adult victims. Their victims' ages are unknown, but it is possible that the victims could be as young as 18. One was convicted of forcible rape. One was convicted of oral copulation by force or fear. One was convicted of assault with intent to commit a specific sex offense. One was convicted of sexual battery. There are individuals who intend to molest children but unknown to them, did not have an actual child victim to molest. For example, if a sex offender entered a park believing he was meeting a minor to have sex, but the "minor" was instead a fictitious character in a law enforcement sting, the limited ordinance may not apply. In 2006, a California Highway Patrol lieutenant named Stephen Deck went to a park after exchanging numerous online chats with a girl he thought was 13 years old. He inquired if the girl liked older men, made graphic sexual statements and sexually suggestive comments about "eating pie," and arranged to meet the "victim" at a Laguna Beach park- He was met instead by law enforcement who arrested 12 others in the same sting on the same night- He was convicted by a jury and sentenced to probation and one year in jail in 2010, over the strenuous objection by the People, who advocated for state prison. After he completes probation or parole, he is likely to be allowed to enter parks in jurisdictions that limit their ban to sex offenders who "committed a crime against a child," since his victim was fictitious. It should be noted there are 85,000 sex offenders who reside in California and currently have access to Lake Forest parks. They are required to register under Penal Code 290 for a variety of reasons. Would it make a parent feel safer to have their children in a park where there is a violent rapist versus a child molester? Can you distinguish the threat to children by those offenders who sexually assaulted an 18-year-old woman from those who pose a danger to minors? Should a person who possesses child pornography be allowed in parks so he can fulfill his fantasies or escalate his acts? Society deems sex offenders and their actions so reprehensible and dangerous that they are required to register annually, within five working days of his or her birthday and/or five working days of their move to a new address. Transients must update their registration every 30 days and sexually violent predators must update their registration every 90 days. Other sex offenders must be electronically tethered to law enforcement through the Global Positioning System. 50A-14 Shouldn't these people be kept away from places where children regularly gather? REMEDIES FOR SEX OFFENDERS WHO WISH TO GO INTO PARKS There are ways to balance protection of children and providing relief to registrants with unusual circumstances. There are three ways a registered sex offender can be granted permission to enter parks. Certificate of rehabilitation Under Penal Code 290.5, which In concert with Penal Code 4852.0'1, certain 290 registrants can apply to a court fora certificate of rehabilitation. Upon a court finding, a registrant may be relieved of the duty to register under section 290. This alleviates the concern that the park ordinance might affect a 290 registrant whose offense was relatively "minor" and claims he no longer poses a threat to society. The court is in a better position to determine if a certain individual no longer poses a threat to the community rather than a legislative body giving a general exemption to a class of offenders without knowing their individual threat assessment. Exemption from law enforcement Second, law enforcement is in a better position to grant permission to enter a park on a case- by-case basis as it has the resources to investigate, and the knowledge and experience to gauge a sex offender's threat assessment. For example, a gardener who works on a maintenance crew at a park every Tuesday from 9 to 10 a. m. could get permission fn?m the city's police chief to be at the park during the specified time. The sex offender need not be a resident of the city and local law enforcement are notified of the presence of a sex offender. More inclusive ordinance Third, the OCDA does not see any rationale to limit the ordinance to those whose offense was against a child victim. If however, Lake Forest wishes to limit the sex offender ordinance, the OCDA feels that more 290 registrants should be included than is currently proposed. At a minimum, the ordinance should include: (1) 290 registrants whose offense was a felony; (2) 290 registrants whose offense involved someone under the age of 1 8; (2) 290 registrants who violated the following Penal Code sections, whether a misdemeanor or a felony and regardless of the victim's age: (a) Any section listed in Chapter 7.5 (crimes involving obscene matter, including child pornography); and (b) Sections 207 (kidnapping), 220 (forcible and/or in concert or assault with intent to commit rape, sodomy, oral copulation, lewd acts upon a child or penetration), 26'1 (rape), 264 (rape), 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulation of a minor), 288.2 (sending harmful material to a minor with sexual intent), 288.3 (contacting a minor to commit forcible kidnapping or kidnapping for ransom, rape, child endangerment, sodomy, lewd acts upon a child, oral copulation of a minor, forcible sexual 50A-15 penetration, possession of child pornography), 288.5 (continuous sexual abuse of a child), 289 (forcible sexual penetration), 314 (indecent exposure), and 647.6 (child annoyance). Thank you for your time and patience. I know we all share the desire to protect our children in every possible way from sex offenders. I hope you consider passing a similar ordinance to that of the County Ordinance for all of the above reasons. Sincerely, Tdny R kauckas District Attorney County of Orange TR: ss/ru cc Lt. Pat Higa, Chief of Police Services Scott C. Smith, City Attorney Robert C. Dunek, City Manager 50A-16 ?x arrc v4 "°-r_ `TONY RACKAUCKAS ?} .? ORANGE COUNTY DISTRICT ATTORNEY 9o£CO` ? ??op ORANGE COUNTY [][STRICT ATTORNEY'S OFFICE 407 CIVIC GENTER DRIVE wEST ? SANTA ANA, CA 92701 (714) 834-3636 May 14, 2012 Miguel Pulido, Mayor Clty of Santa Ana 20 Civic Ceriter Plaza Post Office Box 1988, M31 Santa Ana. CA 92701 Re: Orange County Sex Offender Ordinance Dear Mayor Pulido: Thank you for taking a large step toward increasing public safety by considering enacting an ordinance in your city to prohibit registered sex offenders from entering parks where children regularly gather. Your Council had a Public Safety Committee study session recently, and 1 understand you may be meeting on May 21, 2012, to modify Santa Ana's child safety zone ordinance to incorporate the County Ordinance- As Iwrote to you previously, the Board of Supervisors unanimously passed a County Ordinance on April 5, 2011, to create child safety zones to protect children from sexual predators in parks, playgrounds and beaches. Many other cities have either enacted or are in the process of enacting their own ordinance to protect children from sexual predators. On Nov_ 14, 2011, Hugo Godinez was convicfedin a court trial for violating the Orange County Codified Child Safety Zone Ordinance 3-18-1. He is required to register as a sex offender for life because he was convicted of misdemeanor sexual battery on June 23, 2010_ On Aug_ 16, 201 O, and May 2, 2011 , Godinez signed two Department of Justice forms acknowledging he understood the terms and conditions of his registration. On the same date, Godinez met with a deputy probation officer to discuss Ordinance 3-18-1 pertaining to restricting registered sex offenders' access to locations where children regularly gather, such as Orange County parks. The defendant signed a copy of the Ordinance. On May 5, 2011, at around 10:53 a.m., Godinez entered Mile Square Regional Park in the City of Fountain Valley. This park is known to be a gathering place for families, especially on holidays. The 20-acre park includes two lakes, three 18-hole golf courses, archery range, baseball and softball fields, and picnic shelters. There is a 55-acre recreation center with tennis courts, basketball courts, racquetball courts, a gymnasium, the Kingston Boys S? Girls Club, and a community center. On this particular date, there were many people, including children, celebrating Cinco de Mayo. The defendant did not leave the park until 2:00 p.m. There were VeriTracks Global Positioning Satellite System prints out showing the defendant's movements. He later admitted to an Orange County Sheriff's deputy on the Sex Offender Notification and Registration (SONAR} detail that he went to Mile Square Regional Park and stayed at the park for several hours knowing F1e was not supposed to be there and knowing it was wrong. He was sentenced on 50A-17 Nov. 17, 2011, to 100 days in Orange County Jail and five years of formal probation with other probation terms. In August 2011 , Richard Ernest Hibbard, 72, transient, became the first defendant to be convicted under the County Child Safety Zone Ordinance. Hibbard is a registered sex offender stemming from a misdemeanor child annoyance conviction from Los Angeles County. Since then, he has been convicted of numerous felonies and misdemeanors for failing to register as a sex offender in 1998, 2002, 2007, 2009, 2010, and 2011. On July 21, 2011, at about 5:00 p.m., deputies from the Orange County Sheriff's Department (OCSD) responded to Dana Point Harbor. A citizen approached OCSD deputies and asked them to keep an eye on the defendant because he was "belligerent around the kids;" using profane language, and talking loudly. There were at least 10 children in the immediate vicinity where Hibbard had been standing on the dock sidewalk. On Aug. 1 O, 201 1 , he pleaded guilty to being in violation of Ordinance 3-18- 3 (prohibited offender entering a County park) and was sentenced to 31 days in jail. In October 2011, the City of Westminster became the first Orange County city to convict a sex offender for violating the Child Safety Zone Ordinance. Steve James Dietrich is a registered sex offender stemming from convictions for rape by force and oral copulation with a minor under 14 years of age by force or fear. On July 16, 2011, and Aug. 6, 2011, Dietrich was cited by the same police officer for entering a park where children regularly gather. He was convicted on Oct. 17, 2011. Dietrich was sentenced to probation and 60 days in jail. There are several cities undertaking this issue and considering enacting an ordinance modeled after or similar to the County Ordinance. Others are considering "residence restriction" types of ordinances or "loitering" types of statutes. Some cities are considering limiting the ban to those who have prior convictions with child victims. Although a ban against those individuals with convictions against child victims would be a good start, I would appreciate it if you would consider some of the points contained in this fetter. You may find that we considered many of the same issues you are tackling and may come to similar conclusions. RECENT DEVELOPMENTS You may have heard that the Eldorado District Attorney released a disturbing videotape of child predators Philip and Nancy Garrido. The married couple was sentenced in April 201 1 , to 431 years and 36 years to life in prison, respectively, for abducting former-Orange County resident, 11-year-old Jaycee Lee Dugard, from a school bus stop and sexually assaulting her for 20 years. In one of the video clips, Phillip Garrido is singing in a park while directing his wife Nancy Garrido how to shoot the video. He asks her, "Got me good?" "I can see you really good," she answers. She then films a little girl on playground equipment behind him, the child's legs splayed. There are also other children playing on swings and on the playground. The Garridos are sexual predators, watching and filming children in parks. You can view the chilling video on the Internet at http://documents_latfines.com/garrido-dugard-evidence/. On Feb. 8, 2012, EI Dorado County passed an ordinance similar to Orange County's. The ordinance makes it a misdemeanor for registered sex offenders to enter county public parks, playgrounds, recreational areas and many other locations where children regularly gather without written permission from the EI Dorado County Sheriff's Office. The EI Dorado District Attorney's Office stated, "The recent case against Phillip Garrido is a good example of sex offenders' predatory behavior .._ Phillip Garrido was a registered sex offender, who, even after kidnapping and imprisoning Jaycee Lee Dugard, would frequent parks and videotape children as they played, searching for his next victim." 2 50A-18 in July 2011, 33-year-old German De Jesus was arrested after putting his hand down the pants of a 6-year-old girl and touching her vagina while at a movie night at the Grand Park in Aliso Viejo. She was standing just 10 feet from her father. This case is pending. For this case and another molest of an 8-year-old girl at another location, is charged with three felony counts of lewd or lascivious acts with a minor under 14 and a sentencing enhancement allegation of substantial sexual conduct with a child. ifi convicted on all counts, he faces a sentence ranging from a minimum of 15 years to life to a maximum of 45 years to life in state prison. In April 2011, a Lake Forest woman called the police when she saw a registered sex offender/child pornographer with a video camera near her children while they were. playing at a park. OCSD deputies who responded told her that the man could not be arrested because he was not on probation or parole, and there was no such law in the City of Lake Forest. The City of Lake Forest enacted an ordinance in December 2011. In April 2012, William Gabriel Rodriguez, 29, Cypress, was charged with one felony count each of contacting a child with intent to commit a specified sex crime, meeting a minor with intent to engage in lewd conduct, and lewd acts upon a child. If convicted, he faces a maximum sentence of four years and eight months in state prison and mandatory lifetime sex offender registration. Rodriguez is accused of meeting 15-year-old Jane Doe on a social networking website and telling her he was 18 years old communicating with Jane Doe through his computer and phone texts for a period of two to three weeks, and meeting Jane Doe at Maple Grove Park South in Cypress. He is accused of kissing Jane Doe several times on the mouth. Cypress police officer conducting foot patrol spotted the defendant and victim. The officer noticed the victim looked much younger than Rodriguez and contacted the defendant. An example of someone who could be present in parks located in cities that do not have such an ordinance is serial child molester Sid Landau, who has been convicted of numerous child molests and found to be a Sexually Violent Predator (SVP). If a jury grants Landau's petition to be released from his SVP civil commitment at Coalinga State Prison at a trial scheduled for Oct_ 22, 2012, he could be free to roam in any park without such an ordinance. In 1982, Landau was convicted of molesting a 10-year-old boy and sentenced to three years in state prison. He was arrested again in 1987 fior molesting a 5-year-old boy, but the case was ultimately dismissed. In 1988, Landau pleaded guilty to 18 counts of lewd acts on a child for molesting a 9-year-old boy and received 17 years in state prison. He was paroled in 1996, but only spent 15 months free over the next four years, as he continued to be re-imprisoned for extended periods of time for violating the terms of his parole. This included confessing to going to the zoo (a violation because Landau is prohibited from going to places where children are known to congregate), assaulting a camera man, and possessing teddy bears in his home, items which are lures for children. In 2000, Landau was placed in a mental hospital after his prison term expired and the People filed a Petition to have him declared an SVP. Landau met one of his victims while he lived at a home in Anaheim a few blocks from a park. He firequently went to the park with his beautiful Siberian Husky, which would attract attention from many other park-goers, including young boys. One of his victims, then 8, met Landau at the park when he went to pet Landau's dog_ From then on, Landau began to groom the victim until he ultimately began to sexually molest him. 3 50A-19 At the SVP trial in 2008, the People presented evidence that Landau also molested additional victims besides those named in the prior criminal complaints. Beginning in 1961 , Landau, then 21, molested an 8-year-old boy over the course of three years. In 1970, he molested another 8- year-old boy, and continued to do so until the boy was 15. While Landau can no longer be charged with these crimes due to the statute of limitations, this evidence was used to show his continued pattern of sexual deviance. During the 2008 trial, a doctor stated that based on the defendant's number of known victims and rate of offenses, Landau likely had between 1 ,000 and 1 ,500 undetected molests prior to his first conviction. Landau had declined to participate in treatment programs while in the hospital and had stopped using a prescription medication for depression, a side effect of which is a reduced sex drive. NARROWING THE BAN TO SIMPLY PROHIBIT "LOITERING" Limiting the ban to prohibit sex offenders from "loitering" in parks would not be effective. State law already prohibits sex offenders from loitering "about any school or public place at or near which children attend or normally congregate .' (Penal Code § 653b.) This would presumably apply to parks. Penal Code 653b, however, is not effective because it requires the sex offender to remain at the location or re-enter the location after being asked to leave. So long as the sex offender has not been asked to leave, he is not in violation of Penal Code 653b. In addition, it is difficult to prove loitering in a trial. "Loitering" means "to delay, to linger, or to idle about a school or public place without lawful business for being present." (Penal Code § 653b, subd. (d).) It would be difficult to prove a sex offender was "loitering" in a park when that person was simply sitting on a park bench or on the grass or strolling through the park. Even videotaping or photographing may not be considered "loitering," as those are common activities of lawful citizens_ Yet, these are some of the very activities the proposed Ordinance seeks to preclude with respect to sex offenders_ Their presence in parks allows them to identify, observe, and possibly interact with potential victims whom they seek to groom and eventually exploit. Finally, any loitering prohibition may be preempted by Penal Code 653b. (See O'Conne// v. City of StocKton (2007) 41 Cal_4ih 1061 , 1 067 [a local ordinance may be preempted where it enters an area expressly or impliedly fully occupied by state law]_) For these reasons, limiting the ban to "loitering" in parks would not provide an effective tool to protect children from sex offenders' activities in parks. GENESIS AND PROCESS IN DEVELOPING THE COUNTY SEX OFFENDER ORDINANCE In 2010, registered sex offender Eric Hinnenkamp lived 155 feet from a Fullerton park where children regularly gather. He was a Los Angeles County parolee who was released from prison to an apartment in Huntington Beach. Hinnenkamp inherited a house from his parents in Fullerton and was intending to live at the residence. According to Megan's Law website, his prior convictions included felony lewd conduct on child victims, indecent exposure, and restrained sexual battery. Understandably, local citizens became alarmed and asked law enforcement for a solution. The Orange County District Attorney (OCDA) began researching legal solutions and developing practical applications in response. Meanwhile, the OCDA also monitored the development of Chelsea's Law in the State legislature. The result was the development and enactment of the County Child Safety Ordinance, which closed a loophole in the existing law. RESIDENCY RESTRICTIONS V. CHILD SAFETY ZONES The OCDA initially considered enacting both sex offender restrictions, which generally fall into two categories: (1) Residency restrictions; and (2) Child safety zones. Residency restrictions 4 50A-20 restrict an offender from residing within a specified distance of certain locations, such as schools and parks. Child safety zones restrict offenders' movement within and/or around areas where children congregate, such as schools, parks, libraries, etc. Residency Restrictions The available research found by the OCDA suggests that residency restrictions have little impact on sex offender recidivism and may even compromise public safety. Generally, researchers have been unable to correlate any meaningful relationship between residential proximity to schools, parks, etc. and sexual recidivism_ Research indicates that residency restrictions diminish housing options in urban areas, which forces offenders to move to more rural locations. This limits offenders' access to social services and community resources that help prevent recidivism by transitioning into the community. Residency restrictions also decrease employment opportunities for offenders and increase their transience and homelessness. These unintended consequences reduce the number of offenders accurately tracked by local law enforcement agencies. The research findings were anecdotally supported by conversations with local and State law enforcement officials. For more detailed discussions of this topic, please see the articles and the sources cited in the quarterly bulletin Geography and Public Safety, Vol. 2, Issue 1, May 2009, and listed at: http:l/www.oip. usdoi.oov/nii/maps/q ps-bu Iletin-v2i 1 . pdf_ Residency restrictions also face constitutional challenges relating to the right to privacy, the right to intrastate travel, substantive due process and other rights. The outcome of such challenges is uncertain in California. In In re E.J. (2010) 47 Cal.4th 1258, the California Supreme Court suggested a residency restriction must be narrowly tailored to further the government interest of protecting children from sex offenders. The Court remanded the petitioners' constitutional claims to the trial court for evidentiary hearings concerning, among other things, the supply of available housing for each sex offender in their respective community_ If a residency restriction makes a substantial portion of a community off-limits to sex offenders, it may be difficult to sustain its constitutionality. Meanwhile, the OCDA was waiting for the enactment of Chelsea's Law, which contained the language of the County Ordinance. Ctietsea's Law -Amended The language in the drafted sex offender ordinance is adapted from proposed language in Chelsea's Law and from Penal Code 626.81, which prohibits sex registrants from entering school grounds without written permission. Until 2010, Chelsea's Law (AB 1844) would have added as Penal Code 647.9 much of the language set forth in the County Ordinance_ On July 15, 2010, Chelsea's Law was amended to delete the originally proposed language as Penal Code 647.9. The bill was signed into Law on Sept. 8, 201 O. Instead, the bill added section 3053.8 to the Penal Code. That section precludes Penal Code 290 registrants from entering parks where children gather without express permission, but only applies the restriction to parolees who served prison time for certain sexual offenses in which one or more of the victims was under 14 years of age_ Thus, the "park restriction" in Chelsea's Law does not apply to sex registrants who have been discharged from parole. Some of these sex registrants are subject to lifetime parole and some are be subject to parole for 20 years, depending upon the particular crime committed_ 5 50A-21 LEGAL ISSUES EXPLORED: Child Safety Zones -Constitutionality A court will examine each law to determine whether it is narrowly tailored to the government interest. Child safety zone laws appear easier to defend than residency restrictions. Safety zone laws are more narrowly tailored to furthering the interest of protecting children by keeping sex offenders away from areas in which children congregate. The more broadly a restriction sweeps, the more likely a court will find it is not narrowly tailored. The more tailored a law appears to protect children from sex offenders, while still permitting legitimate activities by the sex offenders, the more likely it will survive a constitutional challenge. There are two types of constitutional challenges: (1) a facial challenge, which considers only the text of the law and seeks to void the law as a whole; and (2) an as-applied challenge, which considers the law's application to a particular challenger's facts. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, '1084_) To defeat the entire law in a facial challenge, the challenger must show it "inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions." (/bid.) For example, a particular offender may argue a law aimed at all sex offenders - as opposed to a law tailored to sex offenders whose victims were children - is not narrowly tailored. It seems unlikely, however, that a court would find the law totally conflicts with constitutional principles, since many of the registered sex offenders committed crimes against children. Furthermore, many offenders have both adult and child victims (e.g. Rodney Alcala as further explained later) while others commit crimes which may lead to future victims (e.g. indecent exposure defendants commit offenses in public places with children). Thus, the law would not be constitutionally overbroad when applied to those offenders. A particular offender could bring an as-applied constitutional challenge. Such a challenge considers whether the law is being applied in a constitutionally impermissible manner. (Tobe v. City of Santa Ana, supra, 9 Cal.4th 1069, 1084.) The court evaluates the propriety of the application on a case-by-case basis to determine whether to relieve the defendant of the sanction. (/bid.) This could preclude application of the relevant law to a particular sex offender, but would not render the law constitutionally infirm as to others. Retroactivity In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party's liability for, an event, transaction, or conduct that was completed before the law's effective date. (/n re E. J_, supra, 47 Cal.4ih 1258, 1273.) Therefore, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute's effective date. (Ibid.) In In re E.J., supra, 47 Cal.4th 1258, the court indicated it may be impermissible to apply the 2,000-foot residency restriction to a sex offender who acquired housing before the law's effective date. (Id. at pp. 1275-1276.) The offender would not have had notice of the restriction before the conduct to which the law speaks occurred. (!d_ at p_ 1276, citing Doe v. Schwarzenegger (E_D. Cal_ 2007) 476 F.Supp_2d 1178, 1 179, fn. 1 [residency restriction could not be applied retroactively to persons paroled and released from prison prior to the law's effective date].) For our purposes, the last act necessary to trigger application of child safety zone laws would seem to be the offender's unlawful entry and/or loitering upon property within a protected zone. Thus, application to all offenders would not seem to be impermissibly retroactive. 6 50A-22 Ex Post Facto An impermissible ex post facto law is one which makes more burdensome the punishment for a crime after its commission. (/n re E_J., supra, 47 Cal.4th 1258, 1279.) Because the child safety zone laws would not be applied retroactively, they would not raise ex post facto issues. (/n re E.J., supra, 47 Cal.4th 1258, 1279-1280 [ex post facto only applies to laws applied retroactively].) Will enactment of such an ordinance create a cause of action if a registered sex offender does harm a child at a Dark where there is such an ordinance? Government Code section 845 - Failure to provide any or adequate police protection; Responding to alarm states as follow: Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, far failure to provide sufficient police protection service. A police department shall not fail to respond to a request for service via a burglar alarm system or an alarm company referral service solely on the basis that a permit from the city has not been obtained_ PRACTICAL ISSUE CONSIDERED What resources will the enactment of this ordinance take away from police? The OCDA believes the enactment of this ordinance will cause a minimal shift in resources. Atypical scenario would be a parent calling the police when they see a person acting suspiciously in a park around children. This law is an additional tool for law enforcement to contact and arrest registered sex offenders in parks where children regularly gather. It should be noted that since the passage of the County Ordinance, the OCSD has had 14 requests by sex offenders, One waiver has been granted. ORANGE COUNTY ORDINANCE Sec. 3-18-1. -Purpose and intent. It is the purpose and intent of this article to protect children from registered sex offenders by restricting sex offenders' access to locations where children regularly gather. It is intended to reduce the risk of harm to children by impacting the ability of sex offenders to be in contact with children. It is further the intent of this article to provide additional restrictions beyond those provided for in state law by restricting sex offenders from certain limited locations, and by allowing for criminal penalties for violations of this article. It is not the intent of this article to allow conduct otherwise prohibited by state law, or to contradict state law. Orange County Parks are recognized by the County of Orange Board of Supervisors as locations where children regularly gather. (Ord. No. 11-012, § 1, 4-5-11) Sec. 3-18-3. -Prohibitions. Any person required to register pursuant to California Penal Code sections 290, et seq. who enters into or upon any Orange County Park where children regularly gather without written permission from the Orange County Sheriff or Sheriff's designee is guilty of a misdemeanor. Each entry into any such area, regardless of the time period between entries, shall constitute a separate offense under this article. (Ord. No. 1 1-012, § 1 , 4-5-11 ) 7 50A-23 Sec. 3-18-4. -Penalties for violation. Punishment for a violation of this article shat! be as follows: (1) Upon a first conviction, by imprisonment in a county jail fora period of not more than six (6) months, or by a fine not exceeding five hundred dollars ($500.00), or by both imprisonment and a fine. (2) Upon a second conviction, by imprisonment in a county jail fora period of not less than ten (10) days and not more than six (6) months, or by both imprisonment and a fine not exceeding five hundred dollars ($500.00). Upon a second conviction, however, the person shall not be released on probation, parole, or any other basis until he or she has served not less than ten (1 O) days. (3) Upon a third or subsequent conviction, by imprisonment in a county jail for a period of not less than ninety (90) days and not more than six (6) months, or by both imprisonment and a fine not exceeding five hundred dollars ($500.00). Upon a third or subsequent conviction, however, the person shall not be released on probation, parole, or any other basis until he or she has served not less than ninety (90) days. (Ord_ No. 1 1-012, § 1, 4-5-1 1) Definitions There are two main terms to define: 1) park; and 2) the administrative official from whom written permission must be obtained. Some local jurisdictions may choose to leave the term as drafted without further definition_ Relevant State law provisions do not define the term "park." (Penal Code § 3003.5 [precludes sex registrants from residing within 2000 feet of a "park where children regularly gather"]; Chelsea's Law (Penal Code § 647.9) [would preclude certain parolees from entering "any park where children regularly gather'].) Some local jurisdictions may want to further define the term. Some cities have local ordinances defining the term "park." For example, Grover Beach defines a "park" as "any city, county, school district, state or federal public park. or playground where children are likely to be." Santa Clarita states a "`[p]ark' shall include any areas owned, leased controlled, maintained, or managed by a public entity which are open #o the public where children regularly gather and which provide recreational, cultural, and/or community service activities including, but not limited to, playgrounds, playfields, athletic courts, trails, paseos, and open space" Huntington Beach states a "'[p]ark' includes every park, recreation center, lake, pond or other body of water, riding and hiking trail, parking lot and every other recreation facility owned, managed and/or controlled by the City and under jurisdiction of the Director." Each local jurisdiction should decide whether it wishes to further define the term "park" depending upon its particular circumstances. Orange County chose to define the area as places where "children regularly gather" and specifically named certain places. Similarly, each local jurisdiction should consider the appropriate entity from where permission must be obtained before a sex registrant can enter a park. The appropriate person may vary depending upon how the local jurisdiction is organized. In Orange County, the Board of Supervisors believed that the Orange County Sheriff, who has investigative and authority and patrol responsibility in the defined areas, would be in the best position to give exemptions. 50A-24 The court may imply knowledge (scienter) element to the crime. A court would require evidence showing the defendant knew or reasonably should have known the "park" was a place where children regularly gather_ Some cities are contemplating whether to limit the ban to sex offenders who have been convicted of a crime against a child under the age of 18. LIMITING THE BAN TO REGISTERED SEX OFFENDERS "WHO HAVE BEEN CONVICTED OF A CRIME AGAINST A CHILD UNDER THE AGE OF 18" While drafting the County Ordinance, Supervisor Shawn Nelson and Orange County District Attorney Tony Rackauckas actively contemplated whether to exclude a certain class of offender in the proposed sex-offender statute. Of concern were those who, while a teenager, were convicted of engaging in consensual sex with a younger teenager and now must register as a sex offender for life, although he has subsequently grown up with no further violations_ Since then, others have voiced their concern of former "fraternity. boys" who they believe now have the requirement to register as sex offenders after being arrested for urinating in public. There seem to be many myths as to the persons who are required to register as sex offenders_ PENAL CODE SECTION 290 (c) states: The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 (murder) committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulation of a minor), or 289 (forcible sexual penetration), Section 207 (forcible kidnapping) or 209 (forcible kidnapping for ransom) committed with intent to violate Section 261(rape), 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulations of a minor), or 289 (forcible sexual penetration), Section 220 (forcible and or in concert or assault with intent to commit rape, sodomy, oral copulation, lewd acts upon a child or penetration, Section 243.4 (sexual battery), paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261 (rape of a mentally incapacitated victim, forcible rape, rape of a victim who in unable to resist due to intoxication, rape of an unconscious victim and rape using threat to retaliate, paragraph (1) of subdivision (a) of Section 262 spousal rape) involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1 (forcible rape, spousal rape, sexual penetration acting on concert of another), 266 (enticing a minor into prostitution or procurement of sex with another man by fraud), or 266c (sexual intercourse or penetration, oral copulation or sodomy using fraud or force), subdivision (b) of Section 266h (pimping a minor for prostitution), subdivision (b) of Section 266i (pandering a minor for prostitution), Section 266j (making available or transporting a minor for lewd acts), 267 (taking a minor from parents or guardian for prostitution}, 269 (aggravated sexual assault of a child under 14 where the perpetrator is more than 7 years older involving forcible rape, oral copulation, sexual penetration or sodomy), 285 (incest), 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulation of a minor), 288.3 (contacting of a minor to commit forcible kidnapping or kidnapping for ransom, rape, child endangerment, sodomy, lewd acts upon a child, oral copulation of a minor, forcible sexual penetration, possession of child pornography, 288.4, contact with a minor with sexual intent), 288.5 (continuous sexual abuse of a child), 288.7 (sexual intercourse, sodomy, penetration of a child under the age of 10), 289 (forcible sexual penetration), or 311.1 (distributing child pornography), subdivision (b), (c), or (d) of Section 311.2 (production of child pornography), Section 311.3 (developing or exchanging child pornography), 311.4 (employing minor to assist in distribution of child pornography), 311.10 (advertising or distributing child pomography), 311.1'1 (possession of child pornography), or 647.6 (child annoyance) former Section 647a, subdivision (c) of Section 653f (solicitation of forcible and or acting in concert, rape, sodomy, 5OA-25 oral copulation, lewd acts upon a child, and sexual penetration, subdivision 1 or 2 of Section 314, indecent exposure, any offense involving lewd or lascivious conduct under Section 272, contributing to a delinquency of a minor, or any felony violation of Section 288.2, sending harmful material to a minor with sexual intent; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above- mentioned offense. As to the issues of statutory rape cases, Penal Code 261.5, 290 and 290.006, do not require registration for the offense. Penal Code 261.5 prohibits sexual intercourse with persons under 18 years old. (Penal Code § 261.5(a).) In general, the penalties for violating the statute vary depending upon whether there is an age difference of more than two years, more than three years, or whether the perpetrator is over age 21 and the victim is under age 16. (Penal Code § 261.5.) None of the offenses carries mandatory registration. Penal Code 290.006 gives the court discretion to impose registration in any offense where the person committed the offense as a result of "sexual compulsion or for purposes of sexual gratification." This statute provides a good mechanism to distinguish between young offenders who may be sexual predators and/or dangerous and young offenders who fall into the facts as described above. The offenders described above are not likely to be required to register. On the other hand, some individuals who violate Penal Code 261.5 -even at a young age - were identified and found to be sexual predators and/or dangerous by the court. If those are the facts, then it would not be wise to exclude all registrants who violate Penal Code 261 .5 from the proposed park-restriction law. Another statute pertaining to unlawful sex with minors is Penal Code section 288. Among other things, that section punishes those who sexually molest a child under 14, or molest a child who is 14 or 15 years old where the perpetrator is more than 10 years older than the child. (Penal Code ?288(c)(1).) Individuals who violate Penal Code 288 are required to register under Penal Code section 290 should not be excluded from the proposed park-restriction statute. Obviously, there is no requirement for registration for urinating in public, usually municipal code viofations_ The OCDA consulted its prosecutors in the Sexual Assault Unit, including the supervisor of the Unit, Assistant District Attorney Rosanne Froeberg_ They all strenuously advised against narrowing the application of the ordinance, stating that law enforcement cannot classify 290 registrants based upon the particular type of sex offense they commit and predict the type of future sex offense based upon past sex offenses. Just because a 290 registrant's prior sex offense did not Involve a child does not mean his/her future offenses will not involve children. SEX OFFENDERS VIOLATE AGAINST BOTH ADULTS AND CHILDREN A case in point is one of Orange County's most notorious and dangerous serial killers, Rodney Alcala. Alcala's first known victim was an adult female. He sexually assaulted her in an alley white he was serving in the U.S_ Army. His future victims included both children and adults. In 1968, he violently kidnapped and brutally sexually assaulted an 8-year-ofd girl he had never met. In 1971 and 1977, he brutally sexually assaulted and murdered two women in New York, both 23 years old. After returning to California, he raped, sodomized and murdered 18-year-old Ji{I Barcomb by smashing her face with a rock and strangling her fn November 1977. In December 1977, Alcala raped, sodomized and murdered 27-year-old Georgia Wixted by beating 10 50A-26 her face with a claw hammer and strangling her. In June 1979, Alcala raped and murdered 33- year-ofd Charlotte Lamb by beating her and strangling her with shoe laces. In June 1979, Alcala raped and murdered Jill Parenteau by strangling her with a cord. On June 20, 1979, Alcala kidnapped 12-year-old Robin Samsoe from Huntington Beach, murdered her, and dumped her body in the San Gabriel Mountains_ Although her body was badly decomposed, her remains showed that Alcala had knocked out her front teeth. Her earring was later found in his victim "souvenir" trove in his storage locker. He was sentenced to the death penalty in Orange County for the California murders in 2010_ New York charged Alcala with the two murders in January 2011, and he is awaiting trial. Alcala not only had both adult and child victims, he moved back and forth between the victims' age groups. PARENTS AND GRANDPARENTS WHO USE THEIR CHILDREN TO GAIN ACCESS TO VICTIMS Some people argue that some sex offenders are parents and grandparents with children who want to go to parks, thus they should have access to parks. Most sex offenders are parents and/or grandparents. In many instances, they use their children to gain access to other children to molest. George England was convicted for using his adopted 7-year-old daughter Jackie Zudis (she has agreed to be named publicly) to molest three girls ages 9 to 1 O. England drilled a hole in the wall from his bedroom into the bathroom in order to watch them and take nude photos of the young girls, whom he repeatedly molested, as they bathed. Although Zudis was sexually assaulted by England far more than a decade in some of the most egregious ways, including being made to have sex with the defendant's dog, she most regrets being the instrument to the other girls' sexual assault by England. A grandfather named Octavio Cortez was convicted for molesting three girls, ages four to seven, including putting his hands down one of the Jane Doe's pants and touching her vagina while she was playing with "Barbies" with the defendant's granddaughter. Patricia Anne Serrano, 43, Fountain Valley is awaiting trial on charges she molested and engaged in substantial sexual contact with her son's 12-year-old friend. Kathie Maria Davis, 44, Laguna Niguel is also awaiting trial engaging in lewd acts and substantial sexual conduct on a 13-year-old boy and engaging in unlawful sexual intercourse with a 16-yearld-old boy. Both victims were friends of her son on his hockey team. INDECENT EXPOSURE Some defendants are required to register because they are convicted of indecent exposure. Our Court of Appeal, 4"' District, recently upheld the sex offender registration requirement for indecent exposure in People v. Dona/d Honan (2010) 186 Cal. App. 4th 175. The Court held that a person who exposes his private parts with the intent "to direct public attention to his genitals" is necessarily engaged in a purposeful and aggressive sexual display designed to provoke others. Although violators of this section are misdemeanants, their conduct is one that should be prohibited from parks. In many cases, these registrants engage in 314 (indecent exposure) in view of children in parks and park restrooms where children regularly gather. In other cases, many defendants who have Penal Code 314 (indecent exposure) convictions are also child molesters. It makes little sense not to include this class of registrants when deciding who to ban from parks in creating safety zones. 