The URL can be used to link to this page

Home My WebLink About FULL PACKET_2012-06-18MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA JUNE 4, 2012 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 5:15 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA C. ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE VINCENT F. SARMIENTO COUNCILMEMBERS Absent: MICHELE MARTINEZ SAL TINAJERO 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 5:15 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) Harry Trattner vs City of Santa Ana, ADJ6418235, et al. Jeffrey Talmage vs City of Santa Ana, 10-0249, et al. CITY COUNCIL MINUTES JUNE 4, 2012 1 0A-1 Interinsurance Exchange of the Automobile Club v. City of Santa Ana, Orange County Superior Court Case No. 30-2011-00507700 Friend of the Court Brief in Pack v. Superior Court (City of Long Beach) 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 (PMA) CLOSED SESSION REPORT - See Item 19A. for Report. ADJOURNED THE CLOSED SESSION MEETING AT 5:58 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 2 JUNE 4, 2012 1 0A-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 Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE VINCENT F. SARMIENTO COUNCILMEMBERS Absent: MICHELE MARTINEZ SAL TINAJERO 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 Eric Wakeling, Police Chaplain EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to: 20 YEARS OF SERVICE Lorenzo Carrillo, Lieutenant, Santa Ana Police Department 25 YEARS OF SERVICE Thomas L. Dix, Water Services Quality Coordinator, Public Works Agency 30 YEARS OF SERVICE Yolanda Pena, Police Investigative Specialist, Santa Ana Police Department CERTIFICATE OF RECOGNITION presented by MAYOR MIGUEL PULIDO to Eagle Scout Hayden Hall for having been awarded the Adams National Eagle Scout Service Project of the Year for his Santa Ana Zoo project. CITY COUNCIL MINUTES 3 1 0A-3 JUNE 4, 2012 CERTIFICATE OF RECOGNITION presented by MAYOR MIGUEL PULIDO to John Spiak, Director/Chief Curator of the Grand Central Art Center in recognition of Cal State Fullerton's long standing partnership with the City and promotion of the arts in the Downtown. CERTIFICATES OF RECOGNITION presented by MAYOR PRO TEM CLAUDIA ALVAREZ to the Santa Ana Police Running Teams that participated in the 28th Annual Challenge Cup Baker to Vegas Relay - Mixed Invitational Team: Captain Johanna Perez and Co-Captain Cassandra Hawkins and 1000 Division Team: Captain James Armstrong and Co-Captain Sandy Kim. AGENDA ITEM TAKEN OUT OF ORDER 50A PROPOSED ORDINANCE AND RESOLUTION TO APPOINT CITY MANAGER AND POLICE COMMISSIONER - Personnel Services Agency Members of the City Council congratulated Paul Walters on his appointment. Walters introduced family and thanked the City Council for support. MOTION: 1. Appoint Paul M. Walters as City Manager and approve employment agreement. AGMT NO. 2012-101 - Execute an employment agreement, subject to non-substantive changes, with Paul M. Walters for City Manager service 2. Adopt a resolution. RESOLUTION NO. 2012-017 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPOINTING CITY MANAGER PAUL M. WALTERS AS POLICE COMMISSIONER 3. Place ordinance on first reading and authorize publication of title ORDINANCE NO. NS-2834 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CREATING THE CLASSIFICATION TITLE OF POLICE COMMISSIONER AND DESIGNATING THE CLASSIFICATION AS THAT OF A PEACE OFFICER PURSUANT TO PENAL CODE SECTION 830.6(a)(2) MOTION: Alvarez SECOND: Benavides CITY COUNCIL MINUTES 4 JUNE 4, 2012 1 0A-4 VOTE: AYES: Alvarez, Benavides, Sarmiento (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) Bustamante, Pulido, CERTIFICATES OF RECOGNITION presented by MAYOR PRO TEM CLAUDIA ALVAREZ to the Segerstrom High School Girls Dance Team - Brenda Alvarado, Lauralee Antiporta, Katrina Arzola, Stephanie Avila, Leslie Blanco, Catherine Carino, Sirenia Chavez, Karina Contreras, Stephanie Cruz, Natali Cruz, Marleen Gomez, Mika Healey, Kimberly Herrera, Clarissa Martin, Amber Morales, Cheyenne Tafoya, Jennifer Urena, Raquel Valencia, Calah Vargas, Reyna Ventura, Coach Jeff Harvey and Dance Director Corrine Duran for winning the Song/Pom Novice Division at the USA Nationals. CERTIFICATES OF RECOGNITION presented by MAYOR PRO TEM CLAUDIA ALVAREZ to Lynne Waterson, Manager of the The Olde Ship British Pub & Restaurant; Joey Mendes, Owner of Proof Bar; Diego Velasco and Dan Bradley, Owners of Memphis at Santora; Davin & Marta Gumm, Owners of the Copper Door and Owner Emily Meyer and Manager Michele Matthias of the Gypsy Den, for their commitment to serving alcohol responsibly. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER DAVID BENAVIDES the 2012 California Teen Challenge winners - Cesar Adame, Elias Aguilar, Jose Arcos, Oscar Diaz, Nayeli Diaz, Edgar Fuentes, Moises Garcia, Catherine Garcia, Victor Gudiel, Marilynn Montano, Pablo Montoya, Stacy Montoya, Ricardo Munoz, Israel Nieto, Julio Quijas, Theresa Rodriguez, Alberto Romero and Stacy Sidon. CERTIFICATES OF RECOGNITION presented by COUNCILMEMBER DAVID BENAVIDES to the graduating high school students who were actively involved with TeenSpace - Elias Aguilar, Jose Arcos, Catherine Garcia, Jose Gonzalez, Jonathan Guerrero, Jose Iniquez, Escarlet Mar, Alex Mendez, Marilynn Montano, Pablo Montoya, Stacy Montoya, Javier Morales, Julio Quijas, Theresa Rodriguez and Brandon Sandoval and to the Youth Commission high school graduating students Jonathan Espinoza, Elizabeth Castenanos, and Caleb Torres. CERTIFICATE OF RECOGNITION presented by COUNCILMEMBERS VINCENT SARMIENTO to the Orange County Gay and Lesbian Community Services Center in honor of "Harvey Milk Day" CITY COUNCIL MINUTES 5 JUNE 4, 2012 1 0A-5 CLOSED SESSION REPORT - City Attorney Carvalho announced reportable actions by the City Council and is included under Agenda Item 19A. PUBLIC COMMENTS • Lilia Ramos, resident of Riverview Association and member of SOS Historic Willowick; requested status on proposed Chivas USA negotiations to move to the City. • Mayor Pulido indicated that Memorandum of Understanding with Chivas USA has expired thus no longer in discussions with Chivas USA. • Massimo Marini, spoke on Denver's Occupy Solidarity Agreement; opined that homeless and social organizations should be involved in resolving homeless issue instead of the police department. • Mathew Southgate, thanked City Attorney Carvalho for facilitating meeting of the Santora Ad Hoc Committee and presenting historic and architectural requirements; concerned with sale of building to Newsong Church that could change relationship with artists in the area. • Joel Reyes, Eastside residents, concerned with realignment project on McFadden Avenue and proposed park development in the area. • Mayor Pulido asked resident to address concerns to Executive Director of Parks and Recreation since he was not aware of proposed park. • Mark Harrison, member of the Friends of the Santa Ana Zoo, thanked the City Manager and Executive Director of Parks and Recreation Gerardo Mouet for support of the Zoo; noted that Association handles membership and improvements; Association willing to continue helping City with Zoo activities. • Zeke Hernandez, congratulated City Manager Walters on appointment; addressed the City Council on concerns with widening of Grand Avenue and property take- aways. • Fina Chavez, congratulated City Manager Walters on appointment; welcomed City Attorney Carvalho; noted that she has met with some members of the City Council on PBID matter; would like to have disestablishment item brought back for consideration. • Alicia Acuna, submitted pictures of various parks throughout the City that are in need of improvements. • Jeff Dickman, member of Friends of Lacy Street, concerned with rehabilitation project of some historic homes that appear different than in plans submitted; requested status report on rehabilitation project. • Helen Cannon, thanked the City Council and members of the Public Safety Committee for supporting chicken ordinance. • Ralph Allen, spoke in opposition to PBID, opined that East-end businesses in Downtown consuming most of assessment fees. • Julie Stroud, member of the Orange County Historic Commission, submitted letter of support to preserve the Sexlinger property (Agenda Item 75A). • Janet Cook, member of Fairview Development Center spoke in opposition to Zoo entrance fee increase and requested consideration to waive fee for people with disabilities. CITY COUNCIL MINUTES 6 JUNE 4, 2012 1 0A-6 • City Manager Walters indicated that staff would look into matter. • Grant Adelars, spoke on miscellaneous personal issues. • Bobi Keenan, spoke in support of Save the Orchard Coalition (Agenda Item 75A); requested status of Willowick project and opined that it should remain open space; and update on 22 freeway extension. • Tom Jackson, congratulated City Manager Walters on appointment; spoke in opposition to PBID; requested copy of Downtown Inc. audit report; would like disestablishment item be brought back for City Council consideration. • Herb Rose, congratulated City Manager and City Attorney on appointments; spoke in support of disestablishment of PBID; opined that assessment and benefit disproportionate. Also acknowledged the Public Works Agency and City for assisting him with sewer problem at his business. • Mayor Pro Tern Alvarez noted that PBID matter and budget would be brought back to the City Council for consideration at the June 18, 2012 City Council Meeting. • Cristina Damian, spoke in support of proposed chicken ordinance. • Raul Yanez, commented that he moved his business to Broadway Ave. and doing well, although not benefitting from PBID assessment. • Thomas Gordon, concerned with City's graffiti abatement contract, and signage and shopping cart pollution; also reported that web application to report graffiti not working. CONSENT CALENDAR ITEMS MOTION: Approve Consent Calendar Items 10A through 25L with the following modifications: • Mayor Pro Tern Alvarez voted "No" on Agenda Item 19C.; • Mayor Pro Tem Alvarez requested that the Minutes of May 21, 2012 be corrected to reflect the following: page 4, Item 10A on sex offender ordinance should indicate that the City adopted an ordinance in 2006 and it was first in the County, and it was proposed amended ordinance; also on page 21 under Council Comments by Mayor Pro Tern include that she is supportive of the artist, want them to stay, and encouraged them to look at all alternatives available to them given that the City has no leverage (on the proposed sale of Santora Building to Newsong Church). • Mayor Pro Tern Alvarez pulled Agenda Item 11A for separate discussion; and • Councilmember Sarmiento abstained on Agenda Item 10A; and • Excused the absence of Councilmembers Martinez and Tinajero. MOTION: Alvarez SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido, Sarmiento, Tinajero (5) CITY COUNCIL MINUTES 7 JUNE 4, 2012 1 0A-7 NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) Items removed for separate action or modified are highlighted. Separate actions show the actual vote. Items without votes are adopted as part of the consent motion. ADMINISTRATIVE MATTERS MINUTES 10A MINUTES FROM THE REGULAR MEETING OF MAY 21, 2012 MOTION: Approve Minutes as corrected. MOTION: Alvarez VOTE: SECOND: Benavides Alvarez, Benavides, Bustamante, Pulido (4) None (0) Sarmiento (1) Martinez, Tinajero (2) AYES: NOES: ABSTAIN: ABSENT: ORDINANCES/SECOND READING In the event a Councilmember recorded an "abstention" before consideration of the following ordinance(s) on first reading, such abstention will also be reflected in the minutes for second reading. 11A SECOND READING ORDINANCE AMENDING SANTA ANA MUNICIPAL CODE CHAPTER 10, ARTICLE XII, PERTAINING TO PROXIMITY RESTRICTIONS FOR REGISTERED SEX OFFENDERS TO CHILDREN'S FACILITIES - Police Department Placed on first reading at the May 21, 2012 City Council meeting and approved by a vote of 7-0. Published in the Orange County Reporter on May 25, 2012. Mayor Pro Tem Alvarez commented that item is second reading of ordinance; item considered at the last City Council meeting with District Attorney Tony Rackauckas in attendance; amendments to ordinance prepared in collaboration with Orange County District Attorney's Office CITY COUNCIL MINUTES 8 1 0A-8 JUNE 4, 2012 and City Attorney's Office; thanked the City Council and Public Safety Committee for supporting the ordinance. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS-2832- 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 MOTION: Alvarez VOTE: AYES: SECOND: Benavides Alvarez, Benavides, Bustamante, Pulido, Sarmiento, Tinajero (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) 11B SECOND READING ORDINANCE AMENDING CHAPTER 5 OF THE SANTA ANA MUNICIPAL CODE PERTAINING TO THE KEEPING OF FOWL - Police Department Placed on first reading at the May 21, 2012 City Council meeting and approved by a vote of 5-0 (Pulido, Sarmiento absent) Published in the Orange County Reporter on May 25, 2012. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. 2833 - 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 BOARDS / COMMISSIONS / COMMITTEES 13A COUNCIL COMMITTEE REPORTS - PARKS, RECREATION, EDUCATION AND YOUTH (PREY) MINUTES - PARKS, RECREATION & COMMUNITY SERVICES AGENCY MOTION: Receive and file Parks, Recreation, Education and Youth (PREY) Minutes of November 28, 2011 and April 2, 2012. CITY COUNCIL MINUTES 9 1 0A-9 JUNE 4, 2012 MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT - City Attorney's Office Items approved by unanimous consent in Closed Session. Interinsurance Exchange of the Automobile Club v. City of Santa Ana, Orange County Superior Court Case No. 30-2011-00507700 Friend of the Court Brief in Pack v. Superior Court (City of Long Beach) 19B EXCUSED ABSENCES - Clerk of the Council MOTION: Excuse the absence of Councilmembers Martinez and Tinajero. 19C DESTRUCTION OF OBSOLETE CITY RECORDS (CITY MANAGER'S OFFICE) MOTION: Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2006-045. *Mayor Pro Tern Alvarez voted "No" on Item 19C. 19D QUARTERLY REPORT FOR HOUSING DIVISION PROJECTS AND ACTIVITIES JANUARY 2012 - MARCH 2012 - Community Development Agency MOTION: Receive and file report. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A APPROPRIATION ADJUSTMENT - WORKFORCE INVESTMENT ACT ADDITIONAL FUNDS - Community Development Agency MOTION: Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2012-178 - Recognizing additional revenues of $25,764 in Workforce Investment Act Title I Adult and CITY COUNCIL MINUTES 10 JUNE 4, 2012 1 0A-10 Dislocated Worker funds from the State of California for Program Year 2011-2012. SPECIFICATIONS - PURCHASE OF EQUIPMENT AND SERVICES MOTION: Award in accordance with Request for Council Action. (Items 22A through 22E) 22A SPEC. NO. 07-103 - EXAM GLOVES - (Police Department) - Finance & Management Services 1. Amend the current contract with Bound Tree Medical in the amount of $17,300 for a total annual amount not to exceed $234,500; 2. Renew the contract with Bound Tree Medical for gloves for the Police Department for a one-year period in an annual amount not to exceed $70,000 22B SPEC. NO. 10-052 - OFFICE SUPPLIES - Renew the contract with Office Depot in an annual amount not to exceed $215,000. - Finance & Management Services 22C SPEC. NO. 11-009 - VEHICLE TIRES - Renew contracts for a one-year period, in an annual aggregate amount not to exceed $140,000 with the following vendors: (Finance & Management Services) Vendor Location Parkhouse Tire Inc. Santa Ana Scher Tire Inc. Santa Ana Tarulli Tire Inc. Santa Ana 22D SPEC. NO. 12-035 - SAFETY SHOES - Award contracts for a one-year period, with provision for two one-year renewals, in an annual aggregate amount not to exceed $35,000 with the following vendors: - (Finance & Management Services) Vendor Location Industrial Shoe Company Santa Ana Dee's Shoes, Inc. dba Red Wing Shoes Santa Ana 22E SPEC. NO. 12-038 - EQUIPMENT RENTAL AND CONCRETE - Award contracts for a one-year period, with provision for three one-year CITY COUNCIL MINUTES 11 JUNE 4, 2012 1 0A-11 renewals, in an annual aggregate amount not to exceed $40,000 with the following vendors: (Finance & Management Services) Vendor Location Hertz Equipment Rental Corporation Foothill Ranch Sunstate Equipment Co, LLC. Anaheim United Rentals (North America), Inc. Santa Ana PROJECTS/CHANGE ORDERS 23A CONTRACT AWARD TO PATSCHECK CONSTRUCTION COMPANY FOR THE SANTIAGO PARK VERNAL POOL (PROJECT NO. 036367, NONGENERAL FUND) - Public Works Agency and Parks, Recreation and Community Services 1. Award a contract to Patscheck Construction Company, the lowest responsible bidder, in an amount of $37,820 for construction of the Santiago Park Vernal Pool Project; 2. Approve the Funding Analysis for a total estimated construction cost of $52,900. AGREEMENTS MOTION: Authorize the City Manager and Clerk of the Council to execute the following agreements, subject to non-substantive changes approved by the City Manager and City Attorney and/or actions as noted on the Request for Council Action report. (Item 25A through 25L) 25A AGMT NO. 2012-102 - ANIMAL CARE SHELTER SERVICES - With the County of Orange in an amount not to exceed $1,017,904 - Police Department 25B AGMT NO. 2012-103 - LAW ENFORCEMENT HELICOPTER SERVICES - With the Orange County Sheriff's Department in an annual amount not to exceed $351,842 - Police Department 25C AGMT NO. 2012-104 - WEB-SITE MAINTENANCE AND COMMUNICATION SERVICES FOR EMERGENCY PREPAREDNESS, URBAN AREAS SECURITY INITIATIVE (UASI FUNDED) - With Westbound Communications for the continuation of the Ready OC CITY COUNCIL MINUTES 12 JUNE 4, 2012 1 0A-12 Emergency Preparedness Campaign in an amount not to exceed $550,000 - (Police Department) 25D STORM DRAIN FACILITY CLEANING AND SPILL RESPONSE - Public Works Agency ¦ AGMT NO. 2012-105 - With United Storm Water, Inc. in an amount not to exceed $250,000; ¦ AGMT NO. 2012-106 - With Ocean Blue Environmental Services, Inc. in an amount not to exceed $250,000. 25E AGMT NO. 2012-107 - AMENDMENT - FATS, OILS, AND GREASE PROGRAM MANAGEMENT SERVICES - With Environmental Engineering and Contracting, Inc., in an amount not to exceed $220,000 - Public Works Agency 25F AGMT NO. 2012-108 - AMENDMENT - SEWER VIDEO INSPECTION SERVICES - With Houston Harris PCS Inc., in an amount not to exceed $300,000 - Public Works Agency 25G AGMT NO. 2012-109 - GRAND AVENUE WIDENING FOR PROPERTY LOCATED AT 1221 EAST FIRST STREET (PROJECT NO. 081732 NOW GENERAL FUND) - With the Neal Family Revocable Trust and the Bevington Family Trust for the purchase of the property located at 1221 East First Street (APN 398-454-12 & 398-454-13) in the amount of $3,174,000 - Public Works Agency 25H AGMT NO. 2012-110 - ACQUISITION SETTLEMENT FOR BRISTOL STREET CORRIDOR, 410 NORTH BRISTOL UNIT A, (PROJECT NO. 081700) (NON-GENERAL FUND) - With Mr. Chris Yoh, Luv-N-Donuts in an amount of $26,000 - Public Works Agency 251 AMENDMENTS - PARK LANDSCAPE MAINTENANCE SERVICES - Parks, Recreation & Community Services Agency • AGMT NO. 2012-111 - With Master Landscape & Maintenance, Inc. for a 19-month amendment to provide park landscape maintenance services in District 1 in an amount not to exceed $401,957 and approve a 10% contingency for unanticipated work for a total amount not to exceed $442,153; CITY COUNCIL MINUTES 13 JUNE 4, 2012 1 0A-13 • AGMT NO. 2012-112 - With DMS Facility Services, LLC for a 19- month amendment, to provide park landscape maintenance services in District 2, in an amount not to exceed $576,332, and approve a 10% contingency for unanticipated work for a total amount not to exceed $633,965; • AGMT NO. 2012-113 - With Vista Del Verde to execute one-year agreement to provide park landscape maintenance services in District 3, in an annual amount not to exceed $508,164 and approve a 10% contingency for unanticipated work for a total annual amount not to exceed $558,980; • AGMT NO. 2012-114 - With Midori Landscape, Inc. to execute a one- year amendment to provide park landscape maintenance services in District 4 and District A, in an annual amount not to exceed $931,608 and approve a 14% contingency for unanticipated work for a total annual amount not to exceed $1,062,544 25J MEMORANDUMS OF UNDERSTANDING WITH WORKFORCE INVESTMENT ACT MANDATED PARTNERS - Community Development Agency ¦ AGMT NO Center; ¦ AGMT NO. County; ¦ AGMT NO. ¦ AGMT NO. ¦ AGMT NO. ¦ AGMT NO. ¦ AGMT NO. ¦ AGMT NO. ¦ AGMT NO. ¦ AGMT NO. 2012-115 - Asian American Senior Citizens Service 2012-116 - Community Action Partnership of Orange 2012-117 - Employment Development Department; 2012-118 - Goodwill Industries of Orange County; 2012-119 - Rancho Santiago Community College District; 2012-120 - Santa Ana Housing Authority; 2012-121 - Santa Ana WORK Center/City of Santa Ana; 2012-122 - Santa Ana Unified School District ; 2012-123 - Southern California Indian Center; 2012-124 - State Department of Rehabilitation 25K YOUTH PROGRAM OPERATOR AGREEMENTS PROGRAM YEAR 2012-13 - Community Development Agency 1. Authorize the City Manager and Clerk of the Council With the following Youth Program Operators Program Year 2012-13 for a total of $991,795 for the period of July 1, 2012 through June 30, 2013: ¦ AGMT NO. 2012-125 - With Orange County Children's Therapeutic Arts Center to provide tutoring, work experience, occupational skills training, job preparation, supportive services, mentoring, and CITY COUNCIL MINUTES 14 JUNE 4, 2012 1 0A-14 counseling for twenty five Out-of-School Youth in the amount of $175,000; ¦ AGMT NO. 2012-126 - With Santa Ana Public Library to provide post-secondary occupational skills training in the areas of digital technology, paid work experience, leadership development, and supportive services for twelve In-School Youth and eight Out-of- School Youth in the amount of $160,000; ¦ AGMT NO. 2012-127 - With Taller San Jose to provide occupational skills training in the fields of healthcare, professional business services or construction, internship opportunities, supportive services, counseling, job preparation, and placement to twenty Out-of-School Youth in the amount of $126,795; ¦ AGMT NO. 2012-128 - With Orange County Conservation Corps to provide paid work experience, alternative secondary education, post-secondary educational resources, and supportive services for twenty-five Out-of-School Youth in the amount of $250,000; ¦ AGMT NO. 2012-129 - With Santa Ana WORK Center STEM Youth Program to provide paid work experience at worksites related to science, technology, engineering, and math (STEM), workforce preparation, post-secondary education resources, occupational training in customer service and supportive services to fifteen In-School Youth and five Out-of-School Youth in the amount of $160,000; ¦ AGMT NO. 2012-130 - With NAPSAC to provide paid work experience with local businesses, workforce preparation, case management, and supportive services to twelve In-School and three Out-of-School in the amount of $120,000. 2. AGMT NO. 2012-131 - Authorize the City Manager and Clerk of the Council to execute a Memorandum of Understanding term extension with Santa Ana WORK Center for the Youth Services Provider Navigator to June 30, 2013 and allocate funding program year 2012-2013 funds in the amount of $321,358 25L AGMT NO. 2012-132 - AMENDMENT - PORTABLE WIRELESS MESH NETWORK (UASI FUNDED) - With Pacific Services, Inc. increasing agreement amount from $63,000 to a total amount not to exceed $80,000- Police Department **END OF CONSENT CALENDAR** CITY COUNCIL MINUTES 15 JUNE 4, 2012 1 0A-15 BUSINESS CALENDAR ITEMS ORDINANCES/FIRST READING 50A ITEM TAKEN OUT OF ORDER RESOLUTIONS 55A STATE-LOCAL PARTNERSHIP PROGRAM AND MEASURE M2 ENVIRONMENTAL CLEAN-UP PROGRAM - OCTA GRANT APPLICATIONS - Public Works Agency MOTION; Adopt resolutions. ¦ RESOLUTION NO. 2012-018 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE SUBMISSION OF PROJECTS FOR FUNDING UNDER THE STATE- LOCAL PARTNERSHIP PROGRAM FORMULA GRANT UNDER THE PROPOSITION 1B HIGHWAY SAFETY, TRAFFIC REDUCTION, AIR QUALITY, AND PORT SECURITY BOND ACT OF 2006 ¦ RESOLUTION NO. 2012-019 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE SUBMITTAL OF PROJECTS TO ORANGE COUNTY TRANSPORTATION AUTHORITY FOR FUNDING UNDER THE MEASURE M2 ENVIRONMENTAL CLEANUP PROGRAM MOTION: Alvarez SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Bustamante, Pulido, Sarmiento (5) NOES: None (0) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) CITY COUNCIL MINUTES 16 JUNE 4, 2012 1 0A-16 PUBLIC HEARINGS 75A 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 & Building Agency Motion approved by the Planning Commission on April 5, 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. Continued from the May 7, 2012 City Council meeting by a vote of 7-0. Staff report presented by Planning and Building Executive Director, Jay Trevino. Mayor Pulido opened the Public Hearing. The following speakers commented on the matter: • Nick Spain, submitted letter from the State Historical Commission in support of preserving Sexlinger property. • Deborah Strunk, resident of Portola Neighborhood Association, spoke on history of Valencia crop in the area and need to preserve property. • Dwight Schroeder, opined that property should be preserved, with or without historic designation. • Jeff Dickman, former member of the Historic Resources Commission, opined that lot is one of last with value to the community. • Ryan Bensley, former next door neighbor to property, supports preservation of property • Jeannie Gillett, member of Save our Orchard Coalition, supports historic preservation designation; would like to be given opportunity to file for designation at the State level; noted that property meets two requisites for State designation. • Moises Munoz Plascenia, propose to grow organic crops at the five acre property; project would support SB375 the Sustainable Communities initiative. • Elaine Cali, opined that history destroyed if not preserved; encouraged open space. • Ellen Diamond, opined that preservation would place Santa Ana on the map. • Diane Askbaugh, encouraged the City Council to place property on Historic Registry. • Lara Montagne, noted City's efforts to preserve history in Downtown area and said property should also be preserved. CITY COUNCIL MINUTES 17 JUNE 4, 2012 1 0A-17 • Steve Ray, supports historic designation, community garden; noted that Coalition's goal is to pay fair market value for property. • Diana Hardy, spoke on benefit of preserving property that would benefit future communities. • Tonya Fannin, reported that Coalition has received more than 1,500 signatures on petition to save Orchard. • Kevin Tilden, property owner representing Concordia University, spoke by opposition to appeal. • Ron Van Blarcon, General Counsel for Concordia University, requested clarification of Request for Council Action and verbal report that were inconsistent; noted that property owner has right to request designation and in this case does not desire. • Jamie Sue Abrahams, archival assistant at Heritage Museum, noted that Heritage Museum once slated for destruction, but saved by the Santa Ana Unified School District; supports designation. • John Hiber, urged the City Council to preserve Orchard. Mayor Pulido closed the Public Hearing. Council discussion ensued. Executive Director of Planning and Building Jay Trevino noted that property meets minimum qualifications for designation and staff recommends designation. Mayor Pulido noted that support of designation is short term, but opportunity for Coalition to raise funds and purchase property. Councilmember Sarmiento moved motion to approve appeal. Motion seconded my Mayor Pro Tem Alvarez. Councilmember Bustamante supports property owner rights and would not support motion because owners have not requested designation. Mayor Pro Tern Alvarez indicated that action is discretionary as donation to Concordia by Sexlinger family not clear; Coalition has eight months to raise money to preserve property; thanked the Historic Resources Commission for considering matter; also noted that final development project will require City Council approval. Councilmember Benavides noted that intent of donation by Sexlinger to Concordia not clear, but value in preserving property; property owner may proceed with development after 8 months have lapsed and Coalition has not purchased property. Executive Director Trevino indicated that both State and National Historic Designations are done at the request of property owners; City has different requirements for designation. Councilmember Sarmiento supports motion; approval allows for window of opportunity for preservation. CITY COUNCIL MINUTES 18 JUNE 4, 2012 1 0A-18 Mayor Pro Tern Alvarez requested a point of clarification from City Attorney - does the City Council need to approve the findings given that the staff report does not delineate such finding. City Attorney Carvalho indicated that staff did make that point and is now part of comments; clarification helpful. Mayor Pulido indicated that amended motion to include findings was before the City Council for consideration. Maker of motion agreed to amended motion. Mayor Pulido noted that balance needed in development projects; approval of item will allow appellant an opportunity to purchase property. AMENDED MOTION: 1. Overturn the the Historic Resources Commission's decision to deny Historic Resources Commission Application No. 2012-01 and Historic Register Categorization No. 2012-01. 2. Adopt amended resolution. RESOLUTION NO. 2012-020 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING APPEAL NO. 2012-01 AND OVERTURNING THE HISTORIC RESOURCES COMMISSION'S DENIAL OF 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 (APPEAL NO. 2012-01) MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Alvarez, Benavides, Pulido, Sarmiento (4) NOES: Bustamante (1) ABSTAIN: None (0) ABSENT: Martinez, Tinajero (2) 75B PUBLIC HEARING - PROPOSED CITY'S FISCAL YEAR 2012-13 BUDGET AND MISCELLANEOUS FEES SCHEDULE - Finance & Management Services CITY COUNCIL MINUTES 19 JUNE 4, 2012 1 0A-19 Legal notice published in the Orange County Register May 25, 2012 and June 1, 2012 Mayor Pulido opened the Public Hearing. There were no speakers and the Hearing closed. Council discussion ensued. Councilemmber Benavides requested report on Fiscal Policy. Executive Director of Finance and Management Francisco Gutierrez provided a summary of Policy included in staff report. Councilmember Bustamante thanked staff for efforts to bring balanced budget and Fiscal Policy. Councilmember Sarmiento echoed comments made earlier. Proposed Policy is departure from the past, now more transparent process in managing City's finances and checks and balances; may help improve City's bond rating; reserve policy will be range 5-15%, good element to balance employee concessions and maintain service levels. Mayor Pro Tern Alvarez requested an amendment to her original motion to approve. Add folloing language to the Fiscal Policy: no langauge shall be adopted that requires the City to maintain a minimum or required level of staffing and overtime; important lanugage to protect reserves when negotiating labor contracts. AMENDED MOTION: 1. Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS-2835 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROPRIATING MONIES TO THE SEVERAL OFFICES, AGENCIES AND DEPARTMENTS OF THE CITY FOR THE FISCAL YEAR COMMENCING JULY 1, 2012 2. Adopt amended Fiscal Policy. 3. Approve an Appropriation Adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2012-179 - To shift Risk Management funds and enhance General Fund reserve levels. 4. Adopt resolutions. ¦ RESOLUTION NO. 2012-021 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO AMEND RESOLUTION NOS. 82-110, 91-066 AND 96-095 TO EFFECT CITY COUNCIL MINUTES 20 JUNE 4, 2012 1 OA-20 CERTAIN CHANGES TO THE CITY'S BASIC CLASSIFICATION AND COMPENSATION PLANS. ¦ RESOLUTION NO. 2012-022 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ESTABLISHING A UNIFORM SCHEDULE OF MISCELLANEOUS FEES FOR FISCAL YEAR 2012-2013 AND REPEALING IN PART RESOLUTION NO. 2011-031 MOTION: Alvarez VOTE: AYES: NOES: ABSTAIN: ABSENT: THE CITY COUNCIL MEETING RECESSED AT 10:35 P.M. TO THE HOUSING AUTHORITY MEETING AND RECONVENED AT 10:36 P.M. WITH SAME MEMBERS PRESENT. COMMENTS 90A CITY MANAGER'S COMMENTS • City Manager Walters thanked the City Council for support and confidence in appointment. 90B CITY COUNCILMEMBER COMMENTS Councilmember Sarmiento: • Noted that the Orange County Registrar Voter's Office predicted a 30% reduction in voter turn-out for the June 5, 2012 Primary Election compared to the previous election; • Invited all to attend the upcoming Sunset Zoo Concert Series to be held on June 10th, June 24th, and July 15th; and • Urged all to vote on Tuesday, June 5, 2012. Councilmember Bustamante: • Welcomed newly appointed City Manager Walters, and • 2nd Annual July 4th celebration on Sunday, July 1St at Centennial Park. SECOND: Benavides Alvarez, Benavides, Sarmiento (5) None (0) None (0) Martinez, Tinajero (2) Bustamante, Pulido, CITY COUNCIL MINUTES 21 JUNE 4, 2012 1 OA-21 Councilmember Benavides: • Noted that July 1St event will begin at 2 p.m.; • Welcomed City Manager Walters; • Appointment of Police Chief in the near future; • Wished all a Happy Father's Day; and • Encouraged all to shop in Santa Ana. Mayor Pro Tern Alvarez: • Welcomed Paul Walters as permanent City Manager and wished him well; and • Wished all a Happy Father's Day. Mayor Pulido: • Welcomed newly appointed City Manager and City Attorney to respective positions; • Noted that if Council members Martinez and Tinajero were present at tonight's meeting, would have had 7-0 vote to appoint City Manager. ADJOURNED:- 10:40 P.M. - The next meeting of the City Council is scheduled for Monday, June 18, 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. Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES 22 JUNE 4, 2012 1 OA-22 ORDINANCE NO. NS- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROPRIATING MONIES TO THE SEVERAL OFFICES, AGENCIES AND DEPARTMENTS OF THE CITY FOR THE FISCAL YEAR COMMENCING JULY 1, 2012 THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Iss05/17/12 SECTION 1: The City Council of the City of Santa Ana hereby, finds, determines and declares as follows: A. The City Manager has prepared and submitted to this Council, pursuant to the provisions of Section 605 of the City Charter, a proposed budget for expenditures for the fiscal year commencing July 1, 2012, together with his budget letter dated May 21, 2012. B. In accordance with Section 606 of the City Charter, a public hearing has been held upon the said proposed budget of expenditures after notice of such public hearing had been published in the manner prescribed in said Section 606 of the City Charter. C. The proposed budget of expenditures duly submitted and considered as hereinbefore stated, together with any supplemental revisions and amendments thereto, was approved, adopted and fixed by the Council as the annual budget of the City for the fiscal year commencing July 1, 2012, in the amounts and for the funds, purposes, functions, department activities and programs as therein set forth, including the Seven-Year Capital Improvement Program Plan update. Said adopted budget, including said supplemental revisions and amendments, together with a copy of this appropriation ordinance, shall be placed in the official files of the Clerk of the Council. SECTION 2: There are hereby appropriated to the several offices, agencies, and departments of the City, being the respective objects and purposes specified in that certain document entitled "City of Santa Ana Annual Budget 2012- 2013," a copy of which is on file in the Office of the Clerk of the Council, out of the various funds of the City for fiscal year 2012-2013, the several amounts stated as proposed expenditures from said funds, respectively, in those columns of said Budget that are headed "Approved Budget 12-13." Each aggregate of expenditures so specified in said Budget for said fiscal year for each program shall be deemed to be an appropriation for a single object and purpose within the meaning of Section 11 A-1 609 of the Charter, except that as to any office, department, or agency of the City for which more than one program is designated in Section 2 (General Fund Operating Budget) of the said Budget, the aggregate expenditure authorized for all programs in said Section 2 of each such office, department, or agency shall be deemed to be an appropriation for a single object and purpose within the meaning of Charter section 609. SECTION 3: The appropriations hereby made shall constitute the maximum expenditures authorized for the several offices, agencies, and departments opposite which the amounts of such appropriations are shown in such Budget. SECTION 4: No warrant shall be issued or indebtedness incurred for any purpose which exceeds the unexpended balance of the appropriations established by this ordinance, unless such appropriation shall have been amended or supplemented by the City Council in the manner set forth in Section 609 of the Charter. The City Manager is hereby authorized to make revisions between the items included within any such appropriation if, in his opinion, such revisions are necessary and proper. SECTION 5: The Executive Director of Finance and Management Services is hereby authorized to transfer monies in accordance with the Interfund Transfers listed in said Budget in such amounts and at such times during the fiscal year as he may determine necessary to the competent operation and control of City business, except that no such transfer shall be made in contravention of State law or City ordinance or exceed in total the amount stated herein or as amended by the City Council. SECTION 6: One certified copy of this appropriation ordinance together with a certified copy of each amendment thereto shall be transmitted by the Clerk of the Council to the Executive Director of Finance and Management Services. SECTION 7: The City Council of the City of Santa Ana hereby adopts the Seven-Year Capital Improvement Program commencing at 2012- 2013, as set forth in the 2012-2013 City Budget. SECTION 8: Upon and from the effective date of this ordinance, expenditures of monies appropriated hereby are authorized beginning July 1, 2012. SECTION 9: The Clerk of the Council shall cause the title of this ordinance to be published as required by law. SECTION 10: All presently applicable documentation pertaining to the number, titles, qualifications, powers, duties, or compensation of officers or employees of the City, which has been previously approved by resolution or order 11 A-2 of the City Council and which is currently on file with the Executive Director of Personnel Services is incorporated herein and is hereby approved. The City Manager is authorized to create, alter, or abolish any position of employment, or the number, title, qualifications, powers, duties, or compensation thereof, when such action is appropriate to promote the efficiency of the City administrative organization; provided, however, that no such action shall be effective unless and until approved by resolution or order of the City Council. ADOPTED this day of June, 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 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify fhe attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 11 A-3 11 A-4 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CREATING THE CLASSIFICATION TITLE OF POLICE COMMISSIONER AND DESIGNATING THE CLASSIFICATION AS THAT OF A PEACE OFFICER PURSUANT TO PENAL CODE SECTION 830.6(a)(2). 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. Section 700 of the Charter of the City of Santa Ana provides that the City Council may establish by ordinance the number, titles, qualifications, powers, duties, and compensation of all officers and employees of the City. B. The City's public safety operations frequently work in conjunction with and perform operations with various regional, state and federal agencies and special law enforcement task forces. Such agencies include, but are not limited to the Federal Bureau of Investigations, the Bureau of Alcohol, Tobacco and Firearms, Homeland Security, the Drug Enforcement Agency, United States Immigration and Customs Enforcement Agency, the Bureau of Narcotics Enforcement, the United States Attorney General and the California Bureau of Investigations. C. As part of its overall governance of the City of Santa Ana the City Council finds that it must be informed of the ongoing nature of the above- referenced operations. Further, the Council believes that additional management support should be provided to the joint law enforcement operations as set forth above. Additionally, the Council finds that it is vital to the ongoing operations of the public safety operations of the City that the current relationships with the above-referenced state and federal agencies be maintained and enforced. D. The City Council believes that the goals of maintaining and strengthening these ongoing joint operations and relationships, and the prevention and detection of crime and the enforcement of the laws of this state would be furthered by the addition of a Police Commissioner position within the office of the City Manager. The City Council further finds that due to the Ordinance No. NS-XXX Page 1 of 4 11B-1 nature of the law enforcement activities involved, the position of Police Commissioner should be designated as one having full peace officer powers under Penal Code section 830.6(a) (2). E. The Request for Council Action for this ordinance dated June 4, 2012, shall by this reference be incorporated herein, and together with this ordinance, any amendments or supplements and the oral testimony before the City Council at this meeting, shall additionally constitute the necessary findings for this ordinance. F. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of Section 418 of the City Charter. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Role and qualifications of the Police Commissioner classification are as follows: A. It shall be the responsibility of the Police Commissioner to assist in maintaining and strengthening the relationship between the City, and in particular its police department, and the regional, state and federal agencies, departments, bureaus and task forces with which it currently operates, and further, to encourage new relationships with additional public safety related agencies, departments and bureaus. The Police Commissioner shall assist the City, and in particular the police department, in ongoing law enforcement operations in conjunction with the outside agencies and departments, local, regional, state and federal, in the prevention and detection of crime and the general enforcement of the laws of this state. B. The Police Commissioner shall act as the principal representative of the City in relation to outside regional, state and federal agencies, subject to his delegation of duties as may be necessary and appropriate. The position of Police Commissioner shall be assigned to the Department of the City Manager. C. The City Council may appoint an officer of the City in the classification of City Manager as Police Commissioner and said appointment will be served in conjunction therewith and the combined duties performed therein. In such occurrence, the appointee shall serve as Police Commissioner without additional compensation from that received as an officer of the City in the classification City Manager. D. The appointed classification of Police Commissioner shall require qualifications including a law enforcement background and experience in upper level municipal and law enforcement organization management. The Police Commissioner Ordinance No. NS-XXX Page 2 of 4 11 B-2 must also be eligible for, and in fact be appointed as a reserve police officer of the City under the provisions of California Penal code section 830.6(a)(2). Other than as identified above, the compensation for the position of Police Commissioner shall be provided for by Resolution of the City Council. The Police Commissioner shall be appointed by a majority of the City Council. Section 3. Peace Officer Status. Pursuant to the provisions of California Penal Code section 830.6(a)(2), a qualified person appointed as a reserve police officer with the City who occupies the position of Police Commissioner shall be deemed to be a peace officer with all or the powers and duties as afforded under said Penal Code section. Section 4. Duration. This ordinance shall remain in effect for a period of five years from the adoption date, and as of that date is repealed unless a City Council adopts a further ordinance of resolution to extend or delete that sunset date. Section 5. Ordinance to Operate Exclusively. Except as set forth in this ordinance, all other provisions of the Code shall remain in full force and effect. Section 6. Severability. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this 4th day of June, 2012. Ordinance No. NS-XXX Page 3 of 4 11 B-3 Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Joseph Straka Chief 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 June 4, 2012, 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 11 B-4 • MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL COMMITTEE ON PARKS, RECREATION, EDUCATION AND YOUTH May 21, 2012 CALL TO ORDER The regular meeting convened at 3:45 p.m. in the City Hall, Room 831, 20 Civic Center Plaza, Santa Ana, California. ATTENDANCE Council members Present Michele Martinez (Chair); Sal Tinajero Vincent Sarmiento Staff Present: Gerardo Mouet, Executive Director; Joe Straka, Assistant City Attorney; Ron Ono, Administrative Services Manager; Kent Yamaguchi, Zoo Manager, Robert Carroll, Sr. • Management Analyst, Ethan Fisher, Santa Ana Zoo Animal Registrar Public Present Rick Biddle, Schultz & Williams Joe Adams, Discovery Science Center Sean Fitzgerald, Discovery Science Center Steve McGuigan, Friends of Santa Ana Zoo Mark Harrison, Friends of Santa Ana Zoo Joaquin Avalos, SEIU Don Cribb, Santa Ana SA Council of the Arts & Culture Michelle Callgilen, Heritage Museum of Orange County Escarlet Mar, Santa Ana Public Library • APPROVAL OF MINUTES o Minutes of April 2, 2011 accepted as presented. • PUBLIC COMMENTS: o Escarlet Mar distributed a flyer on the SA Library's Santa Ana Summer Youth Volunteer Festival that will be held on Saturday May 26th; 12pm to 5pm at the • Main Library. Event will include volunteer opportunities, local band performance, fashion show, food trucks and dunk tank. PREY Regular Meeting - MINUTES 1 May 21, 2012 13A-1 • o Don Cribb spoke to the committee on the SA Council of the Arts & Culture and the privatizing of the Zoo. • SANTA ANA ZOO MANAGEMENT & ASSESSMENT STUDY o Staff introduced Rick Biddle of Schultz and Williams and provided background on the hiring of the firm on October 2011 to prepare a SA Zoo Management and Assessment Study. o Mr. Biddle (Schultz and Williams) indicated they met with staff, analyzed the zoo operations and are prepared to present management options. ¦ Mr. Biddle indicated 238 zoos are accredited by AZA and 76% are managed through private/public partnership. ¦ Other zoos are going through the same issues as Santa Ana and his firm is currently doing 4 other zoo studies. ¦ Mr. Biddle indicated he found residents and staff were excited about the zoo. The marketing theme of 50 monkeys, the 20 acre zoo size, visitor experience, 230,000 to 250,000 visitations is only limited by available parking. o Mr. Biddle explained three options the city could consider: ¦ Option 1: Close the zoo (not recommended as an option) ¦ Option 2: Maintain status quo (short term option) ¦ Option 3: Private/Public Partnership 4# Partnership with FOSAZ ? Management concept with the Discovery Science Center • ¦ There may be an opportunity to leverage two options. ¦ Whatever the City decides, AZA wants to see Santa Ana's Plan. ¦ Overall, the city needs leadership for long term success. o Councilmember Sarmiento asked "What's the difference between LA and Dallas Zoo operation?" ¦ Mr. Biddle responded LA is still a City managed Zoo and the Dallas Zoo is privately run with an annual subsidy adjustment. o Don Cribb indicated the public has not been included in any conversation related to the zoo operation analysis. o Councilmember Sarmiento indicated: ¦ The future of the Zoo needs to be determined at some point. ¦ FOSAZ has done a great job, but we need to excel from where we are? ¦ There is interest by others (Discovery Science Center) to help market the zoo, but they may not be the only ones. ¦ FOSAZ will be consulted in the decision making process. ¦ Need to look at this very seriously; SEIU is here to help provide information on the decision process. ¦ Need to revitalize the entire 1St Street corridor and SA Zoo is an anchor in this corridor. o Councilmember Tinajero indicated zoo attendance has been level for several years and went down when the economy changed. Recently we have seen a • slight growth in attendance. PREY Regular Meeting - MINUTES May 21, 2012 13A-2 • o Mr. Biddle indicated: ¦ Attendance has been stable and recently went up due to the construction of the two new zoo exhibits. ¦ This zoo is an important anchor along 1St Street. ¦ Zoo's that went from public operation to private operations has not reverted back to public operation. ¦ The current admission price is not an issue. o Councilmember Martinez asked if the City owns the zoo assets and we privatize what would be the cost and city liability. o Mr. Biddle indicated: ¦ The City needs to invest in the zoo to be successful. ¦ The City should also address deferred maintenance cost in the overall maintenance and management of the zoo. ¦ The liability issue is normally handled by the private/non-profit entity. o Councilmember Martinez indicated we need to put staff at ease on whichever option is selected. o Mr. Biddle indicated typically 80% to 90% of the time zoo employees are transferred over to the new management group. o Gerardo Mouet indicated if the City elected to go in the direction of private operation a Request for Proposal (RFP) needs to be prepared and released to all parties interested. Most of the questions will be addressed in the RFP. o Councilmember Sarmiento made the following statements: • ¦ Where do we go from this point? ¦ FOSAZ has supported the success of the zoo. ¦ We need to move on to discuss the RFP. ¦ A successful zoo will encourage successful development around the zoo and along 1St Street. o RECOMMENDATION: ¦ 'Continue the item for 2 weeks (June 4, 2012). • STAFF COMMENTS o None COMMITTEE MEMBER COMMENTS o Items for next agenda (June 4, 2012): ¦ Santa Ana Zoo Management Options (Next Step) ¦ Update of Five on Five Rule in Parks ¦ Update on Healthy Eating Active Living (HEAL) Resolution ADJOURNED: 4:31 p.m. e -r- aj:n?-gr Gerardo Mouet • Executive Director, PR6SA PREY Regular Meeting - MINUTES 3 May 21, 2012 13A-3 13A-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING DONATION FROM CARIBOU INDUSTRIES 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 Approve an appropriation adjustment accepting a donation from Caribou Industries, Inc., funds of $1,500 in revenue account (No. 02414002-57081-10451001044-7000) to increase the Police Department's Special Revenue Account. DISCUSSION The Caribou Industries, Inc. has donated $1,500 to the Police Department's Forensic Unit. The donation was designated to be used for the Major Crime Scene conversion vehicle. The Forensic Unit will be using these funds to purchase tools and equipment for the vehicle which they currently do not have. This vehicle is used at major crime scenes. FISCAL IMPACT The appropriation adjustment will enhance the Police Department's Special Revenue account (No 02414002-57081-10451001044-7000) by $1,500 and Police Department's Forensic Donation Expenditure (No. 02414400-63001-10451001044-3000) BY $1,500. APPROVED AS TO FUNDS AND ACCOUNTS: Paul M. Walters Chief of Police Police Department 4' 2, . Francisco Gutierrez Executive Director r Finance & Mngmt. Services Agency 20A-1 20A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: CONTRACT AMENDMENT TO WONDRIES FLEET GROUP FOR REPLACEMENT POLICE PATROL SEDANS (SPEC. NO. 12-002) i 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 Amend the contract with Wondries Fleet Group for the purchase of 14 police patrol sedans in the amount not to exceed $400,000. DISCUSSION The Police Department operates a fleet of 111 Ford Crown Victoria Police sedans, of which 88 are dedicated to Police patrol. Equipment replacement is determined on a "lifecycle approach", model, which consists of mileage, age, condition, performance, and utilization. In recent years, the standard 70,000 replacement mileage mark has increased to 80,000 miles, or four years. The vehicles operate a minimum of 8 to 12 hours a day, often undertaking double shifts, under City conditions. Using this model, 25 patrol units were budgeted for replacement in the FY 2011-12 vehicle replacement account. However, due to fiscal austerity measures, purchases were deferred and only 12 patrol sedans were ordered in January 2012. Based on the current budget, Fleet will purchase the remaining 13 patrol sedans. Each has mileage in excess of 100,000 miles. A 14th patrol sedan is to be ordered to replace a vehicle damaged and rendered inoperable in March 2012. The City's Self Insured policy will cover the cost of replacement. On January 17, 2012, the City Council awarded a contract to Wondries Fleet Group for the purchase of 12 replacement police sedans. The vendor has offered to extend the same terms and conditions for 14 additional vehicles. Staff recommends the purchase of the vehicles. 22A-1 Contract Amendment for Replacement Police Patrol Sedans June 18, 2012 Page 2 FISCAL IMPACT Funds are available in Equipment Replacement Machinery & Equipment, and the Liability and Property Insurance (account nos. 07510101- 66400 and 08009051-62302). APPROVED AS TO FUNDS AND ACCOUNT: Paul M. Walters Chief of Police Police Department KM Francisco Gutierrez Executive Director Finance & Management Services Agency 22A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: CONTRACT RENEWAL TO ALHAMBRA FOUNDRY CO. FOR MANHOLE FRAMES AND COVERS (SPEC. NO. 11-016) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Renew the contract with Alhambra Foundry Co., LTD for the purchase of manhole frames and covers for a one-year period in an amount not to exceed $40,000. DISCUSSION The Water Resources Division of the Public Works Agency maintains the sanitary sewer system consisting of approximately 390 miles of pipelines and 8,500 manholes. Approximately 160 manhole covers are replaced annually due to damage or theft. Alhambra Foundry Company was the original supplier of the City's manhole frames and covers manufactured according to the 1969 City Standard Plans. As such, parts are not interchangeable with products manufactured by other foundries. The City is therefore required to stock manhole parts supplied by Alhambra Foundry Co. The manhole frames and covers are purchased through the Central Stores warehouse for distribution to water sewer crews to provide readily available custom stock, based on quantity pricing. On April 4, 2011, the City Council awarded a contract for a one-year period, with provisions for two one-year renewals. The vendor have performed satisfactorily during the past contract period and has agreed to renew the contract without an increase in pricing. Staff recommends the first renewal of the contract. 22B-1 Contract Renewal for Manhole Frames and Covers June 18, 2012 Page 2 FISCAL IMPACT Funds are available in the Sanitary Sewer Service (account no. 05617640-63001) and Water Utility Water Products & Supply (account no. 06017641-63001). APPROVED AS TO FUNDS AND ACCOUNTS: 1 ? . Raul Godinez II Executive Director Public Works Agency KM A K\?MR! . I S?X A -'-) ? \, n . - , Francisco Gutierrez Executive Director Finance & Management Services Agency 226'2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: CONTRACT RENEWAL TO G.P. RESOURCES FOR UNLEADED FUEL AND OIL PRODUCTS (SPEC. NO. 11-064) r 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 Renew the contract with Maxum West dba G.P. Resources for the purchase of unleaded fuel and oil products for a one-year period in an annual amount not to exceed by $1,050,000. DISCUSSION The Facilities, Fleet and Central Stores Division (FMCS) of the Finance and Management Services Agency provides fuel for all City vehicles. Gasoline is stored in underground tanks located in the Corporate Yard and the Police facility. Pricing for the City's fuel purchases are based upon daily benchmarks published by the Oil Price Information Service (OPIS), plus regulated fees. Oil prices vary widely throughout the year. G.P. Resources, Inc. reports this price pattern will continue, with a minimal climb over last year's cost per gallon. Unleaded fuel prices increased 2.9 percent from March 2011 to March 2012. FMCS has established an alternative energy plan to convert 75-85 percent of the fleet to alternative energy within the next five-years, budget permitting. The contracting of fire services to the County Fire Authority, coupled with a trend of lower fuel consumption by the City results in an anticipated decrease of approximately four percent in unleaded fuel and oil product cost in the coming year. A greater savings will be realized in the contract for diesel fuel. On December 19, 2011, the City Council awarded a contract to G.P. Resources, Inc. for unleaded fuel, with provisions for five one-year renewals. The vendor has performed satisfactorily during the past contract period and staff recommends the first renewal to the contract. 22C-1 Contract Renewal for Unleaded Fuel and Oil Products June 18, 2012 Page 2 FISCAL IMPACT Funds are available in the Equipment Maintenance Garage Operation no. 07510100-63300); and the Equipment Maintenance for petroleum 07510100-63202). The amount of the fuel contract is estimated, as the depend upon the requirements through the annual contract period. 3 "\?? -, 71, C , ---? "?)- Francisco Gutierrez Executive Director Finance and Management Services Agency KM Gas & Diesel (account products (account no. actual expenditures will 22C-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: CONTRACT AWARD FOR STREET SWEEPER BROOM REWRAP (SPEC. NO. 12-044) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1St Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to West Coast Equipment, Inc. for street sweeper rewrap services for a six month period in an amount not to exceed $40,000. DISCUSSION The Fleet Maintenance Division of the Finance and Management Services Agency is responsible for the maintenance and repair of 11 street sweepers used by the Public Works Agency (PWA). The street sweepers clean over 60,000 miles of city streets annually. The brooms on the sweepers require periodic rewrapping to maintain effectiveness. The PWA is analyzing outsourcing street sweeping services. The 2009 agreement and renewal options for the street sweeper broom rewrap service has expired. Staff is requesting Council approve a 6-month contract with the current vendor to continue service while the outsourcing option is evaluated. FISCAL IMPACT Funds are available in the Equipment Maintenance Garage Operation (account no. 07510100- 63001). Francisco Gutierrez / Executive Director Finance & Management Services Agency SP 2201-1 22D-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED CONTRACT AWARD WITH ? As Recommended CALIFORNIA PROFESSIONAL ? Amended El Or dinance on 151 Reading ENGINEERING, INC. FOR TRAFFIC ? Ordinance on 2"d Reading SIGNAL INSTALLATIONS (PROJECT ? Implementing Resolution NOS. 106704, 106705 AND 126763) ? Set Public Hearing For_ CONTINUED TO CITY MANA ER FILE NUMBER RECOMMENDED ACTION Award a contract to California Professional Engineering, Inc., the lowest responsible bidder, in accordance with unit bid quantity prices in the amount of $443,499 for the installation of traffic signals at two intersections: Seventeenth/King Streets and Civic Center Drive/Pacific/Bristol Street Bike Lane Extension. 2. Approve a Funding Analysis with a total estimated construction cost of $554,300. DISCUSSION This project provides for the installation of new traffic signals at two intersections: Seventeenth/King Streets and Civic Center Drive/Pacific Street and the on-street bike lane on Bristol Street between McFadden and Edinger Avenues (Exhibit 1). Once completed, these improvement projects will increase safety of motorists, pedestrians, and bicyclists at these locations. The Notice Inviting Bids was advertised on May 2 and 4, 2012 and bids were opened on May 23, 2012. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: 1 Contractors requesting bidding documents: 13 Bids received: 5 Bids received from Santa Ana Contractors: 0 23A-1 Contract Award With California Professional Engineering, Inc. June 18, 2012 Page 2 NAME OF RESPONSIVE BIDDER CITY BID AMOUNT 1. California Professional Engineering, Inc. 2. Sully-Miller Contracting Company 3. JFL Electric, Inc. 4. VT Electric, Inc. 5. Steiny & Company, Inc. La Puente Brea Los Angeles Upland Baldwin Park $443,499 $460,997 $1,558,940 $1,801,800 $1,874,054 The Engineer's estimate was $587,425. A total of five bids were received and all were responsive. The lowest bid was submitted by California Professional Engineering, Inc. for $443,499. ENVIRONMENTAL IMPACT Environmental Review Nos. 2009-28, 2009-29, and 2012-13 were completed. Categorical Exceptions were filed for these projects pursuant to the California Environmental Quality Act. FISCAL IMPACT The Funding Analysis shows a total estimated construction cost of $554,300 for the project (Exhibit 2). Funds are available in the Measure M Street Construction Fund (accounting unit 03217660-66220), Measure M2 Street Construction Fund (accounting unit 03217662-66220), Public Service - Street Safety Projects Fund (accounting unit 14717611-66220), and the Select Street Construction Fund (accounting unit 05917660-66220). APPROVED AS TO FUNDS AND ACCOUNTS: Rau odinez II 0 A Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG/ET Exhibit 1: Project Location Map 2: Funding Analysis 23A-2 17th/King Q55 New Traffic Signal Civic Center/Pacific New Traffic Signal ai 22 Q 17th'Street CO) a ?c ivic Center Dr 5th St - 169 G. m - Santis Ana Blvd - - p V Q r.i - t p. Y _. 1st Street m U) 4) w z i° a e 3 _ illits St - p McFadden Ave N U) LL Kent Ave m Of Edinger Ave. nwood PI Bristol Bike Lane > Warner c r- Ave. L ' C9 Segerstrom IAve. -__ Oft MacArthur Blvd. NORTH i 405 rPn sAN , City Council Project Nos. 10-6704 & 10-6705 - Traffic Signals at PWA Agenda Date Civic Center/Pacific and 17th/King l Project No. 12-6763: Bristol Street Bike Lane _ <<?r_ June 18, 2012 % PUBLIC BARKS AGENCY I: r4k -it i 23A-4 FUNDING ANALYSIS PROJECT NOS. 106704, 106705 AND 126763 CONTRACT AWARD FOR TRAFFIC SIGNAL INSTALLATIONS AT SEVENTEENTH & KING AND CIVIC CENTER & PACIFIC AND BRISTOL STREET BIKE LANE EXTENSION Construction Contract $443,499 Contract Administration $33,200 Inspection and Testing $24,400 Survey Staking $8,852 Contingencies $44„349 TOTAL ESTIMATED CONSTRUCTION COSTS 554 3 0 Exhibit 2 23A-5 23A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: AGREEMENTS WITH COUNTY OF ORANGE FOR UPPER NEWPORT BAY TMDL COMPLIANCE- NONGENERAL FUND CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreements with the County of Orange, subject to nonsubstantive changes approved by the City Manager and City Attorney with: • Agreement to Fund Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load Programs in the Newport Bay Watershed in an amount not to exceed $175,000--County Agreement No. D1 1-066, • Reimbursement Agreement in an amount not to exceed $60,000--County Agreement No. D12- 030. DISCUSSION The Federal Clean Water Act and the National Pollutant Discharge Elimination System (NPDES) Stormwater Permit require each local agency to control potential pollutants from entering the waters of the United States. About 60 percent of Santa Ana is in the Newport Bay Watershed, which discharges into Upper Newport Bay. The City's major drainage facilities in this watershed are the Santa Ana Delhi and Santa Ana Gardens Channels (Exhibit 1). The California Regional Water Quality Control Board identified Newport Bay as an "impaired water body" in 1996, which classifies it as too polluted or otherwise degraded to meet water quality standards. In 2002, the United States Environmental Protection Agency established the maximum amount of a pollutant that a water body can receive and still safely meet water quality standards. These limits, or Total Maximum Daily Loads (TMDLs), contain requirements for studies, monitoring, and development of programs to attain these reduction targets over a multiyear period. City Council approved a similar agreement with the County on June 16, 2003 (Agreement No. 2003-126) that has since been amended several times. This new agreement provides for the performance of studies, research, monitoring, development, and/or revision of programs related to the adopted TMDLs for pollutants, as well as planning, permitting, design, construction, and maintenance of TMDL pilot projects. It also establishes a new cost-share formula for all 14 entities 25A-1 Agreements with County of Orange For Newport Bay TMDL Compliance June 18, 2012 Page 2 involved, of which 10.77 percent pertains to the City with a not-to-exceed amount of $175,000 for fiscal year 2012-13. The second agreement, D12-030, focuses on the TMDL for selenium, which is a naturally occurring element that is toxic to aquatic life and birds when concentrations are excessive. To meet the selenium TMDL requirements, staff is developing a feasibility study indicating reasonable methods of compliance, including reduction of irrigation and low-flow diversion into the sanitary sewer system from the city's tributaries discharging into Newport Bay. This agreement provides reimbursement for all costs to the City for developing the alternative feasibility report to comply with the selenium TMDL compliance requirements. The approved scope of work and budget shall not exceed $60,000. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Federal Clean Water Protection Fund (accounting unit 05717640- 62300). n Raul Godinez II V Executive Director Public Works Agency RG\CC Exhibit: 1. Location Map 2. County Agreement No. D11-066 3. County Agreement No. D12-030 APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25A-2 EXHIBIT 1 CITY COUNCIL TITLE: AGREEMENTS WITH COUNTY OF V AGENDA DATE ORANGE FOR NEWPORT BAY TMDL JUNE 18. 2012 COMPLIANCE 25A-4 EXHIBIT 2 Agreement No. D11-066 AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD ("TMDL") PROGRAMS IN THE NEWPORT BAY WATERSHED THIS AGREEMENT, for purposes of identification numbered D11-066, referred to hereinafter as "AGREEMENT", is made and entered into this day of , 201, by and between the County of Orange ("COUNTY"), the Orange County Flood Control District ("DISTRICT"), the City of Costa Mesa ("COSTA MESA"), the City of Irvine ("IRVINE"), the City of Laguna Hills ("LAGUNA HILLS"), the City of Laguna Woods ("LAGUNA WOODS"), the City of Lake Forest ("LAKE FOREST"), the City of Newport Beach ("NEWPORT BEACH"), the City of Orange ("ORANGE"), the City of Santa Ana ("SANTA ANA"), the City of Tustin ("TUSTIN"), the Irvine Ranch Water District ("IRWD") and the Irvine Company ("TIC'), and Lennar Homes of California, Inc.("LENNAR"). The fourteen entities are hereinafter sometimes jointly referred to as the "PARTIES" and individually as "PARTY." The cities are hereinafter sometimes jointly referred to as the "CITIES." The CITIES, COUNTY and DISTRICT are hereinafter sometimes jointly referred to as the "MUNICIPAL PARTIES." Thirteen entities (all entities except for LENNAR) are sometimes jointly referred to as the "ORIGINAL PARTIES." WITNESSETH WHEREAS, the California Regional Water Quality Control Board, Santa Ana Region ("REGIONAL BOARD") has adopted Resolution No. 98-9, as amended by Resolution No. 98-100 amending the Water Quality Control Plan for the Santa Ana River Basin to incorporate a Nutrient TMDL for the Newport Bay/San Diego Creek Watershed on April 17,1998 and Resolution 99-10 amending the Water Quality Control Plan for the Santa Ana River Basin to incorporate a TMDL for Fecal Coliform in Newport Bay on April 9, 1999 pursuant to the provisions of section 303(d) of the Clean Water Act; and, WHEREAS, the United States Environmental Protection Agency (USEPA) has established TMDLs for toxic pollutants, for San Diego Creek and Newport Bay, California on June 14, 2002, and the REGIONAL BOARD is developing implementation plans for each of the toxic pollutants; and, Page 1 of 22 25A-5 Agreement No. Dll-066 WHEREAS, the adopted TMDLs contain requirements for studies, monitoring, and the development of programs to attain TMDL reduction targets over a multi-year period; and, WHEREAS, these TMDLs are included in the National Pollutant Discharge Elimination System ("NPDES") Municipal Permit Order No. R8-2009-0030 that require a cooperative watershed program; and, WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99-128 on September 18, 2003 and subsequent amendments on July 5, 2006, March 29, 2008 and July 8, 2010 to provide funding for the Nutrient, Fecal Coliform, and Toxics Total Maximum Daily Load (TMDL) studies in the Newport Bay Watershed; and, WHEREAS, the PARTIES intend this AGREEMENT as a successor to Agreement No. D99-128 to provide for the performance of studies, research, monitoring, development and/or revision of programs related to the adopted TMDLs for nutrients, fecal coliform and toxics and current and future Clean Water Act §303(d) listings, as well as planning, permitting, design, construction, and maintenance of TMDL pilot projects ("PILOT PROJECTS"); and WHEREAS, the PARTIES have reached agreement on a funding formula which is shown in Exhibit A; and WHEREAS, in the event that long-term watershed funding is secured prior to AGREEMENT expiration, the PARTIES intend to amend the AGREEMENT to incorporate this funding through revised cost share allocations; and, WHEREAS, it is recognized that regulatory compliance gained through the activities herein apply to all PARTIES equally, and WHEREAS, it is recognized that additional compliance efforts may be necessary and the PARTIES may choose to fund projects under separate agreements; and NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows: Page 2 of 22 25A-6 Agreement No. D11-066 Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding and performing program activities related to the adopted TMDLs for nutrients, fecal coliform, and toxics and current and future Clean Water Act §303(d) listings in the Newport Bay Watershed. Section 2. TERM. The term of this AGREEMENT shall commence upon approval and execution of this AGREEMENT by all PARTIES or July 1, 2012, whichever is later, and shall continue until June 30, 2015. The AGREEMENT may be renewed for an additional three (3) year term running July 1, 2015 to June 30, 2018 with approval of the PARTIES. Section 3. PROGRAM WORK PLAN. The COUNTY shall work in concert with all PARTIES to develop a work plan for the following fiscal year. The work plan for the upcoming fiscal year shall be submitted to each of the PARTIES by December 15 of each year. The work plan may designate a PARTY as a lead other than the COUNTY for a work plan task(s). Section 4. BUDGET AND COSTS. The COUNTY shall work in concert with all the PARTIES to develop a budget for the following fiscal year. Budgeted amounts for PILOT PROJECT(S) shall not exceed $200,000 for all pilot projects in any one fiscal year. The budget for the upcoming fiscal year shall be submitted to each of the PARTIES by December 15 of each year. The budget shall contain an explanation of any recommended program changes, an estimate of all planned expenditures and an estimate of the payment required from each PARTY for the following fiscal year. The COUNTY shall be entitled to charge to the program all costs for direct labor, materials, equipment, and outside contract services for costs associated with carrying out the approved scope of work. Recoverable costs will also include an overhead charge. Section 5. WORK PLAN TASK LEAD REIMBURSEMENT. If a PARTY is designated as a task lead, upon written authorization from COUNTY, the PARTY shall invoice the COUNTY for authorized expenses up to the approved budget amount for the work plan task. Section 6. APPROVALS AND ADJUSTMENTS. The PARTIES shall be permitted to review and approve the budget and program work plan for the forthcoming year, review work products, and provide direction for performance of the work plan. The PARTIES shall be notified of the intent to issue Page 3 of 22 25A-7 Agreement No. D11-066 contracts to perform the program work plan, shall be permitted to participate in the preparation and review of the scope of work for such contracts, and to serve on the committee evaluating consultant qualifications/ proposals subject to the requirements of the County of Orange Contract Policy Manual. Criterion for approval of the work plan and budget shall be affirmative responses from PARTIES representing ninety percent (90%) of the Cost Share Percentage in Exhibit A and 12 of the 13 PARTIES. The COUNTY and DISTRICT will constitute one approving PARTY. Any PARTY not providing a response by July 15 of each year shall be considered as rendering an affirmative response. Criterion for approval of adjustments to scopes of work shall be the same as for the approval of the work plan and budget. Section 7. FUNDING COST SHARE ALLOCATIONS. Exhibit A, which is attached to this AGREEMENT and by this reference is made a part hereof, presents the funding formula and the fiscal year 2012-13 cost share percentages for the PARTIES. Land area calculations will be reviewed and revised as needed. A request for information documenting changes in land area will be made to the PARTIES each year by November 1. Section 8. PAYMENTS. The COUNTY shall invoice each PARTY for its annual deposit at the beginning of each fiscal year. Each PARTY shall pay the deposit within 45 calendar days of the date of the invoice. Each PARTY'S deposit shall be based on its prorated share of the approved annual budget, reduced by the sum of (a) its prorated share of any surplus identified in the prior fiscal year end accounting, and (b) its prorated share of any funding provided for programs in the approved budget from entities not party to this AGREEMENT. Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but will be credited against the PARTIES' share of the program costs. The COUNTY shall notify each of the PARTIES if it appears that costs may exceed the budget approved by the PARTIES in any fiscal year. The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of the end of the fiscal year. If the fiscal year end accounting results in costs (net of interest earnings) exceeding the sum of the deposits, and the COUNTY has notified and obtained Page 4 of 22 25A-8 Agreement No. D11-066 approval from the PARTIES of potential cost overruns, the COUNTY shall seek approval of the excess cost from the PARTIES in the form of a revised budget and, upon approval, shall invoice each PARTY for its prorated share of the excess cost up to the amount of the revised approved budget. Each PARTY shall pay the billing within 45 calendar days of the date of the invoice. If the fiscal year end accounting results in the sum of the deposits exceeding costs (net of interest earnings), the excess deposits will carry forward to reduce the billings for the following year. The fiscal year end accounting results and associated invoices for each PARTY will take into consideration any outside funding provided for programs in the approved budget from entities not party to this AGREEMENT. Upon termination of the program, a final accounting shall be performed by the COUNTY. If costs remaining after the deduction of interest costs exceed the sum of the deposits, the COUNTY shall invoice each PARTY for its prorated share of the deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the invoice. If the sum of the deposits, including interest, exceeds the costs, the COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45 calendar days of the final accounting. Section 9. ADDITIONAL PARTIES. It is recognized that there may be other parties who wish to participate in and provide funding for the activities described in this AGREEMENT. Nothing in this AGREEMENT is intended to preclude additional participants being added by written amendment as parties to this AGREEMENT pursuant to Section 10. Cost allocations for the additional parties and PARTIES will be revised based on the funding formula in Exhibit A. Section 10. AMENDMENT. This AGREEMENT may be amended in writing only with the unanimous written approval of the parties. Section 11. LIABILITY. It is mutually understood and agreed that, merely by the virtue of entering into this AGREEMENT, each PARTY neither relinquishes any rights nor assumes any liabilities for its own actions or the actions of other PARTIES. It is the intent of the PARTIES that the rights and liabilities of each Party shall remain the same, while this AGREEMENT is in force, as it was before this AGREEMENT was made, except as otherwise specifically provided in this agreement. Page 5 of 22 25A-9 Agreement No. D11-066 Section 12. TERMINATION. Any PARTY wishing to terminate its participation in this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year. Such termination shall be effective the following June 30. The terminating PARTY shall be responsible for financial obligations hereunder to the extent incurred in accordance with this agreement by the PARTY prior to the effective date of termination. The balance of the PARTIES may continue in the performance of the terms and conditions of this AGREEMENT on the basis of a revised allocation of cost based on the funding formula in Exhibit A. Section 13. AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to the availability of funds appropriated for this purpose, and nothing herein shall be construed as obligating the PARTIES to expend or as involving the PARTIES in any contract or other obligation for the future payment of money in excess of appropriations authorized by law. Section 14. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this AGREEMENT is intended or shall be construed to give any person, other than the PARTIES hereto and any entity in which a PARTY has a legal interest (such as, but not limited to, a limited liability membership interest or a partnership interest), and any permitted successors or assigns of a PARTY, any legal or equitable right, remedy or claim under or in respect of this AGREEMENT or any provisions herein contained. This AGREEMENT and any conditions and provisions hereof is intended to be and is for the sole and exclusive benefit of the PARTIES and the entities in which they have a legal interest and their successors or assigns and for the benefit of no other person, agency or entity. Section 15. REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. Section 16. ATTORNEYS FEES. In any action or proceeding brought to enforce or interpret any provision of this AGREEMENT, or where any provision hereof is asserted as a defense, each PARTY shall bear its own attorneys' fees and costs. Section 17. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement Page 6 of 22 25A-10 Agreement No. D11-066 and understanding of the PARTIES hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein. This AGREEMENT supersedes all prior agreements and understandings between the PARTIES with respect to such matter. Section 18. SEVERABILITY. If any part of this AGREEMENT is held, determined or adjudicated to be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the fullest extent reasonably possible. Section 19. SUCCESSORS AND ASSIGNS. The terms and provisions of this AGREEMENT shall be binding upon and inure to the benefit of the PARTIES hereto and their successors and assigns. Section 20. NOTICES. All notices required or desired to be given under this AGREEMENT shall be in writing and (a) delivered personally, or (b) sent by certified mail, return receipt requested or (c) sent by electronic mail followed by a mailed copy, to the addresses specified below, provided each PARTY may change the address for notices by giving the other PARTIES at least ten (10) days written notice of the new address. Notices shall be deemed received when actually received in the office of the addressee or when delivery is refused, as shown on the receipt of the U.S. Postal service, or other person making the delivery, except that notices sent by electronic mail shall be deemed received on the first business day following transmission. Director of Public Services City of Costa Mesa P.O. Box 1200 Costa Mesa, CA 92628-1200 Facsimile: (714) 754-5028 Director of Community Development City of Irvine P.O. Box 19578 Irvine, CA 92623-9578 Facsimile: (949) 724-6440 Director of Public Services City of Laguna Hills 24035 El Toro Road Laguna Hills, CA 92653 Facsimile: (949) 707-2633 Page 7 of 22 25A-11 Agreement No. D11-066 Director of Community Development City of Laguna Woods 24264 El Toro Road Laguna Woods CA 92637 Facsimile: (949) 639-0591 Director of Public Works City of Lake Forest 25550 Commercentre Dr. Suite 100 Lake Forest, CA 92630 Facsimile: (949) 461-3511 Director of Public Works City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 Facsimile: (949) 718-1840 Director of Public Works City of Orange 300 E. Chapman Ave Orange, CA 92866 Facsimile: (714) 744-5573 Director of Public Works City of Santa Ana 101 W. 4th St. Santa Ana, CA 92701 Facsimile: (714) 647-5635 Director of Public Works City of Tustin 300 Centennial Way Tustin, CA 92780 Facsimile: (714) 734-8991 Director, OC Public Works County of Orange 300 N. Flower Street Santa Ana, CA 92702-4048 Facsimile: (714) 834-2395 Executive Director of Water Policy Irvine Ranch Water District 15600 Sand Canyon Avenue Irvine, CA 92618 Facsimile: (949) 453-0228 Vice President of Environmental Affairs The Irvine Company 550 Newport Center Page 8 of 22 25A-12 Agreement No. Dll-066 Newport Beach, CA 92658-8904 Facsimile: (949) 720-2448 Vice President of Community Development Lennar 25 Enterprise, Ste 400 Aliso Viejo, CA 92656 Facsimile: (949) 349-0394 Section 21. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in counterpart and the signed counterparts shall constitute a single instrument. Section 22. GOVERNING LAW AND VENUE. This AGREEMENT has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the PARTIES hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure section 394. Furthermore, the PARTIES have specifically agreed, as part of the consideration given and received for entering into this AGREEMENT, to waive any and all rights to request that an action be transferred for trial to another county under Code of Civil Procedure Section 394 or any other provision of law. IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and year first above written: Page 9 of 22 25A-13 Agreement No. D11-066 Date: By: Chairman of the Board of Supervisors ORANGE COUNTY FLOOD CONTROL DISTRICT a body corporate and politic COUNTY OF ORANGE, a political subdivision of the State of California By: Chairman of the Board of Supervisors Date: SIGNED AND CERTIFIED THAT A COPY OF THIS AGREEMENT HAS BEEN DELIVERED TO THE CHAIR OF THE BOARD. By Susan Novak APPROVED AS TO FORM COUNTY COUNSEL By Deputy Date: Clerk of the Board of Supervisors of Orange County, California Page 10 of 22 25A-14 Agreement No. D11-066 CITY OF COSTA MESA Date: By: APPROVED AS TO FORM: ATTEST: City Clerk Mayor City Attorney of Costa Mesa Page 11 of 22 25A-15 Agreement No. D11-066 CITY OF IRVINE Date: By: APPROVED AS TO FORM: ATTEST: City Clerk Mayor City Attorney of Irvine Page 12 of 22 25A-16 Agreement No. D11-066 CITY OF LAGUNA HILLS Date: By: APPROVED AS TO FORM: ATTEST: City Clerk Mayor City Attorney of Laguna Hills Page 13 of 22 25A-17 Agreement No. D11-066 CITY OF LAGUNA WOODS Date: By: Mayor APPROVED AS TO FORM: ATTEST: City Clerk City Attorney of Laguna Woods Page 14 of 22 25A-18 Agreement No. Dl1-066 Date: CITY OF LAKE FOREST By: Mayor APPROVED AS TO FORM: ATTEST: City Clerk City Attorney of Lake Forest Page 15 of 22 25A-19 Agreement No. Dll-066 CITY OF NEWPORT BEACH Date: By: APPROVED AS TO FORM: ATTEST: City Clerk Mayor City Attorney of Newport Beach Page 16 of 22 25A-20 Agreement No. D11-066 Date: APPROVED AS TO FORM: ATTEST: CITY OF ORANGE By: Mayor City Clerk City Attorney of Orange Page 17 of 22 25A-21 Agreement No. D11-066 Date: APPROVED AS TO FORM: ATTEST: City Clerk CITY OF SANTA ANA By: Mayor City Attorney of Santa Ana Page 18 of 22 25A-22 Agreement No. Di1-066 Date: CITY OF TUSTIN By: Mayor APPROVED AS TO FORM: ATTEST: City Clerk City Attorney of Tustin Page 19 of 22 25A-23 Agreement No. Dll-066 THE IRVINE RANCH WATER DISTRICT Date: By: Date: Name: Title: By: Name: Title: Page 20 of 22 25A-24 Agreement No. Dll-066 Date: Date: THE IRVINE COMPANY By: Name: Title: By: Name: Title: Page 21 of 22 25A-25 Agreement No. Dll-066 Date: Date: Lennar Homes of California, By: Name:- Title: By: Name:_ Title: Page 22 of 22 25A-26 0 Q O z U7 rW V ¢ F-' z W U 94 W W ?i ¢ O U m N O X ¢ W U H w Q z ¢ ¢ 0 rw^ V z_ D w w 00 N m O IC 't d1 In ?o 6, d\ m M It 6, r\ t? \z O 0 O 0 O 0 O L r- o O W W }IIVXJJ^ W UT d l? N O O L6 C? O O \,6 O O O O 00 UC? ¢ F W U N Ul) U di w c°v w C.? W H \.O O V O\ o0 O\ 00 N ('n Lq e? U? N GO O\ L? O N ? (? o0 N in N ¢ x a?Q f m m O O m d m C 7 Q¢ W N Cl! V \-O `! o0 Lq N N N O m z? O m ?q \0 L-q N O m m \O 01 -- LO N W ,o ( m " m m x¢?¢x z ¢ 3 o z rn "t 00 ?t Ln "0 0 0 00 ^ ?0 N t1? to d? N d? oo d\ O N O ¢ ¢ z Ln ? ? N ? ? i n o i i ON ?O W 0 z d' oo 00 O to o r N N o d, `0 n ?n O, co N GD ON ON N d? m O ? N L? N O e•? ON O ?O L? Ln 110 In to 00 H? O ¢ Q m m N U? m l? o GD O \.o N rn N \.o C;, 0 O i C7, 0? r, ?c CN -4 r, q\ LO CD CD Z IZ u O¢ ¢ ? a 3 Q N er to N N 00 \.o 00 00 00 c-+ 00 to m ll r, e-I O, t O 00 W Z W r ion a y - o N za¢ cn Q In M 0 oo 00 00 oo M ?n m co X o ?t r N 00 W z w '.o ? L6 ? o 4 r+ LO W X3 3 W W m oo m N ao rn .o - m x t d n oo t\ mn m It o, ,I; ¢ ¢ W O?D ra Ln e--I m M ?O "o m ,o rl d N Lo N ? N r i in M z C) v v o x U) ?o o Q v r. ?O O v ¢ r. Q U a z o r o > ' Z a tc ca -14 <a 3, G .Z a w U 3 > , U V O ~ a a a z 0 v) N O '~ a 25A-27 N J C f0 C f0 d E 0 U (D c Z 3 C 00 U 76 76 co m LL U) w 0 d z O c 0 U co X N w c 0 (? C >+ L N U) o O 0 N ? >Y 3 > co V II ? w U a O 0 z og 07 z m E w m a c 'a a) CD- = rn m ? CO C (V C o f6 ? lC 7 CD CL C 0 m a L -0 U 2 m N W + 407 m CI 7 C .^0 Q (D L ? C) 0 N M U) y O j? C > m 7 o U c o y J 04 N U _U 0? O 0 M N D 0 C C E r < .3 c w N m c N J 0 z o° o cr C a m w CD .0 II Q aS o w .0 m ~ a C 2 J ii w U a? o x z z (n O II c fr F w g Of W Lo ? a 0) _ a 3 d M cn D ? a x Q cu Z ot3 ?? x C O Q 0 F p ? o y g a ?ag m 3W CD z in ° °w .__ o Q F o H ?•c_ IC?uJ c? cf) con w 5 0 IL O O N 2 ¢ b?A EXHIBIT 3 REIMBURSEMENT AGREEMENT BETWEEN THE COUNTY OF ORANGE AND THE CITY OF SANTA ANA Agreement D 12-030 THIS REIMBURSEMENT AGREEMENT, numbered D 12-030, is made and entered into this day of , 2012 by and between the County of Orange, hereinafter referred to as the "COUNTY", and the City of Santa Ana, hereinafter referred to as "CITY". RECITALS: A. The United States Environmental Protection Agency (USEPA) has established TMDLs for toxic pollutants in San Diego Creek and Newport Bay, California on June 14, 2002, and the California Regional Water Quality Control Board is developing implementation plans for each of the toxic pollutants; and B. The COUNTY, the CITY, the Orange County Flood Control District, the City of Costa Mesa, the City of Irvine, the City of Laguna Hills, the City of Laguna Woods, the City of Lake Forest, the City of Newport Beach, the City of Orange, the City of Tustin, the Irvine Ranch Water District, The Irvine Company, and Lennar Homes of California, have entered into have entered into Agreement No. D99-128, dated July 1, 2010, for the purpose of funding and performing studies, research, monitoring and the development and implementation of programs related to the adopted TMDLs for nutrients, fecal coliform and toxics in the San Diego Creek and Newport Bay watersheds (hereinafter "said Agreement"); and C. Said Agreement provides that the COUNTY will annually develop a scope of work and budget containing an estimate of planned expenditures for the following fiscal year, which shall be submitted to the parties for approval; and D. The approved scope of work and budget for fiscal year 2011-2012 includes the evaluation of alternatives to the Cienega project, to comply with the selenium TMDL compliance requirements, including source control of selenium Hot Spots and construction of low-flow diversion to the sanitary sewer system. WHEREFORE, in consideration of the mutual and respective covenants and promises, and subject to all the terms and conditions hereinafter set forth, the parties hereto agree as follows: 1. OBLIGATIONS OF CITY a. CITY shall select and pay a consultant to develop a feasibility report for the identification of alternative locations, design, implementation and operation of stormwater/sanitary sewer diversion facilities to capture dry-weather selenium 25A-28 Agreement D12-030 discharges tributary to Upper Newport Bay, as set forth in Exhibit A, attached to and by this reference, incorporated into this Reimbursement Agreement. b. CITY shall monthly submit an invoice to COUNTY, with documentation acceptable to the County, evidencing the milestones completed, deliverables provided and fee earned by Consultant the prior month. 2. OBLIGATIONS OF COUNTY COUNTY shall within thirty (30) days of receipt of CITY's invoice, reimburse CITY for all costs paid to Consultant pursuant to the Agreement between CITY and Consultant for the research and development of the feasibility report. 3. MAXIMUM OBLIGATION Notwithstanding any provisions of this Agreement to the contrary, COUNTY and CITY mutually agree that COUNTY's not-to-exceed payment obligation shall be Sixty Thousand Dollars ($60,000.00). 