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HomeMy WebLinkAbout FULL PACKET_2013-09-16MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA SEPTEMBER 3, 2013 CLOSED SESSION MEETING CALLED TO ORDER COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 5:03 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor (5:35 p.m.) SAL TINAJERO, Mayor Pro Tern ANGELICA AMEZCUA P. DAVID BENAVIDES MICHELE MARTINEZ ROMAN A. REYNA VINCENT F. SARMIENTO (5:05 p.m.) COUNCILMEMBERS Absent: None STAFF Present: KEVIN O'ROURKE, Interim City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS —None CLOSED SESSION ITEMS - The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matters will prejudice the position of the City in existing and anticipated litigation: CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) • Barry Davies v. City of Santa Ana; Workers' Compensation Appeals Board Case No. ADJ8410116 • Alexander Van v. City of Santa Ana; Workers' Compensation Appeals Board Case Nos. ADJ7660571; ADJ7660706; ADJ7660666; CITY COUNCIL MINUTES 1 0A -1 SEPTEMBER 3, 2013 ADJ7660740; ADJ6430939; ADJ607358; ADJ723646; ADJ1442864; ADJ1686995; ADJ2053369; ADJ2385550; ADJ3898282; ADJ4209630; ADJ4326922; ADJ4709812; ADJ Unassigned; ADJ Unassigned; ADJ Unassigned • City of Santa Ana v. The Pong Wang, et al. Orange County Superior Court Case No. 30- 2011 - 00525651 • City of Santa Ana v. Clear Channel Outdoor, Inc. Orange County Superior Court Case No. 30- 2011 - 00528925 • City of Santa Ana v. Clear Channel Outdoor, Inc. Orange County Superior Court Case No. 30- 2013 - 00630925 • City of Santa Ana v. CBS Outdoor, Inc. Orange County Superior Court Case No. 30- 2011 - 00528194 • City of Santa Ana v. Ana J. Matosantos, et al Sacramento Superior Court Case No. 34- 2013 - 80001477 3rd District Court of Appeal Case No. C074528 2. CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6 Agency Negotiators: Personnel Services Executive Director, Ed Raya Employee Organizations: Santa Ana Police Officers Association (POA) and Service Employees' International Union (SEIU) Full -Time Employees 3. PUBLIC EMPLOYEE — APPOINTMENT AND PERFORMANCE EVALUATION pursuant to Government Code Section 54957(b)(1) Title: Interim City Manager CLOSED SESSION REPORT — See Item 19A. for Report. ADJOURNED THE CLOSED SESSION MEETING AT 5:55 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 2 SEPTEMBER 3, 2013 1 0A -2 CALLED TO ORDER ATTENDANCE PLEDGE OF ALLEGIANCE INVOCATION PRESENTATIONS REGULAR OPEN SESSION COUNCIL CHAMBER 22 CIVIC CENTER PLAZA SANTA ANA, CA 6:00 P.M. COUNCILMEMBERS Present: MIGUEL A. PULIDO, Mayor SAL TINAJERO, Mayor Pro Tern ANGELICA AMEZCUA P. DAVID BENAVIDES MICHELE MARTINEZ ROMAN A. REYNA VINCENT F. SARMIENTO COUNCILMEMBERS Absent: None STAFF Present: KEVIN O'ROURKE, Interim City Manager SONIA R. CARVALHO, City Attorney MARIA D. HUIZAR, Clerk of the Council MAYOR PULIDO TOM JONES, POLICE CHAPLAIN SPECIAL PRESENTATION by Jennifer Vaughn, Public Affairs Manager with Southern California Gas Company regarding Advanced Meter Project EMPLOYEE SERVICE AWARDS presented by MAYOR PULIDO to: 20 YEARS OF SERVICE John D. Franks, Police Officer, Police Department Gustavo A. Moroyoqui, Police Officer, Police Department 25 YEARS OF SERVICE Mark C. Bell, Police Officer, Police Department Robert A. Thyr, Fleet Equipment Technician III, Finance & Management Services Agency CITY COUNCIL MINUTES 3 SEPTEMBER 3, 2013 1 0A -3 CERTIFICATES OF RECOGNITION presented by MAYOR PRO TEM TINAJERO to: • Santa Ana Broncos All Stars, 2013 Central Region District Champions: Coaches: George Jimenez Elias Landeros Players: Steven Araiza Gaston Becerra Jonathan Camarillo Damian Chavez Players Cont'd.: Freddy Cruz Julian Gomez Danny Gonzalez Kaleb Jimenez Kristian Landeros -Sosa Enrique Lopez Jr. Josue Sanchez Sam Vanhorn • Northeast Santa Ana Little League, Santa Ana City Tournament Champions: Head Coach Dwayne Angebrand Assistant Coaches: Eduardo De La Torre Eddie Sandoval Players: Dwayne Angebrandt, II Mario Aparicio Efrain Ayala Adrian Carranza Eduardo De La Torre Kevin Scott Leonard, II Nathan Martinez Javier Mendez Wilbert Murrillo Eduardo Ojeda Donovan Orozco Sergio Sandoval CERTIFICATE OF RECOGNITION presented by COUNCILMEMBER SARMIENTO to C & C Development for receiving the Gold Nugget Award for Project of the Year for the Terraces of Santiago developed within the City of Santa Ana's Transit Zoning location. CLOSED SESSION REPORT — City Attorney Carvalho reported that by a vote of 6 -0 (Pulido absent) items listed under Consent Calendar, Agenda Item 19A were approved. PUBLIC COMMENT • Steve Rocco, spoke on various matters including election related items. • Armando Felix, spoke in support of use for YMCA as homeless refuge. • Barbara Lamere, thanked City Council for review of uses for Centennial Park, encourage City Council to keep open space for youth programs. • Francine Santos, member of the Tustin Unified School District board, and President of the Orange County Associates, expressed concern with architecture style of project being proposed in Metro East area (Lyon Project). • George Garcia, moment of silence in memory of victims of 9 -11 and Boston Massacre; spoke of recent burglaries in neighborhood; complained about length to receive graffiti reward and support for homeowners bill of rights. CITY COUNCIL MINUTES 4 SEPTEMBER 3, 2013 1 0A -4 • Apolonio Cortes, member of SACReD (Building Healthy Communities), thanked the City Council for efforts on Strategic Plan and request additional community meetings to collectively develop Plan. • Tixoc Ventura, member of SACReD, request that Strategic Plan be more inclusive and hold meetings in each Ward. • Adrian Munoz, member of SACReD, thanked the City Council for opportunity to participate in Strategic Plan; noted that SACReD has received more than 400 comment cards. • Sarai Arpero, request continued collaborative efforts with community in developing Strategic Plan, and City's Goals and Vision. • Jason Wildman, spoke on homeless related issues and proposed that showers at Santa Ana Stadium be open to the public. CONSENT CALENDAR ITEMS MOTION: Approve Consent Calendar Items 10A through 25F as recommended by staff with the following modifications: • Councilmember Benavides request that Agenda Item 20A be pulled for separate discussion. MOTION: Sarmiento SECOND: Benavides VOTE: AYES: Amezcua, Benavides, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) ADMINISTRATIVE MATTERS MINUTES Martinez, Pulido, Reyna, 10A MINUTES OF THE REGULAR MEETING OF AUGUST 5, 2013 - Clerk of the Council Office MOTION: Approve Minutes. CITY COUNCIL MINUTES 5 SEPTEMBER 3, 2013 1 0A -5 10B MINUTES OF THE SPECIAL MEETING OF AUGUST 22, 2013 - Clerk of the Council Office MOTION: Approve Minutes. 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 - ZONING ORDINANCE AMENDMENT NO. 2013 -01 TO AMEND THE SANTA ANA MUNICIPAL CODE RELATED TO EMERGENCY SHELTERS, TRANSITIONAL AND SUPPORTIVE HOUSING FOR THE HOMELESS - Planning and Building Agency Placed on first reading at the August 5, 2013 Council meeting and approved by a vote of 5 -1 (Martinez dissented, Reyna absent). Published in the Orange County Reporter on August 23, 2013. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS -2848 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 41 OF THE SANTA ANA MUNICIPAL CODE TO ADOPT THE CITY'S REGULATION OF EMERGENCY SHELTER AND TRANSITIONAL AND SUPPORTIVE HOUSING 'Councilmember Martinez voted "No" on agenda item. 11B SECOND READING ORDINANCE - MODIFY DEVELOPMENT AGREEMENT NO. 2012 -01 TO ALLOW AN AMENDMENT AND ASSIGNMENT TO A NEW PROPERTY OWNER FOR THE DEVELOPMENT PROJECT LOCATED AT 200 EAST FIRST AMERICAN WAY- GENESIS REAL ESTATE GROUP, APPLICANT - Planning and Building Agency Placed on first reading at the August 5, 2013 Council meeting and approved by a vote of 5 -0 (Amezcua abstained, Reyna absent). Published in the Orange County Reporter on August 23, 2013. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS -2849 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING A SECOND AMENDED CITY COUNCIL MINUTES 6 SEPTEMBER 3, 2013 1 0A -6 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND VDC AT THE MET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AGMT NO. 2013 -133 — Execute an Amendment to the Development Agreement with VDC at the Met, LLC BOARDS / COMMISSIONS / COMMITTEES 13A COUNCIL COMMITTEE REPORTS - Parks, Recreation & Community Services Agency MOTION: Receive and file Parks, Recreation, Education and Youth Minutes of October 29, 2012 and July 29, 2013. MISCELLANEOUS ADMINISTRATION 19A CONFIRMATION OF CLOSED SESSION ACTIONS — City Attorney's Office MOTION: Confirm actions taken in Closed Session: • Alexander Van v. City of Santa Ana; Workers' Compensation Appeals Board Case Nos. ADJ7660571; ADJ7660706; ADJ7660666; ADJ7660740; ADJ6430939; ADJ607358; ADJ723646; ADJ1442864; ADJ1686995; ADJ2053369; ADJ2385550; ADJ3898282; ADJ4209630; ADJ4326922; ADJ4709812; ADJ Unassigned; ADJ Unassigned; ADJ Unassigned — Settlement Agreement in the amount of $20,000. • City of Santa Ana v. Ana J. Matosantos, et al Sacramento Superior Court Case No. 34- 2013 - 80001477 3rd District Court of Appeal Case No. C074528 City's Writ was denied; the City Council authorized the Finance Director to pay from the appropriate fund and using the appropriate Agency, $2.5 million to the Orange County Auditor Controller in exchange for the California Department of Finance and the Board of Equalization agreement not to withhold $2.5 million in City's sales taxes. 19B EXCUSED ABSENCES — None 19C DESTRUCTION OF OBSOLETE CITY RECORDS — City Manager's Office and Clerk of the Council Office CITY COUNCIL MINUTES 7 SEPTEMBER 3, 2013 1 0A -7 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 2013 -014. 19D CANCELLATION OF OCTOBER 7, 2013 CITY COUNCIL MEETING - City Manager's Office MOTION: Direct the Clerk of the Council to post a Notice of Cancellation for the regularly scheduled Council meeting of October 7, 2013; the City staff hereby waives notice of said meeting as required by the Government Code. 19E CONSOLIDATED ANNUAL PERFORMANCE AND EVALUATION REPORT - Community Development Agency MOTION: Authorize the submittal of the Consolidated Annual Performance and Evaluation Report to the U.S. Department of Housing and Urban Development. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS Councilmember Benavides request DUI checkpoint and funding sources be agendized on the next Public Safety Council Committee agenda. Councilmember Martinez thanked the Police Department staff for efforts in applying and receiving grants to assist the community. Acting Police Chief Rojas indicated that funds will be used Citywide for enforcement purposes. Councilmember Sarmiento proposed that school education programs be established. U1011C0]►1YR 1. Authorize the City Manager and Clerk of the Council to execute an agreement, subject to non - substantive changes approved by the City Manager and City Attorney. CITY COUNCIL MINUTES 8 SEPTEMBER 3, 2013 1 0A -8 AGMT NO. 2013 -134 - With the State Office of Traffic Safety for a one -year agreement for Selective Traffic Enforcement Program (STEP) Grant funds, in an amount not to exceed $201,300. 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2014 -026 - Recognizing State of California, Office of Traffic Safety, Selective Traffic Enforcement Program (STEP) Grant funds in the amount of $201,300 in the Office of Traffic Safety revenue account and appropriate same to expenditure accounts. MOTION: Benavides SECOND: Martinez VOTE: AYES: Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 20B APPROPRIATION ADJUSTMENT RECOGNIZING A DONATION FROM THE RELATED COMPANIES OF CALIFORNIA - Parks, Recreation & Community Services Agency MOTION: Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2014 -027 - Recognizing $10,000 in donations from The Related Companies of California (Related California) in the PRCSA Fees and Donations revenue account and appropriating same to the PRCSA Fees and Donations expenditure account for the purchase of furniture for the Garfield Community Center. 20C APPROPRIATION ADJUSTMENT ACCEPTING FUNDS FOR THE TRAFFIC SIGNAL AT FAIRVIEW STREET AND EDNA DRIVE (PROJECT NO. 126758) - Public Works Agency MOTION: Approve an appropriation adjustment. (Requires five affirmative votes) CITY COUNCIL MINUTES 9 SEPTEMBER 3, 2013 1 0A -9 APPROPRIATION ADJUSTMENT NO. 2014 -31 - Accepting funds from the Wintersburg Presbyterian Church in the amount of $20,000 into the Select Street Construction Fund revenue account and appropriating the same into the Select Street Construction Fund expenditure account for the traffic signal installation at Fairview Street and Edna Drive. 20D AMEND AGREEMENT WITH SIERRA PACIFIC ELECTRICAL CONTRACTING TO PROVIDE AND INSTALL LED MAST ARM STREETLIGHTS AND APPROVE AGREEMENT WITH SOUTHERN CALIFORNIA EDISON TO PROVIDE NO -COST FUNDING - Public Works Agency MOTION: 1. Authorize the City Manager and Clerk of the Council to execute the following agreements, subject to nonsubstantive changes approved by the City Manager and City Attorney: AGMT NO. 2013 -135— AMENDMENT - With Sierra Pacific Electrical Contracting to increase compensation by $15,000 to provide and install an additional 22 Mast Arm LED streetlights, for a total amount not to exceed $715,000. AGMT NO. 2013 -136 - With Southern California Edison to provide no- cost funding through On -Bill Financing for 61 Mast Arm LED streetlights. 2. Approve an appropriation adjustment. (Requires rive affirmative votes) APPROPRIATION ADJUSTMENT NO. 2014 -29 Recognizing an additional $38,000 in funding from Southern California Edison into the Energy Conservation revenue account and appropriating the same amount to the Energy Conservation expenditure account for the installation of Mast Arm LED streetlights. 20E APPROPRIATION ADJUSTMENT AND AGREEMENTS TO PROVIDE LED POST TOP STREETLIGHTS AND SOUTHERN CALIFORNIA EDISON TO PROVIDE NO -COST FUNDING FOR LED STREETLIGHTS - Public Works Agency MOTION: 1. Direct the City Attorney to prepare and the City Manager and Clerk of the Council to execute the following agreements, subject to nonsubstantive changes approved by the City Manager and City Attorney: CITY COUNCIL MINUTES 10 SEPTEMBER 3, 2013 1 0A -10 AGMT NO. 2013 -137 — With Powerlux Corporation to provide 354 LED Post Top Streetlights for an amount not to exceed $125,000. AGMT NO. 2013 -138 — With Southern California Edison to provide no- cost funding through On -Bill Financing for the LED streetlights. 2. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2014 -30 Recognizing $125,000 in funding from Southern California Edison into the Energy Conservation revenue account and appropriating the same amount to the Energy Conservation expenditure account for the installation of LED streetlights. SPECIFICATIONS — PURCHASE OF EQUIPMENT AND SERVICES MOTION: Award in accordance with Request for Council Action. (Items 22A through 22E) 22A SPEC NO. 13 -044 - SEWER INSPECTION CAMERA AND LIGHTING SYSTEM - Award a contract to Haaker Equipment Co. in an amount not to exceed $53,400 (Public Works Agency) - Finance & Management Services 22B SPEC NO. 13 -040 - TWO POLICE PATROL VEHICLES - Award a contract to Wondries Fleet Group, under the Cooperative Purchase Provision of the County of Los Angeles, in an amount of $59,000 (Police Department) - Finance & Management Services 22C SPEC NO. 09 -051 - PREPAID GASOLINE CARDS - Renew the contract with SVM, LP for a one -year period in an annual amount not to exceed $35,000 (Community Development Agency) - Finance & Management Services 22D SPEC. NO. 13 -037 - HP SERVERS & STORAGE - Award a contract to Govplace in an amount not to exceed $267,100 - Finance & Management Services 22E SPEC. NO. 13 -039 - WATER SAMPLING STATIONS - Award a contract to HD Supply Waterworks in an amount not to exceed $31,600 (Public Works Agency) - Finance & Management Services CITY COUNCIL MINUTES 11 SEPTEMBER 3, 2013 1 0A -11 AGREEMENTS MOTION: Authorize the City Manager and Clerk of the Council to execute the following agreements, subject to non - substantive changes approved by the City Manager and City Attorney and /or actions as noted on the Request for Council Action report. (Item 25A through 25F) 25A AGMT NO. 2013 -139 - CONSULTING SERVICES - With Wesley A. Bosch in an amount of $90,000 for the period of October 1, 2013 through June 30, 2014 - Community Development Agency 25B AGMT NO. 2013 -140 - AMENDMENT - ANNUAL WEED AND DEBRIS REMOVAL SERVICES - With Naranjo Landscape, Inc., for an amount not to exceed $190,000 through August 31, 2014 - Public Works Agency and Community Development Agency 25C AGMT NO. 2013 -141 - HARDWARE AND SOFTWARE UPGRADES TO THE SUPERVISORY CONTROL AND DATA ACQUISITION SYSTEM SOFTWARE AND SYSTEM MAINTENANCE FOR THE CITY'S WATER PRODUCTION FACILITIES - With Transdyn, Inc., in an amount not to exceed $100,000 through June 30, 2014 - Public Works Agency 25D AGMT NOS. 2013 -142 - EMPLOYEE GROUP INSURANCE RENEWALS FOR LONG TERM DISABILITY, MEDICAL, DENTAL, VISION, EMPLOYEE ASSISTANCE, EMPLOYEE GROUP LIFE AND ACCIDENTAL DEATH AND DISMEMBERMENT INSURANCE - Personnel Services Agency 25E AGMT NO. 2013 -143 - INSTRUCTIONAL SERVICES TO ELIGIBLE YOUTH PARTICIPATING IN THE SEEDS TO TREES DIGITAL MEDIA ACADEMY PROGRAM - With Rancho Santiago Community College District in an amount of $61,733, for a one year term - Parks, Recreation & Community Services Agency and Community Development Agency 25F AGMT NO. 2013 -144 - CABLING SERVICES - Execute a three -year agreement with PCC Network Solutions, a Pacific Coast Cabling, Inc. company in an amount not to exceed $45,000 per year with provisions for three one -year renewals - Finance & Management Services CITY COUNCIL MINUTES 12 SEPTEMBER 3, 2013 1 0A -12 * *END OF CONSENT CALENDAR ** BUSINESS CALENDAR ITEMS RESOLUTIONS 55A FY2013 HOMELAND SECURITY GRANT PROGRAM AND RELATED AGREEMENTS - Police Department MOTION: 1. Adopt a resolution. RESOLUTION NO. 2013 -042 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE CITY MANAGER AND THE CHIEF OF POLICE OR THEIR DESIGNEE(S) TO ENTER INTO AN AGREEMENT WITH THE STATE OF CALIFORNIA GOVERNOR'S OFFICE OF EMERGENCY SERVICES FOR THE FY2013 URBAN AREA SECURITY INITIATIVE FUNDING PROGRAM 2. AGMT NO. 2013 -145 - Direct the City Attorney to prepare and authorize the Chief of Police and the Clerk of the Council to enter into reimbursement agreements for equipment, services, or training with the County of Orange or any of the cities located in the designated Anaheim /Santa Ana Urban Area. 3. Approve an appropriation adjustment. (Requires five affirmative votes) APPROPRIATION ADJUSTMENT NO. 2014 -32 - Approve an Appropriation Adjustment recognizing $2,715,000 in the FY 2013 Urban Areas Security Initiative revenue account and appropriate same to expenditure accounts. MOTION: Benavides SECOND: Tinajero VOTE: AYES: Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) CITY COUNCIL MINUTES 13 SEPTEMBER 3, 2013 1 0A -13 55B RESOLUTION - PROPOSED AMENDMENTS TO CLASSIFICATION AND COMPENSATION PLANS AND CITY'S BUDGET - Personnel Services Agency, City Manger's Office, and Police Department MOTION: Adopt a resolution. RESOLUTION NO. 2013 -043 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO AMEND RESOLUTION NOS. 91 -066 AND 96 -095 TO EFFECT CERTAIN CHANGES TO THE CITY'S BASIC CLASSIFICATION AND COMPENSATION PLANS AND TO AMEND THE CITY'S BUDGET FOR FISCAL YEARS 2013 -2015. MOTION: Benavides SECOND: Tinajero VOTE: AYES: Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 55C RESOLUTION CONFIRMING THE RATE POLICY FOR CITY OWNED PARKING GARAGES AND THE SURFACE PARKING LOT IN THE DOWNTOWN - Community Development Agency Councilmember Benavides inquired as to credit card payment option at parking facilities. Staff indicated that project underway. Mayor Pro Tern Tinajero noted importance of uniform policy on parking fees for all events. Interim City Manager O'Rourke indicated that resolution was effort at consolidated past practices; may be modified as needed. Councilmember Sarmiento noted that pay station system burdensome; City Council to further review when Plan for upgrade at garage stations considered. MOTION: Adopt a resolution. RESOLUTION NO. 2013 -044 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA CONFIRMING HOURS AND PARKING RATES FOR SPECIFIED CITY OWNED PARKING FACILITIES CITY COUNCIL MINUTES 14 SEPTEMBER 3, 2013 1 OA -14 MOTION: Benavides SECOND: Pulido VOTE: AYES: Amezcua, Benavides, Martinez, Pulido, Reyna, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) CITY COUNCIL MEETING RECESSED TO THE HOUSING AUTHORITY MEETING AT 7:27 P.M., CONVENED THE SUCCESSOR AGENCY MEETING AT 7:27 P.M. AND RECONVENED THE CITY COUNCIL MEETING AT 7:28 P.M. WITH SAME MEMBERS PRESENT. COMMENTS 'Mayor Pulido left the meeting at 7:35 p.m. and did not return. Mayor Pro Tern Tinajero assumed the Chair. 90A CITY MANAGER'S COMMENTS - None 90B CITY COUNCILMEMBER COMMENTS Councilmember Martinez: • Noted for the record that she dissented on Agenda Item 11A; • Commented on pedestrian safety; • Reported that Secret Millionaire television program recently highlighted Santa Ana business owner of Wahoo Tacos for philanthropic efforts; encouraged all to support business; • Thanked City Council members and staff that recently visited the City of Portland to evaluate the Street Car Project; • Recently attended conference in New Mexico that discussed senior programs and Affordable Care Act, • Provided Oral Report — Finance, Technology and Economic Development Committee working on audit policy; thanked staff for efforts. Councilmember Amezcua: • Thanked Fire Chief Scott Brown on recent Fire Museum Opening; and CITY COUNCIL MINUTES 15 SEPTEMBER 3, 2013 1 0A -15 • Encouraged all to attend Fire Open House on September 8th at Station 75 from 11 a.m. to 3 p.m. Councilmember Sarmiento: • Pursuant to AB1234, reported on recent trip to Portland to review fixed guide -way project being proposed; met with non - profit organization that helped fund project; reviewed mobility and possible economic development opportunities; essential for City Council to be engaged in project including OCTA board member; • Commented on Strategic Plan, outreach efforts, opined that Plan is fluid and subject to change as demographic and other needs change; • Oral report — Development Committee to meet on Thursday to review City's Transit Vision projects, and received updates on the Request for Qualifications project for YMCA and Broadway Parking Structure, General Plan and Housing Element, Councilmember Reyna: • Reported on recent trip to Portland, • Attended Zoofari event, well attended; kudos to event coordinators; • School back in session; best wishes to all returning students; • Recognized Broncos team and Little League for representing City well; applaud coaches are leadership; • Urged all to conserve water; • Shop in Santa Ana; and • Invited all to attend upcoming Fiestas Patrias celebration. Councilmember Benavides: • Toured the City of Portland's Street Car Project; met with City and transit leaders; vision is to have regional impact; • The South Main Street Merchants hosting Broom and Groom event on Saturday, September 7 from 8 -10 a.m.; invited all to Monthly Community Office Hours at Jerome Park from 10 a.m. to 12 p.m. and Monthly Art Walk all being held on Saturday; • Shop and support our local businesses; • September 13th will kick off Fiestas Patrias with carnival; invited all to celebrate; • Report Out — Public Safety Committee discussed policy on ICE detainee program; noted that City follows State Attorney General Guidelines. Mayor Pro Tern Tinajero: • Thanked all for attending meeting; • Attended tour in Los Angeles of mixed use dwelling project areas — urban and mixed use; • Recently met with parents from Kidworks; thanked staff for great service provided; CITY COUNCIL MINUTES 16 SEPTEMBER 3, 2013 1 0A -16 • Commented on City Council efforts on Strategic Plan, has been an inclusive process; opined that forums have captured broad perspectives; engagement important. • Attended OC Pride Parade, well attended. ADJOURNED- 7:57 P.M. The next meeting of the City Council is scheduled for Monday, September 16, 2013 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting at 5:45 p.m. in the Council Chamber, 22 Civic Center Plaza, Santa Ana, California. Maria D. Huizar, Clerk of the Council FUTURE AGENDA ITEMS • Street Car Project Locally Preferred Alignment Public Hearing on Sexlinger Property • Adoption of Strategic Plan Harbor Blvd. Mixed -Use Plan CITY COUNCIL MINUTES 17 SEPTEMBER 3, 2013 1 0A -17 1 0A -18 CITY COUNCIL COMMITTEE ON DEVELOPMENT AND TRANSPORTATION Meeting Minutes June 4, 2013 CALL TO ORDER The meeting was called to order at 5:10 p.m. in Room 1600 of the City Hall Ross Annex. ATTENDANCE The following Councilmembers were present: Vincent Sarmiento, David Benavides and Michele Martinez Staff present were: Kevin O'Rourke, Interim City Manager; Jay Trevino, Executive Director /Planning & Building Agency; Raul Godinez Il, Executive Director /Public Works Agency; Laura Sheedy, Assistant City Attorney; Sandra Gottlieb, Acting Executive Director /Community Devel. Agency; Gaby Lomeli, Redevelopment Project Manager; Deputy Chief Doug McGeachy, Police Dept.; William Galvez, City Engineer; Alvaro Nunez, Community Preservation Coordinator; Yvette Aguilar, Community Preservation Inspector; Melanie McCann, Associate Planner; Matt Foulkes, Management Aide; Kathleen Head, COSA Consultant; Lorrie Ortiz, PWA Executive Secretary; and Rosa Barela, PBA Executive Secretary. AGENDA ITEMS 1. PUBLIC COMMENTS - None 2. APPROVAL OF MINUTES — APRIL 22, 2013 MEETING Approved by a vote of 3:0. 3. REVIEW OF COMMITTEE BYLAWS Assistant City Attorney Laura Sheedy discussed the recommended draft Bylaws which are similar to the other Council Committees with different areas of review. The Vice Chair position was included in the bylaws and will be placed on the next Committee agenda for appointment. After review and comment by the Committee, the bylaws will proceed to the full council for approval. Chair Sarmiento noted this Committee recommends only to the City Council in order to review any issues and to have a broader conversation. Committee member Benavides noted in "Article II - Purpose" under issues on the agenda brought or referred by the City Manager or Department head, noted that Committee members should be setting the agenda. Ms. Sheedy will include the agenda is driven by Committee members, and that items may be added by the City Manager or City Department head. 13A -1 Committee member Martinez noted under "Article III — Powers and Duties" to allow not just policy conversations but have the flexibility for Council or staff to include specific developments or projects for discussion; also requested under "Article V, Section A — Regular Meeting" that meetings be held "at least" quarterly. 4. RFQ /RFP FOR CITY OWNED PROPERTIES DOWNTOWN Planning & Building Agency Executive Director Jay Trevino noted staff at Council direction looked at assets in downtown with potential for either development or reuse. Two city -owned sites were identified, which include the parking structure located at Third Street and Broadway and the YMCA building located at Civic Center Drive and Sycamore Street. Mr. Trevino provided background information and history on both properties, rehabilitation and replacement costs, and discussed shared parking. Kathleen Head of Keyser Marston provided information on land and building value analysis, development scenarios, participation and financing options (Economic Development ordinance). Mr. Trevino recommended proceeding with a Request for Qualifications (RFQ) followed by a Request for Proposals (RFP). He noted that a shared parking analysis could be incorporated into the environmental document. Committee member Martinez noted the need to look at other opportunities and be creative on the iconic YMCA building and see what others have done with historic buildings. Chairman Sarmiento noted the properties are underutilized and underperforming and are becoming an attractive nuisance, adding it may be the right time to introduce a use we are not currently looking at. Ben Grabiel, S.A. Historical Preservation Society member, inquired why the YMCA property has been vacant for so many years. Chairman Sarmiento noted the lack of funding and resources. Committee member Benavides noted the idea is to figure out a more creative solution with the intent to go out publically to draw an interest. Brian Hendricks inquired if the RFQ will provide direction on what the Council would like to see developed at the properties. Chairman Sarmiento noted the committee would try to narrow the scope but not narrow it to the point where it's limited. Mr. Trevino asked the Committee for direction on the general range of uses for the properties, noting that staff will first release the RFQ to gauge the interest and qualifications of the teams and then let the City Council evaluate the list of teams. The Council- preferred groups would then be asked to submit detailed proposals. Acting Executive Director /Community Development Agency Sandra Gottlieb noted as part of the RFQ, financials would be provided to learn the financial capabilities of the developer. Development & Transp. Council Committee Minutes June 4, 2013 A citizen noted the YMCA is a beautiful building but feasibility to make a legitimate proposal will take a lot of money, engineering, consultants just to put a proposal together. Motion by Committee Martinez and seconded by Committee member Benavides and approved unanimously by a vote of 3:0 to prepare a draft RFQ on both properties and not limit either asset to include uses as hotel, health /fitness center, document archive or residential use. Mr. Trevino noted staff will follow -up with draft RFQs for each property and route to the Committee members within 30 days for review. The final RFQ will then be forwarded to the full City Council for approval. (Martinez left the meeting at 6:28 p.m.) (Taken out of agenda order) 6. EMERGENCY SHELTER AND TRANSITIONAL HOUSING ORDINANCE (SB2) BRIEFING Mr. Trevino noted that Senate Bill 2 (SB2) has been enacted by the Legislature, which requires cities and counties to plan for the needs of the homeless population in terms of emergency shelters and transitional housing as prescribed by Housing Element requirements. SB2 requires that the City identify the number of homeless and at least one zone where emergency shelters are permitted. Mr. Trevino further discussed the city's unmet need, the collaborative process of meetings with city interagency staff, stakeholders and various task forces and community outreach meetings. Mr. Trevino discussed the tentative Ordinance Framework for both Multiservice Center for Homeless and Emergency Shelters for Homeless which would be run by non - profits. He noted the number of beds and support services they would provide, discussed locations and various buffers, development standards in the ordinance, and the next steps for adoption. He added that the draft ordinance will go to Planning Commission as a study session and public hearing and then to the City Council. Chairman Sarmiento thanked staff noting the need to start immediately to identify potential sites and be proactive, to lead the conversation and share in the responsibility with other cities and noted concern about the accuracy on calculating the numbers for the city's responsibility. Associate Planner Melanie McCann spoke on the method of counting noting staff continues to work with the Police Department toward more accurate tracking and counting. Committee member Benavides noted conversations with County Supervisor Nguyen indicating County funds are available for facilities and noted the city should take a lead with a type of model facility that will be comprehensive. He also inquired as to when the Armory will be closing. Development & Transp. Council Committee Minutes 1 SMA- 7 June 4, 2013 5. MEDICAL MARIJUANA: UPDATE ON CITY EFFORTS AND STATUS OF INITIATIVE Mr. Trevino provided an overview of the enforcement efforts between the City Attorney's Office, Police Department, Code Enforcement and US Attorney's Office. He also provided a status of the initiative that has qualified for the ballot in November 2014. Committee member Benavides spoke on the initiative that will be on the ballot for residents to decide and how the city's response might be. Interim City Manager Kevin O'Rourke noted staff will provide the Council, in light of the City of Riverside's decision, the city's options and what the next steps will be. Mr. Trevino noted the City Attorney may propose that this item be presented to the Council in Closed Session due to the legal issues. Chairman Sarmiento asked that staff also provide the number of dispensaries that were once open and operating and what the present count is. 7. OVERVIEW OF CITY'S TRANSIT VISION PROJECTS Item continued to next meeting. 8. COMMITTEE MEMBER COMMENTS — None 9. ITEMS AND DATE FOR NEXT MEETING The next meeting will be held in approximately 30 days. ADJOURNMENT — 7:00 P.M. i JaYM. Trevino Executive Director Planning & Building Agency J MT: rb t C.-ol Co \D,vel a rrzrep CCwsUa.n D11.1 a TI.-I cc Mmme. Development & Transp. Council Committee Minutes June 4, 2013 CITY OF SANTA ANA LEGISLATIVE CITY COUNCIL COMMITTEE MINUTES JUNE 20, 2013 CALL TO ORDER The meeting was called to order at 10:11 am by Vincent Sarmiento at City Hall, Room 831. ATTENDANCE Members Present: Councilmember Michele Martinez Councilmember Vincent Sarmiento Members Absent: none Staff Present: Kevin O'Rourke, Debra Kurita, Sonia Carvalho, Maria Huizar, Mark Lawrence and Becky Magallon AGENDA ITEMS 1 3. Selection of Committee Chair Motion to elect Vincent Sarmiento as Committee Chair. Motion: M. Martinez Vote: Ayes: M. Martinez, V. Sarmiento Noes: (0) Absent: (0) Public Comments — None. Second: V. Sarmiento Establishment of Bylaws • Meeting dates, location and time City Attorney Sonia Carvalho will draft the committee bylaws which will contain standard language and be consistent with other Council committees such as the Development and Transportation Committee. Committee meetings will be scheduled as needed and at the request of the Chair or staff. On occasion, there may be a need to meet on short notice to review emergency legislation. Legislative City Council Committee Minutes June 20, 2013, Page 1 13B -1 4. Discussion of City's Legislative Platform Process Mark Lawrence reviewed the proposed guidelines for a legislative platform to guide the Council Legislative Committee in making recommendations in support or in opposition of State and Federal bills. The guidelines include staff and City Council scheduling regular meetings with state and federal lobbyists to inform them of the City's priorities so they can track them and alert the City of any upcoming relevant legislation action. Councilmembers Sarmiento and Martinez expressed the need for a legislative plafform to identify City legislative priorities. They added that we currently have a disjointed process and City Council has not always been informed of upcoming legislation affecting Santa Ana. They also expressed concern with the inconsistency in communicating with past federal and state lobbyists. Sonia Carvalho reported that her law firm in Washington DC prepares a thorough legislative report which also includes information on grants as well as commentaries on important issues. She'll share this report with the City. Michele Martinez mentioned that she sits on legislative committees for SCAG and TCA and those agencies have staff dedicated to legislative issues and prepare detailed legislative reports which will be useful to Santa Ana. She added that Santa Ana can work together with legislative committees for these agencies so that City staff doesn't have to do all the research. City of Brea is an example of a city currently doing that. Vincent Sarmiento agreed that working with other agencies will be helpful; however, their platform may be somewhat different because they emphasize on regional issues, and that it would be important for Santa Ana to have its own legislative platform. Staff and Legislative Council Committee will meet with the lobbyists to create a legislative platform. The proposed platform will then be reviewed and approved by the City Council. Kevin O'Rourke suggested that one of the new management analysts to be added to the City Manager's Office be in charge of tracking legislation and informing the City Council of other agencies' legislative trips to Sacramento or Washington. 5. Establish guidelines for City's legislative action process • Resolutions and letters of support/opposition regarding legislative matters Mark Lawrence reviewed the suggested process, which would include the adoption of a resolution by the City Council to allow the Council Legislative Committee to approve letters of support/opposition on behalf of the City Council Legislative City Council Committee Minutes June 20, 2013, Page 2 13B-2 Maria Huizar mentioned that the Code of Conduct/Ethics Committee will be meeting in July or August and will discuss the Council norms which will include various Council policies. City Attorney's Office staff will draft guidelines for the Legislative Committee's review. Once the Committee approves them, a resolution will be prepared for approval by the City Council. This resolution will delegate the authority to the Legislative Committee. Guidelines will include information on how individual Council members can support/oppose legislation. The guidelines will also include specific language to be used in letters when the Mayor is representing the entire Council. Under the new guidelines, staff will have the authority to take action on issues that have been identified on the platform as City priorities. Staff will come to the Legislative Committee for direction on any legislative action that is not part of the platform. The process will also include a mechanism to use when there's need for immediate legislative action and there's no time to schedule a Committee meeting. 6. Relationship with League Lobbying Team Kevin O'Rourke commented that the League of California Cities meets once a week with lobbyists that represent cities. Santa Ana's lobbyist can attend this weekly meeting and make the League aware of what current legislation is important to Santa Ana. Federal Lobbyist Request for Proposals (RFP) Mark Lawrence informed the Committee that he received an email from Holland and Knight proposing to enter into a six -month short term month to month arrangement with the City to allow the City an opportunity to assess their services. Michele Martinez mentioned that other cities, such as Brea, have a hybrid arrangement with one lobbyist providing both state and federal legislative services. She added that Council was not given the opportunity to review the Request for Proposals. Vincent Sarmiento likes the idea of a hybrid approach; however, now that there is a legislative structure, he'd be open to hiring two lobbyists. He's looking at this process through a different lens and is open to other possibilities. Several options were discussed such as hiring a lobbyist on a retainer and drawing from it as services are needed /rendered or hiring a lobbyist on an hourly basis and calling on them as needed. Sonia Carvalho mentioned that it's important that the RFP includes Council's interests. It sends a negative message to the organizations when the City opens an RFP and delays awarding of contract. Legislative City Council Committee Minutes June 20, 2013, Page 3 13B -3 Michele Martinez expressed concern that Holland & Knight subcontracts with other lobbyists to provide legislative services and that their history is more as attorneys. Vincent Sarmiento added that he didn't get a comfort level with Holland & Knight, which could be because they are a very large firm. Staff will add this item to the next City Council agenda to reject all bids, delegate authority to the Legislative Council Committee to interview interested firms, and come back to the City Council with a recommendation. 8. State Lobbyist (Townsend Public Affairs) communication Kevin O'Rourke reported that he met with Townsend Public Affairs (TPA) and the firm has recently become more active and has been providing timely assistance to the City. Staff has asked TPA to track the Governor's proposal on the Enterprise Zone. Vincent Sarmiento mentioned that it will be valuable to get a lobbyist report that is tailored to Santa Ana. 9. Committee Member Comments No additional Committee member comments. 10. Future Items, date and location for next meeting No future meeting date was selected. Staff will call the next meeting. ADJOURNMENT Meeting was adjourned at 11:10 a.m. 4—y L�"aj�- Becky Magallon Executive Assistant City Manager's Office Legislative City Council Committee Minutes June 20, 2013, Page 4 13B-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED ❑ As Recommended AGREEMENT AND ❑ As Amended APPROPRIATION ADJUSTMENT El Ordinance on n Reading 2 ❑ Ordinance on tl Reading ACCEPTING OFFICE OF ❑ Implementing Resolution TRAFFIC SAFETY, SqJ� RIETY ❑ Set Public Hearing For CHECKPOINT GRANT FUNDS CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION 1. Authorize the City Manager and Clerk of the Council to execute a one -year agreement with the State Office of Traffic Safety for Sobriety Checkpoint Grant funds, in an amount not to exceed $157,800, subject to non - substantive changes approved by the City Manager and City Attorney. 2. Approve an appropriation adjustment accepting State of California, Office of Traffic Safety, Sobriety Checkpoint Grant funds in the amount of $157,800 in the Office of Traffic Safety revenue account and appropriate same to expenditure accounts. DISCUSSION The Santa Ana Police Department has been awarded a $157,800 grant from the State of California, Office of Traffic Safety (OTS) under the Sobriety Checkpoint Grant Program. This grant funding will allow the Police Department's Traffic Division to conduct a total of 22 DUI checkpoints with specific enforcement occurring during the Winter Holiday (2013) and Labor Day (2014) enforcement periods. The goal of this grant is to reduce the number of victims of alcohol - involved crashes in the City of Santa Ana. In addition, this grant is intended to reduce the number of night -time accidents, and the number of hit and run accidents. The total grant amount of $157,800 includes $154,000 for officer overtime and $3,800 for program materials and supplies. This one -year agreement will cover the program period from October 1, 2013 through September 30, 2014. 20A -1 Agreement with OTS for Sobriety Checkpoint Program September 16, 2013 Page 2 FISCAL IMPACT The appropriation adjustment will enhance the Office of Traffic Safety revenue account (no. 16514002 52001) by $157,800 and appropriate same to expenditure accounts (nos. 16514410 - various). APPROVED AS T Y FUND AND ACCOUNTS: 'a Carlos Rojas Francisco Gutierrez Acting Chief of Police Executive Director Police Department Finance & Mgt. Services Agency VVi_ 20A-2 \YY OP Q The Regents of the University of California School of Public Health, Berkeley, GRANT NUMBER with Primary Funding from the California Office of Traffic Safety SC14385 y ��r • Yaea• GRANT 1. Title of Program SOBRIETY CHECKPOINT GRANT PROGRAM FOR 2013 -2014 2. Name of Applicant Agency 4. Period of Grant SANTA ANA, CITY OF Month - Day - Year From: 10/01/13 3. University of California Berkeley, Safe Transportation Research and Education Center DAVID RAGLAND, PRINCIPAL INVESTIGATOR, UC BERKELEY SAFE TRANSPORTATION RESEARCH AND EDUCATION CENTER To: 09130114 5. Description of Program The goal of the Sobriety Checkpoint Grant Program for 2013 -2014 is to reduce the number of victims killed and injured in alcohol - involved crashes in participating cities. The period of this grant contract ( "contract'), October 01, 2013 to September 30, 2014, encompasses two national mobilization periods: the Winter Holiday Mobilization period, December 13, 2013 - January 01, 2014, and the Labor Day Mobilization period, August 15, 2014 - September 01, 2014, The Santa Ana Police Department will conduct sobriety checkpoints in Santa Ana in accordance with this contract. The contract includes the attached Schedule A - Descriptions, Schedule B - Detailed Budget Estimate, Schedule B -1 - Budget Narrative, and Schedule C - Terms and Conditions. 6. Federal Funds Allocated Under This Grant Shall Not Exceed: $157,800.00 7. Approval Signatures (By signing this page, Agency agrees to the terms and conditions which follow and are attached) A. The Regents of the University of California Authorized B. Authorizing Official For Applicant Agency Signature Name: David Ragland Phone: (510) 642 -065 Name: Paul Walters Phone: (714) 245 -8001 Title: Director, SafeTREC Fax: (510) 643 -992 Title: City Manager Fax: (714) 647 -6956 Address: UC Berkeley Address: 20 Civic Center Plaza, 8th Floor Safe Transportation Research and Education Center Santa Ana , CA 92702 2614 Dwight Way #7374 Berkeley, CA 94720 -7374 Email: davidr @berkeley.edu Email: pwalters @santa - ana.org (Signature) (Date) (Signature) (Date) C. Agency Office Authorized to Receive Payments D. Optional: Individuals Authorized to Sign Claims (in addition to the Authorizing Official For Applicant Agency) Agency: Santa Ana, City of Phone: (714) 647 -5434 Name: Ruben Ibarra Title: Traffic Commander Office: Finance Department (Signature) (Date) Address: 20 Civic Center Plaza, 2nd Floor Santa Ana, CA 92702 Name: Norman Gielda Title: Traffic Sargent Tax ID #: 95- 6000785 Contact Person: Bich Ta (Signature) (Date) Email: bta@ santa- ana.org Page 1 20A -3 Santa Ana, City of Schedule A - Description Sobriety Checkpoint Grant Program for 2013 -2014 GOALS 1. To reduce the number of victims killed in alcohol - involved crashes. 2. To reduce the number of victims injured in alcohol - involved crashes. 3. To reduce nighttime (2100 hours to 0259 hours) fatal crashes. 4. To reduce nighttime (2100 hours to 0259 hours) injury crashes. 5. To reduce hit and run fatal crashes. 6. To reduce hit and run injury crashes. AGENCY OBJECTIVES Grant No. SC14385 1. To conduct a total of 22 sobriety checkpoints by September 30, 2014 (should be a minimum of one checkpoint per mobilization). NOTE: If a department elects to combine a Driver License (DL) checkpoint with a sobriety checkpoint, the department should: 1) inform the public (via the press release) that driver licenses will be checked and 2) conduct DUI /DL checkpoint operations with signs reading, "DUI /Driver License Checkpoint Ahead ". To better identify and apprehend drug- impaired drivers in addition to alcohol- impaired drivers, it is highly recommended that all personnel assigned to staff the greeting lane of the checkpoint be Drug Recognition Experts (DREs) and /or Advanced Roadside Impaired Driving Enforcement (ARIDE) trained sworn officers. At the very minimum, all officers contacting drivers in the greeting lane should be National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Test (SFST) trained and certified. To maximize effectiveness, checkpoint operations may be conducted at more than one location on any evening. Each checkpoint should be highly publicized and visible. The Office of Traffic Safety (OTS) does not fund or support independent DL checkpoints. Only on an exception basis and with OTS pre - approval will OTS fund checkpoint operations that begin prior to 1800 hours. When practicable it is recommended that checkpoint operations run until 0300 hours. 2. If appropriate, a supervisor(s) should attend OTS- sponsored 'DUI Checkpoints - Planning and Management' eight -hour, POST - certified training by December 31, 2013. Officers are encouraged to attend this training as well. 3. To collect and report checkpoint statistics on -line for checkpoints conducted during the Winter and Labor Day mobilization periods and submit the data by the deadlines established by the Safe Transportation Research and Education Center (SafeTREC). 4. To collect and report checkpoint statistics on -line for checkpoints conducted outside the mobilization periods and to submit the data by the end of the applicable quarter(s). page 2 20A -4 Santa Ana, City of Schedule A - Description (continued) Sobriety Checkpoint Grant Program for 2013 -2014 MEDIA OBJECTIVES Grant No. SC14385 1. After the statewide kick -off press event, issue a press release announcing the kick -off of this grant, using the OTS kick -off press release template provided by SafeTREC. 2. During the mobilization periods (December 13 - January 1 and August 15 - September 1), if an AVOID media campaign is active in the county, grantee should notify the AVOID Coordinator of checkpoint locations, dates and times at least fourteen (14) days in advance of all planned checkpoints. The AVOID Coordinator should issue press releases including checkpoints conducted during the mobilization periods to all major media outlets in the region. 3. For each checkpoint operation, grantee should distribute a separate press release using the OTS template provided by SafeTREC unless multiple checkpoints are to be conducted within a seven (7) day period, in which case one press release covering the seven (7) day period that covers all operations will suffice. When using the OTS press release template provided by SafeTREC, grantee should forward press releases, media advisories, alerts and other press materials to SafeTREC concurrently with distribution to the media. If any other press release format or copy is used, grantee should submit the press release to the OTS Public Information Officer at pioeots.ca.gov for his review. Optimum lead -time would be 10 — 20 days prior to the operation. The approved press release should also be sent to SafeTREC. For post - operational media communications that report the results of checkpoints, grantee does not need to have the release approved by OTS. 4. Grantee should use OTS's tagline "Report Drunk Drivers. Call 911" on all news releases and checkpoint publication materials. 5. To use the following standard language in all press, media, and printed materials: "Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration." 6. Grantee should issue to the media a post - operational news release reporting the results of the checkpoint (do not submit to OTS media communications reporting the results of checkpoints). Any drug- impaired driving arrests (23152(a)) and other drug arrests (possession, transportation, for sale) made as the result of the checkpoint operation should be incorporated into the post - operational media release. METHOD OF PROCEDURE Phase I: Program Preparation (October 1, 2013 — December 12, 2013) 1. Review the contract to ensure compliance with contract provisions. 2. Notify SafeTREC of any changes in contact information. The contract, purchase order number, and Fact Blasts are emailed to the contact person listed in the agency application. 3. Attend OTS- sponsored "DUI Checkpoints — Planning and Management" eight -hour, POST - certified training by December 31, 2013. 4. Plan checkpoint staffing, e.g., supervisors, officers, clerical staff, or community service officers as needed to staff each sobriety checkpoint on an overtime basis. 5. Send a written request to SafeTREC to seek approval of any changes to grant funded work or deliverables. 6. Order grant approved checkpoint supplies, if applicable. page 3 20A -5 Santa Ana, City of Grant No. SC14385 Schedule A - Description (continued) Sobriety Checkpoint Grant Program for 2013 -2014 Phase II: Mobilization (December 13, 2013 — January 1, 2014 and August 15, 2014 — September 1, 2014) 7. After the statewide kick -off press event in December, grantee should issue a press release announcing the kick -off of this grant using the OTS kick -off press release template provided by SafeTREC. 8. If an AVOID media campaign is active in the county, grantee should notify the AVOID Coordinator of checkpoint locations, dates and times at least fourteen (14) days in advance of all planned checkpoints. The AVOID Coordinator should issue press releases including checkpoints conducted during the mobilization periods to all major media outlets in the region. 9. For each checkpoint operation grantee should distribute a separate press release using the OTS template provided by SafeTREC unless multiple checkpoints are to be conducted within a seven (7) day period, in which case one press release covering the seven (7) day period that covers all operations will suffice. When using the OTS press release template provided by SafeTREC, grantee should forward press releases, media advisories, alerts, and other press materials to SafeTREC concurrenN with distribution to the media. If anv other Press release format or copy is used, grantee should submit the press release to the OTS Public Information Officer at io o s.ca. ov or his review. Optimum lead -time would be 10 — 20 days prior to the operation. The approved press release s nu a so a sent to SafeTREC. For post - operational media communications that report the results of checkpoints, grantee does not need to have the release approved by OTS. 10. Use OTS's tagline, "Report Drunk Drivers. Call 911" on all news releases and checkpoint publication materials 11. Conduct roll call training. Roll call training costs are not reimbursable. 12. To better identify and apprehend drug - impaired drivers in addition to alcohol- impaired drivers, it is highly recommended that all personnel assigned to staff the greeting lane of the checkpoint be Drug Recognition Experts (DREs) and /or Advanced Roadside Impaired Driving Enforcement (ARIDE) trained sworn officers. Al the very minimum, all officers contacting drivers in the greeting lane should be NHTSA SFST trained and certified. 13. Begin the checkpoint no earlier than 1800 hours and if possible and practicable, operate the checkpoint until 0300 hours. 14. Conduct the last checkpoint no later than September 30, 2014. Phase III: Post Operational Data Reporting (at the end of each mobilization period and each applicable calendar quarter) 15. Submit post - operational data on -line for checkpoints conducted during the Winter Holiday and Labor Day mobilizations. Submit data by the SafeTREC deadlines. 16. Submit post - operational data on -line for checkpoints conducted outside the mobilization periods. Submit the data by the end of the applicable quarter. If multiple checkpoints are conducted durng a qua er, on the checkpoint statistics. 17. Issue to the media a post - operational news release reporting the results of the checkpoint. Any drug impaired driving arrests (23152(a)) and other drug arrests (possession, transportation, for sale) made as the result of the checkpoint operation should be incorporated into the post - operational media release. Phase IV: Claim Submission (at the end of the applicable calendar quarter) 18. Compile actual overtime and checkpoint supply costs incurred for operating the grant- funded checkpoints. 19. Download the claim form from the SafeTREC web site at: http: / /www. safetrec. berkeley.ed u /checkpointgrants /2013- 2014checkpoint. html 20. Complete the claim form for the applicable quarter in accordance with Schedule B — Detailed Budget Estimate and Schedule B -1 — Budget Narrative. 21. Mail the claim forms for the quarter, with the required supporting documentation (specified in Schedule B -1) to SafeTREC following the end of the applicable calendar quarter. page w 20A -6 Santa Ana, City of Schedule B - Detailed Budget Estimate Sobriety Checkpoint Grant Program for 2013 -2014 Grant No. SC14385 The Santa Ana, City of will conduct a total of 22 sobriety checkpoints in Santa Ana as described in Table B below. Table B The cost per checkpoint includes overtime benefits. Only actual benefits accrued from overtime hours will be covered (e.g., retirement, medical /dental /vision insurance, uniform allowances will not be covered). Allowable benefits include: Social Security (OASDI), Workers Compensation, Medicare, State -run disability, and unemployment insurance. Maximum Reimbursable Amount for Checkpoint Supplies $3,800.00 Only OTS- approved supplies will be reimbursed. The prices of supplies will be reimbursed in accordance with policies established by the OTS. Grant Total Amount $157,800.00 (Maximum Reimbursable Amount for Checkpoints + Maximum Reimbursable Amount for Checkpoint Supplies) page 5 20A -7 Number of Cost Per Checkpoint Total Cost Checkpoints Winter Holiday Mobilization, December 13, 2013 — January 01, 2014 (should be a minimum of one 2 $7,000.00 $14,000.00 checkpoint) Labor Day Holiday Mobilization, August 15, 2014 — September 01, 2014 (should 2 $7,000.00 $14,000.00 be a minimum of one checkpoint) Number of checkpoints outside the mobilization periods 18 $7,000.00 $126,000.00 Total Number of 22 Maximum Reimbursable $154,000.00 Checkpoints Amount for Checkpoints The cost per checkpoint includes overtime benefits. Only actual benefits accrued from overtime hours will be covered (e.g., retirement, medical /dental /vision insurance, uniform allowances will not be covered). Allowable benefits include: Social Security (OASDI), Workers Compensation, Medicare, State -run disability, and unemployment insurance. Maximum Reimbursable Amount for Checkpoint Supplies $3,800.00 Only OTS- approved supplies will be reimbursed. The prices of supplies will be reimbursed in accordance with policies established by the OTS. Grant Total Amount $157,800.00 (Maximum Reimbursable Amount for Checkpoints + Maximum Reimbursable Amount for Checkpoint Supplies) page 5 20A -7 Santa Ana, City of Schedule B -1 - Budget Narrative Sobriety Checkpoint Grant Program for 2013 -2014 Grant No. SC14385 Santa Ana, City of will be reimbursed for overtime personnel costs and checkpoint supplies to conduct the checkpoints Overtime reimbursement will reflect actual costs (overtime hourly rate and overtime benefit rates) of the personnel conducting the appropriate operation(s) up to the amount of the approved cost per checkpoint and the grant total stated in Schedule B- Detailed Budget Estimate. Only actual benefits accrued from overtime hours will be covered (e.g., retirement, medical /dental /vision insurance, uniform allowances will not be covered). Allowable benefits include: Social Security (OASDI), Workers Compensation, Medicare, State -run disability, and unemployment insurance. Budgeted grant activities will be conducted by personnel on an overtime basis; supplanting is not allowable. The grant covers only the costs of police department personnel. Grants do not cover contractual services. Grant - funded operations may be conducted by personnel such as an officer, sergeant, corporal, deputy, community service officer, dispatcher, clerical /administrative, etc. depending on the titles used by the agency. Personnel will be deployed as needed to accomplish the grant goals and objectives. Administrative /clerical personnel are allowable only if they worked on the checkpoint operation, e.g., to process the larger than normal volume of citations, towing records, and arrest/incident reports. These reports must be a result of the operation and required to be processed quickly for distribution to the courts and the District Attorney's Office, or to meet statutory time limits. Clerical overtime incurred before the checkpoint or more than one business day after the last day of the checkpoint is not allowable. Costs for preparing claims are not reimbursable. OTS- approved checkpoint supplies (cones, signage, vests, PAS devices /supplies and lighting equipment) are reimbursable provided that: 1) the total cost of supplies, including tax and shipping, does not exceed the awarded amount specified in Schedule B; and 2) the unit prices of checkpoint supplies do not exceed OTS- established unit costs. Download the Checkpoint Supply Policy from the SafeTREC website to ensure compliance of checkpoint supply purchases. Other direct costs are not reimbursable, except for OTS- approved checkpoint supplies. Indirect costs are not reimbursable. Reimbursements are contingent upon the following (exceptions must be approved by SafeTREC): i. The applicable post - operational data have been submitted using SafeTREC's on -line reporting system. ii. The claim form is correctly filled out, using the SafeTREC Excel -based form. iii. The claim amounts do not exceed the limits set forth in Schedule B — Detailed Budget Estimate. iv. The information in the overtime slips and the ledger report are consistent and fully support the claim. V. A ledger report(s) supporting the claim amount is attached to the claim. Only source documents are accepted to support the claim amount. Explanatory documentation such as spreadsheets may be submitted to provide additional information but cannot be accepted in lieu of a ledger report(s). vi. An invoice(s) for the amount of checkpoint supplies is attached to the claim. The invoice must contain a sufficient description of the purchased item(s), quantity, and unit cost. vii. The claim is signed by the Authorizing Official (Box B of the grant cover page) or Individuals Authorized to Sign Claims (Box D) as designated in the grant cover page. viii. Changes in the Authorizing Official For the Applicant Agency or the designation of any other additional individual(s) to sign claims are documented in accordance with SafeTREC documentation requirements. ix. The final claim is submitted no later than October 31, 2014. page b 20A -8 Santa Ana, City of Schedule C - Terms and Conditions Sobriety Checkpoint Grant Program for 2013 -2014 A. INDEMNIFICATION Grant No. SC14385 Applicant Agency agrees to indemnify, defend, and save harmless the State of California, its officers, agents, and employees, the Regents of the University of California, its officers, agents, and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, suppliers, laborers, and any other person, firm, or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this contract, and from any and all claims and losses accruing or resulting to any person, firm, or corporation who may be injured or damaged by Applicant Agency in the performance of this contract. B. GOVERNING LAW This Contract shall be governed by and construed in accordance with the laws of the State of California. C. NON - ASSIGNABILITY The obligations of the applicant agency under this Contract are not assignable to any third party. D. USE OF UNIVERSITY NAME /TRADEMARKS Applicant Agency shall not use the name of the University of California, or any abbreviation thereof, or any name of which "University of California" is a part, or any trademarks of the University, in any commercial context, such as may appear on products, in media (including web sites) and print advertisements in cases when such use may imply an endorsement or sponsorship of the Applicant Agency, its products, or services. All uses of the University's name and trademarks, therefore, must first receive prior written consent of The Regents of the University of California through the Office of Marketing & Business Outreach. This policy is in compliance with the State of California Education Code Section 92000. E. TERMINATION Each party has the right to suspend, terminate or abandon the execution of any work by the Applicant Agency without cause at any time upon giving prior written notice. In the event that this contract is suspended, terminated, or abandoned, the Regents of the University of California shall pay the Applicant Agency for services provided hereunder prior to the effective date of said suspension, termination, or abandonment. Said payment shall be computed in accordance with Schedules B and B -1, provided that the maximum amount payable to the Applicant Agency for its services shall not exceed the Grant Total Amount on Schedule B for services provided hereunder prior to the effective date of suspension, termination, or abandonment. F. STATE OF CALIFORNIA TERMS, CONDITIONS, AND CERTIFICATIONS Applicant Agency agrees to abide by the General Terms, Conditions, and Certifications contained in OTS Grant Program Manual, Chapter 8. nanr 20A -9 20A -10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING REAL ESTATE FRAUD TRUST FUNDING C16Y ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Approve an appropriation adjustment recognizing Orange County Real Estate Fraud Trust funds of $50,000 in the Police Special Revenue account and appropriate same to the Police Special Revenue expenditure account to support the Police Department's efforts in investigating real estate fraud. DISCUSSION Pursuant to Government Code 27388, the Orange County Real Estate Fraud Trust Committee, in conjunction with the Orange County District Attorney's Office was created to administer funds to local cities to support their efforts to investigate real estate fraud crimes. Recently, the Santa Ana Police Department was awarded $50,000 to support its efforts in investigating real estate fraud crimes. The Police Department will use $49,000 to fund investigator overtime and $1,000 to fund training for investigators handling these cases. This grant will cover the period of July 1, 2013 through June 30, 2014. Last fiscal year, the Police Department received $18,000 in Orange County Real Estate Fraud Trust funds. The Police Department Economic Crimes Unit is currently investigating two cases involving over 25 victims with a potential monetary loss of $80,000. These types of cases typically involve illegal loan modification. The Economic Crimes Unit also investigates other types of real estate fraud which includes identity theft, loss mitigation, and foreclosure rescue scams. 20B -1 Orange County Real Estate Fraud Trust Fund AA September 16, 2013 Page 2 FISCAL IMPACT The appropriation adjustment will recognize Orange County Real Estate Fraud Trust funds of $50,000 in the Police Special Revenue account (no. 02414002 57010) and appropriate same to the Police Special Revenue expenditure account (no. 02414410 - various) to support the Police Department's efforts in investigating real estate fraud. Carlos Rojas Acting Chief of Police Police Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrezh� Executive Director Finance and Mgt. Services Agency 20B -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: SANTA ANA DELHI CHANNEL DIVERSION PROJECT — OCTA M2 ECP GRANT EXTENSION REQUEST Ac CIT ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1' Reading ❑ Ordinance on 2 n Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the Public Works Agency to request a one -time, two -year extension of Measure M2 Environmental Cleanup Program (ECP) funding for construction of the Santa Ana Delhi Channel Diversion Project. The recommended action would authorize staff to request a two -year extension from the current June 30, 2014 deadline. The extension is necessary to allow sufficient time to negotiate and enter into cost sharing agreements with the project partners (Cities of Newport Beach and Costa Mesa, and County of Orange Flood Division) and to complete the design and prepare the construction documents. The Santa Ana Delhi Channel Diversion Project is intended to capture and divert urban water discharge during low -flow conditions into the sanitary sewer system to improve urban surface water quality. The treatment process captures sediment, trash, and debris prior to discharging the flows into an underground storage vault, where it would eventually be pumped into the Orange County Sanitation District sanitary sewer line or harvested for irrigation use at the Newport Beach Golf Course. On November 19, 2012, the City Council adopted Resolution 2012 -047 (Exhibit 1) authorizing the Executive Director of Public Works to submit a grant application to the Orange County Transportation Authority (OCTA) for construction funding under the Combined Transportation Funding Program (CTFP) Measure M2 ECP. In February 2013, the OCTA Board of Directors approved construction funding in the amount of $2,572,875 for Fiscal Year 2014 -15. In accordance with CTFP guidelines, the construction contract for this project must be awarded by June 30, 2014. Due to the complexities of the cost sharing agreements and the required approval processes, staff estimates that construction will be awarded closer to December 2014. Because the grant only permits a one -time extension request, staff recommends requesting the maximum two -year extension allowed to accommodate any unforeseen obstacles. 21A-1 Santa Ana Delhi Channel Diversion Project OCTA ECP Grant Extension Request September 16, 2013 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact associated with this action. Edwin "William" Galvez�P.E. Interim Executive Director Public Works Agency WG /CC Exhibit: 1. Resolution 2012 -047 21A-2 Lss8/22/12 RESOLUTION NO. 2012 -047 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE SUBMITTAL OF AN APPLICATION TO ORANGE COUNTY TRANSPORTATION AUTHORITY FOR FUNDING UNDER THE MEASURE M2 ENVIRONMENTAL CLEANUP PROGRAM FOR THE DEVELOPMENT OF AN URBAN DISCHARGE DIVERSION FACILITY IN THE SANTA ANA DELHI CHANNEL BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Orange County Transportation Authority (OCTA) has authorized Measure M2 Environmental Cleanup Program (ECP) funding for projects which help to protect Orange County beaches and waterways from transportation- generated pollution (urban runoff) and improve overall water quality; and B. The OCTA Environmental Cleanup, Tier 2 Grant Program, provides funds for regional, potentially multi - jurisdictional, capital- intensive projects which mitigate pollutants including litter and debris, heavy metals, organic chemicals, sediment, and nutrients; and C. The City of Santa Ana has the authority to nominate water quality improvement projects which have a transportation pollution nexus, to finance and construct the proposed project; and D. The City will provide matching funds for the project as required by the Comprehensive Transportation Funding Programs Procedures Manual. Section 2: The City Council of the City of Santa Ana nominates the Santa Ana Delhi Channel Diversion Project, and authorizes the Executive Director of the Public Works Agency to submit application to OCTA for Measure M2 Environmental Cleanup Program funding for the Project. Section 3: The City Council appoints the City Manager, or the Executive Director of the Public Works Agency, or their designees, as agent for the City of Santa Ana to conduct all negotiations, execute and submit all documents, including applications, agreements, amendments, payment requests EXHIBIT 1 Resolution No. 2012 -047 Page 1 of 3 21A-3 and so on, and to accept funds for the Environmental Cleanup, Tier 2 Grant Program, which may be necessary for the completion of the project. Section 4: The City of Santa Ana will commence the project within a reasonable time after notification from OCTA, complete the Project with reasonable diligence and maintain and operate the Project after completion. Section 5: The City of Santa Ana will provide to OCTA's representative, access to and the right to examine all records, books, papers and documents related to the funded Project. Section 6: The City of Santa Ana will comply with applicable provisions of the California Environmental Quality Act, the National Environmental Policy Act, the Americans with Disabilities Act, and other federal, state and /or local laws, rules and /or regulations. Section 7: 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 19th day of November 2012. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Laura Sheedy Assistant City Attor y Resolution No. 2012 -047 Page 2 of 3 21A-4 AYES: Councilmembers: Alvarez, Benavides, Bustamante, Martinez, Pulido (5) NOES: Councilmembers: None (0) ABSTAIN: Councilmembers: None (0) NOT PRESENT: Councilmembers: Sarmiento. Tinaiero (2) CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2012 -047 to be the original resolution adopted by the City Council of the City of Santa Ana on November 19, 2012. Date: 1_716.1 Clerk of the Council City of Santa Ana Resolution No. 2012 -047 Page 3 of 3 21A-5 21A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONTRACTS RENEWAL FOR MAINTENANCE AND SERVICE OF CHILLERS, COMPRESSORS AND HVACS (SPEC. NO. 11 -012) 15i� CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: -C• ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2o6 Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO 1�1��►1�1�1-d�7 Renew the contracts for preventive maintenance and repair services of chillers, compressors and HVAC units for a one -year period in an annual aggregate amount not to exceed $130,000, subject to non - substantive changes approved by the City Manager and City Attorney, with the following vendors. Vendor: Location: ACCO Engineered Systems Costa Mesa Johnson Controls Whittier DISCUSSION The Finance and Management Service Agency Building Maintenance Division maintains over 30 buildings, including recreation and senior centers, City Hall, the Police Administration building and the Corporate Yard. These public buildings require various levels of service for complex mechanical systems, including chillers, compressors and heating and air conditioning equipment. To maintain these systems in good working condition, preventative maintenance, periodic inspections and repair of equipment on an as- needed basis is essential. Preventive maintenance services ensure the City's mechanical systems operate efficiently, safely and meet all applicable laws and regulations. On June 20, 2011, the City Council Controls for a one -year period with to renew the contracts with a les s second renewal of the contracts. FISCAL IMPACT awarded contracts to ACCO Engineered Systems and Johnson provisions for two one -year renewals. The vendors have agreed than one percent increase in pricing. Staff recommends the Funds are available in the Finance and Management Services Building Maintenance account (no. 07310100 - 62300). ��Nn :r\Z. Ae . A L !. Francisco Gutierrez 5K Executive Director ZZA-� Finance and Management Services Agency 22A -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONTRACTS RENEWAL FOR WATERWORKS FITTINGS AND SUPPLIES (SPECS. NO. 11 -020) r/ CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2otl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO In11:8R11A1::11V Renew the contracts for waterworks fittings and supplies for a one -year period in an aggregate amount of $225,000, subject to non - substantive changes approved by the City Manager and City Attorney, with the following vendors: DISCUSSION Vendor: Location: Ferguson Enterprises, Inc. Santa Ana H.D. Supply Waterworks Ltd. Santa Ana S & J Supply Company, Inc. Santa Fe Springs Wells Supply Co. Santa Ana The Public Works Agency Water Resources Division manages an extensive water distribution system which supplies water to businesses and residents in Santa Ana including all fire hydrants. The system includes twenty active wells, seven pumping stations and reservoirs, and seven import water connections, as well as miles of water pipe. To perform maintenance and repairs to the water distribution system and fire hydrants, staff requires an assortment of materials such as valves, adapters, couplings, clamps, brass bushings, flanges, nuts, and stops. The contract for waterworks fittings and supplies is designed to provide quality products at a significant savings based on quantity pricing. On September 6, 2011, the City Council awarded contracts to Ferguson Enterprises, Inc., H.D. Supply Waterworks Ltd., Wells Supply Co., and S & J Supply Company, Inc., for a one -year period, with provisions for three one -year renewals. The vendors have agreed to renew their contract; however, have requested an average of eight percent price increase due to higher freight costs and rising raw material and labor costs. Staff recommends the second renewal of the contracts. The aggregate amount of $225,000 is based on past usage and staff projections. 22B -1 Contracts Renewal for Waterworks Fittings and Supplies September 16, 2013 Page 2 FISCAL IMPACT Funds are available in the Public Works Water Systems Maintenance and Water Quality & Measurement accounts (nos. 06017641 -63001 and 06017644 - 63001). APPROVED AS TO FUNDS AND ACCOUNTS: -A Ssi,AI\i Q1�c'-,-) f Edwin "William" z, P.E. Francisco Gutierrez Acting Executive Director Executive Director Public Works Agency Finance & Mgmt Services Agency SP 22B -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONTRACT RENEWAL WITH SC FUELS FOR UNLEADED AND DIESEL FUEL (SPEC. NO. 11 -051) /V ITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Renew the contract with SC Fuels for unleaded and diesel fuel for a one -year period in an amount not to exceed $1,325,000, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Finance and Management Services Fleet Division provides fuel for all City vehicles including diesel- operated utility vehicles. Gasoline is stored in underground tanks located in the Corporate Yard and Police Facility. As a result of the Fleet Division Alternative Energy Strategic Plan and green initiative efforts, consumption of unleaded fuel has decreased by 2% percent since 2011. The Alternative Energy Plan will further help reduce fuel consumption by transitioning 85 percent of its fleet to alternative fuel vehicles by 2016. On October 3, 2011, the City Council awarded a contract to SC Fuels for diesel fuel for a one - year period, with provisions for four one -year renewals based on the contract with The Cooperative Purchasing Network. On June 8, 2012 the City renewed a separate fuel contract with G. P. Resources for unleaded gasoline. Effective February 1 2013, G. P. Resources merged with SC Fuels resulting in SC Fuels supplying both unleaded and diesel fuel to the City. Pricing for the City is based on daily benchmarks published by the Oil Price Information Service plus a margin of $0.0175 per gallon. This equates to the lowest possible price per gallon /per day for both fuel products. Staff recommends the second renewal of the contract FISCAL IMPACT Funds are available in the Finance and Management Services Equipment Maintenance Garage Operation account (no. 07510100 - 63300). Francisco Gutierrez sX Executive Director Finance and Management Services Agency 22C -1 22C -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONTRACT RENEWAL TO MALLORY SAFETY & SUPPLY COMPANY FORON -GOING HOMELAND SECURITY PROJECTS (SPEC. NO. 12 -054) CITY MANAG R RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: -C• ❑ As Recommended ❑ As Amended ❑ Ordinance onI"Reading ❑ Ordinance on 2n °Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Renew the contract with Mallory Safety & Supply Company for on -going Homeland Security projects for one year in an amount not to exceed $750,000 subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The United States Department of Homeland Security, Office of Grants and Training has developed the Urban Areas Security Initiative (UASI) funding program. This initiative was designed to enhance the domestic preparedness of urban areas by ensuring that all emergency first responders have adequate and appropriate equipment and training to prevent, respond to, and recover from acts of terrorism. Santa Ana has been designated as an Urban Area Core City since 2003. As an Urban Area Core City, Santa Ana is responsible for purchasing equipment and providing training to the other 34 jurisdictions in Orange County. The US Department of Homeland Security has identified Critical Infrastructure and Key Resources (CIKR) protection, Public Address /Warning, Information Sharing, and First Responder All- Hazards Training and Exercises, as priorities for state and local jurisdictions. The Anaheim /Santa Ana Urban Area has funded initial phases of the SAPD /Civic Center Camera, Regional Automated License Plate Recognition (ALPR), Long Range Acoustic Device (LRAD), and Tactical Emergency Casualty Care (TECC) projects using FY2006- FY2010 UASI funds. These on -going projects require additional funding to complete future phases and maintenance. 22D -1 Contract Award to Mallory Safety & Supply September 16, 2013 Page 2 Critical Infrastructure and Key Resources (CIKR): The SAPD /Civic Center Critical Infrastructure and Key Resources protection project began with the installation of a robust video camera system at police headquarters to harden and protect the perimeter of the facility. Phase I was completed in early 2012. Phase II included the installation of approximately 30 cameras around the Santa Ana Civic Center, creating a similar network to what exists at police headquarters. To improve upon and maintain current capabilities of this complex project, funds are needed for additional cameras and a comprehensive maintenance agreement for hardware and software sustainment. Four mobile camera trailers will be purchased to augment visual gaps around the Civic Center and downtown Santa Ana. The trailers will also be regionally available to any Law Enforcement agency in Orange County for high profile or special events to provide them the same real -time situational awareness. Tactical Emergency Casualty Care (TECC): Tactical Emergency Casualty Care is a one -day training course whereby law enforcement officers from throughout Orange County are trained to render life- saving treatment during an emergency. Military and civilian care research indicates that the actions of first responders in an emergency are critical to increased survival rates for victims of traumatic injuries. This course has the approval of Peace Officer Standards and Training, the State Emergency Medical Authority, and the Local Emergency Medical Authority. At this training, officers are issued an Individual First Aid Kit which contains essential tools necessary to render aid. This course was originally piloted and developed using FY2009 UASI funds, and has become one of the most important and popular Homeland Security courses in the Orange County Operational Area. To date, over 1,500 Orange County Law Enforcement Officers have been trained with these life- saving skills. Regional Automated License Plate Recognition (ALPR): The Regional Automated License Plate Recognition project has outfitted over 60 percent of Orange County Law Enforcement agencies with Automated License Plate Recognition capabilities. These devices are installed on patrol cars, read license plates and provide officers with information on whether or not the vehicle or registered owner is suspected or wanted in a crime. The proposed action will expand the program with the purchase of additional mobile units, some fixed at critical infrastructure, and maintenance. Long Range Acoustic Devices (LRAD): For decades, Long Range Acoustic Devices have been extremely effective in warning large masses of impending danger and providing life- saving information via large speaker systems. The Anaheim /Santa Ana UASI offices seek to implement a regional capability with the purchase of several mobile /fixed LRAD devices for communicating with citizens during emergencies or disasters. On September 4, 2012, the City Council awarded a contract to Mallory Safety & Supply Company for the purchase of the equipment associated with each of these programs. The contract award was for a one -year period with provision for two, one -year renewals. Staff recommends the first renewal of the contract. 22D -2 Contract Award to Mallory Safety & Supply September 16, 2013 Page 3 FISCAL IMPACT Funds are available in the FY2011 and FY2012 UASI Grant funds (nos. 12514407 - various, and 12514491- various). Carlos Rojas Acting Chief of Police Police Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency 22D -3 22D -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONTRACT AWARD TO BRODART COMPANY FOR LIBRARY CATALOGING AND PURCHASE OF BOOKS AND MATERIALS (SPEC. NO. 13 -0025) CrFY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on god Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Award a contract to Brodart Company for library cataloging and purchase of books and materials for a two year period with provision for three, one -year renewals in an annual amount not to exceed $285,000, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The library provides adult and youth programs to 133,118 card holders annually. Currently State and Federal grants cover 50% of the purchase of books and materials and the remaining 50% is charged against the General Fund. Approximately 20,000 books and materials are purchased annually including a Spanish concentration of 20 percent. All books and audio video materials purchased are bar coded and cataloged directly into the Library database so materials can be entered into circulation. Santa Ana Ordinance No. NS -2312 authorizes the City to purchase against contracts from any public agency utilizing a competitive bid process. The Palos Verdes Library District's contract with Brodart Company for library cataloging, books and materials was awarded as a result of open, competitive bidding, and meets the City's requirements. 22E -1 Contract Award for Library Cataloging September 16, 2013 Page 2 FISCAL IMPACT and Purchase of Books and Materials Funds are available in the Public Library Grant account (no. 15211150 - 66600); Technology & Support Services (no. 01111190 - 62300); Library Adult Services (no. 01111150 - 66600); Library Youth Services (no. 01111160 - 66600); and the Library Young Adult Services (no.01111180- 66600). Gerardo Mouet Executive Director Parks, Recreation and Community Services Agency EG APPROVED AS TO FUNDS AND ACCOUNTS: 22E -2 Francisco Gutierrez Executive Director Finance & Mgt. Services Agency REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONTRACT RENEWAL WITH DOMINGUEZ GENERAL ENGINEERING, INC. FOR ON- CALL SEWER REPAIR SERVICES (SPEC. NO. 11 -0421 Z; — CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: •:• ri, ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Renew the contract with Dominguez General Engineering, Inc. for on -call sewer repair services for a one -year period in an amount not to exceed $500,000, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Public Works Water Resources Division maintains a sanitary sewer system consisting of 390 miles of pipelines and 8,000 manholes. Through closed circuit television technology staff identifies deficiencies in both the sewer mains and sewer manholes which require repair. The recommended action will allow for the repair of the sewer system on an as- needed basis. The repairs will prevent structural failure while extending the life of existing sewer system infrastructure for a fraction of the cost of replacement. On September 6, 2011 the City awarded Dominguez General Engineering, Inc. a contract for on -call sewer repair services for a one -year period, with provisions for two one -year renewals. The vendor has agreed to renew the contract without an increase in pricing, staff recommends the second renewal of the contract. FISCAL IMPACT Funds are available in the Public Works Sanitary Sewer Services account (no. 05617640 - 66220). APPROVED AS TO FUNDS AND ACCOUNTS: Edwin "William" Ga �, P. E. Francisco Gutierrez Interim Executive Director Executive Director Public Works Agency Finance & Management Services Agency 22F -1 22F -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONTRACT RENEWAL WITH GOLDEN BELL PRODUCTS INC. FOR TREATING SANITARY SEWER MANHOLES (SPEC. NO. 12 -073) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: d••RO ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Renew the contract to Golden Bell Products, Inc. for treatment of sanitary sewer manholes with insecticidal latex coating in an amount not to exceed $50,000, subject to non - substantive changes approved by the City Manager and City Attorney. The Public Works Water Resources Division maintains a sanitary sewer system consisting of 390 miles of pipelines and 8,000 manholes. Insect infestation is controlled by applying insecticide in sewer manholes. The use of insecticidal latex coating provides a cost effective manhole treatment that remains effective for several years after application. Due to the specialized materials and equipment City contracts with a private company for this service. On December 12, 2012, the City Council awarded a contract to Golden Bell Products, Inc. for a one - year period with provisions for three, one -year renewals. The vendor has agreed to renew the contract without an increase in pricing. Staff recommends the first renewal of the contract. The recommended action will provide treatment for approximately 2500 sanitary sewer manholes. FISCAL IMPACT Funds are available in the Public Works Sanitary Sewer Service account (no. 05617640 - 62300). Edwin "William" Ga , P.E. Interim Executive Director Public Works Agency APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 22G -1 22G -2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: AGREEMENT WITH LEXIPOL, LLC TO PROVIDE POLICY MANUAL MAINTENANCE AND SUPPORT TO THE POLICE DEPARTMENT /C/�� CITY-MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: UT-517-071WR ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2od Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CK67►1110111g1iC0] FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Lexipol, LLC, for a three -year period, to provide policy manual maintenance, support and training services, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION Lexipol, LLC ( "Lexipol ") proposes to provide the Police Department with a web -based law enforcement policy manual to replace the existing policy manual that is currently maintained by the department. The Lexipol Law Enforcement Policy Manual has over 140 policies based on federal and state laws, regulations and law enforcement best practices. Lexipol's policy manual is written by legal and law enforcement professionals who constantly monitor major court decisions, legislation and emerging trends affecting law enforcement operations. Lexipol provides regular updates in response to legislative mandates, case law and evolving law enforcement best practices. Once implemented, the use of Lexipol will reduce staff time spent revising and drafting departmental policies. Lexipol archives departmental policies and tracks changes, facilitating improved documentation of policy revisions. Lexipol also documents officers who have reviewed certain policies for keeping up -to -date training records. In addition, Lexipol proposes to provide Daily Training Bulletin services that will provide comprehensive daily training to help police employees learn the content of the policy manual and the practical application of the policies. Each year, Lexipol will furnish 365 customizable, scenario - based training bulletins that will link directly to the policy manual. The Daily Training Bulletins will address use of force, vehicle operation, discriminatory harassment, and a variety of other law enforcement risk management topics. The Police Department will have the ability to customize the Daily Training Bulletins to address agency - specific topics. 25A -1 Agreement with Lexipol LLC September 16, 2013 Page 2 The first year subscription fee is $17,950. The annual Daily Training Bulletin fee is waived during the first year subscription period. Annual subscription renewal fees for the second and third years of this agreement will be $33,200 per year ($6,200 annual update fee and $27,000 annual Daily Training Bulletin Fee). At the conclusion of the three year agreement term, the total amount paid to Lexipol will be $84,350. FISCAL IMPACT Funds for this agreement are available in the Criminal Activity — DOJ Contract Services account (no. 02614450 62300). Carlos Rojas Acting Chief of Police Police Department APPROVED AS TO FUNDS AND ACCOUNT: mck%�'rl . t , Francisco Gutierrez Executive Director Finance and Mgt. Svcs. Agency 25A -2 THIS ONLINE SUBSCRIPTION AGREEMENT, made and entered into this 16`x' day of September, 2013 by and between Lexipol, LLC., a Delaware Limited Liability Company (hereinafter "Contractor "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a Contractor having special skill and knowledge in the field of providing an online subscription to standard yet customizable law enforcement policy manual along with daily training bulletins. B. Contractor represents that Contractor is able and willing to provide such services to the City. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Contractor shall provide access to the law enforcement policy manual and daily training bulletins as described in the proposal attached hereto as Exhibit "A" and pursuant to the terms and conditions for use of subscription material attached hereto as Exhibit `B." COMPENSATION a. (1) City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. The total sum to be expended under this Agreement, shall be $84,350. For each year, the rates and charges are as follows: (a) $17,900 subscription fee for the first year; (b) $6,200 annual update fee and $27,000 daily training bulletin fee billed annually beginning the second year. 3. TERM This term of this Agreement shall be for an initial three (3) year period, unless terminated earlier in accordance with Section XIII of the terms and condition set forth in the attached Exhibit "A." 4. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or 25A -3 mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Facsimile (714) 647 -6956 With courtesy copies to: (mil Chief of Police Santa Ana Police Department City of Santa Ana 60 Civic Center Plaza (M -97) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 245 -8007 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647 -6515 To Contractor: Lexipol, LLC. 6B Liberty #200 Aliso Viejo, California 92656 Facsimile (949) 484 -4443 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, any communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 5. EXCLUSIVITY AND AMENDMENT This Agreement including the attachments (Exhibits A and B) represent the complete and exclusive statement between the City and Contractor, and supersedes any and all other 25A -4 agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terns and conditions hereof, shall not bind or obligate Contractor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 6. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney M Laura A. Rossini Assistant City Attorney RECOMMENDED FOR APPROVAL: CARLOS ROJAS Acting Chief of Police 3 25A -5 CITY OF SANTA ANA CARLOSROJAS Acting City Manager LEXIPOL, LLC. in Tax. ID # Exhibit A 25A -6 Exhibit B 25A -7 JPj -4 Leap01 Predictable is Preventable PROPOSALFOR Santa Ana Police Department LAW ENFORCEMENT POLICY MANUAL & DAILY TRAINING BULLETIN SERVICES June 7. 2013 Lexipol, LLC 6B Liberty, Suite 200 Aliso Viejo, California 92656 949.484.4444 www.lexipol.com ©1995 — 2013 Lexipol, LLC. All Rights Reserved 25A -8 Predictable is Preventable Santa Ana Police Department — California Law Enforcement Policy Manual & Daily Training Bulletins Based on 325 full -time sworn Year 1 • 1st Year Subscription Fee — $17,950 (This fee includes all development tools and policy updates. Daily Training Bulletins are included at no charge during the remainder of the 1 st Year Subscription period, following final adoption of the Policy Manual. The DTB free trial period expires at the end of the 1st Year Subscription period, at which point it is an optional paid service.) Year 2 (to be billed annually beginning Year 2) • Annual Update Fee - $6,200 (Billed Year 2— includes all web -based tools, Forum, and Policy Manual updates) • Daily Training Bulletin Fee - $27,000 (Billed Year 2 — Optional— includes 365 unique scenario -based exercises) Lexipol - Proposal for Santa Ana Police Department © 1995 -2013 Lempol, LLC. All Rights Reserved 25A -9 Predictable is Preventable June 7, 2013 Lexipol appreciates the opportunity to propose our Policy Manual and Daily Training Bulletin service to the Santa Ana Police Department. Our goal is to help our clients successfully face the evolving challenges in the world of public safety. Lexipol provides clear benefits in terms of managing, disseminating and archiving your agency's policies and training records. Agencies that adopt our policy subscription service have clear, effective policy manuals that reflect the true values and policing philosophy of their agency. Lexipol offers the most comprehensive solution for managing policy in law enforcement agencies. We are often recognized for our proactive approach in decreasing liability exposure backed by Lexipol's technical and legal expertise. The Lexipol system has helped public safety agencies reduce risk and stay ahead of litigation trends, while communicating clear and concise policy guidance to their employees. Policy Manual Development: Lexipol has created policy content that is specific to federal and to California state law. This "master" content can then be customized by the Santa Ana Police Department. Your agency is prompted through interactive online software to develop Policy Manuals standardized with regulatory requirements yet customized to the agency's unique mission, philosophy and resource availability. The proprietary software allows efficient and accurate generation of a draft version of the manual from an online questionnaire. Daily Training Bulletin Component: The training component consists of Lexipol's Daily Training Bulletins (DTBs). These give the Santa Ana Police Department the ability to train and test employees on its policies and procedures. The DTBs consist of a brief scenario illustrating realistic circumstances officers typically encounter. Each scenario is linked to a policy, which puts the policy in an operational context and helps sworn personnel understand why the policy exists and how it applies to their daily tasks. The DTB system includes a brief test, which the officer must pass to be credited with the DTB training. The Santa Ana Police Department will receive DTB packages (via email) monthly, with each bulletin linked to a current policy. Your Department staff will also have the ability to create their own customized DTBs in the Lexipol system as they identify areas that require additional training. Lexipol's DTB training component allows the Santa Ana Police Department to track its training by officer, topic or policy. This information is archived electronically and can be produced immediately for current reports, or retrieved years later, thereby providing significant litigation and administrative support. Lexipol - Proposal for Santa Ana Police Department © 1995 -2013 Lempol, LLC. All Rights Reserved 25A -10 Unique Qualifications: Lexipol has established a unique set of risk management tools for law enforcement agencies by integrating agency- specific, customized policy manuals with the Daily Training Bulletin service. The Lexipol policy and training system has helped public safety agencies throughout California and the country, reduce risk and stay ahead of litigation trends, while at the same time communicating clear and concise policy guidance to their employees. Proprietary System and Tools: More than 140 core policies based on federal standards and California statutes and case law, regulatory actions, and law enforcement best practices are available with our intuitive tool set. Your agency has full editing capability to customize the manual to reflect your agency's mission and philosophy. Our color -coded key reflects the origin of the content and its relative importance. The final product, which is not color- coded, is a professional, well organized, easy -to -read manual online in Lexipol's Knowledge Management System and in hard copy. There is no other system in the nation that incorporates all of these features at affordable annual subscription rates. Updates: Lexipol provides regular updates in response to legislative mandates, case law and evolution in best practices. We also provide client alerts in response to precedent- setting court decisions or events that call for immediate changes to policy. These updates would be customized for the Santa Ana Police Department and your mission. Adaptability: Our clients range from one to 2,500 sworn personnel and include municipal police departments, county sheriff offices, county district attorney offices, port police, probation departments, school district and university police, tribal police, state regulatory and law enforcement agencies, federal agencies and military agencies. Scale: Over 1,500 public safety agencies serving more than 86,000 officers in 15 states use the Lexipol system. Our subscriber base is one of the largest private networks of law enforcement policy collaborators in the nation. Archiving: Each version of your manual is archived on the Lexipol system. This is an invaluable resource in defense litigation or personnel matters that call for authenticated copies of policy or training records years after an incident. Cost Effective Development: A fully burdened officer can cost an agency upward of $100K in salary and benefits. Most small to mid -sized agencies assign one officer to update and maintain their policy manual, which can consume 50% to 80% of the officer's time. A typical officer does not have the experience or resources to translate statutes, case law and emerging trends into usable, defensible policy in patrol, investigations, traffic, property, custody or personnel. At Lexipol we proactively do this work for you, typically at less than 5% of the cost of an officer. Ready Access: Many agencies describe their pre - Lexipol policy system as convoluted, reactive and not serving the agency well. Their employees have trouble accessing the policy system because the documents are contained in disparate silos of information. Policy Training: The integrated Daily Training Bulletin component is a customized, scenario - based daily training program that links directly to the policy manuals. The Daily Training Bulletin program is standardized, verifiable, realistic, and ongoing training that links directly to your Lexipol - Proposal for Santa Ana Police Department © 1995— 2013 LeApol, LLC. All Rights Reserved 25A -11 policy manual. Archiving of training records provides verifiable evidence of achieving specific learning objects. Lexipol is uniquely qualified to provide our Policy Manual and Daily Training Bulletin service to the Santa Ana Police Department. For the past 10 years, we have created proven, court- tested law enforcement policy. Actuarial data shows Lexipol's unique, cost - effective policy and training system reduces the numbers of claims and claims paid — typically by 69% over previous years. We have a 100% defense record of our policies in courtrooms across America. In addition, Lexipol provides a highly cost - effective model and powerful, easy -to -use web -based tools that support your agencies and provide: • Policies and procedures that reflect up -to -date, applicable industry standards and best practices; • Customized content for the Santa Ana Police Department; • Daily scenario -based training that reinforces your approved policies and procedures; • Regular updates to your policies and procedures as statutes, case law, and regulations change; Lexipol is America's leading source of risk management resources for public safety organizations, delivering its services through a unique, web -based development system and an integrated training component. Training Support: The Santa Ana Police Department policy administrators may attend any and all online training sessions (which can be repeated as many times as necessary): 1) Knowledge Management System (KMS) Training — which is your portal for policy editing and development and 2) Project Management session — which will introduce your Policy Manager to the Lexipol Electronic Client Toolkit (ECT) and the Project Management Guide (PMG). Our Project Management Guide and Electronic Toolkit are included in the Lexipol subscription fee, and will aid your agency in completing your manual in a timely fashion. Our Project Management Guide provides tips and guidelines on how to achieve this goal. The Electronic Toolkit contains a couple of "best practices' examples that may give your agency some ideas as to how others have implemented the manual. Our Program Development and Customer Service teams are also available throughout the development process to provide guidance and answer questions. Lexipol History Lexipol was founded in 2003 by merging Bruce Praet's acclaimed policy manual work with Gordon Graham's innovative "Five Pillars of Success' approach to risk management. Today, Lexipol is comprised of an all -star team of public safety veterans. Former executives of law enforcement and fire services lead the major divisions of the company. In fact, the majority of all Lexipol employees are former or active duty public safety members. This confluence of real world experiences in the areas of law, public service, and business gave rise to Lexipol's unique system of risk management tools. Lexipol - Proposal for Santa Ana Police Department © 1995 -2013 Lexipol, LLC. All Rights Reserved 25A -12 Lexipol LLC h66 Liberty, CA Aliso Viejo, CA 92656 Tel: 949 - 484 -4444 Lexipol Fax: 949-484-4443 TERMS AND CONDITIONS FOR USE OF SUBSCRIPTION MATERIAL I. ACCEPTANCE OF TERMS The services that Lexipol, LLC, a Delaware Limited Liability Company (hereinafter "Lexipol "), provides to Agency, Customer, User, Purchaser are subject to the following Terms and Conditions of Use. These Terms and Conditions are valid through the subscription period of one year. Lexipol reserves the right to update /change the Terms and Conditions of Use on the renewal date of the subscription agreement period whereas those updates /changes on the Terms and Conditions of Use will be valid for the new subscription period. This document represents the most current version of the Terms and Conditions of Use. Any changes or updates can be reviewed by clicking on the "Terms and Conditions of Use" hypertext link located on Lexipol's Forum page once Agency becomes a subscriber. AGENCY MUST AGREE WITH THESE TERMS AND CONDITIONS OF USE BEFORE AGENCY CAN USE THIS ONLINE PLATFORM. II. DESCRIPTION OF SERVICES Through Lexipol's online platform, Lexipol provides Agency with access to the Lexipol Knowledge Management System. Lexipol provides numerous subscriptions to this system, each with varying services depending on the level of subscription. The Agency is subscribing to the services indicated on the data page included on the last page of this agreement. III. MEMBER ACCOUNT, PASSWORD AND SECURITY If any of the Services provided to Agency by this online platform requires Agency to open an account, Agency must complete the registration process by providing Lexipol with current, complete and accurate information as prompted by the applicable registration form. Agency will also be able to change the user name and password on the account after initial login. Agency is entirely responsible for maintaining the confidentiality of Agency's password and account. Agency is entirely responsible for any and all activities that occur under Agency's account. Agency agrees to notify Lexipol immediately of any unauthorized use of Agency's account or any other breach of security. Agency may not use any other Agency's account at any time, as Agency's password and user name are for the purchaser's sole use. Purchasers of content through this online platform are not permitted to share, distribute, sell, or otherwise transfer their password to other individuals. Significant or unusual use of a single user name and password (including, but not limited to, significant use of a single user name and password on multiple computers) could result in suspension of that password. Neither Agency nor its administrators or users may permit use of user names and passwords by third parties. Neither Agency nor its users may provide access to any of the services to any third party, or any other user not authorized to access services provided pursuant to this agreement. Agency Administrator may be granted administrator passwords permitting access to Lexipol Forum Pages, Release Notes and Guide Sheets; Agency Administrators may not permit use of administrator user names and administrator passwords by any other user. Copyright 2013 © Lexipol, LLC 1995 -2013 25A -13 V05.13.13 Agency, administrators and users are responsible for maintaining the confidentiality of user names and passwords assigned to them and for restricting access to Lexipol services by unauthorized users. Unauthorized use of user names and passwords could result in suspension of access to Lexipol services. IV. NOTICES Any notice to be given to the parties shall be sent to Lexipol at the address above or if to the Agency to the contact person registered as the authorized signer. V. PAYMENT TERMS Agency agrees to pay the current fees for all services purchased using Agency's user name and password. All services are payable in full within thirty (30) days from invoice date. Any amounts past sixty (60) days from due date shall accrue interest at one (1 %) percent per month for past due accounts. Invoices are sent thirty (30) days previous to the subscription start date and anniversary date thereafter. All payments are applied to the oldest balance. VI. PRIVACY POLICY Lexipol shall keep all information Agency provides confidential and private unless required to provide information in accordance with an order from a court of competent jurisdiction. Agency acknowledges Lexipol may provide view only access and summary information to the Agency's affiliated Risk Management Authority, Insurance Pool or Group if they have provided an economic subsidy. Because security is important to Lexipol and our users, Lexipol will always make reasonable efforts to ensure the security of Lexipol's systems. Lexipol employs security systems to protect the information Lexipol receives from Agency's users. The Lexipol Policy online platform uses Secure Socket Layer (SSL) Protocol for browsers supported by Lexipol application(s). SSL encrypts information as it travels between customer and Lexipol. Please be aware that Internet data transmission is not always 100% secure and Lexipol cannot warrant that information Agency transmits utilizing Lexipol's Service or online platform is 100% secure. VII. APPLICATION OF LAW AND JURISDICTION Agency agrees that any claim, action, or proceeding arising out of these Terms and Conditions of Use, or Agency's use of the online platform, shall be governed by and construed in accordance with the laws of the State of California applicable to contracts to be wholly performed therein, and any action based on or alleging a breach of this Agreement must be brought in a state or federal court in California. This Agreement shall be governed and interpreted pursuant to the laws of the State of California, United States of America, notwithstanding any principles of conflicts of law. VIII. INDEMNIFICATION Agency understands that Lexipol and its agents, employees and representatives have developed policy guidelines and content in a good faith effort to comply with all applicable statutes, case law and industry standards in effect at the time such policies were approved and adopted by Agency. Agency acknowledges that Lexipol shall not be responsible for updating these policies to adhere to subsequent changes in the law or other conditions and those changes and updates will only be provided by Lexipol as a part of an annual subscription. While Lexipol has made a good faith effort to develop all policies and training in accordance with existing law and standards, Agency acknowledges that neither Lexipol nor any of its agents, attorneys, employees or representatives are obligated to provide legal representation, defense, or indemnification for any litigation in which said policies are subject to challenge. Copydght 2013 © Lempol, LLC 1995 -2013 25A -14 V05.13.13 To the fullest extent permissible under applicable law, and except as otherwise herein, Lexipol and /or other persons creating or transmitting the information and the service will in no event be liable to Agency or anyone else for any direct, indirect, consequential, incidental, special, exemplary, or punitive damages for the information, even if Lexipol or other persons creating or transmitting the information or the service shall have been advised of the possibility of such damages. To the fullest extent permitted by law, Lexipol or other persons creating or transmitting the service and the information shall have no responsibility or liability to Agency or anyone else under any tort, contract, negligence, strict liability, products liability or other theory with respect to any subject matter of this agreement or terms and conditions of use thereto with the exception of liability resulting from a finding of gross negligence, and /or willful and wanton conduct of Lexipol. IX. COPYRIGHT Agency expressly acknowledges and agrees that each and every policy provided by Lexipol including, but not limited to, all updates, revisions to Lexipol content, Supplemental Policy Publications and /or Procedure Manuals, and Daily Training Bulletins are expressly created for Agency's exclusive use. Agency further agrees that Lexipol owns the copyright to all content created by Lexipol which is incorporated into Policy Manual(s),content created by Lexipol which is incorporated into Supplemental Policy Publications and /or Procedure Manuals, Policy and /or Procedure update content and Daily Training Bulletins (hereinafter "Lexipol Content "). Agency further agrees that any content within an Agency Policy Manual prepared by Agency, based in whole or in part on content created by Lexipol, or based on any Supplemental Policy Publications and /or Procedure Manuals, and Daily Training Bulletins copyrighted by Lexipol shall be derivative works subject to the copyright of Lexipol. Agency may not copy, republish, lend, modify, distribute, post on servers, transmit, redistribute, display, in whole or in part, by any means electronic or mechanical, or by any information storage and retrieval system, for commercial purposes, any Lexipol Content or derivative works thereof. Agency may not copy, republish, lend, modify, distribute, post on servers, transmit, redistribute, display, in whole or in part, by any means electronic or mechanical, or by any information storage and retrieval system, to any third party agency or company, regardless of commercial purpose or compensation, any Lexipol Content or derivative works thereof. Agency may not copy, republish, lend, modify, distribute, post on servers, transmit, redistribute, display, in whole or in part, by any means electronic or mechanical, or by any information storage and retrieval system, to any third party which provides services comparable to the services provided under this agreement in competition with Lexipol, regardless of commercial purpose or compensation, any Lexipol Content or derivative works thereof. Agency may not copy, republish, lend, modify, distribute, post on servers, transmit, redistribute, display, in whole or in part, by any means electronic or mechanical, or by any information storage and retrieval system, to effect importation into any third party Knowledge /Content Management Service which provides services comparable to the services provided under this agreement in competition with Lexipol, regardless of commercial purpose or compensation, any Lexipol Content or derivative works thereof. Nothing in this statement is intended to prohibit or restrict Agency from access and reproduction for department functions and providing any policies contained within the Policy Manual(s) pursuant to and authorized by a request under the Public Records Act, pursuant to Court order or any other lawful process. Nor is there intent to restrict Agency from use of any content created independently by agency and included in Lexipol's knowledge management systems. The Lexipol Forum Pages, Release Notes and Guide Sheets, (which are provided under the Policy Manual Subscription) are copyrighted by Lexipol. Agency may not copy, republish, lend, modify, V05.13.13 Copyright 2013 © Lexipol, LLC 1995 -2013 25A -15 distribute, post on servers, transmit, redistribute, display, in whole or in part, by any means electronic or mechanical, or by any information storage and retrieval system, the contents of Lexipol Forum Pages, Release Notes and Guide Sheets to any third party for any purpose without prior written permission of Lexipol. Agency is hereby given permission by Lexipol to reproduce any or all of the contents of Policy Manual(s), Supplemental Policy Publications and /or Procedure Manuals, Policy and /or Procedure update content and Daily Training Bulletins for its internal use. Agency is hereby given permission by Lexipol to prepare derivative works based on any or all of the contents of Policy Manual(s), Supplemental Policy Publications and /or Procedure Manuals, Policy and /or Procedure update content and Daily Training Bulletins for its internal use. Subject to the provisions of this Section IX, Agency shall have a perpetual right and license to use all materials provided by Lexipol for internal use under this Agreement, and all derivative works based on such materials. X. DISCLAIMER OF WARRANTIES The service and all information is provided "as is" without warranties, express or implied, or representations of any kind whatsoever. There shall be no warranties of merchantability, fitness for a particular use, non - infringement of proprietary rights, enjoyment of the information or service, system integration, or accuracy of the information. To the fullest extent permitted by law, Lexipol disclaims any warranties for the security, reliability, timeliness, and performance of the information and the service. The entire risk as to satisfactory quality, performance, accuracy and effort is with Agency. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to Agency insofar as they relate to implied warranties. In those jurisdictions Lexipol shall use its best efforts, including industry standards of care, to insure satisfactory quality, performance and accuracy. XI. NON - WAIVER AND SEVERABILITY Lexipol's failure to exercise any right or provision of this Agreement shall not constitute a waiver of such right or provision. If a court of competent jurisdiction holds any provision of this Agreement to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and agree that the other provisions of this Agreement remain in full force and effect. XII. POLICY ADOPTION The Agency hereby agrees and certifies that any and all policies developed and provided by Lexipol and its agents, employees and representatives have been individually reviewed, customized and adopted for the exclusive use of the Agency. It is further acknowledged and agreed that Lexipol and its agents, employees and representatives shall not be considered "policy makers' in any legal or other sense and that, upon acceptance of the policy manual(s) and execution of this Agreement, the chief executive of the Agency for all purposes be considered the "policy maker" with regard to each and every policy contained in said manual. XIII. TERMINATION This Subscription Agreement may be terminated at the annual anniversary date of the subscription period by written notice to the other party at least 30 days preceding the subscription anniversary date. Copyright 2013 © Lempol, LLC 1995 -2013 25A -16 V05.13.13 Agency is purchasing the following service(s): POLICY MANUAL SUBSCRIPTIONS: Law Enforcement Policy Manual Custody Policy Manual Fire Policy Manual — includes DTBs Please complete all fields and place N/A where applicable Law Enforcement Daily Training Bulletins (DTB) Custody Daily Training Bulletins (CDTB) National Daily Training Bulletins (NDTB) (Chief /Sheriff Name) (Title) (Chief /Sheriff Email) (Chief /Sheriff Direct Phone) (Custody Facility Manager Name) (Title) (Custody Fac. Mgr Email) (Custody Fac. Mgr Direct Phone) (Name of Agency as you want it to appear on the manual) (Agency Street Address) (City) (State) (Zip Code) (County) (Custody Street Address — If different) (City) (State) (Zip Code) (County) (Billing Address if different from above) (City) (State) (Zip Code) (Agency Phone) (Fax) (Email) (Risk Management Group /Insurance Pool) (Accreditation Agency) (No. of Authorized Sworn Officers) (If Custody— No. of Beds) (Agency Fiscal Year End) (Agency Website) (Policy Primary User Full Name) (Title) (Policy Primary User Phone) (Policy Primary User Email) (Custody Primary User Full Name) (Title) (Custody Primary User Phone) (Custody Primary User Email) (Policy Unique User ID number for system access; 2 -5 digits i.e. badge number, employee number) (Custody Unique User ID number for system access; 2 -5 digits i.e. badge number, employee number) The subscription agreement is authorized and approved bv: (Name of Authorized Signer) (Title) (Email, Authorized Signer) (Phone, Authorized Signer) Authorized Agency Signature Date Please return all rive (5) pages via fax, email or send to: Fax: 949.484.4443 - Email: contracts(a)lexlool.com Send: Lexipol LLC, 6B Liberty, Suite 200, Aliso Viejo, CA 92656 V05.13.13 Copyright 2013 © Lexipol, LLC 1995 -2013 5 25A -17 25A -18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: AGREEMENT WITH EVAN BROOKS ASSOCIATES FOR PROJECT MANAGEMENT AND AJ)VOCACY ON THE STREETCAR PROJECY CITY RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1' Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Evan Brooks Associates, subject to nonsubstantive changes approved by the City Manager and City Attorney, to provide project management and advocacy services for the Santa Ana - Garden Grove Fixed Guideway (Streetcar) project in an amount not to exceed $75,000. DISCUSSION The recommended action will assist the City in guiding the Streetcar Project during the remaining critical steps to deliver the environmental certification and to help build consensus for the selection of the Locally Preferred Alternative (LPA). Ongoing project management is essential to project delivery, especially now that the original consulting agreement with Cindy Krebs Consulting, Inc. (CKC), has expired. The firm of Evan Brooks Associates has the transportation and land -use planning background, and the staff to handle the daily and weekly tasks. The firm's principal, Hal Suetsugu, is experienced with transportation projects and regional consensus building. The contract is on a not -to- exceed format, whereby the City will only be charged for actual hours worked; the services delivered under this agreement will be closely monitored by the Public Works Director in consultation with the City Manager when appropriate. On May 12, 2008, the OCTA Board allocated $5.9 million to Santa Ana for the modern streetcar transit concept for detailed planning, preliminary design, financial planning, and environmental work. Additionally, on May 18, 2009, the City approved a contract with CKC to provide transit manager consultant services for this project. Work on the environmental documentation and alternatives analysis has been ongoing. The project involves a number of cities and, to be successful, will require both local and regional support. For a variety of reasons, the preparation of the environmental and alternatives analysis has taken longer than originally anticipated and the agreement with CKC expired on June 30, 2013. When a possible extension was discussed with the principal of the firm, the City was informed that other professional commitments had been made and CKC's services were no longer available. As a result, staff contacted OCTA and other resources to identify other firms that could provide these transit project management services. The search culminated with the proposal from the firm of Evan Brooks Associates. 25B -1 Agreement with Evan Brooks Associates for SA -GG Fixed Guideway Project Management Services September 16, 2013 Page 2 The proposal scope has been incorporated in the agreement (Exhibit 1). The billing rates are very reasonable and the effort, in terms of hours, will bridge the existing project management gap. The services have been proposed in three phases: a) Environmental Documentation Certification and Alternatives Analysis, b) Public and Government Outreach, c) Regional Outreach and Project Advocacy. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The proposed contract will have a limit of $75,000. Funds for this project are available in the Traffic Signal Maintenance account (No. 02917620). APPROVED AS TO FUNDS AND ACCOUNTS: Edwin "William" Juez, P.E. Francisco Gutierrez Interim Executive irector Executive Director Public Works Agency Finance & Management Services Agency WG Exhibit: 1. Consultant Agreement 25B -2 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this 16`h day of September, 2013 by and between Evan Brooks Associates, a California corporation, (hereinafter "Consultant "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of strategic planning for transportation projects. B. Consultant represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall provide project management services for the Santa Ana Fixed Guideway Project ( "Project ") to guide the certification of the environmental documentation, and to select a local preferred alternative (LPA), as set forth in Exhibit A, attached hereto and incorporated by this reference. Consultant may provide outreach services at the written request of the Executive Director of Public Works or his designated representative. Additionally, Consultant shall administer City's consultant contracts related to the Project to ensure the services and deliverables comply with the guidelines of the City's funding partners and regulatory agencies, including but not limited to OCTA, and the Federal Transit Administration (FTA). Consultant shall review deliverables submitted by consultants, then forward to City staff. Consultant shall meet with the Executive Director of Public Works on a regular basis to keep him informed regarding the progress of the Project, issues which may arise to threaten the schedule or budget, and to receive direction regarding City's concerns, interests and vision regarding the Project. Consultant shall not take a position on any policy without first obtaining the direction of the Executive Director. Consultant shall represent the City at meetings with OCTA, FTA and other regulatory agencies; develop written correspondence including memos, letters, staff reports, meeting minutes, agendas and presentations to the City Council and OCTA Board as necessary to keep the City, its funding partners and regulatory agencies informed of the progress of the Project; and provide written and oral progress reports to the Project team, including consultants and the Executive Director and his staff. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit B. Consultant shall ensure that the task hours comply with the proposed hourly effort. The total sum to be expended under this Agreement shall not exceed $75,000 during the term of this Agreement. EXHIBIT 1 25B -3 b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2014, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Public Works Agency and the City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, ajoint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. 25Y -4 d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. section: The following requirements apply to the insurance to be provided by Consultant pursuant to this (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be famished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. (iv) Certificates and renewals shall be sent to: Public Works Agency Jason Gabriel 20 Civic Center Plaza (M -36) Santa Ana, CA 92702 f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary 258 -5 and/or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE With the exception of insurance certificates and renewals covered by Section 5.e.iv, above, any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax 714- 647 -6956 With courtesy copies to: and Public Works Agency — Design Engineering Jason Gabriel City of Santa Ana 20 Civic Center Plaza (M -36) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647 -5635 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647 -6515 To Consultant: Evan Brooks Associates Hal Suetsugu 215 West Seventh Street, Suite 610 Los Angeles, California 90014 Fax 888- 421 -8798 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication 259 -6 shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 259 -7 14. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 258 -8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: Edwin "William" Galvez, P.E. Interim Executive Director Public Works Agency 259 -9 CITY OF SANTA ANA KEVIN O'ROURKE Interim City Manager EVAN BROOKS ASSOCIATES HALSUETSUGU Vice Principal EXHIBIT A Scope of Work Project Management — Santa Ana Fixed Guideway The City of Santa Ana requires professional assistance to guide the environmental certification and selection of a locally preferred alternative (LPA)for the Santa Ana Fixed Guideway Project (hereinafter "Project "). Evan Brooks Associates (EBA) will provide the following services: a. In cooperation with the Executive Director, manage and oversee the City of Santa Ana consultant team lead by Cordoba Corporation, to develop and deliver the environmental certification and select a an LPA for Santa Ana's Fixed Guideway Project. b. Consultant shall: 1. Develop and maintain the schedule for the Project environmental certification. Prepare updates for presentation as necessary to the Executive Director or his designee. 2. Receive and implement direction regarding the Project from the Executive Director or his designee. 3. Review and evaluate OCTA and FTA processes to ensure the consultant team submittals comply with statutory, regulatory and administrative requirements. Consultant shall review and provide comments on documents produced by the technical team before they are forwarded to OCTA and /or FTA, in addition to tracking key deliverables and implementation schedules and issues. 4. In cooperation with the Executive Director, coordinate Project team meetings required to deliver the environmental certification and to select the LPA, including: • Discuss Project status • Identify issues • Develop solutions • Provide oversight and direction for the Project • Prepare meeting minutes. 5. Attend the Orange County Transportation Authority (OCTA) Board of Directors and Transit Committee meetings in relation to the Project, and prepare meeting summaries for each. Meeting summaries shall include decisions approved, new issues presented, responsible personnel and timelines for completion of tasks /deliverables. 6. As necessary, attend meetings of the Mayor and City Council to provide information and status updates on the Project environmental certification and LPA. Receive and review for completeness and accuracy, consultant deliverables, prior to submittal to OCTA, CalTrans, FTA and /or other regulatory or funding agencies. 259 -10 W CONSULTING FEES Our firm's fees include time and materials charges directly related to client services. This includes hours for work tasks, project management and coordination services such as staff meetings and public presentations, and project direct expenses. The following Table provides a breakdown of the Firm's hourly rate for consulting work. These rates are subject to change. REIMBURSABLE HOURLY BILLING RATES Project Principal $160 Project Manager $140 Project Planner $120 Environmental Specialist $100 Grants Analyst $90 Research Analyst $80 Graphics /Mapping $70 Administrative Support $55 EBA also invoices its clients for the full cost of out -of- pocket expenses directly related to project assignments under contract. The following page provides an estimated breakdown of hourly effort by staff for the proposed services: 25b -11 A W PROPOSED HOURLY EFFORT 258 ° -12 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: AMEND AGREEMENT WITH EDWARD K. AGHJAYAN FOR ENERGY CONSULTING SERVICES 1 C Y MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an amendment to the agreement with Edward K. Aghjayan, subject to nonsubstantive changes approved by the City Manager and City Attorney, for energy consulting services, in an amount not to exceed $75,000. DISCUSSION This recommended action will allow the City to continue to benefit from opportunities for energy efficiency and the resulting cost reductions. Since 2008, the City has participated in an Energy Leader Partnership (Partnership) with Southern California Edison to bring energy efficiency programs to Santa Ana residents, businesses, and City facilities. The current Partnership cycle continues through 2014 and a future cycle beyond 2014 is in development. Edward K. Aghjayan, an energy consultant with experience in managing several energy programs, has been valuable in identifying partnership opportunities and community programs, including the development of energy efficiency kits delivered to 75,000 single - family, multifamily, and mobile home residences; implementation of the Small Business Direct Install Program provided to 198 businesses in the Federal Empowerment Zone; and delivery of the Nonresidential Direct Install Program to over 3,200 businesses. In January 2012, the City Council approved a $35,000 agreement that provided for Mr. Aghjayan's services to the Partnership and in support of other Public Works Agency energy and sustainability projects through June 30, 2013. Staff recommends approval of an amendment to this agreement to allow for continued assistance in the development and implementation of energy efficiency programs and to address various energy - related issues. The amendment extends the term to June 30, 2016, and increases the total compensation to $110,000. 25C -1 Agreement for Energy Consulting Services September 16, 2013 Page 2 FISCAL IMPACT Funds are budgeted in the Public Works Administration Contract Services- Professional account (No. 10117601- 62300). Edwin "William" z, P.E. Interim Executive Director Public Works Agency WG /CK APPROVED AS TO FUNDS AND ACCOUNTS: �t LISI�N Y�?.A o ) ,-k, Francisco Gutierrez Executive Director Finance & Management Services Agency Exhibit: 1. Amendment to Agreement with Edward K. Aghjayan 25C -2 FIRST AMENDMENT TO CONSULTANT AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT, is entered into this 16`h day of September, 2013, by and between Edward K. Aghjayan (hereinafter "Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The parties entered into Agreement A- 2012 -007, dated January 17, 2012, hereinafter "said Agreement', by which Consultant has assisted in the identification, evaluation, design, and implementation of energy efficiency opportunities and community programs, as well as advising City staff regarding energy related issues and developments. B. In accordance with the terms and conditions of said Agreement, the parties now wish to extend the term and add compensation to pay for services provided during the extended term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: 1. Section 3.a., COMPENSATION, shall be amended to increase compensation by $75,000.00, to pay for the consulting services provided during the extended term. The total available for such consulting services shall not exceed $110,000.00, during the term of said Agreement. 2. Section 4, TERM, shall be amended to extend the termination date to June 30, 2016, unless terminated earlier in accordance with said Agreement. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. /// /// *A211:31151 25C-3 25C -3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA CARVALHO City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: EDWIN "WILLIAM" GALVEZ, P.E. Interim Executive Director Public Works Agency CITY OF SANTA ANA KEVIN O'ROURKE Interim City Manager CONSULTANT EDWARD K. AGHJAYAN Tax ID# 25G -4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: AGREEMENT WITH DOWNTOWN INC. AND SANTA ANA BUSINESS COUNCIL FOR 2013 BID ASSESSMENT FUNDS PROGRAMMING f 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 the Clerk of the Council to execute the attached Operating Agreements (Exhibits 1 and 2) with Downtown Inc. and the Santa Ana Business Council Inc., respectively for the programming and distribution of the Downtown Santa Ana Business Improvement District (BID) assessment funds for 2013. DISCUSSION At its meeting of July 1, 2013, the City Council conducted a public hearing to consider all protests regarding the intention to levy a 2013 assessment for the Downtown Santa Ana Business Improvement District. Since a majority protest was not received, the City Council adopted a resolution confirming the 2013 Santa Ana Downtown BID Assessment Report and levied the assessment for 2013. In a Settlement and Release Agreement with Downtown Inc., it was agreed upon that should the BID be reactivated, Downtown Inc. would receive 50% of the BID revenues and the remaining 50 percent would be distributed to Santa Ana Business Council Inc. for the promotion and marketing of the Downtown area. To administer these activities, the City will need to execute an Operating Agreement ( "Agreement ") with each business association. The Agreements contain provisions to ensure proper administration and distribution of the funds. Provisions are included for items such as the annual budget, financial record keeping, fund distribution, and board composition and meeting requirements. One of the requirements of the Agreement is that both organizations must conduct their meetings in accordance with the Ralph M. Brown Act. To comply with this legal provision, City staff will be providing the necessary training to both Downtown Inc. and Santa Ana Business Council Inc.'s Board of Directors. According to the budgets summary in the 2013 BID Assessment Report (Exhibit 3), a majority of the BID funds will be spent on marketing and promotions of the downtown area through special events and advertising. Given that this is the first year of the BID and both organizations have already begun incurring expenses for budgeted events, the Agreement provides for $20,000 in 2501-1 BID Operating Agreements September 16, 2013 Page 2 upfront funding to each organization for this first year only, subject to subsequent receipt of verifiable invoices /receipts. In previous years, the operating fund of the BID had a prior year carry forward amount that could be utilized. Upon receipt of city- approved invoices for all other expenses, the City will reimburse the two organizations per the terms of the Agreement. City staff will work closely with each organization to establish a process to ensure that timely and accurate receipts will be submitted for reimbursement. The terms of these Operating Agreements commence on September 17, 2013 and terminate on September 17, 2016, unless terminated sooner due to any violations of the provisions in the Agreement, or if the BID is not approved in any given year. The Agreements will be renewed automatically in one year renewal terms, unless either party gives at least two months' notice of termination. It is still anticipated that both organizations' budgets will be approved by the Community Redevelopment and Housing Commission and then by City Council for the subsequent levy of assessments in 2014 and 2015. FISCAL IMPACT There is no direct fiscal impact to the City associated with this action as Business Improvement Area revenues are transferred to the District accounts for use in accordance with its budget. J*q�;) - Nancy Fon , A Interim Executive Director Community Development Agency NF /MM /kg I Francisco Gutierrez Wo Executive Director Finance & Management Services Agency Exhibits 1. Operating Agreement with DTI 2. Operating Agreement with Santa Ana Business Council Inc. 3. Budgets Summary of 2013 BID Assessment Report 25D -2 EXHIBIT 1 OPERATING AGREEMENT This AGREEMENT made and entered into this 17`h day of September, 2013, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California, hereinafter referred to as "City," and Downtown Incorporated, Inc., a California non -profit corporation, hereinafter referred to as 'DTI." RECITALS A. Whereas the City Council of the CITY previously established a community management district (hereinafter the "CMD ") designated as the "Downtown Community Management District" (hereinafter the "DISTRICT "); and B. Whereas assessments were supposed to be levied annually against the assessable parcels in the DISTRICT commencing with Fiscal Year 2009 -2010 and continuing through Fiscal Year 2013 -2014; and C. Whereas the CITY was to use the assessments to contract for the administration of a program of improvements and activities in connection with the DISTRICT for Fiscal Years 2009 -2010 through 2013 -2014; and D. Whereas due to various reasons the City Council on February 4, 2012 repealed the entirety of the CMD and did not levy the DISTRICT assessment to fund the CMD services for calendar year 2013; and E. Whereas with the repeal of the CMD, several downtown merchants and property owners have expressed an interest in reactivating the Downtown Santa Ana Business Improvement Area (BID) so that they could continue to receive funding to promote the safety, maintenance, and overall economic stability of the downtown area; and F. Whereas the City Council agreed that if there was sufficient support by those businesses that would be impacted by assessments, that it would reactivate the prior Downtown Business Improvement Area which was established on February 6, 1984 pursuant to Ordinance NS -1715 (attached hereto and incorporated herein as Exhibit A) ; and G. Whereas the City Council further agreed in a Settlement and Release Agreement with DTI that, should the BID be reactivated, DTI would receive 50% of the BID revenues in any given calendar year and remaining 50% would be distributed to a new merchants' nonprofit group serving independently of DTI, subject to an operating agreement for each group; and H. Whereas the Santa Ana Business Council has emerged as the new merchants' nonprofit group that has expressed an interest in obtaining the other 50% of BID funds to be spent in 1 25D -3 furtherance of the overall economic stability of the downtown area consistent with the requirements of NS -1715; and I. Whereas the City Council has "reactivated" the BID by its approval of an assessment report for calendar year 2013 outlining the proposed budget and activities to be conducted in the downtown area; and J. Whereas a public hearing was held, and there being no majority protest against the approval of the assessment report and levy of the assessment; and K. Whereas the City and DTI under this Operating Agreement propose to (1) confirm that DTI will receive 50% of the assessments collected each calendar year for which an assessment is levied, (2) to provide that DTI's use of the assessment funds will be consistent with the requirements of NS -1715, generally, and the approved calendar year's assessment report specifically, (3) to provide for auditing of DTI BID Funds, and (4) ensure that DTI meetings are compliant with the Ralph M. Brown Act [Government Code Sections 54950, et seq]. WHEREFORE, and in consideration of their mutual and respective covenants and promises hereinafter set forth, and subject to the terms and conditions of this Agreement, the parties hereto do hereby agree as follows: ARTICLE 1 PRELIMINARY MATTERS § 1.01 Definitions As used in this Agreement, the following terns shall have the following meanings: (a) "City" means the City of Santa Ana, California. (b) "City Council" means the City Council of the City. (c) "City Manager" means the City Manager of the City or his/her designated representative. (d) "DTP' means Downtown Incorporated, Inc., a California nonprofit corporation. (e) 'Board" means the Board of DTI. (f) "Tenn" means three (3) years commencing on September 17, 2013 and terminating on September 16, 2016 unless terminated sooner due to any violations of the provisions of this Agreement or if a BID assessment is not approved in compliance with the Parking and Business Improvement Area Law of 1989 [Streets and Highways Code Sections 36500, et seq.]