11 50A-27 CHILD PORNOGRAPHY Another class of registrants who would not be included in the limited version of the ordinance is those who must register after a conviction for possessing child pornography. Shockingly, a lot of the child pornography being circulated today depicts very young children, sometimes even babies, engaged in various sex acts with inanimate and live objects, sometimes with other children and adult subjects. Some child pornography includes depictions of forcible encounters. Although child pornography shows the result of a violation of children, it would not technically be a violation with a child victim as is written in ordinances limiting the ban against offenders, with convictions involving child victims. There is no reason why any adult would possess child pornography except those who have abnormal sexual desire towards children. In the case of Alejandro Avila, the man who abducted, sexually assaulted and murdered 5-year- old Samantha Runnion in 2002, Avila spent days prior to committing his heinous act against the little girl he had never met looking at child pornography of a girl about the same age as Samantha and fantasizing about molesting children_ As mentioned above, an Orange County mother was at a park enjoying the playground with her children. She saw a man holding a video camera near her children. She recognized the man from the Megan's Law website. She called the Orange County Sheriff to report the incident. The deputy sheriff could not arrest the sex offender because he was not on probation or parole. A proposed ordinance limiting the ban to offenders with child victims would not cover this defendant because his registration was based on a possession of child pornography conviction. ANALYSIS OF SANTA ANA SEX OFFENDERS REGISTERED ON MEGAN'S LAW WEBSITE Available public records show 235 registered sex offenders residing in the City of Santa Ana for sex crimes against children and adults, possession of child pornography, and/or indecent exposure (flashing). In addition to the 235 publicly-listed offenders, law enforcement is aware of additional registered sex offenders who reside in the City. A review of public information listed on the Megan's Law website reveals the following: Sex Crimes Against Children There are 196 sex offenders residing in Santa Ana who committed sex crimes against children. A_ Lewd acts against victims under the age of 14 Of the 196, there are '125 individuals who were required to register because of felony convictions under Penal Code 288(a) for lewd acts upon a child under the age of 14. Three of the i25 also have misdemeanor child annoyance convictions. Another three of the 125 also have convictions for flashing or indecent exposure. One of 125 committed incest, and another sexually penetrated his victim with a foreign object. Of the 125, three also contacted their minor victims for the purpose of arranging a sexual encounter and went to the arranged meeting to commit a sexual offense; two possessed child pornography; and two sent pornographic material to seduce their child victims. 1. Age Difference of at least 1 O years, and lewd acts with a victim under 14 There was an age difference of at least 10 years between the sex offender and the child victim in seven of the 125 cases of lewd acts against a child under the age of 14. Four of the seven were convicted of additional crimes: One is a female offender with an additional conviction for oral copulation with a minor. Another sex offender was convicted for sexually penetrating his victim with a foreign object, child molestation, and oral copulation with a minor. A third orally copulated with his victim. The fourth 12 50A-28 sex offender committed continuous child abuse and lewd acts on a child under the age of 14 as well as on a child between the ages of 14 and 15. 2. Employing force or fear, and lewd acts with a victim under 14 Of the '125 individuals convicted of lewd acts against children under 14, there are 24 sex offenders who used force or fear against one or more victims. Three of these 24 restrained their victims to commit the act_ Another offender forcibly orally copulated with his victim, who was under the age of 14. Additionally, many of the 24 committed other sex crimes in addition to the lewd act against a child under 14. One offender forcibly sodomized his victim, who was under the age of 14, forcibly orally copulated with a minor under the age of 14, sexually penetrated a victim under the age of 14, and committed lewd acts on a child under 14. Another forcibly orally copulated with a minor under the age of 14 and sodomized and orally copulated with a victim under the age of 16. Some of those who used force may have also violated adult victims. One offender who was convicted of oral copulation with a minor under the age of 14 years was also convicted of raping a victim of unspecified age and kidnapping a victim of unspecified age with the intent to commit a sexual offense_ Another offender was convicted of oral copulation with a victim of unspecified age and sodomy in concert with force against a victim of unspecified age, in addition to his conviction of oral copulation with a minor under the age of 14 by using force or fear. A third sex offender was convicted of forcibly raping a victim of unspecified age and forcibly sexually penetrating a victim of unspecified age with a foreign object, in addition to his conviction of forcible oral copulation with a child under the age of 14. A fourth offender has four convictions for crimes against children and two convictions for crimes against victims of unspecified age: lewd acts with a child under the age of 14; sodomy with a child under the age of 14; oral copulation with a minor under the age of 14; lewd acts wish a child between the ages of 14 and 15; sexua{ assault against a victim of unspecified age; and forcible rape against a victim of unspecified age_ A fifth sex offender forcibly orally copulated with a minor under 14 and forcibly sodomized a child under 14. The same offender was also required to register for sexual offenses against victims of unspecified age: forcible rape of a female incapable of giving consent; sexual penetration with a foreign object; sexual assault; sexual battery; and attempted forcible sodomy. B. Lewd acts against victims between the ages of 14 and 15 Of the 196 registered child sex offenders, 17 committed lewd acts upon a child between the ages of 14 and 15. Of the 17, one is female, one also committed sexual battery, and another also possessed child pornography. Of the 17 sex offenders, 1 O were at least 10 years older than their victims. Seven of the ten were also convicted of other crime(s) in addition to the lewd act: one sexually penetrated his victim under the age of 16 with a foreign object; the second committed sexual assault; the third contacted a minor with the intent of committing a sexual offense and attempted to distribute pornographic material to his victim; and a fourth also contacted his minor victim with the intent to commit a sexual offense. The fifth offender employed or coerced a minor to produce child pornography. A sixth offender was also convicted of sexual penetration of a child under the age 13 50A-29 of 16, molestation of a child under the age of 18, and oral copulation with a child under the age of 16 when he was over the age of 21. The seventh individual has additional convictions for sexually penetrating a child under the age of 16 and orally copulating with a child under the age of 16 when he was over the age of 21 . C. Other sex acts against minors The fiollowing is a summary of the remaining convictions for sex acts against minors of varying ages. Three sex offenders committed ongoing child sexual abuse against children of unspecified age. Thirty were convicted of misdemeanor child annoyance. Four of the 30 molesters also have convictions for indecent exposure, and one of the thirty also orally copulated with a minor under the age of 16 when he was over the age of 21 . Two men orally copulated with minors under the age of 16 years. One of the two also sodomized a victim under the age of 16, and the second offender was over the age of 21 at the time of the offense. Three contacted minors of unspecified age for the purpose ofi committing sexual acts. Two individuals possessed child pornography, one of whom was also a seller or distributor of the pornographic material. Sex Crimes Against Adults There are 33 registered sex offenders residing in Santa Ana for sex crimes against adults. Five of the 33 individuals committed sexual offenses against mentally vulnerable victims. One of the five orally copulated with a drugged victim, and another sexually penetrated a drugged victim with a foreign object. Two of the five offenders raped victims incapable of giving consent. The fifth sex offender orally copulated with a victim who was unconscious of the nature of the act. Thirteen of the 33 sex offenders were convicted of forcible rape. One sex offender raped his victim by threat of retaliation and also committed sexual battery. Two offenders raped their victims by force and also committed sexual assault. Two other offenders forcibly raped, sodomized, and orally copulated with their victims. Five of the 33 offenders were convicted of sexual battery. One of the five also committed a second sexual battery using fraudulent representation and has an additional conviction for the nonconsensual intimate touching of another for sexual arousal. Eight of the 33 were convicted of sexual assault- Of these eight, two employed force or fear; one sexually penetrated his victim with a foreign object by force, and another indecently exposed himself- Two of the 33 sex offenders used fear or force to penetrate their victims with foreign objects. Unknown sex crimes Six individuals are registered in Santa Ana for sex crimes that were committed out-of- state. The exact nature of the sex crimes are unknown and may have been against either children or adults. One, however, received an additional California conviction for indecent exposure. 14 50A-30 REMEDIES FOR SEX OFFENDERS WHO WISH TO GO INTO PARKS There are ways to balance protection of children and providing relief to registrants with unusual circumstances. There are three ways a registered sex offender can be granted permission to enter parks. Certificate of rehabilitation Under Penal Code 290.5, which in concert with Penal Code 4852.01, certain 290 registrants can apply to a court fora certificate of rehabilitation. Upon a court finding, a registrant may be relieved of the duty to register under section 290. This alleviates the concern that the park ordinance might affect a 290 registrant whose offense was relatively "minor" and claims he no longer poses a threat to society. The court is in a better position to determine if a certain individual no longer poses a threat to the community rather than a legislative body giving a general exemption to a class of offenders without knowing their individual threat assessment. Exemption from law enforcement Second, law enforcement is in a better position to grant permission to enter a park on a case- by-case basis as it has the resources to investigate and the knowledge and experience to gauge a sex offender's threat assessment. For example, a gardener who works on a maintenance crew at a park every Tuesday from 9:00 a.m. to 10:00 a.m. could get permission from the city's police chief to be at the park during the specified time. The sex offender need not be a resident of the city and local law enforcement are notified of the presence of a sex offender. More inclusive ordinance Third, the OCDA does not see any rationale to limit the ordinance to those whose offense was against a child victim. If, however, Santa Ana wishes to limit the sex offender ordinance, the OCDA feels that more 290 registrants should be included than is currently proposed. At a minimum, the ordinance should include: (1) 290 registrants whose offense was a felony; (2) 290 registrants whose offense involved someone under the age of 1 8; (2) 290 registrants who violated the following Penal Code sections, whether a misdemeanor or a felony and regardless of the victim's age: (a) Any section listed in Chapter 7.5 (crimes involving obscene matter, including child pornography}; and (b) Sections 207 (kidnapping), 220 (fiorcible and/or in concert or assault with intent to commit rape, sodomy, oral copulation, lewd acts upon a child or penetration), 261 (rape), 264 (rape), 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulation of a minor), 288.2 (sending harmful material to a minor with sexual intent), 288.3 (contacting a minor to commit forcible kidnapping or kidnapping for ransom, rape, child endangerment, sodomy, lewd acts upon a child, oral copulation of a minor, forcible sexual penetration, possession of child pornography), 288.5 (continuous sexual abuse of a child), 289 (forcible sexual penetration), 314 (indecent exposure), and 647.6 (child annoyance). 15 50A-31 Thank you for your time and patience. I know we all share the desire to protect our children in every possible way from sex offenders. I hope you consider passing a similar ordinance to that of the County Ordinance for all of the above reasons. Sincerely, JT ny ackauckas District Attorney TR: ss/vl6 cc: Sonia R. Carvalho, City Attorney Teresa L. Judd, Assistant City Attorney Paul VI/alters, Chief, Santa Ana Police Department 8? Interim City Manager 16 50A-32 Orange County DA Office Page 1 of 2 MAN CHARGED WITH SEXUALLY ASSAULTING 13-YEAR-OLD BOY IN LIBRARY BATHROOM AND 18-YEAR-OLD MALE IN AIRPORT BATH ROO M Posted Date: 3/13/2012 4:20:42 PM ,... ?? ????-??=r, ?ran?q? County District Attorney 3- res a ease Tony Rackauckas, District Attorney 401 Civic Center Drive West Santa Ana, CA 92701 For Immediate Release Contacts: Case # 12CF0738 March 13, 2012 Susan Kang Schroeder Chief of Staff Office: 714-347-8408 Cell: 714-292-2718 Farrah Emami Spokesperson Office: 714-347-8405 Cell : 714-3 23-4486 MAN CHARGED WITH SEXUALLY ASSAULTING 13-YEAR-OLD BOY IN LIBRARY BATHROOM AND 18-YEAR-OLD MALE IN AIRPORT BATHROOM SANTA ANA - A man has been charged with sexually assaulting a 13-year-old boy in a library bathroom and an 18-year-old male in an airport bathroom. Robert Howard Claudio, 23, Anaheim Hills, is charged with three felony counts of lewd acts on a child under 14, one felony count of false imprisonment by violence, one felony count of sexual battery by restraint, and one misdemeanor count of battery, with a sentencing enhancement for substantial sexual conduct with a child. If convicted, he faces a maximum sentence of 14 years in state prison. Claudio is being held on $2 million bail and is expected to be arraigned today, Tuesday, March 13, 2012, in Department C]-1, Central Jail, Santa Ana. On Aug. 27, 2011, Claudio is accused of approaching 18-year-old John Doe #2 in a terminal at John Wayne Airport. He is accused of speaking with the victim before assaulting him by grabbing John Doe #2's penis over his clothing. http://orangecountyda. corn/templates/printer5?i'?1'?sp?Type=news8tpage=8c4irecordid=2... 5/ 15/2012 Orange County DA Office Page 2 of 2 When John Doe #2 went into an airport bathroom, Claudio is accused of following him inside. The defendant is accused of climbing under a restroom stall and cornering the vicrtim inside. John Doe #2 repeatedly tried to escape and told the defendant to leave. Claudio is accused of attempting to pull the victim's underwear down, grabbing him, and asking the victim to engage in oral copulation and anal penetration. After several minutes, John Doe #2 was able to escape and immediately reported the assault. The Orange County Sheriff's Department investigated this case. The defendant was identified, but a case was not filed due to a lack of corroboration at that time. On the afternoon of March 9, 2012, Claudio is accused of approaching 13-year-old John Doe #1 at the public library in Tustin while the victim was waiting for his mother to pick him up. The defendant is accused of luring John Doe #1 into a library bathroom and molesting the victim by engaging in substantial sexual conduct. John Doe #1 told the defendant to stop and escaped from the bathroom. He ran to the Tustin Police Department (TPD) around the corner and immediately reported the sexual assault. The defendant was arrested near.the scene. Anyone with additional information or who believes they have been a victim is encouraged to contact TPD Detective Pam Hardacre at (714) 573-3248 or Supervising District Attorney Investigator Lou Gutierrez at (714) 347-8794. If convicted, Claudio will be required to register as a lifetime sex offender and will be barred from entering County recreational areas and City parks that have passed the Sex Offender Ordinance. Visit www.orangecountyda.com to read the prior press releases on the County's Sex Offender Ordinance as well as the 11 other cities that have enacted the Child Safety Zone Ordinance. Senior Deputy District Attorney Jana Hoffmann of the Sexual Assault Unit is prosecuting this case. ### http://orangecountyda.com/templates/printer Gt19r/?idla?sp?type=news8epage=8&Lrecordid=2... 5/15/2012 TLJ 5/16/12 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 10, ARTICLE XII OF THE SANTA ANA MUNICIPAL CODE PERTAINING TO PROXIMITY OF REGISTERED SEX OFFENDERS TO CHILDREN'S FACILITIES 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. On May 15, 2006, the City Council of the City of Santa Ana (the "City Council") adopted Ordinance No. NS-2712, adding Article XII, sections 10-700 to 10-703 to the Santa Ana Municipal Code, thereby regulating the proximity of registered sex offenders to children's facilities. B. The City Council continues to place a high priority on maintaining public safety and finds that registered sex offenders pose a clear threat to children residing in or visiting the City. C. Article XI, Section 7 of the California Constitution authorizes the City to enact and enforce ordinances that regulate conditions that may be public nuisances or health hazards, or that promote social, economic or aesthetic considerations. D. Sex offenders have high recidivism rates that exceed those exhibited by other convicted criminals. The City Council must therefore take all necessary action to protect children and potential victims from these dangerous predators. E. The City Council is concerned about the high rate of recidivism among sex offenders and their dangerousness as a class. The City Council takes legislative notice of the November 2003 report issued by the U.S. Department of Justice, Bureau of Justice Statistics entitled, "Recidivism of Sex Offenders Released from Prison in 1994." A fifteen (15) state study of prisoners released in 1994 showed that when compared to non-sex offenders released from state prison, released sex offenders were four times more likely to Ordinance No. NS-XXX Page 1 of 9 50A-35 be rearrested fora new sex crime. This report is attached hereto and incorporated herein by this reference as though fully set forth. A copy of this report has been made available for City Council and public review at the City Clerk's office as a public record since posting of the agenda noticing consideration of this ordinance, and will remain as such. F. The City Council agrees with the U.S. Department of Justice statements in its brief to the Supreme Court that convicted sexual offenders are much more likely to repeat the offense of conviction than any other type of felon," and "clinical rehabilitative programs can enable sexual offenders to manage their criminal sexual impulses and thereby reduce the risk of sexual recidivism, [but a] vital component of those programs is for participants to come to terms with their sexual misconduct." G. The City Council finds that since sex offender recidivism rates are empirical data but sex offender rehabilitation depends upon an individual sex offender's personal efforts and acceptance of responsibility, factors that cannot be predicted, the danger presented by sex offenders is an unacceptable risk to the hea3lth, safety and welfare of the community that requires the City's regulatory intervention. H. On April 24th, 2012, the Santa Ana Public Safety Committee recommended the City Council adopt a revised ordinance, adding and amending certain provisions of the current ordinance, based on significant public safety considerations presented to and discussed by the Committee. I. The findings of and discussion by the Santa Ana Public Safety Committee, the Request for Council Action for this ordinance dated May 15th, 2012, and any attachments thereto, shall by this reference be incorporated herein, and together with the findings set forth in Section 1 of Santa Ana Ordinance No. NS-2712, in this ordinance, and any amendments or supplements or oral testimony before the City Council, shall constitute necessary findings for this ordinance. J. In enacting this ordinance, the City Council does not intend to punish sex offenders for their prior illegal conduct. Rather, the purpose of this chapter is to create a regulatory and non-punitive scheme to protect children and the public health, safety and welfare for the City's residents and visitors. K. It is not the intent of this ordinance to allow conduct otherwise prohibited by state law, or to contradict state law. Ordinance No. NS-XXX Page 2 of 9 50A-36 L. Nothing in this ordinance shall be deemed to modify or in any way limit restrictions placed upon a sex offender by terms and conditions of parole or probation. M. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Chapter 1 O, Article XII of the Santa Ana Municipal Code is hereby amended in its entirety to read as follows: Article XII. - PROXIMITY RESTRICTIONS FOR REGISTERED SEX OFFENDERS TO CHILDREN'S FACILITIES Sec. 10-700. -Purpose. Sec. 10-701 . -Definitions. Sec. 10-702. -Prohibitions. Sec. 10-703. -Notice. Sec. 10-704. -Penalties for violation. Sec. 10-705. -Other prosecution authorized. Sec. 10-706. - Severability. Section 10-700. -Purpose. Sex offenders pose a clear threat to the children residing in, or visiting our community. Because convicted sex offenders are more likely than any other type offender to reoffend for another sexual assault, the city council desires to impose safety precautions in furtherance of the goal of protecting our children. The purpose of this regulation is to reduce the potential risk of harm to children of our community by impacting the ability for sex offenders to be in contact with unsuspecting children in locations that are primarily designed for use by, or are primarily used by children, namely, the grounds of a school, a center or facility that provides day care or children's services, and a park. The city desires to add location restrictions to such offenders where the state law is silent. Section 10-701. -Definitions. The following words, terms, and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Ordinance No. NS-XXX Page 3 of 9 50A-37 Chi/d or Chi/dren means any person under the age of eighteen (18) years of age. Chi/dren's faci/ity means any school, day care center, or park (excluding Sasscer Park), as defined in this section, the Discovery Science Center located at 2500 N. Main Street, the Bowers Kidseum located at the corner of 18th Street and Main Street, the McFadden Learning Center located at 2627 W. McFadden, a?the Newhope Branch Library located at 122 N. Newhope Street, the Main Library located at 26 Civic Center Plaza, KidWorks located at 1902 W. Chestnut, and the Orange County Children's Therapeutic Art Center, located at 2215 N. Broadway #1 . Oay care center means any child day care facility other than a family day care home, and includes infant centers, preschools, extended-day care facilities and school-age child care centers, as defined in § 1596.76 of the California Health and Safety Code and licensed pursuant to the provisions of the California Child Day Care Facilities Act (Health & Safety Code §§ 1596.70 et seq.). bcaitE?rinq-mean-s to delayer IinQer?i##i;Tt#ree ?• •^?'?^-' ??^^` ' + f Park means any public park or recreation or playground area or building or facility thereon within the city, owned and maintained by the city as a public park or recreation or playground area. Schoo/ as used in this article shall mean any institution of learning for minors, whether public or private, offering instruction in those courses of study required by the state Education Code and maintained pursuant to standards set by the state board of education. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college, or university. Sex Offender means: °? -•?^ ?^? ?°°^ ° °-+ +.. ° ^+°? . ,:+ti v Nom. g^_•?rn?nental entit?as a sew effender when the dnderner?°° •-•^° ° 1. Any person who has been required to register with a governmental entity as a sex offender when the underlying offense was a crime involving a child and/or children, including but not limited to, crimes involving child pornography; or 2. Any person who has been required to register with a governmental entity as a sex offender pursuant to California Penal Code sections 290, et seq., including but not limited to persons required to register when the underlying offense was a violation of: any section listed in Ordinance No. NS-XXX Page 4 of 9 50A-38 Penal Code Chapter 7.5, Penal Code sections 207 (kidnapping), 220 (forcible and/or in concert or assault with the intent to commit rape, sodomy, oral copulation, lewd acts upon a child or penetration), 261 (rape), 264 (rape), 286 (sodomy), 288 (lewd acts upon a child), 288a (oral copulation of a minor), 288.2 (sending harmful material to a minor with sexual intent), 288.3 (contacting a minor to commit forcible kidnapping or kidnapping for ransom, rape, child endangerment, sodomy, lewd acts upon a child, oral copulation of a minor, forcible sexual penetration, possession of child pornography), 288.5 (continuous sexual abuse of a child), 289 (forcible sexual penetration), 314 (indecent exposure), and 647.6 (child annoyance). Section 10-702. -Prohibitions. 1. A sex offender is prohibited from being on or within three hundred (300) feet of a children's facility: (a) While there for the apparent purpose of observing a child or children, or (c) If the sex offender returns to leave by the owner children's facility. at any time after having been notified or any authorized official of ? uch Three hundred (300) feet shall be measured from the property lines of the parcel so zoned or used of each children's facility without regard to intervening structures. 2. A sex offender is prohibited from entering into or upon, or being present in or upon, any children's facility. Each entry into any such area, regardless of the time period between entries, shall constitute a separate offense under this ordinance. 3. A violation of this section is a misdemeanor. Sec. 10-703. -Notice. Registered sex offenders, prior to the date this article becomes effective, residing in the city shall be mailed a copy of the ordinance from which this article derives, first class mail, to their residence with the city police department. Thereafter, sex offenders who register with the city shall be provided a copy of the ordinance from which this article derives at the time of registration. Ordinance No. NS-XXX Page 5 of 9 50A-39 Section 10-704. -Penalties for violation. Punishment for a violation of this section shall be as follows: (1) Upon a first conviction, by imprisonment in a county jail for a period of not more than six months, or by a fine not exceeding five hundred dollars ($500), or by both imprisonment and a fine. (2) Upon a second conviction, by imprisonment in a county jail for a period of not less than ten (10) days and not more than six months, or by both imprisonment and a fine not exceeding five hundred dollars ($500). Upon a second conviction, however, the person shall not be released on probation, parole, or any other basis until he or she has served not less than ten (10) days. (3) Upon a third or subsequent conviction, by imprisonment in a county jail for a period of not less than ninety (90) days and not more than six months, or by both imprisonment and a fine not exceeding five hundred dollars ($500). Upon a third or subsequent conviction, however, the person shall not be released on probation, parole, or any other basis until he or she has served not less than ninety (90) days. Section 10-705. -Other prosecution authorized. Nothing in this ordinance shall preclude or prohibit prosecution under any other provision of law, which includes but is not limited to prosecution of parole and/or probation violations. Section 10-706. - Severability. If any section, subsection, paragraph, 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 portion shall be deemed severable and such holding 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, and declares that the invalid portions should be severed and the balance of the ordinance be enforced. 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 Ordinance No. NS-XXX Page 6 of 9 50A-40 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 2012 Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Teresa L. Judd Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Ordinance No. NS-XXX Page 7 of 9 50A-41 CERTIFICATE OF ATTESTATION AND ORIGINALITY 1, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX Page 8 of 9 50A-42 "Recidivism of Sex Offenders Released from Prison in '1994" U.S. Department of Justice, Bureau of Justice Statistics Published November 2003 Ordinance No. NS-XXX Page 9 of 9 50A-43 U.S. Department of Justice q Office of Jus[ice Programs Recidivism of Sex Offenders Released from Prison in 1994 50A-44 U.S. Department of Justice Office of Justice Programs 810 Seventh Street, N.W. Washington, D.C. 20531 John Ashcroft Attorney General Office of Justice Programs Deborah J. Daniels Assistant Attorney General World Wide Web site: http://www. ojp.usdoj . gov Bureau of Justice Statistics Lawrence A. Greenfeld Director World Wide Web site: http: //www. of p.usdoj . gov/bj s For information contact: National Criminal Justice Reference Service 1-800-851-3420 50A-45 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Recidivism of Sex Offenders Released from Prison in 1994 By Patrick A. Langan, Ph.D. Erica L. Schmitt and Matthew R. Durose Statisticians, Bureau of Justice Statistics November 2003, NCJ 198281 W? ?4? 50A-46 U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Lawrence A. Greenfeld, Director Patrick A. Langan, Erica L. Schmitt, and Matthew R. Durose, all BJS statis- ticians, wrote this report. Carolyn Williams and Tom Hester edited and produced it. November 2003, NCJ 198281 50A-47 Contents Introduction and highlights 1 Four measures of recidivism 13 State where rearrested for any type of crime Definitions 3 Imprisonment offense Sex offender Rapist Sexual assaulter Child molester Statutory rapist First release Prior arrest Rearrest Reconviction Returned to prison - with a new sentence -with or without a new sentence Demographic characteristics 7 All sex offenders (table 1) Rapists and sexual assaulters (table 1 ) Child molesters and statutory rapists (table 2) Sentence length and time served 9 All sex offenders (table 3) Rapists and sexual assaulters (table 3) Child molesters and statutory rapists (table 4) Prior criminal record 11 All sex offenders (table 5) Sex offenders compared to non-sex offenders Rapists and sexual assaulters (table 5) Child molesters and statutory rapists (table 6) Four measures All sex offenders (table 7) Sex offenders compared to non-sex offenders Rapists and sexual assaulters (table 7) Child molesters and statutory rapists (table 8) Time to recidivism All sex offenders (table 9) Rapists and sexual assaulters (table 9) Child molesters and statutory rapists (table 10) All sex offenders (table 19) Sex offenders compared to non-sex offenders Rapists and sexual assaulters (table 19) Child molesters and statutory rapists (table 20) Rearrest for any type of crime 18 Demographic characteristics All sex offenders (table 1 1) Rapists and sexual assaulters (table 1 1) Child molesters and statutory rapists (table 12) Time served before 1994 release All sex offenders (table 13) Rapists and sexual assaulters (table 13) Child molesters and statutory rapists (table 14) Prior arrest for any type of crime All sex offenders (table 1 5) Rapists and sexual assaulters (table 15) Child molesters and statutory rapists (table 16) Number of prior arrests for any type of crime All sex offenders (table 17) Rapists and sexual assaulters (table 17) Child molesters and statutory rapists (table 18) Rearrest and reconviction for a new sex crime 24 Rearrest and reconviction All sex offenders (table 21 ) Sex offenders compared to non-sex offenders Rapists and sexual assaulters (table 21) Child molesters and statutory rapists (table 22) Time to rearrest All sex offenders (table 23) Rapists and sexual assaulters (table 23) Child molesters and statutory rapists (table 24) Demographic characteristics All sex offenders (table 25) Time served before 1994 release All sex offenders (table 26) Prior arrest for any type of crime All sex offenders (table 27) Rapists and sexual assaulters (table 27) Child molesters and statutory rapists (table 28) Number of prior arrests for any type of crime All sex offenders (table 29) Prior arrest for a sex crime All sex offenders (table 30) Rapists and sexual assaulters (table 30) Child molesters and statutory rapists (table 31 ) State where rearrested for a sex crime All sex offenders (table 32) Sex offenders compared to non-sex offenders Rapists and sexual assaulters (table 32) Child molesters and statutory rapists (table 33) Recidivism of Sex Offenders Released from Prison in >994 iii 50A-48 Rearrest for a sex crime against a child 30 Undercounts of sex crimes against children No data on precise ages of molested children Rearrest All sex offenders (table 34) Sex offenders compared to non-sex offenders Rapists and sexual assaulters (table 34) Child molesters and statutory rapists (table 35) Prior arrest for a sex crime against a child All sex offenders (table 36) Rapists and sexual assaulters (table 36) Child molesters and statutory rapists (table 37) Molester's and child's age at time of imprisonment offense Child molesters (table 38) State where rearrested for a sex crime against a child All sex offenders (table 39) Sex offenders compared to non-sex offenders Rapists and sexual assaulters (table 39) Child molesters and statutory rapists (table 40) Rearrest for other types of crime 34 All sex offenders (table 41 ) Rapists and sexual assaulters (table 41) Child molesters and statutory rapists (table 42) Victims of sex crimes 36 Characteristics of victims of rape or sexual assault (unnumbered table) Methodology 37 Number of sex offenders released from State prisons in 1994 and number selected for this report, by State (Appendix table) iv Recidivism of Sex Offenders Re/eased from Prison in >994 50A-49 Introduction and highlights Introduction In 1994, prisons in 15 States released 9,691 male sex offenders. The 9,691 men are two-thirds of all the male sex offenders released from State prisons in the United States in 1994. This report summarizes findings from a survey that tracked the 9,691 for 3 full years after their release. The report documents their "recidivism," as measured by rates of rearrest, recon- viction, and reimprisonment during the 3-year followup period. This report gives recidivism rates for the 9,691 combined total. It also separates the 9,691 into four overlap- ping categories and gives recidivism rates for each category: • 3,1 15 released rapists • 6,576 released sexual assaulters 4,295 released child molesters • 443 released statutory rapists. The 9,691 sex offenders were released from State prisons in these 15 States: Arizona, Maryland, North Carolina, California, Michigan, Ohio, Delaware, Minnesota, Oregon, Florida, New Jersey, Texas, Illinois, New York, and Virginia. Highlights The 15 States in the study released 272,111 prisoners altogether in 1994. Among the 272,111 were 9,691 men whose crime was a sex offense (3.6% of releases). On average the 9,691 sex offenders served 3'/z years of their 8-year sentence (45% of the prison sentence) before being released in 1994. Rearrest for a new sex crime Compared to non-sex offenders released from State prisons, released sex offenders were 4 times more likely to be rearrested for a sex crime. Within the first 3 years following their release from prison in 1994, 5.3% (517 of the 9,691) of released sex offenders were rearrested for a sex crime. The rate for the 262,420 released non-sex offenders was lower, 1.3% (3,328 of 262,420). The first 12 months following their release from a State prison was the period when 40% of sex crimes were allegedly committed by the released sex offenders. Recidivism studies typically find that, the older the prisoner when released, the lower the rate of recidivism. Results reported here on released sex offenders did not follow the familiar pattern. While the lowest rate of rearrest for a sex crime (3.3%) did belong to the oldest sex offenders (those age 45 or older), other compari- sons between older and younger prisoners did not consistently show older prisoners' having the lower rearrest rate. The study compared recidivism rates among prisoners who served different lengths of time before being released from prison in 1994. No clear associa- tion was found between how long they were in prison and their recidivism rate 50A-50 Before being released from prison in 1994, most of the sex offenders had been arrested several times for differ- ent types of crimes. The more prior arrests they had, the greater their likeli- hood of being rearrested for another sex crime after leaving prison. Re- leased sex offenders with 1 prior arrest (the arrest for the sex crime for which they were imprisoned) had the lowest rearrest rate for a sex crime, about 3%; those with 2 or 3 prior arrests for some type of crime, 4%; 4 to 6 prior arrests, 6%; 7 to 10 prior arrests, 7%; and 11 to 15 prior arrests, 8%. Rearrest for a sex crime against a child The 9,691 released sex offenders included 4,295 men who were in prison for child molesting. Of the children these 4,295 men were imprisoned for molesting, 60% were age 13 or younger. Half of the 4,295 child molesters were 20 or more years older than the child they were imprisoned for molesting. On average, the 4,295 child molesters were released after serving about 3 years of their 7-year sentence (43% of the prison sentence). Compared to the 9,691 sex offenders and to the 262,420 non-sex offenders, released child molesters were more likely to be rearrested for child molest- ing. Within the first 3 years following release from prison in 1994, 3.3% (141 of 4,295) of released child molesters were rearrested for another sex crime against a child. The rate for all 9,691 sex offenders (a category that includes the 4,295 child molesters) was 2.2% (209 of 9,691 ). The rate for all 262,420 non-sex offenders was less than half of 1 % (1 ,042 of the 262,420). Of the approximately 141 children allegedly molested by the child moles- ters after their release from prison in 1994, 79% were age 13 or younger. Recidivism of Sex Offenders Re/eased from Prison in 1994 1 Released child molesters with more than 1 prior arrest for child molesting were more likely to be rearrested for child molesting (7.3%) than released child molesters with no more than 1 such prior arrest (2.4%). Rearrest for any type of crime Compared to non-sex offenders released from State prison, sex offend- ers had a lower overall rearrest rate. When rearrests for any type of crime (not just sex crimes) were counted, the study found that 43% (4,163 of 9,691 ) of the 9,691 released sex offenders were rearrested. The overall rearrest rate for the 262,420 released non-sex offenders was higher, 68% (179,391 of 262,420). The rearrest offense was a felony for about 75% of the 4,163 rearrested sex offenders. By comparison, 84% of the 179,391 rearrested non-sex offenders were charged by police with a felony. Reconviction for a new sex crime Of the 9,691 released sex offenders, 3.5% (339 of the 9,691) were recon- victed for a sex crime within the 3-year followup period. Reconviction for any type of crime Of the 9,691 released sex offenders, 24% (2,326 of the 9,691) were recon- victed for a new offense. The reconvic- tion offense included all types of crimes. Returned to prison for any reason Within 3 years following their release, 38.6% (3,741) of the 9,691 released sex offenders were returned to prison. They were returned either because they received another prison sentence for a new crime, or because of a technical violation of their parole, such as failing a drug test, missing an appointment with their parole officer, or being arrested for another crime. 