4. NOTICES Notices to the parties, unless otherwise requested in writing, shall be 1.) delivered personally or 2.) sent by certified mail, return receipt requested or 3.) sent by telefacsimile followed by a mailed copy, addressed as follows: To CITY: Director of Public Works City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92701 Facsimile: 714-647-5635 To COUNTY: Director of Public Works County of Orange 300 N. Flower Street Santa Ana, CA 92702-4048 Facsimile: 714-834-2395 Notices shall be deemed received when actually received in the office of the addressee or when delivery is refused, as shown on the receipt of the U. S. Postal Services, or other person making the delivery, except that notices sent by telefacsimile shall be deemed received on the first business day following transmission. [Signatures on the following pages.] 25A-29 Agreement D12-030 CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager Date: ATTEST: Maria D. Huizar Clerk of the Council Recommended for Approval: Raul Godinez, II Executive Director - PWA Approved as to form: Laura Sheedy Assistant City Attorney 25A-30 Agreement D12-030 Date: Date: APPROVED AS TO FORM COUNTY COUNSEL By Deputy Date: COUNTY OF ORANGE, a political subdivision of the State of California Chair of the Board of Supervisors By SIGNED AND CERTIFIED THAT A COPY OF THIS AGREEMENT HAS BEEN DELIVERED TO THE CHAIR OF THE BOARD. Susan Novak Clerk of the Board of Supervisors of Orange County, California By 25A-31 Agreement D12-030 Exhibit A - Scope of Work On December 10, 2009, the Santa Ana Regional Water Quality Control Board issued Time Schedule Order (TSO) R8-2009-0069 to regulate groundwater-related discharges, particularly those containing elevated selenium levels, in the Newport Bay Watershed. The TSO mandates the County of Orange, Orange County Flood Control District, and other entities that are subject to the TSO, including the City of Santa Ana, to develop and implement a Best Management Practices Strategic Plan describing a phased approach for complying with the TSO requirements. In order to develop an effective plan, it is necessary to assess the potential for selectively diverting groundwater and surface waters containing elevated levels of selenium to the sanitary sewer. The work under this scope of work will focus on opportunities within the Santa Ana-Delhi Channel Watershed. The project, to be managed by the City of Santa Ana, will develop a Conceptual Design Report to provide information to base decisions on the viability of diversions of low flows in the Santa Ana-Delhi Watershed. The Report will include an evaluation of conceptual it layouts at candidate diversion locations, site requirements anticipated selenium loading reductions, preliminary costs, potential grant funding opportunities, necessary permits and regulatory issues from both a stormwater permit, TMDL and sanitary sewer permitting perspective. It is anticipated that the Orange County Sanitation District (OSCD) may require the stormwater diversion system to only discharge to OCSD during off-peak hours. As such, two project scenarios should be considered: 1) A continuous discharge to the sanitary sewer system: 2) Capture and pump discharge to the sanitary sewer system during off- peak hours. The relative emphasis of each in the Report will be shaped by feedback from OCSD. The following tasks will comprise the scope of work: Field Review A field review of candidate diversion locations will be conducted in the Santa Ana-Delhi Channel Watershed. The field review will gather pertinent information regarding each diversion location include field measurements of discharge rates, photo reconnaissance, facility location identification, and the preparation of a scaled aerial photo of the site (aerial photos obtained from commercial sources). Deliverables: • Site sketches based on field measurements for each project location • Low flow discharge measurements/estimation calculations • Site photos • Aerial photo with the project area overlay • Vicinity map for each location 25A-32 Agreement D 12-030 2. Initial Sampling and Water Quality Analyses in Low Flows A minimum of one grab sample will be collected at each candidate diversion location along with flow measurements. Laboratory testing will be conducted for selenium, total dissolved solids, and nitrate in the water samples using protocols previously used for the Nitrogen and Selenium Management Program. Deliverables: • Laboratory test results and flow measurements 3. Existing Utility Research A preliminary utility search will be conducted at each candidate diversion location. It is assumed all general utility information will be obtained from the City of Santa Ana. Utilities of interest include: • Sanitary sewer • Local storm drain facilities • Existing potable/reclaimed water pipelines • Natural gas pipelines • Petroleum pipelines • Electrical service Deliverables: • Incorporate Existing Utility Research into Conceptual Site Layout 4. Develop Preliminary Diversion Sizing Requirements Preliminary sizing of the candidate diversion locations will include the following: • Establish flow rates and identify gross solids removal requirements • Establish volumetric requirements for a wet-well storage basin • Establish general flow and conveyance requirements • Establish pumping requirements assuming an eight-hour runtime A general listing of equipment requirements and associated sizing will be provided. Deliverables • Incorporate Preliminary Diversion Sizing Requirements into Conceptual Site Layout and Conceptual Design Report Conceptual Site Layout Conceptual site layouts will be developed for each of the candidate diversion locations. The conceptual site layouts will include the following: • Identify site constraints for each candidate diversion location • Site configurations for the proposed channel diversion structures 25A-33 Agreement D12-030 • Site configurations for overall site based on the site constraints and proposed diversion structures Deliverables • Develop two conceptual layouts for each candidate diversion location • Incorporate Conceptual Site Layout into Conceptual Design Report 6. Preliminary Assessment of Costs A preliminary assessment of costs will be provided for each alternative. These costs will be limited to initial implementation and need not include life cycle costs. Deliverables • Incorporate Preliminary Assessment of Costs into Conceptual Design Report 7. Regulatory Compliance Assessment The selenium loading reduction and receiving water benefits, if applicable, from diversions will be assessed relative to the draft Best Management Practices Strategic Plan and existing and proposed selenium TMDLs. Meetings will be held with watershed funding partners and OCSD to present information and receive feedback. Deliverables • Incorporate Regulatory Compliance Assessment into Conceptual Design Report 8. Conceptual Design Report A Conceptual Design Report outlining the aforementioned design parameter, costs and regulatory compliance assessment will be prepared. A draft Table of Contents follows: • Introduction • Project Descriptions • Conceptual Site Layouts • Estimated Costs of Construction • Environmental and Regulatory Issues • Recommendations for Next Steps • Summary Deliverables • Draft Conceptual Design Report for review • Final Conceptual Design Report • Final electronic version of Conceptual Design Report in pdf format 25A-34 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: AMENDMENT TO AGREEMENT WITH WEST COAST ARBORISTS, INC. CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached amendment to the agreement with West Coast Arborists, Inc. extending the current agreement for three years through fiscal year 2014/2015, for a contract amount not to exceed $765,000 annually for the term of the agreement, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The Public Works Agency is responsible for the maintenance of approximately 65,000 street trees and 3,000 median trees. The work performed is a component of the City's tree management program and is planned based upon the tree species pruning cycle. The City has utilized the services of West Coast Arborists, Inc. (WCA) since 1997 to provide tree-maintenance services. The City and the contractor have had an excellent public/private partnership over the term of the contract working with neighborhoods and the community on tree-care issues. WCA has been entitled to annual CPI increases for the last three years, however, they have chosen not to exercise the CPI increase. Last year WCA also agreed to reduce their pruning price by 30 percent to allow for a light pruning option. The integrity, health, and preservation of Santa Ana's urban forest remain the common goal for both WCA and the City. WCA has two one-year options remaining on its current agreement which include CPI adjustments. To minimize increases to the City budget during the next several years, WCA is proposing a three year renewal with no CPI increases and will guarantee the current level of service. Staff recommends approving the proposed extension because West Coast Arborists, Inc. has performed well and has established an excellent working relationship with the City, and this proposal financially benefits the City. 25B-1 Amendment to Agreement with West Coast Arborists, Inc. June 18, 2012 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds for the fiscal year beginning July 1St are available in the following activities: Street Trees (accounting unit 06817643-62321), Water Production and Supply (accounting unit 06017640- 62320) Median Maintenance (accounting unit 02917635-62320), Depot Operations (accounting unit 06717650-62320), and Parks Maintenance (accounting unit 01113250-62320). Funds for the remaining two years will be budgeted in subsequent year budgets. APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II V Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency / wL Gerardo Mouet Executive Director Parks, Recreation & Community Services Agency RG:DM Exhibit: 1. Amendment to Agreement 25B-2 EXHIBIT 1 FIFTH AMENDMENT TO AGREEMENT FOR TREE MAINTENANCE SERVICES THIS AMENDMENT, made and entered into this 18`h day of June, 2012 by and between WEST COAST ARBORISTS, INC., hereinafter referred to as "CONTRACTOR" and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California, hereinafter referred to as "CITY". RECITALS The CITY and CONTRACTOR entered into that certain "Agreement for Tree Maintenance Services A-2004-116" dated June 21, 2004, hereinafter referred to as "said Agreement," by which CONTRACTOR has provided tree maintenance services for the City's Urban Forest. By Amendments dated July 7, 2008, June 1, 2009, June 21, 2010, and August 1, 2011 the Parties agreed to adjust the unit pricing for tree trimming and extend the term of said Agreement. 3. The parties hereto desire to again amend said Agreement to extend the term for three additional one-year periods and allocate funds to pay for services during the extended term. WHEREFORE, in consideration of the mutual and respective covenants hereinafter set forth, and subject to the terms and conditions hereof, the parties hereto do hereby agree as follows: A. Section 1, TERM, shall be amended to extend the term for an additional three-year period, through June 30, 2015. B. Section 4.A., COMPENSATION AND PAYMENT TO CONTRACTOR, shall be amended to increase total compensation by Seven Hundred Sixty-Five Thousand Dollars ($765,000.00) annually, to pay for the services rendered in conformance with standards set forth in the Contract Documents. Payment shall be made in accordance with the Schedule of Compensation attached as Exhibit B-1 hereto. If Council fails to appropriate funding for tree maintenance during any annual budget process, City may terminate this Agreement upon thirty day notice to Contractor. C. Except as herein amended, all terms and conditions of said Agreement shall remain in full force and effect. 25B-3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA PAUL M. WALTERS City Manager APPROVED AS TO FORM SONIA R. CARVALHO City Attorney By: Laura Sheedy Assistant City Attorney WEST COAST ARBORISTS, INC. RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director - Public Works Agency PATRICK MAHONEY President 25B-4 EXHIBIT B-1 SCHEDULE OF COMPENSATION FY 2012-2013 THROUGH FY 2014/15 ITEM DESCRIPTION UNIT PRICE 1 Light Prune Each $ 33.00 2 Tree Pruning Each $ 47.00 2 Service Request Pruning Each $ 55.90 3 Palm Pruning Each $ 24.00 4 Tree and Stump Removal Inch $ 18.70 5 Tree Only Removal Inch $ 13.00 6 Stump Only Removal Inch $ 5.90 7 Tree Planting 24"Box with RB Each $229.70 8 Arterial- Tree Planting 24" Box with RB Each $280.00 9 Infill- Tree Planting 24" Box with RB Each $280.00 10 Priority - Tree Planting 24"Box with RB Each $280.00 11 Tree Planting 36" Box with RB Each $954.70 12 Tree Well Installation Each $272.70 13 Root Pruning L.F. $ 8.60 14 Crew Rental -3 man crew Hour $136.35 15 Emergency Crew Rental Hour $287.10 16 Watering Day $373.40 25B-5 25B-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 CLERK OF COUNCIL USE ONLY: TITLE APPROVED COOPERATIVE AGREEMENT WITH ? As Recommended CITY OF FULLERTON FOR ? As Amended IMPLEMENTATION OF EUCLID TRAFFIC E] Ordinance on Reading El Ordinance on 2n "d Reading SIGNAL SYNCHRONIZATION (PROJECT ? Implementing Resolution 126768) NONGENERAL FUND ? Set Public Hearing For r? CITY MANAGER CONTINUED TO FILE NUMBER RECOMMENDED ACTION Authorize the City Manager and Clerk of the agreement with the City of Fullerton, subject to Manager and City Attorney to implement the Project. Council to execute the attached cooperative nonsubstantive changes approved by the City Euclid Street Traffic Signal Synchronization DISCUSSION In 2006, Orange County voters approved Measure M2, which included provisions for funding the Regional Traffic Signal Synchronization Program (RTSSP) in the amount of $10 million per year. The RTSSP provides funding for projects that develop and maintain multijurisdictional traffic signal synchronization on major arterials throughout Orange County. On June 30, 2011, the Orange County Transportation Authority Board approved the local agencies' funding request for implementation of traffic signal synchronization and improvements on 66 traffic signals on Euclid Street from Talbert Avenue in Fountain Valley to La Habra Boulevard in La Habra. The local agencies participating in this project are the Cities of Fountain Valley, Santa Ana, Garden Grove, Anaheim, Fullerton, and La Habra. The Measure M2 grant approved for the project is $1,000,000, with the local agencies providing a 20 percent match of $250,000. Santa Ana's share of the match is $29,900. The City of Fullerton is the lead agency in design, construction, and management of the project. The cooperative agreement identifies the roles and responsibilities of Fullerton and all local agencies. The agreement also stipulates that Fullerton is committed to implementing the project, and will provide oversight to maintain interjurisdictional synchronization on Euclid Street during the three-year grant period. 25C-1 Cooperative Agreement with the City of Fullerton for Implementation of Synchronization of Traffic Signal Project June 18, 2012 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds for the local match in the amount of $29,900 are available in the Traffic Congestion Relief HUT (accounting unit 05917663-66220). APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency,/ RG:SA Exhibits: 1. Cooperative Agreement 25C-2 EXHIBIT 1 Cooperative Agreement for Project No. 174-46008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19j 201 21 22 23 24 25 26 27 COOPERATIVE AGREEMENT FOR PROJECT No.174-46008 BY AND BETWEEN THE CITY OF FULLERTON AND THE CITIES OF LA HABRA, ANAHEIM, GARDEN GROVE, SANTA ANA AND FOUNTAIN VALLEY FOR THE EUCLID STREET CORRIDOR PROJECT REGIONAL TRAFFIC SIGNAL SYNCHRONIZATION PROGRAM THIS COOPERATIVE AGREEMENT is effective this day of , 2012, by and between the City of Fullerton, hereinafter referred to as "FULLERTON", the City of La Habra, the City of Anaheim, the City of Garden Grove, the City of Santa Ana, and the City of Fountain Valley, hereinafter jointly referred to as "AGENCIES" or severally as "AGENCY". Collectively, FULLERTON and AGENCIES may be referred to as the "PARTIES" or individually as a "PARTY". RECITALS WHEREAS, the Measure M2 Regional Traffic Signal Synchronization Program (RTSSP) targets over 2,000 signalized intersections across Orange County to maintain traffic signal synchronization, improve traffic flow, and reduce congestion across jurisdictions; and WHEREAS, FULLERTON and the AGENCIES are committed to implementing multi- jurisdictional signal synchronization to enhance countywide traffic flow and reducing congestion; and WHEREAS, the Orange County Transportation Authority (OCTA) approved funding for the Euclid Street Corridor Project, hereinafter referred to as "PROJECT"; and WHEREAS, FULLERTON and the AGENCIES will provide matching funds as required by the Orange County Comprehensive Transportation Funding Programs; and WHEREAS, FULLERTON agrees to act as the lead agency for design, construction and Page 1 of 13 25C-3 Cooperative Agreement for Project No. 174-46008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21, 22 23 24 25 26 27 management of PROJECT; and WHEREAS, the PROJECT will include approximately sixty-six (66) traffic signals along Euclid Street, between La Habra Boulevard and I-405 Freeway, and located in the Cities of La Habra, Fullerton, Anaheim, Garden Grove, Santa Ana and Fountain Valley; and WHEREAS, the PROJECT Scope of Work includes the procurement, construction/installation of, traffic signal controller and cabinet upgrades at selected locations, new traffic surveillance cameras, signal system detection and communication upgrades, and central system upgrades at the respective Traffic Management Centers; and WHEREAS, the PROJECT Scope of Work also includes development, implementation and fine- tuning of coordination signal timing plans for various peak periods, and the ongoing monitoring and maintenance of the coordinated signal system's operation, including signal timing coordination and system communication/detection upkeep, for two years; and WHEREAS, FULLERTON agrees to work with AGENCIES to coordinate the inclusion of other traffic control elements that must be installed at the same time as the construction of the PROJECT that are NOT a part of the PROJECT Scope of Work and will be the responsibility of the AGENCIES owning each and any of those traffic control elements during the course of the PROJECT; and WHEREAS, FULLERTON and the AGENCIES acknowledge that other RTSSP corridor projects are currently underway or completed which intersect the Euclid Street Corridor Project, and that these other RTSSP corridor timing operations must be incorporated into the design and completion of this PROJECT; and WHEREAS, this Cooperative Agreement (AGREEMENT) defines the roles, specific terms, conditions and responsibilities between FULLERTON and AGENCIES; AGREEMENT NOW THEREFORE, it is mutually understood and agreed by FULLERTON and AGENCIES as follows: ARTICLE 1. COMPLETE AGREEMENT This AGREEMENT, including all exhibits and documents incorporated herein and made applicable Page 2 of 13 A 25C-4 Cooperative Agreement for Project No. 174-46008 1 by reference, constitutes the complete and exclusive statement of the terms and conditions of the agreement 2 between FULLERTON and AGENCIES concerning the PROJECT and supersedes all prior 3 representations, understandings and communications between the parties. The above-referenced Recitals 4 are true and correct and are incorporated by reference herein. 5 ARTICLE 2. RESPONSIBILITIES OF FULLERTON 6 FULLERTON agrees to the following responsibilities: 7 1. FULLERTON shall serve as lead agency for design, construction and construction management 8 of PROJECT and shall provide oversight by establishing PROJECT milestones and overseeing the 9 PROJECT development to ensure that all standards and requirements set forth by the AGREEMENT are 10 adhered to. 11 2. FULLERTON shall be responsible for completing the PROJECT in accordance with the funding 12 guidelines and any and all other federal, state, and the OCTA requirements related to these funding 13 programs. 14 3. FULLERTON shall provide staff, consultants, and contractors deemed necessary and appropriate 15 to manage, administer, coordinate, and oversee engineering design and construction management of the 16 PROJECT. 17 4. The budget for the PROJECT is One Million and Two Hundred Fifty Thousand Dollars 18 ($1,250,000). A total of One Million Dollars ($1,000,000) is funded by the OCTA Project P/Regional 19 Traffic Signal Synchronization Program. Minimum project matching funds of 20 percent amount to Two 20 Hundred Fifty Thousand Dollars ($250,000). FULLERTON'S share of match amounts to Sixty-One 21 Thousand Eight Hundred Sixty Dollars ($61,860). AGENCIES share of match amounts to One Hundred 22 Eighty-Eight Thousand One Hundred Forty Dollars ($188,140). 23 5. FULLERTON shall maintain coordination with the AGENCIES for the PROJECT. 24 6. FULLERTON shall coordinate construction activity within AGENCIES and provide schedule of 25 construction activity within each AGENCY. 26 7. FULLERTON shall collect all data necessary for the analysis and optimization of traffic signal 27 timing along the PROJECT corridor. Page 3 of 13 25C-5 Cooperative Agreement for Project No. 174-46008 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21, 22 23 24 25 26 27 8. FULLERTON shall develop new timing plans optimized for traffic signal synchronization. 9. FULLERTON shall provide on-site support to implement the timing plans as necessary. Timing plans are subject to each AGENCIES' review and approval. 10. FULLERTON shall provide the new timing plans developed for the PROJECT and all relevant data required for the signal timing analysis to the AGENCIES upon request. ARTICLE 3. RESPONSIBILITIES OF AGENCIES AGENCIES agree to the following responsibilities: 1. AGENCIES shall remit to FULLERTON within thirty (30) days of receipt of an acceptable invoice the matching funds as required by the Orange County Comprehensive Transportation Funding Programs. The AGENCIES minimum 20 percent project match amounts to One Hundred Eighty-Eight Thousand One Hundred Forty Dollars ($188,140). Details of AGENCIES' minimum match breakdown, based approximately on the number of project traffic signals and construction activity per grant application, is as follows: • City of La Habra - Twenty-Nine Thousand Dollars ($29,000), including up to $5,500 of in-kind services; • City of Anaheim - Sixty-Three Thousand, Two Hundred Eighty Dollars ($63,280), including up to $10,200 of in-kind services; • City of Garden Grove - Thirty-Five Thousand Nine Hundred Dollars ($35,900) including up to $4,200 of in-kind services; • City of Santa Ana - Twenty-Nine Thousand, Nine Hundred Dollars ($29,900) including up to $10,000 of in-kind services ; and • City of Fountain Valley - Thirty Thousand, Sixty Dollars ($30,060) including up to $3,500 of in- kind services. Documentation of AGENCIES in-kind services, such as for construction inspection services, shall meet OCTA Comprehensive Transportation Funding Program (CTFP) Guidelines. 2. At no cost to FULLERTON, AGENCIES shall provide FULLERTON with current intersection, local field master and/or central system timing plans and related data no later than thirty (30) days Page 4 of 13 25C-6 Cooperative Agreement for Project No. 174-46008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 subsequent to the execution of this AGREEMENT, and updates as they occur within seven (7) days of the I event. 3. At no cost to FULLERTON, AGENCIES shall provide to FULLERTON appropriate documents to utilize in the design and construction of infrastructure required to implement the desired coordinated and synchronized system and operations no later than thirty (30) days subsequent to the execution of this AGREEMENT, and updates as they occur within seven (7) days of the event. 4. AGENCIES shall waive all costs and fees related to any and all AGENCY required encroachment and inspection permits for the construction phase of the PROJECT. 5. At no cost to FULLERTON, AGENCIES respective Construction Inspectors shall oversee all construction work done in their respective jurisdictions. 6. At no cost to FULLERTON, AGENCIES shall provide the required maintenance related to the PROJECT's signal and communications equipment. 7. At no cost to FULLERTON, owning AGENCIES shall be responsible for coordinating the construction and/or installation of traffic control elements and other items that are NOT a part of the PROJECT Scope of Work but, by necessity, must be built concurrent with the PROJECT. ARTICLE 4. MUTUAL RESPONSIBILITIES OF THE PARTIES The PARTIES agree to the following mutual responsibilities: 1. The PARTIES shall cooperate and coordinate their staff, contractors, consultants, in providing the services and responsibilities required under this AGREEMENT to the extent practicable with respect to the performance of the PROJECT. 2. The PARTIES agree to work together in good faith, using reasonable efforts to resolve any unforeseen issues and disputes arising out of the performance of this AGREEMENT. 3. This AGREEMENT may only be modified or amended upon written mutual consent of all PARTIES. All modifications, amendments, changes and revisions of this AGREEMENT in whole or in part, and from time to time, shall be binding upon the PARTIES, so long as the same shall be in writing and executed by the PARTIES. 4. This AGREEMENT shall be governed by all applicable federal, state and local laws. The Page 5 of 13 25C-7 Cooperative Agreement for Project No. 174-46008 1 AGENCIES and FULLERTON warrant that in the performance of this AGREEMENT, each shall comply 2 with all applicable federal, state and local laws, statutes and ordinances and all lawful orders, rules and 3 regulations promulgated there under. 4 5. Each PARTY agrees to defend, indemnify and hold harmless the other PARTIES, their officers, 5 agents, elected officials and employees from all liability, claims, losses and demands, including defense 6 costs and reasonable attorneys' fees, whether resulting from court action or otherwise, arising out of the 7 negligent acts or omissions of the defending PARTY, its officers, agents, or employees, in the performance 8 of this AGREEMENT. When negligent acts or omissions of one PARTY are directed by another PARTY, 9 the PARTY directing the negligent acts or omissions shall owe this defense and indemnity obligation to the 10 PARTY following the directions. The provisions of this paragraph shall survive the termination of this 11 AGREEMENT. 12 6. Each PARTY shall be excused from performing its obligations under this AGREEMENT during 13 the time and to the extent that it is prevented from performing by an unforeseeable cause beyond its 14 control, including but not limited to: any incidence of fire; flood; acts of God; commandeering of material, 15 products, plants or facilities by federal, state or local government; national fuel shortage; or a material act 16 of omission by any PARTY; when satisfactory evidence of such cause is presented to the other PARTIES, 17 and provided further such nonperformance is unforeseeable, beyond the control and is not due to the fault 18 or negligence of the PARTY not performing. 19 7. Any notice sent by first class mail, postage paid, to the address and addressee, shall be deemed 20 to have been given when in the ordinary course it would be delivered. The representatives of the PARTIES 21 who are primarily responsible for the administration of this AGREEMENT, and to whom notices, demands 22 and communications shall be given are as follows: 23 / 24 / 25 / 26 / 27 / Page 6 of 13 25C-8 Cooperative Agreement for Project No. 174-46008 City of Fullerton - LEAD AGENCY City of La Habra City of Anaheim 303 W. Commonwealth Avenue 201 E. La Habra Boulevard 200 Anaheim Boulevard, Ste 276 Fullerton, CA 92832 PO Box 337 Anaheim, CA 92805 Attn: Thuy Nguyen La Habra, CA 90633-0337 Attn: John Thai Civil Engineer Attn: Nelson Wong Traffic Engineer (714) 738-6886 Traffic Manager (714) 765-5294 thuyn@ci.fullerton.ca.us (562) 905-9620 jthai@anaheim.net nelsonw@lahabracity.com City of Garden Grove City of Santa Ana City of Fountain Valley 11222 Alicia Parkway 20 Civic Center Plaza, M-93 10200 Slater Avenue Garden Grove, CA 92842 PO Box 1988, M-93 Fountain Valley, CA 92708-4736 Attn: Dan Candelaria Santa Ana, CA 92702 Attn: Temo Galvez Traffic Engineer Attn: Vinh Nguyen Deputy City Engineer (714) 741-5185 Senior Civil Engineer (714) 593-4517 danc@ci.garden-grove.ca.us (714) 647-5612 temo.galvez@fountainvalley.org vnguyen@santa-ana.org 8. This AGREEMENT shall continue in full force and effect through December 31, 2014, unless terminated earlier by FULLERTON and upon mutual written agreement by all PARTIES. 9. The term of this AGREEMENT may only be extended upon mutual written agreement by all PARTIES. Page 7 of 13 25C-9 Cooperative Agreement for Project No. 174-46008 IN WITNESS WHEREOF, the PARTIES hereto have caused this Cooperative Agreement for Project No. 174-46008 to be executed on the date first above written. CITY OF FULLERTON By: Sharon Quirk-Silva Mayor ATTEST: By: Lucinda Williams Date City Clerk APPROVED AS TO FORM: By: Richard Jones City Attorney Page 8 of 13 25C-10 Cooperative Agreement for Project No. 174-46008 1 IN WITNESS WHEREOF, the AGENCIES hereto have caused this Cooperative Agreement for Project No. 174-46008 to be executed on the date first above written. CITY OF LA HABRA By: Don Hannah City Manager ATTEST: By: Tamara D. Mason, MMC City Clerk APPROVED AS TO FORM: By: Richard D. Jones City Attorney Page 9 of 13 25C-11 Cooperative Agreement for Project No. 174-46008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IN WITNESS WHEREOF, the AGENCIES hereto have caused this Cooperative Agreement for Project No. 174-46008 to be executed on the date first above written. CITY OF ANAHEIM By: Tom Tait Mayor ATTEST: By: Linda Andal City Clerk APPROVED AS TO FORM: CRISTINA L. TALLEY, CITY ATTORNEY By Bryn M. Morley, Deputy City Attorney Page 10 of 13 25C-12 Cooperative Agreement for Project No. 174-46008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 IN WITNESS WHEREOF, the AGENCIES hereto have caused this Cooperative Agreement for Project No. 174-46008 to be executed on the date first above written. CITY OF GARDEN GROVE By: William Dalton Mayor ATTEST: By: Kathleen Bailor City Clerk APPROVED AS TO FORM: By Thomas F. Nixon City Attorney Page 11 of 13 25C-13 Cooperative Agreement for Project No. 174-46008 IN WITNESS WHEREOF, the AGENCIES hereto have caused this Cooperative Agreement for Project No. 174-46008 to be executed on the date first above written. CITY OF SANTA ANA By: Paul M. Walters Interim City Manager ATTEST: By: Maria D. Huizar City Clerk APPROVED AS TO FORM: By Sonia Carvalho City Attorney Page 12 of 13 25C-14 Cooperative Agreement for Project No. 174-46008 IN WITNESS WHEREOF, the AGENCIES hereto have caused this Cooperative Agreement for Project No. 174-46008 to be executed on the date first above written. CITY OF FOUNTAIN VALLEY By: John Collins Mayor ATTEST: By: Kathy Heard Deputy City Clerk APPROVED AS TO FORM: By: Allan Burns City Attorney Page 13 of 13 25C-15 25C-16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JUNE 18, 2012 TITLE APPROVED AMENDMENT TO THE AGREEMENT WITH CORDOBA CORPORATION FOR STEP 2 ENVIRONMENTAL ANALYSIS FOR SANTA ANA-GARDEN GROVE FIXED GUIDEWAY PROJECT (PROJECT 126766) NONGENERAL FUND Irk CITY MANAGER RECOMMENDED ACTION ? As Recommended ? As Amended ? Ordinance on 1st Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a second amendment to the agreement with the Cordoba Corporation for a total amount not to exceed $332,491 to complete the Step 2 Environmental Analysis for the development of the Fixed Guideway Project subject to non-substantive changes approved by the City Manager and City Attorney. BACKGROUND The Cities of Santa Ana and Garden Grove are working collaboratively with the Orange County Transportation Authority (OCTA) on the Santa Ana-Garden Grove Fixed Guideway Project. Santa Ana and OCTA have entered into two cooperative agreements for development of the project to define their respective roles and responsibilities. A Step 2 agreement for Environmental Analysis was executed in 2008 for an amount of $5.9 million, and a Step 3 agreement for Preliminary Engineering was executed in 2011 for an amount not to exceed $5,541,700, contingent on the project's acceptance into the Federal Transit Administration's (FTA) Section 5309 New Starts/Small Starts Program. In early 2010, with the prolonged economic downturn affecting potential local funding sources, OCTA directed the City of Santa Ana to prepare the project for the FTA Section 5309 New Starts/Small Starts grant funding because the project was considered to be a strong candidate under this program. The FTA became actively involved in discussions with OCTA and the Cities of Santa Ana and Garden Grove soon thereafter, and project deliverables were revised and refined to satisfy the specific requirements of the FTA and submitted to the FTA for approval. DISCUSSION In late March, the Cordoba Corporation contacted the City requesting additional funds to complete Step 2. The consultant indicated that the process was significantly altered by the decision to prepare the project to compete for the FTA's New Starts/Small Starts funding; the involvement of an additional reviewing/20inI agency (FTA) in the process resulted in Amendment to the Agreement With Cordoba Corporation for Step 2 Environmental Analysis for the Fixed Guideway Project June 18, 2012 Page 2 additional document review cycles; and thus, increased time was needed to complete the project, resulting in added costs. Additionally, a major sub consultant, URS Corporation (URS), who was responsible for preparation of the Environmental Analysis for the project was unable to deliver the environmental documents in a timely manner and of a quality acceptable to the City and the OCTA. Facing the expiration of their agreement, URS was unwilling to execute a contract extension with Cordoba without an accompanying budget amendment. Unable to negotiate acceptable agreement terms with Cordoba, the URS's contract was allowed to expire on February 29, 2012. Consequently, on April 16, 2012, the City contacted OCTA regarding the budget shortfall and the additional funds needed to complete Step 2. On May 14, 2012 the OCTA Board approved advancing $488,000 from Step 3 to Step 2 at the City's request to cover the additional costs associated with extra efforts needed to complete the environmental documents for the project. Cordoba has proposed to contract with another firm, Terry A. Hayes Associates (TAHA), to complete the environmental document for the project in a timely and cost- effective manner. TAHA has considerable, recent experience in preparing environmental documents for rail transit projects for the Los Angeles County Metropolitan Transportation Authority and for FTA Region 9. Based on TAHA's recent track record, Cordoba is confident that they will deliver the DEIR/EA on time, within budget, and consistent with City and OCTA quality standards. Staff reviewed Cordoba's request for additional funds (Exhibit 1) and substitution of their sub-consultant with TAHA, and believes an amendment to the agreement is required to complete the project in a timely manner and comply with the terms of the OCTA's cooperative agreements. This second amendment for $332,491 will bring the total contract amount to date to $5,278,315. The next steps of the project include the Alternatives Analysis which is nearing completion for submittal to the FTA for review and approval. In addition, a Draft EIR/EA and the supporting technical studies are undergoing final revision for submittal to the FTA for technical and legal sufficiency review prior to public release. Both of these tasks are expected to be completed in Spring 2013. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. 25D-2 Amendment to the Agreement with Cordoba Corporation for Step 2 Environmental Analysis for the Fixed Guideway Project June 18, 2012 Page 3 FISCAL IMPACT Funds to pay for the additional costs are available in Measure M2 Street Construction (accounting unit 03217662-66220, project 126766). w v Raul Godinez II V Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency RG/SA Exhibit 1 Revised Budget Exhibit 2 Second Amendment 25D-3 25D-4 Z O a u Z 0 U W CC Z J J_ co W W 0 co r N M ? f'- M r 00 O N M N p W W M M M M N M r LO N M r W m O O M Iq fl- I- It 00 O 00 r C) U) H N Ln I- r OO LL') O C \i M O O 00 > W N rn 00 I` r r- r r N N It 0) W C7 N 69 r 69 r 69 It 69 N 69 It N 69 ?t 69 r 69 0 64 69 N p _ r tC1 Q m 69 69 69 H O I- 00 00 Cl) CO 't O C (D 0) M Cl) r- P- co W (D - (D rn to 69 6s 6c). 6c)- 60- m W N OD O CD CD 0) 0) CO N O o r ? 00 (D - ? N A W N M O I r - cc Z J r 69 69 r G e W CL W 69 69 Z O H M N Ln (D It Cl) S (D 00 I? O of W 0 00 N 00 O 00 Ln U Wt M (D M N 0 r 00 O O N M I- N Ln ? (D LO r OD p 3t M " Cl) 1. N C \f r- I- Ln N L) Lo LO r 00 O Oo O N Ln '0 I? W W p m Z LO - r It N d N M N N (D J W 69 69 69 69 69 69 69 6-) 69 69 69 Z Q 69 d4 0 + m O C LM n O <n U c O E > ? N O o) D E S O co Q c o25 E °' c U O CZ C U w O N O U O .- - Cc O ro '- N co `1 O E C S? o CD 0 06 _ Q O M Q cn CD :t-- LL a) O > Z 4) co LLJ a) U 7 lr cu > .6 06 aE i U a 0 cn w c o ? U) cc _ a) c W W E Q CL o > U c Cn CO > -0 c '.' its tts :3 :3 U Q D Q a a U) H Q LL ii N M et Lo W N w m r0 H 0 0 25D-5 F YL 1 Y m OJ OJ Q E O U m c O d 00 T CA q N M C'7 W? II N co CD CA bf? Ln r Ch C rn N L 69 I I N C CU Q co W 25D-6 SECOND AMENDMENT TO AGREEMENT THIS SECOND AMENDMENT TO AGREEMENT is entered into on June 18, 2012 by and between Cordoba Corporation, a California corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS: A. The parties entered into that certain Agreement A-2009-122, dated August 3, 2009, (hereinafter "said Agreement") by which Consultant has provided transportation planning, environmental and engineering services for the Santa Ana and Garden Grove modem streetcar project. B. By amendment A-2011-193, dated December 19, 2011, the parties agreed to analyze an alternative build of an initial operating segment. C. The parties have determined, in conjunction with OCTA, to seek funding for the fixed guideway project through the Federal Transit Authority Small Starts/New Starts Program, which will require additional environmental analysis and additional level of document review. D. The parties now desire to amend the Scope of Services to define the additional environmental analysis required for Federal Transit Authority approval, agree upon a subcontractor to provide that analysis and add compensation to pay for the additional services. 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 1. a., Scope of Work, shall be deleted in its entirety and replaced with the following: " l.a. Scope of Work. Consultant shall perform those services as set forth in the Scope of Work attached to said Agreement, and as Exhibit A to this Second Amendment to Agreement, modified and/or supplemented by the work required to prepare the Project for FTA approval, set forth in Consultant's Amendment Request #2, attached hereto as Exhibit A-2. All exhibits referenced in this Second Amendment to Agreement shall be incorporated by reference. In addition to the project management and environmental analysis required by the original Scope of Work, as set forth above, Consultant shall provide conceptual engineering, alternatives analysis and environmental analysis of an Initial Operating Segment (IOS) build for Streetcar 1 and Streetcar 2 alternatives to be included in the DEIR/EA, and as set forth in Exhibit A-1, attached to the First Amendment to Aareement". Exhibit 2 25D-7 2. Section l.c. Time for Performance, shall be deleted in its entirety and replaced with the following: "l.c. Time for Performance. Consultant shall perform and complete all services as may be requested pursuant to the Scope of Services in a timely and expeditious manner. Consultant shall perform such services in accordance with the schedule which Consultant and City may mutually agree. The schedule attached hereto as Exhibit A-3, has been agreed by the parties and shall control the duration of the project. In the event that Consultant determines that a proposed schedule for work as requested by the City is not possible or achievable, Consultant shall immediately notify the Director of the Public Works Agency (the "Director"), or his/her designee, in writing and seek appropriate modifications. No extension of time shall be accepted unless written approval in advance is given by the Director or his/her designee." Section 2, COMPENSATION, shall be amended to increase compensation by Three Hundred Thirty-Two Thousand, Four Hundred Ninety-One Dollars ($332,491.00), to pay for the additional services required to complete the project. Said services shall be compensated on a fixed fee based on time and deliverables, with not to exceed amounts set per task, in accordance with the Budget set forth in Exhibit B, attached hereto. To clarify, if Consultant does not utilize the full amount allocated to any task, the excess shall be for the benefit of the City, and not available for allocation to other Consultant tasks. The total amount to be expended pursuant to said Agreement, as amended, shall not exceed Five Million, Two Hundred Ninety-Eight Thousand, Three Hundred Fifteen Dollars ($5,298,315.00). Consultant shall invoice the City on a monthly basis for all tasks completed during the previous month. Said invoices shall include all backup documentation provided by Subconsultants as well as deliverables charged during the period. 4. This amended Scope of Work and Compensation shall represent the final and maximum Scope of Work and Compensation between the parties for the Santa Ana and Garden Grove modern streetcar project. Said Agreement shall not be amended any further, and the compensation contemplated in this Second Amendment to Agreement shall represent the final payment from City to Consultant for all deliverables referenced in Section 1, above. 5. Section 3.a., TERM, shall be amended to extend the termination date through June 30, 2013. 6. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. /// 25D-8 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: PAUL M. WALTERS City Manager CORDOBA CORPORATION PAUL GODINEZ, II Executive Director Public Works Agency (NAME) (Title) 25D-9 EXHIBIT A CONSULTANT'S SCOPE OF WORK JUNE 2009 25D-10 EXHIBIT A - 2 Santa Ana-Garden Grove Fixed Guideway Corridor Amendment Request #2 SCOPE OF SERVICE TASK 1: PROJECT MANAGEMENT AND ADMINISTRATION 1.1 General Project Management Cordoba will continue general project management, coordinating delivery of the Scope of Services with the City of Santa Ana and the subconsultant members of the Cordoba Team through the duration of the contract. We will continue to maintain and manage the computerized project folder to provide access to project information and documents to all project participants. The computerized project folder will be populated with all technical deliverables, and meeting and presentation materials prepared to date. It will be updated bi- weekly to maintain currency throughout the duration of the contract. Deliverables: Computerized project folder updated on a bi-weekly basis; Presentations to City Councils, OCTA Board and OCTA Transit Committee 1.4 Progress Meetings We will continue to conduct Bi-Weekly status meetings and monthly PDT meetings through the duration of the contract. Deliverables: Agendas and minutes; attendance at up to 20 additional bi-weekly status meetings and 8 additional PDT meetings; action item list for each meeting. 1.5 Coordination with Other Agencies and Stakeholders We will continue to coordinate and participate in agency and stakeholder meetings related to the project, as necessary or requested by the City. We will support and participate in Stakeholder Working Group meetings through the duration of the contract. 