. The Term of this 2 25D -4 Agreement shall be automatically renewed in one (1) year Renewal Terms unless either party gives notice of termination at least two (2) months prior to the expiration of the Initial Term or any Renewal Term. § 1.02 Status of DTI (a) By its execution of this Agreement, DTI warrants that it is duly incorporated under the laws of the State of California and that true and correct copies of its Articles of Incorporation and Bylaws and a true and correct listing of DTI's officers and their terms of office, certified as such by DTI's Secretary, have been filed with the Clerk of the Council. (b) By its execution of this Agreement, City accepts and agrees to the organization of the DTI as set forth in the above said Articles of Incorporation and Bylaws. § 1.03 Compensation of DTI Board Members and Meetings (a) Meetings shall be held on a quarterly basis with more meetings called at the discretion of the DTI Board. When conducting meetings related to the Downtown Santa Ana Business Improvement Area members of the Board shall serve without compensation other than reimbursement for expenses incurred by them in the course of the performance of services for DTI when authorized by the DTI Board. (b) DTI shall conduct its meetings in accordance with the Ralph M. Brown Act; the number of board members for purposes of the Brown Act shall consist of _ board members, with board members serving as a quorum. § 1.04 Changes in Officers, Articles and Bylaws DTI shall notify the Clerk of the Council of any change in the membership of the Board and any change in the officers of DTI. Any amendment of DTI's Articles or Bylaws shall be filed with the Clerk of the Council. §1.05 City presentation at Meetings of DTI The City Manager shall be entitled to attend all meetings of DTI related to the BID and to participate in the discussions of the Board to the same extent as the members of the Board, and DTI shall assure that the City Manager is provided with reasonable advance notice of all meetings of DTI. Nothing herein shall be construed to provide the City Manager with any authority to make, second, or vote on motions, or to cause him to be counted for purposes of determining whether a quorum exists at meetings of DTI. 25D -5 §1.06 City Residents /Business Operators on the Board A majority of the Board shall be City residents or business operators. If the number of members who are City residents or business operators becomes less than a majority due to the death, resignation, or change of residence or business location, DTI shall not be in default under this section, provided, however, that the next member appointed to the Board shall be a City resident or business operator. ARTICLE 2 REPORTS AND RECORDS AND BID FUND TRANSFERS § 2.01 Annual Budget and ProLTram Report (a) No later than November First (I") of each year, DTI shall provide the City Manager with a copy of a detailed calendar year operating budget showing expected sources of revenue and the nature of all expected or proposed expenditures for the forthcoming calendar year and a report on the proposed programs to be undertaken by DTI in said calendar year. (b) The proposed budget shall be submitted to the City Council for approval subject to the procedures provided for in California Streets and Highway Code Section 36530 et seq. If the proposed budget is accepted by the City Manager, it shall be submitted to the City Council for approval, in whole or in part. If the proposed budget is rejected by the City Manager, the City Manager and DTI shall meet in good faith in an attempt to reach agreement on a budget. If they are unable to do so, the City Manager shall submit the DTI's proposed budget to the City Council for approval, in whole or in part. (c) DTI acknowledges that its proposed budget in any given calendar year will consist of 50% of all BID assessments collected from businesses subject to the Downtown Santa Ana Business Improvement Area as reflected in Ordinance NS -1715. (d) DTI further acknowledges that the use of all BID proceeds will be subject to the BID laws as currently exist and/or as may be modified in the future; and that expenditures of BID funds will be for the purposes identified in Ordinance NS -1715. (e) The City shall establish and maintain in its accounting system a trust fund account for the deposit of BID assessment monies collected together with a specific account activity code which shall reflect the deposit and expenditure reimbursement of BID assessment monies apportioned for use by DTI pursuant to subsection (c) above. (f) DTI shall have the option for the first year of this Agreement to request an advance of up to twenty thousand dollars ($20,000.00) from the City upon presentment of documentation indicating anticipated expenses in furtherance of the purposes identified in Ordinance NS -1715. 4 25D -6 Such written documentation shall be approved by the Executive Director of Community Development Agency or his or her designee. Any such advance shall be deducted from BID assessment monies collected and deposited. DTI agrees that such advance shall only apply to the first the $20,000.00 of available funds and before any subsequent reimbursements can be made, DTI shall sufficiently document such advance by accompanying receipts, purchase invoices, or other permanent evidences of expenditure as may be prudently required by the City in accordance with Generally Accepted Accounting Principles and established City accounting procedures. (g) The City shall make all reasonable good -faith efforts to deposit BID assessment monies collected each month by the 15`" day of the month following; provided that where the 15'h day falls on a weekend, holiday, or other day in which City Hall is closed, then said deposit shall be made the next day City Hall is open. (h) The City shall also deposit monthly an interest payment equivalent to the average amount of the daily balances for the period of the preceding month. (i) The City upon depositing BID assessment monies shall notify DTI by electronic mail of the net amount of monies available for reimbursement to DTI. Failure by DTI to receive or acknowledge electronic mail notification shall not constitute a breach of this Agreement. 0) The City upon receipt of a written request for reimbursement submitted by DTI for documented expenses, shall inspect and examine each request to ensure that all expenses submitted for reimbursement are for the purposes identified in Ordinance NS -1715 and that all expenses submitted are sufficiently documented by accompanying receipts, purchase invoices, or other permanent evidences of expenditure as may be prudently required by the City in accordance with Generally Accepted Accounting Principles and established City accounting procedures. Reimbursement requests shall be approved by the Executive Director of the Community Development Agency or his or her designee. (k) The amount of any approved reimbursement made by the City shall not exceed the net funds available for such reimbursement. In the event that a reimbursement request submitted by DTI exceeds the balance of available funds, the City shall prorate the reimbursement accordingly. (1) The City shall make all reasonable good -faith efforts to process reimbursement requests within 15 working days and to issue a reimbursement check for the approved amount or make equivalent electronic payment to DTI. (m) In the event questions arise relating to the balance of funds available to DTI, DTI may within 15 days of notification request an accounting by the City of the amount of net funds available for reimbursement to DTI. (n) In the event questions arise relating to the amount of any specific reimbursement to DT1 approved by the City, DTI may, within 15 days of such reimbursement payment, request that 5 25D -7 the City re- evaluate the amount of such reimbursement. Thereupon the City shall re- evaluate the amount of such reimbursement and give written notification of its decision to DTI which shall be final and conclusive. § 2.02 Annual Financial Statement and Audit Within sixty (60) days following notice by the City, DTI shall submit to the City Manager a complete statement of DTI's revenues and expenditures and a financial audit for the preceding calendar year prepared by an independent certified public accountant. § 2.03 Financial Records DTI shall keep, or cause to be kept, true, accurate and complete records, including double - entry books, a profit and loss statement, and a balance sheet, such that if possible at all times to determine the amount and nature of all revenues and expenditures. All expenditures and transactions shall be supported by documents of original entry such as sales slips, cash register tapes, and purchase invoice and receipts. All such account books, statements, balance sheets and supporting documents shall be retained by DTI for a period of three (3) years after the end of the accounting year to which they pertain. § 2.04 Accounting Procedures DTI shall maintain a system of accounting according to Generally Accepted Accounting Practices. § 2.05 Inspection and Audit City shall be entitled, during the term of this Agreement and for a period of one year following the termination, to: (a) inspect and examine all of DTI's books, statements, records, and supporting documents to ascertain the correctness of DTI's financial statements. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to DTI; and (b) inspect and examine each request for reimbursement received from DTI to ascertain that all expenses submitted for reimbursement are for the purposes identified in Ordinance NS -1715 and that all expenses submitted are sufficiently documented by receipts, purchase invoices, or other permanent evidences of expenditure in accordance with Generally Accepted Accounting Principles and established City accounting procedures. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to DTI. 11 25D -8 ARTICLE 3 INDEMNITY AND INSURANCE § 3.01 Indemnification DTI shall indemnify and save harmless City and its officers, agents and employees from and against any and all claims, demands, loss or liability of any kind or nature which City or its officers, agents, or employees may sustain or incur, or which may be imposed upon them, or any of them, as a result of, arising out of, or in any manner connected with DTI's management and /or administration of the BID funds. § 3.02 Insurance Requirement Generally Prior to the Commencement Date (except as hereinafter otherwise provided), DTI shall obtain at its sole cost and file with the Clerk of the Council, and maintain throughout the Term, policies of insurance as required by this section and sections 3.03 through 3.05, or a certificate of such insurance, satisfactory in form to the City Attorney. Each such policy (except policies of Workers' Compensation Insurance) shall name City as an insured or additional insured and each liability insurance policy shall also name the officers, agents and employees of City as insureds or additional insureds. Each such policy shall also contain a provision that no termination, cancellation or change of coverage or (where applicable) of insured or additional insured shall be effective until after thirty (30) days notice thereof has been given in writing to City. § 3.03 Liability Insurance DTI shall provide a policy or policies of insurance which provides coverage not less than that provided in the form of a comprehensive general liability insurance policy against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of the operations of DTI, its officers, employees, agents or assigns. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($1,000,000.00) combined single limit, or its equivalent. § 3.04 Fidelity Bonding DTI shall provide a policy or policies of insurance insuring DTI against loss due to dishonesty of DTI's officers, agents and employees. Said policy or policies shall provide coverage in not less than $1,000,000. § 3.05 Workers' Compensation Insurance DTI shall provide a policy or policies of workers' compensation insurance as required by law. 7 25D -9 § 3.06 Modification of Insurance Requirements The City Manager may modify or suspend the requirements imposed on DTI by this Article if in his reasonable determination; strict compliance is impossible or excessively costly due to insurance market conditions. ARTICLE 4 DEFAULTS, REMEDIES AND TERMINATION § 4.01 Defaults (a) Failure or delay by either party to perform any tern or provision of this Agreement shall constitute a default under this Agreement. The injured party shall not initiate the remedies hereinafter provided until the defaulting party has been given written notice of the default, specifying the nature thereof, and a period of sixty (60) days to cure or correct such default. (b) Any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. § 4.02 Remedies of City In the event of any default and failure to cure, correct or remedy the same by DTI, City may, at City's sole discretion, in addition to or in lieu of any other remedies, exercise either of the following remedies: (a) Delay of any or all transfers of BID funds to DTI collected pursuant to § 2.01 of this Agreement until such default is cured, corrected or remedied; provided such delay is approved by the City Council. (b) Terminate this Agreement, provided such termination is approved by the City Council. § 4.03 Legal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal action must be instituted in the Superior Court of the County of Orange, State of California, or in any other appropriate court in that county. .;I 25D -10 § 4.04 Cumulative Rights and Remedies The rights and remedies of the parties are cumulative and the exercise by either party of one or more such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. § 4.05 Termination Upon the expiration of the Term or upon the earlier termination of this Agreement as provided in Section 1.01(f) or Section 4.02 the City shall have no further obligation to provide funding or other assistance to DTI pursuant to this Agreement for any period following such expiration or early termination. ARTICLE 5 GENERAL PROVISIONS § 5.01 Representatives (a) All actions authorized to be taken by City pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of City by the City Manager, unless otherwise stated. The City Manager may designate any officer of the City as his or her representative with respect to any specified authority given to the City Manager by this Agreement, and in such event the actions of such officer within the scope of such authority shall have the same effect as if taken by the City Manager. (b) All actions authorized to be taken by DTI pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of DTI by DTI's governing board or by such officer of DTI as may be designated by resolution of said governing board. § 5.02 Notices Notices and written communications sent by one parry to the other shall be either personally delivered or sent by U.S. Mail, postage prepaid, to the following addresses: (a) If sent by DTI to City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 9 25D -11 With Copies to: City Manager City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 And: City Attorney City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 (b) If sent by City to DTI: Downtown Inc. 200 North Main St. 2nd Floor Santa Ana, CA 92701 Attention: Chairman of the Board § 5.03 Non -assi ng ability The rights and obligations of DTI under this Agreement may not be assigned or delegated without the prior approval of the City Council. § 5.04 Partial Invalidity If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in no way be affected, impaired or invalidated thereby. §5.05 Exclusivity 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 DTI. 10 25D -12 §5.06 Conflict of Interest Clause SABC covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance under this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Jose Sandoval Chief Assistant City Attorney CITY OF SANTA ANA: Kevin O'Rourke Interim City Manager Downtown Inc.: I: Title: 11 25D -13 25D -14 EXHIBIT 2 OPERATING AGREEMENT This AGREEMENT made and entered into this 17`x' day of September, 2013, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California, hereinafter referred to as "City," and Santa Ana Business Council Inc., a California non -profit corporation, hereinafter referred to as "SABC." RECITALS A. Whereas the City Council of the CITY previously established a community management district (hereinafter the "CMD ") designated as the "Downtown Community Management District" (hereinafter the "DISTRICT "); and B. Whereas assessments were supposed to be levied annually against the assessable parcels in the DISTRICT commencing with Fiscal Year 2009 -2010 and continuing through Fiscal Year 2013 -2014; and C. Whereas the CITY was to use the assessments to contract for the administration of a program of improvements and activities in connection with the DISTRICT for Fiscal Years 2009 -2010 through 2013 -2014; and D. Whereas due to various reasons the City Council on February 4, 2012 repealed the entirety of the CMD and did not levy the DISTRICT assessment to fund the CMD services for calendar year 2013; and E. Whereas with the repeal of the CMD, several downtown merchants and property owners have expressed an interest in reactivating the Downtown Santa Ana Business Improvement Area (BID) so that they could continue to receive funding to promote the safety, maintenance, and overall economic stability of the downtown area; and F. Whereas the City Council agreed that if there was sufficient support by those businesses that would be impacted by assessments, that it would reactivate the prior Downtown Business Improvement Area which was established on February 6, 1984 pursuant to Ordinance NS -1715 (attached hereto and incorporated herein as Exhibit A) ; and G. Whereas the City Council further agreed in a Settlement and Release Agreement with Downtown Inc. ( "DTP'), that, should the BID be reactivated, DTI would receive 50% of the BID revenues in any given calendar year and remaining 50% would be distributed to a new merchants' nonprofit group serving independently of DTI, subject to an operating agreement for each group; and 1 25D -15 H. Whereas the Santa Ana Business Council has emerged as the new merchants' nonprofit group that has expressed an interest in obtaining the other 50% of BID funds to be spent in furtherance of the overall economic stability of the downtown area consistent with the requirements of NS -1715; and 1. Whereas the City Council has "reactivated" the BID by its approval of an assessment report for calendar year 2013 outlining the proposed budget and activities to be conducted in the downtown area; and J. Whereas a public hearing was held, and there being no majority protest against the approval of the assessment report and levy of the assessment; and K. Whereas the City and SABC under this Operating Agreement propose to (1) confirm that SABC will receive 50% of the assessments collected each calendar year for which an assessment is levied, (2) to provide that SABC's use of the assessment funds will be consistent with the requirements of NS -1715, generally, and the approved calendar year's assessment report specifically, (3) to provide for auditing of SABC BID Funds, and (4) ensure that SABC meetings are compliant with the Ralph M. Brown Act [Government Code Sections 54950, et seq]. WHEREFORE, and in consideration of their mutual and respective covenants and promises hereinafter set forth, and subject to the terms and conditions of this Agreement, the parties hereto do hereby agree as follows: ARTICLE 1 PRELIMINARY MATTERS § 1.01 Definitions As used in this Agreement, the following terms shall have the following meanings: (a) "City" means the City of Santa Ana, California. (b) "City Council" means the City Council of the City. (c) "City Manager" means the City Manager of the City or his/her designated representative. (d) "SABC" means Santa Ana Business Council, Inc., a California nonprofit corporation. (e) "Board" means the Board of SABC. (f) "Term" means three (3) years commencing on September 17, 2013 and 2 25D -16 terminating on September 16, 2016 unless terminated sooner due to any violations of the provisions of this Agreement or if a BID assessment is not approved in compliance with the Parking and Business Improvement Area Law of 1989 [Streets and Highways Code Sections 36500, et seq.]. The Term of this Agreement shall be automatically renewed in one (1) year Renewal Terms unless either party gives notice of termination at least two (2) months prior to the expiration of the Initial Term or any Renewal Term. § 1.02 Status of SABC (a) By its execution of this Agreement, SABC warrants that it is duly incorporated under the laws of the State of California and that true and correct copies of its Articles of Incorporation and Bylaws and a true and correct listing of SABC's officers and their terms of office, certified as such by SABC's Secretary, have been filed with the Clerk of the Council. (b) By its execution of this Agreement, City accepts and agrees to the organization of the SABC as set forth in the above said Articles of Incorporation and Bylaws. § 1.03 Compensation of SABC Board Members and Meetings (a) Meetings shall be held on a quarterly basis with more meetings called at the discretion of the SABC Board. When conducting meetings related to the Downtown Santa Ana Business Improvement Area, members of the Board shall serve without compensation other than reimbursement for expenses incurred by them in the course of the performance of services for SABC when authorized by the SABC Board. (b) SABC shall conduct its meetings in accordance with the Ralph M. Brown Act; the number of board members for purposes of the Brown Act shall consist of _ board members, with board members serving as a quorum. § 1.04 Changes in Officers, Articles and Bylaws SABC shall notify the Clerk of the Council of any change in the membership of the Board and any change in the officers of SABC. Any amendment of SABC's Articles or Bylaws shall be filed with the Clerk of the Council. §L05 City Representation at Meetings of SABC The City Manager shall be entitled to attend all meetings of SABC related to the BID and to participate in the discussions of the Board to the same extent as the members of the Board, and SABC shall assure that the City Manager is provided with reasonable advance notice of all meetings of SABC. Nothing herein shall be construed to provide the City Manager with any authority to make, second, or vote on motions, or to cause him to be counted for purposes of 3 25D -17 determining whether a quorum exists at meetings of SABC. §L06 City Residents /Business Operators on the Board A majority of the Board shall be City residents or business operators. If the number of members who are City residents or business operators becomes less than a majority due to the death, resignation, or change of residence or business location, SABC shall not be in default under this section, provided, however, that the next member appointed to the Board shall be a City resident or business operator. ARTICLE 2 REPORTS AND RECORDS AND BID FUND TRANSFERS § 2.01 Annual Budget and Program Report (a) No later than November First (I") of each year, SABC shall provide the City Manager with a copy of a detailed calendar year operating budget showing expected sources of revenue and the nature of all expected or proposed expenditures for the forthcoming calendar year and a report on the proposed programs to be undertaken by SABC in said calendar year. (b) The proposed budget shall be submitted to the City Council for approval subject to the procedures provided for in California Streets and Highway Code Section 36530 et seq. If the proposed budget is accepted by the City Manager, it shall be submitted to the City Council for approval, in whole or in part. If the proposed budget is rejected by the City Manager, the City Manager and SABC shall meet in good faith in an attempt to reach agreement on a budget. If they are unable to do so, the City Manager shall submit the SABC's proposed budget to the City Council for approval, in whole or in part. (c) SABC acknowledges that its proposed budget in any given calendar year will consist of 50% of all BID assessments collected from businesses subject to the Downtown Santa Ana Business Improvement Area as reflected in Ordinance NS -1715. (d) SABC further acknowledges that the use of all BID proceeds will be subject to the BID laws as currently exist and /or as may be modified in the future; and that expenditures of BID funds will be for the purposes identified in Ordinance NS -1715. (e) The City shall establish and maintain in its accounting system a trust fund account for the deposit of BID assessment monies collected together with a specific account activity code which shall reflect the deposit and expenditure reimbursement of BID assessment monies apportioned for use by SABC pursuant to subsection (c) above. (f) SABC shall have the option for the first year of this Agreement to request an advance 4 25D -18 of up to twenty thousand dollars ($20,000.00) from the City upon presentment of written documentation indicating anticipated expenses in furtherance of the purposes identified in Ordinance NS -1715. Such written documentation shall be approved by the Executive Director of Community Development Agency or his or her designee. Any such advance shall be deducted from BID assessment monies collected and deposited. SABC agrees that such advance shall only apply to the first the $20,000.00 of available funds and before any subsequent reimbursements can be made, SABC shall sufficiently document such advance by accompanying receipts, purchase invoices, or other permanent evidences of expenditure as may be prudently required by the City in accordance with Generally Accepted Accounting Principles and established City accounting procedures. (g) The City shall make all reasonable good -faith efforts to deposit BID assessment monies collected each month by the 15`h day of the month following; provided that where the 15`" day falls on a weekend, holiday, or other day in which City Hall is closed, then said deposit shall be made the next day City Hall is open. (h) The City shall also deposit monthly an interest payment equivalent to the average amount of the daily balances for the period of the preceding month. (i) The City upon depositing BID assessment monies shall notify SABC by electronic mail of the net amount of monies available for reimbursement to SABC. Failure by SABC to receive or acknowledge electronic mail notification shall not constitute a breach of this Agreement. 0) The City upon receipt of a written request for reimbursement submitted by SABC for documented expenses, shall inspect and examine each request to ensure that all expenses submitted for reimbursement are for the purposes identified in Ordinance NS -1715 and that all expenses submitted are sufficiently documented by accompanying receipts, purchase invoices, or other permanent evidences of expenditure as may be prudently required by the City in accordance with Generally Accepted Accounting Principles and established City accounting procedures. Reimbursement requests shall be approved by the Executive Director of the Community Development Agency or his or her designee. (k) The amount of any approved reimbursement made by the City shall not exceed the net funds available for such reimbursement. In the event that a reimbursement request submitted by SABC exceeds the balance of available funds, the City shall prorate the reimbursement accordingly. (1) The City shall make all reasonable good -faith efforts to process reimbursement requests within 15 working days and to issue a reimbursement check for the approved amount or make equivalent electronic payment to SABC. (m) In the event questions arise relating to the balance of funds available to SABC, SABC may within 15 days of notification request an accounting by the City of the amount of net 5 25D -19 funds available for reimbursement to SABC. (n) In the event questions arise relating to the amount of any specific reimbursement to SABC approved by the City, SABC may, within 15 days of such reimbursement payment, request that the City re- evaluate the amount of such reimbursement. Thereupon the City shall re- evaluate the amount of such reimbursement and give written notification of its decision to SABC which shall be final and conclusive. § 2.02 Annual Financial Statement and Audit Within sixty (60) days following notice by the City, SABC shall submit to the City Manager a complete statement of SABC's revenues and expenditures and a financial audit for the preceding calendar year prepared by an independent certified public accountant. § 2.03 Financial Records SABC shall keep, or cause to be kept, true, accurate and complete records, including double -entry books, a profit and loss statement, and a balance sheet, such that if possible at all times to determine the amount and nature of all revenues and expenditures. All expenditures and transactions shall be supported by documents of original entry such as sales slips, cash register tapes, and purchase invoice and receipts. All such account books, statements, balance sheets and supporting documents shall be retained by SABC for a period of three (3) years after the end of the accounting year to which they pertain. § 2.04 Accounting Procedures SABC shall maintain a system of accounting according to Generally Accepted Accounting Practices. § 2.05 Inspection and Audit City shall be entitled, during the term of this Agreement and for a period of one year following the termination, to: (a) inspect and examine all of SABC's books, statements, records, and supporting documents to ascertain the correctness of SABC's financial statements. Any such inspection and/or examination shall be conducted during normal business hours with prior 15 days written notice to SABC; and (b) inspect and examine each request for reimbursement received from SABC to ascertain that all expenses submitted for reimbursement are for the purposes identified in Ordinance NS- 1715 and that all expenses submitted are sufficiently documented by receipts, purchase invoices, or other permanent evidences of expenditure in accordance with Generally Accepted Accounting 6 25D -20 Principles and established City accounting procedures. Any such inspection and /or examination shall be conducted during normal business hours with prior 15 days written notice to SABC. ARTICLE 3 INDEMNITY AND INSURANCE § 3.01 Indemnification SABC shall indemnify and save harmless City and its officers, agents and employees from and against any and all claims, demands, loss or liability of any kind or nature which City or its officers, agents, or employees may sustain or incur, or which may be imposed upon them, or any of them, as a result of, arising out of, or in any manner connected with SABC's management and/or administration of the BID funds. § 3.02 Insurance Requirement Generally Prior to the Commencement Date (except as hereinafter otherwise provided), SABC shall obtain at its sole cost and file with the Clerk of the Council, and maintain throughout the Term, policies of insurance as required by this section and sections 3.03 through 3.05, or a certificate of such insurance, satisfactory in form to the City Attorney. Each such policy (except policies of Workers' Compensation Insurance) shall name City as an insured or additional insured and each liability insurance policy shall also name the officers, agents and employees of City as insureds or additional insureds. Each such policy shall also contain a provision that no termination, cancellation or change of coverage or (where applicable) of insured or additional insured shall be effective until after thirty (30) days notice thereof has been given in writing to City. § 3.03 Liability Insurance SABC shall provide a policy or policies of insurance which provides coverage not less than that provided in the form of a comprehensive general liability insurance policy against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of the operations of SABC, its officers, employees, agents or assigns. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than One Million Dollars ($1,000,000.00) combined single limit, or its equivalent. § 3.04 Fidelity Bonding SABC shall provide a policy or policies of insurance insuring SABC against loss due to dishonesty of SABC's officers, agents and employees. Said policy or policies shall provide coverage in not less than $1,000,000. 7 25D -21 § 3.05 Workers' Compensation Insurance SABC shall provide a policy or policies of workers' compensation insurance as required by law. § 3.06 Modification of Insurance Requirements The City Manager may modify or suspend the requirements imposed on SABC by this Article if in his reasonable determination; strict compliance is impossible or excessively costly due to insurance market conditions. ARTICLE 4 DEFAULTS, REMEDIES AND TERMINATION § 4.01 Defaults (a) Failure or delay by either parry to perform any term or provision of this Agreement shall constitute a default under this Agreement. The injured party shall not initiate the remedies hereinafter provided until the defaulting parry has been given written notice of the default, specifying the nature thereof, and a period of sixty (60) days to cure or correct such default. (b) Any failure or delay by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. § 4.02 Remedies of City In the event of any default and failure to cure, correct or remedy the same by SABC, City may, at City's sole discretion, in addition to or in lieu of any other remedies, exercise either of the following remedies: (a) Delay of any or all transfers of BID funds to SABC collected pursuant to § 2.01 of this Agreement until such default is cured, corrected or remedied; provided such delay is approved by the City Council. (b) Terminate this Agreement, provided such termination is approved by the City Council. § 4.03 Legal Actions In addition to any other rights or remedies, either parry may institute legal action to cure, 3 25D -22 correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal action must be instituted in the Superior Court of the County of Orange, State of California, or in any other appropriate court in that county. § 4.04 Cumulative Rights and Remedies The rights and remedies of the parties are cumulative and the exercise by either party of one or more such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. § 4.05 Termination Upon the expiration of the Term or upon the earlier termination of this Agreement as provided in Section 1.01(f) or Section 4.02 the City shall have no further obligation to provide funding or other assistance to SABC pursuant to this Agreement for any period following such expiration or early termination. ARTICLE 5 GENERAL PROVISIONS § 5.01 Representatives (a) All actions authorized to be taken by City pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of City by the City Manager, unless otherwise stated. The City Manager may designate any officer of the City as his or her representative with respect to any specified authority given to the City Manager by this Agreement, and in such event the actions of such officer within the scope of such authority shall have the same effect as if taken by the City Manager. (b) All actions authorized to be taken by SABC pursuant to this Agreement, without specification in this Agreement as to the body or office so authorized, shall be deemed exercisable on behalf of SABC by SABC's governing board or by such officer of SABC as may be designated by resolution of said governing board. § 5.02 Notices Notices and written communications sent by one party to the other shall be either personally delivered or sent by U.S. Mail, postage prepaid, to the following addresses: (a) If sent by SABC to City: 25D -23 Clerk of the Council City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 With Copies to: City Manager City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 ETON City Attorney City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 (b) If sent by City to SABC: Santa Ana Business Council Inc. 400 E. Fourth Street Santa Ana, CA 92701 Attention: Chairman of the Board § 5.03 Non - assignability The rights and obligations of SABC under this Agreement may not be assigned or delegated without the prior approval of the City Council. § 5.04 Partial Invalidity If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect, and shall in no way be affected, impaired or invalidated thereby. §5.05 Exclusivity Each party to this Agreement acknowledges that no representations, inducements, 10 25D -24 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 SABC. §5.06 Conflict of Interest Clause SABC covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance under this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Jose Sandoval Chief Assistant City Attorney CITY OF SANTA ANA: Kevin O'Rourke Interim City Manager Santa Ana Business Council, Inc.: Title: 25D -25 25D -26 Exhibit 3 DOWNTOWN BUSINESS IMPROVEMENT DISTRICT PROPOSED BUDGETS SUMMARY 2013 OPERATING FUND REVENUE BIDAssessments — current ... ............................... .......................$250,000 Prior Year Carry Forward ............................... .............................$0 Total Revenue EXPENDITURES Downtown Inc. $250,000 ADMINISTRATION Overhead (Supplies, insurance, misc) .......... ........................$6,000* MARKETING Special Events Sound Downtown /Restaurant Week $10,000 OC Pride $5,000 Day of the Dead $5,000 Patchwork (2x) $10,000 Downtown Santa Ana Film Festival $5,000 OC Fashion Week $5,000 Other $12,000 Total ..................................... ............................... $52,000 Advertising ( Print / Online ) ......................... ........................$57,000 OTHER PROGRAMMING Restaurant Association ..................... ............................... $5,000 Artist Retention Program .......................... .........................$5,000 Total 25D -27 $125,000 Page 1 of 2 `Office Rent is being subsidized by a DTI Board member. Santa Ana Business Council Inc. ADMINISTRATION Overhead (Office rental, supplies, insurance, misc) ................$12,500 MARKETING SpecialEvents .................. ............................... Artwalk / Sidewalk sale (Spurgeon & 4th Stre Valentine's Day Spring Festival & St. Patrick's Day Quinceanera Expo Mother's Day Father's Day 4th of July Art Fair 16th & Film Festival Lucha Libre & Halloween Noche de Altares Christmas ............. $40,000 It) $2,000 $1,000 $2,000 $3,000 $8,000 $1,000 $3,000 $2,000 $5,000 $6,000 $3,000 $4,000 Advertising ( Print / Online) .................. ............................... $50,625 Newsletters.................................... ............................... $8,750 Website & Social Media ........................... .........................$8,750 OTHER PROGRAMMING Holiday Promotions . ............................... .........................$4,375 Total Total Expenditures 2501-28 $125,000 $250,000 Page 2 of 2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED REIMBUSEMENT AGREEMENT WITH ❑ As Recommended SAUSD TO RENOVATE MONTE VISTA ❑ As Amended ELEMENTARY SCHOOL BASKETBALL E] Ordinance on Reading [I 2 n Ordinance on god Reading COURTS ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER CIT ANAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute a reimbursement agreement, not to exceed $70,000, with Santa Ana Unified School District ( SAUSD) for the renovation of Monte Vista Elementary School Basketball Courts adjacent to Jerome Park, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION On July 2012, the City Council approved a Joint Use Agreement with the SAUSD for use of Monte Vista Elementary School ballfield and basketball courts. As part of the agreement the City installed wrought iron fencing to allow public use of the school facilities after hours and on weekends. The project is now completed; however, the basketball court needs to be renovated before the public is allowed access. The district estimates the court renovation will not exceed $140,000. Both City and District staff agreed to share 50 %, or $70,000 each, of the renovation cost. The City will reimburse the District for the removal of the existing surface, re- pavement, color coating and striping of the courts. FISCAL IMPACT Funds are available in the Capital Outlay (cell tower) expenditure account (no. 05113263 66220). APPROVED AS TO FUNDS AND ACCOUNTS: Gerardo Mouet Francisco Executive Director Executive Director Parks, Recreation & Community Finance & Management Services Agency Services Agency i 25E -1 25E -2 REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND SANTA ANA UNIFIED SCHOOL DISTRICT REGARDING REPAIR OF JOINT USE FACILITIES (MONTE VISTA ELEMENTARY SCHOOL) This Reimbursement Agreement Between the City of Santa Ana and Santa Ana Unified School District Regarding Repair of Joint Use Facilities ( "Agreement') is made this 16" day of September 2013, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ( "City"), and the Santa Ana Unified School District ( "District'), a public school district (collectively, "Parties"; individually "Party "). RECITALS A. The City and District entered into the Joint Use Agreement for the Monte Vista Elementary School site dated June 28, 2012 (Agreement #A- 2012 -155 - "said Agreement') to undertake a coordinated use of the Monte Vista ball field and basketball courts in order to allow maximum use by community residents and youth sports organizations. B. Pursuant to the terms of said Agreement there is a process for the Parties to follow in the event of the necessity of significant repairs to the Joint Use Facilities. C. The Parties desire to divide the cost for the repairs to the basketball courts. NOW, THEREFORE, for and in consideration of the mutual promises and agreements contained herein, the Parties hereto agree as follows: 1. DEFINITIONS. The following definitions shall apply to the terms as used in this Agreement: A. "Joint Use Property" shall mean that certain real property and improvements thereon described in Exhibit A attached hereto. B. "Joint Use Facilities" shall mean the (i) basketball courts and (ii) ball field as identified in Exhibit A attached hereto. C. "Technical Advisory Committee" shall mean the committee created and appointed by the City Manager of the City and the Superintendent of the District pursuant to the Joint Use Agreement between the Parties pertaining to Godinez High School at Centennial Park. The Technical Advisory Committee shall be responsible for resolving conflicts in scheduling of the Joint Use Facilities which are the subject of this Agreement. 2. REPAIRS NEEDED. Pursuant to the terms of said Agreement, the Parties determined that "Significant Repairs" of the Joint Use Facilities are required; the basketball courts need repair and resurfacing. Section 3.J. of said Agreement requires that the District shall be responsible for repair of the Joint Use Facilities. However, District shall submit any plans for "significant repairs" to the Technical Advisory Committee. The Technical Advisory Committee reviewed the plans and determined whether and to what extent the City would share in the cost of the significant repairs to the Joint Use Facilities. "Significant Repairs" include, at a minimum, any repair or replacement of a component of the Joint Use Facilities that will cost in excess of fifty percent (50 %) of the reasonable estimated value of the component needing repair or replacement. The Parties have agreed to equally split the cost for the Significant Repairs to the basketball courts. Paim 2v5L -3 3. REPAIR FUNDING. District and City shall equally split the cost of the needed repairs. Each Party shall pay half of the estimated repair of the basketball courts. A proposed scope of work, including an estimate of all costs is attached hereto as Exhibit B. District will manage the bidding and construction of the court renovation project. The City will reimburse the District for the removal of the existing surface, re- pavement, color coating and striping of the basketball courts. The 50% reimbursement requirement of the City shall not exceed Seventy Thousand Dollars ($70,000). 4. TERMINATION. A. Either Party may terminate this Agreement for its own convenience. In the event of a termination for convenience by City or of a termination for convenience in accordance with 24 CFR 85.44, District may invoice City and City shall pay its portion for all work and /or services performed until the City's notice of termination for convenience. B. If the City breaches this Agreement in any material way, the District may elect to provide written notice to the City of the breach(es). If the City does not cure the breach(es) within ten (10) days of receipt of the notice by paying all overdue funds, the District may terminate this Agreement by providing written notice of termination to the City. City shall be liable to District for all costs, fees, expenses, and other damages the District incurs because of the City's breach(es). C. If the District breaches this Agreement in any material way, the City may elect to provide written notice to the District of the breach(es). If the District does not cure the breach(es) within ten (10) days of receipt of the notice, the City may terminate this Agreement by providing written notice of termination to the District. District shall be liable to City for all costs, fees, expenses, and other damages the City incurs because of the District's breach(es). D. The remedies in this paragraph are in addition to any additional remedies available at law or under this Agreement. A decision by a Party not to terminate this Agreement pursuant to this paragraph does not constitute a waiver of any other claims or remedies that Party may have against the other. 5. INDEMNIFICATION AND COOPERATION IN CLAIM DEFENSE A. District shall indemnify, save, protect, defend and hold harmless the City, its officers, agents and employees from any and all claims, costs, and liability, including reasonable attorneys' fees, for any damage, injury or death, to persons or property arising from the negligent or wrongful acts or omissions of the District or its agents under this Agreement, except to the extent that such claims, costs, or liability arise directly or indirectly from the negligent or wrongful acts or omissions of City, its officers, agents and employees. B. City shall indemnify, save, protect, defend and hold harmless the District, its officers, agents and employees from any and all claims, costs and liability, including reasonable attorneys' fees, for any damage, injury or death, to persons or property arising from the negligent or wrongful acts or omissions of the City or its agents under this Agreement, except to the extent that such claims, costs, or liability arise directly or indirectly from the negligent or wrongful acts or omissions of District, its officers, agents and employees. 6. ENVIRONMENTAL REVIEW. The District shall be responsible for ensuring compliance with the California Environmental Quality Act and any other applicable environmental laws with regard to the Significant Repairs. 7. CONFIDENTIALITY. If either Party receives from the other Party information which due to the nature of that information is reasonably understood to be confidential and /or proprietary, the Parties agree that they shall not use or disclose that information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either Party by any subsidiary and /or agent of the other Party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Parties disclosed in a publicly available source; 2 -4 (c) is in rightful possession of the Parties without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by one of the Parties without reference to information disclosed by the other Party. 8. CONFLICT OF INTEREST. The Parties shall ensure compliance with all applicable conflict of interest laws including, without limitation, the Fair Political Practices Act and Government Code section 1090, et seq. In addition, each Parties agrees that it will not 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 that Party. For the purposes of this section, the term "immediate family" means spouse, child, aunt, uncle, niece, nephew, stepparent and stepchild. The term "administrative capacity" means having selection, hiring, supervisor or management responsibilities. 9. DRUG FREE WORKPLACE. The Parties confirm that both comply with Government Code Sections 8350 el seg., the Drug -Free Workplace Act of 1990 and shall take diligent actions to ensure that there is no unlawful manufacture, distribution, dispensing, possession or use of a controlled substance. 10. ANTI - DISCRIMINATION. It is the policy of the Parties that there be no discrimination against any employee engaged in the work, including work under contract, because of race, color, ancestry, national origin, or religious creed, and therefore each Party agrees to comply with applicable Federal and California laws including, but not limited to the California Fair Employment Practice Act beginning with Government Code Section 12900 and Labor Code Section 1735. In addition, the District agrees to require like compliance by all its contractor(s) and subcontractor(s) on the Significant Repairs. 11. ATTORNEY'S FEES. During any dispute(s) between the Parties related to this Agreement, if any, each Party shall pay their own attorneys fees and related expenses incurred and shall not have a right to recover any of those fees from the other Party. 12. FORCE MAJEURE. Neither Party shall be held responsible or liable for an inability to fulfill any obligation under this Agreement by reason of an act of God, natural disaster, rationing or restrictions on the use of utilities or public transportation whether due to energy shortages or other causes, war, civil disturbance, riot, or terrorism ( "Force Majeure"). Any Party relying on a Force Majeure shall give the other Party reasonable notice thereof, and the Parties shall use their best efforts to minimize potential adverse effects from such Force Majeure, including, without limitation, subcontracting the obligations of the Party claiming such Force Majeure to a third party and extending the time periods for performance. 13. ASSIGNMENT. Neither Party may, without the other Party's prior written consent, assign its rights or delegate its duties pursuant to this Agreement. This provision does not apply to the District's contracting with contractor(s), consultant(s), or others to perform services or provide other items related to the planning, approval, design, or construction of the Significant Repairs. The District's contracting with others shall not alter the District obligations pursuant to this Agreement. 14. SUCCESSORS AND ASSIGNS. This Agreement shall bind the successors and assigns of the Parties hereto. 15. FURTHER ASSURANCES. Each Party to this Agreement shall at its own expense perform all acts and execute all documents and instruments that may be necessary or convenient to carry out its obligations under this Agreement. 16. MODIFICATIONS. The terms and conditions of this Agreement may be modified or changed only by written mutual consent of the Parties. 17. NOTICES. Any notices that either Party desires to or is required to give to the other Party or to any other person shall be in writing and either served personally or sent by prepaid first class mail. Such notices shall be addressed to the other Party at the address set forth below. Either Party may change its address by notifying the other Party of the change of address. Notice shall be deemed communicated within seventy -two hours from the date of mailing, if mailed as provided in this paragraph. AL -5 Santa Ana Unified School DISTRICT City of Santa Ana 1601 East Chestnut Avenue 20 Civic Center Plaza, M -25 Santa Ana, California 92701 P.O. Box 1988 Attn: Assistant Superintendent, Santa Ana, CA 92702 Facilities & Governmental Relations Attn: Deputy City Manager 18. EXECUTION IN COUNTERPARTS. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy, or an original, with all signatures appended together, shall be deemed a fully executed Agreement. 19. INTERPRETATION. The language of all parts of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not strictly for or against either Party. 20. SEVERABILITY. Should all or any portion of any provision of this Agreement be held unenforceable or invalid for any reason, but the remainder of the Agreement can be enforced without failure of material consideration to any Party, then the remaining portions or provisions shall be unaffected. 21. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California and venue shall be in the appropriate Superior Court in Orange County, California. 22. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals and all Exhibits attached hereto, are hereby incorporated herein and made a part of this Agreement by this reference. 23. CAPTIONS. The headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. 24. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the Parties and supersedes all prior negotiations, representations, or agreements, either written or oral. 25. TIME OF THE ESSENCE. Time is of the essence in the performance of each Party's respective obligations under this Agreement. 26. PARTIES TO BEAR THEIR OWN COSTS. Except as specifically set forth in this Agreement, the Parties shall each bear their own costs, including, without limitation, attorneys' and consultants' fees, incurred in connection with any negotiations, strategic planning, analysis and due diligence relating to this Agreement. 27. EFFECTIVE DATE. This Agreement must be executed by both Parties and approved or ratified by the City's City Council and the District's Board of Trustees. This Agreement shall be effective upon the latter date of approval of either the City Council or the Board of Trustees. 25L—V ACCEPTED AND AGREED on the date indicated below: City of Santa Ana Dated: By: Print Name: Print Title: Dated: By: Print Name: Print Title: Maria D. Huizar Clerk of the City Council Kevin O'Rourke Interim City Manager Approved as to Form Dated: By: Print Name: Sonia R. Carvalho, City Attorney Print Title: By Lisa E. Storck, Assistant City Attorney 20 20 20 Santa Ana Unified School DISTRICT Dated: By: Print Name: Print Title: Dated: By: Print Name: Print Title: 20 Joe Dixon Assistant Superintendent. Facilities & Governmental Relations 20 Michael P. Bishop, Sr. Associate Superintendent, Business Approved as to Form Dated: By: Print Name: Philip J. Henderson Print Title: Attorney, Orbach Huff & Suarez 20 AL -7 Exhibit A 25L-8 c Q MONTE VISTA ST, a N L = Oa M m D s wifforw7i 'r illk� � <s �g `JOINT US] AREA AN[ ,FACILITY EMT t �i �$F 25E -10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: AGREEMENT WITH U.S. GEOLOGICAL SURVEY WESTERN ECOLOGICAL RESOURCE CENTER AT THE SANTA ANA ZOO i CI Y MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ 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 a five year agreement and permit with the U.S. Geological Survey Western Ecological Resource Center (USGS), subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Zoo at Prentice Park mission statement is "To instill a passion for the natural world through education, recreation and conservation ". Without successful partnerships, the Santa Ana Zoo could not fully achieve its mission. By partnering with the Association of Zoos and Aquariums (AZA), schools, local residents, and non - profit organizations, the Zoo is able to enhance its ability to provide animal care and Zoo education opportunities. The partnership with the local field station of the USGS will help the Zoo meet its goal of providing viable conservation programs as required by AZA. As a result of this partnership, the Zoo will become the home office for the area's field biologists and several other researchers. USGS will be housed in a mobile office near the Zoo administrative offices and they will pay for the mobile office lease and all utilities. USGS will have access to the Zoo's education classrooms to teach habitat restoration workshops and to present wildlife lectures. USGS will also be able to provide their services and expertise on water and life support systems at the Zoo and ponds throughout the City, thereby saving money on outside consulting fees. Zoo visitors and the community will benefit from the increased education programs and local conservation efforts provided by the USGS at the Zoo. The USGS serves the nation by developing reliable scientific information used to promote wise management of the nation's natural resources that promotes the health, safety, and well -being of the people. Due to the diversity of environments and natural resource issues within Southern California, the USGS and Zoo have a mutual and evolving interest in cooperative research projects and operational programs in the area of environmental sciences. This agreement will be for a five -year term with both organizations exchanging in -kind services only. 25F -1 USGS Agreement September 16, 2013 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. Gerardo Mouet Executive Director Parks, Recreation and Community Services Agency GM /EF /sc Exhibit: 1. Agreement 2. Permit 25F -2 MEMORANDUM OF UNDERSTANDING BETWEEN SANTA ANA ZOO AND U.S. GEOLOGICAL SURVEY, WESTERN ECOLOGICAL RESEARCH CENTER This Memorandum of Understanding (MOU) is entered into on this day of , 2013 by and between the U. S. Geological Survey (USGS), Western Ecological Research Center, (hereinafter referred to as WERC), and the City of Santa Ana, a charter city and municipal corporation, on behalf of the Santa Ana Zoo at Prentice Park (hereinafter referred to as SAZOO). ARTICLE I. JUSTIFICATION FOR ENTERING INTO THIS MOU A. The MOU between the U.S. Geological Survey, Western Ecological Research Center (USGS -WERC) provides that the agencies will participate in the establishment of the facilities on SAZOO premises. B. SAZOO wishes to manage its research, education, and outreach program at SAZOO. USGS -WERC has the staff, expertise, and equipment to conduct some of the proposed research. C. This MOU is in the best interest of both of the parties, as it will serve to minimize duplication of efforts and lead to a cost savings and increased efficiency to the parties. D. USGS -WERC is able to provide the services, which cannot be provided as conveniently and cost effectively by a commercial enterprise. ARTICLE II. BACKGROUND AND OBJECTIVES A. SAZOO is very active and has similar interests as WERC in local, state, and international conservation. B. It is the mutual desire of SAZOO and WERC to work together for the common purpose of providing research, education and outreach programs in the field of resource conservation and environmental science at the Zoo. C. For and in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereto do hereby agree to the following terms and conditions. ARTICLE III. STATEMENT OF WORK A. WERC agrees to: Cooperate with the SAZOO to identify, prioritize and coordinate research activities necessary to address conservation needs. Page 1 of 6 OVM 2018 1 2. Conduct quarterly ecology based educational lectures /workshops presented by WERC scientists and/or similar professionals, which will be free to the general public, students and/or other groups as approved by the Zoo Manager. 3. WERC shall comply with all official Zoo policies with respect to the Association of Zoos and Aquariums, U.S. Department of Agriculture, California Department of Fish and Game, and other federal, state and local regulations affecting the programs offered pursuant to this Agreement. 4. Work closely with SAZOO staff with active research programs of the Principal investigators, currently Robert Fisher and Erin Boydston, and their field assistants. 5. Provide SAZOO opportunities for discussion of WERC research directions. 6. Develop and review proposals for research and monitoring activities to be carried out in and around Orange County. 7. Provide SAZOO with research results and other available natural resource information relevant to resources management as available and appropriate. 8. Maintain files on current and past research activities that involve SAZOO. 9. Actively participate in regional planning, assessment and research activities where the goal is to improve regional ecosystems approaches to land management, including improved integration of SAZOO interests and actions with surrounding landowners. 10. Assure the adherence of WERC staff to the guidelines and requirements identified by SAZOO as applicable to research activities conducted in surrounding SAZOO lands. 11. Designate a representative from WERC to act as liaison between WERC and SAZOO to receive communications regarding conduct of studies and activities. B. SAZOO agrees to: 1. Permit and encourage WERC scientists and WERC- sponsored research within SAZOO, including issuance of appropriate permits. 2. Provide space and utilities for office facilities, staff housing, equipment storage, government and personal vehicles, for WERC science staff working at SAZOO. Four (4) parking spaces will be provided and designated as parking spaces for said government vehicles. 3. Provide administrative and operational support to WERC staff to the level and extent that it forwards the mutual goals of each party. 4. Permit use of SAZOO office, vehicles, lab, field, and office equipment by WERC staff when in the mutual interest of both parties. 5. Provide WERC access to resource data, (e.g. geologic, hydrologic, vegetative, atmospheric, wildlife, cultural, etc.) when it is relevant to research studies. 6. Use WERC staff to provide scientific review of research, inventory, and monitoring proposals. C. WERC and SAZOO jointly agree to: 1. Cooperate in identifying needs and developing priorities for research and inventory projects on SAZOO lands. 2. Mutually develop natural resources data for the SAZOO. 3. Work together to assure effective application of research results into SAZOO resources management. 4. Provide annual evaluation to each other regarding the status and effectiveness of WERC - SAZOO working relationships. 5. Cooperate in developing suitable facilities for WERC staff conducting fieldwork on SAZOO and neighboring lands. 6. Assist the City in analyzing relevant pathology samples as determined on cooperative projects. 7. In cooperation with City staff, work to increase public awareness of the WERC mission and cooperative City /WERC conservation/ research programs. Such public awareness campaign may include press releases, scientific papers and permanent signage at the Zoo. ARTICLE IV. TERM OF MOU This MOU shall continue in effect for a period of five (5) years from the last signature date of both parties, unless earlier terminated pursuant to Article VI. This Agreement may be renewed by mutual agreement of the parties. ARTICLE V. NON -FUND OBLIGATING DOCUMENT Nothing in this MOU shall obligate the SAZOO and WERC to obligate or transfer any funds. Specific work projects or activities that involve the transfer of funds, services, or property among the various agencies and offices of SAZOO and WERC will require execution of separate agreements and be contingent upon the availability of appropriated funds. Such activities must be independently authorized by appropriate statutory authority. This MOU does not provide such authority. Negotiation, execution, and administration of each such agreement must comply with all applicable statutes and regulations. ARTICLE VI. KEY OFFICIALS Key officials for the administration of this MOU shall be: SAZOO: Kent Yamaguchi, Zoo Manager Santa Ana Zoo 1801 E. Chestnut Ave. Santa Ana, CA 92701 714 - 647 -6546 Ray Cosper, Zoo Curator Santa Ana Zoo 1801 E. Chestnut Ave. Santa Ana, CA 92701 714 - 647 -6546 Gerardo Monet, Executive Director PRCSA 26 Civic Center Plaza (Main Library, 2 "d Floor) Santa Ana, CA 92702 714 -571 -4200 WERC: Scott Schwab, Administrative Officer (Acting) Western Ecological Research Center 3020 State University Drive East Modoc Hall, STE 3006 Sacramento, CA 95819 (916) 278 -9488 Robert N. Fisher, Principal Investigator (PI) Western Ecological Research Center San Diego Field Station 4165 Spruance Road San Diego, CA 92021 (619) 225 -6422 Erin E. Boydston, Principal Investigator (PI) Western Ecological Research Center San Diego Field Station 401 W. Hillcrest Dr. Santa Monica Mtns National Park Thousand Oaks, CA 91360 (805) 370 -2362 ARTICLE VII. TERMINATION Either party may terminate this Agreement by providing one hundred twenty (120) days written notice to the other party. ARTICLE VIII. LIABILITY a. WERC shall cooperate, to the extent allowed by law, in the submission of claims pursuant to the Federal Tort Claims Act (28 USC §1346(b), 2671 et seq.) against the United States for personal injuries or property damage resulting from the negligent or wrongful act or omission of any employee of the United States while acting within the scope of his or her employment. b. City shall protect, defend, indemnify and save and hold harmless WERC, its officers, officials, employees, and agents from and against any and all liability, loss, expenses (including reasonable attorney's fees) or claims for injury or damages arising out of City's performance of this Agreement to the extent that such liability, loss, expense, attorney's fees or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of City, its officer, agents (except WERC, its employees, agents or subcontractors) or employees. ARTICLE IX. INSURANCE WERC is a self - insured entity. ARTICLE X. MISCELLANEOUS PROVISIONS a. Liens. WERC will not permit any mechanics' or materialmens' or other liens to stand against the Facilities by reason of any use or occupancy by WERC, or any person claiming under USGS. b. Non - Discrimination. WERC shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities, or participation in programs. WERC affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. C. Governing Law. This Agreement shall be construed and interpreted in accordance with and shall be governed and enforced in all respects according to the laws of the State of California, without regard to conflicts of laws principles. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. d. Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable term or provision had never been contained herein. e. WERC's Equipment and Personal Property. WERC shall hold title only to WERC's equipment and personal property. All of WERC's equipment and personal property shall remain the property of WERC and are not fixtures. WERC has the right to remove all of its equipment or personal property at its sole cost and expense on or before the expiration or termination of this Agreement; provided that such removal shall be done in a professional and careful manner, without interference or damage to any other equipment, structures or operations on the Zoo Premises, including the use of the Zoo Premises by City or any of City's, assignees, licensees or lessees. Page 5 of 6 IN WITNESS WHEREOF, the parties hereto have caused this MOU to be executed by and through their authorized officers the day, month and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Bv: Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: GERARDO MOUET Executive Director - Parks, Recreation And Community Services Agency CITY OF SANTA ANA KEVIN O'ROURKE Interim City Manager U.S. GEOLOGICAL SURVEY STEVE SCHWARZBACH WERC Center Director Page 6 of 6 No: MP -570 Permit for Environmental Science Studies with United States Geological Survey, Western Ecological Research Center The undersigned, City of Santa Ana, a charter city and municipal corporation, hereinafter referred to as "Permitter ", hereby grants to U.S. Department of the Interior, Geological Survey, Western Ecological Research Center, hereinafter referred to as "Permittee ", permission for the installation and operation of an office and laboratory trailer and equipment, approximately 1,440 square feet, for the purpose of conducting environmental science studies in the furtherance of Ecological Research. This Permit is given for the consideration mentioned below, and with the following conditions and understandings: 1. This Permit gives permission to use the equipment described above, on land owned by Permitter, more particularly described as a'' /z acre ofthe real property at 1801 East Chestnut Avenue, Santa Ana California. 2. This Permit is for a period commencing on or about October 1, 2013 and continuing through September 30, 2018 inclusive. Either party may terminate this Agreement at any time on or after October 1, 2014, by giving at least 120 days notice in writing. 3. Permitter agrees Permittee will pay no money ($0.00 annual compensation) for the use of the described property. 4. While the office /laboratory trailer is in place, the project personnel require 24/7 access to the site. 5. Permittee, or Permittee's agents, shall have the right of access to enter upon the foregoing premises; (1) to transport onto said premises such equipment, tools, supplies, and materials as it may require in conjunction with its activities; (2) and to work with or upon, construct, use, inspect, maintain, adjust, repair, replace, protect, move and remove any and all said equipment, tools, supplies, and materials. 6. All equipment placed by Permittee on the permitted premises shall be and remain the property of Permittee. Permittee shall have the right to remove any or all of its equipment, instrumentation and other property at any time. 7. In operating and maintaining its equipment and station, and in all other operations on the premises, Permittee shall use reasonable care and diligence and shall perform all work in a proper and workmanlike manner and so as to interfere as little as possible with other activities or uses to which the land may be put, and to avoid damage to the land, property, or personnel of Permitter. 8. To the extent practicable, Permittee shall confine its travel to established roads in order to avoid interference with other activities. 9. All gates used by Permittee shall be kept closed and locked, except when necessarily opened for actual passage or as required for routine Permitter operations. i Permit No. MP -570 25r -§ 10. Penn inee agrees to obtain, at its expense and own effort, any and all Permits, Licenses, Insurance, or other necessary authorities required for installation, operation or maintenance of its office /laboratory trailer and equipment. 11. Permittee agrees to conform to reasonable requirements as may be set forth by Permitter or Permitter's agent during the time of this Permit. 12. Permittee will pay for all materials placed upon, joined or affixed to said premises by or at the instance of Permittee and will pay in full all persons who perform labor upon said premises at the instance of Permittee, and will not suffer or permit liens of any kind or nature to be levied against said premises for any work done or materials furnished thereon at the instance or request of Permittee. 13. Permitter will not be held responsible for loss of, or damage to, equipment installed on the property by Permittee. 14. Each party agrees to comply with all local, state and federal laws and lawful regulations which are applicable to their respective operations hereunder. 15. The United States Geological Survey agrees to cooperate in the submission by Permitter or third parties of claims against the United States Geological Survey pursuant to the Federal Tort Claims Act for personal injury or property damage resulting from the negligent act or omission of any employee of the Government acting in the course of his or her employment, arising out of this agreement. (28 USC §I346(b), 2671, et se o.) 16. Any notice or demand required or permitted to be given or made hereunder shall be sufficiently made or given by certified mail, or express carrier such as UPS or FedEx, postage prepaid, and addressed: in the case of Permitter to: City of Santa Ana Santa Ana Zoo 1801 East Chestnut Avenue Santa Ana, CA 92701 in the case of Permittee to: U. S. Geological Survey, MS -225 345 Middlefield Road Menlo Park, California 94025 -3591 17. Any such notice or demand shall be deemed to have been given or made one day after deposited in the United States Post Office, or with an express carrier. Permitter and Perm ittee may designate any other address for this purpose by giving written notice to the other party. 18. Upon the expiration or termination of this Permit, including any renewals or extensions thereto, Permittee shall promptly remove any and all of its equipment within 30 days of notification, leaving the site neat and clean, and shall restore the premises as nearly as practicable to the condition at the start of this permit. 2 Permit No. MP -570 EXHIBIT 2 25F -10 19. No revision to this Permit shall be valid unless made in writing and signed by Permitter and Permittee (or their authorized agent.) 20. Permitter agrees to provide four (4) parking spaces designated as parking spaces for said Permittee's vehicles. Permitter agrees to provide additional parking for Permittee staff at no cost in Permitter public parking area. 21. Permitter agrees to provide space within 100 feet of Permittee trailer for placement of one steel storage container up to 40 feet in length. 22. Enclosed site map depicting the approximate location proposed for the office /lab trailer, attached hereto as Exhibit A, is made a part of this Permit. 3 Permit No. MP -570 EXHIBIT 2 25F -11 IN WITNESS WHEREOF, the parties hereto have caused this Permit for Environmental Science Studies Agreement to be executed by and through their authorized officers the day, month and year first written above. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: "Permitter" CITY OF SANTA ANA Kevin O'Rourke Interim City Manager "Permittee ": U.S. Dept. of the Interior Geological Survey Gerardo Mouet, Executive Director Norman Lee, Space Leasing Contracting Officer Parks, Recreation and U.S. Geological Survey Community Services Agency Permit No. MP -570 EXHIBIT 2 25F -12 Uf I-aA A E MaDjry Lri IN Lyon St N 1 > C:) 1— C) C14 r— C3) Ln 0 S < CL 0 IN Q(n ) CJ 2 m -C as 6 U Q z J < Cp m LL X LU U) to 0- S Elk Ln 142 S Lyon St 25F -13 I �k I ii A m 0 Ob o cor�el 0 Z c n5 m S 1-yon St aM 0 NG T EXHIBIT A - INSET 6 Permit No. MP -570 EXHIBIT 2 25F -14 0 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: AGREEMENT WITH MGT OF AMERICA, INC. FOR STATE MANDATED COST REIMBURSEMENT CLAIM SERVICES CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with MGT of America Inc, for State mandated cost reimbursement claim services for fiscal years 2013, 2014 and 2015, in an aggregate amount not to exceed $34,300 for the three -year period subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION Local agencies provide various programs and services which are mandated by the State of California. When the Governor or Legislature mandate new programs or higher level of service, the State Constitution requires the State to reimburse local agencies for all eligible expenses through the SB90 State mandated cost reimbursement claims process. Over the past three years, the City of Santa Ana has received approximately $200,000 per year in State reimbursements for mandated programs and services such as the Administrative License Suspension and Domestic Violence Arrest Policies and Procedures required in law enforcement agencies. A Request For Proposal was issued on July 18, 2013 to firms providing SB90 claim preparation services. MGT of America, Inc. (MGT), which has filed SB90 reimbursement claims with the State Controller's Office (SCO) since 1990, was the only responsive bidder. Staff recommends the selection of MGT for State Mandated cost reimbursement claim services. FISCAL IMPACT Funds are available in the State mandate cost reimbursement revenue account (account no. 01114002 - 50503) as funds are received. There is no direct fiscal impact on any expenditure accounts of the City or its related agencies. 25G -1 Agreement with MGT of America, Inc. for State - Mandated Cost Reimbursement Services September 16, 2013 Page 2 APPROVED AS TO FUNDS AND ACCOUNTS: � Francisco Gutierrez Executive Director Finance & Management Services Agency BT /MP 25G -2 AGREEMENT FOR STATE MANDATED COST REIMBURSEMENT SERVICES This Agreement is effective as of the Ise day of September, 2013 by the City of Santa Ana, a municipal corporation and charter City duly organized and existing under the constitution and laws of the State of California ( "City ") and MGT of America, Inc. ( "Consultant "), a California Corporation. RECITALS A. The City desires to retain a Consultant having special skill and knowledge in the field of preparing applicable State Mandate Reimbursement claims in order to maximize revenue to City. B. The City issued a Request for Proposals for said services on July 18, 2013 (RFP 13 -035) and based upon the proposals received, this contract is being awarded to Consultant. C. Consultant represents that Consultant is an independent contractor that has the knowledge and experience to prepare and submit such State Mandate Reimbursement claims on behalf of City. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Consultant shall perform those services and provide those products as set forth in Exhibit A to this Agreement. The following terms shall apply to the terms and conditions set forth in Exhibit A: 1) City shall approve each claim; 2) Claim shall be filed based upon proof of City costs; 3) Claim shall not be filed if costs do not exceed One Thousand Dollars ($1,000) per program per year. If data needed to file applicable claims is not provided by City in a timely manner Consultant cannot guarantee timely submission of claims. Consultant will file the claims with information obtained from City. Consultant shall only file claims for which adequate records or documentation has been provided by City. 2. TERM This Agreement shall commence on the date first written above and be effective for a three (3) year period with two (2) additional one -year options to renew at the City's discretion, unless terminated earlier in accordance with Section 15, below. The term of this Agreement may be 25G -3 extended upon a writing executed by the Executive Director of the Finance Department and the City Attorney. 3. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, identified in Exhibit A, Consultant agrees to file all eligible annual fiscal year actual cost reimbursement claims by the due date in accordance with the annual fixed fee schedule: Claims Covered Claims Due Date Annual Fixed Fee 2012 -2013 Annual & New February 15, 2014 $11,500 2013 -2014 Annual & New February 15, 2015 $11,400 2014 -2015 Annual & New February 15, 2016 $11,400 b. City shall be billed quarterly for the annual fixed fee. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. INSURANCE Consultant shall obtain and maintain for the entire term of this Agreement comprehensive general liability insurance, with companies acceptable to the City, authorized to issue such insurance in the State of California. Said insurance shall consist of the following: a. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. b. Professional Responsibility (Errors and Omissions) insurance with a combined single limit of not less than $1,000,000.00 per claim. c. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. 25G -4 5. LIABILITY Consultant shall be responsible for performing the work pursuant to this Agreement in a professional manner and shall be responsible for the acts and omissions of its employees as related to this Agreement. Liability of Consultant to City with regard to all work and services performed or provided by Consultant for City under this Agreement shall be limited to the total fee actually paid by City to Consultant. Under no circumstances shall Consultant have any liability to City in excess of the amount of such fees or compensation. City acknowledges and agrees that but for the above limitation of liability, Consultant would not be able to provide the services for City under this Agreement for the prices applicable to this Agreement, and that this limitation of liability is reasonable. 6. WORK COMPLETION IN A TIMELY MANNER City agrees to provide information needed to complete the claims two weeks prior to the established due date or two weeks after the data has been requested by the Consultant, whichever is first. If information has been received in a timely manner, Consultant agrees to complete and file the claim(s) on or before the date established for submitting such claims to the State of California. If data is not provided in a timely manner and Consultant is unable to complete the claims, the claims shall be submitted late, when allowed by the State. City understands that late claims are subject to a 10% or One Thousand Dollar ($1,000) per claim penalty (whichever amount is less) up to one year after the original due date. City understands that the State does not allow claims to be submitted more than one year after the original due date. Consultant shall not be responsible for late penalties or for the loss of claiming opportunities. Consultant shall not be liable for any claims not filed due to incomplete, insufficient, or late information. Consultant shall be responsible for late penalties or failure to file claims if caused by mistake or negligence of its employees, officers and agents. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 8. ASSISTANCE IF AUDITED In the event an audit is conducted by the State Controller's Office and upon notification by City, Consultant shall assist City in defending its' claim(s). 25G -5 9. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the negligent operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: 25G -6 To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 telefacsimile (714) 647 -6956 With courtesy copies to: Executive Director of Finance City of Santa Ana 20 Civic Center Plaza (M -17) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) and City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647 -6515 To Consultant: MGT of America California Office: MGT of America, Inc. J. Bradley Burgess, Vice President 2001 P Street, Suite 200 Sacramento, CA 95811 Phone: 916 - 595 -2646 bburgess@mgtamer.com Corporate Headquarters: MGT of America, Inc. 2123 Centre Pointe Blvd. Tallahassee, Florida 32308 Phone: 850 - 386 -3191 Fax: 850 - 385 -4501 www.mgtofamerica.com A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, 5 25G -7 communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. a. The Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by 25G -8 applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 17. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 18. PRO F +SSIONALLICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 19. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 25G -9 IN WITNESS WHEREOF, the parties have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Lisa Storck Assistant City Attorney 25G -10 CITY OF SANTA ANA Kevin O'Rourke Interim City Manager MGT of America By: Title: TaxID# 59- 1576733 MGT of America Response to the City of Santa Ana Request for Proposal 13 -035 for Mandaled Cost Claiming Services (SIB 90) EXHIBIT A Within the past five years, MGT of America has not been a party to any litigation relating the work described by the City's RFP, B. Scapa of Service Understanding of the Project The City of Santa Ana Is a California public agency that wishes to supplement existing revenue sources by filing state mandate cost claims (SB 90 claims) with the California State Controller's Office (SCO). Lice many public agencies in California, the City of Santa Ana has weathered a significant economic downturn over the past decade. Generating sufficient revenue to offset the growing demands for service and Increased costs in many areas of government remains a challenge, It Is our understanding that the City of Santa Ana would like to partner with a qualified consulting firm that specializes In SB 90 consulting to do the following: r Prepare and file all eligible S690 claims for annual claims and associated ICRPs due during Fiscal Year 2013 -2014 and the subsequent two Fiscal Years, 2014 -2015 and 2015 -2016. > Prepare and file all eligible SIB 90 claims for all new or first -time mandates and associated ICRPs, which have claiming Instructions issued by the State Controller's office during Fiscal Year 2013.2014 and the subsequent, two Fiscal Years, 2014.20 f 5 and 2015 -2016. > Assist the City with all aspects of remittance tracking including annual claim recelpts and claims paid reports. r Provide assistance to the City in responding to Inquiries about and /or defending claims filed by the City that are audited by the State Controller's office. r Provide guidance to the City in determining the data required for claims submission and about new claiming opportunities Including knowledge transfer and training related to the SB 90 process at the state level, > Furnish copies of all ciatms filed with the State within 30 days after the filing and provide copies of working papers upon request, Following Is the MGT of America plan to accomplish your request on time and on budget. MGT UR ,M%. IQ.. Im.. 25G -11 (490 MGT of America Response to the Gily of Sunlo A.nr7 Request for Proposal 13 -033 for hicindolecl Cos! Claiming Services (S13 90) EXHIBIT A Annual, New and Initial Claims: Preparation and Submission r Establish schedule and approach needed to complete all annual claims due to the state by February 15, 201.4. This Includes on -site interviews with all applicable City department personnel. r Identify new clalms that are expected to become mandated programs during FY 2013-2014, and the departments likely to be affected by these claims. As part of this step, MGT will provide early claim summaries and data collection requirements to provide a head start on documentation strategies. > Work wtch the City, as new claiming Instructlons are issued by the SCO, to establish schedules and approaches needed to complete all new or first -time claims due during the Fiscal Year. > Facilitate department interviews where staff describe how the City complies with the specific mandated programs and assist the City to determine eligible costs based on the following criteria: • The test claim's Statement of Decision • The California Commission on State Mandates approved Parameters and Guidelines • The SCO's claiming instructions • How other agencies around the state are complying with and interproting the mandate r Prepare all necessary department -wide ICRPs in accordance with OMB A -87. MGT consultants have prepared thousands of ICRPs over the past 25 years. We believe that our experience has developed a depth of understanding that Is unmatched in the field. r Prepare all eligible claims for the City's SB 90 programs, and review the claims for completeness, propriety, and eligibility of costs. s Perform a quality assurance review of the City's SIB 90 claims to ensuro that they mesh with the associated department ICRPs and verify that no direct costs are double counted. r Discuss any potential or necessary changes wtth the appropriate City staff member. r Provide the completed claims and ICRPs to the City for review and signature at least three weeks prior to the claiming deadline. > File the signed claims with the SCO prior to the deadline. MCIT OF EMGMIC•. IFIe. 25G -12 `sk REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: AGREEMENT WITH SIEMENS INDUSTRY INC. FOR POLICE FACILITY FIRE SYSTEM MAINTENANCE AND CITY -WIDE HVAC SYSTEM REPAIRS 21 MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: UT100TOTWE ❑ 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 an agreement with Siemens Industry, Inc. to provide Police facility fire system maintenance and City -wide HVAC system repairs for a one -year period in an amount not to exceed $61,660, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Police Department utilizes Siemens Industry, Inc. fire systems and controls throughout its administration and holding facility. Siemens provides fire system maintenance, which includes emergency on -site response 24 hours a day, an annual test of all fire systems by certified specialists, sensitivity testing of all smoke detectors, cleaning of smoke detectors, and repair and replacement of failed or worn components. In addition, other City facilities, including City Hall, the Main Library, City Yard, El Salvador Center and the Regional Transportation Center utilize Siemens for HVAC maintenance and repairs. The vendor has agreed to renew the contract with a 3 percent increase in pricing, and staff recommends renewing the contract for an additional year. FISCAL IMPACT Funds are available in the Police Department's Building and Facility account (no. 01114403 62300) and other department's contract services accounts (nos. 62300). Carlos Rojas Acting Police Chief Police Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Mgmt Services Agency`/ 25H -1 25H -2 MAINTENANCE AGREEMENT THIS MAINTENANCE AGREEMENT, made and entered into this 16`1' day of September, 2013 by and between Siemens Industry, Inc. (Building Technologies Division), a Delaware Corporation, hereinafter ( "Consultant "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of administering, maintaining and testing the fire alarm system at the Santa Ana Police Department and repairing and maintaining the HVAC System at all City buildings. B. City and consultant had a contract since 2009 with amendments to the contract in 2010 and 2011 to provide fire alarm maintenance and repair services at the Santa Ana Police Department. The parties intended to amend the contract for a final year in 2012 but it was not done. However, consultant continued to provide services and City continued to utilize consultant's services during January 2013 to the present. City and consultant intend to memorialize their intention to continue with the agreement until December 31, 2013 by way of this Building Maintenance Agreement. C. Consultant represents that it is able and willing to continue to provide such services to the City. D. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting f mi in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES A. Consultant shall perform such fire alarm administration, maintenance and testing on the fire alarm system at the Santa Ana Police Department as outlined in the attached Exhibit "A and B. Consultant shall perform such services as may become necessary for maintenance and repair of the City's HVAC system and as requested by City at the prices set forth in the attached Exhibit `B" entitled Price List. 25H -3 2. COMPENSATION A. Consultant shall perform such fire alarm administration, maintenance and testing on the fire alarm system at the Santa Ana Police Department as outlined in the attached Exhibit "A" as needed and will bill the City on a quarterly basis at a rate of $7,915 a quarter for a total amount of $31,660 as set forth in the attached Exhibit "C'; and B. Consultant shall perform such services as may become necessary for maintenance and repair of the City's HVAC system and as requested by City at the prices set forth in the attached Exhibit `B" entitled Price List, specifically ASA Customer Rates, for a total amount not to exceed $30,000. 3. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2013, unless terminated earlier in accordance with Section 12, below. The term of this Agreement shall include services previously provided since January 1, 2013 to the date of this Agreement. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: 25H -4 a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting there from and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting there from, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insured's provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. c. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be famished to the City upon execution of this Agreement and shall be approved in form by the City Attorney, (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal 25H -5 injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. Consultant shall keep all medical information confidential and shall comply with all state and federal laws, including but not limited to, privacy laws including HIPPA. If Consultant becomes aware of a breach of security regarding confidential medical information obtained as a result of this Agreement, Consultant will notify City and the effected individual in writing immediately and no less than five (5) days thereafter. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 25H -6 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Facsimile (714) 647 -6956 With courtesy copies to: M To Consultant: Chief of Police Santa Ana Police Department City of Santa Ana 60 Civic Center Plaza (M -97) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 245 -8007 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647 -6515 Siemens Industry, Inc., (Building Technologies Division) 10775 Business Center Drive Cypress, California 90630 Facsimile (714) 761 -0274 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 25H -7 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by either the City or Consultant upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 25H -8 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies including the California Board of Chiropractic Medicine. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney BY: Laura A. Rossini Assistant City Attorney CITY OF SANTA ANA KEVIN O'ROURKE Interim City Manager 25H -9 RECOMMENDED FOR APPROVAL: SIEMENS INDUSTRY, INC. CARLOS ROJAS Acting Chief of Police (Name) (Title) SIEMENS INDUSTRY, INC., (Building Technologies Division) Tax ID# 25H -10 EXHIBIT A SCOPE OF SERVICES 25H -11 Advantage Services® Agreement for City of Santa Ana, Police Department Fire Life Safety Test and Inspection September S, 2013 SIEMENS Advantage Services Agreement for January — December 2013 City of Santa Ana September S, 2013 Siemens Industry, Inc. 9/6/2013 25H -13 Page 1 Table of Contents Advantage Services 1 t')varvievi 1.1 Executive Summary 1.2 Customer Objectives 13 Current Situation 1.4 Siemens Capabilities & Commitment to Our Customers 7 Service SOlutlon 2.1 FIRE ALARM & LIFE SAFETY SERVICES 2.1.1 Customer Support Services 2.1.2 Technical Support Services 3 Serdtce Implementation plan 3.1 Maintained Equipment Table 3.2 Additional Fire Alarm Material List 3.3 Service Team 1 Siemens Industry, Inc. L 1 Signature Page and Investment By and Between: 12 Terms And Conditions �ppcusliz :A Labor & 6lawial Pricmv Siemens Industry, Inc. 9/6/2013 25H -14 Page 2 3 3 3 4 4 4 4 5 5 6 7 a 8 9 „ 1 Overview 1.1 Executive Summary You have made a significant investment in your facility and its complex technical systems which are critical to the profitability and productivity of your overall business. This proposed service solution, our Service Agreement, will proactively serve to protect that substantial investment through a program of planned service tasks by our trained technical staff. This Service Agreement has been specifically developed to support your unique facility, and the services provided herein will help you in achieving your facility goals. Siemens Project and Account Management Manage and coordinate service program (On and Off Site), responsible for ensuring that our contractual obligations are delivered, your expectations are being met and you are satisfied with the delivery of our services. • NFPA 72 Fire Alarm Testing and Inspections 100% Annual testing of all fire panels, annunciation, smoke detectors, heat detectors, duct detectors, manual pull stations, audio and visual devices, including horns and strobes, magnetic door holders. Semi - Annual testing of waterflow and tamper switches. Smoke Detector Cleaning and Sensitivity also included. 1.2 Customer Objectives City of Santa Ana, Police Department is requesting a proposal to provide fire alarm system maintenance services under one program that coincide and meet NFPA 72: National Fire Alarm Code® and as adopted by the local authority having jurisdiction. This program will include scheduled testing only. Labor, field devices and equipment coverage or replacement is not included in this agreement. This program will encompass the following buildings/campuses: • City of Santa Ana, Police Department — 60 Civic Center Plaza, Santa Ana, CA 92702 City of Santa Ana, Police Department and Siemens Industry, Inc. understand that all buildings on each campus is covered under this program. At anytime, City of Santa Ana, Police Department has the option to add additional buildings and parking structures to this program as an amendment to this agreement. In addition, City of Santa Ana, Police Department and Siemens Industry, Inc. understand that fire codes are periodically reviewed and modified by local, state, and national jurisdictions. If at any time the codes change and it will affect the performance of the scope of work within this agreement, Siemens Industry, Inc. holds the right to negotiate with City of Santa Ana, Police Department in order to be duly compensated for the additional work required. The intent of the request is to enter into an agreement with Siemens Industry, Inc. as the preferred vendor for the most feasible and expeditious service while maintaining the highest quality performance. 13 Current Situation During a recent internal review City of Santa Ana, Police Department has identified some areas of improvement in the current implementation of their management of the fire alarm system maintenance program for the Police Department. City of Santa Ana, Police Department management has asked Siemens Industry, Inc. to assist in providing a technical support program to assist them close the gaps on the areas identified during our meeting. Siemens Industry, Inc. 9/6/2013 25H -15 Page 3 It has also been shared and discussed at great length that a new approach and plan to the fire alarm system maintenance program is needed. Siemens Industry, Inc. and the City of Santa Ana, Police Department agree that the need for a service agreement will to be implemented where as Siemens Industry, Inc. will enter into a partnership with City of Santa Ana, Police Department. 1.4 Siemens Capabilities & Commitment to Our Customers Siemens Industry, Inc. is the leading single - source provider of cost - effective facility performance solutions for the comfort, life safety, security, energy efficiency and operation of some of the most technically advanced buildings in the world. Siemens is pleased to offer this proposal for technical support services to your facility. For more than 150 years, Siemens has built a culture of long -term commitment to customers through innovation and technology. We are confident that we have the capabilities to meet your critical facility needs today and in the future, and we look forward to the opportunity to serve you. 2 Service Solution 2.1 FIRE ALARM & LIFE SAFETY SERVICES 2.1.1 Customer Support Services Written Report of All Services Performed We will complete a service report for each visit detailing the purpose of the call and summarizing the work that was performed. Life Safety Log Book We will provide a life safety log book containing information and guidance on the management of the Life Safety System. All service records shall be recorded and kept within the log book. This log book shall serve as a reference for local authorities, insurance carriers, and Siemens technical personnel. Fire Alarm System Testing & Inspection We will perform annual tests of all covered fire systems by certified specialists using testing protocols specified by NFPA as well as any local guidelines that are required for your facility. Necessary documentation detailing the results of the inspection, including a list of deficiencies, will be provided upon completion of the test to satisfy the AHJ and to maintain your Certificate of Occupancy. The equipment included as part of this testing agreement is listed in the List of Maintained Equipment section of this service agreement. Siemens will provide a man -lift, if necessary. Smoke Detector Cleaning and Sensitivity Testing Smoke Detector Sensitivity testing will be performed, in accordance with NFPA guidelines, using the manufacturer's recommended test methods and a UL approved testing device. We will provide an analysis of the test results along with recommendations for detectors that require either cleaning or replacement. A proposal to provide all deficiency repairs will be provided separately. Siemens Industry, Inc. 9/6/2013 25H -16 Page 4 2,L2 Technical Support Services Emergency Onsite Response: Monday through Sunday, 24 Hours per Day Emergency Onsite Response will be provided to reduce the costs and disruptions of downtime when an unexpected problem does occur. Siemens will provide this service between scheduled service calls and respond onsite at your facility within 4 hours for critical emergencies, or within 8 hours non - emergency conditions, Monday through Sunday, 24 hours per day, including Holidays, upon receiving notification of an emergency. Critical emergencies, as determined by your staff and Siemens, are failures at a system or panel level that would result in the loss of the operation of an entire section of a building or place the facility at high risk. Non - emergency conditions, as determined by your staff and Siemens, are failures at an individual component level resulting in minimal impact to the overall operation of the facility. Non - emergency conditions, as determined by your staff and Siemens, may be incorporated into the next scheduled service call. 3 Service Implementation Plan 3.1 Maintained Equipment Table SIEMENS Siemens Industry, Inc. Service Agreement Equipment . .. .. Number Field Addressable Pull Field Peripherals Peripherals Station 88 Services (Times per year): Test and Inspection (1) Remote Control & Control & Control /Annunciator 3 Annunciation Annunciation Panel Services (Times per year): Test and Inspection (1) Control & Control & NCCNT Computer 2 Annunciation Annunciation Services (Times per year): Test and Inspection (1) Detectors Detectors Addressable 817 Smoke Detector Services (Times per year): Test and Inspection (1) Detectors Detectors Addressable Duct 82 Detector Services (Times per year): Test and Inspection (1) Addressable Heat Detectors Detectors Detector 57 Siemens Industry, Inc. 9/6/2013 Page 5 25H -17 Services (Times per year): Test and Inspection (1) Qty Mfg/Model Number 3 Field Field Peripherals Door Holders 20 Peripherals 6 Services (Times per year): Test and Inspection (1) 6 Phone Field 1 Peripherals Field Peripherals JacksNVarden 5 Stations Services (Times per year): Test and Inspection (1) Field Field Peripherals Speakers /Horns Peripherals 79 Services (Times per year): Test and Inspection (1) Field Field Peripherals Speakers /Horns 104 Peripherals with Strobes Services (Times per year): Test and Inspection (1) Field Field Peripherals Strobes 68 Peripherals _ Services (Times per year): Test and Inspection (1) Field Field Peripherals WaterFlow Switch 31 Peripherals Monitor Module Services (Times per year): Test and Inspection (2) Field Field Peripherals Tamper Switch 52 Peripherals Monitor Module Services (Times per year): Test and Inspection (2) Control & Control & Digital Dialer 2 Annunciation Annunciation Services (Times per year): Test and Inspection (1) 3.2 Additional Fire Alarm Material List Equipment Edwards IRC -3 FACP Qty Mfg/Model Number 3 Field Transponders 3 Voice -Com 6 Power Boosters 6 Remote Graphic Annunciator 1 Printer 1 Parts — Up to $500 1Device Siemens Industry, Inc. 9/6/2013 25H -18 Page 6 3.3 Service Team An important benefit of your Service Agreement derives from having the trained service personnel of Siemens Industry, Inc. familiar with your building systems. Our implementation team of local experts provides thorough, reliable service and scheduling for the support of your system. The following list outlines the service team that will be assigned to the service agreement for your facility. Your Assigned Team of Service Professionals will include: Denise Read — Senior Account Executive, Fire manages the overall strategic service plan based upon your current and future service requirements. Victor Johnson — Operations Account Engineer is responsible for ensuring that our contractual obligations are delivered, your expectations are being met and you are satisfied with the delivery of our services. Vishal Gupta - Service Operations Manager is responsible for managing the delivery of your entire support program and service requirements. Maria Smith - Service Coordinator is responsible for scheduling your planned maintenance visits, and handling your emergency situations by taking the appropriate action. Mike Reinig - Service Administrator is responsible for all service invoicing including both service agreement and service projects. Siemens Industry, Inc. 9/6/2013 25H -19 Page 7 I Siemens Industry, Inc. 1.1 Signature Page and Investment By and Between Siemens Industry, Inc. City of Santa Ana, Police Department 10775 Business Center Drive 20 Civic Center Plaza, Room B -19 Cypress, CA 90630 Santa Ana, CA 92702 Denise Read, 714 252 -1346 John Aguilar Services shall be provided at 60 Civic Center Plaza, Santa Ana, CA 92702 Siemens Industry, Inc. shall provide the services as outlined in the attached proposal dated 09/05/13 and the attached terms and conditions. This agreement shall remain in effect for an Initial Term of I year beginning 0 1/0 1/2013 and from year to year thereafter. Investments Year 1 0 1/0 1/2013 to 12/31/2013 $31,660 annually paid $31,660 in advance Applicable sales taxes are not included in the price of this proposal. Prices quoted in this proposal are firm for 30 days. Proposal accepted by: Proposal submitted by: Denise Read Facilities Department Senior Account Executive, Fire City of Santa Ana, Police Department Siemens Industry, Inc. Signature P.O.# Or Customer purchase order included as an attachment to this agreement and will be referenced on invoices. Customer purchase order not required. Invoices will be approved and processed with signature of authorized customer representative. Signature Date Eric Ackermann Southern California FSS Area Sales Manager Signature Date The Customer acknowledges that when approved by the Customer and accepted by Siemens Industry, Inc.: (i) the Proposal and the Contract Terns and Conditions, (together with any other documents incorporated into the forgoing) shall constitute the entire agreement of the parties with respect to its subject matter (collectively, hereinafter refemed to as the "Agreement -) and (ii) in the event of any conflict between the terns and conditions of the Proposal and the terms and conditions of The Contract Temps and Conditions, the Contract Terms and Conditions shall control. BY EXECUTION HEREOF, THE SIGNER CERTIFIES THAT (S)HE HAS READ ALL OF THE TERMS AND CONDITIONS AND DOCUMENTS, THAT SIEMENS INDUSTRY, INC. OR ITS REPRESENTATIVES HAVE MADE NO AGREEMENTS OR REPRESENTATIONS EXCEPT AS SET FORTH THEREIN, AND THAT (S)HE IS DULY AUTHORIZED TO EXECUTE THE SIGNATURE PAGE ON BEHALF OF THE CUSTOMER. Siemens Industry, Inc. 9/6/2013 Page 8 25H -20 1.2 Terms And Conditions SERVICE TERMS AND CONDITIONS (REV. 10109) Ankle /: General 1.1 (a) This Agreement constitutes the entire, complete and exclusive agreement between the parties relating to the sarvice; (- Servai to be provided by SIEMENS and supersedes ant cancels all pnor proposals, agreements and understandings, written Or Orel, raising to the subject matter of this Agreement. Neither parry may assign the Agreement or any rights or Obligations hereunder without the prior written consent of the other except that either PeM may assign this Agreement to Its affiliates and SIEMENS may Brent a security interest in the proceeds to be paid to SIEMENS under this Agreement', assign proceeds of the Agreement. and/or use subcontractors in performance of the Services . The terms and conditions of this Agreement shall not be modified or rescinded except in writing. with the prior approval of the legal Departments of SIEMENS and Customer arW signed by duly authorized officers or managers of SIEMENS and Customer 101 Nothing contained In this Agreement shall be constmed to give any n9Ms or benefits to anyone other Ben the Customer and SIEMENS without the express written consent of both parties. Al provisions of this Agreement allocating respenslblllly or Ilabilty between the parties ,half survive the completion of the Services and termination of this Agreement. (c) Certain terms and conditions contained herein may not apply to the Services to be provided hereunder It is the Intent of the parties, however, that the interpretation to be given to the terms and Conditions, is to apply a0 terms and conditions unless deady inapplicable given the type of Services inaiuded. 1.2 This Agreement shelf be governed by and enforced in accordance with the laws of the State of Illinois. Any litigation arising under this Agreement shall be brought in the State x CommormveaM in which the Services are provided to Customer. TO THE EXTENT PERMITTED BY LAW. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL ON MATTERS ARISING OUT OF THIS AGREEMENT. 1.3 Atte the exphatlor of de Mi Tenn.9is Agr a stet aLt m caly rerewfa vxes onoyearperiodsbeWnngenI amverswydate Otde IMet Term Ixiess dated dlerwise p, the Ayeemet. 14 EiiFa petty may tannWe a amend this AgeertaY et the ad of the Wtinl Tenn or at vie end of a renewal land by gvirg Me offer party at least shay (60) days pna w RIa NECe of sap, armand ert, a intent hat 10 RMw . 1.5 IT fixing a wtttin W dan ri me, tram of this Agreement. Cus. engages "SIEMENS employee wNo 1es pManxtl wet Wprthis a any War ageertlelt between Customer and! SIEMENS. Customer shot pay SIEMENS an amount equal to the enpt»ee's West small a." Article 2: Covered Equipment 2.1 'covered equnpnanY shall mean that equipment expressly Identified as System Components in this Agreement The Customer represents that at the commencement of this Agreement all Covered Equipment is in satisfactory working condition and complies with all applicators codes. 2.2 If the fire o life safety system is included as part of the Covered Equipment does rot comply with all applicable codes or if removal of any Covered Equipment from coverage would compromise or impair the integrity Or Me compliance wth raw of any system or Services. and Customer falls to take corrective action, than SIEMENS may terminate this Agreement without further obligation and retain all motes received pursuant to this Agreement. 2.3 Alf testing and inspection of any Covered Equipment provided for in this Agreement will be performed at the time add place ant in the manner deemed appropriate by SIEMENS, in accordance with applicable law and the requirements of than current National Fire Protection Association b °NPPA1 guidelines R applicable, and other relevant standards. Customer is solely responsible for and hereby indemnifies and holds SIEMENS harmless from and against, any lability arising from Customers specification of a testing schedule Other than then current NFPA or other applicable standards or laws. 2A If the Covered Equipment is altered or moved by any person, including Customer, other than SIEMENS or a person authorized by It, Customer shell Immediately notify SIEMENS in waiting, and SIEMENS reserves the right to Perform a reacceptance test on, Or If necessary, a recommissioning of the system at Customers expense. Reacceptance tests will be performed in accordance with than current NFPA or other applicable requirements, and charged on a time and materials basis. Ankle 3: Services by SIEMENS 3.1 SIEMENS shall only perform the Services identified in this Agreement. 3.2 SIEMENS shall have no [lability or obligation to continue providing Services in the event Customer fails to (a) authorize a reaccepance test or recommissioning that SIEMENS reasonably deems necessary; (b) notify SIEMENS Of any modifications or changes to the Covered Equipment or unusual or materially changed operating conditions. hours of usage. system malfunctions or building alterations that may affect the Services (c) poVldether access to any site where Services are to be performed: or (d) Operate, service Or maintain the Covered Equipment in accordance with manufacturers or supplier's indmdions or this Agreement. Aker any of me aforesaid events SIEMENS may terminate or suspend services under this Agreement immediately, upon giving notice to Customer. 3.3 Any repairs and replacements of Covered Equipment as maybe expressly Siemens Industry, Inc., Building Technologies Division included in the Services are limited to restoring the proper working condition of such Covered Equipment. SIEMENS will not he obligated to provide replacement Covered Equipment that represents significant capital Improvement compared to the original. Exchanged or removed components became the property of SIEMENS. except Hazardous Materials, which under al circumstances remain the property and responsibility of Customer. 3.4 Unless agreed otherwise. Services do not include and SIEMENS is not responsible fair (a): list semce or provision of consumable supplies, including but not limited to baltan is and helon cylinder charging (b) reinstallation or relocation Of Covered Equipment. (c) painting or refinishing of Covered Equipment or surrounding surfaces. (d) changes to Services: (e) Perts. accessories, attachments or other devices added to Covered Equipment bid not furnished by SIEMENS @ failure to community provide suitable Operating enviroomant Inducing, but no lirsted to, adequate space. ventilation, electrical power and protection from the elemeMsl or (g) the removal at reinstallation of replacement valves, dampers, wategow switches, venting or draining systems. SIEMENS Is not responsible for services performed on any Covered Equipment Other then by SIEMENS or its agents. 15 The Services shall be performed in a manner consistent with the degree of care and skill ordnany exercised by persons performing the same or similar Semces in the same locale under similar circumstances and conditions. 3.6 SIEMENS shall perform toe Services Wring its local, normal working hours, unless otherwise stated in this Agreement. 3.7 SIEMENS is not nequired to condi d safety or other tests, Install Or maintain any devices or equipment or make modifications or upgrades to any equipment beyond the scope of this Agreement. Any request to change the scope or the nature of the Services must be in the form of a mutually agreed change order, effective only when executed by all partles hereto. 3.8 At reports and admings specifically prepared for and deliverable to Customer pursuant to this Agreement (*Oeliverabss') shall become Customers property upon full payment W SIEMENS. SIEMENS may retain file copies of such Deliverables. All other reports. notes, calculations, date, drawings. estimates, specifications, manuals, Other documents and all computer programs, codes and computerized marshals prepared by Or for SIEMENS are instruments of SIEMENS work ('Instruments) and shall remain SIEMENS property . Siemens conveys no sparse to software unless Otherwise expressly provided in this Agreement. All Deliverables and Instruments provided to Customer are for Permitted Users' use only for the purposes disclosed to SIEMENS, and Customer shell not transfer them to others or use them a permit them to be used for any extension of the Services or any other purpose, without SIEMENS' express written consent. Afey, reuse of Delverebles a Instruments for other projects Or locations without the written consent of SIEMENS, p use by an y party other win Permitted Users, will be at parmined Users' sole risk and without liability to SIEMENS: and, in addition to any other nghts SIEMENS may have. Customer shall Indemnity, defend and hold SIEMENS harmless from any claims, losses or damages ending therefrom. 3.9 Customer acknowledges that SIEMENS, to Ile normal conduct of its business. may use concepts, skills and know-how developed while performing other contracts. Customer acknowledges the berlefll which may accrue to it though this practice, and accordingly agrees that anything In this Agreement notwithstanding Siemens may continue without payment of a royalty, this predicts of using concepts, skids and maw -how developed while performing this Agreement. 110 Where Sentices inchde energy ceosting any estimates of probable construction or implementation costs, financial evaluations. feasibility studies of economic analyses Prepared by SIEMENS. the documents Prepared for the Customer will represent SIEMENS' best )udgmem based on SIEMENS' experience and the Information reasonably available to SIEMENS at the time that the Services are perfom ed. Customer sclmowedges that SIEMENS does not control: (a) the costs of labor, materials, equipment or services fumished by Others, (b) overall market conditions: or. (c) compactors' methods of determining pnces. Accordingly, Customer acknowledges that proposals, bids or actual costs may differ from opinions, evaluations or Studies submitted by SIEMENS as part of the Semces provided hereunder. 3.11 Where Services Include EMC, SIEMENS will have a disaster recovery plan and a disaster contingency plan. Arfkk4- Resporu/b/lit/esof Customer 41 Customer, without cost to SIEMENS. shall. (a) Designate a contact person with authority to make decisions for Customer regarding the Services and provide SIEMENS with information sufficient to correct such person to an emergency if such representative cannot be reached. any request for Services received from a person located at Customer's site will be deemed authorized by Customer. and SIEMENS MR. in its reasonable discretion, ad accordingly; (b) Provide or orange without cost all reasonable pro an visions, mes and access for SIEMENS to airy site and the equipmera wnere Services are to be Performed: (c) Permit SIEMENS to control and/or operate all controls. systems. apparatus, equipment and machinery necessary to perform me Services, Sxn cli Only 2009 Siemens Industry, Inc. 9/6/2013 Page 9 25H -21 (d) Furnish SIEMENSMth all available information pentlnenttm the Services: (e) Obtain and furnish to SIEMENS all apPrOVals. permits and consents from government authorities and others as may be required for performance of the Services except for those SIEMENS has expressly agreed in writing to obtain: (f) Maintain the Services site in a safe condition; notify SIEMENS promptly of any site conditions requiring special care; and Provide SIEMENS with any available documents describing the quantity. nature. location and extent of such conditions; (g) Comply with all laws and provide any notices required to be given to any government authorities in connection with the Services, except such notices SIEMENS has expressly agreed in this Agreement to give; (h) Provide SIEMENS with Material Safety Data Sheets (MSDS) conforming to OSHA requirements related to all Hazardous Materials at the site which may impact the Services: (i) Furnish to SIEMENS any contingency plans related to the site 1) Fumtsn the specified operating environment. including without limitation. suitable, clean, stable. property conditioned electrical power and other utilities: (k) Maintain all Covered Equipment in good woridng order in compliance with al applicable laws and service, repair and replace all Covered Equipment as necessary; and. (1) Perform inspections and tests as indicated in the Life Safety System Logbook and record same in the Life Safety System logbook. 4.2 Customer acknowledges that Me technical and pricing information herainis proprietary to SIEMENS and agrees not to disclose o otherwise make it available to others. 4.3 Customer acknowledges that it is now and shall be at al times in control of the Services site. SIEMENS shall not have any responsibility, duty or authority to direct, supervise or oversee any employees or contractors of Customer or their work or to provide the means, methods or sequence of their work or to stop their work. SIEMENS work and /or presence at a site all not relieve others of their responsibility to Customer or to others. Except as expressty provided herein. SIEMENS is not responsible for the adequacy of the health, safety or security programs or precautions related to Customer's or it other contractors activities or operations; the work of any other person or enbry: or Customers site conditions. SIEMENS is not responsible for inspecting, observing, reporting or correcting health or safety conditions or deficiencies of Customer or others at Customers site So as not to discourage SIEMENS from volur ally addressing such issues, in Me event SIEMENS does make observations, reports. suggestions or Othervvise regarding such issues, SIEMENS shall not be liable or responsible for same. 4.4 Except as expressly stated in this Agreement, Customer is solely responsible for any removal. replacement o refinishing of the building structure or finishes that may be required to perform or gain access to the Services. 4.5 Customer alone shad ad to Prated life and property from the time a partial or full system failure occurs until SIEMENS notifies Customer that such system is operational or roe emergency has been cleared. Customers actions ship include all epproptlale interim safety precautions (such as a manual "fire watch9. SIEMENS shall have w obligation to provide guards, fire watch personnel. W other services following a System false. except Services as are specifically provided for in this Agreement. 4.6 Customer shell rat attach to the system or Covered Equipment any device that interferes with the Services or the proper operation of the system or Covered Equipment. Artiche 5. Compensation 5.1 Annual Fee(si shall be adjusted for each year after the final year of the Initial Term pursuant to the agreed Price Adjustment hereto and incorporated herein. Unless otherwise agreed in writing, ills Agreement is not cancelable and the annual fee is not refundable except as provided herein. 52 payments to be made under tts Agreement wg proved for, and be in consideration of, oty Services speci8cdy, included ender the Proposed Saudi Al ether SeMces, including bit rid meted to Oro fdlawing, shell be uPargay riled or exchanged on a time sM materials basis: (a) emergency Services performed at Customers regest, 0 Inspection does rid reveal any deficiency covered by the Agreement th) Services performed other than dog SIEMENS' normal wCh" Nouns: and(q Serves pedomedonee pmentnot cokedby MSAgmamnd. 5 -3 SIEMENS shall invoice Customer as provided in this Agreement, or if not expmssy provided. then on an annual basis prior to the Start Date and annually thereafter on the anrxversary of such Start Date. Invoices are due and payable net cash upon receipt unless Customer has applied and been approved for credit with SIEMENS, in which case the imalce is payable within 30 calends days of receipt by Customer o as otherwise set forth in this Agreement. If an payment is not received when due, SIEMENS may deem Customer to be breach hereof and may enforce any remedies available to it hereunder or a law, inducing without limitation, acceleration of payments and suspension or termination of Services at any time and without notice, and shall be entitled t compensation for SeMces previously performed and costs reasonably ixune in connection with the suspension or termination. In the event that any Payment due hereunder is not paid when due. Customer agreest to pay, upon demand as a late charge. one and one -half percent 11 5 %) of the amount of the payment per month. linked by the maximum rate permitted by law of each overdo Siemens Industry, Inc., Building Technologies Division amount under this Agreement. Customer shall reimburse SIEMENS' costs and expenses including reasonable attorneys' and witnesses' fees) incurred for collection under INS Agreement. If Customer disputes any portion o al of an irrvoce. it shall rally SIEMENS in writing of the amount in dispute and the reason for Its disagreement within 21 days of receipt of the invoice. The undisputed portion shell be paid when due, and interest on any unpaid potion shell accrue as aforesaid. from the date due until paid, to the extent that such amounts are finely determined to be payable to SIEMENS. 5A Except to the extent expressly agreed in this Agreement. SIEMENS' fees do not include any taxes, excises, fees. duties, permits o other government charges related to the SeMces. Customer shall pay such amounts or reimburse SIEMENS for any Amounts it pays. If Customer claims a lax exemption or direct payment permit. it shall provide SIEMENS with a valid exemption cri ifcale o permit and indemnify, defend and hold SIEMENS families from any taxes, costs and penalties arising out of same. 5.5 Unless agreed otherwise, the pricing for each year after the Initial Term of the Agreement and each year of each rerei of the Agreement shall be determined as the immediate prior year price Pius a Free escalator based upon the U.S. Department of Labor, Bureau of Labor Stabsitcs Urban Consumer Price Index�All Urban Consumers U.S. All items, 1982- 1984 =100 ('CPI -U'). In addition, each renewal term pricing shall be adjusted for any additions or deletions to Services selected for the renewal lam. The price escalator shag be the latest semi- annual CPI -U identified above published prior to each annual anniversary. This escalator shall be applicable to each annual term. whether a renewal term our an annual term after the first year of the Initial Tenn. Article 6. Charges; Delays; Excused Performance 6.1 As the Services are performed, conditions may charge or circumstances Outside SIEMENS' reasonable control (such as changes of law) may develop which require SIEMENS to expand additional costs. effort or time to complete the Services, in which case SIEMENS shat notify Customer and an equitable arQustment made to the compensation and time for performance. In the evert conditions or circunSences require Services to be suspended or terminated, SIEMENS shall be compensated for Services performed and for costs reasonable incurred In connection with the suspension or termination. 6.2 SIEMENS shat not be responsible for loss, delay. iryury, damage or failure of pedomnance that may be caused by circumstances beyond Its control, including but not limited to ads our omissions by Customer or its 0"loyces, agents or contractors. Acts of God war. crvll commotion, sets or omissions of government authorities, fire. (hell, corrosion, flood, water damage, lightning. freeze -ups, strikes, lockouts, differences with workman, dots, explosions, quarantine restrictions, delays in transportation, or shortage of vehicles. fuel. labor or materials. In the event of any such circumstances, SIEMENS shag be excused from performance of the Services and the time for performance shag be extended by a period equal to the time lost plus a reasonable recovery peded and Me compensation equitably adjusted to compensate for additional costs SIEMENS incurs de to such cl¢l amOs. Article 7. Warranties; Disclaimers; undfbdon of Llah/liry 7.1 Labor in performing the Services is warranted to be free from defects in workmanship for 90 days after the Services are performed Al labor provided by SIEMENS hereunder found to be defective and otherwise qualtfying under this weranty shall be re- performed by SIEMENS. Such re- performance hereunder shall rot intemipt or prolong the terms of this warranty. In the event Met any such rcperf smence fails to cure such defects, then Customers exclusive remedy against SIEMENS for damages from any cause whatsoever, whether in contract or tort, shall not exceed an amount equal to the limitation set forth in Section 7.5 herein. 7.2 THE EXPRESS LIMITED WARRANTY PROVIDED ABOVE IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, STATUTORY. EXPRESS. OR IMPLIED. INCLUDING WITHOUT LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY. OR WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES AGAINST PATENT INFRINGEMENTS OR DEFECTS, WHETHER HIDDEN OR APPARENT, AND EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO COMPLIANCE OF THE COVERED EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW. REGULATION, SPECIFICATION OR CONTRACT RELATIVE THERETO, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. r 7.3 Customer hereby, for it and any parties claiming under it. releases and r discharges SIEMENS from any liability ansing out of all hazards covered by y Customers insurance. and all claims against SIEMENS arising out of such n hazards. including any right of subregation by Customers insurance carder, are t hereby waived by Customer. 0 7.4 ANY IDEAS. SUGGESTIONS, RECOMMENDATIONS, FINANCIAL tl EVALUATIONS. FEASIBILITY STUDIES OR ECONOMIC ANALYSIS PREPARED BY SIEMENS UNDER THIS AGREEMENT WILL REPRESENT ITS BEST JUDGMENT BASED ON ITS EXPERIENCE LEDGE AND THE AVAILABLE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE e ENERGY MARKET IS VOLATILE AND SUBJECT TO FREQUENT PRICE Service Only 2009 Siemens Industry, Inc. 9/6/2013 Page 10 25H -22 AND REGULATORY CHANGES. THEREFORE. CUSTOMER FURTHER REDUCTIONS THAT MAY BE AVAILABLE TO CUSTOMER. FURTHER. ACKNOWLEDGES THAT SIEMENS DOES NOT CONTROL FUTURE CUSTOMER HEREBY RELEASES SIEMENS FROM ANY AND ALL MARKET CONDITIONS OR THE ENERGY MARKET'S REGULATORY LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING FROM CUSTOMER NOTHING HEREIN A PREDICTION SHALL OF FUTURE NSENERGY MARKET SIEMENS' CENTIVE OR ENERGY// FUEL COOST REDUCTION FOR ANY CONDITIONS OR ENERGY PRICES. ACCORDINGLY, SIEMENS DOES WAY BE OBTAINED BY CUSTOMER. NOT PROVIDE CUSTOMER A GUARANTYOR WARRANTY OF THE Ardele9: Hazardous Materbls Prov/s/ons RESULTS OF SIEMENS' RECOMMENDATIONS. CUSTOMER 9.1 The Services does not truce directly orindirecty performing or arranging MAKESANY AND ALL ENERGY PROCUREMENT AND RELATED for the detection. monitoring, handling, storage, removal, lransporlallon, DECISIONS. CUSTOMER ACKNOWLEDGES THAT ALL ENERGY disposal or treatment of Oil or Hazardous Materials. Except as disclosed PROCUREMENT AND RELATED DECISIONS ARE MADE AT THE pursuant to this Article, Customer represents that, to its best knowledge. there is CUSTOMER'S SOLE RISK. no asbestos or any Other hazardous or toxic matenak, as defined in the 7.5 WITH RESPECT TO ANY LIABILITY (WARRANTY OR OTHERWISE) Comprehensive Environmental Response. Compensation and Liability Act of THAT SIEMENS MAY HAVE UNDER THE AGREEMENT, IN NO EVENT 1980, as amended. the regulations promulgated thereunder, and other SHALL SIEMENS BE LIABLE (INCLUDING WITHOUT LIMITATION. UNDER applicable federal. state or local law ("Hazardous Materials'). present at ANY THEORY IN TORTS) FOR ANY LOSS OF USE. REVENUE. Customer's Sites where the Services are perfumed_ SIEMENS wit notify ANTICIPATED PROFITS OR SPECIAL, INDIRECT. INCIDENTAL OR Customer immediately it it discovers or suspects the presence of any CONSEOUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST Hazartlous Material AN Services have been priced and agreed to by SIEMENS PROFITS AND/OR LOST BUSINESS OPPORTUNITIES) ARISING OUT OF in reliance on Customer's representations as set forth In this Article. The OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES presence of Hazardous Matenals constitutes a change in this Agreement WHETHER ARISING IN WARRANTY, TORT. CONTRACT STRICT whose terms must be agreed upon by SIEMENS before Its obligations LIABILITY, OR ANY OTHER THEORY OF LIABILITY. WHETHER, FOR hereunder shalt Continue. WARRANTY. LATE OR NON- DELNERY OF ANY SERVICES. AND 9.2 Customer is suet' responsible for testing. abating. encapsulating, WHETHER SIEMENS HAS BEEN ADVISED OF THE POSSIBILITY OF removing, remedying or neutralizing such Hazardous Materials, and for the SUCH DAMAGES: and, in any event, SIEMENS' aggregate liability for any and costs thereof. Customer is responsible for the Proper disposal of all Hazardous erg claims, losses or expenses (Including attorneys fees) arising out of INS Materials and Oil that at any time are present at the SeMces site in accordance Agreement, or out of any Services furnished under this Agreement, whether with al applicable federal, state, and local laws, regulations, and ordinances . based in Contract, negligence. strict liability, agency, waneny, trespass, Even if change order has been entered into pursuant to this Article, SIEMENS indemmiy or any Other theory of factory, shall be limited. as liquidated damages, shall have the right to stop the Services uhtii the site Is free from Hazardous to the greater of $1,X10 a 10% of the total compensation received by Materials. In such event, SIEMENS shag receive an equitable extension of time SIEMENS from Customer under this Agreement. SIEMENS reserves the right to complete the Services and compensation for delays caused by Hazardous to control the defense and settlement or any claim for which SIEMENS has an Matenals mureciaton. In no event shall SIEMENS be required or construed to Obligation under the warranty hereunder. The parties acknowledge that the once take title, ownership or responsibility for such Oil or Hazardous Materials. which SIEMENS has agreed to perform its Services and obagations under this Customer shag sign am/ required waste manifests in conformance with all Agreement is calculated based upon the foregoing imitations of liability, and government reguatians, listing Customer as the generator of the waste. that SIEMENS has expressly reled on, and would not have entered into this 9.7 Customer warrants that, prior to the axewtion of this Agreement, It shall Agreement but for such imitations of liability nobly SIEMENS in writing of any and! all Hazardous Materials which to 7.6 it Is understood and agreed by end between the pates that SIEMENS Is Customers best knowledge are present, potentially present or likely to become not an insurer and this Agreement is nor intended to be an insurance policy, or a Present at the Services site and shag provide a copy of any site safety policies, subsllarm for an insurance policy. Insurance, if any, shall be obtained by including but not limited to lock -out and tag procedures, chemical hygiene plan, Customer. Fees are based salary upon the value of the Services, and are MSDSs or Other items required to be disclosed or maintained by federal. state, unrelated to the value of Customers property, or the property of others an or local laws, regulations or ordinances. Customers premises. 9.d Customer shag Indemniy, defend and hold SIEMENS harmless from and ArUcb e: 111rrlfafacrS ofAtWdananc Serv¢ oat( t against arty damages. bzses. costs. liabilities or expenses (Including attorneys' 8.1 SIEMENS will not be responsibe for to mentanerce, repair or repbcerien d, fees) singing out of any Oil or Hazardous Materials or from Custanefs breach or Sarvice, necessitated by reason d: (a) nonmainteinable, rwxfepieceate or of, or falh:re to perform its obligations under this Anlcle. obsolete pads of the Epigrat, including but viol Inroad to dzhwk, slel and a®es. Arnkle 10: Import /Export Indemnity hea exuargas,u co, un cabinets, casings, ~cry malala, e4c/MSl wrong. water 10.1 Customer acknowledges that SIEMENS is required to comply with and pnelarWc piping shxh W appals, adng lower H, slats and beans, ac, mess applicable export laws and regulations relating to the sale, exportation, transfer, dterwke specifically Staled herein: or (b) neginglogrog, abuse, misuse. inprcper or assignment, disposal and usage of vie Cowed Equipment sir Services Inadequate repairs or rmxdflCatas. irproper operator, box of opdator marterave provided under the Contract, including any export license regwrements, or slug, regn k comply win rreMadrrers operating ant awimrrnen tal requirements, Customer agrees that such Cowed Equipment a Services shall not at any Alts ofGod,"offer reasons beyakils catrd. SIEMENS essumesuorespaaibigy time directly or indirectly be used, exported. add harefered, assigned or for arty service pedortred on art' Co+aed Ec ianent other ten by SIEMENS or IS other use disposed or in a manner which wig result in nki"omplance wain such agents . applicable export laws and regulations. it shell be a Condition of the continuing 82 SIEMENS shel lwt be respondhb fu loss, decay, gguy ad W the maYbe Performance by SIEMENS of its OtAgatons hereunder that Compliance with Caused by tlrturdences beyond b Congo, mixing but not, resMaed to acts a such export laws and regulations be maintained at al times. CUSTOMER ormssiaal by Customer or its empoyees or agents. Ads of God. war,.. Commotion, AGREES TO INDEMNIFY AND HOLD SIEMENS HARMLESS FROM ANY aria of government, fire, tseR. Corrosion, good water damage, ighmng, freezeups, AND ALL COSTS. LIABILITIES. PENALTIES, SANCTIONS AND FINES Compte "gases, pydgram a system hackers, strikes, bdwuls, differences with RELATED TO NON - COMPLIANCE WITH APPLICABLE EXPORT LAWS wormer. nor, apksinm, damning mstrinLas, deays In transportation. or shortage AND REGULATIONS. ofvandes, Ij bbdr amerati Arlk /ell: Small BusOress Concern 8.] SIEMENS is =m ible fw repahs, replaceme sasadces k Epipnern 11.1 SIEMENS shall adhere to FAR 52. 219 -8 regarding the 'Utilization of Small due k corrosion,aoaon, Improper oinadixtage wets treaanet by cones. electronic Business Concerns', as pad of its Commercial Small Business Subconirachng adermi adloh, or reasons beyOntf is reasaneoe C"i Agreement with the federal government SIEMENS' policy Is to offer Small 84 SIEMENS Shel rxM be reymadefalha removal orransblatimd replacement business concerns, including Small disadvantaged businesses, women owned valves darpes walerrxrw and tamper switches. airflow aatiom, and ary Other small-0usamsses, HURZone small businesses, veteran owned smal businesses pamenedy rented "agrel pipe Omar duct com ought. AddtionlY SIEMENS shat and service disabled veteran owned small businesses_ the 'maximum practical rid ba resparlble for airy ventag a daring of systems, oppartuniy'to padicipale In performing contracts let by any commercial ehtiy. 8.5 WHERE SERVICES INCLUDE EFFORTS BY SIEMENS TO HELP local government or federal agency. including subcontracts for Subsystems, CUSTOMER TO ATTAIN REBATES ANMR INCENTIVES FROM AVAILABLE assemblies, Components and related services for major systems. SOURCES OR ENERGYIFUEL COST REDUCTION. CUSTOMER ACKNOWLEDGES THAT ANY REBATEBNCENTIVE OR ENERGY/ FUEL COST REDUCTION THAT MAY BE AVAILABLE TO CUSTOMER IS GRANTED BY A THIRD PARTY OUTSIDE THE CONTROL OF SIEMENS. CUSTOMER FURTHER ACKNOWLEDGES THAT WHILE SIEMENS WILL EITHER ASSIST CUSTOMER OR ENDEAVOR ITSELF TO OBTAIN ANY AND ALL REBATES /INCENTIVES OR ENERGY/ FUEL COST REDUCTION AVAILABLE. SIEMENS DOES NOT GUARANTEE THAT IT WILL OBTAIN OR APPLY FOR ALL REBATES /INCENTIVES OR ENERGY/ FUEL COST Siemens Industry, Inc., Building Technologies Division Service Only 2909 Siemens Industry, Inc. 9/6/2013 Page 11 25H -23 Appendix A. Discounted Labor & Material Pricing As a Service Agreement customer with an active contract, you will receive the benefit of a discount from our standard labor rates and material prices. Standard rates and preferred customer rates are documented below. Siemens Industry, Inc. Rates effective from June 1, 2013 through December 31, 2013 Please note: Rates shown are for the period referenced above and are subject to change. We are responding to a request for service at your facility. It is possible the service you are requesting is considered billable according to the terms of your Advantage Services Agmement (ASA) and 1 or your system warranty. An account representative may contact you to discuss the services we are providing in order to ensure your satisfaction and clarify any billing that may arse from this service. For your convenience, we are providing a copy of our most recent published service rates. As an ASA customer, you will be entitled to your contracted discount for all labor in the event this service call is billable. Please be advised that Portal to Portal labor charges may apply. Service ASA ASA ASA Non -ASA Customer Customer Customer Customer Standard Time Over Time Double Time Standard Time Fire 2Hr Min 2 H Min 2 H Min 4 H Min On -Sim Service Call $146,00 /hr $190.00 /hr $233.00/hr $190,001hf Fee: On Site Trip $701 Trip $701 Trip $70 I Trip $95.00 / Trip Overtime rates in the table apply for calls Monday through Friday 4:30 p.m. - 8:00 am excluding Holidays. Gable time applies for Sundays and Holidays. All rates are current as of 0110112013 and are subject to change with or without notice. Please be advised that Portal to Portal labor charges may apply. Minimum Charge: Service involving travel to the customer site will incur a two -hour minimum labor charge and $50.00 vehicle trip charge. Material Rates: Customers with an active Service Agreement will benefit from a discount percentage on the standard pricing for Siemens Industry. Inc. products. Customers without a Service Agreement will pay standard pricing for Siemens Industry, Inc. products_ Siemens Industry, Inc. 9/612013 25H -24 Page 12 EXHIBIT B 25H -25 Siemens Industry, Inc. February 15, 2013 Mr. John Aguilar City of Santa Ana 20 Civic Center Plaza, Rm. B -19 Santa Ana, CA 92702 Ref: Renewal FIRE Service Agreement: 2600025786/Oranas County Fire Authority Our records indicate that the FIRE service agreement between Siemens Industry, Inc. - Building Technologies Division and City of Santa Ana Police Facilities expired December 31, 2012. We will renew your contract with your authorization. The renewal dates and amounts are indicated below. The intent of this letter is to inform you that Siemens Industry, Inc. - Building Technologies Division will renew this contract based on our long time partnership with your facility and your Contractor Agreement A- 2009 -196, dated 1217/09. This renewal will commence with the same terms and conditions and the same scope of work. Contract Period & Amount: 1/1/2013 through 12/3112013: $31,660.00 (Billed Quarterly $7,915 /Quarter) Upon review and acceptance, please complete the below "ACKNOWLEDGEMENT' section and fax this letter to my attention Fax 714 826.3945, or email to denise.read @siemens.com. Please feel free to call me at 714 454 -5533 if you have any questions. Thank you. Deo4m ,Feed Senior Service Sales, Fire Division 714 454 -5633 Mobile, 714 8263945 Fax 10775 Business Center Drive, Cypress, CA 90630 ACKNOWLEDGEMENT - please fax to Denise Read Fax 714 826 -3945 Customer Representative Acce ted B Name: Title: Date• 25H -26 EXHIBIT C 10 25H -27 SIEMENS AUTHORIZATION TO PROCEED we are and l or your syyste warranty. An account eoresentali a may contact YOU to discuss the rservices we are proddi g inlorder to ensure our satisfaction and clari fy any billing that may atlas (ASA) this service. For your convenience, we are providing scopy of our most rsce nt published service rotes. As an ASA customer, you will be enticed to your contracted discount ii all labors the event this service call Is billable. All rates are current as of 0010112011 & are subject to change with orwdhaut nodes. Please be advised that Portal to Portal labor charges may apply. Service ASA Customer -1.