2 Recidivism of Sex Offenders Re/eased from Prison in 9994 50A-51 Definitions Imprisonment offense The 9,691 prisoners were men released from State prisons in 1994 after serving some portion of the sentence they received for committing a sex crime. The sex crime they committed is referred to throughout the report as their "imprisonment offense." Their imprisonment offense should not be confused with any new offense they may have committed after release. Sex offender The 9,691 released men were all violent sex offenders. They are called "violent" because the crimes they were imprisoned for are widely defined in State statutes as "violent" sex offenses. "Violent" means the offender used or threatened force in the commission of the crime or, while not actually using force, the offender did not have the victim's "factual" or "legal" consent. Factual consent means that, for physical reasons, the victim did not give consent, such as when the offender had intercourse with a sedated hospital patient or with a woman who had fallen unconscious from excessive drug taking. "Legal" consent means that the victim willingly participated but, in the eyes of the law, the victim was not old enough or not sufficiently mentally capable (perhaps due to mental illness or mental retarda- tion) to give his or her "legal" consent. State statutes give many different names to violent sex offenses: "forcible rape," "statutory rape," "object rape," "sexual assault," "sexual abuse," "forci- ble sodomy," "sexual misconduct," "criminal sexual conduct," "lascivious conduct," "carnal abuse," "sexual contact," "unlawful sexual intercourse," "sexual battery," "unlawful sexual activ- ity," "lewd act with minor," "indecent liberties with a child," "carnal knowl- edge of a child," "incest with a minor," and "child molesting." "Violent" sex offenses are distinguished from "nonviolent" sex offenses and from "commercialized sex offenses." Nonviolent sex offenses include morals and decency offenses (for example, indecent exposure and peeping tom), bestiality and other unnatural acts, adultery, incest between adults, and bigamy. Commercialized sexual offenses include prostitution, pimping, and pornography. As used throughout this report, the terms "sex crimes" and "sex offenders" refer exclusively to violent sex offenses. Each of the 9,691 sex offenders in this report is classified as either a rapist or a sexual assaulter. Classification was based on information about the impris- onment offense contained in prison records supplied for each sex offender released from prison in 1994. Also based on imprisonment offense infor- mation, an inmate could be categorized as a child molester and/or a statutory rapist. Classification to either of these two categories is in addition to, not separate from, classification as a rapist or sexual assaulter. For example, of the 3,1 15 sex offenders classified as rapists, 338 were child molesters. Or, to put it another way, the imprisonment offense for 338 of the 4,295 child molesters identified in this report was rape. Similarly, 3,957 of the 4,295 child molesters were also sexual assaulters. Sexual Total Rapists assaulters Child molesters 4,295 338 3,957 Statutory rapists 443 21 422 The report gives statistics for all sex offenders and each of the four types - rapists, sexual assaulters, child moles- ters, and statutory rapists. (See Methodo/ogy on page 37 for details on how sex offenders were separated into categories.) Rapist "Violent sex crimes" are separated into two categories: "rape" (short for "forcible rape") and "other sexual assault." As used throughout this report the term "rapist" refers to a released sex offender whose imprison- ment offense was defined by State law as forcible intercourse (vaginal, anal, or oral) with a female or male. Rape includes "forcible sodomy" and "penetration with a foreign object." Rape excludes statutory rape or any other nonforcible sexual act with a minor or with someone unable to give legal or factual consent. As used throughout this report, "rape" always means "forcible rape." "Statutory rape" is not a type of forcible rape. A total of 3,115 sex offenders are identified in the report as released rapists - about a third (32%) of the 9,691 released sex offenders. However, enough information to clearly distinguish rapists from other sexual assaulters was not always available in the prison records used to categorize sex offenders into different types. Consequently, the number of rapists among the 9,691 was almost certainly greater than 3,115; how much greater is unknown. An obstacle to identifying rapists from penal code information is that the label "rape" is not used in about half the 50 States. However, released sex offend- ers whose imprisonment offense was rape could still be identified. To illus- trate, in one State, the term criminal sexual conduct refers to all types of sex crimes. The statutory language was consulted to determine if an offender's imprisonment offense involved "inter- course" that was "forcible," in accor- dance with the definition of rape used in this report. If the offense was not found to involve intercourse (or penetration), then the inmate was not classified as a rapist. The same was true of force; if the statutory language did not include a reference to force (or coercion), the offense was not catego- rized as rape. Sexual assaulter By definition in the report, all sex offenders are either "rapists" or "sexual assaulters." Sex offenders whose imprisonment offense could not be positively identified as "rape" were placed in the "sexual assault" category. To the extent that rapists were reliably distinguished from sexual assaulters, "sexual assaulters" identified in this report were released sex offenders whose imprisonment Recidivism of Sex Offenders Re/eased from Prison in 1994 3 50A-52 offense was "sexual assault," defined as one of the following: 1. forcible sexual acts, not amounting to intercourse, with a victim of any age, 2. nonforcible sexual acts with a minor (such as statutory rape or incest with a minor or fondling), or 3. nonforcible sexual acts with someone unable to give legal or factual consent because of mental or physical reasons (for example, a mentally ill or retarded person or a sedated hospital patient). A total of 6,576 sex offenders are identified in this report as released sexual assaulters. The 6,576 sexual assaulters made up about two-thirds (68%) of the 9,691 released sex offenders. Child molester Many of the 9,691 sex offenders were released prisoners whose imprisonment offense was the rape or sexual assault of a child. Throughout the report, released sex offenders whose forcible or nonforcible sex crime was against a child are referred to as "child molesters." The sex crime did not have to involve inter- course to fit the definition of child molestation. Of the 9,691 sex offenders, 4,295 were identified as child molesters based on prison records made available for the study. However, because complete information was not always supplied, not every child molester could be identified. Of the 9,691 released sex offenders, undoubtedly more than 4,295 were child molesters, but 4,295 represent all who could be identified from the information available. One reason child molesters were not easily identified from penal code information is that most States do not use the term "child molester" in their penal code. Nevertheless, all States have laws against sexual activity with children, which does facilitate identification. As a result of the uncertainty regarding the number of child molesters among the 9,691 sex offenders, the study cannot say what percentage of the victims of the 9,691 sex offenders' offenses were children, and what percentage were adults. In short, the 4,295 released child molesters in this report were men who - a. had forcible intercourse with a child or b. committed "statutory rape" (meaning nonforcible intercourse with a child) or c. with or without force, engaged in any other type of sexual contact with a child. Of the 4,295, at least 338 (about 8%) had forcible intercourse, and at least 443 (10%) committed statutory rape. Statutory rapist State laws define various circumstances in which inter- course between consenting partners is illegal: for example, when one of the partners is married or when the two are blood relatives or when one is a "child." Laws that criminalize consensual inter- course based solely on the marital status of the partners are called "adultery laws." Those that criminalize it based solely on blood relationship are "incest laws." Laws that prohibit consensual sexual intercourse based solely on the ages of the partners are called "statutory rape laws." Statutory rape pertains exclusively to consensual intercourse, as opposed to other types of sexual contact with a child, such as forcible intercourse, forcible fondling, or consensual fondling. Statutory rape is one specific form of what this study calls "child molestation." The child victim of statu- tory rape can be male or female, and the offender can be male or female. The offender can be almost any relative ("statutory rape" includes incest with a child), an unrelated person well known to the child (such as a school teacher, neighbor, or minister), someone the child hardly knows, or a stranger. Statutory rape laws define a "child" as a person who is below the "age of consent," meaning below the minimum age at which a person can legally consent to having intercourse. Age of consent in the 50 States ranges from 14 to 18. Most States set age of consent at 16. In those States, consen- sual intercourse with someone age 16 or older is usually not a criminal offense, but intercourse with someone below 16 generally is. However, all States make exceptions to their age rules. Consequently, consensual inter- course with children below the age of consent is not always a crime, and consensual intercourse with children who are old enough to give consent is not always legally permissible. Exceptions for chi/dren be/ow age of consent Certain statutory exceptions exist to legal prohibitions against nonforcible intercourse with children who are below the age of consent. One way exceptions are made in statutes is by specifying the minimum age the offender must be (for example, at least age 18, at least age 20) for intercourse to be unlawful. Persons below this minimum age generally cannot be prosecuted. Another common way exceptions are made (virtually every State has these provi- sions in its laws) is by specifying how much older than the victim the perpe- trator must be for criminal prosecution to occur. For example, by law in one State where age of consent is 16, no prosecution can occur unless the age difference is at least 3 years. In that State it is legal fora 17-year-old to have consensual intercourse with a 15-year-old, even though 15 is below the age of consent; but the same act with a 15-year-old is illegal when the other is 18. That is because the 17-year-old is not 3 years older than the 15-year-old, whereas the 18-year- old is. The aim of such exceptions is to distinguish teen behavior from exploita- tive relationships between adults and children. Another exception is consen- sual intercourse between husband and wife; no prosecution can occur if one spouse is below the age of consent. 4 Recidivism of Sex Offenders Released from Prison in 1994 50A-53 Exceptions for children old enough to give consent Certain adults can be prosecuted for having consensual intercourse with a child who has reached the age of consent. For example, in one State it is a third degree felony for a psychotherapist to have intercourse with a 17-year-old client even though 1 7 is over the minimum age of consent in that State. In another State, where an adult gener- ally cannot be prosecuted for having consensual intercourse with a 16-year- old, an exception is made when the adult is the child's school teacher. In that case the teacher can be prose- cuted fora "class A" misdemeanor. Exceptions are made for other profes- sions as well (clergy, for example). In this report, 443 of the 9,691 released sex offenders are identified as statutory rapists based on information supplied by the prisons that released them. There were more than 443 statutory rapists among the 9,691 released male sex offenders, but the 443 are all that could be positively identified with the limited information available. One reason statutory rapists are not easily identified from penal code information available on the released sex offenders is that most States do not use the term "statutory rape" in their laws. First release Though all 9,691 sex offenders in the study were released in 1994, for a fourth of the offenders 1994 was not the first year of release since receiving their prison sentence. This group had previously served a portion of the sentence and were released, then violated parole and were returned to prison to continue serving time still left on that sentence. For the remaining 75% of sex offenders released, the 1994 release was their "first release," meaning their first discharge from prison since being convicted and sentenced to prison. "First release" should not be confused with first ever release from a prison. "First release" pertains solely to the sentence for the imprisonment offense (as defined above). It does not pertain this released prisoner's criminal record, to any earlier prison sentences offend- he is considered to have four prior ers may have served for some other arrests. offense. Attention is drawn to first releases because certain statistics in the report -for example, "average time served," "percent of sentence served," "child molester's age when he committed the sex crime for which he was imprisoned" -could only be computed for those prisoners classified as first releases. For such statistics, date first admitted to prison for their imprison- ment offense was needed. Since prison records made available for the study only provided this admission date on first releases, first releases neces- sarily formed the basis for the statistics. Prior arrest Statistics on prior arrests were calculated using arrest dates from the official criminal records of the 9,691 released sex offenders. Only dates of arrest were counted, not the number of arrest charges associated with that arrest date. To illustrate, one man was arrested on March 5, 1970, and that one arrest resulted in 3 separate arrest charges being filed against him. In this study, that March arrest is considered one prior arrest. Prior arrests were measured two differ- ent ways in this report. The first way did not include the imprisonment offense for which the sex offender was in prison in 1994. Prior arrest statistics that did not include the imprisonment offense are found in sections of the report that describe the criminal records of the 9,691 sex offenders at the time of release from prison. In this case, any arrest that had occurred on a date prior to the sex offender's arrest for his imprisonment offense was considered a prior arrest. For example, one released sex offender was found to have four different dates of arrest prior to the date of arrest for his impris- onment offense. Those four arrests resulted in 17 different charges being brought against him. When describing 50A-54 The second way of measuring prior arrests did include the imprisonment offense of the released sex offender. Prior arrest statistics that did include the imprisonment offense are found in sections of the report that describe the recidivism rates of the 9,691 sex offenders following their release from prison. In this case, any arrest that had occurred on a date prior to the sex offender's release from prison was considered a prior arrest. By definition, all 9,691 sex offenders had at least one arrest prior to their release, which was the sex crime arrest responsible for their being in prison in 1994. This means that the sex offender who was arrested on four different dates prior to the arrest for his imprisonment offense under the first definition of prior arrest was, under this second definition, classified as having five prior arrests, once his imprisonment offense is included. Thirteen tables in the report provide statistics on prior arrests (and, in 2 of the 13, prior convictions and prior imprisonments). In tables 15, 16, 17, 18, 27, 28, 29, 30, 31 , 36, and 37, "prior arrests" includes the sex crime arrest for the imprisonment offense; these tables have the heading "prior to 1994 release." In tables 5 and 6, "prior arrests" excludes that arrest; these tables have the heading "prior to the sex crime for which imprisoned." In all tables, the same counting rule was used: arrest dates, not arrest charges, were counted to obtain the number of prior arrests. Rearrest Unless stated otherwise, this recidivism measure is defined as the number or percentage of released prisoners who, within the first three years following their 1994 release, were arrested either in the same State that released them (in this report those arrests are called "in-State" arrests) or in a different State (those arrests are Recidivism of Sex Offenders Re/eased from Prison in '1994 5 referred to as "out-of-State" arrests). Data on arrests came from State RAP sheets and FBI RAP sheets. RAP sheets (Records of Arrest and Prose- cution) are law enforcement records intehded to document a person's entire adult criminal history, including every arrest, prosecution and adjudication for a felony or serious misdemeanor offense. Arrests, prosecutions and adjudications for minor traffic offenses, public drunkenness, and other petty crimes are not as fully recorded as those for serious crimes. The "percent rearrested" is calculated by dividing the number rearrested by the number released from prison in 1994. All measures of recidivism based on criminal records are subject to two types of errors. Type 1 errors arise when the arrest or the conviction in the released prisoner's record is for a crime that person did not commit. Type 2 errors arise when the released prisoner commits a crime but he is not arrested for it, or, even if he is, the arrest does not result in his conviction. Some amount of type 1 and type 2 error is inevitable, however recidivism is measured. But that does not mean that all recidivism measures are equally suitable, no matter the purpose they are intended to serve. The main purpose of this recidivism study was to document the percentage of sex offenders who continued their involve- ment in various types of crime after their release from prison in 1994. The more suitable measure for that is the one with the fewest type 2 errors: the one, in other words, less prone to saying someone is not committing crimes when he actually is. Between rearrest and reconviction as the recidi- vism measure, the one less likely to make that type of error is rearrest. One reason is that the rigorous standard used to convict someone - "proof beyond a reasonable doubt" - makes it certain that guilty persons will sometimes go free. Another reason is record keeping: the justice system does better at recording arrests than convictions in RAP sheets. For such reasons, this study uses rearrest more often than reconviction as the measure of recidivism. Rearrest forms a conservative meas- ure of reoffending because many crimes do not result in arrest. Not all types of crime are alike in this regard. Crimes committed in nonpublic places (such as in the victim's home) by one family member against another (such as by the husband against his wife, or by the father against his own child) are a type that is less likely than many other types to be reported to police and, consequently, less likely to result in arrest. Sex crimes, particularly those against children, are a specific example of this type. While some sex offenders in this study probably com- mitted anew sex crime after their release and were not arrested or con- victed, the study cannot say how many. As mentioned above, one reason why sex offenders are not arrested is that no one calls the police. Results from the National Crime Victimization Survey indicate that the offenses of rape/sexual assault are the least likely crimes to be reported to the police. (See Reporting Crime to the Police, 9993-2000, March 2003, <http://www. of p. u sd of/bj s/a b stract/rcp00. htm>. ) Reconviction Except where stated otherwise, this recidivism measure pertains to State and Federal convic- tions in any State (not just convictions in the State that released them) in the three years following release. Informa- tion on convictions came from State and FBI RAP sheets. RAP sheets are intended to document every conviction for a felony or serious misdemeanor, but not every conviction for a minor offense. "Percent reconvicted" is calcu- lated by dividing the number recon- victed by the number released from prison in 1994. (It is not calculated by dividing the number reconvicted by the number rearrested.) Return to prison Two recidivism measures are returned to prison - with a new sentence with or without a new sentence. Recidivism defined as Returned to prison with a new sentence pertains exclusively to sex offenders who, within 3 years following release, were recon- victed for any new crime in any State following their release and received a new prison sentence for the new crime. Recidivism defined as Returned to prison with or without a new sentence includes resentenced offenders plus any who were returned to prison within 3 years because they had violated a technical condition of their release. Technical violations include things such as failing a drug test, missing an appointment with their parole ofFcer, or being arrested for a new crime. Offend- ers returning to prison for such viola- tions are sometimes referred to as "technical violators." Prisons should not be confused with jails. A prison is a State or Federal correctional facility reserved for convicted persons with relatively long sentences (generally over a year). A jail is a local correctional facility for convicted persons with short sentences or for persons awaiting trial. Returns to prison refer to any prison, not neces- sarily the same prison that released the offender in 1994. The "percent returned to prison with a new sentence" is calculated by dividing the number returned to prison with a new sentence by the number released from prison in 1994. The "percent returned to prison with or without a new sentence " is calculated by dividing the number returned to prison with or without a new sentence by the number released from prison in 1994. Data on returns with a new sentence are based on State and FBI RAP sheets. Data on returns with or without a new sentence are based on State and FBI RAP sheets plus prison records. 6 Recidivism of Sex Offenders Re/eased from Prison in 9994 50A-55 Demographic characteristics All sex offenders Of the 9,691 released sex offenders, approximately - - 6,503 (67.1 % of the 9,691) were white males (table 1 ) - 3,053 (31 .5%) were black males - 136 (1.4%) were males of other races (Asian, Pacific Islander, American Indian, and Alaska Native). The vast majority of sex offenders were non-Hispanic males (80.1 %). Half were over the age of 35 when released. Rapists and sexua! assau/tars As defined in this report, all sex offend- ers are either "rapists" or "sexual assaulters." Of the 9,691 released sex offenders, 3,115 were rapists and the remaining 6,576 were sexual assaulters. Of the 3,1 15 rapists, 1 ,735 (55.7% of 3,115) were white males and 1,327 (42.6%) were black males. Of the 6,576 sexual assaulters, 4,768 (72.5% of 6,576) were white males and 1 ,723 (26.2%) were black males. Rapists and sexual assaulters were close in age at time of release: over 70% were age 30 or older. Median age at time of release was about 35 years for both rapists and sexual assaulters. Table 1. Demographic characteristics of sex offenders released from prison in 1994, by type of sex offender Percent of releasetl prisoners Prisoner Sexual characteristic All Rapists assaulters Total ? 00% l00% l00% Race White 67.1 % 55.7% 72.5% Black 3'1.5 42.6 26.2 Other 1.4 1.7 1.3 Hispanic origin Hispanic '19.9°/ 22.6% '18.9% Non-Hispanic 80.'1 77.4 81.1 Age at release 18-24' 12.2 % '10.6 % ? 3.0% 25-29 '16.4 '17.3 '16.0 30-34 20.0 22.4 '18.8 35-39 19.1 20.9 '18.3 40-44 '13.3 '13.3 '13.3 45 or older '19.0 15.5 20.6 Age at release Average 36.8 yrs 36.1 yrs 37.1 yrs Median 35.3 34.9 35.5 Total released 9,69'1 3,115 6,576 Note: The 9,69'1 sex offenders were released in 1 S States. Data identifying race were reported for 98.5 % of 9,69'1 released sex offenders; Hispanic origin for 82.5 % ; age for virtually '100%. 'Age at release 18-24 includes the few who were under age 18 when released from prison in '1994. Recidivism of Sex Offenders Released from Prison in 7994 7 50A-56 Chi/d mo/esters and statutory rapists Some of the 9,691 sex offenders were men whose imprisonment offense was a sex offense against a child. Precisely how many is unknown. In this report, the 4,295 who could be identified are called "child molesters" (table 2). The 4,295 identified child molesters included some (443 out of the 4,295) whose specific sex offense against a child was non-forcible intercourse. These 443 are called "statutory rapists." There were more than 443 among the 4,295, but 443 were all that could be identified from the limited information obtained for the study. Both the 4,295 child molesters and the 443 statutory rapists were predomi- nantly non-Hispanic white males. Nearly three-fourths of the child moles- ters (73.2%) were age 30 or older. Just over half the statutory rapists (54%) were 30 or older at the time they were released from prison. Among the released child molesters there were 3,333 white men (77.6% of 4,295) and 889 black men (20.7%). The 443 statutory rapists included 324 white men (73.2% of 443) and 11 O black men (24.8%). Table 2. Demographic characteristics of child molesters and statutory rapists released from prison in 1994 Percent of released prisoners Prisoner Child Statutory characteristic molesters rapists Total '100% '100 Race White 77.6% 73.2 Black 20.7 24.8 Other 1.7 2.0 Hispanic origin Hispanic 23.5 % '15.9% Non-Hispanic 76.5 84.1 Age at release 18-24` ? ? .4 % 24.8% 25-29 '15.4 2'1.2 30-34 '17.7 '14.7 35-39 '18.6 '14.9 40-44 '14.3 '10.2 45 or older 22.6 '14.2 Age at release Average 37.8 yrs 33.6 yrs Median 36.5 3'I.O Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." Data identifying race were reported for 99.5% of 4,295 released child molesters; Hispanic origin for 87.8 % ; and age for '100%. 'Age at release 18-24 includes the few who were under age 18 when released from prison in '1994. 8 Recidivism of Sex Offenders Re/eased from Prison in >994 5OA-57 Sentence length and time served A// sex offenders - on average a rapist spent more time in confinement before being released (5'/< years) than a sexual assaulter (just under 3 years) - median sentence length was longer for rapists (half of the rapists had a sentence of 9 years or more, while half of the sexual assaulters had a sentence of 5'/z years or more) - 39.2% of the 3,115 rapists were in prison for over 5 years prior to release, while 12.5% of the 6,576 sexual assaulters served 61 months or more - rapists served 49% of their sentence before being released, compared to 43% for sexual assaulters. Depending on the length of their sentence and the amount of time they had served before being released, some of the released sex offenders would have been on parole (or some other type of conditional release) throughout the full 3 years they were tracked in this study. For example, when released, 63.3% of rapists had more than 3 years left to serve on their sentence. In their case, any new crimes they committed during this 3-year followup period were offenses committed while still on parole. By comparison, just over half of released sexual assaulters had more than 3 years left to serve. All 9,691 sex offenders selected to be in this study had a prison sentence greater than 1 year. The shortest terms were a day over 1 year; the longest were life sentences. The fact that sex offenders with a life sentence (18 offenders in the study) were among the 9,691 released in 1994 should not be surprising because only rarely do life sentences in the United States literally mean imprisonment for the remainder of a person's life. Most felons receiving a life sentence are eventually paroled (unpublished tabulation of data from the 1997 BJS Survey of Inmates in State Correctional Facilities). On average, a sex offender released from prison in 1994 had an 8-year term and served 3'/? years of that sentence (45%) before being released (table 3). Half of the released sex offenders had a sentence length of 6 years or less. Half had served no more than a third of their sentence before being released. When released, the majority (54.5%) had more than 3 years of their sentence remaining to be served. Rapists and sexua/ assau/ters Rape always involves forcible inter- course, whereas sexual assault (as the term is used here) never does, although it can involve other types of forcible sexual assault. Because forci- ble intercourse is considered to be a more serious offense than other forms of forcible sexual assault, penalties for rape are generally more severe than those for sexual assault. Consistent with the more serious nature of rape - - on average a released rapist had a longer sentence (just over 1 1 years) than a sexual assaulter (just under 7 years) Table 3. Sentence length and time served for sex offenders released from prison in 1994, by type of sex offender Sexual Characteristic All Rapists assaulters Sentence length (in months) Mean 97.3 mo 134.0 mo 82.5 mo Median 72.0 108.0 66.0 Time served (in months) Mean 42.3 mo 62.6 mo 34.1 mo Median 32.3 48.2 26.5 Percent of sentence served 44.9 % 49.3 % 43.1 Upon release in 1994, percent who had served - 6 months or less 4.5% 3.1 % 5.0 7-12 9.5 3.0 12.1 13-18 16.5 10.5 19.0 19-24 9.7 5.1 11.5 25-30 8.1 6.1 8.9 31-36 9.9 B.O 10.7 37-60 21.6 24.9 20.2 61 months or more 20.2 39.2 12.5 Upon release in 1994, percent with time still remaining to be served 6 months or less 2.8 % 2.4 % 2.9% 7-12 5.0 5.7 4.7 13-18 8.4 6.2 9.2 19-24 12.8 9.3 14.2 25-30 8.1 6.2 8.8 31-36 8.5 6.9 9.1 37-60 25.1 22.8 26.0 61 months or more 29.4 40.5 24.9 Total first releases 6,470 1,859 5,860 Note: The 6,470 sex offenders were released in 13 States. Figures are based on first releases only. First releases include only those offenders leaving prison for the fir st time since beginning their sentence. First releases exclude th ose who left prison in 1994 but who had previously been released under the same sentence and had returned to prison for violati ng the conditions of release. Recidivism of Sex Offenders Re/eased from Prison in 9994 9 50A-58 Chi/d mo/esters and sexual assaulters On average, child molesters were released after serving nearly 3 years (33.7 months) of their nearly 7-year sentence (81.1 months) (table 4). Statutory rapists were released after serving a little over 2 years of their approximately 4-year sentence. Upon release, almost half of the child moles- ters still had at least 3 years of their sentence remaining to be served, compared to 15% of statutory rapists. Table 4. Sentence length and time served for child molesters and statutory rapists released from prison in '1994 Child Statutory Characteristic molesters rapists Sentence length (in months) Mean 81.1 mo 49.5 mo Median 66.0 36.0 Time served (in months) Mean 33.7 mo 27.6 mo Median 25.8 19.4 Percent of sentence served 43.3 % 52.8% Upon release in 1994, percent who had served - 6 months or less 5.7% 9.6 7-12 12.6 20.4 13-16 20.8 18.2 19-24 10.1 14.3 25-30 7.2 8.6 31-36 11.2 7.0 37-60 19.7 13.4 61 months or more 12.8 8.6 Upon release in 1994, percent with time still remaining to be served 6 months or less 2.5% 1 O.8% 7-12 5.4 17.4 13-18 10.2 26.9 19-24 16.1 13.1 25-30 7.9 8.5 31-36 8.9 8.5 37-60 24.9 9.2 61 months or more 24.1 5.6 Total first releases 3,104 317 Note: The 3,104 child molesters were released in 13 States; the 317 statutory rapists in 10 States. Because of overlapping definitions, all statutory rapists a lso appear under the column "child molesters." Figures are based on first releases only. First releases include only those offenders leaving prison for the first tim e since beginning their sentence. First releases exclude those who left prison in 1994 but who h ad previously been released under the same sentence and had returned to prison for violating the conditions of release. 1 O Recidivism of Sex Offenders Re/eased from Prison in 9994 50A-59 Prior criminal record A// sex offenders Arrests and convictions for minor traffic offenses, public drunkenness, and other petty crimes are often not entered into official criminal records. Since official records formed the basis for this study's statistics on arrests and convictions, these statistics understate levels of contact with the justice system. Statistics shown throughout this report on arrests and convictions pertain mostly to arrests and convic- tions for felonies and serious misdemeanors. Statistics on prior arrests in this section of the report do not include the impris- onment offense for which the sex offender was in prison in 1994. At the time the 9,691 male sex offend- ers were arrested for the sex crime that resulted in their imprisonment - 78.5% (7,607 of the 9,691 men) had been arrested at least one earlier time (table 5) half had 3 or more prior arrests for some type of crime • 58.4% (5,660 men) had at least one prior criminal conviction 13.9% (1 ,347 men) had a prior conviction for a violent sex offense • 4.6% (446 men) had been convicted for a sex crime against a child • nearly a quarter had served time in a State or Federal prison at least once before for some type of crime. All 9,691 were in prison in 1994 because they had been arrested and convicted for a sex offense. For 71 .5% of the 9,691 men (6,929), that arrest was their first ever for a violent sex crime. In other words, these 6,929 men had no previous arrest for a sex offense. For the remaining 28.5% (2,762 men), that arrest was not their first sex offense arrest. Some had been arrested once before for a sex crime and some two or more times before. To illustrate, one of the 9,691 sex offenders in this study had his first arrest for a sex crime in 1966, when he was age 19; he was also arrested for sex crimes in the 1970's and 1980's, in three different States. The arrest for his imprisonment offense was in 1982. In the early part of 1983, 4 months after his arrest, he was convicted of sexual assault and began serving a 25-year prison term. Eleven years later, in 1994 at age 47, he was released. For 75% of the 9,691 sex offenders, their 1994 release represents their first release since being sentenced for their sex offense. The remaining 25% had previously served time under the same sentence, had been released, had violated one or more conditions of their parole and, consequently, were returned to prison to continue serving time still remaining on their sentence. Table 5. Prior criminal record of sex offenders released from prison in 1994, by type of sex offender Sexual Prior to the sex crime for which imprisoned All Rapists assaulters Percent with at least ? prior arrest for -' Any crime 78.5% 83.1% 76.3% Any sex offense 28.5 28.7 28.4 Sex offense against a child 10.3 5.7 '12.5 Prior arrests for any crime' Mean Median Percent with at least 7 prior conviction for Any crime Any sex offense Sex offense against a child Prior convictions for any crime° Mean Median a.s s.o a2 3 3 2 58.4% 62.9% 56.2% '13.9 '14.6 '13.5 4.6 3.4 5.2 Percent with prior prison sentence for any crime° Percent who were first releases° 1 .8 2.0 1 .7 ? ? ? 23.7% 28% 21 .6 74.9 % 66.9 % 78.7° Total released 9,69'1 3,115 6,576 Note: The 9,69'1 sex offenders were released in 1 S States. °"Prior" does not include the arrest, conviction, or prison sentence that was the reason the sex offenders were in prison in '1994. Persons with no prior arrest or prior convictions were coded zero and were included in the calculations of mean and median priors. Calculation of prior convictions excluded Ohio, and calculation of prior prison sentences excluded Ohio and Virginia. °Data on first releases are based on releases from 13 States. First releases include only those offenders leaving prison for the first time since beginning their sentence. First releases exclude [hose who left prison in '1994 but who had previously been released under the same sentence and had returned to prison for violating the conditions of release. Recidivism of Sex Offenders Re/eased from Prison in 9994 11 50A-60 Sex offenders compared to non-sex offenders A total of 262,420 non-sex offenders were released from State prisons in 1994 in the 15 States. Of the 262,420 non-sex offenders, 94% had at least 1 prior arrest and 82% had at least 1 prior conviction (not in a table). Overall, the 9,691 sex offenders had a shorter criminal history than the 262,420 non-sex offenders. Before the arrest that resulted in their prison sentence, sex offenders had been arrested 4.5 times, on average. This prior arrest record was about half that of non-sex offenders (8.9 prior arrests). In addition, among the 1994 prison releases, 23.7% of the sex offenders (2,297), compared to 44.3% of non-sex offenders (116,252), had served prior prison sentences. Sex offenders were more likely to have been arrested (28.5%) or convicted (13.9%) for a sexual offense than non-sex offenders (6.5% with a prior arrest for a sex crime; 0.2% with a prior conviction for a sex crime). The same is true for child molesting -about 1 in 1 O sex offenders had a prior arrest for a sex offense against a child, compared to about 1 in 100 non-sex offenders. Rapists and sexua/ assau/tars For approximately 71 % of the 3,1 15 rapists, the arrest for rape that resulted in their imprisonment was their first for a sex crime. The remaining 29% had one or more prior sex crime arrests. Likewise, for sexual assaulters, the sexual assault arrest that led to their imprisonment was the first arrest for a sex crime for 72% of the 6,576 sexual assaulters. The remaining 28% had been arrested at least once before for some type of sex crime. Table 6. Prior criminal record of child molesters and statutory rapists released from prison in 1994 Child Statutory Prior to the sex crime for which imprisoned molesters rapists Percent with at least 1 prior arrest for - a Any crime 76.8 % 80.6% Any sex offense 29.0 38.4 Sex offense against a child '18.3 '19.6 Prior arrests for any crimes Mean 4.1 4.8 Median 2 3 Percent with at least 1 prior conviction for - a Any crime 54.6% 64.6 Any sex offense ? 1 .9 21 .2 Sex offense against a child 7.3 11.5 Prior convictions for any crimes Mean ? .6 2.2 Median t 1 Percent with prior prison sentence for any crimes '19.3% 23.4 Percent who were first releases° 74.5% 73.7 Total released 4,295 443 Note: The 4,295 child molesters were released in 1 S States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." e"Prior" does not include the arrest, conviction, or prison sentence that was the reason the sex offenders were in prison in '1994. Persons with no prior arrest or prior convictions were coded zero and were included in the calculations of mean and median priors. Calculation of prior convictions excluded Ohio, and calculation of prior prison sentences excluded Ohio and Virginia. °Data on first releases are based on releases from 13 States. First releases include only those offenders leaving prison for the first time since beginning their sentence. First releases exclude those who left prison in '1994 but who had previously been released under the same sentence and had returned to prison for violating the conditions of release. Child molesters and sexua/ assau/tern The 4,295 child molesters had at least 1 arrest for child molesting (the arrest that led to their imprisonment). For 3,509 (81 .7%) of them, that arrest was their first ever arrest for child molesting (table 6). For the other 786 men (18.3% of the 4,295), that was not their first. Some had one prior arrest for a sex offense against a child, some had two, and others had three or more. Among those with three or more priors was a man whose first arrest for child molesting was in 1966, when he was age 20. When released in 1994, he was serving an 11-year sentence for molesting a child under age 14. The prior criminal record of this serial pedophile spanned three decades, with arrests for child molesting in the 1970's, the 1980's, and the 1990's. 1 2 Recidivism of Sex Offenders Re/eased from Prison in 1994 50A-61 Four measures of recidivism This section measures recidivism four "Percent reconvicted" is based Within the first 3 years following their ways: on 14 of the 15 States participating release - • percent rearrested for any type of in the study 43% (4,163 of the 9,691) were crime "Percent returned to prison with a rearrested for at least 1 new crime -percent reconvicted for any type of new sentence" is based on 13 of (table 7) crime the 15 States - 24% (2,326 of the 9,691) were - percent returned to prison with a new "Percent returned to prison with or prison sentence for any type of crime without a new sentence" is based on 9 of the 15. - percent returned to prison with or Three of the four recidivism measures without a new prison sentence. were calculated from data on fewer "Percent rearrested" is calculated by than 15 States because the information dividing "the number rearrested" by needed to perform the calculations was "the number released from prison in not available (or not readily available) 1994.,, from each of the 15 participating States. Notes at the bottom of the "Percent reconvicted" is obtained by tables alert readers to such missing dividing "the number reconvicted" by data. "the number released from prison in 1994." (It is not calculated by dividing Four measures "the number reconvicted" by "the number rearrested.") A// sex offenders "Percent returned to prison with a new sentence" is calculated by dividing "the number returned to prison with a new sentence' by "the number released from prison in 1994." (It is not calcu- lated by dividing "the number returned to prison with a new sentence" by "the number reconvicted.") Except where stated otherwise, all four recidivism measures - - refer to the full 3-year period follow- ing the prisoner's release in 1994 • include both "in-State" and "out-of- State" recidivism. "In-State" recidivism refers to new offenses committed within the State that released the prisoner in 1994. "Out-of-State" recidivism is any new offenses in States other than the one that released him in 1994. Not all 4 of the recidivism measures are based on data from 15 States - • "Percent rearrested" is based on 15 States The 9,691 sex offenders in this study were all released from prison in 1994. reconvicted for any type of crime - 1 1 .2% (1 ,085 of the 9,691) were returned to prison with another sentence - 38.6% (3,741 of the 9,691) were returned to prison with or without a new sentence. For approximately three-fourths of the 4,163 men who were rearrested for some new crime, their most serious rearrest offense was a felony; for the remaining fourth, the most serious was a misdemeanor (not shown in table). Of the 4,163 men rearrested for some new offense, nearly 9 in 1 O (87%) were still on parole when taken into custody (not shown in table). Table 7. Recidivism rate of sex offenders released from prison in 1994, by recidivism measure and type of sex offender Percent of released prisoners Recidivism Sexual measure All Rapists assaulters Within 3 years following release: Rearrested for any type of crime 43.0 % 46.0 % 41 .5% Reconvicted for any type of crime- 24.0 % 27.3% 22.4% Returned to prison with a new sentence for any type of crime° 11.2 % 12.6% 1 O.5% Returned to prison with or without a new sentence` 38.6 % 43.6% 36.1 Total released 9,691 3,115 6,576 Note: The 9,691 sex offenders were released in 15 States. eBecause of missing data, prisoners released in Ohio were excluded from the calculation of percent reconvicted. °"New prison sentence" includes new sentences to State or Federal prisons but not to local jails. Because of missing data, prisoners released in Ohio and Virginia were excluded from the calculation of percent returned to prison with a new sentence. "'With or without a new sentence" includes prisoners with new sentences to State or Federal prisons plus prisoners returned for technical violations. Because of missing data, prisoners released in 6 States (Arizona, Delaware, Maryland, New Jersey, Ohio, and Virginia) were excluded from the calculation of percent returned to prison with or without a new sentence. New York State custody records did not always distinguish prison returns from jail returns. Consequently, some persons received in New York jails were probably mistakenly classified as prison returns. Also, California with a relatively high return-to-prison rate affects the overall rate of 38.6%. When California is excluded, the return-to-prison rate falls to 27.9 % . Recidivism of Sex Offenders Released from Prison in 9994 13 50A-62 The 2,326 reconvicted for a new crime consisted of 1,672 (71.9%) whose most serious conviction offense was a felony, and 654 (28.1 %) whose most serious offense was a misdemeanor (not shown in table). Of the 2,326 reconvicted for any new crime after their release, 1,085 were resentenced to prison, and the remain- ing 1,241 were placed on probation or ordered to pay a fine or sentenced to short-term confinement in a local jail. The 1 ,241 not resentenced to prison made up a little over half (53%) of the total 2,326 reconvicted. One reason why over half were not resentenced to prison was that the new conviction offense for about 650 of the 2,326 newly convicted men (approximately 30%) was a misdemeanor rather than a felony, and State laws usually do not permit State prison sentences for misdemeanors. Altogether, 3,741 (38.6%) of the 9,691 released sex offenders were returned to prison either because of a new sentence or a technical violation. Of the 3,741, 2,656 (71%) were returned for a technical violation, such as failing a drug test, missing an appointment with the parole officer, or being arrested for another crime; and 1,085 were returned with a new prison sentence. The 2,656 consisted of 664 who were reconvicted but not resentenced to prison, plus 1,992 not reconvicted. As previously explained, a total of 1 ,241 released sex offenders were reconvicted but not resentenced to prison for their new crime. The 1 ,241 included 664 (described immediately above) who were returned to prison for a technical violation. The 664 were 54% of the 1 ,241 , indicating that most of those who were reconvicted but not given a new prison sentence were, nevertheless, returned to prison. Sex offenders compared to non-sex offenders The 15 States in this study released 272,1 1 1 prisoners altogether in 1994. The 9,691 released sex offenders made up 3.6% of that total. The remaining 262,420 released prisoners were non-sex offenders. Of the 262,420 non-sex offenders, 68% (179,391 men and women out of the 262,420) were rearrested for a new crime within 3 years (not shown in table). The 43% overall rearrest rate of the 9,691 released sex offenders (4,163 out of 9,691) was low by comparison. Another difference was the rearrest charge. The rearrest offense was a felony for about 3 out of 4 (75%) of the 4,163 rearrested sex offenders (not shown in table). By comparison, about 84% of the 179,391 non-sex offenders were charged by police with a felony (not shown in table). Of the 4,163 sex offenders rearrested for a new crime, nearly 9 in 1 O (87%) were on parole when taken into cus- tody; of the 179,391 rearrested non-sex offenders, also about 9 in 10 (85%) were on parole (not shown in table). There was a difference in recon- victions. The reconviction rate for the 9,691 released sex offenders was 24.0%, compared to 47.8% for 262,420 non-sex offenders released in 1994 (not shown in table). The 2,326 sex offenders reconvicted for any new crime included 1,672 (71.9%) whose most serious conviction offense was a felony (not shown in table). Of the 262,420 non-sex offenders, 125,437 (47.8%) were reconvicted, which included 94,078 (75.0%) whose most serious reconviction offense was a felony (not shown in table). Rapists and sexua/ assaulters Within the first 3 years following release - • 46.0% of the 3,115 rapists (1,432 men) and 41 .5% of the 6,576 sexual assaulters (2,731 men) were rearrested for all types of crimes (table 7) • 27.3% of the 3,1 15 rapists (850 men) were reconvicted, compared to 22.4% of the 6,576 sexual assaulters (1 ,473 men) for all types of crimes 12.6% of the 3,115 rapists (392 men) and 10.5% of the 6,576 sexual as- saulters (690 men) were resentenced to prison for their reconviction offense 43.6% of the 3,115 rapists (1,358 men) and 36.1 % of the 6,576 sexual assaulters (2,374 men) were returned to prison either because of a new sentence or because of a technical violation of their parole. For approximately three-fourths of the 1 ,432 rapists who were rearrested for a new crime, the crime was a felony; for the remainder, the most serious was a misdemeanor (not shown in table). As indicated earlier, 2,731 sexual assaulters were rearrested for a new offense after their release, and for about three-fourths, their most serious rearrest offense was a felony; for the remainder, the most serious crime was a misdemeanor (not shown in table). The 850 rapists reconvicted for any new crime included 617 (72.6%) whose most serious reconviction offense was a felony; the 1,473 reconvicted sexual assaulters included 1,052 (71.4%) who were reconvicted for a felony (not shown in table). 