1.6 Monthly Progress Reports, Accounting and Invoicing We will continue to provide regular monthly invoices and progress reports in the format required by the City through the duration of the contract. Deliverables: Monthly progress reports and invoices TASK 7: ALTERNATIVES ANALYSIS 7.1 Alternatives Analysis The existing Scope of Work includes submittal of the Draft Alternatives Analysis Report to the City for comment, and submittal of a revised Draft Alternatives Analysis Report for OCTA/PMO review and approval. As part of the amended work effort, Cordoba will address the comments provided by the OCTA/PMO and following OCTA approval, the document will be prepared for submittal to FTA. Following receipt of comments from FTA, the Alternatives Analysis Report will be finalized. Deliverables: Draft AA Report for FTA Review (assumes OCTA/PMO concurrence that their comments have been fully addressed) Final AA Report 25D-11 TASK 8: REFINEMENT OF LOCALLY PREFERRED ALTERNATIVE 8.2 Refine LPA Upon the City's adoption of a Locally Preferred Alternative (LPA) the Cordoba team will document the conceptual design of the LPA based upon the conceptual designs of the build alternatives developed in Task 6. This conceptual design documentation will incorporate any modifications to the physical design concept and scope of the alternative or combination of alternatives from the Reduced Set selected as the LPA. Once the design concept is documented the capital cost estimate for the LPA will be developed This estimate will be based upon the prior estimate developed in Task 6 but will be updated to reflect any changes in design concept and scope. In addition those design elements of the LPA deemed to have the highest capital cost uncertainty and risk will be refined to reduce the level of capital cost uncertainty. Similarly we will update the operating plan so that it accurately describes the LPA operating plan. This will include updating of the Operating and Maintenance cost estimate. Finally, in collaboration with the City, the Cordoba team will assemble the documentation of the LPA in a Locally Preferred Alternative Decision Document approximately 25 pages in a format conducive to communicating its characteristics benefits and costs in text graphics and visual simulations to the public, stakeholders, decision makers and potential funding partners. Deliverables: Draft Locally Preferred Alternative Decision Document for City review and approval Final LPA Decision Document, electronic (3 CDs) and thirty (30) color hard copies Presentation Graphics and Visual Simulations TASK 10: DRAFT ENVIRONMENTAL IMPACT REPORT/ENVIRONMENTAL ASSESSMENT (EIR/EA) 10.5 Administrative Draft EIR/EA The Cordoba Team will complete the incorporation of OCTA/PMO comments on the 2"d Administrative Draft EIR/EA and produce an electronic version of the 3rd Admin Draft EIR/EA. Following City and OCTA review of the 3rd Admin Draft, Cordoba will incorporate any revisions outstanding from the original review of the 2nd Admin Draft, and prepare the document for submittal to OCTA/FTA. We will revise the Section 4(f) Technical Report and the Environmental Justice Technical Report to comply with current FTA requirements. We will coordinate with the City, OCTA and FTA to prepare the Section 106 Report to address the Pacific Electric Santa Ana River Bridge, and revise the DEIR/EA as appropriate to incorporate Section 4(f), environmental justice and Section 106 write-ups. Following a review of the most recent version of the DEIR/EA (incorporating the comments received through 3/28/2012) by the City, OCTA and Cordoba team, we will produce a DEIR/EA for FTA review. The Cordoba Team will coordinate with the City of Santa Ana, OCTA and FTA to determine whether a combined environmental document (EIR/EA) or a standalone federal document (EA) is preferred. If FTA expresses a preference for the stand alone document, a separate Administrative Draft EA will be created. Deliverables: Environmental Justice Technical Report 25D-12 Section 4(f) Technical Report Section 106 Report Admin Draft EIR/EA for submittal to FTA 10.6 Draft EIR/EA The Cordoba Team will prepare a Draft EIR/EA in response to the comments received from FTA on the Admin Draft document. As described above, this may involve a single combined document or two stand alone documents. The Draft document(s) will be provided to the Cities of Santa Ana and Garden Grove and to OCTA in electronic format for review. Following approval by the cities and OCTA, the draft EIR/EA will be circulated for public comment. The Cordoba Team will provide twenty-five hard copies and up to fifty electronic copies on CD of the document (formatted as PDF with links within the document to the table of contents for internet posting) to the City of Santa Ana. The Cordoba Team will prepare an Initial Draft Executive Summary of the full document for review by the cities of Santa Ana and Garden Grove. Following City review, we will incorporate comments and provide an electronic version of the Draft Executive Summary to OCTA/PMO for review. OCTA's comments will be incorporated and following final review and approval, the Executive Summary will be provided to the cities in both hard copy and electronic format. We will attend and participate in two public workshops that will be held as part of the project's Public Hearings. Deliverables: Draft EIR/EA (50 508-compliant CDs and 25 hard copies) 1St Draft Executive Summary (electronic) 2nd Draft Executive Summary (electronic) Final Draft Executive Summary (electronic and 25 hard copies) TASK 11.0 FINAL EIR The objective of this task is to complete the CEQA process through the preparation of the FEIR. 11.1 Responses to Comments Written responses to the comments received on the Draft EIR/EA that raise significant environmental issues will be prepared and submitted to the cities of Santa Ana and Garden Grove for review. Responses to comments will be included with the Final EIR. It is not anticipated that EIR comments will require extensive research or development of the responses. Deliverables: Public comment summary matrix; Individual Comment Responses (assumes up to 50 total letters with 200 total comments) 11.2 Final EIR and NOD The Cordoba team will revise the DEIR to reflect changes in project definition and elements as a result of responses to comments from the public and agencies received during the circulation of the DEIR and testimony from the Public Hearings. This includes updates to all DEIR chapters as needed for the FEIR. The Cordoba team will coordinate updates with the City of Santa Ana staff and other jurisdictions as required. We will prepare an Administrative FEIR for the City of Santa Ana review and a revised document that incorporates the comments received from the cities of Santa Ana and Garden Grove. 25D-13 The Cordoba team will prepare a Final EIR that addresses comments and refines the work completed in the Draft EIR/EA. A preliminary Final EIR outline will be submitted to the City of Santa Ana for review and approval, including a chapter containing public comments and response to comments. Based on comments received, the Cordoba team will work closely with City on the final response to comments. The Cordoba team will prepare a summary of changes to Draft EIR, by chapter, as well as the documentation of accompanying mitigation measures and commitments. The Cordoba team will assist in the development of Programmatic and/or Memorandum of Agreements to address issues that cannot be finalized until Preliminary Engineering-level design is complete. We will draft mitigation measures based on the agreements for stipulations or mitigation measures and processes to be followed during Final Design, construction, and/or operations that have been prepared by the City. The Cordoba team will incorporate signed agreements, if any, into the FEIR by reference. The Cordoba team will include in the FEIR a complete listing of all Project impacts requiring mitigation and the proposed mitigation measures/commitments. The Cordoba team also will prepare drafts of other related CEQA environmental documents that support the adoption of the project, including Findings of Fact and Statements of Overriding Considerations that will be finalized by the City, and a Mitigation Monitoring and Reporting Plan for adoption at the time of EIR Certification. Deliverables: Two Administrative Drafts of Final EIR; Final EIR (assuming that a full-text final document is not required); Mitigation, Monitoring & Reporting Program Assistance in the preparation of the NOD; Findings of Fact and Statement of Overriding Considerations (if applicable) 11.3 Completion of the Administrative Record The Administrative Record for the project, initiated by URS and maintained through March 28, 2012 at the URS Santa Ana office will be transferred back to the Cordoba Team. Upon receipt of Notice to Proceed from Cordoba, Terry A. Hayes Associates (TAHA) will take over maintenance of the Administrative Record. Upon Certification of the EIR and Record of Decision on the EA, the Administrative Record will be transferred to the City of Santa Ana and OCTA. Deliverables: Administrative Record Contents and Index. TASK 12: COMPLETION OF EA The objective of this task is to complete the Environmental Assessment process through the issuance of a determination by FTA, which is anticipated to be a Finding of No Significant Impact (FONSI). 12.1 Input to FTA for FONSI The Cordoba team will provide input to the FTA in the preparation of the Finding of No Significant Impact (FONSI). The EA will be modified to reflect all applicable comments and responses received during agency review of the EA and the public review period. The Cordoba team will work closely with FTA, keeping them apprised of the status of finalizing and certifying the EIR as the preparation of the FONSI progresses. Once the FONSI is complete, the state clearinghouse will be notified and notices will be published in local newspapers informing the public of its availability. Deliverables: Two Administrative Drafts of Final EA; Final EA; Notices of Availability 25D-14 EXHIBIT A-3 PROJECT SCHEDULE 25D-15 f ws m `cR w E G ? ? ? J t' ? ? V 1 Q r Q n' W$ w - 0 IL - - - -- - E 12 o 0 a LL o_ G3 Q m ?O O O C 0 N ? a i° I< H a E a E LL y? T w 2 C7 yj N - ----- I E 4i e. m e m W ' !O m LS 9 l1 a 49 ¢ s - _ _ M M- O O N N N N - - N M` M M- M N N- EMI n M M T _,? - - t _ ? - - _ e r l Q W 0 ? LL ? ? ? ? C 0 Y Y 0 >> Y W Y 0 U 'C ? LL LL? '- O 0 lY 'C - j ? ? k LL lL 4Y L? LL LL CO CO ? J LL LL r ? H H ?L LL LL ? LY }+ f}. ? ? ? ? ? ? H ? ~ 1? ? h- (? 1? '--"'- Y pp? p? p O Q? p1 01 O of T Of N N N N N pf A O O N N N- N N N M M M- M M aid a3 3 03 3 ?3 03 .?'l.?" vCS?" ems-. ? nl ?S .s5 ?^ _ _ _ 9 M rri v u N ME m z ME o ? yl 5 ?" 5 +S. Yi' S 5 ?" S" 5 ?" S S Y S S S yi S$ S 5t vi 43 -8 43 q Oi Qi 01 Qa (TI Of Q> N Yf N Y J ? ? Ly 1•CC F '19 W y Y w W Lu O? a $ F U N v ? u. o, E a ?, n b$ E o a v C a N c¢ ?i E N C t Y O O Y ¢ FI S E E v 6 C a m u? a NO LL E U ryl C y U - W _6 U Y (n .r3 as IE O z 'k c ea K 3 `{i ° N m yNn 4 o m z FS 9 E VI Y c O ?. W ap C C e6 F= K H u a3 8 U LL O q .e ?' t3 E ?' g E 4 3 ad Y '?_ v _ € .S' ?, >? s u 3E o = s .? N r O i Z' c g Y a' & g y o' u° o m$ w W U G!} °° " S 1? $ ?' z o ? ?- `°d ¢ ?wT u_ Gi u?' '_?' 8 o $j E 'W E > 3 $ < E A rn v m Ji 10 ' ?' W ? c yi gi a S £ . fie 0 W0y? rn $ N>W O Ti CS LL ¢ LL c S p ?i ?i LL LL Q & S _? V .°? .7y{ r V DY ?C CJ I AS A, 1 V a U ? a ? ON Q G U ? pG ? CL C ? ? M < - Vf Yl Yl rn ? ? C ? K ? N M Tr p N CS V Y'Y t0 lam. m Q> > N Q 1? r -. r r -? m? a? = m as O G O O G O O O O G G ^ N .i Z r '- d N N O O O O o N }Y? ? N 'd [h ? O '. O O AA pp p 1? (p ?p p? O ?y {? y? ?p ?- N lh V' Iff t0 I? OD O! ? ? ? I ? ? ? N ? N i? ?? c'7 I f+f ? Q 7 V' ? ? I R < Q Q Q Y1 1p ICJ ?[f ? IfJ 4> ? 8 M 1 Q /r W 2 W EXHIBIT B FEE SCHEDULE 25D-17 L O U m d M V N x LL d a 0 c? c d M L fO c Q m C m N Z 0 H Q U Z 0 w t7 Z m W C9 m W CM CN 00 O M 01 1A w r- m 1 M w r N 00 M O .-- N U) M N O ce) to V. y O O) 1 t` r- Q 00 O 00 M W LU N LA f- - 00 O N y M O O OD OC V• - t` b9 N to O_ (fl 00 n N (R .- T N. N EH .- r- fA 1- O n fA V r OI N Q m 0% - 64) 6 40j, 1-- O H W (O DC) (0 M M 0) M W -L ( y r ti O OD Z 04 04 co 69 6 69 < M ? q m 69 fA ? 9 h m w or z 0 Go ° 0 0) 0 C%l tt ' OD m N W ? 1l ) M 0 as a 4? oZE 00 20 w 0 O O Go Go " M LO N it J (A (H b9 ? Z N O :E Q M S 00 N O C LO N m (O 00 N It O M M OD t` LO N O LO (O OD M y t` (O Ul O ce) v N F- L - O Z Lu U) N N t- ' to t- to h N O O V to N (V e OD Cr V O N N N h N y IT t- V) 5 R ;; ': 6s / &3? 69 6-k - 69 - 69 o CO (fl r, c N O O C O E a m c m w d c m E m E o g m rn 0a E m c -5 4) o Y 'o d c e d w y ° w 4) - .2 o LL d) ca °a E 0i a -o o a o > Z o m W (D ° U 7 m °> °a ca y v o to LU G U o 9f 0 3 m W W E Z E o c N > c c 'O Q 7 a 7 a U co H O U Q ¢ 'O Q 7 LL ii J r N M ?' (O co O O T F T 0 0 F-N OA 7 O N C E O to c Q Y N N ° ?T+ v a? s O a-i Y N Y N Y c N v LL 76 0 G1 N Y m f0 0) m ? N tko m x d o LAJ 25D-18 M N O V L L O V co 0 4) LL O L C 47 M t0 T to Q f0 C f0 N Z O P Q U Z O V W Z J J_ m W 0 m .-1 W N W M M Ifl M n M M 00 .-i N a0 m O e/ N Ln M N O m In rl J W W F C7 01 N O Iri O f- m .--i v 06 n Lf n O tl• N 00 rn O M 00 O a-1 O m D > 0 = '-1 n N "I M -1 00 CT n N -f -cr n N .-1 ' -4 i n n ct O 01 W m ? t/1 r iA LT L? ?,.? i/1• d iA r L? O in ei V1 N to V? N i? M an m N t 0 V Cl) N 60 69 Y ) < N N J N C ch ? Ln ffl Q91_ ? CJD co OD C%j LO CD r% wt m C7 O O n 2 0) 0) ? cli 0 Lf) 64 r% c" N (n .- O r v C O 7 r M N N 0 0 M O O 1 O L co C m O 69 M r b9 O gi 00 O a Lf) o 1 C Ln Q Cl) f" N Ce) O Cl) Mf Z G M M a w to ? M U) ooo N C Cl n = M O 000 N a s v EA C V' fR 69 n Ln ? Al Vf O CO r- f0 0 M 0 W w r 00 O O 0 r 00 f0 'cf n Cl) N O N n m O Q r 0 0 0 o O O Cl) 0 N 00 01 ?f to O0 o r to N Nn' w lA 0 CO N N N 69 CO l - 61 1 N fR ?p f/9 14 o fA ff 9 bq Do . N N C U N C y N C O E 0 co r f0 c C d N m m E rn = E S o g T E o? E c' 8p c t5 O 6 C W - U O Y 'p d c ca c ? Q p c .° o c ca a v OL ~ ca E ?i c w W o E a. o > Z p c _W r c o m > ca 08 E T -p C W Z; v U) C a W W E O E' a o > c to m > y c o a' a' to l- U Q Q Q ti ii J - N co v In O r ao fA O • Q r m ? N m 4J = a x W 25D-19 25D-20 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE THIRD AMENDMENT TO THE AGREEMENT WITH CINDY KREBS CONSULTING, INC. FOR GO LOCAL PROJECT MANAGEMENT OVERSIGHT (PROJECT NO. 092505) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on Vt Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached third amendment to the agreement with Cindy Krebs Consulting, Inc. to extend the term of the contract to December 31, 2012 in the amount of $75,000 subject to non-substantive changes approved by the City Manager and City Attorney. BACKGROUND The Cities of Santa Ana and Garden Grove are working collaboratively with the Orange County Transportation Authority (OCTA) on the Santa Ana-Garden Grove Fixed Guideway Project. Santa Ana and OCTA have entered into two cooperative agreements for development of the project to define their respective roles and responsibilities through Steps 2 and 3 of Measure M2's Go Local Program. A Step 2 agreement for Environmental Analysis was executed in 2008 for an amount of $5.9 million, and a Step 3 agreement for Preliminary Engineering was executed in 2011 for an amount not to exceed $5.5 million, contingent on the project's acceptance into the Federal Transit Administration's (FTA) Section 5309 New Starts/Small Starts Program. In early 2010, with the prolonged economic downturn affecting potential local funding sources, OCTA directed the City of Santa Ana to prepare the project for FTA Section 5309 New Starts/Small Starts grant funding because the project was considered to be a strong candidate under this program. The FTA became actively involved in discussions with OCTA and the Cities of Santa Ana and Garden Grove soon thereafter, and project deliverables were revised and refined to satisfy the specific requirements of the FTA and submitted to the FTA for approval. DISCUSSION The City required professional assistance from a qualified consultant with extensive transit background to take the Go Local Transit Vision from concept to completion. In 2009 the City 25E-1 Amendment to Agreement with Cindy Krebs Consulting, Inc. for Go Local Project Management Oversight June 18, 2012 Page 2 of 2 enlisted the services of Cindy Krebs Consulting Inc. (CKC) to work closely with the City's Project Manager and other key City, OCTA and consultant staff assigned to the Go Local Project. Cindy Krebs has functioned as an extension of staff to provide oversight and direction to the modern streetcar consultant team and other consultants selected to assist the City with key deliverables and implementation of the Go Local Transit Vision. In 2010, after the City's consultant contract with Cordoba Corporation for the Go Local Step 2 was awarded, OCTA directed the City of Santa Ana to prepare the project for the FTA Section 5309 New Starts/Small Starts grant funding because the project was considered to be a strong candidate under this program. CKC has been providing technical support and project management oversight for the Go Local project and it is recommended that her contract be extended to ensure continuity of project oversight. This third amendment will bring the total contract amount to date to $555,000 for the period of time between May 2009 and December 2012. On May 14, 2012, the OCTA Board approved advancing $488,000 from Step 3 to Step 2 at the City's request to cover the additional costs associated with extra efforts needed to complete the environmental documents for Step 2 of the Go Local project. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The project management oversight services for the maximum of $75,000 are funded from the $488,000 received per OCTA Board action on May 14, 2012. Funds are available in the OCTA Transitway Project (account unit 03217661-66220, project no. 092505). APPROVED AS TO FUNDS AND ACCOUNTS: RauFGodinez II Executive Director/ Public Works Agency RG/SA Exhibit 1: Third Amendment Francisco Gutierrez Executive Director/ Finance & Management Services Agency 25E-2 EXHIBIT 1 THIRD AMENDMENT TO AGREEMENT BETWEEN CITY OF SANTA ANA AND CINDY KREBS CONSULTING, INC. THIS THIRD AMENDMENT TO AGREEMENT, made and entered into this 18`h day of June, 2012 by and between Cindy Krebs Consulting, Inc., a California Corporation (hereinafter "CKC"), 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-2009-091, dated June 8, 2009, by which CKC has provided services as the City's Program Transit Management Consultant (PTMC) to assist in forming and implementing the Go Local Transit Vision (said "Agreement"). B. Said Agreement has been amended on July 19, 2010, and again on May 16, 2011 to adjust the number of service hours CKC will provide, and to provide compensation for those services. C. The parties hereto now would like to more fully define the services to be provided by CKC, extend the agreement for an additional one-year period, and add compensation for CKC's services during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Third Amendment to Agreement, the parties agree as follows: Section 1, SCOPE OF SERVICES, shall be deleted in its entirety and replaced with the following: "CKC shall supplement City staff by serving as a Project Management Oversight (PMO) consultant working closely with the City's Project Manager and other key City, OCTA and consultant staff assigned to the Go Local Program. CKC shall commit up to sixteen (16) hours per week to the management of the project on a monthly basis. CKC will provide support to the Project Manager, the consultant team and other consultants selected by the City to assist the City with key deliverables and implementation of the Fixed Guideway Project. CKC will also provide advice to the City regarding the obligations and responsibilities among the City and external agencies such as OCTA, CalTrans, and FTA. Tasks to be performed by CKC include meeting attendance, development of written correspondence including memos, letters, staff reports, meeting minutes, agendas and presentations to the City Council and OCTA Board at the request of the Executive Director or his designated representative, as well as written and oral progress reports to the City's Project Manager, key City staff and Citywide consultant team. CKC shall perform all services listed in Exhibit A-1, attached hereto and incorporated herein." 2. Section 2. COMPENSATION, shall be deleted in its entirety and replaced with the following: "a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the hourly rate of $138.60. The total sum to be expended pursuant to this Agreement during the extended term from June 1, 2012 through December 31, 2012, shall not exceed Seventy 25E-3 Five Thousand Dollars ($75,000.00), which includes a ten-percent contingency for unanticipated work during the extended term. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice, subject to City accounting procedures. Each submitted invoice shall report activities provided during the previous month including meetings attended, minutes of such meetings, tasks/deliverables completed, a report of new issues and action plans to address those issues, and previous issues which have been resolved. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City." 3. Section 3, TERM, shall be amended to extend the term for an additional seven (7) month period, through December 31, 2012 4. All other terms and conditions of the Agreement shall remain in effect and unchanged. IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA: PAUL M. WALTERS City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney CINDY KREBS CONSULTING, INC. By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director Public Works Agency CINDY KREBS 25E-4 EXHIBIT A-I Scope of Work Santa Ana Transit Program Oversight The City of Santa Ana requires professional assistance to take its Go Local Transit Vision - Fixed Guideway Project from concept to completion. Serving as the City of Santa Ana's Transit Project Management Oversight (PMO) consultant, Cindy Krebs Consulting, Inc. will provide the following services: a. Under the direction of the Executive Director or his designated representative, provide assistance and support to the citywide team to develop and deliver Santa Ana's Fixed Guideway Project. Said assistance shall include monitoring the Project's progress to ensure it is on time, within budget, in conformance with design and environmental criteria and is efficiently and effectively implemented. b. PMO shall, at the direction of the Executive Director or his designated representative: 1. Develop and maintain the schedule for the Fixed Guideway project and prepare updates at key milestones for presentation as requested by the Executive Director. 2. Review and evaluate OCTA and FTA processes to ensure City team submittals comply with statutory, regulatory and administrative requirements. PMO shall be responsible for tracking key deliverables and implementation schedules and issues. 3. As needed, attend meetings with the City's Go Local Project Manager and transit program team to: • Discuss project status • Identify issues • Develop solutions • Provide process support. 4. Attend the following Orange County Transportation Authority (OCTA) meetings and prepare meeting summaries for each: • Board of Directors • Transportation 2020 Committee • Transit Committee • Rail Technical Advisory Committee. Meeting summaries shall include decisions approved, new issues presented, responsible personnel and timelines for completion of tasks/deliverables. 25E-5 5. At the direction of the Executive Director, attend meetings of the Mayor and City Council to provide information and status updates on Santa Ana's Go- Local Project and other transit-related issues. c. Support and advise the Executive Director in coordination with other City departments (e.g., Community Development, Planning and Building) on issues and opportunities related to the Go Local Transit Vision d. Advise the Executive Director or his designated representative on matters related to transit policy, funding, program requirements, and implementation strategies. 25E-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: AGREEMENT WITH COMMUNITY SENIORSERV, INC. FOR SENIOR MEALS PROGRAMS l? 1 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 Authorize the City Manager and Clerk of the Council to execute the attached sub-recipient agreement with Community SeniorServ, Inc. in the amount of $80,000, subject to non- substantive changes approved by the City Manager and City Attorney. DISCUSSION In May 2011, the Parks, Recreations and Community Services Agency (PRCSA) was allocated Community Development Block Grant (CDBG) funding to support Senior Meals Programs. PRCSA, which manages and coordinates a variety of programs and activities for seniors, will utilize the allocation of CDBG funds to enter into a sub-recipient agreement with Community SeniorServ, Inc. to continue to provide the two programs, described below, in Santa Ana for the program year 2012-2013. The Meals on Wheels program prepares and delivers three meals daily directly to the homes of homebound, frail, and socially isolated seniors in the City. A registered dietician plans the meals to assure 100% of the U. S. Nutritional Recommended Daily Allowance - consisting of breakfast, a cold lunch, and a frozen dinner. In addition to meals, clients benefit from daily contact with delivery staff as well as the calls and/or visits from case workers who regularly check on their well-being. The Senior Lunch Program will be offered at three sites in Santa Ana (Santa Ana Senior Center, Southwest Senior Center, and Vietnamese Community Center) to help alleviate poor nutrition among the elderly population, especially prevalent among those who live alone and/or on a limited income. This nutrition program seeks to enhance the physical and mental well-being of the elderly population by: 25F-1 Agreement for Senior Meals Programs June 18, 2012 Page 2 • Encouraging a sense of dignity; • Providing stimulating activities and volunteer opportunities; and • Augmenting participants' financial resources by providing donation-based meals. The Senior Lunch Program meals are also planned and certified by a dietician to meet one third of each person's daily nutritional needs based on FDA guidelines. FISCAL IMPACT Funds are available in the CDBG account (13518783 69135). Gerardo Mouet Executive Director Parks, Recreation and Community Services Agency APPROVED AS TO FUNDS AND ACCOUNTS: A r , -, ? " I,- " Francisco Gutierrez 1..0, Executive Director U Finance & Management Services Agency Nancy T. Edwards Interim Executive Director Community Development Agency GRM/NTE/fh Exhibit: 1. Agreement 25F-2 6-18-12 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND COMMUNITY SENIORSERV, INC. FOR USE OF COMMUNITY DEVELOPMENT BLOCK GRANT FUNDS This Agreement, is hereby made and entered into this 1 st day of July, 2012, by and between the City of Santa Ana, a charter city and municipal corporation of the State of California ("CITY") and Community SeniorServ, Inc., a California nonprofit corporation ("SUBRECIPIENT"). Recitals: WITNESSETH A. The CITY, as an entitlement recipient and grantee of the United States Department of Housing and Urban Development ("HUD") Community Development Block Grant ("CDBG") Program, desires to enter this Agreement with the SUBRECIPIENT for the expenditure of CDBG funds in accordance with Title 24, Part 570 of Code of Federal Regulations 24 CFR 570.000, et seq. ("CDBG REGS"); and B. CITY has applied for and received CDBG funds from HUD pursuant to Title I of the Housing and Community Development Act of 1974, Public Law 93-383, as amended ("ACT"); and C. The SUBRECIPIENT is a private nonprofit agency that has been selected by the CITY to receive CDBG funds and administer such financial assistance; and to provide the services described in Exhibit A, in accordance with the schedule of performance included therein, hereinafter referred to as "said program". SUBRECIPIENT represents that it is qualified and willing to operate said program and certifies that the activities carried out with funds provided under this Agreement will meet one or more of the CDBG program's National Objectives (24 CFR Part 570.208). D. SUBRECIPIENT agrees that it will adhere to the performance measurements and outcomes as indicated on Exhibit A-1 (Outcome Tracking). Failure to follow the measurements and meet the stated outcomes may constitute breach of contract that could result in termination of this Agreement or serve as reason for the City to recapture the grant funds awarded to SUBRECIPIENT pursuant to this Agreement. E. The CITY and SUBRECIPIENT have duly executed this Agreement for the expenditure of such funds; and WHEREFORE, it is agreed by and between the parties that the foregoing Recitals are a substantive part of this Agreement and the following terms and conditions are approved and together with all exhibits and attachments hereto, shall constitute the entire Agreement between the CITY and SUBRECIPIENT: 25F-3 6-18-12 1. SUBRECIPIENT'S OBLIGATIONS A. Non-Profit Status - Representations and Warranties. (a) Authority. SUBRECIPIENT is a duly organized and existing non-profit corporation in good standing and authorized to do business under the laws of the State of California. SUBRECIPIENT has full right, power and lawful authority to accept the funding hereunder and to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by SUBRECIPIENT has been fully authorized by all requisite actions on the part of SUBRECIPIENT. (b) Experience. SUBRECIPIENT is a qualified provider of the services to be provided hereunder. (c) Familiarity With Services Required. By executing this Agreement, SUBRECIPIENT warrants that (i) it has thoroughly investigated and considered the services to be performed and provided hereunder, (ii) it has carefully considered how the services should be performed, and (iii) it fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. (d) No Conflict. To the best of SUBRECIPIENT'S knowledge, SUBRECIPIENT'S execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which SUBRECIPIENT is a party or by which it is bound. (e) No Bankruptcy. SUBRECIPIENT is not the subject of any current or threatened bankruptcy proceeding. (f) No Pending Legal Proceedings. SUBRECIPIENT is not the subject of a current or threatened litigation that would or may materially affect SUBRECIPIENT' S performance under this Agreement. (g) Application Veracity. All provisions of and information provided in SUBRECIPIENT' S application for funding submitted to CITY including any exhibits are true and correct in all material respects. (h) No Pending Investigation. SUBRECIPIENT is not aware that it is the subject of any current or threatened criminal or civil action investigation by any public agency, including without limitation a police agency or prosecuting authority, that would relate to affect performance of the Agreement or provision of services hereunder. B. Amount of Grant and Quarterly Disbursement. The amount granted to SUBRECIPIENT is $ 80,000 ("CDBG FUNDS"), and such funds shall be expended by SUBRECIPIENT on or before June 30, 2013. The CDBG FUNDS shall be disbursed by CITY to SUBRECIPIENT on a quarterly basis on or before the 15th of each of the following months (October, January, April and July) subject to and upon receipt and approval of a complete 2 25F-4 6-18-12 quarterly activity report from SUBRECIPIENT, with the final payment subject to the satisfaction of the condition precedent of submittal of complete reporting information due on or before July 15 of the applicable funding year, as hereinafter more fully set forth. SUBRECIPIENT shall be obligated to perform such duties as would normally extend beyond the term, including but not limited to obligations with respect to indemnification, audits, reporting, data retention/reporting, and accounting. Failure to provide any of the required documentation and reporting will cause CITY to withhold all or a portion of a request for reimbursement, or return the entire reimbursement package to SUBRECIPIENT, until such documentation and reporting has been received and approved by CITY. C. Use of Funds. SUBRECIPIENT agrees to use all federal funds provided by CITY to SUBRECIPIENT pursuant to this Agreement to operate said program, as set forth in "Exhibit A," attached hereto and by this reference incorporated herein. SUBRECIPIENT'S failure to perform as required may, in addition to other remedies set forth in this Agreement, result in readjustment of the amount of funds CITY is otherwise obligated to pay to SUBRECIPIENT hereunder. D. Allowable Costs. SUBRECIPIENT agrees to complete said program on or before June 30, 2013 and to use said funds to pay for necessary and reasonable costs allowable under the federal law and regulations to operate said program. Said amounts shall include, but not be limited to, wages, administrative costs, and employee benefits comparable to other similarly situated employees. Other allowable program costs are detailed in the Budget, as set forth in "Exhibit B," attached hereto and by this reference incorporated herein. SUBRECIPIENT shall use all income received from said funds only for the same purposes for which said funds may be expended pursuant to the terms and conditions of this Agreement. E. Licensing. SUBRECIPIENT agrees to obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing its operations. SUBRECIPIENT shall ensure that its staff shall also obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing SUBRECIPIENT's operations hereunder. Such licensing requirements include obtaining a City business license, as applicable. F. Zoning. SUBRECIPIENT agrees that any facility/property used in furtherance of said program shall be specifically zoned and permitted for such use(s) and activity(ies). Should SUBRECIPIENT fail to have the required land entitlement and/or permits, thus violating any local, state or federal rules and regulations relating thereto, SUBRECIPIENT shall immediately make good-faith efforts to gain compliance with local, state or federal rules and regulations following written notification of said violation(s) from the CITY or other authorized citing agency. SUBRECIPIENT shall notify CITY immediately of any pending violations. Failure to notify CITY of pending violations, or to remedy such known violation(s) shall result in termination of grant funding hereunder. SUBRECIPIENT must make all corrections required to bring the facility/property into compliance with the law within sixty (60) days of notification of the violation(s); failure to gain compliance within such time shall result in termination of grant funding hereunder. 3 25F-5 6-18-12 G. Separation of Accounts. All funds received by SUBRECIPIENT from CITY pursuant to this Agreement shall be maintained in an account in a federally insured banking or savings and loan institution with record keeping of such accounts maintained pursuant to applicable OMB Circular A-110 requirements. SUBRECIPIENT is not required to maintain separate depository accounts for CDBG FUNDS; provided however, the SUBRECIPIENT must be able to account for receipt, obligation and expenditure of CDBG FUNDS pursuant to applicable OMB Circular A-110 requirements. H. Audit Report Requirements. SUBRECIPIENT agrees that if SUBRECIPIENT receives Five Hundred Thousand Dollars ($500,000.00) or more in federal funds, SUBRECIPIENT shall have an annual audit conducted by a certified public accountant in accordance with the standards as set forth and published by the United States Office of Management and Budget. SUBRECIPIENT shall provide CITY with a copy of said audit by October 1 of the year following the program year in which this Agreement is executed. 1. Record Keeping/Reporting. SUBRECIPIENT shall keep and maintain complete and adequate records and reports to assist CITY in meeting and maintaining its record keeping responsibilities under the CDBG REGS, including the following: (1) Records a. Documentation evidencing program income requirements in conformity with 24 CFR 570.504(b((2)(i), (ii) and 24 CFR 570.503(b)(3) and 24 CFR 570.208(a)(2)(B) of the income level of persons and/or families participating in or benefiting by the SUBRECIPIENT program. b. Documentation of the number of persons and/or families participating in or benefiting by the SUBRECIPIENT program. c. Household information shall include number of persons, identification of head of household, race/ethnicity, and income verification. d. Documentation of all CDBG FUNDS received from CITY. e. Documentation of expenses as identified in the Budget Proposal, including evidence of incurring the expense, invoices for goods or services, copies of any and all contracts or documentation pertaining to costs for subcontractors, plus all other invoices for which CDBG FUNDS were expended, and any payments therefor. f. Any such other related records as CITY shall reasonably require or as required to be maintained pursuant to the CDBG REGS. (2) Reports (i) Payment Request. Concurrently with the submittal of each quarterly report, on or before the 15th day of October, January, 25F-6 6-18-12 April and July, SUBRECIPIENT shall submit both: an original invoice and true copies of invoices, receipts, agreements, copies of any and all contracts or documentation pertaining to costs for subcontractors or other documentation supporting and evidencing how the CDBG FUNDS have been expended during the applicable quarter. (ii) Quarterly Activity Report: SUBRECIPIENT agrees to keep monthly records of all ethnic and racial statistics of persons and families benefited by SUBRECIPIENT in the performance of its obligations under this Agreement, including, but not limited to, the number of low and moderate income persons and households assisted in accordance with federal income limits, the number of female heads of households assisted, new program information and year-to-date program statistics on expenditures, caseload and activities. Failure to provide any of the required documentation and reporting will cause CITY to withhold all or a portion of a request for reimbursement, or return the entire reimbursement package to SUBRECIPIENT, until such documentation and reporting has been received and approved by CITY. J. Access to Records. CITY and the United State Government and/or their representatives shall have access for purposes of monitoring, auditing, and examining SUBRECIPIENT's activities and performance, to books, documents and papers, and the right to examine records of SUBRECIPIENT's subcontractors, bookkeepers and accountants, employees and participants in regard to said program. CITY and the United States Government and/or their representatives shall also schedule on-site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder is conducted or in which any of the records of SUBRECIPIENT are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. K. Location of Records/Required Length of Record Keeping. All accounting records, reports, and evidence pertaining to all costs, expenses and the CDBG FUNDS of SUBRECIPIENT and all documents related to this Agreement shall be maintained and kept available at SUBRECIPIENT'S office or place of business for the duration of the Agreement and thereafter for five (5) years after completion of an audit in conformity with the CDBG REGS's. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which CITY or any other governmental agency takes exception, shall be retained beyond the five (5) years until complete resolution or disposition of such appeals, litigation claims, or exceptions. In the event SUBRECIPIENT does not make the above-referenced documents available within the city of Santa Ana, California, SUBRECIPIENT 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. 5 25F-7 6-18-12 L. Compliance with Law/Program Income. SUBRECIPIENT acknowledges that the funds being provided by CITY for said program are received by CITY pursuant to the ACT as amended and that expenditures of these funds shall be in accordance with the ACT and all pertinent regulations issued by agencies of the federal government, including, but not limited to, all regulations found at Title 24 of the Code of Federal Regulations. Program income received by SUBRECIPIENT shall be returned to CITY unless otherwise provided for in this Agreement. SUBRECIPIENT agrees to comply fully with all federal, state and local laws and court orders applicable to its operation whether or not referred to in this Agreement. M. Standing. SUBRECIPIENT shall be in good standing, without suspension by the California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in the corporate status or suspension of SUBRECIPIENT shall be reported immediately to CITY. N. Confidentiality. Without prejudice to any other provisions of this Agreement, SUBRECIPIENT shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. However, SUBRECIPIENT shall submit to CITY and or HUD or its representatives, all records requested, including audit, examinations, monitoring and verifications of reports submitted by SUBRECIPIENT, costs incurred and services rendered hereunder. 0. Independent Contractor. SUBRECIPIENT agrees that the performance of obligations hereunder is rendered in its capacity as an independent contractor and that it is in no way an agency of CITY. P. Violation of Terms and Conditions. SUBRECIPIENT agrees that if SUBRECIPIENT violates any of the terms and conditions of this Agreement or any prior Agreement whereby CDBG funds were received by SUBRECIPIENT, or if SUBRECIPIENT reports inaccurately, or if on audit there is a disallowance of certain expenditures, SUBRECIPIENT agrees to remedy the acts or omissions causing the disallowance and repay CITY all amounts spent in violation thereof. If SUBRECIPIENT engaged in fraudulent activity to obtain and/or justify expenditure of the CDBG funds granted hereunder, SUBRECIPIENT shall be required to reimburse the CITY of all such funds that were obtained/spent under fraudulent circumstances. Q. Equipment. SUBRECIPIENT agrees to maintain a record for each item of non- expendable personal property acquired under the terms of this Agreement. Said record shall be made available to CITY upon request. The term "non-expendable personal property" shall include leased and purchased equipment. R. Prohibited Use. SUBRECIPIENT hereby certifies and agrees that it will not use funds provided through this Agreement to pay for entertainment, meals or gifts. S. Lobbying. SUBRECIPIENT certifies that it will comply with federal law (31 U.S.C. 1352) and regulations found at 24 CFR Part 87, 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, 6 25F-8 6-18-12 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. SUBRECIPIENT shall sign a certification to that effect in a form as set forth in "Exhibit C," attached hereto and by this reference incorporated herein. SUBRECIPIENT 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 SUBRECIPIENT under the terms and conditions of this Agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit a "Disclosure Form to Report Lobbying," in accordance with its instructions (see C-1). T. Financial Interest. SUBRECIPIENT agrees that except for the use of CDBG funds to pay salaries and other related administrative or personnel costs, no persons who exercise or have exercised any function with respect to CDBG activities assisted under the terms of this Agreement, or who are in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a financial interest or benefit from a CDBG-assisted activity of SUBRECIPIENT, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. This prohibition applies to any person who is an employee, agent, consultant, officer, or elected or appointed official of CITY, or of any designated public agencies, or the SUBRECIPIENT. U. Davis-Bacon Act. All laborers and mechanics employed by contractors or subcontractors in the performance of construction work, including alterations and repairs, in excess of $2,000.00, financed in whole or in part with federal funds shall be paid wages at rates not less than those prevailing on similar construction in the locality as determined in accordance with the Davis-Bacon Act, as amended, 40 U.S.C. sections 276a - 276a-5. Any such construction contract shall include and comply with the required contract provisions and rules set forth in 29 C.F.R. §5.5. Further, the payroll reports (along with the "Statement of Compliance") and basic records are required to be maintained and submitted, or made available, pursuant to 29 C.F.R. §5.5(a)(3). No payment, advance, grant, loan or guarantee of funds shall be approved by the federal agency unless there is on file with the agency a certification by the contractor that the contractor and its subcontractors have complied with the provisions of 29 C.F.R. §5.5. A breach of the contract clauses in 29 C.F.R. §5.5 may be grounds for termination of the contract, and for debarment as a contractor/subcontractor, as provided in 29 C.F.R. §5.12. Labor standards interviews/investigations shall be made as necessary to assure compliance [29 C.F.R. §5.6(a)(3)]. V. Drug Free Workplace. SUBRECIPIENT certifies that it has established the following drug-free workplace policy: 25F-9 6-18-12 1. The unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the workplace for any employee involved in a federally funded program. 2. As an employee working in conjunction with a federally funded program, the employees of SUBRECIPIENT will be required to: a) Abide by the terms above in statement 1. b) Notify appropriate officials of SUBRECIPIENT and CITY officials of any criminal drug statute conviction for a violation occurring in the workplace not later than five days after such conviction. 3. The CITY and the United State Department of Housing and Urban Development will be notified within ten days after receiving notice of any such violation. 