- - Standard Time On -Line Support: 1 Hr Min Modem or Phone $153.00/hr Automation 2 Hr Min On-Site Service Call $153DOlhr 2 H Min $199.00lhr mechanical 2 Hr Min OnSite Service Call $140.00 /hr 2 Hr Min 2 H Min Electronic Installer 2 Hr Min Or lteService call $114.001hr $245.CO /hr $198.00Ihr Electrical Services 2 Hr Min On -Site Service Call $182.00/hr 4 Hr Min 4 H Min Fire 2 H Min On -Sit; Service Call $146.00/hr $273.00lhr $364.001hr security 2 H Min or site Service Call $139.00/hr Project Manager 150mice Account Englneer 2 H Min On -Site Service Call $208.00 /hr F 0 Site Trip $70,00 I Trip ASA customer q's Customer -1.- - Customer Over Time Customer Double Tim Over Time Double Time Standard Time Hr Min 1 Hr Min 2 H Min 2 H Min 2 H Min $199.00lhr $245.COlhr $198.00lhr $297.00/hr $396.00 /hr 2 Hr Min 2 H Min 4 Hr Min 4 H Min 4 H Vin $199,00/hr $245.CO /hr $198.00Ihr $297.00Ihr $396.00lhr 2 Hr Min 2Hr Mtn 4 Hr Min 4 H Min 4Hr Min $182.00/hr $224.00/hr $182.00 /hr $273.00lhr $364.001hr 2 Hr Min 2 Hr Min 4 A Min 4 H Min 4 H Min $150.001hr $18400/hr $148.00 /hr $222.0) $296.001hr 2HrMin 2 H Min 4 Hr Min 4 H Min 4 H Min $237.00Ihr $291.00 /hr $236.00 /hr $354.00lhr $472.001hr 2 Hr Min 2 Hr Min 4 H Min 4Hr Min 4Hr Min $190 00/h $233.00lhr $190.00lhr $285,OOlhr $380,001hr 2 Hr Min 2Hr Mln 4 Hr Mln 4 H Min 4 H Min 4 Hr Min I4Hr Min I4Hr Min 2 Hr Min 2Hr Min envn nr ee: n l Overtime rates in the table apply for calls Monday through Friday 4:30 p.m. -8 -,00 am gX2Lding Holidays. Double time applies for Sundays and Holidays. Siemens Notification #: (Required by 5lemens): 0 or-HO ton of work: Customer Site Name: Customer Site Address: (Required by Customer): Bill to Company Name & Address: Sold to Company Name & Address: Accounts Payable Name & Address: (Required by Customer): Customer PO # (Please include faxed or e -mail Copy): Authorized Buyer: Pdn, Name o81B Signature By signing this document, you are agreeing to payment in full upon receipt of Invoice. Quick Quote Price Not to Exceed (By Siemens Only): $ Siemens Representative: Pdn1N8 a Date s. news Siemens Industry, Inc. Building Technologies Division will dispatch upon receipt of authorization. (Return Fax # 714 - 761 -0274) ske.lf ;ha customer becomes OveNne r any pmdress peymam, stlla shall he atltled W sop wok shy Ee enAtleJ roinlerest d Ne'asser of en dmual tale M IB%a the maeYnpm aad for mrabef be rderby- We ar ass a rvae i Ail lnvak04 shall bedW aM payabb by mseerer upon receipt. Further, setler rasa res MApAt lolnveka <mlGrcn monWy as lrowakpNpresses. MaY melerials de0veredbihenbshe abananbyapicabe IW.-1 beat m le0y and ewtadarenletlkz sorer shall also ba anutle0 b such aterestan sYl awume mWneO bYastaner Nan pmgless Paynenls aWherwiea. Customs aatem Ihaz he � pry anJ la reimburse sellaM anY ad alreesaede atl xe rwmmo by sells In Necciecllan platgWte Oue and payade he,emder. Prices ae wgsct:ocarxdon br star.. Siemens Industry, loc, Building Tecianologies Division Tel: (714) 816 -1444 10775 Business Center Drive Fax: (714) 761 -0274 Cypress, CA 90630 -5221 25H-28 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONDITIONAL USE PERMIT NO. 2013 -24 TO ALLOW A TYPE 41 ALCOHOLIC BEVERAGE CONTROL LICENSE FOR A BOUDIN RESTAURANT LOCATED AT 2800 NORTH MAIN STREET, SUITE 1038 - JARED TAYLOR, APPLICANT c'rry MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: _ •;• ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2013 -24 as conditioned. PLANNING COMMISSION ACTION On August 26, 2013, the Planning Commission adopted a resolution approving Conditional Use Permit No. 2013 -24 as conditioned by a vote of 7:0 which approved a Type 41 Alcoholic Beverage Control license in order to sell beer and wine for on- premise consumption at the Boudin Bakery restaurant located at 2800 North Main Street, Unit 1038 in the General Commercial (C2) zoning district. The Planning Commission modified Condition No. 21 to remove the term `or drop safe" to reflect the cash controller technology that will be installed by the applicant (Exhibit A). DISCUSSION Boudin Bakery restaurant will be a full - service, sit -down restaurant that will feature an indoor dining area, as well as an enclosed outdoor patio. The restaurant will be located on the first floor of the Main Place shopping center on the south side of the JC Penney building and adjacent to the Saigon de Pho restaurant. The approval of this CUP would allow for the sale and service of beer and wine in conjunction with food sales. FISCAL IMPACT There is no fiscal impact associated with this action. Jay-M. Trevino Executive Director Planning & Building Agency AP: rb ap\MAReports \Staff Reports for CCNCUP13 -24 Boudin Bakery Type 41 ABC oc Exhibit: A. Planning Commission Staff Report 31A-1 31A-2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: AUGUST 26, 2013 TITLE: PUBLIC HEARING — FILED BY JARED TAYLOR FOR CONDITIONAL USE PERMIT NO. 2013.24 TO ALLOW A TYPE 41 ALCOHOLIC BEVERAGE CONTROL LICENSE FOR A BOUDIN RESTAURANT LOCATED AT 2800 NORTH MAIN STREET, SUITE 1038 Prepared by Ali Pezeshkpour PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO AA- Executive Director Planningb anager RECOMMENDED ACTION Adopt a resolution approving Conditional Use Permit No. 2013 -24 as conditioned. Request of Applicant Jared Taylor, on behalf of Westfield, LLC, is requesting approval of a conditional use permit (CUP) for a Type 41 Alcoholic Beverage Control (ABC) license to allow the on- premise sale and consumption of beer and wine at a new Boudin restaurant. Establishments that sell alcoholic beverages require a conditional use permit pursuant to Section 41 -196 of the Santa Ana Municipal Code (SAMC). This is the first application for an alcohol license CUP since the City revised Planning Commission Resolution No. 89 -7, which had delegated authority to the Zoning Administrator to act on alcohol sales conditional use permits. Moreover, the passage of ZOA No. 2012 -03 /Ordinance No. NS -2847 amended Chapters 11 and 41 of the SAMC as they relate to alcohol and entertainment. Among these amendments, conditions for alcohol sales CUPS were standardized and codified. Project Location and Site Description Boudin is currently constructing tenant improvements to open a new restaurant at 2800 North Main Street, Suite 1038. The overall site is approximately 52 -acres in size and contains a multi- tenant regional mall known as Westfield MainPlace that is located at the northwest corner of North Main Street and Mainplace Drive. The site is anchored by the JC Penney, Macy's, and Nordstrom department stores and contains numerous retail and eating establishments. The tenant proposes to obtain a Type 41 ABC license for the on- premise consumption of beer and wine as part of the proposed restaurant's business model for the project site. EXHIBIT A 31A-3 Conditional Use Permit No. 2013 -24 August 26, 2013 Page 2 The large commercial shopping mall at 2800 North Main Street contains over one million square feet of tenant space and was constructed in 1987. Mall tenants share 4,987 parking spaces that are provided in a combination of surface parking lots and parking structures. The site is surrounded by the Garden Grove (State Route 22) Freeway to the north, professional and administrative office uses to the south, commercial and residential uses within the City Place development to the east, and the Santa Ana (Interstate 5) Freeway to the west (Exhibits 1, 2 and 3). Project Description Boudin is currently constructing tenant improvements to occupy a vacant tenant space on the first (ground) floor of the mall that was previously occupied by a retail use and to open a new restaurant. In conjunction with the new restaurant, the applicant is requesting approval of a Type 41 Alcoholic Beverage Control (ABC) license to allow the on- premise sale of beer and wine to patrons of the restaurant. Boudin will operate a sit down, full- service fast casual bakery/restaurant that will specialize in American cuisine, including specialty dishes made with their famous sourdough bread. The restaurant will encompass a total of 4,037 square feet of floor area, including two separate patio dining areas. The restaurant has been designed to accommodate 67 patrons within its interior floor space and another 86 patrons within the patio dining areas. The proposed patio areas will be enclosed within 36 -inch high wrought iron fences that are in compliance with all applicable City and State Department of Alcoholic Beverage Control's standards. The on- premise sale of alcoholic beverages to customers is intended to provide a service ancillary to the primary restaurant use. The expected hours of operation for the restaurant are from 8:00 a.m. to 10:00 p.m., seven days per week. The display and storage areas for the alcoholic beverages will be located within the kitchen area. The overall storage area for alcoholic beverages will be 17.5 square feet, which is no more than one percent of the floor area and is consistent with the SAMC requirement of maintaining five percent or less of the gross floor area of the restaurant for alcohol storage and display (Exhibits 4 and 5). Prolect Background Boudin is proposing to open their first bakery/restaurant in Santa Ana at the Westfield MainPlace Mall. Headquartered in San Francisco, Boudin is best known for their "Original San Francisco Sourdough French Bread," which is baked with the same mother dough, or sour dough starter, used since 1849. Boudin operates several restaurants in California, primarily in the Northern California region; however, restaurants are also found in Costa Mesa and Irvine. General Plan and Zoning Consistency The General Plan land use designation for the site is District Center (DC). District Center land use districts provide highly visible and accessible commercial development along the City's arterial transportation corridors and provide important neighborhood facilities and services, such as this restaurant. The project site is consistent with this General Plan land use designation. 31A-4 Conditional Use Permit No. 2013 -24 August 26, 2013 Page 3 The parcel is located within the General Commercial (C -2) zoning district. The C -2 zoning district allows for retail and service uses such as restaurants, making the proposed use consistent with the zoning designation. Project Analysis Conditional Use Permit requests are governed by Section 41 -638 of the SAMC. Conditional Use Permit requests may be granted when it can be shown that the following can be established: • That the proposed use will provide a service or facility which will contribute to the general well being of the neighborhood or community. • That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. • That the proposed use adversely will not affect the present economic stability or future economic development of properties surrounding the area. • That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. • That the proposed use will not adversely affect the General Plan of the city or any specific plan applicable to the area of the proposed use. If these findings can be made, then it is appropriate to grant the conditional use permit. Conversely, the inability to make these findings would result in a denial. Using this information staff has prepared the following analysis, which, in turn forms the basis for the recommendation contained in this report. In analyzing the conditional use permit request, staff believes that the following findings of fact warrant approval of the conditional use permit. The proposed alcoholic beverage license will provide an ancillary service to the restaurant customers by allowing them the ability to purchase beer and wine with their food. This will thereby benefit the community by providing a restaurant with an additional and complementary food - related amenity. Conditions have been placed on the alcoholic beverage control license which will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. • The proposed license for the on -sale consumption of beer and wine at this location will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the alcoholic beverage control license that will mitigate any potential negative or adverse impacts created by the use. In addition, the use will primarily occur within the interior of the premises and is incidental to the restaurant use. 31A-5 Conditional Use Permit No. 2013 -24 August 26, 2013 Page 4 • The proposed use will not adversely affect the economic stability of the area but will instead allow the restaurant to compete with other nearby restaurants that also offer alcoholic beverages for sale to their guests and other visitors. Moreover, the offering of alcoholic beverages allows Boudin to remain economically viable and contributes to the overall success of Westfield MainPlace, helping to decrease the number of vacant tenant spaces that may affect the economic viability of the site. • As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant selling beer, wine, and distilled spirits pursuant to Chapter 41 of the Santa Ana Municipal Code for restaurants selling alcohol with their meal. The facility will be maintained as a bona -fide eating establishment as defined in Section 23038 of the California Business and Professions code, having suitable kitchen facilities and supplying an assortment of foods commonly ordered at various hours of the day. Additionally, the restaurant will utilize less than one percent of the gross floor area for the display and storage of alcoholic beverages, which is below the maximum threshold established by the Santa Ana Municipal Code. • The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. A restaurant with an ancillary alcohol license provides a dining service to the residents of Santa Ana. Police DeoartmentAnalvsis The Police Department reviews conditional use permit applications for the sale of alcoholic beverages because there is a strong correlation between the availability of alcohol and crime. Studies have shown that alcohol is a contributing factor in crimes such as drunk driving, fatal traffic collisions, homicide, assaults, rape, domestic violence, drunk in public, and other nuisance -type offenses. Without stringent controls to address the location of alcohol outlets, there is a strong likelihood that an overconcentration will create blight and adversely impact the community. The approval of a license in an area deemed over - concentrated and high in crime may affect the quality of life and police resources in the area, and aggravate existing conditions. Since the City's overconcentration standards do not apply to on -sale establishments, the Police Department considers two factors when reviewing this type of application: Crime rate and sensitive land uses. It has been determined that 2800 North Main Street is located in an area that has an above average number of reported crimes when compared to all crime reporting districts based on standards established under B &P Code Section 23958.4. The site is located in Reporting District No. 161, which ranks 11th out of 102 citywide reporting districts. Further, the proposed restaurant is within 928 feet of residential property. The Police Department is concerned that this establishment may not consistently operate as a bona fide eating establishment. For that reason, conditions of approval are recommended to mitigate any negative impacts this operation may have on adjacent residences, and prevent it from generating police calls for service. 31A-6 Conditional Use Permit No. 2013 -24 August 26, 2013 Page 5 Public Notification The project site is not located within the boundaries of an established Neighborhood Association. However, staff contacted the president of the nearby Park Santiago Neighborhood Association, who identified no concerns with the project. The project site was also posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter, and mailed notices were sent to all property owners and tenants within 500 feet of the project site. At the time of this printing, no correspondence, by phone, written, or electronic, had been received from any members of the public. CEQA Compliance In accordance with the California Environmental Quality Act the recommended action is exempt for further review per Section 15301. The Class 1 exemption allows the licensing of existing facilities with no expansion of the existing use. Categorical Exemption Environmental Review No. 2013 -53 will be filed for this project. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Conditional Use Permit No. 2013 -24 as conditioned. Ali Pezeshkpour Assistant Planner I AP:jm apW:WeponslStaff Reports for P=UP13 -24 Soucin Bakery Type 41 ABC.pc Attachments: Exhibit 1 — Vicinity Map Exhibit 2 — Location Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan Exhibit 5 — Floor Plan 31A-7 Verny Carvajal Senior Planner CUP 2013 -24 BOUDIN BAKERY TYPE 41 ABC 2800 NORTH MAIN STREET #1038 - - _�FEEr r= i000FEEr P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT 1 VICINITY MAP 31A-8 Q V w f O V Z - MM. Q CUP 2013 -24 (S BOUDIN BAKERYTYPE 41 ABC A 2800 NORTH MAIN STREET #1038 �4^ P L A N N I N G A N D 8 U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31A-9 CUP 2013 -24 BOUDIN SF SITE PHOTO 2800 NORTH MAIN STREET #1038 EXHIBIT 3 31A -10 ' __ _ AYn]IW 3bYl XYMYY— 5� � rl ®fit f 6 3 +xa scv.o • w VI ANIYM S W91 EXHIBIT 4 Q. C c� G 4 I Uf JI 1 a of d1 W � N: ti LL LL L _ r I f J px = W W � —J C n a �iE y O O~ I a °x. Z O= Y O O p N N m LL 0 N�o�S N S Q W mI W Q VD `ROV'ld NEW �Ni•N�isaa 3SNIQE, S OV14N u • �I xn ,t■1 � sln N f EXHIE Pagel — l L _ r I f J px = W O � —J n a �iE y O O~ I a °x. Z Z O EXHIE Pagel — l J px = O � —J n a �iE O~ Z Z O N m —J U Z W J_ LL� Q n J- Q N d ZW -Z Q � �a W [O d M z I MXAl ,) / § e @ }| ? !,i ! • ©y® ®2 of m , § 30"d �■� �/gAgq [ ■ ` � � . n MXAl ,) / § e @ }| ? !,i ! lal n . ..._._. - -• - •.�.... .�! .1..l1.... | ;{!�!( ,, ! | �m 1,..i ., -kl 1.1. ROH — 08/26/13 RESOLUTION NO. 2013 -13 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2013 -24 TO ALLOW A TYPE 41 ALCOHOLIC BEVERAGE CONTROL LICENSE FOR THE PROPERTY LOCATED AT 2800 NORTH MAIN STREET, SUITE 1038 BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. The applicant is requesting approval of Conditional Use Permit No. 2013- 24 for a Type 41 Alcoholic Beverage Control (ABC) license to allow the on- premise consumption of beer and wine at the restaurant located at 2800 North Main Street, Suite 1038. B. Conditional Use Permit No. 2013 -24 came before the Planning Commission of the City of Santa Ana for a duly noticed public hearing on August 26, 2013. C. Santa Ana Municipal Code Section 41 -196 requires a conditional use permit for the sale of alcoholic beverages for on -site consumption. D. Santa Ana Municipal Code Section 41 -638 authorizes the Planning Commission to approve a conditional use permit upon making certain findings: 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or community? The proposed alcoholic beverage license will provide an ancillary service to the restaurant customers by allowing them the ability to purchase beer and wine with their food. This will thereby benefit the community by providing a restaurant with an additional and complementary food - related amenity. Conditions have been placed on the alcoholic beverage control license which will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. Resolution No. 2013 -13 Page 1 of 8 31A -14 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety or general welfare of persons residing or working in the vicinity? The proposed license for the on -sale consumption of beer and wine at the restaurant will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the alcoholic beverage control license that will mitigate any potential negative or adverse impacts created by the use. In addition, the use will primarily occur within the premises and is incidental to the restaurant use. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed use will not adversely affect the economic stability of the area but will instead allow the restaurant to compete with other nearby restaurants that also offer alcoholic beverages for sale to their guests and other visitors. Moreover, the offering of alcoholic beverages allows Boudin to remain economically viable and contributes to the overall success of Westfield MainPlace, helping to decrease the number of vacant tenant spaces that may affect the economic viability of the site. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant selling beer, wine, and distilled spirits pursuant to Chapter 41 of the Santa Ana Municipal Code for restaurants selling alcohol with their meal. The facility will be maintained as a bona -fide eating establishment as defined in Section 23038 of the California Business and Professions code, having suitable kitchen facilities and supplying an assortment of foods commonly ordered at various hours of the day. Additionally, the restaurant will utilize less than one percent of the gross floor area for the display and storage of alcoholic beverages, which is below the maximum threshold established by the Santa Ana Municipal Code. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? Resolution No. 2013 -13 Page 2 of 8 31A -15 The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. A restaurant with an ancillary alcohol license provides a dining service to the residents of Santa Ana. E. In accordance with the California Environmental Quality Act the recommended action is exempt for further review per Section 15301. The Class 1 exemption allows the licensing of existing facilities with no expansion of the existing use. Categorical Exemption Environmental Review No. 2013 -53 will be filed for this project. Section 2. The Planning Commission of the City of Santa Ana hereby approves Conditional Use Permit No. 2013 -24 as conditioned in Exhibit "A" attached hereto and incorporated herein. This decision is based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated August 26, 2013, and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. ADOPTED this 26th day of August 2013 by the following vote: AYES: Commissioners: Alderete, Bacerra, Crespo, Gartner, Mill, Nalle, Yrarrazaval (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan O. Hodge Assistant City Attorney Eric Alderete Chairman 31A -16 Resolution No. 2013 -13 Page 3 of 8 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARTHA RAMIREZ, Secretary of the Planning Commission, do hereby attest to and certify the attached Resolution No. 2013 -13 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on August 26, 2013 Date: Secretary of the Planning Commission City of Santa Ana 31A -17 Resolution No. 2013 -13 Page 4 of 8 Exhibit A Conditions for Conditional Use Permit No. 2013 -24 Conditional Use Permit No. 2013 -24 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. 1. The premises shall at all times be maintained as a bona -fide eating establishment as defined in Section 23038 of the California Business and Professions code and shall provide a menu containing an assortment of foods normally offered. The premises must have suitable kitchen facilities and supply an assortment of foods commonly ordered at various hours of the day. Full and complete meals must be served whenever the privileges of the on -sale license are being exercised. 2. There shall be no fixed bar or lounge area upon the premises maintained for the sole purpose of sales, service or consumption of alcoholic beverages directly to patrons. A fixed bar or lounge may be permitted if patrons may order food from the same menu being offered to the general patrons of the eating establishment. 3. The sales, service, and consumption of alcoholic beverages shall be permitted only between the hours of 8:00 a.m. and 12:00 a.m. unless otherwise amended by the granting of a conditional use permit for after - hours operations pursuant to Santa Ana Municipal Code Chapter 41. 4. It shall be the applicant's responsibility to ensure that no alcoholic beverages are consumed on any property adjacent to the licensed premises under the control of the applicant, with the exception of any enclosed patio areas. 5. The applicant or an employee of the licensee must be present to monitor all areas of the establishment, including outdoor patios, during all times that alcoholic beverages are being served or consumed. Resolution No. 2013 -13 Page 5 of 8 31A -18 AUGUST 26, 2013 PAGE 2 OF 4 6. All employees serving alcoholic beverages must complete Responsible Beverage Service Training, or an equivalent approved by the State Department of Alcoholic Beverage Control, prior to being able to serve alcoholic beverages to patrons. Evidence of the completion of such training must be maintained on the premises and available for inspection upon request by the City. 7. During those times when patrons are restricted to 21 years of age or older, the applicant shall at all times utilize an age verification means or device for all purchases of alcoholic beverages. 8. Queuing lines shall be managed in an orderly manner and all disruptive and /or intoxicated patrons shall be denied entry. The business owner, or his designee, shall be responsible for monitoring the queuing lines at all times. 9. The outdoor queuing line shall not block public walkways or obstruct the entry or exit doors of adjacent businesses. Stanchions or barriers must be used to maintain order at all times the queue exceeds 25 patrons. If located on public property those barriers must be approved by the Public Works Agency. 10. Employees and contract security personnel shall not consume any alcoholic beverages during their work shift, except for product sampling for purposes of employee education about new products. 11. There shall be no exterior advertising of any kind or type, including window signs or other signs visible from outside, that promote or indicate the availability of alcoholic beverages on the premises. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. Permissible window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. Floor displays shall not exceed three feet in height. 12. There shall be no promotions encouraging intoxication or drinking contests or advertisements indicating "buy one drink, get one free ", "two for the price of one ", or "all you can drink for..." or similar language. Resolution No. 2013 -13 Page 6 of 8 31A -19 AUGUST 26, 2013 PAGE 3 OF 4 13. Any pool tables, amusement machines or video games maintained on the premises at any time must be reviewed and approved in a security plan submitted to the Chief of Police. 14. Live Entertainment, including but not limited to, amplified music, karaoke, performers and dancing, is prohibited or shall be subject to the issuance of an entertainment permit pursuant to Santa Ana Municipal Code ( "SAMC ") Chapter 11 — Entertainment, and shall comply with all of the standards contained therein. Notwithstanding this requirement, music /noise shall not be audible beyond 20 feet from the exterior of the premises in any direction. 15. Neither the applicant, nor any person or entity operating the premises with the permission of the applicant, shall violate the City's adult entertainment ordinance contained in SAMC Section 12 -1 and 12 -2. 16. The premises shall not be operated as an adult entertainment business as such term is defined in SAMC Section 41- 1701.6. 17. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises under the control of the licensee. 18. There shall be no public telephones located on the exterior of the premises. All interior pay phones must be designed to allow outgoing calls only. 19. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted within 24 hours of being applied. 20. The bona fide eating establishment and required parking must conform to the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project lighting, door /window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. Prior to issuance of Letter of Approval to the Alcohol Beverage Control Board, this condition must be complied with. 21. A timed - access cash controller OF drep safe must be installed. Applicant will implement a robbery deterrent program approved by the Santa Ana Police Department. Modified by Planning Commission on August 26, 2013 22. Install a silent armed robbery alarm. Resolution No. 2013 -13 Page 7 of 8 31A-20 AUGUST 26, 2013 PAGE 4OF4 23. The owner or manager of the licensed premises shall maintain on the premises a written security policy and procedures manual, that has been approved by the police department, addressing at a minimum the following items; handling obviously intoxicated persons; establishing a reasonable ratio of employees to patrons, based upon activity level, in order to monitor beverage sales and patron behavior; handling patrons involved in fighting, arguing or loitering about the building and in the immediate adjacent area that is owned, leased, rented or used under agreement by the Licensee(s); verifying age /checking identification of patrons; warning patrons of reaching their drinking limit/potential intoxication and refusing to serve; calling the police regarding observed or reported criminal activity and the management of queuing lines. 24. The operator shall be responsible for submitting a detailed outdoor fencing and dining plan where outdoor dining is proposed as part of the business operation. 25. Combined alcohol storage and display areas shall not exceed five percent (5 %) of the gross floor area of the licensed establishment. The sale of alcoholic beverages for consumption off the premises is strictly prohibited. Resolution No. 2013 -13 Page 8 of 8 31A-21 31A-22 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONDITIONAL USE PERMIT NO. 2013 -15 TO ALLOW A TYPE 41 ALCOHOLIC BEVERAGE CONTROL LICENSE, CONDITIONAL USE PERMIT NO. 2013 -16 TO ALLOW AFTER -HOURS OPERATION, AND CONDITIONAL USE PERMIT NO. 2013 -17 TO ALLOW A BANQUET USE FOR THE NATIVE SON ALEHOUSE AT 305 EAST FOURTH STREET, UNIT 200JON SANCHEZ, APPLICANT � h am:, 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 Receive and file the staff report approving Conditional Use Permit No. 2013 -15 as conditioned, Conditional Use Permit No. 2013 -16 as conditioned, and Conditional Use Permit No. 2013 -17 as conditioned. PLANNING COMMISSION ACTION On August 26, 2013, the Planning Commission adopted a resolution approving Conditional Use Permit No. 2013 -15 as conditioned for a Type 41 Alcoholic Beverage Control license in order to sell beer and wine for on- premise consumption; Conditional Use Permit No. 2013 -16 as conditioned to allow after -hour operations; and Conditional Use Permit No. 2013 -17 as conditioned to allow a banquet facility by a vote of 7:0 at the Native Son Alehouse restaurant located at 305 East Fourth Street, Unit 200 in the Transit Zoning- Downtown (SD84) zoning district. The Planning Commission made no changes to the recommended conditions of approval outlined in the attached staff report (Exhibit A). DISCUSSION Native Son Alehouse will be a full- service, sit -down restaurant that will feature an indoor dining area, as well as a large outdoor patio. The restaurant will be located on the second floor of an existing building at 305 E. 4th Street and will occupy a space that is currently vacant. The approval of these CUPS would allow for the sale and service of beer and wine in conjunction with food sales, extension of the hours of operation until 2:00 a.m., and the ability to hold banquet events. 31 B -1 CUP Nos. 2013 -15, 2013 -16 & 2013 -17 September 16, 2013 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. J . Trevino Executive Director Planning & Building Agency HS:rb hs: VNativeSonAlehouse \cupi3- 15thru13 -18 NativeSonAlehouse . cc Exhibit: A. Planning Commission Staff Report 31 B -2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: AUGUST 26, 2013 TITLE: PUBLIC HEARING — FILED BY JON SANCHEZ FOR CONDITIONAL USE PERMIT NO. 2013 -15 TO ALLOW A TYPE 41 ALCOHOLIC BEVERAGE CONTROL LICENSE, CONDITIONAL USE PERMIT NO, 2013 -16 TO ALLOW AFTER -HOURS OPERATION, AND CONDITIONAL USE PERMIT NO. 2013 -17 TO ALLOW A BANQUET USE FOR THE NATIVE SON ALEHOUSE AT 305 EAST FOURTH STREET, UNIT 200 Prepared by Hally Soboleske xecutive Director RECOMMENDED ACTION PLANNING COMMISSION SECRETARY APPROVED • As Recommended • As Amended • Set Public Hearing For DENIED • Applicant's Request • Staff Recommendation CONTINUED TO Planning Man er Adopt a resolution approving Conditional Use Permit No. 2013 -15 as conditioned for a Type 41 ABC license. 2. Adopt a resolution approving Conditional Use Permit No. 2013 -16 as conditioned to allow after -hour operations. 3. Adopt a resolution approving Conditional Use Permit No. 2013 -17 as conditioned to allow a banquet facility. DISCUSSION Request of Applicant Jon Sanchez is requesting approval of three conditional use permits for the proposed Native Son Alehouse restaurant at 305 East Fourth Street, Unit 200. Specifically, the applicant is requesting approval to allow a Type 41 Alcoholic Beverage Control (ABC) license for the on- premise sale and consumption of beer and wine pursuant to Section 41 -196 of the Santa Ana Municipal Code (SAMC), to allow the restaurant to remain open until 2:00 a.m. per Section 41 -2007 of the SAMC and to allow a banquet use pursuant to Section 41 -2008 of the SAMC. This is the first application for an alcohol license CUP since the City revised Planning Commission Resolution No. 89 -7, which had delegated authority to the Zoning Administrator to act on alcohol sales conditional use permits. Moreover, the passage of ZOA No. 2012 -03 /Ordinance No. NS -2847 amended Chapters 11 and 41 of the SAMC as they relate to alcohol and entertainment. Among these amendments, conditions for alcohol sales CUPS were standardized and codified. EXHIBIT A 31 B -3 CUP Nos. 2013-15,2013-16 & 2013 -17 August 26, 2013 Page 2 Project Location and Site Description The applicant proposes to operate The Native Son Alehouse restaurant within an existing 2,945 square foot tenant space that is located on East Fourth Street between North French Street and North Spurgeon Street. The business will occupy the entire second floor space that is currently vacant, as well as an outdoor patio area. The first floor of the building will continue to be utilized by various restaurant and retail tenants. The building is immediately east of the Fiesta Twin Theaters. The site is surrounded by a parking structure to the north, Plaza Santa Ana to the east, the East End Marketplace to the south, and various commercial land uses to the west (Exhibits 1, 2 and 3). Project Description The Native Son Alehouse is requesting approval of a Type 41 Alcoholic Beverage Control (ABC) license to allow the on- premise consumption of beer and wine, to allow the restaurant to remain open past midnight and to hold banquet events. The restaurant will be a full- service, sit -down eating establishment that consists of 1,710 square feet of interior floor space with seating for approximately 66 patrons within its dining room and another 121 seats on a 1,235 square foot outdoor patio. The on- premise sale of alcoholic beverages and banquet operation are intended to provide a service ancillary to the primary restaurant use. The proposed hours of operation for the restaurant are from 11:00 a.m. to 1:00 a.m. Sunday through Thursday, and 11:00 a.m. to 2:00 a.m. on Friday and Saturday. The storage area for alcoholic beverages will be located within a cooler near the rear of the restaurant. The overall storage area for alcoholic beverages is approximately 70 square feet in size, which is less than five percent of the interior gross floor area of the restaurant and is consistent with the SAMC requirement of maintaining five percent or less of the gross floor area of the restaurant for alcohol storage and display (Exhibits 4 and 5). Project Background Jon Sanchez graduated from USC's Marshall School of Business. His food industry experience is quite extensive with over 10 years of experience at food service and consumer packaged goods companies. He has worked in both the restaurant business and the food service business as an account manager. General Plan and Zoning Consistencv The General Plan land use designation for the site is District Center (DC). District Center land use districts provide highly visible and accessible commercial development along the City's arterial transportation corridors and provide important neighborhood facilities and services. The project site is consistent with this General Plan land use designation. 31 B -4 CUP Nos. 2013 -15, 2013 -16 & 2013 -17 August 26, 2013 Page 3 The parcel is located within the Transit Zoning Code (SD -84) zoning district in the Downtown (DT) sub -zone. The SD -84 zoning district allows for service and retail uses such as a restaurant. Further, the zoning allows for the sale of alcoholic beverages, after -hours operations and banquet facilities subject to issuance of a conditional use permit. This project is consistent with the SD -84 zoning designation. Proiect Analysis Conditional Use Permit requests are governed by Section 41 -638 of the SAMC. Conditional use permit requests may be granted when it can be shown that the following can be established: • That the proposed use will provide a service or facility which will contribute to the general well being of the neighborhood or community. • That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. • That the proposed use adversely will not affect the present economic stability or future economic development of properties surrounding the area. • That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. • That the proposed use will not adversely affect the General Plan of the city or any specific plan applicable to the area of the proposed use. If these findings can be made, then it is appropriate to grant the conditional use permit. Conversely, the inability to make these findings would result in a denial. Using this information staff has prepared the following analysis, which, in turn forms the basis for the recommendation contained in this report. In analyzing the conditional use permit request, staff believes that the following findings of fact warrant approval of the conditional use permits. Conditional Use Permit No. 2013 -15 for a Type 41 ABC license The Native Son Alehouse is requesting approval of a Type 41 Alcoholic Beverage Control (ABC) license to allow the on- premise consumption of beer and wine. The applicant intends to sell alcoholic beverages as an ancillary service to the primary restaurant use. Staff has reviewed the applicant's request and has determined that the proposed establishment is in compliance with the standards for establishments selling alcoholic beverages. 31 B -5 CUP Nos. 2013 -15, 2013 -16 & 2013 -17 August 26, 2013 Page 4 • The proposed alcoholic beverage license will not be detrimental to persons residing or working in the vicinity but will provide a beneficial service that will help the Downtown area become a destination point. Conditions have been placed on the alcoholic beverage control license which will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. • The proposed alcoholic beverage control license for a restaurant at this location will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the alcoholic beverage control license that will mitigate any potential negative or adverse impacts created by the use. Additionally, the use will serve both visitors and the local and regional business community. • The proposed use will not adversely affect the economic stability of the area, but will instead allow local businesses and the downtown area to become a destination area. Moreover, the offering of various food offerings allows the Downtown to remain economically viable and contributes to the overall success of Downtown Santa Ana, helping to decrease the number of vacant tenant spaces that may affect the economic viability of the site. • As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant selling beer and wine pursuant to Chapter 41 of the Santa Ana Municipal Code. • The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. A variety of restaurants in Downtown Santa Ana contributes to the economic success of the City as a shopping and dining destination and will provide an additional dining service to the residents of Santa Ana. Conditional Use Permit No. 2013 -16 to allow after -hour operations Santa Ana Municipal Code (SAMC) Section 41 -2007 (Table 2A) requires a conditional use permit for any eating establishment with hours of operation between 12:00 a.m. and 7:00 a.m. The proposed hours of operation are 11:00 a.m. to 1:00 a.m. Sunday through Thursday, and 11:00 a.m. to 2:00 a.m. on Friday and Saturday which is consistent with the operating hours of the other downtown restaurants. The Native Son Alehouse proposes to be open for lunch and dinner. There are no sensitive land uses that will be adversely impacted from the extended hours of operation. Uses such as residential properties and schools are not located within 150 feet of this lot. Further, conditions of approval will prohibit the use of exterior amplified music and outdoor patio lighting from being directed towards other properties or the right -of -way. 31 B -6 CUP Nos. 2013-15,2013-16 & 2013 -17 August 26, 2013 Page 5 The proposed after -hours operation will provide an ancillary service to the restaurant customers by allowing them the ability to offer meals after 12:00 midnight, thereby providing an additional dining option within the downtown area. This will benefit the community by providing a restaurant with an additional and complementary food - related amenity. The after -hours operation is consistent with that of other restaurants in the downtown and offers customers another late night dining alternative. Conditions have been placed on the after -hours permit that will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. The proposed after -hours operation is consistent with other restaurants operating in the downtown, and provides additional food choices for local residents and visitors. The after -hours operation will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the permit that will mitigate any potential negative or adverse impacts created by the use. In addition, the after -hours dining will primarily occur within the premises and will not create adverse impacts. The proposed use will not adversely affect the economic stability of the area, but will instead allow the restaurant to compete with other nearby restaurants that also offer after hours meals to their patrons. Moreover, the late night hours allows the restaurant to remain economically viable and contributes to the overall success of the downtown area in which it is located, helping to decrease the number of vacant tenant spaces that may affect the economic viability of the site. After -hours operation will contribute to the success of downtown by widening the time frame that food service is available thereby encouraging customers to stay longer in the downtown. As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant open after 12 midnight pursuant to Chapter 41 of the Santa Ana Municipal Code. The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. A restaurant which operates after hours will provide a dining service to the residents of Santa Ana. Conditional Use Permit No. 2013 -17 to allow a banquet facility The Native Son Alehouse restaurant also proposes an ancillary banquet facility, which would allow it to be closed to the general public for private events. The intent is to operate a full service restaurant; however, private events may be allowed on certain occasions. Per the SAMC, banquet facilities must have a kitchen facility, sanitation facilities, and a licensed security guard for every 100 persons in attendance per event. As proposed, the project meets or exceeds the standards for a banquet use. The allowance of a banquet facility at the restaurant will be consistent with several downtown restaurants and will result in a restaurant that maintains a stronger economic viability due to the ability to host private events. 31 B -7 CUP Nos. 2013 -15, 2013 -16 & 2013 -17 August 26, 2013 Page 6 • The proposed banquet facility permit will provide an ancillary service to the restaurant and their customers by providing a viable space to host special functions. This will benefit the community by providing a restaurant with an additional and complementary food - related amenity within the downtown area. Conditions have been placed on the banquet facility permit that will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. • The proposed banquet facility permit at location will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the permit that will mitigate any potential negative or adverse impacts created by the use. In addition, a banquet facility at this location will provide an ancillary service to the community, will occur within the premises and is incidental to the primary restaurant use. • The proposed use will not adversely affect the economic stability of the area, but will instead allow the restaurant to compete with other nearby restaurants that also offer banquet facility for special events and functions. Moreover, the banquet use will allow the restaurant to remain economically viable and contributes to the overall success of the downtown area in which it is located, helping to decrease the number of vacant tenant spaces that may affect the economic viability of the site. • As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant operating a banquet use pursuant to Chapter 41 of the Santa Ana Municipal Code. • The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. A restaurant with a banquet facility will provide an additional dining service to the residents of Santa Ana. Police Department Analysis The Police Department reviews conditional use permit applications for the sale of alcoholic beverages because there is a strong correlation between the availability of alcohol and crime. Studies have shown that alcohol is a contributing factor in crimes such as drunk driving, fatal traffic collisions, homicide, assaults, rape, domestic violence, drunk in public, and other nuisance -type offenses. Without stringent controls to address the location of alcohol outlets, there is a strong likelihood that an overconcentration will create blight and adversely impact the community. The approval of a license in an area deemed over - concentrated and high in crime may affect the quality of life and police resources in the area, and aggravate existing conditions. Since the City's overconcentration standards do not apply to on -sale establishments, the Police Department considered two factors when reviewing this type of application: crime rate and sensitive land uses. It has been determined that 305 East Fourth Street has an above average number of reported crimes when compared to all crime reporting districts based on standards established under B &P Code Section 23958.4. 31 B -8 CUP Nos. 2013 -15, 2013 -16 & 2013 -17 August 26, 2013 Page 7 The area of 305 East Fourth Street is located in Reporting District No. 185. This district is above average in police - related incidents and ranks 9th out of 102 citywide reporting districts. The proposed restaurant is also within 198 feet of residential property and within 514 feet of church property. The Police Department is concerned that this establishment may not consistently operate as a bona fide eating establishment. For that reason, conditions are recommended to mitigate any negative impacts this operation may have on adjacent residences, and prevent it from generating police calls for service. Public Notification The project site is located within the boundaries of the Downtown Neighborhood Association. Representatives from this Neighborhood Association were notified of this project. The project site was also posted with a notice advertising this public hearing, and a notice was published in the Orange County Reporter and mailed notices were sent to all property owners and tenants within 500 feet of the project site. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. CEQA Compliance In accordance with the California Environmental Quality Act the recommended action is exempt from further review per Section 15061(b)(3), which is a general rule exemption applying to projects that have no possibility of having a significant impact on the environment. Categorical Exemption Environmental Review No. 2013 -40 will be filed for this project. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Conditional Use Permit Nos. 2013 -15, 2013 -16 and 2013 -17 as conditioned. Hally Sobole keS�oboolle ke Associate Planner HS:jm hslNaUveSorAlehouse \cup13- 15thrul3.l8 NaliveSocWehouse.pc Attachments: Exhibit 1 —Vicinity Map Exhibit 2 — Location Map Exhibit 3 — Photo of location Exhibit 4 — Site Plan Exhibit 5 — Floor Plan 31 B -9 Vince Fregoso, ICP Principal Planner SWRO3341H RR GIS xl Cl a G5 ^F RI CI Rxx1a SE LJL) c5 R 1 5EVEMEHTH U ..... ° } SP3 p RI ar u y pRI ^ . Rxo3. u Rxo3. ii R1 q R1 Rt RI RI Rq1 ]R3 R3- p xRY " � SP j SP -3 x0Y] SP-3 Yi Pp R�1 Rl RI " RI Rl Ri u 0.I qz RZ u v RZ Rq Ri RR P z, P R2 Fr P RZ P4 ' a qi RZ SP3 SP3 - R SP-3 1 Y3! 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ARRSIl113A(£ ICD RANhIDO3MNl wD�,w S®FICRm U pIp gAhN ®FE{pg,111ALDRBpTA9R AMER81910RN'(iBJIHt R PRIRRAI.CLfJMHi]AL CUP 2013-15,16 and 17 NATIVE SON ALEHOUSE I 305 EAST FOURTH STREET, #200 -DDF£ 1"= 1000 FgT P L A N N I N G A N 0 B U I L D I N G A G E N C Y EXHIBIT 1 VICINITY MAP 31 B -10 5TH 4TH C O M I C O M M R C I A L 3RD M.F.R. M.F.R. H w w r 2 m C 0 M M r R C 11 A L C O M M E R C I A L I- tA STREET Z C O M M E R C I A L O w a COMM ims Ln o v STREET STREET C O M M E R C I A L CUP 2013-15,16 and 17 NATIVE SON ALEHOUSE 305 EAST FOURTH STREET, #200 �V P L A N N I N G A N D B U I L D I N G A G E N C Y LAND USE MAP EXHIBIT 2 31 B -11 0 n yc 4 R I { 0 N { Z ¢ D taik� ��� w Ln xe f P Fj a ¢b Aj � 0 z a w J R (D 0 s! a� 01, ¢pqpq 2 N � 3Atl NO3`JHIMSl1 I 31 M Q C �z 6e a y lO x I (IWGi9 i rl 1 n•1 ` ! 8'+ 2w Q p �. II II III 9 ASP 2 N 0 j p j$d3 y @6 Bt I�I��I� ��IIII Q i 78ii i€ �ijlll �Illfi i ( 05 3 o's9:1 app ;Ilil� Iii ! { o o N 4 S ��!iill lililll ! I ' I I i, h a Z w F W a ON '1S W, 3 P 9 tt 9 Lj OOCP 1510P'3 e, Y g F x R s a c ____ Lu 4 R Vii. '� in to 1�- A r; � P 9 yWFQ� h a Z w F W a ON '1S W, 3 P 9 tt 9 Lj OOCP 1510P'3 e, Y g F x R s a c ____ Lu 4 R Vii. '� in to 1�- A r; ROH - 08/26/13 RESOLUTION NO. 2013 -14 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING: CONDITIONAL USE PERMIT NO. 2013 -15 AS CONDITIONED TO ALLOW A TYPE 41 ALCOHOLIC BEVERAGE CONTROL LICENSE, CONDITIONAL USE PERMIT NO. 2013-16 AS CONDITIONED TO ALLOW AFTER -HOURS OPERATION, AND CONDITIONAL USE PERMIT NO. 2013 -17 AS CONDITIONED TO ALLOW A BANQUET USE, FOR THE PROPERTY LOCATED AT 305 EAST FOURTH STREET, UNIT 200 BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. Applicant is requesting approval of: Conditional Use Permit No. 2013 -15 to allow a Type 41 Alcoholic Beverage Control (ABC) license, Conditional Use Permit No. 2013 -16 to allow after -hours operations, and Conditional Use Permit No. 2013 -17 to allow a banquet use, for the property located at 305 East Fourth Street, Unit 200. B. Santa Ana Municipal Code Section 41 -2007 requires a conditional use permit for: the sale of alcoholic beverages for on -site consumption, businesses operating between the hours of 12:00 a.m. and 7:00 a.m., and the operation of a banquet facility. C. On August 26, 2013, the Planning Commission held a duly noticed public hearing on Conditional Use Permit No. 2013 -15, Conditional Use Permit No. 2013 -16, and Conditional Use Permit No. 2013 -17. D. The Planning Commission determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code Section 41 -638, have been established for Conditional Use Permit No. 2013 -15 to allow for a Type 41 ABC license: 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or the community? The proposed alcohol beverage license will provide a beneficial service that will help the Downtown area become Resolution No. 2013 -14 Page 1 of 14 31 B -15 a destination point. Conditions have been placed on the alcoholic beverage control license which will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed license for a restaurant at this location will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the alcoholic beverage control license that will mitigate any potential negative or adverse impacts created by the use. Additionally, the use will serve both visitors and the local and regional business community. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed use will not adversely affect the economic stability of the area, but will instead allow local businesses and the downtown area to become a destination area. Moreover, the offering of various food offerings allows the Downtown to remain economically viable and contributes to the overall success of Downtown Santa Ana, helping to decrease the number of vacant tenant spaces that may affect the economic viability of the site. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant selling beer and wine pursuant to Chapter 41 of the Santa Ana Municipal Code. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. A variety of restaurants in Downtown Santa Ana contributes to the economic success of the city as a shopping and dining destination. E. The Planning Commission determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code Section 41 -638, have been Resolution No. 2013 -14 Page 2 of 14 31 B -16 established for Conditional Use Permit No. 2013 -16 to allow for after hours operation: 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or the community? The proposed after -hours operations until to 1:00 a.m. on Sunday through Thursday and 2:00 a.m. on Fridays and Saturdays will allow the restaurant to remain competitive with other restaurants in the area, and will help the Downtown area become a destination point. Conditions have been placed on the after -hours operations that will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed after -hours operations for a restaurant at this location will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the restaurant operations that will mitigate any potential negative or adverse impacts created by the use. Additionally, the restaurant will serve both visitors and the local and regional business community. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed use will not adversely affect the economic stability of the area, but will instead allow local businesses and the downtown area to become a destination area. Moreover, the offering of various food offerings allows the Downtown to remain economically viable and contributes to the overall success of Downtown Santa Ana, helping to decrease the number of vacant tenant spaces that may affect the economic viability of the site. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a restaurant operating after 12:00 midnight. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? Resolution No. 2013 -14 Page 3 of 14 31 B -17 The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's needs for goods and services. A restaurant that is open past midnight contributes to the economic success of the city as a shopping and dining destination. F. The Planning Commission determines that the following findings, which must be established in order to grant this Conditional Use Permit pursuant to Santa Ana Municipal Code Section 41 -638, have been established for Conditional Use Permit No. 2013 -17 to allow for a Banquet Facility: 1. Will the proposed use provide a service or facility which will contribute to the general well being of the neighborhood or the community? The proposed restaurant may close to the general public all or a portion of the restaurant to allow for a banquet use. This will allow the restaurant to be used by the local community for private events and similar functions. This will allow the restaurant to remain competitive with other restaurants in the area, and will help the Downtown area become a destination point. Conditions have been placed on the banquet operations that will mitigate any potential impacts created by the use and ensure that the use will not negatively affect the surrounding community. 2. Will the proposed use under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity? The proposed banquet use at this location will not be detrimental to persons residing or working in the vicinity because conditions have been placed on the restaurant operations that will mitigate any potential negative or adverse impacts created by the use. Additionally, the restaurant will serve both visitors and the local and regional business community with emphasis on local service. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The proposed use will not adversely affect the economic stability of the area, but will instead allow local businesses and the downtown area to become a destination area. Further, offering of various types of services is needed to create an active downtown for local patrons and visitors. Resolution No. 2013 -14 Page 4 of 14 31 B -18 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? As conditioned, the proposed project will be in compliance with all applicable regulations and conditions imposed on a banquet hall. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed use will not adversely affect the General Plan. Policy 2.2 of the Land Use Element encourages land uses that accommodate the City's varied needs for goods and services. A restaurant that offers the potential for private parties and banquets provides an essential service for local patrons and regional visitors including the business community. G. In accordance with the California Environmental Quality Act the recommended action is exempt from further review per Section 15061(b)(3), which is a general rule exemption applying to projects that have no possibility of having a significant impact on the environment. Categorical Exemption Environmental Review No. 2013 -40 will be filed for this project. Section 2. The Planning Commission of the City of Santa Ana after conducting the public hearing hereby approves Conditional Use Permit No. 2013 -15 as conditioned in Exhibit A attached hereto and incorporated as though fully set forth herein, Conditional Use Permit No. 2013 -16 as conditioned in Exhibit B attached hereto and incorporated as though fully set forth herein, and Conditional Use Permit No. 2013 -17 as conditioned in Exhibit C attached hereto and incorporated as though fully set forth herein. This decision is based upon the evidence submitted at the abovesaid hearing, which includes but is not limited to: the Request for Planning Commission Action dated August 26, 2013 and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. ADOPTED this 26th day of August 2013 by the following vote: AYES: Commissioners: Alderete, Bacerra, Crespo, Gartner, Mill, Nalle, NOES: I_1:J� ABSTENTIONS Commissioners: Commissioners: Commissioners: Yrarrazaval (7) None (0) None (0) None (0) 31 B -19 Resolution No. 2013 -14 Page 5 of 14 Eric Alderete Chairman APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan O. Hodge Assistant City Attorney CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARTHA RAMIREZ, Secretary of the Planning Commission, do hereby attest to and certify the attached Resolution No. 2013 -14 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on August 26. 2013. Date: Secretary of the Planning Commission City of Santa Ana 31 B -20 Resolution No. 2013 -14 Page 6 of 14 EXHIBIT A Conditions for Approval of Conditional Use Permit No 2013 -15 Conditional Use Permit Nos. 2013 -15 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. The premises shall at all times be maintained as a bona -fide eating establishment as defined in Section 23038 of the California Business and Professions code and shall provide a menu containing an assortment of foods normally offered. The premises must have suitable kitchen facilities and supply an assortment of foods commonly ordered at various hours of the day. Full and complete meals must be served whenever the privileges of the on -sale license are being exercised. 2. There shall be no fixed bar or lounge area upon the premises maintained for the sole purpose of sales, service or consumption of alcoholic beverages directly to patrons. A fixed bar or lounge may be permitted if patrons may order food from the same menu being offered to the general patrons of the eating establishment. 3. The sales, service, and consumption of alcoholic beverages shall be permitted only between the hours of 8:00 a.m. and 12:00 a.m. unless otherwise amended by the granting of Conditional Use Permit No. 2013 -16 for after -hours operations pursuant to Santa Ana Municipal Code Chapter 41. 4. It shall be the applicant's responsibility to ensure that no alcoholic beverages are consumed on any property adjacent to the licensed premises under the control of the applicant, with the exception of any enclosed patio areas. 5. The applicant or an employee of the licensee must be present to monitor all areas of the establishment, including outdoor patios, during all times that alcoholic beverages are being served or consumed. Resolution No. 2013 -14 Page 7 of 14 31 B -21 AUGUST 26, 2013 PAGE 2 OF 4 6. All employees serving alcoholic beverages must complete Responsible Beverage Service Training, or an equivalent approved by the State Department of Alcoholic Beverage Control, prior to being able to serve alcoholic beverages to patrons. Evidence of the completion of such training must be maintained on the premises and available for inspection upon request by the City. 7. During those times when patrons are restricted to 21 years of age or older, the applicant shall at all times utilize an age verification means or device for all purchases of alcoholic beverages. Queuing lines shall be managed i and /or intoxicated patrons shall be his designee, shall be responsible times. i an orderly manner and all disruptive denied entry. The business owner, or for monitoring the queuing lines at all 9. The outdoor queuing line shall not block public walkways or obstruct the entry or exit doors of adjacent businesses. Stanchions or barriers must be used to maintain order at all times the queue exceeds 25 patrons. If located on public property those barriers must be approved by the Public Works Agency. 10. Employees and contract security personnel shall not consume any alcoholic beverages during their work shift, except for product sampling for purposes of employee education about new products. 11. There shall be no exterior advertising of any kind or type, including window signs or other signs visible from outside, that promote or indicate the availability of alcoholic beverages on the premises. Interior displays of alcoholic beverages or signs, which are clearly visible to the exterior, shall constitute a violation of this condition. Permissible window displays must be kept to a minimum for maximum visibility and shall not exceed 25 percent of window coverage. Floor displays shall not exceed three feet in height. 12. There shall be no promotions encouraging intoxication or drinking contests or advertisements indicating "buy one drink, get one free ", "two for the price of one', or "all you can drink for..." or similar language. 13. Any pool tables, amusement machines o r premises at any time must be reviewed submitted to the Chief of Police. 31 B -22 video games maintained on the and approved in a security plan Resolution No. 2013 -14 Page 8 of 14 AUGUST 26, 2013 PAGE 3 OF 4 14. Live Entertainment, including but not limited to, amplified music, karaoke, performers and dancing, is subject to compliance with Santa Ana Municipal Code ( "SAMC") Chapter 11 and shall comply with all of the standards contained therein. Notwithstanding this requirement, musictnoise shall not be audible beyond 20 feet from the exterior of the premises in any direction. 15. Neither the applicant, nor any person or entity operating the premises with the permission of the applicant, shall violate the City's adult entertainment ordinance contained in SAMC Section 12 -1 and 12 -2. 16. The premises shall not be operated as an adult entertainment business as such term is defined in SAMC Section 41- 1701.6. 17. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises under the control of the licensee. 18. There shall be no public telephones located on the exterior of the premises. All interior pay phones must be designed to allow outgoing calls only. 19. Any graffiti painted or marked upon the premises or on any adjacent area under the control of the licensee(s) shall be removed or painted within 24 hours of being applied. 20. Existing bona fide eating establishment and required parking must conform to the provisions of Chapter 8, Article II, Division 3 of the Santa Ana Municipal Code (Building Security Ordinance). These code conditions will require that the existing project lighting, door /window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. Prior to issuance of Letter of Approval to the Alcohol Beverage Control Board, this condition must be complied with. 21. A timed - access cash controller or drop safe must be installed. 22. Install a silent armed robbery alarm. Resolution No. 2013 -14 Page 9 of 14 31 B -23 AUGUST 26, 2013 PAGE 4 OF 4 23. The owner or manager of the licensed premises shall maintain on the premises a written security policy and procedures manual, that has been approved by the police department, addressing at a minimum the following items; handling obviously intoxicated persons; establishing a reasonable ratio of employees to patrons, based upon activity level, in order to monitor beverage sales and patron behavior; handling patrons involved in fighting, arguing or loitering about the building and in the immediate adjacent area that is owned, leased, rented or used under agreement by the Licensee(s); verifying age /checking identification of patrons; warning patrons of reaching their drinking limit/potential intoxication and refusing to serve; calling the police regarding observed or reported criminal activity and the management of queuing lines. 24. The operator shall be responsible for submitting a detailed outdoor fencing and dining plan where outdoor dining is proposed as part of the business operation. 25. Combined alcohol storage and display areas shall not exceed five percent (5 %) of the gross floor area of the licensed establishment. Resolution No. 2013 -14 Page 10 of 14 31 B -24 EXHIBIT B Conditions for Approval of Conditional Use Permit No 2013 -16 Conditional Use Permit No. 2013 -16 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. The premises shall at all times be maintained as a bona -fide eating establishment as defined in Section 23038 of the California Business and Professions code and shall provide a menu containing an assortment of foods normally offered. The premises must have suitable kitchen facilities and supply an assortment of foods commonly ordered at various hours of the day. Full and complete meals must be served whenever the privileges of the on -sale license are being exercised. 2. There shall be no fixed bar or lounge area upon the premises maintained for the sole purpose of sales, service or consumption of alcoholic beverages directly to patrons. A fixed bar or lounge may be permitted if patrons may order food from the same menu being offered to the general patrons of the eating establishment. 3. The sales, service, and consumption of alcoholic beverages shall be permitted only between the hours of 11:00 a.m. and 2:00 a.m. pursuant to this conditional use permit. 4. Live Entertainment, including but not limited to, amplified music, karaoke, performers and dancing, is subject to compliance with Santa Ana Municipal Code ( "SAMC ") Chapter 11 and shall comply with all of the standards contained therein. Notwithstanding this requirement, music /noise shall not be audible beyond 20 feet from the exterior of the premises in any direction. 5. Neither the applicant, nor any person or entity operating the premises with the permission of the applicant, shall violate the City's adult entertainment ordinance contained in SAMC Section 12 -1 and 12 -2. 6. The premises shall not be operated as an adult entertainment business as such term is defined in SAMC Section 41- 1701.6. 7. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises under the control of the licensee. Resolution No. 2013 -14 Page 11 of 14 31 B -25 AUGUST 26, 2013 PAGE 2OF2 8. There shall be no amplified sound used outside the building. 9. The storage of delivery vehicles is not allowed at this location. 10. No use of delivery vehicles with more than three axels axles at this location. Modified by Planning Commission on August 26, 2013. 11. This establishment must comply with Santa Ana Municipal Code Section 18 -312 related to exterior noise. 12. Trash enclosure program shall be provided via plan check submittal. 13. Sign permits (both permanent and temporary) are under separate submittal. 14. Special events are subject to a Land Use Certificate where such activities will take place outside of the restaurant building. Resolution No. 2013 -14 Page 12 of 14 31 B -26 EXHIBIT C Conditions for Approval of Conditional Use Permit No 2013 -17 Conditional Use Permit No. 2013 -17 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. The premises shall at all times be maintained as a bona -fide eating establishment as defined in Section 23038 of the California Business and Professions code and shall provide a menu containing an assortment of foods normally offered. The premises must have suitable kitchen facilities and supply an assortment of foods commonly ordered at various hours of the day. A banquet facility is ancillary to the primary restaurant use. There shall be no fixed bar or lounge area upon the premises maintained for the sole purpose of sales, service or consumption of alcoholic beverages directly to patrons. A fixed bar or lounge may be permitted if patrons may order food from the same menu being offered to the general patrons of the eating establishment. 3. Live Entertainment, including but not limited to, amplified music, karaoke, performers and dancing, is subject to compliance with Santa Ana Municipal Code ( "SAMC ") Chapter 11 and shall comply with all of the standards contained therein. Notwithstanding this requirement, music /noise shall not be audible beyond 20 feet from the exterior of the premises in any direction. 4. Neither the applicant, nor any person or entity operating the premises with the permission of the applicant, shall violate the City's adult entertainment ordinance contained in SAMC Section 12 -1 and 12 -2. 5. The premises shall not be operated as an adult entertainment business as such term is defined in SAMC Section 41- 1701.6. 6. The applicant(s) shall be responsible for maintaining free of litter the area adjacent to the premises under the control of the licensee. 7. There shall be no amplified sound used outside the building. 8. The storage of delivery vehicles is not allowed at this location. Resolution No. 2013 -14 Page 13 of 14 31 B -27 AUGUST 26, 2013 PAGE 2 OF 2 9. No use of delivery vehicles with more than three axels at this location. 10. This establishment must comply with Santa Ana Municipal Code Section 18 -312 related to exterior noise. 11. Trash enclosure program shall be provided via plan check submittal. 12. Sign permits (both permanent and temporary) are under separate submittal. 13. Special events are subject to a Land Use Certificate where such activities will take place outside of the restaurant building. Resolution No. 2013 -14 Page 14 of 14 31 B -28 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: CONDITIONAL USE PERMIT NO. 2013 -26 AND VARIANCE NO. 2013 -09 TO ALLOW THE BAT NHA BUDDHIST MEDITATION CENTER AT 803 SOUTH SULLVAN STREET RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Receive and file the staff report approving Conditional Use Permit No. 2012 -16 as conditioned and Variance No. 2012 -05 as conditioned. PLANNING COMMISSION ACTION On August 26, 2013, the Planning Commission adopted a resolution approving Conditional Use Conditional Use Permit No. 2013 -26 as conditioned to allow a church use in a residential zone, Variance No. 2013 -09(a) as conditioned to allow a reduction in parking and Variance No. 2013 - 09(b) as conditioned to exceed the allowable building height by a vote of 7:0 to allow the construction of a mediation center at 803 South Sullivan Street located in the Single Family Residential (R1) zoning district. The Planning Commission made no changes to the recommended conditions of approval outlined in the attached staff report (Exhibit A). DISCUSSION The Bat Nha Buddhist Meditation Center will be an 8,551 square foot, newly- constructed worship facility which will be located on the site Bat Nha has occupied since 1996 on S. Sullivan Street. The new facility will feature traditional Vietnamese temple architecture that includes several elements that exceed the maximum height requirement in that zone. The project will also include 115 new parking spaces, the majority of which will be located in a parking podium under the new facility. The approval of the CUP would allow for a church use in a residential zone. The approval of the two variance requests would allow for a reduction in required parking of eight spaces and will allow for the temple's architectural features to reach 48 feet in height in limited locations. 31 C -1 CUP No. 2013 -26 and VA No. 20103 -09 September 16, 20013 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. J". Trevino Executive Director Planning & Building Agency VF: rb Areports\CURCUP13 -26 8 VA 13 -9 Bat Nha.c Exhibit: A. Planning Commission Staff Report 31 C -2 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: AUGUST 26, 2013 TITLE: PUBLIC HEARING — FILED BY STEVEN LETRAN FOR CONDITIONAL USE PERMIT NO. 2013 -26 AND VARIANCE NO. 2013 -09 TO ALLOW THE BAT NHA BUDDHIST MEDITATION CENTER AT 803 SOUTH SULLVAN STREET Prepared by Vince Fregoso Executive Director RECOMMENDED ACTION PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended • As Amended • Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation CONTINUED TO 0AA. Planning M11nager 1. Adopt a resolution approving Conditional Use Permit No. 2013 -26 as conditioned. 2. Adopt a resolution approving Variance No. 2013 -09(a) as conditioned to allow a reduction in parking. 3. Adopt a resolution approving Variance No. 2013 -09(b) as conditioned to exceed the allowable building height. Request of Applicant Steven LeTran, representing the Bat Nha Buddhist Meditation Center, is requesting approval of a conditional use permit and variances in order to allow the construction of an 8,551 square foot, 48- foot tall meditation center. Specifically, the applicant is requesting a conditional use permit per Section 41- 232.5(a) of the Santa Ana Municipal Code (SAMC) to allow a church use in a residential zone. In addition, variances are requested from Section 41 -233 to exceed the allowable height and from Section 41 -1411 to reduce the amount of required parking for the proposed use. Proiect Location and Site Description The Bat Nha Buddhist Meditation Center is proposed to be constructed on a 1.46 acre, rectangular shaped parcel of land located at 719 and 803 South Sullivan Street. The northern parcel (719 South Sullivan Street) contains a 1,700- square foot residence and 323 - square foot garage that will be demolished. The southern parcel (803 South Sullivan Street) contains the existing Bat Nha Buddhist Temple and monastery, which consists of three buildings: A 1,856- square foot, three bedroom residence at the front of the property; an 870 - square foot accessory structure used as the worship space for the temple; and a 400- square foot storage building. EXHIBIT A 31 C -3 CUP No. 2013 -26 and VA No. 2013 -09 August 26, 2013 Page 2 The land uses surrounding the project site include church uses to the north and south, single - family residential development to the east, and multi - family residential uses to the west (Exhibits 1, 2 and 3). Project Description The Bat Nha Buddhist Meditation Center is proposing to demolish its existing temple and an adjacent single - family residence in order to construct a new two -level meditation center. The new center is proposed to be an 8,551- square foot facility that will be constructed on a podium. The ground floor, which will be approximately four feet below grade, will contain a kitchen and restroom as well as the on -site parking for the center. The second level, which will be built on top of the podium, will contain the meditation center and ancillary rooms. This level will include the worship area, a retreat room, a photo display room, the principal's private rooms, office and storage for the facility (Exhibits 4, 5, 6 and 7). The building layout and architectural design are intended to create an environment that is consistent with Buddhist teachings and meditation. The architectural style, design and decoration of the project is traditional Vietnamese, incorporating posts, lintels, open courtyards, sky wells, verandas and hallways that connect different areas of the meditation center. The slanted terra cotta clay tile roofs feature curved eaves that will be consistent on all of the structures. Although the main level of the building is one -story, the decorative roof and tower elements create the appearance of a two -story building. The two -story element will be 36 feet in height from street level, with the decorative tower elements extending up to 48 feet in height. Because these elements will exceed the 27 -foot height limit in the R1 zoning district, a variance is needed. Parking for religious facilities is based on the number of seats within the assembly areas and the square footage of the office areas. Based on the size of the assembly and office areas, a total of 123 parking spaces are required for this facility, while only 115 spaces will be provided. The parking spaces are located on the ground level, with 95 parking spaces located below the podium and the remaining 20 uncovered spaces at the rear of the site. Because the project proposes fewer spaces than required by code, a second variance is proposed. The meditation center will be open every day at 10:00 a.m. Closing hours for the center are from 4:30 p.m. on Wednesday and Friday, 5:30 p.m. on Tuesday, Thursday and Sunday, and 6:00 p.m. on Monday and Saturday (Exhibit 8). In conjunction with the conditional use permit and variances, the applicant is applying for a voluntary lot merger to merge the two lots into one parcel. This is a ministerial application that will be filed separately and does not require Planning Commission review or approval. 31 C -4 CUP No. 2013 -26 and VA No. 2013 -09 August 26, 2013 Page 3 Proiect Backaround In February 1996, the City Council approved Conditional Use Permit No. 1995 -25 to allow the conversion of a children's day care center into the Bat Nha Buddhist Temple and monastery at 803 South Sullivan Street. As part of the approvals, improvements such as repaving and restriping the existing parking lot, the installation of parking lot lighting and the construction of a patio cover were completed. In 2009, Bat Nha purchased the northern property at 719 South Sullivan Street with the intent to construct a larger facility on the two lots. General Plan and Zoning Consistency The General Plan land use designation for the site is Low Density Residential (LR). Low Density Residential land use districts are those areas of the City which are developed with lower density residential land uses such as single - family units. Additionally, these districts allow uses that provide support services to single - family uses such as this religious facility. The project site is consistent with this General Plan land use designation. The parcel is located within the Single - Family Residential (R1) zoning district. The R1 zoning district allows single - family housing as well as support uses such as churches, making the proposed use consistent with the zoning designation. Project Analvsis Conditional Use Permit Conditional Use Permit requests are governed by Section 41 -638 of the SAMC. Conditional Use Permit requests may be granted when it can be shown that the following can be established: • That the proposed use will provide a service or facility which will contribute to the general well being of the neighborhood or community. • That the proposed use will not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. • That the proposed use adversely will not affect the present economic stability or future economic development of properties surrounding the area. • That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. • That the proposed use will not adversely affect the General Plan of the city or any specific plan applicable to the area of the proposed use. 31 C -5 14111205W. nobaRZ-FOOMONOW4119YOR August 26, 2013 Page 4 If these findings can be made, then it is appropriate to grant the conditional use permit. Conversely, the inability to make these findings would result in a denial. Using this information staff has prepared the following analysis, which, in turn forms the basis for the recommendation contained in this report. In analyzing the conditional use permit request, staff believes that the following findings of fact warrant approval of the conditional use permit. The Bat Nha Buddhist Meditation Center is currently located on the premises and provides services that contribute to the wellbeing of the surrounding community. The proposed expansion of the existing facility will allow the center the ability to provide additional religious services that will continue to benefit the community. The mitigated negative declaration that was prepared for the project has determined that no adverse impacts will be generated from the expanded facility. The proposed expansion of the Bat Nha Buddhist Meditation Center will not negatively impact residents or workers in the area since the church and related programs will operate exclusively on a site that is surrounded by walls and fences. Conditions of approval have been incorporated into the project approvals that will minimize impacts to the surrounding properties. Further, the 115 parking spaces to be provided on the site, in conjunction with an off -site parking agreement with the Santa Ana Unified School District, will satisfy the parking requirements for all center operations and will not result in any impacts on the adjacent properties. Finally, no adverse health or safety impacts were identified in the mitigated negative declaration for the project. • The expansion project will not adversely affect the economic viability of the area. The expansion project will result in a positive addition to the surrounding area and will complement and improve the economic viability of the area as the new development will identify the area as a stable area for economic investment. The proposed project will be in compliance with all applicable provisions of Chapter 41 of the Santa Ana Municipal Code and all other provisions that regulate church uses, with the exception of parking and height. The applicant has applied for the necessary variances to allow off -site parking and to allow the structure to exceed the maximum allowable height. The proposed use will not adversely affect the General Plan. The Bat Nha Buddhist Meditation Center is consistent with the General Plan's Land Use Element goals and policies. Goal 1 promotes a balance of land uses to address basic community needs and Goal 3 promotes development that preserves and improves the character and integrity of neighborhoods. Further, the project is consistent with Policy 1.8 to encourage the development of nonprofit facilities and services as well as Policy 3.1 to promote uses that provide a positive contribution to neighborhood character and identity. 31 C -6 CUP No. 2013 -26 and VA No. 2013 -09 August 26, 2013 Page 5 Variances Variance requests are governed by Section 41 -638 of the SAMC. Variance requests may be granted when it can be shown that the following can be established: • That there exists a special circumstance related to the property, such as size, shape, topography, location or surroundings. • That the granting of the variance is necessary for the preservation and enjoyment of substantial property rights. • That the granting of the variance will not be detrimental to the public or surrounding property • That the granting of the variance will not adversely affect the General Plan. If these findings can be made, then it is appropriate to grant the variance. Conversely, the inability to make these findings would result in a denial. Using this information, staff has prepared the following analysis, which forms the basis for the recommendation contained in this report. The applicant is proposing to obtain variances to allow a reduction in parking as well as to exceed the allowable height. The first variance is to allow an eight space (seven percent) reduction in parking. Section 41 -1411 of the SAMC requires a minimum of 123 parking spaces for this project, while the applicant proposes to provide 115 parking spaces. The applicant contends that the meditation center does not operate like the traditional churches found in the neighborhood as it does not offer the structured worship services found in a traditional church. According to the applicant, a typical Sunday session consists of about 20 members visiting the site for prayer at any given time. However, in order to address the shortage of eight parking spaces, the applicant proposes to maintain an off -site parking agreement with the Santa Ana Unified School District and provide additional parking at Lincoln Elementary School, which is approximately 1,000 feet north of the meditation center site. To address parking concerns during special events, a condition of approval has been incorporated into the project that requires the applicant to submit a Special Event Parking Management Plan. This plan will include specifics on off -site parking, bussing and transportation, hours of operation and traffic management, all in an effort to minimize impacts to the surrounding neighborhoods. The second variance is to allow the building to exceed the allowable height in the R1 zoning district. Section 41 -233 of the SAMC establishes the maximum height of buildings to 27 feet and two stories in height in the R1 zone. The SAMC provides the ability to vary from the design standards contained in the code where there is a condition unique to size, shape, topography, location or surroundings of the site. Regulating building height preserves the quality of the visual environment by ensuring that new development is harmonious in scale and character with existing 31 C -7 CUP No. 2013 -26 and VA No. 2013 -09 August 26, 2013 Page 6 development in the area. In this case, the applicant proposes to construct a two -story meditation center with the primary roof element at 38 feet in height and steeples and other defining features a maximum of 48 feet in height. There are two features of the subject site that would warrant a variance from the regulation of the maximum height of buildings; the location of the facility along a secondary street and the unique contextual surroundings of similar sized facilities. The project site faces unique challenges created by its locational circumstances. First, it is located on an interior lot on Sullivan Street, which is defined by the Circulation Element of the General Plan as a secondary street. Additionally, the site shares its northern property line with the New Spirit Baptist Church and its southern property line with the Lao Evangelical Church. Although the site shares its easterly property line with single family residential uses, the homes are oriented towards smaller residential collector streets which take access from Golden West Avenue and are located a minimum of 50 feet from the proposed church building. To the east, the proposed structure would be approximately 100 feet from the closest residential building. The applicant proposes to install the steeples toward the center of the site approximately 130 feet from its primary entrance on Sullivan Street. The proposed main roof element is mirrored by several smaller steeples elsewhere on the building, all of which create character - defining features supportive of its traditional Vietnamese architecture found on similarly - themed buildings and structures. It is not uncommon for religious facilities to have decorative elements and /or accessory structures that exceed the maximum building height. A variance was recently approved for Calvary Lutheran Church on West McFadden Avenue to allow the construction of a 60 -foot high bell tower and steeple. St. Barbara's Catholic Church on Euclid Avenue also has a 60 -foot tall tower structure that was built in 2007 that serves as a significant architectural feature. Due to the project's location on a secondary street and the need to encourage architectural integrity, the applicant is requesting the ability to construct features appropriate for the architectural style and theme of the meditation center. The elements will create a sense of arrival and community for the congregation of the Bat Nha Buddhist Meditation Center while maintaining the quality of the surrounding visual environment which is harmonious in scale with surrounding structures in the area. The project site contains a special circumstance related to its size, shape and location. Due to the unique location along a secondary arterial street, denial of the variance would deprive the property owner the privilege of utilizing the facility to its maximum potential and ensure the privileges for its patrons. To address the parking shortage, the applicant is entering into a long term agreement with the Santa Ana Unified School District (SAUSD) to allow nearby off -site parking. Further, due to the project's location on a secondary street, architectural elements that exceed the maximum allowable height are needed to allow the applicant the ability to construct a project that is in conformance with the architectural style for a Buddhist meditation center. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. The granting of the variance would allow the property owner the opportunity to construct a meditation center with less than required parking and with roof elements that are found on similar architectural themed buildings and church structures in the City. 31 C -8 CUP No. 2013 -26 and VA No. 2013 -09 August 26, 2013 Page 7 • The granting of the variance will not be detrimental to the public or surrounding properties as the building and site have been designed to comply with all applicable development standards except for parking and height. The proposed off -site parking agreement with the SAUSD will provide additional parking that exceeds the minimum required for the center. Further, off -site improvements are required that address disabled accessibility issues from the school parking lot to the site. The proposed roof elements will be consistent with the architectural theme and materials found on similar projects in the City. The height and appearance of the roof elements will blend with the existing buildings and will not be materially detrimental to the public welfare or injurious to surrounding property. The taller roof elements will be setback substantially from nearby properties and will not interfere with the safety of pedestrians or motorists entering or exiting the site. • Finally, the project will not adversely affect the general plan in any way as the land use designation of Low Density Residential (IR -7) allows churches and accessory structures in the land use designation. Public Notification The project site is located within the Bella Vista Neighborhood Association. Staff has attended several meetings between the project applicants, the Bella Vista, New Horizons, Windsor Village and Windsor Village North Neighborhood Associations, the Country Club Mobile Home Park, New Spirit Baptist Church and the Lao Evangelical Church. The first meeting between the various groups was held on December 7, 2011 and introduced the proposed meditation center to the various parties. The most recent meeting between the groups was held on July 30, 2013. At these meetings, numerous items of discussion were raised, including the need for better cooperation between the three churches, parking during special events, traffic, noise and drainage. The project site was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter, and mailed notices were sent to all property owners and tenants within 500 feet of the project site. At the time of this printing, no correspondence, by phone, written, or electronic, has been received from any members of the public. CEQA Compliance As part of the City's permitting process, the proposed project is required to undergo an environmental review in accordance with the California Environmental Quality Act (CEQA). In accordance with CEQA, the recommended actions have been reviewed through a Mitigated Negative Declaration (MND), Environmental Review No. 2012 -3, Section 15063 of the State CEQA Guidelines and Sections 15070 -15075 of Article 6 guide the process for the preparation of a mitigated negative declaration. 31 C -9 CUP No. 2013 -26 and VA No. 2013 -09 August 26, 2013 Page 8 This MND, as required by CEQA, contains: 1) a project description; 2) a description of the environmental setting, potential environmental impacts, mitigation measures for any significant effects, and consistency with plans and policies; and 3) names of preparers. The mitigation measures included in this Initial Study /MND are designed to reduce or eliminate the potentially significant environmental impacts described herein. The scope of the MND evaluates the proposed project's effects on the following resource topics: aesthetics • agriculture and forestry resources • air quality • biological resources cultural resources geology /soils greenhouse gas emissions hazards & hazardous materials • hydrology /water quality land use /planning mineral resources noise population /housing public services recreation transportation /traffic utilities/ service systems The City prepared a draft MND and posted the Notice of Intent (NOI) to adopt an MND at the Orange County Clerk's office; the NOI was published in the Orange County Register on July 17, 2013. The City circulated the draft MND for a 21 -day public review between July 17 and August 6, 2013. The draft MND was available for public review at the Santa Ana City Hall, the City of Santa Ana Main Library, and on the City's website. This final IS /MND contains the original draft IS /MND as published, as well as comments received on the draft IS /MND and the responses of the lead agency to significant environmental points raised in the review and consultation process. The intent of the final IS /MND is to provide a forum to air and 31 C -10 CUP No. 2013 -26 and VA No. 2013 -09 August 26, 2013 Page 9 address comments pertaining to the analysis contained in the draft IS /MND and to provide an opportunity for clarification, corrections, or minor revisions to the draft IS /MND as needed. Comments were received during the public review period. Pursuant to Section 15088 of the State CEQA Guidelines, the City, as the lead agency for the project, has reviewed all comments received on the draft IS /MND (Exhibit 9). As a result of the environmental analysis, mitigation measures have been provided to address potential environmental impacts. A list of these mitigation measures are found within the MND document. Mitigation measures have been outlined to address potential impacts on air quality, biological resources, cultural resources, geology /soils, greenhouse gas emissions, hazards and hazardous materials, hydrology, noise and transportation /traffic. Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission approve Conditional Use Permit No. 2013 -26, Variance No. 2013 -9(a) to allow a reduction in parking and Variance No. 2013 -09(b) to exceed the allowable height as conditioned. Vincent Fregoso, AIC Principal Planner VF:jm vNeportslCUP1CUP13 -26 8 VA 13 -9 Bat Nha.082613.pC Attachments: Exhibit 1 —Vicinity Map Exhibit 2 — Location Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan Exhibit 5 — Floor Plan Exhibit 1 — Vicinity Map Exhibit 6 — Building Elevations Exhibit 7 — Preliminary Landscape Plan Exhibit 8 — Operational Plan Exhibit 9 — Mitigated Negative Declaration 31 C -11 FIRST ST. IRiF C2 C2 i R2-PRO a C2 I` 4Allr C`- C- 2 -��M -I �r P2 u O t I r e C2 'W :I 1: � � C2 Ii C5 li - - - -J� TI RI Rir i ate p RI RI I RIW I' RI I It- I IRIII I Rl III I ` "� RI I!I I____',I " R7 R7 'LVi ` L''Ay MI RI RI :i2 li jr II j1 '1fr= _____a_i:ur R3 I R3 RI § fll R2 - R2 . fl2 ¢ g O RI d R1 H R7 1 al R1 R1 R7 RI RI RI R1 g u f a1 a1 RI RI RI Rl JI RI In ____JR I RI RI Rl R ______R7__1i — c HI R Rl I RI u Rl e R RI ft11 RI RI 1- RI O O R R3 „RI PROJECTS +° s R1 RI C4 y �r CS D RI WFAQ [s .nu al fll al RI RI RYI R1 n RI al _ RI RI R2 R2 RI ! 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Al GB.'3MIAMCU.I t CN OLLIM3WLRJp3fiM1 RI RNOEFN.RILY169DBJM1. e PARMMODR01110N CC GD.13HA3Jrc f III WPM1LYf DBCE 03,1 OOMWSCK3AfMMNN Mf uGwlhujsg Rt MAIIREDB131YMULl1 C WMMU com mq M2 flAWWIXb1ML FMLY�wm CI -MD 00M.0OMMOMUMl1MNCI MCr M0 MR12AM09M/10NS m 319iBRNAFMIMB C2 Offe .00maUAL 0 OF ACE fE R®DBlR wF C3 C3Rfp BANES5 P RON'a90W,1 so 3 MDP.Ht ag 6A C�MilbTMlen {m RANfRD MWWCEALC I3fC S' 3,C1RC{RAN U N W9CFPAIO ieE m HNJN "DB111FLDE4/iOfMM 6 ARIBW.OTVA9[]Pl CUP 2013 -26NA 2013 -9 BAT NHA MEDITATION CENTER �A 803 SOUTH SULLIVAN STREET - - =500 FEET 7 =1000 FEET P L A N N I N G A N D B U I L D I N G A G E N C Y EXHIBIT 1 VICINITY MAP 31 C -12 MULTI- MONTA VISTA AVENUE CHURCH e MULTI- FAMILY ✓-Mai -3 .:,c CHURCH CUP 2013 -26NA 2013 -9 BAT NHA MEDITATION CENTER 803 SOUTH SULLIVAN STREET P L A N N I N G A N D B U I L D I N G A _6E N C Y LAND USE MAP EXHIBIT 2 31 C -13 CUP 2013 -26/VA 2013 -9 BAT NHA BUDDHIST MEDITATION CENTER SITE PHOTO 803 SOUTH SULLLIVAN STREET EXHIBIT 3 31C -14 M3'9h:a76303E NR.M SH6- BU -(IIL) 131 1036 YJ YIN WOOS B58i6 YJ 3MYND C9916 W43isliNSA IS MIARY5 (O9 tiz 31M ' MY awenircu� M sIU W sNO3 a96 µ ib d [ wal3 N3lls - kamtl li mm hVtll IN'JN vnL ` iJ ., gg ,,,.,.. s En � Nvumaw as�Naane : Y; 63PFYJOSSYY NWB30N e 0000 .G� sa000 FIFif3E:�pf3F�Eif�F�f�EiF3 s- iPII0.rG. �;.. aolea�.i'47S°JP:.. 8:: 4.� �B0.a roy�L o�py�g ' E1ElEifiifiEdElE�E3E7F3F3iE3 � �� ��,�� z ®� II u FACdF.lFAii]FAOHRF3EjS:7E7 Nil 11 11 e^ lJ e � 0Yip -,-a* W_ \X$i�B B1gBF74&1�16FL'iAP � r ItOJ'JhItYAS30dli MMM HHBZ6 YJ 'XYIYtp SK6- Hlr-pl1) n)1 ,,a.• 55916 Y] 'x)ISwN53H �� Wrtll IIr9N mL 10116 YJ Yltl YIIryH l5 hYhItYK (M Ull, bft39 KOIdE'dffi3Ca V r a � ��• z W rF a i UU WOOD V n i. U WW ii �y�y li� p�g 3�Wd jj Y Y is tr • iP R N .� � St V • �� i V .t - I G MOOD 7 of 3 Yq]'Jt1J! %301KkYM 5Y[6-BIY-(tl[) Ull M¢6 YJ'Y!tt Y1NY5 ff." y 85856 YJ '3k1YW {g8I6 VJ 'tl31SNWsw �.;;; \� l5 MMlll15 CM YIL lJOS'SIY 0W 3Jtotl * SOLI 't]I 811!01 OCYB # 1, Y pFQ NYMIII 13 315 - M14f011 iV Ayw pp Am wm Iillf f cb yy8 5 0 ?Imirla'v 9 W.SaaVi'9 1 '♦d 5i95'6f(N.a11515a � , � F 63LN3a P{(?PAWAIG ?11 a9f74BAfl9 b7t11 i 8 M FA 11111111 111111/1 ill I'M II� I NOR II111 I-� n Iilll i 1.. x + J g'; iR w k64 Iill�ll II� I NOR II111 I-� n Iilll i x _ Him � � J g'; iR w k64 ILM Iill�ll II� I NOR II111 I-� n Iilll ___ x _ � � w ILM auk NOR I-� n auk M]g'wrx63ms'YMY SYC6- BI /-(01f) 011 to.Lfi Y, 'Y' YlNYS BB8i6 YJ 'V..NW LB9[6 Y] 'tlll5to usw i9 \= i� 15 PNAM 5 Cm y L NYB)B] IM IS- 1111", N "m Md II -1 INDI W16 gg ti�6 63.u'3�i!QAYliG31Y 1$!kQ6fl9 l i i i i I i i a ! i �a31315i1$$Y i Hn3t$3(]'d'1'8 4 N�{3i39�IlS9flll1$ � � sx)a lra = e e a C t { ��� �'} n 0 z J f` 1 EXHIBIT 6 •Patbinpf 4 F 6 y 6 W: �e a�w 14 I I' I. i s ;1 ui a ,�I I lei I 101►���8 1 1.1 Lr HUMANISM ■ ,I Iil �'I �� I� NJ NJ � 1 1�1 1 I NJ 1 1.1 y I' 1 ' I� �i k. ! 11 T T� 14 0i�iio�saooe P-17 tim I ...r�'! �' %•L L�r^ ice) d /�'!, i I i� -_ -�- �I �� T y ay PB "lava 19NVV1NVS l ¢ �� � i .� 133NIS NtlN11nS *9 coo NVId DNRNV'Id P! Q a a n N31N3O NOUV11O3W 1SIHOOne VHN I VA J ar 0 gy 81y 4 y i!S a 6At p 1 3 !n ae PB 0 e LB ,q ' a g Y 4 is NVAiiins s 31 U- a ! i � ` t 9 ! ! t 3 i i 9 i ty, M e t e iaaa Y Y Y Y Y •' , I P t a i , BP T i +� BAT NHA OPERATION SCHEDULE Bat Nha's members have regular meetings and practices on every Monday. On other weekdays, Bat Nha has Buddhism classes, held from Tuesday to Friday from 10 am. to 11:30 am. with roughly five current attendees and expected future attendees for the new building at ten. Meditation Session is held every Tuesday and Thursday from 4:30pm. to 5:30 pm. Religious Practice is scheduled on every Wednesday and Friday from 3 pm. to 4:30 pm. Both Religious Practice and Meditation Session currently have about ten attendees for each section. Fifteen is the expected number of the future attendees. On regular Saturdays, there are three main activities, which are Saturday Class from 10 am. to 11:30 am., Vietnamese Class for Children from 1:30 pm. to 3 pm., and Volunteer Program from 3:30 pm, to 6 pm.,with current number of attendees at 15 -15 -15 and expected number of future attendees at 20- 20 -20, sequentially. From 10 am. to 11:30 am. of every Sunday is the Sunday Morning Session, from 1:30 pm. to 3 pm. is the Buddhism Class for Children, and the Sunday Afternoon Session occurs from 4pm. to 5:30pm. There are approximately fifteen attendees participating in each Sunday Morning and Afternoon Session, and about ten attendees joining the Buddhism Class for Children. 20 is the expected number of attendees for each Sunday activity once the new center opens. Most of the activities above are held in the worship hall with 2,057 usable square feet, except the Volunteer Program occurring at the courtyard, which has 3,700 square feet in total. Annually, Bat Nha has three big events including Vietnamese Lunar New Year, Buddha'sBirthday, and Mother's Day. Vietnamese Lunar New Year is celebrated depending on the Lunar Calendar of the year, usually in late January or early February. Buddha's Birthday is in early May, and the Mothers Day is celebrated on the second Sunday of the same month. Activities for all three events usually start around 10 am. They are mostly similar and include Traditional Ceremony for about one to two hours, Speeches of Master and Guest Speakers for roughly thirty minutes, and Traditional Performances for approximately from one to three hours. Most events' activities occur in the worship hall, except the Traditional Performances section, which may occur either In the worship hall or in the court yard. Buddha's Birthday is considered the biggest event of the year with roughly 100 current participants. 200 is the expected number of participants in the future at Buddha's Birthday event while 150 is the expected number of participants attending Vietnamese Lunar new Year and Mother's Day events, which currently attract roughly 80 participants.Participants come to each event in different times of the date, depending upon their activities of interest. That, therefore, helps Bat Nha more conveniently arrange parking for members and visitors. EXHIBIT 8 Page 1 of 3 31 C -24 These tables below illustrate Bat Nha's Operation Schedules on regular days and special events: Date Time Activities Places to Current Expected Occur, Attendees Future Square Attendees Footage Associated Monday 10 am. -6pm. Regular Worship Hall 3 5 Services within (2,057 sf.) people of the center Tuesday 10 am. -11:30 am. Buddhism Class Worship Hall 5 10 4:30 pm.-5:30 pm. Meditation Worship Hail 10 15 Session Wednesday 10 am. -11:30 am. Buddhism Class Worship Hall 5 10 3 pm. - 4:30 pm. Religious Worship Hall 10 15 Practice Thursday 10 am. -11:30 am. Buddhism Class Worship Hall 5 10 4:30 pm -5:30 pm. Meditation Worship Hall 10 15 Session Friday 10am. -11:30 am. Buddhism Class Worship Hall 5 10 3 pm. - 4:30 pm. Religious Worship Hall 10 15 Practice Saturday 10 am. -11:30 am. Saturday Class Worship Hall 15 20 1:30 — 3 pm. Vietnamese Worship Hall 15 20 Class for Children Volunteer 3:30 pm. — 6 pm. Program Court Yard 15 20 Serving (3,700s(.) Community Sunday 10 am.-1 1:30 am. Sunday Morning Worship Hall 15 20 Session 1:30 pm. — 3 pm. Buddhism Class Worship Hall 10 20 for Children 4 pm. — 5:30 pm. Sunday Worship Hall 15 20 Afternoon Session Table 1. Bat Nha's Regular Operation Schedule Page 2 of 3 31 C -25 Annual Date Activities and Place to Current , Expected Special Duration Occurand Attendees Future Events Square Attendees Footage Associated Vietnamese Late January or - Traditional Worship Hall - Total about 150 Lunar New Early February Ceremony ( from (2,057 sf.) 80 Year (usually starts 1 -2 hours) attendees at 10 am. or 11 coming at am. on the - Master's and Worship Hall - different chosen date) Guest Speakers' times Speeches (about depending 30 minutes) upon their activities of - Traditional Worship Hall interest Performances (2,057 sf.) or (from 1 to 3 hours) Courtyard (3,700 sf.) Buddha's Early May - Traditional Worship Hall Total about 200 Birthday (usually starts Ceremony ( from 100 at 10 am. or 11 1 -2 hours) attendees am. on the coming at chosen date) - Master's and Worship Hall different Guest Speakers' times Speeches ( about depending 30 minutes) upon their activities of - Traditional Worship Hall interest Performances or Courtyard (from 1 to 3 hours) Mother's Second - Traditional Worship Hall Total about 150 Day Monday of May Ceremony ( from 80 (usually starts 1 -2 hours) attendees at 10 am. or 11 coming at am. - Master's and Worship Hall different Guest Speakers' times Speeches ( about depending 30 minutes) upon their activities of - Traditional Worship Hall interest Performances or Courtyard (from 1 to 3 hours) Table 2. Bat Nha's Operation Schedule of Special Annual Events Page 3 of 3 31 C -26 THE BAT NHA MEDITATION CENTER PROJECT DRAFT INITIAL STUDVMITIGATED NEGATIVE DECLARATION PREPARED FOR: City of Santa Ana Planning and Building Agency 20 Civic Center Plaza, M -20 Santa Ana, CA 92701 Contact: Vince C. Fregoso PREPARED BY: ICF International 1 Ada, Suite 100 Irvine, CA 92618 Contact: Chad Beckstrom 949/333 -6625 June 2013 EXHIBIT 9 31 C -27 ICF International. 2013, The Bat Nha Meditation Center Project, Draft Initial Study /Mitigated Negative Declaration. June. (ICF 00215.12.) It-vine, CA. Prepared for City of Santa Ana, CA. 31 C -28 »~x��� �� ������� w� Chapter Introduction and Overview °^..°.....°.."°""~..~°°^°°""°°"°^.,°°°"°.°^..1'1 Overview ~~^~^~^~^1'1 Authority . ^~~~~"~~~~~^~"-~~~^~~~-~~~~~~~^~~--~~^~^^~......-...l'l Scope of the 8/MNU ^~~,^~,,~_~,1'1 Impact Terminology �°'~~^~~~~^^-~`~~`~~~`~^~~^^``-~~~~~~^^^~^^,..-..~.,. 1'2 IS/MND Organization .............................................................. ............................................................ l'Z Chapter Project Description ~°..."~°^"°°°.~~^~°""°°..~....°"".""°°~~."".^°""°°. 2^1 Project Overvievv -~~~~^`~~~~`~^^~~~-~^~^~-^^-~~~~^-^-~^-^^,.-....'2'1 Project Location ~~~~^~~~^~~^~~-~^~`~~~~~^"`~^~^~^^-~~-,.....~.....J'1 ExistingSetting .................................................................................................................................... J'1 Existing Site Conditions and Surrounding Land Uses .................................................................... Z'1 ExistingGeneral Plan and Zoning .................................................................................................. 2^Z ProposedProject ................................................................................................................................. Z'I Description of the Proposed Project ......,......~..^..~^~~~~.^^-.........2'2 Discretionary Approvals Required ............................................................................................. .2'J Chapter Environmental Checklist ...°"°"°..°.~.°"^^°"°°....~."°"°...~~°°°°^°~" Environmental Factors Potentially Affected ....................................................................................... 3'I Determination -~~~~~^~~~~~~~^~~~~^~~~~^~^`~~~~^~~`~~^.......-...3'Z Evaluation of Environmental Impacts ................................................................................................. '3 Chapter References "°'~~°°°^^°°"^"°°~^~^"°"""°"^^°°'^~""°°°'~.°,...°"°.°°,°...4-1 Aesthetics `~~~~~^~~^~~^^~-~~~^`~~--~~~^~~~^~-~~~^~~~~...........4'I Agriculture ~~~,,~~~~~~~~~,~~~~,_~,^,,~~~~_~_~,_~,~~~~.~-~~...-.4'l Air Quality ~~^~`~~~~~~~~~^~^~~~~~-~^~~`~-~~~^'~~~~~`~~........-.4'1 GeVlocv......~~~~,,~~~,~^~~~~,~,~,^~,`~,~~~,~~~~~,,~^~,~^~~~~ Greenhouse Gas Emissions ~~^~~~^~~^^~^~~~-~-^-~^~~~~^~-~^^-..~...-.4'3 Hazards and Hazardous Materials ~~~^~--~~`^~-~~~^^~.~--~~~~`-....,.-...4'3 Hydrologyand Water Quality .............................................................................................................. 4'3 Public Services ,~~~,~,,_~~~~~,,~,^.,~~~~~~_~~~_~,~~~-~~.~.~-.....4'4 Transportation/Traffic ,~~~,,,~~,~~~~~~,,,,_~~,~~~,,~~~~,.~~~~~.~....4'4 Utilities and Service Systems .....-..-~~~~-^~.~.-~~~~...~.^.~.~-~..~~~. Chapter List of Preparers ...-...°"°..""....°°"^"°"""^^".~.,"°"^^°"°°..^°"."°°^"~~5'1 City o{ Santa Ana -~^^`^^~~^--`^^-~`~~^~^~~^~-^^`~^-~~^-~~^~~.........5'1 ICF|nke,nationa| -~~~~^~~~5`1 Fehr &Peers `^`~—^`~~^-~^~~~~~~^-~~~~~~^~~~--~~-~`~~^.~.........6'1 Initial StudY/Mitisated Ne8ative Declaration I June 2013 ICF 00215.12 «� U ���� C-29 ���� � Appendix A Air Quality and Greenhouse Gas Data and Calculations Appendix B Soil Report Appendix C Drainage Study Appendix D Traffic Impact Analysis The Bat Nha Buddhist Meditation Center June 2013 initial Study /Mitigated Negative Declaration Ji 1Cr 00215.12 31 C -30 Tables Table On Page 2 -1 Existing Structures On Site ............................................................................. ............................... 2 -1 2 -2 Summary of Proposed Project .......................................................................... ............................2.3 2 -3 Summary of Impervious Surfaces on the Project Site ...................................... ............................2 -4 2-4 Construction Activities ................................................................................... ............................... 2-5 3 -1 Air Quality Data from Costa Mesa Station (ARB 30195) and Anaheim- Pampas Lane Station(ARB 30178) ......................................................................................... ...........................3 -13 3 -2 Federal and State Ambient Air Quality Standards ........................................... ...........................3 -14 3 -3 Federal and State Attainment Status for Orange County Portion South Coast Air Basin................................................................................................................. ...........................3 -15 3 -4 SCAQMD Emission Thresholds (lbs/ day) ........................... ............................... ...........................3 -17 3 -5 Estimate of Regional Construction Emissions (pounds per day) ................. ............................... 3 -19 3 -6 estimate of Regional Operational Emissions (pounds per day) ....................... ...........................3.20 3 -7 Estimate of Localized Construction Emissions (pounds per day) .................... ...........................3 -22 3 -8 Estimate of Localized Construction Emissions after Mitigation (pounds per day) .....................3 -23 3 -9 Estimate of Operation- Period Localized (Onsite) Emissions., ..................................................... 3-24 3 -10 Estimate of Project - Related Greenhouse Gas Emissions ................................. ...........................3 -43 3 -11 Project Consistency with the Santa Ana General Plan ..................................... ...........................3 -66 3 -12 Noise Measurement Data .......................................... ................................................................. 3 -69 3 -13 City of Santa Ana Permitted Noise Levels .................................................... ............................... 3 -70 3 -14 Typical Noise Levels from Construction Activities at 50 Feet .................................... ................. 3 -71 3 -15 Noise Levels from Construction Activities at Closest Sensitive Receivers ....... ...........................3 -71 3 -16 Predicted Off Site Exterior Existing (2012) and Opening Year (2014), Traffic Noise Levels with and without the Project ................................. ............................... ...........................3 -73 3 -17 Typical Vibration Levels for Construction Equipment ..................................... ...........................3 -75 3 -18 Response of People and Effects on Structures from Continuous Vibration .... ...........................3 -75 3 -19 Project Traffic Generation Forecast ............................................................. ............................... 3 -84 The Bat Nha Buddhist Meditation Cente. lone 2013 Initial Study /Mitigated Negative Declaration m Iff 002012 31 C -31 3 -20 Existing Peak Hour Intersection Capacity Analysis .......................................... ...........................3 -84 3 -21 Existing Plus Project— Peak Hour Intersection Capacity Analysis ........................................ ....... 3 -8S 3 -22 Historic and Projected Water Demand from Religious Facility Uses ............... ...........................3 -91 3 -23 Historic and Projected Wastewater Generation for Church Building .............. ...........................3 -92 3 -24 City of Santa Ana Projected Water Supply and Demand (AFY) ....................... ...........................3 -94 3 -25 Existing Landfill Conditions ............................................... ............................... ...........................3 -95 3.26 Cumulative Projects List ................................................................................... ...........................3 -98 3 -27 Cumulative Traffic Noise ............................................................................. ..............................3 -102 3 -28 Cumulative Projects Traffic Generation Forecast ....................................... ..............................3 -105 3 -29 Year 2014 Peak Hour Intersection Capacity Analysis .................................. ..............................3 -105 3 -30 Year 2035 Peak Hour Intersection Capacity Analysis ................................. ............................... 3 -106 The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration iv ICF 00215.12 31 C -32 Figures Figure Follows Page 2 -1 Project Location Map ..................................................................................... ............................... 2-2 2 -2 Aerial of the Existing Project Site ...................................................................... ............................2 -2 2 -3 Existing Conditions ............................................................................................ ............................2 -2 2 -4 Existing General Plan and Land Zoning Designations ....................................... ............................2 -2 2 -5 Site Plan ..................... ................................................................................................................... 2 -2 2-6 West and East Elevations ............................................................................... ............................... 2 -4 2 -7 North and South Elevations .............................................................................. ............................2 -4 2-8 Project Rendering (1 of 2) .............................................................................. ............................... 2 -4 2 -9 Project Rendering (2 of 2) ................................................................................. ............................2 -4 3 -1 Noise Measurement and Modeling Locations ................................................. ...........................3 -68 3 -2 Traffic Study Area Intersections ....................................................................... ...........................3 -84 3 -3 Cumulative Projects .................................................................................... ..............................3 -100 The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration v ICF 002 15. 12 31 C -33 Acronyms and Abbreviations pg /m3 microgram per cubic meter AB 939 California Integrated Waste Management Act of 1989 AELUP Airport Environs Land Use Plan afy acre -feet a year ALUC Airport Land Use Commission APST Aboveground Petroleum Storage Tanks AQMPs air quality management plans Basin South Coast Air Basin BAU business as usual CAA Clean Air Act CAAQS California Ambient Air Quality Standards CAARP California Accidental Release Program Caltrans California Department of Transportation CBC California Building Code CCAA California Clean Air Act CDMG California Department of Conservation Division of Mines and Geology CEC California Energy Commission CEQA California Environmental Quality Act CH4 Methane City City of Santa Ana CO carbon monoxide CO2 carbon dioxide CO2e carbon dioxide equivalents CPTED crime prevention through environmental design CPUC California Public Utilities Commission CUP Conditional Use Permit CUPA Certified Unified Program Agency DAMP Drainage Area Management Plan dBA A- weighted decibels The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration vi ICF 00215.12 31 C -34 DPM Diesel Particulate Matter EIR Environmental Impact Report EPA Environmental Protection Agency FAR Floor- area -ratio Foundation Orangewood Children's Foundation FTA Federal Transit Administration gpd gallons per day GWP global warming potential HCPs Habitat Conservation Plans HMD Hazardous Materials Disclosure I Interstate IPCC Intergovernmental Panel on Climate Change IS initial study I "'I equivalent continuous noise level LIP Local Implementation Plan LOS level of service LST Localized Significance Threshold LOFT Leaking Underground Fuel Tank MATES 111 Multiple Air Toxics Exposure Study III MBTA Migratory Bird Treaty Act MCE Maximum Considered Earthquake Metropolitan Metropolitan Water District of Southern California mgd million gallons per day MMT million metric tons MND mitigated negative declaration MPO metropolitan planning organization MS4 Municipal Separate Storm Water System Museum Natural History Museum of Los Angeles County NAAQS National Ambient Air Quality Standards NCCPs Natural Community Conservation Plans NHMP Natural Hazards Mitigation Plan NO2 nitrogen dioxide NPDES National Pollutant Discharge Elimination System The Bat Buddhist Meditation Center June 2013 Initial Study Negative Declaration vIi ICF00215.12 31 C -35 03 Ozone OCFA Orange Comity Fire Authority OCWD Orange County Water District OPR Office of Planning and Research P Professional PAO Professional & Administrative Office Ph Lead PHGA Peak Horizontal Ground Acceleration PM10, and PM2.5 particulate matter less than or equal to 10 or 2.S micrometers in diameter PO City of Santa Ana Professional Office PPM parts per million PPV peak particle velocity RCPG Regional Comprehensive Plan and Guide SAPD City of Santa Ana Police Department SAUSD Santa Ana Unified School District SCAG Southern California Association of Governments SIP State Implementation Plan SMARA Significant Mineral Aggregate Resource Areas SOz sulfur dioxide SR State Route SR -22 State Route 22 SRA Source Receptor Area SRRE Source Reduction and Recycling Element SWPPP Storm Water Pollution Prevention Plan TACs toxic air contaminants TIA Traffic Impact Analysis TNM Traffic Noise Model UST Underground Storage Tanks VMT vehicle miles traveled VOCs volatile organic compounds WQMP Water Quality Management Plan WRCC Western Regional Climate Center The Bat Nha Buddhist Meditation Center June 2013 Initial Study/Mitigated Negative Declaration Viii icr OOZls.tz 31 C -36 Chapter 1 Introduction and Overview Overview The City of Santa Ana (City), as the lead agency under the California Environmental Quality Act (CEQA), has prepared this initial study (IS) and proposed mitigated negative declaration (MND) to evaluate the potential environmental consequences associated with the Bat Nha Meditation Centel- project. The proposed project consists of the demolition and replacement of existing buildings on approximately 1.46 acres at 719 and 803 South Sullivan Street in the central portion of the City of Santa Ana with a new Meditation Center. Implementation of the proposed project would require a Conditional Use Permit (CUP) to allow a religious facility on a parcel with a Single - Family Residential (R -1) zoning designation, variances to allow a reduction in parking and to exceed to allowable building height, a voluntary lot merger to consolidate the two parcels of land, and approval of the site plan. As part of the City's discretionary review process, the proposed project is required to undergo an environmental review in accordance with the CEQA. Authority The preparation of all IS /MND is governed by two principal sets of documents: CEQA (Public Resources Code Section 21000, et seq.) and the State CEQA Guidelines (California Code of Regulations Section 15000, et seq.). Specifically, Section 15063 of the State CEQA Guidelines and Sections 15070 -15075 of Article 6 guide the process for the preparation of a negative declaration or a mitigated negative declaration. Where appropriate and supportive to an understanding of the issues, reference will be made either to the statute, the State CEQA Guidelines, or appropriate case law. This IS /MND, as required by CEQA, contains 1) a project description; 2) a description of the environmental setting, potential environmental impacts, mitigation measures for any significant effects, and consistency with plans and policies; and 3) names of preparers. The mitigation measures included in this IS /MND are designed to reduce or eliminate the potentially significant environmental impacts described herein. Where a mitigation measure described in this document has been previously incorporated into the project, either as a specific feature of design or as a mitigation measure, this is noted in the discussion. Mitigation measures are structured in accordance with the criteria in Section 15370 of the State CEQA Guidelines. Scope of the IS /MND This 1S /MND evaluates the proposed project's effects on the following resource topics: • aesthetics • agriculture and forestry resources The Bat Nha Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 1 -1 IMF 00215.12 31 C -37 City of Santa Ana • air quality • biological resources • cultural resources • geology /soils • greenhouse gas emissions • hazards & hazardous materials • hydrology /water quality • land use /planning • mineral resources • noise • population /housing • public services • recreation • transportation /traffic • utilities/ service systems • mandatory findings of significance Impact Terminology Introduction and Overview The following terminology is used to describe the level of significance of impacts: • A finding of no impact is appropriate if the analysis concludes that the project would not affect the particular topic area in any way. • An impact is considered less than significant if the analysis concludes that it would cause no substantial adverse change to the environment and requires no mitigation. • An impact is considered less than significant with mitigation incorporated if the analysis concludes that it would cause no substantial adverse change to the environment with the inclusion of environmental commitments or other enforceable measures that have been agreed to by the applicant. • An impact is considered potentially significant if the analysis concludes that it could have a substantial adverse effect on the environment. For the proposed project, no impacts were determined to be potentially significant. IS /MND Organization The content and format of this report are designed to meet the requirements of CEQA. The IS /MND consists of the proposed findings that the project, as mitigated, would have no significant impacts. The Oal Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 1 -2 ICF ne 2013 31 C -38 City of Santa Ana Introduction and Overview The bulk of this IS /MND consists of the initial study and supporting studies. The report contains the following sections. • Chapter 1, "Introduction and Overview," identifies the purpose and scope of the IS /MND and the terminology used in the report. • Chapter 2, "Project Description," identities the location, background, and planning objectives of the project and describes the proposed project in detail. • Chapter 3, "Environmental Checklist and Analysis," presents the checklist responses for each resource topic. This section includes a brief setting section for each resource topic and identifies the impacts of implementing the proposed project. • Chapter 4, "References," identifies all printed references and individuals cited in this IS /MND. • Chapter 5, "List of Preparers," identifies the individuals who prepared this report and their areas of technical specialty. The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 1 -3 tfr 00215.12 31 C -39 Chapter 2 Project Description Project Overview The Bat Nita Buddhist Temple is an existing facility located on South Sullivan Street in the City of Santa Ana. Under the proposed project, the existing Temple would be redeveloped into a new meditation center on the site. Access to the new meditation center will be provided by two driveways along Sullivan Street. The project as proposed would require a CUP for a religious facility in a single - family (R -1) zoning district, and variances to exceed the maximum building height and reduce the required parking. In addition, the project requires a lot merger to combine the two existing parcels. Project Location The project site consists of two adjacent parcels totaling 1.46 acres located at 719 and 803 South Sullivan Street, which is in the central portion of the City between West McFadden Avenue and Willits Street (Figures 2 -1 and 2 -2). Regional access to the project site is generally provided by Fairview Street, McFadden Avenue, and 1st Street, which are major arterials in Santa Ana. Existing Setting Existing Site Conditions and Surrounding Land Uses The project site comprises two adjacent parcels that are developed with two single family residential structures and several ancillary buildings that are used for the Bat Nha Buddhist Temple facilities. Of the area listed in Table 2.1, the existing worship area is approximately 600 square feet and seats approximately 65 people. Table 2 -1. Existing Structures On Site Address /Property Type Area (square feet) 719 South Sullivan Street Existing Building 1,700 Existing Storage 323 803 South Sullivan Street Existing Building 3,800 Existing Patio 11950 A parking lot covers the eastern portion of the project site. The parking facilities consist of both unpaved gravel without delineated parking stalls and an asphalt paved area in the southern portion The Bat Nha Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 2.1 ICf00215.12 31 C -40 City of Santa Ana Project Description of the parking lot containing 29 delineated spaces. Large areas of the site are covered with buildings, cement, asphalt, and gravel, with portions of the site containing koi ponds, scattered trees, and other ornamental landscaping. The site has exterior lighting and is bound on three sides by an approximately 6- foot -high block wall. Figure 2 -3 shows the existing conditions of the project site. As shown, the project site is located within an urban and fully developed area that is surrounded by single - family and multiple - family residential uses, a child care facility, and other religious facilities (Figure 2 -2). Adjacent land uses include: • The New Spirit Baptist Church and single - family homes to the north. • A multi - family residential complex across South Sullivan Street to the west. • Lao Evangelical Church adjacent to the south. • Single - fancily residential uses along South Golden West Avenue, adjacent to the east. Existing General Plan and Zoning The project site is designated by the City's General Plan as low density residential (LR 7.0), which generally allows for a maximum of seven single - family residential dwelling units per acre. The project site is zoned R1 (Single Family Residential), which generally provides for single - family residential uses, plus opportunities for a variety of other uses subject to a CUP (per municipal code section 41- 232.5), including churches and accessory church buildings. The existing General Plan land use and zoning designations are shown on Figure 2 -4. Proposed Project Description of the Proposed Project Project Facilities and Design Elements The proposed project includes the development and operation of a new two -level meditation center on the 1.46 -acre project site. As shown on Figure 2.5, the proposed meditation center would encompass a large portion of the project site. The 115 onsite parking spaces would be provided on the eastern portion of the site behind the building and at grade below the building structure. The project's components are listed in Table 2 -2. The project meditation center would be developed as a podium structure over the parking facilities. The two -story building would be 35 feet high and its towers would be up to 48 feet high. The appearance of the building would be visually integrated into the surroundings by using roofs of varying height on the project structures and by providing covered walkways to link different areas onsite. The building layout and design is intended to create an environment that is conducive to Buddhist teachings and meditation. The architectural style, design, and decoration of the project is traditional Vietnamese, incorporating posts, lintels, open courtyards, "sky wells," verandas, and hallways to connect different areas of the meditation center. The slanted terra cotta clay tile roofs have slightly curved eaves that extend beyond the building walls, and are proposed to be the same shape of the multi- storied roof structures that top the towers and shade structures onsite. Vietnamese The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 2.2 ICF 00215.12 31 C -41 I [.' Garden J a vi I M ! I j �irOve 1 i r.11l Per.f ._. ll ti s erAvar i ! 1 )WSJ I 1' .....oyyyl k as ..._ Pack am{t0si�paelk Spurgeon i Rork- ,>` _... 1 So I dr I i 1 -I 1St St ... ,- � ISo el Is g ` 9PIar 1. ( iii -_-(r 'r i an ant i Park (. n ark i ( _ Sa' Ali 1' �I �J. ��S�Ii rIIlClflll Ana 9 1 L1 L IFB 8ti t W� i i 1 i, i (p Project Location 1 Lowell .� Pirk me ark McFadden AJe i 111111 % 01 i ndsor �1 `� .I {J� I I i t 'Park M wo L,, Patk @ m 'Etlin er Ave all e e Centennial ntenni al ggionaii park ' 11 11 I .J -3 i Reg Park.. I` ° � I.) j .�� lakes j � C Founlain,, Y, V SenI, ne I elnedal Pa LLL Adam r e Winer Ave r � I n t r 111 N � i t t 0 oss o.s j( l cad l 1 r Park Miles Source: ESRI SUeetMa p l ' (� � � � i 1 Nodh America (2006) 1 i r i i < <'' 1 ( �• 011ie Klrtg Park! 1!5 Figure 2 -1 Project Location Map Bat Nha Meditation Center, City of Santa Ana 31 C -42 ICF 31 C -44 n m m ry C C m„a � O 6 o m W N 00 C _T -mU • _ W m c m U c 0 a m m r 2 W IV' m m L16: N c m N R C maa �'m w LL N LL lu' 31 C -46 O _T U m C m U c 0 9 v m m r Z N m City of Santa Ana Project Description landscaping areas and gardens are provided throughout the project site. Architectural elevations are shown on Figures 2 -6 and 2 -7, and architectural renderings are shown on Figures 2 -8 and 2 -9. Table 2 -2. Summary of Proposed Project Use Square Feet % Parking Level 500 Electrical /Mechanical Rooms 517 Parking Area 20,735 Total Parldng Level 21,252 First Floor Level 11,154 Kitchen 467 Restroom 467 Parking 9,630 Total First Floor Gross Developed Area 10,564 Landscape Area on First Floor Level 6,169 Courtyard Areas Main Gate 500 Towers 618 Ramps 754 Decking Area 3,700 Landscape areas 11,154 Total Courtyard Gross Area 16,726 Second Floor Areas Worship Hall 2,836 Retreat Room 474 Photo Display Room 280 Principal Room 240 Principal's Meditation Room 240 Principal's Guest Room 300 Office 1,747 Storage 112 Restroom and Stairs 1,388 Deck and Hallway 7,567 Total Second Floor Gross Area 15,184 Total Lot Size 63,600 100% Total Lot Coverage 31,816 50% Total Landscape Areas 17,323 27% In addition to the 115 onsite parking spaces and 10 bike rack spaces to be located on the ground level under and behind the podium structure, the proposed project also has an agreement with the Santa Ana Unified School District (SAUSD) to utilize 55 parking spots at the Abraham Lincoln Elementary School on Saturdays from 9:00 a.m, to 1:00 p.m., and on Sundays from 8:00 a.m. to 6:00 pan. Vehicular ingress to the project site would be provided from two driveways via South Sullivan the Bat Nha Buddhist Meditation Center Z 3 June 2013 Initial Study /Mitigated Negative Declaration iCF 00215.12 31 C -47 City of Santa Ana Project Description Street. The project would also include improvements to the existing onsite drainage facilities, as well as installation of new landscaping and hardscape throughout the project area. As shown in Table 2- 3, build out of the project would result in a reduction in the impervious surfaces on site. Table 2 -3. Summary of Impervious Surfaces on the Project Site Pervious Operations The meditation center would be open from 10:00 a.m. to 3:00 p.m. weekdays, and would hold regular dharma services, meditation sessions, retreats, and Buddhism classes in both English and Vietnamese. The Temple currently has an average of 15 daily visitors; after completion of the project the Temple anticipates an average of 25 visitors per day on weekdays, Weekend services are held every Saturday and Sunday from 9:00 a.m. to 6:00 p.m. The weekend visitors are expected to increase from an average of 40 existing participants to approximately 60 visitors per weekend day once the new center is complete. Weekend classes for children and teenagers are approximately one hour in duration, and include age - appropriate religious instruction, as well as recreational activities. Sunday meditation services for adults are offered from 10:00 a.m, to 11:30 a.m., and again from 4:00 p.m. to 5:30 p.m. These services consist of chanting and singing, as well as quiet meditation. The meditation center has three big events peryear, which includes Vietnamese Lunar New Year (late January or early February), Buddha's Birthday (early May), and Mother's Day (mid -May). The existing center attracts approximately 100 visitors for each of these special events. The proposed meditation center will increase the capacity to 200 visitors per event following completion of the project. Construction Construction of the project is anticipated to take approximately 19 months to complete. As listed in Table 2 -4, the project consists of various phases of activities over the construction period. As shown, the estimated maximum number of construction workers onsite at any one time would be 50, which would occur during building construction activities. Construction of the project would require excavation of 3,021 cubic yards of soil material from the project site. Utilizing typical 20 cubic yard hauling vehicles, this activity will result in 151 truck trips to transport soils for disposal. Large construction equipment including a backhoe, excavator, and a bulldozer will be used during the removal of the existing buildings and improvements onsite, excavation of soils onsite, grading, site trenching, and foundation activities. The Bat Nha Buddhist Meditation Center Initial Study /Mitigated Negative Declaration 2 -4 3 16 )une ne 20 20113 31 C -48 Square Footage Percent Square Footage Percent Existing Conditions 25,440 40% 38,160 60% Post - Project Conditions 5,280 8.3% 58,320 91.7% Operations The meditation center would be open from 10:00 a.m. to 3:00 p.m. weekdays, and would hold regular dharma services, meditation sessions, retreats, and Buddhism classes in both English and Vietnamese. The Temple currently has an average of 15 daily visitors; after completion of the project the Temple anticipates an average of 25 visitors per day on weekdays, Weekend services are held every Saturday and Sunday from 9:00 a.m. to 6:00 p.m. The weekend visitors are expected to increase from an average of 40 existing participants to approximately 60 visitors per weekend day once the new center is complete. Weekend classes for children and teenagers are approximately one hour in duration, and include age - appropriate religious instruction, as well as recreational activities. Sunday meditation services for adults are offered from 10:00 a.m, to 11:30 a.m., and again from 4:00 p.m. to 5:30 p.m. These services consist of chanting and singing, as well as quiet meditation. The meditation center has three big events peryear, which includes Vietnamese Lunar New Year (late January or early February), Buddha's Birthday (early May), and Mother's Day (mid -May). The existing center attracts approximately 100 visitors for each of these special events. The proposed meditation center will increase the capacity to 200 visitors per event following completion of the project. Construction Construction of the project is anticipated to take approximately 19 months to complete. As listed in Table 2 -4, the project consists of various phases of activities over the construction period. As shown, the estimated maximum number of construction workers onsite at any one time would be 50, which would occur during building construction activities. Construction of the project would require excavation of 3,021 cubic yards of soil material from the project site. Utilizing typical 20 cubic yard hauling vehicles, this activity will result in 151 truck trips to transport soils for disposal. Large construction equipment including a backhoe, excavator, and a bulldozer will be used during the removal of the existing buildings and improvements onsite, excavation of soils onsite, grading, site trenching, and foundation activities. The Bat Nha Buddhist Meditation Center Initial Study /Mitigated Negative Declaration 2 -4 3 16 )une ne 20 20113 31 C -48 ;SIC: -4y cm m R N C C m 3 R DI m C LL W M n O W .T. aU c _ R` w c 3 m U L O a m R L Z u R to 31C-51 N rnro orQ a) � rndm �aviC v � 'o d a c o N +=' d 7 � m LL E N t Z w N m rW; 31 C -52 rnm 0 a)d c c cm 0 d N c tq `omuo 'o �av V d 'o v a c �+ o N +' � d LL � R S Z r A m u City of Santa Ana Table 2 -4. Construction Activities Construction Activity Activity Duration Maximum Number of Workers Per Day Excavation and Soils Export 8 weeks 20 Grading and Soils Prep 8 weeks 20 Site Trenching and Bu ilding Foundation 8weeks 30 Building Construction 36 weeks 50 Concrete 4 weeks 20 Asphalt 4 weeks 20 Architectural Finishing 20 weeks 40 Project Description The project site would be fenced during construction with access limited to construction personnel and other authorized personnel. Nighttime lighting onsite during construction would be limited, providing only lighting necessary for safety and security. Consistent with the City's Noise Ordinance, construction activity would be limited to between 7:00 a.m, and 8:00 p.m. on weekdays and Saturday. No construction is proposed on Sundays or federal holidays. Discretionary Approvals Required The City of Santa Ana is the lead agency under CEQA and is responsible for permitting the project. The applicant requests the following discretionary actions to implement the project: • Conditional Use Permit to allow religious uses on a parcel zoned R1 (Single Family Residential); • Variance to allow for an increase in allowable building height and a parking reduction; • Lot Merger; and • Adoption of the Mitigated Negative Declaration. The Bat Buddhist Meditation Center 2 5 June 2013 Ininal5tudy dy /Mitigated Negative Declaration ICF 00215.12 31 C -53 City of Santa Ana 1. Project Title: 2, Lead Agency Name and Address: 3. Contact Person and Phone Number: 4. Project Location: S. Project Sponsor's Name and Address: 6. General Plan Designation: 7. Zoning: S. Description of Project: 9. Surrounding Land Uses and Setting: 10, Other Public Agencies Whose Approval is Required: Environmental Checklist Chapter 3 Environmental Checklist The Bat Nha Buddhist Meditation Center City of Santa Ana Planning and Building Agency 20 Civic Center Plaza, M -20 Santa Ana, CA 92701 Vince C. Fregoso, Principal Planner, 714 - 667 -2713 719 -803 South Sullivan Street Santa Ana, CA, 92704 Assessor's Parcel Numbers 407- 062 -42 and 407 - 062.43 (Figures 2 -1 and 2 -2) Bat Nha Buddhist Meditation Center 803 South Sullivan Street Santa Ana, CA 92704 Low Density Residential (1,11-7) R1 (Single - Family Residential) Development of a Buddhist meditation center. (See Chapter 2) Single- and multi - family residential, religious /church, commercial, daycare, parking, and roadways N/A The Bat Nha Buddhist Meditation Center 3-1 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -54 City of Santa Ana Environmental Checklist Environmental Factors Potentially Affected The environmental factors checked below would potentially be affected by this project (i.e., the project would involve at least one impact that is a "Potentially Significant Impact "), as indicated by the checklist on the following pages. ❑ Aesthetics ❑ Agriculture and Forest ❑ Air Quality Resources ❑ Biological Resources ❑ Cultural Resources ❑ Geology /Soils ❑ Greenhouse Gas ❑ Hazards and Hazardous ❑ Hydrology /Water Emissions Materials Quality ❑ Land Use /Planning ❑ Mineral Resources ❑ Noise ❑ Population /Housing ❑ Public Services ❑ Recreation ❑ Transportation /Traffic ❑ Utilities /Service Systems ❑ Mandatory Findings of Significance Determination On the basis of this initial evaluation: ❑ I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. ® 1 find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions to the project have been made by or agreed to by the project proponent A MITIGATED NEGATIVE DECLARATION will be prepared. ❑ I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT Is required. ❑ 1 find that the proposed project MAY have an impact on the environment that is "potentially significant" or "potentially significant unless mitigated" but at least one effect (1) has been adequately analyzed in an earlier document pursuant to applicable legal standards and (2) has been addressed by mitigation measures based on the earlier analysis, as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ❑ 1 find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the project, nothing further is required. Signature Printed Name Date For The gat udy a itlaat t Meditation Center June 2013 Initial Stutly /Mitigated Negative Declaration 3 -2 ICF00215.12 31 C -55 City of Santa Ana Environmental Checklist Evaluation of Environmental Impacts 1. A brief explanation is required for all answers except "No Impact" answers that are adequately supported by the information sources a lead agency cites in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not apply to projects like the one involved (e.g., the project falls outside a fault rupture zone), A "No Impact" answer should be explained if it is based on project - specific factors as well as general standards (e.g., the project will not expose sensitive receptors to pollutants, based on a project- specific screening analysis). 