14 Recidivism of Sex Offenders Released from Prison in 1994 50A-63 Chi/d mo/esters and statutory rapists Of the child molesters and statutory rapists released from prison in 1994 - • 1,693 of the 4,295 child molesters (39.4%) and 221 of the 443 statutory rapists (49.9%) were rearrested for a new crime (not necessarily a new sex crime) (table 8) • 876 of the 4,295 child molesters (20.4%) and 145 of the 443 statutory rapists (32.7%) were reconvicted for any type of crime • 9% of the 4,295 child molesters and 13% of the 443 statutory rapists were resentenced to prison for their new conviction offense • 38% of the 4,295 child molesters and 46% of the 443 statutory rapists were back in prison within 3 years as a result of either a new prison sentence or a technical violation of their parole. The most serious offense for three- fourths of the 1,693 child molesters who were rearrested was a felony, and a misdemeanor for the remainder (not shown in table). Following their release in 1994, 221 statutory rapists were rearrested for a new crime. The most serious offense that approximately Table 8. Recidivism rate of child molesters and statutory rapists released from prison in '1994, by recidivism measure Percent of released prisoners Recidivism Child Statutory measure molesters rapists Within 3 years following release: Rearrested for any type of crime 39.4 % 49.9% Reconvicted for any type of crimes 20.4 % 32.7 Returned to prison with a new sentence for any type of crime° 9.1 % '13.2% Returned to prison with or without a new sentence` 38.2% 45.7% Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." aBecause of missing data, prisoners released in Ohio were excluded from the calculation of percent reconvicted. °"New prison sentence" includes new sentences to State or Federal prisons but not to local jails. Because of missing data, prisoners released in Ohio and Virginia were excluded from the calcu- lation of percent returned to prison with a new sentence. "'With or without a new sentence" includes prisoners with new sentences to State or Federal prisons plus prisoners returned for technical violations. Because of missing data, prisoners released in 6 States (Arizona, Delaware, Maryland, New Jersey, Ohio, and Virginia) were excluded from the calculation of percent returned to prison with or without a new sentence. New York State custody records did not always distinguish prison returns from jail returns. Conse- quently, some persons received in New York jails were probably mistakenly classified as prison returns. Also, California with a relatively high return-to-prison rate affects the overall rate of 39.4 % . When California is excluded, the return-to-prison rate falls to 23.4%. three-fourths were charged with was a felony (not shown in table). The 876 child molesters reconvicted for any type of crime included 643 (73.4%) whose most serious reconviction offense was a felony; the 145 recon- victed statutory rapists included 97 (66.7%) whose most serious was a felony (not shown in table). Recidivism of Sex Offenders Re/eased from Prison in >994 1 S 50A-64 Time to recidivism A// sex offenders Within 6 months following their release 16% of the 9,691 men were rearrested for a new crime (not necessarily another sex offense) (table 9). Within 1 year, altogether 24.2% were rearrested. Within 2 years the cumula- tive total reached 35.5%. By the end of the 3-year followup period, 43% (4,163 of the 9,691) were rearrested for some type of crime. These statistics indicate that most recidivism within the first 3 years following release occurred in the first year (56%, since 24.2% / 43% = 56%). While the bulk of rearrests occurred in the first year, that period did not account for the bulk of reconvictions or reimprisonments. This is largely because a sizable number of those rearrested in the first year were not reconvicted and reimprisoned until sometime in the second year, due to the additional time needed to prosecute, convict, and sentence a criminal defendant. For example, by the end of the first year, 8.6% of the 9,691 released sex offenders were reconvicted, and by the end of the third year, a cumulative total of 24% were reconvicted, indicating that the first year accounted for a relatively small percentage of all the reconvictions in the 3 years (36%, since 8.6% / 24% _ 36%). Rapists and sexua/ assau/ters Forty-six percent of released rapists were rearrested within 3 years, and over half of those rearrests (56%) occurred in the first year (since 25.8% / 46.0% = 56%). Similarly, 41.5% of released sexual assaulters were rear- rested within the first 3 years following their 1994 release, and over half of those rearrests (56%) occurred in the first year (since 23.4% / 41 .5% = 56%). Table 9. Recidivism rate of sex offenders released from prison in 1994, by type of recidivism measure, type of sex offender, and time after release Cumulative percent of sex offenders released from prison in '1994 Time after Sexual 1994 release All Rapists assaulters Rearrested for any type of Grime within - 6 months '16.0% 16.3 % 15.8 1 year 24.2 25.8 23.4 2 years 35.5 38.6 34.0 3 years 43.0 46.0 41 .5 Reconvicted for any type of crime within -a 6 months 3.6 % 4.3% 3.3% 1 year 8.6 '10.0 8.0 2 years "17.2 '19.9 '15.9 3 years 24.0 27.3 22.4 Returned to prison with a new sentence for any type of crime within -° 6 months 1.8% 1.9% 1 .8 1 year 4.0 4.1 3.9 2 years 8.0 9.0 7.5 3 years 11 .2 '12.6 '10.5 Total released 9,69'1 3,115 6,576 Note: The 9,69'1 sex offenders were released in 1 S States. eBecause of missing data, prisoners released in Ohio were excluded from the calculation of percent reconvicted. °"New sentence' includes new sentences to State or Federal prisons but not to local jails. Because of missing data, prisoners released in Ohio and Virginia were excluded from the calculation of percentage returned to prison with a new sentence. 16 Recidivism of Sex Offenders Re/eased from Prison in 1994 50A-65 Table 10. Recidivism rate of child molesters and statutory rapists released from prison in 1994, by type of recidivism measure and time after release Cumulative percent of sex offenders released from prison in '1994 Time after Child Statutory '1994 release molesters rapists Rearrested for any type of crime within - 6 months '16.0 % '18.5% 1 year 22.9 29.8 2 years 32.9 42.4 3 years 39.4 49.9 Reconvicted for any type of crime within -e 6 months 3.0% 4.5 1 year 7.1 '13.6 2 years '14.5 24.4 3 years 20.4 32.7 Returned to prison with a new sentence for any type of crime within -° 6 months 1 .5 % 0.9% 1 year 3.1 4.0 2 years 6.5 9.3 3 years 9.1 '13.2 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." aBecause of missing data, prisoners released in Ohio were excluded from the calculation of percent reconvicted. °"New sentence" includes new sentences to State or Federal prisons but not to local jails. Because of missing data, prisoners released in Ohio and Virginia were excluded from the calculation of percentage returned [o prison with a new sentence. Chi/d molesters and statutory rapists Of the 4,295 released child molesters, 1 ,693 (39.4%) were rearrested during the 3-year followup period (table 1 O). The majority of those charged (approxi- mately 982 of the 1 ,693, or 58%) were charged in the first 12 months. While 49.9% of released statutory rapists were rearrested within 3 years, nearly three-fifths of those rearrests occurred within the first year following release (29.8% / 49.9% = 60%). Recidivism of Sex Offenders Released from Prison in >994 17 50A-66 Rearrest for any type of crime Table 11. Rearrest rate of sex offenders released from prison in 1994, by type of sex offender and demographic characteristics of released prisoners Percent rearrested for any type of crime within 3 years Prisoner Sexual characteristic All Rapists assaulters Race White 36.7% 39.1 % 35.8 Black 56.1 55.0 57.0 Other 40.4 38.5 41 .7 Hispanic origin Hispanic 42.2 % 47.7 % 39.6% Non-Hispanic 45.9 50.2 44.3 Age at release 18-24 59.8 % 58.6 % 60.2% 25-29 54.2 53.8 54.3 30-34 48.8 52.6 46.7 35-39 41 .4 46.1 38.9 40-44 34.7 41 .2 31 .6 45 or older 23.5 23.0 23.7 Total released 9,691 3,115 6,576 Note: The 9,691 sex offenders were released in 15 States. Data identifyi ng race were reported for 98.5 % ; Hispanic origin for 82.5%; age for virtually 100%. Demographic characteristics A// sex offenders Race Black men (56.1 %) released in 1994 were more likely than white men (36.7%) to be rearrested for a new crime (not limited to just a new sex crime) within the first 3 years following their release (table 1 1 ). Hispanic origin Among released sex offenders, non-Hispanics (45.9%) were more likely than Hispanics (42.2%) to have a new arrest within the 3-year followup period. Age The younger the prisoner when released, the higher the rate of recidi- vism. For example, of all the sex offenders under age 25 at the time of discharge from prison, 59.8% were Table 13. Rearrest rate of sex offenders released from prison in 1994, by type of sex offender and time served before release Percent rearrested for any type of crime within 3 years Time served in prison Sexual before 1994 release All Rapists assaulters 6 months or less 45.7% 48.3 % 45.0 7-12 42.1 32.1 43.1 13-18 38.9 37.6 39.2 19-24 46.7 51.1 45.9 25-30 44.6 42.9 45.1 31-36 35.7 42.6 33.7 37-60 38.9 43.2 36.7 61 months or more 39.9 43.4 35.5 Total first releases 6,470 1,859 5,860 Note: The 6,470 sex offe nders were released in 13 States. Figures are based on first releases only. First releases include only those offenders leaving prison for the first time since beginning their sentence. First releases exclude those who left prison in 1994 but who had previously been released under the same sentence and had returned to prison for violating the conditions of release. Table 12. Rearrest rate of child molesters and statutory rapists released from prison in 1994, by demographic characteristics of released prisoners Percent rearrested for any type of crime within 3 years Prisoner Child Statutory charaCte ristic molesters rapists Race White 36.2% 46.0% Black 51.7 61.5 Other 37.8 55.6 Hispanic origin Hispanic 37.1% 56.9% Non-Hispanic 41.9 48.8 Age at release 18-24 59.6 % 70.0% 25-29 51.4 56.4 30-34 46.5 47.7 35-39 38.0 37.9 40-44 28.0 44.4 45 or older 23.8 23.8 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Data identifying race were reported for 98.5%; Hispanic origin for 82.5 % ; age for vi rtually 100%. rearrested for some type of crime within 3 years, or more than double the 23.5% of those age 45 or older. Rapists and sexua/ assau/ters Race Among releasees whose impris- onment offense was sexual assault, 57% of black men and 35.8% of white men were rearrested for all types of crimes. A higher rearrest rate for blacks was also found among released rapists. Hispanic origin Among released rapists, non-Hispanics (50.2%) were more likely than Hispanics (47.7%) to be rearrested within the 3-year followup period. The same was true among released prisoners whose imprison- ment offense was sexual assault. Age For both rapists and sexual assaulters, younger releasees had higher rearrest rates than older releasees. 18 Recidivism of Sex Offenders Re/eased from Prison in 9994 50A-67 Chi/d molesters and statutory rapists Race The rearrest rate among released child molesters was 51 .7% for black men and 36.2% for white men (table 12). Among statutory rapists, black men (61.5%) had a higher rearrest rate than white men (46.0%). Hispanic origin Among released prisoners whose imprisonment offense was statutory rape, Hispanics (56.9%) were more likely than non-Hispanics (48.8%) to be rearrested within the 3-year followup period. The opposite was true of child molesters, as Hispan- ics had a lower rearrest rate (37.1 %) than non-Hispanics (41.9%). Age The younger the sex offender was when released, the higher was his like- lihood of being rearrested. For exam- ple, the rearrest percent for statutory rapists younger than 25 was higher (70.0%) than the rearrest percent for statutory rapists ages 25 to 30 (56.4%). The same was true among child molesters. Time served before 1994 release A// sex offenders Sex offenders who served the shortest amount of time in prison before being released (6 months or less) had a higher rearrest rate (45.7%) than those who served the longest (over 5 years, 39.9% rate) (table 13). Similarly, prisoners who served 6 months or less had a higher rearrest rate (45.7%) than those who served 7 months to 1 year (42.1 %). However, other comparisons did not indicate a connection between serving more time and lower recidivism. For example, among sex offenders who served 1 to 1'/z years in prison before being released, 38.9% were rearrested for all types of crimes, compared to 46.7% of sex offenders who served a bit longer - 1'/z to 2 years. Similarly, released prisoners Table 14. Rearrest rate of child molesters and statutory rapists released from prison in '1994, by time served before being released Percent rearrested for any type of crime within 3 years Time served in prison Child Statutory before '1994 release molesters rapists 6 months or less 42.9 % 56.7% 7-12 39.7 45.3 13-18 34.5 43.9 19-24 45.5 48.9 25-30 39.4 25.9 31-36 27.2 59.1 37-60 31.5 2'1.4 61 months or more 29.9 33.3 Total first releases 3,'104 3'17 Note: The 3,'104 child molesters were released in 13 States; the 3'17 statutory rapists in 1 O States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." Figures are based on first releases only. First releases include only those offenders leaving prison for the first time since beginning their sentence. First releases exclude those who left prison in '1994 but who had previously been released under the same sentence and had returned to prison for violating the conditions of release. who served between 3 and 5 years in prison had a higher rate of rearrest (38.9%) than released prisoners who served 2'/z to 3 years (35.7%). Because of these mixed results, and others illustrated below, the data do not warrant any general conclusion about an association between the level of recidivism and the amount of time served. Rapists and sexua/ assau/ters Among sexual assaulters who served no more than 6 months, 45.0% were rearrested for all types of crimes. Those who served a little longer - from about 6 months to 1 year -had a lower rearrest rate, 43.1 %. Those released after serving even more time - 1 to 1'/z years -had an even lower rate, 39.2%. However, there are numerous instances where serving more time was not linked to lower recidivism. For example, rapists released after about 1 to 1'/? years in prison had a 37.6% rearrest rate, while those imprisoned a little longer -from about 1'/z to 2 years - had a higher rate, 51 .1 %. 50A-68 Chi/d mo/esters and statutory rapists Among released statutory rapists and child molesters, the results continued to be mixed regarding an association between the rate of recidivism and the amount of time served (table 14). For example, child molesters released after serving about 2 to 2'/? years had a higher rate of rearrest for all types of crimes (39.4%) than those who served somewhat longer -about 2'/? to 3 years (27.2%). However, the rearrest rate rose (31.5%) among molesters who served more time - 3 to 5 years. Recidivism of Sex Offenders Re/eased from Prison in 1994 19 Table 15. Rearrest rate of sex offenders released from prison in 1994, by type of sex offender and prior arrest for any type of crime Sexual Arrest prior to 1994 release All Rapists assaulters Percent rearrested for any type of crime within 3 years Total 43.0 % 46.0 % 41 .5 The arrest responsible for their being in prison in 1994 was -' Their first arrest for any type of crime 24.8 28.3 23.6 Not their first arrest for any type of crime 47.9 49.6 47.1 Percent of released prisoners Total 100 % 100 % 100 The arrest responsible for their being in prison in 1994 was -' Their first arrest for any type of crime 21 .5 16.9 23.7 Not their first arrest for any type of crime 78.5 83.1 76.3 Total released 9,691 3,115 6,576 Note: The 9,691 sex offenders were released in 15 States. 'By definition, all sex offenders had at least 1 arrest prior to their release: namely, the sex crime arrest responsible for their being in prison in 1994. Prior arrest for any type of crime Rapists and sexua/ assau/ters A// sex offenders Of the 3,115 released rapists, 83.1 (2,589 rapists) had more than 1 arrest For 2,084 sex offenders (21 .5% of the 9,691 total), their only arrest prior to being released in 1994 was the arrest for their imprisonment offense (a sex offense) (table 15). Among these 2,084 released sex offenders with just 1 prior arrest, 24.8% were rearrested for a new crime (not necessarily a new sex crime). For the remaining 7,607 (78.5% of 9,691), their prior record showed an arrest for the sex offense responsible for their current imprisonment plus at least 1 earlier arrest for some type of crime. Of these 7,607 prisoners, 47.9% were rearrested, or about double the rate of their counterparts with 1 prior arrest (24.8%). for some type of crime prior to their release from prison in 1994, and 16.9% (526 rapists) had just 1 prior arrest, the arrest for the sex crime that resulted in their being in prison in 1994. The multiple prior arrests for the 2,589 rapists included the arrest for their imprisonment offense plus at least 1 other arrest for any type of crime. The 2,589 with more than 1 prior arrest had a rearrest rate (49.6%) nearly double that of the 526 with just 1 prior (28.3%). Child molesters and statutory rapists Of the 4,295 child molesters, 76.8% (3,299 men) had more than 1 prior arrest (table 16). These 3,299 child molesters had a rearrest rate (44.3%) nearly double the 23.3% rate of the 996 molesters with just 1 prior arrest (996 is 23.2% of 4,295). The 357 statu- tory rapists with more than 1 prior arrest (357 is 80.6% of 443) had a rearrest rate (55.7%) more than double the 25.6% rate of the 86 statutory rapists with 1 prior arrest (86 is 19.4% of 443). Table 16. Rearrest rate of child molesters and statutory rapists released from prison in 1994, by prior arrest for any type of crime Child Statutory Arrest prior to 1994 release molesters rapists Percent rearrested for any type of crime within 3 years Total 39.4% 49.9% The arrest responsible for their being in prison in 1994 was -' Their first arrest for any type of crime 23.3 25.6 Not their first arrest for any type of crime 44.3 55.7 Percent of released prisoners Total 100% 100% The arrest responsible for their being in prison in 1994 was -' Their first arrest for any type of crime 23.2 19.4 Not their first arrest for any type of crime 76.8 80.6 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." 'By definition, all sex offenders had at least 1 arrest prior to their release: namely, the sex crime arrest responsible for their being in prison in 1994. 20 Recidivism of Sex Offenders Re/eased from Prison in 1994 50A-69 Number of prior arrests for any type of crime Statistics on prior arrests in this section of the report do include the imprison- ment offense of the released sex offender. A// sex offenders The number of times a prisoner was arrested in the past was a relatively good predictor of whether that prisoner would continue his criminality after re- lease (table '17). Prisoners with just one prior arrest for any type of crime had a 24.8% rearrest rate for all types of crimes. With two priors, the percent- age rearrested rose to 3'1.9%. With three, it increased to 36.9%. With four, it went up to 42.6%. With additional priors, there were further increases, ultimately reaching a rearrest rate of 67.0% for released prisoners with the longest criminal record (more than 15 prior arrests). Rapists and sexua/ assaulters Both rapists and sexual assaulters followed the pattern described immedi- ately above: the more prior arrests they had, the more likely they were to have a new arrest for some type of crime after their release in '1994. Table 17. Rearrest rate of sex offenders released from prison in '1994, by type of sex offender and number of prior arrests for any type of crime Number of adult arrests Sexual prior to '1994 release' All Rapists assaulters Percent rearrestetl for any type of crime within 3 years 1 prior arrest for any type of crime 24.8% 28.3% 23.6% 2 3'1.9 36.4 29.9 3 36.9 36.3 37.1 4 42.6 47.2 40.4 5 50.5 48.6 5'1.6 6 49.7 47.3 50.9 7-10 59.0 59.6 58.6 11-15 65.'1 63.7 66.0 16 or more 67.0 66.1 67.5 Percent of released prisoners All sex offenders 100 % 100% '100% 1 prior arrest for any type of crime 21 .5 ? 6.9 23.7 2 '16.0 '15.2 '16.3 3 11.9 12.1 '1'1.8 4 9.0 9.2 8.9 5 7.2 a.o s.a 6 6.3 6.6 6.1 7-10 '14.4 15.8 '13.8 11-15 7.9 8.9 7.4 16 or more 5.8 7.2 5.2 Total released 9,691 3,115 6,576 Note: The 9,691 sex offenders were released in 15 States. 'By definition, all sex offenders had at least 1 arrest prior to their release: namely, the arrest responsible for their being in prison in 1994. In this table, that arrest is counted as 1 prior arrest. Recidivism of Sex Offenders Re/eased from Prison in 1994 21 50A-70 Child molesters and statutory rapists Among released prisoners with the smallest number of prior arrests (1 prior arrest), 23.3% of child molesters and 25.6% of statutory rapists were rearrested for all types of crimes within 3 years (table 18). Rearrest rates generally rose with each increase in the number of prior arrests. Among released prisoners with the largest number of prior arrests (more than 15), 62.0% of child molesters and 76.2% of statutory rapists had at least 1 new arrest after being released in 1994. State where rearrested for any type of crime The State where the rearrest occurred was not always the State that released the prisoner. In some cases, the released sex offender left the State where he was imprisoned and was rearrested for a new crime in a different State. For example, a sex offender released from prison in California may have traveled to Nevada, where he was arrested for committing another crime. Sex offenders A total of 4,163 sex offenders were rearrested for some type of new crime after their 1994 release. Of the 4,163 arrests, 16.0% - or 1 in 6 -were outside the State where the prisoner was released (table 19). The rest (84.0%) were made in the State that released them. Sex offenders compared to non-sex offenders The 15 States in this study released 262,420 non-sex offenders in 1994, of whom 179,391 were rearrested for a new crime within 3 years (not shown in table). Of the 179,391 arrests for any type of crime, 1 1 .2%, or 20,092 arrests, were arrests that occurred outside the State that released them. Table 18. Rearrest rate of child molesters and statutory rapists released from prison in 1994, by number of prior arrests for any type of crime Number of adult arrests Child Statutory prior to 1994 release' molesters rapists Percent rearrested for any type of crime within 3 years 1 prior arrest for any type of crime 23.3 % 25.6 2 28.0 29.3 3 32.4 46.9 4 39.2 41 .O 5 47.4 60.6 6 50.2 53.8 7-1 o ss.1 ss.1 11-15 62.9 81.3 16 or more 62.0 76.2 Percent of released prisoners All sex offenders 100% 100% 1 prior arrest for any type of crime 23.2 19.4 2 17.2 13.1 3 12.1 11.1 4 8.5 8.8 5 7.0 7.4 6 6.4 5.9 7-10 13.6 18.7 11-15 7.3 10.8 16 or more 4.8 4.7 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." 'By definition, all sex offenders had at least one arrest prior to their release: namely, the arrest responsible for their being in prison in 1994. In this table, that arrest is counted as 1 prior arrest. Rearrested sex offenders had a higher percentage: 1 in 6 of their rearrests for any type of crime were in a State other than the one that released them. Rapists and sexua/ assau/tars Following their 1994 release, 1 ,432 rapists and 2,731 sexual assaulters were rearrested for any new crime (table 19). For 17.4% of the 1 ,432 rearrested rapists, and 15.2% of the 2,731 rearrested sexual assaulters, the place where the arrest occurred was in a different State than the one that released them. Table 19. Where sex offenders were rearrested for any new crime following release from prison in 1994, by type of sex offender Percent of rearrested prisoners State where rearrested Sexual within 3 years All Rapists assaulters Total 100% 100 % 100 Same State where released 84.0 82.6 84.8 Another State 16.0 17.4 15.2 Total rearrested for any new crime 4,163 1,432 2,731 Note: The 4,163 rearrested sex offenders were released in 15 States, but table percentages are based on 14 States. 22 Recidivism of Sex Offenders Re/eased from Prison in 19 4 5?A-71 Child molesters and statutory rapists Out of the 4,295 child molesters, 1 ,693 were rearrested for any new crime after being released from prison in 1994 (table 20). The 1,693 recidivists consisted of 84.8% whose new arrest was in the same State that released them in 1994, and 15.2% whose alleged violation occurred in a different State. About half of all statutory rapists were not rearrested for any type of crime after their release. Of the 221 who were, 16.6% were rearrested outside the State where they were released. Table 20. Where child molesters and statutory rapists were rearrested for any new crime following release from prison in '1994 Percent of rearrested prisoners State where rearrested Child Statutory within 3 years molesters rapists Total '100% '100% Same State where released 84.8 83.4 Another State '15.2 '16.6 Total rearrested for any new crime '1,693 221 Note: The '1,693 rearrested child molesters were released in 15 States, but table percentages are based on 14 States. The 22'1 rearrested statutory rapists were released in ? ? States, but table percentages are based on 10 States. 5OA-72 Recidivism of Sex Offenders Re/eased from Prison in 7994 23 Rearrest and reconviction for a new sex crime Rearrest and reconviction all the prisoners released in 1994 Chi/d mo/esters and Statutory rapists (517 / 3,845 = 13% and 3,328 / 3,845 A// sex offenders = 87%). Based on official arrest records, 517 of the 9,691 released sex offenders (5.3%) were rearrested for a new sex crime within the first 3 years following their release (table 21 ). The new sex crimes for which these 517 men were arrested were forcible rapes and sexual assaults. For virtually all of the 517, the most serious sex crime for which they were rearrested was a felony. Their victims were children and adults. The study cannot say what percentage were children and what percentage were adults because arrest files did not record the victim's age. Of the total 9,691 released sex, 3.5% (339 of the 9,691) were reconvicted for a sex crime (a forcible rape or a sexual assault) within 3 years. Sex offenders compared to non-sex offenders The 15 States in this study released a total of 272,111 prisoners in 1994. The 9,691 released sex offenders made up less than 4% of that total. Of the remaining 262,420 non-sex offenders, 3,328 (1.3%) were rearrested for a new sex crime within 3 years (not shown in table). By comparison, the 5.3% rearrest rate for the 9,691 released sex offenders was 4 times higher. Assuming that the 517 sex offenders who were rearrested for another sex crime each victimized no more than one victim, the number of sex crimes they committed after their prison release totaled 517. Assuming that the 3,328 non-sex offenders rearrested for a sex crime after their release also victimized one victim each, the number of sex crimes they committed was 3,328. The combined total number of sex crimes is 3,845 (517 plus 3,328 = 3,845). Released sex offenders accounted for 13% and released non-sex offenders accounted for 87% of the 3,845 sex crimes committed by Rapists and sexua/ assau/ters Of the 3,115 rapists, 5.0% (155 men) had a new arrest for a sex crime (either a sexual assault or another forcible rape) after being released. Of the 6,576 released sexual assaulters, 5.5% (362 men) were rearrested for a new sex crime (either a forcible rape or another sexual assault). A total of 100 released rapists were reconvicted for a sex crime. The 100 men were 3.2% of the 3,115 rapists released in 1994. Among the 6,576 released sexual assaulters, 3.7% (243 men) were reconvicted for a sex crime. After their release, 5.1 % (221 men) of the child molesters and 5.0% (22 men) of the statutory rapists were rearrested- for anew sex crime (table 22). Not all of the new sex crimes were against children. The new sex crimes were forcible rapes and various types of sexual assaults. Following their release, 3.5% (150 men) of the 4,295 released child molesters were convicted for a new sex crime against a child or an adult. The sex crime reconviction rate for the 443 statutory rapists was 3.6% (16 reconvicted men). Table 21. Of sex offenders released from prison in 1994, percent rearrested and percent reconvicted for any new sex crime, by type of sex offender Sexual All Rapists assaulters Percent rearrested for any new sex crime within 3 years 5.3% 5.0% 5.5% Percent reconvicted for any new sex crime within 3 years` 3.5 % 3.2% 3.7% Total released 9,691 3,115 6,576 Note: The 9,691 sex offenders were released in 15 States. `Because of missing data, prisoners released in Ohio were excluded from the calculation of percent reconvicted. Due to data quality concerns, calculation of percent reconvicted excluded Texas prisoners classified as "other type of release." Table 22. Of child molesters and statutory rapists released from prison in 1994, percent rearrested and percent reconvicted for any new sex crime Child Statutory molesters rapists Percent rearrested for any new sex crime within 3 years 5.1 % 5.0% Percent reconvicted for any new sex crime within 3 years' 3.5 % 3.6 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." `Because of missing data, prisoners released in Ohio were excluded from the calculation of percent reconvicted. Due to data quality concerns, calculation of percent reconvicted excludetl Texas prisoners classified as "other type of release." 24 Recidivism of Sez Offenders Released from Prison in 1994 50A-73 Time to rearrest A// sex offenders Within 6 months following their release, 1 .4% of the 9,691 men were rearrested for a new sex crime (table 23). Within 1 year the cumulative total grew to 2.1 rearrested. By the end of the 3-year followup period, altogether 5.3% had been rearrested for another sex crime. The first year was the period when 40% of the new sex crimes were committed (since 2.1 % / 5.3% = 40%). Rapists and sexual assau/ters The first year following release accounted for 40% of the new sex crimes committed by both released rapists (since 2.0% / 5.0% = 40%) and released sexual assaulters (since 2.2% Chi/d mo/esters and statutory rapists For child molesters and statutory rapists, the first year following their release was the period when the largest number of recidivists were rearrested. Similar to rapists and sexual assaulters, about 40% of the arrests for new sex crimes committed by child molesters and statutory rapists occurred during the first year (table 24). Demographic characteristics A// sex offenders Race Among sex offenders released from prison in 1994, black men (5.6%) and white men (5.3%) were about equally likely to be rearrested for another sex crime (table 25). Table 23. Of sex offenders released from prison in 1994, percent rearrested for any new sex crime, by type of sex offender and time after release Cumulative percent rearrestetl for any new sex crime within specified time Time after Sexual 1994 release All Rapists assaulters 6 months 1 .4 % 1 .3% 1 .4 1 year 2.1 2.0 2.2 2 years 3.9 3.7 4.1 3 years 5.3 5.0 5.5 Total released 9,691 3,115 6,576 Note: The 9,691 sex offenders were released in 15 States. Table 24. Of child molesters and statutory rapists released from prison in 1994, percent rearrested for any new sex crime, by time after release Cumulative percent rearrested for any new sex crime within specified time Time after Child Statutory 1994 release molesters rapists 6 months 1 .3% 1 .4 1 year 2.2 2.0 2 years 3.9 3.2 3 years 5.1 5.0 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." Hispanic origin Among released sex offenders, non-Hispanics were more likely to be rearrested for a new sex offense (6.4%) than Hispanics (4.1 %). One reason for the lower rearrest rate for Hispanics may be that some were deported immediately following their release. Age Recidivism studies typically find that, the older the prisoner when released, the lower the rate of recidi- vism. Results reported here on re- leased sex offenders did not follow the familiar pattern. While the lowest rate of rearrest for a sex crime (3.3%) did belong to the oldest sex offenders (those age 45 or older), other compari- sons between older and younger prisoners did not consistently show older prisoners' having the lower rearrest rate. Table 25. Of sex offenders released from prison in 1994, percent rearrested for any new sex crime, by demographic characteristics of released prisoners Percent of released sex offenders rearrested for Prisoner any new sex crime within characteristic 3 years Total released 5.3 Race White 5.3% Black 5.6 Other 4.4 Hispanic origin Hispanic 4.1 Non-Hispanic 6.4 Age at release 18-24 6.1 25-29 5.5 30-34 5.8 35-39 6.1 40-44 5.6 45 or older 3.3 Total released 9.691 Note: The 9,691 sex offenders were released in 15 States. Data identifying race were reported for 98.5 % of 9,691 released sex offenders; Hispanic origin for 82.5%; age for virtually 100 % . Recidivism of Sez Offenders Re/eased from Prison in 9994 25 5OA-74 Time served before 1994 release Prior arrest for any type of crime rearrested for another sex crime (5.9% compared to 3.3%). All sex offenders The study compared recidivism rates among prisoners who served different lengths of time before being released from prison in 1994. No clear associa- tion was found between how long they were in prison and their recidivism rate (table 26). For example, those sex offenders who served from 7 to 12 months were rearrested for a new sex crime at a higher rate (5.2%) than those who served slightly less time (3.8%), which seemed to suggest that serving more time raised the recidivism rate. But other comparisons suggested the opposite. Compared to men who were confined for 7 to 12 months (5.2% rearrest rate), those who served more time (13 to 18 months) were less likely to be rearrested for any new sex crime (4-1 %)- Table 26. Of sex offenders released from prison in 1994, percent rearrested for any new sex crime, by time served before being released Percent of released sex offenders rearrested for Time served in prison any new sex crime before '1994 release within 3 years 6 months or less 3.8% 7-12 5.2 13-18 4.1 19-24 6.4 25-30 5.2 31-36 3.3 37-60 5.2 61 months or more 4.9 Total first releases 6,470 Note: The 6,470 sex offenders were released in 13 States. Figures are based on first releases only. First releases include only those offenders leaving prison for the first time since beginning their sentence. First releases exclude those who left prison in '1994 but who had previously been released under the same sentence and had returned to prison for violating the conditions of release. All sex offenders Of the 9,691 released sex offenders, 21 .5% (2,084 of the 9,691) had only 1 arrest in their criminal record up to the time they were released (table 27). That one arrest was the arrest for the sex crime that resulted in a prison term. The remaining 78.5% (7,607 men) had the arrest for their imprison- ment offense in their record, and they also had at least 1 earlier arrest for some type of crime. For example, some had an earlier arrest for theft or a drug offense. Most of them did not have an earlier arrest for a sex crime. Rapists and sexua/ assau/ters Of the 3,1 15 released rapists, the majority (83.1 % of the 3,115, or 2,589 men) had more than 1 arrest (for any type of crime) prior to release from prison in 1994. Of these 2,589 released rapists, 5.4% (140) had a new arrest for a sex crime. The rate was lower (3.0%) for the 526 released rapists with no prior arrest. Results for sexual assaulters followed the same pattern: the 5,017 sexual assaulters with more than 1 prior arrest (76.3% of 6,576 is 5,017) were more Compared to the 2,084 sex offenders likely to be rearrested for a new sex with the 1 arrest in their criminal record, crime (6.2%) than the 1,559 with just the 7,607 with a longer prior arrest the 1 prior arrest (23.7% of 6,576 is record were more likely to be 1,559). Table 27. Of sex offenders released from prison in 1994, percent rearrested for any new sex crime, by type of sex offender and prior arrest for any type of crime Sexual Arrest prior to '1994 release All Rapists assaulters Percent rearrested for any new sex crime within 3 years Total 5.3 % 5.0 % 5.5 The arrest responsible for their being in prison in '1994 was -` Their first arrest for any type of crime 3.3 3.0 3.4 Not their Frst arrest for any type of crime 5.9 5.4 6.2 Percent of released prisoners Total ? 00% 100% 100 The arrest responsible for their being in prison in 1994 was -' Their first arrest for any type of crime 21 .5 '16.9 23.7 Not their first arrest for any type of crime 78.5 83.1 76.3 Total released 9,69'1 3,115 6,576 Note: The 9,69'1 sex offenders were released in 1 S States. `By definition, all sex offenders had at least 1 arrest prior to their release: namely, the arrest responsible for their being in prison in '1994. "First arrest for any type of crime" pertains exclusively to those released prisoners whose first arrest was the sex offense arrest responsible for their being in prison in '1994. 26 Recidivism of Sez Offenders Re/eased from Prison in 1994 5OA-75 Chi/d mo/esters and statutory rapists Released child molesters with more than one prior arrest were more likely than those with only one arrest in their criminal record to be rearrested for a new sex crime (5.7% compared to 3.2%) (table 28). The same was true of statutory rapists (5.3% compared to 3.5%). Number of prior arrests for any type of crime All sex offenders The more arrests (for any type of crime) the sex offender had in his criminal record, the more likely he was to be rearrested for another sex crime after his release from prison (table 29). Sex offenders with one prior arrest (the arrest for the sex crime for which they had been imprisoned) had the lowest rate, about 3%; those with 2 or 3 prior arrests for some type of crime, 4%; 4 to 6 prior arrests, 6%; 7 to 10 prior arrests, 7%; and 11 to 15 prior arrests, 8%. Table 28. Of child molesters and statutory rapists released from prison in 1994, percent rearrested for any new sex crime, by prior arrest for any type of crime Child Statutory Arrest prior to '1994 release molesters rapists Percent rearrested for any new sex crime within 3 years Total 5. ? % 5.0% The arrest responsible for their being in prison in '1994 was -' Their first arrest for any type of crime 3.2 3.5 Not their first arrest for any type of crime 5.7 5.3 Percent of released prisoners Tota I '100% "100% The arrest responsible for their being in prison in '1994 was -' Their first arrest for any type of crime 23.2 '19.4 Not their first arrest for any type of crime 76.8 80.6 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." 'By definition, all sex offenders had at least 1 arrest prior to their release: namely, the arrest responsible for their being in prison in '1994. "First arrest for any type of crime" pertains exclusively to those released prisoners whose first arrest was the sex offense arrest responsible for their being in prison in '1994. Table 29. Of sex offenders released from prison in 1994, percent rearrested for any new sex crime, by number of prior arrests for any type of crime Number of adult arrests prior to '1994 release All sex offenders 1 prior arrest for any type of crime 2 3 4 5 6 7-1O 11-15 16 or more All sex offenders 1 prior arrest for any type of crime 2 3 4 5 6 7-1 O 11-15 16 or more Percent rearrested for any new sex crime within 3 ears 5.3 3.3 4.3 4.4 5.8 6.3 6.1 6.9 7.8 7.4 Percent of released prisoners 100 21 .5 16.0 11.9 9.0 7.2 6.3 14.4 7.9 5.8 Total released 9,69'1 Note: The 9,69'1 sex offenders were released in 1 S States. By definition, all sex offenders had at least 1 arrest prior to their release: namely, the arrest responsible for their being in prison in '1994. In this table, that arrest is counted as one prior arrest. 