4. Within 30 days of receiving such notice, appropriate personnel action will be taken against such employee, up to and including termination. Each such employee shall be required to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement, or other appropriate agency. W. Uniform Administrative Requirements for Non-Governmental Subrecipients/Non- Profits. The following requirements and standards must be complied with: OMB Circular A-122 "Cost Principles for Non-Profit Organizations" or OMB Circular A-21 "Cost Principles for Educational Institutions", as applicable; 24 CFR Part 84, "Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations," as modified by 24 CFR 570.502(b); and, OMB Circular A-133, "Audits of States, Local Governments and Non-Profit Organizations". X. Subpart K of 24 CFR 570. SUBRECIPIENT will carry out its activities in compliance with the requirements of Subpart K of 24 CFR 570, however SUBRECIPIENT does not assume the CITY's environmental responsibilities or the responsibility for initiating the environmental review process under 24 CFR Part 52. II. CITY'S OBLIGATIONS A. Payment of Funds. Upon execution of this Agreement by SUBRECIPIENT, CITY shall pay to SUBRECIPIENT from CDBG funds, when, if and to the extent received from HUD, for CITY's 2012-2013 CDBG program year amounts expended by SUBRECIPIENT in carrying out said program for fiscal year 2012-2013 pursuant to this Agreement up to a maximum aggregate payment of Eighty Thousand Dollars ($80,000) in installments determined by CITY. Payments shall be made to SUBRECIPIENT through the submission of invoices on a quarterly basis on or before the 15'' of the following months (October, January, April and July) in a form prescribed by CITY, detailing such expenses. 8 25F-10 6-18-12 CITY shall pay such invoices within thirty (30) days after receipt thereof provided CITY is satisfied that such expenses have been incurred and documented within the scope and provisions of this Agreement and that SUBRECIPIENT is in compliance with the terms and conditions of this Agreement. Failure to provide any of the required documentation and reporting will cause CITY to withhold all or a portion of a request for reimbursement, or return the entire reimbursement package to SUBRECIPIENT, until such documentation and reporting has been received and approved by CITY. B. Audit of Account. CITY shall include an audit of the account maintained by SUBRECIPIENT in CITY's annual audit of all CDBG FUNDS in accordance with Title 24 of the Code of Federal Regulations and other applicable federal laws and regulations. C. Common Rule: Pursuant to CFR 85.40(a), the CITY manages the day-to-day operations of each grant and subgrant supported activities. CITY staff has detailed knowledge of the grant program requirements and monitors grant and subgrant supported activities to assure compliance with Federal requirements. Such monitoring covers each program, function and activity and performance goals are reviewed periodically. D. Environmental Review: In accordance with 24 CFR 58, the CITY is responsible for undertaking environmental review and maintaining environmental review records for each applicable project. E. Performance Monitoring: CITY shall monitor the performance of the SUBRECIPIENT against goals and performance standards required herein. Substandard performance as determined by the CITY will constitute non-compliance with this Agreement. If action to correct such substandard performance is not taken by the SUBRECIPIENT within a reasonable period of time after being notified by the CITY, contract suspension or termination procedures will be initiated. III. NONDISCRIMINATION SUBRECIPIENT agrees that no person on the ground of race, age, color, national origin, religion or sex will be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with CDBG funds. IV. CONFLICT OF INTEREST Pursuant to the conflict of interest requirements set forth in 24 CFR 576.57 and OMB Circulars 1-102 and A-110, SUBRECIPIENT agrees that no officer, employee, agent or assignee of CITY having direct or indirect control of any CDBG monies granted to the CITY, inclusive of the subject CDBG FUNDS, shall serve as an officer of SUBRECIPIENT. Further, any conflict or potential conflict of interest of any officer of SUBRECIPIENT shall be fully disclosed in writing prior to the execution of this Agreement and said writing shall be attached and deemed fully 9 25F-11 6-18-12 incorporated as a part hereof. Notice shall be sent by SUBRECIPIENT to CITY regarding any changes or modifications to its board of directors and list of officers. V. SPECIAL CERTIFICATION FOR RELIGIOUS ENTITIES If SUBRECIPIENT is a religious entity, SUBRECIPIENT hereby agrees that in connection with the provision of the services SUBRECIPIENT shall provide with CDBG funds, in accordance with 24 CFR 570.2000): A. SUBRECIPIENT shall not discriminate against any employee or applicant for employment on the basis of religion and shall not limit employment or give preference in employment to persons on the basis of religion. B. SUBRECIPIENT shall not discriminate against any person applying for the services SUBRECIPIENT agrees to provide under the terms of this Agreement on the basis of religion and shall not limit such services or give preference to applicants for such services on the basis of religion. C. SUBRECIPIENT shall NOT provide religious instruction or counseling, conduct any religious worship or services, or engage in any religious proselytizing, or exert any religious influence in the provision of the services in said program. The parties agree that this covenant is intended to and shall be construed for the limited purpose of assuring compliance with respect to the use of CITY funds by SUBRECIPIENT with applicable constitutional limitations respecting the establishment of religion as set forth in the establishment clause under the First Amendment of the United States Constitution and Article I, Section 4 of the California Constitution, and is not in any manner intended to restrict other activities of SUBRECIPIENT. D. Where the services to be provided under said program are rendered on property owned by the primarily religious entity SUBRECIPIENT, CDBG funds may also be used for minor repairs to such property which are directly related to the cost of rendering the services under said program, where the cost constitutes in dollar terms only an incidental portion of the CDBG expenditure for rendering the services under said program. VI. PROHIBITION OF NEPOTISM SUBRECIPIENT agrees not to hire or permit the hiring of any person to fill a position funded through this Agreement if a member of that person's immediate family is employed in an administrative capacity by SUBRECIPIENT. For the purposes of this section, the term "immediate family" means spouse, child, mother, father, brother, sister, brother-in-law, sister-in-law, father-in- law, mother-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, stepparent and stepchild. The term "administrative capacity" means having selection, hiring, supervisor or management responsibilities. 10 25F-12 6-18-12 VII. NOTICES Notices to the parties shall, unless otherwise requested in writing, be sent by U.S. Mail, postage prepaid, and addressed as follows: TO CITY: City of Santa Ana Community Development Agency (M-25) 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702-1988 TO SUBRECIPIENT: Dustin Manhart Community SeniorServ, Inc. 1200 N. Knollwood Circle Anaheim, CA 92801 VIII. ASSIGNABILITY None of the duties of, or work to be performed by, SUBRECIPIENT under this Agreement shall be subcontracted or assigned to any agency, consultant, or person without the prior written consent of CITY. SUBRECIPIENT must submit all subcontracts and other agreements that relate to this Agreement to CITY. No subcontract or assignment shall terminate or alter the legal obligations of SUBRECIPIENT pursuant to this Agreement. IX. HOLD HARMLESS SUBRECIPIENT shall indemnify, defend and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all damages to or for loss of use of property and for injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers compensation claims and including attorney fees and reasonable expenses for litigation or settlement, resulting from or arising out of the negligent or wrongful acts, errors or omissions of SUBRECIPIENT, its officers, directors, employees, agents, subcontractors and suppliers arising out of SUBRECIPIENT's performance of this Agreement. X. INSURANCE A. In accordance with the provisions of Section 3300 of the Labor Code, if SUBRECIPIENT has any employees it is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing performance of this Agreement, SUBRECIPIENT agrees to obtain and maintain employer's liability insurance with 11 25F-13 6-18-12 limits not less than $1,000,000 per accident. If SUBRECIPIENT has no employees, nor workers' compensation coverage, it must execute a Declaration available from the CITY, and update as is necessary. B. SUBRECIPIENT shall undertake self-insurance, or shall obtain, at its sole cost, a policy or policies of commercial general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall: (1) name the City of Santa Ana, its officers, agents, representatives, employees and volunteers as additional insured's; (2) be primary with respect to insurance or self-insurance programs maintained by the CITY; (3) contain standard separation of insured's provisions; and (4) give to CITY prompt and timely notice of claim made or suit instituted arising out of SUBRECIPIENT's operations hereunder. SUBRECIPIENT shall: (a) prior to exercising any right under this Agreement, furnish properly executed certificates of insurance and additional insured endorsement to the CITY which shall clearly evidence all coverages required above; (b) provide that such insurance shall not be materially changed or terminated except on 30 days prior written notice to the CITY; (c) maintain such insurance for the period covered by this Agreement; and (d) replace such certificates for policies expiring prior to the expiration of this Agreement. XI. REVERSION OF ASSETS A. Upon the expiration of this Agreement, SUBRECIPIENT shall transfer to CITY any CDBG funds on hand at the time of the expiration of this Agreement as well as any accounts receivable attributable to the use of CDBG funds. [24 CFR 570.503(b)(8).] B. Any real property under SUBRECIPIENT's control that was acquired or improved in whole or in part with CDBG funds in excess of $25,000.00 must either be: 1. Used, where CITY has given written approval, to meet one of the national objectives stated in 24 CFR 570.208 until five (5) years after expiration of this Agreement, or for such longer period of time as determined to be appropriate by CITY; or 2. If not used in accordance with subparagraph A above, SUBRECIPIENT shall pay to CITY an amount equal to the current fair market value of the property less any portion of the value attributable to the expenditure of non-CDBG funds for acquisition of, or improvement to, the property. Such payment is program income to CITY. C. Subject to the obligations set forth herein, title to equipment acquired under the terms of this Agreement will vest upon acquisition in SUBRECIPIENT. When said equipment which has been acquired in accordance with this Agreement and all applicable regulations is no longer needed for said program, disposition of said equipment will be made as follows: 12 25F-14 6-18-12 1. Items of equipment with a current per unit fair market value of less than $5,000.00 may be retained, sold or otherwise disposed of with no further obligation to CITY. 2. Items of equipment with a current fair market per unit value of $5,000.00 or more may be retained or sold and CITY shall have the right to an amount calculated by multiplying the current market value or proceeds from the sale by CITY's share of federal funds used to acquire the equipment, in accordance with 24 CFR 85.32(e)(2). D. SUBRECIPIENT hereby agrees, upon the demand of CITY, to execute, acknowledge and deliver, or cause any person or entity who may have any claim to rights hereunder or under any document, instrument or agreement executed in furtherance of the services and activities to be performed hereunder, to execute, acknowledge and deliver, to CITY assignment(s), quit claim deed(s) or such other and further instruments, documents and agreements as may be necessary, in the sole and absolute discretion of CITY, to vest in CITY all of SUBRECIPIENT's right, title and interest (if any it may have) in and to CITY, CDBG or other federal, state and/or local accounts or program funds or allocation of funds to which CITY is or may be entitled, either for its own account or as fiduciary or trustee for others, which were obtained for the purpose of the performance of this Agreement or any previous agreements relating to the same subject matter or activities as this Agreement, together with any instruments, loans, grants or advances by SUBRECIPIENT on behalf of CITY, in furtherance of the activities hereunder or thereof. SUBRECIPIENT's obligations and responsibilities set forth in this paragraph "XI. REVERSION OF ASSETS," and in paragraph "XII. TERMINATION" and other requirements pertaining to program income shall not be affected by the termination of this Agreement and shall survive the date of termination of this Agreement for such period of time as CITY and/or HUD deems necessary for the responsibilities, duties and obligations to be performed and completed to the satisfaction of CITY and HUD. XII. TERMINATION A. This Agreement may be terminated on thirty (30) days' written notice by either party. In the event of such termination, SUBRECIPIENT shall only be entitled to reimbursement for approved expenses incurred to the effective date of termination. B. This Agreement may be suspended or terminated by CITY upon five (5) days' written notice for violation by SUBRECIPIENT of Federal Laws governing the use of Community Development Block Grant Funds. In the event of such suspension or termination, SUBRECIPIENT shall only be entitled to reimbursement for approved expenses incurred up to the effective date of suspension or termination. C. Pursuant to 24 CFR 85.43, in the event SUBRECIPIENT defaults by failing to fulfill all or any of its obligations hereunder, CITY may declare a default and termination of this Agreement by written notice to SUBRECIPIENT, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of such notice, unless such default is cured before the effective date of termination 13 25F-15 6-18-12 stated in such notice. If terminated for cause, CITY shall be relieved of further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by CITY in obtaining substitute performance. D. The grant of funds under this Agreement may be terminated for convenience in accordance with 24 CFR 85.44. E. The grant of funds under this Agreement may be terminated due to the non- performance of SUBRECIPIENT and/or failure of SUBRECIPENT to perform the work described in Exhibits A and B or failure to meet the performance standards and program goals set forth therein. F. In the event this Agreement is terminated as set forth in subparagraphs XILA. through XILE., inclusive, SUBRECIPIENT agrees to immediately return to CITY upon CITY's demand and prior to any adjudication of SUBRECIPIENT's rights, any and all funds not used, and to comply with paragraph "XI. REVERSION OF ASSETS" of this Agreement. XIII. LIMITATION OF FUNDS The United States of America, through HUD, may in the future place programmatic or fiscal limitations on the use of CDBG funds which limitations are not presently anticipated. Accordingly, CITY reserves the right to revise this Agreement in order to take account of actions affecting HUD program funding. In the event of funding reduction, CITY may, in its sole and absolute discretion, reduce the budget of this Agreement as a whole or as to costs category, may limit the rate of SUBRECIPIENT's authority to commit and spend funds, or may restrict SUBRECIPIENT's use of both its uncommitted and its unspent funds. Where HUD has directed or requested CITY to implement a reduction in funding, in whole or as to a cost category, with respect to funding for this Agreement, CITY's City Manager or delegate is authorized to act for CITY in implementing and effecting such a reduction and in revising, modifying, or amending the Agreement for such purposes. If such a reduction in funding occurs, SUBRECIPIENT shall be permitted to de-scope accordingly. Where CITY has reasonable grounds to question SUBRECIPIENT's fiscal accountability, financial soundness, or compliance with this Agreement, CITY may suspend the operation of this Agreement for up to sixty (60) days upon five (5) days written notice to SUBRECIPIENT of its intention to so act, pending an audit or other resolution of such questions. In no event, however, shall any revisions made by CITY affect expenditures and legally binding commitments made by SUBRECIPIENT before it received notice of such revision, provided that such amounts have been committed in good faith and are otherwise allowable and that such commitments are consistent with HUD cash withdrawal guidelines. 14 25F-16 6-18-12 XIV. EXCLUSIVITY AND AMENDMENT OF AGREEMENT This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the use of CITY's CDBG funds by SUBRECIPIENT and contains all the covenants and agreements between the parties with respect to such employment in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both CITY and SUBRECIPIENT. XV. LAWS GOVERNING THIS AGREEMENT This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable federal laws and regulations. XVI. VALIDITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. XVII. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully, including reasonable costs and attorney's fees, for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits and Attachments referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. c. No delay or omission by either party hereto to exercise any right or power accruing upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained. 15 25F-17 6-18-12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the last date and year written below. ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: LISA E. STORCK Assistant City Attorney DATE: 16 SUBRECIPIENT: Name: Holly Hagler Title: Chief Executive Officer Tax ID: 95-2771715 25F-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: AGREEMENT AMENDMENT FOR BILL PRINT AND PAYMENT SERVICES CITY MANAGER 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 RECOMMENDED ACTION Authorize the City Manager and Clerk of the for municipal utility services bill printing and services not to exceed $230,000 annually February 28, 2014. Council to amend the agreement with InfoSend, Inc. mailing, and electronic bill presentment and payment during the term from February 29, 2012 through DISCUSSION The Treasury Division is responsible for the billing and payment processing of over 44,700 municipal utility services accounts. On February 20, 2007, the City Council approved an agreement with InfoSend, Inc. for bill printing, mailing and electronic bill presentment services. InfoSend was determined to be the most cost-effective method for printing of all Municipal Utility Service (MUS) bills as well as processing e-payments. We are at the end of the two year renewal period of a three-year agreement with two year renewals. InfoSend, Inc. agreed to maintain costs associated with providing these services which includes an pass-through of applicable Sales Tax. FISCAL IMPACT Total contract cost of the agreement is estimated to be $230,000. Funds are available in the Treasury and Customer Service Account (no. 01110130-63001). Francisco Gutierrez Executive Director Finance & Management Services Agency 25G-1 25G-2 FIFTH AMENDMENT TO AGREEMENT THIS FIFTH AMENDMENT TO AGREEMENT is entered into this 18th day of June, 2012, by and between InfoSend, Inc., a California corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"). RECITALS: A. The parties entered into Agreement 4 A-2007-050, dated February 20, 2007, (hereinafter "said Agreement") by which Consultant has provided municipal bill printing and mailing services and electronic bill presentment and payment services. B. Said Agreement was subsequently amended by agreement of the parties on March 27, 2008, July 7, 2008, April 6, 2009 and September 20, 2010, in order to extend the term, add compensation to pay for services and provide a method to adjust the per unit printing and mailing prices. C. In accordance with the terms and conditions of said Agreement, the parties wish to again amend said Agreement to extend the term for an additional two-year period and provide compensation to pay for services during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Fifth Amendment to Consultant Agreement, the parties agree as follows: 1. Section 2.a., COMPENSATION, shall be amended to increase compensation, providing for two additional years of service in an annual amount of $230,000 during the term from February 29, 2012 through February 28, 2014. 2. Section 3, TERM, shall be amended to extend the term for an additional two-year period commencing February 29, 2012 and terminating February 28, 2014, unless terminated earlier in accordance with Section 12 of said Agreement. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. 25G-3 IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment to Consultant Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA Maria D. Huizar PAUL M. WALTERS Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Laura Sheedy Assistant City Attorney INFOSEND, INC. MAHMOOD REZAI President & CEO 25G-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: AGREEMENT WITH LD SYSTEMS FOR KIOSK AND PAYMENT PROCESSING SERVICES CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Authorize the City Manager and Clerk of the Council to enter into an agreement with LD Systems for the acquisition of a kiosk to be located at City Hall, to provide for 24 hour/7 days a week payment services for a five year lease not to exceed $36,000, per year. 2. Authorize the City Manager and the Clerk of the Council to enter into an agreement with CardFlex, Inc. for the processing of credit cards, and check payments in conjunction with a kiosk to be located at the entrance of City Hall, in an aggregate limit not to exceed $30,000, during a one-year agreement. DISCUSSION The Treasury Division of the City's Finance Department currently operates a cashiering counter four days a week, Monday - Thursday. The City's customer base which is largely cash based results in high volumes of walk-in traffic. As a result, staff has been investigating a means by which customers are able to avail themselves to payment options other than the utilization of the cashier counter window. Staff has identified a company, LD Systems, which is able to design a kiosk system, similar to an ATM. The kiosk software would be able to process payments from the various payment systems used in City Hall including municipal utility services, business licenses, dog licenses, parking citations, etc. The kiosk is designed to accept check, credit card and cash payments with the ability to dispense change including currency and coin. In order to facilitate payments during non operating hours as well as regular business hours, it is intended that the kiosk be placed facing outward of City Hall near the lobby doors. It is anticipated that the kiosk will assist in diminishing lines at the cashier counter or need for additional counter staff. 25H-1 Agreement with LD Systems For Kiosk and Payment Processing Services June 18, 2012 Page 2 Additionally, the City has an agreement with CardFlex to sponsor a City of Santa Ana paycard program. CardFlex is also a merchant card processor that is able to provide the financial functions the kiosk requires for credit card charges, debits or verification of funds for recharging the paycard. Card Flex will be responsible for ensuring proper processing of payments. Approval of the recommended actions will provide greater customer service to residents of the City. FISCAL IMPACT Total contract cost of the LD Systems agreement is estimated to be $180,000. Funds are available in the Treasury and Customer Service Account (no. 01110130-62300). Total cost of the CardFlex paycard program and merchant card processor is estimated to be less than $30,000. Funds are available in the Treasury and Customer Service Account (no. 01110130- 62300). Francisco Gutierrez Executive Director Finance & Management Services Agency 25H-2 25H-3 LD Systems INDEPENDENT CONTRACTOR SERVICES AGREEMENT THiS AGREEMENT ("Agreement") dated this day of 2012 (the -Effective Date") is made by and between the City of Santa Ana ("City") and LD Systems, a Texas limited partnership, duly organized and existing under and by virtue of the laws of the State of Texas, authorized to conduct business in the state of California ("Contractor") having its principal place of business at 4200 tntcmational Parkway, Carrollton, Texas 75007, are collectively referred to in this Agreement as the "Parties". WHEREAS, LD Systems provides custom outdoor through the wall enclosed kiosk with currency bill acceptors.. currency and coin dispensers, ptepaid card recharge, and ability to access City accounts including Municipal Utility Services, panting citations, dog licenses, business licenses and related goods and services collectively determined by the City and Contractor, and WHEREAS, the Contractor is specially trained, experienced and competent to perform and has agreed to provide such services that are the subject of this Agreement; aid WHEREAS, City believes its residents may knefit by utilizing a kiosk as a form ofpayment option; and NOW', THEREFORE, for good and valuable consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, die Parties agree as follows: Scope of Work 1 I The Contractor shall furnish to the City upon execution of this Agreement or receipt of the City's written authorization to proceed, those services and work set forth in Exhibit A_ attached hereto and, by this reference, made a pan hereof L2 All documents, drawings and wTincn work product prepared or produced by the Contractor under this Agreement, and related to the physical/mechanical functions of the kiosk, are the property of the Contractor; All documents, drawings, interfaces, and written work product prepared or produced by the Contractor pursuant to this Agreement, mud related to the banking and/or information technology functions of the kiosk, are the sole and exclusive property of the Ctiy. If any physical/mechanical functions of the work is copyrightable, the Contractor may copyright the same, except that, as to any work which is copyrighted by the Contractor, the City reserves a royalty fee, non-exclusive, and irrevocable license to reproduce, publish, and use such work, or any part thereof, and to authorize others to do so. 1.3 Services and work provided by the Contractor at the City's request under this Agreement will be performed in a timely manner consistent with the requirements and standards established by applicable federal, state and City laws, ordinances, regulations and resolutions, specifically including the Payment Card Industry Data Security Standards (PCI -DSS), and in accordance with a schedule of work set forth in Exhibit A. If there is no schedule, the hours and times for completion of said services and work are to be set by the Contractor; provided, however, that such schedule is suttjcct to review by and concurrence ofthe City. Consideration. 2 l City shall pay Contractor as set forth in Exhibit A 2.2 Except a, expressly provided in Exhibit A of this Agreement, Contractor shall not be entitled to nor receive from City any additional consideration, compensation, salary, wages, or other type of remuneration for services rendered under this Agreement. Specifically, Contractor shall not be entitled by virtue of this Agreement to consideration in the form of overtime, health insurance benefits, retirement benefits, disability retirement benefits, sick leave, vacation time, paid holidays or other paid leaves of absence of any type or kind whatsoever. 2.3 City will not withhold any Federal or State income taxes or Social Security tax from any payments made by City to Contractor under the terms and conditions of this Agreement, Payment of all taxes and other assessments on such suns is the sole responsibility of Contractor. City has no responsibility or liability for payment of'Contractor's taxes or assessments. 2.4 Pursuant to Penal Code section 484b and to Business and Professions Code section 7108.5, the Contractor must apply all funds and progress payments received by the Contractor from the City for payment of services, labor, materials or equipment to pay for such services, labor, materials or equipment. Pursuant to Civil Code section 1479, the Contractor shall direct or otherwise manifest the Contractor's intention and desire that payments made by the Contractor to subcontractors, suppliers and maeriahnen shall be applied to retire and extinguish the debts or obligations resulting from the performance ofthis Agreement. 3. "I'trm. 3.1 The term of this Agreement shall be from the date of approval of this Agreement until completion of the agreed upon services unless sooner terminated as provided below or unless some other method or time of termination is listed in Exhibit A. 2 Should either party default in the performance of this Agreement or materially breach any of its provisions, the other party, at that pan's option, may terminate this Agreement by giving written notification to the other party. 3.3 This Agreement shall terminate automatically on the occurrence of (a) bankruptcy or insolvency of either party. (b) sale of Contractor's business, (c) cancellation of insurance required under the terms of this Agreement, and (d) if, for any reason. Contractor ceases to be licensed or otherwise 6/5/12 1 of 9 25H-4 authorized to do business in the State of California, and the Contractor fails to remedy such defect or defects within (30) days of the receipt of notice of such defect or defects. 3.4 The City may terminate this agreement upon 30 days prior written notice to the Contractor. Termination of this Agreement shall not affect the County's obligation to pay for all fees earned and reasonable costs necessarily incurred by the Contractor as provided in Paragraph 2 herein, subject to any applicable setoffs. 4. Required Licenses. Certificates and Permits. Any licenses. certificates or permits required by the federal, state, county or municipal governments for Contractor to provide the services and work described in Exhibit A shall be procured by Contractor and be valid at the time Contractor enters into this Agreement. Further, during the term of this agreement, Contractor shall maintain such licenses, certificates and permits in full force and effect. Licenses, certificates and permits may include but are not limited to driver's licenses, professional licenses or certificates and business licenses. Such licenses, certificates and permits will be procured and maintained in force by Contractor at no expense to the City. 5. C)fiice Space, Supplies, Fguipment, etc. Unless otherwise provided in Exhibit A, Contractor shall provide such office space, supplies, equipment, vehicles, reference materials and telephone service as is necessary for Contractor to provide the services identified in Exhibit A to this Agreement. City is not obligated to reimburse or pay Contractor for any expense or cost incurred by Contractor in procuring or maintauting such items. Responsibility for the costs and expenses incurred by Contractor in providing and maintaining such items is the sole responsibility and obligation of Contractor, 6. Insurance. 6.1 Contractor shall take out, and maintain during the life of this Agreement. insurance policies with coverage at least as broad as follows: 6.1 I General Liability. Comprehensive general liability insurance covering bodily injury, personal injury. property damage, products and completed operations with limits of no less than One Million Dollar, (S (S 1,000.000.00) per incident or occurrence. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to any act or omission by Contractor under this Agreement or the general aggregate limit shall be tNNice the required occurrence limit. 6.1.2 Automobile Liability Insurance. If the Contractor or the Contractor's officers, employees, agents, representatives or subcontractors utilize a motor vehicle in performing any, of the work or services under this Agreement. owned/non-owned automobile liability insurance providing combined single limits covering bodily injury, propeny damage and transponation related pollution liability. with limits of no less than One Million Dollars (51,000,000.00)perincident or occurrence. 6.1.3 Workers' Compensation Insurance. Workers' Compensation insurance as required by the California Labor Code. In signing this contract, the Contractor certifies under section 1861 of the Labor Code that the Contractor is aware of the provisions of section 3700 of the Labor Code which requires every employer to be insured against liability for workmen's compensation or to undertake self-insurance in accordance with the provisions of that code, and that the Contractor will comply with such provisions before commencing the performance of the work of this Agreement. 6.2 Any deductibles, self-insured retentions or named insureds must be declared in writing and approved by the City. At the option of the City, either: (a) the insurer shall reduce or eliminate such deductibles, self-insured retentions or named insureds, or (b) the Contractor shall prov.de a bond, cash, letter of credit, guaranty or other security satisfactory to the City guaranteeing payment of the self-insured retention or deductible and payment of any and all costs, losses. related investigations, claim administration and defense expenses. 6.3 The Contractor shall obtain a specific endorsement to all required insurance policies, except W'orkers' Compensation insurance and Professional Liability insurance, if any, naming the City and its officers, officials and employees as additional insureds regarding: (a) liability arising from or in connection with the performance or omission to perform any term or condition of this Agreement by or on behalf of the Contractor, including the insured's general supervision of its subcontractors; (b) services, products and completed operations of the Contractor: (c) premises owned, occupied or used by the Contractor; and (d) automobiles owned, teased, hired or borrowed by the Contractor. For Workers' Compensation insurance carrier shall agree to waive all rights of subrogations against the City and its officers, officials and employees for losses arising from the performance of or the omission to perform any tern or condition of the Agreement by the Contractor. 6.4 The Contractor's insurance coverage shall be primary insurance regarding the City and City's officers, officials and employees. Any insurance or self-insurance maintained by the City or Cit\'s officers, officials and employees shall be excess of the C'ontractor's insurance and shall not contribute with C'ontractor's insura Ce 6 3 Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City Or its officers. officials, employees or volunteers. 6/5/12 2 of 9 25H-5 a a, ; 6.6 'f he Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, excpt with respect to the limits of the insurer's liability. 6 7 Each insurance policy required by this section shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party except after thirty (30) days' prior written notice has been given to City. The contractor shall promptly notify, or cause the insurance carrier to promptly notify, the City of any change in the insurance policy or policies required under this Agreement, including. without limitation, any reduction in coverage or in limits of the required policy or policies. 6.8 insurance shall be placed with California admitted insurers (licensed to do business in California) with a current rating by Rest's Key Rating Guide acceptable to the City, A Rest's rating of at least A-:VII shall be acceptable to the City: lesser ratings must be approved in writing by the County. 6 9 Contractor shall require that all of its subcontractors are subject to the insurance and indemnity requirements stated herein, or shall include all subcontractors as additional insureds under its insurance policies - 6 10 At least ten (10) darn prior to the date the Contractor begins performance of its obligations under this Agreement. Contractor shall furnish City with certificates of insurance, and with original endorsement's. shov+ing coverage required by this Agreement, including, without limitation, those that verify coverage for subcontractors of the Contractor. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements shall be received and, in City's sole and absolute discretion, approved by the City. City reserves the right to require complete copies of all required insurance policies and endorsements. at arty time. 6_II The limits of insurance described herein shall not limit the liabilim of the Contractor and Contractor's officers, employees, agents, representative or subcontractors. Defense and Indemnification. ZI To the fullest extent permitted by lave, Contractor shall indemnify. hold harmless and defend the City and its agents, officers and employees from and against all claims, damages, losses, judgments. liabilities, expenses and other costs, including litigation costs and attorneys' fees, arising out of. resulting from, or in connection with the performance of this Agreement by the Contractor or Contractor's officers, employees, agents. representatives or subcontractors and resulting in or attributable to personal injury, death, or damage or destruction to tangible or intangible property, including the loss of use, provided, however, such indemnification shall not extend to or cover loss, damage or expense arising from the sole negligence or willful misconduct of the City or its agents, officers and employees. 7.2 C'ontractor's obligation to defend, indemnify and hold the City and its agents, officers and employees harmless under the provisions o! this paragraph is not limited to or restricted by any requirement in this Agreement for Contractor to procure and maintain a policy is insurance. 8. Status of Contractor. 8.1 All acts of Contractor and its officers, employees, agents. representatives, subcontractors and all others acting on behalf of Contractor relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers or employees of City. Contractor, by virtue of' this Agreement, has no authority to bind or incur any obligation on behalf of City, Except as expressly provided in Exhibit A, Contractor has no authority or responsibility to exercise any rights or power vested in the City. No agent, officer or employee of the City is to be considered an employee of Contractor. It is understood by both Contractor and City that this .Agreement shall not be construed or considered under any circumstances to create art employer-employee relationship or a joint venture. 8.2 At all times during the term of this Agreement, the Contractor and its officers, employees, agents, representatives or subcontractors are, and shall represent and conduct themselves as, independent contractors and not employees of the City. 8.3 Contractor shall determine the method, details and means of performing the work and services to be provided by Contractor under this Agreement. Contractor shall be responsible to City only for the requirements and results specified in the Agreement and, except as expressly provided in this Agreement, shall not be subject to City's control with respect to the physical action or activities of Contractor in fulfillment of this Agreement. Contractor has control over the manner and means of performing the services under this Agreement. Contractor is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary. Contractor has the responsibility for employing other persons or firms to assist Contractor in fulfilling the terms and obligations under this :1greement. 8A If in the performance of this Agreement any third persons arc employed by Contractor, such persons shall be entirely and exclusively under the direction, supervision and control of Contractor. All terms of employment including hours, wages, working conditions, discipline, hiring and discharging or any other term of employment or requirements of law shall be determined by the Contractor 8.5 It is understood and agreed that as an independent Contractor and not an employee of the City, the Contractor and the Contractor's officers, employees, agents, representatives or subcontractors do not have arty entitlement as it City. employee, and do not have the right to act on behalf of the City in any capacity whatsoever as an agent. or to bind the City to any obligation whatsoever. 8.6 It is further understood and agreed that Contractor must issue 'A -2 forms or other forms as required by law for income and employment tai purposes for all of Contractor's assigned personnel under the terms and conditions ofthis Agreement. 6!5!12 3 of 9 25H-6 8 7 As an independent Contractor, Contractor hereby indemnifies and holds Cit) harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of the Agreement 9. Records and Audit. 9.1 Contractor shall prepare and maintain all tritings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of three (3) years from the termination or completion of this Agreement. This includes any handwriting, typewriting, printing, photostatic, photographing and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof. 9.2 .Any authorized representative of City shall have access to any writings as defined above for the purposes of making audit, evaluation, examination, excerpts and transcripts during die period such records are to be maintained by Contractor. Further. City has the right at all reasonable times to audit, inspect or otherwise evaluate the work performed or being performed under this Agreement. 10. Confidentiality. The Contractor agrees to keep confidential all information obtained or learned during the course of furnishing services under this Agreement and to not disclose or reveal such information for any purpose not directly comiected with the matter for which services are provided. it. Nondiscrimination. During the performance of this Agreement. Contractor and its officers. employees, agents, representatives or subcontractors shall not unlawfully discriminate in violation c f any federal, state or local law, rule or regulation against any employee, applicant for employment or person receiving services under this Agreement because of race, religion, color, national origin, ancestry, physical or mental disability, medical condition (including genetic characteristics), marital status, age, political affiliation, sex, or sexual orientation. Contractor and its officers, employees, agents, representatives or subcontractors shall comply with all applicable Federal, State and local laws and regulations related to policy, the Fair Fmpiovrnent and Housing Act (Government Code sections 12900 et seq.): California Labor Code sections 1101, 1102 and 1102.1: the Federal Civil Rights Act of 1964 (P.I_.. 88-352), as amended; and all applicable regulations promulgated in the California Code of Regulations or the Code of Federal Regulations. 12. Assignment. This is an agreement for the services of Contractor, Cit} has relied upon the skills, knowledge, experience and training of Contractor and the Contractor's firm, associates and employees knowledge, experience and training of Contractor and the Contractor's firm, associates and employees as an inducement to enter into this Agreement. Contractor shall not assign or subcontract this Agreement without the express written consent of City. Further, Contractor shall not assign any monies due or to become due under this Agreement without the prior written consent of City. 13. Waiver of Default. Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent default, Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach, and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided below. 14. Notice. Any notice, communication, amendment. addition or deletion to this Agreement, including change of address of either party during the term of this Agreement. which Contractor or City shall be required or may desire to make shall be in writing and may be personally served or, alternatively, sent by prepaid first class rnail to the respective parties as follows: To_4ity?. To Contractor. 15. Conflicts. Contractor agrees 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 the work and services under this Agreement. 16. Severability. It any portion of this Aereentent or application thereof to any person or circumstance shall be declared invalid by a court of competent jurisdiction or if it is found in contravention of any federal, state or county or city statute, ordinance or regulation the remaining provisions of this Agreement or the application threof shall not be invalidated thereby and shall remain in full force and effect to the extent that the provisions of this Agreement are severable. 17. Amendment. This Agreement supersedes any and all other agreements, either oral or in writing, between any of the parties herein with respect to the subject matter hereof and contains all the agreements between the parties with respect to such matter. Each party acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. 