2. All answers must take account of the whole action involved, including off -site as well as on -site, cumulative as well as project - level, indirect as well as direct, and construction as well as operational impacts. 3. Once the lead agency has determined that a particular physical impact may occur, the checklist answers must indicate whether the impact is potentially significant, less than significant with mitigation, or less than significant. "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect may be significant. If there are one or more "Potentially Significant Impact" entries when the determination is made, an Environmental Impact Report (EIR) is required. 4. "Negative Declaration: Less than Significant with Mitigation Incorporated" applies when the incorporation of mitigation measures has reduced an effect from a "Potentially Significant Impact" to a "Less- than - Significant Impact." The lead agency must describe the mitigation measures and briefly explain how they reduce the effect to a less- than - significant level. (Mitigation measures from Section XVII, "Earlier Analyses," may be cross- referenced.) S. Earlier analyses may be used if, pursuant to tiering, program EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration [Section 15063(c) (3)(D)]. In this case, a brief discussion should identify the following: a. Earlier Analysis Used, Identify and state where earlier analyses are available for review. b. Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards and state whether such effects were addressed by mitigation measures based on the earlier analysis. c. Mitigation Measures. For effects that are "Less than Significant with Mitigation Incorporated," describe the mitigation measures that were incorporated or refined from the earlier document and the extent to which they address site - specific conditions for the project. 6. Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (e.g., general plans, zoning ordinances). Reference to a previously prepared or outside document should, when appropriate, include a reference to the page or pages where the statement is substantiated. 7. Supporting Information Sources: A source list should be attached, and other sources used or individuals contacted should be cited in the discussion. The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3_3 ICF 00215.12 31 C -56 City of Santa Ana Environmental Checklist 8. This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies should normally address the questions from this checklist that are relevant to a project's environmental effects in whatever format is selected. 9. The explanation of each issue should identify: a. the significance criteria or threshold, if any, used to evaluate each question; and b. the mitigation measure identified, if any, to reduce the impact to a less - than- significant level. The eat Nha Buddhist Meditation Center Initial Study /Mitigated Negative Declaration 3-4 3 iCf June ne 20 20113 31 C -57 City of Santa Ana Environmental Checklist Less-than- Significant Potentially Impact with Less-than- Significant Mitigation Significant No 1. Aesthetics Impact Incorporated Impact Impact Would the project: a. Have a substantial adverse effect on a ❑ ❑ ® ❑ scenic vista? b. Substantially damage scenic resources, ❑ ❑ ❑ including, but not limited to, trees, rock outcroppings, and historic buildings along a scenic highway? c. Substantially degrade the existing visual ❑ ❑ ® ❑ character or quality of the site and its surroundings? d. Create a new source of substantial light or ❑ ® ❑ ❑ glare that would adversely affect daytime or nighttime views in the area? Discussion Existing Condition of Project Site and Vicinity Onsite Visual Conditions The project site is currently used for the Bat Nha Buddhist Temple facilities and developed with two single- family structures and several ancillary buildings that were developed between 1927 and 1962. Large areas of the site are covered with older but generally well -kept buildings, cement, asphalt, and gravel. Additionally, the site contains koi ponds, some scattered trees, and other ornamental landscaping. Project Vicinity Characterization The existing visual setting in the project vicinity includes a developed urban neighborhood with a mix of land uses. As described further in the Section X, "Land Use," a majority of the vicinity immediately surrounding the project site is developed with residential and religious uses and, commercial areas are located farther south along McFadden Avenue. The single - family residential homes near the project site consist of both one -story and two -story buildings with high pitched roofs. The multi - family residential buildings across the street from the project site are two -story structures. Views of the project site are hindered by the existing mature ornamental landscaping along the roadways and parcel frontages, as well as by the existing 6 -foot block wall that surrounds the site on three sides. Viewer Groups Viewer groups are broadly characterized as having public or private views. Public views are available to all visual receptors, such as views from a neighborhood park or roadway. Private views, however, are exclusive to property owners and their guests or members, and include places such as residences and private facilities (e.g., golf clubs or tennis clubs). The Bat Nha Buddhist Meditation Center Lune 201 Initial Study /Mitigated Negative Declaration 3 -5 3 iC10022.1 31 C -58 City of Santa Ana Environmental Checklist The project vicinity is developed and has public views that are generally limited to the South Sullivan street corridor. Public viewers of the project site include motorists, pedestrians, and bicyclists along area roadways. Given the Flat topography and the density of the built environment in the vicinity of the proposed project, the uses directly adjacent to the project site have the most prominent views of the project site. The one -story residential uses east and adjacent to the project site have direct views of the project site that are largely hindered by the existing landscaping and six -foot wall. The views from the two -story residences to the north are limited to views from the second story window of three residences. The remainder of views from the uses adjacent to the north and south of the site are obstructed by the existing landscaping and six -foot walls separating the uses. The multi - family, residential land uses to the west of South Sullivan Avenue are largely faced inward, and are not oriented toward the project site. Would the project: a. Have a substantial adverse effect on a scenic vista? Less - than - Significant Impact. The proposed project would not have an adverse effect on a scenic vista. Scenic vistas are views that are generally greater than one mile from a receptor and consist of horizon -line views. As described above, the project site is in an urban developed area where distance views are limited to the South Sullivan Street corridor, which is not considered a scenic vista. The proposed two -story building would be 35 feet high and its towers would be up to 48 -feet high. The appearance of the building height and scale is visually scaled into the surrounding two - story residential uses by using roofs of varying heights on the proposed structures, and by utilizing tall landscaping such as palm trees. The project site is mid -block and the proposed structures would not impede upon the existing street view corridor along South Sullivan Street. As a result, implementation of the project will not have a substantial adverse effect on a scenic vista, and impacts are less than significant. b. Substantially damage scenic resources, Including, but not limited to trees, rock outcroppings and historic buildings along a scenic highway? No Impact. There are no officially designated state scenic highways in the vicinity of the proposed project (Caltrans 2011). The only officially designated scenic highway within Orange County is a portion of SR -91. Eligible State Scenic Highways within the County include: SR -1, SR -74, portions of SR -91, and a portion of SR -57, none of which is in the vicinity of the project site. Likewise, there are no County- designated scenic highways that run through the City of Santa Ana. Additionally, as described in V.a below (Cultural Resources), there are no historic resources located on the project site. Further, the proposed project site is relatively Flat and surrounded by an urban environment. There are no other scenic resources, including trees and rock outcroppings, within or adjacent to the project area. Therefore, there are no potential impacts related to scenic resources within a state scenic highway, and no mitigation is required. C, Substantially degrade the existing visual character, or quality of the site and its surroundings? Less - than - Significant Impact, The proposed project would alter the existing visual character of the site. In terms of character, the site vicinity is best described as urban and developed. As described above and shown on Figure 2.3, the site consists of various residential building structures originally developed between 1927 and 1962. The existing buildings onsite are aged, incongruent, and do not the eat 9uddhtst Meditation Center Initial Stuudy dy June 2013 /Mitigated Negative Declaration 3-6 ICF00215.12 31 C -59 City of Santa Ana Environmental Checklist visually identify with existing meditation center uses that are identified by the signage and entrance to the facility. The change in character after implementation of the project is expected to improve the existing visual character and quality of the project site with new and more modern congruous structures, and consistently themed landscaping throughout the site. The architectural style, design and decoration of the project is traditional Vietnamese, incorporating posts, lintels, open courtyards, "sky wells;' verandas, and hallways to connect different areas of the meditation center. The distinctive slanted terra cotta clay tile roofs have slightly curved eaves that extend beyond the building walls, and are the same shape of the multi - storied roof structures that top the towers and shade structures onsite. Additionally, gardens, palm trees, and Vietnamese landscaping is provided throughout the project site. All of these project components would enhance the visual quality of the project site over existing conditions. Additionally, the project includes development of 115 onsite parking spaces that would be largely hidden under the meditation center structure in a garage, which is an improvement over the existing gravel and paved parking areas that currently cover a large portion of the site. Overall, the proposed project would develop a new meditation center structure, facilities, and landscaping that will enhance the visual character of the site. As a result, the project would not substantially degrade the character or quality of the site or its surroundings and impacts related to the visual quality of the project site are less than significant. d. Create a new source of substantial light or glare that would adversely affect daytime of, nighttime views in the area? Less - than - Significant Impact with Mitigation Incorporated. The project is located in an urbanized area that is developed with religions and residential uses. The project site is surrounded by a developed environment with fixed and mobile sources of exterior light and glare. Fixed sources of light and glare include exterior building- mounted and freestanding light fixtures, illuminated signage on existing land uses, and street lighting along South Sullivan Street. Mobile sources of light and glare originate from vehicles. These existing light sources contribute to moderate levels of nighttime lighting. The proposed project includes installation of nighttime lighting for security and parking lot purposes and has the potential to affect nighttime views in the area. While lighting improvements would be required to comply with the design standards outlined in the City's Municipal Code, impacts are considered potentially significant. Therefore, security and parking lot lighting improvements would include low- level, downward - facing, hooded, and appropriately angled away from adjacent land uses, per mitigation measure MM AF.S -1. With implementation of MM AES -1, impacts related to new sources of light would be reduced to a less- than - significant impact. Glare is a phenomenon primarily caused by sunlight striking and reflecting off spectral surfaces. Glare is predictable and governed by the Law of Reflection. in an urban environment the primary spectral surfaces are glass or polished metal. The proposed project's buildings do not use polished metal as an exterior architectural treatment, which would have the potential to cause fugitive glare. The windows are not glazed or highly polished so their refractive index will be the same as ordinary window glass that is pervasive in the surrounding area. The incremental increase in spectral surfaces proposed by the proposed project that have the potential to cause glare is considered less than significant. Mitigation Measure AES -1: Prior to the issuance of building permits, the City of Santa Ana Planning and Building Agency will confirm that the outdoor lights used to illuminate the parking area shall be reflected away (o• shielded) from any residence or sensitive land use. Lighting for security and The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3-7 ICF 00215.12 31 C -60 City of Santa Ana Environmental Checklist parking lot purposes shall be minimized to the highest degree possible to ensure that spaces are not unnecessarily over -lit. The Sal Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3-8 IOf 00215.12 31 C -61 City of Santa Ana Environmental Checklist b. Conflict with existing zoning for agricultural Less -than- Significant Potentially Impact with Less -than- Significant Mitigation Significant No H. Agriculture and Forest Resources Impact Incorporated Impact Impact In determining whether impacts on agricultural El resources are significant environmental effects, lead agencies may refer to the California rezoning of, forest land (as defined in Public Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Department of Conservation as an optional model to use in assessing impacts on agriculture and farmland. In determining whether impacts to timberland (as defined by Public Resources forest resources, including timberland, are significant environmental effects, lead agencies may refer to information compiled by the California Department of Forestry and Fire Protection regarding the state's inventory of forest Timberland Production (as defined by land, including the Forest and Range Assessment Project, the Forest Legacy Assessment project, and forest carbon measurement methodology provided In Forest Protocols adopted by the California Air Resources Board. Would the project: d. Result in the loss of forest land or conversion a. Convert Prime Farmland, Unique Farmland, or El El Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California e. Involve other, changes in the existing Resources Agency, to non- agricullual use? El b. Conflict with existing zoning for agricultural use or conflict with a Williamson Act contract? C. Conflict with existing zoning for, or cause El rezoning of, forest land (as defined in Public Resources Code section 12220(g)), timberland (as defined by Public Resources Code section 4526), or timberland zoned Timberland Production (as defined by Government Code section 51104(g))? d. Result in the loss of forest land or conversion of forest land to non - forest use? e. Involve other, changes in the existing ED El environment which, due to their location o' nature, could result in conversion of Farmland to non - agricultural use or conversion of forest land to non - Forest use? The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3 -g ICF 00215.12 31 C -62 City of Santa Ana Discussion Would the project: Environmental Checklist a. Convert Prime Farmland, Unique Farmland, or Farmland ofStatewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non - agricultural use? No Impact. The proposed project is located in a fully developed urban environment. According to the California Department of Conservation Orange County Important Farmland 2008 map (California Department of Conservation 2008), the proposed project site is classified as "urban and built -up land," which does not contain any agricultural uses. As a result, approval of the proposed project would not result in the conversion of Prime Farmland, Unique Farmland, or Farmland of Statewide Importance to non - agricultural uses. No impact would occur. b. Conflict with existing zoning for agricultural use or conflict with a Williamson Act contract? No Impact. The project site is currently designated for residential uses by the Santa Ana General Plan and Zoning Code. The project site has historically been used for residential purposes and is currently used for religious purposes. Likewise, the area surrounding the project site is fully developed, and no agricultural land uses and no property under Williamson Act contract exist in the vicinity of the proposed project. As such, the introduction of the proposed Bat Nha Meditation Center would not conflict with existing zoning for agricultural use or a Williamson Act contract. No impact would occur. c. Conflict with existing zoning for, or cause rezoning of forest land (as defined in Public Resources Code section 12220(8)), timberland (as defined by Public Resources Code section 4526), or timberland zoned 7Ymberland Production (as defined by Government Code section 51104(8))? No Impact. As described above in Section Il.b., the site and surrounding areas are within an established urban area. No land zoned as forest land or timberland exists within the proposed project boundaries. The proposed project would not conflict with existing zoning for forest land or timberland. No impact would occur. d. Result In the loss of forest land or conversion of forest land to non forest use? No Impact. As discussed in ILc, no land zoned as forest land or timberland exists within the proposed project boundaries. Approval of the proposed project would not result in the loss of forest land or conversion of forest land to other uses. No impact would occur. e. Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland to non - agricultural use or conversion of forest land to non. forest use? No Impact. No agricultural land uses, forest land, or timberland exist in the vicinity of the proposed project and the proposed project site has long been developed for urban uses. The proposed redevelopment of the project site would not involve other changes in the existing environment that, due to their location or nature, could result in conversion of farmland to non - agricultural use or Forest land to non- forest use. No impact would occur. The Bat Nha Buddhist Meditation Center 1 xo3 lone Initial Study /Mitigated Negative Declaration 3 -10 Itf 0e2013 31 C -63 City of Santa Ana Environmental Checklist a. Conflictwith or obstruct implementation of Less -than- El Significant Potentially Impact with Less -than- Significant Mitigation Significant No III. Air Quality Impact Incorporated Impact Impact When available, the significance criteria El established by the applicable air quality ® management or air pollution control district may substantially to an existing or projected air be relied upon to make the following determinations. Would the project: a. Conflictwith or obstruct implementation of El El the applicable air quality plan? b. Violate any air quality standard or contribute El EJ ® ❑ substantially to an existing or projected air quality violation? c. Result in a cumulatively considerable net ® El of any criteria pollutant for which the project region is a nonattainment area for an applicable federal or state ambient air, quality standard (including releasing emissions that exceed quantitative thresholds for ozone precursors)? d. Expose sensitive receptors to substantial ® ❑ pollutant concentrations? e. Create objectionable odors affecting a El ® ❑ substantial number of people? Discussion Regional Setting and Context The proposed project site is located within the South Coast Air Basin (Basin), an area covering approximately 6,745 square miles bounded by the Pacific Ocean to the west and south and the San Gabriel, San Bernardino, and San Jacinto Mountains to the north and east. The Southern California region lies in the semi- pernnanent high - pressure zone of the eastern Pacific. As a result, the climate is mild, tempered by cool sea breezes. The usually mild climatological pattern is interrupted infrequently by periods of extremely hot weather, winter storms, or Santa Ana winds. The extent and severity of the air pollution problem in the Basin is a function of the area's natural physical characteristics (weather and topography) as well as human -made influences (development patterns and lifestyle). Factor such as wind, sunlight, temperature, humidity, rainfall, and topography all affect the accumulation and dispersion of pollutants throughout the Basin, making it an area of high pollution potential. Pollutant concentrations in the Basin vary with location, season, and time of day. Ozone (03) concentrations, for example, tend to be lower along the coast, higher in the near inland valleys, and lower in the far inland areas of the Basin and adjacent desert. Air quality within the basin is regulated by the South Coast Air Quality Management District (SCAQMD or District), which has jurisdiction over an area of approximately 10,743 square miles, including all of Orange County. The Basin is a sub - region of the SCAQMD jurisdiction, and while air The Bat Nha Buddhist Meditation Center lone 2013 Initial Study /Mitigated Negative Declaration 3 -11 ICF dot 1512 31 C -64 City of Santa Ana Environmental Checklist quality in this area has improved, the Basin requires continued diligence to meet air quality standards. Over the past 30 years, substantial progress has been made in reducing air pollution levels in Southern California. For example, compared to previous studies of air toxics in the Basin, the Multiple Air Toxics Exposure Study III (MATES III) completed by the SCAQMD found a decreasing risk for air toxics exposure, with the population weighted risk down by 17% from the analysis in MATES 11. However, although there has been improvement in air quality regarding air toxics, the risks are still unacceptable and are higher near sources of emissions such as ports and transportation corridor. Diesel particulate matter (DPM) continues to dominate the risk from air toxics, and the portion of air toxic risk attributable to diesel exhaust is increasing compared to the MATES 11 Study. The MATES 111 study concluded that the average carcinogenic risk throughout the Basin, attributed to toxic air contaminants (TACs), is approximately 1,194 in one million. Mobile sources (e.g., cars, trucks, trains, ships, aircraft, etc.) represent the greatest contributes. About 83.6% of all risk is attributed to DPM emissions. Data from the closest climate monitoring station— Western Regional Climate Center's (WRCC's) Santa Ana Fire Station —was used to characterize project vicinity climate conditions. The average project area summer (August) high and low temperatures are 84.7 and 61.6 °F, respectively; the average winter Qanuary) high and low temperatures are 68.0 and 43.0 °F, respectively. The average annual rainfall is 13.79 inches (WRCC 2012). The closest wind monitoring station is the Anaheim wind monitoring station, which was used to characterize study area wind conditions. Wind patterns in the project vicinity display a nearly unidirectional Flow, primarily from the south - southwest and southwest, at an average speed of 8 mph. Calm wind conditions are present 14.73% of the time (SCAQMD 2012). Wind direction is reversed from the stated direction only 2-3% of the time. Existing Pollutant Levels The SCAQMD has divided the Basin into air monitoring areas and maintains a network of air quality monitoring stations throughout the Basin. The project site is located in the Central Orange County Area (i.e., Source Receptor Area [SRA] Number 17). The nearest monitoring stations are in the Cities of Santa Ana and Costa Mesa, located approximately 6.5 miles northwest of the project (for Santa Ana) and 4.5 miles south of the project site (for the Costa Mesa Station). The Costa Mesa Station monitors the following criteria pollutants: carbon monoxide (CO), 03, nitrogen dioxide (NO2), and sulfur dioxide (S02); particulate matter less than or equal to 10 or 2.5 micrometers in diameter (PM10 and PM2.5, respectively) are measured at the Anaheim- Pampas monitoring station in the City of Anaheim. The most recent data available covers 2009 to 2011. Monitoring data (Table 3.1) show the following pollutant trends: state 1 -hour 03 standards were exceeded once during the 3 -year reputing period. The national 8 -hour 03 standard was exceeded twice during the 3 -year period. CO and NO2 concentrations are low and no exceedances were recorded during the 3 -year reporting period. Particulate (PM10 and PM2.5) concentrations are largely affected by meteorology and show some variability during the 3 -year reporting period. The state 24 -hour PM10 standard was exceeded once in 2009. The national PM2.5 standard was exceeded 5 times in 2009, and once in 2011. The Bat Nha Buddhist Meditation Center Initial Study /Mitigated Negative Declaration 3.12 June 2013 ICF 00215.32 31 C -65 City of Santa Ana Environmental Checklist Table 3 -1. Air Quality Data from Costa Mesa Station (ARB 30195) and Anaheim - Pampas Lane Station (ARB 30178) Pollutant Standards 2009 2010 2011 Ozone (0a) State Standard (1- HourAverage = 0.09 ppni) National Standard (8-Hour Average = 0.075 ppm) Maximum Concentration 1 -Hour Period (ppm) 0.087 0.097 0.093 Maximum Concentration 8-Hour Period (ppm) 0.072 0.076 0.077 Days State 1 -Hour Standard Exceeded 0 1 0 Days National B -Hour Standard Exceeded 0 1 1 Carbon Monoxide (CO) State Standard (8- HourAverage = 9 ppm) National Standard (8- HourAverage = 9 ppm) Maximum Concentration 8 -How- Period (ppm) 2.16 2.09 2.22 Days State/National 8-Hour Standard Exceeded 0 0 0 Nitrogen Dioxide (NO2) State Standard (1- HourAverage = 0.18 ppm) Maximum 1 -Hour Concentration 0.065 0.070 0.061 Days State Standard Exceeded 0 0 0 Suspended Particulates (PM10) State Standard (24- HourAverage = 50 pg 1m3) National Standard (24-HourAverage = 150 pg /m3) Maximum State 24 -Hour Concentration 62.0 43.0 53.0 Maximum National 24 -How• Concentration 97.4 43.0 53.0 Days Exceeding State Standard 1 0 0 Days Exceeding National Standard 0 0 2 Suspended Particulates (PM2.5) National Standard (24 -Hour Average = 35 pg /W) Maximum 24 -Hour Concentration 64.5 31.7 39,2 Days Exceeding National Standard 5 0 2 Notes: ppm = parts per million µg /m; = microgram per cubic meter Source: ARB 2012. Sensitive Receptors and Locations Some population groups, such as children, the elderly, and acutely and chronically ill persons, especially those with cardio- respiratory diseases, are considered more sensitive to air pollution than others. Sensitive receptors in the vicinity of the project include residential land uses located on all sides of the project site, approximately 25 meters (about 82 feet) away, as well as the Lincoln Elementary School that is located approximately 300 (about 984 feet) meters to the north of the project site. The oat Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3-13 ICF 00215.12 31 C -66 City of Santa Ana Regulatory Setting Federal Federal Clean Air Act Environmental Checklist The Clean Air Act (CAA) was first enacted in 1963 and has been amended numerous times in subsequent years (1967, 1970, 1977, and 1990), The CAA establishes the National Ambient Air Quality Standards ( NAAQS) and specifies future dates for achieving compliance. The CAA also mandates that the state submit and implement a State Implementation Plan (SIP) for local areas not meeting those standards. The plans must include pollution control measures that demonstrate how the standards will be met. Because the City of Santa Ana is within the Basin, it is in an area designated as nonartainment for certain pollutants that are regulated under the CAA. The 1990 amendments to the CAA identify specific emission - reduction goals for areas not meeting the NAAQS. These amendments require both a demonstration of reasonable further progress toward attainment and incorporation of additional sanctions for failure to attain or meet interim milestones. The sections of the CAA that would most substantially affect the development of the proposed project include Title I ( Nonattainment Provisions) and Title Il (Mobile- Source Provisions). Title I provisions were established with the goal of attaining the NAAQS for criteria pollutants. Table 3 -2 shows the NAAQS Currently in effect for each criteria pollutant. The NAAQS were amended in July 1997 to include an 8 -hour standard for 03 and adopt a standard for PM2.s. The Basin (Orange County portion) fails to meet national standards for 03, PM10, and PM2.s and therefore is considered a federal nonattainment area for these pollutants. Table 3.3 lists each criteria pollutant and their related attainment status. Table 3 -2. Federal and State Ambient Air Quality Standards Pollutant Averaging Time CAAQSa NAAQSb Ozone (03) 1 hour 0.09 ppm, — 8 hour 0.070 ppm 0.075 ppm Carbon Monoxide (CO) 1 hour 20 ppm 35 ppm 8 hour 9.0 ppm 9 ppm Nitrogen Dioxide (NO2) 1 hour 0.18 ppm 100 ppb Annual Arithmetic Mean 0.030 ppm 53 ppb Sulfur Dioxide (SO2) 1 hour 0.25 ppm 75 ppb 24 hour 0.04 ppm 0.14 ppm Respirable Particulate Matter 24 hour 50 pg 1m3c 150 pg /m3 (PM10) Annual Arithmetic Mean 20 pg /1113 — Fine Particulate Matter (PM2.5) 24 hour — 35 pg /m3 Annual Arithmetic Mean 12 pg /m3 15.0 pg /m3 Sulfates 24 hour 25 pg /m3 — Lead (Pb) 30 day average 1.5 pg /m3 — Calendar quarter — 1.5 pg /m3 Rolling 3 -Month Average — 0.15 pg /tn3 Hydrogen Sulfide 1 hour 0.03 ppm — Vinyl Chloride 24 hour 0.01 oom — The Bat Nha Buddhist Meditation Center Initial Study /Mitigated Negative Declaration 3 -14 June 2013 ICF 00215.12 31 C -67 City of Santa Ana Environmental Checklist Pollutant Averaging Time CAAQS- NAAQSb Notes: a The California Ambient Air Quality Standards ( CAAQS) for 03, CO, S02 (1 -hour and 24- hour), NO2, PM10, and PM2s are values not to be exceeded. All other California standards shown are values not to be equaled or exceeded. b The NAAQS, other than 03 and those based on amoral averages, are not to be exceeded more than once a year. The 03 standard is attained when the expected number of days per calendar year with maximum hourly average concentrations above the standard is equal to or less than 1. r ppm = parts per million by volume; ppb = parts per billion; Vg/M3 = micrograms per cubic meter. Source: ARB 2012. Table 3 -3. Federal and State Attainment Status for Orange County Portion South Coast Air Basin Pollutants Federal Classification State Classification 03 (1-hour standard) — Nonattainment, Extreme 03 (8 -hour standard) Nonattainment, Extreme Nonattainment, Extreme PM10 Nonattainment, Serious Nonattainment PM2.5 Nonattainment Nonattainment CO Attainment /Maintenance Attainment NO2 Attainment /Maintenance Nonattainment S02 Attainment Attainment Source: ARB 2012. State California Clean Air Act The California Clean Air Act (CCAA), signed into law in 1988, requires all areas of the state to achieve and maintain the California Ambient Ail• Quality Standards ( CAAQS) by the earliest practical date. The CAAQS incorporate additional standards for most of the criteria pollutants and set standards for other pollutants recognized by the state. In general, the California standards are more health protective than the corresponding NAAQS. California has also set standards for sulfates, hydrogen sulfide, vinyl chloride, and visibility- reducing particles. The Basin is in compliance with these California standards for sulfates, hydrogen sulfide, visibility- reducing particles, and vinyl chloride. Table 3 -2 details the current NAAQS and CAAQS, and Table 3 -3 provides the Basin's (Orange County portion) attainment status with respect to federal and state standards. Local South Coast Air Quality Management District SCAQMD has adopted a series of air quality management plans (AQMPs) to meet the CAAQS and NAAQS. These plans require, among other emissions- reducing activities, control technology for existing sources, control programs for area sources and indirect sources, a SCAQMD permitting system designed to allow no net increase in emissions from any new or modified (i.e., previously permitted) emission sources, and transportation control measures. The 2007 AQMP was adopted on June 1, 2007 (SCAQMD 2007), and is currently in the process of being updated. The 2012 AQMP The Bat Nha Buddhist Meditation Center 3 -15 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -68 City of Santa Ana Environmental Checklist Advisory Group was approved by the AQMD Governing Board in September 2011, and was directed to consider the following in updating the AQMP: latest scientific/ technological information and planning assumptions (including the 2012 Regional Transportation Plan /Sustainable Communities Strategy), updated emission inventory methodologies for various source categories, and a strategy to implement zero or near -zero emission measures to reach attainment of particulate matter and ozone standards. SCAQMD adopts rules and regulations to implement portions of the AQMP. Several of these rules may apply to construction or operation of the project. For example, SCAQMD Rule 403 requires implementing the best available fugitive dust control measures during active operations capable of generating fugitive dust emissions from onsite earth - moving activities, construction /demolition activities, and construction equipment travel on paved and unpaved roads. SCAQMD has published the CEQA Air Quality Handbook (November 1993; with section updates provided on SCAQMD website) to help local governments analyze and mitigate project- specific air quality impacts. This handbook provides standards, methodologies, and procedures for conducting air quality analyses for CEQA documents prepared within the SCAQMD jurisdiction, ht addition, SCAQMD has published two additional guidance documents — Localized Significance Threshold Methodology for CEQA Evaluations (June 2003) and Particulate Matter (PM) 2.5 Significance Thresholds and Calculation Methodology (October 2006) —that provide guidance for evaluating localized effects from mass emissions during construction. Both were used in the preparation of this analysis. Regional Comprehensive Plan and Guide The Southern California Association of Governments (SCAG) is the regional planning agency for Los Angeles, Orange, Ventura, Riverside, San Bernardino, and Imperial Counties. it addresses regional issues relating to transportation, the economy, community development, and the environment. SCAG is the federally designated metropolitan planning organization (MPO) for the majority of the southern California region and is the largest MPO in the nation. With respect to air quality planning, SCAG has prepared the Regional Comprehensive Plan and Guide (RCPG) for the region, which includes Growth Management and Regional Mobility chapters that form the basis for the land use and transportation components of the AQMP. These chapters are utilized in the preparation of air quality forecasts and the consistency analysis that is included in the AQMP. Methodology Construction Mass daily combustion emissions, fugitive PMio and PM2.5, and off - gassing emissions (e.g., evaporative emissions of volatile organic compounds [VOCs) from the application of architectural coatings and asphalt paving) were compiled using CaIEEMod, which is an emissions estimation /evaluation model developed in collaboration with air quality management districts of California. The CaIEEMod model separates the construction process into multiple phases that account for everything from structure demolition and site clearing to asphalt paving and the application of architectural coatings. Site preparation emissions (e.g., grading and excavation) would include fugitive dust emissions from soil disturbance activity, as well as combustion exhaust emissions from onsite construction equipment, haul truck trips, and worker commute trips. Structure erection and The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3 -16 ICE June 2012 31 C -69 City of Santa Ana Environmental Checklist finishing emissions would include combustion exhaust emissions from onsite construction equipment, haul truck trips, and worker commute trips, as well as fugitive off - gassing emissions from the application of architectural coatings and asphalt paving. Assumptions regarding construction phasing and equipment use were developed based on information received from the project applicant. A complete listing of the construction equipment by phase, construction phase duration assumptions, and changes to modeling default values used in this analysis is included within the CaIEEMod printout sheets that are provided in Appendix A of this IS /MND. Operations The CaIEEMod software was also used to compile the mass daily emissions estimates from mobile and area sources that would occur during long -term project operations. In calculating mobile- source emissions, the CalEEMod default trip assumptions were applied to arrive at the total vehicle miles traveled (VMT). Area- source emissions were compiled using CalEEMod default assumptions. The analysis of roadway CO impacts followed the protocol recommended by Caltrans and published in their Transportation Project -Level Carbon Monoxide Protocol (Garza 1997). It is also consistent with procedures identified through the SCAQMD's CO modeling protocol. For any intersection that shows potential to generate a CO hotspot by failing SCAQMD- recommended screening criteria, local area CO concentrations are evaluated using the CALINE 4line- source dispersion model developed by the California Department of Transportation ( Caltrans) combined with EMFAC2012 emission factors. All emissions calculation worksheets and air quality modeling output files are provided in Appendix A. Thresholds of Significance Appendix G, Section III of the Environmental Checklist Form in the State CEQA Guidelines states that, where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make determinations regarding air quality impacts. Because of SCAQMD's regulatory role in the Basin, the significance thresholds and analysis methodologies outlined in their CEQA Air Quality Handbook, Localized Significance Threshold Methodology for CEQA Evaluations, and Particulate Matter (PM) 2.5 Significance Thresholds and Calculation Methodology guidance documents were used in evaluating project impacts. The SCAQMD construction and operational emissions thresholds identified in Table 3 -4 is used for this assessment. Table 3.4. SCAQMD Emission Thresholds (lbs /day) Pollutant Nitrogen Oxides (NO%) Reactive Organic Compounds (ROC) Suspended Particulate Matter(PM10) Fine Particulate Matter Regional Emissions Thresholds Construction Operation 100 55 75 55 150 150 55 55 Localized Emissions Thresholds2 Construction Operation 115 115 N/A N/A The Bat Nha Buddhist Meditation Center 3 17 June 2013 Initial Study /Mitigated Negative Declaration IcF00215.12 31 C -70 City of Santa Ana Regional Emissions Thresholds Environmental Checklist Localized Emissions Thresholds] Pollutant Construction Operation Construction Operation Sulfur Oxides (SOx) 150 150 N/A N/A Carbon Monoxide (CO) 550 550 715 715 Lead(Pb)1 3 3 N/A N/A Notes: I The proposed project would have no lead emissions sources during the construction or operations period. As such, lead emissions are not evaluated in this report. 2Localized thresholds derived from SCAQMD Localized Significance Threshold Tables and are based on the project location (Source Receptor Area [SRA)17, the Central Orange County), project area disturbed in any given day (2- acres), and the distance to the nearest sensitive receptor (25 meters), Source: SCAQMD CEQAAir Quality Handbook, 1993 (As amended at liftp://www.aqllid.gov/ceqa/ handbook /signthres.pdf); SCAQMD Localized Significance Threshold Methodology for•CEQA Evaluations; and Particulate Matter (PM) 2.5 Significance Thresholds and Calculation Methodology. Impact Analysis Would the project: a. Conflict with or obstruct implementation of the applicable air quality plan? No lmpacL SCAQMD is required, pursuant to the federal CAA, to reduce emissions of criteria pollutants for which the Basin is in nonattainment (Le, 03, PMio, and PM2.$). The project would be subject to SCAQMD's AQMP, which contains a comprehensive list of pollution control strategies directed at reducing emissions and achieving ambient air quality standards. These strategies are developed, in part, based on regional population, housing, and employment projections prepared by SCAG. The project site is located within the City of Santa Ana and is currently zoned as RI Single Family Residential. The project proponent is seeking a Conditional Use Permit that would allow religious uses on a parcel zoned R1. Given that the project would convert two low density residential lots (RI) to a community religious use, there would be no material effect on regional population, housing, and employment projections that form the basis of AQMP growth assumptions. As such, the project would not conflict with the AQMP, which is wafted to bring the Basin into attainment for all criteria pollutants. Additionally, all construction activities would be in compliance with AQMP regulatory measures, including SCAQMD rules pertaining to fugitive dust (Rules 403, 404, and 405), visibility of emissions (Rule 401), nuisance activities (Rule 402), and limiting VOC content in both asphalt and architectural coatings (Rules 1108 and 1113). Finally, as discussed below under IlLb, project operational emissions would fall below the SCAQMD thresholds of significance. Accordingly, the proposed project would be consistent with the projections in the AQMP. No impact would occur with respect to AQMP implementation and no mitigation measures are required. The Bat Nha Buddhist Meditation Center 3 -18 Initial Study /Mitigated Negative Declaration 31 C -71 June 2013 CF 00225.22 City of Santa Ana Environmental Checklist b. Violate any air quality standard or contribute substantially to an existing or projected air quality violation? Less - than- Signlflcant Impact. As discussed above, the project site is located within the Basin, where state and federal air quality standards are occasionally exceeded. The proposed project would contribute to regional air pollutant emissions during construction (short -term) and project operations (long- term). Construction Impacts Construction of the proposed project has the potential to create air quality impacts through the use of heavy -duty construction equipment and through vehicle trips generated from construction workers traveling to and from the project site. In addition, fugitive dust emissions would result from site work related to the excavation and export of 3,021 total cubic yards of soil materials. Mobile source emissions, primarily NOx, would result from the use of construction equipment such as graders, scrapers, bulldozers, wheeled loaders, and cranes. During the structure erection /finishing phase, paving operations and the application of architectural coatings (i.e., paints) and other building materials would release ROG emissions. Construction emissions can vary substantially from day to day, depending on the level of activity, the specific type of operation, and, for dust, the prevailing weather conditions. The assessment of construction air quality impacts considers each of these potential sources. Construction of the proposed project is anticipated to take approximately 19 months to complete. The total magnitude of construction activity, duration of construction activity, and intensity of construction activity would have a substantial effect upon the quantity of construction emissions (and related pollutant concentrations) occurring at any one time. As such, the emission forecasts provided herein reflect a specific set of conservative assumptions based on the expected construction scenario wherein a relatively large amount of construction activity is occurring in a relatively intensive manner. As provided in Table 3 -5, construction- related daily (short -term) emissions for the scenarios during which emissions from construction components could possibly overlap are provided to be conservative. As shown, in no components or scenarios do emissions exceed the SCAQMD regional thresholds, and short -term construction emissions can be considered less than significant. Table 3 -5. Estimate of Regional Construction Emissions (pounds per day) Regional Construction Emissions ROG NOx CO SOx PM10 PM2.5 Demolition 5 39 25 <1 4 2 Excavation & Soils Export 5 36 20 <1 6 2 Grading &Soils Prep 3 26 16 <1 3 2 Site Trenching & Bldg Foundation 2 31 23 <1 3 2 Building Construction 2013 9 52 38 <1 5 4 Building Construction 2014 9 49 37 <1 4 4 Concrete & Asphalt 5 27 20 <1 3 2 Architectural Finishing 19 3 4 <1 1 <1 SCAQMD Regional Threshold 75 100 550 150 150 55 Exceed Threshold? No No No No No No The Bat Nha Buddhist Meditation Center 3-19 June 2013 Initial Study /Mitigated Negative Declaration ICi 00215.12 31 C -72 City of Santa Ana Environmental Checklist Regional Construction Emissions ROG NOx CO SOx PM10 PM2.5 Conservative Worst-case Scenarios Excavation & Soils Export AND Grading & Soils 8 63 36 <1 9 4 Prep Grading & Soils Prep AND Site Trenching & Bldg 6 58 39 <1 6 4 Foundation Building Construction 2014 AND Concrete & 13 76 57 <1 7 6 Asphalt Exceed Threshold? NO NO NO NO NO NO Notes: Construction emission calculation worksheets are included III Appendix A. - PMIO emissions estimates take into account compliance with SCAQMD Rule 403 requirements for fugitive dust suppression, which require that no visible dust be present beyond the site boundaries, as well as the use of EPA Tier 2 equipment. Source: ICF 2012. Operational Impacts Regional air pollutant emissions associated with project operations would be generated by the consumption of electricity and natural gas and by the operation of on -road vehicles. Pollutant emissions associated with energy demand (i.e., electricity generation and natural gas consumption) are classified by SCAQMD as area source emissions. Mobile- and area - source emissions were calculated using the CaIEEMod emissions inventory model, which multiplies an estimate of daily VMT by applicable EMFAC2007 emissions factors.' The CaIEEMod model output and worksheets for calculating regional operational daily emissions are provided in Appendix A. As shown in Table 3 -6, regional emissions resulting from the operation of the project would not exceed regional SCAQMD thresholds for CO, NOx, PM10, ROC, SOx, or PM2.5. Thus, operation of the proposed project would not exceed regional SCAQMD thresholds, and regional operations emissions would result in a less- than - significant long -term regional air quality impact. No mitigation measures are necessary. Table 3 -6. Estimate of Regional Operational Emissions (pounds per day) Regional Operational Emissions ROG NOx CO sox PM10 PM2.5 Area Sourcer 3 <1 <1 <1 <1 <1 Stationary Sourcesb <1 <I <1 <I <1 <1 On Road Mobile Sources- 9 17 90 <1 21 2 Total 11 17 90 <1 21 2 SCAQMD Daily Significance Threshold 5 5 50 30 10 5 Exceed Significant Threshold? No No No No No No Notes: a Mobile emissions calculated using the CaIEEMod emissions model. Model output sheets are provided in Appendix A. b Emissions from project - related electricity generation are calculated based on guidance provided In 1 Daily VMT estimate derived by applying CalEEMod default trip length estimates (per land use) with the proposed project default trip generation estimates (per land use). The Bat Nha Buddhist Meditation Center 3-20 June 2013 Initial 5ludy /Mitigated Negative Declaration ICF 00215.12 31 C -73 City of Santa Ana Environmental Checklist SCAQMD's CEQA Air Quality Handbook. Worksheets are provided in Appendix A. < Area sources include landscape equipment emissions and miscellaneous sources (e.g., detergents and cleaning compounds). Source: ICF 2012. c, Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is a nonattainment area for an applicable federal or state ambient air quality standard (including releasing emissions that exceed quantitative thresholds forozone precursors)? Less - than - Significant Impact The SCAQMD's approach for assessing cumulative impacts is based on the AQMP forecasts of attainment of ambient air quality standards in accordance with the requirements of the federal and state Clean Air Acts. As discussed earlier in Ill.a., the proposed project would be consistent with the AQMP, which is intended to bring the Basin into attainment for all criteria pollutants.' In addition, the mass regional emissions calculated for the proposed project presented earlier in Table 3 -5 (regional construction emissions) and Table 3 -6 (regional operations emissions) are less than the applicable SCAQMD daily significance thresholds, which factor in cumulative effects and are designed to assist the region in attaining the applicable state and national ambient air quality standards. As such, cumulative impacts would be less than significant, and no mitigation measures would be necessary. d. Expose sensitive receptors to substantial pollutant concentrations? Less - than - Significant Impact with Mitigation Incorporated The proposed project would contribute to localized air pollutant emissions during construction (short -term) and project operations (long- term). A discussion of the project's localized potential construction- and operations - period air quality impacts is provided below. Local Construction Impacts SCAQMD has developed a set of mass emissions rate look -up tables that can be used to evaluate localized impacts that may result from construction- period emissions. If the onsite emissions from proposed construction activities are below the Localized Significance Threshold (LST) emission levels found in the LST mass rate look -up tables for the project site's SRA, then project emissions would not have the potential to cause a significant localized air quality impact. As discussed previously, mass daily emissions during construction were compiled using the Ca1EEMod emissions inventory model. However, only onsite construction emissions were considered for purposes of comparison with the LST mass rate look -up tables (consistent with SCAQMD LST Guidelines, offsite delivery /haul truck activity and employee trips were not considered in the evaluation of localized impacts). A conservative estimate of the project's construction - period onsite mass emissions is presented in Table 3 -7. As provided in Table 3.7, 2 CEQA Guidelines Section 15064(h)(3) states "A lead agency may determine that a project's incremental contribution to a cumulative effect is not cumulatively considerable if the project will comply with the requirements in a previously approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem (e.g, water quality control plan, air quality plan, integrated waste management plan) within the geographic area in which the project is located. Such plans or programs must be specified in law or adopted by the public agency with jurisdiction over the affected resources through a public review process to Implement, interpret, or make specific the law enforced or administered by the public agency." The gat Nha Buddhist Meditation Center 3 21 June 2013 initial Study /Mitigated Negative Declaration ¢E 00215.12 31 C -74 City of Santa Ana Environmental Checklist construction- related daily (short -term) emissions for the conservative -case scenarios during which emissions from construction components that overlap would exceed the SCAQMD localized significance thresholds for PM2.5. As such, the implementation of Mitigation Measures AQ -1 and AQ- 2 to reduce short -term construction emissions is required and will bring emissions of PM2.5 to a less- than - significant level. Table 3 -7. Estimate of Localized Construction Emissions (pounds per day) Localized Construction Emissions ROG NOx CO SOx PM10a PM2.5 Demolition 5 39 24 <1 2.4 2.3 Excavation & Soils Export 4 35 18 <1 1.7 1.7 Grading & Soils Prep 3 26 15 <1 3.1 2.3 Site Trenching & Bldg Foundation 2 29 20 <1 1.9 1.9 Building Construction 2013 9 52 34 <1 3.9 3.9 Building Construction 2014 8 49 34 <1 3.5 3.5 Concrete & Asphalt 4 27 19 <1 2.3 2.3 Architectural Finishing 19 3 2 <1 0.2 0.2 SCAQMD Daily Significance Threshold 115 715 - 6 4 Excavation & Soils Export and Grading & Soils Prepb 8 61 33 <I 4.8 3.9 Grading & Soils Prep and Site Trenching & Bldg 5 55 35 <1 5 4.2 Foundation Building Construction 2014 and Concrete & Asphalt 13 76 52 <1 5.8 5.8 Exceed Threshold? No No No No No Yes Notes: Construction emission calculation worksheets are included in Appendix A. a PMro emissions estimates take into account compliance with SCAQMD Rule 403 requirements for fugitive dust suppression, which require that no visible dust be present beyond the site boundaries, as well as the use of EPA Tier 2 equipment. b Localized thresholds derived from SCAQMD Localized Significance Threshold Tables and are based on the project location (Source Receptor Area [SRAj 17, the Central Orange County), project area disturbed in any given day (2- acres), and the distance to the nearest sensitive receptor (25 meters). Source: SCAQMD Localized Significance Threshold MethodologyforCEQA Evaluations, and Particulate Matter (PM) 2.5 Significance Thresholds and Calculation Methodology. Source: ICF 2012, Mitigation Measure AQ -1: During grading and soil preparation, the maximum amount of grading allowed per day will not exceed 0.75 acre. These limitations will be specified in the final grading permits and bid specifications to be approved by the City of Santa Ana Planning and Building Agency prior to issuance of a grading permit. Adherence to these requirements would thereby reduce the daily intensity of fugitive particulate emissions associated with the grading and soil preparation component. Mitigation Measure AQ -2: During the Building Construction 2014 and Concrete & Asphalt phases of the project (as noted in Table 3 -7), construction - related equipment, including heavy -duty equipment, motor vehicles, and portable equipment, will meet EPA - Certified Tier 2 emissions standards, or higher. The Bat Nha Buddhist Meditation Center 3-22 June 2013 Initial Study /Mitigated Negative Declaration ¢r 0021512 31 C -75 City of Santa Ana Environmental Checklist As indicated in Table 3 -8, implementation of Mitigation Measures AQ -1 and AQ -2 will result in reductions of all criteria pollutant emissions, most notably of PM2.5 by 26% for the conservative case scenarios of an overlap in the components of Grading & Soils Prep and Site Trenching and Building Foundation, and also of an overlap in the components of Building Construction 2014 and Concrete & Asphalt. Implementation of these mitigation measures would reduce emissions of PM2.5 below the SCAQMD significance threshold, and air quality emission impacts related to construction would be less than significant after implementation of mitigation. Table 3 -8. Estimate of Localized Construction Emissions after Mitigation (pounds per day) Localized Construction Emissions ROG NOx CO SOx PM10a PM2.5 Excavation & Soils Export AND Grading & Soils Prep" 6 49 28 <1 <1 2.9 Grading & Soils Prep AND Site Trenching & Bldg Foundation" 4 43 29 <1 3.2 3.1 Building Construction 2014 AND Concrete & Asphalt 35 66 50 <1 3.9 3.9 SCAQMD Localized Significance Threshold NA 115 715 NA 6 4 Exceed Thresholds? No No No No No No Notes: Construction emission calculation worksheets are included in Appendix A. a PM1u emissions estimates take into account compliance with SCAQMD Rule 403 requirements for fugitive dust suppression, which require that no visible dust be present beyond the site boundaries, as well as the use of EPA Tier 2 equipment. Localized thresholds derived fi•om SCAQMD Localized Significance Threshold Tables and are based on the project location (Source ReceptorArea [SRAj 17, the Central Orange County), project area disturbed in any given day (2- acres), and the distance to the nearest sensitive receptor (25 meters). Source; SCAQMD Localized Significance Threshold Methodology for CEQA Evaluations, and Particulate Matter (PM) 2.5 Significance Thresholds and Calculation Methodology. Source: ICF 2012. Local Operational Impacts Within an urban setting, vehicle exhaust is the primary source of CO. Consequently, the highest CO concentrations are generally found close to congested intersections. Under typical meteorological conditions, CO concentrations tend to decrease as the distance from the emissions source (i.e., congested intersection) Increases. For purposes of providing a conservative, worst -case impact analysis, CO concentrations are typically analyzed at congested intersection locations, because if impacts are less than significant close to congested intersections, impacts will also be less than significant at more distant sensitive receptor locations. Project traffic during the operational phase of the project would have the potential to create local area CO impacts. SCAQMD recommends a quantitative hot -spot evaluation of potential localized CO impacts when volume -to- capacity ratios are increased by 2% at intersections with a level of service (LOS) of C or worse. Given these criteria, no intersections met the aforementioned requirements for selection based on information provided in the TIA prepared by Fehr & Peers (Appendix D). Because no intersections met the criteria necessary for a quantitative analysis, the project activity would not have a significant impact upon 1- or 8 -hour local CO concentrations from mobile source emissions. Thus, operation of the project would not result in significant impacts related to 1- or 8 -hour local CO concentrations from mobile source emissions. The Bat Nha Buddhist Meditation Center 3 23 June 2013 Initial Study /Mitigated Negative Declaration ICF 002 15.12 31 C -76 City of Santa Ana Environmental Checklist Because significant impacts would not occur at any intersections located adjacent to sensitive receptors, no significant impacts are anticipated to occur at any other locations in the study area because the conditions yielding CO hotspots would not be worse than those occurring at the analyzed intersections. Consequently, the sensitive receptors that are included in this analysis would not be significantly affected by CO emissions generated by the net increase in traffic that would occur under the project. Because the project does not cause an exceedance, or exacerbate an existing exceedance of an ambient air quality standard, the project's localized operational air quality impacts would be less than significant. No mitigation measures are necessary, With respect to the project's onsite mass emissions, Table 3 -9 shows that onsite operations - period emissions would be below SCAQMD's localized significance thresholds. Impacts from emissions of these criteria pollutants would be less than significant, No mitigation measures are necessary. Table 3.9. Estimate of Operation- Period Localized (onsite) Emissions ROG Nox CO sox PM10 PM2.5 Onsite Area Source Emissions Phase la 3 <1 <1 <1 <1 <1 SCAQMD Daily Significance Threshold (lbs /day)h 115 715 2 1 Exceed Significance Threshold? No No No No No No Notes: a Onsite emissions calculated using the CaIEEMod emissions model (area - source emissions). Model output sheets are provided in Appendix A. h The project site is located in SCAQMD SEA 17. These LSTs are based on the site location SEA, distance to the nearest sensitive - receptor location from the project site (25 meters), and the project area (2 acres). Source: ICF 2012. Toxic Air Contaminants SCAQMD recommends that health risk assessments be conducted for substantial sources of diesel particulate emissions (e.g., truck stops and warehouse distribution facilities) and has provided guidance for analyzing mobile source diesel emissions. In addition, typical sources of acutely and chronically hazardous TACs include industrial manufacturing processes, automotive repair facilities, and dry cleaning facilities. Since the proposed project would not contain such uses, the proposed project does not warrant a health risk assessment. Potential project - generated air toxic impacts on surrounding land uses would be less than significant. No mitigation measures are necessary. e. Create objectionable odors affecting a substantial number of people? Less - than - Significant Impact According to the SCAQMD CEQA Air Quality Handbook, land uses associated with odor complaints typically include agricultural uses, wastewater treatment plants, food processing plants, chemical plants, composting, refineries, landfills, dairies, and fiberglass molding. The proposed project does not include any uses identified by the SCAQMD as being associated with odors and therefore would not produce objectionable odors. Odors resulting from the construction of the proposed project are not likely to affect a substantial number of people due to the fact that construction activities do not usually emit offensive odors. Potential odor emitters during construction activities include asphalt paving and the use of architectural coatings and solvents. SCAQMD Rules 1108 and 1113 limit the amount of VOCs from The Bat Nha Buddhist Meditation Center 3.24 Initial Study /Mitigated Negative Declaration 31 C -77 June 2013 ICi00215.12 City of Santa Ana Environmental Checklist cutback asphalt and architectural coatings and solvents, respectively. Given mandatory compliance with SCAQMD rules, no construction activities or materials are proposed that would create a significant level of objectionable odors. As such, potential impacts during short -term construction would be less than significant. No mitigation measures are required. The eat Nha Buddhist Meditation Center 3-25 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -78 City of Santa Ana Environmental Checklist Less -than- Significant Potentially Impact with Less -than- Significant Mitigation Significant No IV. Biological Resources Impact Incorporated Impact Impact Would the project: a. Have a substantial adverse effect, either ❑ ® ❑ ❑ directly or through habitat modifications, on any species identified as a candidate, sensitive, or special- status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b. Have a substantial adverse effect on any ❑ ❑ ❑ riparian habitat or other sensitive natural community identified in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? C. Have a substantial adverse effect on federally ❑ ❑ ❑ protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marshes, vernal pools, coastal wetlands, etc.) through direct removal, filling, hydrological interruption, or other means? d. Interfere substantially with the movement of ❑ ® ❑ ❑ any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e. Conflict with any local policies or ordinances ❑ ❑ ❑ protecting biological resources, such as a tree preservation policy or ordinance? f. Conflict with the provisions of an adopted ❑ ❑ ❑ habitat conservation plan, natural community conservation plan, or other approved local, regional, or state habitat conservation plan? Discussion Would the project., a. Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special- status species In local or- regional plans, policies, or regulations, or, by the California Department of Fish and Game or U.S. Fish and Wildlife Service? Less - than - Significant Impact with Mitigation Incorporated. The project site is developed within an urban area, and is currently used as a meditation center. The site is bound by a six -foot block wall on three sides and a roadway on the west. Beyond the wall, churches are adjacent to the north and south (New Spirit Baptist and Lao Evangelical, respectively), with residential development to the The Bat Nha Buddhist Meditation Center 3 -26 Initial Study /Mitigated Negative Declaration 31 C -79 June 2013 ICF 00215.12 City of Santa Ana Environmental Checklist east. Two residential structures currently occupy the site, as well as several ancillary structures associated with the meditation center. The central portion of the project site is covered with gravel, and ornamental landscaping and koi ponds exist along the western and southern boundaries of the project site. The project site does not have native vegetation of, wildlife habitat that has the potential to accommodate sensitive biological resources, including candidate, sensitive, or special - status species. Therefore, the project would not result in impacts on sensitive habitats or other direct effects that could result in a substantial adverse effect to any candidate, sensitive or listed special - status species. However, the ornamental trees within the project site provide potentially suitable nesting habitat forvarious bird species, Potential impacts on nesting birds may occur if removal of the existing ornamental trees occurs during the breeding season (February 15 through September 15). Therefore, Mitigation Measure BIO -1 requires preconstruction nesting bird surveys to be conducted and appropriate buffer areas established around any active nests if removal of the existing trees or construction activities related to the existing trees occur between February 15 and September 15. Implementation of Mitigation Measure BIO -1 would reduce potential impacts on nesting birds to a less- than - significant level. Mitigation Measure BiO.1: Prior to issuance of grading and building permits, the applicant will retain a qualified biologist to conduct preconstruction nesting bird surveys prior to removal, trimming, or any other tree- disturbing activities that will occur within breeding /nesting season (February 15 through September 15). Prior to commencement of tree- related activities during this timeframe, a qualified biologist will perform a preconstruction survey to determine whether nests are present in or around the proposed project area. If a hest is found, an appropriate buffer will be established by the qualified biologist. No construction or other activities will be allowed to occur within the buffer until the young have fledged or the nest becomes inactive. The results of the preconstruction nesting bird survey will be provided to the City of Santa Ana Planning and Building Agency, prior to issuance of grading permits. b. Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? No Impact. The project site is developed and disturbed with some ornamental landscaping. Cement and rock lined koi ponds are located in the south and southwestern portions of the site. These ponds are human made and do not provide any riparian habitat or other sensitive natural community on the proposed project site. Therefore, the proposed project would have no effect upon any riparian habitat or other sensitive natural communities and no mitigation measures are required. c. Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (Including, but not limited to, marshes, vernal pools, coastal wetlands, etc.) through direct removal, filling, hydrological interruption, or other means? No Impact. The proposed project site contains human -made cement -lined koi ponds, but does not contain any wetlands or vernal pools, as defined by Section 404 of the Clean Water Act. No components of the proposed project would involve activities that could impact a jurisdictional area. Impacts on federally protected wetlands would not occur. The Oat Nha Buddhist Meditation Center 3-27 June 2013 Initial Study /Mitlgated Negative Declaration Icr 00215.11 31 C -80 City of Santa Ana Environmental Checklist d. Interfere substantially with the movement of any native resident or migratory fish or' wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? Less - than - Significant Impact with Mitigation Incorporated. The project site is located within a fully developed environment and is surrounded by a roadway and fully developed areas. Further, the project site is bound on three sides by a six -foot block wall. There are no surface waters, drainages, or other corridors that allow for wildlife movement on or within the vicinity of the project site. As such, the proposed project site is not within an established wildlife corridor, and the proposed project would not interfere with the movement of any native wildlife species. Additionally, the proposed project would not involve the construction of extensive facilities or fences that could impede wildlife movement. The proposed project would not interfere with the movement of any native resident or migratory wildlife species or with established native resident or migratory wildlife corridors, and would not impede the use of native wildlife nursery sites. However, as described above, the project site contains numerous ornamental trees, which may support nesting birds. The Migratory Bird Treaty Act (MBTA) protects all common wild birds found in the United States except the house sparrow, starling, feral pigeon, and resident game birds such as pheasant, grouse, quail, and wild turkey. The MBTA makes it unlawful for anyone to kill, capture, collect, possess, buy, sell, trade, ship, import, or export any migratory bird including feathers, parts, nests, or eggs. Further, the CDFG Code 3503 makes it illegal to destroy any birds' nest or any birds' eggs that are protected under the MBTA. Potential impacts on nesting birds may occur if removal of the existing ornamental trees occurs during the breeding season (February 15 through September 15). Therefore, Mitigation Measure B10 -1 requires preconstruction nesting bird surveys to be conducted and appropriate buffer areas established around any active nests, if tree removal is to occur between February 15 and September 15. Implementation of Mitigation Measure B10 -1 would reduce potential impacts on nesting birds to a less -than- significant level. e. Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? No Impact. The City of Santa Ana does not have any local policies or ordinances protecting biological resources at the project site. As a result, the proposed project would not conflict with any local policies or ordinances protecting biological resources, and impacts would not occur. f. Conflict with the provisions of an adopted habitat conservation plan, natural community conservation plan, or other approved local, regional, or state habitat conservation plan? No Impact. There are no Habitat Conservation Plans (HCPs), Natural Community Conservation Plans (NCCPs), or other approved local, regional, or state habitat conservation plans that apply to the project site. Therefore, there are no impacts related to this issue, and no mitigation is required. The Bat Nha Buddhist Meditation Center 3-29 June 2013 Initial 5tudy /Mitigated Negative Declaration ICF 00215.11 31 C -81 City of Santa Ana Environmental Checklist V. Cultural Resources Potentially Significant Impact Less -than- Significant Impactwith Mitigation Incorporated Less-than- Significant Impact No Impact Would the project: a. Cause a substantial adverse change in the ❑ ❑ ❑ significance of a historical resource as defined in Section 15064.5? b. Cause a substantial adverse change in the ❑ ® ❑ ❑ significance of an archaeological resource pursuant to Section 15064.5? c. Directly or, indirectly destroy a unique ❑ ® ❑ ❑ paleontological resource m• site or unique geologic feature? d. Disturb any human remains, including those ❑ ❑ ❑ interred outside of formal cemeteries? Discussion Would the project. a. Cause a substantial adverse change in the s(yniffcance of a historical resource as defined in Section 15064.51 No Impact. Construction and operation of the proposed project would not impact any known historical resources. Section 15064.5 of the CEQA Guidelines states that a resource shall be considered by the lead agency to be historically significant if the resource meets the criteria for listing in the California Register of Historical Resources (Public Resources Code Section 5024.1, Title 14, CCR Section 4852), including the following: Criterion 1: Is associated with events that have made a significant contribution to the broad patterns of California's history and cultural heritage; Criterion 2: Is associated with the lives of persons important in our past; Criterion 3: Embodies the distinctive characteristics of a type, period, region, or method of construction or represents the work of an important creative individual or possesses high artistic values; or Criterion 4: Has yielded, or may be likely to yield, information important in prehistory or history. The project site consists of two adjacent parcels (719 and 803 South Sullivan) that both contain buildings over 50 years old, with construction dates ranging from 1927 to 1962. The 719 South Sullivan Street parcel (northern portion of the project site) contains a one -story single - family Craftsman -style home, rectangular in plan, and built in 1927. The architectural features include a cross -gable roof with composition shingles, horizontal lapped wood siding, and wood frame sash single -hung windows. The gable ends of the roof and extended gable porch, supported by square post and beans, have vertical board and batten siding. Located to the rear of the residence is a large one-story addition with gable roof and extended porch roof supported by square post and beam. The addition appears to consist of two separate individual unit rooms. Also, a small garage or The Bat Nha Buddhist Meditation Center 3 29 June 2013 Initial Study /Mitigated Negative Declaration ICF 002 15.12 31 C -82 City of Santa Ana Environmental Checklist storage building is located to the rear of the house, which dates from the same period as the original 1927 structure. Further to the east of the house addition, there are three separate small portable buildings. Even though the (louse and associated garage /storage building are of Craftsman -style architecture, and the primary street -front west elevation along Sullivan Street retains a moderate degree of architectural integrity, there has been an extensive addition to the east end of the house. Although the historical integrity is strong, this building does not meet the level of significance required to be eligible for the California Register of Historical Resources under Criterion 3, as a distinctive example of the Craftsman design. Further, under Criterion 1 and Criterion 2, the resource is not known to be associated in a significant way with events or persons important in history. On April 26, 2012, an attempt was made to obtain the original building permit at the City of Santa Ana Building Safety Division, but no permit was on file. The resource address was checked in the Historic Resources Inventory (HRI), but no listing was identified. Finally, the resource was checked in the Santa Ana Register of Historical Properties list, updated October 12, 2009, no listing was identified. As a result, the buildings located on the 719 South Sullivan Street Parcel are not historic resources, and implementation of the project would not result in impacts on historic resources on the northern portion of the project site. The 803 South Sullivan Street parcel (southern portion of the project site) contains three one -story buildings and a shed. The primary house, along Sullivan Street, is irregular in plan with a red tile multi - hipped roof with extended eaves and exposed rafters. The exterior walls are stucco with aluminum slider windows. The second building, located east of the primary house, is square in plan with a side -gable red tile roof, stucco exterior wall surface, and aluminum slider windows. The third building is square in plan, located to the east of the second house, has a front -gable roof with red tiles, stucco exterior wall surface, and aluminum slider windows. At the rear of the parcel there is a rectangular- covered shed, which is possibly used as a meditation room. The primary house and associated buildings were built in 1962. They do not possess any distinctive type of architectural style nor rise to the level of significance required to be eligible for the California Register of Historical Resources under Criterion 3, design and construction. Further under Criterion 1 and Criterion 2, the resource is not known to be associated in a significant way with events or persons important in history. On April 26, 2012, an attempt was made to obtain the original building permit at the City of Santa Ana Building Safety Division, but no permit was on file. The resource address was checked in the If RI, but no listing was identified. Finally, the resource was checked in the Santa Ana Register of Historical Properties list, updated October 12, 2009, no listing was identified. As a result, the buildings located on the 803 South Sullivan Street Parcel are not historic resources, and implementation of the project would not result in impacts on historic resources on the project site. Additionally, a review of the California Register of Historical Resources, the California Historical Landmarks, the California Points of Historical Interest, and the National Register of Historic Places has not listed any resources within the project area. As such, the proposed project would not result in impacts on historic resources. b. Cause a substantial adverse change In the significance of an archaeological resource pursuant to Section 15064.57 Less - than - Significant Impact with Mitigation Incorporated. As described above, the project site was previously used for residential purposes prior to its current use as a meditation center. The The Bat Nha Buddhist Meditation center 3-30 June 2013 Initial Study /Mitigated Negative Declaration ICF 00235.12 31 C -83 City of Santa Ana Environmental Checklist existing structures on site were constructed between 1927 and 1962 and did not require substantial excavation for development. A cultural resources records search at the South Central Coastal Information Center did not identify any archaeological resources within the project area or within a 0.5 -mile radius of the project area, and no previous studies included the project site. Based on the preliminary research of the project area, the potential sensitivity for prehistoric archaeological and paleontological remains is low and for historical archaeological remains is moderate. An archaeological site survey was not conducted for this project because the project parcel is developed and covered in asphalt, concrete, ornamental landscaping, and a gravel parking area. Construction of the proposed building foundation will require five feet of over- excavation of soils below the existing grade under and outside of the proposed structure's footprint. Additionally, grading and over - compaction of soils would be required to even the site prior to construction. Because the site has not previously been excavated or studied for cultural resources, there is potential for subsurface artifacts. Hence, it is possible buried unknown archaeological materials could be unearthed during excavation and trenching activities associated with the proposed project. Therefore, construction of the proposed project may have the potential to disturb and destroy an unknown buried archaeological resource. Disturbance of any unknown buried archaeological resources could result in an adverse impact. Therefore, implementation of Mitigation Measure CR -1 would reduce the potentially significant impact to a less- than - significant level. Mitigation Measure CR -1: During grading excavation and trenching, a qualified professional archaeologist will be present to monitor the ground- disturbing activities. If buried cultural resources are discovered during ground- disturbing activities, work will stop in that area and within 50 feet of the find until a qualified archaeologist can assess the significance of the find and, if necessary, develop appropriate treatment measures. Treatment measures typically include development of avoidance strategies or mitigation of impacts through data recovery programs such as excavation or detailed documentation. If during cultural resources monitoring the qualified archaeologist determines that the sediments being excavated are previously disturbed or unlikely to contain significant cultural materials, the qualified archaeologist can specify that monitoring be reduced of- eliminated. c. Directly or Indirectly destroy a unique paleontological resource or site or unique geologic feature? Less - than - Significant Impact with Mitigation Incorporated, As described above, the project area does not contain any documented cultural resources; however, no known paleontological studies have been conducted onsite. The geologic map of the site shows that the project area is located within a broad Flat alluvium /colluvium area, and the Soil Report (Appendix B) identifies silty fine sand and silty clay underlying the project site. Historical high groundwater elevations below the projectsite are as shallow as four feet bgs, but were measured at nine feet bgs by the Soils Study prepared for the project. Given the geology of the project area, it is unlikely that unknown paleontological resources exist because the young surface sediments consisting of alluvium and colluvium onsite do not typically contain paleontological resources. Further, Lite proposed project would require minimal grading and a maximum excavation of approximately five feet below the existing grade. Therefore, there is a low likelihood that paleontological resources would be encountered during construction. However, because the site has not previously been excavated and or studied for paleontological resources, there is potential for subsurface resources. Hence, it is possible buried unknown paleontological The Bat Nha Buddhist Meditation Center 3 -31 June 2013 Initial Study /Mitigated Negative Declaration icf 00215.12 31 C -84 City of Santa Ana Environmental Checklist materials could be unearthed during excavation and trenching activities associated with the proposed project. Therefore, construction of the proposed project may have the potential to disturb and destroy an unknown paleontological resource. Disturbance of any unknown buried paleontological resources could result in an adverse impact. Therefore, implementation of Mitigation Measure CR -2 would reduce the potentially significant impact to a less -than- significant level. Mitigation Measure CR -2: During grading excavation and trenching, the contractor will be responsible for notifying the City in the event that suspected paleontological resources are discovered. The City will require the applicant to retain a qualified professional paleontological monitor to assess the find, identify treatment options, and oversee further excavation and trenching. The qualified paleontological monitor will retain the option to reduce monitoring if, in his or her professional opinion, the sediments being monitored were previously disturbed. Monitoring may also be reduced if potentially fossiliferous units are not present or, if deposits are present, they are determined by qualified paleontological personnel to have a low potential to contain fossil resources. The monitor will be equipped to salvage fossils and samples of sediments as they are unearthed to avoid construction delays and will be empowered to temporarily halt or divert equipment to allow removal of abundant or large specimens. Recovered specimens will be prepared to a point of identification and permanent preservation, including washing of sediments to recover small invertebrates and vertebrates. Specimens will be curated into a professional, accredited museum repository with permanent retrievable storage. A report of findings, with an appended itemized inventory of specimens, will be prepared and will signify completion of the program to mitigate impacts on paleontological resources. d. Disturb any human remains, including those interred outside of formal cemeteries? No Impact. The project site is not a formal cemetery and is not near a formal cemetery. The project vicinity is fully developed, and there is no record of human remains being identified during development of the area. In addition, the site is not known to be located on a burial ground. Therefore, it is highly unlikely the proposed project would disturb any human remains during construction. Should human remains be uncovered during construction, as specified by State Health and Safety Code Section 7050,5, no further disturbance will occur until the County Coroner has made the necessary findings as to origin and disposition pursuant to Public Resources Code 5097.99. If such a discovery occurs, excavation o• construction will halt in the area of the discovery, the area will be protected, and consultation and treatment will occur as prescribed by law. If the County Coroner recognizes the remains to be Native American, he or she will contact the Native American Heritage Commission, who will appoint the Most Likely Descendent. Additionally, if the bones are determined to be Native American, a plan will be developed regarding the treatment of human remains and associated burial objects, and the plan will be implemented under the direction of the Most Likely Descendent. Therefore, impacts on human remains would not occur from implementation of the project. The Bat Nha Buddhist Meditation Center 3-32 June 2013 initial Study /Mitigated Negative Declaration 1CF 00215.12 31 C -85 City of Santa Ana VI. Geology and Soils Would the project: Expose people or structures to potential a. substantial adverse effects, including the risk of loss, injury, or death involving: Rupture of known earthquake fault, as delineated on the most recent Alquist - Priolo Earthquake Pault Zoning Map issued by the State Geologist for the area or based an other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. Strong seismic ground shaking? Seismic - related ground failure, including liquefaction? Landslides? b. Result in substantial soil erosion or the loss of topsoil? c. Be located on a geologic unit or soil that is unstable or that would become unstable as a result of the project and potentially result in an onsite or offsite landslide, lateral spreading, subsidence, liquefaction, or collapse? d. Be located on expansive soil, as defined in Table 18.1 -B of the Uniform Building Code (1994), creating substantial risks to life or property? e. Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems in areas where sewers are not available for the disposal of wastewater? Discussion Would the project: Potentially Significant Less -than- Significant Impact with Mitigation Environmental Checklist Less -than- No ❑ ❑ ® ❑ a. Expose people or structures to potential substantial adverse effects, including the risk of loss, Injury, or death Irnvolving: al. Rupture of known earthquake fault, as delineated on the most recentAlquist- Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. Less - than - Significant Impact. The Alquist - Priolo Act requires the California State Geologist to identify areas in the state that are at risk from surface fault rupture, which are known as Earthquake The Bat Nha Buddhist Meditation Center 3 -33 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -86 ❑ ❑ ® ❑ ❑ ® ❑ ❑ a. Expose people or structures to potential substantial adverse effects, including the risk of loss, Injury, or death Irnvolving: al. Rupture of known earthquake fault, as delineated on the most recentAlquist- Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. Less - than - Significant Impact. The Alquist - Priolo Act requires the California State Geologist to identify areas in the state that are at risk from surface fault rupture, which are known as Earthquake The Bat Nha Buddhist Meditation Center 3 -33 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -86 City of Santa Ana Environmental Checklist Fault Zones. As described in the Soil Report prepared for the proposed project (Appendix B), the project site is not located within a mapped Alquist- Priolo Earthquake Fault Zone, and there are no known surface traces of any active, potentially active, or inactive faults crossing through or extending toward the project site. The nearest fault zone is the Newport Inglewood, which is associated with potentially active faults in the vicinity of Newport Beach and the Los Angeles Basin and is located approximately six miles to the southwest of the proposed project site (California Department of Conservation, Division of Mines and Geology 1998). As a result, the potential for a surface rupture to occur at the project site is low, Therefore, potential impacts related to rupture of a known earthquake fault are less than significant. a2. Strong seisrnicground shaking? Less - than - Significant Impact with Mitigation Incorporated. As discussed in Vial, the proposed project is not located within or adjacent to a fault zone. However, because the proposed project is located within a seismically active region in fairly close proximity to several major active faults, the project site is likely to experience strong ground shaking during the lifespan of the proposed project. The Newport- Inglewood Fault Zone is of most concern to the project site. In addition, the San Andreas and Raymond Faults are also proximate and could affect Santa Ana (City of Santa Ana 1982). Earthquake intensities experienced at the project site would vary depending upon the earthquake's magnitudes, distance between the project site and the fault, and the types of materials underlying the project site. According to the Land Use Element of the City's General plan, the greatest potential for earthquake damage is expected to come from a large earthquake along the Newport - Inglewood fault. A magnitude seven earthquake along this fault would be expected to cause significant regional damage. The Soil Report prepared for the project provides site - specific seismic parameters including site coefficients, mapped spectral acceleration values, and maximum earthquake response accelerations to determine that the site is within Seismic Category D criteria per the 2010 California Building Code (CBC). All new construction in the State of California must comply with the seismic design parameters contained in the 2010 CBC seismic requirements. Compliance with the CBC standards in the design and construction of the proposed project would reduce impacts related to ground shaking, Furthermore, the Soil Report provides recommendations that have been developed based on the seismic parameters of the site and the engineering properties of the onsite soils and their anticipated behavior during and after construction. As required in Mitigation Measure GEO -1, the proposed project would comply with all geotechnical recommendations provided in the Soil Report (Appendix B) to minimize seismic damage and reduce seismic ground-shaking impacts. Therefore, potential impacts related to strong seismic ground shaking are less than significant with implementation of Mitigation Measure GEO -1. Mitigation Measure GEO -1: During final design, the applicant's design engineer will ensure that all design criteria and specifications set forth in the Soil Report will be incorporated into the final design, Prior to the issuance of grading or building permits, the City of Santa Ana Planning and Building Agency will verify that such measures have been incorporated on the appropriate engineering plans and documents. At a minimum the recommendations will include the following measures: • Providing a design capable of withstanding seismic hazards related to strong ground motions. The Bat Nha Buddhist Meditation Center 3 -34 lone 2013 Initial Study /Mitigated Negative Declaration IcF 00215.12 31 C -87 City of Santa Ana Environmental Checklist • Establishing earthwork procedures to address soils and subsurface conditions, including liquefaction. • Recommending foundations, soils preparations, and slabs be designed to resist the effects of lateral pressures. a3. Seismic - related ground failure, including liquefaction? Less - than - Significant Impact with Mitigation Incorporated. Soil liquefaction is a phenomenon in which saturated, cohesionless soils layers, located within approximately 50 feet of the ground surface, lose strength due to cyclic pore water pressure generation from seismic shaking or other large cyclic loading. During the loss of stress, the soil acquires "mobility" sufficient to permit both horizontal and vertical movements. Soils that are most susceptible to liquefaction are clean, loose, saturated, and uniformly graded fine- grained sands that lie below the groundwater table within approximately 50 feet below ground surface. The Soil Report identified liquefaction as a potential geological condition of the project site (Appendix B). Also, according to both Exhibit 5 of the Seismic Safety Element of the City's General Plan and the California Department of Conservation Division of Mines and Geology (CDMG) Seismic Hazards Zone Map for the Newport Beach Quadrangle (California Department of Conservation, Division of Mines and Geology 1998), the project site is located within a liquefaction area where historic occurrence of liquefaction or local geological, geotechnical, and groundwater conditions indicate a potential for- permanent ground displacements. Historical high groundwater elevations below the project site are as shallow as four feet bgs. For preparation of the Soil Report, a 50- foot -deep boring was drilled at the project site to measure for depths to groundwater. Groundwater was encountered at nine feet bgs. The geologic map of the site shows that the project area is located within a broad flat alluvium / clluuvium area, and the Soil Report identifies silty fine sand and silty clay underlying the project site. The project site is mapped by the CDMG as an area of liquefaction hazard. The Soil Report includes a liquefaction analysis that indicates the calculated total and differential settlements due to liquefaction are about 1.55 and 1.0 inches, respectively. The Soil Report also states that to reduce the potential adverse effects due to potential differential settlement due to potential liquefaction, the project shall include a strengthened foundation system with grade beams, and states that a mat foundation and /or caissons can be used for support of the purposed structure. As described above, the proposed project would comply with all CBC requirements and standards related to liquefaction. Additionally, as required in Mitigation Measure GEO.1, the proposed project would comply with all geotechnical recommendations provided in the Soil Report (Appendix B) to minimize potential impacts related to liquefaction. Therefore, potential impacts related to seismic - related ground failure, including liquefaction, are less than significant with implementation of Mitigation Measure GEO -1. a4. Landslides? Less - than - Significant Impact. Landslides and other slope failures are secondary seismic effects that are common during or soon after earthquakes. Areas that are most susceptible to earthquake - induced landslides are steep slopes underlain by loose, weak soils, and areas on or adjacent to existing landslide deposits. As discussed in VLal, the proposed project site is located in a seismically active region subject to strong ground shaking. However, according to the CDMG Seismic Hazards The Bat Nha Buddhist Meditation Center 3 -35 June 2013 Initial Study /Mitigated Negative Declaration ICF W215.12 31 C -88 City of Santa Ana Environmental Checklist Zone Map for the Newport Beach Quadrangle, the project site is not located within or adjacent to an earthquake- induced landslide area. The project site is located in a generally Bat developed urban area that does not contain large slopes, and development of the project would not generate large slopes on the project site. As a result, implementation of the proposed project would not expose people or structures to substantial adverse effects involving landslides, Impacts are considered less than significant. b. Result insubstantial soil erosion or the loss of topsoil? Less - than - Significant Impact. Construction of the proposed project would include ground surface disruption of the project site that could result in soil erosion. Construction activities would expose areas of soil to wind and water erosion. During a storm event, exposed soils could he transported off the site as runoff. Because the project would disturb over one acre of land, the proposed project is subject to the SWRCB General Construction Permit. Compliance with the General Construction Permit requires the development and implementation of a Storm Water Pollution Prevention Plan (SWPPP). The SWPPP requires identification of sources of sediment and a list of BMPs to provide sediment and erosion control. The SWPPP is required to meet or exceed measures required by the Construction General Permit. In addition, the proposed project is required to prepare a NPDES post - construction stormwater management plan in accordance with the Orange County Drainage Area Management Plan (DAMP) and the City of Santa Ana Local Implementation Plan (LIP). The stormwater management plan must include all applicable post - construction BMPs for this project. In addition to the implementation and maintenance of BMPs, erosion would also be controlled by the grassy swales and landscaping proposed for the project site. All of the site - specific regulations and BMPs will he provided in a Water Quality Management Plan (WQMP) to be implemented for post - construction operations of the project. Compliance with existing state, regional, and local regulations, NPDES permit requirements, and project- specific BMPs identified in the SWPPP, coupled with installation of grassy swales, landscaping and ongoing maintenance and monitoring of construction and subsequent post - construction phase BMPs, would ensue that project impacts with respect to topsoil loss and erosion would be less than significant, c. Be located on a geologic unit or soil that is unstable or that would become unstable as a result of the project and potentially result in an on -site or off -site landslide, lateral spreading, subsidence, liquefaction, or collapse? Less - than - Significant Impact with Mitigation Incorporated. As described in response VI.a3, the project site is located within an area identified as susceptible to liquefaction, and potential differential settlements due to liquefaction are about 1.55 and 1.0 inches, respectively. Subsidence usually occurs as a result of excessive groundwater pumping or oil extraction. The proposed project is not in the vicinity of these activities, and would not require groundwater pumping or oil extraction. Thus, impacts related to subsidence would not occur from implementation of the proposed projects. For lateral spreading or Flow failure to occur, a continuous, laterally unconstrained liquefiable zone must be free to move along gently sloping ground toward an unconfined area. The project site is relatively Bat and not adjacent to a water body. Accordingly, the potential for lateral spreading is The Bat Nha Buddhist Meditation Center 3 -36 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -89 City of Santa Ana Environmental Checklist deemed low. The proposed project would comply with all CBC requirements. Additionally, as required in Mitigation Measure GEO -1, the proposed project would comply with all geotechnical recommendations provided in the Soil Report (Appendix B) to minimize potential impacts related to soils and geology. Therefore, potential impacts related to unstable soils are less than significant with implementation of Mitigation Measure GEO -1. d. Be located on expansive soil, as defined in Table 18 -1 -B of the Uniform Building Code (1994), creating substantial risks to life or property? Less- than - Significant Impact- Expansive soils are also defined in Section 1803 of the 2010 CBC, and include fine- grained soils (generally high plasticity clays) that can undergo a significant increase in volume with an increase in water content and a significant decrease in volume with a decrease in water content. Changes in the water content of an expansive soil can result in severe distress to structures constructed upon the soil. The near surface soils at the project site are generally silty fine sand and silty clay. Based on the Soil Report prepared for the proposed project, the near surface soils have low expansion potential. As a result, the proposed project would not be located on expansive soils creating substantial risks to life or property. Impacts are considered to be less than significant. e. Have soils Incapable of adequately supporting the use afseptic tanks or alternative wastewater disposal systems In areas where sewers are not available for the disposal of wastewater? No Impact. The project site is located within an urban setting where sewer service is available. The project site is currently connected to the sewer system and the proposed building would also connect to and be serviced by the City's existing sewer system. Accordingly, the proposed project would not require septic tanks or alternative wastewater disposal systems. Therefore, no impacts related to septic tanks or alternative wastewater disposal systems would occur. The Bat Nha Buddhist Medilation Center 3-37 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -90 City of Santa Ana Environmental Checklist Discussion Environmental Setting State Greenhouse Gas Emissions Worldwide, California is the 121h largest emitter of carbon dioxide (CO2) and is responsible for approximately 2% of the world's CO2 emissions (CEC 2006). Transportation is responsible for 41% of the state's GHG emissions, followed by the industrial sector (23 %), electricity generation (20 %), agriculture and forestry (8%), and other sources (8%) (CEC 2006). Emissions of CO2 and nitrous oxide (N20) are byproducts of fossil fuel combustion, among other sources. Methane (CH4), a highly potent GHG, results From off - gassing associated with agricultural practices and landfills, among other sources. Sinks of CO2 include uptake by vegetation and dissolution into the ocean. California GHG emissions in 2006 totaled approximately 479.8 million metric tons (MMT) in carbon dioxide equivalents (CO2e). Greenhouse gas emissions other than CO2 are commonly converted into carbon dioxide equivalents, which takes into account the differing global warming potential (GWP) of different gases. For example, the Intergovernmental Panel on Climate Change ([PCC) finds that N20 has a GWP of 310 and methane has a GWP of 21. Thus, emissions of 1 tort of N20 and 1 ton of CH4are represented as the emissions of 310 tons and 21 tons of CO2e, respectively. This method allows for the summation of different greenhouse gas emissions into a single total. Climate change could impact the natural environment in California in the following ways (among others): Rising sea levels along the California coastline, particularly in San Francisco and the San Joaquin Delta due to ocean expansion. • Extreme -heat conditions, such as heat waves and very high temperatures, which could last longer and become more frequent. • An increase its heat- related human deaths, infectious diseases, and a higher risk of respiratory problems caused by deteriorating air quality. The Bat Nha Buddhist Meditation Center 3-38 lune 2873 Initial Study /Mitigated Negative Declaration 1CF 00215.12 31 C -91 Less -than- Significant Potentially Impact with Less -than- Significant Mitigation Significant No V11. Greenhouse Gas Emissions Impact Incorporated Impact Impact Would the project: a. Generate greenhouse gas emissions, either directly or ❑ ® ❑ ❑ indirectly, that may have a significant impact on the environment? b. Conflict with an applicable plan, policy, or regulation ❑ ❑ ® ❑ adopted for the purpose of reducing the emissions of greenhouse gases? Discussion Environmental Setting State Greenhouse Gas Emissions Worldwide, California is the 121h largest emitter of carbon dioxide (CO2) and is responsible for approximately 2% of the world's CO2 emissions (CEC 2006). Transportation is responsible for 41% of the state's GHG emissions, followed by the industrial sector (23 %), electricity generation (20 %), agriculture and forestry (8%), and other sources (8%) (CEC 2006). Emissions of CO2 and nitrous oxide (N20) are byproducts of fossil fuel combustion, among other sources. Methane (CH4), a highly potent GHG, results From off - gassing associated with agricultural practices and landfills, among other sources. Sinks of CO2 include uptake by vegetation and dissolution into the ocean. California GHG emissions in 2006 totaled approximately 479.8 million metric tons (MMT) in carbon dioxide equivalents (CO2e). Greenhouse gas emissions other than CO2 are commonly converted into carbon dioxide equivalents, which takes into account the differing global warming potential (GWP) of different gases. For example, the Intergovernmental Panel on Climate Change ([PCC) finds that N20 has a GWP of 310 and methane has a GWP of 21. Thus, emissions of 1 tort of N20 and 1 ton of CH4are represented as the emissions of 310 tons and 21 tons of CO2e, respectively. This method allows for the summation of different greenhouse gas emissions into a single total. Climate change could impact the natural environment in California in the following ways (among others): Rising sea levels along the California coastline, particularly in San Francisco and the San Joaquin Delta due to ocean expansion. • Extreme -heat conditions, such as heat waves and very high temperatures, which could last longer and become more frequent. • An increase its heat- related human deaths, infectious diseases, and a higher risk of respiratory problems caused by deteriorating air quality. The Bat Nha Buddhist Meditation Center 3-38 lune 2873 Initial Study /Mitigated Negative Declaration 1CF 00215.12 31 C -91 City of Santa Ana Environmental Checklist • Reduced snow pack and stream flow in the Sierra Nevada mountains, affecting winter recreation and water supplies. • Potential increase in the severity of winter storms, affecting peak stream flows and Flooding. • Changes in growing season conditions that could affect California agriculture, causing variations in crop quality and yield. • Changes in distribution of plaint and wildlife species due to changes in temperature, competition from colonizing species, changes in hydrologic cycles, changes in sea levels, and other climate - related effects. These changes in California's climate and ecosystems are occurring at a time when California's population is expected to increase from 34 million to 59 million by the year 2040 (CEC 2006). As such, the number of people potentially affected by climate change as well as the amount of anthropogenic GHG emissions expected under a "business as usual' (BAU) scenario is expected to increase. Similar changes as those noted above for California would also occur in other parts of the world with regional variations in resources affected and vulnerability to adverse effects. GHG emissions in California are attributable to human activities associated with industrial /manufacturing, utilities, transportation, residential, and agricultural sectors (CEC 2006) as well as natural processes. Regulatory Setting Federal Climate Change Policy Twelve U.S. states and cities (including California), in conjunction with several environmental organizations, sued to force the EPA to regulate GHGs as a pollutant pursuant to the federal CAA (Massachusetts vs. Environmental Protection Agency et al. [U.S. Supreme Court No. 05 -1120; argued November 29, 2006; decided April 2, 2007]). The court ruled that the plaintiffs had standing to sue, that GHGs fit within the CAA's definition of a pollutant, and that the EPA's reasons for not regulating GHGs were insufficiently grounded in the CAA. Despite the Supreme Court ruling, there are no promulgated federal regulations to date limiting GHG emissions. On December 7, 2009, the EPA Administrator signed two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act: • Endangerment Finding: The Administrator Finds that the current and projected concentrations of the six key well -mixed GHGs - -CO2, CH4, N20, HFCs, PFCs, and SF6 - -in the atmosphere threaten the public health and welfare of current and future generations. • Cause or Contribute Finding: The Administrator finds that the combined emissions of these well - mixed GHGs from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare. Although these findings did not themselves impose any requirements on industry or other entities, this action was a prerequisite to finalizing the EPA's Proposed Greenhouse Gas Emission Standards /or Light -Duty Vehicles, which was published on September 15, 2009.3 On May 7, 2010, the final Light - Duty Vehicle Greenhouse Gas Emissions Standards and Corporate Average Fuel Economy Standards was published in the Federal Register. 3 ht tr,// wwiv. epa, guv /cliniateclianEe/`eiidanffernient litini The Bat Nha Buddhist Meditation Center 3-39 June 2013 Initial Study /Mitigated Negative Declaration icF 00215.12 31 C -92 City of Santa Ana California Climate Change Policy Environmental Checklist On June 1, 2005, Governor Arnold Schwarzenegger signed Executive Order S -3 -05, the goal of which is to reduce California's GHG emissions to (1) 2000 levels by 2010, (2) 1990 levels by 2020, and (3) 80% below 1990 levels by 2050. In 2006, this goal was further reinforced with the passage of Assembly Bill (AB) 32, the Global Warming Solutions Act of 2006. AB 32 sets the same overall GHG emissions reduction goals while further mandating that ARB create a plan, which includes market mechanisms, and implement rules to achieve "real, quantifiable, cost - effective reductions of greenhouse gases." In response to the state's efforts to reduce GHG emissions, the Secretary of the California Environmental Protection Agency (Cal /EPA) created the Climate Action Team (CAT), which, in March 2006, published the first Climate Action Team Report to Governor Schwarzenegger and the Legislature (the "2006 CAT Report "). The 2006 CAT Report identifies a recommended list of strategies that the state could pursue to reduce climate change GHG emissions. These are strategies that could be implemented by various state agencies to ensure that the Governor's targets are met and can be met with existing authority of the state agencies. Executive Order S -20 -06 further directs state agencies to begin implementing AB 32, including the recommendations made by the state's Climate Action Team. In consultation with ARB and the California Public Utilities Commission (CPUC), the California Energy Commission (CEC) established a GHG emission performance standard for local, public - owned electric utilities (pursuant to Senate Bill [SB] 1368). This standard limits the rate of GHG emissions to a level that is no higher than the rate of emissions of GHGs for combined -cycle natural gas base load generation. In October 2007, Governor Schwarzenegger signed SB 97, which required the Governor's Office of Planning and Research (OPR) to prepare CEQA guidelines for the mitigation of GHG emissions. OPR prepared the proposed revisions to the CEQA Guidelines, which were adopted by the Natural Resources Agency on December 31, 2009, and became effective on March 18, 2010, The latest text from Appendix G of the CEQA Guidelines is included above in the Environmental Checklist of this IS /MND. OPR and the Natural Resources Agency are required to periodically review the guidelines to incorporate new information or criteria adopted by the ARB pursuant to AB 32. South Coast Air Quality Management District To provide guidance to local lead agencies on determining significance for GHG emissions in their CEQA documents, the SCAQMD staff is convening an ongoing GHG CEQA Significance Threshold Working Group. Members of the working group include government agencies implementing CEQA and representatives from various stakeholder groups that provide input to the SCAQMD staff on developing GHG CEQA significance thresholds. On December 5, 2008, the SCAQMD Governing Board adopted the staff proposal for an interim GHG significance threshold of 10,000 metric tons peryear for industrial permitting projects where the SCAQMD is lead agency. The board letter, resolution, interim GHG significance threshold, draft guidance document, and attachments can be found under the Board Agenda Item 31 on the December 5, 2008, Governing Board meeting agenda. No other quantitative thresholds have been developed by SCAQMD that would apply to the proposed project. The Bat Nha Buddhist Meditation Center 3-40 June 2013 Initial Study /Mitigated Negative Declaration ICF 0Di15.12 31 C -93 City of Santa Ana Methodology Environmental Checklist Section 15064.4 of the State CEQA Guidelines establishes a two -step process for the determination of significance of greenhouse gas emissions. First, it requires lead agencies to calculate or estimate the overall magnitude of a project's greenhouse gas emissions. Second, once the magnitude of emissions has been estimated, it must analyze those emissions using applicable factors (i.e., does the project increase at- decrease emissions; do project emissions exceed an applicable threshold; does the project comply with applicable regulations or an applicable plan). Project - related GHG emissions were estimated using the CalEEMod software program, which calculates COz, CH4, and N20 emissions and presents these emissions in terms of COze. Following the methodology prescribed by the SCAQMD CEQA Significance Threshold Working Group, project emissions calculated include direct and indirect emissions during short -term construction and long -term project operations. Construction emissions were amortized over the life of the project, defined as 30 years, and added to the operational emissions to obtain total annual GHG emissions. Thresholds of Significance CEQA Guidelines do not provide numeric or qualitative thresholds of significance for GHG. However, All 32 requires that greenhouse gases emitted in California be reduced to 199O levels by the year 2020 and 80% below 199O levels by 2050. The 2020 reduction target equates to a decrease of approximately 28.5% below the BAU GHG emissions. Business -as -usual is defined as the emissions that would be expected to occur in the absence of any GHG reduction measures. The OPR Technical Advisory on CEQA and Climate Change suggests that in absence of regulatory guidance or standards, lead agencies such as the City of Santa Ana must undertake a project -by- project analysis that is consistent with available guidance and current CEQA practice to ascertain project impacts under CEQA. As such, for the determination of whether or not the project will generate GHG emissions, either directly or indirectly, that may have a significant effect on the environment, the overall AB 32 target reduction goal of 28.5% below BAU at year 2020 threshold will be used. Impacts and Mitigation Measures Would the Project. a. Generate greenhouse gas emissions, either directly or indirectly, that may have asignfIcant impact on the environment? Less - than - Significant Impact with Mitigation Incorporated. Construction of the proposed project would generate GHG emissions through the use of onsite heavy -duty construction equipment and offsite vehicle trips generated from construction workers, as well as haul /delivery trucks that travel to and from the project site. Mobile source emissions would result from the use of construction equipment such as graders, scrapers, bulldozers, wheeled loaders, cranes, etc. Construction of the proposed project would take approximately 22 months to complete. Operation of the proposed project is expected to result in emissions of GHG emissions related to vehicular, trips (i.e., mobile- source emissions) and energy consumption related to building illumination, heating and cooling, and water conveyance and treatment. The Bat Nha Buddhist Meditation Center 3-41 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -94 City of Santa Ana Environmental Checklist The City currently does not have adopted plans or programs explicitly mandating GHG emission reductions, though they do plan to have such a plan /program in place by the summer of 2013. The proposed project would contribute, to some degree, to increased GHG emissions, which have been determined to be a significant contribution to the effects of climate change. As such, the following mitigation measures are prescribed: Mitigation Measures GHG -1: Prior to the issuance of occupancy permits, the City of Santa Ana Building Safety Division will require the property owners to ensure that all landscaping equipment used to maintain the project site will be 100% electric. GHG -2: Prior to the issuance of building permits, the City of Santa Ana Building Safety Division will ensure that the proposed project incorporates energy conservation measures from Title 24's 2008 Building Energy Efficiency Standards into the design of the proposed project that exceed mandatory requirements, and may include, but will not be limited to, the following: • Building form and orientation will maximize use of natural lighting. • Indoor /outdoor lighting will apply energy efficient technologies. • Insulation and window glazing will minimize heat transfers to regulate internal temperatures. • Building envelope and internal layout will be designed for efficient insulation, heating, and cooling of space. • Hot water systems will incorporate the latest technologies. • Installation of efficient heating, ventilation, and air conditioning (HVAC) units will minimize energy demands. GHG -3: Prior to the issuance of building permits, the City of Santa Ana Building Safety Division will ensure that the proposed project incorporates water conservation measures that may include, but will not be limited to, the following: • Use water- efficient landscaping, including drought tolerant, native, and appropriate climate zone species. • Incorporate efficient irrigation systems, including drip, micromisters, and smart irrigation controls. Reduce potable water demands by installing water - conserving fixtures (low -Bow faucets, toilets, urinals, etc.). Table 3.10 presents an estimate of project - related GHG emissions of CO2, CH4, and N20, expressed in terms of CO2e. As shown therein, the proposed project's annual GHG emissions under BAU conditions are estimated to be 1,336 metric tons CO2e. These estimates reflect emissions from all construction and operation activity. To put this number into perspective, statewide CO2e emissions foryear 2006 were estimated to be 479.8 million metric tons. Implementation of Mitigation Measures GHG-1 through GHG -4, along with state implementation of AB 32 Scoping Measures, would reduce the incremental GHG emissions associated with the proposed project by approximately 30%. Because this level of reduction would exceed the AB 32 target reduction goal of 28.5 %, impacts after mitigation would be less- than - significant. The Bat Nha Buddhist Meditation Center 3-42 June 2013 Initial Study /Mitigated Negative Declaration ICF00215.12 31 C -95 City of Santa Ana Environmental Checklist Table 3 -10. Estimate of Project - Related Greenhouse Gas Emissions Annual CO2e Emissions (metric tons) With Project -level Mitigation and AB 32 Types of Project Emissions Project Emissions Scoping Measures Construction Emissions (30 year amortization) 32 32 Operations Emissions - Mobile 971 682 Operations Emissions - Area Sources <1 <1 Operations Emissions - Energy Sources 190 119 Operations Emissions - Waste Sources 127 127 Operations Emissions - Water Consumption 15 13 Sources Project Emissions Annual Total 1,336 942 Percent Reduction below BAU 30% Source: ICF 2011. CalEEMod outputs and GHG calculation sheets are provided in Appendix A. h. Conflict with an applicable plan, policy or regulation adopted for the purpose of reducing the emissions ofgreenhause gases? No Impact. As described previously, AB 32 identified a 2020 target level for GliG emissions in California of 427 MMT of CO2e, which is approximately 28.5% less than the year 2020 BAU emissions estimate of 596 MMT CO2e. To achieve these GHG reductions there will have to be widespread reductions of GHG emissions across California. Some of those reductions will need to come in the form of changes in vehicle emissions and mileage standards, changes in the sources of electricity, and increases in energy efficiency by existing facilities. The remainder will need to come from requiring new facility development to have lower carbon intensity than BAU conditions. Therefore, this analysis uses a threshold of significance that is in conformance with the state's goals. On December 12, 2008, ARB adopted the AB 32 Scoping Plan, which details specific GHG emission reduction measures that target specific GHG emissions sources. While none of the Scoping Plan measures are directly applicable to the proposed project, nevertheless, project- related GHG emissions would be reduced as a result of several AB 32 Scoping Plan measures. The Scoping Plan considers a range of actions that include direct regulations, alternative compliance mechanisms, monetary and non- monetary incentives, voluntary actions, and market based mechanisms (e.g., cap - and -trade system. Some examples include the following: • Mobile - source GHG emissions reduction measures o Pavley emissions standards (19.8% reduction) o Low carbon fuel standard (7.2% reduction) o Vehicle efficiency measures (2.8% reduction) Energy production related GHG emissions reduction measures o Natural gas transmission and distribution efficiency measures (7.4% reduction) The Sat Nha Buddhist Meditation Center 3-43 June 2013 initial Study /Mitigated Negative Declaration CIF 00215.12 31 C -96 City of Santa Ana Environmental Checklist o Natural gas extraction efficiency measures (1.6% reduction) o Renewables (electricity) portfolio standard (33.0% reduction) Overall, the proposed project would be consistent with the AB 32 goal of reducing state -wide GHG emissions to 1990 levels byyear 2020. Currently no other GHG reduction plan (i.e., SCAG, SCAQMD, County, or City) applies to the proposed project. The proposed project would not conflict with any applicable plan, policy, or regulation of an agency adopted for the purpose of reducing the emissions of greenhouse gases. The Bat Nha Buddhist Meditation Center 3 44 June 2013 Initial Study /Mitigated Negative Declaration la 00215.12 31 C -97 City of Santa Ana Environmental Checklist Less -than- Significant Potentially Impactwith Less -than- Significant Mitigation Significant No VIII. Hazards and Hazardous Materials Impact Incorporated Impact Impact Would the project: a. Create a significant hazard to the public or the ❑ ® ❑ ❑ environment through the routine transport, use, or disposal of hazardous materials? b. Create a significant hazard to the public or the ❑ ® ❑ ❑ environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c. Emit hazardous emissions o• involve handling ❑ ❑ ® ❑ hazardous or acutely hazardous materials, substances, or waste within one - quarter mile of an existing or proposed school? d. Be located on a site that is included on a list of ❑ ❑ ® ❑ hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e. Be located within an airport land use plan area ❑ ❑ ❑ or, where such a plan has not been adopted, be within two miles of a public airport or public use airport, and result in a safety hazard for people residing or working in the project area? E Be located within the vicinity of a private ❑ ❑ ❑ airstrip and result in a safety hazard for people residing or working in the project area? g. Impair implementation of or physically ❑ ❑ ® ❑ interfere with an adopted emergency response plan or emergency evacuation plan? It. Expose people or Structures to a significant ❑ ❑ ❑ risk of loss, injury, or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are Intermixed with wildlands? Discussion Would the project: a. Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials? Less - than - Significant Impact with Mitigation Incorporated. A hazardous material is defined as any material that, due to its quantity, concentration, or physical or chemical characteristics, poses a significant present or potential hazard to hurnan health and safety or to the environment if released into the workplace or environment. Hazardous materials include, but are not limited to, hazardous substances, hazardous wastes, and any material that a business or the local implementing agency The Bat Nha Buddhist Meditation Center 345 June 2013 Initial Study /Mitigated Negative Declaration iCr 0UZ1S.12 31 C -98 City of Santa Ana Environmental Checklist has a reasonable basis for believing would be injurious to the health and safety of persons or harmful to the environment if released into the workplace or the environment. There are multiple state and local laws that regulate the storage, use, and disposal of hazardous materials. The County of Orange Environmental Health Division was designated by the State Secretary for Environmental Protection on January 1, 1997, as the Certified Unified Program Agency (CUPA) for Orange Comity (County of Orange Health Care Agency Environmental Health Services 2011), including the City of Santa Ana. The CUPA is the local administrative agency that coordinates the following six programs regulating hazardous materials and hazardous wastes: Hazardous Waste, Underground Storage Tanks (UST), Aboveground Petroleum Storage Tanks (APST), Hazardous Materials Disclosure (HMD), Business Plan, and California Accidental Release Program (CaIARP). Additionally, the Orange County Code of Ordinances provides regulations for the use and storage of hazardous materials. Section 3 -3 -14 of Chapter 27 requires the Orange County Fire Authority Chemical Classification packet to be completed and approved prior to approval of plans and /or the storage, use, or handling of chemicals on any premise. Currently, the project site contains several existing structures, parking areas, and landscaping for the existing meditation center, which does not regularly utilize hazardous materials (except for typical cleaning agents, paints, etc.). The proposed project would include demolition of the existing structures that were developed between 1927 and 1962. The use of asbestos in many building products was common through the 1970s in building materials such as floor tile, ceiling tile, and roofing materials. Asbestos- containing materials represent a concern when they are subject to damage that results in the release of fibers, such as during demolition activities. Similarly, lead, which is recognized as toxic to human health and the environment, has historically been used in commercial and residential structures; buildings constructed prior to 1978 are presumed to contain lead -based paint unless proven otherwise. Because of the age of the buildings to be demolished and this environmental health concern, Mitigation Measure HAZ -1 has been incorporated to minimize impacts from potential release of hazardous materials in accordance with the California Hazardous Waste Control Law (CA Health and Safety Code, Division 20, Chapter 6.5), the Hazardous Waste Control Regulations (CA Code of Regulations, Title 22, Division 4.5), and SCAQMD requirements. Removal of hazardous materials pursuant to state and local requirements would reduce potential impacts of an asbestos or lead hazardous material release to a less- than - significant level. After demolition, the proposed construction activities would involve the transport, use, and disposal of hazardous materials such as paints, solvents, oils, grease, and caulking. In addition, hazardous materials would be needed for fueling and servicing construction equipment on the site on a temporary basis. These types of materials are commonly used during new building construction and are not acutely hazardous. Furthermore, all storage, handling, use, and disposal of these materials are regulated by Orange Comity regulations, which the project construction activities are required to strictly comply with. As a result, hazardous material impacts related to construction activities would be less than significant. Operation of the new meditation center would use minor amounts of non -acute hazardous materials including solvents, cleaning agents, paints, pesticides, batteries, and aerosol cans. Although the project would utilize common types of hazardous materials, normal routine use of these products would not result in a significant hazard to people in the vicinity of the project. Therefore, operation of the proposed project would not result in a significant hazard to the public or to the environment The Bat Nha Buddhist Meditation Center 3-46 June 2013 Initial Study /Mitigated Negative Declaration ICF00215.12 31 C -99 City of Santa Ana Environmental Checklist through the routine transport, use, or disposal of hazardous waste during operation of the proposed project. Impacts would be less than significant with implementation of Mitigation Measure HAZ -1. Mitigation Measure HAZ -1. Prior to receipt of a demolition permit, the applicant will submit proof to the City's Planning and Building Division showing that a certified asbestos and lead inspector has conducted a survey and testing of the existing structures on the project site to identify any asbestos - or lead- containing materials. If identified, the applicant will submit proof that lead -based paint materials and asbestos - containing materials have been removed according to proper abatement procedures. All abatement activities will be in compliance with California Division of Occupational Safety and Health, federal Occupational Safety and Health Administration, and SCAQMD requirements. Only trained and certified lead and asbestos abatement personnel will be allowed to perform abatement activities. All lead and asbestos - containing materials removed from the project site will be hauled to a licensed receiving facility and disposed of under proper manifest, if needed, by a transportation company certified to handle lead and asbestos- containing materials. Following completion of the lead and asbestos abatement, a report documenting the abatement procedures used, the volume of asbestos - containing materials removed, and where the material was moved to will be provided to the City. The report will also include transportation and disposal manifests of- dump tickets. b. Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions Involving the release of hazardous materials into the environment? Less- than - Significant Impact with Mitigation Incorporated. As discussed in Vlll.a, the existing structures on the project site were developed during the time when asbestos and lead were common in general building materials. As a result and to reduce potential impacts on asbestos and lead containing materials to a less- than - significant level, Mitigation Measure HAZ -1 has been incorporated which requires the site structures to be surveyed for asbestos and lead containing materials and requires removal of any identified hazardous material prior to demolition. Project construction activities would involve a limited use of hazardous materials. Equipment that would be used in construction of the proposed project has the potential to release oils, greases, solvents, and other finishing materials through accidental spills. However, the consequences of construction- related spills are not substantial because the volume of hazardous materials held within any single piece of construction equipment is limited. Construction - related spills of hazardous materials are not uncommon, but the enforcement of construction and demolition standards, including BMPs by appropriate local and state agencies, would minimize the potential for an accidental release of petroleum products and /or hazardous materials or explosions during construction. Federal, state, and local regulations would be followed by the construction contractor to reduce the effects of potential hazardous materials spills. Operation of the proposed project would also use and store a limited amount of hazardous materials including solvents, cleaning agents, paints, and pesticides. Large volumes of these hazardous materials would not be stored on site. Any spill or release of the hazardous materials stored or routinely used in operation of the project is not anticipated to have the volume to result in a significant hazard to residents or workers in the vicinity of the project. Further, because the project would comply with federal, state, and local hazardous waste regulations and implement Mitigation Measure HAZ -1, the proposed project would not create a significant hazard to the public or the The Bat Nha Buddhist Meditation Center 3-47 June 2013 Initial Study /Mltigated Negative Declaration ICF 00215.12 31 C -100 City of Santa Ana Environmental Checklist environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment. c. Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? Less - than - Significant Impact. The proposed project involves the construction and operation of a meditation center that is located within 0.25 mile of a school site. A child care facility is located adjacent to the south of the site. As described in Vlll.b, construction and operation of the proposed project would involve the use of small amounts of hazardous materials subject to federal, state, and local regulations. No element of the proposed project would involve acutely hazardous materials, substances, or wastes. In addition, emissions from construction and operation of the project were evaluated in the air quality analysis presented in Section 111. It was determined that the maximum emissions from the project would not cause or contribute to an exceedance of the most stringent applicable federal or state ambient air quality standards. Therefore, implementation of the proposed project would not emit hazardous emissions or handle hazardous materials within 0.25 mile of a school. d. Be located on a site that is included on a list of hazardous materials sites that compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? Less- than - Significant Impact. Pursuant to a database check with both the Geotracker (State Water Resources Control Board) and Envirostor (State Department of Toxic Substances Control) databases, the project site is not included on a list of hazardous material sites. There is one reported open leaking underground storage tank (LUST) cleanup site within a 0.5 -mile radius of the project site (DTSC 2012). This site is a gas station located at 2730 West McFadden Avenue that is undergoing remediation and groundwater monitoring. The Geotracker database also states that the risk evaluation done during the remediation activities indicates that residual impacts do not pose unacceptable risk to adjacent residents. Therefore, this LUST would not create a hazard to the project site due to its location, which is approximately 0.38 mile away. Furthermore, the project construction and operation activities would not occur on or within the immediate vicinity of the existing LUST site, and the proposed project would not impact or be impacted by the release of hazardous materials from the site. Therefore, impacts related to hazardous materials on site that would create a significant hazard to the public or the environment are less than significant. e. For a project within an airport land use plan or, where such a plan has not been adopted, within 2 miles of a public airport or public use airport, would the project result in a safety hazard for people residing or, working In the project area? No Impact. The project site is not within 2 miles of any public or private airport facility. John Wayne Airport is located about 6 miles southeast of the project site, and the Fullerton Municipal Airport is located approximately 13 miles to the northwest. The project site is not located within the boundaries of the Airport Environs Land Use Plan (AELUP) for John Wayne Airport or the Fullerton Municipal, which is administered by the Airport Land Use Commission (ALUC). As such, the proposed project would not conflict with the ALUC or any other applicable rules and regulations as they pertain to airports and airport safety, and no impacts would result upon implementation of the proposed project. The Sat Nha Buddhist Meditation Center 3-48 June 2013 Initial Study /Mitigated Negative Declaration ICf 00215.12 31C-101 City of Santa Ana Environmental Checklist f. For, a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or- working in the project area? No Impact. The project site is not located within the vicinity of a private airstrip. As described above under VIlLe, the closest airport facility is John Wayne Airport, which is a public airport and located 6 miles to the southeast of the project site. The project site is located outside of the ALUEP and would not be subject to the rules and regulations as they pertain to this airport. Additionally, because there are no private airstrips within the vicinity of the project, no hazard impacts related to private airstrips would occur with implementation of the proposed project. g. Impair implementation of or plrysicalfy interfere with an adopted emergency response plan or emergency evacuation plan? Less - than- Signifncant Impact. Emergency response and evacuation is the responsibility of the Orange County Fire Authority (OCFA). The City also maintains a Natural Hazards Mitigation Plan (NHMP); however, there are no designated emergency evacuation routes or location- specific goals or policies addressing emergencies. The NHMP identities three primary hazard risk areas, which include earthquakes, flooding, and wind storms. Direct access to the project site for emergency vehicles is provided on the western side of the site along South Sullivan Street, Construction activities would occur within the project site and would not restrict access of emergency vehicles to the project site. After construction of the project, emergency access to the site would remain via South Sullivan Street and two access points to the project site as shown on Figures 2 -5 and 2 -8. Internal access to the project structure is provided by several points on site, including the front entrance rear entrance and entrance from the parking area. The project is required to design and construct internal emergency access and size and location of fire suppression facilities (e.g., sprinklers) to conform to OCFA standards. The OCFA would review the development plans prior to approval to ensure adequate emergency access. Specific internal circulation descriptions, project - related traffic increase, and potential effects to emergency response - related traffic conditions are discussed in Section XVI, "Traffic and Circulation." As described, traffic generated from operation of the project would not result in significant traffic impacts; as such, project - related traffic would not result in delays to emergency vehicles. The proposed project would not block emergency vehicle access to the site or adjacent areas, and the project would not interfere with the adopted NHMP. As a result, implementation of the proposed projectwould not impair or physically interfere with an emergency response and impacts are considered to be less than significant. h. Expose people or structures to a significant risk of loss, Injury, or• death involving wfldlandfires, including where wild/ands are adjacent to urbanized areas or where residences are Intermixed with wildlands? No Impact. The project site is located within an urban developed area and is not located within an identified wildland fire hazard area, as identified by the Orange County Operations Center and the California Department of Forestry and Fire Protection (Orange County Fire Hazard Severity Zones; County of Orange n.d. Figure 20). Implementation of the proposed project would also require adherence to the following chapters of the City's Municipal Code to reduce potential fire hazards: Chapter 8.2 Uniform Building Code, Chapter 8.4 Uniform Mechanical Code, and Chapter 8.5 National Electric Code. Additionally, the project would be in compliance with any further guidelines from the OCFA related to fire prevention and is subject to approval by the City's Planning and Building The Bat Nha Buddhist Meditation Center 3 49 June 2013 Initial Study /Mitigated Negative Declaration 16 00215.12 31 C -102 City of Santa Ana Environmental Checklist Agency. Therefore, the proposed project would not expose people or structures to a significant risk of loss, injury, or death front wildfires. the eat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3 -50 ICE 00215.12 31 C -103 City of Santa Ana Environmental Checklist 1. Expose people or structures to a significant ❑ ❑ ® ❑ risk of loss, injury, m• death involving Flooding, including Flooding as a result of the failure of a levee m• dam? j. Contribute to inundation by seiche, tsunami, ❑ ❑ ❑ EK or mudOow? The Bat Nha Buddhist Meditation Center 3 -51 June 2013 Initial Study /Mitigated Negative Declaration iCF 00215.12 31 C -104 Less -than- Significant Potentially Impact with Less -than- Significant Mitigation Significant No IX. Hydrology and Water Quality Impact Incorporated Impact Impact Would the project: a. Violate any water quality standards or waste ❑ ® ❑ ❑ discharge requirements? b. Substantially deplete groundwater supplies ❑ ❑ ® ❑ or interfere substantially with groundwater recharge, resulting in a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre- existing nearby wells would drop to a level that would not support existing land uses or planned uses for which permits have been granted)? C. Substantially alter the existing drainage ❑ ® ❑ ❑ pattern of the site or area, including through the alteration of the course of a stream of- river, in a manner that would result in substantial erosion or siltation onsite or offsfte? d. Substantially alter the existing drainage ❑ ® ❑ ❑ pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner that would result in flooding onsite or offske? e. Create or contribute runoff water that would ❑ ❑ ® ❑ exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? f. Otherwise substantially degrade water ❑ ® ❑ ❑ quality? g. Place housing within a 100 -year Flood hazard ❑ ❑ ® ❑ area, as mapped on a federal Flood Hazard Boundary m• Flood Insurance Rate Map or other flood hazard delineation map? h. Place within a 100 -year flood hazard area ❑ ❑ ❑ structures that would impede or redirect Flood Flows? 