50A-76 Recidivism of Sex Offenders Re/eased from Prison in 1994 27 Prior arrest for a sex crime A// sex offenders Prior to their release in 1994, 2,762 of the sex offenders (28.5% of the total 9,691) had 2 or more arrests for a sex offense in their criminal record: the arrest for the sex offense that resulted in their imprisonment, plus at least 1 earlier arrest for a sex crime (table 30). For the remaining 6,929 (71 .5% of the total 9,691 ), their only prior arrest for a sex crime was the arrest that brought them into prison. (Any other prior arrests the 6,929 may have had were for non-sex crimes.) Following their release, the 2,762 with more than 1 sex crime in their criminal background were about twice as likely to be rearrested for another sex crime (8.3%) as the 6,929 with a single prior arrest (4.2%). Rapists and sexua/ assau/fers Rapists (4.0%) and sexual assaulters (4.2%) with one prior arrest for a sex crime were less likely to be rearrested for another sex crime than rapists (7.4%) and sexual assaulters (8.7%) who had been arrested two or more times for a sex crime prior to release from prison in 1994. Chi/d mo/esters and statutory rapists By definition, all 4,295 child molesters had been arrested for a sex offense at least once prior to their release in 1994 - the sex offense that landed them in prison. For 3,049 of them (71 % of 4,295), that arrest was their only prior arrest for a sex offense (table 31). The remaining 1,246 child molesters (29% of 4,295) had at least 2 prior arrests for a sex crime: the arrest for their impris- onment offense plus at least 1 other prior arrest for a sex offense (not necessarily one against a child). Of the 1 ,246 child molesters with multiple sex crimes in their past, 8.4% (1 OS of the 1 ,246) were rearrested for another sex crime (not necessarily another sex crime against a child), or more than double the 3.8% rate for the 3,049 released child molesters with just 1 prior arrest for a sex crime. Similar results were found for released statutory rapists. Those with a more extensive record of prior arrests for sex crimes were more likely to be rearrested for another sex crime (8.8%) than those with just one past arrest (2.6%). Table 30. Of sex offenders released from prison in 1994, percent rearrested for any new sex crime, by type of sex offender and prior arrest for any sex crime Sexual Arrest prior to '1994 release All Rapists assaulters Percent rearrested for any new sex crime within 3 years Total 5.3% 5.0% 5.5% The arrest responsible for their being in prison in 1994 was -` Their first arrest for any sex crime 4.2 4.0 4.2 Not their first arrest for any sex crime 8.3 7.4 8.7 Percent of released prisoners Total ? 00 % ? 00% 100% The arrest responsible for their being in prison in '1994 was -' Their first arrest for any sex crime 71 .5 71 .3 71 .6 Not their first arrest for any sex crime 28.5 28.7 28.4 Total released 9,69'1 3,115 6,576 Note: The 9,69'1 sex offenders were released in 1 S States. 'By definition, all sex offenders had at least 1 arrest prior to their release: namely, the arrest responsible for their being in prison in '1994. "First arrest for any sex crime" pertains exclusively to those released prisoners whose first arrest was the sex offense arrest responsible for their being in prison in '1994. Table 31. Of child molesters and statutory rapists released from prison in 1994, percent rearrested for any new sex crime, by prior arrest for any sex crime Child Statutory Arrest prior to "1994 release molesters rapists Percent rearrested for any new sex crime within 3 years Total 5.1% 5.0% The arrest responsible for their being in prison in '1994 was -' Their first arrest for any sex crime 3.8 2.6 Not their first arrest for any sex crime 8.4 8.8 Percent of released prisoners Total 1 00 % '100% The arrest responsible for their being in prison in '1994 was -' Their first arrest for any sex crime 7t.0 6'1.6 Not their first arrest for any sex crime 29.0 38.4 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists, 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." 'By definition, all sex offenders had at least 1 arrest prior to their release: namely, the arrest responsible for their being in prison in '1994. "First arrest for any sex crime" pertains exclusively to those released prisoners whose first arrest was the sex offense arrest responsible for their being in prison in '1994. 28 Recidivism of Sex Offenders Re/eased from Prison in 1994 5OA-77 State where rearrested for a sex crime When sex offenders were arrested for new sex crimes after their release, the new arrest typically occurred in the same State that released them. Those arrests are referred to as "in-State" arrests. When released sex offenders left the State where they were incarcer- ated and were charged by police with new sex crimes, those arrests are referred to as "out-of-State" arrests. All sex offenders Of the 9,691 released sex offenders, 517 were rearrested for a new sex crime within 3 years. Most of those sex crime arrests (85.2% of the 517, or 440 men) were in the same State that released them (table 32). Seventy- seven of them (14.8% of the 517) were arrests in a different State. Sex offenders compared fo non-sex offenders The 15 States in this study released 262,420 non-sex offenders in 1994, of whom 3,328 were rearrested for a new sex crime within 3 years (not shown in table). Of the 3,328 non-sex offenders arrested for a new sex crime, an estimated 1 O% were men rearrested outside the State that released them. The 15% figure for released sex offenders was high by comparison (table 32). Rapists and sexua/ assau/ters A total of 155 released rapists and 362 released sexual assaulters were rearrested for a new sex crime within the 3-year followup period. In-State arrests for new sex crimes accounted for 85% of the rearrested rapists and 85% of the rearrested sexual assaulters. Out-of-State arrests accounted for the rest. Chi/d mo/esters and statutory rapists released them in 1994. For the remain- ing 13.4%, the arrest was elsewhere. A total of 221 child molesters were rearrested for a new sex crime (not Of all statutory rapists, 5% (22) were necessarily against a child) after their rearrested for a new sex crime after release (table 33). Among the 221 their release. Of these 22, none had were 191 (86.6%) whose new sex the new arrest outside the State that crime arrest was in the same State that released them. Table 32. Where sex offenders were rearrested for a new sex crime following their release from prison in 1994, by type of sex offender Percent of rearrested prisoners State where rearrested Sexual within 3 years All Rapists assaulters Total 100% 100% '100% Same State where released 85.2 85.2 85.2 Another State 14.6 14.8 14.8 Total rearrested for a new sex crime 517 155 362 Note: The 517 rearrested sex offenders were released in 15 States, but table percentages are based on 14 States. Table 33. Where child molesters and statutory rapists were rearrested for a new sex crime following their release from prison in 1994 Percent of rearrested prisoners State where rearrested Child Statutory within 3 years molesters rapists Total 100% 100% Same State where released 86.6 100 Another State 13.4 O Total rearrested for a new sex crime 221 22 Note: The 221 rearrested child molesters were released in 14 States, but table percentages are based on 13 States. The 22 rearrested statutory rapists were released in 6 States, but table percentages are based on 5 States. Recidivism of Sex Offenders Re/eased from Prison in '1994 29 50A-78 Rearrest for a sex crime against a child Undercounts of sex crimes against children Rearrest Sex offenders compared to non-sex offenders This section documents percentages of men who were arrested for a sex crime against a child after their release from prison in 1994. To some unknown extent, these recidivism rates under- count actual rearrest rates. That is because the arrest records that the study used to document sex crime arrests did not always contain enough information to identify those sex crime arrests in which the victim of the crime was a child. Some sense of the poten- tial size of the undercount can be gained by comparing rearrests for any sex crime and rearrests for any sex crime against a child. Rates of rearrest for a sex crime (tables 21 and 22) are from 2 to 3'/? percentage points higher than rates of rearrest for a sex crime against a child (tables 34 and 35), suggesting that rates of rearrest for a sex crime against a child could be, at most, a few percentage points below actual rates. No data on precise ages of molested children This section also documents the ages of the children that the men were alleged to have molested after their release from prison. Sex crime statutes contained in the arrest records of the released prisoners were used to obtain ages. The first step was to identify those sex crime statutes that were applicable just to children. Among those that were, some were found to apply just to children whose age fell within a certain range (for example, under 12, or 13 to 15, or 16 to 17). Those statutes applicable to children within specified age ranges became the source of information on the approximate ages of the allegedly molested children. Information on precise ages could not be determined because statutes applicable just to children of a specific age (for example, just to 12-year-olds, or just to age 15-year-olds) do not exist. A// sex offenders Following their release in 1994, 209 of the total 9,691 released sex offend- ers (2.2%) were rearrested for a sex offense against a child (table 34). For virtually all 209, the rearrest offense was a felony. For the reason given earlier, the 2.2% figure undercounts the percentage rearrested for a sex offense against a child. It seems unlikely that the correct figure could be as high as 5.3% (table 21), which is the percentage rearrested for a sex crime against a person of any age. The only way it could be that high is if none of the sex crime arrests after release were crimes in which the victim was an adult, an unlikely possibility. The more likely possibility is that the 2.2% figure undercounts the rate by a maximum of 1 or 2 percentage points. An estimated 76% of the children alleg- edly molested by the 209 men after their prison release were age 13 or younger, 12% were 14- or 15-years- old, and the remaining 12% were 16- or 17-years-old. Prisons in the 15 States in the study released 272,111 prisoners altogether in 1994, 9,691 of whom were the sex offenders in this report. As previously stated, 2.2% of the 9,691 sex offenders were rearrested for a child sex crime after their release. That rate is high compared to the rate for the remaining 262,420 non-sex offenders. Of the 262,420 non-sex offenders, less than half of 1 percent (1,042 of the 262,420) were rearrested for a sex offense against a child within the 3-year followup period (not shown in table). Since each of the 1 ,042 was charged at arrest with molesting at least 1 child, the total number they allegedly moles- ted was conservatively estimated at 1,042. Of the conservatively estimated 1,042 children, 65% were age 13 or younger, 1 1 % were 14- or 15-years- old, and 24% were 16- or 17-years-old (not shown in table). (These percent- ages were based on the 554 cases out of the 1,042 in which the approximate age of the child could be determined.) Table 34. Of sex offenders released from prison in '1994, percent rearrested for a sex crime against a child, and percent of their alleged victims, by age of victim and type of sex offender Percent rearrested for a sex crime against a child within 3 years Sexual All Rapists assaulters Total 2.2% 1 .4 % 2.5 Number released 9,69'1 3,11 S 6,576 Age of child that sex offender was Percent of charged with molesting after release allegedly molested children 13 or younger 76.2% 89.3 % 72.3 14-15 11.5 O.O` '14.9 16-17 '12.3 '10.7' '12.8 Number of molested children 209 44 ? 65 Note: The 9,69'1 sex offenders were released in 15 States. The approximate ages of the children allegedly molested by the 209 prisoners after their release were available for 58.4% of the 209. "Number of molested children" was set to equal the number of released sex offenders rearrested for child molesting. 'Percentage based on 1 O or fewer cases. 30 Recidivism of Sex Offenders Re/eased from Prison in 1994 5OA-79 Assuming that the 209 sex offenders who were rearrested for a sex crime against a child each victimized no more than one child, the number of sex crimes they committed against children after their prison release totaled 209. Assuming that the 1,042 non-sex offenders rearrested for a sex crime against a child after their release also victimized only one child, the number of sex crimes against a child that they committed was 1 ,042. The combined total number of sex crimes is 1,251 (209 plus 1,042 = 1,251). Released sex offenders accounted for 17% and released non-sex offenders accounted for 83% of the 1 ,251 sex crimes against children committed by all the prisoners released in 1994 (209 / 1 ,251 = 1 7% and 1 ,042 / 1 ,251 = 83%). Rapists and sexua/ assau/ters Following their 1994 release, 1 .4% of the 3,115 rapists (44 men) and 2.5% of the 6,576 sexual assaulters (165 men) were rearrested for molesting a child (table 34). Child molesters and statutory rapists Within 3 years following their release from prison in 1994, 141 (3.3%) of the released 4,295 child molesters and 11 (2.5%) of the 443 released statutory rapists were rearrested for molesting another child (table 35). For the reasons outlined earlier, these percent- ages undercount actual rearrest rates by a few percentage points at most. Each of the 141 released molesters rearrested for repeating their crime represented at least 1 child victim. Of the conservatively estimated 141 children allegedly molested by released child molesters, 79% were age 13 or younger, 9% were 14 or 15 years of age, and 12% were ages 16 or 17. Table 35. Of child molesters and statutory rapists released from prison in 1994, percent rearrested for a sex crime against a child, and percent of their alleged victims, by age of victim Percent rearrested for a sex crime against a child within 3 years Child Statutory molesters rapists Total 3.3% 2.5 Number released 4,295 443 Age of child that sex offender was Percent of charged with molesting after release allegedly molested children 13 or younger 79.2% 30.0'% 14-15 9.1 10.0' 16-17 11.7 60.0` Number of molested children 141 11 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." The approximate ages of the children allegedly molested by the 141 prisoners after their release were available for 54.6 % of the 141. "Number of molested children" was set to equal the number of released sex offenders rearrested for child molesting. 'Percentage based on 1 O or fewer cases. Prior arrest for a sex crime against a child A// sex offenders After their 1994 release from prison, sex offenders with a prior arrest for child molesting were more likely to be arrested for child molesting (6.4%) than those who had no arrest record for sex with a child (1.7%) (table 36). Table 36. Of sex offenders released from prison in 1994, percent rearrested for a sex crime against a child, by prior arrest for a sex crime against a child and type of sex offender Sexual Arrest prior to 1994 release All Rapists assaulters Percent rearrested for a sex crime against a child within 3 years Total 2.2% 1.4% 2.5% The arrest responsible for their being in prison in 1994 was -' Their first arrest for a sex crime against a child 1 .7 1.3 1 .9 Not their first arrest for a sex crime against a child 6.4 4.0 6.9 Percent of released prisoners Total 100 % 100 % 100 The arrest responsible for their being in prison in 1994 was -' Their first arrest for a sex crime against a child 89.7 94.3 87.5 Not their first arrest for a sex crime against a child 10.3 5.7 12.5 Total released 9,691 3,115 6,576 Note: The 9,691 sex offenders were released in 15 States. 'By definition, all sex offenders had at least 1 arrest prior to their release: namely, the arrest responsible for their being in prison in 1994. "First arrest for a sex crime against a child" pertains exclusively to those released prisoners whose first arrest was the sex offense arrest responsible for their being in prison in 1994. Recidivism of Sex Offenders Re/eased from Prison in 9994 31 5OA-80 Rapists and sexua/ assau/ters After being released in 1994, 4.0% of rapists with a prior arrest record for child molesting and 1 .3% of those without were arrested for child molest- ing. The same pattern -having a history of alleged child molesting was associated with a greater likelihood of arrest for child molesting -was found for sexual assaulters. Those with a prior arrest had a 6.9% rate; those without, 1.9%. Chi/d mo/esters and statutory rapists The 4,295 released child molesters fell into 2 categories: 1) 3,509 (81 .7% of the 4,295) whose criminal record prior to their 1994 release contained no more than 1 arrest for a sex offense against a child (this was the offense for which they were imprisoned); and 2) 786 (18.3%) whose record showed the arrest for their imprisonment offense plus at least one earlier arrest for a sex offense against a child (table 37). After release, 7.3% of the 786 and 2.4% of the 3,509 were rearrested for molesting another child, indicating that child molesters with multiple arrests for child molesting in their record posed a greater risk of repeating their crime than their counterparts. Similarly, the 443 statutory rapists consisted of - - 356 (80.4%) whose first arrest for a sex offense against a child was the arrest that resulted in their current imprisonment - 87 (19.6%) with more than 1 prior arrest for a sex offense against a child. The 87 were more likely to be rearrested for child molesting (6.9%) than the 356 (1.4%). Molester's and child's ages at time of imprisonment offense Chi/d mo/esters The released child molesters were all men who were arrested, convicted, and Table 37. Of child molesters and statutory rapists released from prison in 1994, percent rearrested for a sex crime against a child, by prior arrest for a sex crime against a child Child Statutory Arrest prior to '1994 release molesters rapists Percent rearrested for a sex crime against a child within 3 years 3.3 % 2.5 The arrest responsible for their being in prison in '1994 was Their first arrest for a sex crime against a child 2.4 1.4 No[ their first arrest for a sex crime against a child 7.3 6.9 Percent of released prisoners '100 % '100% The arrest responsible for their being in prison in ? 994 was -' Their first arrest for a sex crime against a child 81 .7 80.4 Not their first arrest for a sex crime against a child ? 8.3 '19.6 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in 11 States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." 'By definition, all sex offenders had at least ? arrest prior to their release the arrest responsible for their being in prison in ? 994. "First arrest for a sex crime against a child" pertains exclusively to those released prisoners whose first arrest was responsible for their being in prison in '1994. Table 38. Among child molesters released from prison in 1994, the molester's age when he committed the crime that resulted in his imprisonment, the child's age, and percent rearrested for a sex crime against a child Percent of released child molesters Percent rearrested for a sex crime Age characteristic of total against a child within 3 years Child molester's age when he committed the sex crime for which imprisoned- 'I 5-24 ? 9.7% 4. t 25-29 '17.4 3.1 30-34 '18.7 3.3 35-39 '16.3 1 .2 40-44 11.5 2.8 45 or older ? 6.4 3.0 Age of child he was imprisoned for molesting° ? 3 or younger 60.3 % 2.8 14-15 30.5 3.7 16-17 9.2 1.2 How much older he was than the child he was imprisoned for molesting Up to 5 years older 3.9 % 4.9' 5 to 9 years older ? 3.6 3.6 1 O to 19 years older 34.1 3.2 20 or more years older 48.4 2.5 Total first releases 3,'104 3,104 Note: The 3,104 child molesters were released in 13 States. Figures are based on first releases only, those offenders leaving prison for the first time since beginning their sentence. First releases exclude those who left prison in '1994 but who had previously been released under the same sentence and had returned to prison for violating the conditions of release. Data identifying the child molester's age were reported for '100% of the released child molesters. Data identifying the approximate age of the child were reported for 88.'1 %. aThe molester's age at the time of the crime for which imprisoned was estimated by subtracting 6 months (the approximate average time from arrest to sentencing) from his age at admission. °The approximate age of the child "he was imprisoned for molesting" was usually obtained from the State statute the molester was convicted of violating. `Percentage based on 1 O or fewer cases. 32 Recidivism of Sex Offenders Re/eased from Prison in 1994 5OA-81 sentenced to prison for a sex crime against a child. At the time they committed their imprisonment offense, most (62.9%) were age 30 and older, and most (60.3%) molested a child who was age 13 or younger (table 38). Some of the victims were below age 7. Nearly half of the men (48.4%) were 20 years or more older than the child they were imprisoned for molesting. Among the men who were in prison for molesting a child age 13 or younger and who were released in 1994 for that crime, 2.8% were subsequently arrested for molesting another child. Of those whose imprisonment offense was against a 14- or 15-year-old, 3.7% had a new arrest for child molesting after their release. Of the men who were in prison for molesting a 16- or 17-year-old, 1 .2% were arrested by police for molesting another child after leaving prison in 1994. Among the men who were 20 years or more older than the child they were imprisoned for molesting, 2.5% were rearrested for another sex offense against a child within the first 3 years following their release. That is a lower rate than the 3.2% rate for men who were 1 O to 19 years older than the child victim in their imprisonment offense, and compared to the 3.6% for those 5 to 9 years older than the victim in their imprisonment offense. State where rearrested for a sex crime against a child When sex offenders were arrested for new sex crimes against children after their release, the new arrest typically occurred in the same State that released them. Those arrests are referred to as "in-State" arrests. When arrests occurred in a different State, they are referred to as "out-of-State." A// sex offenders Of the 9,691 sex offenders, 209 were rearrested for child molesting after their release from prison in 1994 (table 39). In 180 cases (86.3%), the alleged crime took place in the State that released him. In the 29 others (13.7%), it occurred elsewhere. Sex offenders compared to non-sex offenders The 15 States in this study released 262,420 non-sex offenders in 1994, of whom 1,042 were rearrested for a sex crime against a child (not shown in table). Of the 1 ,042 arrests, 1 1 % were out-of-State rearrests. The comparable figure for released sex offenders was higher: 14% (table 39). Rapists and sexua/ assau/tars Forty-four released rapists and 165 released sexual assaulters were rearrested for a sex crime against a child within 3 years. Out-of-State arrests for child molesting accounted for 13.5% of the 44 rearrested rapists and 13.7% of the 165 rearrested sexual assaulters. Chi/d mo/esters and statutory rapists Police arrested 141 of the 4,295 released child molesters for repeating their crime (table 40). For 126 of them (89.2%), the new arrest for child molesting was in the same State that released them. For 15 (10.8%), the new charges for child molesting were filed in a different State. Of the 443 statutory rapists released from prison in 1994, 11 were rearrested for child molesting. All 1 1 of the arrests were in the same State that released the men. Table 39. Where sex offenders were rearrested for a sex crime against a child following their release from prison in '1994, by type of sex offender Percent of rearrested prisoners State where rearrested Sexual within 3 years All Rapists assaulters Total 100% 100% 100 Same State where released 86.3 86.5 86.3 Another State 13.7 13.5 13.7 Total rearrested for a new sex crime against a child 209 44 165 Note: The 209 rearrested sex offenders were released in 1 O States, but table percentages are based on 9 States. Table 40. Where child molesters and statutory rapists were rearrested for a sex crime against a child following their release from prison in '1994 Percent of rearrested prisoners Child Statutory State where rearrested within 3 years molesters rapists Total 100% 100% Same State where released 89.2 100 Another State 10.8 O Total rearrested for a new sex crime against a child 141 11 Note: The 141 rearrested child molesters were released in 9 States, but table percentages are based on 8 States. The 11 rearrested statutory rapists were released in 3 States, but table percentages are based on 2 States. Recidivism of Sex Offenders Re/eased from Prison in 1994 33 50A-82 Rearrest for other types of crime A// sex offenders Of the 9,691 male sex offenders released from prison in 1994 - - 43% (4,163 men) were rearrested for a crime of any kind (table 41 ) - 5.3% (517 men) were rearrested for a sex offense - 17.1% (1,658 men) were rearrested for a violent crime - 13.3% (1,285 men) were rearrested for a property crime of some kind. Of the 9,691 released men, 168 (1 .7%) were rearrested for rape and 396 (4.1 %) were rearrested for sexual assault. The 168 rearrested for rape plus the 396 rearrested for sexual assault totals 564, which is 47 greater than the total 517 who were rearrested for a sex crime. The reason is that 47 men were rearrested for both rape and sexual assault. The category of violent crime for which a prisoner was most likely to be rearrested was assault (8.8%, or 848 of the 9,691); the category least likely was homicide (0.5%, or 45 of the 9,691 men). Just over 1 in 5 sex offenders (2,045 out of 9,691) were rearrested for a public-order offense, such as a parole violation or traffic offense. Rapists and sexua/ assau/ters Among the 3,115 released rapists - 46% (1 ,432) were rearrested for a crime of any kind - 18.7% (582) were rearrested for a violent crime - 0.7% (22) were rearrested for homicide • 14.7% (459) were rearrested for a property offense. A relatively small percentage of rapists (2.5%, or 78 of the 3,1 15) were charged with repeating the crime for which they were imprisoned. Among the 6,576 released sexual assaulters - - 41 .5% (2,731) were rearrested for a crime of any kind - 16.4% (1,076) were rearrested for a violent crime - 0.3% (23) were rearrested for killing someone - 12.6% (826) were rearrested for a property offense. Nearly 1 in 20 released sexual assaulters (4.7%, or 308 of the 6,576) were charged with committing the same type of crime for which had just served time in prison. Table 41. Rearrest rate of sex offenders released from prison in 1994, by type of sex offender and charge at rearrest Percent rearrested for specified offense within 3 years Sexual Rearrest charge All Rapists assaulters All charges• 43.0% 46.0% 41.5% Violent offenses° 17.1 % '18.7 % '16.4% Homicide` O.5 0.7 0.3 Sex offense° 5.3 5.0 5.5 Rape 1 .7 2.5 1 .4 Sexual assault 4.1 2.8 4.7 Robbery 2.7 3.9 2.1 Assault 8.8 8.7 8.8 Property offenses° '13.3 % '14.7 % '12.6 Burglary 3.8 4.4 3.5 Larceny/theft 5.7 6.1 5.6 Motor vehicle theft 1.7 2.3 1.4 Fraud 2.1 1.8 2.2 Drug offenses` '10.0% 11.2% 9.4% Public-order offenses 21 .1 % 20.4% 21 .4% Other offenses 5.9% 5.0 % 6.3% Total released 9,69'1 3,115 6,576 Note: The 9,69'1 sex offenders were released in 15 States. Detail may not add to totals because persons may be rearrested for more than one type of charge. °All offenses include any offense type listed in footnotes b through f plus "other" and "unknown" offenses. °Total violent offenses include homicide, kidnaping, rape, other sexual assault, robbery, assaults, and other violence. `Homicide includes murder, voluntary manslaughter, vehicular manslaughter, negligent manslaughter, nonnegligent manslaughter, unspecified manslaughter, and unspecified homicide. °Includes both rape and sexual assault. °Total property offenses include burglary, larceny, motor vehicle theft, fraud, forgery, embezzlement, arson, stolen property, and other forms of property offenses. 'Drug offenses include drug traf£cking, drug possession, and other forms of drug offenses. sPUblic-order offenses include traffic offenses, weapon offenses, probation and parole violations, court-related offenses, disorderly conduct, and other such offenses. 34 Recidivism of Sex Offenders Released from Prison in 9994 50A-83 Chi/d mo/esters and statutory rapists Of the 4,295 child molesters released from prison in 1994 - • 39.4% (1,693) were rearrested for a crime of any kind (table 42) - 0.4% (17) were rearrested for intentionally or negligently killing someone. Child molesters were less likely to be rearrested for a property crime (10.6%, 456 of 4,295) than a violent crime (14.1 %, 607 of 4,295). Of the 443 statutory rapists released in 1994 - 49.9% (221) were rearrested for some new crime • 0.7% (3) were rearrested for homicide • 22.6% (100) were rearrested for a property crime • 21 .2% (94) were rearrested for a violent crime. Table 42. Rearrest rate of child molesters and statutory rapists released from prison in '1994, by charge at rearrest Percent rearrested for specified offense within 3 years Child Statutory Rearrest charge molesters rapists All charges° 39.4% 49.9 Violent offenses° '14.'1 % 2'1.2% Homicide` 0.4 0.7 Sex offense° 5.1 5.0 Rape 1.3 1.6 Sexual assault 4.4 3.6 Robbery 1.7 4.3 Assault 7.1 '12.6 Property offenses° 1 0.6% 22.6 Burglary 2.8 4.3 Larceny/theft 4.6 '10.8 Motor vehicle theft 1 .5 3.8 Fraud 1.9 3.6 Drug offenses` 8.6 % '12.0% Public-order offensese 20.0% 27.1 Other offenses 7.8% 4.3 Total released 4,295 443 Note: The 4,295 child molesters were released in 15 States; the 443 statutory rapists in ? ? States. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters." Detail may not add to totals because of rounding. °All offenses include any offense type listed in footnotes 6 through f plus "other" and "unknown" offenses. °Total violent offenses include homicide, kidnaping, rape, other sexual assault, robbery, assaults, and other violence. `Homicide includes murder, voluntary manslaughter, vehicular manslaughter, negligent manslaughter, nonnegligent manslaughter, unspecified manslaughter, and unspecified homicide. °Includes both rape and sexual assault. °Total property offenses include burglary, larceny, motor vehicle theft, fraud, forgery, embezzlement, arson, stolen property, and other forms of property offenses. 'Drug offenses include drug trafficking, drug possession, and other forms of drug offenses. ePUblic-order offenses include traffic offenses, weapon offenses, probation and parole violations, court-related offenses, disorderly conduct, and other such offenses. Recidivism of Sex Offenders Released from Prison in 7994 35 50A-84 Victims of sex crimes Survey of State inmates The 9,691 prisoners in this study were all men sentenced to prison for sex crimes. Characteristics of the victims of these sex crimes were largely unavailable for the study. For informa- tion on imprisoned sex offenders and their victims, data were drawn from a survey covering the approximately 73,000 male sex offenders in State prisons nationwide in 1997. Of the 73,000 victims of their sex crimes - - about 90% were female - nearly 75% were white - 89% were non-Hispanic - 36% were below age 13 - altogether, 70% were under age 18. Child victims of sex crimes were more likely than adult victims to be male (11% versus 3%). Whites made up 76% of child victims and 66% of adult victims. The biggest difference between child victims and adult victims was their relationship to the man who committed the sex crime: Among cases where the victim was under 18, the boy or girl was the prisoner's own child (16%), stepchild (16%), sibling or stepsibling (2%), or other relative (13%) in nearly half of all child victim cases (46%). Among cases where the victim was an adult, the victim was a relative less often (11%). Among inmates who were in prison for percent of the inmates reported their a sex crime against a child, the child child victims to have been strangers. was the prisoner's own child or step- Among adult victims, 34% were child in a third of the cases. Seven strangers to their attacker. Characteristics of victims of rape or sexual assault, for which male inmates were serving a sentence in State prisons, 1997 Percent of victims of rape or sexual assault Victim age Victim characteristic All 18 years or older Under 18 years Total 1 00% 1 OO % 100% Gender Male 8.8% 2.8 % 11 .1 Female 91.2 97.2 88.9 Race White 73.2% 66.0% 76.4% Black 22.8 30.2 19.4 Other 4.0 3.8 4.2 Hispanic origin Hispanic 11.3% 9.9% 12.1 Non-Hispanic 88.7 90.1 87.9 Age 12 or under 36.4% -- 51 .6 13-17 34.1 -- 48.4 18-24 10.8 36.7% -- 25-34 11.2 37.9 -- 35-34 7.0 23.8 -- 55 or over O.5 1.6 -- Victim was the prisoner's - Spouse 1.1 % 3.8% O% Ex-spouse 0.6 2.0 O ParenVstepparent 0.6 0.4 0.6 Own child 11.5 1.4 15.7 Stepchild 1 1 .2 0.4 15.8 Sibling/stepsibling 1.3 0.4 1.7 Other relative 9.4 2.1 12.7 Boy/girlfriend 5.5 8.2 4.4 Ex-boy/girlfriend 1.1 2.0 O.8 Friend/ex-friend 22.7 24.8 22.0 Acquaintance/other 19.4 20.1 19.6 Stranger 15.6 34.4 6.7 Total estimated number 73,116 20,958 50,027 Note: Data are from the BJS Survey of Inmates in State Correctional Facilities, 1997. This table is based on 73,116 prisoners who reported having one victim in the crime for which they were sentenced to prison. (They accounted for approximately 84% of all incarcerated male sex offenders in 1997.) Data identifying victim's sex were reported for 99.8 % of the 73,116 males incarcerated for sex crimes; victim's race were reported for 98.9%; Hispanic origin for 98.2 % ; victim's age for 97.1 %; victim's relationship to prisoner for 98.3 % . Detail may not sum to total due to missing data for age of victim. --Not applicable. 36 Recidivism of Sex Offenders Re/eased from Prison in >994 50A-85 Methodology 3-year followup period For analytic purposes, "3 years" was defined as 1,096 days from the day of release from prison. Any rearrest, reconviction, or re-imprisonment occur- ring after 1,096 days from the 1994 release was not included. A conviction after 1,096 days was not counted even if it resulted from an arrest within the period. State statutes, and when they were used they did not always conform to the study's definitions of them. In deciding which type of sex offender to classify the prisoner as, importance was attached not to the label the law gave to his conviction offense, but to how well the law's definition of the offense fit the study's definition of the type. statute the offender was imprisoned for violating, or the statute the released prisoner was charged with violating when he was rearrested for a sex crime. The former was obtained from the prison records assembled for the study; the latter, from the assembled arrest records. Separating sex offenders into four Types The report gives statistics for four types of sex offenders. Separating sex offen- ders into the four types was done using information - in particular, the statute number for the imprisonment offense, the literal version of the statute, a numeric FBI code (called the "NCIC" code, short for "National Crime Infor- mation Center") indicating what the imprisonment offense was, and miscel- laneous other information -available in the prison records on the 9,691 men. However, the prison records obtained for the study did not always contain all four pieces of information on the imprisonment offense. Moreover, the available offense information was not always detailed enough to reliably distinguish different types of sex offenders. The process of sorting sex offenders into different types involved first creat- ing the study's definitions of the four types, and then determining which State statute numbers, which literal versions of those statutes, and which NCIC codes conformed to the defini- tions. Each inmate was next classified into one of the types (or possibly into more than one type, since the four are not mutually exclusive) depending on whether the imprisonment offense information available on him fit the study's definition. An obstacle to classifying sex offenders into types was that the labels "rape," "sexual assault," "child molestation," "statutory rape" were not widely used in Sex offenders compared to non-sex offenders In 1994, prisons in 15 States released 272,111 prisoners, representing two-thirds of all prisoners released in the United States that year. Among the 272,11 1 were 262,420 released prison- ers whose imprisonment offense was not a sex offense. Non-sex offenders include inmates, both male and female, who were in prison for violent crimes (such as murder or robbery), property crimes (such as burglary or motor vehicle theft), drug crimes, and public order offenses. Like the 9,691 male sex offenders examined in this report, all non-sex offenders were serving prison terms of one year or more in State prison when they were released in 1994. At various places, this report compares 9,691 released male sex offenders to 262,420 released non-sex offenders. While labeled "non-sex offenders," the 262,420 actually includes a small number- 87- who are sex offenders. The 87 are all the female sex offenders released from prisons in the 15 States in 1994. Ages of mo/ested and a//egad/y mo/ested chi/dren Information on the ages of molested children was needed for two calcula- tions: 1) age of the child the released sex offender was sent to prison for molesting, and 2) age of the child alleg- edly molested by the released sex offender during the 3-year follow-up period. The most frequent source of both was a sex statute: either the sex None of the sex statutes was found to apply to a victim of a specific age; for example, just to 12-year-olds. But some were found to apply just to children in a certain age range; for example, under 12, or 13 to 15, or 16 to 17. While specific ages of children could not be obtained from statutes, the availability of information on age ranges at least made it possible to obtain approximate ages. The rule that was adopted was to record the victim's (or alleged victim's) age as the upper limit of a statute's age range. To illus- trate, astatute might indicate that the complainant/victim be "at least 13 but less than 16 years of age." In that case, the age of the child was recorded as 15, since the statute indicated the upper limit of the age range as any age "less than 16." As another example, if a statute indicated the complainant/ victim be "under 12 years of age," the child's age was recorded as 11, as the phrasing of the age range did not include 12-year-olds, only those "under 12." Because the victim (or alleged victim) was always assigned the age of the oldest person in the age range, the study made the victims (or alleged victims) appear older than they actually were. How missing data were hand/ed in the report In many instances, the data needed to calculate a statistic were not available for all 9,691 released sex offenders. For example, the 9,691 were released in 15 States, but data needed to deter- mine the number reconvicted were only available for the 9,085 released in 14 of the 15. Of the 9,085, 2,180 (24%) were reconvicted. When data were missing, the statistic was computed on those Recidivism of Sez Offenders Released from Prison in 1994 37 50A-86 cases in which the data were available, but treated both in the tables and in the text as though it were based on the total population. For example, "24%" is the statistic that appears in all tables and text that give the percent recon- victed; and since 24% of 9,691 is 2,326, the text says that "2,326 of the 9,691 were reconvicted," despite the fact that the "24%" was actually ob- tained by dividing 2,180 by 9,085. The text could have been written to say "2,180 of the 9,085 were reconvicted," but that wasn't done because introduc- ing anew denominator (9,085) into the text would have created confusion for the reader. Missing data on out-of--State rearrests Because of missing information, the study was unable to determine how many inmates released from New York prisons were rearrested outside of New York. The study was able to document how many prisoners released in the other 14 States were rearrested outside the State that released them. Because of incomplete New York data, the report's recidivism rates are somewhat deflated. Missing data on rearrest for a sex crime According to arrest records compiled in the study, 4,163 of the 9,691 released sex offenders were rearrested for a new crime of some kind. It was not always possible to determine from these records whether the new crime was a sex crime. For 202 rearrested prisoners, the arrest record did not identify the type of crime. For the rest the record did identify the type but the offense label was not always specific enough to distinguish sex crimes from other crimes. For example, if the label said "contributing to the delinquency of a minor," "indeceny," "morals offense," "family offense," or "child abuse," the offense was coded as a non-sex crime even though, in some unknown number of cases, it was actually a sex crime. According to arrest records, 5.3% of the 9,691 (517 out of 9,691) released sex offenders were rearrested for another sex crime. For the two reasons described immediately above, 5.3% was probably an undercount of how many were rearrested for a sex crime. How much of an undercount could not be firmly determined from the data assembled for the study. However, a conservative measure of the size of the undercount was obtained from the data. The study database included 121 rearrested sex offenders whose arrest record did not indicate they were rearrested for a sex crime (the rearrest was either for anon-sex crime or for an unknown type of crime) but whose court record did indicate they were charged with a sex crime. When the study calculated the percentage rearrested for a sex crime, the 121 were not included among the 517 with a rearrest for a sex crime. Had the 121 been included in the calculation of the rearrest rate, the total number rearrested for a sex crime would have been 638 rather than 517, and the percentage rearrested for a sex crime would have been 6.6% rather than 5.3%. This suggests an undercount of about 1 percentage point. Texas prisoners c/assified as 'other Type of re/ease" Texas released 692 male sex offend- ers in 1994, of which 129 were classi- fied as release category "1 7", defined as "other type of release." Numerous data quality checks were run on the 129 and the 64 of them who were rearrested. The rearrest rate for the 129 was about average for Texas releases. But numerous anomalies were found for the 64 who were rearrested : 1 . The rearrest offense for the 64 was always missing from their arrest record 2. The date of rearrest for the 64 was always the same as their release date 3. Virtually all 64 were reconvicted for a sex crime 4. The sentence length imposed for their new sex crime was identical to the sentence they were serving when released in 1994. Because of these anomalies, the 129 were excluded from the calculation of "percent reconvicted for a sex crime." Counting ru/es In this report, rearrest was measured by counting the number of different persons who were rearrested at least once. A released prisoner who was rearrested several times or had multi- ple rearrest charges filed against him was counted as only one rearrested person. The same counting rule applied to reconviction and the other recidivism measures. If a released prisoner was rearrested several times, his earliest rearrest was used to calculate his time-to-rearrest. The same counting rule applied to reconviction and recidivism defined as a new prison sentence. If a released prisoner had both in-State and out-of-State rearrests, he was counted as having an out-of-State rearrest regardless of whether the out-of-State rearrest was his earliest rearrest. The same rule applied in cases where the released prisoner had both felony and misdemeanor rearrests, or both sex crime and non-sex crime rearrests. The person was counted as having a felony rearrest or a sex crime rearrest regard- less of temporal sequence. The aim of these rules was to count people, not events. The only tables in the report that do not follow the rule are tables 41 and 42. First re/ease All 15 States had first releases, but they could not be identified in 1 State (Ohio). They could be identified in Michigan, but Michigan data on sentence length did not fit the study's definition. Since sentence length was critical to several statistics calculated 38 Recidivism of Sex Offenders Re/eased from Prison in >994 50A-87 from data on first releases (for example, percent of sentence served), Michigan was excluded from all tables based on first releases. Analysis of statutory rape /aws The publication's analysis of statutory rape laws in the United States benefit- ted greatly from the report "Sexual Relationships Between Adult Males and Young Teen Girls: Exploring the Legal and Social Responses," by Sharon G. Elstein and Noy Davis, American Bar Association, Center on Children and the Law, October 1997. Samp/ing error In 1994 State prisons in 15 States released 302,309 prisoners altogether. A total of 38,624 were sampled for a recidivism study. Results of that study and information regarding sampling and other methodological details are available in the BJS publication Recidi- vism of Prisoners Re/eased in X994, NCJ 193427, June 2002. The 302,309 total released consisted of 10,546 released sex offenders plus 291 ,763 released non-sex offenders. The 38,624 sample consisted of 10,546 released sex offenders plus 28,078 released non-sex offenders. The number of sex offenders in the sample was the same as the number ii the 302,309 total because all sex offenders released in 1994 in the 15 States were selected for the study, not a sample of them. Because no sampling was used to select sex offenders, numbers and percentages in this report for sex offenders were not subject to sampling error. However, comparisons in the report between sex offenders and non-sex offenders were subject to sampling error because sampling was used to select non-sex offenders. Where sex offenders were compared to all non-sex offenders released in 1994, sampling error was taken into account. All differences discussed were statistically significant at the .OS level. Not all 10,546 sex offenders in the sample were used in the report. To be in the report, the sex offender had to be male and meet all 4 of the following criteria: 1 . A RAP sheet on the prisoner was found in the State criminal history repository. 