18. Entire Agreement. This Agreement supersedes any and all other agreements, either oral or in writing. between any of the parties herein with respect to the subject matter hereof and contains all the agreements between the parties with respect to such matter. Each party, acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any part)', which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding 19. Advice of Attorney. Each part} warrants and represents that in executing this Agreement, it has received independent legal advice from its attorneys or the opportunity to seek such advice 6/5112 4of9 25H-7 20. Construction. Headings or captions to the provisions of this Agreement are solely for the convenience of the parties, and are not part of this Agreement, and shall not be used to interpret or determine the validity of this Agreement, Any ambiguity in this Agreement shall not be construed against the drafter, but rather the terms and provisions hereof' shall be given a reasonable interpretation as if both parties had in fact drafted this Agreement. 21. Governing Law and Venue. This Agreement shall be deemed to be made under, and shall be governed by and construed in accordance with, the laws of the State of California. Any action brought to enforce the terms or provisions of this Agreement shall be brought in the County of Orange, State of California. IN NN i rNESS FVNEREOF. the Parties have caused this Distribution Agreement to be executed and effective as of the Effective Date. C[TY Of SANTA ANA By: Print Name: Paul M. Walters Title: __City Manager___ Address: Clerk of the Council 20 Civic Center Plaza t-301 Santa Ana, CA 92702 Recommended for Approval: Date: L.D SYSTEMS By: -.__ Name: Title: Date: 615/12 Francisco Gutierrez, Ex Dir FNISA 5 oP9 25H-8 EXHIBIT A A. SCOPE OF WORK 1. Pursuant to the requirements of State of California and all applicable local regulations, Contractor shall provide Treasury payment services on a 24/7 basis at City Hall, 20 Civic Center Plaza, Santa Ana, CA 92701. 2. Equipment. Contractor shall lease a kiosk to City at the rate set forth in Attachment 1 hereto. Additional kiosks may be leased and installed at the mutual agreement of the parties. Each kiosk shall stylize a touch screen and be available in a minimum of the English and Spanish languages. Initially, contractor shall install one kiosk in the City Hall lobby area, accessible from the front patio area during hours that City Hall is closed. Contractor shall provide additional kiosks at the same lease amount should the City elect to install additional kiosks at its facility. 3. Subcontractors. Contractor elects to provide all required Contractor services through its work force. Contractor agrees to provide City with prior written notice of any use of subcontactors to perform the required services. Contractor shall assure that each subcontractor utilized will be appropriately insured and bonded. 4. Support and Maintenance, a. Contractor shall provide the necessary technical support and maintenance of all kiosk machines. Technical support shall be accessed via email or telephone. Contractor shall endeavor to: i. Return all calls and resolve all issues within thirty (30) minutes or less; ii. Close all tickets within twenty-four (24) hours; and iii. Complete all on-site repairs requiring parts within twenty-four (24) hours; and iv. Repair or replace kiosk machines within twenty-four (24) hours of notice of required service. b. In the event of a system failure, Contractor shall respond within two (2) hours' notice from County. In the event the communication network is disrupted, Contractor shall ensure that each kiosk is able to operate in a secure mode off-line, c. Contractor shall assume responsibility for any losses and/or repairs due to acts of vandalism or other causes. d. Contractor shall implement and maintain a Disaster Recovery Plan with respect to all equipment utilized in connection with this Agreement as hereinafter defined. 6/5/12 6 of 9 25H-9 5. Transactions. a. City shall be responsible for maintaining a sufficient amount of cash in the kiosk and taking cash from kiosk on a regular basis. City shall reconcile accounts serviced through the kiosk. b. Contractor shall develop and install an interface with Innova, the City cashiering system, allowing City Treasury customers to utilize the kiosk to pay municipal utility bills, business licenses, dog licenses, and parking citations with cash, check or credit card, at the Contractor's kiosk. All transactions shall be made in real time. Payments shall be accepted twenty-four (24) hours per day, seven (7) days per week. The interface shall include development, testing and live integration, and shall be completed within forty-five (45) days from the date of this Agreement. c. Contractor shall develop an interface to allow City customers to utilize the kiosk to load or withdraw funds from the CardFlex debit card sponsored by City. The interface shall include development, testing and live integration, and shall be completed within forty-five (45) days from the date of this Agreement. d. Contractor shall guarantee that transactions performed at the kiosk will comply with all Federal, State and local laws, rules and regulations, including Payment Card Industry Data Security Standard (PCI DSS). 6. Website/Treasury Cashierinq System. a. Contractor kiosk shall provide to City, via Innova interface, a real-time listing of all deposits/payments made via the kiosk. Contractor interface shall permit the appropriate City personnel to confirm each individual transaction. b. Contractor shall, at no additional cost to City, interface with the City's Innova Cashiering system during the term of this Agreement. c. Contractor is responsible for maintenance and repair of kiosk and interfaces to the cashiering and debit card (CardFlex) systems. Any repairs to kiosk or connections to the systems must be made within seventy-two (72) hours of notification at no charge to County 7. Continuing Contractor Duties a. Contractor shall install technology allowing City to obtain transaction reports, including, but not limited limited to: • Multiple account summary history; • Depositor history (web/telephone; kiosk); 614/12 7 of 9 f 25H-10 • Customer transactions detail (kiosk transaction with picture of depositor; kiosk cash transactions; kiosk credit card transactions; web/IVR credit card transactions; address of record); and • Capability to export results to Excel. b. Contractor agrees to provide services allowing additional kiosk payments, such as building permit, if requested, under the same quoted fee structure and conditions. c. Contractor shall provide all necessary training with respect to the use and operation of equipment and account managing at no additional cost to City. d. Contractor shall not release any confidential information regarding any customer to a third party without the City's prior written consent. e. Contractor shall perform background checks on all of its employees assigned to provide service hereunder. f. Contractor shall, to the extent practicable, endeavor to collaborate with City's contracted e- payment vendor, TransFirst, for the provision of services hereunder. B. COMPENSATION 1. Contractor shall be compensated in accordance with the fee schedule attached hereto as Attachment 1. C. TERM 1. Paragraph 3.1 of the body of this Agreement is amended to read as follows: 3.1 The term of this Agreement shall be from July 1, 2012 through June 30, 2013, unless otherwise terminated as provided below. This Agreement will not automatically renew but may be renewed for four (4) additional one-year terms (each a "Renewal Term") by mutual, written agreement of the parties. Such renewal shall be in the form of an amendment to the Agreement. D. REPRESENTATIVES The parties' respective Project Managers shall be: For Ci : For Contractor: Treasurer - Christine Duarte Cliff Dean City of Santa Ana LD Systems 20 Civic Center Plaza (M-) 4200 International Parkway Santa Ana, CA 92702 Carrollton, TX 75007 (714) 647-5335 (972) 862-4327 cduarte(?santa-ana.org cliff@Idsystemsinfo.com 6/5/12 25H-11 8 oe9 ATTACHMENT 1 CONTRACTOR'S INVOICE 20-MAY-12 6/5/12 9 ot•9 25H-12 25H-13 CARDFLEX, INC PREPAID DISTRIBUTION AGREEMENT THIS DISTRIBUTION AGREEMENT (this "Agreement") dated this day of 2012 (the "Effective Date") is made by and between CardFlex, Inc., a California Corporation duly organized and existing under and by virtue of the laws of the State of California, having its principal place of business at 2900 Bristol St, Bldg F, Costa Mesa, CA ("CardFlex") and located at ("City"). City and CardFlex are collectively referred to in this Agreement as the "Parties". WHEREAS, CardFlex provides identification card, prepaid card accounts, payroll card, funds disbursement and related goods and services (the "CardFlex Services"); and WHEREAS, CardFlex is a registered Agent of Issuing Bank, and is licensed to issue stored value cards under a proprietary payment system developed by CardFlex (the "CardFlex Card" and together with the payment system, the "CardFlex Program"), that are the subject of this Agreement; and WHEREAS, City believes its residents may benefit by utilizing the CardFlex Card and CardFlex Program; and WHEREAS, City desires to provide an opportunity for its residents to obtaint the CardFlex Card and CardFlex Program; and WHEREAS, CardFlex believes that its business could benefit from City services; and WHEREAS, the Parties desire a relationship that allows City to receive from its interested Customers, and transmit to CardFlex sign-up information applications and application fees (if applicable) for the CardFlex Cards issued by CardFlex and related card services included in the Card Program; NOW, THEREFORE, for good and valuable consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. City Appointment. Acting upon authority granted to it by Issuing Bank, as well as on its own behalf, CardFlex hereby appoints City and those Customers (if any) of City that elect, by agreement with City, to participate (collectively, "City") as CardFlex's Customer to provide services as set forth in Section 2 of this Agreement (the "Customer Services") during the term of this Agreement described in Section 5 of this Agreement. Customer Services. To the extent and where permitted by applicable law, the following are the Customer Services to be provided by City: (a)(i) City will make available to its Customers, access to stored value cards issued by Issuing Bank pursuant to the CardFlex system. City will use commercially reasonable efforts to make available marketing information consisting of information and such other materials approved by CardFlex and approved by City, ("CardFlex Marketing Materials") about the CardFlex Cards and the services related to the CardFlex Cards and such other marketing materials supplied by CardFlex, in its sole discretion. (b) City will, upon request of its Customers, accept, for transmission to CardFlex, applications and the corresponding Customer Data (as hereinafter defined) from the Customers for the CardFlex Card and the CardFlex Services ("Customers"). (c) Applicant Form. City's transmission of the Customer Data for CardFlex will also be in accordance with the Applicant Form currently in use by CardFlex (d) City may use CardFlex s name, trade names, trademarks, service marks, and logos as necessary or reasonably appropriate to advertise and promote the Customer Services. CardFlex may use City's name, trade names, trademarks, service marks, and logos as with the prior written approval of the City, to advertise and promote the Customer Services. The Parties shall limit such usage in programs and placement, which have been previously approved in writing by both Parties. (e) City may provide, to all or some of it's Customers, or may have all or some of it's Customers sign, an acknowledgement that the CardFlexCards are being issued only by Issuing Bank and CardFlex, that City is not responsible in any manner for the CardFlex Cards or any of the CardFlex Services, and that City is only serving as an distributor to receive for transmission and to transmit to CardFlex sign-up information applications and application fees (if applicable) for stored value cards issued by Issuing Bank for CardFlex and to receive for transmission and to transmit to CardFlex voluntary- payments from City Customers to add or "load" value on their cards. 3. Consideration to City. City shall receive fifteen per-cent (15%) of the net revenue derived from all income received from Customer referred by City to CardFlex. Net revenue is defined as all transaction fees, interchange fees, and other fees less all processing fees. The Parties' Additional Rights and Responsibilities. (a) As between CardFlex and Issuing Bank, on the one hand, and City, on the other hand, CardFlex will be solely responsible, alone or through contracts with third parties, for the determination of the Customers to whom or which CardFlex Cards are issued, for the issuance of the CardFlex Cards, for the provision of all CardFlex Services it provides to the Customers, and for the production and delivery of numbered accounts, reports, invoices, and statements to, and its relationship with, the Customers. This responsibility includes (without limitation) responding to and satisfying any Customers complaints regarding the availability and quality of the CardFlex Cards and the CardFlex Services. (b) CardFlex will, at City's expense, deliver to City a sufficient quantity of CardFlex Marketing Materials as may be necessary for City to perform the City marketing. City orders shall be sent to the address of CardFlex set forth below. CardFlex will deliver the ordered marketing materials by (i) personal delivery, (ii) mail, or (iii) prepaid overnight express delivery service or same-day local courier service within seven Business Days after City's order. Method will be at City's request and expense. CardFlex will assist City with all reasonable instructions of City's employees in marketing and processing applications for the CardFlex Cards, the CardFlex Services, Customer Data and Customer Payments. CardFlex will also provide a toll-free telephone number by which City's employees may pose questions 25Af X14 directly to CardFlex and will take such other actions as are reasonably necessary to keep City's employees informed of news and developments related to the CardFlex Services. (c) Following the time that the Customer Data corresponding to an application for a CardFlex Card is made available to CardFlex, CardFlex will begin processing the request and will make best efforts to deliver to such Customer a permanent CardFlex Card in a timely manner. CardFlex will deliver such CardFlex Card by (i) personal delivery, (ii) mail, or (iii) prepaid overnight express delivery service or same-day local courier service to the address included in such Customer Data. The CardFlex Card shall identify CardFlex and/or its banking partners as the issuers of it and shall indicate at least the name, address, toll-free telephone number, and logo for CardFlex. (d) CardFlex fees, the fees it charges and receives from City for the CardFlex Services are outlined in ADDENDUM A; and, the fees it charges and receives from Customers for the CardFlex Services are outlined in ADDENDUM B. (e) CardFlex represents, warrants, and covenants that, to the extent related to the CardFlex Card and CardFlex Services offered and provided by it, to it's Customers and related to the performance of its obligations under this Agreement, (i) all federal, state, and local laws and regulations have been complied with in all material respects relating to this Agreement (ii) any and all licenses, permits, and other authorizations required by federal, state, and local laws (collectively, the "CardFlex Authorizations") have been obtained, are in full force and effect, and are valid under applicable federal, state, and local laws; (iii) the continuation, validity, and effectiveness of all the CardFlex Authorizations shall not be impaired or adversely affected by the terms hereof, and (iv) it will maintain the effectiveness of all of the CardFlex Authorizations, or obtain new or additional CardFlex Authorizations, as necessary to permit it to perform its obligations under this Agreement. (f) CardFlex will pay when due, all federal excise taxes and all state and local use or sales taxes imposed in connection with the provision of the CardFlex Service. City will pay when due, all federal excise taxes and all state and local use or sales taxes imposed in connection with funds collected by it for the Customer Services to the extent such taxes can be collected from the Customer. Each Party will also file when due all required tax returns required to be filed connection with its business and with the collection and remittance of any applicable excise, use, or sales taxes for which it bears responsibility under this Section 4(f). CardFlex will indemnify City against any such taxes imposed on or due by Issuing Bank. (g) City will make available for transmission (if obtained by City) to CardFlex, the information obtained by City from the Customers for the CardFlex Services. That information shall consist of the Customer's name, address, telephone number, and other such required information (collectively "Customer Data"). (h) City represents, warrants, and covenants that, to the extent related to the Customer Services provided by City, (i) all federal, state, and local laws and regulations have been complied with in all material respects relating to this Agreement; (ii) any and all licenses, permits, and other authorizations required by federal, state and local laws (collectively, the " Customer Authorizations') have been obtained, are in full force and effect, and are valid under applicable federal, state, and local laws; (iii) the continuation, validity, and effectiveness of all of the Customer Authorizations shall not be impaired or adversely affected by the terms hereof, and (iv) it will maintain in effect the Customer Authorizations, or obtain new or additional Customer Authorizations, as necessary to permit it to perform its obligations under this Agreement. (i) Any other provision of this Agreement to the contrary notwithstanding, as between City and CardFlex, CardFlex shall have the right at any time to cause another qualifying bank other than the initial Issuing Bank to become the issuer of the CardFlex Cards proposed to be issued pursuant to the terms of this Agreement, and, upon CardFlex's request, City agrees to exert its commercially reasonable best efforts to facilitate substituting another bank (the or a "Successor Bank") for the initial Issuing Bank for all purposes of this Agreement, it being understood that the Parties intend that the material terms of this Agreement shall be unaffected by any such substitution of a Successor Bank for the initial Issuing Bank. 5. Term: "Termination. (a) The term of this Agreement begins on the Effective Date and shall continue for a period of not less than 48 months from the Effective Date. After the initial period of 48 months, this Agreement may be renewed by mutual agreement of the parties, on the anniversary of the Effective Date, for a period of 12 months (the "Annual Expiration Date"). Either party may terminate the agreement by giving written notice to the other Party of the notifying Party's intent to terminate this Agreement at least 90 days before the Annual Expiration Date; if that notice is timely given, the term of this Agreement shall expire on the Annual Expiration Date immediately following the date on which that notice was given. (Any other reference in this Agreement to the "termination" of this Agreement shall include, without limitation, the expiration of the term set forth in this Section 5(a).) (b) Either Party may terminate this Agreement before the expiration of the term set forth in Section 5(a), by giving the other Party written notice of termination, upon any of the following events of default by the other Party. (i) The other Party fails to pay any amount when due under this Agreement and that payment failure continues for ten Business Days after written notice of that payment failure is given by the Party entitled to payment; (ii) the other Party continues its failure to perform, or fails to cure or correct any nonperformance of, any of its obligations under this Agreement (other than a payment or other obligation addressed in either of the immediately two preceding clauses) for 30 days after written notice of that failure (which describes the failure with reasonable specificity) is given by the Party entitled to performance; (iii) any bankruptcy, insolvency, liquidation, dissolution, or similar action or proceeding is instituted, commenced, or acquiesced in by the other Party or, if instituted or commenced involuntarily against the other Party, is not stayed or dismissed within 60 days after that involuntary institution or commencement, or (iv) the other Party otherwise becomes insolvent, admits in writing its inability to pay its debts as they mature, makes a general assignment for the benefits of its creditors, or enters into any workout or similar arrangement with its creditors; whenever in this sentence the term "Party" is used in relation to rights of City to terminate this Agreement for the action or inaction, or an event involving, the other Party, City shall have the same termination rights with respect to any such action or inaction by, or event involving, either CardFlex or Issuing Bank. The Parties may also terminate this Agreement by mutual written consent. Notwithstanding the effect of the immediately preceding clause (ii) in light of the Parties' respective obligations in Sections 4(e) and 4(h) of this Agreement, the Parties agree that a Party's loss of or inability to secure any governmental or regulatory license or authorization in any particular state of the United States, including (without limitation) the District of Columbia (a "Lost State") while maintaining necessary governmental or regulatory licenses or authorizations in one or more other states, shall not alone (i.e., without any other failure to perform by that Party) give the other Party a right to terminate this Agreement as a whole, but will give the other Party the right to cease performing those of its obligations hereunder, after the loss of that license or authorization, which arise or are performable only in, or correspond to or facilitate the performance of the first Party of its obligations hereunder in, the Lost State. (c) A Party's termination of this Agreement under Section 5(b) shall not be its exclusive remedy for any default by the other Party or affect such other Party's responsibility for performing its obligations under this Agreement. 25f4_15 (d) Upon termination of this Agreement, each Party shall cease all theretofore permitted use of the other Party's name, trade names, trademarks, service marks, and logos. (e) Upon termination of this Agreement, CardFlex will disburse to City all fee payments accrued and not yet paid. 6. No Control Of Customer's Operations: Independent Parties. Notwithstanding anything to the contrary contained herein, this Agreement shall not be construed to provide that CardFlex in any manner controls the operations of City or the manner in which the City complies with its obligations hereunder. The Parties are independent. This Agreement does not create or evidence a partnership or joint venture between the Parties, and no Parry has any authority hereunder with respect to any of the employees or Customers of the other Party. Each Party is responsible for its own business expenses generally, including (without limitation) expenses of performing its obligations under this Agreement, and for the payment of all taxes relating to its own business activities. 7. Non-Competition. Except as otherwise expressly provided in this Agreement, with respect to all Accounts established pursuant to this Agreement, City agrees that neither City nor any entity that City controls shall by itself or in conjunction with others, directly or indirectly, during the term of this agreement, specifically target any offer of a stored value, prepaid debit card, or related product to any of City's Customers. 8. Non-Exclusive Rights. City acknowledges and agrees that its rights under this Agreement to market and distribute CardFlex Cards shall be non- exclusive in nature and that CardFlex shall be permitted to enter into similar arrangements with other potential distributors. In addition, during the term of this agreement, City shall not be permitted to enter into a similar agreement with any or other debit card retailer, independent marketing organization, or third party processor in direct or indirect competition with or providing services similar to CardFlex. 9. Indemnification. (a)CardFlex hereby agrees to indemnify, defend, and hold harmless City and its Customers, employees, officers, directors, successors, and permitted assigns against any and all losses, claims, or expenses (including, without limitation, reasonable attorneys' fees and expenses) in any way arising from or connected with the inaccuracy of any representation or warranty of CardFlex hereunder, and the performance or nonperformance of CardFlex's obligations hereunder, it being the intention of the parties that CardFlex shall be fully liable for the actions and inactions of, or other events affecting, Issuing Bank which constitute an inaccuracy of any representation or warranty of CardFlex hereunder, and the performance or nonperformance of CardFlex's or Issuing Bank's obligations hereunder. (b) City hereby agrees to indemnify, defend, and hold harmless CardFlex and its Customers, employees, officers, directors, successors, and permitted assigns against any and all losses, claims or expenses (including, without limitation, reasonable attorneys' fees and expenses) in any way arising from or connected with the inaccuracy of any representation or warranty of City hereunder or the performance or nonperformance of City's obligations hereunder. (c) In no event shall either Party be liable for any consequential, punitive, special, or exemplary damages relating to this Agreement. (d) The Parties' respective indemnification obligations under this Section 9 shall survive the termination of this Agreement. 10. Confidentiality. Except as to Issuing Bank, each Party shall keep the Confidential Information of the other Party confidential and shall not use any of that Confidential Information for any purpose other than in connection with this Agreement. The "Confidential Information" of a Party is any trade secret or other confidential or proprietary information relating to that Party's services, business, or Customers; except that infonnation that is generally known to the public or in the industry (other than by a breach of this Section 10), is in the possession of the receiving Party before disclosure by the other Party, or is or becomes available to the receiving Party from a source that (to the receiving Party's knowledge) is not bound by any nondisclosure obligation to the other Party. A Party may, without violating this Section 10, make such disclosures (a) to its directors, officers, employees, attorneys, and other Customers as may be necessary to permit that Party to perform its obligations and to exercise its rights hereunder, and (b) as it reasonably deems are required by law, including the Freedom of Information Act and the California Public Records Act, though a Party will use its reasonable efforts to notify the other Party in advance of any such disclosure required by law. The Parties' respective obligations under this Section 10 shall survive the termination of this Agreement. I1. Compliance with Laws. The Parties will perform their respective obligations under this Agreement in compliance, in all material respects, with all applicable Laws, orders, or regulations. 12. Access to Records. (a) During the term of this Agreement, CardFlex shall maintain accurate records with respect to all issuances of the CardFlex Cards to City introduced accounts and provision of the CardFlex Services to Customers, the receipt of all payments and other amounts from Customers, all transactions of Customers using the CardFlex Cards, and all other matters related to this Agreement and copies of all documents and other materials related to CardFlex's obligations to City under this Agreement. Within 30 days of City's written request to CardFlex, but not more than once in any twelve-month period, City, by its duly authorized Agents and representatives, shall have the right to inspect such records, documents and materials from time to time during ordinary business hours, subject to (i) such security procedures as CardFlex may reasonably impose and (ii) such limitations as may be required under applicable governmental or regulatory rules, regulations or statutes governing the conduct of CardFlex's business; provided, however, that Parties shall have no obligation to disclose to each other, or to inspect or copy, or have any other right of access to any other corporate financial information, or Customer Financial Information, or to obtain photocopies of such records, documents, and materials. City agrees that any records, documents, and materials made available for inspection under this Section 12 shall be deemed Confidential Information of CardFlex that is subject to CardFlex's corporate privacy policy, except with respect to any disclosure required by any regulatory agency with jurisdiction over City, or Section 10 of this Agreement. (b) Within 30 days of CardFlex's written request to City, but not more than once in any twelve-month period, CardFlex, by its duly authorized Agents and representatives, shall have the right to inspect the records, documents and materials maintained by City relating to the CardFlex Cards and this Agreement, from time to time during ordinary business hours, subject to (i) such security procedures as City may reasonably impose and (ii) such limitations as may be required under applicable governmental or regulatory rules, regulations or statutes governing the conduct of City's business; provided, however, that Parties shall have no obligation to disclose to each other, or to inspect or copy, 254116 or have any other right of access to any other corporate financial information or Customer Financial Information, or to obtain photocopies of such records, documents, and materials. CardFlex agrees that any records, documents, and materials made available for inspection under this Section 12 shall be deemed Confidential Information of Customer that is subject to City's privacy policy, except with respect to any disclosure required by any regulatory agency with jurisdiction over CardFlex, or Section 10 of this Agreement. 13. Notice. Any notice, consent, or other communication to be given under this Agreement by any Party to the other Party shall be in writing and shall be either (a) personally delivered, (b) mailed by registered or certified mail, postage prepaid with return receipt requested, (c) delivered by prepaid overnight express delivery service or same-day local courier service, or (d) delivered by prepaid facsimile transmission, in any case to the address or number set forth below or at such other address or number as may have previously been designated by a Party for it by notice to the other Party in accordance with this Section 13. Notices delivered personally, by overnight express delivery service, or by local courier service shall be deemed given as of actual receipt. Mailed notices shall be deemed given three Business Days after mailing (A "-Business Day" is any Monday through Friday other than a day on which banks are authorized to be closed in the State of California.) Notices delivered by facsimile transmission shall be deemed given upon receipt by the sender of the Transmission confirmation. 14. Assignment. Except as provided in this Agreement, the rights and obligations under this Agreement may not be assigned or delegated by either Party without the prior written consent of the other Party, and any such purported assignment or delegation without such consent shall be void. Either Party may assign its rights and obligations under this Agreement to any entity that controls, is controlled by, or is under common control with such Party, so long as that other entity is not a direct competitor of the non-assigning Party and is capable of performing (and agrees to perform) the obligations of the assigning Party under this Agreement. Any requested consent to assignment will not be unreasonably withheld by a Party, unless the entity to which the assignment is to be made is a direct competitor of the non-assigning Party (in which case, consent shall be in the sole discretion of the non-assigning Party). 15. Governing Law. This Agreement shall be governed by, construed in accordance with, and enforced under the laws of the State of California. 16. Force Majeure. Except as otherwise expressly set forth herein, in the event a Party shall be delayed or hindered in, or prevented from, the performance of any act required of it hereunder by reason of strike, inability to procure materials, failure of power, telecommunications or connectivity failure, restrictive governmental laws or regulations, inability to obtain or maintain (for any reason outside of a Party's reasonable control) any governmental or regulatory license or authorization, riot, insurrection, war, terrorism and/or any act in furtherance of terrorism, act of God, or other event outside that Party's reasonable control (each such cause or event being hereinafter referred to as a "Force Majeure") then performance of such acts will be excused for the period of the delay and the period for performance of any such act shall be extended for a period equivalent to the period of such delay. Any time a Party is experiencing a Force Majeure that is expected to result in a significant failure or delay, that Party will give notice to the other Party describing the Force Majeure and the nature of the failure or delay and giving an estimate as to how long the delay will be. A Party claiming an excusable delay or failure under this Section 16 shall use reasonable efforts to alleviate or overcome the Force Majeure as soon as practicable. 17. Offset. A Party shall be entitled to credit or offset an amount equal to any or all amounts due to it by the other Party under this Agreement. 18. Dispute Resolution. Any dispute or controversy arising out of or relating to this Agreement, or the interpretation or termination of this Agreement ("Dispute"), shall be resolved or settled by arbitration before a single arbitrator pursuant to the Rules for Commercial Arbitration of the American Arbitration Association (the "Rules"). Arbitration may be commenced at any time by a Party's giving written notice to the other Party that a Dispute has been referred to arbitration under this Section 18. The arbitration proceeding shall be conducted in Orange County, California. The arbitrator shall be selected by agreement of the Parties, but if they do not so agree within 20 days after the date of the notice referred to in the second preceding sentence, the selection shall be made by the Orange County office of the American Arbitration Association pursuant to the Rules. Any award rendered by the arbitrator shall be conclusive and binding upon the Parties. This provision for arbitration shall be specifically enforceable by either of the Parties, and judgment upon the arbitration award may be entered and enforced in any court having jurisdiction over the Parties or their respective assets, it being the intent of the Parties that these arbitration provisions be enforced to the fullest extent permitted by applicable law. Each of the Parties shall pay its own expenses of arbitration (including, without limitation, those of its own counsel and witnesses), and the expenses of the arbitrator shall be shared equally by the Parties; except that if, in the opinion of the arbitrator, any claim or any defense or objection thereto was unreasonable, the arbitrator may assess, as part of his or her award, all or part of the arbitration expenses of the other Party (including, without limitation, its reasonable attorneys' fees) and of the arbitrator against the Party asserting charge unreasonable claim, defense, or objection Nothing in this Section 18 precludes a Party from applying to a court having jurisdiction to (a) seek provisional or temporary injunctive relief, in response to an actual or threatened breach of this Agreement or otherwise to avoid irrevocable damage or maintain the status quo, until a final arbitration decision or award is rendered or a Dispute is otherwise resolved or (b) enforce the provisions of this Section 18. Nothing in this Section 18 precludes the Parties from resolving a Dispute by agreement at any time. 19. Amendment Waiver. This Agreement may only be amended by the written consent of both Parties, and any provision hereof may be waived only by a document signed by the Party against which the waiver is sought to be enforced. A Party's failure or delay in enforcing the other Party's performance of any of such other Party's obligations under this Agreement shall not be a waiver of any of those obligations. 20. Invalid Provisions. If any provision of this Agreement is ever held to be invalid or unenforceable, that provision will be severed from the rest of this Agreement, and all of the other provisions of this Agreement will remain in effect, but will be amended by the Parties to the extent possible to result in this Agreement having the same relative economic benefits and detriments to the Parties as existed before the severance of the invalid or unenforceable provision. 21. Entire Agreement. This Agreement contains the entire agreement of the Parties as to the subject matter hereof and supersedes all prior agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof. The Authorized Payment Processor Applicant Form is an integral part of this Agreement. 251'f X17 22. Binding Effect: No Third-Party Beneficiaries. This Agreement and the rights and obligations hereunder shall be binding upon and shall inure to the benefit of the Parties and their legal successors and permitted assigns. Except as otherwise provided in Section 1 and 2 above, nothing in this Agreement, expressed or implied, is intended to confer upon any person or entity, other than the Parties And their legal successors and permitted assigns, any rights, benefits, or obligations. 23. Compliance with Gramm-Leach-BlilevAct. Notwithstanding the foregoing, nothing herein shall require either Party to violate Title V of the Gramm-Leach-Bliley Act (the "Act") or any regulation promulgated thereunder with respect to the privacy of the customers of any financial institution. 24. Organization and Qualification. The Parties represent and warrant to each other that each Party is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, is duly qualified and in good standing as a foreign entity in every state in which the character of its business requires such qualification (except where the failure to obtain such foreign qualification would not have a material adverse effect on City's business) and has the power to own its property and carry on its business as now conducted. 25. Due Authorization. The execution and delivery by the Parties of this Agreement, the performance by the Parties of the transactions contemplated hereby and compliance by the Parties with the terms of this Agreement, (a) are within the Parties' power and authority; and, (b) have been duly authorized by all necessary action. This Agreement has been duly executed and delivered by the Parties and constitutes a valid and binding agreement of each Party, enforceable in accordance with its terms. 26. Consents. 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 the other Party fully, including reasonable costs and attorney's fees, for any injuries or damages to that Party in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 27. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one, and the same, document. Date. IN WITNESS WHEREOF, the Parties have caused this Distribution Agreement to be executed and effective as of the Effective CITY OF SANTA ANA By: Print Name: Paul M. Walters Title: __City Manager __________ Address: Clerk of the Council 20 Civic Center Plaza (-30) Santa Ana, CA 92702 Date: CARDFLEX, INC By: Name: Title: Date: Recommended for Approval: Francisco Gutierrez, Ex Dir FMSA 25154-18 ADDENDUM A CardFlex Services and Pricing • General Purpose Reloadable Prepaid Cards ............................................................$3ea • Implementation and Set-Up ............................................................................$5,000 o Card Design and Set-up o MasterCard or Discover Submittal o First CA Bank Submittal o Custom Card Carrier and Collateral o Custom Cardholder Landing Page o Marketing Support Materials (electronic form) • Returned Check Fee ..........................................................................................$20 • Card Replacement (Lost/Stolen) ........................................................................$5.00 "Account Activation is optional and not required by CardFlex. **CardFlex will perform no disbursementfunctions under this agreement, but will provide (SA) with any information needed to perform Direct Deposit, including authorizations and/or disclosures. Additional disbursement services are available and can be added under a separate addendum, if necessary. Initials Initials 25a' X19 ADDENDUM B Cardholder Fees Monthly Account Maintenance $4.95 POS Transactions FREE NSF Overdraft Fee NONE Load Fee FREE Electronic Statement FREE Direct Deposit FREE Email Notifications - Balance Inquiry FREE Text Message Alerts - Balance Inquiry FREE Customer Service via IVR FREE ATM Cash Withdrawal $2.00 Other Domestic ATM Transactions (including Declines) $0.50 International ATM Cash Withdrawal $3.50 Other International ATM Transactions (including Declines) $1.00 Cash Withdrawal From Bank $4.00 Bill Pay $1.00 Card to Card Transfers $1.00 Other Transfers $3.00 Expedite Card Delivery $25.00 Declined Transactions $.25 Live Agent Customer Service $2* *Waived if card problem exists Initials Initials 25H-20 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: June 18, 2012 TITLE: AGREEMENT TO PROVIDE ANNUAL MAINTENANCE AND SUPPORT FOR COPLOGIC, INC. CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached amendment to the agreement with Coplogic Inc., for the annual maintenance and support of the DeskOfficers Online Reporting System (DORS) in an amount not to exceed $30,000 subject to non- substantive changes approved by the City Manager and City Attorney. DISCUSSION The Police Department currently uses an online reporting application that is limited to one language and does not interface with existing data management systems. The redundancy of re- entering the data into several systems cost time and money. The (DORS) system would enable the Police Department the ability to collect reports from citizens online in seven languages and interface with existing and future data management systems. The application would generate a savings and allow the agency to better reallocate resources to proactively face crime trends and better meet the needs of the community. There is not currently any application available that has the features, abilities or security features of Coplogic's DeskOfficer Online Reporting System. The DORS system is wholly owned, intellectual property of Coplogic, Inc. The recommended action will allow for continuous service to the Santa Ana Police Department. FISCAL IMPACT Funds are available in the Police Department's Computer Services fund (account no. 01114425- 62300). APPROVED AS TO FUNDS AND ACCOUNTS: Paul M. Walters Francisco Gutierrez Chief of Police Executive Director A- Police Department Finance & Mgmt. Services Agency 251-1 251-2 DeskOfficer Online Reporting System (DORS) SOFTWARE SUBSCRIPTION, SUPPORT AND MAINTENANCE AGREEMENT THIS SOFTWARE SUBSCRIPTION, SUPPORT AND MAINTENANCE AGREEMENT ("Subscription and Support Agreement") is made on this day of June, 2012, by and between the City of Santa Ana, located at 20 Civic Center Plaza, Santa Ana CA 92701, a charter city and municipal corporation under the laws of the State of California ("Customer") and Coplogic, Inc., an existing California corporation, whose address is 231 Market Place #520, San Ramon, CA 94583 ("Company"). RECITALS: Customer has obtained a license to use the DeskOfficer Online Reporting System ("Software") for the term of that agreement, more particularly described in the Setup and License Agreement of the same date. Customer wishes to retain Company to provide software maintenance and support services for the Software for another one (1) year term. SUBSCRIPTION AND SUPPORT SERVICES 1. Generally. During the duration of this Subscription and Support Agreement, Company shall provide to the Customer a subscription license, as well as support and maintenance for the Software purchased in accordance with the terms of this Subscription and Support Agreement and the response time described in Schedule A, attached hereto. Support includes an annual review of current outstanding questions and usage issues at customer request; the provision of new and upcoming releases of updates; and enhancements made to the Software that the Customer is licensed to use that are generally made available without additional charge to other users of the Software with similar support and maintenance contracts. The parties shall amend Schedule B from time-to-time in the event that the Customer requests customizations to the Software. 