1. Expose people or structures to a significant ❑ ❑ ® ❑ risk of loss, injury, m• death involving Flooding, including Flooding as a result of the failure of a levee m• dam? j. Contribute to inundation by seiche, tsunami, ❑ ❑ ❑ EK or mudOow? The Bat Nha Buddhist Meditation Center 3 -51 June 2013 Initial Study /Mitigated Negative Declaration iCF 00215.12 31 C -104 City of Santa Ana Discussion Existing Condition Environmental Checklist Watersheds are typically areas that drain to a single point or receiving water (any watercourse or wetland into which surface water flows). The project site is located in the Santa Ana River watershed which is underlain by the southwest portion of the Coastal Plain of Orange County Groundwater Basin. Stormwater sheet Flows over the project site into the existing 6 -inch curb and gutter along the east side of Sullivan Street, and does not connect to a storm drain system or discharge directly into a receiving water body. From Sullivan Street stormwater travels south to McFadden Avenue and east into an existing Orange County Flood Control drain that is located near Jerome Park on McFadden Avenue (OCFCD 2008). This regional drain conveys Stormwater that outlets into the Anaheim Bay /Huntington Harbor. Anaheim Bay is included on the State Water Quality Control Board (SWQCB) 3O3(d) of impaired water bodies for pesticides and heavy metals. Huntington Harbor is on the 303 (d) list for pathogens, metals, and pesticides. The Santa Ana RWQCB has adopted a basin plan for its region of responsibility, which includes the City of Santa Ana and the Anaheim Bay. The basin plan contains water quality objectives, which includes implementation of numeric Total Maximum Daily Loads (TMDLS) in 2019 for the constituents that impair a water body. The TMDL is the total amount of a constituent that can be discharged while meeting water, quality objectives and protecting beneficial uses. Because the Anaheim Bay is impaired, and project - specific water quality plans (such as WQMP and SWPPP) would be requited by the Santa Ana RWQCB to meet the TMDL requirements of this water body. Would the project: a. Violate any water quality standards or waste discharge requfrements7 Less - than - Significant Impact with Mitigation Incorporated. The proposed project could potentially result in impacts on water quality from both construction and operation, which are discussed separately below. Construction Impacts The potential impacts of construction activities on water quality focus primarily on sediments, turbidity, and pollutants associated with sediments. Construction- related activities that expose and move soils are primarily responsible for sediment releases. The project includes removal of existing concrete, buildings, and vegetation. In addition, site grading, soil preparation, and site trenching will expose soils. These project activities could result in wind and rain erosion of the existing onsite soils and could increase the amount of suspended solids contained in storm Bows due to erosion of exposed soils during construction. Non - sediment potential contaminants that could enter water runoff from the construction site include paints, solvents, metals, oil, gasoline, petrolewn products, concrete - related products, chemicals, and trash. All of these contaminants could contribute to the degradation of water quality. Because the project would disturb over one acre of land, the proposed project is subject to the General Construction Permit. The General Construction Permit, which was adopted by the SWRCB as Water Quality Order 99.08-DWQ on August 19, 1999, is required for soil disturbance activities that would be greater than one acre. Compliance with the General Construction Permit requires the development and implementation of a Storm Water Pollution Prevention Plan (SWPPP), the The Bat Nha Buddhist Meditation Center 3 52 June 2013 Initial Study /Mltigated Negative Declaration ICE 00215.12 31 C -105 City of Santa Ana Environmental Checklist elimination or reduction of non - stormwater discharge off site into storm drainage systems or other water bodies, and the implementation of BMPs (Mitigation Measure HYD -1), The SWPPP requires a description of the project site, identification of sources of sediment and other pollutants that may affect the quality of storm water discharges, a list of BMPs to provide sediment and erosion control, waste handling measures, and non - stormwater management. The SWPPP would be required to meet or exceed measures required by the Construction General Permit. As a result, construction of the proposed project would result in less - than - significant impacts related to water quality standards after implementation of Mitigation Measure HYD -1. Historical high groundwater elevations below the project site are as shallow as four feet bgs as identified in the Soil Report (Appendix B). As described in Chapter 2, "Project Description," the proposed project would require excavation of soils to a depth of 5 feet below the existing grade to complete the building foundation, parking structure, and installation of underground utilities. As a result, it is anticipated that groundwater would be encountered during construction. Upon exposure of groundwater, construction- related contaminants would have a direct path to the groundwater table. However, implementation of the SWPPP (as described above) would prevent runoff, contaminated soils, or construction contaminants from entering excavated areas and impacts with implementation of the SWPPP would be less than significant. Because groundwater would be encountered during construction, dewatering may be required to lower the existing water level to allow construction without excessive water. Dewatered groundwater may contain high levels of total dissolved solids (TDS), salinity, high nitrates, or other contaminants that could be introduced to surface waters during construction. Groundwater and any other non - stormwater dewatering activities could potentially result in a significant impact. The implementation of Mitigation Measure HYD -2 to comply with the Waste Discharge Requirements (WDRs) issued by the RWQCB is required to reduce potential impacts to a less- than - significant level. Therefore, impacts related to water quality that would occur from implementation of the proposed project would be less than significant with incorporation of Mitigation Measures HYD -1 and HYD -2. Mitigation Measure HYD -1: Prior to issuance of grading and building permits, the applicant will prepare and have approved by the City an SWPPP to be implemented during construction, which will include BMPs to prevent discharges of polluted stormwater from construction sites from entering the storm drains or the existing retarding basin. The SWPPP will be prepared as directed in the City's stormwater protection requirements, and may include, but not be limited to, the following measures: • Diversion of offsite runoff away from the construction site. • Revegetation of exposed soil surfaces as soon as feasible following grading activities. • Installation of perimeter straw wattles to prevent offsite transport of sediment, • Protection of drop inlets (filters and sand bags or straw wattles) with sandbag check dams in paved roadways. • Provision of specifications for construction waste handling and disposal. • Training of subcontractors on general site housekeeping. Mitigation Measure HYD -2: Three months prior to any dewatering activities, the applicant will submit a Notice of intent to the RWQCB and obtain the Santa Ana RWQCB De Minimus Permit for General Waste Discharge Requirements for Discharges to Surface Waters that Pose an Insignificant The Bat Nha Buddhist Meditation Center 3 -53 June 2013 Initial Study /Mitigated Negative Declaration ICP 00315.12 31 C -106 City of Santa Ana Environmental Checklist Threat to Water Quality (Order Number RB- 2009 -0003 NPDES Number CAG998001; Santa Ana RWQCB 2003). If dewatering activities would discharge into the local or regional sanitary sewer system, a permit from the OCSD will be required prior to discharge activities. Operational Impacts The Orange County Waste Discharge Requirements for operational urban runoff (referred to as "MS4 permits" issued by the Santa Ana and San Diego Regional Water Quality Control Boards (Order No. R8- 2009.0030 and R8. 2010.0062, respectively) require the County of Orange and the City as a copermittee to mandate a Water Quality Management Plan (WQMP) for all new development and significant redevelopment projects. As described above, the City is a copermittee under the Orange County NPDES Permit for the Santa Ana Region. In addition, the DAMP and the LIP are enforced by the City of Santa Ana's Water Pollution Regulations (Section 18, Article 4 of the City's Municipal Code). The DAMP establishes a baseline set of BMPs focusing on improving water quality for receiving waters in Orange County. Under the DAMP, the proposed project is considered a priority project because the project will replace more than 5,000 square feet of impervious surface and more than 50% of the impervious surface on the site. As a priority project, the project applicant would be required to prepare a Water Quality Management Plan (WQMP) and incorporate all source - control BMPs. Using the LIP as a guide, the applicant has prepared a WQMP for the proposed project. The WQMP targets control of pollutants in runoff typically produced by the proposed project's land use (e.g., sediment, nutrients, trash and debris, oxygen- demanding substances, oil and grease, bacteria, and pesticides) to reduce impacts on water quality during project operation. As of August 17, 2011, all WQMPs must conform to the requirements outlined within the 2011 Model WQMP established by the Santa Ana RWQCB. As required by existing regional regulations being implemented by the City, the proposed project would comply with all BMPs and design specifications required in the WQMP to minimize runoff and erosion impacts that could result in a violation of water quality standards or waste discharge requirements. The project includes long grassy swales along the northern and southern project boundaries to provide filtration by biotreatment BMPs per the LIP to reduce and filter stormwater runoff. The swales are designed to accommodate the site drainage and will have a two -foot bottom width and a 3:1 side slope within a 4- Foot -wide area adjacent to the project perimeter wall. The stornwater runoff that is captured by the driveway ramps or parking garage area will be intercepted by garage drain inlets and filtered prior to pumping it to the sanitary sewer. In addition, the rear parking area stormwater will be intercepted by drain inlets and filtered before outlet by three -inch drainage pipe to Sullivan Street. As a result of compliance with existing regulations and implementation of the BMPs described, operational impacts related to the violation of water quality standards or waste discharge requirements would be less than significant. b. Substantially deplete groundwater supplies or, Interfere substantially with groundwater recharge, resulting Ina net deficit in aquifer volume or• a lower ft of the local groundwater table level (e.g., the production rate of pre - existing nearby wells would drop to a level that would riot support exisdgq land uses or planned uses for which permits have been granted)? Less - than - Significant Impact. The City of Santa Ana is a member agency of the Orange County Water District (OCWD), which provides the City of Santa Ana with approximately 62% of its water front the Orange County Groundwater Basin. The remaining 38% of the City's water demand is The Bat Nha Buddhist Meditation Center 3-S4 June 2013 Initial Study /Mitigated Negative Declaration ICE 00215.12 31 C -107 City of Santa Ana Environmental Checklist imported from Northern California and the Colorado River by the Metropolitan Water District of Southern California (Metropolitan). Water recharge in Orange County occurs from the Santa Ana River, recycled water, and imported water. The OCWD recharge basins are located solely in the cities of Anaheim and Orange (OCWD 2012). The OCWD maintains 30 recharge facilities with a combined total storage volume of about 26,000 acre -feet and 1,067 acres of wetted areas, none of which are located near the proposed project site (OCWD 2009). The project site is currently covered with 60% impervious surfaces. Any storm Flows on site drain to the street, and the site is not a source for groundwater recharge. The project would redevelop the site and increase impervious surfaces to 91.7 %. However, because the site does not contain recharge facilities, the project would not interfere with groundwater recharge. The projected water demand associated with the proposed project is estimated at approximately 3,056 gallons per day. This volume of water use by the proposed project will not result in substantial depletion of water resources from the Orange County Groundwater Basin (see Utilities and Service Systems for an expanded discussion on water). Therefore, although the proposed project would involve dewatering activities, it world not result in the substantial depletion of groundwater supplies or substantially interfere with groundwater recharge such that there would be net deficit in aquifer volume or lowering of the groundwater table. Impacts related to lowering the groundwater table and groundwater recharge are less than significant. c. Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, In a manner that would result in substantial erosion or siltation on site or off site? Less - than - Significant Impact with Mitigation Incorporated. The proposed project would result in an increase in the amount of impervious surfaces on site by approximately 20,160 square feet. To capture and retain stonmwater on site, the project includes grassy swales and an onsite stormwater drainage system that will control flows, and not substantially alter the existing drainage pattern of the project site. The swales are designed to accommodate the site drainage and will have a two -foot bottom width and a 3:1 side slope within a four- foot -wide area adjacent to the project perimeter wall. In addition to the swales, runoff that is captured by the driveway ramps or parking garage will be intercepted by drain inlets and pumped into the sanitary sewer. This onsite infrastructure would not result in any increase in offsite project flows, and would not result in alteration of the existing drainage pattern. Further, implementation of the grassy swales would reduce offsite erosion or siltation. Thus, impacts on offsite drainage and erosion during project operations would be less than significant. The project site is not within the vicinity of a stream or river that would be affected by the proposed project. Current drainage patterns consist of surface flow across the site and into the curb /gutter along Sullivan Street, which directs stormwater into a regional drain on McFadden Avenue to the southeast of the project site. As a result, the project would not change the existing offsite drainage patterns or alter the course of a stream or river. As discussed above under IX.a, Mitigation Measure HYD -1 would ensure that an NPDES General Construction permit and an SWPPP would be obtained to address sediment control and Flooding during construction activities. As a result of compliance with existing regional and local regulations, impacts are related to changes in the drainage pattern of, erosion /siltation from the site and are less than significant with incorporation of Mitigation Measure HYD -1. The Bat Nha Buddhist Meditation Center 3 -55 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -108 City of Santa Ana Environmental Checklist d. Substantially alter the existing drainage pattern of the site or area, Including through the alteration of the course of a stream or river, or substantially Increase the rate or amount of surface runoff in a manner that would result in flooding on site or off site? Less - than - Significant Impact with Mitigation Incorporated. Refer to IX.c. Development of the proposed project would not impact a river course or flow patterns. Existing Bows from the project site enter the street and then a regional stormdrain, as described in IX.c. The overall drainage pattern of the site would not be substantially altered. The planned operational stormwater drainage for a majority of the project site will direct surface flow to drain into grassy swales that are designed to accommodate the site and will retain stormwater that will be filtered into the ground. Stormwater not captured by the proposed landscaping or grassy swales will either be intercepted by drain inlets in the parking garage and pumped to the sanitary sewer, or will flow to the existing curb and gutter on Sullivan Sheet. The project does not include changes to the existing offsite drainage patterns. Offsite stormwater flows from the proposed project would be conveyed in the same manner as existing conditions, and the project would not substantially alter the existing drainage pattern of the site. As a result, stormwater flows from the project site would not result in flooding on or off site. As discussed in IX.a, Mitigation Measure HYD -1 would ensure that General Construction Permit and a SWPPP containing BMPs and a WQMP would be obtained, which would address flooding issues for- construction and post - construction phases. As a result, the proposed project would not alter the existing drainage pattern or increase runoff in a manner that would result in flooding. Therefore, impacts are less than significant with incorporation of Mitigation Measure HYD -1. e. Create of, contribute runoff water that would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? Less - than - Significant Impact. Refer to IX.a and IX.c. As described above, the proposed project would not alter the existing offsite drainage pattern or substantially change the amount of stormwater that would sheet flow offsite. The project includes development of vegetative swales on the northern and southern site boundaries that will catch and retain stormwater from a large portion of the project's impervious surfaces, as provided in the drainage study (Appendix C). With implementation of the proposed grassy swales and landscaping, redevelopment of the site would not generate an increase in runoff water that would exceed the capacity of the existing or planned stormwater drainage system. As described in Section XVII, "Utilities," the site is located within an urban and fully developed area with curb and gutter drainage that directs flows to the existing regional stormwater drain in Mcpadden Avenue that has historically been serving the project site and vicinity. The project will not include changes to the existing offsite drainage system or pattern. Therefore, the project would result in less- than - significant impacts related to the capacity of existing and planned stormwater drainage systems. f Otherwise substantially degrade water quality? Less - than- Signifcant Impact with Mitigation Incorporated. As described in IX.a through IX.e, the proposed project would result in less- than - significant short -term construction or long -term operational impacts on water quality. Construction impacts would be reduced through the implementation of BMPs identified in Mitigation Measure HYD- I. Operational impacts would be reduced by implementation of the project WQMP, as regulated by the Orange County NPDES Permit The Bat Nha Buddhist Meditation Center 3 -56 June 2013 Initial Study /Mitigated Negative Declaration ICE 00215.12 31 C -109 City of Santa Ana Environmental Checklist for the Santa Ana Regime. Hence, Implementation of the project in compliance with existing regulations would result in less -than- significant impacts related to water quality with implementation of Mitigation Measure HYD -1. g. Place housing within a 100 yearflood hazard area, as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? Less - than - Significant Impact. The project site is not located within any type of Flood zone (including a 100 -year flood hazard area) per Flood Insurance Rate Map No, 06059CO257j, December 3, 2009. Therefore, the project does not place housing within a 100 -year flood hazard area, and no impacts would occur. h. Place within a 100 year•flood hazard area structures that would Impede or redirectflood flows? No Impact. As discussed in 11g, the project site is not located within a 100 -year flood hazard area as mapped on the Flood Insurance Rate Map for the area. Further, the proposed religious development is located within a developed urban area and would not be located in an area that would impede of- redirect flood flows. No impacts related to 100 -year flood hazard areas would occur with implementation of the proposed project. f. Expose people or• structures to a sfgniffcant risk of loss, injury, or death involving flooding, looding, including flooding as a result of the failure of a levee or darn? Less - than - Significant Impact. As described previously, the proposed project is not located within a flood zone. However, it is located 0.5 mile east of the Santa Ana River, which (like large portions of Santa Ana) is mapped (in Exhibit 4 of the Public Safety Element of the City's General Plan) as within the inundation zone of a significant failure of the Prado Dam that is located approximately 19 miles upstream. Flood waters from the dam could travel down the Santa Ana River toward the Pacific Ocean. in the event of a large -scale failure of the Prado Dam, flood waters would take approximately 6 hours to travel the distance to the project vicinity, approximately 7.5 hours for the flood waters to peak at an elevation of 96 NAVD, which is approximately four feet over the existing Santa Ana River bank height in the project vicinity, which is 0.5 mile to the east (CCCD 2011). Implementation of the proposed project will redevelop the existing uses on the project site. The project area has no history of dam inundation. Thus, dam inundation at the project site would have a very limited potential of occurrence. Should a failure of the Prado Dam occur, the appropriate emergency responders would notify downstream areas that could be inundated. Because the project site is located approximately 19 miles from Prado Dam and flood waters would take approximately six hours to the project area, the City's existing emergency response system would reduce impacts in the unlikely event of a Prado Dam failure. As a result, the proposed project would not substantially expose people or structures to a significant risk of loss, injury, or death involving flooding as a result of the failure of a levee or dam. J. Contribute to imtndatlon by selche, tsunami, or mudflow? No Impact. The project site is located over 10 miles away from the Pacific Ocean, and is generally considered too far away to be subject to a tsunami. Additionally, the County of Orange Emergency Operations Plan map of inundation zones along the coastline shows that the project site is not located within an area anticipated to he at risk of a tsunami (County of Orange 2005). Therefore, the project would not result in impacts related to potential tsunami inundation. The Bat Nha Buddhist Meditation Center 3 57 June 2013 Initial Study /Mitigated Negative Declaration ICr 00215.12 31C-110 City of Santa Ana Environmental Checklist The closest enclosed body of water that could result in an earthquake- induced seiche to the site is the Prado Dam located 19 miles upstream from the project site. The Santa Ana River Main Stem Project has implemented Rood control improvements to both the Prado Dam and Lower Santa Ana River, which has reduced the risk of inundation in the event of a seiche in the Prado Dam (Orange County Flood 2011). Therefore, there would be no impact on the project site as a result of overflow caused by a seiche. The project site is located within a fully developed area, and on a site with limited topographical relief. The project site is not located downhill from any slope of sufficient size to cause mudflows. Therefore, the proposed project would not result in impacts associated with mudflows. The Bat Nha Buddhist Meditation Center 3-58 June 2013 Initial Study /Mitigated Negative Declaration ta002IS.17 31C-111 City of Santa Ana Environmental Checklist Less -than- Significant Potentially Impact with Less -than- Significant Mitigation Significant No X. Land Use and Planning Impact Incorporated Impact Impact Would the project: a. Physically divide an established community? ❑ ❑ ❑ h. Conflict with any applicable land use plan, ❑ ❑ ® ❑ policy, or regulation of an agency with jurisdiction over the project (including, but not limited to, a general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c. Conflict with any applicable habitat ❑ ❑ ❑ conservation plan or natural community conservation plan? Discussion Would the project: a. Physically divide an established community? No Impact. The proposed project involves redevelopment of the site for similar religious uses. The 1.46 -acre project site is currently developed with two residential structures that are currently used for religious purposes. The project would demolish the existing structures and develop a new meditation center. The project site is within a developed urban area bounded by other religious uses, residential uses, and a roadway. Thus, the project would not physically divide a community. In addition, the proposed religious is consistent with general plan land uses with approval of a CUP. Therefore, the project would not physically divide an established community, and impacts would not occur. b. Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to, a general plan, specific plan, local coastal program, or• zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? Less - than - Significant Impact. The proposed project would be subject to the City's General Plan and Municipal Code (e.g., Zoning Ordinance) and compliance with the provisions contained within these documents would be required in order to approve the proposed project. The project site has a Low Density Residential (LR -7) General Plan land use designation and a Residential (111) zoning designation. The LR -7 General Plan land use designation allows for a variety of uses, including one single- family residential dwelling unit with up to six bedrooms, private greenhouses and horticulture collections, a temporary real estate office (less than one year), accessory buildings and structures, child care facilities, and adult day care facilities. Land uses with the LR -7 General Plan designation are implemented with the R1 zoning standards, which allow for the development of a church and accessory church buildings with the approval of a CUP. Therefore, the proposed Bat Nita Meditation Center land use is consistent with the City's General Plan land use and zoning designations. The Bat Nha Buddhist Meditation Center 3-59 line 2013 Initial Study /Mitlgated Negative Declaration ICF 00215.17 31 C -112 City of Santa Ana Environmental Checklist The proposed project would exceed the City's height restrictions for the R1 zone and would require the approval of a variance to allow the development of a 35 -foot tall two -story building with towers up to 48 feet in height. As described in Section 41 -233 of the City's Municipal Code, the R1 district restricts the development of structures that exceed 27 feet or two stories in height, as measured from the lowest adjacent grade of the structure to the top of the structure. In addition, the project requests a variance to allow for a decrease in required parking spaces below what is regularly allowed within the R1 zone. As described in Section 41- 1411(a) and 41- 1411(b) of the City's Municipal Code, the R1 district has the following development guidelines related to parking: (a) The minimum off - street parking requirements for churches, chapels and religious meeting halls are as follows: one (1) space for each three (3) fixed seats, plus one (1) space for each thirty-five (35) square feet of Floor area in seating areas without fixed seats. (b) For purposes of this section, "seating areas" shall include congregation seating, prayer and cry rooms, pastor and choir areas, and similar areas. The project would include a total of 115 parking spaces on -site and would share an additional 55 spaces on the weekends with a nearby school. For more information regarding parking, see Section XVI. Transportation /Traffic. As described within Section 1, Aesthetics, the proposed building heights and massing would not result in significant aesthetic impacts on the existing adjacent residential areas. Also, as described in Table 3.11 below, the project would be consistent with General Plan goals and policies that direct development to be harmonious and compatible in scale and character with existing surrounding development. With adoption of the CUP and variance, the project would be consistent with the zoning design standards, and would not conflict with any land use policy or plan adopted for the purpose of avoiding or mitigating an environmental effect. Table 3 -11 outlines the City's General Plan goals, objectives, and policies that are applicable to the proposed project and discusses the project's consistency with each applicable goal, objective, or policy. Several General Plan elements and policies are not included in Table 3.11 because they address issues that are not relevant to the proposed Bat Nha Buddhist Meditation Center project. As described in Table 3 -11, the proposed project is consistent with, or furthers the intent of, all of the applicable City General Plan goals, objectives, and /or policies. Impacts would be less than significant. The Bat Nha Buddhist Meditation Center 3 -60 June 2013 Initial Study /Mitigated Negative Declaration [CF 00115.12 31 C -113 City of Santa Ana Environmental Checklist Table 3 -11. Project Consistency with the Santa Ana General Plan Policy- Minimize changes in Consistency Goal, Objective, or Policy Consistency Discussion Determination Circulation Element proposed project. A General Construction Permit Goal 7 - Utilize alternative The project applicants have established a shared Consistent parking strategies as a parking agreement with the SAUSD that allows for means of managing the Bat Nha Meditation Center to utilize up to 55 transportation demand. parking spots at the Alhambra Lincoln Elementary mitigate the projected school on weekends. The proposed project would increases In pollutant loads be consistent with Goat 7 of the Circulation and flows. Element by utilizing 55 spaces at the Lincoln Elementary School as an alternative parking strategy to manage parking and transportation Policy - Ensure that post- demand. Conservation Element in post - development runoff from the site and the Policy- Minimize changes in The proposed project would be required to obtain Consistent hydrology and pollutant a General Construction Permit to develop the loading; require proposed project. A General Construction Permit incorporation of control, addresses soil disturbance activities greater than including structural and one acre and includes the development and non - structural and Best Implementation of SWPPP, WQMP, and BMPs to Management Practices to provide sediment and erosion control, waste mitigate the projected handling measures, and non stormwater increases In pollutant loads management. As such, the proposed project would and flows. include BMPs to mitigate the projected increases in pollutant loads and flows, consistent with this policy and RWQCB requirements. Policy - Ensure that post- The proposed project would result in an increase Consistent development runoff rates in post - development runoff from the site and the and velocities from a site City's DAMP and LIP would require have no significant adverse implementation of a WQMP to incorporate source - impact on downstream control BMPs. There are no streams or rivers erosion and stream habitat. within or adjacent to the project site and no significant adverse impacts on downstream erosion or stream habitat are anticipated. The project would be consistent with this Dolicv. Land Use Element Goal 3 - Preserve and The proposed project would result in the Consistent improve the character and redevelopment of an existing religious facility on a integrity of neighborhoods. previously developed site that is within a completely developed urban area and located adjacent to two other existing religious facilities (i.e., the New Spirit Baptist Church and the Lao Evangelical Church). The proposed project would result in inBll development that is consistent with the objectives of the Low Residential LR -7 district and the R -1 zoning district with the approval of a CUP. The project is expected to improve the character and integrity of the area, which is consistent with this eoal. The Bat Nha Buddhist Meditation Center 3 -61 Initial Study /Mitigated Negative Declaration 31C -114 ICr 00215.12 City of Santa Ana Environmental Checklist Policy 2.10 - Support new The project would result in the redevelopment of a Consistent development which is Consistency Goal, Objective, or Policy Consistency Discussion Determination Goal 5 - Ensure that the The proposed project is subject to an evaluation of Consistent impacts of development are potential impacts as required by State CEQA law. mitigated. As the Lead Agency, the City of Santa Ana determined that a Mitigated Negative Declaration would be sufficient to ensure that the impacts of development are mitigated to a level below significance. A complete discussion of the project's potential impacts and mitigation measures are included within this MND document, which ensures that the impacts of the proposed development are mitigated through the proposed mitigation measures; therefore, the project would be consistent with this goal. Policy 2.10 - Support new The project would result in the redevelopment of a Consistent development which is parcel that would be similar to the existing harmonious in scale and religious uses on the project site. Existing character with existing development within the area includes religious, development in the area, commercial, office, medical, and single- and multi- family residential uses. The New Spirit Baptist Church, which is a single -story building, is located adjacent to the project site to the north. The Lao Evangelical Church, located south and adjacent to the project site, is also a single -story building. To the east and west of the project site are a variety of single - family residential homes, and a development of two -story multi- family townhomes occurs west of the project site, across South Sullivan Street. Further south along West McFadden Avenue is a strip commercial center with auto- related uses and a variety of local - serving commercial uses. The development of the proposed project will consist of a new two -level meditation center on the 1.46 -acre project site and will be harmonious in scale and character with existing surrounding development. Thus, the proposed project would be consistent with this policy. Policy 3.5 - Encourage new The area and neighborhood surrounding the Consistent development and /or project site includes various buildings that are additions to existing older and do not represent a single unified development that are architectural style or character. Similarly, the compatible in scale, and existing meditation center site consists of various consistent with the buildings developed over a 3S -year period that do architectural style and not architecturally or stylistically identify with character of the each other or with the surrounding neighborhood. neighborhood. Redevelopment of the site would include a unified traditional Vietnamese style that would be integrated with the proposed landscaping and parking improvements, resulting in an improvement over existing conditions. The proposed project would result in the construction of a new two -story meditation center that is The Bat Nha Buddhist Meditation Center 3-62 June 2013 Initial Study /Mitigated Negative oeclaration Icf 00215.11 31C-115 City of Santa Ana Environmental Checklist Consistency Goat, Objective, or Policy Consistency Discussion Determination Policy 5.2 - Protect the community from incompatible land uses. Policy 5.4 - Support land uses which are consistent with the Land Use Plan of the Land Use Element. Policy 5.5 - Encourage development which is compatible with, and supportive of surrounding land uses. compatible and consistent with the other buildings included in the proposed project and would not degrade or detract from the existing style and character of the neighborhood, which is a mixture of uses and one- and two -story buildings constructed throughout the 20th century. The appearance of the building would be visually integrated into the surroundings by using roofs of varying height on the project structures and by providing covered walkways to link different areas on site. Therefore, the proposed project would not be inconsistent with this policy. The project site consists of a previously developed religious facility surrounded by a mix of urban uses, including single- and multi- family residential, religious, and commercial development. The proposed project would be compatible and appropriate at the proposed location with the surrounding community with the approval of a CUP to allow for religious facilities within a residential zone; and approval of a valiance for the increase in building height. In addition, the proposed project will be separated, and thereby protected, from adjacent uses by the existing 6 -foot high wall and the landscaping that would be installed with the project. Thus, the proposed project is consistent with this policy. The proposed project would result in the development of a new meditation center. The project site is designated as Low Density Residential (LR -7) by the Land Use Element of the Santa Ana General Plan and is within a Residential (R1) zoning designation. Under this designation, the proposed religious facility use Is permitted with approval of a CUP. Therefore, the proposed project would support land uses that are consistent with the Land Use Plan of the Land Use Element. Consistent Consistent See consistency determination for Policy 2.10 and Consistent Policy 3.5 of the Land Use Element, above. Policy 5.11 - Encourage The proposed project would result in the Consistent development which does not development of a meditation center, and no generate obnoxious fumes, commercial or industrial land uses are proposed. toxins, or hazardous The proposed project would not generate fames, materials. toxins, or hazardous materials beyond typical school and residential uses. Diving construction, activities would involve the use of typical construction related hazardous materials such as The Oat Nha Buddhist Meditation Center 3 -63 June 2013 Initial Study /Mitigated Negative Declaration ICE 00215.12 31 C -116 City of Santa Ana Environmental Checklist Consistency Goal, Objective, or Policy Consistency Discussion Determination paints, solvents, oils, grease, and caulking. These types of materials are not acutely hazardous, and all storage, handling, use, and disposal of these materials are regulated by federal and state regulations, which construction activities are required to comply with. Therefore, the project would be consistent with this aolicv. Public Safety Element As discussed in Section IX (Hydrology and Water Consistent Policy - Assure minimum The proposed project is located about 2.66 miles Consistent feasible response time to southwest of the SAPD headquarters, which would police calls in all areas of the be the first responder to the site in the event of an City. emergency. As discussed in Section XIV (Public Services), response times are expected to be 6 minutes 20 seconds from SAPD headquarters and the proposed project would not alter or delay existing response times to the project site. As such, minimum feasible response times for police would be assured upon implementation of the proposed project. Policy- Assure minimum The proposed project is located about 0.56 miles Consistent feasible response time to fire fro» OCFA Fire Station #73, which would first calls in all areas of the City. respond to the site in the event of a fire emergency. Strictly enforce safety Additionally, the site is approximately 1.48 miles provisions of building and from Fire Station #77. The OCFA estimates that zoning codes. response times to the site are 7 minutes and 20 seconds or less, which is considered adequate by the fire department. Furthermore, the OCFA requires the proposed project to meet all access, water, and fire protection systems per the CBC and Fire Code. Due to coordination with the OCFA, the existing response times from Stations #73 and #77 to the project site, as well as the enforcement of building code requirements, the project is consistent with this policy. Policy - Assure acceptable As discussed in Section IX (Hydrology and Water Consistent levels of risk to people and Quality), a NPDES General Construction permit and property from flooding and a SWPPP would be required to address sediment from toxic materials. control and Flooding during construction activities. Stormwater Flows are also not expected to be altered substantially and would not result in increased risks to people and property from Flooding. Furthermore, as discussed in Section Vlll (Hazards and Hazardous Materials), Mitigation Measure HAZ -1 would ensure that any asbestos and lead- containing materials would be abated according to the California Hazardous Waste Control Law (CA Health and Safety Code, Division 20, Chapter 6.5), the Hazardous Waste Control Regulations (CA Code of Regulations, Title 22, Division 4,5), and SCAQMD requirements. The Bat Nha Buddhist Meditation Center 3 64 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -117 City of Santa Ana Environmental Checklist Consistency Goal, Objective, or Policy Consistency Discussion Determination Seismic Safety Element Goal 1 - Provide a safe As discussed in Sections VI of this document Consistent environment for all Santa (Geology and Soils), the proposed project will be Ana residents and workers. designed and approved in consistency with the must have tile highest CBC and site - specific design recommendations quality design, materials, within the geotechnical investigation. The approval finishes, and construction. process, by the City of Santa Ana Planning and Policy 1.4 - Development Building Agency includes confirmation that the and other design features proposed development fully complies with the that prevent loitering, CBC. Other potential safety concerns are addressed vandalism, graffiti, and throughout this document, and sufficient visual deprivation, are to be mitigation measures are provided to ensure that included in all projects. no significant impacts occur as a result of the Policy 1.5 - Enhanced proposed project. As such, the project would architectural forms, textures, provide a safe environment for all Santa Ana colors, and materials are residents and workers, and the project would be expected in the design of all consistent with this goal. Objective 1.3 - Minimize Pursuant to requirements of the CBC, the City of Consistent seismic risk in the Santa Ana, and Mitigation Measure GEO -1, the construction of new proposed project would incorporate appropriate structures. design measures to minimize the seismic risk development that is related to seismic movement. The Incorporation of proportional and measures pursuant to these requirements would aesthetically related to its minimize seismic risk. The project would be district settine. consistent with this policy. Urban Desian Element Policy 1.1- New The proposed project would include modern Consistent development and architectural elements that represent the highest redevelopment projects quality design, materials, finishes, and must have tile highest construction, consistent with this policy. See quality design, materials, consistency determination for Policy 2.10 and finishes, and construction. Policy 3.5 of the Land Use Element, above. Policy 1.4 - Development The proposed project would be required to submit Consistent and other design features a Security Plan to the Santa Ana Police Department that prevent loitering, for approval and to comply with the CPTED vandalism, graffiti, and principles to the satisfaction of the police visual deprivation, are to be department. Therefore, the project is consistent included in all projects. with this policy. Policy 1.5 - Enhanced See consistency determination for Policy 2.10 and Consistent architectural forms, textures, Policy 3.5 of the Land Use Element, above. colors, and materials are expected in the design of all projects. Goal 2 - Improve the See consistency determination for Policy 2.10 and Consistent physical appearance of Policy 35 of tine Land Use Element, above. districts through development that is proportional and aesthetically related to its district settine. The Bat Nha Buddhist Meditation Center 3 -65 June 2013 Initial Study /Mitigated Negative Declaration ¢r 00215.12 31 C -118 City of Santa Ana Environmental Checklist Consistency Goal, Objective, or Policy Consistency Discussion Determination Policy 2.2 - New See consistency determination for Policy 2.10 and Consistent development must be Policy 3,5 of the Land Use Element, above. consistent with the scale, bulk, and pattern of existing development. Policy 2.7 - New development must exhibit a functional, comfortable scale in relation to its neighborhood. Policy 2.11- New developments must re- enforce, or help establish district character. Policy 2.12 - Development and subdivision patterns are to be compatible with existing patterns of development in and around districts and neighborhoods, and provide a smooth transition along designated See consistency determination for Policy 2.10 and Policy 3.5 of the Land Use Element, above. See consistency determination for Policy 2.10 and Policy 3.5 of the Land Use Element, above. The proposed project would develop a meditation center surrounded by existing development and has been designed to integrate with the surrounding residential, commercial, and office development. The project would provide for a smooth transition to adjacent development and the surrounding street network, consistent with this policy. Consistent Consistent Consistent c. Conflict with any applicable habitat conservation plan or natural community conservation plan? No Impact. There are no Habitat Conservation Plans (HCPs), Natural Community Conservation Plans (NCCPs), or other conservation plans that apply to the project site. Therefore, there are no impacts related to this issue, and no mitigation is required. The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3 -66 I[i 00115.17 31 C -119 City of Santa Ana Environmental Checklist Discussion Would the project: a. Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state? No Impact. According to the City of Santa Ana Land Use Element, there are no areas identified as having significant mineral resources and no areas having a Significant Mineral Aggregate Resource Areas (SMARA) designation within the vicinity of the project site or within the City. Therefore, implementation of the proposed projectwould not contribute to the loss of availability of a known mineral resource. No impact would occur, b, Result in the loss of availability of a locally Important mineral resource recovery site delineated on a local general plan, specific plan, at* other land use plan? No Impact. As discussed in XLa, the City's General Plan Land Use Element states that there are no mineral extraction activities in the City. As a result, implementation of the project would not result in the loss of availability of a locally important mineral resource recovery site. No impact would occur. The Bat Nha Buddhist Meditation Center 3-67 June 2013 Initial Study /Mitigated Negative Declaration iCV 00215.12 31 C -120 Less -than- Significant Potentially Impactwith Less -than- Significant Mitigation Significant No XI. Mineral Resources Impact Incorporated Impact Impact Would the project: a. Result in the loss of availability of a known ❑ ❑ ❑ mineral resource that would be of value to the region and the residents of the state? b. Result in the loss of availability of a locally ❑ ❑ ❑ important mineral resource recovery site delineated on a local general plan, specific Dian. or other land use elan? Discussion Would the project: a. Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state? No Impact. According to the City of Santa Ana Land Use Element, there are no areas identified as having significant mineral resources and no areas having a Significant Mineral Aggregate Resource Areas (SMARA) designation within the vicinity of the project site or within the City. Therefore, implementation of the proposed projectwould not contribute to the loss of availability of a known mineral resource. No impact would occur, b, Result in the loss of availability of a locally Important mineral resource recovery site delineated on a local general plan, specific plan, at* other land use plan? No Impact. As discussed in XLa, the City's General Plan Land Use Element states that there are no mineral extraction activities in the City. As a result, implementation of the project would not result in the loss of availability of a locally important mineral resource recovery site. No impact would occur. The Bat Nha Buddhist Meditation Center 3-67 June 2013 Initial Study /Mitigated Negative Declaration iCV 00215.12 31 C -120 City of Santa Ana Environmental Checklist X11. Noise Potentially Significant Impact Less -than- Significant Impact with Mitigation Incorporated Less -than- Significant Impact No Impact Would the project: a. Expose persons to or generate noise levels In ❑ ® ❑ ❑ excess of standards established in a local general plan or noise ordinance or applicable standards of other agencies? b. Expose persons to or generate excessive ❑ ❑ ® ❑ groundhome vibration orgroundborne noise levels? c. Result in a substantial permanent increase in ❑ ❑ ® ❑ ambient noise levels in the project vicinity above levels existing without the project? d. Result in a substantial temporary or- periodic ❑ ® ❑ ❑ increase in ambient noise levels in the project vicinity above levels existing without the project? e. Be located within an airport land use plan ❑ ❑ ❑ area, or, where such a plan has not been adopted, within two miles of a public airport or public use airport and expose people residing or working in the project area to excessive noise levels? E Be located In the vicinity of a private airstrip ❑ ❑ ❑ and expose people residing or working In the oroiect area to excessive noise levels? Discussion Existing Ambient Noise Conditions at the Project Site The existing noise - sensitive receivers in the vicinity of the project site include: multi - family residences to the west across Sullivan Street and to the north, the New Spirit Baptist church also to the north, single family residences to the east, and Estrellitas State Preschool located to the south. The primary existing noise source in the project area is from traffic noise generated from Sullivan Street. Other noise sources in the project vicinity are noises that are typical of residential land uses, such as cars starting tip, occasional barking dogs, landscaping maintenance, distant aircraft, etc. Four short -term attended sound level measurements were conducted to characterize the noise environment in and around the project location. Three measurements were conducted on April 17th, 2012 and one on April 22,11 2012. A Larson Davis Type 812 sound level meter (short term), which is classified as a Type 1 (precision grade) instrument was used during field measurements. As shown on Figure 3 -1, noise was measured at four noise- sensitive locations on or near the project site. During the field measurements, the physical observations of the predominant noise sources included: traffic along Sullivan Street, distant aircraft on approach to John Wayne Airport, passers- by talking, and ambient noise sources such as birds, and distant landscape maintenance activities. The Bat Nha Buddhist Meditation Center 3-68 June 2013 Initial Study /Mitigated Negative Declaration a:E 00215.12 31 C -121 Persir I iC-F Brook St va r 1411 1 L :7 cubbon-st !PAWR-3 t, City of Santa Ana Environmental Checklist The results of the attended short -term sound level measurements are summarized in Table 3 -12. As shown, the measured noise levels during daytime homy in and around the project site ranged from 50.1 up to 55.8 A- weighted decibels (dBA) equivalent continuous noise level (Lrq). Table 3 -12. Noise Measurement Data Site ID Measurement Location Measurement Period Start Duration Date Time (mm:ss) Noise Sources Noise Measurement Results (dBA) Lrgl Lm„ Lmm Lgo Lso Lro ST -1 Estrillitas 4 -17 -2012 9:30 15:00 Traffic, Distant S0.1 60.4 41.1 44.4 48.3 53.3 State Aircraft, Distant Preschool - Landscaping, 811 S Sullivan Children Playing, Street Birds ST -2 Bat Nha 4 -17 -2012 10:00 15:00 Traffic, Distant 51.7 61.4 41.0 45.5 50.0 54.8 Buddhist Aircraft, People Temple 805 S Talking, Birds Sullivan Street ST -3 Villa Del Sol 4.17 -2012 10:45 15:00 Traffic, Distant 55.5 65.7 42.6 47.6 53.6 59.0 Apartment Aircraft, Children Complex 800 Playing, Birds Fairview Street ST-42 Bat Nha 4 -22 -2012 10:15 30:00 Distant Barking 51.9 67.5 43.7 47.0 49.8 54.3 Buddhist 11:16 30:00 Dog. Birds, 55.8 79.6 43.S 48.1 52.1 58.7 Temple 805 S Parking Lot Noise, Sullivan Street Occasional Chanting and Clapping, Occasional Hand Bell, Traffic I The 15- minute duration, energy - averaged noise level (Lrq) is commonly accepted as being representative of a 1 -hour average in urban and suburban environments. The 1 -hoar Lrq nolse metric Is used as the basis for Community Noise Equivalent Level (CNEL) calculations. 2 For ST -4, two measurements totaling 30 minutes each were conducted during Sunday worship services. Regulatory Background: Noise Standards and Thresholds of Significance The proposed project is subject to the policies and standards contained in the Noise Element of the City of Santa Ana's General Plan and the City's Noise Ordinance. Table i of the City's General Plan Noise Element sets interior and exterior noise limits for residential land uses at 45 dBA and 65 dBA CNEL4, respectively. The City's General Plan Noise Element also requires that "all Residential uses should be protected with sound insulation over and above that provided by normal building construction when constructed in areas exposed to greater than 60 dB CNEL." Table 1 of the City's noise element sets interior and exterior noise limits for Institutional land uses at 45 dBA and 65 dBA CNEL, respectively. Institutional land uses refer to laud uses such as hospitals, school classrooms /playgrounds, churches, and libraries. 4 Community Noise Equivalent Level, is the average sound level over a 24 hour period, with a penalty of 5 d6 added between 7 p.m. and 10 p.m. and a penalty of 10 dB added for the nighttime hours of 10 p.m. to 7 a.m. The Sat Nha Buddhist Meditation Center 3-69 June 7013 Initial Study /Mitigated Negative Declaration 31 C -123 ICF 0021SA2 City of Santa Ana Environmental Checklist Article IV, Section 18 -312 & 18.313 of the City's Municipal Code specifies permitted noise levels for day and night time exterior and interior noise levels. Exterior and interior noise thresholds within the City are presented in Table 3 -13 below. In the event the alleged offensive noise consists entirely of impact noise, simple tone noise, speech, music, or any combination thereof, each of the above noise levels shall be reduced by five (5) dB(A). However, in the event the ambient noise level exceeds either of the first two (2) noise limit categories above, the cumulative period applicable to said category will he increased to reflect said ambient noise level. In the event the ambient noise level exceeds the third noise limit category, the maximum allowable noise level under said category will be increased to reflect the maximum ambient noise level. Article IV, Section 18 -314 of the City's Municipal Code specifies permitted flours for construction activities. Noise associated with construction of any real property is exempt provided that it does not occr between the howl of 8:00 p.m, and 7:00 a.m. on weekdays, including Saturday, or any time on Sunday or a federal holiday. Table 3 -13. City of Santa Ana Permitted Noise Levels Noise Zone (1) Noise Level Time Period Exterior Noise Thresholds 55 dB(A) 7:00 a.m. -10:00 p.m. 50 dB(A) 10:00 p.m.— 7:00 a.m. interior Noise Thresholds 55 dB(A) 7:00 a.m. -10:00 p.m. 45 dB(A) 10:00 p.m.— 7:00 a.m. Would the project: a. Expose persons to orgenerate noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? Less - than - Significant Impact with Mitigation Incorporated. Impacts related to construction and operation of the proposed project are discussed separately below. Construction Construction of the proposed project is anticipated to take approximately 19 months to complete. The proposed project would consist of various phases of activities over the construction period. Construction phases are listed in Table 3 -14 below. Construction activities would cause short -term elevated noise levels at the residential land uses to the east and west; and at the church to the north of the proposed project site. As described above and shown in Table 3 -14, existing noise levels at short -term measurement locations ranged from 50 to 56 CIBA L,q at sensitive receivers on and around the project site. Noise generated during construction would be dependent on the types of construction equipment used during construction activity, site geometry (i.e., shielding from intervening terrain or other structures), and the distance between the noise source and receiver. Noise from construction equipment would be audible at sensitive receivers surrounding the project site, the closest of which are immediately north, east, and south of the project site and to the west across Sullivan Street. The Bat Nha Buddhist Meditation Center 3 70 June 2013 Initial Study /Mitigated Negative Declaration ICF 0021512 31 C -124 City of Santa Ana Environmental Checklist The anticipated construction noise levels were calculated using the Federal Highway Administration's (FHWA) Roadway Construction Noise Model (RCNM). This model factors in distance from construction noise equipment to receiver, construction vehicle mix, and presence or absence of shielding from existing walls. Table 3 -14 shows the noise levels calculated at a distance of 50 feet during construction phases where all pertinent equipment is present and operating. Table 3 -14. Typical Noise Levels from Construction Activities at 50 Feet Construction Activity Average Sound Level at 50 feet (dBA Leq)' Excavation and Soils Export 87 Grading and Soils Prep 84 Site Trenching and Building 87 Foundation 65 Building Construction/Concrete 87 Asphalt 82 Architectural Finishing 74 t Sound level with all pertinent equipment operating, 67 Source: Federal Highway Administration 2008, 76 Table 3 -15 shows noise levels that would occur from implementation of the project at the existing sensitive receivers adjacent to the project site. The noise levels shown are calculated from the acoustical center of construction. The acoustical center of construction is the idealized point from which construction could occur. It takes into account the mobility of construction equipment and is derived from multiplying the furthest distance construction equipment could be from a sensitive receiver with the closest distance and then taking the square root of the product. Table 3 -15. Noise Levels from Construction Activities at Closest Sensitive Receivers Apartment complex New Spirit Baptist Daycare located located West of church located North of South of Project Construction Activity Project (dBA Leq) Project (dBA Leq) (dBA Leq) Excavation and Soils Export 66 75 75 Grading and Soils Prep 62 72 72 Site Trenching and Building 65 75 75 Foundation Building 67 76 76 Construction/Concrete Asphalt 60 70 70 Architectural Finishing 52 62 62 As shown in Table 3 -15, the calculated loudest construction noise level would be during the Building Construction, Construction noise levels would range from 67 to 76 dBA Leq. These noise levels are higher than the typical ambient daytime noise levels measured at the sensitive receivers to the north, east, and south of the project site. Noise levels of this magnitude would be readily audible and would likely dominate the noise environment in the area during project construction activities. The Bat Nha Buddhist Meditation Center 3-71 June 2013 Initial Study /Mitigated Negative Declaration 31 C -125 ICF 0021S.12 City of Santa Ana Environmental Checkllst As provided above, the City's noise ordinance exempts construction activities from the noise standard (providing that such activities take place between the hours of 7:00 a.m. to 8:00 p.m. on weekdays and Saturdays). The construction activities of the proposed project would not exceed the City's permitted construction hours. However, the short -term noise from construction would be loud at times at the nearby noise- sensitive land uses, and although temporary, could be disruptive. Therefore, Mitigation Measure N01 -1, which requires implementation of noise control measures, is provided to reduce construction noise levels to a less -than- significant level. Mitigation Measure N01 -1: To reduce construction noise generated by the proposed project, the City will ensure that the contractor will implement the following measures: • All mobile o• fixed noise - producing equipment used on the project that is regulated for noise output by a local, state, o• federal agency will comply with such regulation while in the course of project activity. • Electrically powered equipment will be used instead of pneumatic or internal combustion powered equipment, where feasible. • Material stockpiles and mobile equipment staging, parking, and maintenance areas will be located as far as practicable from noise- sensitive receivers. • The use of noise- producing signals, including horns, whistles, alarms, and bells, will be for safety warning purposes only. • The onsite construction supervisor will have the responsibility and authority to receive and resolve noise complaints. A clear appeal process to the City will be established prior to construction commencement that will allow for resolution of noise problems that cannot be immediately solved by the site supervisor. • Construction signs will be posted at the project site identifying a contact name and phone number to register noise complaints. Operation Traffic (Offsite Land Uses) Project - Related Traffic Noise. The project Traffic Impact Analysis (TIA) prepared by Fehr & Peers (Appendix D) was used to determine potential traffic impacts from the proposed project. The TIA evaluated operational traffic impacts broken down by phase of the proposed school on the surrounding land uses. Traffic noise levels were analyzed using the FHWA's Traffic Noise Model (TNM). This model analyzes traffic noise based on number of vehicles, traffic mix (automobiles, medium trucks, and heavy trucks), project site geometry with respect to roadways, shielding from structures such as walls or buildings, and other parameters. The most recent version of TNM (version 2.5) was used in this analysis. Using the TIA's estimated peak -hour traffic volumes, TNM calculates noise levels in terms of the peak hour Lq noise level for modeled receivers, To determine the corresponding CNEL, the peak hour noise levels were input into an Excel spreadsheet which models diurnal traffic patterns. Table 3 -16 provides the modeled CNEL dBA noise levels for modeled receivers for existing (2012), existing plus project (2012), opening year (2014), opening year plus project (2014), scenarios. The Bat Nha Buddhist Meditation Center 3 �Z June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -126 City of Santa Ana Environmental Checklist Table 3 -16. Predicted Off Site Exterior Existing (2012) and Opening Year (2014), Traffic Noise Levels with and without the Project Receiver Receiver Location Modeledl Existing Noise Level (dBA CNEL) Modeledl Existingplus Project Noise Level (dBA CNEL) Difference (dBA) Modeled Opening Year (2014) Noise Level (dBA CNEL) Modeledl Opening Year (2014) plus Project Noise Level (d BA CNEL) Difference (dBA) STA Estrellitas State S2 53 1 52 53 1 Preschool - 811 S Sullivan Street ST -2 Bat Nha Buddhist 53 53 0 53 53 0 Temple 805 S Sullivan Street ST -3 Villa Del Sol 55 56 1 55 56 1 Apartment Complex 800 Fairview Street ST -4 Bat Nha Buddhist 47 47 0 47 48 0 Temple 805 S Sullivan Street MR -1 Modeled receiver 52 52 0 52 52 0 along Willits east of Sullivan MR -2 Modeled receiver 57 S7 0 57 SB 1 along Willits west of Sullivan MR -3 Modeled receiver 56 56 0 56 56 0 along McFadden east of Sullivan As shown above in Table 3 -16, the project's traffic noise contribution would result in a zero to one dBA traffic increase. Therefore, offsite noise impacts associated with project - related traffic would be less than significant. On -Site Equipment Noise. The project site is currently partially developed with an existing Buddhist temple and associated support structures located on the site. The closest existing noise - sensitive land uses are the single family homes immediately to the east and an existing Baptist church located immediately to the north, and multi - family residences located immediately to the west across Sullivan Street. HVAC units could be included in the proposed project. HVAC units could be located as close as 100 feet from the closest existing noise - sensitive land use. The specific manufacturer and model of the HVAC units have not yet been determined. However, these units will be selected with the relevant City and building standards as part of the performance specifications (i.e., acoustically engineered and tested by the manufacturer to ensure that the noise standards would not be exceeded). However to assure that noise from HVAC units would not impact nearby sensitive land uses, Mitigation Measure NOI -2 will be included to assure that noise impacts would be less than significant. Mitigation Measure NOt -2: All HVAC units located on any portion of the property will be screened by solid walls, on all side to provide effective acoustical as well as visual screening. The Bat Nha Buddhist Meditation Center 3-73 June 2013 Initial Study /Mitigated Negative Declaration 31 C -127 ICr 0021512 City of Santa Ana Environmental Checklist Worship and Parking Lot Activity Noise. Chanting during worship services and parking lot activity (conversations, vehicle engines, car alarms, and doors slamming) will contribute to onsite ambient noise levels. Two noise measurements (ST -4) were taken onsite to analyze onsite noise levels from worship services and parking lot activity. Measured noise levels ranged from 52 dBA Leq up to 56 dBA Leq. The measurements represent a pre- activity noise level (52 dBA Leq) and a measurement taken during the height of activity (56 dBA Leq). Noise levels of this magnitude would attenuate approximately 6 dB per doubling distance. Noise levels at the closest sensitive receiver would have ranged between 46 — 50 dBA Leq. Noise levels of this magnitude would likely be below the ambient noise levels at the closest sensitive receiver. The new parking facilities will be located in a newly designed underground facility and along the backside of the proposed site. Worship services would be confined to the courtyard. Based on construction plans, the center of the courtyard would be located approximately 100 feet away from the closets sensitive receiver (the New Spirit Baptist church). If the number or worshippers were to double during worship services, the resultant noise increase would be approximately 3 dB or a noise level of 59 dBA Leq. A noise level of 59 dBA would attenuate to approximately 53 dBA at the closest sensitive receiver. An existing wall which extends across all the north, east, and south side of the property would also provide shielding during worship service and from parking lot noise at the adjacent sensitive land uses. As a result, noise related to operation of the proposed project is less than significant. b. exposure of persons to orgeneration of excessive groundborne vibration or•groundborne noise levels? Less - than - Significant Impact. The Federal Transit Administration (FTA) has compiled typical vibration levels generated by construction equipment, which are commonly used as a reference for construction vibration level analysis. The vibration levels produced by construction equipment are outlined in Table 3 -17. Vibration levels from construction equipment attenuate as they radiate from the source. The equation to determine vibration levels at a specific distance states that PPVeq,ip = PPVref X (25/131)^1-5 where PPV,er is the Peak Particle Velocity at a reference distance of 25 feet, and D is the distance from the equipment to the sensitive receptor (USDOT 2006). GI'oundborne vibration typically decreases rapidly with distance. Based on the FTA data, vibration velocities from typical heavy construction equipment operation that would be used during project construction range from 0.076 to 0.089 inches per second peak particle velocity (PPV) at 25 feet from the source of activity. At 50 feet from the source activity (closest sensitive receiver Church to the north of the Project site), PPV ranges from 0.027 to 0.032 inch per second. Because neither the state not* the local municipalities maintain regulatory standards for vibration sources, potential structural damage and human annoyance associated with vibration from construction activities were evaluated against California Department of Transportation (Caltrans) vibration limits (Table 3 -18). A vibration level of 0.10 inches per second PPV was used to evaluate impacts on nearby receivers because this level represents the boundary between barely perceptible and distinctly perceptible vibration as recognized by Caltrans and others. Because the predicted vibration levels from project construction would be well below applicable vibration thresholds, impacts from groundborne vibration or groundborne noise would be less than significant. The Bat Nha Buddhist Meditation Center 3 7A lune 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -128 City of Santa Ana Environmental Checklist Table 3 -17. Typical Vibration Levels for Construction Equipment Approximate peak particle Approximate peak particle velocity at 25 feet velocity at 50 feet Equipment (inches /second) (inches /second) Largebulldozer 0.089 0.032 Loaded trucks 0.076 0.027 Peak particle velocity measured at 25 feet unless noted othenvise. Root mean square amplitude ground velocity in decibels (VdB) referenced to 1 micro- inch/second. Source: Federal Transit Administration, Transit Noise and Vibration Impact Assessment Guidelines, May Table 3 -18. Response of People and Effects on Structures from Continuous Vibration Peak Particle Velocity (PPV) Human Effect on Structures 0.006 -0.019 Threshold of perception; possibility of Vibrations unlikely to cause damage of intrusion. any type. 0,08 Vibrations readily perceptible. Recommended upper level of the vibration to which ruins and ancient monuments should be subjected. 0.10 Level at which continuous vibrations Virtually no risk of "architectural" begin to annoy people. damage to normal buildings. 0.20 Vibrations annoying to people in Threshold at which there is a risk of buildings (this agrees with the levels "architectural' damage to normal established for people standing on dwelling- houses with plastered walls bridges and subjected to relative short and ceilings; special types of finish such periods of vibration), as lining of walls, flexible ceiling treatment, etc., would minimize "architectural" damage. 0.4 -0.6 Vibrations considered unpleasant by Vibrations at a greater level than people subjected to continuous normally expected from traffic, but vibrations and unacceptable to some would cause "architectural' damage and people walking on bridges, possibly minor structural damage. Source: California Department of Transportation, Transportation- and Construction - Induced Vibration Guidance Manual, 2004. c. A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? Less - than - Significant Impact. As described in XI La, the proposed project would result in an increase in traffic along the local roadway system and increases in noise related to project- related HVAC equipment, and parking lot noise. As described previously, the anticipated noise increase from these onsite noise sources would be minimal and would not result in a significant increase in ambient noise levels. As a result, impacts are less than significant. The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3-75 ¢r 00215.12 31 C -129 City of Santa Ana Environmental Checklist d. A substantial tempormy or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? Less - than - Significant Impact with Mitigation Incorporated. As described in Xll.a, construction - related activities and equipment used during construction of the proposed project would result in a temporary or periodic increase in ambient noise levels above existing levels. The City's municipal code exempts construction related noise provided that it occurs between the hours of 7:00 a.m. to 8:00 p.m. on weekdays and Saturday. However, the short -term noise from construction would be loud at times at the nearby noise - sensitive land uses and could be disruptive. Therefore, Mitigation Measure N01 -1, which implements noise control measures, is provided to reduce construction noise levels to a less- than - significant level. The proposed project could include new HVAC units and would include increased used of the project site during worship services, and new parking areas, which would produce periodic increases in noise at sensitive receivers surrounding the project site. The HVAC units would be acoustically engineered by the manufacturer to ensure that the City's noise standards would not be exceeded. Mitigation Measure N01 -2 would also be included to reduce noise levels from HVAC noise and assure that impacts would be less than significant. The parking facilities will be located in a newly designed underground facility and around the backside of the proposed site. An existing wall which extends across all the north, east, and south side of the property will hinder the parking lot noise from traveling to the adjacent sensitive land uses. Increased use of the courtyard could potentially increase noise from worship services. However, these noise levels would be shielded by the wall surrounding the project site and would be comparable to or below the existing ambient noise level. Noise levels of this magnitude would not exceed any City standards. In addition, chanting and parking lot noise is short -term in duration. As a result, noise related to operations of HVAC systems, chanting, parking facilities is less than significant. e. For a project located within an airport land use land use plan or, where such a plan has not been adopted, within 2 miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? No Impact. John Wayne Airport is located about 4 miles to the southeast of the project site (Google Earth 2012). The project site is not located within any airport land use plan and not within 2 miles of any public or private airport or airstrip. As a result, the proposed project site will not receive airport - related noises, and the project would not expose people residing or working within the project area to excessive noise levels. f. For a project within the vicinity of a private airstrip, would the project expose people residing or working In the project area to excessive noise levels? No Impact. The proposed project is not within the vicinity of a private airstrip. No impact would occur. The Oat Nha Buddhist Meditation Center June 2013 Initial Study /Millgated Negative Declaration 3 -76 ICF 00215.12 31 C -130 City of Santa Ana Environmental Checklist XIII. Population and Housing Potentially Significant Impact Less -than- Significant Impact with Mitigation Incorporated Less -than- Significant Impact No Impact Would the project: a. Induce substantial population growth in an ❑ ❑ ® ❑ area, either directly (e.g., by proposing new homes and businesses) or indirectly (e.g., through extension of roads or other infrastructure)? b. Displace a substantial number of existing ❑ ❑ ❑ housing units, necessitating the construction of replacement housing elsewhere? c. Displace a substantial number of people, ❑ ❑ ❑ necessitating the construction of replacement housing elsewhere? Discussion Would the project: a. induce substantial population growth In an area, either directly (e.g., by proposing new homes and businesses) or indirectly (e.g., through extension of roads or• other Infrastructure? Less - than - Significant Impact. The proposed project would demolish the existing onsite structures that are currently used for religious purposes and would redevelop the site with one large building that would be used for similar religious purposes. The proposed project would add additional capacity to the site and provide for future onsite meditation center activities. The project anticipates a slight increase in the daily number of visitors and a large increase in the number of visitors that would attend the three annual festivities. Currently, four people reside on the project site (the Master and his three assistants). The same four people would reside onsite after implementation of the project. As a result the project would not directly induce onsite population growth. Additionally, the proposed project site is currently developed and is surrounded by existing development and served by existing infrastructure. No roads or infrastructure would be extended to serve the proposed project. As such, impacts would not be considered substantially growth - inducing either directly or indirectly, and impacts are less than significant. b. Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? No Impact. The proposed project will redevelop the project site with similar religious /meditation center uses that currently exist. The proposed project would not displace any existing housing and would not result in the construction of replacement housing elsewhere. No impact would occur. c. Displace substantial numbers of people, necessitating the construction of repincement housing elsewhere? No Impact. As stated in XIII.b, the proposed project would not displace existing housing. The proposed project would not displace any people and would not require the construction of replacement housing elsewhere. No impact would occur. The Bat Nha Buddhist Meditation Center 3-77 June 2013 Initial Study /Mitigated Negative Declaration [CF 0021S,12 31 C -131 City of Santa Ana Environmental Checklist Less -than- Significant Potentially Impactwith Less -than- Significant Mitigation Significant No XIV. Public Services Impact Incorporated Impact Impact Would the project: a. Result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities or a need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times, or other performance objectives for any of the following public services: 1. Fire protection? ❑ ❑ M ❑ 2. Police protection? ❑ ❑ M ❑ 3. Schools? ❑ ❑ ❑ M 4. Parks? ❑ ❑ ❑ M S. Other public facilities? ❑ ❑ ❑ M Discussion Would the project result In substantial adverse physical impacts associated with: a1. Fire protection? Less - than - Significant Impact. Fire protection services within the proposed project area are currently provided by the OCFA, which maintains a total of 71 fire stations, a fire administration building, and a fire training center to serve the residents of 23 cities and the unincorporated portions of Orange County. Fire Stations Nos. 73 and 77 would be the primary responders to the project site; however, other OCFA fire stations would respond in the event that additional support is needed. Fire Station #73 is the nearest station to the proposed project site, located about 0.58 mile northeast of the project site at 419 South Franklin Street, and currently contains a staff of three captains, three engineers, and six firefighters, of which six are paramedics. Total staffing per day is four, of which two are paramedics. Current equipment at Station #73 includes one medic engine. Fire Station #77, which also would be a primaty responder to the project site in the event of an emergency, is located at 2317 South Greenville Street, about 1.48 miles south of the project site. This station maintains a staff of three captains, three engineers, and nine firefighters, of which six are paramedics, for a daily staffing of five per shift. Current equipment at Station #77 includes one engine, one medic van, and one relief van. (OCFA 2O12a & b; Evans pers. comm.; Hernandez pens. Comm.) Current response times to the project area are estimated at 7 minutes 20 seconds or less from the time a call is placed until the first responder arrives at the emergency, which meets the emergency service goal of the OCFA. The OCFA's existing personnel -to- population ratio is one firefighter per 7,000 population. (Evans pers. comm.; Hernandez pers. comm.) As a result of the project's proximity to existing fire stations and the existing service level provided by the fire department, the proposed The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3 -78 ICF 00215.12 31 C -132 City of Santa Ana Environmental Checklist project would receive sufficient OCFA service in the event of all emergency, and impacts related to fire protection services and facilities would be less than significant. In conversation with OCFA analyst Eric Evans (May 14, 2012), existing fire hydrant Flow adjacent to the project site is adequate to serve the proposed project, and the needed fire hydrant flow to serve the proposed project would be less than the maximum allowed by the OCFA, which is 5,500 gallons /minute. In addition, fire facility fees pursuant to City Municipal Code (Resolution No. 6461) would be assessed prior to commencement of the project. The proposed project is also required to meet all access, water, and fire protection systems per the CBC and Fire Code, as well as all other applicable City Municipal Codes, which would reduce potential fire- related impacts of the project. As such, the proposed project would have a less - than - significant impact on fire services. a2. Police protection? Less - than - Significant ImpacL Law enforcement services are provided by the City of Santa Ana Police Department (SAPD), headquartered at 60 Civic Center Plaza in Santa Ana, about 2.66 miles northeast of the project site. The SAPD provides police protection within four districts: Northeast, Southcoast, Southeast, and Westend. The project site is located within the Westend District. Current response times for police services in the City average 6 minutes 20 seconds for emergency calls (McCoy pers. comm.). Because the main police building at 60 Civic Center Plaza is approximately 2.66 miles from the site, it provides the primary police protection services to the project area. As of January 2012, the SAPD had 337 police officers (McCoy pers. comm.). With a current population of approximately 324,528, the City's current officer -to- population ratio is 1.08 officers per 1,000 population, which is considered an acceptable SAPD ratio. In addition, average SAPD response times range fi-onr 6 minutes 20 seconds to 26 minutes 12 seconds (McCoy pers. comm.). The proposed project would redevelop the existing meditation center facility, and is not expected to result in an increase in calls for police protection services, affect the level of police protection, or increase response times of the SAPD. Furthermore, as part of project review by the SAPD, the project would be required to comply with the City's Building Security Ordinance, CPTED (Crime Prevention Through Environmental Design) principles, and the National Infrastructure Protection Plan guidelines to the satisfaction of the SAPD, which would prevent criminal activity (McCoy pers. comm.). As a result, the proposed project would not result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, the construction of which could cause significant environmental impacts in order to maintain acceptable service ratios, response times, or other performance objectives for police protection services. Therefore, the proposed project would have a less- than - significant impact on police protection services. a3. Schools? No Impact. The proposed project would not result in adverse impacts on schools. Physical impacts on school facilities and services are usually associated with population in- migration and growth, which increase the demand for schools. As discussed in Section X111, "Population and Housing," the proposed project would not increase the local population. Therefore, the proposed project would not result in an increased demand requiring the need for new or physically altered school facilities and no impact would occur. The Bat Nha Buddhist Meditation Center 3 79 June 2013 Initial Study /Mitigated Negative Declaration ICF00215.12 31 C -133 City of Santa Ana a4. Parks? Environmental Checklist No Impact. The proposed project would not result in adverse impacts on parks. Physical impacts on parks are usually associated with population in- migration and growth, which increase the demand for public services and facilities. As discussed in Section X111, "Population and Housing," the proposed project would not increase the local population. Therefore, the proposed project would not result in an increased demand requiring the need for new or physically altered parks and no impact would occur. a5. Other public facltittes7 No Impact. The proposed project would not result in adverse impacts on other public facilities. As discussed above, physical impacts on public services are usually associated with population im- migration and growth, which increase the demand for public services and facilities. As discussed in Section XIII, "Population and Housing," the proposed project would not increase the local population. Therefore, the proposed project would not result in an increased demand requiring the need for new or physically altered public facilities and no impact would occur. The Bat Nha Buddhist Meditation Center 3-80 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -134 City of Santa Ana Environmental Checklist Discussion Would the project: a. increase the use of existing neighborhood and regional parks or other recreational factlitles such that substantial physical deterioration of the facility would occur or be accelerated? No Impact. The City of Santa Ana Parks, Recreation, and Community Services Agency provides about 322 acres of parkland within 35 city parks, which is equivalent to nearly an acre of parkland per 1,000 residents. City parks range from 0.1 acre to 23 acres in size. The City also includes four joint -use parks and 19 recreational facilities available to the public. Five of the City's 35 parks are located within 1 mile of the proposed project site, including Jerome Park (14 acres), Friendship Park (0.1 acre), Spurgeon Park (2.1 acres), Windsor Park (12 acres), and El Salvador Park (11 acres). An increase in the use of existing parks and recreational facilities typically results from an increase in housing or population in an area. The project would not result in an increase in housing or residents in the project vicinity; thus, an increase in population using the existing community recreation facilities would not occur. Further, the project is not anticipated to increase the use of existing recreation facilities such that substantial physical deterioration of recreation facilities would occur, nor would the project require construction of new recreation facilities. Thus, impacts on recreation would not occur. b. Include recreational facilities or require the construction of or expansion of recreational facilities that might have an adverse physical effect on the environment? No Impact. The proposed project would redevelop the existing religious and meditation uses on site. The project does not include the development of any recreational facilities. In addition, and as described in XV.a., the project would not result in impacts or otherwise require expansion of existing recreation facilities. Therefore, the proposed project would not require the construction or expansion of other recreational facilities that might have an adverse physical effect on the environment. As a result, impacts related to recreation would not occur. The gat Nha Buddhist Meditation Center 3 -81 one mao Initial Study /Mitigated Negative Declaration ICr 00215.12 31 C -135 Less -than- Significant Potentially Impactwith Less-than- Significant Mitigation Significant No XV. Recreation Impact Incorporated Impact Impact Would the project: a. Increase the use of existing neighborhood and ❑ ❑ ❑ regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? b. Include recreational facilities or require the ❑ ❑ ❑ construction or expansion of recreational facilities that might have an adverse physical effect on the environment? Discussion Would the project: a. increase the use of existing neighborhood and regional parks or other recreational factlitles such that substantial physical deterioration of the facility would occur or be accelerated? No Impact. The City of Santa Ana Parks, Recreation, and Community Services Agency provides about 322 acres of parkland within 35 city parks, which is equivalent to nearly an acre of parkland per 1,000 residents. City parks range from 0.1 acre to 23 acres in size. The City also includes four joint -use parks and 19 recreational facilities available to the public. Five of the City's 35 parks are located within 1 mile of the proposed project site, including Jerome Park (14 acres), Friendship Park (0.1 acre), Spurgeon Park (2.1 acres), Windsor Park (12 acres), and El Salvador Park (11 acres). An increase in the use of existing parks and recreational facilities typically results from an increase in housing or population in an area. The project would not result in an increase in housing or residents in the project vicinity; thus, an increase in population using the existing community recreation facilities would not occur. Further, the project is not anticipated to increase the use of existing recreation facilities such that substantial physical deterioration of recreation facilities would occur, nor would the project require construction of new recreation facilities. Thus, impacts on recreation would not occur. b. Include recreational facilities or require the construction of or expansion of recreational facilities that might have an adverse physical effect on the environment? No Impact. The proposed project would redevelop the existing religious and meditation uses on site. The project does not include the development of any recreational facilities. In addition, and as described in XV.a., the project would not result in impacts or otherwise require expansion of existing recreation facilities. Therefore, the proposed project would not require the construction or expansion of other recreational facilities that might have an adverse physical effect on the environment. As a result, impacts related to recreation would not occur. The gat Nha Buddhist Meditation Center 3 -81 one mao Initial Study /Mitigated Negative Declaration ICr 00215.12 31 C -135 City of Santa Ana Environmental Checklist Less -than- Significant Potentially Impactwith Less -than- Significant Mitigation Significant No XVI. Transportation / Trafflc Impact incorporated Impact Impact Would the project: a. Conflict with an applicable plan, ordinance or ❑ ® ❑ ❑ policy establishing measures of effectiveness for the performance of the circulation system, taking into account all modes of transportation including mass transit and non - motorized travel and relevant components of the circulation system, including but not limited to intersections, streets, highways and freeways, pedestrian and bicycle paths, and mass transit? b. Conflict with an applicable congestion ❑ ❑ ❑ management program, including, but not limited to level of service standards and travel demand measures, or other standards established by the county congestion management agency for designated roads or highways? c. Result in a change in air traffic patterns, ❑ ❑ ❑ including either an increase in traffic levels or a change in location that results in substantial safety risks? d. Substantially increase hazards because of a ❑ ❑ ® ❑ design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farms equipment)? e. Result in inadequate emergency access? ❑ ❑ ® ❑ f. Conflict with adopted policies, plans, or ❑ ❑ ❑ programs regarding public transit, bicycle, or pedestrian facilities, or otherwise decrease the performance of, safety of such facilities? Discussion Would the project: a. Conflict with an applicable plan, ordinance or policy establishing measures of effectiveness for the performance of the circulation system, taking into account all modes of transportation including mass transit and non- iotorized travel and relevant components of the circulation system, Including but not limited to intersections, streets, highways and freeways, pedestrian and bicycle paths, and mass transit? Less - than - Significant Impact with Mitigation Incorporated. The following analysis is based on a project - specific Traffic Impact Analysis (TIA) prepared by Fehr and Peers (included as Appendix D). The TIA includes an evaluation of six intersections that would serve the proposed project within the City of Santa Ana. The TIA evaluates the existing operating traffic conditions in 2012 (baseline conditions), and projected operating traffic conditions with the proposed project. The TIA also The Bat Nha Buddhist Meditation Center 3 82 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -136 City of Santa Ana Environmental Checklist evaluates operating conditions with the project in the near -term (2014), and the long -term (2035). Year 2014 and 2035 traffic impacts are discussed in the cumulative impact analysis in Section XVIL "Mandatory Findings of Significance" and assume annual growth rate factors in the near -term and forecasted traffic conditions firom the Orange County Transportation Analysis Model (OCTAM) in the long -term. A description of impacts related to project construction, operation, and parking is provided below. Construction Impacts Construction activities are expected to occur over a period of 19 months, and are expected to generate a short -term, temporaty increase in construction related traffic. While specific construction- related traffic impacts are not quantified for the proposed project, potential morning and afternoon traffic delays related to construction vehicles and could create a temporary/sbort- te•m impact on roadways adjacent to the project site, As such, implementation of a construction management plan as described in Mitigation Measure TR -1 would reduce short -term construction traffic impacts to a less - than - significant level. Mitigation Measure TR -1: Prior to issuance of construction permits, the Project Applicant will develop a Construction Management Plan to be approved by the City of Santa Ana Traffic Engineering Division that will include the following measures: • Designate traffic control for any street closure, detour, or other disruption to traffic circulation. Identify the routes that construction vehicles will utilize for the delivery of construction materials (i.e., lumber, tiles, piping, windows), site access, traffic controls and detours, and proposed construction phasing plan for the project. • Specify the hours during which transport activities can occur and methods to mitigate construction- related impacts on adjacent streets. • Require the contractor to keep all haul routes clean and free of debris including, but not limited to, gravel and dirt as a result of its operations. The applicant will clean adjacent streets, as directed by the City Traffic Engineering Division, of any material which may have been spilled, tracked, or blown onto adjacent streets or areas. • Allow hauling or transport of oversize loads between the hours of 9:00 a.m. and 3:00 p.m., roily, Monday through Friday, unless approved otherwise by the City Traffic Engineering Division. No hauling or transport will be allowed during nighttime hours, weekends, or federal holidays. Operational Impacts The TIA includes an evaluation of operational impacts that compares the project - related traffic to existing baseline conditions in August 2012. The Sunday peak hour rate was used to analyze peak hour with the largest potential impact on the surrounding road network, given the nature of the proposed project. The Bat Nita Mediation Center currently exists and is operational, so trip generation estimates have been determined based on the net increase in trip generation to the proposed mediation center. Proposed project trip generation was estimated using ITE Land Use 560: Church trip rates, which provides a generation factor of 36.63 trips per 1,000 square feet. As shown in Table 3 -19 below, operation of the proposed project would generate approximately 473 net daily trips, with 151 (75 inbound, 75 outbound) occurring during peak hour. The Bat Nha Buddhist Meditation Center 3-83 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -137 City of Santa Ana Table 3 -19. Project Traffic Generation Forecast Environmental Checklist Sunday Peak ITE Land Use Code /Project Descriotion ADT In Out Total Generation Factors 560: Church (TE /1,000sf) 36.63 50% 50% 11.76 Generation Rates Proposed Bat Nha Meditation Center (18,916 so 693 111 111 222 Existing Bat Nha Meditation Center to be Demolished (6,000sf) -220 -36 -36 -71 Project Total 473 75 7S 151 Source: Felir & Peers, Traffic Impact Analysis, 2012. The traffic distribution patterns for the proposed project related trips traveling to and from the project site have been identified based on the site's proximity to the existing roadways, existing traffic Flow patterns, ingress /egress of the project site and adjacent area, and existing and future turn restrictions. The project trip distribution methodology is provided on page 20 of the TIA (Appendix D). The analysis below provides current operating conditions for intersections within the vicinity of the proposed projectand includes a projection of their operating conditions for each phase. Intersections The TIA analyzes six study area intersections located within the City of Santa Ana. The study area intersections analyzed in the TIA are shown on Figure 3 -2. The City maintains an acceptable level of service (LOS) standard of D or better for signalized intersections. While the City of Santa Ana also permits LOS E or better for intersections within "major development areas,' the proposed project is not located within a "major development area" and project area intersection and roadways must maintain an LOS D or better to comply with the City of Santa Ana General Plan, Circulation Element Measure M. The City of Santa Ana does not maintain standards for unsignalized intersection operations; however, acceptable conditions, per the HCM Unsignalized methodology, include LOS C or better. Existing intersection operations were determined by using the Intersection Capacity Utilization (ICU) methodology for signalized intersections. As shown in Table 3 -20, existing signalized intersection operations within the study area operate at LOS B of- better during the peak hour. Therefore, all six study area intersections currently operate at an acceptable level of service during the peak hour. Table 3.20. Existing Peak Hour Intersection Capacity Analysis Minimum V/C or Delay Key Intersection' Acceptable LOS Control Type (seconds)1 LOS Fairview Street at First Street D Traffic Signal 0.616 B Sullivan Street at First Street D Traffic Signal 0.464 Fairview Street at Willits Street D Traffic Signal 0.433 Sullivan Street at Willits Street D Traffic Signal 0.342 Fairview Street at McFadden Avenue D Traffic Signal 0.669 The Bat Nha Buddhist Meditation Center initial 5tudy /Mitigated Negative Declaration 3 -aA 31 C -138 June 2013 ICF 00115.12 ® Figure 3-2 Traffic Study Area Intersections Bat Nha Meditation Center, City of Santa Ana 31 C -139 is DELF1 VE s �. N C"Al AVE z } MADRTDAVE� PPNATEM ORESbENAYE PRIP'CELN s AANATfi RD g � ROYAL IN W PRIN(L% F LULAN VE � _ � • ,za ' � � g ..,i y - rC81tLEST - k' o " Q y— N W N WEUTSSI r lt;e N ' � CAMILE ST wR �+ Lrtssr m • a . W PAYMAR ST: .... 3 x `P , PERSMMON LN ' a ; WILLITS ST , TANG ERNE W MARK Sr COUNTRY QUB a M6m ST i tt Y n MONTA VISTA AVE t, TUGHIAN ST. ' ( i HIGHLAND ST � i l BROOK ST (a BROOK 5 , ' CVBBONST a _ USSON ST LEGEWQ OMCFADDLNA%s Study Intersection ®Project Site Source. Esn. icubed, USDA, Aorci IGN, IGP, and USGS, X, GeoEye o GlS User Fbrnni Getma ih9, ® Figure 3-2 Traffic Study Area Intersections Bat Nha Meditation Center, City of Santa Ana 31 C -139 City of Santa Ana Environmental Checklist Minimum V/C or Delay Key Intersection' Acceptable LOS Control Type (seconds)' LOS Sullivan Street at McFadden Avenue D Traffic Signal 01519 A Notes: Minimum 1. Signalized Intersection. V/C for Intersections based on application of Intersection Capacity Utilization methodology using Traffix software. V/C = volume / Capacity Ratio. 2. The level of service is provided for the worst case Sunday peak hour (10:15 AM -11:15 AM). A = Project change Acceptable Source: Fehr & Peers, Traffic Impact Analysis, 2012. The traffic impacts of the proposed project during the peak hour were evaluated in the TIA based on the existing plus project traffic conditions at the six study area intersections for the proposed project. Table 3 -21 shows the changes in the performance of the intersections from the addition of project - related traffic generated compared to existing conditions. As shown, both signalized intersections within the study area would continue to operate at acceptable levels with operation of the proposed project in the near -term. There is a potential that traffic volumes may increase above levels presented here during limited special events. However, the volumes are difficult to quantify and would be speculative. Therefore, implementation of Mitigation Measure TT -1 would minimize Impacts traffic impacts associated with special events, and reduce impacts to less than significant levels. Table 3 -21. Existing Plus Project— Peak Hour Intersection Capacity Analysis Neighborhood Impacts A neighborhood impacts analysis was prepared for the proposed project to evaluate potential impacts on the adjacent residential areas due to a potential increase in trips through the adjacent residential neighborhood streets, specifically Monta Vista Avenue, to create a potential neighborhood impact. Project related traffic can potentially use Monta Vista Avenue as a "cut- through" route to avoid delay at upstream signalized intersections, such as the intersection of Willits Street and Sullivan Street or First Street and Sullivan Street. Since Monta Vista Avenue is the first available right turn for northbound traffic, this is a feasible option for northbound traffic exiting the site, Inbound traffic would most likely not access the project site via Monta Vista Avenue since most drivers select their route base on "path of least resistance," which would likely be along First Street, Willits Street or McFadden Avenue. These streets have higher speed limits, more through lanes, more capacity, and contain traffic signals which make them more efficient and desirable routes for inbound traffic. The Bat Nha Buddhist Meditation Center 3 -85 June 2013 Initial Study /Mitigated Negative Declaration Icf 00215.12 31C -140 Existing Existing Plus Project Significant Impact Minimum V/C or V/C or Acceptable Delay Delay Key Intersection LOS (seconds)3 LOS+ (seconds)3 LOS^ A Yes /No Fairview Street at First Street D 0.616 B 0.625 B 0.009 No Sullivan Street at First Street D 0.464 A 0.478 A 0.014 No Fairview Street at Willits D 0.433 A 0.453 A 0.020 No Sullivan Street at Willits Street D 0.342 A 0.368 A 0.026 No Fairview Street at McFadden Avenue D 0.669 B 0.676 B 0.007 No Sullivan Street at McFadden Avenue D 0.519 A 0.546 A 0.027 No Neighborhood Impacts A neighborhood impacts analysis was prepared for the proposed project to evaluate potential impacts on the adjacent residential areas due to a potential increase in trips through the adjacent residential neighborhood streets, specifically Monta Vista Avenue, to create a potential neighborhood impact. Project related traffic can potentially use Monta Vista Avenue as a "cut- through" route to avoid delay at upstream signalized intersections, such as the intersection of Willits Street and Sullivan Street or First Street and Sullivan Street. Since Monta Vista Avenue is the first available right turn for northbound traffic, this is a feasible option for northbound traffic exiting the site, Inbound traffic would most likely not access the project site via Monta Vista Avenue since most drivers select their route base on "path of least resistance," which would likely be along First Street, Willits Street or McFadden Avenue. These streets have higher speed limits, more through lanes, more capacity, and contain traffic signals which make them more efficient and desirable routes for inbound traffic. The Bat Nha Buddhist Meditation Center 3 -85 June 2013 Initial Study /Mitigated Negative Declaration Icf 00215.12 31C -140 City of Santa Ana Environmental Checklist Outbound traffic would mimic inbound traffic and travel along Monta Vista Avenue would not be likely. Ultimately, due to the circumstances described above, although some vehicles associated with the proposed project may choose Monta Vista Avenue as an alternate route, most would not due to its limited connectivity, reduced capacity, slower speed limit, unsignalized intersections, and residential nature. Therefore, under normal conditions, the proposed project is not expected to substantially increase daily or peak hour traffic volumes along these roadways. However, as discussed above, there is a potential that neighborhood traffic may increase above levels presented here during limited special events. Therefore, implementation of Mitigation Measure TT -1 would minimize impacts traffic impacts associated with special events, and reduce impacts to less than significant levels. Parking Impacts The proposed project would not provide for adequate parking to serve the proposed project. The City of Santa Ana Municipal Code (Sections 41 -1401 and 41 -1327) provides the City's parking requirements for individual land uses. The code requirements related to the proposed project include: • Church: one space per 35 sf of floor area in seating areas without fixed seats; and • Office space: three spaces for each 1,000 sf of gross floor area. Pursuant to the municipal code, the proposed project would require a total of 123 parking spaces. The proposed project would include 115 onsite parking spaces, and therefore would not meet the minimum parking requirement. Handicap spaces would also be provided pursuant to the City of Santa Ana Municipal Code. An assessment of potential impacts on the adjacent residential neighborhood due to parking intrusion was performed. In order to avoid any potential negative parking impacts, the project proponents have taken the precaution of signing an agreement with the SAUSD to grant permission for use of 55 parking stalls in the parking lot at Lincoln Elementary on Saturdays and Sunday. In the event that more overflow parking is necessary than available onsite and at the elementary school, vehicles may choose to park on Sullivan Street and Monte Vista Avenue, though this is expected to be minimal. Additionally, implementation of Mitigation Measure TT -1 would minimize parking impacts traffic impacts associated with special events, and reduce impacts to less than significant levels. Mitigation Measure TT -1: Prior to the issuance of building permits, the applicant shall prepare a "Traffic Plan for Special Events." The plan shall include, but not be limited to information on the type of event proposed, the homy of operation of the special event, the location of any off -site parking lots and areas of loading and unloading. In addition, information on the number of busses to be utilized, the locations where the busses will be parked, and the expected bus routes shall be incorporated into the plan. The City of Santa Police Department will work with the Meditation Center staff to implement the plan and control traffic during selected special events. The Bat Nha Buddhist Meditation Center 3 &6 June 2013 Initial Study /Mitigated Negative Declaration ICP 00215.17 31C -141 City of Santa Ana Environmental Checklist b. Conflict with an applicable congestion management program, including, but not limited to level of service standards and travel demand measures, at- other standards established by the county congestion management agency for designated roads or highways? No Impact. The Orange County Transportation Authority (OCTA) is the Congestion Management Agency (CMA) responsible for the creation and implementation of the Orange County Congestion Management Program (CMP), which was last updated in 2011. The CMP establishes a Highway System, which includes a series of intersections and highways throughout Orange County, also known as OCTA's Smart Street network, and establishes minimum performance thresholds for these CMP facilities. The nearest OCTA CMP intersections are: • Harbor Boulevard and SR -22 WB Ramps • Harbor Boulevard and 1st Street • Harbor Boulevard and Warner Avenue • I.5 SB Ramps and ht Street • 1 -5 SB Ramps and Edinger Avenue Projects must demonstrate consistency with the OCTA's performance thresholds on the Highway System if the proposed project is estimated to either generate 2,400 or more ADT or contribute 1,600 or more ADT directly onto the Highway System. As shown above under response a„ the proposed project would generate a total of 473 ADT during project operations, which is less than the minimum CMP threshold of 2,400 ADT. Additionally, the project site is located approximately 1 stile from the CMP Highway System and would not contribute 1,600 or more ADT directly onto the Highway System. As such, the proposed project would not trigger a CMP analysis, and no impact would occur. c. Result in a change in air traffic patterns, including either an increase in tr•afpc levels or a change in location that results in substantial safety risks? No Impact. John Wayne Airport is located about four miles to the southeast of the project site, and the Fullerton Municipal Airport is located approximately 10 miles to the northwest (Google Earth 2012). The proposed project is not located within any of the Airport Impact Zones or AELUPs for either airport. Furthermore, the proposed project would develop three -story structures, which would not extend into airspace or be tall enough to result in a change in air traffic patterns or a change in location. Therefore, the proposed project would not result in a change in all- traffic patterns or otherwise result in a safety risk, and impacts would not occur. d. Substantially increase hazards because of a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (eg., farm equipment)? Less - than - Significant Impact. The evaluation of potential increases in hazards because of a design feature typically involve determining if any project - related features would result in changes to the circulation system that could result in physical impacts on automobile traffic or pedestrians. Some examples include poor sight- distance at intersections, sharp roadway curves, and placement of a driveway /site- access road along a high -speed roadway. Primary vehicular access to the project site would be available from two driveways along Sullivan Street spaced 135 feet apart. The driveways are assumed to be full - access, stop - controlled intersections with one entrance and one exit lane each. Traffic is limited to right turn egress The Bat Nha Buddhist Meditation Center 3 E7 June 2013 Initial Study /Mitigated Negative Declaration ar 00215.12 31C -142 City of Santa Ana Environmental Checklist movements during peak hour, on site traffic controls are adequate. On site circulation through the parking lot are provided via both directions, while the underground parking structure is counterclockwise, and does not pose any constraints. All municipal code is met, in -site circulation and traffic control devices are adequate, and drive way spacing is an adequate distance with no obstructions to sight distance for vehicles entering and exiting the site, and therefor impacts will be less than significant and no mitigation measures are be required. e. Result in inadequate emergency access? Less- than - Significant Impact. Emergency access to the site would be from the proposed access points along Sullivan Street at the project driveways. Emergency access to and within the project site will be adequate for both regional and local emergency requirements. The project driveways are 28 feet wide and the internal aisles are 19.25 feet wide, which allows emergency vehicles to enter the project site and travel through the site with a high degree of accessibility. Because emergency vehicles can easily access and travel within the site, impacts related to emergency access on the project site would be less than significant. f. Conflict with adopted policies, plans, or programs regarding public transit, bicycle, or pedestrian facilities, at* otherwise decrease the performance orsafety of such facilities? No Impact. The OCTA provides transit services and bus stops within the immediate vicinity of the project site. OCTA bus routes 47, 64, 66, and 145 are all between 0.25 and 0.5 miles from the project site. The proximity of the project site to five bus stops within 0.25and 0.5 miles would allow students, residents, and employees convenient access to alternative transportation. The OCTA also offers the OCTA ACCESS program and other training programs to assist eligible transit users in learning how to navigate the standard transit system. The proposed project would not alter or conflict with existing bus stops and schedules, and impacts related to OCTA transit services would not occur. The nearest bicycle facilities are Class I bike paths along the Santa Ana River trail (approximately 0.5 miles east of the project site) and a Class 11 bike path exists along McFadden Avenue (800 feet south of the project site). The proposed project will not include any bicycle improvements within the study area would not involve any offsite improvements or result in any identified offsite impacts on bicycle or pedestrian routes. Therefore, no conflicts will occur to any bicycle facilities. Lastly, existing sidewalks would be maintained along Sullivan Street upon implementation of the proposed project. Therefore, the proposed project would not conflict adopted policies, plans, or programs regarding public transit, bicycle, or pedestrian facilities and would not decrease the performance of- safety of any facilities. The Bat Nha Buddhist Meditation Center 3 a8 tune 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31C -143 City of Santa Ana Environmental Checklist b. Require or result in the construction of new ❑ Less -than- ® ❑ water or wastewater treatment facilities or Significant Potentially Impactwith Less -than- Significant Mitigation Significant No XV11. Utilities and Service Systems Impact Incorporated Impact Impact Would the project: a. Exceed wastewater treatment requirements ❑ ❑ ® ❑ of the applicable Regional Water Quality ❑ stormwater drainage facilities or expansion of Control Board? existing facilities, the construction of which b. Require or result in the construction of new ❑ ❑ ® ❑ water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? C. Require or result in the construction of new ❑ ❑ ® ❑ stormwater drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d. Have sufficient water supplies available to ❑ ❑ ® ❑ serve the project from existing entitlements and resources, or would new or expanded entitlements be needed? e. Result in a determination by the wastewater ❑ ❑ ® ❑ treatment provider that serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? E Be served by a landfill with sufficient ❑ ❑ ® ❑ permitted capacity to accommodate the project's solid waste disposal needs? g. Comply with federal, state, and local statutes ❑ ❑ ® ❑ and regulations related to solid waste? Discussion Would the project: a. Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? Less - than - Significant Impact, Wastewater generated is transported from the project site via an existing Orange County Sanitation District (OCSD) trunk sewer line in South Sullivan Street. The wastewater is transported through the OCSD trunk lines to be treated at the OCSD Reclamation Plant No. 1, in the City of Fountain Valley. This wastewater treatment facility is currently undergoing an expansion project, which will increase secondary treatment to a total design capacity of 180 million gallons per day (mgd) (Orange County Sanitation District 2012). The new facilities at the wastewater treatment plant include six aeration basins, six circular clarifiers, and a new blower building. These ongoing improvements began in 2007 and are estimated to be completed prior to commencement of the proposed project. The Bat Nha Buddhist Meditation Center 3-89 lune 2013 Initial Study /Mitigated Negative Declaration xE 00215.12 31C -144 City of Santa Ana Environmental Checklist OCSD facilities are required to comply with the Santa Ana RWQCB wastewater treatment requirements, and to maintain and follow the MS4 permit, which is the U.S. Environmental Protection Agency (EPA) NPDES permit that regulates discharge of treated effluent into receiving waters (e.g., the Santa Ana River Basin). In 2002, the OCSD adopted an 18 -year Capital Improvement Program (CIP), which identified 125 projects related to upgrading and repairing wastewater facilities in accordance with the wastewater treatment requirements of the Santa Ana RWQCB (OCSD 2002). These projects are intended to assure that facilities continue to meet or exceed the wastewater treatment requirements established by the Santa Ana RWQCB. As part of the project approval process, the project applicant would be required to provide all onsite sewer infrastructure and pay appropriate sewer system connection fees. Existing City Public Works Department requirements would ensure that wastewater treatment requirements of the RWQCB are not to be exceeded. Therefore, wastewater generated by the proposed project would not cause OCSD to exceed wastewater treatment requirements of the Santa Ana RWCQB. As such, project impacts on wastewater treatment requirements would be less than significant. b. Require o• result in the construction of new water or wastewater treatment factlities or expansion of existing factlities, the construction of which could cause significant environmental effects? Less - than - Significant Impact. Water Facilities. The City of Santa Ana obtains water from two sources: groundwater and imported water. Approximately 62% of the City's water supply is derived from groundwater that is pumped to the surface from 20 City- operated wells. The other 38% of water is imported from the Metropolitan Water District of Southern California (City of Santa Ana 2010). The Metropolitan water is treated at either the Robert B. Diener Filtration Plant located in YDrba Linda or the Weymouth Filtration Plant in La Verne before being delivered to the city. There are a total of seven Metropolitan connections located in the city. The City of Santa Ana 2005 Urban Water Management Plan projected water supplies to total approximately 37,120 afy and 20,140 afy from groundwater production and Metropolitan import, respectively (City of Santa Ana 2005). The Orange County Groundwater Basin underlies the north half of Orange County beneath broad lowlands. The groundwater basin generally operates as a reservoir in which the net amount of water stored is increased in wet years to allow for managed overdrafts in dry years. The basin is recharged primarily from local rainfall (greater in wet years), base Flow from the Santa Ana River (much of which is actually recycled wastewater from treatment plants in Riverside and San Bernardino Counties), imported water percolated into the basin, and recycled wastewater directly recharged into the basin (City of Santa Ana 2005). The City is in compliance with the Safe Drinking Water Act and monitors regulated and unregulated compounds in its water supply and, in years past, the water delivered to the City meets the standards required by the state and federal regulatory agencies. Additionally, OCWD which manages the Orange County groundwater basin conducts a comprehensive water quality monitoring program which includes source water protection; surface water monitoring; constructed wetlands; public outreach; and regulation (City of Santa Ana 2005). Both the Robert B. Diemer Filtration Plant and F.E. Weymouth Treatment Plant are one of the largest filtration plants in the United States. They each deliver up to 520 million gallons per day. Automated systems regulate water levels and pressures, and have precise monitoring and surveillance The gat Nha Buddhist Meditation Center 3-90 June 2013 Initial Study /Mitigated Negative Declaration ICF00215.12 31C -145 City of Santa Ana Environmental Checklist capabilities. This allows plant operators to anticipate and meet demands, as well as respond rapidly to emergency situations (Metropolitan 201 la, 2011b). The Robert B. Diemer Filtration Plant is undergoing an expansion project which includes a new ozone disinfection system to further improve water quality, improved electrical power facilities, fire and potable water pump station, and oxygen storage facilities (Metropolitan 2011c). There is an existing 12 -inch water supply pipeline in South Sullivan Street, which supplies water to the project site. The proposed project includes development of connections to the existing water supply line pursuant to City requirements. As described in the Project Description, Chapter 2, the project site is currently developed with two single family residential structures and several ancillary buildings that are used for the Bat Nha Buddhist Temple facilities. The proposed project would demolish the existing onsite structures that are currently used for religious purposes and would redevelop the site with one large building that would be used for similar religious purposes. The proposed project would add additional capacity to the site and provide for future onsite meditation center activities. A slight increase in the daily number of visitors and a large increase in the number of visitors that would attend the three annual festivities is anticipated as a result of the proposed project. Currently, four people reside on the project site (the Master and his three assistants). Table 3 -22 provides a comparison of the existing water demand and the anticipated water demand for the proposed religious facility uses. Table 3 -22. Historic and Projected Water Demand from Religious Facility Uses Indoor' Generation Factor: Dutdoor2 Generation Factor: 86 gpd/1,0( 1 134 gpd /1,000 gsf Size Average Average Average Size Average Average Average (gS03 Flow Flow Flow (gsf) Flow Flow Flow Existing 5,500 473 0.33 0.53 Proposed 8,551 735 0,51 0.82 17,323 2,321 1.6 2.6 Difference 3,051 262 0.18 0.29 117,323 2,321 1.6 2.6 Notes: I Indoor uses include first floor level kitchen and restrooms, and all second floor areas except the deck and hallway as Identified in Table 2 -2. It does not include areas for parking or courtyard or landscaped areas. 2 Outdoor uses include Total Landscaped Areas as identified in Table 2.2. a gsf= gross square feet Source: Environ. 2011. CalEE Mod Table 9.1 Water Use Rates for Place of Worship. Using the square footage for the existing and proposed meditation facilities and a generation factor for "place of worship" from the California Emissions Estimator Model (Environ 2011), it is estimated the proposed meditation facilities would utilize approximately 3,056 gpd of water which equates to approximately 2.89 afy. This is approximately 2.36 afy more than the existing conditions. In comparison to the UWMP 2015 projections of 37,120 afy of groundwater supplies and 20,140 afy, of MWD supplies, the proposed meditation facilities would account for less than 0.01% of the total water demand. Although the proposed project would result in an increase in water demand, it is not expected that the proposed project would result in the need for expansion or construction of new water treatment facilities. The proposed project represents less than 0.01% of the City's total water supply projected in 2015. Furthermore, the City projects water demand in the City could remain relatively constant The Bat Nha Buddhist Meditatlon Center 3-91 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31C -146 City of Santa Ana Environmental Checklist over the next 20 years due to minimal growth combined with water use efficiency measures and the increased use in recycled water. Projects have been identified by the City to improve water supply reliability and enhance operations include replacement of sewers, water mains, pump stations, chlorinators and improvement project SCADA systems. Therefore, the proposed project would not result in the need for expansion or construction of new water treatment facilities and impacts would be less than significant. Wastewater. The City's Sewer Master Plan shows that the OCSD sewer hunk line within South Sullivan Street was developed in the 1950s, Wastewater from the project site would be transported via the existing OCSD trunk line south to be treated at OCSD's reclamation plant in Fountain Valley. This wastewater treatment facility is currently undergoing capacity enhancement projects in order to comply with secondary treatment standards required by the EPA under a Federal Consent Decree. The facility currently treats an average of 97 mgd of wastewater and is upgrading to a total design capacity of 180 mgd (OCSD 2010). As identified by the City's Sewer Master Plan, the sewer line serving the project site has existing flows that range between 50 and 75% depth to diameter ratio, which is dependent upon dry or wet weather flows. The Master Plan shows that there are no planned capital improvements for the sewer line within South Sullivan Street. According to OCSD Ordinance No OCSD -35, a church building is assumed to generate 20 percent of what a single family residence generates per 1,000 square feet of building space. Given that a single family residence generates approximately 253 gpd, a church facility would generate 20 percent of 253 gpd per 1,000 square feet of building space (Covarrubias pens. comm.). Therefore, a church facility would generate approximately 50.6 gpd per 1,000 square feet of building space. Table 3 -23 provides a comparison of the existing wastewater generation and the anticipated wastewater generation using the OCSD's generation factors. The proposed project would generate approximately 433 gpd of wastewater which is approximately 155 gpd more than the existing conditions. This equates to a total of approximately 0.49 afy of wastewater which is approximately 0.18 afy more than the existing conditions. As described below under XVil.e., the Fountain Valley wastewater treatment facility currently processes 97 mgd and is anticipating to upgrade to 180 mgd. The increase of 155 gpd, or 0.000155 mgd, associated with the proposed project would represent less than 0.01% compared to existing treated wastewater levels and would not be substantial in comparison to the treatment design of the plant or the expected increase in capacity. As such, the increase in wastewater generation associated with the project would not result in the construction of new or expanded facilities, and impacts would be less than significant. Table 3.23. Historic and Projected Wastewater Generation for Church Building Average Flow Average Flow Average Flow Size(gsf)t (gpd) (gpm) (afy) Existing 5,500 278 0.19 0.31 Proposed 8,5512 433 0.30 0.49 Difference 3,051 155 0.11 0.18 Notes: 1 gsf = gross square feel. Proposed gsf include first floor level kitchen and restrooms, and all second floor areas except the deck and hallway as identified in Table 2 -2. It does not include areas for parking or courtyard or landscaped areas. Source: OCSD 2000. The Bat Nha Buddhist Meditation Center 3-92 fine 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31C -147 City of Santa Ana Environmental Checklist c. Requite or result In the construction of new storrnwater• drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? Less - than - Significant Impact. The project site does not include any stormwater drainage facilities and stormwater sheet flows from the site to existing six -inch concrete curb and gutter along the east side of Sullivan Street. The project site is currently 60% impervious and would increase to 91.7% as a result of the proposed project. The proposed project building would be located in the middle of the site with driveways on the north and south side, and parking in the rear with a surrounding landscape area. The project site includes grassy swales along northern and southern property line to reduce stormwater runoff and to provide a biotreatment BMP pursuant to the Orange County Low Impact Development (LID). The swales are designed to accommodate the site drainage and will have a two -foot bottom width and a 3:1 side slope within a four -foot wide area adjacent to the project perimeter wall. Stormwater will sheet flow to each side of the building where gutters along the ground and roof of the building will convey storrnwater toward the grassy swales. in addition to the swales, runoff that is captured by the driveway ramps or parking garage will be intercepted by drain inlets and pumped it to the sanitary sewer, thereby not draining offsite. This is further described in the Drainage Study, included as Appendix C. Because the proposed grassy swales and other onsite drainage are designed to accommodate onsite stormwater, new or expanded offsite drainage facilities would not be required to accommodate the proposed project, and impacts would remain less than significant. d. Have sufficient water supplies available to serve the project from existing entitlements and resources, or would new or expanded entitlements be needed? Less- than - Significant Impact. Domestic water for the proposed project would be provided by the Water Resources Division of the City of Santa Ana Public Works Agency, In 2010, the City of Santa Ana received 62% of its water from the Orange County Groundwater Basin, which is delivered to the City by the OCWD. The remaining 38% is imported water that was purchased from Metropolitan (City of Santa Ana 2010). The City also receives recycled water after advanced treatment from the OCWD facility, Green Acres Project. These recycled supplies can offset the demand for potable water supplies. Water use and availability is detailed in Urban Water Management Plans (UWMPs), which are required to be updated every 5 years to provide estimates of current water usage and typically project water use over a 25- to 30 -year period. Santa Ana's most recent UWMP was prepared and adopted in November 2005. At that time, the City maintained 444 miles of transmission and distribution mains, 8 reservoirs with a storage capacity of 49.3 million gallons, 7 pumping stations, 19 wells, and 7 import connections. Also, the amount of annual water use for the 2005 fiscal year was 44,920 acre -feet a year (afy), which was below the available 48,722 afy of supply for that year. Table 3 -24 shows the UWMP's projected supply and demand until 2030 for normal and single -dry water years, as well as multiple dry years for the following five year periods: 2011 -2015, 2016- 2020, 2021 -2025, and 2025 -2030. As shown in Table 3- 24Tabie 3 -, the City of Santa Ana is projected to have a water surplus each reporting year. The smallest surplus for the City is projected to occur during a single dry water year for 2030, which is estimated at 2,460 afy. As stated above in Response (b), the proposed project would require 3,056 gallons per day (gpd) of- approximately 2.89 afy. This is approximately 2.36 afy more than the existing conditions. In comparison to the UWMP 2015 projections of 37,120 afy of groundwater supplies and 20,140 afy of The Bat Nha Buddhist Meditation Center 3 93 June 2013 Initial Study /Mitigated Negative Declaration ICf 00215.12 31C -148 City of Santa Ana Environmental Checklist MWD supplies, the proposed meditation facilities would account for less than 0.01% of the total water demand. Because the City is projected to have an annual water surplus and the proposed project would not substantially increase water demand on the project site, the proposed project would not require new or expanded water entitlements. Sufficient water supplies would be available to serve the project from existing entitlements and resources, and no new or expanded entitlements be needed to serve the project. Therefore, project impacts related to water resource entitlements are less than significant. Table 3 -24. City of Santa Ana Projected Water Supply and Demand (AFY) 2010 2015 2020 2025 2030 Normal Water Year Supply 54,810 57,410 61,560 63,800 62,750 Demand 50,190 53,180 55,970 59,280 59,540 Difference 4,620 4,230 5,590 4,520 3,210 Single Dry Water Year Supply 55,710 60,290 63,880 66,100 65,270 Demand 52,950 56,100 59,050 62,540 62,810 Difference 2,760 4,190 4,830 3,560 2,460 Multiple Dry Water Years (2011 -2015) Supply 55,330 55,850 60,160 59,620 60,830 Demand 50,790 51,390 55,460 54,530 56,100 Difference 4,540 4,460 4,700 5,090 4,730 Multiple Dry Water Years (2016 -2020) Supply 58,240 59,080 63,180 62,890 64,460 Demand 53,740 54,300 58,520 57,460 59,050 Difference 4,500 4,780 4,660 5,430 5,410 Multiple Dry Water Years (2021.2025) Supply 62,010 62,460 66,160 65,410 66,610 Demand 56,630 57,290 61,840 60,790 62,540 Difference 5,380 5,170 4,320 4,620 4,070 Multiple Dry Water Years (2026 -2030) Supply 63,590 63,380 66,480 65,020 65,540 Demand 59.330 59,380 63,420 61,690 62,810 Difference 4,260 4,000 3,060 3,330 2,730 Source: City of Santa Ana 2005 Urban Water Management Plan, e. Result in a determination by the wastewater treatment provider that serves or may serve the project that it has adequate capacity to serve the project's projected demand In addition to the provider's existing commitments? Less - than - Significant Impact. The OCSD provides for the collection, treatment, and disposal of wastewater for a 479 square -mile area in central and northwestern Orange County, including the The gat Nha Buddhist Meditation Center 3-94 June 2013 Initial Study /Mitigated Negative Declaration ICr 00215.12 31C -149 City of Santa Ana Environmental Checklist proposed project site. The OCSD treats about 207 million gallons on a daily basis at the Fountain Valley and Huntington Beach Wastewater Treatment Plants, combined (OCSD 2010). As described under Response (b), wastewater from the project site would be treated at the wastewater treatment plant in Fountain Valley. The facility currently treats an average of 97 mgd of wastewater and is upgrading to a total design capacity of 180 mgd (OCSD 2010). As described above, operations at the proposed meditation center are expected to generate approximately 433 gpd of wastewater, which is approximately 155 gpd more than the existing conditions. This equates to a total of approximately 0.49 afy of wastewater which is approximately 0.18 afy more than the existing conditions. Compared to the existing 97 mgd of wastewater treated daily at the Fountain Valley wastewater treatment facility, the proposed project would represent an increase of less than 0.01% over existing conditions. In comparison to the upgraded plant design capacity of 180 mgd, the proposed project increase would represent an increase of 0.000086%. Because the proposed project wastewater flows would not be substantial in comparison to the treatment plant design capacity, the proposed project would result in less- than - significant impacts related to wastewater treatment plant capacity. j. Be served by a landfill with sujjlcient permitted capacity to accommodate the projects solid waste disposal needs? Less-than-Significant Impact. The proposed project site would be served by three landfills operated by the Orange County Integrated Waste Management Department (OCIWMD), including the Frank R. Bowerman Landfill in Irvine, the Olinda Alpha Landfill in Brea, and the Prima Deshecha Landfill in San Juan Capistrano, Table 3 -25 provides an overview of each landfill with its current permitted capacity and remaining capacity. As shown, all three landfills have at least half of their maximum permitted capacity remaining. Table 3 -25. Existing Landfill Conditions Landfill Frank R. Bowerman Olinda Alpha Prima Deshecha Size (acres) 725 565 1,530 Cease Operation 2053 2021 2067 Permitted Daily Capacity (tons /day) 11,500 8,000 4,000 Maximum Permitted Capacity (cy) 266,000,000 74,900,000 172,900,000 Remaining Capacity (cy) 205,000,000 38,578,383 87,384,799 Percent Remaining 77% 51% 50% Source: Ca)Recyle 2012a, b, c. The proposed project could contribute solid waste to any of the three available landfills in Orange County; however, the majority of waste from Santa Ana, about 75%, is sent to the Bowerman Landfill. As described in the Project Description, Chapter 2, the proposed project would result in the demolition of the existing onsite structures that are currently used for religious purposes and would result in the redevelopment of the site with one large building to be used for similar religious purposes. The proposed project would add additional capacity to the site and provide for future onsite meditation center activities. The project anticipates a slight increase in the daily number of The Bat Nha Buddhist Meditation Center 3-95 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -150 City of Santa Ana Environmental Checklist visitors and a large increase in the number of visitors that would attend the three annual festivities. Currently, four people reside on the project site (the Master and his three assistants) and would continue to reside on the project site once the meditation center is operational. To determine solid waste generation, this analysis uses the public /institutional waste generation factor of 0.007 lb /sq ft /day (CalRecycle 2009). Since the proposed project would develop approximately 53,168 square feet, including parking and landscaped areas, the proposed project would result in the generation of approximately 372 pounds of solid waste per day. This would be less than 0.1% of the permitted daily capacities of the three landfills listed above, which range from 4,000 to 11,500 tons per day. Construction waste generated by the proposed project would result in a temporary increase in the total construction and demolition waste the landfills receive during the 19 month construction period. The Frank R. Bowerman Landfill, Olinda Alpha Landfill, and Prima Deshecha Landfill would be able to accommodate the increase in solid waste generated by the proposed project during construction and operation. As a result, the proposed project's impacts related to solid waste disposal and landfill capacity is less than significant. g. Comply with federal, state, and local statutes and regulations related to solid waste? Less - than - Signiflcant Impact. The proposed project is a Buddhist meditation center. Solid waste generated by the proposed project would consist primarily of the standard organic and inorganic waste normally associated with places of worship. Substantial hazardous wastes are not anticipated. The project would provide facilities for solid waste recycling. As noted above, the site is adequately served by local landfills. The project would comply with all applicable federal, state, and local statutes and regulations related to solid waste handling, transport, and disposal during both construction and long -term operation. Additionally, per the California Integrated Waste Management Act of 1989 (AB 939), the City has implemented a recycling program to divert at least 50% of all solid waste by January 1, 2000. As such, the proposed project would be required to comply with a Source Reduction and Recycling Element (SRRE) program, which was submitted and approved by CalRecycle to divert solid waste. Compliance with the SRRE program would ensure that the proposed project would remain in compliance with AB 939 and impacts would be less than significant. The Bat Nha Buddhist Meditation Center 3 -96 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31C-151 City of Santa Ana Environmental Checklist Less -than- Significant Potentially Impactwith Less -than- Significant Mitigation Significant No XVIII. Mandatory Findings of Significance Impact Incorporated Impa a. Does the project have the potential to degrade ❑ ® ❑ the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self - sustaining levels, threaten to eliminate a plant or animal community, substantially reduce the number or restrict the range of a rare or endangered plant or animal, or eliminate important examples of the major periods of California history or prehistory? b. Does the project have impacts that are ❑ ® ❑ ❑ individually limited but cumulatively considerable? ( "Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.) c. Does the project have environmental effects ❑ ® ❑ ❑ that will cause substantial adverse effects on human beings, either directly or indirectly? Discussion Would the project: a. Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish at, wildlife species, cause a fish or wildlife population to drop below self - sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal, or eliminate important examples of the major periods of California history or prehistory? Less -than- Significant Impact with Mitigation Incorporated. The project site currently consists of two fully developed parcels with two single family residential structures and several ancillary buildings that are used for the Bat Nha Buddhist Temple facilities. The site is surrounded by a six - foot tall block wall on three sides and a roadway along the western boundary. No sensitive plant or animal species exist on site, and habitat to support sensitive species also does not exist, Further, there are no wetland areas or migration routes on the project site. However, the existing trees onsite have the ability to host nesting birds, and as a result, a mitigation measure is included in Section IV, Biological Resources, to reduce potential impacts on nesting birds to a less- than - significant level. Impacts on nesting birds would be reduced to a less- than - significant level with the incorporation of a pre - construction survey (MM- BIC -I). With the incorporation of the mitigation measure identified in Section IV, Biological Resources, impacts on the quality of the environment related to biological resources would be reduced to a less- than - significant level. The Bat Nha Buddhist Meditation Center 3 97 lone 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -152 City of Santa Ana Environmental Checklist Regarding California history or prehistory, the project site has not required substantial excavation to develop the existing buildings on site and no documented studies or excavations have occurred on the site. As such, the potential to discover unknown buried archaeological or paleontological resources exists and therefore, potentially significant impacts on important examples of the major periods of California history or prehistory exits. Impacts on archeological and paleontological resources would be reduced to a less- than - significant level with the requirement that a qualified professional archeologist and paleontologist (MM -CR -1 and MM -CR -2, respectively). With the incorporation of the mitigation measures identified in Section V, Cultural Resources, impacts on California history and prehistory would be reduced to a less- than - significant level. b. Does the project have impacts that are Individually limited but cumulatively considerable? ( "Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects ofpast projects, the effects of other current projects, and the effects of probable future projects.) Less - than - Significant Impact with Mitigation Incorporated. As described in the previous sections of this environmental checklist, the proposed project would result in less than significant direct impacts with mitigation measures on air quality, biological resources, geology and soils, noise, and transportation and traffic. Implementation of mitigation measures identified in the aforementioned resource areas of this document are required to reduce project impacts to a less - than- significant level. A cumulative impact could occur if the project would result in an incrementally considerable contribution to a significant cumulative impact in consideration of past, present, and reasonably foreseeable future projects for each resource area. The cumulative study area is confined to an approximate two -mile radius from the project site, and includes the cumulative projects listed in Table 3 -26. Although for some resources, cumulative impacts are considered over a greater area, and are addressed accordingly. Table 3 -26. Cumulative Projects List No. Project Anticipated Opening Year Description 1 Wintersburg Presbyterian Church 2012 Expansion of 24,348 sf church facilities 2 Torres Medical Office 2012 Construction of 6,000 sf medical office 3 Rite Aid /Walgreetls 2014 Construction of 15,836 sf retail building 4 Compassion Meditation Center 2014 Construction of 8,000 sf meditation center 5 The Academy Charter High School 2013 Construction of 146,136 sf residential high school for 450 students (including 80 residents) 6 Dayton Commercial Center 2012 Construction of 7,275 sf commercial center 7 Downtown Artists' Lofts HI 2012 Construction of 16 artist live /work lofts The following analysis evaluates the project's potential to contribute considerably to a cumulative impact. The proposed project would be required to implement all regional water quality permitting procedures; would not result in any land use impacts, would not handle, dispose, or transport The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3-9g ICF 00715.12 31 C -153 City of Santa Ana Environmental Checklist hazardous materials or cause a hazardous release; is not located in a valuable mineral resource area; would not add to the population to the region; and, would not substantially increase the use of public services or utilities such that new services would be required. Therefore, any less -than- significant impact the proposed project has on these resources would not contribute to significant cumulative impacts to a considerable degree when combined with the past, present, and reasonably foreseeable cumulative project list. Impacts related to these environmental topics would be less than cumulatively considerable. A cumulative evaluation for the remainder of the environmental resource areas are provided below. Aesthetics Implementation of the proposed project would include the construction and operation of a new two - level meditation center within an existing urban residential and mixed use area. The construction and operation of the proposed project would be similar in nature to the surrounding residential and uses in the vicinity of the project site. The past, present, and reasonably foreseeable future projects would not degrade or detract from the urban built out nature of the City of Santa Ana. Therefore, any less - than - significant impact the proposed project has on aesthetics would not represent a considerable degree when combined with the past, present, and reasonably foreseeable cumulative project list and would not contribute to a cumulative impact. Impacts would be less than cumulatively considerable. Agriculture and Forest Resources The proposed project is located in a fully developed urban environment and would develop a meditation center on an infill redevelopment parcel. The City of Santa Ana, including the proposed project site, is classified as "urban and built -up land" and does not contain any agricultural uses of- forest resources. Therefore, the past, present, and reasonably foreseeable future projects in the City of Santa Ana would not have the potential to cumulatively contribute to impacts related to agriculture or forest resources. Air Quality The cumulative study area for air quality is the entire South Coast Air Basin. As the Basin is currently In nonattainment for ozone, CO, NOx, PM1O, and PM2.5, cumulative development could violate an air quality standard or contribute to an existing or projected air quality violation. The SCAQMD recommends that individual projects that exceed the SCAQMD recommended daily thresholds for project - specific impacts be considered to cause a cumulatively considerable increase in emissions for those pollutants for which the Basin is in nonattainment. As discussed previously in Section 111, "Air Quality," mitigation measures have been included to ensure that cumulative construction would not exceed the thresholds for nonattainment pollutants (VOC, NOx, PM10, and PM2.5) of significance recommended by the SCAQMD. With implementation of Mitigation Measures AQ -1 and AQ -2 construction impacts would be less than significant. Therefore, cumulative impacts would also be considered less than significant by SCAQMD. Biological Resources The cumulative study area for biological resources includes the areas shown on Figure 3 -3. The proposed project setting is highly urbanized and few biological resources remain in the surrounding areas. The related projects listed in Table 3 -26, are infrll or redevelopment of existing uses within the urban area. Substantial existing biological resources do not exist within these related project The Bat Nha Buddhist Meditation center 3 -99 June 2013 Initial Study /Mitigated Negative Declaratlon ICF 00215.12 31 C -154 City of Santa Ana Environmental Checklist areas. Present and future projects would comply with requirements of the MBTA to avoid and /or mitigation potential impacts on protected nests and pursuant to existing federal and state regulations would be required to implement restoration and replacement efforts for any impacts on special status plants and wildlife. Changes from the proposed project in combination with other past, present, and reasonably foreseeable future projects will not contribute to a cumulatively considerable impact on biological resources. After the incorporation of mitigation measure provided herein that will reduce impacts on biological resources to a level below significant, the project's incremental contribution would not result in a cumulatively considerable impact. Cultural Resources The cumulative study area for cultural resources includes the two -mile radius, as shown on Figure 3 -3. The proposed project is located in a fully developed urban environment and would develop a meditation center on an infiil redevelopment parcel. Present and future projects in the City of Santa Ana would be required to retain a qualified professional archaeologist and paleontologist for grading activities if no previous studies have been performed on the site. Due to the site - specific nature of cultural resources impacts, changes from the proposed project in combination with other past, present, and reasonably foreseeable future projects will not contribute to a cumulatively considerable impact. After the incorporation of the mitigation measures provided herein the project is not expected to impact cultural resources, and also is not anticipated to have any cumulative impacts on historic, archaeological, or paleontological resources. Geology and Soils The cumulative setting for geology and soils includes all the development and infrastructure that have occurred in the City of Santa Ana in the past and would be expected to occur in the future, including the projects listed in Table 3 -26. Past, present, and future development could be affected by existing widespread southern California geologic conditions and result in ground shaking, landsliding, and soils movement, which ultimately could result in significant impacts on the environment. However, similar to the proposed project, past, present, and future projects have been and would continue to comply with the CBC and to implement specific building techniques to minimize seismic damage. As described in Section VI, Geology and Soils, impacts of the proposed project would be reduced by implementing mitigation to ensure appropriate geotechnical engineering reduces effects of potential seismic events and the potential impacts related to the existing geologic and soils environment on site. Thus, geologic and soils impacts related to the project would be less than significant after mitigation and would not be cumulatively considerable. Greenhouse Gasses As described in Section VII, the proposed project's annual GHG emissions under BAU conditions are estimated to be 1,336 metric tons CO2e. To put this number into perspective, statewide CO2e emissions for year 2009 were estimated to be 456.8 million metric tons. Project- specific Mitigation Measures GHG -1 through GHG -3 have been included to reduce greenhouse gasses generated by the project and reduce impacts to a less than significant level. GHG emissions would be further reduced with implementation of AB 32 seeping measures such as Pavley emissions standards, the low- carbon fuel standard, and renewables portfolio standard, among other standards. Implementation of Mitigation Measures GHG -1 through GHG -3, along with state implementation of AB 32 Seeping Measures, would reduce the incremental GHG emissions associated with the proposed project by approximately 30%. The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 3 -100 [CF 00215.12 31 C -155 ICF City of Santa Ana Environmental Checklist As discussed earlier under Regulatory Setting and demonstrated above in Table 3 -10, the proposed project would be consistent with California's goal of reducing GHG emissions state -wide under All 32 through its reduction of emissions by 30% compared to the BAU conditions. The proposed project's amount of emissions, without considering other cumulative global emissions, would be insufficient to cause climate change. The proposed project also would be consistent with the state's goals of reducing GHG emissions to 199O levels by 2020. As such, the proposed project's contribution to climate change /worldwide GHG emissions would be less than significant Hazards and Hazardous Materials The scope of analysis for cumulative impacts associated with accidental spills, releases, or explosions of hazardous materials encompasses the project vicinity, including adjacent jurisdictions. Implementation of the proposed project has the potential to contribute to cumulative impacts on hazards and hazardous materials through the transport, storage, use, or handling of hazardous materials. Most of the past, present, and reasonably foreseeable future projects in the area surrounding the project site include religious, residential, and commercial land uses. Many of these may use, handle, store, and /or transport hazardous materials. However, past, present, and foreseeable future projects must comply with all existing hazardous material regulations in place through the local, state, and federal government. Furthermore, since the proposed project involves development of a school, present and foreseeable future projects within 0.25 of the project site would be required per CEQA Guidelines to consider the impacts of emitting hazardous emissions or handling hazardous or acutely hazardous materials, substances or waste near a proposed or existing school. These regulations are in place to reduce the potential of accidental releases, spill, or explosions of hazardous materials and to minimize the environmental and public health impact should one occur. Although projects cannot completely eliminate the probability associated with an accidental release, explosion, or spill, the existing regulations reduce the overall probability and minimize the impacts during a release. Therefore, past, present, and foreseeable future project are not cumulatively considerable. Some types of hazardous materials would be used during construction of the proposed project and hazardous materials would be needed for fueling and servicing construction equipment on the site on a temporary basis. Operation of the proposed residential and school activities generally use hazardous materials including solvents, cleaning agents, paints, pesticides, batteries, and aerosol cans. Although the project would utilize common types of hazardous materials, normal routine use of these products would not result in a significant hazard to residents or workers in the vicinity of the project. As discussed in Section Vlll, "Hazards and Hazardous Materials;' all impacts resulting from the proposed project related to hazards and hazardous materials would be less than significant. Thus, hazards and hazardous materials impacts related to the proposed project would be less than significant and would not be cumulatively considerable. Hydrology and Water Quality The geographic scope for cumulative impacts on hydrology and water quality Includes the Santa Ana River watershed and the Coastal Plain of Orange County Groundwater Basin. The cumulative setting for hydrology and water quality includes all the development and infrastructure that have occurred in the City of Santa Ana in the past and would be expected to occur in the future, including the projects listed in Table 3.26. Implementation of the proposed project has the potential to contribute to cumulative impacts on hydrology and water quality through the generation of stormwater runoff during construction and operation. The majority of the past, present, and reasonably foreseeable The Bat Nha Buddhist Meditation Center 3 -101 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -157 City of Santa Ana Environmental Checklist future projects would have associated construction impacts with the potential to result in discharge of stormwater to surface waters, either directly or, more commonly, via a local stormwater collection system. All of these projects have been and would be required to comply with construction stormwater requirements of the local jurisdiction and compliance with the general NPDES permit for construction stormwater discharges. Furthermore, the BMPs and project design features identified in Response IX(a) would minimize runoff and erosion impacts on hydrology and water quality resulting from development of the proposed project. As discussed in Section IX, "Hydrology and Water Quality;" all impacts resulting from the proposed project related to hydrology and water quality would be less than significant. Thus, hydrology and water quality impacts related to the proposed project would be less than significant and would not be cumulatively considerable. Noise The cumulative study area for noise includes all the projects listed on the cumulative projects list (Table 3 -26). Increases in noise in the vicinity of sensitive uses would occur during construction of the proposed project Simultaneous construction of the proposed projects and related projects in the vicinity of the proposed project area is not anticipated. As shown on Figure 3 -3, no cumulative projects are in the immediate vicinity of the proposed project. The closest project is approximately one mile away from the project site. Noise from the proposed project would not create a cumulatively considerable impact if construction time frames overlapped. Therefore, construction noise from the proposed project is not anticipated to combine with construction noise from other projects, and construction noise from the proposed project would not be cumulatively considerable. Further, as described in Section XII, Noise, the City Municipal Code limits construction activities to between the hours of 7:00 a.m. and 8:00 p.m., Monday through Saturday, and also prohibits construction activities on Sundays and public holidays. Because compliance with this construction time limit is required by the City Municipal Code, the proposed project and all other cumulative development would be exempt, and the cumulative impact associated with construction noise in the Santa Ana area would be considered less than significant. Lastly, because construction- related noise generated under the proposed project would be mitigated by implementation of the noise control measures provided in NOl -1, construction of the project would not result in a cumulatively considerable impact. Cumulative noise impacts are considered for the buildout year 2035. The TIA was used to determine potential traffic- related noise impacts from the proposed project. The future roadway network surrounding the project site was modeled using the TNM noise model with the buildout year traffic volumes with and without the project. Table 3 -27 below shows the project's contribution to the build out year. Table 3 -27. Cumulative Traffic Noise Modeledl Buildout Year Modeledl Buildout Year (2035) Noise Level (2035) plus Project Noise Receiver Receiver Location (dBA CNEL) Level (dBA CNEL) ST -1 Estrillitas State Preschool — 811 S 53 53 Sullivan Street ST -2 Bat Nita Buddhist Temple 805 S 53 54 Sullivan Street The gat Nha Buddhist Meditation Center 3 -102 June 2013 Initial Study /Mltigated Negative Declaration ICF 00215.22 31 C -158 City of Santa Ana Environmental Checklist Modeledl BuildoutYear Modeledl Buildout Year (2035) Noise Level (2035) plus Project Noise Receiver Receiver Location (dBA CNEL) Level (dBA CNEL) ST -3 Villa Del Sol Apartment Complex 800 56 56 Fairview Street ST -4 Bat Nha Buddhist Temple 805 S 48 48 Sullivan Street MR -1 Modeled receiveralong Willits east of 52 52 Sullivan MR -2 Modeled receiver along Willits west 57 58 of Sullivan MR -3 Modeled receiver along McFadden 56 56 east of Sullivan As shown, the project's traffic noise contribution would result in a zero to 1 dBA cumulative noise increase at sensitive receivers surrounding the project site. Thus, traffic noise generated from the project would not increase noise levels and cumulative noise impacts associated with project - related traffic is less than significant. Likewise, Section X11, Noise, describes the onsite noise generators of the proposed project, which includes outside equipment and parking lot noise. As described in the Noise Section, proposed activities on the project site would not result in significant noise impacts, and no mitigation measures are required. Similarly, the noise generated on the project site is not anticipated to substantially increase the ambient noise environment and would not be cumulatively considerable when combined with other foreseeable projects. Population and Housing The cumulative study area for population and housing includes all of Orange County because the project is intended to serve religious residents throughout the County. Past, present, and reasonably foreseeable future projects are not anticipated to result in a cumulative population and housing impact in conjunction with the proposed project. The project includes a meditation center and would not develop single- or multi - family residential units. As a result the project would not result in cumulative impacts related to housing. Additionally, because the project site is currently used as a meditation center, the project is not anticipated to result in the need for employees to be relocated from distant areas. The project would not necessitate the need for construction of new housing o- result in substantial population growth. Furthermore, the proposed project's impacts related to cumulative population and housing are less than significant. Public Services and Recreation The geographic setting for cumulative impacts on public services includes all areas within each public service provider's service area, or within the service areas of the OCFA, SAPD, Garden Grove USD, and the City for parks and recreation services. Past, present, and reasonably foreseeable future projects have and would continue to be required to comply with existing regulations and existing fee structures regarding public services and impacts within the service areas for each of the City's public services are less than significant, and also not cumulatively considerable. The City's Municipal The Bat Nha Buddhist Meditation Center 3 -103 June 2013 Initial Study /Mitigated Negative Declaration 16 00215.12 31 C -159 City of Santa Ana Environmental Checklist Code includes provisions for providing appropriate public services for development and residents throughout the City. The proposed project would be required to contribute a fair -share contribution to fire protection fees, pursuant to City Municipal Code (Resolution No. 6461), the City's Building Security Ordinance and CPTED principles for police protection services. As such, the proposed project's incremental contribution to public services impacts would not contribute to a cumulative impact. Utilities and Service Systems Cumulative impacts on utilities can result from the combined demand of the proposed project with past, present, and reasonably foreseeable future projects on any of the utilities for which the proposed project may have impacts. The geographic scope of the cumulative effect analysis of utilities depends on the service area and capacity of each utility provider and the amount of increased demand for utility services from the proposed project, as well as related projects; and if this combined demand could reduce the availability of utility services. The service areas of the OCSD (wastewater), Santa Ana Public Works Agency ( stormwater), Santa Ana Public Works Agency Water Resources Division and Metropolitan (water supply), and OCIWMD (solid waste) encompass the project site and surrounding area. Many of the projects identified in Table 3 -26 involve infill development that may result in additional demand on utilities and service systems. These projects would not likely require construction and /or expansion of utility lines on their respective sites, and would remain connected existing supply utility lines (usually in streets and other public rights -of -way). The construction of various utility lines is not expected to be carried out as part of the individual projects. As discussed in Section XVII, "Utilities and Service Systems," all utility service providers project to have adequate capacity to meet demands resulting from present and reasonably foreseeable future projects. The proposed project would result in less than significant cumulative impacts on utilities and service systems. The proposed project would not require expansion or construction of new stormwater drainage facilities. Implementation of the proposed project will include project design features identified in Response IX(a) that will minimize runoff off site flows to existing stormwater facilities. The proposed project would not result in increased water demands requiring new or expanded entitlements of water supply. However, the proposed project would result in an increase in water demand by 3,056 gpd of water which equates to less than 0.01% of the City's total water supply. Because the project would utilize less than 0.01% of the City's available water and a water surplus is estimated by the City's 2005 UWMP, impacts on the water utility would not occur and would not result in cumulative impacts. As discussed in Section XVII, "Utilities and Service Systems," the proposed project is expected to result in 155 gpd over existing conditions. While project Flows would increase based on historic Flows from the site, these Flows will not be substantial in comparison to the treatment plant design capacity, the proposed project would not result in cumulative impacts on sewer m• wastewater treatment facilities. In summary, the project's incremental contribution to the service demands of the utilities serving the project area is less than significant. Further, the project's contribution to utility service needs is not cumulative considerable and the proposed project would not result in significant cumulative utilities and service systems impacts. The Bat Nha Buddhist Meditation Center 3.104 June 2013 Initial Study /Mitigated Negative Declaration IOF 00215.12 31 C -160 City of Santa Ana Transportation and Traffic Environmental Checklist The cumulative setting for transportation and traffic impacts includes all of the projects listed on Table 3 -26. The traffic generated from the cumulative projects is provided in Table 3 -28. The traffic cumulative analysis was prepared as part of the TIA (Appendix D), and includes the six intersections analyzed for the proposed project. The traffic implications of past, present, and reasonably foreseeable future projects include near- and future -term scenarios for the years 2014 and 2035, respectively, and thresholds for impacts are determined in the same method as the project -level analysis using ICU increase of 0.010 or greater at an intersection currently operating at LOS E or F. Table 3.28. Cumulative Projects Traffic Generation Forecast Related Project Description Daily Sunday Peak Hour Enter Exit Total 1. Wintersburg Presbyterian Church 331 20 16 36 2. Torres Medical Office 9 2 1 3 3. Rite Aid /Walgreens 1,396 62 62 124 4. Compassion Meditation Centel, 408 25 20 44 S. The Academy Charter High School 113 5 9 14 6. Dayton Commercial Center 184 11 12 23 7. Downtown Artists' Lofts 111 77 4 4 7 Cumulative Projects Trips Generation 2,519 128 123 252 1 Source: City of Costa Mesa (i.e., The Academy Charter High School Transportation Impact Analysis prepared by Fehr & Peers, May 2012). 2 No daily trip rate is available for ITE Code 881 for Sunday so the average weekday daily rate is used. Source: (Appendix D). Near -Term Cumulative Traffic Conditions — 2014 Baseline traffic conditions in the near -term 2014 scenario are comprised of existing traffic conditions, ambient growth, and traffic generated by the cumulative projects (listed in Table 3 -26) within the cumulative study area. As shown in Table 3 -29, intersection operations would not exceed the minimum acceptable LOS without or with the project in the year 2014. As a result, the proposed project would not contribute to any cumulative impacts on intersections in the near -term 2014 condition. Table 3 -29. Year 2014 Peak Hour Intersection Capacity Analysis Minimum Without Project With Project Significant Impact Acceptable 0.443 Sullivan Street at Willits Street D Key Intersection LOS V /Ci LOS V /C1 LOS Increase Yes /No Fairview Street at First Street D 0.639 B 0.641 B 0.002 No Sullivan Street at First Street D 0.475 Fairview Street at Willits D 0.443 Sullivan Street at Willits Street D 0.349 Fairview Sweet at McFadden Avenue D 0.684 A 0.489 A 0.014 No A 0.463 A 0.020 No A 0.374 A 0.025 No B 0.691 B 0.007 No The Bat Nha Buddhist Meditation center 3 -105 June 2013 Initial Study /Mitigated Negative Declaration ¢E 00215.12 31 C -161 City of Santa Ana Environmental Checklist Minimum Without Project With Project Significant Impact Acceptable Key Intersection LOS V /CS LOS V /Cl LOS Increase Yes /No Sullivan Street at McFadden Avenue D 0.523 A 0.557 A 0.034 No tV /C for signalized intersections based on application of Intersection Capacity Utilization methodology using Traffix software, V/C = Volume /Capacity Ratio. 2The level of service is provided for the worst case Sunday peak hour- (10:15 a.m. -11:15 a.m.). Source: Appendix D. Long -Term Cumulative Traffic Conditions -2035 Similar to near -term cumulative traffic conditions, baseline traffic conditions in the year 2035 are comprised of existing traffic conditions, ambient growth, and traffic generated by the cumulative projects as provided in Table 3 -26. As shown in Table 3 -30, none of the study area intersections would operate at unacceptable levels without the project in the long -term cumulative condition. The study area intersections would continue to operate at acceptable levels in the long -term cumulative intersection operations with the proposed project, and the proposed project would not result in any long -term cumulative traffic impacts. Table 3 -30. Year 2035 Peak Hour Intersection Capacity Analysis Minimum Acceptable Key Intersection LOS Without Project V/C' LOS With Project V/C' LOS Significant Impact Yes /N Increase o Fairview Street at First Street D 0.704 C 0.708 C 0.004 No Sullivan Sheet at First Street D 0.553 A 0.567 A 0.014 No Fairview Street at Willits D 0.464 A 0.484 A 0.020 No Sullivan Sheet at Willits Street D 0,386 A 0.411 A 0.025 No Fairview Street at McFadden Avenue D 0.727 C 0.734 C 0.007 No Sullivan Street at McFadden Avenue D 0.550 A 0.567 A 0.017 No 1V /C for signalized Intersections based on application of Intersection Capacity Utilization methodology using Traffix software. V/C = Volume /Capacity Ratio. 2The level of service is provided for the worst case Sunday peak hour (10:15 a.m. -11:15 a.m.). Source: Fehr & Peers, Traffic Impact Analysis, 2012. c. Does the project have environmental effects that will cause substantial adverse effects on human beings, either directly or indirectly? Less - than - Significant Impact with Mitigation Incorporated. Based on the analysis of the above - listed topics, the proposed project would have potentially significant environmental effects on air quality, biological resources, cultural resources, geology and soils, greenhouse gasses, hazards and hazardous materials, noise, and transportation and traffic that could cause substantial adverse effects on human beings, either directly or indirectly. However, implementation of mitigation measures as provided within each of these resource topic sections of this environmental checklist would reduce project - related potentially significant impacts to a less - than - significant level. Therefore, after implementation of mitigation measures, the proposed project would result in a less than significant environmental impact on human beings, The Bat Nha Buddhist Meditation Center 3 -106 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -162 Chapter 4 References Aesthetics Caltrans. 2011. Officially Designated State Scenic Highways and Historic Parkways. Available: <http:/ /www dot.ca gov /hq /LandArch /scenic highways /index.htm >. Accessed: September 13, 2012. Agriculture California Department of Conservation. 2008. Orange County Important Farmland 2008. Available: <tp:/ /fto consry ca goy /nub /dlrp/`FMMP d1{f /200$�QraO8 pdf >. Accessed: September 13, 2012. Air Quality South Coast Air Quality Management District (SCAQMD). 1993. CEQA Air Quality Handbook. Revised November. California Air Resources Board (ARB). 2011. Federal and State ArnbientAirQuality Standards. February 18, 2011. Available:< http: / /www.arb.ca.gov /htm /lawsregs.htm >. Accessed: October 5 2010. California Air Resources Board (ARB). 2011. Top 4 Measurements and Days above the Standard. Available: < htto: / /www arb.ca.govlado tol2four fourl.php >. Accessed: 5 October 2011. Garza, Vicente J., Peter Graney, Daniel Sperling (1996) Transportation Project -Level Carbon Monoxide Protocol. Institute of Transportation Studies, University of California, Davis, Research Report UCD- ITS- RR -96 -01 Environmental Protection Agency (EPA). 2011. The Green Book NonattainnrentAreas for Criteria Pollutants. 30 August 2011. Available:< http;// www.epa,gov /oaAps001 /greenbk />. Accessed: 5 October 2011. Fehr and Peers, 2012. Bat Nha Meditation Center Traffic Impact Analysis. September 2012. South Coast Air Quality Management District (SCAQMD). 1993. CEQA Air Quality Handbook. November. Available: < Jtr;tl2;/Jwww aomd,gov /cega/hdbk.ht1r11 >. Accessed: October 5, 2011. South Coast Air Quality Management District (SCAQMD). 2003. Health Risk Assessrnent Guidance for Analyzing Cancer Risks from Mobile Source Diesel Emissions. Last revised: August 2003. Available:<www.agmd.gov /ce handbook /mobile toxic/diesel anal_ysis.doc. >. Accessed 5 October 2011. The Bat Nha Meditation center June 2013 Initial Study /Mitigated Negative Declaration 4 -t icF 00215.12 31 C -163 City of Santa Ana References South Coast Air Quality Management District (SCAQMD). 2003. Localized Significance Threshold Methodology for CEQA Evaluations. June 2003. South Coast Air Quality Management District (SCAQMD). 2009. Localized Significance Threshold Methodology for CEQA Evaluations: Appendix C. Last revised: 21 October 2009 Available:<http://www.aqmd.i!ov/cega/­handbook/LST/­appC.pd f >. Accessed: 5 October 2010. South Coast Air Quality Management District (SCAQMD). 2011. Meteorological Data far /SCST3 for Costa Mesa. Last revised: 21 May 2009 Available:< http: / /www.aQmd.gov /smog /m tda[ datafiiles/ metdata /`COSMESA.ASC >.Accessed:5October 2010. South Coast Air Quality Management District (SCAQMD). 2011. Carbon Monoxide Concentrations - Projected Future Year 1 -Hour Concentration (ppin). Available http: / /www.agmd.gov /cega /handbook /CO /co table2.doc. Accessed: 5 October 2010. South Coast Air Quality Management District (SCAQMD). 2011. Carbon Monoxide Concentrations - Projected Future Year 8-Hour Concentration (ppin). Available: <hhttl2:// www .agnid.govlcega /handbook /CO /co table3.doc >. Accessed: 5 October 2010. South Coast Air Quality Management District (SCAQMD). 2006. Particulate Matter (PM) 2.5 Significance Thresholds and Calculation Methodology. October 2006. Available: <http: / /www agmd goylcega/handbook /PM2 5 /fnnalmeth doc>. Accessed: 5 October 2010, South Coast Air Quality Management District (SCAQMD). 2007. Air Quality Management Plans. Available: <httgol/www.aqmd.goylaiiiiip/AOMPiiiti-o,btm>. Accessed: 5 October 2011 South Coast Air Quality Management District (SCAQMD). 2012. Air Quality Management Plaits. Available: <htti): / /www.agmd .gov /agmp /2012agmp /index.htm >. Accessed: 5 October 2011 South Coast Air Quality Management District (SCAQMD). 2008. Multiple Air Toxics Exposure Study (MATES 111). September. Available: <http:/ /www agmd gov/ m• das/ mateatll /MATESIIIFinalReportSent2008 htrnl>. Accessed 5 October 2011. South Coast Air Quality Management District (SCAQMD). 2011. Meteorological Sites. Available: littl2://www.aqmd,gov/sinog/metdata/AERMOD Tablet html. Accessed: 5 October 2011 South Coast Ain• Quality Management District (SCAQMD). 2011. MATES III Carcinogenic Risk Interactive Map. Available: httpa/ /www2.agmd gov /webappl/matesiii /. Accessed: 5 October 2011. Western Regional Climate Center (WRCC). 2011. Los Angeles Area, California Climate Summaries. Santa Ana Fire Station, California (047888). Available: < http://www.wrcc.di-i,edu/ceim big /cli MAI N.pl?ca7888 >. Accessed: 5 October 2011. Geology California Department of Conservation, Division of Mines and Geology. 1998. State of California Seismic Hazard Zones Newport Beach Quadrangle. Released: April 15, 1998. Available: <http: / /gmw.consrv.ca.gov /shmp /download /pdf /ozn_newb.pdf>. Accessed: September 13, 2012. The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration 42 I[f 00215.12 31 C -164 City of Santa Ana References City of Santa Ana. 1982. City of Santa Ana General Plan Seismic Safety Element. Adopted September 20,1982. Reformatted January 2010. Santa Ana, California. Greenhouse Gas Emissions California Climate Action Registry (CCAR). 2009. General Reporting Protocol, Reporting Entity-Wide Greenhouse Gas Emissions, version 3.1. Available: http: / /www.climateregistry.org /. January. California Climate Change Center (CCCC). 2006. Our Changing Climate: Assessing the Risks to California. July. California Energy Commission (CEC). 2006. Inventory of California Greenhouse Gas Emissions and Sinks 1990 to 2004. December. Intergovernmental Panel on Climate Change (IPCC). 2007. Climate Change 2007: The Physical Science Basis: Summary for Policymakers. February. Hazards and Hazardous Materials County of Orange. n.d. Wildland Fire. Available: <http: / /www.ocgov.com /vgnfiles /ocgov /EOC /Doc /WILDLAND %20FIRE.udf >. Accessed: January 27, 2012. Department of Toxic Substances Control (DTSC). Available: http://www.eiivirostor.dtsc.ca.i!ovlvtiblici. Accessed: September 13, 2012. Hydrology and Water Quality Coast Community Colleges Hazard Mitigation Plan, 2011. Available: >http: // www. cccd .edu /Iiazard_mitigation /http: // www .cccd.edu /hazard_mitigation /. Accessed: September 13, 2012. County of Orange. 2005. Orange County and Operation Area Emergency Operations Plans, Tsunami Annex. Available: <Iittp;Ileuoy.ocuov co vgnfiles /ocgov /EQCJDoc /TsunaniiAnnex- CounEvPlanModification.pdf>. Accessed: September 13, 2012. Orange County Flood Control District. 2011a. OC Flood Santa Ana River Project. Available: <http: / /wvnv.ocfloo(icom /SARP.aspx >. Accessed September 13, 2012. Orange County Flood Control District. 201 lb. OCFCD Drainage System. Available: <http: / /www.ocfiood.com /Documents /1df /OCFCD facilities o mao.pdf>. Accessed: September 20, 2011. Orange County Flood Control District (OCFCD). 2008. Base Map of Drainage Facilities in Orange County. Sheet No. 29. DWG No. MAPS- 113 -3. Last revised: July 22, 2008. Available: <h ttp: / /www. o c fl ood.com /D o c u In en is /D ra i n ageMaps /Dra inage Fa ci I itiesBasei n d ex Ma p.p d f> Accessed: September 13, 2012. The Bat Nha Buddhist Meditation Center June 2013 Initial Study /Mitigated Negative Declaration A_3 iCF 00215.12 31 C -165 City of Santa Ana References Orange County Water District. 2009. Groundwater Management Plan. Available: http : / /www.ocwd,com /fv- 769.aspx. Accessed September 13, 2012. Orange County Water District. 2012. Groundwater Recharge Operations. Available: <http: / /www.ocwd.com/ Groundwater - Recharge /ca- 34.aspx >. Accessed: September 13, 2012. Santa Ana Regional Water Quality Control Board. 2003. General Waste Discharge Requirements for Discharges to Surface Waters that Pose and Insignificant (De Minimus) Threat to Water Quality. Available: < http: / /wwlv.swrcb.ca.gov /Jrwqcb8lboard decisions /adopted orders /orders /2003/03 061_ge n wdr 08222003,pdf >. Accessed: September 13, 2012. Public Services Evans, Eric. Fire Safety Analyst. Orange County Fire Authority, Irvine, CA. May 14, 2012 —Phone Conversation, Hernandez, Michele. Management Analyst, Orange County Fire Authority. Irvine, CA. May 21, 2012 — Email. McCoy, Mike, Homeland Security Division. Santa Ana Police Department, Santa Ana, CA. May 16, 2012 — Email. Orange County Fire Authority. 2012a. Fire Station #73. Available: <blip;/ /www ocfa o rR /Menu /Departments /Operations /PopUps /stn74 htm >. Accessed: May 14, 2012. Orange County Fire Authority. 2012b. Fire Station #77. Available: <http: / /www.ocfa.org/ Menu /Departments /Operations /PopUps /stn77.htm >. Accessed: May 14, 2012. Transportation /Traffic Fehr & Peers. 2012. BatNlw Meditation Center Transportation Impact Analysis. Draft. Irvine CA. Prepared by Fehr & Peers Irvine CA. Utilities and Service Systems CalRecycle. 2009. Public Sector and Institutions: Estimated Solid Waste Generation Rates. Last updated: December 20, 2009. Available: < http: // www. calrecycle. ca. gov/ wastechar/ wastegenrates /institution.htm >. Accessed: July 30, 2012. CalRecycle. 2012a. Facility/Site Summary Details: Frank R. Bowerman Sanitary LF (30- AB- 0360). Available: < http: // www .calrecycle.ca.gov /SWracilities /Directory/30 -AB- 0360 /Detail / >. Accessed: June 25, 2012, The Bat Nha Buddhist Meditation Center June 2013 Inillal Study /Mitigated Negative Declaration 44 ICF 00215.12 31 C -166 City of Santa Ana References CalRecycle. 2O12b. Facility/Site Summary Details: Olinda Alhpa Sanitary Landfill (30 -AB- 0035). Available: <http: / /www.calrecycle.ca.gov /SWFacilities /Directory/30 -AB- 0035 /Detail / >. Accessed: June 25, 2012. CalRecycle. 2012c. Facility/Site Summary Details: Prima Deshecha Sanitary Landfill (30- AB- 0019). Available: <http: / /www.calrecycle.ca.gov /SWFacilities /Directory/30 -AB- 0019 /Detail / >. Accessed: June 25, 2012. City of Santa Ana. 2005. Urban Water Management Plan. November. Also available: <http,/ /www scag ca.eov/ rcp/ ndf/ Dwmn /Oran2elCilyofSantaAna2O05UWMP odf >. City of Santa Ana. 2010, Water Quality Consumer Confidence Report. Available: < http://www.santa- ana.org/pwa/docunients/WaterQuality2OlOReport-English.pdf >. Accessed: September 17, 2012. Covarrubias, Daisy. Senior Staff Analyst. Orange County Sanitation District, Fountain Valley, CA. June 22,2012—Email. ENVIRON International Corporation. 2011. California Emissions Estimator Model User's Guide. Version 2011.1. February. Prepared for South Coast Air Quality Management District. Emeryville, CA, Metropolitan Water District of Southern California (Metropolitan). 2O11a. The Robert B. Diemer Treatment Plant. Last updated: August 3, 2011. Available at: <J t1,1l2:/ /www nlwdh2o com /mwdh /naees /yourwater last /"diemel'Ol html >. Accessed: June 1, 2012. Metropolitan Water District of Southern California (Metropolitan). 2O11b. F.E. Weymouth Treatment Plant. Last updated: August 3, 2011. Available at: <http: / /www.mwdh2o.com /mwdli2o/ pages /yourwater /plants /weymouthO l.htinl >. Accessed: June 1, 2012. Metropolitan Water District of Southern California (Metropolitan). 2011c. Robert B. Diemer Water Treatment Plant Upgrade. Available at: <http: / /www.mwdh2o.com /mwdh2o /pages /news /at a-glance /New_DiemerFS.pdf >. Accessed: June 1, 2012. Orange County Sanitation District. 2002. Construction Capital Improvement Program. Available: htti)://www.ocsd,cotii/iiidex.aspx?12a2e= 121. Accessed September 17, 2012. Orange County Sanitation District. 2008. Ordinance No OCSD -35. Adopted on February 27, 2008. Orange County Sanitation District. 2010. Capital Improvement Program, Fiscal Year2OO9.2010 Update. Available: www ocsd corn /civica/filebai)k /blobdioad asp ?Bloblp =7983. Accessed: February 2012. Orange County Sanitation District. 2012. Fountain Valley Wastewater Reclamation Facility. Available: <http: / /www.ocsd.com /construction /fountain valley wastewatet_reciamation _facility/default. asp >. Accessed: February 2012. The Bat Nha Buddhist Meditation Center 4 5 June 2013 Initial Study /Mitigated Negative Declaration I[v 00215.12 31 C -167 Chapter 5 List of Preparers City of Santa Ana Vince Fregoso, AICP Principal Planner ICF International Chad Beckstrom Project Director Aaron Brownwood CEQA Analyst Tanya Jones CEQAAnalyst Keith Cooper Air Quality and Greenhouse Gas Specialist Nick Dreves Air Quality and Greenhouse Gas Specialist David Greenwood Architectural Historian Mark Robinson Cultural Resources Mike Greene Noise Specialist Peter Hardie Noise Specialist David Duncan GIS /Graphics Nathan Woodside Editor Jenelle Mountain - Castro Publication Specialist Fehr & Peers Jason D Pack, P.E. Senior Associate Rafael Cobian, P.E., LEED GA Transportation Engineer The gat Nha Meditation Center S 1 June 2013 Initial Study /Mitigated Negative Declaration ICF 00215.12 31 C -168 THE BAT NHA MEDITATION CENTER PROJECT MITIGATION MONITORING AND REPORTING PROGRAM PREPARED FOR: City of Santa Ana Planning and Building Agency 20 Civic Center Plaza, M -20 Santa Ana, CA 92701 Contact: Vince C. Fregoso PREPARED BY: ICF International 1 Ada, Suite 100 (vine, CA 92618 Contact: Chad Beckstrom 949/333 -6625 August 2013 31 C -169 Mitigation Monitoring and Reporting Program Introduction The California Public Resources Code, Section 21081.6(a)(1), requires that a lead or responsible agency adopt mitigation monitoring plan when approving or carrying out a project when an IS /MND identifies measures to reduce potential adverse environmental impacts. As lead agency for the proposed project, the City is responsible for adoption and implementation of the mitigation monitoring plan. An IS /MND for the project has been prepared to address the potential environmental impacts and, where appropriate, recommend measures to mitigate these impacts. As such, a mitigation monitoring plan is required to ensure that the adopted mitigation measures are successfully implemented. This plan lists each mitigation measure, describes the methods for implementation and verification, and identifies the responsible party or parties. Project Overview The project proponent proposes to construct a new two -level meditation center on a 1.46 -acre project site at the Bat Nha Buddhist Temple in the City of Santa Ana. The project is located on two adjacent parcels between West McFadden Avenue and Willits Street in the central portion of the City of Santa Ana. The Project requires a Conditional Use Permit (CUP) to allow a religious facility on a parcel with a Single- Family Residential (R -1) zoning designation, variances to allow a reduction in parking and to exceed to allowable building height, a voluntary lot merger to consolidate the two parcels of land, and approval of the site plan. As part of the City's discretionary review process, the proposed project is required to undergo an environmental review in accordance with the CEQA. The project meditation center would be developed as a podium structure over the 115 onsite parking spaces, which would be on the eastern portion of the site behind the building and at grade below the building structure. The two -story building would be 35 feet high and its towers would be up to 48 feet high. The appearance of the building would be visually integrated into the surroundings by using roofs of varying height on the project structures and by providing covered walkways to link different areas onsite. The building layout and design is intended to create an environment that is conducive to Buddhist teachings and meditation. The architectural style, design, and decoration of the project is traditional Vietnamese, incorporating posts, lintels, open courtyards, "sky wells;' verandas, and hallways to connect different areas of the meditation center. The slanted terra cotta clay tile roofs have slightly curved eaves that extend beyond the building walls, and are proposed to be the same shape of the multi - storied roof structures that top the towers and shade structures onsite. Vietnamese landscaping areas and gardens are provided throughout the project site. The meditation centerwould be open from 10:00 a.m. to 3:00 p.m. weekdays, and would hold regular dharma services, meditation sessions, retreats, and Buddhism classes in both English and The Bat Nha Meditation center Mitigation Monitoring and Reporting Program 31 C -170 August 2013 ICF 00215.12 Vietnamese. The Temple currently has an average of 15 daily visitors; after completion of the project the Temple anticipates an average of 25 visitors per day on weekdays. Weekend services are held every Saturday and Sunday from 9:00 a.m, to 6:00 p.m. The weekend visitors are expected to increase from an average of 40 existing participants to approximately 60 visitors per weekend day once the new center is complete. Weekend classes for children and teenagers are approximately one hour in duration, and include age - appropriate religious instruction, as well as recreational activities. Sunday meditation services for adults are offered from 10:00 a.m. to 11:30 a.m., and again from 4:00 p.m. to 5:30 p.m. These services consist of chanting and singing, as well as quiet meditation. The meditation center has three big events per year, which includes Vietnamese Lunar New Year (late January or early February), Buddha's Birthday (early May), and Mother's Day (mid -May). The existing center attracts approximately 100 visitors for each of these special events. The proposed meditation center will increase the capacity to 200 visitors per event following completion of the project. Construction of the project is anticipated to take approximately 19 months to complete, As shown, the estimated maximum number of construction workers onsite at any one time would be 50, which would occur during building construction activities. Construction of the project would require excavation of 3,021 cubic yards of soil material from the project site. Utilizing typical 20 cubic yard hauling vehicles, this activity will result in 151 truck trips to transport soils for disposal. Large construction equipment including a backhoe, excavator, and a bulldozer will be used during the removal of the existing buildings and improvements onsite, excavation of soils onsite, grading, site trenching, and foundation activities. The project site would be fenced during construction with access limited to construction personnel and other authorized personnel. Nighttime lighting onsite during construction would be limited, providing only lighting necessary for safety and security, Consistent with the City's Noise Ordinance, construction activity would be limited to between 7:00 a.m, and 8:00 p.m. on weekdays and Saturday. No construction is proposed on Sundays or federal holidays. Monitoring and Reporting Procedures The mitigation monitoring plan for the proposed project will be in place through all phases of the project, including design, construction, and operation. The City will be responsible for administering the mitigation monitoring plan and ensuring that all parties comply with its provisions. The City may delegate monitoring activities to staff, consultants, or contractors. The City will also ensure that monitoring is documented through periodic reports and that deficiencies are promptly corrected. The designated environmental monitor will track and document compliance with mitigation measures, note any problems that may result, and take appropriate action to rectify problems. The Bat Nha Meditation Center August 2013 Mitigation Monitoring and Reporting Program z ICF 00215.12 31 C -171 Mitigation Monitoring and Reporting Program Implementation Table 1 lists each mitigation measure included in the draft MND. 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A p a`i d O w G is P, p'Y�rooyv�'v 01w h"s�. aso/ ❑�8 O F a N p av .A o� u� a s ° v m F 0 0 0 e N F 'O y N 0 v w O C e C C'C O 0 � N y V V o a N N E vc�b WyR -09ii 109 0 rFl P" 31 C -181 0 m d v m z E T V N 9 ROH - 08/26/13 RESOLUTION NO. 2013 -12 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SANTA ANA APPROVING: CONDITIONAL USE PERMIT NO. 2013 -26 AS CONDITIONED TO ALLOW A TEMPLE IN THE SINGLE - FAMILY RESIDENTIAL (R1) ZONING DISTRICT, VARIANCE NO. 2013 -09(A) AS CONDITIONED TO ALLOW A REDUCTION IN PARKING, AND VARIANCE NO. 2013 -09(B) AS CONDITIONED TO EXCEED THE ALLOWABLE BUILDING HEIGHT FOR THE PROPERTY LOCATED AT 803 SOUTH SULLIVAN STREET BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Planning Commission of the City of Santa Ana hereby finds, determines and declares as follows: A. The applicant is requesting approval of Conditional Use Permit No. 2013- 26 to allow a temple in the Single - Family Residential (R1) zoning district, Variance No. 2013 -09(a) to allow a reduction in parking, and Variance No. 2013 -09(b) to exceed the allowable building height for the property located at 803 South Sullivan Street. B. Conditional Use Permit No. 2013 -26, Variance No. 2013- 09(a), and Variance No. 2013 -09(b) came before the Planning Commission of the City of Santa Ana for a duly noticed public hearing on August 26, 2013. C. Santa Ana Municipal Code Section 41- 232.5(a) allows churches and accessory church buildings subject to the issuance of a conditional use permit in the R1 zoning district. D. Santa Ana Municipal Code Section 41- 638(a)(1) authorizes the Planning Commission to grant a conditional use permit upon making certain findings. 1. That the proposed use will provide a service or facility, which will contribute to the general well being of the neighborhood or the community. The Bat Nha Buddhist Meditation Center is currently located on the premises and provides services that contribute to the wellbeing of the surrounding community. The proposed expansion of the existing facility will allow the center the ability to provide additional religious services that will continue to benefit the community. The mitigated negative declaration that was prepared for the project has determined Resolution No. 2013 -12 Page 1 of 10 31 C -182 that no adverse impacts will be generated from the expanded facility. 2. That the proposed use will under the circumstances of the particular case be detrimental to the health, safety, or general welfare of persons residing or working in the vicinity. The proposed expansion of the Bat Nha Buddhist Meditation Center will not negatively impact residents or workers in the area since the church and related programs will operate exclusively on a site that is surrounded by walls and fences. Conditions of approval have been incorporated into the project approvals that will minimize impacts to the surrounding properties. Further, the 115 parking spaces to be provided on the site, in conjunction with an off -site parking agreement with the Santa Ana Unified School District, will satisfy the parking requirements for all center operations and will not result in any impacts on the adjacent properties. Finally, no adverse health or safety impacts were identified in the mitigated negative declaration for the project. 3. That the proposed use will adversely affect the present economic stability or future economic development of properties surrounding the area. The expansion project will not adversely affect the economic viability of the area. The expansion project will result in a positive addition to the surrounding area and will complement and improve the economic viability of the area as the new development will identify the area as a stable area for economic investment. 4. That the proposed use will comply with the regulations and conditions specified in Chapter 41 for such use. The proposed Bat Nha Buddhist Meditation Center project will be in compliance with all applicable provisions of Chapter 41 of the Santa Ana Municipal Code and all other provisions that regulate church uses, with the exception of parking and height. The applicant has applied for the necessary variances to allow off -site parking and to allow the structure to exceed the maximum allowable height. 5. That the proposed use will adversely affect the General Plan or any specific plan of the City. The proposed use will not adversely affect the General Plan. The Bat Nha Buddhist Meditation Center is consistent with the General Plan's Land Use Element goals and policies. Goal 1 promotes a balance of land uses to address basic community needs and Goal 3 promotes development that Resolution No. 2013 -12 Page 2 of 10 31 C -183 preserves and improves the character and integrity of neighborhoods. Further, the project is consistent with Policy 1.8 to encourage the development of nonprofit facilities and services as well as Policy 3.1 to promote uses that provide a positive contribution to neighborhood character and identity. E. Variance No. 2013 -09(a) has been filed with the City of Santa Ana seeking to allow an eight (8) space (seven percent (7 %)) reduction in parking. Santa Ana Municipal Code Section 41 -1411 requires a minimum of 123 parking spaces for this project, while the applicant proposes to provide 115 parking spaces. F. Variance No. 2013 -09(b) has been filed with the City of Santa Ana seeking to construct a two -story meditation center with the primary roof element at thirty -eight (38) feet in height, and steeples and other defining features a maximum of forty -eight (48) feet in height in the R1 zoning district. Santa Ana Municipal Code Section 41 -233 establishes the maximum height of buildings to twenty -seven (27) feet and two (2) stories in height in the R1 zoning district. G. Santa Ana Municipal Code Section 41- 638(a)(2) authorizes the Planning Commission to grant a variance upon making certain findings. 1. That because of special circumstances applicable to the subject property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance is found to deprive the subject property of privileges not otherwise at variance with the intent and purpose of the provisions of this chapter. The project site contains a special circumstance related to its size, shape and location. Due to the unique location along a secondary arterial street, denial of the variance would deprive the property owner the privilege of utilizing the facility to its maximum potential and ensure the privileges for its patrons. To address the parking shortage, the applicant is entering into a long term agreement with the Santa Ana Unified School District (SAUSD) to allow nearby off -site parking. Further, due to the project's location on a secondary street, architectural elements that exceed the maximum allowable height are needed to allow the applicant the ability to construct a project that is in conformance with the architectural style for a Buddhist meditation center. 2. That the granting of a variance is necessary for the preservation and enjoyment of one or more substantial property rights. The granting of the variance is necessary for the preservation and enjoyment of substantial property rights. The granting of the variance would allow the property owner Resolution No. 2013 -12 Page 3 of 10 31 C -184 the opportunity to construct a meditation center with less than required parking and with roof elements that are found on similar architectural themed buildings and church structures in the City. 3. That the granting of a variance will not be materially detrimental to the public welfare or injurious to surrounding property. The granting of the variance will not be detrimental to the public or surrounding properties as the building and site have been designed to comply with all applicable development standards except for parking and height. The proposed off -site parking agreement with the SAUSD will provide additional parking that exceeds the minimum required for the center. Further, off -site improvements are required that address disabled accessibility issues from the school parking lot to the site. The proposed roof elements will be consistent with the architectural theme and materials found on similar projects in the City. The height and appearance of the roof elements will blend with the existing buildings and will not be materially detrimental to the public welfare or injurious to surrounding property. The taller roof elements will be setback substantially from nearby properties and will not interfere with the safety of pedestrians or motorists entering or exiting the site. 4. That the granting of a variance will not adversely affect the General Plan of the City. Finally, the project will not adversely affect the general plan in any way as the land use designation of Low Density Residential (IR -7) allows churches and accessory structures in the land use designation. H. As part of the City's permitting process, the proposed project is required to undergo an environmental review in accordance with the California Environmental Quality Act (CEQA). In accordance with CEQA, the recommended actions have been reviewed through a Mitigated Negative Declaration (MND), Environmental Review No. 2012 -3. Section 15063 of the State CEQA Guidelines and Sections 15070 -15075 of Article 6 guide the process for the preparation of a mitigated negative declaration. As a result of the environmental analysis, mitigation measures have been provided to address potential environmental impacts. A list of these mitigation measures are found within the MND document. Mitigation measures have been outlined to address potential impacts on air quality, biological resources, cultural resources, geology /soils, greenhouse gas emissions, hazards and hazardous materials, hydrology, noise and transportation /traffic. Resolution No. 2013 -12 Page 4 of 10 31 C -185 Section 3. The Planning Commission of the City of Santa Ana, after conducting the public hearing, hereby approves for the property located at 5321 West McFadden Avenue: 1. Conditional Use Permit No. 2013 -26, as conditioned in Exhibit "A" attached hereto and incorporated herein, to allow a temple in the R1 zoning district. 2. Variance No. 2013- 09(a), as conditioned in Exhibit "B" attached hereto and incorporated herein, to allow a reduction in parking. 3. Variance No. 2013- 09(b), as conditioned in Exhibit "B" attached hereto and incorporated herein, to exceed the allowable building height. These decisions are based upon the evidence submitted at the above said hearing, which includes, but is not limited to: the Request for Planning Commission Action dated August 26, 2013, and exhibits attached thereto; and the public testimony, all of which are incorporated herein by this reference. ADOPTED this 26th day of August 2013 by the following vote: AYES: Commissioners: Alderete, Bacerra, Crespo, Gartner, Mill, Nalle, Yrarrazaval (7) NOES: Commissioners: None (0) ABSENT: Commissioners: None (0) ABSTENTIONS: Commissioners: None (0) APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan O. Hodge Assistant City Attorney Eric Alderete Chairman 31 C -186 Resolution No. 2013 -12 Page 5 of 10 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARTHA RAMIREZ, Secretary of the Planning Commission, do hereby attest to and certify the attached Resolution No. 2013 -12 to be the original resolution adopted by the Planning Commission of the City of Santa Ana on August 26. 2013 . Date: Secretary of the Planning Commission City of Santa Ana 31 C -187 Resolution No. 2013 -12 Page 6 of 10 EXHIBIT A Conditions for Approval for Conditional Use Permit No 2013 -26 Conditional Use Permit No. 2013 -26 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this conditional use permit. The applicant must remain in compliance with all conditions listed below throughout the life of the conditional use permit. Failure to comply with each and every condition may result in the revocation of the conditional use permit. A. Planning Division 1. All proposed improvements must conform to the Site Plan Review approval of DP No. 2011 -32 and the staff report exhibits. 2. Any amendment to this conditional use permit must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. The use at this location is limited to a church and related activities. No thrift shop or full -time school may occur on the premises. 4. There shall be no more than 4,025 square feet of the meditation center devoted to assembly area at any time. 5. Landscaping, once installed, shall be maintained per the approved landscape plan. 6. The site occupant shall be responsible for maintaining the premises free from graffiti, including the side of the buildings adjacent to the railroad tracks. All graffiti shall be removed within 24 hours. 7. The Bat Nha Buddhist Meditation Center shall provide a point of contact to the City, adjacent church pastors, and other concerned citizens. The point of contact shall be located on the premise and is responsible for responding to neighborhood concerns. 8. There shall be no amplification devises, including but not limited to speakers, permitted on the exterior of the building. Resolution No. 2013-12 Page 7 of 10 31 C -188 AUGUST 26, 2013 PAGE 2 OF 2 9. A parking agreement shall be secured with the Santa Ana Unified School District (SAUSD) for use of the Lincoln Elementary School parking lot. 10. Prior to submittal into building plan check, the plans shall note that the minimum stucco aggregate of 20/30 shall be utilized on the exterior of the building and that no foam will be used as a trim material. B. Police Department The underground parking area shall be secured with an access control gate. 2. The underground podium parking stairwells shall be open to the interior of the parking area. 3. A detailed Special Event Parking Plan shall be submitted prior to the commencement of any special event on the premises. The Plan shall include details including, but not limited to, the dates of the event, the hours of operation, the anticipated occupancy of the event, the location of all off -site parking areas, and the types of transportation to be used to /from the event Resolution No. 2013 -12 Page 8 of 10 31 C -189 EXHIBIT B Conditions for Approval for Variance No 2013 -09 Should the Planning Commission approve Variance No. 2013 -09 the approval is subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this variance. The applicant must remain in compliance with all conditions listed below throughout the life of the variance. Failure to comply with each and every condition may result in the revocation of the variance. A. Planning Division 1. All proposed improvements must conform to the Site Plan Review approval of DP No. 2011 -32 and the staff report exhibits. 2. Any amendment to this variance must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or the variance must be amended. 3. The use at this location is limited to a church and related activities. No thrift shop or full -time school may occur on the premises. 4. There shall be no more than 4,025 square feet of the meditation center devoted to assembly area at any time. 5. Landscaping, once installed, shall be maintained per the approved landscape plan. 6. The site occupant shall be responsible for maintaining the premises free from graffiti, including the side of the buildings adjacent to the railroad tracks. All graffiti shall be removed within 24 hours. 7. The Bat Nha Buddhist Meditation Center shall provide a point of contact to the City, adjacent church pastors, and other concerned citizens. The point of contact shall be located on the premise and is responsible for responding to neighborhood concerns. 8. There shall be no amplification devises, including but not limited to speakers, permitted on the exterior of the building. Resolution No. 2013 -12 Page 9 of 10 31 C -190 AUGUST 26, 2013 PAGE 2 OF 2 9. A parking agreement shall be secured with the Santa Ana Unified School District (SAUSD) for use of the Lincoln Elementary School parking lot. 10. Prior to submittal into building plan check, the plans shall note that the minimum stucco aggregate of 20/30 shall be utilized on the exterior of the building and that no foam will be used as a trim material. B. Police Department 1. The underground parking area shall be secured with an access control gate. 2. The underground podium parking stairwells shall be open to the interior of the parking area. 3. A detailed Special Event Parking Plan shall be submitted prior to the commencement of any special event on the premises. The Plan shall include details including, but not limited to, the dates of the event, the hours of operation, the anticipated occupancy of the event, the location of all off -site parking areas, and the types of transportation to be used to /from the event. Resolution No. 2013 -12 Page 10 of 10 31 C -191 31 C -192 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: RESOLUTION — CONSENTING TO THE INCLUSION OF SANTA ANA PROPERTIES IN THE CALIFORNIA HERO PROGRAM ,/ RECOMMENDED ACTION Adopt a resolution which: CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1) Consents to the inclusion of properties within the City's jurisdiction in the California HERO Program to finance distributed generation renewable energy sources, energy and water - efficiency improvements, and electric vehicle charging infrastructure; and 2) Approves an amendment to the related Western Riverside Council of Governments Joint Powers Agreement. DISCUSSION This action will establish the City's association with the Western Riverside Council of Governments ( WRCOG) to make available the California Home Energy Renovation Opportunity Program (California HERO) to property owners in Santa Ana. The California HERO Program provides a mechanism by which residential and commercial property owners can install energy and water efficient improvements and renewable energy systems that are financed through a special assessment on their property tax bill. There is no hard cost and no dedicated staff resources required for the City to participate in this program. Assembly Bills 811 (signed into law on July 21, 2008) and 474 (effective January 1, 2010) amended Chapter 29 of Part 3 of Division 7 of the California Streets & Highways Code. The bills authorize a legislative body to designate an area within which public entities and property owners may enter into voluntary contractual assessments to finance the installation of distributed generation renewable energy sources, energy efficiency, and /or water conservation improvements that are permanently fixed to real property. The financing for these improvements has come to be known as PACE — Property Assessed Clean Energy. The California HERO Program (for PACE financing) is being offered to allow property owners in participating cities and counties to finance approved energy- saving improvements on their property. If a property owner chooses to participate, the installed improvements would be financed through the issuance of bonds by the WRCOG joint powers authority. The bonds are secured by a 55A -1 Resolution— Consenting to the Inclusion of Santa Ana Properties in the California HERO Program September 16, 2013 Page 2 voluntary contractual assessment levied on such owner's property, with no recourse to the local government or other participating jurisdictions. Property owners who wish to participate in this voluntary program agree to repay the amount borrowed through the contractual assessment collected together with their property taxes. This financing is available for eligible improvements on both residential and nonresidential properties. Since its launch in late 2011, the HERO Program has been very successful in Western Riverside County. The program has approved over $130 million in applications and has funded over $30 million in projects. Due to this success, the California HERO Program is now being offered to provide additional California cities and counties with a proven program that saves significant time, cost, and local resources that would otherwise be needed to develop a stand -alone local program. Jurisdictions may adopt the resolution which includes approval of the amendment to the WRCOG joint powers agreement and is provided within the resolution as an attachment (Exhibit 1). FISCAL IMPACT There is no fiscal impact associated with this recommended action. All California HERO Program administrative costs are covered through an initial administrative fee included in the property owner's voluntary contractual assessment, and an annual administrative fee which is also collected on the property owner's tax bill. Edwin "William" Gal— e±, P.E. Interim Executive Director Public Works Agency EWG /MM Exhibits: 1. Resolution 2. California HERO FAQs 55A -2 LSS9 /5/13 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA, CONSENTING TO THE INCLUSION OF PROPERTIES WITHIN THE CITY'S JURISDICTION IN THE CALIFORNIA HERO PROGRAM TO FINANCE DISTRIBUTED GENERATION RENEWABLE ENERGY SOURCES, ENERGY AND WATER EFFICIENCY IMPROVEMENTS AND ELECTRIC VEHICLE CHARGING INFRASTRUCTURE AND APPROVING THE AMENDMENT TO THAT CERTAIN JOINT POWERS AGREEMENT RELATED THERETO BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Western Riverside Council of Governments ( "Authority ") is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and following) (the "Act ") and the Joint Power Agreement entered into on April 1, 1991, as amended from time to time (the "Authority JPA "); and B. Authority intends to establish the California HERO Program to provide for the financing of renewable energy distributed generation sources, energy and water efficiency improvements and electric vehicle charging infrastructure (the "Improvements ") pursuant to Chapter 29 of the Improvement Bond Act of 1911, set forth at Division 7 of the California Streets and Highways Code ( "Chapter 29 ") within counties and cities throughout the State of California that elect to participate in such program; and C. The City of Santa Ana (the "City ") is committed to development of renewable energy sources and energy efficiency improvements, reduction of greenhouse gases, protection of our environment, and reversal of climate change; and D. The California Legislature, in Chapter 29, has authorized cities and counties to assist property owners in financing the cost of installing Improvements through a voluntary contractual assessment program; and EXHIBIT 1 55A -3 E. Installation of such Improvements by property owners within the jurisdictional boundaries of the counties and cities that are participating in the California HERO Program would promote the purposes cited above; and F. The City wishes to provide innovative solutions to its property owners to achieve energy and water efficiency and independence, and in doing so cooperate with Authority in order to efficiently and economically assist property owners in financing such Improvements; and G. Authority has authority to establish the California HERO Program, which will be such a voluntary contractual assessment program, as permitted by the Act, the Authority JPA, originally made and entered into April 1, 1991, as amended to date, and the Amendment to Joint Powers Agreement Adding the City of Santa Ana as an Associate Member of the Western Riverside Council of Governments to Permit the Provision of Property Assessed Clean Energy (PACE) Program Services within the City (the "JPA Amendment "), by and between Authority and the City, a copy of which is attached as Exhibit "A" hereto, to assist property owners within the incorporated area of the City in financing the cost of installing Improvements; and H. The City will not be responsible for the conduct of any assessment proceedings; the levy and collection of assessments or any required remedial action in the case of delinquencies in the payment of any assessments or the issuance, sale or administration of any bonds issued in connection with the California HERO Program. Section 2: The City Council of the City of Santa Ana finds and declares that properties in the City's incorporated area will be benefited by the availability of the California HERO Program to finance the installation of Improvements. Section 3: The City Council consents to inclusion in the California HERO Program of all of the properties in the incorporated area within the City and to the Improvements, upon the request by and voluntary agreement of owners of such properties, in compliance with the laws, rules and regulations applicable to such program; and to the assumption of jurisdiction thereover by Authority for the purposes thereof. Section 4: The consent of the City Council constitutes assent to the assumption of jurisdiction by Authority for all purposes of the California HERO Program and authorizes Authority, upon satisfaction of the conditions imposed in this resolution, to take each and every step required for or suitable for financing 55A -4 the Improvements, including the levying, collecting and enforcement of the contractual assessments to finance the Improvements and the issuance and enforcement of bonds to represent and be secured by such contractual assessments. Section 5: This City Council hereby approves the JPA Amendment and authorizes the execution thereof by the City Manager. Section 6: The City Manager or the Executive Director of Public Works, or his designee, is authorized and directed to coordinate with Authority staff to facilitate operation of the California HERO Program within the City, and report back periodically to this City Council on the success of such program. Section 7: This Resolution shall take effect immediately upon its adoption. The City Clerk is directed to send a certified copy of this resolution to the Secretary of the Authority Executive Committee. ADOPTED this day of 2013. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney 9M Laura Sheedy Assistant City Attorney Miguel A. Pulido Mayor AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers 55A -5 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2013 -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 55A -6 EXHIBIT A AMENDMENT TO THE JOINT POWERS AGREEMENT ADDING CITY OF SANTA ANA AS AN ASSOCIATE MEMBER OF THE WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS TO PERMIT THE PROVISION OF THE CALIFORNIA HERO PROGRAM SERVICES WITH SUCH CITY This Amendment to the Joint Powers Agreement ( "JPA Amendment') is made and entered into on the _day of , 2013, by City of ( "City,) and the Western Riverside Council of Governments ( "Authority ") (collectively the 'Parties "). RECITALS WHEREAS, Authority is a joint exercise of powers authority established pursuant to Chapter 5 of Division 7, Title 1 of the Government Code of the State of California (Section 6500 and following) (the "Joint Exercise of Powers Act") and the Joint Power Agreement entered into on April 1, 1991, as amended from time to time (the "Authority JPA "); and WHEREAS, as of October 1, 2012, Authority had 18 member entities (the 'Regular Members "). WHEREAS, Chapter 29 of the Improvement Bond Act of 1911, being Division 7 of the California Streets and Highways Code ( "Chapter 29 ") to authorize cities, counties, and cities and counties to establish voluntary contractual assessment programs, commonly referred to as a Property Assessed Clean Energy ( "PACE ") program, to fund various renewable energy sources, energy and water efficiency improvements, and electric vehicle charging infrastructure (the "Improvements ") that are permanently fixed to residential, commercial, industrial, agricultural or other real property; and WHEREAS, Authority intends to establish a PACE program to be known as the "California HERO Program" pursuant to Chapter 29 as now enacted or as such legislation may be amended hereafter, which will authorize the implementation of a PACE financing program for cities and county throughout the state; and WHEREAS, City desires to allow owners of property within its jurisdiction to participate in the California HERO Program and to allow Authority to conduct proceedings under Chapter 29 to finance Improvements to be installed on such properties; and WHEREAS, this JPA Amendment will permit City to become an associate member of Authority and to participate in California HERO Program for the purpose of facilitating the implementation of such program within the jurisdiction of City; and 55A -7 WHEREAS, pursuant to Government Code sections 6500 et seq., the Parties are approving this JPA Agreement to allow for the provision of PACE services, including the operation of a PACE financing program, within the incorporated territory of City; and WHEREAS, the JPA Amendment sets forth the rights, obligations and duties of City and Authority with respect to the implementation of the California HERO Program within the incorporated territory of City. MUTUAL UNDERSTANDINGS NOW, THEREFORE, for and in consideration of the mutual covenants and conditions hereinafter stated, the Parties hereto agree as follows: A. JPA Amendment. 1. The Authority JPA City agrees to the terms and conditions of the Authority JPA, attached. 2. Associate Membership. By adoption of this JPA Amendment, City shall become Associate Member of Authority on the terms and conditions set forth herein and the Authority JPA and consistent with the requirements of the Joint Exercise of Powers Act. The rights and obligations of City as an Associate Member are limited solely to those terms and conditions expressly set forth in this JPA Amendment for the purposes of implementing the California HERO Program within the incorporated territory of City. Except as expressly provided for by the this JPA Amendment, City shall not have any rights otherwise granted to Authority's Regular Members by the Authority JPA, including but not limited to the right to vote on matters before the Executive Committee or the General Assembly, right to amend or vote on amendments to the Authority JPA, and right to sit on committees or boards established under the Authority JPA or by action of the Executive Committee or the General Assembly, including, without limitation, the General Assembly and the Executive Committee. City shall not be considered a member for purposes of Section 9.1 of the Authority JPA. City shall not be bound by any subsequent amendments of the Authority JPA not expressly agreed to by City. 3. Rights of Authority. This JPA Amendment shall not be interpreted as limiting or restricting the rights of Authority under the Authority JPA. Nothing in this JPA Amendment is intended to alter or modify Authority Transportation Uniform Mitigation Fee (TUMF) Program, the PACE Program administered by Authority within the jurisdictions of its Regular Members, or any other programs administered now or in the future by Authority, all as currently structured or subsequently amended. 4. Rights of City. This JPA Amendment shall be not interpreted as limiting or restricting the rights of City to establish parameters or limitation on upon the HERO Program as it is conducted within City's jurisdiction. 5 &A-, 8 B. Implementation of California HERO Program within City Jurisdiction. 1. Boundaries of the California HERO Program within City Jurisdiction. City shall determine and notify Authority of the boundaries of the incorporated territory within City's jurisdiction within which contractual assessments may be entered into under the California HERO Program (the "Program Boundaries "), which boundaries may include the entire incorporated territory of City or a lesser portion thereof, upon approval of same by City Council. 2. Determination of Eligible Improvements Subject to any parameters or limitations provided in the resolution of City approving the conduct of the HERO Program within City's jurisdiction, Authority shall determine the types of distributed generation renewable energy sources, energy efficiency or water conservation improvements, electric vehicle charging infrastructure or such other improvements as may be authorized pursuant to Chapter 29 (the "Eligible Improvements ") that will be eligible to be financed under the California HERO Program. 3. Establishment of California HERO Program Authority will undertake such proceedings pursuant to Chapter 29 as shall be legally necessary to enable Authority to make contractual financing of Eligible Improvements available to eligible property owners with the California HERO Program Boundaries and will be solely responsible for the conduct of such proceedings. 4. Financing the Installation of Eligible Improvements Upon approval of the conduct of the HERO Program within City's jurisdiction, Authority shall be solely responsible to develop and implement a plan for the financing of the purchase and installation of the Eligible Improvements under the California HERO Program. 5. Ongoing Administration. Authority shall be responsible for the ongoing administration of the California HERO Program, including but not limited to producing education plans to raise public awareness of the California HERO Program, soliciting, reviewing and approving applications from residential and commercial property owners participating in the California HERO Program, establishing contracts for residential, commercial and other property owners participating in such program, establishing and collecting assessments due under the California HERO Program, adopting and implementing any rules or regulations for the PACE program, and providing reports as required by Chapter 29. City will not be responsible for the conduct of any proceedings required to be taken under Chapter 29; the levy or collection of assessments or any required remedial action in the case of delinquencies in such assessment payments; or A -3 55A -9 55A -10 1!hero Frequently Asked Questions March 12, 2013 Q: What is the HERO Program, and how does it work? A: HERO enables residential and commercial property owners to install energy and water efficient improvements and renewable energy systems by having a special assessment put on their property tax bill. Payments are made through their local county with their property taxes over time. Q: What types of home improvements are available under the Program? A: Over 150,000 products and services quality. Typical projects include: solar photovoltaic (PV) systems; energy efficient space heating, air cooling and ventilation (HVAC); cool roof systems; energy efficient windows, skylights, and doors; solar thermal water heating; air sealing and weatherization; insulation; water heating; indoor energy efficient light fixtures; and water efficiency measures. Q: What are the costs and benefits of joining HERO for my community? A: There are no hard costs to joining the HERO program and it does not require any dedicated staff resources to develop or implement the Program. Additionally, your community will see numerous economic benefits including; • Reduced energy consumption • Stimulated local businesses • Created /retained sustainable jobs • Lowered greenhouse gas emissions Q: Why should we choose HERO compared to another PACE program? A: HERO is the nation's fastest - growing PACE program. By choosing HERO, your community is choosing a program with a proven track - record of stimulating economic growth. The program was developed with a network of home improvement contractors who count on HERO to build their businesses. They are creating new jobs everyday and planning on expanding into regions where HERO Financing is offered. HERO is not an exclusive program so you don't have to choose it over another program. We believe competition is an important benefit to consumers. Not only does it provide options like restaurants, gas stations or banks provide but it also increases overall demand because more companies are working harder to educate consumers on the benefits of a particular type of product or service. When there are multiple options to consider solution providers are forced to continually improve their product if they want to succeed in the marketplace. Q: What about FreddielFannielFHFA? A: PACE legislation was adopted by the State of California to encourage the adoption of energy efficiency, renewable energy and water efficiency measures on homes and businesses. When the legislation was enacted, many people believed PACE was an attractive financing option due to its ability to automatically transfer payments to a new owner if the property sold. FreddielFannielFHFA have indicated that they are not willing to purchase mortgages with PACE assessments on the property, therefore, property owners that sell or refinance to conforming loans may need to repay their assessment. The HERO Program works within this provision and we have found that property owners are comfortable attending to this if, and when, the situation should arise. For most property owners the most attractive benefits are low interest rates that are fixed, the ability to deduct the interest portion of the payments, the ability to select 5, 10, 15 and 20 year payment terms, and a simple straightforward application and document process to enable them to get the energy efficiency, renewable energy or water efficiency product they are interested in. Being able to transfer the balance of the financing has not proven to be a feature that has impacted a consumer's decision. Page 1 5v� Eff Oiler0 Frequently Asked Questions March 12, 2013 Whether or not this provision remains in place or is removed, HERO provides numerous benefits that make PACE an attractive financing option for consumers. Q: Who is the HERO Team? A: The HERO team is made up of a network of partners who have been working closely since January 2010 on active residential and commercial PACE programs. Each team member is uniquely qualified for their specific role and are industry experts within their field. Public Financing Management Prcgrsm Manager] Finandal Addsor ®SAHAScdrITAL �) OAVIDTAUSSIG Best Beat& Kreiger LLP Renovate America Somas Capital David Tb ^ �� ^T�aSocietes wal "amolmish Bond counsel Reaidential Admin and Funding commemJel Admin and Funding Assessment Administration Placement Agent Cl: Can the HERO Program be customized to my municipality? A: Yes, marketing materials, including the HERO website and contractor training materials, can be co- branded with your municipality's logo and contact information. Additionally, the HERO team will work with your municipality to review all policy considerations. Q: Can the HERO Program be integrated with existing municipal programs? A: Yes, the HERO Program can be integrated with existing municipal rebate, energy finance, or other PACE programs. Our team will work to implement the Program as a complementary component to other programs. Q: How does our community get started? A: Below are the process steps for HERO Financing to be offered in your community: 1 Approve Resolution Approval by municipality of the resolution will allow the HERO Program to operate in the municipality. The conduit issuer then completes a corresponding acceptance of the municipality to the Program. 2 Judicial Validation of City's Participation Program legal counsel files judicial validation documents. 3 Program Marketing and Outreach During the program validation phase, team members initiate local marketing efforts and begin outreach to educate local contractors and property owners of funding availability, eligibility and application procedures. 4 Program Launch Upon completion of the validation process, the HERO Program launches and projects are able to apply for and receive funding. 55A -12 Page 2 the issuance, sale or administration of the Bonds or any other bonds issued in connection with the California HERO Program. 6. Phased Implementation The Parties recognize and agree that implementation of the California HERO Program as a whole can and may be phased as additional other cities and counties execute similar agreements. City entering into this JPA Amendment will obtain the benefits of and incur the obligations imposed by this JPA Amendment in its jurisdictional area, irrespective of whether cities or counties enter into similar agreements. C. Miscellaneous Provisions 1. Withdrawal. Authority may withdraw from this JPA Amendment upon six (6) months written notice to City; provided, however, there is no outstanding indebtedness of Authority within City. The provisions of Section 6.2 of the Authority JPA shall not apply to City under this JPA Amendment. City may withdraw approval for conduct of the HERO Program within the jurisdictional limits of City upon thirty (30) written notice to WRCOG without liability to the Authority or any affiliated entity. City withdrawal shall not affect the validity of any voluntary assessment contracts (a) entered prior to the date of such withdrawal or (b) entered into after the date of such withdrawal so long as the applications for such voluntary assessment contracts were submitted to and approved by WRCOG prior to the date of City's notice of withdrawal. 2. Indemnification and Liability. Authority shall defend, indemnify and hold City and its directors, officials, officers, employees and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries of any kind, in law or equity, to property or persons, including wrongful death, to the extent arising out of the acts, errors or omissions of Authority or its directors, officials, officers, employees and agents in connection with the California HERO Program administered under this JPA Amendment, including without limitation the payment of expert witness fees and attorneys fees and other related costs and expenses, but excluding payment of consequential damages, provided that the Authority shall not be required to defend or indemnify City and its directors, officials, officers, employees and agents for City's sole negligence or willful misconduct. Without limiting the foregoing, Section 5.2 of the Authority JPA shall not apply to this JPA Amendment. In no event shall any of Authority's Regular Members or their officials, officers or employees be held directly liable for any damages or liability resulting out of this JPA Amendment. 3. Environmental Review. Authority shall be the lead agency under the California Environmental Quality Act for any environmental review that may required in implementing or administering the California HERO Program under this JPA Amendment. A -4 55A -13 4. Cooperative Effort City shall cooperate with Authority by providing information and other assistance in order for Authority to meet its obligations hereunder. City recognizes that one of its responsibilities related to the California HERO Program will include any permitting or inspection requirements as established by City. City's cooperation shall not be interpreted to require any approvals without appropriate review or that any discretionary authority of City be exercised other than as provided by law. 5. Notice. Any and all communications and /or notices in connection with this JPA Amendment shall be either hand - delivered or sent by United States first class mail, postage prepaid, and addressed as follows: Authority: Western Riverside Council of Governments 4080 Lemon Street, 3rd Floor. MS1032 Riverside, CA 92501 -3609 Aft: Executive Director City: City of 6. Entire Agreement This JPA Amendment, together with the Authority JPA, constitutes the entire agreement among the Parties pertaining to the subject matter hereof. This JPA Amendment supersedes any and all other agreements, either oral or in writing, among the Parties with respect to the subject matter hereof and contains all of the covenants and agreements among them with respect to said matters, and each Party acknowledges that no representation, inducement, promise of agreement, oral or otherwise, has been made by the other Party or anyone acting on behalf of the other Party that is not embodied herein. 7. Successors and Assigns This JPA Amendment and each of its covenants and conditions shall be binding on and shall inure to the benefit of the Parties and their respective successors and assigns. A Party may only assign or transfer its rights and obligations under this JPA Amendment with prior written approval of the other Party, which approval shall not be unreasonably withheld. 8. Attorney's Fees If any action at law or equity, including any action for declaratory relief is brought to enforce or interpret the provisions of this Agreement, each Party to the litigation shall bear its own attorney's fees and costs. 9. Governing Law. This JPA Amendment shall be governed by and construed in accordance with the laws of the State of California, as applicable. A -5 55A -14 10. No Third Party Beneficiaries This JPA Amendment shall not create any right or interest in the public, or any member thereof, as a third party beneficiary hereof, nor shall it authorize anyone not a Party to this JPA Amendment to maintain a suit for personal injuries or property damages under the provisions of this JPA Amendment. The duties, obligations, and responsibilities of the Parties to this JPA Amendment with respect to third party beneficiaries shall remain as imposed under existing state and federal law. 11. Severabilitv In the event one or more of the provisions contained in this JPA Amendment is held invalid, illegal or unenforceable by any court of competent jurisdiction, such portion shall be deemed severed from this JPA Amendment and the remaining parts of this JPA Amendment shall remain in full force and effect as though such invalid, illegal, or unenforceable portion had never been a part of this JPA Amendment. 12. Headings The paragraph headings used in this JPA Amendment are for the convenience of the Parties and are not intended to be used as an aid to interpretation. 13. Amendment, This JPA Amendment may be modified or amended by the Parties at any time. Such modifications or amendments must be mutually agreed upon and executed in writing by both Parties. Verbal modifications or amendments to this JPA Amendment shall be of no effect. 14. Effective Date. This JPA Amendment shall become effective upon the execution thereof by the Parties hereto. IN WITNESS WHEREOF, the Parties hereto have caused this JPA Amendment to be executed and attested by their officers thereunto duly authorized as of the date first above written. WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS By: Executive Committee Chair Western Riverside Council of Governments CITY OF 0 Title: 55A -15 Date: Date: 55A -16 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: RESOLUTION APPROVING GRANT AWARD CONTRACT FROM MSRC FOR LOCAL GOVERNMENT MATCH PROGRAM FOR ALTERNATIVE.ENERGY PROJECTS CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER CITY M AGER RECOMMENDED ACTION 1. Adopt Resolution approving Mobile Source Air Pollution Review Committee Clean Air Transportation Local Government Match Program Grant Award Contract Number ML 12014. 2. Authorize City Manager and Clerk of the Council to execute an agreement with MSRC for the implementation of Clean Air Transportation Local Government Match Program Grant Award Contract Number ML 12014 which will reimburse City an amount not to exceed $384,000, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The City's Finance and Management Services Agency Fleet Division has adopted a Five -Year Alternative Energy Strategic Plan. The objective of the plan is to incorporate alternative sources of energy for its fleet such as electricity and natural gas. The goal of the Strategic Plan is to increase the proportion of alternative fuel vehicles (AFVs) in the City Fleet from 5% in 2011 to 85% in 2016 by gradually retrofitting or replacing fleet equipment. Further, the Strategic Plan proposes to develop alternative energy fueling facilities to support AFVs. The Fleet Division presently operates Compressed Natural Gas (CNG) and hydrogen fueling stations in addition to gasoline and diesel pumps. Mobile Source Air Pollution Review Committee (MSRC) has approved the City's application for Clean Air Transportation Local Government Match Program grant funds to implement three alternative energy initiatives which include the purchase of nine AFVs, expansion of the Corporate Yard CNG fueling facility, and installation of seven electric vehicle (EV) charging stations. The AFV total cost of $675,000 would be paid for by $270,000 from MSRC grant reimbursements, $250,000 from a separate Caltrans grant reimbursement, and $155,000 from 55B -1 Agreement with MSRC for Grant Award Contract September 16, 2013 Page 2 of 2 the City's AB 2766 Subvention Funds. The total cost of the CNG station expansion and the installation of EV charging stations are $92,000 and $136,000 respectively. Total costs will be paid for by MSRC grant reimbursements and City match dollars on a 50:50 basis. Since the City will be utilizing AB 2766 Subvention Funds to meet all match dollar requirements, the three alternative energy initiatives could potentially be implemented at no cost to the City. Staff recommends approval of subject MSRC Grant Award Contract. FISCAL IMPACT Funds are available in AQMD Air Quality Program Acct. No. 03110101 -66400 and Equipment Replacement Fund Acct. No. 07510101 - 66400. APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez r Executive Director Finance & Management Services Agency wn Attachments: 1. Resolution 2013 -XXX 2. MSRC Grant Award Contract Number ML 12014 55B -2 jxs09/09/13 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING GRANT AWARD CONTRACT NUMBER ML 12014 FROM MOBILE SOURCE AIR POLLUTION REVIEW COMMITTEE (MSRC) FOR ALTERNATIVE ENERGY PROJECTS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The South Coast Air Quality Management District (AQMD) is the local agency with primary responsibility for regulating stationary source air pollution within the geographical boundaries of the South Coast Air Quality Management District in the State of California. B. The AQMD is authorized under State Health and Safety Code section 44225 (AB 2766) to levy a fee on motor vehicles for the purpose of reducing air pollution from such vehicles and to implement the California Clean Air Act. C. The AQMD has exercised its powers to levy such fees. As a result, the Department of Motor Vehicles is required to collect the fees and remit these fees periodically to the AQMD. D. AB 2766 mandates that thirty (30) percent of such vehicle registration fees be placed in a separate account for the sole purpose of implementing and monitoring programs to reduce air pollution from motor vehicles. E. AB 2766 creates a regional Mobile Source Air Pollution Reduction Review Committee (MSRC) to develop a work program to fund projects which foster the goal of reducing air pollution emanating from vehicles. F. The City of Santa Ana submitted a Local Government Match Program Application dated April 12, 2012 to the AQMD for grant monies under AB 2766. G. The AQMD Governing Board has determined that the City of Santa Ana meets the requirements for receipt of grant monies under AB 2766 and has authorized Local Government Match Grant Award Contract ML 12014 with the City. 556'3 Resolution No. 2013 -XXX Page 1 of 3 Section 2. The City Council hereby approves the execution of the Local Government Match Grant Award Contract ML 12014. Section 3. The Council appoints the City Manager or the Executive Director of Finance and Management Services Agency, or their designee(s), as agent of the City of Santa Ana to conduct all negotiations, execute and submit all documents which may be necessary for the completion of the projects as described in Contract ML 12014. Section 4. The City agrees to comply with all terms and conditions outlined in Local Government Match Grant Award Contract ML 12014. Section 5. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 12013. 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. 2013 -XXX 556'4 Page 2 of 3 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2013 -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 55B -5 Resolution No. 2013 -XXX Page 3 of 3 , INSouth Coast Cisa-niransportation Contract No ML12014 Air Quality Management District LOCAL GOVERNMENT MATCH PROGRAM CONTRACT 1. PARTIES - The parties to this Contract are the South Coast Air Quality Management District (hereinafter referred to as "AQMD ") whose address is 21865 Copley Drive, Diamond Bar, California 91765 -4178, and the City of Santa Ana (hereinafter referred to as "CONTRACTOR ") whose address is 20 Civic Center Drive, Santa Ana, California 92702. 2. RECITALS A. AQMD is the local agency with primary responsibility for regulating stationary source air pollution within the geographical boundaries of the South Coast Air Quality Management District in the State of California (State). AQMD is authorized under State Health & Safety Code Section 44225 (Assembly Bill (AB) 2766) to levy a fee on motor vehicles for the purpose of reducing air pollution from such vehicles and to implement the California Clean Air Act. B. Under AS 2766 the AQMD'S Governing Board has authorized the imposition of the statutorily set motor vehicle fee. By taking such action the State's Department of Motor Vehicles (DMV) is required to collect such fee and remit it periodically to AQMD. C. AB 2766 further mandates that thirty (30) percent of such vehicle registration fees be placed by AQMD into a separate account for the sole purpose of implementing and monitoring programs to reduce air pollution from motor vehicles. D. AS 2766 creates a regional Mobile Source Air Pollution Reduction Review Committee (MSRC) to develop a work program to fund projects from the separate account. Pursuant to approval of the work program by AQMD'S Governing Board, AQMD Board authorized a contract with CONTRACTOR for equipment or services described in Attachment 1 - Statement of Work, expressly incorporated herein by this reference and made a part hereof of this Contract. E. CONTRACTOR has met the requirements for receipt of AS 2766 Discretionary Funds as set forth in CONTRACTOR's Local Government Match Program Application dated April 5, 2012. 3. DMV FEES - CONTRACTOR acknowledges that AQMD cannot guarantee the amount of fees to be collected under AS 2766 will be sufficient to fund this Contract. CONTRACTOR further acknowledges that AQMD'S receipt of funds is contingent on the timely remittance by State's DMV. AQMD assumes no responsibility for the collection and remittance of motor vehicle registration fees by DMV to AQMD in a timely manner. 4. AUDIT - Additionally, CONTRACTOR shall, at least once every two years, or within two years of the termination of the Contract if the term is less than two years, be subject to an audit by AQMD or its authorized representative to determine if the revenues received by CONTRACTOR were spent for the reduction of pollution from Motor Vehicles pursuant to the Clean Air Act of 1988. AQMD shall coordinate such audit through CONTRACTOR'S audit staff. If an amount Is found to be inappropriately expended, AQMD may withhold revenue from CONTRACTOR in the amount equal to the amount which was inappropriately expended. Such withholding shall not be construed as AQMD'S sole remedy and shall not relieve CONTRACTOR of its obligation to perform under the terms of this Contract. 55B -6 Contract No. ML12014 5. REPORTING - CONTRACTOR shall submit reports to AQMD as outlined in Attachment 1 - Statement of Work. AQMD reserves the right to review, comment, and request changes to any report produced as a result of this Contract. 6, TERM - The term of this Contract is eighty one (81) months from the date of execution by both parties, unless terminated earlier as provided for in Clause 7 below entitled Termination, extended by amendment of this Contract in writing, or unless all work is completed and a final report is submitted and approved by AQMD prior to the termination date, No work shall commence prior to the Contract start date, except at CONTRACTOR'S cost and risk, and no charges are authorized until this Contract Is fully executed. Upon written request and with adequate justification from CONTRACTOR, the MSRC Contracts Administrator may extend the Contract up to an additional twelve months at no additional cost. Term extensions greater than twelve months must be reviewed and approved by the MSRC. 7. TERMINATION A, In the event any party fails to comply with any term or condition of this Contract, or fails to provide services in the manner agreed upon by the parties, including, but not limited to, the requirements of Attachment 1 — Statement of Work, this failure shall constitute a breach of this Contract. The non - breaching party shall notify the breaching party that it must cure this breach or provide written notification of its intention to terminate this contract, Notification shall be provided in the manner set forth In Clause 16. The non - breaching party reserves all rights under law and equity to enforce this contract and recover damages. B. AQMD reserves the right to terminate this Contract, in whole or in part, without cause, upon thirty (30) days' written notice. Once such notice has been given, CONTRACTOR shall, except as and to the extent or directed otherwise by AQMD, discontinue any Work being performed under this Contract and cancel any of CONTRACTOR's orders for materials, facilities, and supplies in connection with such Work, and shall use its best efforts to procure termination of existing subcontracts upon terms satisfactory to AQMD. Thereafter, CONTRACTOR shall perform only such services as may be necessary to preserve and protect any Work already in progress and to dispose of any property as requested by AQMD. C. CONTRACTOR shall be paid in accordance with this Contract for all Work performed before the effective date of termination under Clause 7.B. Before expiration of the thirty (30) days' written notice, CONTRACTOR shall promptly deliver to AQMD all copies of documents and other information and data prepared or developed by CONTRACTOR under this Contract with the exception of a record copy of such materials, which may be retained by CONTRACTOR. 8, EARLY TERMINATION — This Contract may be terminated early due to any of the following circumstances. A. The vehicles or equipment become inoperable through mechanical failure of components or systems directly related to the alternative fuel technology being utilized and such failure is not caused by CONTRACTOR'S negligence, misuse, or malfeasance. B. The fueling station becomes inoperable, and is either not technically able to be repaired, or is too costly to repair, and such failure is not caused by CONTRACTOR's negligence, misuse, or malfeasance. 9. INSURANCE — CONTRACTOR represents that it is permissibly self - insured and will maintain such self- 7 insurance in accordance with applicable provisions of California law throughout the term of this Contract. CONTRACTOR shall provide evidence of sufficient coverage during the term of this Contract and any 55B -7 Contract No M112014 extensions thereof that meet or exceed the minimum requirements set forth by the South Coast AQMD below. CONTRACTOR shall furnish certificate of self - insurance to: South Coast Air Quality Management District, Attn: Risk Management Office, The AQMD Contract Number shall be included on the face of the certificate. If CONTRACTOR fails to maintain the required insurance coverage, AQMD reserves the right to terminate the Contract or purchase such additional insurance and bill CONTRACTOR or deduct the cost thereof from any payments owed to CONTRACTOR. Minimum insurance coverages are as follows: A. Worker's compensation insurance in accordance with either California or other state's applicable statutory requirements. B. General Liability insurance with a limit of at least $1,000,000 per occurrence, and $2,000,000 in general aggregate. C. Automobile Liability insurance with limits of at least $100,000 per person and $300,000 per accident for bodily injuries and $50,000 in property damage, or $1,000,000 combined single limit for bodily injury or property damage. 10. INDEMNIFICATION — CONTRACTOR agrees to hold harmless, defend and indemnify AQMD, its officers, employees, agents, representatives, and successors -in- interest against any and all loss, damage, costs, lawsuits, claims, demands, causes of action judgments, attorney's fees, or any other expenses arising from or related to any third party claim against AQMD, Its officers, employees, agents, representatives, or successors in Interest that arise or result in whole or in part, from any actual or alleged act or omission of CONTRACTOR, its employees, subcontractors, agents or representatives in the performance of this Contract. 11, PAYMENT A. AQMD shall pay CONTRACTOR a Firm Fixed Price of Three Hundred Eighty Four Thousand Dollars ($384,000) upon completion of the project on a reimbursement basis. Any funds not expended upon early contract termination or contract completion shall revert to the AS 2766 Discretionary Fund. Payment of charges shall be made by AQMD to CONTRACTOR within thirty (30) days after approval by AQMD of an itemized invoice prepared and furnished by CONTRACTOR. B. An invoice submitted to AQMD for payment must be prepared in duplicate, on company letterhead, and list AQMD'S contract number, period covered by invoice, and CONTRACTOR'S social security number or Employer Identification Number and submitted to. South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765 -4178 Attn: Cynthia Ravenstein, MSRC Contract Administrator C. No funds shall be paid out to CONTRACTOR pursuant to this Contract, until the project described in Attachments 1 and 2 is completed and proof of completion is provided to AQMD. If the project described in Attachments 1 and 2 is not completed and satisfactory proof of completion is not provided to AQMD, no monies shall be due and payable to CONTRACTOR. Proof of completion shall include a Final Report detailing the project goals and accomplishments. D. Additional AB 2766 Discretionary Match Funds will not be available to fund project cost overruns. Any project cost overruns must be funded from other than AS 2766 Discretionary Funds. 55B -8 Contract No. ML12014 E. The Firm Fixed Price amount of this Contract shall not exceed the total AB 2766 Funds applied to the project described in Attachments 1, 2, and 3 of this Contract. F the Project dr Attachment vehicle ht infrastructure expenditures esshanthe Total Costamountt(s) contained nAtt cmennt2, the actual amount of AB 2766 Discretionary Funds reimbursed to CONTRACTOR shall be adjusted on a prorated basis as described in Attachment 2. G. CONTRACTOR must submit final invoice no later than ninety (90) days after the termination date of this Contract or invoice may not be paid. 12. MOBILE SOURCE EMISSION REDUCTION CREDITS (MSERCs) A. The MSRC has adopted a policy that no MSERCs resulting from AB 2766 Discretionary Funds may be generated and/or sold. B. CONTRACTOR has the opportunity to generate MSERCs as a by- product of the project if a portion of the air quality benefits attributable to the project resulted from other funding sources. These MSERCs, which are Issued by AQMD, are based upon the quantified vehicle miles traveled (VMT) by project vehicles or other activity data as appropriate. Therefore, a portion of prospective MSERCs, generated as a result of AB 2766 Funds, must be retired. The portion of prospective credits funded by the AB 2766 program, and which are subject to retirement, shall be referred to as "AB 2766- MSERCs:' C. The determination of AB 2766- MSERC's is to be prorated based upon the AB 2766 program's contribution to the cost associated with the air quality benefits. In the case where AB 2766 Discretionary Funds are used to pay for the full differential cost of a new alternative fuel vehicle or for the retrofitting or repowering of an existing vehicle, all MSERCs attributable to AB 2766 Discretionary Funds must be retired. The determination of AB 2766- MSERCs for infrastructure and other ancillary items is to be prorated based upon the AB 2766 program's contribution to the associated air quality benefits, Determination of the project's overall cost will be on a case -by -case basis at the time an MSERC application Is submitted. AQMD staff, at the time an MSERC application is submitted, will calculate total MSERCs and retire the AB 2766- MSERCs. CONTRACTOR would then receive the balance of the MSERCs not associated with AB 2766 funding. 13. DISPLAY OF MSRC LOGO - CONTRACTOR agrees to permanently display one MSRC decal in a prominent location on each vehicle purchased pursuant to this Contract, CONTRACTOR also agrees to permanently display one MSRC decal In a prominent location on each fueling or charging station constructed or upgraded pursuant to this Contract. Decals will be provided by MSRC upon notification that subject fueling station equipment and/or vehicles are placed into service. Decals are approximately twelve (12) inches in height and eighteen (18) inches in width (Note: a smaller decal may be provided if CONTRACTOR demonstrates that application of the standard decal is not feasible). CONTRACTOR shall maintain decal for life of vehicle or equipment subject to this Contract. Should any decal become damaged, faded, or otherwise unreadable, CONTRACTOR shall request replacement decal from MSRC and apply new decal In the same or other prominent location. MSRC shall not be responsible for damage to paint or other vehicle surfaces arising from application or removal of decals. In addition, all promotional materials related to the project, including, but not limited to, press kits, brochures and signs shall include the MSRC logo. Press releases shall acknowledge MSRC financial support for the project. 14. REFUELING STATION OPERATIONAL AVAILABILITY — CONTRACTOR Is obligated to comply with the alternative -fuel refueling infrastructure Operational Availability requirements set forth as follows. 55B -9 Contract No ML12014 A. CONTRACTOR commits to ensuring fast-fill refuel',ng stations remain operational and accessible to public and /or fleets for a period of no less than five (5) years from the date the station begins dispensing fuel in either its initial or expanded capacity. Should CONTRACTOR desire to deviate from this obligation, for reasons other than those stated in Clause 8.B, above, CONTRACTOR shall reimburse AQMD for a prorated share of the funds provided for fueling facilities as indicated in the table below: 5 year �Operational Availability Obligation I Percentage of MSRC Funds to be Termination Occurs Reimbursed I Within Year 1 -- - - -� Between Years 1 -2 _ Between Years 2 -3 180 °% -- Between Years 3 -4 Belwaen Years 4 -5 20% __ After Year 5 B. The appropriate reimbursable amount shall be paid to AQMD within sixty (60) days from the date the station ceases operation. CONTRACTOR shall not be responsible for any reimbursement to AQMD if the obligation is terminated as a result from one or more reasons set forth in Clause 8.B. C. The obligations of this section shall survive the expiration of the Contract and continue in full force and effect until the applicable operational availability period set forth above has been satisfied 15. ACCRUAL OF MILEAGE WITHIN SOUTH COAST AIR QUALITY DISTRICT — CONTRACTOR is obligated to comply with the geographical restriction requirements as follows: A. Each of the vehicles funded under this Contract must accrue at least 85% of its annual mileage or engine hours of operation within the geographical boundaries of the South Coast Air Quality Management District for a period of no less than five (5) years from the date the vehicle enters service (new vehicles) or returns to service (repowered vehicles). Should CONTRACTOR deviate from or fail to comply with this obligation, for reasons other than those stated in Clause 8.A., CONTRACTOR shall reimburse AQMD for a prorated share of the funds provided for the vehicle as indicated in the table below: 5 year Operations Obligation Percentage of MSRC Funds Termination Occurs ! to be Reimbursed i Between Years 1 -2 80% Between Years 2 -3 60% I Between Years 3 -4 40% I Between Years 4 -5 0% B. The appropriate reimbursable amount shall be paid to AQMD within sixty (60) days from the date the vehicle ceases to operate in accordance with the geographical restriction. CONTRACTOR shall not be responsible for any reimbursement to AQMD if the obligation is terminated as a result from one or more reasons set forth in Clause 8.A. C. Should CONTRACTOR sell, lease, transfer, assign or otherwise divest itself of the vehicles during the five year period referred to in clause 15.A, notice shall be provided to AQMD no less than 30 days preceding the sale, lease, transfer, or assignment is effectuated. The agreement effectuating the sale, lease, transfer or assignment shall state that the AQMD is an intended third -party beneficiary of the 55B -10 Contract No ML12014 agreement and shall include the following requirement: the obligation to accrue mileage within the South Coast Air Quality Management District shall be a continuing obligation of the subsequent purchaser, lessee, transferee, successor in interest, heir or assign and shall remain in full force and effect until the expiration of the five year operation period. This obligation shall be passed down to any subsequent purchaser, lessee or transferee during this five year term and AQMD shall be an Intended third -party beneficiary of any subsequent agreement. Upon receiving notice of any subsequent sale, lease, transfer, 15SA and asignment or B other or require tlthe subsequent purch ser,r,l lessee, transferees or in Clause assignee to comply with the continuing obligation to operate the vehicle for a period of no less than five (5) years from the date the vehicle entered service (new vehicles) or re- service (re- powered vehicles). Notice of AQMD's election of remedies shall be provided to CONTRACTOR and any subsequent purchaser, lessee, transferee or assignee In a timely fashion. 16. NOTICES - Any notices from either party to the other shall be given in writing to the attention of the persons listed below or to other such addresses or addressees as may hereafter be designated in writing for notices by either party to the other. A notice shall be deemed received when delivered or three days after deposit in the U.S. Maii, postage prepaid, whichever is earlier. AQMD. South Coast Air Quality Management District 21865 Copley Drive Diamond Bar, CA 91765.4178 Attn: Cynthia Ravenstein, MSRC Contract Administrator CONTRACTOR: City of Santa Ana 215 South Center Street Santa Ana, California 92703 Attn: Rick Longobart 17. EMPLOYEES OF CONTRACTOR A. CONTRACTOR warrants that It will employ no subcontractor without written approval from AQMD. CONTRACTOR shall be responsible for the cost of regular pay to its employees, as well as cost of vacation, vacation replacements, sick leave, severance pay and pay for legal holidays. B. CONTRACTOR shall also pay all federal and state payroll taxes for its employees and shall maintain workers' compensation and liability insurance for each of its employees. C. CONTRACTOR, its officers, employees, agents, or representatives shall in no sense be considered employees or agents of AQMD, nor shall CONTRACTOR, its officers, employees, agents, or representatives be entitled to or eligible to participate In any benefits, privileges, or plans, given or extended by AQMD to its employees. D. CONTRACTOR warrants that it has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Contract. CONTRACTOR further represents that in performance of this Contract, no person having any such interest shall be employed by CONTRACTOR or any subcontractor. 18. NON- DISCRIMINATION - In the performance of this Contract, CONTRACTOR shall not discriminate in recruiting, hiring, promotion, demotion, or termination practices on the basis of race, religious creed, color, 55B -11 Contract No. ML12014 national origin, ancestry, sex, age, or physical handicap and shall comply with the provisions of the California Fair Employment & Housing Act (Government Code Section 12900, of seg.), the Federal Civil Rights Act of 1964 (P L. 88 -352) and all amendments thereto, Executive Order No 11246 (30 Federal Register 12319), and all administrative rules and regulations issued pursuant to said Acts and Order. CONTRACTOR shall likewise require each subcontractor to comply with this clause and shall include in each such subcontract language similar to this clause. 19. AQMD LIEN RIGHTS - CONTRACTOR hereby grants AQMD a security interest in any and all equipment or vehicles purchased in whole or in part by funding provided by AQMD pursuant to this Contract, CONTRACTOR acknowledges and agrees that AQMD shall have all lien rights as a secured creditor on any and all equipment and /or vehicles purchased in whole or in part by the CONTRACTOR, under this Contract or any amendments thereto. The AQMD shall have lien rights in effect until the CONTRACTOR satisfies all terms under the Contract, Including but not limited to, the use and reporting requirements. Accordingly, CONTRACTOR further agrees that AQMD is authorized to file a UCC filing statement or similar security instrument to secure its interests in the equipment and/or vehicles that are the subject of the Contract. In the event CONTRACTOR files for bankruptcy protection, CONTRACTOR shall notify AQMD within 10 business days of such filing. 20. COMPLIANCE WITH APPLICABLE LAWS - CONTRACTOR agrees to comply with all federal, state, and local laws, ordinances, codes and regulations and orders of public authorities in the performance of this Contract. CONTRACTOR must also ensure that the equipment to be purchased or installed is in compliance with all applicable federal, state, and local air quality rules and regulations, and that it will maintain compliance for the full Contract term. CONTRACTOR shall ensure that the provisions of this clause are included in all subcontracts. 21. ASSIGNMENT - The rights granted hereby may not be assigned, sold, licensed, or otherwise transferred by either party without the prior written consent of the other, and any attempt by either party to do so shall be void upon inception. 22. NON- EFFECT OF WAIVER — CONTRACTOR'S or AQMD'S failure to insist upon the performance of any or all of the terms, covenants, or conditions of this Contract, or failure to exercise any rights or remedies hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants, or conditions, or of the future exercise of such rights or remedies, unless otherwise provided for herein. 23. ATTORNEYS' FEES - In the event any action (including arbitration) is filed in connection with the enforcement or interpretation of this Contract, each party in said action shall pay its own attorneys' fees and costs. 24. FORCE MAJEURE - Neither AQMD nor CONTRACTOR shall be liable or deemed to be in default for any delay or failure in performance under this Contract or interruption of services resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, or any similar cause beyond the reasonable control of AQMD or CONTRACTOR. 55B -12 Contract No ML12014 25. SEVERABILITY - In the event that any one or more of the provisions contained in this Contract shall for any reason be held to be unenforceable in any respect by a court of competent jurisdiction, such holding shall not affect any other provisions of this Contract, and the Contract shall then be construed as if such unenforceable provisions are not a part hereof. 26. HEADINGS - Headings on the clauses of this Contract are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Contract. 27. DUPLICATE EXECUTION - This Contract is executed in duplicate. Each signed copy shall have the force and effect of an original. 28. GOVERNING LAW - This Contract shall be construed and interpreted and the legal relations created thereby shall be determined in accordance with the laws of the State of California. Venue for resolution of any dispute shall be Los Angeles County, California. 29. PRECONTRACT COSTS - Any costs incurred by CONTRACTOR prior to CONTRACTOR receipt of a fully executed Contract shall be incurred solely at the risk of the CONTRACTOR. In the event that a formal Contract is not executed, neither the MSRC nor the AQMD shall be liable for any amounts expended in anticipation of a formal Contract. If a formal Contract does result, precontract cost expenditures authorized by the Contract will be reimbursed in accordance with the cost schedule and payment provision of the Contract. 30. PREVAILING WAGES — CONTRACTOR is alerted to the prevailing wage requirements of California Labor Code section 1770 et seq. Copies of the prevailing rate of per diem wages are on file at the AQMD's headquarters, of which shall be made available to any interested party on request. Notwithstanding the preceding sentence, CONTRACTOR shall be responsible for determining the applicability of the provisions of California Labor Code and complying with the same, including, without limitation, obtaining from the Director of the Department of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work, making the same available to any interested party upon request, paying any applicable prevailing rates, posting copies thereof at the job site and flowing all applicable prevailing wage rate requirements to its subcontractors. CONTRACTOR shall indemnify, defend and hold harmless the South Coast Air Quality Management District against any and all claims, demands, damages, defense costs or liabilities based on failure to adhere to the above referenced statutes 31. CHANGE TERMS - Changes to any part of this Contract must be requested in writing by CONTRACTOR, submitted to AQMD and approved by MSRC In accordance with MSRC policies and procedures. CONTRACTOR must make such request a minimum of 90 days prior to desired effective date of change. All modifications to this Contract shall be in writing and signed by both parties. 32 ENTIRE CONTRACT - This Contract represents the entire agreement between the parties hereto related to CONTRACTOR providing services to AQMD and there are no understandings, representations, or warranties of any kind except as expressly set forth herein. No waiver, alteration, or modification of any of the provisions herein shall be binding on any party unless in writing and signed by the party against whom enforcement of such waiver, alteration, or modification is sought. The Statement of Work - Attachment 1, The Payment 55B -13 Contract No. ML12014 Schedule - Attachment 2, and Supporting Documentation - Attachment 3, are incorporated by reference herein and made a part hereof. 33 AUTHORITY - The signator hereto represents and warrants that he or she is authorized and empowered and has the legal capacity to execute this Contract and to legally bind CONTRACTOR both in an operational and financial capacity and that the requirements and obligations under this Contract are legally enforceable and binding on CONTRACTOR. IN WITNESS WHEREOF, the parties to this Contract have caused this Contract to be duly executed on their behalf by their authorized representatives. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT CITY OF SANTA ANA By_ BY — Name. Dr. William A, Burke, Chairman, Governing Board Title. Date: ATTEST, Saundra McDaniel, Clerk of the Board M APPROVED AS TO FORM. Kurt R. Wiese, General Counsel By 11tdSRCo6Loca1GovtMatch Updated 22 October 2008 N 55B -14 Jose Nanoovlu Assistant City Attorney Attachment 1 Statement of Work City of Santa Ana Hereinafter Referred to mberNCL01pp1gACTOR Project Description CONTRACTOR will purchase nine compressed natural gas (CNG) and liquefied petroleum gas (LPG) heavy -duty vehicles, expand their existing CNG station, and install electric vehicle (EV) charging infrastructure as specified below. Statement of Work Vehicles CONTRACTOR shall purchase nine heavy -duty vehicles, each with gross vehicle weight ratings greater than 14,000 pounds and equipped with either dedicated CNG or LPG engines as specified below. Vehicles are required to operate for a minimum of five years, but it is expected that the vehicles will continue to operate for their entire life expectancy. 1 8 years each (2) CNG transit vehicles (7) LPG utility vehicles 10 years each Engines must be certified by the California Air Resources Board (CARB) at, or cleaner than, the 2010 heavy -duty engine emission standards of 0.2 g /bhp -hr for oxides of nitrogen (NOx) and 0.01 g /gbhp -hr for particulate matter (PM). CONTRACTOR shall be reimbursed for vehicles according to the costs stated in Attachment 2 — Payment Schedule. Expand CNG Fueling Station CONTRACTOR shall expand its existing CNG fueling station as specified in Attachment 3.1. — Alternative Fuel Infrastructure Specifications. CONTRACTOR shall be reimbursed according to Attachment 2 - Payment Schedule. EV Charging CONTRACTOR shall install seven EV charging stations, distributed amongst the following locations with at least one charging station in each location: 215 S. Center Street, Santa Ana, California 220 S. Daisy Avenue, Santa Ana, California 20 Civic Center Drive, Santa Ana, California Civic Center Complex, Santa Ana, California 55B -15 Attachment 1 Statement of Work city of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML12014 At least two stations shall be publicly accessible and all stations shall meet current Society of Automotive Engineers J1772 standards. These locations are understood to be tentative; CONTRACTOR shall notify AQMD staff of any location changes. CONTRACTOR shall be reimbursed for charging station installations according to the costs stated in Attachment 2 — Payment Schedule. Disclaimer of Warranty The purchase /lease of funded vehicles /equipment is the contractor's decision. The AQMD does not make any express or implied warranty of merchantability, fitness for a particular purpose or otherwise, quality or usefulness of the technology or product. Without limiting the foregoing, the AQMD will not be financially responsible, or otherwise liable, for the installation or performance of the vehicle /equipment. Promotion CONTRACTOR shall prepare and submit a proposed Public Outreach Plan to promote the MSRC's support of the vehicle acquisitions, station expansion, and EV charging project. Acceptable outreach may include, but is not limited to, notices in CONTRACTOR mailings to residents, newspaper notices, flyers, and information items at CONTRACTOR Board meetings and community events. The Public Outreach Plan shall automatically be deemed approved 30 days following receipt by AQMD staff, unless AQMD staff notify CONTRACTOR in writing of a Public Outreach Plan deficiency. CONTRACTOR shall implement the approved Public Outreach Plan in accordance with the Project Schedule below. Project Schedule (based on date of Contract execution) Ftask mum moon Order vehicles Month 5 Submit Public Outreach Plan Month 7 Take dnliv and nlace vehicles in service Month 7 Select CNG station expansion contractor (s) !, Month 9 Select EV char in contractor I Month 11 Order EV char in a ui ment I Month 13 _ Complete CNG station expansion j Install EV charging stations Implement Public Outreach Plan Month 16 1 Month 18 o nth 20 In A� Quarterly reports ' - and 16 Hardware: CNG and LPG - fueled vehicles; CNG station equipment; and EV charging equipment as listed above. 55B -16 Attachment 1 Statement of Work City of Santa Ana Hereinafter Rra eferred Number CO120 RACTOR Reports Quarterly Reports: Until subject vehicles, expanded CNG station and EV charging stations are entered into service, CONTRACTOR shall provide quarterly progress reports that summarize the project results to date including, but not limited to: tasks completed, issues or problems encountered, resolutions implemented, and progress to date. Progress reports that do not comply will be returned to the CONTRACTOR as inadequate. Final Report: A Final Report shall be submitted by the CONTRACTOR in the format provided by AQMD staff. Report shall include, at a minimum: a) an executive summary; and b) a detailed discussion of the results and conclusions at this project. CONTRACTOR will identify any barriers encountered and solutions developed to overcome the barriers, and impact of project on future alternative fuel and EV projects. 55B -17 Attachment 2 Payment Schedule City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number M02014 Cost Breakdown CONTRACTOR shall be reimbursed according to the amounts stated above per vehicle upon proof of vehicle delivery, vehicle acceptance, and placement of vehicle into service. Documentation of the specific engine installed in the vehicle, including the year, manufacturer, and model, must accompany each request for reimbursement. Reimbursement for station will be made: • only after verification of station completion. At a minimum, acceptable verification shall consist of: • Representative photos of completed station; • a report signed by a responsible official certifying that the station has been completed as described in Attachments 1 and 3; and • invoice(s) from subcontractor(s) performing the installations, if any. Reimbursement for EV charging stations will be made: • only for site preparation construction, equipment purchase, and installation costs; and • only after verification of completion. At a minimum, acceptable verification shall consist of: • Representative photos of completed stations; • a report signed by a responsible official certifying that the stations have been completed as described in Attachments 1; and • invoice(s) from subcontractor(s) performing the installations, if any. 55B -18 Maximum AB2766 CONTRACTOR Purchase Discretionary A132766 i Other Funds Total Cost Category 1 Funds payable Subvention Applied I under this Funds Applied Contract Heavy Duty $270,000 (not to CNG and exceed $30,000 $155,000 $250,000 $675,000 LPG per vehicle) Vehicles Expand CNG $46,000 $3,000 $43,000 $92,000 station __ EV Charging $68,000 $68,000 $0 $136,000 Stations Totals _ $384,000 $226,000 $293,000 $903,000 CONTRACTOR shall be reimbursed according to the amounts stated above per vehicle upon proof of vehicle delivery, vehicle acceptance, and placement of vehicle into service. Documentation of the specific engine installed in the vehicle, including the year, manufacturer, and model, must accompany each request for reimbursement. Reimbursement for station will be made: • only after verification of station completion. At a minimum, acceptable verification shall consist of: • Representative photos of completed station; • a report signed by a responsible official certifying that the station has been completed as described in Attachments 1 and 3; and • invoice(s) from subcontractor(s) performing the installations, if any. Reimbursement for EV charging stations will be made: • only for site preparation construction, equipment purchase, and installation costs; and • only after verification of completion. At a minimum, acceptable verification shall consist of: • Representative photos of completed stations; • a report signed by a responsible official certifying that the stations have been completed as described in Attachments 1; and • invoice(s) from subcontractor(s) performing the installations, if any. 55B -18 Attachment 2 Payment Schedule City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number ML12014 If, at the completion of the Project, the expenditures are less than the Total Cost amount above, the actual amount of AB 2766 Discretionary Funds reimbursed to CONTRACTOR shall be adjusted on a prorated basis, as follows: • For vehicles, the amount reimbursed to CONTRACTOR shall not exceed the actual amount of AB 2766 Subvention and other funds applied, up to a maximum of $30,000 per heavy -duty vehicle; and • For the CNG station expansion and EV charging stations, the amount reimbursed to CONTRACTOR shall not exceed the actual amount of AB 2766 Subvention and other funds applied. 55B -19 Attachment 3 Supporting Documentation City of Santa Ana Hereinafter CONTRACTOR Contract Number ML1201 The supporting documents attached hereto as Attachment 3, represent obligations of the CONTRACTOR. Nothing herein shall be construed as an assumption of duties or obligations by the AQMD or granting any rights to third parties against the AQMD. 1. Alternative Fuel Infrastructure Specifications 2. proof of Self- Insurance. 55B -20 Attachment 3 Supporting Documentation City of Santa Ana Hereinafter Referred to as CONTRACTOR Contract Number MU 2014 Alternative Fuel Infrastructure Specifications At a minimum, the expanded CNG fueling station shall include the following: i. Compressor(s) providing at least 100 scfm compression capability (increased from 58 scfm) ii. Canopy over compressor(s) 55B -21 October 30, 2012 South Coast Air Quality Management District Mobile Source Air Pollution Reduction Review Committee (MSRC) 21865 Copley Drive Diamond Bar, CA 91765 Re: City of Santa Ana — Insurance Programs To Whom It May Concern: The City of Santa Ana is a member of Big Independent Cities Excess Pool (BICEP). Current reinsurance and excess municipal liability is insured from $2M to $52M and includes auto liability coverage, The City self insures and funds the first $1M of claim payments. BICEP covers the layer from $1 M to $2M. The City is permissively self insured for workers' compensation and self- administers this program as well. The City, through BICEP, purchases excess statutory coverage through the California State Association of Counties — Excess Insurance Authority ( CSAG ) $1 M. The City funds claim payments under $1 M. The City is also a member of the Public Entity Property Insurance Program (PEPIP). At present, membership is over 6,400 entities. Current property insurance is $113 per occurrence for "All Risk" coverage and flood coverage is $82.5M or $50M based on the flood zone where our insured property is located. If you need further information please contact me at (714) 647 -5470. Sincerely, Briza Morales Risk Management Technician cc: William Navaja 55B -22 CCY MANACER Paul M Walters MAYOR {`r:, CIfYP TOKNE'! Mlguul A. IShcda MAYOR PRO n M .