2. The released prisoner was alive throughout the entire 3-year followup period. (This requirement resulted in 21 sex offenders' being excluded.) 3. The prisoner's sentence was greater than 1 year (missing sentences were treated as greater than 1 year). 4. The State department of corrections that released the prisoner in 1994 did not designate him as any of the follow- ing release types: release to custody/detainer/warrant, absent without leave, escape, transfer, admin- istrative release, or release on appeal. A total of 9,691 released male sex offenders met the selection criteria. The number of them released in each State is shown in the appendix table. Other methodo/ogica/ detai/s To help the reader understand the percentages provided in the report, both the numerator and denominator were often given. In most cases, the reader could then reproduce the percentages. For example, the report indicates 38.6% (3,741) of the 9,691 sex offenders were returned to prison. Appendix table. Number of sex offenders released from State prisons in 1994 and number selected for this report, by State Sex offenders released from prison in '1994 Selected to be in State Total this report Total '10,546 9,69'1 Arizona 156 '122 California 3,503 3,395 Delaware 53 45 Florida '1,053 965 Illinois 775 7'10 Maryland 277 243 Michigan 477 444 Minnesota 249 239 New Jersey 449 429 New York 799 692 North Carolina 508 441 Ohio 824 606 Oregon 452 408 Texas 708 692 Virginia 263 260 Note: "Total released" includes both male and female sex offenders; "Total selected to be in this report" includes only male sex offenders. Using the 3,741 and the 9,691, the reader could exactly reproduce the results. However, the reader should be aware that in a few places, the calcu- lated percentages will differ slightly from the percentages found in the report. This is due to rounding. For example, 43.0%, or 4,163, of the 9,691 sex offenders were rearrested; however, 4,163 / 9,691 is 42.96%, which was rounded to 43.0%. Offense definitions and other methodo- logical details are available in the BJS publication Recidivism of Prisoners Re/eased in 7994, NCJ 193427, June 2002. Recidivism of Sex Offenders Re/eased from Prison in >994 39 50A-88 Methodology 3-year fo/%wup period For analytic purposes, "3 years" was defined as ? ,096 days from the day of release from prison. Any rearrest, reconviction, or re-imprisonment occur- ring after 1 ,096 days from the ? 994 release was not included. A conviction after 1 ,096 days was not counted even if it resulted "from an arrest within the period. State statutes, and when they were used they did not always conform to the study's definitions of them. In deciding which type of sex offender to classify the prisoner as, importance was attached not to the label the law gave to his conviction offense, but to how well the law's definition of the offense fit the study's definition of the type. statute the offender was imprisoned for violating, or the statute the released prisoner was charged with violating when he was rearrested for a sex crime. The former was obtained from the prison records assembled for the study; the latter, from the assembled arrest records. Separating sex offenders into four types The report gives statistics for four types of sex offenders. Separating sex offen- ders into the four types was done using information - in particular, the statute number for the imprisonment offense, the literal version of the statute, a numeric FBI code (called the "NCIC" code, short for "National Crime Infor- mation Center") indicating what the imprisonment offense was, and miscel- laneous other information -available in the prison records on the 9,691 men. However, the prison records obtained for the study did not always contain all four pieces of information on the imprisonment offense. Moreover, the available offense information was not always detailed enough to reliably distinguish different types of sex offenders. The process of sorting sex offenders into different types involved first creat- ing the study's definitions of the four types, and then determining which State statute numbers, which literal versions of those statutes, and which NCIC codes conformed to the defini- tions. Each inmate was next classified into one of the types (or possibly into more than one type, since the four are not mutually exclusive) depending on whether the imprisonment offense information available on him fit the study's definition. An obstacle to classifying sex offenders into types was that the labels "rape," "sexual assault," "child molestation," "statutory rape" were not widely used in Sex offenders compared fo non-sex offenders In ? 994, prisons in ? 5 States released 272,1 ? ? prisoners, representing two-thirds of all prisoners released in the United States that year. Among the 272,111 were 262,420 released prison- ers whose imprisonment offense was not a sex offense. Non-sex offenders include inmates, both male and female, who were in prison for violent crimes (such as murder or robbery), property crimes (such as burglary or motor vehicle theft), drug crimes, and public order offenses. Like the 9,691 male sex offenders examined in this report, all non-sex offenders were serving prison terms of one year or more in State prison when they were released in 1994. At various places, this report compares 9,691 released male sex offenders to 262,420 released non-sex offenders. While labeled "non-sex offenders," the 262,420 actually includes a small number- 87- who are sex offenders. The 87 are all the female sex offenders released from prisons in the 15 States in 1994. Ages of molested and a//eged/y mo/eated chi/dren Information on the ages of molested children was needed for two calcula- tions: 1) age of the child the released sex offender was sent to prison for molesting, and 2) age of the child alleg- edly molested by the released sex offender during the 3-year follow-up period. The most frequent source of both was a sex statute: either the sex None of the sex statutes was found to apply to a victim of a specific age; for example, just to 12-year-olds. But some were found to apply just to children in a certain age range; for example, under ? 2, or 13 to 1 5, or 16 to 17. While specific ages of children could not be obtained from statutes, the availability of information on age ranges at least made it possible to obtain approximate ages. The rule that was adopted was to record the victim's (or alleged victim's) age as the upper limit of a statute's age range. To illus- trate, astatute might indicate that the complainant/victim be "at least 13 but less than 16 years of age." In that case, the age of the child was recorded as 1 5, since the statute indicated the upper limit of the age range as any age "less than 16." As another example, if a statute indicated the complainant/ victim be "under 12 years of age," the child's age was recorded as 11 , as the phrasing of the age range did not include 12-year-olds, only those "under 12." Because the victim (or alleged victim) was always assigned the age of the oldest person in the age range, the study made the victims (or alleged victims) appear older than they actually were. How missing data were hand/ed in the report In many instances, the data needed to calculate a statistic were not available for all 9,691 released sex offenders. For example, the 9,691 were released in 15 States, but data needed to deter- mine the number reconvicted were only available for the 9,085 released in 14 of the 15. Of the 9,085, 2,180 (24%) were reconvicted. When data were missing, the statistic was computed on those Recidivism of Sex Offenders Re/eased from Prison in 1994 37 50A-89 cases in which the data were available, but treated both in the tables and in the text as though it were based on the total population. For example, "24%" is the statistic that appears in all tables and text that give the percent recon- victed; and since 24% of 9,691 is 2,326, the text says that "2,326 of the 9,691 were reconvicted," despite the fact that the "24%" was actually ob- tained by dividing 2,180 by 9,085. The text could have been written to say "2,180 of the 9,085 were reconvicted," but that wasn't done because introduc- ing anew denominator (9,085) into the text would have created confusion for the reader. Missing data on out-of--State rearrests Because of missing information, the study was unable to determine how many inmates released from New York prisons were rearrested outside of New York. The study was able to document how many prisoners released in the other 14 States were rearrested outside the State that released them. Because of incomplete New York data, the report's recidivism rates are somewhat deflated. Missing data on rearrest for a sex crime According to arrest records compiled in the study, 4,163 of the 9,691 released sex offenders were rearrested for a new crime of some kind. It was not always possible to determine from these records whether the new crime was a sex crime. For 202 rearrested prisoners, the arrest record did not identify the type of crime. For the rest the record did identify the type but the offense label was not always specific enough to distinguish sex crimes from other crimes. For example, if the label said "contributing to the delinquency of a minor," "indeceny," "morals offense," "family offense," or "child abuse," the offense was coded as a non-sex crime even though, in some unknown number of cases, it was actually a sex crime. According to arrest records, 5.3% of the 9,691 (517 out of 9,697) released sex offenders were rearrested for another sex crime. For the two reasons described immediately above, 5.3% was probably an undercount of how many were rearrested for a sex crime. How much of an undercount could not be firmly determined from the data assembled for the study. However, a conservative measure of the size of the undercount was obtained from the data. The study database included 121 rearrested sex offenders whose arrest record did not indicate they were rearrested for a sex crime (the rearrest was either for anon-sex crime or for an unknown type of crime) but whose court record did indicate they were charged with a sex crime. When the study calculated the percentage rearrested for a sex crime, the 121 were not included among the 517 with a rearrest for a sex crime. Had the 121 been included in the calculation of the rearrest rate, the total number rearrested for a sex crime would have been 638 rather than 517, and the percentage rearrested for a sex crime would have been 6.6% rather than 5.3%. This suggests an undercount of about 1 percentage point. Texas prisoners c/assified as "other type of re/ease" Texas released 692 male sex offend- ers in 1994, of which 129 were classi- fied as release category "1 7", defined as "other type of release." Numerous data quality checks were run on the 129 and the 64 of them who were rearrested. The rearrest rate for the 129 was about average for Texas releases. But numerous anomalies were found for the 64 who were rearrested: 1 . The rearrest offense for the 64 was always missing from their arrest record 2. The date of rearrest for the 64 was always the same as their release date 3. Virtually all 64 were reconvicted for a sex crime 4. The sentence length imposed for their new sex crime was identical to the sentence they were serving when released in ? 994. Because of these anomalies, the 729 were excluded from the calculation of "percent reconvicted for a sex crime." Counting ru/es In this report, rearrest was measured by counting the number of different persons who were rearrested at least once. A released prisoner who was rearrested several times or had multi- ple rearrest charges filed against him was counted as only one rearrested person. The same counting rule applied to reconviction and the other recidivism measures. If a released prisoner was rearrested several times, his earliest rearrest was used to calculate his time-to-rearrest. The same counting rule applied to reconviction and recidivism defined as a new prison sentence. If a released prisoner had both in-State and out-of-State rearrests, he was counted as having an out-of-State rearrest regardless of whether the out-of-State rearrest was his earliest rearrest. The same rule applied in cases where the released prisoner had both felony and misdemeanor rearrests, or both sex crime and non-sex crime rearrests. The person was counted as having a felony rearrest or a sex crime rearrest regard- less of temporal sequence. The aim of these rules was to count people, not events. The only tables in the report that do not follow the rule are tables 41 and 42. First re/ease All 15 States had first releases, but they could not be identified in 1 State (Ohio). They could be identified in Michigan, but Michigan data on sentence length did not fit the study's definition. Since sentence length was critical to several statistics calculated 3H Recidivism of Sex Offenders Released from Prison in 1994 50A-90 from data on first releases (for example, percent of sentence served), Michigan was excluded from all tables based on first releases. Ana/ysis of statutory rape /aws The publication's analysis of statutory rape laws in the United States benefit- ted greatly from the report "Sexual Relationships Between Adult Males and Young Teen Girls: Exploring the Legal and Social Responses," by Sharon G. Elstein and Noy Davis, American Bar Association, Center on Children and the Law, October 1997. Samp/ing error In 1994 State prisons in 15 States released 302,309 prisoners altogether. A total of 38,624 were sampled for a recidivism study. Results of that study and information regarding sampling and other methodological details are available in the BJS publication Recidi- vism of Prisoners Released in Y994, NCJ 193427, June 2002. The 302,309 total released consisted of 10,546 released sex offenders plus 291 ,763 released non-sex offenders. The 38,624 sample consisted of 10,546 released sex offenders plus 28,078 released non-sex offenders. The number of sex offenders in the sample was the same as the number it the 302,309 total because all sex offenders released in 1994 in the 15 States were selected for the study, not a sample of them. Because no sampling was used to select sex offenders, numbers and percentages in this report for sex offenders were not subject to sampling error. However, comparisons in the report between sex offenders and non-sex offenders were subject to sampling error because sampling was used to select non-sex offenders. Where sex offenders were compared to all non-sex offenders released in 1994, sampling error was taken into account. All differences discussed were statistically significant at the .O5 level. Not all 10,546 sex offenders in the sample were used in the report. To be in the report, the sex offender had to be male and meet all 4 of the following criteria: 1 . A RAP sheet on the prisoner was found in the State criminal history repository. 2. The released prisoner was alive throughout the entire 3-year followup period. (This requirement resulted in 21 sex offenders' being excluded.) 3. The prisoner's sentence was greater than 1 year (missing sentences were treated as greater than 1 year). 4. The State department of corrections that released the prisoner in 1994 did not designate him as any of the follow- ing release types: release to custody/detainer/warrant, absent without leave, escape, transfer, admin- istrative release, or release on appeal. A total of 9,691 released male sex offenders met the selection criteria. The number of them released in each State is shown in the appendix table. Other methodo/ogica/ details To help the reader understand the percentages provided in the report, both the numerator and denominator were often given. In most cases, the reader could then reproduce the percentages. For example, the report indicates 38.6% (3,741) of the 9,691 sex offenders were returned to prison. Appendix table. Number of sex offenders released from State prisons in 1994 and number selected for this report, by State Sex offenders released from prison in 1994 Selectetl to be in State Total this report Total 10,546 9,691 Arizona 156 122 California 3,503 3,395 Delaware 53 45 Florida 1,053 965 Illinois 775 710 Maryland 277 243 Michigan 477 444 Minnesota 249 23s New Jersey 449 429 New York 799 692 North Carolina 508 441 Ohio 824 606 Oregon 452 408 Texas 708 692 Virginia 263 260 Note: "Total released" includes both male and female sex offenders; "Total selected to be in this report" includes only male sex offentlers. Using the 3,741 and the 9,691 , the reader could exactly reproduce the results. However, the reader should be aware that in a few places, the calcu- lated percentages will differ slightly from the percentages found in the report. This is due to rounding. For example, 43.0%, or 4,163, of the 9,691 sex offenders were rearrested; however, 4,163 / 9,691 is 42.96%, which was rounded to 43.0%. Offense definitions and other methodo- logical details are available in the BJS publication Recidivism of Prisoners Released in 1994, NCJ 193427, June 2002. Recidivism of Sex Offenders Re/eased from Prison in Y994 39 50A-91 40 Recidivism of Sex Offenders Released from Prison in Y994 50A-92 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: ORDINANCE AMENDING CHAPTERS OF THE SANTA ANA MUNICIPAL CODE PERTAINING TO THE KEEPING OF FOWL CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s' Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt an Ordinance amending Chapter 5 of the Santa Ana Municipal Code pertaining to the distance to allow fowl to be kept within thirty (30) feet of any family residence or building designated for human occupancy, the owner's excepted. DISCUSSION Currently, Chapter 5 of the Santa Ana Municipal Code prohibits any person from keeping or maintaining fowl or rabbits within one-hundred (100) feet from any family residence or building designated for human occupancy, the owner's excepted. After researching numerous ordinances in Orange County, it is recommended that the distance restriction be modified to allow fowl to be kept within thirty (30) feet of any family residence or building designated for human occupancy, with the exception of the owner's, as this is a reasonable distance. The following factors were considered in analyzing and determining a reasonable distance recommendation: • While the risk of disease is a concern there is no data that determines the risk of disease or likelihood of humans contracting disease, as it correlates to a specific distance in which fowl is maintained in proximity to humans. • While roosters are very noisy, hens are not. There is no indication that noise complaints will increase as a result of reducing the distance. • The smell of fowl excrement is not stronger than dog excrement. An increase in calls related to odors related to the reduction in distance is not expected. • The distance reduction will be consistent with the majority of Orange County cities as well as the county ordinance related to fowl. 5OB-1 Chapter 5 of the Santa Ana Municipal Code May 21, 2012 Page 2 The proposed ordinance would reduce the distance restriction by amending Santa Ana Municipal Code Chapter 5, sections 5-6 and 5-18, to require that all fowl and rabbits, and all buildings, pens, runs, or other places where such fowl and/or rabbits are kept be located at least thirty (30) feet from any residence or building designated for human occupancy, the owner's excepted. PUBLIC SAFETY COMMITTEE REVIEW On April 24th, 2012, the Santa Ana Public Safety Committee considered whether Chapter 5 of the Santa Ana Municipal Code should be modified to reduce the distance restriction for the keeping of fowl from within one-hundred (100) feet to within thirty (30) feet of any family residence or building designated for human occupancy, with the exception of the owner's property. After public comments and discussion by Committee members and staff, a motion was made and unanimously passed to recommend the City Council consider amending Chapter 5 to reduce the distance restriction to thirty (30) feet. FISCAL IMPACT There is no fiscal impact associated with this action. l Paul M. Walters Chief of Police Police Department 5OB-2 TLJ 5/16/12 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 5 OF THE SANTA ANA MUNICIPAL CODE RELATING TO THE KEEPING OF FOWL 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. Chapter 5 of the Santa Ana Municipal Code prohibits any person from keeping or maintaining fowl or rabbits within at least one- hundred (100) feet from any family residence or building designated for human occupancy, the owner's excepted. B. On April 24th, 2012, the Santa Ana Public Safety Committee recommended that the City Council revise its ordinance to reduce the proximity restriction for the keeping of fowl from one-hundred (100) feet to thirty (30) feet, by a vote of 3:0. C. Based on City staff's consideration and analysis of the following factors, which the City Council of the City of Santa Ana hereby adopts, the City Council has determined that reducing the distance restriction for the keeping of fowls and rabbits from one-hundred (100) feet to thirty (30) feet is reasonable: 1. While the risk of disease is a concern there is no data that determines the risk of disease or likelihood of humans contracting disease as it correlates to a specific distance in which fowl is maintained in proximity to humans. 2. Staff does not anticipate that noise or odor complaints will increase as a result of reducing the distance requirement. 3. The distance reduction will be consistent with the majority of Orange County cities' ordinances and the County of Orange's regulation relating to the keeping of fowl. Ordinance No. NS-XXX Page 1 of 4 5OB-3 D. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Section 5-6 of the Santa Ana Municipal Code is hereby amended, such that it reads as follows: Sec. 5-6. Permit required for large number of fowl, etc. (a) No person shall keep or maintain more than four (4) in number of any fowl (excluding roosters which are not permitted within the City of Santa Ana per section 5-6.5 hereof), rabbit, or any combination thereof, on any premises within the City of Santa Ana unless a special permit has been issued, subject to the rules and regulations provided in this section and the approval of the city department of planning and development services. Permits may be revoked on any grounds which would be sufficient to deny issuance. Any person aggrieved by the action of the animal control officer in denying or revoking a permit may appeal to the city council as provided in Chapter 3 of this Code. (b) Any person keeping or maintaining more than four (4) in number of fowl (excluding roosters which are not permitted within the City of Santa Ana per section 5-6.5 hereof), rabbits, or any combination thereof, on any premises within the city of Santa Ana shall be subject to the following rules and regulations: (1) All buildings, pens, runs, or other places where such fowl and/or rabbits are kept shall be located at least one hundFed (100) thirty (30) feet from any residence, the owner's excepted. (2) The floors of every such building shall be smooth and tight and maintained so as to prevent accumulation of filth or water. (3) The floor area of every such building where the fowl and/or rabbits are given free run shall be of sufficient area so as to allow for two and one-half (2 1/2) square feet per fowl and/or rabbit. (4) All dead animals, manure, refuse, feathers, and other waste matter shall be removed within a reasonable time, not to exceed forty-eight (48) hours, or kept in fly-tight containers until such removal. (5) If runs are provided and the formation of ground therefor is such that it cannot be kept in a clean and sanitary condition at all times Ordinance No. NS-XXX Page 2 of 4 5OB-4 as required by the state or local health department, the floor of said runs or pens shall be constructed of cement, said cement to be laid so as to prevent rodents from entering thereunder. (6) Rabbits must be kept in hutches so constructed as not to allow the urine to pollute the ground, and provided with floors that are removable for the purpose of cleaning and disinfecting; no box hutches will be permitted. Section 3. Section 5-18 of the Santa Ana Municipal Code is hereby amended, such that it reads as follows: Sec. 5-18. Proximity to humans. (a) Livestock. Except as otherwise provided in this chapter, no person who keeps or has upon premises owned, leased, or occupied by him any livestock shall keep such livestock within one hundred (100) feet of any family residence, with the exception of his own. (b) Fowl and rabbits. No person shall keep fowl or rabbits within one huRdFed X1-W thirty (30) feet of any family residence or building designated for human occupancy, with the exception of his own. (c) Enforcement. The director of planning and development services shall not approve for issuance any building permit until he has assured himself that the provisions of this section have been met. 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. Section 5. Neither the adoption of this ordinance nor the repeal hereby of any ordinance shall in any manner affect the prosecution for violations of ordinances, which violations were committed prior to the effective date hereof, nor be construed as affecting any of the provisions of such ordinance relating to the collection of any such license or penalty or the penal provision applicable to any violation thereof. Ordinance No. NS-XXX Page 3 of 4 5OB-5 ADOPTED this day of , 2012 Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Teresa L. Judd 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 that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX Page 4 of 4 5OB-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MAY 21, 2012 TITLE: RESOLUTION AUTHORIZING SUBMISSION OF 2012 GRANT APPLICATION TO AND APPROPRIATION ADJUSTMENT ACCEPTING 2011 GRANT AWARD FROM AQMD-MSRC LOCAL GOVERNMENT MATCH PROGRAM FOR ALTERNATIVE ENERGY PROJECTS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s' Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Adopt resolution authorizing staff to submit 2012 grant application for Air Quality Management District (AQMD) Mobile Source Air Pollution Reduction Review Committee (MSRC) Clean Transportation Local Government Match Program grant funds in the amount of $320,000 for the purchase of nine Medium- and Heavy-Duty Alternative Fuel vehicles and installation of five electric vehicle charging stations on various City-owned properties. 2. Accept 2011 grant award in the amount of $527,500 from AQMD-MSRC Clean Transportation Local Government Match Program comprised of two grant contracts as follow: a. AQMD-MSRC Contract No. ML 11029 Corporate Yard Alternative Energy Fueling Stations (Fixed Stock) in the amount of $262,500 to install a Propane station, upgrade existing Compressed Natural Gas (CNG) stations, and modify the Yard fleet maintenance facility to allow public access to the alternative energy fueling stations as required by the grant. b. AQMD-MSRC Contract No. ML 11041 Alternative Energy Vehicles (Rolling Stock) in the amount of $265,000 to purchase seven Propane-powered heavy-duty trucks and retrofit six Diesel heavy-duty trucks with diesel particulate filters. 3. Authorize staff to execute said grant contracts and approve Appropriation Adjustment recognizing new revenue of $527,500 in Revenue Account 03116002-52040 Air Quality Improvement Fund and appropriating the same in Expenditure Account 03110101 66220 Fleet Services-Air Quality Improvement. 55A-1 AQMD-MSRC Alternative Energy Grants May 21, 2012 Page 2 DISCUSSION In September 2011, the City adopted a 5-Year Alternative Energy Strategic Plan which the Corporate Yard Facilities/Fleet Service Manager presented to the City Council at the meeting of March 19, 2012. The Plan outlines the strategy to move the City's Fleet operations from conventional fuel (diesel and unleaded gasoline) to alternative energy such as Compressed Natural Gas (CNG), electricity, hydrogen, and propane. Currently, only 5% of the City's Fleet is powered by alternative energy. The goal of the Plan is to increase this 5% rate to 75% in five years by gradually retrofitting or replacing fleet equipment. The fueling infrastructure to support this new breed of fleet equipment is also addressed in the Plan which proposes to develop alternative energy fueling stations to be used not only by City fleet operators but also by Santa Ana residents and the community at large. These publicly accessible facilities will be equipped with credit card readers to capture City revenue from the public sale of alternative fuel. Staff requests Council to adopt a resolution (Attachment 1) authorizing the Facilities-Fleet Services-Central Stores Manager to submit the 2012 grant application (Attachment 2) for the AQMD-MSRC Clean Transportation Local Government Match Program in the amount of $320,000 to help fund the FY 2012-2013 Alternative Energy Action Plan. Total cost for 2013 Plan implementation is $775,000. City will initially pay all costs using FY 2012-2013 money in Account Nos. 03110101 Air Quality Improvement-Fleet and 07510101 Equipment Replacement Fund. The 2012 grant award of $320,000 would reimburse Account No. 03110101. Net cost to the City in 2013 would be $455,000. Staff also requests Council to accept the 2011 grant award (Attachment 3) of $527,500 from the AQMD-MSRC Clean Transportation Local Government Match Program to help fund the current year Alternative Energy Action Plan. Total cost for 2012 Plan implementation is $1,055,000. City will initially pay all costs using current year funds in Account Nos. 03110101 Air Quality Improvement-Fleet and 07510101 Equipment Replacement Fund. The 2011 grant award of $527,500 would reimburse Account No. 03110101. Net cost to the City in 2012 would be $527,500. FISCAL IMPACT 1. There is no current year fiscal impact associated with the 2012 grant application. 2. FY 11-12 Alternative Energy Action Plan implementation has a total cost of $1,055,000. The AQMD-MSRC 2011 grant award of $527,500 will be recognized in Revenue Account 03116002-52040 Air Quality Improvement Fund and appropriated in Expenditure Account 03101101-66220 Fleet Services-Air Quality Improvement. City match funds required by the grant are available in Expenditure Account 07510101-66400 Equipment Replacement Fund. 55A-2 AQMD-MSRC Alternative Energy Grants May 21, 2012 Page 3 Francisco Gutierrez Executive Director Finance & Management Services Agency Attachments: 1. Resolution 2. 2012 AQMD-MSRC Grant Application 3. 2011 AQMD-MSRC Grant Award (ML 11029 and ML 11041) 55A-3 55A-4 Attachment 1 Council Resolution No. 2012- 55A-5 Iss05/14/12 RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE APPLICATION FOR PROJECT FUNDING UNDER THE MOBILE SOURCE AIR POLLUTION REDUCTION PROGRAM 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 1990 the State of California enacted AB 2766, authorizing the collection of additional motor vehicle registration fees to implement programs to reduce motor vehicle air pollution; and B. The South Coast Air Quality Management District ("AQMD"), has been authorized to manage the AB 2766 funds for the Southern California area; and C. Thirty percent (30%) of the AB2766 funds is available on a competitive basis through the Mobile Source Air Pollution Reduction Committee ("MSRC"), Clean Transportation Local Government Match Program, to implement and monitor programs to reduce vehicle air pollution; and D. AQMD has issued a call for projects to be funded through MSRC for 1) The purchase of "Near Zero Emission" medium and medium- heavy duty vehicles ; and 2) The development of alternative fuel infrastructure; and E. The City of Santa Ana will utilize the funding to purchase nine medium and heavy duty alternative fuel vehicles and install three Electric Vehicle charging stations which will be accessible to the public; and F. The MSRC program requires that the City provide matching funds necessary for the completion of approved applications. Section 2. The City Council of the City of Santa Ana authorizes the submission of applications for Mobile Source Air Pollution Reduction funding in 55A-6 the amount of $270,000 for purchase of alternative fuel medium and heavy duty vehicles, and in the amount of $50,000 for the installation of alternative fuel infrastructure. Section 3. The City Council appoints the City Manager, or the Executive Director of the Finance and Management Services Agency or his designee, as agent for the City of Santa Ana to conduct all negotiations, execute and submit all documents, including but not limited to applications, agreements, amendments, payment requests and so on, which may be necessary for the completion of the project. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of , 2012. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Laura Sheedy Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: 55A-7 CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of Council City of Santa Ana 55A-8 Attachment 2 2012 AQMD-MSRC Grant Application 55A-9 MAYOR Miguel A. Pulido MAYOR PRO TEM Claudia C. Alvarez COUNCILMEMBERS P. David Benavides Carlos Bustamante Michele C. Martinez Vincent F. Sannlento Sal Tlnajero April 5, 2012 CITY OF SANTA ANA 20 Civic Center Plaza a P.O. Box 1988 Santa Ana, California 92702 Cynthia Ravenstein MSRC Program Administrator Mobile Source Air Pollution Reduction Review Committee 21865 East Copley Drive Diamond Bar, California 91765 Dear Ms. Ravenstein: INTERIM CITY MANAGER Paul Walters INTERIM CITYATTORNEY Joseph Straka CLERK OF THE COUNCIL Maria D. Huizer Please accept the City of Santa Ana's application to the Mobile Source Air Pollution Reduction Review Committee (MRSC) Clean Transportation Funding Local Government Match Program 2012 Edition. Santa Ana is seeking co-funding in the MSRC project categories listed below. 1. Purchase of Heavy-Duty Alternative Fuel Vehicles 2. Installation of Electric Vehicle Charging Stations I will be the contact for technical and contractual matters. My contact information is listed below. Rick Longobart Facilities, Fleet and Central Stores Manager 215 South Center Street Santa Ana, CA 714 926 6332 Telephone 714 647 3599 FAX riongobart@santa-ana.org Please contact me if you needed additional information. I look forward to working with you and your staff on these new projects. ° Sincere ay ? ?4_ Rick Lonq 55A-10 Clean Transportation Funding from the MSRC Mnt)i?n SntuC6 Air Q ?1lulinn Waidtjr.linn M7?,;iew Comrnittpg Local Government Match Program 2012 Edition A Funding Opportunity for Cities & Counties in the South Coast Air Quality Management District PA2012-14 City of Santa Ana April 10, 2012 55A-11 MSRC Clean Transportation FundingTm 2012 Local Government Match Program MEDIUM AND HEAVY-DUTY VEHICLE PURCHASE APPLICATION FORMS PART A - APPLICANT INFORMATION Purchase of Medium and Heavy-Duty Alternative Fuel Vehicles A. Please provide the following applicant information in the space provided. Applicant Name: CITY OF SANTA ANA Address: 215 South Center Street Santa Ana California Contact Person: Rick Longobart Title: Facilities Fleet and Central Stores Manager Telephone Number: 714 926 6332 Fax #: 714 647 3599 E-Mail Address: riongobart0santa-ana org B. Please answer the following questions: YES NO 1. Are you submitting a Joint Application with other Cities/Counties? ? 6 2. If "Yes", are you authorized to act in behalf of all participants? ? ? 3. If "Yes", please provide the names of all other project participants. Please designate if the other participants are public agencies or private entities: PUBLIC PRIVATE a) ? ? b) ? 0 YES NO 4. If you answered "Yes" to questions 1 and 2, above, have you attached a letter from each entity designating a lead agency and ? ? authorizing that agency to act on behalf of the other participants? 55A-12 MSRC Clean Transportation FundingTm 2012 Local Government Match Program PART B - PROJECT DESCRIPTION/STATEMENT OF WORK Purchase of Medium and Heavy-Duty Alternative Fuel Vehicles A. PROJECT DESCRIPTION: Describe the proposed alternative-fuel vehicle purchase(s). For each vehicle to be purchased, please provide the information in the table below, or attach a separate sheet: 1. vehicle make and model; 2. Fuel Type (CNG, LNG, LPG, etc,) ; 3. Engine model, including horsepower; 4. Gross vehicle weight; 5. Estimated vehicle life; 6. Vehicle duty cycle (i.e., trash collection, local delivery, etc.) 7. Annual operation within the geographical jurisdiction of the South Coast Air District (indicate whether mileage or hours) _ Annual Vehicle Make & Engine Model & Gross Vehicle Vehicle Life Vehicle Duty Vehicle Operation Model fuel Type Horsepower Weight (years) Cycle (hours or mileage) Ford E-550 CNG 6.8 Liter 14,500 8 transit 15,000 1 362 HP Ford E-550 CNG 6.8 Liter 14,500 8 transit 15,000 2 362 HP Ford F-550 Propane 6.8 Liter 15,000 10 utility 8,000 3 362 HP Ford F-550 Propane 6.8 Liter 15,000 10 utility 8,000 4 362 HP Ford F-550 Propane 6.8 Liter 15,000 10 utility 8,000 5 362 HP Ford F-550 Propane 6.8 Liter 15,000 10 utility 8,000 6 362 HP Ford F-550 Propane TI-Liter 15,000 10 utility 8,000 7 362 HP _ _ Ford F-550 Propane 6.8 Liter 15,000 10 utility 8,000 8 362 HP 9 Ford F-550 T Propane 6.8 Liter 15,000 10 utility 8,000 362 HP 10. Total Number of Medium-Duty Alt-Fuel Vehicles (GVWR 8,501-14,000 pounds): 0 Total Number of Heavy-Duty Alt-Fuel Vehicles (GVWR >14,000 pounds): 9 2 55A-13 MSRC Clean Transportation FundingT"' 2012 Local Government Match Program PART C - PROJECT BUDGET Purchase of Medium and Heavy-Duty Alternative Fuel Vehicles A. Please provide your Current Unallocated Subvention Fund Balance: $ 0 (all allocated) B. Please provide the following Alternative Fuel Vehicle Purchase Cost by Category Information: PROJECT COSTS BY FUNDING CATEGORY AMOUNT 1. AB 2766 SUBVENTION FUNDS APPLIED TO ALL VEHICLE PURCHASES FROM EXISTING UNALLOCATED BALANCE: $ 0 2. AB 2766 SUBVENTION FUNDS APPLIED TO ALL VEHICLE PURCHASES FROM FUTURE YEAR ALLOCATION (FY 2012/2013): $ 155,000 3. OTHER FUNDS APPLIED TO ALT-FUEL VEHICLE PURCHASES (MOTTO EXCEED $250,000): $ 250.000 4. TOTAL AB 2766 SUBVENTION FUNDS AND OTHER FUNDS APPLIED TO HEAVY-DUTY VEHICLE PURCHASES (SUM OF LINES 1, 2, AND 3): $ 405,000 5. AMOUNT OF MSRC MATCH FUNDING REQUESTED FOR HEAVY DUTY VEHICLE PURCHASE ($1 FOR $1 MATCH UP TO $30,000 PER VEHICLE): $ 270.000 6. ADDITIONAL PROJECT CO-FUNDING FROM OTHER SOURCES: $ 0 7. TOTAL PROJECT COST: $ 675,000 3 55A-14 MSRC Clean Transportation FundingTm 2012 Local Government Match Program PART D - PROJECT IMPLEMENTATION SCHEDULE Purchase of Medium and Heavy-Duty Alternative Fuel Vehicles Please provide, either in the space outlined below or separate attached sheet, a Milestone Schedule for your proposed vehicle purchase project. The schedule should include anticipated start and completion dates for each task, activity, or milestone identified in PART B, "Project Description/Statement of Work". The format requirements for the Project Implementation Schedule are flexible. A template is provided below: Implementation Schedule: Purchase of Nine Alternative-Fuel Vehicles PROJECT MILESTONE START DATE COMPLETION DATE 1. Sign agreement with MSRC and receive authorization to proceed ATP ATP 2. Finalize vehicle options ATP ATP + 1 month 3. Complete bid package and forward to vendors ATP + 1 month ATP + 1 months 4. Receive bids, select vendor and process purchase order ATP + 2 months ATP + 2 months 5. Schedule and conduct staff training ATP + 3 months ATP + 3 months 6. Receive and test vehicles ATP + 3months ATP + 4 months 7. Assign vehicles to service routes ATP + 3 months ATP + 4 months 8. Process all requests for reimbursements ATP + 6 months ATP + 7 months 9. Complete progress report ATP + 6 months ATP + 7 months 10. Complete final report ATP + 8 months ATP + 12 months 55A-15 MSRC Clean Transportation FundingTM 2012 Local Government Match Program ELECTRIC VEHICLE CHARGING INFRASTRUCTURE FORMS PART A - APPLICANT INFORMATION Electric Vehicle Charging Infrastructure A. Please provide the following applicant information in the space provided. Applicant Name: CITY OF SANTA ANA Address: 215 South Center Street Santa Ana California Contact Person: Rick Loneobart Title: Facilities, Fleet and Central Stores Manager Telephone Number: 714 926 6332 Fax #: 714 647 3599 E-Mail Address: riongobart@santa-ana.org B. Please answer the following questions: YES NO 4. Are you submitting a Joint Application with other Cities/Counties? 