2. Hours of Support. Company will provide the support services during the hours as described in Schedule A attached hereto. 3. New Releases. Company will, from time-to-time issue new releases of the software (Schedule B), and when it does, it will provide a copy of the release documentation, and/or updated user or system documentation. If any part of the Customer's custom code is not part of the general release delivered by Company, then Company will assist and provide guidance for integrating the custom code into the new release. Any time taken to modify or repair unauthorized changes that may require Company assistance to modify may be billed at Company's then current pricing schedule. 4. Exceptions. Company is not responsible for maintaining unauthorized Customer modified portions of the Software, Customer data files or for maintaining portions of the Software affected by unauthorized Customer modified portions of the Software. The Customer agrees that the equipment on which the Software operates will be operating properly at all times and must have been and continue to be properly maintained by the manufacturer of the equipment or a properly qualified service organization. Corrections for difficulties or defects traceable to the Customer's Coplogic - DORS Software Subscription, Support and Maintenance Agreement 1 251-3 errors or unauthorized changes, Customer's hardware, or conflicts with other software not identified by Company as compatible or part of the recommended operating environment may be subject to billing at Company's current standard time and material charges. The Customer will be responsible for properly testing and applying routine virus updates and security patches without the need for additional Company's notification. Company will be responsible for testing Company's software updates prior to making them available to the Customer. The Customer acknowledges responsibility for testing Company's software updates before applying them to the Customer's production systems. For servers running Company's software, the Customer acknowledges responsibility for communicating with Company prior to installation of non- Company's software service packs, implementation of new releases or versions of non- Company's software, or installation of new non- Company's software products. Except for emergency replacement of a failing server, the Customer acknowledges responsibility for communicating with Company prior to replacing a server on which Company's software is being used. Company is not responsible for changes if related to or caused by software not provided by Company. For workstations running Company's software, the Customer acknowledges responsibility to test new workstation configurations, software service packs, new releases or versions of software, and new software products prior to implementation. 5. Limitations. Company may, in its sole discretion, limit or suspend Customer's access to support, pursuant to this Subscription and Support Agreement, where (1) Customer is in material default under the terms of this Subscription and Support Agreement (non-payment is deemed to be a material default), or (2) Customer fails to provide adequately trained staff to administer the Software. Prior to limiting or suspending support, Company will give the Customer 45 days written notice of its intention to do so and actively participate with the Customer to remedy any such default or failure. 6. Term. This Subscription and Support Agreement commences at the earlier of 1) the "go-live" date of the Software or 2) September 1, 2012, and expires one year after its commencement date. Within thirty (30) days prior to its expiration, Company shall send to the Customer an invoice for an annual "Subscription, Support and Maintenance Fee". The sending of any such invoice will constitute an irrevocable offer to extend the Subscription and Support Agreement for the period and fees set forth in the invoice, which may be accepted by the Customer in its sole discretion as hereinafter set forth. Termination of the Subscription and Support Agreement prior to its expiration shall not result in the refund of partial service fees. The Customer's payment of an annual Subscription, Support and Maintenance Fee in response to an invoice prior to the expiration date of the Subscription and Support and Agreement, or within forty-five (45) days after the date of Company's invoice, whichever is later, will extend the Subscription, Maintenance and Support Period for the period of one year from its previous expiration date, or for the period set forth in the invoice if different. 7. Adjustments to Terms and Conditions. Company may change the Annual Subscription, Support and Maintenance Fee and the terms and conditions of this Subscription and Support Agreement provided that written notice is given to the Customer thirty (30) days prior to the expiration of the current term. Coplogic - DORS Software Subscription, Support and Maintenance Agreement 2 251-4 COST 8. Annual Fee. The Customer shall pay Company an Annual License Subscription, Support and Maintenance Fee for which support is being provided (see Schedule B for base Annual Subscription, Support and Maintenance Fee). Annual Subscription, Support and Maintenance Fee for the first (1") year is due upon execution of this agreement and will then reoccur on the anniversary date of the execution of this agreement for each year thereafter. For a period of three (3) years following execution of this Subscription and Support Agreement, the Annual Fee shall not increase by more than 5% of the previous year's Annual Subscription, Support and Maintenance Fee. Notwithstanding the immediately preceding sentence, Company shall have the right at each anniversary date to review population served by Customer and adjust the Annual Subscription, Support and Maintenance Fee to the commensurate amount. All requests by the Customer for additional features or functionality that fall outside of Company's ongoing policy of upgrading the Software will be quoted separately. Late Payments. All invoices will be sent at least thirty (30) days prior to their due date. Payments received forty five (45) days after their due date will be assessed a 10% late fee. 9. Taxes. In addition to other amounts payable under this Subscription and Support Agreement, Customer shall pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Customer's use of the Software or the payment of the License Subscription Fee to Company, other than taxes assessed against Company's net income. Such taxes, duties, fees, withholding, or other charges shall be paid by Customer or Customer shall provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If Company is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Company from Customer pursuant to this Subscription and Support Agreement, Customer shall promptly reimburse Company any such amounts. CUSTOMER'S OBLIGATION 10. The Customer Agrees to: (a) Furnish descriptions of problem(s) in the form reasonably requested by Company Support representatives; (b) Assist Company's efforts to reproduce the problem(s) in the applicable operating environment, and (c) Make available qualified, trained staff on-site to carry out Company's instructions and/or provide remote access to system(s) as requested by Company. 11. The Customer shall designate a sole Support Contact to provide routine end user support for the Customer personnel concerning the Product. 12. The Customer shall take appropriate steps to educate its end users about the need to contact the Support Contact (rather than Company directly) when support is needed. The Customer shall appropriately publicize the name, telephone number, and/or fax number and/or electronic mail address if applicable, of the Support Contact. Coplogic - DORS Software Subscription, Support and Maintenance Agreement 3 251-5 13. Access to Data and System. The Customer agrees to provide Company with data dumps, as requested, remote access to the Software system, and with sufficient test time on the Customer's computer system to duplicate the problem, to certify that the problem is with the Software, and to certify that the problem has been corrected. 14. The Customer shall install and maintain for the term of this Subscription and Support Agreement, a reasonable and satisfactory method of direct remote computer access to the Software. The Customer shall pay for the installation and maintenance of such access. Company shall use this access service in connection with error correction, software updating and user support only, and only upon prior written or email notice to the Customer, and Customer's acknowledgment of that notice. 15. The Customer must upgrade the Software in its entirety to the most recent version within seven business days of the release of any updates or modifications of the Software unless otherwise mutually agreed. Company will not be obligated to provide support for release versions that are more than two release versions older than the current version unless specified in this Subscription and Support agreement. Company agrees that all release versions will be tested for installation in a computer environment substantially similar to the Customer's and that all releases will be free of material defects that would affect the orderly continuation of Customer's use of the Product. 16. The Customer agrees that, subject to and in accordance with the Customer's internal policies and guidelines, it will upgrade the computer operating software, hardware and underlying database engines of the DeskOfficer Online Reporting System software as necessary to meet the changing requirements of the Software as specified by Company as part of a current release of the Software, or as the parties mutually agree. The Customer agrees that, subject to and in accordance with the Customer's internal policies and guidelines, it will maintain appropriate licenses for the computer operating software and underlying database engines required of the DeskOfficer Online Reporting System as necessary. The parties agree that Company is not obligated to ensure that its new release of the Software is compatible with outdated (exceeding 4 years from date of initial release) hardware, computer operating software or database engines). Coplogic - DORS Software Subscription, Support and Maintenance Agreement 4 251-6 CONFIDENTIALITY 17. Confidential Information. (a) The parties hereby acknowledge that they may have access to information that is confidential to one another ("Confidential Information"). "Confidential Information" includes, but is not limited to, the licensed products and enhancements, all related source and object codes, Documentation, customer and prospect lists, pricing proposals, financial and other business information, all data and information relating to Customer's operation, and any other information designated as confidential or proprietary information by the disclosing party. "Confidential Information" shall not include any information which (i) becomes part of the public domain through no act or omission of the other party; (ii) is lawfully acquired by the other party from a third party who is not in breach of an obligation of confidentiality; (iii) was in the other party's lawful possession prior to disclosure of such information; (iv) is independently developed by the party without the benefit or use of the Confidential Information; or (v) is required to be disclosed under a court order or a valid subpoena, provided that the recipient of the Confidential Information promptly notifies the disclosing party in order for the disclosing party to have an opportunity to seek an appropriate protective order. The parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other party's Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. Each party agrees to maintain at least the same procedures regarding the other party's Confidential Information that it maintains with respect to its own Confidential Information. (b) Company acknowledges that the Customer is a governmental agency and may be required to disclose certain information under requests made according to provisions of the Public Records Act. Customer shall give notice to Company of any request for the disclosure of any information set apart and marked "confidential," "proprietary" or "trade secret" by Company. Company shall then have five (5) days from the date it receives such notice to enter into an agreement with Customer providing for the defense of, and complete indemnification and reimbursement for all costs (including plaintiff's attorney's fees) incurred by Customer in any legal action to compel the disclosure of such information under the Public Records Act. Company shall have the sole responsibility for the defense of the actual proprietary or trade secret designation of such information. The parties understand and agree that any failure by Company to respond to the notice provided by Customer and/or to enter into an agreement with Customer, as set forth above, shall constitute a complete waiver by Company of any nondisclosure or confidentiality rights hereunder with respect to such information, and such information shall be disclosed by Customer pursuant to applicable procedures required by the Public Records Act. (c) Both parties acknowledge that any use or disclosure of the other party's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the non- disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non-disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or Coplogic - DORS Software Subscription, Support and Maintenance Agreement 5 251-7 disclosure. The terms and provisions of this section shall survive any termination of this Subscription and Support Agreement. TERMINATION 18. The Customer may terminate this Agreement at any time and for any reason upon thirty (30) days prior notice to Company. In the event of a material default by the Customer under this agreement, Company may terminate this Agreement upon thirty (30) days prior notice to Customer, provided that Customer has been given thirty (30) days notice to cure the default. LIMITATION OF LIABILITY 19. To the extent permitted by law, neither party's liability to the other party in connection with any cause of action, costs or damages relating to this Subscription and Support Agreement shall exceed the annual fee paid in the twelve month period preceding the event giving rise to the claim. Notwithstanding the foregoing, for purposes of the services performed by Company under this Subscription and Support Agreement, Company agrees to fully defend, indemnify and hold harmless Customer, its officers, employees and agents from any damage, loss, liability, costs (including reasonable attorneys fees), claim or cause of action arising out of injury, loss or damage to real property or tangible personal property, or arising from personal injury or death, where such damage, loss, liability, costs, claim or cause of action is caused or incurred in whole or in part as a result of any negligent or wrongful act or omission or willful misconduct of Company, its officers, employees, agents, contractors and assigns. Company's obligation hereunder is contingent upon Customer providing Company prompt written notice of any such claim, action, lawsuit or other proceeding and Customer shall fully cooperate with Company in the defense and all related settlement negotiations. The existence of any insurance policies or coverage's shall not affect the parties' rights and obligations hereunder. GENERAL 20. This Agreement shall be binding upon the successors and assigns of both parties, provided, however that no assignment, delegation or other transfer shall be made by Company without the prior written approval of the Customer, which approval shall not be unreasonably withheld. 21. This Agreement, together with Schedule A and Schedule B, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter, except for the concurrently executed Setup and License Agreement. No modification or amendment of this Agreement will be valid or binding unless reduced to writing and duly executed by the party or parties to be bound. 22. Each party shall be excused from delays in performing or from its failure to perform hereunder to the extent that such delays or failures result from causes beyond the reasonable control of such Coplogic - DORS Software Subscription, Support and Maintenance Agreement 6 251-8 party; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause or effect of such delay or failure to the extent the party is able. In the event of such delays, the timetables shall be extended by as many calendar days as the delay caused by forces outside the reasonable control of the parties. 23. This Subscription and Support Agreement may be executed in separate counterparts, each of which so executed and delivered shall constitute an original, but all such counterparts shall together constitute one and the same instrument. Any such counterpart may comprise one or more duplicates or duplicate signature pages, any of which may be executed by less than all of the parties provided that each party executes at least one such duplicate or duplicate signature page. The parties stipulate that a photocopy of an executed original will be admissible in evidence for all purposes in any proceeding as between the parties. 24. Any provision of this Subscription and Support Agreement or part thereof found to be illegal or unenforceable shall be deemed severed, and the balance of the Agreement shall remain in full force and effect. 25. This Subscription and Support Agreement shall be governed and construed in accordance with the laws of the State of California. Venue of any action brought with regard to this Subscription and Support Agreement shall be in Contra Costa County, California. The undersigned represent and warrant that they are authorized as representatives of the party on whose behalf they are signing to sign this Agreement and to bind their respective party thereto. Coplogic, Inc. City of Santa Ana, a charter city and municipal corporation (Signature) James Lee Chief Operating Officer (Date) APPROVED AS TO FORM: (Signature) Paul Walters City Manager (Date) ATTEST: Sonia Carvalho, City Attorney By: Lisa Storck, Asst. City Attorney Coplogic - DORS Software Subscription, Support and Maintenance Agreement By: Maria D. Huizar, Clerk of the Council 7 251-9 SCHEDULE A Company Hours of Support and Maintenance Service are as follows: Regular Hours of Service (Pacific Timed After Hours Service (Pacific Time 0900 to 1700 hours, Monday to Friday 1701 to 0859 hours, Monday to Friday (excluding Holidays observed by the U.S. Saturdays & Sundays Federal Govt.) Holidays E-mail received by: E-mail received by: Company staff at supportAcoplogic.com Company staff at supportAcoplogic.com Incident/Request for Service Priority. All support and maintenance incidents/ requests for service will be prioritized on the following basis: Priority Definition A Work is stopped to the point that critical business activities cannot continue. e.g. Loss of use of major features, file system corruption, data loss, security issue, system outage. B Issues or features of the product are preventing normal operations. C Non-critical features, for which a convenient or reasonable work around exists, or a feature which functions unexpectedly. Slight inconvenience. Response Time. The following table outlines the response times for each priority: Priority Response Time Response Time During Regular Hours of Service During After Hours of Service A 2 hours 6 hours from time of notifying the vendor contact(s) through voice mail or e-mail B (2) business days of Company receipt of Not available verbal, written or electronic notice thereof and to correct the Priority B Issue by the Customer's reasonably requested date. If the Priority B Issue is not corrected within 2 business days of the original notification Company will provide the Customer with reports of its efforts to correct the Priority B Issue as requested by Customer. C As time permits basis or inclusion in the next Not available scheduled update to the Licensed Product. Coplogic - DORS Software Subscription, Support and Maintenance Agreement 251-10 1. Incident/Request for Service Reporting Procedure All problems, queries or requests for assistance must be made to Company at support@coplogic.com, during regular business hours of service. Customer must be prepared to leave a contact name, phone number, workstations affected, screenshots, a description of the problem/service and the impact. Company's resources will work with the Customer to diagnose the problem. After investigating the issue, Company and the Customer will jointly categorize the problem into: Type of Problem Ownership Customer Server Hardware Problem Customer Desktop Hardware Problem Customer Customer Network Communication Customer Isolated Workstation Issue Customer Customer Database Performance/storage Customer Application or software related Compare Company will deal with problem/incident according to the priority assigned. In the case that a problem cannot be readily resolved, Company will attempt to identify a work around. As soon as Company corrects an Issue, Company shall notify the Customer that the Issue has been corrected by sending an electronic mail. Coplogic - DORS Software Subscription, Support and Maintenance Agreement 9 251-11 SCHEDULE B Coplogic DeskOfficer Online Reporting System version 6.2.0.3 One time setup and implementation fee for DeskOfficer Online Reporting Software: $15,000 Base Annual Subscription, Support and Maintenance Fee: $15,000 (for Year 1) Coplogic - DORS Software Subscription, Support and Maintenance Agreement 10 251-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: INSURANCE RENEWALS CITY MANAGER 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 RECOMMENDED ACTION 1. Approve the City's continued membership in the Big Independent Cities Excess Pool from July 1, 2012 to July 1, 2013 at an estimated premium cost not to exceed $1,460,000. 2. Approve the City's continued participation in the Public Entity Property Insurance Program from July 1, 2012 to July 1, 2013 at an estimated premium cost not to exceed $415,000. 3. Approve the City's continued participation in the California State Association of Counties - Excess Insurance Authority's Crime Bond Program from July 1, 2012 to July 1, 2013 at an estimated premium cost not to exceed $11,500. DISCUSSION In September 1988, the Big Independent Cities Excess Pool (BICEP) Joint Powers Authority was formed with five cities. The current cities include Santa Ana, Huntington Beach, San Bernardino, Oxnard, and West Covina. The purpose of BICEP is to provide insurance coverage for its members, shielding them from financial debt due to large liability claims, judgments, and settlements. Additionally, participation in a pool provides rate stability and can offer broader coverage. The current excess liability, workers' compensation, and pollution and remediation liability insurance policies will expire on July 1, 2012. The total BICEP insurance premium for the July 1, 2012 to July 1, 2013 period will not exceed $1,460,000; an estimated $1,200,000 of which covers liability claims from $1,000,000 to $50,000,000 per occurrence with a $1,000,000 self insured retention (SIR) which functions like a deductible. An estimated $225,000 purchases statutory excess workers' compensation insurance coverage with a $1,000,000 SIR. The balance of $35,000 covers pollution and remediation liability claims for three years with a $10,000,000 limit and $100,000 SIR. The pollution and remediation liability insurance provides coverage for loss, remediation expense and legal defense expense for sudden and gradual pollution conditions at or from covered locations. 29A-1 Insurance Renewals June 18, 2012 Page 2 The Public Entity Property Insurance Program (PEPIP) was established in May 1993 with seventeen public agencies including the City of Santa Ana. The purpose of PEPIP is to provide public agencies with group purchasing strength. Since 1993, PEPIP has grown to include over 6,400 members in 45 states, which has allowed the group to purchase property insurance at affordable premiums. The estimated $415,000 premium will provide $1,000,000,000 of coverage for insured City properties. PEPIP will provide the City with $100,000,000 for boiler and machinery damage and $82,500,000 in coverage for flood damage (coverage is in limited to $50,000,000 in Flood Zone A.) Due to the excessive premium cost of earthquake insurance, the City will not seek this coverage. Insurance deductibles will be as follows: Coverage Deductible Flood $100,000 except $250,000 for Flood Zone A locations Vehicles $25,000 All other occurrences $10,000 Boiler & Machinery $2,500 to $350,000, depending on the pieces of equipment involved The City joined the California State Association of Counties - Excess Insurance Authority (CSAC- EIA) Crime Bond Program on April 1, 2004. The estimated renewal premium from July 1, 2012 to July 1, 2013 is $11,500. The Crime Bond Program limit is $10,000,000 with a $25,000 per occurrence deductible and covers the following: 1. Employee dishonesty with faithful performance coverage 2. Forgery and alteration 3. Theft, disappearance and destruction 4. Robbery and safe burglary 5. Computer fraud including funds transfer coverage 6. Money orders and counterfeit paper currency The City Manager will review the quotations and make the final decision to secure the coverages. FISCAL IMPACT Funds are budgeted in the proposed 2012-13 Liability & Property Insurance account (account no. 08009051-64010) and Workers' Compensation account (account no. 08209054-64010). Edward Raya Executive Director Personnel Services APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director ?i Finance & Management Services Agency 29A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED QUITCLAIM OF STORM DRAIN ? As Recommended EASEMENT AT 1500 SOUTH AUTO MALL ? As Amended DRIVE TO PENSKE AUTOMOTIVE El Ordinance on 1St Reading ? Ordinance on 2nd Reading GROUP ? Implementing Resolution ? Set Public Hearing For_ C CITY MANA R CONTINUED TO FILE NUMBER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute a quitclaim deed relinquishing the City's interest in a storm drain easement at 1500 South Auto Mall Drive to Penske Automotive Group Santa Ana B1, Inc., a Delaware Corporation. DISCUSSION In 2003, Crevier BMW proposed the expansion of its dealership at 1500 South Auto Mall Drive. In 2006, a City-owned-and-maintained 27-inch storm drain pipe was abandoned to eliminate a conflict with one of Crevier's planned structures. The abandoned pipe was replaced with the construction of a 30-inch storm drain pipe at a new location within the property. A 20-foot-wide easement has been dedicated to the City for the new pipe location. Therefore, the existing 10-foot-wide easement for the abandoned pipe can be quitclaimed (Exhibit 1). PAG Santa Ana B1, Inc. (Penske) acquired the dealership property, although the Crevier BMW name remains. Penske is in the site plan review process with the City for an expansion of the service bay in the proximity of the easement to be quitclaimed. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed request is not considered to be a project. No further action is required. FISCAL IMPACT There is no fiscal impact associated with this project. vV'if" 1 r.? Raul-Godinez II Executive Director Public Works Agency RG/SA Exhibit 1: Location Map 30A-1 r i Lu 0 w' z' ?J zr <r CREVIER BM \ DEALERSHIP , 1500 SOUTH AUTO MALL DRIVE c ,O -?10ft 5ft 1D - PROPOSED m 20 ft CANOPY loft LOCATION I 111 _, _/ EDINGER AVENUE --- t----- -- -- -- LEGEND: NEW EASEMENT OLD EASEMENT BEING QUITCLAIMED - PROPOSED CANOPY LOACTION EXHIBIT 1 SANTA ANA Title: P¦ I Al City Council QUITCLAIM OF STORM DRAIN EASEMENT Agenda Date: PLArt: +A11115 nrfMC1 June 18, 2012 AT 1500 SOUTH AUTO MALL DRIVE i- \\ \ r7 z c0IV! 0N4 EALTH VOLKSWAGEN REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: ORDINANCE AMENDING THE SANTA ANA MUNICIPAL CODE REGULATING THE TESTING OF WATER METERS AND ADJUSTMENT OF BILLS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15f Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt an ordinance amending a portion of Chapter 39, Section 24 of the Santa Ana Municipal Code regulating the testing of water meters. DISCUSSION As established by Ordinance No. NS-936 in 1968, a customer may request that the City test the water meter serving his premises for accuracy. The water meter test involves removal of the meter serving the premises, transportation of the meter to the testing facility, performance of the test, and reinstalling the meter at the customer's premises. A water meter test fee of $5 was originally established in order to recover the cost associated with performing the test; however, this amount no longer adequately covers the cost of this service. Staff from the City Attorney's Office and the Public Works Agency has prepared an ordinance amending this section of the Municipal Code to provide that the fee be set by City Council Resolution. The City's 2012-2013 Miscellaneous Fee Schedule includes a proposed water meter test fee of $96 for fiscal year 2012-2013, which will only be implemented if City Council approves the amendments to SAMC §39-24. The fee may be adjusted annually along with other Miscellaneous Fees as a part of the overall City budgeting process which will ensure that the water meter test service is appropriately funded. The ordinance will retain the requirement that the City refund the test fee (as a credit to the customer's bill) if the meter fails to meet industry standards. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is not considered a CEQA project. Therefore, no environmental documentation is required. 5OA-1 Ordinance Amending the Santa Ana Municipal Code Regulating the Testing of Water Meters and Adjustment of Bills June 18, 2012 Page 2 FISCAL IMPACT Fees collected will be deposited in the Water Quality & Measurement Fund (accounting unit 06017644-57010). Raul Godinez II Executive Director Public Works Agency RG/RR Exhibit: 1. Ordinance APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 5OA-2 EXHIBIT 1 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING SECTION 39-24 OF THE SANTA ANA MUNICIPAL CODE TO AUTHORIZE THE SETTING OF WATER METER TEST FEE BY RESOLUTION OF THE CITY COUNCIL THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council hereby finds, determines and declares as follows: A. The Santa Ana Department of Public Works provides metered rate water service for customers within the city limits; and B. A customer receiving water from the municipal water system (hereinafter, "the Utility") may request the Utility to test the water meter serving its premises for accuracy after depositing $5.00 to pay the costs associated with providing the test; and C. The City Council has adopted a policy requiring that the cost of providing services should be borne by the person requesting such services; and D. The Department of Public Works has recommended that the water meter test fee be increased to pay the actual costs associated with providing such test, including personnel costs of travelling to the premises, pulling the meter, testing the meter and reinstalling the meter; and E. The costs associated with providing services may increase annually, and the cost to the City of providing the water meter test will increase in a like amount, thus the water meter test fee should be annually adjusted equivalent to the annual average of the Consumer Price Index, Los Angeles-Riverside-Orange County area; and F. All fees assessed for the water meter test bear a direct correlation between the amount of the fee and the actual cost of the services provided, including administration, personnel and implementation services specifically related to water meter test. Further, the proposed increase will not result in revenue which exceeds the City's estimated reasonable costs to provide the water meter test. 5OA-3 Section 2. In accordance with the California Environmental Quality Act, the recommended action is categorically exempt per section 15061 (b)(3) as obtaining full cost recovery for provision of services will have no possible significant effect on the environment. Section 3. Section 39-24 of the Santa Ana Municipal Code is hereby amended to authorize the water meter test be set by Resolution of the City Council of the City of Santa Ana. Said Section 39-24 shall read in full as follows (new language in bold, deleted language in strikeout for tracking purposes only): Sec. 39-24 Testing of meters and adjustment of bills. (a) Meter test on customer's request: A customer may request the utility to test the meter serving his premises to determine that the meter is accurate. The customer shall deposit a fee as set by resolution of the City Council to cover the cost of such test. and the The deposit shall be returned to the customer if the meter fails to meet then current industry standards as established by the American Water Works Associationic found +^ FegisteF more +h tWO (2) peFGen+ fast. The customer shall have the right to attend the conduct of the test and a written report of the test will be given to him if he so requests. (b) Adjustment of bills for meter error. When upon test, a meter fails to meet then current industry standardsi° fG Rd to be registering mere +haR tWO (2) perncn+ fas , the city will refund to the customer the amount of the overcharge based on corrected meter readings for the period the meter was in use, but not exceeding a period of six (6) months. When upon test a meter two (2) inches or less in size is found to be registering more than twenty-five (25) percent slow, the city may bill the customer for the amount of the undercharge based upon corrected meter readings for the period the meter was in service, but not exceeding a period of three (3) months. When upon test a meter three (3) inches or larger in size is found to be registering more than five (5) percent slow, the city may bill the customer for the amount of the undercharge based upon corrected meter readings for the period the meter was in service, but not exceeding a period of three (3) months. 5OA-4 Section 4. Any provision of the Santa Ana Municipal Code that is inconsistent with the provisions of this Ordinance, to the extent of such inconsistency and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. Section 5. 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 6. This ordinance shall become effective thirty days after its adoption by the City Council. 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 5OA-5 CERTIFICATE OF PUBLICATION 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 50A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JUNE 18, 2012 TITLE: CONSOLIDATION WITH THE COUNTY OF ORANGE ON THE NOVEMBER 6, 2012 GENERAL MUNICIPAL ELECTION APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ C? CITY MANAGER RECOMMENDED ACTION CONTINUED TO FILE NUMBER Adopt a resolution ordering, calling, and giving notice of a General Municipal Election to be held in City of Santa Ana on November 6, 2012 for the election of certain officers; and, requesting the Board of Supervisors of Orange County to consolidate the General Municipal Election with the 2012 County and Presidential Election. 2. Adopt a resolution establishing a charge for candidates' statements to be submitted to the electorate in the November 2012 General Municipal Election. DISCUSSION In order to conduct an election, State law and the City Charter require the City Council to adopt a resolution calling for a general municipal election. The subject resolution establishes November 6, 2012 as the date for the election of the Mayor and Members of Wards 1, 3, and 5 of the City Council. Additionally, pursuant to Section 10403 of the California Elections Code, the City Council is required to formally request consolidation of the City's general election with the State's General Election and 2012 Presidential and County General Election. The subject resolution fulfills this requirement by requesting that the Board of Supervisors of Orange County consolidate the general elections of November 6, 2012 and authorizes the Board of Supervisors to canvass the election returns. Finally, candidates for Mayor and the City Council may choose to have a candidate's statement sent to each voter as part of the Voter Information Pamphlet. Candidate statements are produced at the candidates' option, not mandated, and the election code allows the Council to establish a charge to be levied against candidates in order to recover the cost of printing, handling and mailing these statements. The Orange County Registrar of Voters has advised the City that the estimated cost to the individual candidates for the November 2012 Election is $1,699.00. The adoption of the recommended resolution will establish this charge for these services. 55A-1 NOVEMBER 6, 2012 GENERAL MUNICIPAL ELECTION June 18, 2012 Page 2 FISCAL IMPACT The cost to consolidate the General Municipal Election is estimated to be $150,000. Funds for these administrative costs will be available in the 2012-13 Fiscal Year budget in the Non- Departmental Account (Account No. 01105015-62300). APPROVED AS TO FUNDS AND ACCOUNTS: Maria D. Huizar, Clerk of the Council Francisco Gutierrez Executive Director Finance & Management Services Agency 55A-2 RESOLUTION NO. 2012-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CALLING FOR AND GIVING NOTICE OF A GENERAL MUNICIPAL ELECTION TO BE HELD IN THE CITY OF SANTA ANA ON NOVEMBER 6, 2012 FOR THE ELECTION OF CERTAIN OFFICERS, AND REQUESTING THE BOARD OF SUPERVISORS OF ORANGE COUNTY TO CONSOLIDATE THE GENERAL MUNICIPAL ELECTION WITH THE STATE'S GENERAL ELECTION JS 6/6/12 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. A general election of the City of Santa Ana will be held on November 6, 2012, for the purpose of electing the Mayor and Council members from Wards 1, 3 and 5. B. There will be a statewide general election held on November 6, 2012. C. It is desirable that said general election of the City of Santa Ana be consolidated with the statewide general election to be held on the same date and; that within the City of Santa Ana, the precincts, polling places and election officers be the same, and that the Board of Supervisors of the County of Orange canvass the returns of both elections, in all respects as if there were only one election. Section 2. That pursuant to the requirements of Section 10403 of the Elections Code of the State of California, the Board of Supervisors of the County of Orange is hereby requested to consent to and order the consolidation of the November 6, 2012 general election of the City of Santa Ana for the purpose of electing the Mayor and Council members from City Wards 1, 3, and 5 with the statewide general election to be held on the same date. Section 3. The Board of Supervisors of the County of Orange is hereby authorized to canvass the returns of said general municipal election pursuant to Section 10411 of the Elections Code of the State of California. Section 4. The City of Santa Ana recognizes that additional costs will be incurred by the County by reason of this consolidation and agrees to reimburse the County of Orange for any such costs. Resolution No. 2012-XXX 55A-3 Page 1 of 2 Section 5. The Clerk of the Council is hereby directed to file a certified copy of this resolution with the Board of Supervisors of the County of Orange and a certified copy of this resolution with the Registrar of Voters of the County of Orange. Section 6. 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: Jose Sandoval, Chief 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 Resolution No. 2012-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Maria D. Huizar, Clerk of the Council Resolution No. 2012-XXX Page 2 of 2 55A-4 RESOLUTION NO. 2012-XXX JS 6/6/12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ESTABLISHING A SYSTEM FOR CANDIDATES WHOSE STATEMENTS ARE SUBMITTED TO THE ELECTORATE IN THE 2012 GENERAL ELECTION TO PAY THE PRO RATA SHARE OF THE COST OF INCLUSION OF THEIR STATEMENT IN VOTER PAMPHLETS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Section 13307(c) of the Elections Code of the State of California authorizes the governing body of any local agency to require each candidate filing a statement to pay in advance to the local agency his or her estimated pro rata share as a condition of having his or her statement included in the voter's pamphlet. B. Prior to the period in which candidate statements may be filed, the Clerk of the Council shall estimate the total cost of printing, handling, translating, and mailing the candidates' statements and shall determine the pro rata share of each candidate filing a statement based upon such estimate, which is $1,699.00. The payment in advance by each such candidate of his or her prorated share shall be a condition of having his or her statement included in the voter's pamphlet. Section 2. The City Council hereby approves the process whereby: A. Prior to the period in which candidates' statements may be filed, the Clerk of the Council shall prepare a written notice distributed to all candidates at the time of issuance of the nomination papers, informing them that payment of the pro rata share amount must be made at the same time the candidate's nomination papers are filed but no later than 5:00 pm August 10, 2012. B. The Clerk of the Council's receipt for the payment shall include a written notice that the estimate is just an approximation of the actual cost that varies from one election to another election and may be significantly more or less than the estimate, depending on the actual number of candidates filing statements. Accordingly, the Clerk of the Council shall not be bound Resolution No. 2012-XXX Page 1 of 3 55A-5 by the estimate and may, on a pro rata basis, bill the candidate for additional actual expense or refund any excess paid depending on the final actual cost. In the event of underpayment, the Clerk of the Council may require the candidate to pay the balance of the cost incurred. In the event of overpayment, the Clerk of the Council shall prorate the excess amount among the candidates and refund the excess amount paid within 30 days of the election. Section 3. That the Clerk of the Council shall provide each candidate or the candidate's representative a copy of this resolution at the time when nominating petitions are issued by the Clerk. 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: Jose Sandoval, Chief Assistant City Attorney AYES: NOES: Councilmembers: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: Resolution No. 2012-XXX Page 2 of 3 55A-6 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the attached Resolution No. 2012-XXX Council of the City of Santa Ana on _ Date: Council, do hereby attest to and certify that the to be the original resolution adopted by the City Maria D. Huizar, Clerk of the Council Resolution No. 2012-XXX Page 3 of 3 55A-7 55A-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: RESOLUTION AMENDING THE CITY COUNCIL MEETING START TIME AND REPEALING A PORTION OF RESOLUTION NO. 2011-063 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 Adopt a resolution amending the City Council Meeting start time. DISCUSSION On September 19, 2011, the City Council adopted Resolution No. 2011-063 that revised the rules and procedures for meetings of the City Council. The resolution also established that the Regular Open Meetings of the City Council would begin at 6:00 p.m. The suggestion was raised that the start time of the Open Session be moved to 5:30 p.m. The attached resolution would establish the new start time of 5:30 Session, and would begin with the next regular meeting scheduled the Closed Session meeting would continue to begin at 5:00 p.m. FISCAL IMPACT There is no fiscal impact associated with this action. 4 i1 Z tom' ?r - !"t Maria D. Huizar, Clerk of the Council Attached: Resolution p.m. for the Regular Open for July 2, 2012. As before, 55B-1 55B-2 RESOLUTION NO. 2012-XXX MC 06/!2012 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING THE CITY COUNCIL RULES AND PROCEDURES TO CHANGE THE START TIME FOR THE CITY COUNCIL MEETING OPEN SESSION AND REPEALING RESOLUTION NO. 2011-063. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Section 409 of the City Charter and Sections 2-100 et seq. of Santa Ana Municipal Code call for the city council to adopt rules and procedures for the scheduling and conducting of meetings of the city council. B. The Ralph M. Brown Act found at Chapter 9, Part 1 of Division 2 of Title 5 of the California Government Code beginning with Section 54950 (the "Brown Act") sets forth statewide standards for meetings of local agencies including the Santa Ana City Council. C. The city council desires to update the start time of city council meetings in conformance with the Brown Act and in furtherance of the need for well- managed, efficient and accessible meetings. Section 2. Council meetings, time and place. (a) Regular meetings of the city council shall be on the first and third Mondays of each month. The meeting shall begin no sooner than the hour of 5:00 p.m. for Closed Session followed by the Regular Open Meeting at 5:30 p.m. The city council shall publicly convene the meeting and then recess to conduct closed or executive sessions. (b) Regular meetings of the city council shall be convened in the Council Chamber or as noted on the Agenda and time as specified on the agenda. After being convened, all meetings may be adjourned to such other place or places as the city council may order. (c) Special meetings of the city council may be held at such locations as stated in the action calling such meetings and otherwise in conformance with the Brown Act. Resolution No. 2012-XXX Page 1 of 4 55B-3 Section 3. Agenda. The clerk of the council shall prepare an agenda for each regular and special meeting of the city council containing all items known by such officer to be considered. The order of placing items on the agenda shall be approved from time to time by the city council. The agenda shall contain such information as required by the Brown Act. Section 4. Rules of Procedure. Procedures before the city council shall be governed by the most current edition of Robert's Rules of Order, Newly Revised. Application of such procedures shall be vested in the sound discretion of the presiding officer. Section 5. Decorum; Time limits and other regulations for speaking. (a) The city council shall preserve decorum and an orderly procedure during debate. Councilmembers desiring to speak shall seek recognition from the presiding officer. Upon being recognized, a councilmember shall confine his or her comments to the questions under debate. A councilmember, once recognized, should not be interrupted unless a point of order is raised by another member. The presiding officer should not recognize a councilmember to speak who has already spoken on a matter under debate until all other councilmembers who wish to be heard have spoken. A councilmember should limit himself or herself to three (3) minutes at any one time without permission of the presiding officer. At the end of each meeting, the presiding officer shall recognize each councilmember who may speak up to three (3) minutes on matters of public or community interest. (b) The agenda for all regular meetings of the city council shall provide members of the public the opportunity to address the city council on agendized matters and non-agendized matters as required by the Brown Act. All requests to speak shall be submitted in writing and submitted to the clerk of the council. No such requests shall be accepted after the public comment session begins without permission of the presiding officer. The agendas for adjourned, special and emergency meetings of the city council shall provide for public comment as provided in the Brown Act. (c) Subject to (d) below, members of the public shall be given a total of three (3) minutes to: (i) address the city council on any and all matters contained on the city council agenda as well as the agendas of any of the City's related entities, such as the community redevelopment agency or the housing authority, if those entities have meetings scheduled at the same time, and/or (ii) address any matters of public interest provided that they are within the jurisdiction or official business of the City of Santa Ana. (d) For public hearings, members of the public shall be given three (3) minutes to address the city council for each duly noticed hearing, unless continued prior to taking testimony. This time limitation shall not apply to the applicant/appellant and/or Resolution No. 2012-XXX Page 2 of 5 55B-4 their representative(s) whose matter is the subject of the public hearing. Applicants shall limit their presentations to a reasonable period of time, subject to the discretion of the presiding officer. (e) Upon being recognized by the presiding officer, a speaker should step to the designated speaker location, state name and address for the record, and identify the matter by agenda designation (if applicable), and direct remarks to the city council as a body and not to any individual member thereof. A speaker shall not be denied an opportunity to speak if they do not wish to state their name and address for the record. No person other than members of the council and the person having the floor may be permitted to enter into the discussion without permission of the presiding officer. (f) It shall be within the sound discretion of the presiding officer to set a maximum time for public comment. In setting any limit, the presiding officer shall take into consideration the level of public interest in the matters in question, the length of the meeting and the need to provide for an orderly and effective meeting. As a means of limiting time while maximizing the public's opportunity to address the city council, if a group of people seeks to address the Council on the same matter or topic, the presiding officer may direct the group to designate a spokesperson or limited number cf speakers to address the city council. (g) The following rules shall apply to all persons addressing the city council. All speakers are requested to: -direct all testimony to the city council or the presiding officer and not individual council members, -when speaking on agenda matters, limit comments to the agenda item(s), -when speaking on non-agenda matters, limit comments to matters within the jurisdiction or official business of the City of Santa Ana, and -refrain from profane language, racial epitaphs, libelous or slanderous statements that disturb the decorum of the meeting. (h) The presiding officer shall have the power and responsibility to enforce decorum and order of the meeting as set forth in Section 2-104(c). Among the other means of enforcement, the presiding officer may order the podium microphone turned off and/or video broadcast interrupted when the presiding officer has determined that an individual or group has disrupted the meeting, or the individual or group has exceeded their allotted time to speak without permission of the presiding officer. (i) All cell phones, pagers, or electronic devices belonging to -,:he public, press, or personnel that may be disruptive must be placed on vibrate mode/quiet or be turned off while a meeting is in session. Section 6. The provisions of Section 4 and Section 5 of this resolution shall apply to meetings of committees of the city council, as may be modified from time to time by such committees. Resolution No. 2012-XXX Page 3 of 4 55B-5 Section 7. This Resolution shall supersede Resolution No. 2011-063 and shall take effect immediately upon its adoption by the city council. 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: MELISSA CROSTHWAITE, Deputy City Attorney AYES: Councilmembers: NOES: Councilmembers ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2012-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Maria D. Huizar, Clerk of the Council Resolution No. 2012-XXX Page 4 of 5 55B-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: PROPOSED AMENDMENT TO CLASSIFICATION AND COMPENSATION PLAN AND ANNUAL BUDGET CLERK OF COUNCIL USE ONLY: CITY MANAGER APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER RECOMMENDED ACTION Adopt a resolution that amends the City's Basic Classification and Compensation Plan (Resolution No. 82-110) and amends the Fiscal Year 2012-13 Annual Budget to add one Senior Librarian position. DISCUSSION On June 4, 2012, the City Council awarded the Santa Ana Public Library a $160,000 Workforce Investment Act (WIA) funded Youth Program Operator grant to fund the "Seeds to Trees Digital Media Technology Academy". The program was developed by the Santa Ana Public Library in partnership with the Rancho Santiago Community College District's Corporate Training Institute and Digital Media Center to provide training and work experience in various fields of digital media technology for twenty youth ages 16-21. The Seeds to Trees Digital Media Technology Academy pays for and is coordinated by a full-time Librarian who ensures that the program meets grant-specified financial and programmatic milestones. In order to provide adequate staffing for this grant program and allow other Librarians to focus on general fund programs and services, the Executive Director of Parks, Recreation and Community Services proposes the addition of one full-time Senior Librarian to the Library's FY 2012-13 workforce count. This position will be funded entirely from the WIA grant and will exist only to the length of the grant unless other arrangements are made. FISCAL IMPACT Funds are available in the Workforce Investment Act - Seeds to Trees salary account (account no. 12318750 69135). )&ya mil' 1 Gerardo Mouet? Executive Director Parks, Recreation and Community Services Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 55C-1 55C-2 RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO AMEND THE CURRENT ANNUAL BUDGET TO ADD ONE GRANT FUNDED SENIOR LIBRARIAN POSITION IN THE SANTA ANA PUBLIC LIBRARY. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council hereby finds, determines and declares as follows: A. On June 18, 2012, the City Council passed and adopted Ordinance No. NS-2835, which establishes the City's Annual Budget, authorizing position allocations for Fiscal Year 2012-2013, and sets forth the requirement that alterations in the allocation of authorized positions be reviewed and approved by the City Council. B. On June 4, 2012, the City Council awarded to the Santa Ana Public Library a Workforce Investment Act (WIA) funded Youth Program Operator grant to fund the "Seeds to Trees Digital Media Technology Academy" program. C. The Executive Director of the Parks, Recreation and Community Services Agency proposes to add one full time Senior Librarian position to the Parks, Recreation and Community Services Agency budget to provide adequate staffing for the "Seeds to Trees Digital Media Technology Academy" grant program in the Santa Ana Public Library in order to ensure the program meets grant-specified financial and programmatic milestones. D. It is now desired to amend the Fiscal Year 2012-2013 Annual Budget, as amended, in order to add one grant-funded, full time position to the Santa Ana Public Library to staff the aforementioned program. This additional position will be funded entirely from the WIA grant and will exist only until the expiration of the grant funds. Section 2: That the Annual Budget for Fiscal Year 2012-2013, as amended, is hereby further amended by allocating one (1) additional Senior Librarian position. Section 3: That except as stated otherwise above, this Resolution shall be operative from and after July 1, 2012. ADOPTED this 18th day of June, 2012. 55C-3 Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Joseph Straka Chief Assistant City Attorney AYES: NOES: ABSTAIN: Councilmembers Councilmembers Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Resolution No. 2012- to be the City of Santa Ana on June 18, 2012. Date: Clerk of the Council City of Santa Ana Council, do hereby attest to and certify the attached original resolution adopted by the City Council of the 55C-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: ANNUAL STATEMENT OF INVESTMENT POLICY CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt a Resolution approving the City's Investment Policy. 2. Receive and file the Annual Statement of Investment Policy. DISCUSSION The Finance and Management Services Agency Executive Director annually renders to the City Council a Statement of Investment Policy. The purpose of the policy is to provide for the prudent investment of funds. The criteria for selecting investments and the order of priority are safety, liquidity, and yield. The investment policy applies to all financial assets of the City. FISCAL IMPACT There is no fiscal impact associated with this action. Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibit 1 Resolution Exhibit 2 Investment Policy 55D-1 55D-2 RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE CITY'S STATEMENT OF INVESTMENT POLICY Iss: 6/05/12 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of Santa Ana hereby finds, determines and declares as follows: A. California Government Code, §53646, provides that each city may have a written statement of investment policy to govern investment of the city's monies. B. Pursuant to §53646, the City Treasurer shall annually submit a statement of investment policy, for City Council consideration. C. The City Treasurer has submitted the attached Statement of Investment Policy to this Council at its regular meeting of June 18, 2012, for its consideration. Section 2. The City Council of the City of Santa Ana has duly considered and approves the City's statement of investment policy submitted by the City Treasurer. Section 3. The City Treasurer shall submit quarterly reports to the City Council stating all investments made in the preceding quarter and that such investments have been made in conformance with the City's investment policy. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 2012. Miguel A. Pulido Mayor 55D-3 APPROVED AS TO FORM: Sonia Carvalho, City Attorney By: Laura Sheedy Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of Council, do hereby attest to and certify the attached Resolution No. to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of Council City of Santa Ana 5501-4 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2012/2013 INTRODUCTION: This statement is intended to outline the policies for prudent investment of idle City funds by providing guidelines for suitable investments while maximizing the efficiency of the City's Cash Management Program. Under the direction of the Executive Director, Finance and Management Services, the responsibility for the day to day investment of the City's funds is delegated to the Treasury Manager only. The investment policy applies to all financial assets of the city and are pooled in an actively managed portfolio. The investment pool or portfolio will be referred to as the "Fund" throughout this document. Bond proceeds shall be invested in accordance with requirements and restrictions outlined in the bond documents. Bond proceeds are not considered part of the Fund nor subject to this Investment Policy. The City's Cash Management Program is designed to accurately monitor and forecast expenditures and revenues, thus enabling the investment of funds to the fullest extent possible. Maturities are matched as close as possible to coincide with cash requirements. The investment policies and practices of the City of Santa Ana are based upon Federal, State and Local law and prudent money management. The primary goals of these policies are: 1. To assure compliance with all Federal, State and Local laws governing the investment of monies. 2. To provide for the safety of principal and sufficient liquidity. 3. To provide an investment return within the parameters of this Statement of Investment Policy and the Investment Portfolio Guidelines. Officers and employees involved in the investment process shall refrain from personal business activity that could conflict with the proper execution and management of the investment program, or that could impair their ability to make impartial decisions. Employees and investment officials shall disclose any material interests in financial institutions with which they conduct business. They shall further disclose any personal financial/investment positions that could be related to the performance of the investment portfolio. Employees and officers shall refrain from undertaking personal investment transactions with the same individual with whom business is conducted on behalf of their entity. OBJECTIVES: 1. SAFETY OF PRINCIPAL - Safety of principal is the foremost objective of the City of Santa Ana. Each investment transaction shall be undertaken in a manner that seeks to 5501-5 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2012-2013 ensure preservation of capital in the overall portfolio. The objective will be to mitigate credit risk and interest rate risk. A. Credit Risk Credit Risk is the risk of loss due to the failure of the security issuer or backer. Credit risk may be mitigated by: Limiting investments to the safest types of securities; Pre-qualifying the financial institutions, broker/dealers, intermediaries, and advisors with which an entity will do business; and Diversifying the investment portfolio so that potential losses on individual securities will be minimized. B. Interest Rate Risk Interest rate risk is the risk that the market value of securities in the portfolio will fall due to changes in general interest rates. Interest rate risk may be mitigated by: Structuring the Fund so that securities mature to meet cash requirements for ongoing operations, thereby avoiding the need to sell securities on the open market prior to maturity, and By investing operating funds primarily in shorter-term securities. The cash flow is updated on a daily basis and will be considered prior to the investment of securities, which will reduce the necessity to sell investments for liquidity purposes. 2. LIQUIDITY - The investment portfolio shall remain sufficiently liquid to meet all operating requirements that may be reasonably anticipated. This is accomplished by structuring the portfolio so that securities mature concurrent with cash needs to meet anticipated demands (static liquidity). Furthermore, since all possible cash demands cannot be anticipated, the portfolio should consist largely of securities with active secondary or resale markets (dynamic liquidity). 3. YIELD - The City's Fund shall be designed with the objective of attaining a market- average rate of return throughout budgetary and economic cycles taking into account the investment risk constraints and liquidity needs. Return on investment is of least importance compared to the safety and liquidity objectives described above. The core of investments are limited to relatively low risk securities in anticipation of earning a fair return relative to the risk being assumed. Securities shall not be sold prior to maturity with the following exceptions: 1) a declining credit security could be sold early to minimize loss of principal; 2) a security swap would improve the quality, yield, or target duration in the 55D-6 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2012-2013 portfolio; or 3) liquidity needs of the portfolio require that the security be sold. The market-average rate of return is defined as the average return on three-month U.S. Treasury Bills. The City strives to maintain one hundred percent (100%) investment of idle funds after consideration for a compensating balance to cover the cost of services provided by the bank. The funds available for investment are determined by cash flow projections updated daily. Investments are monitored so that legal limits on types of investments are not exceeded. AUTHORIZED INVESTMENTS: The "prudent person" standard shall be applied in the context of managing the overall portfolio. Investment officers acting in accordance with written procedures and this investment policy and exercising due diligence shall be relieved of personal responsibility for an individual security's credit risk or market price changes, provided deviations from exceptions are reported in a timely fashion and the liquidity and the sale of securities are carried out in accordance with the terms of this policy. Investments shall be made with judgment and care, under circumstances then prevailing, which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not for speculation, but for investment, considering the probable safety of their capital as well as the probable income to be derived. The City is governed by the California Government Code, Sections 16429.1 and Title 5, Division 2, Part1, Chapter 4, entitled Financial Affairs, commencing with section 53630. Santa Ana further restricts the permitted investments to those listed below. Within this scope, the City diversifies its investments by maturity dates and types of investments. Concentration limits are indicated for all investment categories except Treasury securities, which are considered the safest investments. A. United States Treasury Bills, Notes, and Bonds, for which the full faith and credit of the United States are pledged for payment of principal and interest. Purchases of this category shall not exceed five years to maturity. There is no percentage limit in this category. B. Obligations issued by a Federal Agency or a United States Government Sponsored Enterprise. Federal Agency Issues include, but are not limited to GNMA (Government National Mortgage Association), FFCB (Federal Farm Credit Bank), FHLB (Federal Home Loan Bank Board), FHLMC (Federal Home Loan Mortgage Corporation), FNMA (Federal National Mortgage Association), SLMA (Student Loan Mortgage Administration), FHA (Federal Housing Administration) and TVA (Tennessee Valley Authority). Although there is no percentage limitation on these issues, the "prudent 5501-7 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2012-2013 investor" rule shall apply for a single agency name as U.S. Government backing is implied rather than guaranteed. C. Bills of exchange or time drafts drawn on and accepted by a commercial bank, otherwise known as banker's acceptances, which are eligible for purchase by the Federal Reserve System. Purchases of banker's acceptances may not exceed one hundred, eighty (180) days or forty percent (40%) of the cost value of the Fund which may be invested pursuant to this section. However, no more than thirty percent (30%) of the City's cost value of the Fund may be invested in the bankers acceptances of any one commercial bank pursuant to this section. D. Commercial paper of "prime" quality of the highest ranking or of the highest letter and number rating as provided for by Moody's Investor Services, Inc. (Moody's), Standard and Poor's (S&P) or Fitch Financial Services, Inc. (Fitch). The corporation that issues the commercial paper shall be organized and operating within the United States, shall have total assets in excess of five-hundred, million dollars ($500,000,000), and shall issue debt, other than commercial paper, if any, that is rated "A" or higher by Moody's or S&P or Fitch. Eligible commercial paper shall have a maximum maturity of two-hundred seventy (270) days or less. The City may purchase no more than ten percent (10%) of the outstanding commercial paper of any single corporate issue. Purchases of commercial paper may not exceed twenty-five percent (25%) of the surplus money which may be invested. E. Negotiable certificates of deposit issued by a nationally or state-chartered bank, a savings association or a federal association (as defined by Section 5102 of the Financial Code), a state or federal credit union or by a state-licensed branch of a foreign bank. However, the City shall not invest in negotiable certificates of deposit issued by a state or federal credit union if a member of the City Council or any City personnel with investment decision making authority also serves on the board of directors, or any committee appointed by the board of directors, or the credit committee or the supervisory committee of the state or federal credit union issuing the negotiable certificates of deposit. The City's investment in negotiable certificates of deposit may not exceed thirty percent (30%) of the cost value of the Fund. The amount so invested shall be subject to the limitations of Government Code Section 53638 which generally provides that the deposit shall not exceed the shareholder's equity of any depository bank, or the total net worth of any depository savings association or federal association, or the total of the unimpaired capital and surplus of an insured industrial loan company. F. Repurchase Agreements. For purposes of this section, the term "repurchase agreement" means a purchase of securities by the local agency pursuant to an agreement by which the seller will repurchase the securities on or before a specified date and for a specified amount and will deliver the underlying securities to a third party 55D-8 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2012-2013 custodian. The City may invest in repurchase agreements with primary dealers of the Federal Reserve with which the City has entered into a PSA master repurchase contract which specifies terms and conditions of repurchase agreements. The market value of securities used as collateral for repurchase agreements shall not be allowed to fall below 102 percent of the value of the repurchase agreement and shall be valued daily by the tri- party custodial agent. Securities that can be pledged for collateral shall consist only of investments permitted within this policy with a maximum maturity of five (5) years. If there is a default of the broker, the collateral securities can be sold. Since the securities are valued daily, it is likely that the sale proceeds will equal or exceed the value of the repurchase agreement amount. Purchases in this category shall not exceed ninety (90) days or thirty percent (30%) of the cost value of the Fund. G. Local Agency Investment Fund - State Pool. The City may invest in the Local Agency Investment Fund (LAIF) established by the State Treasurer under California Government Code Section 16429.1 for the benefit of local agencies. Although there is no percentage limitation on this fund, the "prudent investor" rule shall apply for a single agency name. H. Medium Term Corporate Notes issued by corporations organized and operating within the United States or by depository institutions licensed in the United States or any state and operating within the United States. Notes eligible for investment shall be rated in a rating category of "A" or its equivalent or better by a nationally recognized rating service. Purchases in this category shall not exceed three (3) years to maturity or fifteen percent (15%) of the cost value of the Fund. Purchases in a single issuer in this category shall not exceed five percent (5%) of the cost value of the Fund. Shares of beneficial interest issued by diversified management companies that are money market funds registered with the Securities and Exchange Commission under the Investment Company Act of 1940. The company shall have met either of the following criteria: Attain the highest ranking or the highest letter and numerical rating provided by not less than two of the three following: Moody's, S&P or Fitch, and 2. Retained an investment adviser registered or exempt from registration with the Securities and Exchange Commission with not less than five (5) years experience managing money market funds with assets under management in excess of five- hundred, million dollars ($500,000,000). The purchase price of shares of beneficial interest, (mutual funds) purchase pursuant to this subdivision shall not include any commission that these companies may charge. J. Ineligible investments. Investments not described herein are ineligible investments. The City shall not invest any funds in inverse floaters, range notes, or interest only strips that 55D-9 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2012-2013 are derived from a pool of mortgages. In addition, the City shall not invest any funds in any security that could result in zero interest accrual if held to maturity. However, prohibited securities that are in the City's portfolio, as of the date of this policy adoption, may be held until their maturity dates. DEPOSITORY SERVICES Money must be deposited in state or national banks, state or federal savings associations or state or federal credit unions in the state. It may be in inactive deposits, active deposits or interest-bearing active deposits. The deposits cannot exceed the amount of the bank's or savings and loan's paid up capital and surplus. The bank or savings and loan must secure the active and inactive deposits with eligible securities having a market value of one-hundred, ten percent (110%) of the total amount of the deposits. State law also allows as an eligible security, first trust deeds having a value of one- hundred, fifty percent (150%) of the total amount of the deposits. A third class of collateral is letters of credit drawn on the Federal Home Loan Bank (FHLB). The treasurer may waive, at his discretion, security for that portion of a deposit which is insured pursuant to federal law. Currently, the first two-hundred, fifty-thousand dollars ($250,000) of a deposit is federally insured. It is to the City's advantage to waive this collateral requirement for the first $250,000 because we receive a higher interest rate. QUALIFIED DEALERS AND INSTITUTIONS: The City shall transact business only with banks, savings and loans and registered investment securities dealers. The purchase by the City of any investment other than those purchased directly from the issuer, shall be purchased either from an institution licensed by the State as a broker-dealer, as defined in Section 25004 of the Corporations Code, who is a member of the National Association of Securities Dealers, or a member of a Federally regulated securities exchange, a National or State-Chartered Bank, a Federal or State Association (as defined by Section 5102 of the Financial Code), or a brokerage firm designated as a Primary Government Dealer by the Federal Reserve Bank. The City's Treasurer's staff shall investigate all institutions which wish to do business with the City, in order to determine if they are adequately capitalized, make markets in securities appropriate to the City's needs, and agree to abide by the conditions set forth in the City of Santa Ana's Investment Policy and Investment Portfolio Guidelines. This will be done annually by having the Financial Institutions complete and return the appropriate questionnaire, and an audited Financial Statement must be provided within one-hundred, twenty (120) days of the Institution's fiscal year-end. 55D-10 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2012-2013 SAFEKEEPING OF SECURITIES: To protect against potential losses caused by collapse of individual securities dealers, all securities owned by the City except securities used as collateral for repurchase agreements, shall be kept in safekeeping with "perfected interest" by a third party bank trust department, acting as agent for the City under the terms of a custody agreement executed by the bank and by the City. All securities will be received and delivered using standard delivery versus payment procedures. INTERNAL CONTROLS: The Executive Director, Finance and Management Services is responsible for establishing and maintaining an internal control structure designed to ensure that the assets of the entity are protected from loss, theft or misuse. The Executive Director, Finance and Management Services has developed a system of internal investment controls and a segregation of responsibilities of investment functions in order to assure an adequate system of internal control over the investment function. Internal control procedures address wire controls, separation of duties, delivery of securities to a third party for custodial safekeeping, and written procedures for placing investment transactions. Cash balances are reconciled daily by non-investment employees and reconfirmed by the City's accounting staff. In addition, the City's accounting staff also verifies investment activities and holdings on a monthly basis. The Executive Director, Finance and Management Services shall establish a process for annual independent review by an external auditor to the extent contemplated by generally accepted auditing standards. REPORTING: Under the provisions of Section 53646 of the Government Code, the Executive Director, Finance and Management Services shall render a report to the City Council, City Manager, and the internal auditor containing detailed information on all securities, investments, and moneys of the City. The report will be submitted on at least a quarterly basis and provided to the Council within thirty (30) days following the end of the quarter. The report will contain the following information on the funds that are subject to this investment policy: 1) the type of investment, name of the issuer, date of maturity, par and cost in each investment, 2) the weighted average maturity of the investments, 3) any investments, including loans and security lending programs, that are under the management of contracted parties, 4) the market value and source of the valuation, 5) a description of the compliance with the statement of investment policy, and 6) a statement denoting the City's ability to meet its pool's expenditure requirements for the next six months. 55D-11 CITY OF SANTA ANA STATEMENT OF INVESTMENT POLICY JULY 2012-2013 POLICY REVIEW: This investment policy shall be reviewed at least annually to ensure its consistency with the overall objectives of preservation of PRINCIPAL, LIQUIDITY, AND YIELD and its relevance to current law, financial and economic trends, and to meet the needs of the City of Santa Ana. Francisco Gutierrez Executive Director Finance & Management Services Agency 55D-12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 TITLE: AMENDMENT TO RESOLUTION TO PROVIDE CONTINUATION OF PARTIALLY-PAID TEMPORARY MILITARY LEAVE OF ABSENCE FOR CITY EMPLOYEES CALLED TO ACTIVE DUTY 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 C>, NUMBER CITY MANAGER RECOMMENDED ACTION Adopt a resolution authorizing the City Manager to continue to provide additional partially-paid temporary military leave of absence and dependent benefits for City employees called to active duty with the armed forces. DISCUSSION On October 1, 2001, the Santa Ana City Council adopted Resolution No. 2001-065, providing for additional partially-paid temporary military leave of absence for full-time officers or employees of the City called to active military service with the Armed Forces of the United States in connection with the then-current military crisis, and for continuation of dependent benefits. That Resolution also provided that its terms would expire unless extended by further action of the City Council. The City Council has subsequently adopted resolutions extending the termination date of Resolution No. 2001-065. By adopting the subject Resolution, the City Council will extend the termination date to June 30, 2013, and continue to assist City employees and their families with financial hardships resulting from active duty service in connection with the continuing current military commitment. FISCAL IMPACT Funds are available in the following affected departmental accounts: Salary (Account 61000) and Health Insurance (Account 61130). APPROVED AS TO FUNDS AND ACCOUNTS: tgA"' ( v Edward S. Raya Executive Director Personnel Services Agency Francisco Gutierrez Executive Director Finance and Management Services Agency 55E-1 55E-2 RESOLUTION NO. 2012- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING RESOLUTION NO. 2001-065 TO PROVIDE FOR CONTINUATION OF ADDITIONAL PARTIALLY- PAID TEMPORARY MILITARY LEAVE OF ABSENCE FOR CITY EMPLOYEES CALLED TO ACTIVE DUTY WITH THE ARMED FORCES AND CONTINUATION OF BENEFITS FOR THEIR DEPENDENTS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. On October 1, 2001, the City Council of the City of Santa Ana adopted Resolution No. 2001-065 providing for an additional partially-paid temporary military leave of absence for each full-time officer or employee of the City who has been or will be called to active military service with the Armed Forces of the United States in connection with the current continuing military crisis. This Resolution has been extended since its initial adoption in 2001. B. The pay and benefits authorized by Resolution No. 2001-065, as amended, will terminate unless extended by further action of the City Council or otherwise required by law. C. The City Council wishes to continue to help City employees and their families with financial hardships resulting from being called to active duty for more than thirty (30) continuous days in connection with the current continuing military crisis. Section 2: That Section 5 of Resolution No. 2001-065, as amended, is further amended to read as follows: "Section 5. This Resolution, and the pay and benefits authorized herein, shall terminate and be of no further force or effect on midnight, June 30, 2013, unless extended by further action of the City Council or otherwise required by law." Section 3: That except as amended by this Resolution, all other provisions of Resolution No. 2001-065, as amended, shall remain in full force and effect. Section 4: This Resolution shall be operative from and after June 18, 2012. 55E-3 ADOPTED this 18th day of June, 2012. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Joseph Straka Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2012- to be the original resolution adopted by the City Council of the City of Santa Ana on June 18, 2012. Date: Clerk of the Council City of Santa Ana 55E-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 18, 2012 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED ? As Recommended RESOLUTION ESTABLISHING THE ? As Amended APPROPRIATION LIMIT OF ? Ordinance on 151 Reading ? Ordinance on 2"d Reading THE CITY OF SANTA ANA FOR ? Implementing Resolution FY 2012-13 ? Set Public Hearing For_ CITY MANAGER RECOMMENDED ACTION CONTINUED TO FILE NUMBER Adopt a resolution establishing the appropriation limit for the fiscal year 2012-13. DISCUSSION The State of California Constitution includes provisions, which impose a limit ("the Gann Limit") on tax proceeds that may be appropriated for expenditures by a local government in any given fiscal year and requires the cities establish this limit by resolution. Adoption of the subject resolution is necessary for compliance with these provisions for the fiscal year ending June 30, 2013. As detailed in the exhibits to the subject resolution, the City's spending limitations from "Proceeds of Taxes" is calculated to be $837,149,351 (Exhibit A) for FY 2012-13. This represents the permitted growth rate factor of 24.8852 times the adjusted base year (1978-1979) appropriation limit of $33,640,451. Exhibit B identifies the factors used to determine the allowable increase; Exhibit C categorizes FY 2012-13 anticipated revenues from "Proceeds of Taxes" and "Non- Proceeds of Taxes"; and Exhibit D computes the fiscal year 2012-2013 appropriations subject to this limitation and identifies the difference between the limit and the budgeted appropriation. As demonstrated in Exhibit D the City's anticipated FY 2012-13 "Proceeds of Taxes" revenue will be $711,517,168 below the allowable limit. FISCAL IMPACT There is no fiscal impact associated with this action. "A NrAl`x\ ?, (° -mil a . V A Q Francisco Gutierrez Executive Director Finance and Management Services Agency,l, 55F-1 55F-2 EXHIBIT A COMPUTATION OF APPROPRIATION LIMIT FOR FISCAL YEAR ENDING JUNE 30, 2013 Appropriation Limit: 1978-79 Base Year Permitted Growth Rate in appropriation (Exhibit B) Appropriation Limit for the Fiscal Year Ending June 30, 2013 $ 33,640,451 24.8852 $ 837,149,351 55F-3 55F-4 EXHIBIT B CALCULATION OF PERMITTED GROWTH RATE IN APPROPRIATIONS FOR FISCAL YEAR ENDING JUNE 30, 2013 Factor 2011-12: California CPI: 3.77% Converted into a Factor 1.0377 Population Growth: 0.89% Converted into a Factor: 1.0089 Rates of Change: 1.0377x 1.0089 1.0469 Multiplied by 2011-12 Combined Index 23.7704 Combined Index 1979-80 through 2012-2013 24.8852 55F-5 55F-6 EXHIBIT C SCHEDULE TO CATEGORIZE ANTICIPATED REVENUES FOR FISCAL YEAR ENDING JUNE 30, 2013 RF\/FNIIF TAXES: Property Tax Sales Tax Hotel Visitors' Tax Business Tax Documentary Stamp Tax Utility Users'Tax Total Taxes FROM STATE: State Motor Vehicle State Gas Tax Prop 1 B State Cost Reimbs State Grants AQMD AB 2766 Total State OTHER GOVERNMENT: Community Development (CDBG) Homeowner Prop Tax Subvention UASI Grant Housing (Section 8) WIA Measure M, Street Grants, Gas Tax Exch ARRA 2010 Civic Center and Park Program Income Other Federal Grants: HOME, HOPWA Total Other Government PROCEEDS OF TAXES $ 53,960,555 $ 39,241,683 7,335,044 10,251,000 520,000 24,742,266 136,050,548 0 0 230,050 230,050 55F-7 NON-PROCEEDS OF TAXES 9,255,465 0 421,800 6,600,000 414,000 16,691,265 6,392,910 10,735,240 30,308,095 3,915,035 8,121,350 164,250 2,622,080 1,820,000 2,776,835 66,855,795 TOTALS $ 53,960,555 39,241,683 7,335,044 10, 251, 000 520,000 24, 742, 266 136,050,548 0 9,255,465 0 421,800 6,600,000 414,000 16,691,265 6,392,910 230,050 10,735,240 30,308,095 3,915,035 8,121,350 164,250 2,622, 080 1,820,000 2,776,835 67,085,845 55F-8 Exhibit C Continued PROCEEDS NON-PROCEEDS REVENUE OF TAXES OF TAXES TOTALS LOCALLY RAISED: Licenses and Permits 4,262,440 4,262,440 Franchise Fees 8,125,905 8,125,905 Development Fees 0 Fines and Forfeitures 7,503,437 7,503,437 Charges for Services 14,373,102 14,373,102 Parks and Recreations 16,500 16,500 From Use of Property 15,073,810 15,073,810 Others 118,899 118,899 Others - Inter-Agency 8,667,180 8,667,180 Total Locally Raised 58,141,273 58,141,273 OTHER MISCELLANEOUS: Donation 160,270 160,270 Sale of Junk and Property 67,247 67,247 Attorney Reimbursements 978,930 978,930 Expense Reimbursements 3,316,111 3,316,111 Indirect Cost Recovery 2,094,556 2,094,556 From Prior Year Fund Balances 1,327,225 1,327,225 Refuse Program Saving 1,351,500 1,351,500 Interfund Transfers 3,101,760 3,101,760 Total Other Miscellaneous 0 12,397,599 12,397,599 FROM USE OF MONEY: Earnings on Investment 140,833 184,267 325,100 TOTAL REVENUES $ 136,421,431 $ 154,270,199 $ 290,691,630 55F-9 55F-10 EXHIBIT D APPROPRIATION SUBJECT TO LIMITATION FOR FISCAL YEAR ENDING JUNE 30, 2013 Proceeds from taxes $ 136,421,431 Less: Exclusions: Capital outlay 10,789,248 Appropriation subject to limitation $ 125,632,183 Current year limit Over(under) limit 837,149,351 $ (711,517,168) 55F-11 55F-12 Iss:6/7/12 RESOLUTION NO. 2012-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ESTABLISHING THE APPROPRIATION LIMIT OF THE CITY OF SANTA ANA FOR FISCAL YEAR 2012- 2013 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. Article XIIIB of the Constitution of the State of California, adopted by the voters of the State of California in November 1978, imposes upon State and local government the obligation to limit each fiscal year's appropriations to those established in fiscal year 1978-79 as adjusted for by inflation and population, together with other specified changes required or permitted. B. In June of 1990, the voters of the State of California approved Proposition 111 which amended Article XIII B to establish the limit originally calculated for fiscal year 1986-87 as a new adjustment base and to change the definition of the cost of living to be either the percentage change in California per capita personal income from the preceding year or the percentage change in the local assessment roll from the preceding year for the jurisdiction due to the addition of local non-residential new construction. C. Proposition 111 further modified Article XIII B requirements by making certain capital outlay, debt service, emergency and court ordered expenditures not subject to the limit and by allowing expenditures in excess of one year's limit to be offset by under expenditures in an immediately following year. D. The City of Santa Ana has opted to use as the inflation adjustment factor, the percentage change in the California per capita personal income from the preceding year. E. The City of Santa Ana has opted to use as the population adjustment factor, the County's percentage change in population from the preceding year. Resolution No. 2012-XXX Page 1 of 3 55F-13 F. Division 9 of Title I of the Government Code of the State of California (commencing with section 7900), as enacted by 1980 Statutes, Chapter 1205, effective January 1, 1981, directs the governing body of each local jurisdiction each year to, by resolution, establish its appropriations limit and make other necessary determinations for the following fiscal year pursuant to Article XIIIB of the California Constitution at a regularly scheduled meeting or noticed special meeting. Fifteen days prior to the meeting documentation used in the determination of the appropriations limit and other necessary determinations shall be available to the public. G. This matter came on before the City Council at its regularly scheduled meeting of June 18, 2012. H. The Executive Director, Finance and Management Services of the City of Santa Ana has determined the City's appropriation limit for fiscal year 2012-2013 in accordance with the said provisions of the Constitution and laws of the State of California and the documentation used in said determination has been available to the public since not later than June 4, 2012 in the office of the Executive Director, Finance & Management Services. Section 2. Based upon the above referenced facts and all facts specified in the accompanying Request for Council Action and its attachments, and each of them, the appropriation limit of the City of Santa Ana for fiscal year 2012-2013 is hereby found and determined to be $837,149,351. Section 3. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 2012. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Laura Sheedy Assistant City Attorney Resolution No. 2012-XXX Page 2of3 55F-14 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2012-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 2012-XXX Page 3 of 3 55F-15 55F-16