- Sann R Ca vall-a Cl n,dl,y C Alvnrrte CLERK OF rNE eouNCr ,.lR1NC11. MEW! Ma , U. oz r Carlos Ousiamanln Mleh °' °I.S,11 eL CITY OF SANTA ANA F. Sai micnu CENTER PLAZA - P.O. BOX 1988 SalTint Sal Tinojcro 20 CIVIC SANTA ANA, CALIFORNIA 92702 October 30, 2012 South Coast Air Quality Management District Mobile Source Air Pollution Reduction Review Committee (MSRC) 21865 Copley Drive Diamond Bar, CA 91765 Re: City of Santa Ana — Insurance Programs To Whom It May Concern: The City of Santa Ana is a member of Big Independent Cities Excess Pool (BICEP). Current reinsurance and excess municipal liability is insured from $2M to $52M and includes auto liability coverage, The City self insures and funds the first $1M of claim payments. BICEP covers the layer from $1 M to $2M. The City is permissively self insured for workers' compensation and self- administers this program as well. The City, through BICEP, purchases excess statutory coverage through the California State Association of Counties — Excess Insurance Authority ( CSAG ) $1 M. The City funds claim payments under $1 M. The City is also a member of the Public Entity Property Insurance Program (PEPIP). At present, membership is over 6,400 entities. Current property insurance is $113 per occurrence for "All Risk" coverage and flood coverage is $82.5M or $50M based on the flood zone where our insured property is located. If you need further information please contact me at (714) 647 -5470. Sincerely, Briza Morales Risk Management Technician cc: William Navaja 55B -22 t�r�4 City of Santa Ana Certificate of Self- Insurance City of Santa Ana, Risl< Management, M -28, 20 Civic Center Plaza, Santa Ana, CA 92701 This is to certify that the City of Santa Ana is self - Insured for the following coverage: Self- insurance_Lm it Tvne of Coverage � ----- $1,000,000 General Liability: Bodily Injury and Property Damage Terms, Conditions and Special Items: The provisions under General Liability, above, shall apply only with respect to claims arising out fficers, agents and employees or of the negligent acts or omissions of the City of Santa Ana, its o any other person under its direction and control. Cancellation: Should any of the above described self- insured coverages be modified or cancelled before the expiration date shown below, the City of Santa Ana will provide 30 days written notice to the named certificate holder. Certificate South Coast Air Quality Management District Mobile Source Air Pollution Reduction Review Committee (MSRC) 21865 Copley Drive Diamond Bar, CA 91765 Certificate Effective Date: ulfuircwl Certificate Expiration Date: 07/01/2013 Briza Morales, Risl( Management Technician (714) 647 -5470 Date Certificate Issued: 10/30/2012 55B -23 55B -24 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: FIVE -YEAR STRATEGIC PLAN COMMUNITY ENGAGEMENT PROCESS 1_5i� CI MANAGER 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 STRATEGIC PLANNING AD -HOC COUNCIL COMMITTEE RECOMMENDATION Discuss and provide direction to staff on the following community engagement options for the Five - year Strategic Plan process: Option 1: Conduct 5 additional Community Forums simultaneously (estimated total additional cost of $67,000) ACTION: Authorize the City Attorney to prepare and the City Manager to execute a contract amendment with Management Partners in the amount of $20,000 for the purpose of conducting five additional Community Forums and direct staff to provide the services necessary to support these meetings and authorize the Finance Director to reallocate the necessary funding from the Visioning Process Project account. Option 2: Convene a Community Meeting after the survey is completed (estimated total additional cost of $17,500) ACTION: Authorize the City Attorney to prepare and the City Manager to execute a contract amendment with Management Partners in the amount of $6,500 for the purpose of conducting a Community Meeting on Survey Results and direct staff to provide the services necessary to support this meeting and authorize the Finance Director to reallocate the necessary funding from the Visioning Process Project account. Option 3: Continue the current plan which includes a public Council Workshop, a public meeting with the City Manager, and the consideration of adoption of the plan at a regular Council meeting (no additional cost) 65A -1 Five -Year Strategic Plan Community Engagement Process September 16, 2013 Page 2 DISCUSSION In June 2012, the City embarked in a strategic planning process and engaged Management Partners Inc. to facilitate the project. In April 2013, the process of developing the five -year strategic plan was begun. At that time, a Council Ad -Hoc Strategic Planning Committee composed of Councilmembers Benavides, Martinez and Reyna was established. The Council Committee, with the input and support of a Department Head subcommittee of the Directors of Planning and Building, Parks and Recreation, and Finance Departments, together with the Interim City Manager, Interim Deputy City Manager, and key staff members, have met several times with the consultants to determine the steps of the process and to discuss the community engagement efforts. As a part of the community engagement element of the 5 -year strategic planning process, the City conducted a Community Forum on August 10 which was highly successful with approximately 180 participants. Additionally, Management Partners facilitated four focus groups on September 5: two for community participants and two for employees. From the information generated by these community engagement efforts, the consultant will develop a community survey which will be another mechanism for the community to provide input. At the September 10 meeting of the Ad -Hoc Council Committee, the members of the committee reviewed the current schedule (See Exhibit 1) and discussed various options for the community engagement in the process. The Committee members recommended that the following three options be brought to the full Council for discussion and determination: Option 1: Conduct 5 additional Community Forums simultaneously Option 2: Convene a Community Meeting after the survey is completed Option 3: Continue the current plan The committee members then directed staff to develop cost estimates for Options 1 and 2 to be considered as a part of the discussion. Management Partners has provided a proposal (Exhibit 2) for their costs associated with Options 1 and 2. Option 1: Hold Five Concurrent Community Forums This option would involve conducting five additional forums, following the same format as the August 10th forum, to be held in Wards 1, 2, 3, 5 and 6 concurrently. Resource Needs: In addition to two Management Partners facilitators per session, the City would need to provide at least nine bi- lingual individuals per session. (The original forum had over 20 City employees in attendance, and a minimum of 18 per session would be preferred.) 65A -2 Five -Year Strategic Plan Community Engagement Process September 16, 2013 Page 3 Management Partners will use the original format design with two facilitators per session and, using the notes from the forums, will provide a summary of themes, as was done following the August session. The themes will be incorporated into the online survey. (Note: Holding additional forums will cause the survey and the remaining activities to be delayed up to a month.) The City will be responsible for documenting the notes from all community forums, including translations. For this option, the total cost estimate is $67,000 which is composed of: 1. Management Partners Hours and Cost: To complete this assignment, 160 hours will be needed at a cost of $20,000. 2. City Staff Hours and Cost: a. Staffing the meetings: 5.5 hours will be required for the meeting for 18 employees for each of 5 meetings for an estimated total of $35,000 and b. Transcribing and in -house translation: 25 hours for the 10 employees involved in transcribing the 45 sheets (9 topic areas for each of the 5 meetings) for an estimated total of $10,000. 3. Advertising Costs: $2,000 Option 2: Convene a Community Meeting to Report Survey Results and Seek Additional Input This option involves convening a community meeting to report the survey results and seek additional community input. After the survey results are tabulated (estimated for mid - October), Management Partners would plan and facilitate an additional community meeting to report on community input received to date and solicit additional feedback to the survey results. Resource Needs: Management Partners would require two senior managers to plan and facilitate this forum and City staff would be used to assist with translation, recording, and management of participants. They are unable to fully estimate City staff support required until the survey results are in and the session can be designed. To be conservative, the City cost estimates assume that staff time would be similar to the August 10th community forum. For this option, the total cost estimate is $17,500 which is composed of: 1. Management Partners Hours and cost: To complete this assignment, 32 hours will be required at a cost of $6,500. 2. City Staff Hours and Cost: a. Staffing the meeting: 5.5 hours for 18 employees for an estimated total of $7,000 b. Transcribing and in -house Translation: 5 hours for 10 employees for an estimated total of $2,000 3. Advertising Costs: $2,000 65A -3 Five -Year Strategic Plan Community Engagement Process September 16, 2013 Page 4 Option 3: Maintain the Current Schedule This option would not alter the current strategic planning outreach process, timelines, and the associated costs. FISCAL IMPACT As Option 1 and Option 2 would involve additional direct and indirect funding, the monies would have to come from existing budgeted funds. The City Council could direct staff to apply a portion of the $250,000 currently budgeted for the Strategic Planning Visioning Project to the enhanced community engagement efforts for the Five -year Strategic Plan process (account no. 01105015- 62300). There would be no additional fiscal impact associated with Option 3, as the current contract accounts for this schedule. APPROVED AS TO FUNDS AND ACCOUNTS Francisco Gutierrez Executive Director Finance and Management Services Agency Exhibit: 1. Santa Ana Strategic Planning Schedule as of July 31, 2013 2. Cost of Optional Strategic Planning Activities Memo 65A -4 EXHIBIT 1 65A -5 Attachment: Santa Ana Strategic Planning Schedule as of July 31, 2013 1. Task Convene subcommittee to help guide the process, assist with preparation of Timeline April /May 2013 materials, and advise on community engagement process 2. Interview the two new Councilmembers to hear their opinions about vision, May goals and priorities 3. Seek Council approval of an amendment to the Sunshine Ordinance to adjust June strategic plan adoption timeframe 4. Prepare environmental scan document which will be presented at subsequent June - September workshops 5. Convene subcommittee to finalize community and employee engagement July options 6. Conduct community forum August 10 7. Conduct community focus group Last week of August 8. Conduct employee focus group Last week of August 9. Convene subcommittee to approve community and employee surveys Mid - September 10. Conduct community on -line survey Mid- September /Mid- October 11. Conduct employee on -line survey Mid- September /Mid- October 12. Convene subcommittee meeting to review results of stakeholder input, Late October environmental scan and discuss next steps in the process 13. Conduct meeting with the EMT to prepare for Council / EMT strategic planning Late October workshop 14. Prepare materials for Council /EMT workshop Early November 15. Conduct full day workshop with the City Council and EMT to review results of Mid - November stakeholder engagement; review environmental scan; create vision, mission, values; establish multi -year goals, priority strategies and process for reporting progress 16. Convene EMT workshop to create draft implementation action plan, based on Early December expected resources that will be available 17. Prepare strategic plan document December 18. City Manager to conduct a public meeting to review the proposed strategic plan January 2014 with the community (as required in the Sunshine Ordinance) 19. Present strategic plan to Council for adoption January 20. Distribute adopted strategic plan to organization and community January 21. Provide regular updates on status of strategic plan; modify the plan to reflect Frequency to be emerging issues determined by Council and EMT 65A -5 Management Partners EXHIBIT 2 To: Ms. Debra Kurita From: Amy Cohen Paul and Robyn Uptegraff Subject: Cost of Optional Strategic Planning Activities Date: September 11, 2013 Management Partners has been asked to provide cost details about two new strategic planning activities for Council's consideration. To provide context, one community forum was held on Saturday, August 10, with 180 attendees. Four focus groups (two with employees and two with community members) were held on September 5. All of the input from these efforts will form the basis of an online survey currently being designed. There will be significant outreach efforts on the part of the City to get as large a response as possible from businesses, community groups, schools, etc. The attached schedule shows the current strategic planning schedule and the remaining elements to be completed. During the Strategic Planning Sub - Committee meeting of September 10, Sub - Committee members asked that Management Partners and City staff provide cost information for two additional options for increased community input. This memorandum provides the additional Management Partners cost for each option. Hold Five Concurrent Community Forums One suggestion was to hold five additional community forums as the next step in the process. The five additional forums, following the same format as the August 10th forum, would be held in Wards 1, 2, 3, 5 and 6 concurrently to ensure that constituents must select a single forum. Resource Needs: In addition to two Management Partners facilitators per session, the City would need to provide at least nine bi- lingual individuals per session. (The original forum had over 20 City employees in attendance, and a minimum of 18 per session would be preferred.) The City of Santa Ana will be responsible for providing a write up of notes from all community forums, including translations. Management Partners will use the original format design with two facilitators per session and, using the notes from the forums, will provide a summary of themes, as was done following the August session. The themes will be incorporated into the online survey. (Note: Holding additional forums will cause the survey and the remaining activities to be delayed.) 1730 MADISON ROAD • CINCINNATI, OH 45206 • 513 8615400 • FAx 513 8613480 MANAGEMENTPARTNERS.COM 2107 NORTH FIRST STREET, SUITE 470 • SAN JOSE CALIFORNIA 95131 • 4084375400 • FAx 408 453 6191 3152 RFD HILLAVENUE, SUITE 26SAnSESA, CALIFORNIA 92626 • 949 222 1082 • FAx 408 453 6191 Page 2 Hours and cost: To complete this assignment, 160 hours will be needed at a cost of $20,000. Convene a Community Meeting to Report Survey Results and Seek Additional Input After survey results are tabulated (estimated for mid - October), Management Partners would plan and facilitate an additional community meeting to report on community input received to date and solicit feedback to the survey results. Resource Needs: We are estimating that we would have two senior managers plan and facilitate this forum and use City staff to assist with translation, recording, and management of participants. We are unable to fully estimate City employee support required until the survey results are in and the session can be designed. Conservatively, the City should assume that staff time would be similar to the August 101h community forum. Hours and cost: To complete this assignment, 32 hours will be required at a cost of $6,500. 65A -7 65A -8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 TITLE: PUBLIC HEARING — AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2007 -01, VESTING TENTATIVE TRACT MAP NO 2013 -04 AND SITE PLAN REVIEW NO. 2013 -03 FOR A NEW MULTI - FAMILY RESIDENTIAL DEVELOPMENT AT 1901 EAST FIRST STREET — LYON COMMUNITY DEVELOPMENT,APPL ANT CITY kC ANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Adopt a resolution approving the Addendum to the Final Environmental Impact Report No. 2006 -01 and approve the Mitigation Monitoring and Reporting Program. 2. Adopt an ordinance approving the first amendment to Development Agreement No. 2007 -01. 3. Adopt a resolution approving Vesting Tentative Tract Map No. 2013 -04 as conditioned. 4. Adopt a resolution approving Site Plan Review No. 2013 -03 as conditioned. PLANNING COMMISSION ACTION On August 26, 2013, the Planning Commission recommended that the City Council adopt a resolution approving the Addendum to the Final Environmental Impact Report No. 2006 -01 and approve the Mitigation Monitoring and Reporting Program; adopt an ordinance approving the first amendment to Development Agreement No. 2007 -01; adopt a resolution approving Vesting Tentative Tract Map No. 2013 -04 as conditioned; and adopt a resolution approving Site Plan Review No. 2013 -03 as conditioned by a vote of 7:0 for a new multi - family residential development at 1901 East First Street in the Arterial Commercial /Metro East Mixed Use (C5 /MEMU) zoning district. The Planning Commission made no changes to the terms of the agreement as outlined in the attached staff report (Exhibit A). The Lyon Community project at 1901 E. 1St Street will be a new 254 -unit multi - family residential project in a contemporary architectural style featuring a wide variety of unit types, an extensive amenity package, a retail component, and the provision of both private and publicly - accessible open space. Parking for the project will be provided within an existing parking structure. The 75A -1 Amend DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 September 16, 2013 Page 2 project site is located within the Metro East Mixed Use Overlay Zone and was previously entitled as the First and Cabrillo Towers, for which environmental impacts reports were previously prepared. Additional environmental analysis was performed for the proposed project in the form of an addendum to the previously- certified EIRs. This addendum did not identify any additional environmental impacts. The requested actions would approve the addendum to the EIR, modify the existing development agreement to reflect the proposed project, approve a vesting tentative tract map that would allow for the potential for future condominium sales of the units, and approve the site plan for the project. FISCAL IMPACT There is no fiscal impact associated with this action. Ja . Trevino Executive Director Planning and Building Agency VF: rb AreportMADA07 -1 & VTTM13 -4 1901 1st Sireetcc Exhibit: A. Planning Commission Staff Report 75A -2 ROH — 08/26/13 RESOLUTION NO. 2013- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE ADDENDUM TO THE FINAL ENVIRONMENTAL IMPACT REPORT NO. 2006 -01 AND APPROVING THE MITIGATION MONITORING AND REPORTING PROGRAM; APPROVING VESTING TENTATIVE TRACT MAP NO. 2013 -04 AS CONDITIONED; AND, APPROVING SITE PLAN REVIEW NO. 2013 -03 AS CONDITIONED FOR THE PROPERTY LOCATED AT 1901 EAST FIRST STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Applicant is requesting approval of an addendum to a final environmental impact report, an amendment to a development agreement, a vesting tentative tract map, and a site plan review to allow the construction of a new multi- family residential development at 1901 East First Street. B. The Planning Commission has, following a duly noticed public hearing, on August 26, 2013, recommended the approval of the following items: 1. Adopt a resolution approving the Addendum to the Final Environmental Impact Report No. 2006 -01 and approve the Mitigation Monitoring and Reporting Program. 2. Adopt an ordinance approving the first amendment to Development Agreement No. 2007 -01. 3. Adopt a resolution approving Vesting Tentative Tract Map No. 2013 -04 as conditioned. 4. Adopt a resolution approving Site Plan Review No. 2013 -03 as conditioned. C. On September 16, 2013 the City Council of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral. D. Vesting Tentative Tract Map No. 2013 -04 has been filed seeking approval of a vesting tentative tract map for condominium purposes. Resolution No. 2013- 75 w _3 Page 1 of 15 1. To adopt a Vesting Tentative Tract Map, California Government Code Section 66474 requires the following findings: i. The proposed project, as conditioned, and its design and improvements are consistent with the District Center designation on the General Plan and are otherwise consistent with all other elements of the General Plan. The proposed subdivision, Vesting Tentative Tract Map No. 2013 -04, will be consistent with the proposed District Center land use designation and density prescribed and all other elements of the General Plan. Policy No. 1.3 of the General Plan Land Use Element encourages high- density residential development within the City's District Centers. Further, Policy No. 1.4 promotes the maintenance and fostering of a variety of residential land uses in the City. ii. The proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. The proposed subdivision conforms to the minimum condominium requirements, as well as meets the letter and intent of the State of California Subdivision Map Act Provisions. Tentative Tract Map No. 2013 -04 is in keeping with the site plan review for the project as well as Chapters 34 and 41 of the Santa Ana Municipal Code. Covenants, Conditions and Restrictions (CC &Rs) are required for the project, which need to be approved by the City prior to the recordation of the final map. iii. The project site is physically suitable for the type and density of the proposed project. The proposed site consists of approximately five acres of land within the Metro East Mixed Use Overlay Zone, which is physically suitable for the residential development as proposed. Access to the site will occur on First Street and Cabrillo Park Drive. There are no physical constraints on the site to preclude development. Resolution No. 2013- 75Q— w Page 2 of 15 iv. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. An Environmental Impact Report (EIR), as well as an addendum to the certified EIR, was prepared pursuant to the California Environment Quality Act for the project. The project site is located in an urbanized area, and there are no known fish or wildlife populations existing on the project site. Therefore, the proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. V. The design or improvements of the proposed project will not cause serious public health problems. The proposed subdivision will not have any detrimental effects upon the general public. The short-term and long -term unavoidable adverse impacts identified in Environmental Impact Report No. 2006 -01, and affirmed by the recently completed addendum to the EIR, as it pertains to air quality and traffic, were addressed by the adoption of a statement of Overriding Considerations by the City Council. Any other negative or adverse impacts will be mitigated through mitigation measures identified in Environmental Impact Report No. 2006 -01. vi. The design or improvements of the proposed project will not conflict with the easements acquired by the public at large for access through or use of property within the proposed project. There is no easement for public access currently existing on this property. Therefore, the proposed project will not conflict with easements necessary for public access through or use of the property. However, the applicant will be granting an easement for pedestrian purposes over the northern portion of the site, which will allow public access throughout the Metro East area. E. Applicant has requested approval of Site Plan Review No. 2011 -01 as conditioned. Resolution No. 2013 - 75A -5 Page 3 of 15 1. Section 41 -595.5 of the Santa Ana Municipal Code requires a review by the Planning Commission of all plans within a specific development plan area to ensure the project is in conformity with the Specific Plan. 2. Based on the following review, the project is in compliance with all applicable development standards outlined within the Metro East Mixed Use (MEMO) Overlay Zone: i. Is the proposed development plan consistent with and will further the objectives outlined in Section 1.2 for the MEMU Overlay Zone? The proposed mixed -use development project by Lyon Communities will be compatible with Section 1.2 (Objectives) of the Metro East Overlay zone as the project will be a mixed use project that will allow persons to live, work and shop in the immediate area. Further, the project will incorporate an active streetscape that will integrate the private development with the public realm and will assist in creating a distinct identity for the district. ii. Is the proposed development plan consistent with the development standards specified in Section 4 of the MEMU Overlay Zone? The proposed project is consistent with Section 4 (Development Standards) of the MEMU zone. The project is in compliance with the various development standards for the Active Urban District, including setbacks, parking, lot size and open space. iii. Is the proposed development plan designed to be compatible with adjacent development in terms of similarity of scale, height, and site configuration and otherwise achieves the objectives of the Design Principles specified in Section 5 of the MEMU Overlay Zone? The project site is compatible with adjacent development and achieves the design principles outlined in Section 5 (Design Principles) of the MEMU plan. The project is in close proximity to several mid - rise buildings in the area and has been designed to complement these developments. Further, the project incorporates a variety of architectural materials, Resolution No. 2013 - 75A -6 Page 4 of 15 massing and ground floor uses that are compatible with the MEMU plan. iv. Have the land use uses, site design, and operational considerations in the proposed development plan been planned in a manner that will result in a compatible and harmonious operation as specified in Section 7 of the MEMU Overlay Zone? The proposed project has been designed to be compatible and identified in Section 7 (Operational Standards) of the MEMU plan. The projects windows, lighting and operational hours will result in a project that will not impact the proposed residential uses or the adjacent commercial and office uses. Section 2. The City Council previously approved and adopted Final Environmental Impact Report No. 2006 -01. In accordance with the California Environmental Quality Act, an Addendum to the Final Environmental Impact Report No. 2006 -01 and the mitigation monitoring and reporting program was prepared for this project. Based upon the studies, the City Council determines that there are no new significant impacts or any increases in the severity of the impacts previously identified in the original Environmental Impact Report. The City Council hereby approves the Addendum to the Final Environmental Impact Report No. 2006 -01 and approves the mitigation monitoring and reporting program, attached hereto as Exhibit "C" and incorporated as though fully set forth herein. Section 3. The City Council of the City of Santa Ana after conducting the public hearing hereby approves: A. Vesting Tentative Tract Map No. 2013 -04 as conditioned in Exhibit "A" attached hereto and incorporated herein for the multi - family residential development located at 1901 East First Street. B. Site Plan Review No. 2013 -03 as conditioned in Exhibit "B" attached hereto and incorporated herein. These decisions are based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Council Action dated September 16, 2013, and exhibits attached thereto; the public testimony, written and oral; and, the Final Environmental Impact Report No. 2006 -01 and Mitigation Monitoring and Reporting Program that was previously approved and adopted by the City Council, all of which are incorporated herein by this reference. Resolution No. 2013 - 75A -7 Page 5 of 15 Section 4. This Resolution shall not be effective unless and until Ordinance No. NS- becomes effective. If said ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this resolution shall be null and void and have no further force and effect. Section 5. Applicant has requested the approval of the above entitlements which are incompatible with previously granted entitlements. As such, any and all previously approved inconsistent entitlements are hereby null and void and of no further force and effect. Section 6. This decision rendered by the City Council of the City of Santa Ana is final and is subject to judicial review pursuant to California Code of Civil Procedure section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the Council's decision and these findings. ADOPTED this day of September, 2013. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney M Ryan O. Hodge Assistant City Attorney Miguel A. Pulido Mayor Resolution No. 2013 - 75A -8 Page 6 of 15 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. 2013 -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. 2013 - 75A -9 Page 7 of 15 Conditions for Approval for Vesting Tentative Tract Map No. 2013 -04 Should the Planning Commission approve Vesting Tentative Tract Map No. 2012 -01, the approval is subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below rip or to exercising the rights conferred by this vesting tentative tract map. The applicant must remain in compliance with all conditions listed below throughout the life of the vesting tentative tract map. Failure to comply with each and every condition may result in the revocation of the vesting tentative tract map. A. Planning Division 1. Comply with all conditions and requirements from the Development Review Committee (DRC) for the development project (DP No. 2013 -17). 2. Covenants, Conditions and Restrictions (CC &Rs) for this project must be reviewed and approved prior to approval of the final tract map. At a minimum, the CC &Rs shall include provisions pertaining to owner occupancy, restrictions on home -based businesses, the prohibition of storage on balconies, and a restriction on truck delivery hours to non -peak periods. 3. All real estate signage must be removed from the site within one year from the date of installation. An extension of time may be granted as determined by the Planning Manager. 4. The final map must be approved and recorded prior to the sale of the first unit. 5. The final map and all improvements required to be made or installed by the subdivider must be in accordance with the design standards and specifications of the Santa Ana Municipal Code and the requirements of the State Subdivision Map Act. 6. Development within the area of the map is subject to development and permit fees in effect at the time of permit issuance. 7. Development within the area of the map is subject to design and development standards in effect at the time of permit issuance. EXHIBIT "A" Resolution No. 2013 - 75A -1 0 Page 8 of 15 AUGUST 26, 2013 PAGE 2 OF 3 8. Two copies of the recorded final map and CC &Rs shall be submitted each to the Planning Division, Fire Department, Building Division, and Public Works Agency within 10 days of recordation. 9. Pursuant to Section 66474.9(b) of the Subdivision Map Act, the applicant shall defend, indemnify, and hold harmless the City, and its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, any approval of the City concerning this subdivision application, which action is brought within the time period provided for in Section 66499.37. B. Police Department 1. A security plan must be submitted to the Police Department at the plan check stage for approval. The plan will be required to outline hours of operation for the parking structure (secured /open), a duress alarm system for the parking structure and an access control system for the perimeter of the building and parking structure. 2. Resident parking must be physically separated and secured from all guest parking. 3. Each door within the parking structure and buildings leading into a stairwell, lobby or storage area must be outfitted with a 100 square inch fire rated window. Convex mirrors a minimum of 12- inches in diameter must be installed at each stairwell landing and at each corner along a walkway. The last flight of stairs must be fully enclosed at its base. 4. Elevator lobbies must be glass encased (glass entry doors) to provide the user with maximum visibility. Elevators are to be equipped with minimum 12 inch shatterproof convex mirrors or are to have mirrored backings. 5. All parking structure vehicular entrances are to be secured with a rolling grille and outfitted with a Police Department sub mastered Knox box. 6. Parking structure first floor exits are to be designed to allow emergency egress only with no exterior hardware. Resolution No. 2013 - 75A -1 1 Page 9 of 15 AUGUST 26, 2013 PAGE 3OF3 7. Building and unit addressing must comply with the City's emergency service standards. 8. Lobby doors must be equipped with a Police Department approved access control system. 9. Provide a minimum 100 square inch window in the trash room doors 10. Parking structure elevators must be equipped with an approved access control system. 11. Provide a photometric study showing compliance with the 1 footcandle requirement for all walkways and the parking structure. 12. The townhome parking garage space within the parking structure must be equipped with a grille or door. Resolution No. 2013 - 75A -12 Page 10 of 15 Conditions of Approval for Site Plan Review No. 2013 -03 Site Plan Review No. 2013 -03 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The applicant must comply with each and every condition listed below rip or to exercising the rights conferred by this site plan review. The applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation of the site plan review. A. Planning Division 1. All proposed site improvements must conform with the Site Plan Review approval of DP No. 2013 -17. 2. Any amendment to this site plan review must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or if the site plan review must be amended. 3. Prior to submittal into building plan check, a project phasing plan shall be submitted to the Planning Division for review and approval. The phasing plan shall include a landscape plan identifying the treatment of the remainder building site. 4. The project shall incorporate on -site professional property management for the residential component. 5. Balconies for the project shall maintain a minimum dimension of not less than five feet in any direction. 6. Balconies for the project shall incorporate the use of stainless steel railings 7. Covenants, Conditions and Restrictions (CC &Rs) for this project must be reviewed and approved prior to approval of the final tract map. At a minimum, the CC &Rs shall include provisions pertaining to owner occupancy, restrictions on home -based businesses, the prohibition of storage on balconies, and a restriction on truck delivery hours to non -peak periods. EXHIBIT "B" Resolution No. 2013- 75 w _1 3 Page 11 of 15 AUGUST 26, 2013 PAGE 2OF5 8. All parking for the project shall be made available free of charge. Parking spaces for each unit shall be provided as a part of the deed for each dwelling unit. 9. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. 10. A detailed amenity deck plan must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the hardscape design, lighting concepts and outdoor furniture for the amenity deck as well as an installation plan. The exact specifications for these items are subject to the review and approval of the Planning Manager. The amenity deck shall be maintained in the same condition as installed at the time of occupancy. 11. A detailed water feature plan must be reviewed and approved prior to issuance of any building permits. The plan shall include a minimum of one water feature within the motor court, elevations, hardscape design, lighting concepts and an installation plan. The exact specifications for these items are subject to review and approval of the Planning Division. The water feature(s) shall be maintained in the same condition as installed at the time of occupancy. 12. At a minimum, the following items must be included as exterior amenities for the development: bike racks, enhanced paving on the walkways, an outdoor fireplace, barbeque and a pool on the amenity deck. The exact specifications for these items are subject to the review and approval of the Planning Division. 13. An interior building amenity plan of all common areas (recreation room, meeting rooms, fitness rooms and lobbies) must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the various finishes, furniture and equipment to be provided in these rooms. The exact specifications for these items are subject to the review and approval of the Planning Manager. Resolution No. 2013 - 75A -1 w Page 12 of 15 AUGUST 26, 2013 PAGE 3 OF 5 14. An interior amenity plan for the units must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the various finishes, furniture and equipment to be provided in these rooms. Examples of a level of quality required for the project include granite counter tops or equivalent, hardwood flooring or equivalent, General Electric Monogram appliances or equivalent, tiled bathroom and shower walls, stain grade hard wood cabinets and individual laundry hook -ups. The exact specifications for these items are subject to the review and approval of the Planning Manager. 15. An elevator lobby plan of each lobby must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the finishes and flooring to be provided. The exact specifications for these items are subject to the review and approval of the Planning Manager. 16. Prior to submittal into building plan check, detailed elevations shall be submitted to include exterior finishes, materials, and colors subject to approval of the Planning Division. 17. A Public Art Plan which proposes a specific work(s) of art for a specific location(s) shall be submitted to the Planning Commission for review and approval. All public art approved by the Planning Commission shall be completely installed prior to the issuance of a certificate of occupancy for the project. 18. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the hardscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on the preliminary landscape plan. The exact specifications for these items are subject to the review and approval of the Planning Division. 19. The following items must be included as interior amenities within the common areas: granite counter tops, hardwood flooring or equivalent, and gas fireplaces. The exact specifications for these items are subject to the review and approval of the Planning Division. Resolution No. 2013 - 75A_1 5 Page 13 of 15 AUGUST 26, 2013 PAGE 4 OF 5 20. Pedestrian walkways shall be provided through the project. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting, and landscape planters. The materials and design of the walkway is subject to the review and approval of the Planning Division. 21. A Resident Storage Plan shall be provided for the project. Storage shall be available at no cost to the residents. 22. Cast iron drain pipes shall be provided for the project. 23. Smart wiring, including cable television and high -speed cable for computers, shall be provided for each unit and within the project's common areas. 24. Construction workers for the project shall be prohibited from parking in the adjacent neighborhoods. 25. Prior to occupancy of any units, a rental housing execution plan must be submitted to the Planning Division for review and approval. At a minimum, the plan shall identify the location of employee and visitor parking, the location of the rental office, hours of operation for the rental office, and signage affiliated with the Rental Housing Operational Plan. In addition, the rental plan must clearly note that the parking and project amenities must be provided free of charge to the residence. 26. Prior to submittal into building plan check, the design for the courtyard gates shall be submitted to the Planning Division for approval. The fences /gates shall be decorative and ornamental in nature as they are the entries to the interior courtyards. 27. The following best management practices (BMPs) need to be incorporated into the project construction and operation to minimize greenhouse gas impacts: a. Install energy efficient lighting, appliances, heating, and cooling systems. b. Install efficient lighting for street and other outdoor lighting. C. Reduce unnecessary outdoor lighting. d. Provide education on energy efficiency to residents and /or tenants. e. Install water - efficient irrigations systems and devices. Resolution No. 2013 - 75A -1 6 Page 14 of 15 AUGUST 26, 2013 PAGE 5 OF 5 f. Design buildings to be water - efficient. Install water - efficient fixtures and appliances. g. Provide education about water conservation. h. Provide easy and convenient recycling opportunities for residents and tenants. i. Provide education on recycling waste. Resolution No. 2013 - 75A -1 7 Page 15 of 15 (ROH 08/26/13) ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING AN AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND LYON HOUSING (FIRST STREET) XLVIII, LLC THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into development agreements with persons having legal or equitable interests in real property for the purpose of establishing certainty for both City and owner in the development process. B. The City enters into this Amendment to Development Agreement pursuant to the provisions of the Government Code and applicable City policies. C. The Planning Commission has, following a duly noticed public hearing, on August 26, 2013, recommended approval of this First Amendment to Development Agreement. D. Entering into this First Amendment to Development Agreement would provide the City with extraordinary and significant benefits that are of regional significance, relate to existing deficiencies in public facilities, require the owner of 1901 East First Street to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. E. The City Council has held a noticed public hearing on this Ordinance and has considered all testimony presented thereto. F. The previously adopted and certified Final Environmental Impact Report EIR for the property, No. ER 2006 -01, and its Addendum, have been approved and certified by this Council by resolution simultaneously with the introduction of this ordinance. Ordinance No. NS -XXX Page 1 of 3 75A -18 G. The proposed project will not adversely affect the General Plan, as is expressly set forth in the Request for Council Action dated September 16, 2013, together with all supporting documents, including but not limited to, proposed resolutions, which are incorporated herein by this reference. Section 2. The Amendment to Development Agreement, a true and correct copy of which is attached hereto as Exhibit 1, is hereby approved, and the City Manager and Clerk of the Council are authorized to execute it on behalf of the City with such non - substantive changes as may be authorized by the City Manager and City Attorney. The Clerk of the Council is hereby authorized and directed to cause this Development Agreement to be recorded with the County Recorder's Office. Section 3. This ordinance shall not be effective unless and until Resolution No. 2013- is adopted and becomes effective. If said resolution is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this ordinance shall be null and void and have no further force and effect. Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of 12013. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: Ryan O. Hodge Assistant City Attorney Miguel A. Pulido Mayor 75A -19 Ordinance No. NS -XXX Page 2 of 3 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 75A -20 Ordinance No. NS -XXX Page 3 of 3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M -30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE & 6103 FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT 067679A5448832v5 by and between THE CITY OF SANTA ANA and LYON HOUSING (FIRST STREET) XLVIII, LLC Dated: ,2013 EXHIBIT 1 75A -21 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND LYON HOUSING (FIRST STREET) XLVIII, LLC, a Delaware limited liability company This FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ( "City ") and LYON HOUSING (FIRST STREET) XLVIII, LLC, a Delaware limited liability company ( "Owner "). The City and Owner are referred to jointly within this First Amended and Restated Development Agreement as the "Parties" and individually as a 'Party." RECITALS. The First Amended and Restated Development Agreement is entered into with reference to the following facts: 1.1 The Property. The real property which is the subject of this First Amended and Restated Development Agreement is located at 1901 E. 1 st Street in Santa Ana, California (the `Property'). The Property is more particularly described in Exhibits A and B to this First Amended and Restated Development Agreement. The Property is a 5.1 acre parcel within the Metro East Mixed Use Overlay Zone that is located at the northeast comer of First Street and Cabrillo Park Drive. The Property is bounded by multi- tenant office buildings, a parking structure, and Kaiser Permanente medical offices to the north, low -rise office buildings and retail development to the East, First Street to the South, and Cabrillo Park Drive and a 15 -story Xerox Centre office building to the West. The Property was previously occupied by a two -story, 75,300 square foot building (the "Main Building ") and an existing parking structure with approximately 660 parking spaces (the "Existing Parking Structure "). The Main Building has been demolished, but the Existing Parking Structure remains on the Property. 1.2 The Original Agreement. 067619 \5448832v5 (a) On April 2, 2007, the City Council of the City of Santa Ana (the "City Council') adopted Ordinance No. NS -2741 approving a Development Agreement between the City and 1901 E. 1st Street Partners, LLC (the "Original Agreement'). Ordinance No. NS -2741 became effective on May 2, 2007, which became the effective date of the Original Agreement. 75A -22 (b) Before approving the Original Agreement, the City Council certified Environmental Review No. 2006 -01 for the Original Agreement and the development proposal which was the subject of the Original Agreement (the "Original EIR "). (c) Both this First Amended and Restated Development Agreement and the Original Agreement pertain to the Property. (d) 1901 E. 1st Street Partners, LLC, a Delaware limited liability company, was the owner of the Property at the time of the Original Agreement (the "Original Owner "). (e) On September 30, 2012, Owner acquired the Property from 1901 Santa Ana Land, LLC, a Delaware limited liability company and a successor of the Original Owner. (f) By entering into this First Amended and Restated Development Agreement, the City Council approves the assignment of the rights and delegation of the obligations under the Original Agreement to Owner. 1.3 Purpose of this First Amended and Restated Development Agreement. (a) The purpose of this First Amended and Restated Development Agreement is to facilitate the development of the Property. This First Amended and Restated Development Agreement is not a new development agreement, but rather an amendment and restatement of the terms of the Original Agreement. The purpose of this First Amended and Restated Development Agreement is to (1) reflect a revised development plan for the Property and (2) extend the term set forth in the Original Agreement. (b) Owner proposes to develop on the Property a new 254 -unit multifamily residential development (the `Project'). The Project will consist of a new 5 -story low -rise Type III -A building containing 240 units to be constructed against the west side of the Existing Parking Structure and a new 3 -story Type V -A townhouse building wrapping the south and east sides of the garage containing 14 townhouse units. A 5,000 GSF clubhouse and recreation deck with pool will be added over the southern half of the Existing Parking Structure. The project will also include approximately 2,424 SF of retail space on the corner of First Street and Cabrillo Park Drive. 067619 \5448832v5 2 75A -23 1.4 Code Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing development certainty for both the City and Owner in the development process. City enters into this First Amended and Restated Development Agreement pursuant to the provisions of the Government Code and applicable City policies. The Parties acknowledge: (a) This First Amended and Restated Development Agreement is intended to assure adequate public facilities at the time of development. (b) This First Amended and Restated Development Agreement is intended to assure development in accordance with City's General Plan, applicable Specific Plans and the Metro East Mixed -Use Overlay Zone. (c) This First Amended and Restated Development Agreement will permit achievement of goals and objectives as reflected in the City's General Plan, all applicable Specific Plans and the Metro East Mixed -Use Overlay Zone. (d) Owner is required by existing City regulations to provide mitigation for certain identified impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (e) This First Amended and Restated Development Agreement will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (f) Many of the extraordinary and significant benefits identified as consideration to City for entering into this First Amended and Restated Development Agreement are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1.5 Owner. Owner represents and warrants that it has a legal or equitable interest in the Property. 067619 \5448832,5 3 75A -24 1.6 Interest of Owner. Owner represents that it has approved this First Amended and Restated Development Agreement and is authorized to enter into this First Amended and Restated Development Agreement. 1.7 Public Hearings. The Original Agreement was the subject of a series of Planning Commission and City Council public hearings in 2007. In addition, this First Amended and Restated Development Agreement was the subject of the following public hearings: (a) Planning Commission. On , 2013, the Planning Commission, after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's application for this First Amended and Restated Development Agreement and the environmental documentation evaluating the potential impacts of the First Amended and Restated Development Agreement. (b) City Council. On , 2013, the City Council, after providing notice as required by law, held a public hearing to consider Owner's application for this First Amended and Restated Development Agreement (c) Environmental Analysis. Before approving this First Amended and Restated Development Agreement, the Planning Commission and the City Council reviewed an Addendum to previously prepared Environmental Review No. 2006 -01 and the City Council approved the Addendum (the "Addendum "). 1.8 City Council Findings. The City Council finds that this First Amended and Restated Development Agreement is consistent with the General Plan, applicable specific plan(s), applicable zoning regulations, and all other applicable ordinances, plans, policies and regulations of the City. 1.9 City Ordinance. On , 2013, the City Council adopted Ordinance No. approving this First Amended and Restated Development Agreement. That ordinance becomes effective thirty (30) days after the date of adoption. 2. DEFINITIONS. In this First Amended and Restated Development Agreement, unless the context otherwise requires: 2.1 "Amendment Date" means , 2013, the date on which the Adopting Ordinance became effective. 067619 \5448832x5 4 75A -25 2.2 "Applicable Rules" means all rules, regulations, ordinances and official plans and policies of the City in force as of the Effective Date as included within the Santa Ana Municipal Code ( "SAMC "), the Metro East Mixed - Use Overlay Zone, this First Amended and Restated Development Agreement and the Entitlements, as defined below. 2.3 "Effective Date" means May 2, 2007, the date upon which the ordinance approving the Original Agreement became effective. 2.4 "Entitlements" means this First Amended and Restated Development Agreement modifying Development Agreement No. 2007 -01, Environmental Review No. 2006 -01, the Addendum, General Plan Amendment No. 2007 -01, Vesting Tentative Tract Map No. 2013 -4, Zoning Ordinance Amendment No. 2007 -01, the Metro East Overlay Zone Public Realm Improvement Plan, Site Plan Review Approval No. 2013 -3, and any changes to these to which Owner has consented in writing. 2.5 "In Lieu Park Development Fee" means the fee to be paid by Owner to fully satisfy all park - related obligations of the Project as provided in Section 5.10 below. 2.6 "Owner" means Lyon Housing (First Street) XLVIII, LLC, a Delaware limited liability company. 2.7 "Original Agreement' means the Development Agreement between the City and 1901 E. 1st Street Partners, LLC approved by the City Council on April 2, 2007, by Ordinance No. NS -2741. 2.8 "Original Hearing Date" means the date on which the City Council conducted the first reading of Ordinance No. NS -2741 approving the Original Agreement. 2.9 'Project' is the development on the Property of a 254 -unit multiple family residential development and approximately 2,424 square feet of retail space as generally set forth in the Entitlements. 2.10 "Property" means the real property described in Exhibit A and referred to in Exhibit B. 2.11 "Public Art" is defined in Section 5.1.7. 2.12 "Public Art Fee" is defined in Section 5.1.7 2.13 "Public Art Plan" is set forth in Exhibit C to this First Amended and Restated Development Agreement. 067619A5448832v5 5 75A -26 2.14 "Reserved Powers" means the rights and authority excepted from this First Amended and Restated Development Agreement's restrictions on the City's police powers and which are instead reserved to the City. The Reserved Powers include the power to enact and implement rules, regulations, ordinances and policies after the Effective Date that are not in conflict with the Applicable Rules or that may be in conflict with the Applicable Rules, but: (a) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health and /or safety; (b) are Uniform Codes; (c) are required to comply with mandates under state and federal laws, rules and regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; or (d) relate to increases in development impact fees occurring after the Effective Date. 2.15 "Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations which are based on recommendations of a multi- state professional organization and become applicable throughout the City, such as, but not limited to, the California Building Code, the California Electrical Code, the California Mechanical Code, or the California Fire Code (including those amendments to the promulgated Uniform Codes which reflect local modification to implement the published recommendations of the multi -state organization and which are applicable City -wide) 2.16 "Utility Release" means the formal approval of the City Building Department, following its inspection, that residential unit(s) may be released for initial connection to the electrical power system, water service system, gas service system, and sanitary sewer system. Utility Release(s) do not include temporary utility service provided to any structure during construction. 3. EXHIBITS. The following documents referred to in this First Amended and Restated Development Agreement are attached to this First Amended and Restated Development Agreement and are identified as follows: Exhibit Designation Description Referred to in Section A Property Legal Description 1.1, 2.10 B Property Graphical Description 1.1 C Public Art Plan 2.13, 067619A5448832v5 75A -27 D Offsite Improvements 5.1.8 4. GENERAL PROVISIONS. 4.1 Term of First Amended and Restated Development Agreement (the "Term "). The ten -year term of the Original Agreement started on the Effective Date of May 2, 2007, and would have ended on May 2, 2017. This First Amended and Restated Development Agreement shall extend the end of the Term to ten years after the effective date of the ordinance approving this First Amended and Restated Development Agreement. 4.2 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this First Amended and Restated Development Agreement; provided, however, the rights of Owner under this First Amended and Restated Development Agreement may not be transferred or assigned unless the written consent of the Council is first obtained and any transfer or assignment of the rights under this First Amended and Restated Development Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this First Amended and Restated Development Agreement if the City grants written consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer of the rights under this First Amended and Restated Development Agreement shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. A transfer or assignment of the rights under this First Amended and Restated Development Agreement without the consent of the City shall not relieve Owner of any accrued duty, obligation or liability to City. No consent shall be required for sale of units to condominium unit buyers. During the term of this First Amended and Restated Development Agreement, any approved assignee or transferee of the rights under this First Amended and Restated Development Agreement shall observe and perform all of the duties and obligations of Owner contained in this First Amended and Restated Development Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this First Amended and Restated Development Agreement. If the Property is subdivided, any subdivided parcel may be sold, 067619A5448832v5 7 75A -28 mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this First Amended and Restated Development Agreement. Upon assignment or transfer of the rights of Owner under this First Amended and Restated Development Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. Should the Project be developed as or later converted to condominiums, individual condominium unit buyers shall not have any liability or obligation pursuant to this First Amended and Restated Development Agreement. 4.3 Amendment or Cancellation of First Amended and Restated Development Agreement. This First Amended and Restated Development Agreement may be amended from time to time or cancelled by the mutual consent of the Parties, but only in the manner required by Government Code Section 65868. As used within this First Amended and Restated Development Agreement, the terms "Agreement" and "Original Agreement" shall include any amendment properly approved executed. 4.4 Enforcement. Notwithstanding Government Code Section 65865.4, this First Amended and Restated Development Agreement is enforceable by either Party in any manner provided by law. The remedies provided in Section 7.4 shall not include, and City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this First Amended and Restated Development Agreement. 4.5 Indemnification by Owner. Owner agrees to and shall indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from liability for damages, attorneys' fees, restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from construction activities with respect to the Project by the Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf. Owner further agrees to indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from any Litigation, as hereinafter defined. For purposes of this paragraph, "Litigation" shall mean any lawsuit, action or cross - action, challenging the validity of this transaction, the Project as defined in Section 2.9, or any portion thereof or the rights of either party hereunder and /or the rights of either party to engage in the acts and transactions contemplated by this First Amended and Restated Development Agreement. Notwithstanding any other provision of this First 067619A5448832v5 8 75A -29 Amended and Restated Development Agreement, this indemnity and duty to defend shall be limited as follows: (a) Owner shall have no responsibility to defend the City under this section for any aspect of Litigation challenging Amendment Application 2007 -01, General Plan Amendment No. 2007 -01, and /or Zoning Ordinance Amendment No. 2007 -01 (the "Overlay "). (b) In the event the Litigation results in a judgment and /or award of damages and /or attorneys' fees related to the Overlay but in no way related to the application of the Overlay to the Property, Owner shall have no responsibility to indemnify the City therefor. (c) In the event of any Litigation the parties agree to affirmatively cooperate in defending said action. (d) Owner shall have approval of any settlement if, (i) it will affect Owner's project, or (ii) Owner will be required to pay (or reimburse) any amounts (regardless of type) in connection with the settlement (including attorneys' fees and costs). (i) If City determines to settle over Owner's objections, then Owner may upon thirty (30) days written notice terminate defense of the action. (ii) If City rejects a settlement offer that Owner deems reasonable, then Owner may upon thirty (30) days written notice terminate defense of the action. (e) Owner shall be allowed to terminate its defense if it determines to abandon defense of its project application; provided, however, that in such circumstance Owner shall be solely liable for award, if any, of costs or attorneys' fees to plaintiff /petitioner incurred prior to the effective date of termination. 4.6 Binding Effect of First Amended and Restated Development Agreement. To the extent not otherwise provided in Section 4.2 of this First Amended and Restated Development Agreement, the burdens of this First Amended and Restated Development Agreement bind, and the benefits of the First Amended and Restated Development Agreement inure, to the parties successors in interest. 4.7 Relationship of the Parties. The contractual relationship between City and Owner arising out of this First Amended and Restated Development Agreement is one of independent contractor and not agency. This First 067619 \5448832v5 9 75A -30 Amended and Restated Development Agreement does not create any third party beneficiary rights. 4.8 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this First Amended and Restated Development Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: If to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M -31 P.O. Box 1988 Santa Ana, California 92702 -Tire City Attorney, City of Santa Ana 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, California 92702 If to Owner. to: Lyon Housing (First Street) XLVIII, LLC 4901 Birch Street Newport Beach, CA 92660 Attention: General Counsel and Tim Paone Cox Castle & Nicholson LLP 19800 MacArthur Boulevard Irvine. CA 92612 -2480 A Party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered 067619 \5448832v5 to 75A -31 or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty - four (24) hours after the time set forth on the transmission report issued by the transmitting telefacsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 5. DEVELOPMENT OF THE PROPERTY. 5.1 City Obligations. In consideration for Owner entering into this First Amended and Restated Development Agreement and performing its obligations hereunder and in order to effectuate the purposes and intentions set forth in this First Amended and Restated Development Agreement and the Development Agreement Act, the City hereby agrees during the Term as follows: 5.1.1 Vested Right to Develop. Owner is hereby granted the vested right to develop the Project subject to the terms and conditions of the Applicable Rules and the Reserved Powers. 5.1.2 Non - Application of Changes in Applicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in the General Plan, zoning ordinance, subdivision ordinance, or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of ordinance, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever, however denominated, and adopted by the City Council, Planning Commission or any City Agency, or by the electorate, as the case may be, which would, absent this First Amended and Restated Development Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules, shall not be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or are otherwise expressly allowed by this First Amended and Restated Development Agreement. In the event that state or federal laws or regulations enacted after this First Amended and Restated Development Agreement has been entered into, prevent or preclude compliance with one or more provisions of this First Amended and Restated Development Agreement, such provisions of this First Amended and Restated Development Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 067619 \5448832v5 i I 75A -32 067619 \54488320 5.1.3 Agreed Changes and Other Reserved Powers. This First Amended and Restated Development Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies in conflict with the Applicable Rules where such additional rules, regulations, ordinances and officially adopted plans and policies (a) are mutually agreed to in writing by Owner and the City, or (b) result from the Reserved Powers. 5.1.4 Subsequent Development Approvals. The City shall require Owner to obtain only those Subsequent Development Approvals that are required by the Applicable Rules or the Reserved Powers. City agrees that it shall condition any Subsequent Development Approvals based only on the Applicable Rules and /or Reserved Powers. 5.1.5 Moratoria. In the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate, amount, timing, sequencing, or phasing of the development or construction of the Project on all or any part of the Property, City agrees that, unless required by applicable state law, such ordinance, resolution or other measure shall not apply to the Project, Property or this First Amended and Restated Development Agreement, unless such changes are adopted pursuant to the City's exercise of its Reserved Powers or other applicable provision of this First Amended and Restated Development Agreement. 5.1.6 Timing of Development. The parties acknowledge that Owner cannot at this time predict when or if the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner such as market orientation and demand, interest rates, absorption, completion and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that except as provided in and subject to Section 5.11, Owner shall have the right to develop the Property at such rate and at such time as Owner deems appropriate within the exercise of its subjective business judgment. 12 75A -33 5.1.7 Development, Construction, and Completion of Public Art. Owner shall include within the Project single or grouped permanent work of public art consistent with the Public Art Plan (collectively, "Public Art") at a cost of not less than One Hundred Twenty Five Thousand Dollars ($125,000) (the "Public Art Fee "). 5.1.8 Additional Offsite Mitigation Measures. The offsite mitigation measures (i.e., which clarify mitigation measures set forth in the Project entitlements) which must be constructed by Owner are as set forth in Exhibit D to this First Amended and Restated Development Agreement. All funds or costs for offsite mitigation measures required pursuant to the approvals set forth in section 2.4 of this First Amended and Restated Development Agreement shall be paid or security provided therefor in conformance with the provisions of the Subdivision Map Act, no later than recordation of the final subdivision map for the Project, or issuance of the first building permit for the Project, whichever comes first. 5.1.9 Irrevocable Offer to Dedicate Easements or Land To Implement Public Realm Improvement Plan. On the face of the final map for the Project, or contemporaneous with offering the final map for filing with the County if it is not placed on the final map, Owner shall execute an irrevocable offer to dedicate to the City such property interest (easement for the breezeway /lane along the north side and fee title along the south side of the Project) as is necessary to effectuate the Metro East Public Realm Improvement Plan adopted contemporaneously with the Project. Owner shall not be required to dedicate additional land pursuant to any amendments to said Plan which may occur following its adoption. Owner shall be entitled to an offset against its obligations under Section 5.7 of this First Amended and Restated Development Agreement for such property. 5.2 Exclusion from Existing Rules, Regulations and Policies. (a) Pursuant to Government Code Section 65866 and Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, City retains the right to enact police power regulations on matters not covered by Section 5.1 of this First Amended and Restated Development Agreement, including without limitation: (i) Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with Section 5.1 of this First Amended and 067619A5448832v5 13 75A -34 Restated Development Agreement. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non - conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non - conflicting laws and regulations include the following: • Taxes, assessments, fees and charges, except as otherwise specifically provided in this First Amended and Restated Development Agreement; • Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; • Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city -wide basis; and Procedural rules of general City -wide application. 5.3 Construction Standards and Specifications. The construction standards (e.g., the Uniform Codes) and specifications for all Project construction shall be subject to applicable construction standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 FAA Approval. Owner shall obtain and maintain, during the term of this First Amended and Restated Development Agreement, any and all necessary approvals from the FAA for the Project. Should such approvals lapse and not be reinstated or reapproved prior to the issuance of the first building permit, the City shall have the right to terminate this First Amended and Restated Development Agreement. 5.5 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and /or environmental review, which are existing or may be revised or adopted during the term of this First Amended and Restated Development Agreement, shall apply to the development of the Property. 067619A5448832x5 14 75A -35 5.6 Amendments or Additions to Citywide Fee Programs. This First Amended and Restated Development Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees ") adopted by the City after the effective date of this First Amended and Restated Development Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Project impacts which were analyzed in the environmental impact report prepared for the Project, or (b) duplicate any project design features conditions of approval, agreements, or mitigation measures contained in this First Amended and Restated Development Agreement 5.7 Community Facilities District or Other Financing Tool. Owner agrees to petition for, and fully support (including voting to establish, if required), the establishment of or annexation into a Community Facilities District or similar financing mechanism covering the Property, in order to fund the proposed project's fair share of eligible items, e.g., the costs of implementing the Metro East Public Realm Improvement Plan; provided, however that the total effective tax rate (including but not limited to regular property or ad valorem taxes, special taxes, benefit assessment or other imposition) shall not exceed an annual levy of one and six - tenths percent (1.6 %) of the Property's valuation, as improved. Owner and City shall cooperate in good faith to designate those improvement and /or fees to be funded by the Community Facilities District or other mechanism. Owner shall have the right to review and approve any final list of said facilities and /or fees; provided, however that Owner's approval may not be unreasonably withheld. 5.8 Phasing of Project. The parties agree and acknowledge that the Project may be built in up to two (2) phases (with one tower in each phase), but that, except as otherwise expressly stated herein, all conditions and mitigation measures shall be implemented as part of the initial phase; provided, however that Owner may propose to delay to the second phase on -site conditions (e.g., sidewalks) that could be damaged by future construction. Prior to issuance of the first building permit for the Project, Owner shall submit a proposed Phasing Plan to the City, for review and approval by the City's Planning Commission. The proposed Phasing Plan shall contain those items Owner deems necessary, but shall include the timing for first and second phase construction and interim site improvements (i.e., landscaping, internal circulation) between the phases. 067619 \5448832v5 15 75A -36 The approved Phasing Plan must be implemented within six (6) months after completion of the first phase (i.e., issuance of first Utility Release). 5.9 Inclusionary Housing. Owner shall pay to the City the sum of Three Thousand Dollars ($3,000) for each Residential Unit contained in each phase ( "Inclusionary Housing Fee "). The Inclusionary Housing Fee shall be paid with respect to each phase at such time as 95% of the residential units within such phase have received Utility Releases. The Inclusionary Housing Fee shall be used by the City for planning (including, but not limited to, preparation of one or more elements of its general plan or for zoning amendments), conceptual design, final design, bid preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill, and /or construction of new or substantially rehabilitated existing affordable housing in the City. 5.10 In -Lieu Park Development Fee. The Owner shall pay an in -lieu park development fee in the amount of One Million Four Hundred Fifty Thousand Dollars ($1,450,000) with respect to the Project ( "In -Lieu Park Development Fee ") payable pro rata, which pro rata fraction shall be determined based on a fraction the numerator of which is the total number of residential units in a phase and the denominator of which is the total number of residential units in the Project. The pro rata In -Lieu Park Development Fee shall be paid prior to issuance of the building permit for each phase. The City shall use said fees for new parkland, capital improvements at existing parks, and deferred maintenance at existing parks (up to a maximum of fifty percent of amount of the fee). If not used or appropriated this fee shall be returned to Developer, consistent with the provisions of (and subject to the exceptions contained within) the California Mitigation Fee Act, Government Code § 66000 et seq. Owner may propose in future an alternative in -lieu of the provisions of this section which fully satisfies this requirement, and if such proposal is consistent with City's park plans and standards, the City shall consider such proposal in good faith; provided, however, that if approved such proposal shall be the subject of an amendment to this First Amended and Restated Development Agreement entered into pursuant to Government Code section 65868. 5.11 Covenants, Conditions, and Restrictions. Owner may, at its sole option, decide in the future to sell individual residential units as condominiums. Prior to the issuance of the first building permit for the Project, Owner shall provide to the City the proposed Covenants, Conditions, and Restrictions ( "CC &R's ") to be recorded against the Property for the condominiums. Those CC &R's must be approved by the Planning and Building Agency's Executive Director (or the person acting in 067619 \5448832v5 16 75A -37 the equivalent role if the title of the position is changed. The City's review and approval of the CC &R's shall be limited to determining inclusion of the following restrictions within the CC &R's: (a) No more than four residents shall be permitted for each unit, except that for three - bedroom units, there shall be no more than five residents per unit. (b) All initial sales of residential units by Owner shall include a covenant that the buyer may not re -sell the unit for a period on one (1) year. (c) No home occupation shall be permitted in a unit, except in accordance with Section 41 -192 et seq. of the Santa Ana Municipal Code. (d) Allocation of responsibility for repair of perimeter walls and common areas, including landscaping, will be specified in the CC &R's in the event of damage. (e) Notice of the urban character of the City and this area, including but not limited to (i) the permitted uses of the property and buildings in the immediate area of the development (e.g., Xerox Towers, State Compensation Insurance Fund, 1 -5 and SR -55 freeways). (f) The release of the City from all claims which may arise from or relate to the urban character of the City and this area. (g) A term of the CC &R's of an initial period of ninety- nine years, with automatic and repeating one - hundred (100) year extensions, unless terminated earlier by the joint consent of (i) the City and (ii) not less than seventy five percent of those condominium owners entitled to vote under the CC &R's. (h) The need for the approval of the City to any proposed modifications to the provisions of the CC &R's identified in this Section 5.11. (i) The imposition of a significant financial penalty by the Home Owner's Association upon any member who violates the provisions of the CC &R's identified in this Section 5.11. 5.12 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of those approvals, and in no event shall such conditions be affected by the 067619 \5448832v5 17 75A -38 termination, cancellation, rescission, revocation, or default or expiration of this First Amended and Restated Development Agreement (although such conditions must comply with the Applicable Rules). 5.13 Compliance with Governmental Requirements. Owner shall carry out the design, construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisions of the City and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code§ 4450 et seq., and the Unruh Civil Rights Act, Civil Code§ 51 et seq. (collectively, "Governmental Requirements "). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this First Amended and Restated Development Agreement, review the extent of good faith substantial compliance by Owner with the terms of this First Amended and Restated Development Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of this First Amended and Restated Development Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with this First Amended and Restated Development Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter ") stating that based upon information known or made known to the City Council, the City Planning Commission and /or the City Planning Director, this First Amended and Restated Development Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 067619 \5448832v5 18 75A -39 6.3 Failure to Conduct Annual Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this First Amended and Restated Development Agreement shall not constitute or be asserted by any Party as a breach of this First Amended and Restated Development Agreement by Owner or City. 7. DEFAULT. 7.1 Events of Default. Owner is in default under this First Amended and Restated Development Agreement upon the happening of one or more of the following events or conditions: (a) If a warranty, representation, or statement made or furnished by Owner to the City is false or proves to have been false in any material respect when it was made; (b) A finding and determination made by the City Council following a periodic review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Owner has not complied in good faith with one or more of the terms or conditions of this First Amended and Restated Development Agreement; (c) Failure to comply with Governmental Requirements; (d) Any other event, condition, act, or omission which materially interferes with the intent and objectives of this First Amended and Restated Development Agreement. 7.2 Procedure upon Default. The following principles and procedures shall be applied in the determination of any Default: (a) Upon the occurrence of default, City shall give Owner (the "defaulting party ") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the manner in which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day cure period without cure, City may terminate or amend this First Amended and Restated Development Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be cured within said thirty (30) day cure period, City may terminate or amend this First Amended and Restated Development Agreement in accordance with the procedure adopted by the City should at any time Owner 067619 \5448832v5 19 75A -40 fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. (b) City does not waive any claim of defect in performance by Owner, if on periodic review the City does not propose to modify or terminate this First Amended and Restated Development Agreement. (c) Non - performance shall not be excused because of failure of a third person. (d) An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Owner, shall be sufficient to terminate this First Amended and Restated Development Agreement and a hearing on the matter shall not be required. (e) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Owner. (f) All other remedies at law or in equity which are not inconsistent with the provisions of this First Amended and Restated Development Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Owner be entitled to any damages against City upon termination of this First Amended and Restated Development Agreement. 7.4 Institution of Legal Action. In addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any default or breach, to specifically enforce any covenants or agreements set forth in this First Amended and Restated Development Agreement, or to enjoin any threatened or attempted violation of this First Amended and Restated Development Agreement; or to obtain any remedies consistent with the purpose of this First Amended and Restated Development Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California, Southern Division. 8. MORTGAGEE PROTECTIONS 8.1 Right to Owner /Notice /Multiple Mortgagees. Owner shall have the absolute right to encumber Owner's right, title and interest in, to and 067619 \5448832v5 20 75A -41 under this First Amended and Restated Development Agreement and the Property pursuant to one or more Mortgages. Because certain portions of the Project may be developed by one or more assignees, the Parties acknowledge and agree that different Mortgages may encumber the Property and that there may be a separate Mortgage in effect with respect to separate parcels within the Property. It is the intention of the Parties that the rights and protections granted in this Section 8 to each Mortgagee shall only apply to the parcels upon which such Mortgagee's Mortgage is a lien (each a "Mortgage Parcel "), and to the rights, privileges and obligations under this First Amended and Restated Development Agreement relating to such Mortgage Parcel. 8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Owner as provided herein, whenever the City delivers any Notice or demand to Owner with respect to any Breach by Owner under this First Amended and Restated Development Agreement and if Owner fails to cure the Breach within the time set forth herein, the City shall deliver to each Mortgagee a copy of such notice or demand accompanied by a writing to the affect that Owner has failed to cure a Breach ( "Mortgagee Notice "); provided that Owner or Mortgagee has provided City with addresses for such purpose. Each such Mortgagee shall (insofar as the rights granted by the City are concerned) have the right, at its option, within thirty (30) days after the receipt of the Mortgagee Notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such Breach and to add the cost thereof to the mortgage debt and the lien of its mortgage; provided, however if the Mortgagee is legally prevented from curing such Breach because of a bankruptcy by the Owner then the thirty (30) day period shall be tolled until such bankruptcy is confirmed or rejected. Nothing contained in this First Amended and Restated Development Agreement shall be deemed to permit or authorize such Mortgagee to take advantage of Owner's rights hereunder, or any portion thereof, without first having expressly assumed Owner's obligations to the City by written agreement reasonably satisfactory to the City. It is understood that a Mortgagee shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy Owner default which requires title and /or possession of the Property (or portion thereof) if and to the extent any such Mortgagee has within such thirty (30) day period commenced proceedings to obtain title and /or possession and thereafter the Mortgagee diligently pursues such proceedings to completion and cures or remedies the Breach, provided that, in such event, all noncurable Defaults shall be waived. 067619A5448832,5 21 75A -42 8.3 Mortgagee Not Obligated Under this First Amended and Restated Development Agreement. Unless a Mortgagee expressly assumes Owner's Obligations to the City in accordance with Section 8.2, no Mortgagee shall in any way be obligated by the provisions of this First Amended and Restated Development Agreement, nor shall any covenant or any other provision in this First Amended and Restated Development Agreement be construed to obligate such Mortgagee. Nothing in this First Amended and Restated Development Agreement shall be deemed to construe, permit or authorize any such Mortgagee to devote the Mortgage Parcel to any uses or to construct any improvements on the Mortgagee Parcel, other than those uses or improvements provided for or authorized by this First Amended and Restated Development Agreement. 8.4 No Liability. No Mortgagee shall have any liability beyond its interest in the Mortgage Parcel acquired through enforcement of its Mortgage for the performance or payment of any covenant, liability, warranty or obligation under this First Amended and Restated Development Agreement. City agrees that it shall look solely to the interests of such Mortgagee in such Mortgage Parcel for payment or discharge of any such covenant, liability, warranty or obligation. 8.5 No Amendment or Termination. This First Amended and Restated Development Agreement shall not, without the prior written consent of all Mortgagees holding Mortgages on any portion of the Property, be amended to (a) terminate this First Amended and Restated Development Agreement prior to the expiration of the Term (except as expressly provided above) or (b) change any provision of this First Amended and Restated Development Agreement which, by its terms, is specifically for the benefit of Mortgagees. No amendment to this First Amended and Restated Development Agreement affecting the Property or any part thereof, made without the consent of any Mortgagee holding a Mortgage on such Property, or any part thereof, shall be binding upon such Mortgagee or its successors in interest should it become a party hereto. 8.6 Condemnation or Insurance Proceeds. Nothing in this First Amended and Restated Development Agreement shall impair the rights of any Mortgagee, pursuant to its Mortgage, to receive insurance and /or condemnation proceeds which are otherwise payable to Owner granting such Mortgage. 8.7 Title by Foreclosure. Except as otherwise set forth herein, all of the provisions contained in this First Amended and Restated Development Agreement applicable to any of the Mortgage Parcel shall be binding on 067619 \5448832,5 22 75A -43 and for the benefit of any person who acquires title to the property, or any part thereof, by foreclosure under a Mortgage or transfer by deed in lieu. 8.8 Delegation to Mortgagee. Owner may delegate and /or assign irrevocably to any Mortgagee the non - exclusive authority to exercise any or all of Owner's obligations and /or rights hereunder with respect to the Mortgage Parcel, but no such delegation shall be binding upon the City unless and until either Owner or such Mortgagee shall give to the City a true and correct copy of a written instrument effecting such delegation. Such delegation of authority may be effected by the terms of the Mortgage itself, in which case service upon the other Party of an executed counterpart or conformed copy of said Mortgage, together with written notice specifying the provisions therein which delegates such authority to said Mortgagee, shall be sufficient to give such other Party notice of such delegation. No such delegation or assignment shall relieve the Owner of that Mortgage Parcel of any of its obligations hereunder with respect to such Mortgage Parcel. 8.9 No Obligation to Cure. Nothing herein contained shall require any Mortgagee to cure any default of Owner referred to above. 8.10 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee requesting same, an agreement prepared at the sole cost and expense of Owner, in form satisfactory to such Mortgagee and the City, between the City and the Mortgagees, agreeing to all of the provisions hereof, provided Owner pays for all legal and other consulting costs incurred by City in reviewing same. 8.11 Estoppel Certificate. Within thirty (30) days after written request therefore, the City shall execute and deliver to any proposed Mortgagee in connection with its new Mortgage and to such Mortgagee thereafter from time to time an estoppel certificate in form and substance satisfactory to Owner and such Mortgagee ( "Estoppel Certificate "). The City hereby agrees to reasonably cooperate in including in any such Estoppel Certificate from time to time any provision which may reasonably be requested by any proposed Mortgagee for the purpose of implementing the Mortgagee protection provisions contained in this Section 8 and allowing such Mortgagee reasonable means to protect or preserve the lien and security interest of its Mortgage hereunder, clarifying the non - applicability of the provisions of this First Amended and Restated Development Agreement to such Mortgagee as it relates to parcels other than the Mortgage Parcel, and /or such other terms and provisions as are customarily required by Mortgagees (taking into account the customary requirements of their participants, syndication partners or ratings 067619A5448832v5 23 75A -44 REQUEST FOR Planning Commission Action PLANNING COMMISSION MEETING DATE: AUGUST 26, 2013 TITLE: PUBLIC HEARING — AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2007 -01, VESTING TENTATIVE TRACT MAP NO 2013 -04 AND SITE PLAN REVIEW NO. 2013 -03 FOR A NEW MULTI - FAMILY RESIDENTIAL DEVELOPMENT AT 1901 EAST FIRST STREET Prepared by Vince Fregoso Executive Director RECOMMENDED ACTION Recommend that the City Council: PLANNING COMMISSION SECRETARY APPROVED ❑ As Recommended ❑ As Amended ❑ Set Public Hearing For DENIED ❑ Applicant's Request ❑ Staff Recommendation fKUi!IINpIXliC�� Planning Manager Adopt a resolution approving the Addendum to the Final Environmental Impact Report No. 2006 -01 and approve the Mitigation Monitoring and Reporting Program. Adopt an ordinance approving the first amendment to Development Agreement No. 2007 -01. Adopt a resolution approving Vesting Tentative Tract Map No. 2013 -04 as conditioned. Adopt a resolution approving Site Plan Review No. 2013 -03 as conditioned. DISCUSSION Request of the Applicant Lyon Community Development is requesting approval to construct a new 254 -unit multi - family residential development at 1901 East First Street. Specifically, the applicant is requesting to amend provisions of the existing First and Cabrillo Towers development agreement, approval of a vesting tentative tract map, site plan review approval and approval of an addendum to the certified environmental impact report. Project Location and Site Description The subject property is a 5.18 -acre parcel of land that is located at the northeast corner of First Street and Cabrillo Park Drive. The site previously contained a two- story, 75,300 square foot building that was recently demolished to accommodate the proposed project. A four - level, 669 - space parking structure that served the previous development was preserved and will be integrated into the design of the proposed project. EXHIBIT A 75A -45 Amend DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 2 The project is located within the Metro East Mixed Use (MEMU) Overlay Zone, which is comprised of the properties generally bounded by the Santa Ana (1 -5) Freeway on the west, Park Court Place and its prolongation to Tustin Avenue on the north, First Street on the south, and Tustin Avenue and the Costa Mesa Freeway (SR -55) on the east. The overlay zone comprises over 200 acres of land that is designated in the General Plan as District Center (DC) and is currently developed with commercial, office and several large vacant parcels along the western boundary of the overlay zone. Surrounding land uses include office development to the north, office and vacant land to the south and west, and office and office and commercial uses to the east (Exhibits 1, 2 and 3). Project Description The applicant proposes to construct a 254 -unit condominium development with 2,400 square feet of retail space on a partially vacant parcel of land. The units, which will consist of a combination of flats and townhomes, will be located within four separate buildings. The project will initially operate as an apartment complex, with units available for rent. However, a vesting tract map is proposed to be approved for the project that will allow the eventual sale of the units as condominiums as the for -sale market dictates. A total of 240 units (flats) will be provided within two five -story buildings. A total of 186 units will located with the five -story, U- shaped building that will be constructed along the west side of the preserved parking structure and extend toward Cabrillo Park Drive. Another 54 units are within the five -story freestanding building that will be located on the north end of the site. Due to the location of the existing parking structure, a different type of unit is proposed to wrap the south and east side of the structure. To address this unique design challenge, the applicant is intending to construct 14 townhome units within two separate buildings. These three -story units will have access to private two -car garages that will be located within the existing parking structure. The entire project will contain one, two and three bedroom units. The flats will range in size from 769 square feet for the smallest one bedroom unit to 1,721 square feet for a two bedroom unit. The townhome units range in size from 1,613 square feet for a one - bedroom unit to 1,990 square feet for a three - bedroom unit. Table 1 on the following page provides a breakdown of the units within the project. 75A -46 Amend DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 3 Table 1 Lyon Condominium Project Summary Unit Type Units Proposed Percent of building Square Footage 1 -bed flat 115 42% 769 -969 1 -bed flatw /mezz. and /or den 8 7% 886 -1,161 2 -bed 105 35% 1,012 -1,675 2 -bed flat w /mezz. and /or den 12 10% 1,124 -1,721 2 -bed townhome 8 3% 1,613 -1,740 3 -bed townhome 6 3% 1,990 Total 254 100% n/a The architectural style proposed for this mid -rise project is contemporary. Building materials will primarily consist of painted plaster finishes with architectural pop outs at the upper level. Also, the building will provide vertical articulation and staggered rooflines in the form of mezzanines for upper floor units. These elements have been included to provide visual relief from First Street and Cabrillo Park Drive. The project proposes to provide a total of 559 parking spaces, while only 508 spaces are required. As a result, the proposed parking complies with the parking requirement for multi - family developments in the Metro East Mixed Use Overlay zoning district as parking is provided in excess of the two parking stalls per unit, or 508 spaces, requirement. Guest parking within the MEMU is inclusive of the two spaces per unit. Access to the project will be provided from an existing driveway on First Street and from a driveway on Cabrillo Park Drive. An extensive menu of project amenities is planned for the development. Exterior amenities include an enhanced public plaza that will be located on the west side of the site. Adjacent to this plaza area will be the 2,424- square foot retail amenity, which will incorporate an exterior seating area into its design. Further, the applicant is proposing to enhance the public plaza through the installation of a public art piece. The outdoor area between the main five -story building will feature an open courtyard with decorative landscaping, hardscaping, seating areas and potential water element. A new recreation deck will be constructed on top of the south end of the parking structure that will contain a pool, seating areas, a barbeque, garden rooms, and a recreation room. The recreation room will contain facilities such as a fitness room and game area and may also incorporate space for a yoga room, screening room and clubroom (Exhibits 4, 5, 6 and 7). 75A -47 Amend DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 4 Project Backuround The project site previously contained a 75,300 square foot, two -story building that was built in 1978 and was continuously used as an athletic club. In 2007, the City approved several entitlements (Amendment Application No. 2007 -01, Environmental Impact Report No. 2006 -01, General Plan Amendment No. 2007 -01, Zoning Ordinance Amendment No. 2007 -01, Tentative Tract Map No. 2007 -01 and Site Plan Review No. 2007 -01) for the Metro East Mixed Use Overlay Zone (MEMU), a 200 -acre area of the City that is generally located east of the Santa Ana (1 -5) Freeway. The MEMU introduced development forms and uses that provided for the creation of a high- intensity, mixed -use urban village within a previously established mid and high -rise office environment. The overlay zone established standards which would fulfill objectives to create an active, mixed -use urban village where it is possible to live, work, shop and play within a short walk of each other. Concurrently with the MEMU approval, the City also approved the First and Cabrillo Towers mixed -use development, a 22- story and 23 -story high -rise project with 374 condominium units and approximately 8,800 square feet of commercial space. However, due to a significant shift in housing market conditions beginning in late 2007, the high rise project was never constructed and the buildings on the site remained vacant. General Plan and Zonina Analysis The General Plan land use designation for the site is District Center (DC), which allows for major development sites such as multi - family residential developments. District Centers are designed to serve as anchors to the City's commercial corridors, and to accommodate major commercial and residential development activity. The proposed project is consistent with the General Plan land use designation. The zoning for the site is Metro East Mixed Use (MEMU) Overlay Zone in the Active Urban sub - zone. The property has an underlying zone of Arterial Commercial (C5), but these standards do not apply for this application as the applicant is seeking to develop pursuant to the MEMU development standards. In order to develop to the MEMU standards the applicant must receive approval of an overlay zone site plan (SAMC 41- 595.5). This begins the zoning conversion process. Upon issuance of the utility release or the certificate of occupancy for the completed building(s), whichever comes first, the overlay zone becomes the sole zone on the property and the underlying zone ceases to exist. When the First and Cabrillo Towers project was approved in 2007, the process to permanently convert the zoning began. However, because the project was never constructed, the final conversion of the underlying zoning did not take place. The project proposed by Lyon Community Development has been designed to the MEMU- Active Urban standards and is consistent with this zoning designation. Upon completion of the project the zoning will be permanently converted. 75A -48 Amend DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 5 Project Analysis Amendment to the Development Agreement In 2007, the City approved several entitlements, including a development agreement, for the First and Cabrillo Towers project. The development agreement established development intensity, permitted uses and development standards for the term of the agreement. Further, the approved development agreement required certain improvements and public benefits such as in -lieu fees for parkland dedication and payment of an inclusionary housing fee. Over the last few years, a significant shift in the local and national economy has occurred thal severely impacted the real estate and development market. Evidence of the severe nature of the economic downturn in real estate development is conspicuous; of the 14 large projects that were submitted to the City for review in the past five to six years (Brookhollow Office project, City Place retail /residential project, Sky Loft Tower, Cordoba courtyard housing, First and Cabrillo condominiums, Montage condominiums, Nexus Skyline Towers, Nexus Phase II, One Broadway Plaza office tower, Promenade Pointe condominiums, Sixth and Parkcenter development, Town and Country Manor, Village Green and the West End Lofts), only the City Place, Montage (now The Marke) and Skyline Towers projects have begun or completed construction. These same trends were evident in communities throughout the country. Due to the shift in the housing market, the previous developer was unable to proceed with its entitled high -rise residential development. In response, Lyon Community Development purchased the site with the intent to commence construction on the proposed lower -scale development. The amendments to Development Agreement No. 2007 -01 are minor changes that recognize Lyon as the developer for the project. Further, the amendments reflect the new scope of the project, such as a decrease in size and intensity of the project and the extension of the agreement for another 10 years. Additionally, Lyon is proposing to add a new provision to the agreement that requires a minimum of $125,000 be spent on public art for the project. This provision is similar to other developments in the City, including The Marke, which is currently under construction by Lyon. All other elements of the development agreement will remain, with Lyon committed to developing the project as proposed, with all finishes and amenities for the project to be of the highest quality (Exhibit 8). Lyon is also committed to the eventual sale of units within the project and will also be involved in the sale, rental and managing of the units. Their intention is to rent the units in the near -term, but construct the project in a way as to allow them to be sold as condominiums when economic conditions warrant. Vesting Tentative Tract Map Vesting tentative tract map requests are governed by Section 34 -119 through 34 -318 of the SAMC. Vesting tentative tract map requests may be granted when it can be shown that the following can be established: 75A -49 DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 6 • The proposed project, as conditioned, and its design and improvements are consistent with the Industrial land use designation of the General Plan and are otherwise consistent with all other elements of the General Plan and any applicable specific plans. • The proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. • The project site is physically suitable for the type and density of the proposed project. • The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. • The design or improvements of the proposed project will not cause serious public health problems. • The design or improvements of the proposed project will not conflict with easements necessary for public access through or use of the property within the proposed project. If these findings can be made, then it is appropriate to grant the vesting tentative tract map. Conversely, the inability to make these findings would result in a denial. Using this information, staff has prepared the following analysis, which forms the basis for the recommendation contained in this report. Although the applicant is initially intending to market the project as a rental project, the long term goal of the applicant is to make the units available for -sale, which requires approval of a tentative map for condominium purposes. Based on a review of the tentative map by the Planning Division and Public Works Agency, the project has been designed to be in compliance with the applicable development standards found in Chapters 34 (Subdivision) and 41 (Zoning) of the Santa Ana Municipal Code as well as the provisions of the Metro East Mixed Use overlay zoning document (Exhibit 9). Further, approval of the map will be consistent with the goals and policies identified in the City's General Plan. • The proposed subdivision, Vesting Tentative Tract Map No. 2013 -04, will be consistent with the proposed District Center land use designation and density prescribed and all other elements of the General Plan. Policy No. 1.3 of the General Plan Land Use Element encourages high - density residential development within the City's District Centers. Further, Policy No. 1.4 promotes the maintenance and fostering of a variety of residential land uses in the City. • The proposed subdivision conforms to the minimum condominium requirements, as well as meets the letter and intent of the State of California Subdivision Map Act Provisions. Tentative Tract Map No. 2013 -04 is in keeping with the site plan review for the project as well as 75A -50 DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 7 Chapters 34 and 41 of the Santa Ana Municipal Code. Covenants, Conditions and Restrictions (CC &Rs) are required for the project, which need to be approved by the City prior to the recordation of the final map. • The proposed site consists of approximately five acres of land within the Metro East Mixed Use Overlay Zone, which is physically suitable for the residential development as proposed. Access to the site will occur on First Street and Cabrillo Park Drive. There are no physical constraints on the site to preclude development. • An Environmental Impact Report (EIR), as well as an addendum to the certified EIR, was prepared pursuant to the California Environment Quality Act for the project. The project site is located in an urbanized area, and there are no known fish or wildlife populations existing on the project site. Therefore, the proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. • The proposed subdivision will not have any detrimental effects upon the general public. The short-term and long -term unavoidable adverse impacts identified in Environmental Impact Report No. 2006 -01, and affirmed by the recently completed addendum to the EIR, as it pertains to air quality and traffic, were addressed by the adoption of a statement of Overriding Considerations by the City Council. Any other negative or adverse impacts will be mitigated through mitigation measures identified in Environmental Impact Report No. 2006 -01. • There is no easement for public access currently existing on this property. Therefore, the proposed project will not conflict with easements necessary for public access through or use of the property. However, the applicant will be granting an easement for pedestrian purposes over the northern portion of the site, which will allow public access throughout the Metro East area. Site Plan Review The applicant is requesting site plan approval for the project. Pursuant to Section 2 of the Metro East Mixed Use Overlay Zone document, the Planning Commission is required to review and approve all plans for development within the Metro East area to ensure the project is in conformity with the MEMU Overlay Zone standards. The review ensures that the buildings, structures and grounds are in keeping with the neighborhood and will not be detrimental to the development of the MEMU area. The Metro East Mixed -Use Overlay Zone (MEMU) design and development standards are intended to create a unique urban environment by allowing for the introduction of well- designed mixed -use projects into the existing primarily office environment. The standards provide great 75A -51 DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 8 detail regarding architectural design and have a substantial open space requirement in acknowledgement of the fact that the area does not contain the types of open spaces one would find in a typical residential area. The following analysis will provide a summary of the project's compliance with the MEMU standards. MEMU Section 4.0 Development Standards Analysis Development Active Urban District ' Proposed Project Standard Max. no. of stories No max. /3 story min. 5 stories w /some mezzanines Min, development 1.5 acres 5.18 acres site area Permitted street Fore Court Shop Front level bldg. Shop Front Gallery frontages Gallery Units on the east of the site have the Arcade Stoop frontage type, but do not face a public street. Publicly accessible 15% of total lot area — 33,838 33,881 sq. ft. OlDens ace sq. ft. Private /common 100 sq. ft. per unit — 36,680 40,470 sq. ft. open s ace sq. ft. Building setbacks Front — 0 to 20 ft. Front — 1s Street/Cabrillo Park Dr. Side — 0 to 10 ft. varies from 10' to 20' 9 ". Rear — 0 to 20 ft. Side /Rear — North fire lane varies from 24' 3" to 36' 2" East fire lane varies from 33' to 37' 10 ". Parking 2 spaces per unit — 508 559 spaces — excess of 51 spaces spaces In all cases the proposed project meets or exceeds the MEMU minimum standards. The ground level in particular uses several creative approaches to engage the street by incorporating a 2 -story volume, 2,474 square foot retail space at the southwest corner of the site that fronts onto the public open space. This passive publicly - accessible park measures 33,881 square feet in size, over % of an acre, and fronts onto Cabrillo Park Drive. It features a variety of amenities, such as seating areas and a large lawn, which will allow people who reside in the project or work in the area to gather and enjoy this substantial space. This publicly - accessible open space is provided in addition to the private open space within the project itself. The unit mix in the project is also innovative. There are livelwork units at the ground floor along First Street and along the East Fire Lane. In order to create variability at the roofline, mezzanine units were included at the upper levels. The existing parking structure created a design challenge 75A -52 DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 9 that was overcome by the placement of units to screen the structure. The units screening the structure along First Street have a Shopfront look, consistent with their live /work use, and a townhouse configuration. The units along the East Fire Lane are also townhouses, rather than stacked flats, and the fire lane has been designed as a small street with sidewalks and street trees. Some of these units have private garages. The overall unit mix has a wide variety of floor plans and sizes, which allow for enhanced architectural articulation on all of the building elevations. The project was also extensively reviewed by the City's urban design consultant, John Kaliski. Mr. Kaliski's analysis focused on the MEMU Section 5 – Design Principles. The following table will provide a summary of the project's compliance with these design principles. MEMU Section 5.0 Design Principles Design Principle Proposed Project 5.1 Integrated design The use of a consistent style of contemporary architecture throughout the project site provides for an integrated design, 5.2 Architectural quality The project features high quality materials and finishes. 5.3 Architectural variety The project includes varied massing and heights, as well as the project containing separate buildings. The project was peer reviewed by a second architectural firm and design workshops were conducted with City staff and the Planning Commission in the early phase of design. 5.4 Massing The building planes were provided with breaks and the building incorporates a variety of massing and forms to introduce variety at the ground plane and — skyline. 5.5 Facades Street facing facades include a variety of frontage types and details, the building facades are articulated through the use of varying window types, colors, and architectural projections. 5.6 Ground floor uses Ground floor uses are oriented towards street - facing pedestrian accessibility. 5.7 Community connections The project is designed with a high degree of accessibilit . _.pedestrian 5.9 Parking tiarKing is completely screened from public view. 5.10 Energy conservation – shade and The project was analyzed for solar access and it shadow complies with this guideline. 5.11 Residential unit size The average unit size of the project is 1,036 sq. ft. with unit sizes weighted more heavily towards larger sized units. 75A -53 DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 10 Following this analysis staff finds that the project is in compliance with both the standards and the spirit of the Metro East Mixed Use Overlay Zone. Public Notification The project site is not located within a neighborhood association. As required by the recently adopted Sunshine Ordinance, the applicant held a neighborhood meeting on May 28, 2013 at St. Jeanne de Lestonnac School, which is located south of the subject site. At that meeting, a total of six members from the public attended the meeting. At the conclusion of the meeting, one member from the public expressed concerns regarding the project. Staff has since met with this individual and other concerned persons on several occasions to discuss the project and review the plans (Exhibit 10). The project site itself was posted with a notice advertising this public hearing, a notice was published in the Orange County Reporter and mailed notices were sent to all property owners and tenants within 500 feet of the project site, as well as concerned citizens listed on the Permanent Notification List. At the time of this printing, no correspondence, either written or electronic, had been received from any members of the public. CEQA Analysis In accordance with the California Environmental Quality Act, the recommended actions have been reviewed through an Addendum to the previously certified Environmental Impact Report 2006 -01. CEQA guidelines (California Code of Regulations 15000, et seq.) authorizes the use of an addendum for the purpose of making minor or technical changes, as long as these changes do not rise to the level of requiring a subsequent or supplemental EIR pursuant to CEQA Guidelines 15162. The originally certified Environmental Impact Report was analyzed in light of the revised site plan and it was determined that there are no new significant impacts resulting from the changed plan. Several mitigation measures that required modification and /or further clarification have been added to the conditions of approval for this project. Additionally, a new traffic study was performed to analyze the potential changes in traffic circulation as a result in the change to traffic patterns over the past few years. The result of the traffic analysis concluded that the residential use at this site will result in 67 fewer trips in the morning peak hour, 77 fewer trips in the afternoon peak hour and 894 less trips on a daily basis. According to the revised traffic study, the proposed project will not exceed, either individually or cumulatively, a level of service standard established by the County congestion management agency for designated roads or highways. Therefore, no additional review or mitigation measures related to traffic are needed. 75A -54 DA No. 2007 -01, VTTM No. 2013 -04 & SPR No. 2013 -03 August 26, 2013 Page 11 The determination that there are no new significant impacts or any increases in the severity of the impacts previously identified in the original Environmental Impact Report mean that in accordance with CEQA 15164, the Addendum to the previously certified First and Cabrillo Towers project EIR and Mitigation Monitoring and Reporting Program is the appropriate document for the actions proposed (Exhibits 11 and 12). Conclusion Based on the analysis provided within this report, staff recommends that the Planning Commission recommend that the City Council approve the Addendum to Environmental Impact Report No. 2006 -01, the first amendment to Development Agreement No. 2007 -01, Vesting Tentative Tract Map No. 2013 -04 as conditioned and Site Plan Review No. 2013 -03 as conditioned. Vince Fregoso, ICP Principal Plann r VF:jm OVeporteADA07 -1 & W M13.4 1901 1st Street.002911pe Attachments: Exhibit 1 — General Vicinity Map Exhibit 2 — Land Use Map Exhibit 3 — Site Photo Exhibit 4 — Site Plan Exhibit 5 — Floor Plans Exhibit 6 — Building Elevations Exhibit 7 — Landscape Plan Exhibit 6 — Amendment to the Development Agreement Exhibit 9 — Vesting Tentative Tract Map Exhibit 10 — Community Meeting Minutes Exhibit 11 — Addendum to the EIR Exhibit 12 — Mitigation Monitoring & Reporting Program 75A -55 RI Rl e "' _t- "I - -'� Rl PI RI %[t is - -.,� IRtwAa P R1 R4 'a R3 3 I I_J 1 F L -.rl+ P FC R3\ P=P III- �I� 'YI RI RI - RI .I 9Ff 1 PRO Pt �9Y r 1 RI Rl O 2 �Vl SD-21 RI R1 Y � O R4 p \ ru LL PI R1 a p PI RA v..r. Y Rl Rl Rl k P OP k r t A p P C2 l O L px. PE a p P R2 E ' �P p P 2 P R2 R2 NP2 R2 MI I 3 I W .... 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ICI rn o � � 3 �° � � 0 � �I!ii� I!'I! ] � .•••••• i a sa a a e e `� � S � a H � f 3 t Nd Am $ �gp 0 Y 6 O K U X48 66 d pd h ppp Op 9 3NVl S9303V 31113 13381S 18811 OI a h � 9 I i K WuO 6 2! of b i 13381S 18811 OI a h � 9 I i K WuO 6 2! of �k ee 5ii 95 , t9 I �i l llli Mile �3 k oho ® fill >[I 4ftaa� 99 P� €g N Q �� •�� 49 � iw E�� u1 '� �k ee 5ii 95 , t9 I �i l llli Mile �3 k oho ® fill >[I 4ftaa� 99 P� €g N PI Ip' �p7 �[ Y W w i YfEY t Sp(e pY9 Q J !4 9 O a NUM ILL � U �o ° c E '�I li ailiY f laaaaae ��XPgf 4 i [ da t - II i a �p AL I igF f J a 3 a;�a'; •I f' i, Ji s RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council City of Santa Ana 20 Civic Center Plaza M -30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE S 6103 FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT by and between THE CITY OF SANTA ANA =1 x991 - -9. 4STLYON HOUSING (FIRST STREET- PARTNE -RS M, LLC; A- 8€4=AWARI LWUTED4- 4ABILITY-- GOMPANY- Dated: Mamh4o , 20972013 062Mwxw1 -5514 auv2s_ EXHIBIT 8 75A -96 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND 'ON HOUSING (FIRST STREET-PARTNERS"", LLC, This FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("Agreement") is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ( "City ") and 490;T. 1S LYON HOUSING (FIRST STREETn- ePrA"}RlT. NERS -X, LLC, a Delaware limited liability company ( "Owner" Rrepe The Citv and Owner RECITALS. The First Anianded and Restated Developmen Agreement is entered into with reference to the following facts: '44- Furpe6e: 1.1 (1-} -The - development- -e(- the Property. The real property which is the subiect of this First Amended and Restated Development Agreement is located at 1901 East Firs E. 1.2 the- Qty-ef -Santa Ana, a-&-19The Property is a 5.1 acre parcel of- tandwithin the Metro East Mixed Use Overlay Zone that is located at the northeast comer of First Street and Cabrillo Park Drive -tnore pawrvlar4- dew6bea iq sAntqmn 2 fi nf W 6W02062614W2374,5544_88.120i -1- 75A -97 the Existing Parking - Structure and a 2-331 eM-3 -story tewer -erlM A townhouse building yltCap ipq the south polder efAh"te; With extensive landssapi two towers- will -- certain -a tetal -ef 374sendominiuni units. The NGdh -TGwef -will- certain a- maximum of-483 for salaurlts -and thB Seulh TeWer willcerta+ n a maximurA of. I At fen- sale units. In- -addition,- a- tetal-ef-3, 0 square feet -e€ cemmercial space --w4l tie- prevkW4- fer-the- greject,-with - -4,488 squares- €eet -te ke project will utilize the axistirg-#euf- parkiagstalls n the- site -- The6eiaf4amj- areas- coniWned -%41- provide 74 1.4 Code Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing development certainty for both the City and Owner in the development process. City enters into thetwo First Amended and Restated Development Agreement pursuant to the provisions of the Government Code and applicable City policies. The partiesParties acknowledge: W 0 -}This First Amend and Restated Development Agreement is intended to assure adequate public facilities at the time of development. (W (-23 -This First Amended and Restated Development Agreement is intended to assure development in accordance with City's General Plan, applicable Specific Plans and the Metro East Mixed -Use Overlay Zone. (il WThis First Amended and Restated Doveftment Agreement will permit achievement of goals and objectives as reflected in the City's General Plan, all applicable Specific Plans and the Metro East Mixed -Use Overlay Zone: Wd (4)- -Owner is required by existing City regulations to provide mitigation for certain identified impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. LO (5)-This Firat Amended and Restated Development Agreement will allow City to realize extraordinary and significant public 6490266761M '237' 3_ 75A -99 infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. f (6) -Many of the extraordinary and significant benefits identified as consideration to City for entering into this First Amended and Restated Developmen Agreement are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1 5 -1--.3-Owner. Owner represents and warrants that it has a legal or equitable interest in the real Property- lesated --iry �t" Santa- Ana, G Womia, legally section - 2.4-ae- the- "Ptopoity'). The-- propert)-is- Gwrenlly- omiplg4 b34 -e th e steri`r 73,-399 -8q" 8re 4eet- ba*&W41;at-was4orme4 vhems4G -the gequoia Athletie -Glob and the Acrstralian 8 wi"Gheel,that- will- 6e- demeli6ged- #e- assemmodateAbe prep ar stem, �trtrsteNe -that currently exists en- the�ast side of -iha prepe#y will {amain as part- et-Ehe- project (as- 04at-werE } isdefined4n- section 4- 7- ef- ft&Agfeement}-E g U 4A-Interest of Owner. Owner hereby represents that it has an- s"Rable and- legaknterest- in-the Property. Qwner-turiher -.heFeby FepFesents that it has approved this First Amended and Restated Development Agreement and is authorized to enter into this First Amended and Restated Development Agreement. 1Z LW 4-.b Planning Commission— G"nsil #eadP4p. On Febwa "wand Mew" , 2ee72M, the Planning Commission -of- the City ( panning Genuxriss W), after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's application for this Agreemen . The- Manning Gernmissien recommended- fie- -- the -- City-- Geuncil— ef- �itY -- that- -!#-- execute -phis 6.cv0207MWW915 4MR2wzs _4_ 75A -100 ri oil 0 City Council On March -a-8 , 20972013, the City Council-of the- Gify-of Santa - Aim- (�Geuasiy, after providing notice as required by law, held a public hearing to consider the- Owner's application for this First Amended and Restated Development Agreement- 1.$ 4- .& -QU Council Findings. The City Council finds that this First Amended and Restated Develoament Agreement is consistent with the General Plan, applicable SpeMis Ptan(s) as well assoecific nlan(s), aoolicable zoning regulations and all other applicable ordinances, plans, policies and regulations of the City. 1.9 14--City Ordinance. On Apr l_4 , 2997?M, the City Council adopted Ordinance No. NS 2741 approving this First Amended and Restated Development Agreement. TheIhat ordinance becomes effective thirty (30) days therealterafter the date of adoption. 2. DEFINITIONS. In thethis First Amended Agreement, unless the context otherwise requires: 2A 2.2 "Applicable Rules" means all rules, regulations, ordinances and official plans and policies of the City in force as of the Effective Date as included within the Santa Ana Municipal Code ( "SAMC "), the Metro East Mixed - Use Overlay Zone, this First Amended and Re ated __ evelopmen Agreement and the Entitlements, as defined below. 2,3 "Effective Date" means May 2, 2007, the date upon which the ordinance approving thisthe Original Agreement besen%sbecame effective. 2.4 "Entitlements" means No. 2006 -01 Plan Amendment No, 2007 -01, ArnepAFBen— Apptis Wo --No,- 2097- e4-,)tplW Tentative Tract Map No. 29872013- 81 1- 7068)4, Zoning Ordinance Amendment No. 2007 -01, the Metro East Overlay Zone Public Realm Improvement Planapd, Site Plan Review A Lt2 9Y�1 No. 28872013- 6sW12ua2614\42,4M45448EUv25. ,5_ 75A -101 W 27 M HO r.uuu'R =FlrrailiYll�Fi�I7 • ! u = 1 7iL : U • • . u : Z7PNEM . I I 2AD "Property" means M "m -pm i "Public Art" do fined in Section . "Public .t is defined in •1 "Public 1! Plan"..is. set forth 1 Exhibit C to -__ 11.1! ! ..1! 2.7_4 "Reserved Powers" means the rights and authority excepted from this First Amended and Restated Development Agreement's restrictions on the City's police powers and which are instead reserved to the City. The Reserved Powers include the power to enact and implement rules, regulations, ordinances and policies after the Effective Date that are not in conflict with the Applicable Rules or that may be in conflict with the Applicable Rules, but: (a) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health and /or safety; (b) are Uniform Codes; (c) are required to comply with mandates under state and federal laws, rules and regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; or (d) relate to increases in development impact fees occurring after the Effective Date. 6591 2O61M4t2374155448MV25_ 75A -102 "Property -9wn neF mear 180 €. ist- street- Nartners,—L -6C-,--a Delawar& Limited Liability- CGmpany-, bein"e perse+t- perssn& ar- enWy--k\aviAg -a- legal -er equitable interest- n4he- Pieper}a indwdes- sUGGes60r&4n4ntere&t- LRmpetty' ie-ttte- real - fopetty4esGgbeci -iwE* ibit,4 -at?d re%FFBEI te-In-&hibit -B: 70!Uli .. X17.' .. 4.t a -_ tt t 21� "Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations e" - --ity- wide- -ssepe -which are based on recommendations of a multi- state professional organization and become applicable throughout the City, such as, but not limited to, the California Building Code, the California Electrical Code, the California Mechanical Code, or the California Fire Code (including those amendments to the promulgated Uniform Codes which reflect local modification to implement the published recommendations of the multi -state organization and which are applicable City -wide) 2.95 "Utility Release" means the formal approval of the City Building Department, following its inspection, that residential unit(s) may be released for initial connection to the electrical power system, water service system, gas service system, and sanitary sewer system. Utility Release(s) do not include temporary utility service provided to any structure during construction. 3. EXHIBITS. The following documents referred to in thethis First Amended and Restated Develooment Agreement are attached to this First Amended and Restated Development Agreement and are identified as follows: Exhibit Designation Description Referred to in Section A Property Legal Description a 3� B Property Graphical Description- Plan) — C Public Art Plan 2=7 GI2 Additional- Offsite Mitigation- &44LU 4590211OW \J2IM45"88]205_ 75A -103 4. GENERAL PROVISIONS. 44Buratiet"f- Agreeme ref- this Agre . M Aareement. 4.2 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this First Amended and Restated Development Agreement; provided, however, the rights of Owner under this First Amended and Restated Development Agreement may not be transferred or assigned unless the written consent of the Council is first obtained and any transfer or assignment of the rights under this First Amended and Restated Development Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this First Amended and Restated Development Agreement if the City grants written consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer of the rights under this First Amended and Restated Development Agreement shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. A transfer or assignment of the rights under this First Amended and Restated Development Agreement without the consent of the City shall not relieve Owner of any accrued duty, obligation or liability to City. No consent shall be required for sale of units to condominium unit buyers. During the term of this First Amended and Restated Development Agreement, any approved assignee or transferee of the rights under this First Amended and Restated Development Agreement shall observe and perform all of the duties and obligations of Owner contained in this First Amended and Restated Development Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall WW02062fil %4237V+iila8Nd3v25- ,8_ 75A -104 have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this First Amended and Restated Development Agreement. If the Property is subdivided, any subdivided parcel may be sold, mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this First Amended and Restated Development Agreement. Upon assignment or transfer of the rights of Owner under this First Amended and Restated Development Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. InMvidualShould the Proiect be condominium unit buyers shall not have any liability or obligation pursuant to thatthis First Amended and Restated Development Agreement. 4.3 Amendment or Cancellation of First Amended and Restated Development Agreement. This First Amended and Restated Development Agreement may be amended from time to time or cancelled by the mutual consent of the partiesP_arties, but only in the same- manner as4ts-- adoptiea by an erdinance as-- set ferth inreauired by Government Code Section 65868. T-he- termAs used within this First Amended and "Develop reent4ri tin Agreement" as -- -used-- iweir_—shall include any amendment properly approved and-executed. 4.4 Enforcement. Notwithstanding Government Code Section 65865.4, this First Amended and Restated Development Agreement is enforceable by any party to -the-, mementeither Party in any manner provided by law. The remedies provided in Section 7.4 ef-4his Agreement -shall not include, and City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this First Amended and Restated Development Agreement. 4.5 Meld MarMlesslndemnification by Owner. Owner agrees to and shall indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from liability for damages, attorneys' fees, restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from construction activities with respect to the Project by the Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf. Owner further agrees to indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from any Litigation, as hereinafter defined. For purposes of this paragraph, "Litigation" shall mean shal��any a590296766sw24r - .S544MJ2v25 q_ 75A -105 lawsuit, action or cross - action, challenging the validity of this transaction, the Project as defined in Section 242.x, or any portion thereof or the rights of either party hereunder and /or the rights of either party to engage in the acts and transactions contemplated by this First Amended and Restated Development Agreement. Notwithstanding any other provision of this First Amended and Restated Development Agreement, this indemnity and duty to defend shall be limited as follows: U (44 -Owner shall have no responsibility to defend the City under this section for any aspect of Litigation challenging Amendment Application 2007 -01, General Plan Amendment No. 2007 -01, and /or Zoning Ordinance Amendment No. 2007 -01 (the "Overlay "). LW (2) In the event the Litigation results in a judgment and /or award of damages and /or attorneys' fees related to the Overlay but in no way related to the application of the Overlay to the Property, Owner shall have no responsibility to indemnify the City therefor. (3)—In the event of any Litigation the parties hereby —agree to affirmatively cooperate in defending said action. (4) -Owner shall have approval of any settlement if, (i) it will affect Owner's project, or (ii) Owner will be required to pay (or reimburse) any amounts (regardless of type) in connection with the settlement (including attorneys' fees and sestcosts). (i) If City determines to settle over Owner's objections, then Owner may upon thirty (30) days written notice terminate defense of the action. (ii) If City rejects a settlement offer that Owner deems reasonable, then Owner may upon thirty (30) days written notice terminate defense of the action. (5} -Owner shall be allowed to terminate its defense if it determines to abandon defense of its project application; provided, however, that in such circumstance Owner shall be solely liable for award, if any, of costs or attorneys' fees to plaintiff /petitioner incurred prior to the effective date of termination. 4.6 Binding Effect of First Amended and Restated Development Agreement. To the extent not otherwise provided in Section 4.2 of this first Amended and Restated Development Agreement, the burdens of tbethis First Amended and Restated Development Agreement bind, 4tg92pfiZ41Y4t?379+tS {188�1v1i _10_ 75A -106 and the benefits of the First Amended and Restated Development Agreement inure, to the parties' successors in interest. 4.7 Relationship of the Parties. The contractual relationship between City and Owner arising out of thethis First Amended and Restated Development Agreement is one of independent contractor and not agency. This First Amended and Restated Development Agreement does not create any third party beneficiary rights. 4.8 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this First Amended and Restated Development Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: If to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M -31 P.O. Box 1988 Santa Ana, California 92702 telefaGsirnile- (7-141 647 and; City Attorney, City of Santa Ana 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, California 92702 telefassireile-(714) -647 6615 If to Owner, to: 1904 €..Ast von Housing (Firs Street Partne%YXLM, LLC 4901 Birch Street G/0 NDG-BeVelepment 4489- MaGAFth f- ul Fd, Suite 160 Newport Beach, GatiferniaCeA 92660 Attention: -Ggief- Legal -GffiserGenerat Counsel telefass+mile- (949) -622 8049 and; a %)20fiXQ\4,1s4y;;S44XA3 v25 -11- 75A -107 Harm - VawLigter3- iiatan4 T4usker, L P P- 9-- @ex1850 Sesta-Mesa- ,- Galifer-nia- 82fi26- U)50 - telefacaimile (7-14) 5436 8035 A paftyPvty may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty - four (24) hours after the time set forth on the transmission report issued by the transmitting telefacsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. 5. DEVELOPMENT OF THE PROPERTY. 5.1 City Obligations. In consideration for Owner entering into this Eimt Amended and Restated Development Agreement and performing its obligations hereunder and in order to effectuate the purposes and intentions set forth in this FiisLAnm od and Restated Development Agreement and the Development Agreement Act, the City hereby agrees during the Term as follows: 5.1.1 6:2- Vested RightsRfi _ht to Develop. Owner is hereby granted the vested right to develop the Project subject to the terms and conditions of the Applicable Rules and the Reserved Powers. 5.12 t >.3- Alen,appa"tiewNon- placation of Changes in Applicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in the General Plan, zoning ordinance, subdivision ordinance, or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of ordinance, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever, however (,5402062612\42320155.44aMv25- -12- 75A -108 denominated, and adopted by the City Council, Planning Commission or any City Agency, or by the electorate, as the case may be, which would, absent this First Amended and Restated Development Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules, shall not be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or are otherwise expressly allowed by this First Amended and Restated Development Agreement. In the event that state or federal laws or regulations enacted after this First Amended and Restated Development Agreement has been entered into, prevent or preclude compliance with one or more provisions of this First Amended and Restated Development Agreement, such provisions of this First Amended and Restated Development Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 5.7.3 S.& -- Agreed Changes and Other Reserved Powers. This First Amended and Restated _DpygWVmm3t Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies in conflict with the Applicable Rules where such additional rules, regulations, ordinances and officially adopted plans and policies (a) are mutually agreed to in writing by Owner and the City, or (b) result from the Reserved Powers. SAA 54- Subsequent Development Approvals. The City shall require Owner to obtain only those Subsequent Development Approvals that are required by the Applicable Rules or the Reserved Powers. City hereby - agrees that it shall condition any Subsequent Development Approvals based only on the Applicable Rules and /or Reserved Powers. 5.1.5 b7— Moratoria. In the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate, amount, timing, sequencing, or phasing of the development or construction of the Project on all or any part of the Property, City agrees that, unless required by applicable state law, such ordinance, resolution or other measure shall not apply to the Project, Property or this First Amended and Restated . Development Agreement, unless such changes are adopted pursuant to the City's exercise of its Reserved Powers or �wu�ueisi2uw�s��eeu�as -13- 75A -109 other applicable provision of this First Amended and Restated Deyelopment Agreement. 5.1.6 &8-Timing of Development. The parties acknowledge that Owner cannot at this time predict when or if the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner such as market orientation and demand, interest rates, absorption, completion and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that except as provided in and subject to Section 5.11, Owner shall have the right to develop the Property at such rate and at such time as Owner deems appropriate within the exercise of its subjective business judgment. 4'% !Mi T} g 0 1 Wer 1' • 1 -. 1 l 11 ! a r 1 Kil!tfllfZll� Plan (collectively, "Public Art ") at a cQst of not less than One Hundred Twenty Five Thousand Dollars ($125.0001 (the "Publi Art- E@fl ")= 5.1.8 &O-Additional Offsite Mitigation Measures. The offsite mitigation measures (i.e., which clarify mitigation measures set forth in the Project entitlements) which must be constructed by Owner are as set forth in Exhibit G12 to this First Amended and Restated Development Agreement. All funds or costs for offsite mitigation measures required pursuant to the approvals set forth in section 2.4 of this First Amended and Restated Development Agreement shall be paid or security provided therefor in conformance with the provisions of the Subdivision Map Act, no later than recordation of the final subdivision map for the Project, or issuance of the first building permit for the Project, whichever comes first. 5.1.9 5-.40— Irrevocable Offer to Dedicate Easements or Land To Implement Public Realm Improvement Plan. On the face of the final map for the Project, or contemporaneous with offering the final map for filing with the County if it is not placed on the final map, Owner shall execute an irrevocable offer to dedicate to the City such property interest (easement for the breezeway /lane along the 65402Qre2M\42374145 i9B8)205 -14_ 75A -110 north side and fee title along the south side of the Project) as is necessary to effectuate the Metro East Public Realm Improvement Plan adopted contemporaneously with the Project. Owner shall not be required to dedicate additional land pursuant to any amendments to said Plan which may or- may -occur following its adoption. Owner shall be entitled to an offset against its obligations under sestieASection 5.7 of this First Amended and Restated Development Agreement for such property. 5,2 644- Exclusion from Existing Rules, Regulations and Policies. W 0—}- Pursuant to Government Code Section 65866; and Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, City retains the right to enact police power regulations on matters not covered by sestieA6ygfon 5.1 of this First Amended and Restated Development Agreement, including without limitation: (0 q)- Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with 6WionSection 5.1 of this First Amended and Restated Development Agreement. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non - conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non - conflicting laws and regulations include the following: (3)— Taxes, assessments, fees and charges, except as otherwise specifically provided in this First Amended and Restated Development Agreement; (4)- Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; (5)-Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city -wide basis; and (6)-Procedural rules of general City -wide application. 6494246261141 21741 tSiISMv25_ 75A -111 U 54- 2—Construction Standards and Specifications. The construction standards (e.g., the Uniform Codes) and specifications for all Project construction shall be subject to applicable construction standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. M S 43 FAA Approval. Owner shall obtain and maintain, during the term of the agreementthis First Amended and Restated Development Agreement, any and all necessary approvals from the FAA for the Project. Should such approvals lapse, and not be reinstated or reapproved prior to the issuance of the first building permit, the City shall have the right to terminate th"reementthis First Amended and Restated Development Agreement. U S.14-Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and /or environmental review, which are existing or may be revised or adopted during the term of this First Amended and Restated Development Agreement, shall apply to the development of the Property. 5.6 5.16 Amendments or Additions to Citywide Fee Programs. This Eimt Amended and Restated Development Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees ") adopted by the City after the effective date of this First Amended and Restated Development Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Project impacts which were analyzed in the environmental impact report prepared for the Project, or (b) duplicate any project design features conditions of approval, Agreements agreements, or mitigation measures contained in this First Amended and Restated Development Agreement: U 5 I Community Facilities District or Other Financing Tool. Owner agrees to petition for, and fully support (including voting to establish, if required), the establishment of or annexation into a Community Facilities District or similar financing mechanism covering the Property, in order to fund the proposed project's fair share of eligible items, e.g., the costs of implementing the Metro East Public Realm Improvement Plan; provided, 6490206761 sw237915544N84 Sv21 -I6- 75A -112 however that the total effective tax rate (including but not limited to regular property or ad valorem taxes, special taxes, benefit assessment or other imposition) shall not exceed an annual levy of one and six - tenths percent (1.6 %) of the Property's valuation, as improved. Owner and City shall cooperate in good faith to designate those improvement and /or fees to be funded by the Community Facilities District or other mechanism. Owner shall have the right to review and approve any final list of said facilities and /or fees; provided, however that Owner's approval may not be unreasonably withheld. ,$ 5 16 1 Phasing of Project. The parties agree and acknowledge that the Project may be built in up to two (2) phases (with one tower in each phase), but that, except as otherwise expressly stated herein, all conditions and mitigation measures shall be implemented as part of the initial phase; provided, however that Owner may propose to delay to the second phase on -site conditions (e.g., sidewalks) that could be damaged by future construction. Prior to issuance of the first building permit for the prejestprglW, Owner shall submit a proposed Phasing Plan to the City, for review and approval by the City's Planning Commission. The proposed Phasing Plan shall contain those items Owner deems necessary, but shall include the timing for first and second phase construction and interim site improvements (i.e., landscaping, internal circulation) between the phases. The approved Phasing Plan must be implemented within six 6) months after completion of the first phase (i.e., issuance of first Utility Release). 