171 V 5. If "Yes", are you authorized to act in behalf of all participants? ? (73 6. If "Yes", please provide the names of all other project participants. Please designate if the other participants are public agencies or private entities: PUBLIC PRIVATE C) ? ? d) 173 173 YES NO 5. If you answered "Yes" to questions land 2, above, have you attached a letter from each entity designating a lead agency and Q ? authorizing that agency to act on behalf of the other participants? 5 55A-16 MSRC Clean Transportation Funding TM 2012 Local Government Match Program PART B - PROJECT DESCRIPTION/STATEMENT OF WORK Electric Vehicle Charging Infrastructure A. PROJECT DESCRIPTION: Please describe the proposed electric vehicle charging infrastructure project, including: a) technical description of the proposed hardware (i.e., charger types, charger unit model, manufacturer, charging level or rated power; etc.); b) site locations for charging infrastructure installation; and c) level of public accessibility (i.e., available to all users, accessible to city/county fleet vehicles only, etc.). The City of Santa Ana proposes to install five electric vehicle charging stations. The charging stations will be located at the sites listed below. 1. Santa Ana Corporate Yard 2. Santa Ana City Hall 3. Civic Center Complex All sites are City-owned properties. Each location will have charging infrastructure that is publicly accessible to all users on a twenty-four hour basis. initially, there will be no cost for recharging. The Corporate Yard location will additionally have chargers that are available for staff use. The hardware will be manufactured by ClipperCreek, Inc. The charging units will CS-40 Series with Access Control, Online Managed Account and Point of Sale options. Mounting Bases will be Duel Mount Pedestals equipped with two units each. One wall mounted unit for placement in the Corporate Yard shop area will also be purchased. Comparable equipment may be substituted based on bid results and availability. The chargers are Level 2 and UL Listed. B. STATEMENT OF WORK: Please provide a Statement of Work for the proposed electric vehicle charging infrastructure project. Include all Project Tasks as they relate to project design, development, and implementation. Each Task should be described with sufficient detail to adequately convey the work to be performed. The City of Santa Ana will have full responsibility for the development and implementation of the electric vehicle charging infrastructure project. The City will contract for outside services from a qualified firm for preliminary engineering. A formal bid package will be developed and forwarded to three highly qualified providers. The City will review the bid responses and selected the most qualified vendor, taking budget into consideration. The vendor will provide equipment, permitting, installation, technical assistance, service maintenance and start-up training. All aspects of the project will conform to all local planning, building, and fire department regulations including the National Fire Protection Code (NFPA-58 & Title 8). The selected vendor(s) will be licensed California contractors, EVSE providers, and well versed in the planning, construction, and the service maintenance required for implementing and maintaining electric vehicle charging infrastructure. A sequential list of tasks is detailed the Project Implementation Schedule on page 9 of this application. 55A-17 MSRG Clean Transportation FundingTM 2012 Local Government Match Program PART C - PROJECT BUDGET Electric Vehicle Charging Infrastructure A. Please provide your Current Unallocated Subvention Fund Balance: $ 0 fall allocated) B. Please provide the following Electric Vehicle Charging Infrastructure Project Cost by Category Information: PROJECT COSTS BY FUNDING CATEGORY AMOUNT 1. AB 2766 SUBVENTION FUNDS APPLIED TO INFRASTRUCTURE PROJECT FROM EXISTING UNALLOCATED BALANCE: $ 0 2. AB 2766 SUBVENTION FUNDS APPLIED TO EV INFRASTRUCTURE PROJECT FROM NEXT YEAR ALLOCATION (FY 2012/2013): $ 0 3. OTHER FUNDS APPLIED TO EV INFRASTRUCTURE PROJECT (NOT TO EXCEED $250,000): $ 50,000 4. TOTAL AB 2766 SUBVENTION FUNDS AND OTHER FUNDS APPLIED TO EV INFRASTRUCTURE PROJECT (SUM OF LINES 1, 2, and 3): $ 50.000 5. AMOUNT OF MSRC MATCH FUNDING REQUESTED (MAXIMUM AMOUNT IS EQUAL TO LINE 4 (DOLLAR FOR DOLLAR MATCH OF LINE 4 NOTTO EXCEED $500,000): $ 50,000 6. ADDITIONAL PROJECT CO-FUNDING FROM OTHER SOURCES: $ 0 7. TOTAL PROJECT COST: $ 100.000 7 55A-18 MSRC Clean Transportation Funding TM 2012 Local Government Match Program PART C - PROJECT BUDGET CONTINUED Electric Vehicle Charging Infrastructure A. As applicable, please list all EV infrastructure costs by Cost Element. Please provide as much detail as practicable when specifying project costs. For example, please provide labor categories, hourly rates, number of hours, etc. when defining labor costs. CAPITAL EQUIPMENT COSTS (ELECTRIC VEHICLE CHARGR HARDWARE, SITE MODIFICATIONS, ETC.): 1. 4 Duel Mount Pedestals with 2 charging units each 2. 1 Wall Mount with 1 charging unit 3. Site Improvements 4. Signage TOTAL CAPITAL EQUIPMENT COSTS: DIRECT LABOR COSTS: 1. 40 LABOR HOURS x 120 $/HOUR = 2. 20 LABOR HOURS x 60 $/HOUR = 3. LABOR HOURS x $/HOUR = 4. LABOR HOURS x $/HOUR = TOTAL DIRECT LABOR COSTS: OTHER DIRECT COSTS, INCLUDING SUBCONTRACTORS: 1. Preliminarv Enaineerina and Proiect Desien 2. Construction Oversight: Site Improvements 3. Installation 4. Fees and Permits _ 5. Construction Equipment Rental 6. Contingency TOTAL OTHER DIRECT COSTS: TOTAL PROJECT COST: x $ 40,000 $ $ 25,000 $ 3,000 $ 76,000 $ 4,800 $ 1,200 $ 6,000 $ 8,000 $ 2,000 $ 6,000 $ 1,000 $ 600 $ 400 $ 18,000 $ 100.000 55A-19 MSRC Clean Transportation Funding" 2012 Local Government Match Program PART D - PROJECT IMPLEMENTATION SCHEDULE Electric Vehicle Charging Infrastructure Please provide, either in the space outlined below or separate attached sheet, a Milestone Schedule for your proposed Match Program project. The schedule should include anticipated start and completion dates for each task, activity, or milestone identified in PART B, "Project Description/Statement of Work". The format requirements for the Project Implementation Schedule are flexible. A template is provided below: Implementation Schedule: Electric Vehicle Charging Infrastructure PROJECT MILESTONE START DATE 1. Receive Executed Contract from AQMD ATP 2. Award Consultant Contract for Preliminary Engineering ATP + 1 and Project Design 3. Complete RFP and Solicit Bids ATP + 3 4. Select Contractor(s) and Award Contract(s) ATP + 6 5. Order Major Long Lead Time Equipment ATP + 9 6. Submit Drawings/Specs for Permits ATP + 9 7. Obtain Permits for Site Improvements ATP + 10 8. Start Construction ATP + 13 9. Complete Installation ATP + 13 10. Conduct Training ATP + 15 11. Implement Media and Community Outreach ATP + 15 12. Complete Reporting ATP + 16 9 COMPLETION DATE ATP ATP+3 ATP + 6 ATP+8 ATP + 10 ATP+10 ATP+12 ATP+14 ATP + 14 ATP + 15 ATP + 16 ATP + 18 55A-20 Attachment 3 2011 AQM D-MSRC Grant Award 1. ML 11029 2. ML 11040 55A-21 Clean Transportation -? Funding from the MSRC Mobile Source Air Pollution Reduction Review CortrNttee Mr. Rick Longobart City of Santa Ana 215 South Center Street Santa Ana, CA 92703 Dear Mr. Longobart: 21865 Copley Drive Diamond Bar CA 91765 909.396.3269 fax 909.396.3682 November 15, 2011 Please find attached two original copies of Contract Number ML11029 for signatures. This contract is to Install LPG and Upgrade CNG Stations. Please return both copies to me at: Rachel Valenzuela South Coast AQMD/MSRC 21865 Copley Drive Diamond Bar, CA 91765 In addition, please provide documentation designating appropriate signatory authority on behalf of the agency, corporation, partnership, LLC, etc., and attest that said signature is empowered to contract on behalf of contractor in both an operational and financial capacity and to legally bind contractor. Please sign the signature page provided in the contract. If your agency's policy compels you to use a separate signature page, make sure to include the MSRC/AQMD contract number on the additional page. Once the contract has been executed, I will return to you a copy for your files. If you have any questions, please don't hesitate to call me at (909) 396-3101. Sincerely, Attachments Rachel B. Valenzuela MSRC Contracts Administration rachelCc#cleantransoortationfunding.org MEMBER ORGANIZATIONS: California Air Resources Board - Los Angeles County Metropolitan Transportation Authority - Orange County Transportation Authority - Riverside County Transportation Commission - San Bernardino Associated Governments - South Coast Air Quality Management District - Southern California Association of Governments - Regional Ridesharing Agency 55A-22 South Coast Ciean Transportation Contract No. ML11029 Air Quality Management District u^,d'a9,from .'ha MSRC LOCAL GOVERNMENT MATCH PROGRAM CONTRACT 1. PARTIES - The parties to this Contract are the South Coast Air Quality Management District (hereinafter referred to as "AQMD") whose address is 21865 Copley Drive, Diamond Bar, California 91765-4178, and the City of Santa Ana (hereinafter referred to as "CONTRACTOR") whose address is 20 Civic Center Plaza, Santa Ana, California 92702. 2. RECITALS A. AQMD is the local agency with primary responsibility for regulating stationary source air pollution within the geographical boundaries of the South Coast Air Quality Management District in the State of California (State). AQMD is authorized under State Health & Safety Code Section 44225 (Assembly Bill (AB) 2766) to levy a fee on motor vehicles for the purpose of reducing air pollution from such vehicles and to implement the California Clean Air Act. B. Under AB 2766 the AQMD'S Governing Board has authorized the imposition of the statutorily set motor vehicle fee. By taking such action the State's Department of Motor Vehicles (DMV) is required to collect such fee and remit it periodically to AQMD. C. AB 2766 further mandates that thirty (30) percent of such vehicle registration fees be placed by AQMD into a separate account for the sole purpose of implementing and monitoring programs to reduce air pollution from motor vehicles. D. AB 2766 creates a regional Mobile Source Air Pollution Reduction Review Committee (MSRC) to develop a work program to fund projects from the separate account. Pursuant to approval of the work program by AQMD'S Governing Board, AQMD Board authorized a contract with CONTRACTOR for services described in Attachment 1 - Statement of Work, expressly incorporated herein by this reference and made a part hereof of this Contract. E. CONTRACTOR has met the requirements for receipt of AB 2766 Discretionary Funds as set forth in CONTRACTOR's Local Government Match Program Application dated April 1, 2011. 3. DMV FEES - CONTRACTOR acknowledges that AQMD cannot guarantee the amount of fees to be collected under AB 2766 will be sufficient to fund this Contract. CONTRACTOR further acknowledges that AQMD'S receipt of funds is contingent on the timely remittance by State's DMV. AQMD assumes no responsibility for the collection and remittance of motor vehicle registration fees by DMV to AQMD in a timely manner, 4. AUDIT - Additionally, CONTRACTOR shall, at least once every two years, or within two years of the termination of the Contract if the term is less than two years, be subject to an audit by AQMD or its authorized representative to determine if the revenues received by CONTRACTOR were spent for the reduction of pollution from Motor Vehicles pursuant to the Clean Air Act of 1988, AQMD shall coordinate such audit through CONTRACTOR'S audit staff. If an amount is found to be inappropriately expended, AQMD may withhold revenue from CONTRACTOR in the amount equal to the amount which was inappropriately expended. Such withholding shall not be construed as AQMD'S sole remedy and shall not relieve CONTRACTOR of its obligation to perform under the terms of this Contract. 55A-23 Contract No. ML11029 5. REPORTING - CONTRACTOR shall submit reports to AQMD as outlined in Attachment 1 - Statement of Work. AQMD reserves the right to review, comment, and request changes to any report produced as a result of this Contract. TERM - The term of this Contract is Ninety (90) months from the date of execution by both parties, unless terminated earlier as provided for in Clause 7 below entitled Termination, extended by amendment of this Contract in writing, or unless all work is completed and a final report is submitted and approved by AQMD prior to the termination date. No work shall commence prior to the Contract start date, except at CONTRACTOR'S cost and risk, and no charges are authorized until this Contract is fully executed. Upon written request and with adequate justification from CONTRACTOR, the MSRC Contracts Administrator may extend the Contract up to an additional twelve months at no additional cost. Term extensions greater than twelve months must be reviewed and approved by the MSRC. TERMINATION - In the event any party fails to comply with any term or condition of this Contract, or fails to provide the services in the manner agreed upon by the parties, including, but not limited to, the requirements of Attachment 1 - Statement of Work, this shall constitute a material breach of the Contract. The nonbreaching party shall have the sole and exclusive option either to notify the breaching party that it must cure this breach within fifteen (15) days or provide written notification of its intention to terminate this Contract with thirty (30) day's written notice. Notification shall be provided in the manner set forth in Clause 15 below, entitled - Notices. Termination shall not be the exclusive remedy of the nonbreaching party. The nonbreaching party reserves the right to seek any and all remedies provided by law. AQMD will reimburse CONTRACTOR for actual costs incurred (not to exceed the total Contract value), including all noncancellable commitments incurred in performance of this Contract through the effective date of termination for any reason other than breach. 8. EARLY TERMINATION - This Contract may be terminated early due to any of the following circumstances: A. The vehicles or equipment become inoperable through mechanical failure of components or systems directly related to the alternative fuel technology being utilized and such failure is not caused by CONTRACTOR'S negligence, misuse, or malfeasance. B. The fueling station becomes inoperable, and is either not technically able to be repaired, or is too costly to repair, and such failure is not caused by CONTRACTOR's negligence, misuse, or malfeasance. INSURANCE - CONTRACTOR represents that it is permissibly self-insured and will maintain such self- insurance in accordance with applicable provisions of California law throughout the term of this Contract. CONTRACTOR shall provide evidence of sufficient coverage during the term of this Contract and any extensions thereof that meet or exceed the minimum requirements set forth by the South Coast AQMD below. CONTRACTOR shall furnish certificate of self-insurance to: South Coast Air Quality Management District, Attn: Risk Management Office. The AQMD Contract Number shall be included on the face of the certificate. If CONTRACTOR fails to maintain the required insurance coverage, AQMD reserves the right to terminate the Contract or purchase such additional insurance and bill CONTRACTOR or deduct the cost thereof from any payments owed to CONTRACTOR. Minimum insurance coverages are as follows: A. Worker's compensation insurance in accordance with either California or other state's applicable statutory requirements. 2 55A-24 Contract No. ML11029 B. General Liability insurance with a limit of at least $1,000,000 per occurrence, and $2,000,000 in general aggregate. C. Automobile Liability insurance with limits of at least $100,000 per person and $300,000 per accident for bodily injuries and $50,000 in property damage, or $1,000,000 combined single limit for bodily injury or property damage. 10. INDEMNIFICATION - CONTRACTOR agrees to hold harmless, defend, and indemnify, AQMD, its officers, employees, agents, representatives, and successors-in-interest against any and all loss, damage, cost, or expenses which AQMD, its officers, employees, agents, representatives, and successors-in-interest may incur or be required to pay by reason of any injury or property damage caused or incurred by CONTRACTOR, its employees, subcontractors, or agents in the performance of this Contract. 11. PAYMENT A. AQMD shall pay CONTRACTOR a Firm Fixed Price of Two Hundred Sixty Two Thousand Five Hundred Dollars ($262,500) upon completion of the project on a reimbursement basis. Any funds not expended upon early contract termination or contract completion shall revert to the AB 2766 Discretionary Fund. Payment of charges shall be made by AQMD to CONTRACTOR within thirty (30) days after approval by AQMD of an itemized invoice prepared and furnished by CONTRACTOR. B. An invoice submitted to AQMD for payment must be prepared in duplicate, on company letterhead, and fist AQMD'S contract number, period covered by invoice, and CONTRACTOR'S social security number or Employer Identification Number and submitted to: South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 Attn: Cynthia Ravenstein, MSRC Contract Administrator C. No funds shall be paid out to CONTRACTOR pursuant to this Contract, until the project described in Attachments 1 and 2 is completed and proof of completion is provided to AQMD. If the project described in Attachments 1 and 2 is not completed and satisfactory proof of completion is not provided to AQMD, no monies shall be due and payable to CONTRACTOR. Proof of completion shall include a Final Report detailing the project goals and accomplishments. D. Additional AB 2766 Discretionary Match Funds will not be available to fund project cost overruns. Any project cost overruns must be funded from other than AB 2766 Discretionary Funds. E. The Firm Fixed Price amount of this Contract shall not exceed the total AB 2766 Funds applied to the project described in Attachments 1, 2, and 3 of this Contract. F. If, at the completion of the Project described in Attachment 1, the vehicle expenditures and/or infrastructure expenditures are less than the Total Cost amount(s) contained in Attachment 2, the actual amount of AB 2766 Discretionary Funds reimbursed to CONTRACTOR shall be adjusted on a prorated basis as described in Attachment 2. G. CONTRACTOR must submit final invoice no later than ninety (90) days after the termination date of this Contract or invoice may not be paid. 12. MOBILE SOURCE EMISSION REDUCTION CREDITS (MSERCs) A. The MSRC has adopted a policy that no MSERCs resulting from AB 2766 Discretionary Funds may be generated and/or sold. 55A-25 Contract No. ML11029 B. CONTRACTOR has the opportunity to generate MSERCs as a by-product of the project if a portion of the air quality benefits attributable to the project resulted from other funding sources. These MSERCs, which are issued by AQMD, are based upon the quantified vehicle miles traveled (VMT) by project vehicles or other activity data as appropriate. Therefore, a portion of prospective MSERCs, generated as a result of AB 2766 Funds, must be retired. The portion of prospective credits funded by the AB 2766 program, and which are subject to retirement, shall be referred to as "AB 2766-MSERCs." C. The determination of AB 2766-MSERC's is to be prorated based upon the AB 2766 program's contribution to the cost associated with the air quality benefits. In the case where AB 2766 Discretionary Funds are used to pay for the full differential cost of a new alternative fuel vehicle or for the retrofitting or repowering of an existing vehicle, all MSERCs attributable to AB 2766 Discretionary Funds must be retired. The determination of AB 2766-MSERCs for infrastructure and other ancillary items is to be prorated based upon the AB 2766 program's contribution to the associated air quality benefits. Determination of the project's overall cost will be on a case-by-case basis at the time an MSERC application is submitted. AQMD staff, at the time an MSERC application is submitted, will calculate total MSERCs and retire the AB 2766-MSERCs. CONTRACTOR would then receive the balance of the MSERCs not associated with AB 2766 funding. 13. DISPLAY OF MSRC LOGO - CONTRACTOR agrees to permanently display one MSRC decal in a prominent location on each vehicle purchased pursuant to this Contract. CONTRACTOR also agrees to permanently display one MSRC decal in a prominent location on each fueling or charging station constructed or upgraded pursuant to this Contract. Decals will be provided by MSRC upon notification that subject fueling station equipment and/or vehicles are placed into service. Decals are approximately twelve (12) inches in height and eighteen (18) inches in width (Note: a smaller decal may be provided if CONTRACTOR demonstrates that application of the standard decal is not feasible). CONTRACTOR shall maintain decal for life of vehicle or equipment subject to this Contract. Should any decal become damaged, faded, or otherwise unreadable, CONTRACTOR shall request replacement decal from MSRC and apply new decal in the same or other prominent location. MSRC shall not be responsible for damage to paint or other vehicle surfaces arising from application or removal of decals. In addition, all promotional materials related to the project, including, but not limited to, press kits, brochures and signs shall include the MSRC logo. Press releases shall acknowledge MSRC financial support for the project. 14. REFUELING STATION OPERATIONAL AVAILABILITY - CONTRACTOR is obligated to comply with the alternative-fuel refueling infrastructure Operational Availability requirements set forth as follows: A. CONTRACTOR commits to ensuring fast-fill refueling stations remain operational and accessible to public and/or fleets for a period of no less than five (5) years from the date the station begins dispensing fuel in either its initial or expanded capacity. Should CONTRACTOR desire to deviate from this obligation, for reasons other than those stated in Clause 8.B, above, CONTRACTOR shall reimburse AQMD for a prorated share of the funds provided for fueling facilities as indicated in the table below: 5 year Operational Availability Obligation Termination Occurs Percentage of MSRC Funds to be Reimbursed Within Year 1 100% Between Years 1-2 80% Between Years 2-3 60% Between Years 3-4 40% Between Years 4-5 20% After Year 5 0% 55A-26 Contract No. ML11029 15. NOTICES - Any notices from either party to the other shall be given in writing to the attention of the persons listed below or to other such addresses or addressees as may hereafter be designated in writing for notices by either party to the other. A notice shall be deemed received when delivered or three days after deposit in the U.S. Mail, postage prepaid, whichever is earlier. AQMD: South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 Attn: Cynthia Ravenstein, MSRC Contract Administrator CONTRACTOR: City of Santa Ana 215 South Center Street Santa Ana, CA 92703 Attn: Rick Longobart 16. EMPLOYEES OF CONTRACTOR A. CONTRACTOR warrants that it will employ no subcontractor without written approval from AQMD. CONTRACTOR shall be responsible for the cost of regular pay to its employees, as well as cost of vacation, vacation replacements, sick leave, severance pay and pay for legal holidays. B. CONTRACTOR shall also pay all federal and state payroll taxes for its employees and shall maintain workers' compensation and liability insurance for each of its employees, C. CONTRACTOR, its officers, employees, agents, or representatives shall in no sense be considered employees or agents of AQMD, nor shall CONTRACTOR, its officers, employees, agents, or representatives be entitled to or eligible to participate in any benefits, privileges, or plans, given or extended by AQMD to its employees. D. CONTRACTOR warrants that it has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Contract. CONTRACTOR further represents that in performance of this Contract, no person having any such interest shall be employed by CONTRACTOR or any subcontractor. 17. NON-DISCRIMINATION - In the performance of this Contract, CONTRACTOR shall not discriminate in recruiting, hiring, promotion, demotion, or termination practices on the basis of race, religious creed, color, national origin, ancestry, sex, age, or physical handicap and shall comply with the provisions of the California Fair Employment & Housing Act (Government Code Section 12900, of se q.), the Federal Civil Rights Act of 1964 (P.L. 88-352) and all amendments thereto, Executive Order No, 11246 (30 Federal Register 12319), and all administrative rules and regulations issued pursuant to said Acts and Order. CONTRACTOR shall likewise require each subcontractor to comply with this clause and shall include in each such subcontract language similar to this clause. 18. AQMD LIEN RIGHTS - CONTRACTOR hereby grants AQMD a security interest in any and all equipment or vehicles purchased in whole or in part by funding provided by AQMD pursuant to this Contract. CONTRACTOR acknowledges and agrees that AQMD shall have all lien rights as a secured creditor on any and all equipment and/or vehicles purchased in whole or in part by the CONTRACTOR, under this Contract or any amendments thereto. The AQMD shall have lien rights in effect until the CONTRACTOR satisfies all 55A-27 Contract No. ML11029 terms under the Contract, including but not limited to, the use and reporting requirements. Accordingly, CONTRACTOR further agrees that AQMD is authorized to file a UCC filing statement or similar security instrument to secure its interests in the equipment and/or vehicles that are the subject of the Contract. In the event CONTRACTOR files for bankruptcy protection, CONTRACTOR shall notify AQMD within 10 business days of such filing. 19. COMPLIANCE WITH APPLICABLE LAWS - CONTRACTOR agrees to comply with all federal, state, and local laws, ordinances, codes and regulations and orders of public authorities in the performance of this Contract and to ensure that the provisions of this clause are included in all subcontracts. 20. ASSIGNMENT - The rights granted hereby may not be assigned, sold, licensed, or otherwise transferred by either party without the prior written consent of the other, and any attempt by either party to do so shall be void upon inception. 21. NON-EFFECT OF WAIVER - CONTRACTOR'S or AQMD'S failure to insist upon the performance of any or all of the terms, covenants, or conditions of this Contract, or failure to exercise any rights or remedies hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants, or conditions, or of the future exercise of such rights or remedies, unless otherwise provided for herein. 22. ATTORNEYS' FEES - In the event any action (including arbitration) is filed in connection with the enforcement or interpretation of this Contract, each party in said action shall pay its own attorneys' fees and costs. 23. FORCE MAJEURE - Neither AQMD nor CONTRACTOR shall be liable or deemed to be in default for any delay or failure in performance under this Contract or interruption of services resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, or any similar cause beyond the reasonable control of AQMD or CONTRACTOR. 24. SEVERABILITY - In the event that any one or more of the provisions contained in this Contract shall for any reason be held to be unenforceable in any respect by a court of competent jurisdiction, such holding shall not affect any other provisions of this Contract, and the Contract shall then be construed as if such unenforceable provisions are not a part hereof. 25. HEADINGS - Headings on the clauses of this Contract are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Contract. 26. DUPLICATE EXECUTION - This Contract is executed in duplicate. Each signed copy shall have the force and effect of an original. 27. GOVERNING LAW - This Contract shall be construed and interpreted and the legal relations created thereby shall be determined in accordance with the laws of the State of California. Venue for resolution of any dispute shall be Los Angeles County, California. 55A-28 Contract No, ML11029 28. PRECONTRACT COSTS - Any costs incurred by CONTRACTOR prior to CONTRACTOR receipt of a fully executed Contract shall be incurred solely at the risk of the CONTRACTOR. In the event that a formal Contract is not executed, neither the MSRC nor the AQMD shall be liable for any amounts expended in anticipation of a formal Contract. If a formal Contract does result, precontract cost expenditures authorized by the Contract will be reimbursed in accordance with the cost schedule and payment provision of the Contract. 29. PREVAILING WAGES - CONTRACTOR is alerted to the prevailing wage requirements of California Labor Code section 1770 et seq. Copies of the prevailing rate of per diem wages are on file at the AQMD's headquarters, of which shall be made available to any interested party on request. Notwithstanding the preceding sentence, CONTRACTOR shall be responsible for determining the applicability of the provisions of California Labor Code and complying with the same, including, without limitation, obtaining from the Director of the Department of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work, making the same available to any interested party upon request, paying any applicable prevailing rates, posting copies thereof at the job site and flowing all applicable prevailing wage rate requirements to its subcontractors. CONTRACTOR shall indemnify, defend and hold harmless the South Coast Air Quality Management District against any and all claims, demands, damages, defense costs or liabilities based on failure to adhere to the above referenced statutes. 30. CHANGE TERMS - Changes to any part of this Contract must be requested in writing by CONTRACTOR, submitted to AQMD and approved by MSRC in accordance with MSRC policies and procedures. CONTRACTOR must make such request a minimum of 90 days prior to desired effective date of change. All modifications to this Contract shall be in writing and signed by both parties. 31. ENTIRE CONTRACT - This Contract represents the entire agreement between the parties hereto related to CONTRACTOR providing services to AQMD and there are no understandings, representations, or warranties of any kind except as expressly set forth herein. No waiver, alteration, or modification of any of the provisions herein shall be binding on any party unless in writing and signed by the party against whom enforcement of such waiver, alteration, or modification is sought. The Statement of Work - Attachment 1, The Payment Schedule - Attachment 2, and Supporting Documentation - Attachment 3, are incorporated by reference herein and made a part hereof. 32. AUTHORITY - The signator hereto represents and warrants that he or she is authorized and empowered and has the legal capacity to execute this Contract and to legally bind CONTRACTOR both in an operational and financial capacity and that the requirements and obligations under this Contract are legally enforceable and binding on CONTRACTOR. [The Remainder of this Page is Intentionally Left Blank] 55A-29 Contract No. ML11029 IN WITNESS WHEREOF, the parties to this Contract have caused this Contract to be duly executed on their behalf by their authorized representatives. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT CITY OF SANTA ANA By: By:_ Dr. William A. Burke, Chairman, Governing Board Name: Title: Date: Date: ATTEST: Saundra McDaniel, Clerk of the Board By: APPROVED AS TO FORM: Kurt R. Wiese, General Counsel By: 11MSRC06Loca1GovtMatch Updated 22 October 2008 55A-30 Attachment 1 Statement of Work City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11029 Project Description At their corporate yard located at 215 South Center Street, Santa Ana, California, 92703, CONTRACTOR shall install a new liquefied petroleum gas (LPG) station, expand their existing compressed natural gas (CNG) station, and modify their vehicle maintenance facility to accommodate gaseous-fueled vehicles, as specified in Attachment 3, Supporting Documents, Alternative Fuel Infrastructure Specifications. Statement of Work LPG Fuelinq Station CONTRACTOR shall install an LPG fueling station as specified in Attachment 3.1.A., Alternative Fuel Infrastructure Specifications - LPG Station. CONTRACTOR shall be reimbursed according to Attachment 2 - Payment Schedule. CNG Fueling Station CONTRACTOR shall modify their existing CNG fueling station as specified in Attachment 3.1.B., Alternative Fuel Infrastructure Specifications - CNG Station. CONTRACTOR shall be reimbursed according to Attachment 2 - Payment Schedule. Maintenance Facility Modifications CONTRACTOR shall- improve their vehicle maintenance facility as specified in Attachment 3.1.C., Alternative Fuel Infrastructure Specifications - Maintenance Facility Modifications. CONTRACTOR shall be reimbursed according to Attachment 2 - Payment Schedule. Promotion CONTRACTOR shall prepare and submit a proposed Public Outreach Plan to promote the MSRC's co-funding of the infrastructure improvements. Acceptable outreach may include, but is not limited to, notices in CONTRACTOR mailings to residents, newspaper notices, flyers, and information items at CONTRACTOR Board meetings and community events. The Public Outreach Plan shall automatically be deemed approved 30 days following receipt by AQMD staff, unless AQMD staff notify CONTRACTOR in writing of a Public Outreach Plan deficiency. CONTRACTOR shall implement the approved Public Outreach Plan in accordance with the Project Schedule below. 9 55A-31 Attachment 1 Statement of Work - continued City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11029 Project Schedule (based on date of Contract execution) Task Completion Submit Public Outreach Plan Month 7 Enter contract(s) for LPG station installation, CNG station upgrade, and facility modifications Month 12 Complete installations and enter/return to service Month 26 Implement Public Outreach Plan Month 28 Quarterly reports Months 4, 7, 10, 13, 16, 19, 21 and 24 Final Report Month 30 Hardware: Fueling station equipment; ventilation system upgrades, gas detection and alarm system, electric heaters, explosion-proof lighting, and fire-rated doors. Reports Quarterly Reports: Until all subject facilities enter/return to service, CONTRACTOR shall provide quarterly progress reports that summarize the project results to date including, but not limited to: tasks completed, issues or problems encountered, resolutions implemented, and progress to date. Progress reports that do not comply will be returned to the CONTRACTOR as inadequate. Final Report: A Final Report shall be submitted by the CONTRACTOR in the format provided by AQMD staff. Report shall include, at a minimum: a) an executive summary; and b) a detailed discussion of the results and conclusions at this project. CONTRACTOR will identify any barriers encountered and solutions developed to overcome the barriers, and impact of project on future alternative fuel projects. 10 55A-32 Attachment 2 Payment Schedule City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11029 Cost Breakdown Maximum AB2766 Purchase Discretionary Other Funds Total Cost Category Funds payable Applied under this Contract Install LPG station $75,000 $75,000 $150,000 Expand CNG $120,000 $120,000 $240,000 station Modify maintenance $67,500 $67,500 $135,000 facility Totals $262,500 $262,500 $525,000 Reimbursement will be made: • only after verification of new station, station upgrade, or facility upgrade completion. At a minimum, acceptable verification shall consist of: o Representative photos of completed work; o a report signed by a responsible official certifying that the work has been completed as described in Attachments 1 and 3; and o invoice(s) from subcontractor(s) performing the installations, if any. If, at the completion of the Project, the expenditures are less than the Total Cost amount above, the actual amount of AB 2766 Discretionary Funds reimbursed to CONTRACTOR shall be adjusted on a prorated basis, so that the amount reimbursed to CONTRACTOR shall not exceed the actual amount of other funds applied. 11 55A-33 Attachment 3 Supporting Documentation City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11029 The supporting documents attached hereto as Attachment 3, represent obligations of the CONTRACTOR. Nothing herein shall be construed as an assumption of duties or obligations by the AQMD or granting any rights to third parties against the AQMD. 1. Alternative Fuel Infrastructure Specifications 2. Proof of Self-Insurance 12 55A-34 Attachment 3 Supporting Documentation City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11029 Alternative Fuel Infrastructure Specifications All installations and upgrades shall be made at CONTRACTOR's corporate yard located at 215 South Center Street, Santa Ana, California, 92703. A. LPG Fueling Station The new LPG fueling station to be installed pursuant to this contract is described as follows: i. At least one dispenser with two (2) hoses ii. Storage capacity of at least 2,000 gallons iii. Card reader accepting major credit cards for payment iv. Station shall be publicly accessible 24 hours per day B. CNG Fueling Station The expanded CNG fueling station to be installed pursuant to this contract is described as follows: i. Modify existing fast-fill fueling island access to make publicly accessible ii. Add card reader accepting major credit cards for payment iii. Move existing seven time-fill posts, and add three more time-fill posts for a total of ten C. Maintenance Facility Modifications At a minimum, the following modifications shall be made at the existing vehicle maintenance facility: i. Install upgraded ventilation system; ii. Install gas detection and alarm system; iii. Install electric heating; iv. Install electrical control panel which can shut off power to natural gas vehicle repair area; and v. Replace existing lighting with explosion proof lighting; vi. Install fire-rated, self-closing doors; and vii. Upgrade ceiling wiring and fittings. 13 55A-35 MAYOR Miguel A. I'ulido MAYOR PRO TEM Claudia C. Alvarez C04JNCIL Mi:MBERS P. David Benavides Carlos Dustamante Michele Martinez Vincent F. Slrmiento sal Tinaiero October 26, 2011 CITY OF SANTA ANA 20 CIVIC CENTER PLAZA • P,O. BOX 1988 SANTA ANA, CALIFORNIA 92702 South Coast Air Quality Management District Mobile Source Air Pollution Reduction Review Committee (MSRC) 21865 Copley Drive Diamond Bar, CA 91765 To whom it may concern: CITY MANAGER David N. Ream CITY ATTORNEY Joseph W. Fletcher CLERK OF THE COUNCIL Maria D. Huizar The City of Santa Ana is a member of Big Independent Cities Excess Pool (BICEP). Current reinsurance and excess municipal liability is insured from $2M to $52M and includes auto liability coverage. The City self insures and funds the first $1M of claim payments. BICEP covers the layer from $1M to $2M. The City is permissively self-insured for workers' compensation and self-administers this program as well. The City, through BICEP, purchases excess statutory coverage through the California State Association of Counties - Excess Insurance Authority (CSAC-EIA) above $750K. The City funds claim payments under $750K. The City is also a member of the Public Entity Property Insurance Program (PEPIP). At present, membership is over 6,400 entities, Current property insurance is $113 per occurrence for "All Risk" coverage and flood coverage is $82.5M or $50M based on the flood zone where our insured property is located. If you need further information please contact me at (714) 647-5470. Sincerely, Edward S. Raya Assistant Personnel Director cc: William Navaja 14 55A-36 City of Santa Ana Certificate of Self-Insurance City of Santa Ana, Risk Management, M-28, 20 Civic Center Plaza, Santa Ana, CA 92701 This is to certify that the City of Santa Ana is self-insured for the following coverage: Type of Coverage Self-Insurance Limit General Liability: Bodily Injury and Property Damage $1,000,000 Terms, Conditions and Special Items: The provisions under General Liability, above, shall apply only with respect to claims arising out of the negligent acts or omissions of the City of Santa Ana, its officers, agents and employees or any other person under its direction and control. Cancellation: Should any of the above described self-insured coverages be modified or cancelled before the expiration date shown below, the City of Santa Ana will provide 30 days written notice to the named certificate holder. Certificate Holder South Coast Air Quality Management District Mobile Source Air Pollution Reduction Review Committee (MSRC) 21865 Copley Drive Diamond Bar, CA 91765 Certificate Effective Date: 07/01/2011 Certificate Expiration Date: 07/01/2012 istant Personne irector (714) 647-5470 Date Certificate Issued: 10/26/2011 15 55A-37 } 2106, Copley Drive Diamond Bar CA 91765 Clean Transportation ? 909.396.3269 Funding from the MSRC fax 909.396.3682 Mobile Source Air Pollution Reduction Review Committee January 12, 2012 Mr. Rick Longobart City of Santa Ana 215 South Center Street Santa Ana, CA 92703 Dear Mr. Longobart: Please find attached two original copies of Contract Number ML11041 for signatures. This contract is for the Purchase of 7 LPG Heavy-Duty Vehicles and Retrofit 6 Heavy-Duty Diesel Vehicles. Please return boo copies to me at: Rachel Valenzuela South Coast AQMD/MSRC 21865 Copley Drive Diamond Bar, CA 91765 In addition, please provide documentation designating appropriate signatory authority on behalf of the agency, corporation, partnership, LLC, etc., and attest that said signature is empowered to contract on behalf of contractor in both an operational and financial capacity and to legally bind contractor. Please sign the signature page provided in the contract. If your agency's policy compels you to use a separate signature page, make sure to include the MSRC/AQMD contract number on the additional page. Once the contract has been executed, I will return to you a copy for your files. If you have any questions, please don't hesitate to call me at (909) 396-3101. Sincerely, Rachel B. Valenzuela MSRC Contracts Administration rachel(ftleantransportationfunding.org Attachments MEMBER ORGANIZATIONS: California Air Resources Board - Los Angeles County Metropolitan Transportation Authority - Orange County Transportation Authority - Riverside County Transportation Commission - San Bernardino Associated Governments - South Coast Air Quality Management District - Southern California Association of Governments - Regional Ridesharing Agency 55A-38 South Coast Contract No. ML11041 Clean Transportation Air Quality Management District Funding from 1he MSRC LOCAL GOVERNMENT MATCH PROGRAM CONTRACT PARTIES - The parties to this Contract are the South Coast Air Quality Management District (hereinafter referred to as "AQMD") whose address is 21865 Copley Drive, Diamond Bar, California 91765-4178, and the City of Santa Ana (hereinafter referred to as "CONTRACTOR") whose address is 20 Civic Center Plaza, Santa Ana, California 92702. 2. RECITALS A. AQMD is the local agency with primary responsibility for regulating stationary source air pollution within the geographical boundaries of the South Coast Air Quality Management District in the State of California (State). AQMD is authorized under State Health & Safety Code Section 44225 (Assembly Bill (AB) 2766) to levy a fee on motor vehicles for the purpose of reducing air pollution from such vehicles and to implement the California Clean Air Act. B. Under AB 2766 the AQMD'S Governing Board has authorized the imposition of the statutorily set motor vehicle fee. By taking such action the State's Department of Motor Vehicles (DMV) is required to collect such fee and remit it periodically to AQMD, C. AB 2766 further mandates that thirty (30) percent of such vehicle registration fees be placed by AQMD into a separate account for the sole purpose of implementing and monitoring programs to reduce air pollution from motor vehicles. D. AB 2766 creates a regional Mobile Source Air Pollution Reduction Review Committee (MSRC) to develop a work program to fund projects from the separate account. Pursuant to approval of the work program by AQMD'S Governing Board, AQMD Board authorized a contract with CONTRACTOR for services described in Attachment 1 - Statement of Work, expressly incorporated herein by this reference and made a part hereof of this Contract. E. CONTRACTOR has met the requirements for receipt of AB 2766 Discretionary Funds as set forth in CONTRACTOR's Local Government Match Program Application dated May 25, 2011. 3. DMV FEES - CONTRACTOR acknowledges that AQMD cannot guarantee the amount of fees to be collected under AB 2766 will be sufficient to fund this Contract. CONTRACTOR further acknowledges that AQMD'S receipt of funds is contingent on the timely remittance by State's DMV. AQMD assumes no responsibility for the collection and remittance of motor vehicle registration fees by DMV to AQMD in a timely manner. AUDIT - Additionally, CONTRACTOR shall, at least once every two years, or within two years of the termination of the Contract if the term is less than two years, be subject to an audit by AQMD or its authorized representative to determine if the revenues received by CONTRACTOR were spent for the reduction of pollution from Motor Vehicles pursuant to the Clean Air Act of 1988. AQMD shall coordinate such audit through CONTRACTOR'S audit staff. If an amount is found to be inappropriately expended, AQMD may withhold revenue from CONTRACTOR in the amount equal to the amount which was inappropriately expended. Such withholding shall not be construed as AQMD'S sole remedy and shall not relieve CONTRACTOR of its obligation to perform under the terms of this Contract. 55A-39 Contract No. ML11041 REPORTING - CONTRACTOR shall submit reports to AQMD as outlined in Attachment 1 - Statement of Work. AQMD reserves the right to review, comment, and request changes to any report produced as a result of this Contract. TERM - The term of this Contract is for seventy four (74) months from the date of execution by both parties, unless terminated earlier as provided for in Clause 7 below entitled Termination, extended by amendment of this Contract in writing, or unless all work is completed and a final report is submitted and approved by AQMD prior to the termination date. No work shall commence prior to the Contract start date, except at CONTRACTOR'S cost and risk, and no charges are authorized until this Contract is fully executed, Upon written request and with adequate justification from CONTRACTOR, the MSRC Contracts Administrator may extend the Contract up to an additional twelve months at no additional cost, Term extensions greater than twelve months must be reviewed and approved by the MSRC. 7. TERMINATION A. In the event any party fails to comply with any term or condition of this Contract, or fails to provide services in the manner agreed upon by the parties, including, but not limited to, the requirements of Attachment 1 - Statement of Work, this failure shall constitute a breach of this Contract. The non- breaching party shall notify the breaching party that it must cure this breach or provide written notification of its intention to terminate this contract. Notification shall be provided in the manner set forth in Clause 15. The non-breaching party reserves all rights under law and equity to enforce this contract and recover damages. B. AQMD reserves the right to terminate this Contract, in whole or in part, without cause, upon thirty (30) days' written notice. Once such notice has been given, CONTRACTOR shall, except as and to the extent or directed otherwise by AQMD, discontinue any Work being performed under this Contract and cancel any of CONTRACTOR's orders for materials, facilities, and supplies in connection with such Work, and shall use its best efforts to procure termination of existing subcontracts upon terms satisfactory to AQMD. Thereafter, CONTRACTOR shall perform only such services as may be necessary to preserve and protect any Work already in progress and to dispose of any property as requested by AQMD, C. CONTRACTOR shall be paid in accordance with this Contract for all Work performed before the effective date of termination under Clause 7.13. Before expiration of the thirty (30) days' written notice, CONTRACTOR shall promptly deliver to AQMD all copies of documents and other information and data prepared or developed by CONTRACTOR under this Contract with the exception of a record copy of such materials, which may be retained by CONTRACTOR. EARLY TERMINATION - This Contract may be terminated early due to any of the following circumstances: A. The vehicles or equipment become inoperable through mechanical failure of components or systems directly related to the alternative fuel technology being utilized and such failure is not caused by CONTRACTOR'S negligence, misuse, or malfeasance. B. The fueling station becomes inoperable, and is either not technically able to be repaired, or is too costly to repair, and such failure is not caused by CONTRACTOR's negligence, misuse, or malfeasance. 9. INSURANCE - CONTRACTOR represents that it is permissibly self-insured and will maintain such self- insurance in accordance with applicable provisions of California law throughout the term of this Contract. CONTRACTOR shall provide evidence of sufficient coverage during the term of this Contract and any 55A-40 Contract No, ML11041 extensions thereof that meet or exceed the minimum requirements set forth by the South Coast AQMD below. CONTRACTOR shall furnish certificate of self-insurance to: South Coast Air Quality Management District, Attn: Risk Management Office. The AQMD Contract Number shall be included on the face of the certificate. If CONTRACTOR fails to maintain the required insurance coverage, AQMD reserves the right to terminate the Contract or purchase such additional insurance and bill CONTRACTOR or deduct the cost thereof from any payments owed to CONTRACTOR. Minimum insurance coverages are as follows: A. Worker's compensation insurance in accordance with either California or other state's applicable statutory requirements. B. General Liability insurance with a limit of at least $1,000,000 per occurrence, and $2,000,000 in general aggregate. C. Automobile Liability insurance with limits of at least $100,000 per person and $300,000 per accident for bodily injuries and $50,000 in property damage, or $1,000,000 combined single limit for bodily injury or property damage. 10. INDEMNIFICATION - CONTRACTOR agrees to hold harmless, defend, and indemnify, AQMD, its officers, employees, agents, representatives, and successors-in-interest against any and all loss, damage, cost, or expenses which AQMD, its officers, employees, agents, representatives, and successors-in-interest may incur or be required to pay by reason of any injury or property damage caused or incurred by CONTRACTOR, its employees, subcontractors, or agents in the performance of this Contract. 11. PAYMENT A. AQMD shall pay CONTRACTOR a Firm Fixed Price of Two Hundred Sixty Five Thousand Dollars ($265,000) upon completion of the project on a reimbursement basis. Any funds not expended upon early contract termination or contract completion shall revert to the AB 2766 Discretionary Fund. Payment of charges shall be made by AQMD to CONTRACTOR within thirty (30) days after approval by AQMD of an itemized invoice prepared and furnished by CONTRACTOR. B. An invoice submitted to AQMD for payment must be prepared in duplicate, on company letterhead, and list AQMD'S contract number, period covered by invoice, and CONTRACTOR'S social security number or Employer Identification Number and submitted to: South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 Attn: Cynthia Ravenstein, MSRC Contract Administrator C. No funds shall be paid out to CONTRACTOR pursuant to this Contract, until the project described in Attachments 1 and 2 is completed and proof of completion is provided to AQMD. If the project described in Attachments 1 and 2 is not completed and satisfactory proof of completion is not provided to AQMD, no monies shall be due and payable to CONTRACTOR, Proof of completion shall include a Final Report detailing the project goals and accomplishments, D. Additional AB 2766 Discretionary Match Funds will not be available to fund project cost overruns. Any project cost overruns must be funded from other than AB 2766 Discretionary Funds. E. The Firm Fixed Price amount of this Contract shall not exceed the total AB 2766 Funds applied to the project described in Attachments 1, 2, and 3 of this Contract. 55A-41 Contract No. ML11041 F. If, at the completion of the Project described in Attachment 1, the vehicle expenditures and/or infrastructure expenditures are less than the Total Cost amount(s) contained in Attachment 2, the actual amount of AB 2766 Discretionary Funds reimbursed to CONTRACTOR shall be adjusted on a prorated basis as described in Attachment 2. G. CONTRACTOR must submit final invoice no later than ninety (90) days after the termination date of this Contract or invoice may not be paid. 12. MOBILE SOURCE EMISSION REDUCTION CREDITS (MSERCs) A. The MSRC has adopted a policy that no MSERCs resulting from AB 2766 Discretionary Funds may be generated and/or sold. B. CONTRACTOR has the opportunity to generate MSERCs as a by-product of the project if a portion of the air quality benefits attributable to the project resulted from other funding sources. These MSERCs, which are issued by AQMD, are based upon the quantified vehicle miles traveled (VMT) by project vehicles or other activity data as appropriate. Therefore, a portion of prospective MSERCs, generated as a result of AB 2766 Funds, must be retired, The portion of prospective credits funded by the AB 2766 program, and which are subject to retirement, shall be referred to as "AB 2766-MSERCs." C. The determination of AB 2766-MSERC's is to be prorated based upon the AB 2766 program's contribution to the cost associated with the air quality benefits. In the case where AB 2766 Discretionary Funds are used to pay for the full differential cost of a new alternative fuel vehicle or for the retrofitting or repowering of an existing vehicle, all MSERCs attributable to AB 2766 Discretionary Funds must be retired. The determination of AB 2766-MSERCs for infrastructure and other ancillary items is to be prorated based upon the AB 2766 program's contribution to the associated air quality benefits. Determination of the project's overall cost will be on a case-by-case basis at the time an MSERC application is submitted, AQMD staff, at the time an MSERC application is submitted, will calculate total MSERCs and retire the AB 2766-MSERCs. CONTRACTOR would then receive the balance of the MSERCs not associated with AB 2766 funding. 13. DISPLAY OF MSRC LOGO - CONTRACTOR agrees to permanently display one MSRC decal in a prominent location on each vehicle purchased pursuant to this Contract. CONTRACTOR also agrees to permanently display one MSRC decal in a prominent location on each fueling or charging station constructed or upgraded pursuant to this Contract. Decals will be provided by MSRC upon notification that subject fueling station equipment and/or vehicles are placed into service, Decals are approximately twelve (12) inches in height and eighteen (18) inches in width (Note: a smaller decal may be provided if CONTRACTOR demonstrates that application of the standard decal is not feasible). CONTRACTOR shall maintain decal for life of vehicle or equipment subject to this Contract. Should any decal become damaged, faded, or otherwise unreadable, CONTRACTOR shall request replacement decal from MSRC and apply new decal in the same or other prominent location. MSRC shall not be responsible for damage to paint or other vehicle surfaces arising from application or removal of decals. In addition, all promotional materials related to the project, including, but not limited to, press kits, brochures and signs shall include the MSRC logo. Press releases shall acknowledge MSRC financial support for the project. 14. ACCRUAL OF MILEAGE WITHIN SOUTH COAST AIR QUALITY DISTRICT - CONTRACTOR is obligated to comply with the geographical restriction requirements as follows: A. Each of the vehicles funded under this Contract must accrue at least 85% of its annual mileage or engine hours of operation within the geographical boundaries of the South Coast Air Quality Management 55A-42 Contract No. ML11041 District for a period of no less than five (5) years from the date the vehicle enters service (new vehicles) or returns to service (repowered vehicles). Should CONTRACTOR deviate from or fail to comply with this obligation, for reasons other than those stated in Clause 8.A., CONTRACTOR shall reimburse AQMD for a prorated share of the funds provided for the vehicle as indicated in the table below: 5 year Operations Obligation Termination Occurs Percentage of MSRC Funds to be Reimbursed Within Year 1 100% Between Years 1-2 80% Between Years 2-3 60% Between Years 3-4 40% Between Years 4-5 20% After Year 5 0% B C. The appropriate reimbursable amount shall be paid to AQMD within sixty (60) days from the date the vehicle ceases to operate in accordance with the geographical restriction. CONTRACTOR shall not be responsible for any reimbursement to AQMD if the obligation is terminated as a result from one or more reasons set forth in Clause 8.A. Should CONTRACTOR sell, lease, transfer, assign or otherwise divest itself of the vehicles during the five year period referred to in clause 14.A, notice shall be provided to AQMD no less than 30 days preceding the sale, lease, transfer, or assignment is effectuated. The agreement effectuating the sale, lease, transfer or assignment shall state that the AQMD is an intended third-party beneficiary of the agreement and shall include the following requirement: the obligation to accrue mileage within the South Coast Air Quality Management District shall be a continuing obligation of the subsequent purchaser, lessee, transferee, successor in interest, heir or assign and shall remain in full force and effect until the expiration of the five year operation period. This obligation shall be passed down to any subsequent purchaser, lessee or transferee during this five year term and AQMD shall be an intended third-party beneficiary of any subsequent agreement. Upon receiving notice of any subsequent sale, lease, transfer, assignment or other divestiture, AQMD may elect to either require the reimbursement specified in Clause 14.A and 14.6, or require the subsequent purchaser, lessee, transferee or assignee to comply with the continuing obligation to operate the vehicle for a period of no less than five (5) years from the date the vehicle entered service (new vehicles) or re-service (re-powered vehicles). Notice of AQMD's election of remedies shall be provided to CONTRACTOR and any subsequent purchaser, lessee, transferee or assignee in a timely fashion. 15. NOTICES - Any notices from either party to the other shall be given in writing to the attention of the persons listed below or to other such addresses or addressees as may hereafter be designated in writing for notices by either party to the other. A notice shall be deemed received when delivered or three days after deposit in the U.S. Mail, postage prepaid, whichever is earlier. AQMD: South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765-4178 Attn: Cynthia Ravenstein, MSRC Contract Administrator 55A-43 Contract No. ML11041 CONTRACTOR: City of Santa Ana 215 South Center St. Santa Ana, CA 92703 Attn: Rick Longobart 16. EMPLOYEES OF CONTRACTOR A. CONTRACTOR warrants that it will employ no subcontractor without written approval from AQMD. CONTRACTOR shall be responsible for the cost of regular pay to its employees, as well as cost of vacation, vacation replacements, sick leave, severance pay and pay for legal holidays. B. CONTRACTOR shall also pay all federal and state payroll taxes for its employees and shall maintain workers' compensation and liability insurance for each of its employees. C. CONTRACTOR, its officers, employees, agents, or representatives shall in no sense be considered employees or agents of AQMD, nor shall CONTRACTOR, its officers, employees, agents, or representatives be entitled to or eligible to participate in any benefits, privileges, or plans, given or extended by AQMD to its employees. D. CONTRACTOR warrants that it has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Contract. CONTRACTOR further represents that in performance of this Contract, no person having any such interest shall be employed by CONTRACTOR or any subcontractor. 17. NON-DISCRIMINATION - In the performance of this Contract, CONTRACTOR shall not discriminate in recruiting, hiring, promotion, demotion, or termination practices on the basis of race, religious creed, color, national origin, ancestry, sex, age, or physical handicap and shall comply with the provisions of the California Fair Employment & Housing Act (Government Code Section 12900, et sea.), the Federal Civil Rights Act of 1964 (P.L. 88-352) and all amendments thereto, Executive Order No. 11246 (30 Federal Register 12319), and all administrative rules and regulations issued pursuant to said Acts and Order. CONTRACTOR shall likewise require each subcontractor to comply with this clause and shall include in each such subcontract language similar to this clause. 18. AQMD LIEN RIGHTS - CONTRACTOR hereby grants AQMD a security interest in any and all equipment or vehicles purchased in whole or in part by funding provided by AQMD pursuant to this Contract. CONTRACTOR acknowledges and agrees that AQMD shall have all lien rights as a secured creditor on any and all equipment and/or vehicles purchased in whole or in part by the CONTRACTOR, under this Contract or any amendments thereto. The AQMD shall have lien rights in effect until the CONTRACTOR satisfies all terms under the Contract, including but not limited to, the use and reporting requirements. Accordingly, CONTRACTOR further agrees that AQMD is authorized to file a UCC filing statement or similar security instrument to secure its interests in the equipment and/or vehicles that are the subject of the Contract. In the event CONTRACTOR files for bankruptcy protection, CONTRACTOR shall notify AQMD within 10 business days of such filing. 19. COMPLIANCE WITH APPLICABLE LAWS - CONTRACTOR agrees to comply with all federal, state, and local laws, ordinances, codes and regulations and orders of public authorities in the performance of this Contract and to ensure that the provisions of this clause are included in all subcontracts. 55A-44 Contract No. ML11041 20. ASSIGNMENT - The rights granted hereby may not be assigned, sold, licensed, or otherwise transferred by either party without the prior written consent of the other, and any attempt by either party to do so shall be void upon inception. 21. NON-EFFECT OF WAIVER - CONTRACTOR'S or AQMD'S failure to insist upon the performance of any or all of the terms, covenants, or conditions of this Contract, or failure to exercise any rights or remedies hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants, or conditions, or of the future exercise of such rights or remedies, unless otherwise provided for herein. 22. ATTORNEYS' FEES - In the event any action (including arbitration) is filed in connection with the enforcement or interpretation of this Contract, each party in said action shall pay its own attorneys' fees and costs. 23. FORCE MAJEURE - Neither AQMD nor CONTRACTOR shall be liable or deemed to be in default for any delay or failure in performance under this Contract or interruption of services resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, or any similar cause beyond the reasonable control of AQMD or CONTRACTOR. 24. SEVERABILITY - In the event that any one or more of the provisions contained in this Contract shall for any reason be held to be unenforceable in any respect by a court of competent jurisdiction, such holding shall not affect any other provisions of this Contract, and the Contract shall then be construed as if such unenforceable provisions are not a part hereof. 25. HEADINGS - Headings on the clauses of this Contract are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Contract. 26. DUPLICATE EXECUTION - This Contract is executed in duplicate. Each signed copy shall have the force and effect of an original. 27, GOVERNING LAW - This Contract shall be construed and interpreted and the legal relations created thereby shall be determined in accordance with the laws of the State of California. Venue for resolution of any dispute shall be Los Angeles County, California. 28. PRECONTRACT COSTS - Any costs incurred by CONTRACTOR prior to CONTRACTOR receipt of a fully executed Contract shall be incurred solely at the risk of the CONTRACTOR. In the event that a formal Contract is not executed, neither the MSRC nor the AQMD shall be liable for any amounts expended in anticipation of a formal Contract, If a formal Contract does result, precontract cost expenditures authorized by the Contract will be reimbursed in accordance with the cost schedule and payment provision of the Contract. 29. CHANGE TERMS - Changes to any part of this Contract must be requested in writing by CONTRACTOR, submitted to AQMD and approved by MSRC in accordance with MSRC policies and procedures. 55A-45 Contract No. ML11041 CONTRACTOR must make such request a minimum of 90 days prior to desired effective date of change. All modifications to this Contract shall be in writing and signed by both parties. 30. ENTIRE CONTRACT - This Contract represents the entire agreement between the parties hereto related to CONTRACTOR providing services to AQMD and there are no understandings, representations, or warranties of any kind except as expressly set forth herein. No waiver, alteration, or modification of any of the provisions herein shall be binding on any party unless in writing and signed by the party against whom enforcement of such waiver, alteration, or modification is sought. The Statement of Work - Attachment 1, The Payment Schedule - Attachment 2, and Supporting Documentation - Attachment 3, are incorporated by reference herein and made a part hereof. 31, AUTHORITY - The signator hereto represents and warrants that he or she is authorized and empowered and has the legal capacity to execute this Contract and to legally bind CONTRACTOR both in an operational and financial capacity and that the requirements and obligations under this Contract are legally enforceable and binding on CONTRACTOR. [The Remainder of this Page is Intentionally Left Blank] 55A-46 Coribi d No. ML11041 IN WITNESS WHEREOF, the parties to this Contract have caused this Contract to be duly executed on their behalf by their authorized representatives. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT CITY OF SANTA ANA By: _ By:_ Or. William A. Burke, Chairman, Governing Board Name: Title: Date: Date: ATTEST: Saundra McDaniel, Clerk of the Board By: APPROVED AS TO FORM: Kurt R. Wiese, General Counsel A By: IrJ 11MSRC06Loca1GovlMetch Updated 22 October 2008 55A-47 Attachment 1 Statement of Work City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11041 Project Description CONTRACTOR will purchase seven (7) liquefied petroleum gas (LPG) heavy-duty, vehicles as specified below. CONTRACTOR will also purchase and install verified after- treatment devices on six of CONTRACTOR's heavy-duty diesel vehicles as specified below. Statement of Work Vehicles CONTRACTOR shall purchase seven (7) LPG heavy-duty vehicles, each with gross vehicle weight rating greater than 14,000 pounds and equipped with a dedicated LPG engine. Vehicles are required to operate for a minimum of five years, but it is expected that the vehicles will continue to operate for their entire life expectancy. Vehicles Life Expectancy 7 LPG Ford F-550 Trucks 10 ears each Each engine must be certified by the California Air Resources Board (CARB) at, or cleaner than, the 2010 heavy-duty engine emission standards of 0.2 g/bhp-hr for oxides of nitrogen (NOx) and 0.01 g/bhp-hr for particulate matter (PM). CONTRACTOR shall be reimbursed for vehicles according to the costs stated in Attachment 2 - Payment Schedule. Retrofits CONTRACTOR shall purchase, install and operate after-treatment devices on six (6) of CONTRACTOR's heavy-duty diesel vehicles, each with gross vehicle weight rating greater than 14,000 pounds. The specific vehicles to be retrofitted are as follows: Vehicle Description Expected Life After Retrofit 1998 Ford F-450 Boom Truck 5 ears 2000 GMC C71-1042 Dump Truck 5 ears 1995 Ford CF7000 Water Truck 5 ears 1992 Ford CF7000 Water Truck 5 ears 1993 International 460OLP Cement Truck 5 ears 1992 GMC TC7H042 Clam Truck 5 ears Each after-treatment device must be verified by the California Air Resources Board (GARB) to CARB's Level 3 standard. Level 3 verification is for those technologies achieving at least an 85% or greater reduction in particulate matter. Additionally, CARB's verification is often limited to specific engine families and/or may include other conditions. Each retrofitted vehicle must satisfy any and all conditions associated with the specific after-treatment device's verification. 10 55A-48 Attachment 1 Statement of Work - continued - City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11041 CONTRACTOR shall be reimbursed for after-treatment devices according to the costs stated in Attachment 2 - Payment Schedule. Promotion CONTRACTOR shall prepare and submit a proposed Public Outreach Plan to promote the acquisition of the MSRC co-funded vehicles and after-treatment devices. Acceptable outreach may include, but is not limited to, notices in CONTRACTOR mailings to residents, newspaper notices, flyers, and information items at CONTRACTOR Board meetings and community events. The Public Outreach Plan shall automatically be deemed approved 30 days following receipt by AQMD staff, unless AQMD staff notify CONTRACTOR in writing of a Public Outreach Plan deficiency. CONTRACTOR shall implement the approved Public Outreach Plan in accordance with the Project Schedule below. Project Schedule (based on date of Contract execution) Task Completion Submit Public Outreach Plan Month 4 Order new vehicles Month 4 Order after-treatment devices Month 6 Installation of after-treatment devices Month 12 Place new vehicles into service Month 10 -Implement Public Outreach Plan Month 12 Quarter) reports Months 4 and 7 Final Report Month 14 Hardware: LPG heavy-duty vehicles and CARB-verified after-treatment devices as listed above. Reports Quarterly Reports: Until new vehicles are entered into service and subject engines are retrofitted, CONTRACTOR shall provide quarterly progress reports that summarize the project results to date including, but not limited to: tasks completed, issues or problems encountered, resolutions implemented, and progress to date. Progress reports that do not comply will be returned to the CONTRACTOR as inadequate. 11 55A-49 Attachment 1 Statement of Work - continued City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11041 Final Report: A Final Report shall be submitted by the CONTRACTOR in the format provided by AQMD staff. Report shall include, at a minimum: a) an executive summary; and b) a detailed discussion of the results and conclusions at this project. CONTRACTOR will identify any barriers encountered and solutions developed to overcome the barriers. 12 55A-50 Attachment 2 Payment Schedule City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11041 Cost Breakdown Maximum AB2766 Purchase Discretionary Funds payable Other Funds Total Cost Category under this Applied Contract Heavy Duty LPG $210,000 (not to Vehicles exceed $30,000 per $210,000 $420,000 vehicle Level 3 verified after-treatment $55 000 (not to devices (including tax, , exceed $10,750 per $55,000 $110,000 delivery and device) installation Totals $265,000 $265,000 $530,000 CONTRACTOR shall be reimbursed according to the amounts stated above per vehicle upon proof of vehicle delivery, vehicle acceptance, and placement of vehicle into service. Documentation of the specific engine installed in the vehicle, including the year, manufacturer, and model, must accompany each request for reimbursement. CONTRACTOR shall be reimbursed up to the amounts stated above per after-treatment device upon proof of installation, proof of device's Level 3 verification, and return of vehicle to service. If, at the completion of the project, CONTRACTOR's expenditures are less than the Total Cost amount above, the amount of AB 2766 Discretionary Funds reimbursed to CONTRACTOR shall be adjusted on a prorated basis, as follows: • For vehicles, the amount reimbursed to CONTRACTOR shall not exceed the actual amount of Other Funds Applied; and • For retrofits, the amount reimbursed to CONTRACTOR shall not exceed the actual amount of Other Funds Applied. 13 55A-51 Attachment 3 Supporting Documentation City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML11041 The supporting documents attached hereto as Attachment 3, represent obligations of the CONTRACTOR. Nothing herein shall be construed as an assumption of duties or ,.,obligations by the AQMD or granting any rights to third parties against the AQMD. 1. Proof of Insurance. 14 55A-52 MAYOR Miguel A. PHlido MAYOR PRO TEM Claudia C. Alvarez COUNCIL MEMBERS P. David Benavides Carlos Bustamante Michele Martinez Vincent F. Sarmiento Sal Tinajero October 26, 2011 CITY OF SANTA ANA 20 CIVIC CENTER PLAZA • P.O. BOX 1988 SANTA ANA, CALIFORNIA 92702 South Coast Air Quality Management District Mobile Source Air Pollution Reduction Review Committee (MSRC) 21865 Copley Drive Diamond Bar, CA 91765 To whom it may concern: CITY MANAGER David N. Ream CITY ATTORNEY Joseph W. Fletcher CLERK OF THE COUNCIL Maria 0. Huizar The City of Santa Ana is a member of Big Independent Cities Excess Pool (BICEP). Current reinsurance and excess municipal liability is insured from $2M to $52M and includes auto liability coverage. The City self insures and funds the first $1M of claim payments. BICEP covers the layer from $1M to $2M. The City is permissively self-insured for workers' compensation and self-administers this program as well. The City, through BICEP, purchases excess statutory coverage through the California State Association of Counties - Excess Insurance Authority (CSAC-EIA) above $750K. The City funds claim payments under $750K. The City is also a member of the Public Entity Property Insurance Program (PEPIP). At present, membership is over 6,400 entities. Current property insurance is $113 per occurrence for "All Risk" coverage and flood coverage is $82.5M or $50M based on the flood zone where our insured property is located. If you need further information please contact me at,(714) 647-5470, Sincerely, (( l ward S. Raya Assistant Personnel Director cc: William Navaja 15 r5 55A-53 'y4 ] City of Santa Ana Certificate of Self-insurance City of Santa Ana, Risk Management, M-28, 20 Civic Center Plaza, Santa Ana, CA 92701 This is to certify that the City of Santa Ana is self-insured for the following coverage: ` e of C ove 7 rage i elf-Inslirancellrnit . ; General Liability: Bodily Injury and Property Damage $1,000,000 Terms, Conditions and Special Items: The provisions under General Liability, above, shall apply only with respect to claims arising out of the negligent acts or omissions of the City of Santa Ana, its officers, agents and employees or any other person under its direction and control. Cancellation: Should any of the above described self-insured coverages be modified or cancelled before the expiration date shown below, the City of Santa Ana will provide 30 days written notice to the named certificate holder. Certificate Holder South Coast Air Quality Management District Mobile Source Air Pollution Reduction Review Committee (MSRC) 21865 Copley Drive Diamond Bar, CA 91765 Certificate Effective Date: 07/01/2011 Certlficate Expiration Date: 07/01/2012 - "? 'i? Or?? istant Personn or (714) 647-5470 Date Certificate Issued: 10/26/2011 16 55A-54 MAY 21, 2012 TITLE: RESOLUTIONS AND AUTHORIZATION TO SUBMIT BICYCLE TRANSPORTAT1011? ACCOUNT AND BICYCLE CORRIDOR IMPROVEMENT PROGRAM PROJECT APPLICATIONS CITY MANAGER RECOMMENDED ACTION APPROVED Q As Recommended Q As Amended Q Ordinance on 1?` Reading Q Ordinance on 2nO Reading Q Implementing Resolution Q Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution supporting State funding of two projects in the city and authorizing the City Manager to submit the Newhope Avenue Bike Lane and Chestnut Avenue Bike Lane Projects for funding consideration under the Bicycle Transportation Account. 2. Adopt a resolution supporting federal funding of four projects in the city and authorizing the City Manager to submit the Newhope Avenue Bike Lane, First Street Bike Lane, Chestnut Avenue Bike Lane and Maple Bike Trail Enhanced Crossings Projects for funding consideration under the Bicycle Corridor Improvement Program. DISCUSSION The State of California Department of Transportation (Caltrans) issued a call for Bicycle Transportation Accounts (BTA) applications for fiscal year 2012-2013. In addition, the Orange County Transportation Authority (OCTA) issued a call for Bicycle Corridor Improvement (BCI) Program applications. BTA is a State-funded program and BCI is a federally funded program, both of which provide construction funds for projects that improve safety and convenience for bicycle commuters_ On April 16, 2012, Council adopted a resolution authorizing submission of applications for funding of two projects through the BTA program: the First Street Bike Lane from Harbor Boulevard to Newhope Street and the Maple Bike Trail Enhanced Crossings Project_ Since then, staff identified two additional projects for funding consideration: the Chestnut Avenue Bike Lane from Standard Avenue to Grand Avenue, and the Newhope Avenue Bike Lane from Westminster Avenue to McFadden Avenue. The Newhope Street, First Street, and Chestnut Avenue Projects involve new Class II (on-street) bike lane installations (Exhibit 2). The Maple Bike Trail Enhanced Crossings Project will enhance the bike trail crossings at Occidental Street, Saint Andrews Place, and Saint Gertrude Place. 55B-1 Resolutions and Authorization to Submit Bicycle Transportation Account and Bicycle Corridor Improvement Program Project May 21 , 2012 Page 2 APPLICATIONS Staff is requesting authorization to submit grant applications for the two additional projects. The application deadline was April 27, 2012. However, Caltrans accepted a draft resolution as part of the application with the understanding that the approved resolution will follow. In addition, in response to the BCI -call for projects, staff is requesting authorization to submit grant applications for all four projects: Newhope Avenue Bike Lane, First Street Bike Lane, Chestnut Avenue Bike Lane, and the Maple Bike Trail Enhanced Crossings- The application deadline was April 30, 2012. However, OCTA accepted a draft resolution as part of the application with the understanding that the approved resolution will follow. ENVIRONMENTAL IMPACT Pursuant to Section 1 5061 (b)(3) of the Environmental Quality Act, this action is exempt from further review as there is no potential for any environmental impact. FISCAL IMPACT For the two BTA projects, the City will need to provide 10 percent matching funds and the Bicycle Transportation Account will provide 90 percent of the funding for any project that is approved for funding. For the four BCI projects, the City will need to provide 12 percent matching funds and the Bicycle Corridor Improvement (BCI) Program will provide 88 percent of the funding for any project that is approved for funding. The City's match for those projects receiving BCI or BTA grant funds will be budgeted in a future Capital Improvement Program- ? ? Raul odinez II Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: C\Q?\2? ?? c ? ? ? ? o .? Francisco Gutierrez Executive Director Finance & Management Services Agency RG/ZK Exhibits: 1 - Resolution for BTA Applications 2. Resolution for BCI Applications 3- Location Map 4- Project Cost 55B-2 IssS/? /? 2 RESOLUTION NO. 2012-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE SUBMISSION OF PROJECTS FOR FUNDING UNDER THE BICYCLE TRANSPORTATION ACCOUNT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1 . The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The California Department of Transportation is responsible for administering the Bicycle Transportation Account (BTA) which provides state funds for city and county projects to improve safety and convenience for bicycle commuters. B. To be eligible for BTA funding, the City of Santa Ana is required to adopt a bicycle transportation plan that meets the requirements of the California Transportation Act (California Streets and Highways Code Section 891.2) and is approved by the regional transportation authority. C. On May 22, 2009, the Orange County Transportation Authority (OCTA) adopted its OCTA Commuter Bikeways Strategic Plan (CBSP) which is consistent with the Santa Ana bicycle transportation plan. D. Projects funded through the Bicycle Transportation Account, require that the applicant furnish funding for ten percent (1 O%) of the total cost of constructing the proposed bikeways and related facilities. Section 2. The City Council of the City of Santa Ana authorizes the City Manager and/or the Executive Director of the Public Works Agency to submit an application for Bicycle Transportation Account funding for two bicycle facilities projects including: Newhope Avenue bike lane from Westminster Avenue to McFadden Avenue Chestnut Avenue from Standard Avenue to Grand Avenue Section 3. The City Council of the City of Santa Ana certifies that, if selected, the City will provide the required ten percent matching funds, and will have sufficient funds to operate and maintain the project(s). Resolution 20'12-xxx Page ? ot2 EXHIBIT ') 55B-3 Section 4. The City Council of the City of Santa Ana authorizes the City Manager and/or the Executive Director of the Public Works Agency to execute and submit all documents and take any actions necessary, for and on behalf of the City of Santa Ana, for the purpose of obtaining financial assistance from the State of California, Department of Transportation, under the Bicycle Transportation Account. Section 5. 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 Councilmembers APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Laura S. Sheedy Assistant City Attorney AYES: NOES: Councilmembers 2012. Miguel A. Pulido Mayor ABSTAIN: Cou ncilmembers NOT PRESENT: Councilmembers CERTIFICATE OF PUBLICATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2012-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 20'12-xxx Page 2 of 2 55B-4 Iss4/25/? 2 RESOLUTION NO. 2012-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE SUBMISSION OF PROJECTS FOR FUNDING UNDER THE BICYCLE CORRIDOR IMPROVEMENT PROGRAM BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1 . The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The United States Congress enacted the Safe, Accountable, Flexible, Efficient, Transportation Equity Act -Legacy for Users (SAFETEA - LU) August 2005, which makes Congestion Management and Air Quality (CMAQ) funds available to the Orange County Transportation Authority for transportation-related projects that reduce congestion and improve air quality. B. The Orange County Transportation Authority (OCTA) administers CMAQ funds for projects that improve safety and convenience for bicycle commuters through the Bicycle Corridor Improvement (BCI) Program. C. OCTA has established the procedures and criteria for reviewing proposals for Projects to be funded through the BCI Program. Section 2. The City Council of the City of Santa Ana nominates the following projects and authorizes the City Manager and/or the Executive Director of the Public Works Agency to submit applications for Bicycle Corridor Improvement Program funding: • Newhope Avenue bike lane from Westminster Avenue to McFadden Avenue • First Street bike lane from Harbor Boulevard to Newhope Street • Chestnut Avenue bike lane from Standard Avenue to Grand Avenue • Maple Bike Trail Enhanced Crossings Section 3. The City Council of the City of Santa Ana certifies that, if selected, the City will provide the required twelve percent (12%) matching funds, and will have sufficient funds to operate and maintain the project(s). Section 4. The City Council of the City of Santa Ana authorizes the City Manager and/or the Executive Director of the Public Works Agency to execute and submit all documents Resolution 20'12-xxx EXHIBIT Q Page 1 of 3 55B-5 and take any actions necessary, for and on behalf of the City of Santa Ana, for the purpose of obtaining financial assistance from the Orange County Transportation Authority, under the Bicycle Corridor Improvement Program, including the execution of a cooperative agreement with OCTA to facilitate delivery of the projects. Section 5. The City of Santa Ana will commence work on the project within six months following notification from the State that funds have been authorized to proceed by the Federal Highway Administration, and the complete the project with reasonable diligence. Section 6. The City of Santa Ana will provide Caltrans and OCTA's representatives reasonable access to and the right to examine all records, books, papers or documents related to the bicycle projects. Section 7. The City of Santa Ana will comply with applicable provisions of the California Environmental Quality Act, the National Environmental Policy Act, the Americans with Disabilities Act, Federal Transit Administration Title VI, and other applicable federal, state and local laws, rules and regulations. Section 8. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 2012. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Laura S. Sheedy Assistant City Attorney Resolution No. 20'12-xxx Page 3 of 3 55B-6 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF PUBLICATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2012-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 20'12-xxx Page 3 of 3 55B-7 55B-8 Chestnut Avenue: Standard Avenue to Grand Avenue Newhope Street: 5th Street to Wesminster Blvd m m v V Haz. 7 W 0 K First Street: Harbor Blvd to Newhope Street Ave. .? / I 17th 6treet r 7 Civic Ctr. Sant na Blvd. st Street N O Willits N ?U.P a ?? i ? ? ? ., = t? ?vdr Rd. Maple Bike Trail Enhanced Crossings SANTA ANA /? City Council l P? WA ? Agenda Date P?a?,?w? Mav 21, 2012 RESOLUTION AND AUTHORIZATION FOR BCI /BTA APPLICATIONS FOR NEWHOPE STREET, CHESTNUT AVENUE AND FIRST STREET BIKE LANES; AND MAPLE BIKE TRAILED ENHANCED CROSSINGS 55 z r C .N H NORTH ? !q ??, „ ' cs ` 55B?CHIBIT 3 55B-10 Bicycle Transportation Account Bicycle Facilities Projects Recommended for Grant Application FY 2012-2013 Location Project Cost Newhope Street from 5th Street to Westminster Boulevard $130,000 Chestnut Avenue from Standard Avenue to Grand Avenue $430,000 First Street from Newhope Street to Harbor Boulevard $143,000 Maple Bike Trail Enhanced Crossings $300,000 Tota I $1 , 003, 000 Exhibit 4 55B-11 55B-12