4 6.16.2 Inclusionary Housing. Owner shall pay to the City the sum of Three Thousand Dollars ($3,000) for each Residential Unit contained in each phase ( "Inclusionary Housing Fee "). The Inclusionary Housing Fee shall be paid with respect to each phase at such time as 95% of the residential units within such phase have received Utility Releases. The Inclusionary Housing Fee shall be used by the City for planning (including, but not limited to, preparation of one or more elements of its general plan or for zoning amendments), conceptual design, final design, bid preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill, and /or construction of new or substantially rehabilitated existing affordable housing in the City. X14 5- 16-.3 -In -Lieu Park Development Fee. The Owner shall pay an in -lieu park development fee in the amount of One Million Four Hundred Fifty Thousand Dollars ($1,450,000) with respect to the Project ( "in -Lieu Park Development Fee ") payable pro rata, which pro rata fraction shall be determined based on a fraction the numerator of which is the total number of residential units in a phase and the denominator of which is the total number of residential units in the Project. The pro rata In -Lieu Park 65902OM24247913SUa8.73v25 . AT T 75A -113 Development Fee shall be paid prior to issuance of the building permit for each phase. The City shall use said fees for new parkland, capital improvements at existing parks, and deferred maintenance at existing parks (up to a maximum of fifty percent of amount of the fee). If not used or appropriated this fee shall be returned to Developer, consistent with the provisions of (and subject to the exceptions contained within) the California Mitigation Fee Act, Government Code § 66000 et seq. Owner may propose in future an alternative in -lieu of the provisions of this section which fully satisfies this requirement, and if such proposal is consistent with City's park plans and standards, the City shall consider such proposal in good faith; provided, however, that if approved such proposal shall be the subject of an amendment to this First Amended and Restated Development Agreement entered into pursuant to Government Code section 65868. 6464- Reserved &" 546-5- Covenants, Conditions, and Restrictions. Owner may, at its condominiums. Prior to the_' ance of the first building 120r1nit for the Proiect. Owner shall provide to the City the proposed Covenants, Conditions, and Restrictions "CC &R's" must-- ks-preyided and -to b recorded aaainst the Property for the condominiums. Those CC &R's must-be approved by the Planning and Building Agency's Executive Director N'rst -buil ng- pennit —S6-.h C6& & =s- must seakain- ata- "nimum or the person acting in the eauivalen (4)-No more than four residents r3ershall be permute_ d for each unit, except that for three - bedroom units, there shall be no more than five residents per unit. (b) (-24-All initial sales of residential units by Owner shall include a covenant that the buyer may not re -sell the unit for a period on one (1) year. W (,9} No home essupansygccupation shall be permitted in a unit, except min accordance with 6esti0RSection 41 -192 et seq. of the Santa Ana Municipal Code. �wuzusur� ua+ssiasnu�a� -18- 75A -114 (dJ (4) repair of perimeter walls and common areas, including landscaping, will be specified in the CC &R sffs in the event of damage. e (5 )-Disclosure and -rel E-ryrovide-aeNse- to- pFGspestive ewne%Notice of the urban character of the City and this area, including but not limited to (d the permitted uses of the property and buildings in the immediate area of the development (e.g., Xerox Towers, State Compensation Insurance Fund, 1 -5 and SR -55 freeways )— an"urreaading —q ted --te cemmersialuse, clairAs gainst- he E11 which - may -arise rera -or- relate -to-the disclosed natters. kydm rr Wil JW (4-A term of the CC &R' frareto be- in- effect #orB_S 4f an initial period of ninety- nine years and then-auloma tically expanded fier-- successive ene- hundre�eried% with automatic and reneatina one - hundred 1100) year extension& unless terminated earlier by the joint consent of (U the City and (W not less than seventy five percent of those condominium owners entitled to vote under the CC&R,s. (iii- ArryThe need for the approval of the City to anv proposed modifications to the provisions of the CC &R's W41-4e Fe approval by4he-A9ency's-E-xecutive Diresferidentified in this Section -S 1. 1 The imposition of a_ s4nifican_ ffnancial�]e ty. by the Home Owner's_ Association _upon at_ij�,=Inember_wh4_ violates the signilisaNt tinar�sial- penalty - -(i.e ;the w}aximumpermitted bylaw}- that - shall- be- impesed,l)y-the- Fdome- 9wner's Asseciafien-to-aay nember -who We/ates- these- pmvisie% 5.1 7- ReservefL SA2 6.19 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of 65902067614W2.1-79433448H]2v25_ -19- 75A -115 those approvals, and in no event shall such conditions be affected by the termination, cancellation, rescission, revocation, or default or expiration of this First nded and Restated Developmen Agreement (although such conditions must comply with the Applicable Rules). LU X28- Compliance tNMwIth Governmental Requirements. Owner shall carry out the design, construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, the -Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisions of the City and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without the -- limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code§ 4450 et seq., and the Unruh Civil Rights Act, Civil Code§ 51 et seq. (collectively. "Governmental Requirements "). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this First Amended and Restated Development Agreement, review the extent of good faith substantial compliance by Owner with the terms of this First Amended and Restated Development Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of thetht$ First Amended and Reatated Development Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with thethis First Amended and Restated Development Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter ") stating that based upon information known or made known to the City Council, the City Planning Commission and /or the City Planning Director, thethis First Amended and Restated 0evelgl2mant Agreement &VM06761 42P915 v25_ -20- 75A -116 remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 6.3 Failure of- Periedieto Conduct Annual Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this First Amended and_ Rgatated—DAYalogramit Agreement shall not constitute or be asserted by any partyPAft as a breach of thethis First Amended and Restated Developmen Agreement by Owner or City. 7. DEFAULT. 7.1 Events of Default. Rmperty-Owner is in default under this First Amended and Restated Development Agreement upon the happening of one or more of the following events or conditions: 75A -117 (-)-If a warranty, representation, or statement made or furnished by Praperty -Owner to the City is false or proves to have been false in any material respect when it was made; (,+A finding and determination made by the City Council following a periodic review under the procedure provided for in Government Code Section 65865. X65865.1 that upon the basis of substantial evidence the Pfoperty- -Owner has not complied in good faith with one or more of the terms or conditions of this First Amended and Restated Development Agreement; M (3 }Failure to comply with Governmental Requirements; (4) -Any other event, condition, act, or omission which materially interferes with the intent and objectives of this First Amended and Restated Development Agreement. 7.2 Procedure upon Default. The following principles and procedures shall be applied in the determination of any efauIt- D ('I- )-Upon the occurrence of default, City shall give Pmpeay-Owner (the "defaulting party ") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the manner in which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day cure period without cure, City may terminate or amend this First Amended and Restated Development Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be cured within said thirty (30) day cure period, City may terminate or amend this AWx L12W2d79l 55449HA aS -21- 75A -117 first Amended and Restated—Dvyvlmneiat Agreement in accordance with the procedure adopted by the City should at any time Owner fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. M (2} -City does not waive any claim of defect in performance by Property- Owner, if on periodic review the City does not propose to modify or terminate this First Amended and Restated Development Agreement. W (3} -Non- performance shall not be excused because of a- failure of a third person. L (4)-An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Property - Owner, shall be sufficient to terminate this First Amended and Restated Development Agreement and a hearing on the matter shall not be required. LW (5)—Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Prope#y- Owner. (6)-All other remedies at law c with the provisions of thi: Development Agreement are the event there is a breach. in equity which are not inconsistent First Amended_ and Restated available to the parties to pursue in 7.3 Damages upon Termination. In no event shall Pregegy Owner be entitled to any damages against City upon termination of this First Amended and Restated Development Agreement. 7.4 Institution of Legal Action. In addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any default or breach, to specifically enforce any covenants or Agfeementsaareements set forth in thethM First Amended and Restated Development Agreement, or to enjoin any threatened or attempted violation of ttaethis First Amended and Re tated evelopmen Agreement; or to obtain any remedies consistent with the purpose of Ehe 's First Amended and Re ated Developmen Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, 65W12ft2M424W45544891105 -22- 75A -118 State of California, or in the Federal District Court in the Central District of California, Southern Division. 8. MORTGAGEE PROTECTIONS 8.1 Right to Owner /Notice /Multiple Mortgagees. Owner shall have the absolute right to encumber Owner's right, title and interest in, to and under this First Amended and Restated Developmens Agreement and the Property pursuant to one or more Mortgages. Because certain portions of the Project may be developed by one or more assignees, the Parties acknowledge and agree that different Mortgages may encumber the Property and that there may be a separate Mortgage in effect with respect to separate parcels within the Property. It is the intention of the Parties that the rights and protections granted in this Section 8 to each Mortgagee shall only apply to the parcels upon which such Mortgagee's Mortgage is a lien (each a "Mortgage Parcel "), and to the rights, privileges and obligations under this First Amended and Restated Development Agreement relating to such Mortgage Parcel. 8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Owner as provided herein, whenever the City delivers any Notice or demand to Owner with respect to any Breach by Owner under this First Amended and Restated Develownant Agreement and if Owner fails to cure the Breach within the time set forth herein, the City shall deliver to each Mortgagee a copy of such notice or demand accompanied by a writing to the affect that Owner has failed to cure a Breach ( "Mortgagee Notice "); provided that Owner or Mortgagee has provided City with addresses for such purpose. Each such Mortgagee shall (insofar as the rights granted by the City are concerned) have the right, at its option, within thirty (30) days after the receipt of the Mortgagee Notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such Breach and to add the cost thereof to the mortgage debt and the lien of its mortgage; provided, however if the Mortgagee is legally prevented from curing such Breach because of a bankruptcy by the Owner then the thirty (30) day period shall be tolled until such bankruptcy is confirmed or rejected. Nothing contained in this First Amended and Restated evelopmen Agreement shall be deemed to permit or authorize such Mortgagee to take advantage of Owner's rights hereunder, or any portion thereof, without first having expressly assumed Owner's obligations to the City by written agreement reasonably satisfactory to the City. It is understood that a Mortgagee shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy a Owner default which requires title and /or possession of the SitePr4 a 65962p47412W23?91iS44UJ2Y25_ -23- 75A -119 (or portion thereof) if and to the extent any such Mortgagee has within such thirty (30) day period commenced proceedings to obtain title and/or possession and thereafter the Mortgagee diligently pursues such proceedings to completion and cures or remedies the Breach, provided that, in such event, all noncurable Defaults shall be waived. 8.3 Mortgagee Not Obligated Under thetbis First Amended and Restated Development Agreement. Unless a Mortgagee expressly assumes Owner's Obligations to the City in accordance with Section 8.2-above, no Mortgagee shall in any way be obligated by the provisions of this Fit Amended and Restated Devel men Agreement, nor shall any covenant or any other provision in this First Amended and Restated Development Agreement be construed so-to obligate such Mortgagee. Nothing in this Eirat Amended and Restated Developmen Agreement shall be deemed to construe, permit or authorize any such Mortgagee to devote the Mortgage Parcel to any uses or to construct any improvements theR3eRQn the Mortaaaee Parcel, other than those uses or improvements provided for or authorized by this First Amended and Restated Development Agreement. 8.4 No Liability. No Mortgagee shall have any perseRal.- liability beyond its interest in the Mortgage Parcel acquired bye through enforcement of its Mortgage for the performance or payment of any covenant, liability, warranty or obligation hereunder, and thounder this First Amended and Restated Development Agreement City agrees that it shall look solely to the interests of such Mortgagee in such Mortgage Parcel for payment or discharge of any such covenant, liability, warranty or obligation. 8.5 No Amendment or Termination. This First Amended and Restated Development Agreement shall not, without the prior written consent of all Mortgagees holding Mortgages on eachiU portion of the Property -4" affecte"oFeby, be amended se as to (a) terminate this First Amended and Restated Oeyelopment Agreement prior to the expiration of the Term hereof (except as expreaul provided in- Section -8:4 -above with respect -- te-sush Psepea#,l or (b) change any provision of this EkIt Amended and Restated Development Agreement which, by its terms, is specifically for the benefit of Mortgagees oF spec kally-Geaters -- rights eR Mortgagees. No amendment to this First Amended and Restated Development Agreement affecting the Property or any part thereof, made without the consent of any Mortgagee holding a Mortgage on such Property, or any part thereof, shall be binding upon such Mortgagee or its successors in interest should it become a party hereto. 4W42%AWQ\42.32erss44M32v2S -24- 75A -120 8.6 Condemnation or Insurance Proceeds. Nothing in this First Amended and Restated Development Agreement shall impair the rights of any Mortgagee, pursuant to its Mortgage, to receive insurance and /or condemnation proceeds which are otherwise payable to Owner granting such Mortgage. 8.7 Title by Foreclosure. Except as otherwise set forth herein, all of the provisions contained in this First Amended and Restated Development Agreement applicable to any of the Mortgage Parcel shall be binding on and for the benefit of any person who acquires title to the property, or any part thereof, by foreclosure under a Mortgage or transfer by deed in lieu. 8.8 Delegation to Mortgagee. Owner may delegate and/or assign irrevocably to any Mortgagee the non - exclusive authority to exercise any or all of Owner's obligations and /or rights hereunder with respect to the Mortgage Parcel, but no such delegation shall be binding upon the City unless and until either Owner or such Mortgagee shall give to the City a true and correct copy of a written instrument effecting such delegation. Such delegation of authority may be effected by the terms of the Mortgage itself, in which case service upon the other Party of an executed counterpart or conformed copy of said Mortgage, together with written notice specifying the provisions therein which delegates such authority to said Mortgagee, shall be sufficient to give such other Party notice of such delegation. No such delegation or assignment shall relieve the Owner of that Mortgage Parcel of any of its obligations hereunder with respect to such Mortgage Parcel. 8.9 No Obligation to Cure. Nothing herein contained shall require any Mortgagee to cure any default of Owner referred to above. 8.10 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee requesting same, an agreement prepared at the sole cost and expense of Owner, in form satisfactory to such Mortgagee and the City, between the City and the Mortgagees, agreeing to all of the provisions hereof, provided Owner pays for all legal and other consulting costs incurred by City in reviewing same. 8.11 Estoppel Certificate. Within thirty (30) days after written request therefore, the City shall execute and deliver to any proposed Mortgagee in connection with its new Mortgage and to such Mortgagee thereafter from time to time an estoppel certificate in form and substance satisfactory to Owner and such Mortgagee ( "Estoppel Certificate "). The City hereby agrees to reasonably cooperate in including in any such Estoppel Certificate from time to time any provision which may reasonably be e59020f7MVt23XM.4"=v25_ -25- 75A -121 requested by any proposed Mortgagee for the purpose of implementing the Mortgagee protection provisions contained in this Section 8 and allowing such Mortgagee reasonable means to protect or preserve the lien and security interest of its Mortgage hereunder, clarifying the non - applicability of the provisions of this First Amended and Restated Development Agreement to such Mortgagee as it relates to parcels other than the Mortgage Parcel, and /or such other terms and provisions as are customarily required by Mortgagees (taking into account the customary requirements of their participants, syndication partners or ratings agencies) in connection with any such financing; provided, however, that no such Estoppel Certificate shall in any way materially adversely affect any rights of the City or increase any obligations of City under this Eirat Amended and Restated Development Agreement. 8.12 Conflicts. If there is any conflict between this Section 8 and any other provision contained in this First Amended and Restated Developmen Agreement, this Section 8 shall control. 9. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall' is mandatory; "may" is permissive. If there is more than one signer of this First Amended and Restated Development Agreement, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This First Amended and Restated Development Agreement constitutes the entire understanding and A9%ernentaareement of the parhesPalgn with respect to the matters set forth in this First Amended__ and Restated Development Agreement. This First Amended and Restated Development Agreement supersedes all negotiation or previous Agreementsagreements between the padiesParties respecting this Elr$t Amended and Restated Development Agreement. All waivers of the"I provision of this First Amended and Restated Development Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this First Amended and Restated Development Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Upon the completion of performance of this First Amended and Restated Developmen Agreement or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, California. a39u194T512Wb17)FS5i�718.i2v�i -26- 75A -122 9.3 Project as a Private Undertaking. It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 at seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this First Amended and Restated Development Agreement. 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this First Amended and Restated Development Agreement are part of this First Amended and Restated Development Agreement. 9.5 Captions. The captions of this First Amended and Restated Development Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this First Amended and Restated Developmen Agreement. 9.6 Consent. Where the consent or approval of a p"PArty is required iaby or necessary under this First Amended and Restated Development Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The partiesParties shall cooperate with; and deal with each other in good faith;and. Thev will assist each other Wile extent needed in the performance of the provisions of this First Amended and Restated Development Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this Eklt Amended and Restated=Doyelognioilt Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this First Amended and Restated Development Agreement has been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this First Amended and Restated DeyelQpment Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this First Amended and Restated Development Agreement. The partiesParties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this First Ir5HN2pfi261441237Y135i�y8,}Zv�1 _27_ 75A -123 Amended and Restated Development Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an AgreemeAtaareement on the effect of such federal or state law or regulation upon "this First Amended and Restated Development Agreement, the matter shall be scheduled for hearing before the Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.10 Recording. The City Clerk shall cause a copy of this First Amended and Restated Development Agreement to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the effective date of this First Amended and Restated Development Agreement. IN WITNESS WHEREOF, this First Amended and Restated_ evelopmen Agreement has been executed by the City of Santa Ana and by Prepesty- Owner. Dated this ATTEST: PATRICIA G HEA y Clerk of the Council Approved as to Form: _ W. FLETcrCHER 53wR947614Wb37;"!k418B3205 . day of THE CITY OF SANTA ANA �evin,T..�T � =nom City Manager WE 75A -124 (signatures- oentinued- from -prief -page) 1901 C ICT STREET PARTNERS 11-l` a Delawarelunitatlliakilily- cseayaHy v gy_ rou 1 low - �i 1 _I=LG a- 9elaware4iwaite("i- ibiiity mpaH)t It"ember By- Gapital Rasiiis kteidings, trw ;- a-Belawangserperatien It"Ole- NU)Mber gy— Name= Title: Ghief I egat OffiGw By Nw is ME M 090206761941237915544 IQ5, -30- 75A -125 EXHIBIT A Property Legal Description THAT PORTION OF LOT 15 OF THE MAYBURY TRACT, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 36, PAGE 65 OF MISCELLANEOUS MAPS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL No. 1 AS SHOWN ON A MAP FILED IN BOOK 98, PAGE 30 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA, AS AMENDED BY A CERTIFICATE OF CORRECTION RECORDED OCTOBER 20, 1977 IN BOOK 12424, PAGE 543 OF OFFICIAL RECORDS. EXCEPTING THEREFROM THAT PORTION OF PARCEL 1 AS SHOWN ON A MAP FILED IN BOOK 98, PAGE 30 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA, SITUATED IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID PARCEL I; THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 1 NORTH 89 031'52" EAST 34.14 FEET; THENCE NORTH 45 °19'14" WEST 38.26 FEET TO A LINE PARALLEL WITH AND 7-90 -FEET EASTERLY FROM THE WESTERLY LINE OF SAID PARCEL 1; THENCE SOUTH 89 049'39" WEST 7.00 FEET TO SAID WESTERLY LINE; THENCE ALONG SAID WESTERLY LINE SOUTH 0 °10'21" EAST 27.18 FEET TO THE POINT OF BEGINNING, AS GRANTED TO THE CITY OF SANTA ANA, IN DEED RECORDED SEPTEMBER 18, 1990 AS INSTRUMENT No. 90- 493896, OF OFFICIAL RECORDS. Orange County Assessor's Parcel Number 400 - 081 -08 65g92p67612412 3 7 915944,102 V2& 75A-1 E t I -V EXHIBIT B Property Site Plan �ezn 2wz vus eeu��z � B % lilli ' 111111 1 1111 111 11111111 • 1 - 1 ! , 1 ! ' - • ' 1 1. =• 1 •11= •1 1 1: • / • • .l - -. : !1! All ? l - 1 ! • 1 11:1 -. M- 1 ! 1 1 ! : :11:1 1 • 1 • ! • 1 : . 11 i • 1 • 1 : ! I • • 1 : I I • 1 1 • 1 ! . 1. 1 ! ' • 1 t ! 6•_WO2067614U2- l7915S41B832v2S Exhibit 29 Additional Offsite Mitigation Measures Improvement Location Pay fair share of all costs to acquire required right of way for and construct Fourth Street at Southbound SR -55 on- eastbound right turn lane ramp (Tustin Avenue to SR -55) In order to implement & satisfy mitigation measure MM 4.12 2, construct raised First Street and Cabrillo along the "pork- chop" island to Public Works project frontage Agency specifications Note: For offsite public improvements constructed by Owner (i.e., "pork- chop" island), shall pay all workers employed in connection with the work not less than the prevailing rates of wages, as provided in the statutes applicable to public works contracts, including without limitation §§ 1770 -1780 of the California Labor Code. YLSLTC &TFCAi� I F 1 o_ "O O Z CL I LU f— Q Z W ZI F- LU ' 1 fit t i3� 11F P:1 �,, Ei'� 1�1 611 $ €1 P S, i o P j _ 11 jj -141 FF G E� f31 Y Fi .rfdf a i $ 6i #1P €j 1.P rI:1 f 73 ?1 ° t17d 9 Rg 15i ' ' 1i I'c8 ¢ ° z1 PB: s'r.P Y'11 ° 9s ag �If e i e a 1e� ytir Esg i =i i 4 ft s` 8 'Fi E �1 �ifI €ee€P gg €:�+� •1 €gip � � � � ���8 � � ,��° 11 f s§ �f1Pfi =,� � ffl� 1 Ills a liPiil �i1 P3117�1iara l.[(.,.3 i €rS tP r it fa f3 8 11 r.: 1 €id ;e P n1r iI $ X11' ' t € e c a s: s F x Jei; YJ i i1r1 �-Iffl er 1, tt gie ii P7 f ,i y �al fli p, J � I � al� a 1� i . a 1 i � r i•F 9� f:yr�; 11 �i: $ri� �.yQ, if 4p pqq F559 kf ipl, � ' � Ii +if S II . ii{i .S Iii Lr al FIRM "i 1J fit t i3� 11F P:1 �,, Ei'� 1�1 611 $ €1 P S, i o P j _ 11 jj -141 FF G E� f31 Y Fi .rfdf a i $ 6i #1P €j 1.P rI:1 f 73 ?1 ° t17d 9 Rg 15i ' ' 1i I'c8 ¢ ° z1 PB: s'r.P Y'11 ° 9s ag �If e i e a 1e� ytir Esg i =i i 4 ft s` 8 'Fi E �1 �ifI €ee€P gg €:�+� •1 €gip � � � � ���8 � � ,��° 11 f s§ �f1Pfi =,� � ffl� 1 Ills a liPiil �i1 P3117�1iara l.[(.,.3 i €rS tP r it fa f3 8 11 r.: 1 €id ;e P n1r iI $ X11' ' t € e c a s: s F x Jei; YJ i i1r1 �-Iffl er 1, tt gie ii P7 f ,i y �al fli p, J � I � al� a 1� i . a TIT I T I Ni f w z If if OIL Z Q I Ins' 'i 4 N bra, uwi 2 u i' I; It 11 M Ji I.—I". J to j` -j lit jiff if IN U 11 U III I11�1IIII 1111111 (e Ez O if N i" L U't CL D 0 IV! U- U.j I P ,111 1 — ip z u LU z If UJ D T. it 0 z 0 if. if i i5 ii 51 i 12 141 Of 11W lb 1IN . ... if ffj ge LYON COMMUNITIES- VAN IAt. Yt;N I I II,t-'f + (W M10,11 IV[ANIA411'WN I • 110011 WY PJANACt:MkNt MEETING MINUTES Date & Time: Tuesday, May 28, 2013 at 6:OOPM Location: Lestonnac Retreat Center 16791 E. Main Street, Tustin, CA 92780 Subject: Community Meeting for 1901 E. 191 Street (19t Street & Cabrillo) Lyon Team: Chris Coe — COE Architecture (Architect) Duane Border — Duane Border Design (Landscape Architect) Ashley Liddiard — Lyon Communities (Assistant Project Manager) Cynthia Eppeldauer— Lyon Communities (Vice President, Development) Jim Teegarden — Lyon Communities (Construction Manager) Peter Zak — Lyon Communities (Senior Vice President, Development) The Community Meeting began at 6:20PM with Chris Coe of COE Architecture International presenting a PowerPoint presentation outlining: • Site location o Corner of 1st Street and Cabrillo Park Drive, across from the Xerox tower. • Implementation of the development forms and uses outlined in the MEMU Overlay Zone to create a vibrant neighborhood • Activate the ground floor. • Create streetscapes with more pedestrian orientation and connection. • Include retail space on the corner of 19t Street and Cabrillo Park Drive for neighborhood serving retail, such as a cafd /deli. • Project Description o Retain the use of the existing parking garage to save on cost and resources. o 3 -story townhomes and 5 -story residential flats will wrap the 4 -level parking garage. o The recreation deck with the pool, spa, seating areas and clubhouse will be located above the parking garage. o Public open space, common, and private open spaces (patios and balconies) are incorporated into the project. EXHIBIT 10 75A -'F33 o Public Open Space represents 15% of the property, meeting the requirement and equates to a 33,000 sf community park, Duane Border of Duane Border Design presented the landscape plans. Duane described the public open space as the jewel of the project. The public open space will have an urban feel and include vibrant landscape, seating walls and inviting spaces where the community can gather. The fire lanes are designed with trees lining along the alley way to promote walkability, creating a strong pedestrian environment. The main recreation center is programmed with more active entertainment spaces while the courtyard serves as a more passive outdoor setting. Peter Zak, Senior Vice President of Lyon Communities, discussed Lyon Communities' 50 -year history of developing and managing its portfolio of 10,000 units. Lyon primarily builds and owns its projects for the long -term. Lyon also has a strong working relationship with the City of Santa Ana primarily due to the successful progress of Lyon Communities' high -end residential project, The Marke, currently under construction with 300 units at Main & MacArthur. The presentation was followed by questions: 1. Is the project for purchase or rental? a. The project will be entitled as condos and operated as rentals. 2. What will be the (rental) price per square foot? a. Lyon is unable to answer at this time. The price is determined by the market. 3. Will there be gated access? a. Yes, the garage will be gated. 4. Will this project be considered low, middle or high end? a. High end 5. Is there a website for the project? a. The project will be posted on the Lyon Communities website in the next month or so. 6. Is the site plan set in stone? a. We are open to suggestions. 7. How are we going to treat the chain link fence? a. As we move through the design process, fencing detail will be developed. 8. Will we replace the jacaranda trees along Golden Circle? a. Yes. 9. A tenant of The Georgetown Building is concerned with its balcony losing privacy to the residents of the townhomes. a. Chris Coe explained that the floors will most likely not align with their building's floor height, typically different between office and residential buildings. 10. A tenant of the Xerox Building expressed concern with the homeless. a. The project will include many levels of security including access control, video cameras and onsite staff. 11. What is the timeframe of the project? Pa ego 3 75A -134 a. The leasing office and first units are anticipated to be open in about a year and a half. 12. What is the demo schedule? a. We will spend the next 6 -7 months demoing the site. 13. Will there be pylons? a. No, buildings are slab on grade. The meeting adjourned at 720PM. Page 3 of 3 75A -135 Addendum 1901 East First Street Metro East Mixed Use Overlay Zone, First and Cabrillo Towers Project - Environmental Impact Report Lead Agency City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 Contact: Vince Fregoso, Principal Planner 714- 667 -2713 Project Proponent Lyon Communities, Inc. 4901 Birch Street Newport Beach, CA 92660 Cynthia Eppledauer, Vice President 949- 838 -1234 Environmental Consultant Phil Martin & Associates 3002 Dow Avenue, Suite 122 Tustin, CA 92780 Phil Martin - President 949 -454 -1800 August 14, 2013 EXHIBIT 11 75A -136 TABLE of CONTENTS Section I. Introduction and Suum my ..................... ............................... II. Purpose of an Addendum ........................ ............................... III. Proposed Project and Environmental Determination .... — IV. Evaluation of Environmental Impacts ......................... I....... V. Summary of Findings ............................... ............................... Appendices Appendix A — Addendum Checklist Appendix B —Air Quality /GHG Report Appendix C —Traffic Report 1901 East K"t Street — Addendum August 14, 2013 75A -137 Pee .................. ..............................1 ................. ............................... 7 ................ ............................... 5 Page i I. Introduction and Summary Tliis Addendum is to the Final Environmental Impact Report (EIR) that was certified on M -larch 19, 2007 (Resolution 2007 -26, Environmental Impact Report (State Clearinghouse #2006031041) and Mitigation Monitoring Plan ( "MNIP ")) for T1rc Metro East Nfixed Use Overlay Zone and First and Cabrillo Towers project (Project) and analyzes the potential environmental effects of a less intense development for the same site between the approved Project and the proposed 1901 E. First Street project (Proposed Project). The proposed 1901 East First Street project proposes the development of 343,675 square feet of residential use (254 units) and 2,424 square feet of retail space on a 5.1 acre site at the northeast corner of First Street and Cabrillo Park Drive. An existing 4 level parking structure with 664 existing parking spaces will be incorporated into the project. The project proposes to construct two five -story low -rise buildings totaling 240 units on the west side of the existing 4 level parking structure. Fourteen three -story townlionies will be constructed along the south and east sides of die parking structure. A 5,000 square foot club house and recreation deck with a swimming pool will be constructed over die southern half of the existing parking structure that will eliminate approximately 137 of the existing spaces in the parking structure. Other recreational amenities that are proposed for the recreation deck on the parking stricture include a spa, fitness center, billiards and game room, outdoor fireplaces, barbeques, etc. Once completed, the project will provide a total of 555 parking spaces, including 527 spaces in the existing parking structure and 28 surface parking spaces throughout the site. The proposed site plan is shown in Figure 1. Project Background The City approved the First and Cabrillo Towers project along with the Metro East Overlay Zone on March 19, 2007. The Nietro East Overlay Zone EIR includes an area over 200 acres and includes the 5.1 acre First and Cabrillo Towers project site. The First and Cabrillo Towers project is approved for the development of up to 435,000 square feet of residential areas in a 22 -story and 23- story building, approximately 8,900 square feet of retail /commercial areas, and approximately 774 Parking spaces, 661 of which are located in an existing garage. The Proposed Project, as described in this Addendum, involves the proposed development of a less intense project on the same site as the approved First and the Cabrillo Towers project. The Proposed Project does not result in any new potentially significant environmental impacts or cause a substantial increase in the severity of the impacts that were identified in die Final EIR that was certified March 19, 2007 and no substantial circumstances under which the Project is undertaken have occurred. Tints, this Addendum to the certified Final FIR on March 19, 2007 is appropriate Pursuant to the provisions of the California Environmental Quality Act, Public Resources Code section 21000, el seq. (CEQA), and 14 Cal. Code Regulations, section 15000, el reel. (CEQA Guidelines). II. Purpose of an Addendum Pursuant to the CF,QA Guidelines, a lead agency is required to determine whether its discretionary approvals have the potential to result in significant environmental impacts. In the case of the 1901 East First Street — addendum August 14, 2013 75A -138 Page I Sm 0 q Q cd C Q w w L.L Q w �auiar.nsw; +ini mminaiastwsw ' � KT918 K:UN F r 311tl1 3HI1 HIM tl I i `Lr r t r: AMIS1SMIJ �• '. IpnirttdfilY btiW � 411ri #1':JS�YA ):V rI WH �0]lY 1 J 4 75A -139 3 1 i v C �a LL L ,, Proposed Project, the City of Santa Ana (City) is the lead agency and prepared and adopted the Final EIR for the Project on March 19, 2007. As the Proposed Project is a reduced development compared to the Project (96,687 square feet of residential and 6,476 square feet of retail less), the City must review the Proposed Project and the approved Project in accordance with Sections 15162 and 15164 of the CEQA Guidelines. CEQA Guidelines §15162 (a) When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: (1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (2) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR or negative declaration was certified as complete or the negative declaration was adopted shows any of the following: (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration; (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the project proponents decline to adopt the mitigation measure or alternative; or (D) Mitigation measures or alternatives which are considerably different from those analyzed in the E1R would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measures or alternatives (Pub. Res. Code §21166; CEQA Guidelines §15162. Given that none of the conditions requiring preparation of a Subsequent EIR (CEQA Guidelines §15162) are present and only special study upgrades to the previous EIR are necessary to reflect the development proposed for the site, an Addendum to the previously adopted Final Environmental Impact Report is proper and complies with CEQA Guidelines §15164. CEQA Guidelines §15164(a) states, "The lead agency or responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred." In the case of the proposed project, none of the conditions in Section 15162 calling for the preparation of a subsequent EIR have occurred. Therefore, the City exercises the right to prepare an Addendum in this case and not a subsequent EIR. 1901 East First Street — Addendum August 14, 2013 75A -140 Page 3 The City finds that none of the conditions described in CEQA Guidelines §15162 requires the preparation of a Subsequent Environmental Impact Report. Specifically, the City has determined the following: No SuGsiuulin/ CGouges in Cimmislanres. There are no substantial changes with respect to the existing conditions or circumstances under which the site was evaluated in The Metro East Mixed Use Overlay Zone and Cabrillo Towers EIR. The site has remained in its existing condition approximately seven years after the preparation of The Metro East Mixed Use Overlay Zone and First and Cabrillo Towers EIR. There have not been any substantial changes in the existing environmental setting on the site since the project was approved in 2007. No New Ljfonzw ion of Sabs/nnfin/ Lnpodanix. There is no new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the tine the Environmental Impact Report was adopted that shows the project will have one or more significant effects or substantially more severe effects not discussed in the Environmental Impact Report. Except for the new site specific environmental information regarding the proposed development of 254 residential units and 2,424 square feet of retail space on 5.1 acres, the project and its associated impacts all remain the same as contemplated and evaluated in the Environmental Impact Report. There are no mitigation measures that were considerably different from those analyzed in The Metro East Mftxed Use Overlay Zone and First and Cabrillo Towers project EIR. Consequently, there is no new information indicating that new significant or substantially more severe environmental effects would result from the development of the project than identified in The Metro East Mixed Use Overlay Zone and First and Cabrillo Towers EIR. CEQA Guidelines §15164 Addendum to an EIR or Negative Declaration In accordance with CEQA Guidelines §15164, the City, as the lead agency, has prepared this Addendum to the previously adopted Final Environmental Impact Report. The Addendum Checklist is included in Appendix A. As described above, the City has determined the information provided herein will result in none of the conditions described in CEQA Guidelines §15162 requiring the preparation of a Subsequent Environmental Impact Report. Given that none of the conditions requiring preparation of a Subsequent EIR (CEQA Guidelines §15162) are present and only special study upgrades to the previous EIR are necessary to reflect the development proposed for the site, an Addendum to the previously adopted Final Environmental Impact Report is proper and complies with CEQA Guidelines §15164. CEQA Guidelines §I5164(a) states, "The lead agency or responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary, but none of the conditions described in Section 15162 calling fox preparation of a subsequent EIR have occurred." In the case of the proposed project, none of the conditions in Section 15162 calling for the preparation of a subsequent EIR have occurred. Therefore, the City exercises the right to prepare an Addendum in this case and not a subsequent EIR. CEQA requires that the decision making body consider the Addendum along and in conjunction with The Metro East Mixed Use Overlap Zone and First and Cabrillo Towers Final EIR prior to making a decision on whether or not to approve the Proposed Project. A brief explanation of the decision not to prepare a Subsequent Environmental Impact Report pursuant to Section 15162 1901 East First Street — Addendum August 14,2013 75A -141 Page 4 should be included in an Addendum or elsewhere in the record and must be supported by substantial evidence. In accordance with CEQA Guidelines §15164 the City of Santa Ana (the "City ") has prepared this Addendum in response to the request by the project applicant (Lyon Communities) to allow the development of a total of 254 homes, including 240 homes in two 5 -story buildings west of an existing 4 level parking structure and 14, three -story townhomes along the south and east project boundaries, 2,424 square feet of retail space and recreational facilities approximately 5.1 acres at the northeast corner of First Street and Cabrillo Park Drive. The proposed amenities for the recreation deck on the top level of the parking structure includes a 5,000 square foot club house, swimming pool, spa, fitness center, billiards and game room, outdoor fireplaces, barbcques, etc. Once completed, the project will provide a total of 555 parking spaces, including 527 spaces in the existing 4level parking structure and 28 surface parking spaces throughout the site. CEQA authorizes a lead or responsible agency to prepare an Addendum to a previously adopted EIR if some changes or additions are necessary, but none of the conditions described in CEQA Guidelines §15162 requiring the preparation of a Subsequent EIR. III. Proposed Project and Environmental Documentation The proposed 1901 East First Street project proposes the development of 343,675 square feet of residential use (254 units) and 2,424 square feet of retail space on the same 5.1 acre site. The Proposed Project proposes 96,687 less square feet of residential and 6,476 square feet less of retail development than allowed by the approved First and Cabrillo Towers Project. The Proposed Project is consistent with and less dense than the square footage of residential and retail /commercial space allowed by the previously approved Project. All of the environmental impacts of the Proposed Project were determined to result in no impacts or less- than - significant impacts, or impacts were determined to be reduced to less - than - significant levels with the incorporation of the same mitigation measures that were recommended for incorporation into the approved Project. Impacts to Aesthetics, Agricultural, Biological, Cultural Resources, Geology, Hazards /Hazardous Materials, Hydrology, Land Use, Mineral Resources, Population /Housing, Public Services, Utilities and Recreation Nvill have no impacts. Air Quality, Noise and Traffic impacts will be positive because they will be less impact than the Project. IV. Evaluation of Environmental Impacts The scope of this Addendum is to provide information in support of the development of 254 homes, including 240 homes in two 5 -story buildings west of the existing 4 level parking structure and 14, three -story townhomes along the south and east project boundaries, 2,424 square feet of retail space and recreational facilities on approximately 5.1 acres at the northeast corner of First Street and Cabrillo Park Drive. The proposed amenities for the recreation deck on the top level of the parking structure includes a 5,000 square foot club house, swimming pool, spa, fitness center, billiards and game room, outdoor fireplaces, barbeques, etc. Once completed, the project will provide a total of 555 parking spaces, including 527 spaces in the existing parking structure and 28 surface parking spaces throughout the site. Together, The Metro East Mixed Use Overlay Zone and First and Cabrillo Towers project FIR and this Addendum serve ns the environmental review of the Proposed Project, as required pursuant to the provisions of CEQA and the CEQA Guidelines. The 1901 East First Street — Addendum August 14, 2013 75A -142 Page 5 Proposed Project's impacts were largely covered in The Metro East Mixed Use Overlay Zone and First and Cabrillo Towers EIR. This analysis addresses any changes to the impacts that were identified in The Metro East Mixed Use Overlay Zone and First and Cabrillo Towers FIR that could potentially occur with the less intense Proposed Project. Aestbelits The Proposed Project is less dense and will result in less development on the 5.1 acre site than the Approved Project. The approved First and Cabrillo Towers project allows the construction of 627,547 square feet of residential use within two towers (22 story "North Tower" and a 23 story "South Tower" with 374 residential units), whereas the Project proposes 240 residential units in a Five -story building and a three -story building and 14 ground level townhomes. The Proposed Project would improve the line of sight across the site from surrounding areas as the height of the proposed five -story and three -story buildings are lower in height than the 23 and 22 story buildings that are approved for the site. The Proposed Project would not negatively impact the aesthetics of the site because it proposes less density than the approved Project. Furthermore, the Proposed Project would generate less light and glare than the approved Project since there Nvili be less development. The Proposed Project would have no aesthetic impacts compared to the approved Project. Agicelim-al Reroinees Like the approved Project, the Proposed Project will not have any agricultural resource impacts because there is no agricultural activity on or adjacent to the site. The Proposed Project will have no impact to agricultural resources consistent with the analysis for the Project. The Proposed Project is consistent with the analysis in the March 19, 2007 EIR. AirQuah/ y The Proposed Project will reduce operational air emissions compared to the approved Project because there will be less development. As a result, the Proposed Project will have a positive air quality impact because fewer air emissions will be generated throughout the life of the project. The short -term construction emissions will also be less because there is less development and the time to construct the project will be less. The Local Significant Thresholds (LST) generated during project construction will not exceed thresholds and therefore, the LST emissions will not be significant. The Proposed Project will not exceed any South Coast Air Quality Management District (SCAQbID) thresholds and will have a positive impact on air quality compared to the approved Project because fewer air emissions will be generated. The main source of potential odors by the Proposed Project, like the approved Project, will be trash receptacles within the project. The incorporation of Mitigation Measure MM -OZ 4.2 -1 of the Metro East Mixed Use Overlay Zone, First and Cabrillo Towers Volume II EIR will reduce odor impacts by the Proposed Project to less than significant. The Proposed Project will have less than significant air quality impacts. 1901 East First Street — Addcndum August Id, 2013 75A -143 Page 6 Biological Resources The Proposed Project will not result in any new or changed impacts to biological resources compared to the approved Project. The project site is developed and there are no native biological resources on the property. The vegetation that exists on the site includes introduced non -native urban plant species and will not be impacted by its removal to construct the Proposed Project. As with the approved Project, the Proposed Project will not have any biological resource impacts. The Proposed Project is consistent with the analysis in the March 19, 2007 EIR. Cuffinal Resonn'es The Proposed Project will not result in any new or changed impacts to cultural or paleontological resources compared to the approved Project. The project site is developed and there are no known cultural or paleontological resources on the property. Mitigation measures associated with the approved Project are in place to protect any cultural or paleontological resources that may be uncovered during project construction. The Proposed Project will not have any cultural resource impacts. The Proposed Project is consistent with the analysis in the March 19, 2007 EIR. Geolog and Soils The Proposed Project would not result in any new or increased geology or soil impacts compared to the approved Project. Like the approved Project, the Proposed Project would be exposed to potential liquefaction. And like the Project, the incorporation of the same applicable mitigation measures to mitigate potential seismic event, liquefaction and soil erosion impacts will be applicable to the Proposed Project. The Proposed Project will not have any new or added geological and soils impacts compared to the approved Project. The Proposed Project is consistent with the analysis and mitigation measures in the March 19, 2007 EIR. Greenbouse Gar Emissions Because a greenhouse gas emission analysis was not required by CEQA at the time of the approval of the Project, a greenhouse gas analysis was conducted for the Proposed Project. A copy of the greenhouse gas analysis is attached as Appendix B. Based on the greenhouse gas analysis, the Proposed Project will not have any significant greenhouse gas impacts and no ntigation measures are recommended. Hazards mid Hazardous Alaietials The Proposed Project will not result in any significant hazards or hazardous material impacts. The potential hazards and hazardous materials of the approved Project will be the same for the Proposed Project. The Proposed Project will not result in any new or increased hazards compared to those identified with the Project. The Proposed Project is consistent with the analysis and mitigation measures in the March 19, 2007 EIR. 1901 Gast Pits Sueet — Addendum Auyvst 14, 2013 75A -144 Page 7 Hjdrology and U%nler,Qualio The Proposed Project will not have any significant hydrology or water quality hnpacts. The amount and the quality of the surface water generated by the Proposed Project will be the same as the approved Project. The Proposed Project is consistent Nvith the analysis it) the N&rch 19, 2007 EIR. maid Use raid Planning The Proposed Project proposes 120 less residential units than the approved Project. As a result, there will be less density and the building heights will be less than the approved Project The Proposed Project, Eke the approved Project, meets all applicable design and development standards for development in the Active Urban District the project. The Proposed Project is consistent with the analysis in the March 17, 2007 EIR and there will be no land use impacts. D9ineral Reswares The Proposed Project will not have any mineral impacts. Based on the approved Project EIR there are no mineral resources on or adjacent to the project site. Therefore, the Proposed Project is consistent with the analysis and mitigation treasures in the March 19, 2007 EIR. Norse The Proposed Project will not result in any new or significant noise impacts compared to the approved Project. The project proposes 120 fewer residential units than the approved Project and as a result the time of construction will be less. Because the Proposed Project will have less development there will less traffic and less traffic noise. The Proposed Project will have a positive noise impact compared to the approved Project because there will be less noise generated during project construction and the life of the project. Popalalton and Honing The Proposed Project will have 120 fever residential units than the approved Project. As a result, the project will generate fewer people than the approved Project. Like the Project, the Proposed Project will not eliminate any existing housing and require the construction of replacement housing. With fewer project residents the Proposed Project will have a less growth inducement. The Proposed Project will not have any population or housing impacts. Public Services The Proposed Project will have a positive impact to public services compared to the Project because the Proposed Project will have 120 fewer residential units. With fewer residents the demand for public services will be less with a positive impact on the public services that serve the project. The Proposed Project will have a positive impact to public services compared to the Project. 1901 East First Street — Addendum August 14, 2013 75A -145 Page 8 Renxn /ion Like the approved Project the residents of the Proposed Project will most likely use the recreational facilities that will be provided by the project. The Proposed Project residents, like the residents of the approved Project, are not anticipated to use existing city recreational facilities and significantly impact existing city recreational facilities. The Proposed Project will be required to pay parkland fees that will be used to provide additional park and recreational facilities in Santa Ana. The Proposed Project is consistent with the analysis in the Nlarch 19, 2007 EIR and will not have any recreational impacts. TrrmsbotinlionlTime The Proposed Project will generate approximately 894 fewer daily trips, including 67 fewer AM peak hour trips and 77 fewer PM peak hour trips than the approved Project. The proposed 2,424 square feet of retail space will mainly serve the project residents and is not anticipated to generate additional trips. The Proposed Project would have a positive traffic impact because there will be a net traffic trip reduction compared to the approved Project. Udli ies and Surdn Systems The Proposed Project will have a positive impact to the utilities and service systems that serve the project because there will be 120 fewer residential units. As a result, there will be less consumption of water and less generation of wastewater and solid waste. The Proposed Project will have a positive impact on utilities and service systems compared to the approved Project. V. Summary of Findings Based on the environmental analysis, the Proposed Project will not result in any new or significant impacts that were not previously analyzed and adequately addressed in the Metro East Mixed Use Overlay Zone and First and Cabrillo Towers EIR and adopted March 19, 2007. The Proposed Project will provide 120 less residential units and 6,476 square feet of retail space less than the approved Project. As demonstrated by this Addendum: The Proposed Project does not constitute substantial changes that will require major revisions of the previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously significant effects; The Proposed Project does not constitute substantial changes with respect to the circumstances under which the Proposed Project is undertaken which will require major revisions of the previous F.IR due to the involvement of new significant environmental effects or a substantial increase in the severity of previous identified significant effects; and The Proposed Project does not constitute new information of substantial importance that show that the Proposed Project will have one of more significant effects not discussed in the 1901 East First Street — Addendum August 14, 2013 75A -146 Page 9 previous EIR or that the previously examined significant effects will be substantially more severe than shown in the previous EIR. Therefore, pursuant to CEQA Guidelines Section 15162 and 15164, the March 19, 2007 Final EIR and this Addendum are appropriate to analyze the potential environmental effects of the Proposed Project. Considered together, the March 19, 2007 Final EIR and this Addendum satisfy the City's obligation under CEQA to evaluate and address the potential significant environmental impacts of the Proposed Project. The facts cited above and provided in this Addendum allow the City to use an Addendum in accordance with Section 15164(x) of the State of California CEQA Guidelines for this project. The Santa Ana City Council serves as the CEQA Lead Agency for this project. It is recommended that the Addendum be adopted as the appropriate CEQA environmental determination for the development of 254 homes and 2,424 square feet of retail space on 5.1 acres. 1901 East First Street— Addendum August 14, 2013 75A -147 Page 10 APPENDIX A Addendum Checklist 75A -148 Environmental Checklist CEQA Compliance PLANNING DIVISION I. Project Title: 1901 East First Street II. Project Numbers: III, Lead Agency Name and Address: City of Santa Ana, 20 Civic Center Plaza Santa Ana CA 92702 IV. Contact and Phone Number: Cynthia Epveldauer 949 - 838 -1234 V. Project Location: 1901 East First Street - northeast corner of First Street and Cabrillo Park Drive VI. Project Sponsor's Name and Address: Lyon Communities, 4901 Birch Street Newport Beach CA VI. General Plan Designation: DC 3.0 — District Center VII. Zoning: C5, Metro East Mixed Use Overlay Zone 1 VIII. Description of Project: The project proposes the development of 254 multi- family units and 2,424 square feet of retail space on a 5.1 acre site. An existing 4 level parking structure with 664 existing parking spaces will be incorporated into the project. The project proposes to construct a five -story low -rise building with 240 units against the west side of the existing parking structure. A three -story building with 14 townhomes will be constructed along the south and east sides of the parking structure. A 5,000 square foot club house and recreation deck with a swimming pool will be constructed over the southern half of the existing parking structure and eliminate approximately 137 of the existing spaces In the parking structure. Once completed, the project will provide a total of 555 parking spaces, including 527 spaces In the existing parking structure and 26 surface parking spaces throughout the site. The proposed site plan is shown in Figure 1. IX. Surrounding Land Uses and Setting: North: Multi- tenant office buildings including Kaiser Permanents medical offices, a 2 -story parking structure, vacant land, multi - family housing, Cabrillo Park and single- family residences. South: Office, a private elementary school, a soccer field, and Interstate 5. West: Cabrillo Park Drive and west of Cabrillo Park Drive is the 15 -story Xerox Centre office building, Interstate 5, and further west is vacant land and commercial development. East Low rise office building adjacent to and east of the site and further east are commercial uses, including restaurants. X. Other agencies whose approval is required. The only project approvals are a development agreement amendment, vesting tentative tract map and a site plan by the City of Santa Ana. Page 1 75A -149 H w w Vi LL F_ V1 Q W ON O I It d Q C .y c\ a IO�Y1dfG Yln )e11 IUYLIM : l•Al ' WWII %wig axle .a cl r. _ KAI � 3Ntl13NH N1tlON I i :pi:uel .1 I i \ S K 4 •( ro 9L � 69 �� n i I I, I rFJ • f� ; Y � � p � � 2 1 o I: 133N1S 1SHII q• • t Ipry 11.K3fi1YP31U ' Lryil•X[Jf1 YA 3JJ k. _4N R90K 75A -150 C d r0 ma LL di 4a LC ti yV 4 S e I a z h ® Environmental Checklist CEQA Compliance The environmental factors checked below would be potentially affected by that project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist on the following pages. ❑ Aesthetics ❑ Mineral Resources ❑ Agricultural Resources ❑ Air Quality ❑ Biological Resources ❑ Cultural Resources ❑ Geology and Soils ❑ Hazards and Hazardous Materials ❑ Hydrology and Water Quality ❑ Land Use and Planning Environmental Determination ❑ Noise ❑ Population and Housing ❑ Public Services ❑ Recreation ❑ Transportation and Traffic ❑ Utilities and Service Systems ❑ Mandatory Findings of Significance On the basis of this initial evaluation, I find that: A. ❑ The proposed project COULD NOT have a significant effect on the environment and a NEGATIVE DECLARATION will be prepared. B. ❑ Although the proposed project could have a significant effect on the environment, there will not be a significant effect In this case because revisions to the project have been made by or agreed to by the applicant. A MITIGATED NEGATIVE DECLARATION will be prepared. C. ❑ The proposed project MAY have a significant effect on the environment and an ENVIRONMENTAL IMPACT REPORT is required. D. ❑ Although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR (EIR No. - ) pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the project, nothing further is required. E. ❑ Pursuant to Section 15162 of the CEQA Guidelines, an EIR (EIR No. - ) has been prepared earlier; however, subsequent proposed changes in the project and /or new information of substantial importance will cause one or more significant effects nopreMouslydiscussed. A SUBSEQUENT EIR shall be prepared. F. ❑ Pursuant to Section 15162 of the CEQA Guidelines, an EIR (EIR No. - ) has been prepared earlier, however, subsequent proposed changes in the project and/or new information of substantial importance will cause one or more significant effects no previously discussed. A SUBSEQUENT EIR shall be prepare '�&. N4� Phil Martin Printed Name August 8, 2013 Date Page 3 75A -151 Issues & Supporting Information Sources I. Aesthetics —Would the project: Environmental Checklist CEQA Compliance Less Than Potentially SignificantWth Less Than Significant Mitigation Significant Impact Incorporated Impact No Impact A. Have a substantial adverse effect on a scenic vista? ❑ ❑ ❑ B. Damage scenic resources, including but not limited to, trees, rock outpourings and historic buildings within a ❑ ❑ ❑ IN state highway? C. Substantially degrade the existing visual character or El El 11 quality of the site and its surroundings? D. Create a new source of substantial light or glare 11 El ❑ which would adversely affect day or nighttime views in ❑ ❑ ❑ the area? 11, Agricultural Resources — in determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model prepared by the California Department of Conservation as an optional model to use in assessing Impacts on agricultural farmland. Would the project: A. Convert Prime Farmland, Unique Farmland or Farmland of Statewide Importance (Farmland) to non- agricultural use? (The Farmland Mapping and El El El Monitoring Program in the California Resources Agency, Department of Conservation maintains detailed maps of these and other farmland categories) B. Conflict with existing zoning for agricultural use or a 11 El ❑ Williamson Contract? C. Involve other changes in the existing environment which, due to their location or nature, could individually E] El E] or cumulatively result in loss of Farmland, to non- agricultural use? Ill. Air Quality — Where available, the significant criteria established by the applicable air quality management or pollution control district may be relied upon to make the following determinations. Would the project: A. Conflict with or obstruct implementation of applicable Air Quality Attainment Plan or Congestion Management ❑ ❑ ❑ Plan? B. Violate any stationary source air quality standard or ❑ ❑ ❑ Page 4 75A -152 Issues & Supporting Information Sources Environmental Checklist CEQA Compliance Less Than Potentially Significantwith Less Than Significant Mitigation Significant Impact Incorporated Impact No Impact contribute to an existing or proposed air quality through habitat modifications, on any species violation? identified as a candidate, sensitive or special status El C. Result in a cumulatively considerable net increase of any El species in local or regional plans, policies or criteria pollutant for which the project region is non- regulations or by the California Department of Fish and attainment under an applicable federal or state ambient ❑ ❑ ❑ B. Have a substantial adverse impact on any riparian air quality standard (including releasing emission which habitat or natural community identified in local or exceeds quantitative thresholds for ozone precursors). regional plans, policies, and regulations or by the ❑ ❑ D. Expose sensitive receptors to substantial pollutant El El El IN concentrations? C. Adversely impact federally protected wetlands E. Create objectionable odors affecting a substantial number El 11 ❑ of people? coastal, etc.) either individually or in combination with El El IV. Biological Resources —Would the project: A. Have a substantial adverse impact, either directly or through habitat modifications, on any species identified as a candidate, sensitive or special status El El El species in local or regional plans, policies or regulations or by the California Department of Fish and Game or U.S. Fish and Wildlife Services? B. Have a substantial adverse impact on any riparian habitat or natural community identified in local or regional plans, policies, and regulations or by the ❑ ❑ ❑ California Department of fish and Game or U.S. Fish and Wildlife Service? C. Adversely impact federally protected wetlands (including, but not limited to, marsh, vernal pool, coastal, etc.) either individually or in combination with El El ❑ the known or probable impacts of other activities through direct removal, filling hydrological interruption, or other means? D. Conflict with any local policies or ordinances protecting biological resources, such as tree ❑ ❑ ❑ IN preservation policy or ordinance? E. Implementation of the proposed project would not result in a potential reduction in nesting opportunities for ❑ ❑ ❑ resident and migratory avian species of special concern? Page 5 75A -153 Environmental Checklist CEQA Compliance VI. Geology and Soils — Would the project: A. Expose people or structures to potential substantial Less Than adverse effects, Including the risk of loss, injury, or Issues & Supporting Information Sources Potentially Significant with Less Than death involving: Significant Mitigation Significant Impact Incorporated Impact No Impact V. Cultural Resources — Wouldtheproject: Earthquake Fault Zoning map issued by the State ❑ ❑ ❑ A. Cause a substantial adverse change In the significance El El El evidence of a known fault? of a historical resource as defined in Section 15064.57 2. Strong seismic ground shaking? B. Cause a substantial adverse change in the significance ❑ 3. Seismic - related ground failure, including El El of a unique archaeological resource pursuant to define ❑ ❑ ❑ Section 15064.5? 4. Landslides? ❑ ❑ ❑ C. Directly or indirectly disturb or destroy a unique El ❑ El loss of topsoil? paleontological resource or site? C. Would the project result in the loss of a unique D. Disturb any human remains, including those interred El 11 El outside of formal cemeteries? D. Is the project located on strata or soil that is unstable or VI. Geology and Soils — Would the project: A. Expose people or structures to potential substantial adverse effects, Including the risk of loss, injury, or death involving: 1. Rupture of a known earthquake fault, as delineated on the most recent Alquisl- Priolo Earthquake Fault Zoning map issued by the State ❑ ❑ ❑ Geologist for the area or based on other substantial evidence of a known fault? 2. Strong seismic ground shaking? ❑ ❑ ❑ 3. Seismic - related ground failure, including El El El liquefactlon7 4. Landslides? ❑ ❑ ❑ B. Would the project result in substantial soil erosion or the El El El loss of topsoil? C. Would the project result in the loss of a unique ❑ ❑ El geologicfeature7 D. Is the project located on strata or soil that is unstable or that would become unstable as a result of the project ❑ ❑ El and potentially result in on- or off -site landslide, lateral spreading, subsidence, liquefaction, or collapse? E. Where sewers are not available for the disposal of ❑ ❑ ❑ Page 6 75A -154 Environmental Checklist CEQA Compliance VIII. Hydrology and Water Quality — Would the project: A. Violate Regional Water Quality Control Board water El ❑ ❑ quality standards or waste discharge requirements? Page 7 75A -155 Less Than Issues & Supporting Information Sources Potentially Significant with Less Than Significant Mitigation Significant Impact Incorporated Impact No Impact wastewater, is the soil capable of supporting the use of septic tanks or alternative wastewater disposal systems? VII. Hazardous and Hazardous Materials —Would the project: A. Create a significant hazard to the public or the environment through the routine transport, use or ❑ ❑ ❑ disposal of hazardous materials? B. Emit hazardous emissions or handle hazardous or acutely hazardous materials, substance or waste El ID El within one- quarter mile of an existing or proposed school? C. Be located on a site which is located on a list of hazardous materials sites compiled pursuant to Government Code Section 659662.6 and, as a result, ❑ ❑ ❑ would It create a significant hazard to the public or the environment? 0. For a project located within an airport land use plan or where such a plan has not been adopted, within two miles where of a public airport or public use airport, ❑ ❑ ❑ would the project result in a safety hazard for people residing or working in the project area? E. For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or ❑ ❑ ❑ working in the project area? F. Would the project expose people or structures to a significant loss, injury, or death involving wildland fires, including where wildlands are adjacent to urbanized ❑ ❑ ❑ areas or where residences are intermixed with wildlands? G. Would the project impair implementation of or physically interfere with an adopted emergency response plan or ❑ ❑ ❑ emergency evacuation plan? VIII. Hydrology and Water Quality — Would the project: A. Violate Regional Water Quality Control Board water El ❑ ❑ quality standards or waste discharge requirements? Page 7 75A -155 Issues & Supporting Information Sources Environmental Checklist CEQA Compliance Less Than Potentially Significantwilh Less Than Significant Mitigation Significant Impact Incorporated Impact No Impact B. Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (i.e., the production ❑ ❑ ❑ rate of pre- existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? C. Substantially alter the existing drainage pattern of the site or area, including through the alteration of the El El ❑ course of stream or river, in a manner, which would result in substantial erosion or siltation on or off -site? D. Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of stream or river, or substantially increase the ❑ ❑ ❑ rate or amount of surface runoff in a manner, which would result in flooding on or off- site? E. Create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage El El ❑ systems or provide substantial additional sources of polluted run -off? F. Otherwise substantially degrade water quality? ❑ ❑ ❑ G. Place housing within a 100 -year floodplain, as mapped on a federal Flood Hazard Boundary or Flood El El El Insurance Rate Map or other flood hazard delineation map? H. Place within a 100 -year floodplain structures which 1:1 El El would Impede or redirect flood flows? I. Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as ❑ ❑ ❑ a result of failure of a levee or dam? J. Inundation by seiche, tsunami, or mudflow? ❑ ❑ ❑ IX. Land Use and Planning — Would the project: A. Physically divide an established community? ❑ ❑ ❑ B. Conflict with any applicable land use plan, policy, or El El El regulation of an agency with jurisdiction over the Page 8 75A -156 Environmental Checklist it Cmnpliance X. Mineral Resources —Would the project: A. Result in the loss of availability of a locally- important mineral resource recovery site delineated on a local ❑ ❑ ❑ general plan, specific plan, or other land use plan? XI. Noise —Would the project result in: Less Than Issues & Supporting Information Sources Potentially Significantwith Less Than Significant Mitigation Significant ❑ Impact Incorporated Impact No Impact project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an El El El environmental effect? C. Conflict with any applicable habitat conservation plan 11 El El or natural community conservation plan? in the project vicinity above levels existing without the ❑ X. Mineral Resources —Would the project: A. Result in the loss of availability of a locally- important mineral resource recovery site delineated on a local ❑ ❑ ❑ general plan, specific plan, or other land use plan? XI. Noise —Would the project result in: A. Exposure of persons to or generation of noise levels In excess of standards established in the local general 11 ❑ El or noise ordinance, or applicable standards of other agencies? B. Exposure of persons to or generation of excessive El El El groundborne vibration or groundborne noise levels? C. A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the ❑ ❑ ❑ project? D. A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing ❑ ❑ ❑ without project? E. For a project located within an airport land use plan or where such a plan has not been adopted, within two miles of a public airport or public use airport, would the ❑ ❑ ❑ ED project expose people residing or working in the project area to excessive noise levels? XII. Population and Housing —Would the project: A. Induce substantial population growth in an area, either directly (for example, by proposing new homes and El E) ❑ business) or Indirectly (for example, through extension of roads or other infrastructure)? B. Displace substantial numbers of existing housing, E] E) ❑ necessitating the construction of replacement housing Page 9 75A -157 t1� t Environmental Checklist CFQA Compliance XIII. Public Services A. Would the project result in substantial adverse physical Less Than Issues & Supporting Information Sources Potentially Significant with Less Than Significant Mitigation Significant Impact Incorporated Impact No Impact elsewhere? C. Displace substantial numbers of people, necessitating El ❑ ❑ the construction of replacement housing elsewhere? environmental impacts, in order to maintain acceptable XIII. Public Services A. Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service rations, response times or other performance objectives for any of the public service: 1. Fire protection? ❑ ❑ ❑ 2. Police protection? ❑ ❑ ❑ 3. Schools? ❑ ❑ ❑ 4. Parks? ❑ ❑ ❑ 5. Other public facilities? ❑ ❑ ❑ XIV. Recreation A. Would the project increase the use of existing neighborhood and regional parks or other recreational El El El facilities such that substantial physical deterioration of the facility would occur or be accelerated? B. Does the project include recreational facilities or require the construction or expansion of recreational ❑ ❑ ❑ facilities which might have an adverse physical effect on the environment? XV. Transportation /Traffic A. Cause an increase in traffic which is substantial In relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in ❑ ❑ ❑ either the number of vehicle trips, the volume to capacity ration on roads, or congestion at intersections)? Page 10 75A -158 Environmental Checklist CEQA Compliance Issues & Supporting Information Sources B. Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? C. Result in a change in air traffic patterns, Including either an increase in traffic levels or a change in location that results in substantial safety risks? D. Substantially increase hazards to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? E. Result in Inadequate emergency access? F. Result in inadequate parking capacity? G. Conflict with adopted policies supporting alternative transportation (e.g., bus turnouts, bicycle racks)? XVI. Utilities and Service Systems A. Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? B. Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? C. Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? D. Are sufficient water supplies available to serve the project from existing entitlements and resources or are new or expanded entitlements needed? E. Result in the determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? F. Is the project served by a landfill with sufficient permitted capacity to accommodate the project's sold Page 11 75A -159 Less Than Potentially Significant with Less Than Significant Mitigation Significant Impact Incorporated impact No Impact ❑ ❑ ❑ ED ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Environmental Checklist CEQA Compliance References A. Metro East Mixed Use Overlay Zone, Final EIR, March 2007, Volume I. B. Metro East Mixed Use Overlay Zone, First and Cabrillo Towers Project, Final EIR, March 2007. Volume II. Page 12 75A -160 Less Than Issues & Supporting Information Sources Potentially Significant with Less Than Significant Mitigation Significant Impact Incorporated Impact No Impact waste disposal needs? G. Comply with federal, state and local statutes and El E) El regulations related to solid waste? XVII. Mandatory Findings of Significance A. Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self - sustaining levels, threaten to eliminate a plant or animal community, ❑ ❑ ❑ reduce the number or restrict the range of a rare or endangered plant or animal or eliminate Important examples of the major periods of California history or prehistory? B. Does the project have impacts that are individually limited but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a 11 El El project are considerable when viewed in connection with the effects of past projects, effects of other current projects and the effects of probable future projects.) C. Does the project have environmental effects which will cause substantial adverse effects on human beings, ❑ ❑ ❑ either direcliyor indirectly? References A. Metro East Mixed Use Overlay Zone, Final EIR, March 2007, Volume I. B. Metro East Mixed Use Overlay Zone, First and Cabrillo Towers Project, Final EIR, March 2007. Volume II. Page 12 75A -160 APPENDIX B Air Quality/ Greenhouse Gas Report 75A -161 AIR QUALITY and GREENHOUSE GAS EMISSIONS IMPACT ANALYSIS 1901 EAST FIRST STREET CITY OF SANTA ANA, CALIFORNIA Project No.: P13-024A 75A -162 Giroux & Associates 1820 E Garry St., #211 Santa Ana, CA 92705 Prepared for: Phil Martin & Associates Attn: Phil Martin 3002 Dow Avenue, Suite 122 Tustin, CA 92780 Date: August 8, 2013 INTRODUCTION The proposed 1901 East First Street project proposes the development of 343,675 square feet of residential use (254 units) and 2,424 square feet of retail space on a 5.1 acre site at the northeast corner of First Street and Cabrillo Park Drive. "the project proposes to construct two five -story low -rise buildings totaling 240 units on the west side of the existing 4 level parking structure. Fourteen three -story townhomes will be constructed along the south and east sides of the parking structure. This report calculates the air quality and greenhouse gas (GHG) emissions from the proposed action using the currently approved California Emissions Model (CalEEMod). Air pollution emissions from project construction and operation are compared to SCAQMD CEQA significance thresholds. There are no adopted GHG significance thresholds for CEQA purposes and the City of Santa Ana has not yet adopted a climate action plan (CAP). The SCAQMD has developed advisory thresholds which are used as a benchmark for analyzing GHG emissions significance. As noted in the following analysis, the limited scope of the proposed project does not cause any significance thresholds to be exceeded for either construction of operations. However, because of the non - attainment status of the air basin for photochemical smog and particulate matter, the use of reasonably available control measures is recommended for project construction activities. AIR QUALITY IMPACT STANDARDS OF SIGNIFICANCE Air quality impacts are considered "significant" if they cause clean air standards to be violated where they are currently met, or if they "substantially" contribute to an existing violation of standards. Any substantial emissions of air contaminants for which there is no safe exposure, or nuisance emissions such as dust or odors, would also be considered a significant impact. Appendix G of the California CEQA Guidelines offers the following five tests of air quality impact significance. A project would have a potentially significant impact if it: a. Conflicts with or obstructs implementation of the applicable air quality plan. b. Violates any air quality standard or contributes substantially to an existing or projected air quality violation. c. Results in a cumulatively considerable net increase of any criteria pollutants for which the project region is non - attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors). d. Exposes sensitive receptors to substantial pollutant concentrations. e. Creates objectionable odors affecting a substantial number of people. 1%11 E I- Sk Ae -1- 75A -163 Primary Pollutants Air quality impacts generally occur on two scales of motion. Near an individual source of emissions or a collection of sources such as a crowded intersection or parking lot, levels of those pollutants that are emitted in their already unhealthful form will be highest. Carbon monoxide (CO) is an example of such a pollutant. Primary pollutant impacts can generally be evaluated directly in comparison to appropriate clean air standards. Violations of these standards where they are currently met, or a measurable worsening of an existing or future violation, would be considered a significant impact. Many particulates, especially fugitive dust emissions, are also primary pollutants. Because of the non - attainment status of the South Coast Air Basin (SCAB) for PM -10, an aggressive dust control program is required to control fugitive dust during project construction. Secondary Pollutants Many pollutants, however, require time to transform from a more benign form to a more unhealthful contaminant. Their impact occurs regionally far front the source. Their incremental regional impact is minute on an individual basis and cannot be quantified except through complex photochemical computer models. Analysis of significance of such emissions is based upon a specified amount of emissions (pounds, tons, etc.) even though there is no way to translate those emissions directly into a corresponding ambient air quality impact. Because of the chemical complexity of primary versus secondary pollutants, the SCAQMD has designated significant emissions levels as surrogates for evaluating regional air quality impact significance independent of chemical transformation processes. Projects with daily emissions that exceed any of the following emission thresholds are recommended by the SCAQMD to be considered significant under CEQA guidelines. 1%1 E I' SI. AQ Daily Emissions Thresholds Pollutant Construction Operations ROG 75 55 NOx 100 55 CO 550 550 PM -10 150 150 PM -2.5 55 55 Sox I50 150 Lead 3 3 Source: SCAQMD CEQA Air Quality Handbook, November, 1993 Rev. 75A -164 CONSTRUCTION ACTIVITY IMPACTS Dust is typically the primary concern during construction of new homes and infrastructure. Because such emissions are not amenable to collection and discharge through a controlled source, they are called "fugitive emissions." Emission rates vary as a function of many parameters (soil silt, soil moisture, wind speed, area disturbed, number of vehicles, depth of disturbance or excavation, etc.). These parameters are not known with any reasonable certainty prior to project development and may change from day to day. Any assignment of specific parameters to an unknown future date is speculative and conjectural. Because of the inherent uncertainty in the predictive factors for estimating fugitive dust generation, regulatory agencies typically use one universal "default" factor based on the area disturbed assuming that all other input parameters into emission rate prediction fall into midrange average values. This assumption may or may not be totally applicable to site - specific conditions on the proposed project site. As noted previously, emissions estimation for project - specific fugitive dust sources is therefore characterized by a considerable degree of imprecision. Average daily PM -10 emissions during site grading and other disturbance average about 10 pounds per acre. This estimate presumes the use of reasonably available control measures (BACMs). The SCAQMD requires the use of best available control measures (BACMs) for fugitive dust from construction activities. With the use of BACMs, fugitive dust emissions can be reduced to 1 -2 pounds per day per acre disturbed. Current research in particulate- exposure health suggests that the most adverse effects derive fi•om ultra -small diameter particulate matter comprised of chemically reactive pollutants such as sulfates, nitrates or organic material. A national clean air standard for particulate matter of 2.5 microns or smaller in diameter (called "PM -2.5 ") was adopted in 1997. A limited amount of construction activity particulate matter is in the PM -2.5 range. PM -2.5 emissions are estimated to comprise 10 -20 percent of PM -10. In addition to fine particles that remain suspended in the atmosphere semi - indefinitely, construction activities generate many larger particles with shorter atmospheric residence times. This dust is comprised mainly of large diameter inert silicates that are chemically non - reactive and are further readily filtered out by human breathing passages. These fugitive dust particles are therefore more of a potential soiling nuisance as they settle out on parked cars, outdoor furniture or landscape foliage rather than any adverse health hazard. Exhaust emissions will result from on and off -site heavy equipment. The types and numbers of equipment will vary among contractors such that such emissions cannot be quantified with certainty. Demolition and grading activities will shift towards construction and paving, etc. The CaIEEMod was developed by the SCAQMD and provides a model to calculate both construction emissions and operational emissions from a residential land use project. It calculates both the daily maximum and annual average emissions for criteria pollutants as well as total or annual greenhouse gas (GHG) emissions. The CalEEMod 201 1.1.1 computer model was 75A -165 used to calculate emissions from the prototype construction equipment fleet and schedule anticipated by CalEEMod for a residential land use consisting of 254 condo /townhouse units and 2,400 square feet of retail space as shown below. The equipment fleet shown is CalEEMod's default fleet a project of this size. CalEEMod Equipment Fleet Demolition 72,000 sf (20 Days) 2 Excavators 2 Dozers I Concrete Saw Grading 2,017 CY Export (30 (lays) I Excavator I Dozer I Grader 3 Ttxctor /Loader /Backhoes Construction (230 (lays) I Crane 3 Forklifts I Generator Set 3 Tractor /Loader /Backhoes I Welder Paving (20 days) 2 Pavers 2 Paving equipment 2 Rollers Utilizing this indicated equipment fleet the following worst case daily emissions were calculated by CaIEEMod. The off -road equipment emissions load factors were adjusted in CalEEMod to account for a 33 percent reduction attributable to overestimation of load factors, which CARB has indicated to be appropriate,l Construction Activity Emissions Maximum Daily Emissions (pounds /day) Maximal Construction Emissions ROG NOx CO SO= PM -10 PM -2.5 2014 Unmitigated 6.1 49.3 32.9 0.1 14.2 5.2 Mitigated 6.1 49.3 32.9 0.1 11.6 3.2 2015 Unmitigated 51.6 1 27.4 1 31.6 1 0.1 1 4.7 2.0 ' In September 2010, the CARB announced that its methods used to estimate the load factor for off -road equipment were incorrect and led to an overestimate of emissions by a factor of 33 percent. CARB is currently revising their emissions model, a modified OFFROAD which has not yet been released. CalEEMod is based on the historical OFFROAD. I'm EI- S1 AQ -5 75A -166 Mitigated 51.6 27.4 1 31.6 0.1 4.7 2.0 SCAQMD Thresholds 75 100 550 150 150 ' 15 Peak daily construction activity emissions are estimated be below SCAQMD CEQA thresholds without the need for added mitigation. The only model -based mitigation measured applied for this project was watering exposed dirt surfaces at least three times per day as required per SCAQMD Rule 403 (Fugitive Dust), to minimize the generation of fugitive dust. LOCALIZED SIGNIFICANCE THRESHOLDS The SCAQMD has developed analysis parameters to evaluate ambient air quality on a local level in addition to the more regional emissions -based thresholds of significance. These analysis elements are called Localized Significance Thresholds (LSTs). LSTs were developed in response to Governing Board's Environmental Justice Enhancement Initiative 1 -4 and the LST methodology was provisionally adopted in October 2003 and formally approved by SCAQMD's Mobile Source Committee in February 2005. Use of an LST analysis for a project is optional. For the proposed project, the primary source of possible LST impact would be during construction. LSTs are applicable for a sensitive receptor where it is possible that an individual could remain for 24 hours such as a residence, hospital or convalescent facility. LST screening tables are available for 25, 50, 100, 200 and 500 teeter source- receptor distances. For this project the nearest sensitive use would be the residences southeast of the project site at approximately 1200 feet from the closest site perimeter along Moir Court, and therefore, as a conservative approach, the receptor distance of 200 meters was selected for analysis. LSTs are only applicable to the following criteria pollutants: oxides of nitrogen (NOx), carbon monoxide (CO), and particulate matter (PM -10 and PM -2.5). LSTs represent the maximum emissions from a project that are not expected to cause or contribute to an exceedance of the most stringent applicable federal or state ambient air quality standard, and are developed based on the ambient concentrations of that pollutant for each source receptor area and distance to the nearest sensitive receptor. The SCAQMD has issued guidance on applying CalEEMod to LSTs. LST pollutant screening level concentration data is currently published for I, 2 and 5 acre sites for varying distances. Since CalEEMod calculates construction emissions based on the number of equipment homy and the maximum daily soil disturbance activity possible for each piece of equipment, the following tables should be used to determine the maximum daily disturbed- acreage for comparison to LSTs. Maximum Daily Disturbed Acreage Equipment T e AcreslS -hr -day Tractor 0.5 Graders 0.5 1W1 I'SLAQ -6- 75A -167 Rubber Tired Dozers 0.5 Sera ers I Based on this table, the proposed will result in a maximum of 1 acre disturbed during peak construction grading activity (1 dozer x 0.5 + I grader x 0.5 = I acres disturbed). Per LST guidance, only on -site construction activity is considered in the LST analysis. On -site construction emissions are provided in the CalEEMod output files and do not include sources such as on -road haul, worker commuting or vendor delivery emissions. Therefore, the following thresholds and emissions are determined (pounds per day). LST and Project Emissions CalEEMod Output in Appendix (maximum mitigated emissions from on -site construction) LSTs were compared to the maximum daily construction activities. As seen above, emissions are below the LST for construction. The only mitigation measure applied was the following dust suppression measure: • Water exposed surfaces at least 3 times per day for fugitive dust suppression Facilities such as churches are not included in the definition of sensitive receptor because church employees do not typically remain on site for a full 24 homy, but are present for shorter periods of time, such as eight hours. However, by applying a 24 -hour standard for pollutants with shorter averaging periods, such as NO2 and CO, LSTs could also be applied to these receptors since it is reasonable to assume that an employee at these sites could be present for periods of one to eight hours. The Orange County Southern Baptist Church is immediately east of the site. Therefore, comparing LSTs for CO and NOx for a source receptor distance of 25 meters would provide the comparison (pounds per day). Again, LST emissions are much less than significance thresholds. 1901 E 1 -51, AQ 75A -168 CO NOx PM -10 PM -2.5 LST Thresholds Central Orange County 1 acre 200 meters 2,109 123 60 22 Max On -Site Emissions Demolition Unmitigated 25 42 6 2 Mitigated 25 42 3 2 Grading Unmitigated 20 31 8 5 Mitigated 20 31 4 3 Construction Unmiti ated 19 25 2 2 Mitigated 19 25 2 2 CalEEMod Output in Appendix (maximum mitigated emissions from on -site construction) LSTs were compared to the maximum daily construction activities. As seen above, emissions are below the LST for construction. The only mitigation measure applied was the following dust suppression measure: • Water exposed surfaces at least 3 times per day for fugitive dust suppression Facilities such as churches are not included in the definition of sensitive receptor because church employees do not typically remain on site for a full 24 homy, but are present for shorter periods of time, such as eight hours. However, by applying a 24 -hour standard for pollutants with shorter averaging periods, such as NO2 and CO, LSTs could also be applied to these receptors since it is reasonable to assume that an employee at these sites could be present for periods of one to eight hours. The Orange County Southern Baptist Church is immediately east of the site. Therefore, comparing LSTs for CO and NOx for a source receptor distance of 25 meters would provide the comparison (pounds per day). Again, LST emissions are much less than significance thresholds. 1901 E 1 -51, AQ 75A -168 LST and Project Emissions Church Uses (pounds /day) Allowable LST Emissions 25 meters, l acre CO NOx 485 81 Max On -Site Emissions so, PM -10 Demolition CO2 Area Unmitigated 25 42 Mitigated 25 42 Grading Energy 0.2 Unmitigated 20 31 Mitigated 20 31 Construction 7.3 13.2 Unmitigated 19 25 Mitigated 1 19 25 CaIEEMod Output in Appendix (maximum mitigated emissions from on -site construction) OPERATIONAL IMPACTS Project uses would generate 1,067 daily trips utilizing trip generation numbers provided by the project traffic consultant. Uses with a residential component also generate small quantities of area source emissions derived from organic compounds from cleaning products, landscape maintenance, etc. The contribution of this source is small and is incorporated in the analysis below. Operational emissions for proposed uses were calculated using CaIEEMod2011.1.1 for an assumed project build -out year of 2016. The table below shows operational emissions for the proposed residential and retail uses and assumes inclusion of gas hearths rather than wood burning fireplaces. The project would not cause any operational emissions to exceed their respective SCAQMD CEQA significance thresholds. Operational emissions impacts are judged to be less than significant. Daily Operational Impacts (254 Units and 2,400 square feet Retail use, 1,067 Daily Trips) Source: CaIEEMod Output in Appendix M I. rat AQ -a 75A -169 O erational Emissions Ibs /da Source ROG NOx CO so, PM -10 PM -2.5 CO2 Area 6.8 0.3 21.5 0.0 0.4 0.4 4,909.4 Energy 0.2 1.6 0.7 0.0 0.1 0.1 2,112.0 Mobile 7.3 13.2 71.7 0.2 17.7 1.3 14,066.6 Total 14.3 15.1 94.1 0.2 18.2 1.8 21,088.0 SCAQMD Threshold 55 55 550 I50 _ 150 55 - Exceeds Threshold? No No No No No No NA Source: CaIEEMod Output in Appendix M I. rat AQ -a 75A -169 CONSTRUCTION EMISSIONS MITIGATION As identified above, construction activities are not anticipated to cause dust emissions to exceed SCAQMD CEQA thresholds. Nevertheless, mitigation through enhanced dust control measures is recommended for use because of the non- attainment status of the air basin. Recommended mitigation includes: Fugitive Dust Control • Apply soil stabilizers or moisten inactive areas. • Prepare a high wind dust control plan. • Address previously disturbed areas if subsequent construction is delayed. • Water exposed surfaces as needed to avoid visible dust leaving the construction site (typically 3 times/day). • Cover all stock piles with tarps at the end of each day or as needed. • Provide water spray during loading and unloading of earthen materials. • Minimize in -out traffic from construction zone • Cover all trucks hauling dirt, sand, or loose material and require all trucks to maintain at least two feet of freeboard • Sweep streets daily if visible soil material is carried out from the construction site Similarly, construction activity ozone precursor emissions (ROG and NOx) are calculated to be below SCAQMD CEQA thresholds. However, because of the non - attainment for photochemical smog, the use of reasonably available control measures for diesel exhaust is recommended. Combustion emissions control includes: Exhaust Emissions Control • Utilize well -tuned off -road construction equipment. • Establish a preference for contractors using Tier 3 or better heavy equipment. • Enforce 5- minute idling limits for both on -road trucks and off -road equipment. OPERATIONAL EMISSIONS MITIGATION Operational emissions would not exceed their respective SCAQMD significance thresholds with the following mitigation measure: • Utilize gas hearths rather than wood burning fireplaces for any residential use. 1%t E VSS AQ -9' 75A -170 GREENHOUSE GAS EMISSIONS "Greenhouse gases" (so called because of their role in trapping heat near the surface of the earth) emitted by human activity are implicated in global climate change, commonly referred to as "global warming." These greenhouse gases contribute to an increase in the temperature of the earth's atmosphere by transparency to short wavelength visible sunlight, but near opacity to outgoing terrestrial long wavelength heat radiation in some parts of the infrared spectrum. The principal greenhouse gases (GHGs) are carbon dioxide, methane, nitrous oxide, ozone, and water vapor. For purposes of planning and regulation, Section 15364.5 of the California Code of Regulations defines GHGs to include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons , perfluorocarbons and sulfur hexafluoride. Fossil fuel consumption in the transportation sector (on -road motor vehicles, off - highway mobile sources, and aircraft) is the single largest source of GHG emissions, accounting for approximately half of GHG emissions globally. Industrial and commercial sources are the second largest contributors of GHG emissions with about one - fourth of total emissions. California has passed several bills and the Governor has signed at least three executive orders regarding greenhouse gases. GHG statues and executive orders (EO) include AB 32, SB 1368, EO S- 03 -05, EO S -20 -06 and EO SA 1-07. AB 32 is one of the most significant pieces of environmental legislation that California has adopted. Among other things, it is designed to maintain California's reputation as a "national and international leader on energy conservation and environmental stewardship." It will have wide- ranging effects on California businesses and lifestyles as well as far reaching effects on other states and countries. A unique aspect of AB 32, beyond its broad and wide- ranging mandatory provisions and dramatic GHG reductions are the short time fi•ames within which it must be implemented. Major components of the AB 32 include; • Require the monitoring and reporting of GHG emissions beginning with sources or categories of sources that contribute the most to statewide emissions. • Requires immediate "early action" control programs on the most readily controlled GHG sources. • Mandates that by 2020, California's GHG emissions be reduced to 1990 levels. • Forces an overall reduction of GHG gases in California by 25 -40 %, from business as usual, to be achieved by 2020. • Must complement efforts to achieve and maintain federal and state ambient air quality standards and to reduce toxic air contaminants. Statewide, the framework for developing the implementing regulations for AB 32 is under way. Maximum GHG reductions are expected to derive from increased vehicle fuel efficiency, from greater use of renewable energy and from increased structural energy efficiency. Additionally, through the California Climate Action Registry (CCAR now called the Climate Action Reserve), M E V 5 AQ - it, - 75A -171 general and industry- specific protocols for assessing and reporting GHG emissions have been developed. GHG sources are categorized into direct sources (i.e. company owned) and indirect sources (i.e. not company owned). Direct sources include combustion emissions from on -and off -road mobile sources, and fugitive emissions. Indirect sources include off -site electricity generation and non - company owned mobile sources. Greenhouse Gas Emissions Significance Thresholds In response to the requirements of SB97, the State Resources Agency developed guidelines for the treatment of GHG emissions under CEQA. These new guidelines became state laws as part of Title 14 of the California Code of Regulations in March, 2010. The CEQA Appendix G guidelines were modified to include GHG as a required analysis element. A project would have a potentially significant impact if it: • Generates GHG emissions, directly or indirectly, that may have a significant impact on the environment, or, • Conflicts with an applicable plan, policy or regulation adopted to reduce GHG emissions. Section 15064.4 of the Code specifies how significance of GHG emissions is to be evaluated, The process is broken down into quantification of project - related GHG emissions, making a determination of significance, and specification of any appropriate mitigation if impacts are found to be potentially significant. At each of these steps, the new GHG guidelines afford the lead agency with substantial flexibility. Emissions identification may be quantitative, qualitative or based on performance standards. CEQA guidelines allow the lead agency to "select the model or methodology it considers most appropriate." The most common practice for transportation/combustion GHG emissions quantification is to use a computer model such as CalEEMod, as was used in the ensuing analysis. The significance of those emissions then must be evaluated; the selection of a threshold of significance must take into consideration what level of GHG emissions would be cumulatively considerable. The guidelines are clear that they do not support a zero net emissions threshold. If the lead agency does not have sufficient expertise in evaluating GHG impacts, it may rely oil thresholds adopted by an agency with greater expertise. On December 5, 2008 the SCAQMD Governing Board adopted an Interim quantitative GHG Significance Threshold for industrial projects where the SCAQMD is the lead agency (e.g., stationary source permit projects, rules, plans, etc.) of 10,000 Metric Tons (MT) CO2 equivalent/year. In September 2010, the Working Group released revisions which recommended a threshold of 3,500 MT COze for residential projects. This 3,500 MT /year recommendation has been used as a guideline for this analysis. Some jurisdictions have adopted a numerical annual GHG emissions level as a CEQA threshold of significance. Others have taken the numerical threshold to be an indicator level that signals a requirement for incorporating reasonable and feasible enhanced "greed' building practices without formal adoption of an absolute significance standard. IMI F, P St, AQ . H. 75A -172 Construction Activity GHG Emissions The build -out timetable for this project is estimated by CalEEMod to be between 1 and 2 years. During project construction, the CalEEMod computer model predicts that the construction activities will generate the annual CO2(e) emissions identified below. Construction Emissions (Metric Tons CO2(e)) 'CaIFRIvIod Output provided in appendix SCAQMD GHG emissions policy from construction activities is to amortize emissions over a 30 -year lifetime. The amortized level is also provided. GHG impacts from construction are considered individually less - than - significant. Project Operational GHG Emissions The input assumptions for operational GHG emissions calculations, and the GHG conversion from consumption to annual regional CO2(e) emissions are summarized in the CalEEMod output files found in the appendix of this report. The total operational and annualized construction emissions are identified below. Operational Emissions Consumption Source CO2(0 Year 2014 690.3 Year 2015 95.2 Overall Total 785.5 Amortized 26.2 'CaIFRIvIod Output provided in appendix SCAQMD GHG emissions policy from construction activities is to amortize emissions over a 30 -year lifetime. The amortized level is also provided. GHG impacts from construction are considered individually less - than - significant. Project Operational GHG Emissions The input assumptions for operational GHG emissions calculations, and the GHG conversion from consumption to annual regional CO2(e) emissions are summarized in the CalEEMod output files found in the appendix of this report. The total operational and annualized construction emissions are identified below. Operational Emissions Consumption Source MT CO2 (e) tons/ ear Area Sources 172.1 Energy Utilization 673.4 Mobile Source 1644.1 Solid Waste Generation 54.3 Water Consumption 112.9 Annualized Construction 26.2 Total 2,683.0 Total project GHG emissions are less than the proposed significance threshold of 3,500 MT. GHG emissions for the proposed project are less than significant. 1901 E I- S' AQ 13- 75A -173 Rol d I° S4 AQ APPENDIX CalEEMod2011.1.1 Computer Model Output U- 75A -174 C2 \a a) \{ �/ f3 LL k { / k ; E k 75Q.175 \ : / § \�$ ca - � )� ) � \ Ao r - ( § N � 4 ILk� §j) \2 Z� R- 22a | ' /\K) 75Q.175 d a 3 O N !O d O J M d d 0 LL M c IC U C -Ti 2 C U v E W m 0 N d N C E n W rn (L N N J a M 01 G a E W 0 4L tt� O O W ° N Q O • m JI U_ w Ti � 4 U g ry :R gUg N S 5 r: m " yQ n ry LL Z Z:U W C14 H E E 2 > f) ° E O CO! :_ o I� E V w n d _ > O - r /; \ 7 U1 C INl1 E W h r G U W 0 r [ O (y N 4'~ y ° N Q O • m JI U_ w � 4 U g ry :R gUg ,m S 5 r: m " yQ n ry bN Z Z:U 4'~ ° Y 1 N e ry Ti w� Wt w a. o� N ar cs Ea ;d d LL y O ° wr d y d z a 0 75A -176 N O .f C O U C 0 U O N ri Q m W O 0 O � m m r > O E N 7 N v ..Y a O c 2 4 U ;o 8 f n �m ,e rl m0 ZU � °o • °o e °4 N O U b m F •0 N �� o 0 F . � N b Zb •O o LL� •S •S �n N 1N N m 'o no • aF ry �g ... y yN ppa Am LLd �6 N NO 4f .O p Y N b •N A O z Or rc m 2 � o ri Q m W O 0 O � m m r > O E N 7 N 75A -177 N N O M o •o 'a 'gin r n rl q. N n �•iR �$_ �N .m N F . � N b n U •S •S �n N 1N N m 'o no • aF c ... y yN �6 4f .O p Y N p p .. . m 2 .........y...... 75A -177 N N O M A C CL O m O N N Q� a c 0 u 7 Y c C O A 75A -178 C Q u N C O U 7 A c A F_ i d Q a a w N O a a 'Q 'n nN p •a ,� �N U •� .� b .q..q..q.. • n 'o •o yV �d q NN p n m O -gib ^ N U •N •Ny •N •0 'cai �m y' Gb •ID F.......... • iu �ffi �$ .d a - o_ CS •o .,o •BOO H O :O 'S• 'e :O O Ts ?N W LLd Y p O O N O N O p • ;h p .0 U M z ;o ;o ,w Q� a c 0 u 7 Y c C O A 75A -178 C Q u N C O U 7 A c A F_ i d Q a a w N O a ! k � : ) 0 ) 0 : 2 /§6 \ jd § § § \ s \ \�}) ci ' \§} \ \ \ § ) 0 ) 0 : 75Q.179 2 § \ s \ \�}) ci \§} \ \ \ § 75Q.179 a O N C O SZ O E 0 N M N • pl A O O O, N Z $ ;O 4 U U � �r ry O U N f ri C{ ZU Y N O ay ry Ne � 6 ci ;o b m' O m N S �f o m 4 O •O 44 LL6yy O� ;0 W d m4 C O IL N' ;O S N U ;O O' Z- a o z ci U o Y • qr o LL U c 0 U e U a� A 6 75A -180 N O /M ° 4 O $ ;O 'O U � U N f ZU N •k -i � 6 ci ;o m' O N S o m O •O LL6yy LL ; c ; 0 0 N' ;O S O U O' Z- K ci 75A -180 N O /M v N OI C A (7 {h {h 2C L C U �E e U Z - -Y 'O O `L U N F 'O ' -Y - m O U o f y°• •5 0 ;c ° o 4 C4 f zU ;� e m .y m 4� �4 u , ° •° R O N �N O O LL6 O e °O s 4 ;O �4 o $ Y.d O N u y.. .y ;e o � a LL 2C L C U �E e 75A -181 N O Z - -Y 'O O `L U F ' -Y - m Z U. N •5 0 ;c ° o 4 C4 Mo. n c ;o m Y 4 u , ° •° R O N ........ °O s 75A -181 N O 0 N OI C U' M Cl) C C U C V2 U O u ;a O •O e N Z :O U U O S N U d o m ZO y N aF ° •o e �N' m og d c ;o li 1F w° $ •$ •OO 4 M LLd ;8 LL0. o •S 0 N �o 'Fi O U 8 $ $ IL O '$ •S K O \ g 0 U r Ob •9 C V2 U O 75A -182 N w 0 m V :N o Z :O U O N fy ZO m :N N m ;o 1F w° $ •$ •OO 4 M LLd ;8 = o ci �o 8 $ $ IL O '$ •S Q O \ g 0 U ......... 75A -182 N w 0 m O N C 0 v w c 0 V m c_ Ma m a M i m g ry .N m O O •E N O YH1 U S V g O Z C F ' 8 R U ZU � ;T N yO yO m of •° o r pi e 0 �� o o q LL LL • e N U S d n m o ` 0 N 6� O o y W o o ;c m O i u� LLeP .' 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ZU 8 .E N ;4 4 A LLLL 'o O� aF' O O bS LL's 'o 'o p ee N :c L. o 0 q Z ¢ ;o d Y O n r 3 d 7 A c O A rn V n 75A -196 h N 0 N N O � m V Z 2 U Np . m a p U F N m U• V Q� 2 s X 8 2 2 K � �m o $ E •R• goo 1 0 ~ m N 7 ryC J T v a 3 �E C N 7 IN 75A -197 N N 0 to N V 2 Np N u O N U• s X 2 K �m $ E o goo 1 0 m 75A -197 N N 0 to N d 9 C A J A N r G v 3 c a V 3 U) 9 A Cd i C O A m g W 75A -198 yA Z 0 VI V O V p Z � `o N •O N U N s w • n� a � .o e H a O N z o a U z T 0 3? O z 0 o � b� �0O a g S N m _ g F = G v 3 c a V 3 U) 9 A Cd i C O A m g W 75A -198 yA Z 0 VI V N 0 a N o o � u N U w • n� a H a O w z o a u z T 0 o � a g N m _ g N 0 a N N 7 C a r A N 00 75A -199 N O N N U n a 2. 5 �c U � C g U �o � N n h- f N O O U O U O z g 0 rc u o O .N •h b q� > >O O rN 2 � $ h U 75A -199 N O N N U n a 2. �c � C 4 U �o � O U n f O O U g u b q� > >O O rN $ h a •� r b ry 75A -199 N O N N , O N N n d N O to Q E E c ' A y fA 2, G d � � O � U r y m a+ G 12 lL O N O W W m U t2 LU W w m U c 0 n a W m E 0 m U E m 0 N E O U N o CV C R 0 O p °1 a N u 'u 3 a V N C i E A E 0 d � e C w O $ 7 E_ N U M � r 75A -200 Ti y ci N C §; CD L m � 41 u � m � R IL` O � r c 0 n a W m E 0 m U E m 0 N E O U N o CV C R 0 O p °1 a N u 'u 3 a V N C i E A E 0 d � e C w O $ 7 E_ N U M � r 75A -200 N M- O d a i N R O O O D 0 N c o 3 m J V (n M � « N O � 5 C O U m ('S• C U y � O � MN of W 0 O G N O O N > N O1 C E D N Lb N C N a V.` a W E p E Cl m A U � E a. Q m O O a O a Q m d n` D O` O Z c U U m c O N M- O v D 3 N O L U ro d O J M 01 '01 V N 45 LL M cc L U C O 2 C O U c E a W 0 I d N LL C O O K O 41 n UO r d o � N � 0 m a c 'o a E c� a C e le U E n C N 0 u- e •� w U' o T p E z F 7 E a •X b Q N V b Y r ❑ OC c C O r o H n d U > 4 � � v a � y N C S N E w 7 � c O U d 0 O 04 N C e le U E 75A -201 N O N n N 2 u- e •� U' o p z F bN a b Q N V b Y m 6 2aa ii D- Z tF ° Z 6 � LLd U O " C a a rc � 75A -201 N O N c 0 W T E 0 E C O Ul C O U O fV 75A -202 N w O m ° 'g N O F _ N mu; z - .0 -4 n N - U e °o d ;o N ak z LL a �ry i N • N f 75A -202 N w O m A 0 A n O i O N N �E C 0 f ° o p � 'o ° ... N. H p Z 6 ci U ,o O O �( U m •�i m •m mU b ''� ;x 2V o N U C O � eV • a 0 N O a a u N r1 m N a �H "ten �N4 n IL LL W Y IY O-y N mZ; IL LL '�R o LL Go � µ N O . Y �� Z •b b LLLL � o °v m n Z • 'Cl u C 0 f 75A -203 C 0 u N c O V O M N O V Y ♦ NN a '8 H p Z 6 ci U ,o O U m •�i h mU n d Z m d ♦ N � V o N U C O 0 ry N ;O "ten IL LL Y IY O-y a� 6 � µ N O . 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R 3 N d 7 H A d O A Ol 13 Cd O a; 75A -220 N O N APPENDIX C Traffic Report 75A -221 FIRST STREET APARTMENTS CITY OF SANTA ANA TRAFFIC ANALYSIS 2nd SUBMITTAL CASE NUMBER: Prepared for: Lyon Communities 4901 Birch Street Newport Beach, CA 92660 (949) 252 -9101 M Pirzadeh & Associates, Inc. 30 Executive Park, Suite 270 hviue, California 92614 -4726 (949) 851 -1367 August 12, 2013 75A -222 CONTENTS EXECUTIVESUMMARY ....................................................... ............................... 1 INTRODUCTION.............. ............................... . .................... ............................... 1 TRIPGENERATION .............................................................. ............................... 5 TRIP DISTRIBUTION/TRIP ASSIGNMENT ............................. ............................... 6 SITE ACCESS AND CIRCULATION ........................................ ............................... 6 Gate Stacking Analysis ................................................ ............................... 9 Par king................... ............................... .............. 12 .... ............................... REQUIRED MITIGATION MEASURES AND /OR RECOMMENDATIONS ................. 12 CONCLUSIONS..................................................................... .............................12 75A -223 LIST OF TABLES Table 1 Trip Generation Comparison — First and Cabrillo Towers vs. First Street Apartments............................................................ ............................... 6 LIST OF FIGURES Figure1 Project Location ...................................................... ............................... 2 Figure 2 Project Site Plan ..................................................... ............................... 3 Figure 3 Driveway Lane Configuration .................................. ............................... 4 Figure 4 Project Trip Distribution .......................................... ............................... 7 Figure 5 Project Driveway Peak Hour Volumes ........................ ............................... 8 Figure6 Gated Entry 1 ....................................................... ............................... 10 Figure7 Gated Entry 2 ....................................................... ............................... 11 Figure 8 On- Street Parallel Parking Detail ............................ ............................... 13 APPENDIX AppendixA ......................................................... ............................... Scope of Work 75A -224 EXECUTIVE SUMMARY This Traffic Analysis is prepared in order to evaluate the operational and design characteristics of the proposed First Street Apartments project at 1901 East lot Street in the City of Santa Ana and to evaluate the project's potential impacts at the project access locations. The project is situated on an approximately 5 acre site located at the northeast corner of Cabrillo Park Drive and East lot Street in the City's Metro East Mixed Use Overlay Zone, see Figure 1. The site is developed with a 3 -story commercial building and a 4 -story parking garage. The project includes the demolition of the existing 3 -story commercial building and construction of 254 residential apartment units and 2,424 square feet of support service retail, see Figure 2. The project site was previously approved for development of the First and Cabrillo Towers project consisting of 374 residential dwelling units and 8,957 square feet of specialty retail. The proposed project will be developing fewer units thereby generating fewer peak hour trips. Therefore per the scope of work only the project access driveways are analyzed in this report. A copy of the Scope of Work is provided in the Appendix for reference. The findings of the traffic analysis with the proposed project did not indicate any significant project impacts at the project access locations. The proposed project will utilize two existing driveways and will be stop sign controlled. There will be two project entries to the existing parking garage and both are gated. The findings of the gate stacking analysis shows that there is adequate storage capacity at the two (2) gated entries to accommodate the expected residential and visitor stacking needs without backing onto the adjacent public and/or private street. It should be noted that the gates will be open during the day and closed at night. INTRODUCTION This report summarizes the results of a Traffic Analysis conducted for the proposed development of 254 residential apartment units and 2,424 square feet of support service retail at 1901 East lot Street in the City of Santa Ana, see Figure 1. The project site is approximately 5 acres and has an existing 3 -story commercial buildurg and existing 4 -story parking garage. The site is located at the northeast corner of Cabrillo Park Drive and East lot Street in the City's Metro East Mixed Use Overlay Zone. The site is bounded by Kaiser Permanents to the north, existing church and office building to the east, East lot Street to the south, and Cabrillo Park Drive to the west. The existing lane configuration at the project driveways is shown in Figure 3. The site is accessed by an existing driveway on Cabrillo Park Drive approximately 530' north of East lot Street that connects to an east -west drive aisle along the northern property line. There is an existing driveway on East lot Street approximately 270' east of Cabrillo Park Drive that connects to a north -south drive aisle in the middle of the site. There is another existing driveway on East 181 Street approximately 476' east of Cabrillo Park Drive that connects to a north -south drive aisle along the eastern property line. To accommodate the proposed project the existing 3 -story commercial building, the driveway on East lot Street approximately 270 feet east of Cabrillo Park Drive, and the 75A -225 r Q � m SEVE TEENTH�� ° 0 0 0 3 z J r WELLINGTO �� m Project � Location FRUI T FRUIT M M 5 � z >°- 0 0 J m 0 F- FOURTH v IRVINE FIRST FR V v N. T. S. 55 8/12119 Figure 1 Project Location Plrzadeh First Street Apartments, Santa Ana Pq 75A -226 . r.y ;%MMbeUwilW aauibtNra vu - Yi WX I %DIB i • l Li tY I I t b \ to �- f 9 711 EX l En IIMP ; cn t �< N) d 133IRS 1Stlu aumwmdraau apnmNrp�w none wWx I N H Z n 75A -227 &12113 Figure 3 Driveway Lane Configuration First Street Apartments, Santa Ana 75A -228 Pirzadeh middle drive aisle will be demolished. The existing 4 -story parking garage, the northern drive aisle and the eastern drive aisle will remain. The project will have restricted right -turn in/right -turn out access from the existing driveway (Driveway 1) on Cabrillo Park Drive that connects to the drive aisle along the northern property line, see Figure 2. As a project feature, the drive aisle will be turned into a fire lane with decorative paving. The north fire lane will include a drop - offloading area approximately 80 feet east of Cabrillo Park Drive. Cabrillo Park Drive is a four -lane arterial street with a raised median. The project will have restricted right and left -turn in/right -turn out access from the existing driveway (Driveway 2) on East lot Street approximately 475' east of Cabrillo Park Drive that connects to the drive aisle along the eastern property line, see Figure 2. As a project feature, the drive aisle will be turned into a fire lane with decorative paving. There is also a covered loading area at the northeast corner of the project site that can be accessed by both fire lanes. The left -turn in access is provided by an existing left -turn lane. East lot Street is a six -lane major arterial with a raised median along the project frontage. The purpose of this analysis is to evaluate the operational characteristics and design features of the site access locations based on the projected inbound and outbound peak hour volumes. The impact of the decrease in the number of residential apartment units from the previously analyzed 374 units to the proposed 254 units will be documented. TRIP GENERATION The proposed project will develop the same parcel as the previously approved First and Cabrillo Towers project except it will contain 120 fewer residential dwelling units and changing the 8,957 square feet of retail/commercial use into 2,424 square feet of support service retail use. Also, the project will have two (2) access locations; a restricted right -turn in/right -turn out access on Cabrillo Park Drive that is presently operational and a restricted right and left-turn in/right -turn out access on East lot Street that is presently operational. Consistent with the Traffic Analysis Scope of Work the trip generation rates for the proposed project were calculated using the ITE Trip Generation Manual, 8th Edition for a high -rise apartment development. To determine the potential level of project impact, the trips being generated by the previously approved project based on the approved First and Cabrillo Towers Project Traffic Impact Study dated March 2007 prepared by EIP Associates were compared to the trips being generated by the proposed project. As shown in Table 3 the First and Cabrillo Towers project was projected to generate 1,961 daily trips with 143 and 166 trips occurring during the AM and PM peak hours. The proposed First Street Apartments project is projected to generate 1,067 daily drips with 76 and 89 trips occurring during the AM and PM peak hours. By comparison, the proposed project is projected to generate 894 fewer daily trips, 67 fewer AM peak hour trips and 77 fewer PM peak hour trips than the First and Cabrillo Towers project. It should be stated that the small accessory /support retail service provided on -site in intended mainly for the project residents. This use is not expected to generate any additional trips, and in fact could reduce project trips. 75A -229 Table 1 Trip Generation Comparison - First and Cabrillo Towers vs. First Street Apartments Land Use Units AM Peak Hour PM Peak Hour DT In Out Total In Out Total First and Cabrillo Towers High -Rise Condominium 374 DU 1 24 1 1031 127 1 881 64 1 142 1,563 Specialty Retail 8,957 SF 1 101 6 1 161 101 141 24 398 Totals 1 34 1 109 1 143 1 98 1 681 166 1 1,961 First Street Apartments High- RissApartmenta 254 DU 19 67 76 54 361 89 1 1,067 Project Differential (120) DU 1 (15) (62) (67) (44) (33) (77) (894) Trip Generation Rates Land Use ITE Land Use Code Units AM Peak Hour PM Peak Hour ADT In I Out Total In Out Total High -Rise Condominium 232 DU 1 0.06 1 0.28 0.34 0.24 0.14 0.38 4.18 Specialty Retail 814 SF 0.99 "' 0.77 "' 1.76") 1.19 1.62 2.71 44.32 High -Rise Apartments 222 DU 0.07 0.23 0.30_1 0.21 1 0.14 0.36 4.20 (1) ITE Trip Generation Manual 8' Edition does not provide a trip generation rate for calculating AM trips. Therefore, the trip generation rate that was used in the approved First and Cabrillo Towers Project Traffic Impact Study dated March 2007 was used in this report. Based on the trip generation comparison the proposed project will reduce 67 AIVI and 77 PM peak hour trips at the project access locations and to the adjacent roadway network. TRIP DISTRIBUTION/TRIP ASSIGNMENT The project trips were manually distributed at the proposed access locations based on its design features, proposed land uses, available turn movements, accessibility to residence and visitor parking areas/parking structure and, proximity to the local and regional roadway network. The project trip distribution is shown in Figure 4 and is consistent with the approved First and Cabrillo Towers Project Traffic Impact Study dated March 2007. The AM and PM peak hour volumes for Driveway 1 and Driveway 2 is shown in Figure 6. SITE ACCESS AND CIRCULATION The project will have two (2) access locations. Driveway 1 is an existing driveway located off of Cabrillo Park Drive. The driveway is restricted to right -turns in/right -turns out and is stop sign controlled. 3 AM and 6 PM inbound peak hour trips and 30 AM and 19 PM outbound peak hour trips are projected. The driveway will access a 20' wide fire lane along the northern property line and consists of one (1) inbound lane and one (1) outbound lane. A new gated entry into the existing parking garage will be installed approximately 305 feet east of Cabrillo Park Drive. As shown on the proposed site plan, this distance is also the effective driveway throat. Therefore, Driveway 1 will be able to accommodate the projected trips. 75A -230 f 8/17J13 Figure 4 Project Trip Distribution First Street Apartments, Santa Ana 7 75A -231 Pirzadeh 100 11 A 4 c 1� 1 ,- 8112113 Figure 6 Project Driveway Peak Hour Volumes First Street Apartments, Santa Ana 75A -232 Pirzadeh Af Driveway 2 is an existing driveway located off of East lot Street. The driveway is restricted to right and left -turns in/right -turns out and is stop sign controlled. A total of 16 AM and 48 PM inbound peak hour trips and 27 AM and 16 PM outbound peak hour trips are projected. The projected eastbound left -turn movement, 6 AM and 19 PM peak hour trips, will utilize the existing 140' left -turn lane. The existing signal at East lot Street and North Golden Circle Drive will provide adequate gaps for the left -turn movement. The driveway will access a 20' wide fire lane along the eastern property line and consists of one (1) inbound lane and one (1) outbound lane. A new gated entry into the existing parking garage will be installed approximately 260 feet north of East lot Street. As shown on the proposed site plan, this distance is also the effective driveway throat. Therefore, Driveway 2 will be able to accommodate the projected trips. Both access drives provide direct access to the existing parking garage for the project that will accommodate resident and visitors parking needs. The north fire lane connects with the east fire lane to enable site circulation from Driveway 1 to Driveway 2. A drop - off/loading area is provided on the north fire lane approximately 80 feet east of Cabrillo Park Drive and a covered loading area is provided at the northeast corner of the project site. It should be noted that the existing Driveway 1 and Driveway 2 serves an existing 3- story commercial building and the project site was previously approved for 374 residential dwelling units and 8,957 square feet of specialty retail, The proposed project will generate fewer trips and have less impact at the existing driveways. Gate Stacking Analysis The County of Orange Environmental Management Agency (EMA) Standard Plan No. 1107 criteria is being utilized for determining the amount of vehicle storage length behind the garage entry gates for the proposed residential project. This standard requires that gates be set back between the prolongation of the near curb of any public street and the gate to provide one (1) foot per dwelling unit or a minimum of 100 feet of storage for entering vehicles to stack without interfering with the through movement along the adjacent public street. The project is served by two (2) parking garage entries that will be gated. Entry 1 is located off of the northern fire lane approximately 305 feet east of Cabrillo Park Drive. The gate is located at the face of the parking garage and is 22 feet wide that provides one 11 -foot inbound lane and one 11 -foot outbound lane. The entry widens to a 24 -foot parking aisle inside the parking garage, see Figure 6. It should be noted that the parking garage is existing. The only modification is a project feature that will install the gate at the face of the parking garage. Driveway 1 is projected to have 3 AM and 6 PM peak hour trips. The distance between the prolongation of the near curb along Cabrillo Park Drive and the gate is approximately 317 feet. Entry 2 is located off of the eastern fire lane approximately 260 feet north of East lot Street. The gate is located approximately 38 feet inside the parking garage and is 24 feet wide that provides one 12 -foot inbound lane and one 12 -foot outbound lane, see Figure 7. The parking garage is existing and the only modification is a project feature that will install the gate inside the garage. Driveway 2 is projected to have 16 AM and 48 PM peak hour trips. The distance between the prolongation of the near curb along East lot Street is approximately 290 feet. 75A -233 PlY DfI NI T azI B 74 ;� C 8 £ ' 20'' a E(ECi _ 11111 A707 LOBBY ia( v� '•� ( S 'Y i� I I r mz B.4a Aj$d Mme; w A z m a N.T.S. B. oI -o _�- q�p_ -,gp — :F l �6 %UiPO1Mf[0 � " A o� A A SWITCCH ! GEAR 1I .I 17' %50'( 3'^ P T O SuL/ II � i I � � ?` U CCYYCCLL r A r /r RESIDENTIAL PARKING 63 SPACES 17 ADD7 fl112113 Figure Gated Entrr y 1 Pirzadeh First Street Apartments, Santa Ana 10 75A -234 j i r Li U3 (U) �, a C-4 O-lz .0-n o—o J Imp I ONF, It I rk goo IMU31WIUAel W-A 3A 11 11 75A-235 The proposed gate operation at Entry 1 is a 22 -foot wide security gate that will open from one end and at Entry 2 is a 24 -foot side security gate that will open from one end. Both of the gates will be open during the day and closed at night. There is another rolling gate inside the parking garage that will separate the visitor parking and the residential parking. Therefore, based on the entry design shown on the plans, the operational characteristics of the gate mechanisms, and the setback of each gate from the adjacent public street we have determined that the vehicle stacking area at the gated entries provides adequate storage capacity that will allow vehicles to enter the site without interfering with the traffic flow on the adjacent public street. Parking The proposed project will modify the existing 4 -story 664 space parking garage to provide 531 shared parking spaces (including 51 visitor parking spaces) and 28 private parking spaces for a total of 559 parking spaces. In addition, a curb cutout will be provided along Cabrillo Park Drive for on- street parallel parking. The cutout is approximately 95 feet long and 8 feet wide. Based on the City requirement of 20 feet long parallel space and 5 feet of buffer, a total of 4 vehicles can be accommodated at the cutout (see Figure 8). These parking spaces will also provide short term parking close to the support service retail which may be used by project visitors or by pass -by traffic. The design of the cutout is not expected to impact the thru movement on Cabrillo Park Drive. Furthermore, the cutout ends approximately 260 feet south of Driveway 1 and is not expected to impact the operation of the driveway. REQUIRED MITIGATION MEASURES AND /OR RECOMMENDATIONS Based on the results of the Traffic Analysis there are no required mitigation measures needed to support the project. It should be noted that the proposed First Street Apartments project will continue to provide its fair share for the mitigations identified in the approved First and Cabrillo Towers Project Traffic Impact Study dated March 2007 prepared by EIP Associates. CONCLUSIONS This report presented the findings of a Traffic Analysis carried out for the proposed First Street Apartments project, 254 residential apartment units and 2,424 square feet of support service retail, which is located at the northeast corner of Cabrillo Park Drive and East 1't Street in the City of Santa Ana's Metro East Mixed Use Overlay Zone. The design characteristics of the existing access driveways proposed to serve the site were evaluated based on projected entry and exit peak hour volumes. Based on this evaluation it is concluded that the project access driveways have adequate carrying capacity for the projected demand and pose no significant impact to the adjacent roadway system. It should be noted that the proposed project will be develop 120 fewer residential dwelling units and changing the 8,957 square feet of retail/commercial use into 2,424 square feet of support service retail use. Therefore, the proposed project will reduce 67 AM peak hour trips and 77 PM peak hour trips at the project access locations and to the adjacent roadway network. 12 75A -236 8' RED CURB f N.T.S. co 0 N 1 TYP. o N CURB 100' Project N she 1' TYP. 8' RED CURB 70' w qq0 'F U East 1st Street 8112113 Figure 8 On- Street Parallel Parking Detail Pirzadeh First Street Apartments, Santa Ana 13 75A -237 Appendix A Scope of Work 75A -238 FIRST STREET APARTMENTS TRAFFIC ANALYSIS SCOPE OF WORK July 1, 2013 The proposed project, First Street Apartments, consists of 250 residential apartment units and about 2,000 square feet of support service retail to be located at the intersection of First and Cabrillo in the City of Santa Ana. The area -wide traffic impacts of the proposed project site were previously analyzed for a 374 unit Residential Condominium and 8,957 square foot specialty retail project that was previously approved for this site. The proposed project trip generation is significantly less that the previously approved project. Therefore it is proposed that a focused Traffic Analysis be conducted to provide the evaluate the design of the project circulation and access drive elements and to further evaluate any required traffic control measures at the project access drives. This analysis will also provide a comparison of the project trip generation to the trip generation of the previously approved project for the site. It should be noted that the proposed project will continue to provide its fair share funding of the mitigation measures identified at the two impacted intersections identified in the March 2007 First and Cabrillo Towers Project Traffic Study. The study will include the following sections: I. EXECUTIVE SUMMARY This section will provide a short, clear and concise description of the Project, background, and the Traffic Analysis findings. Also, included in this section will be a general description of all data, conclusions, mitigation measures and/or recommendations. II. INTRODUCTION This section of the report will include a comprehensive description of the Project and key elements of the Traffic Analysis including the project site location, existing uses, proposed project, study area, and existing description of the adjacent roadway network will be discussed. The Traffic Analysis will evaluate the proposed access driveways. III. TRIP GENERATION The trip generation for the proposed project will be based on the Institute of Transportation Engineer's Trip Generation Manual, 8th Edition for a high -rise apartment development. The trips being generated by the proposed project will be compared to the trips contained in the approved First and Cabrillo Towers Project Traffic Impact Study dated March 2007 prepared by RIP Associates. The comparison will demonstrate that the decrease in the number of units will result in Approved: Date: Page 1 75A -239 significantly fewer peak hour and daily trips being generated by the proposed project than were previously analyzed with the underlying approved project. rV. SITE ACCESS AND CIRCULATION The operational characteristics and design features of the proposed site access on First Street will be evaluated based on the projected inbound and outbound volumes at the driveway. The on -site circulation will be examined to ensure that there is adequate maneuvering area available for residents and visitors to access the parking structure. A gate stacking analysis will be conducted for the gated entries using the County of Orange Environmental Management Agency (EMA) Standard Plan No. 1107 to determine the vehicle stacking requirements for the proposed project. VII. REQUIRED MITIGATION MEASURES AND /OR RECOMMENDATIONS Based upon the results of the Traffic Analysis physical, operational improvements, and/or identifying fair share costs required in order to mitigate any potentially adverse Project impacts will be identified in the Traffic Analysis. VIII. CONCLUSIONS A summary of the results of the'h-a£fic Analysis and recommended improvements, if any, will be provided. PAI 14316(l)Pi,statreetApta- 07012013- Tra0lcAnalysieScope- mlec.pkp Approved: Date: Page 2 75A -240 CHAPTER 4 Mitigation Monitoring and Reporting Program 4.1 INTRODUCTION The Calefomia DmhonneetlolQemli!yAd (CEQA) requires the adoption of feasible mitigation measures to reduce the severity and magnitude of potentially significant environmental impacts associated with project development. The Final Environmental Impact Report (Final EIR) for the proposed Metro East Mixed Use Overlay Zone EIR (State Clearinghouse No.2006031041) located within the City of Santa Ana (City), includes program and project - specific mitigation measures to reduce the potential environmental effects of the Overlay Zone, as well as the First and Cabrillo Towers Project. Monitoring of the implementation of adopted mitigation measures is required by Public Resources Code Section 21081.6. The Final EIR for the proposed project provides a list of mitigation measures, and describes the process whereby the mitigation measures would be monitored. Following certification of the Final EIR and approval of this 'Mitigation Monitoring Program (MMP) by the City, the mitigation measures included in the Final EIR would be monitored as described in this MMP. It should be noted that because this EIR contained program- and project -level components, two separate MMP tables are presented as part of this MMP for the Overlay Zone and for the First and Cabrillo Towers project. 4.2 PURPOSE The purpose of the proposed Overlay Zone EIR MMP is to ensure compliance with all mitigation measures to mitigate or avoid potentially significant adverse environmental impacts resulting from the proposed project that were identified in the Final EIR. Implementation of this DgVIP shall be accomplished by the City of Santa Ana. Mitigation measures will be implemented (1) as part of design development of the project, (2) during project construction, or (3) as part of project operations. 4.3 RESPONSIBILITIES AND DUTIES In general, monitoring will consist of demonstrating that mitigation measures were implemented, and that the responsible unit monitored the implementation of the measures. The responsible unit for determining compliance with all mitigation measures will be the City. Monitoring will consist of determining whether • The specific issues identified in the mitigation measures were considered in the design development phase • Construction contracts included the provisions specified in the mitigation measures • The required actions specified in the mitigation measures occurred prior to or during construction • Ongoing administrative activities included the provisions identified in the mitigation measures Metro East Mixed Use Overlay Zone (Volume Ill) 41 IN, is Chapter Mitigation Monitoring and Reporting Program Any concerns between monitors and construction personnel shall be addressed by the City of Santa Ana, Planning Department. 4.4 LIST OF MITIGATION MEASURES As mentioned above, due to the program- and project -level components of this EIR, the MMP has been divided into two parts to address each component separately. The mitigation measures that pertain to implementation of the Overlay Zone and their method of implementation are fisted in Table 4 -1. The mitigation measures, which include several mitigation measures from the program -level component, that pertain to the First and Cabrillo Towers project are listed in Table 4 -2. All project - specific mitigation measures included in the Final EIR for this project would be monitored as described above. The mitigation monitoring matrix on the following pages is formatted to parallel the format of the Executive Summary table contained in the Final EIR. The matrix identifies the required mitigation measures, the time frame for monitoring, and the responsible monitoring agencies. It should be noted that the mitigation measures from Volume I that are contained within Table 4 -2 have been modified slightly so as to directly apply to the First and Cabrillo Towers project. 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Box 1988 Santa Ana, California 92702 FREE RECORDING VIENT CODE 6 6103 FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT 067619A5448832v5 by and between THE CITY OF SANTA ANA and LYON HOUSING (FIRST STREET) XLVIII, LLC Dated: ,2013 EXHIBIT 1 75A -259 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND LYON HOUSING (FIRST STREET) XLVIII, LLC, a Delaware limited liability company This FIRST AMENDED AND RESTATED DEVELOPMENT AGREEMENT is entered into between THE CITY OF SANTA ANA, a charter city and municipal corporation duly authorized under the Constitution and laws of the State of California ( "City ") and LYON HOUSING (FIRST STREET) XLVIII, LLC, a Delaware limited liability company ( "Owner"). The City and Owner are referred to jointly within this First Amended and Restated Development Agreement as the "Parties" and individually as a 'Party." 1. RECITALS. The First Amended and Restated Development Agreement is entered into with reference to the following facts: 1.1 The Property. The real property which is the subject of this First Amended and Restated Development Agreement is located at 1901 E. 1 st Street in Santa Ana, California (the 'Property'). The Property is more particularly described in Exhibits A and B to this First Amended and Restated Development Agreement. The Property is a 5.1 acre parcel within the Metro East Mixed Use Overlay Zone that is located at the northeast comer of First Street and Cabrillo Park Drive. The Property is bounded by multi- tenant office buildings, a parking structure, and Kaiser Permanente medical offices to the north, low -rise office buildings and retail development to the East, First Street to the South, and Cabrillo Park Drive and a 15 -story Xerox Centre office building to the West. The Property was previously occupied by a two -story, 75,300 square foot building (the "Main Building ") and an existing parking structure with approximately 660 parking spaces (the "Existing Parking Structure "). The Main Building has been demolished, but the Existing Parking Structure remains on the Property. 1.2 The Original Agreement. 067619 \54488320 (a) On April 2, 2007, the City Council of the City of Santa Ana (the "City Council') adopted Ordinance No. NS -2741 approving a Development Agreement between the City and 1901 E. 1st Street Partners, LLC (the "Original Agreement'). Ordinance No. NS -2741 became effective on May 2, 2007, which became the effective date of the Original Agreement. 75A -260 (b) Before approving the Original Agreement, the City Council certified Environmental Review No. 2006 -01 for the Original Agreement and the development proposal which was the subject of the Original Agreement (the "Original EIR "). (c) Both this First Amended and Restated Development Agreement and the Original Agreement pertain to the Property. (d) 1901 E. 1st Street Partners, LLC, a Delaware limited liability company, was the owner of the Property at the time of the Original Agreement (the "Original Owner "). (e) On September 30, 2012, Owner acquired the Property from 1901 Santa Ana Land, LLC, a Delaware limited liability company and a successor of the Original Owner. (f) By entering into this First Amended and Restated Development Agreement, the City Council approves the assignment of the rights and delegation of the obligations under the Original Agreement to Owner. 1.3 Purpose of this First Amended and Restated Development Agreement. 067619 \5448832v5 (a) The purpose of this First Amended and Restated Development Agreement is to facilitate the development of the Property. This First Amended and Restated Development Agreement is not a new development agreement, but rather an amendment and restatement of the terms of the Original Agreement. The purpose of this First Amended and Restated Development Agreement is to (1) reflect a revised development plan for the Property and (2) extend the term set forth in the Original Agreement. (b) Owner proposes to develop on the Property a new 254 -unit multifamily residential development (the "Project'). The Project will consist of a new 5 -story low -rise Type III -A building containing 240 units to be constructed against the west side of the Existing Parking Structure and a new 3 -story Type V -A townhouse building wrapping the south and east sides of the garage containing 14 townhouse units. A 5,000 GSF clubhouse and recreation deck with pool will be added over the southern half of the Existing Parking Structure. The project will also include approximately 2,424 SF of retail space on the corner of First Street and Cabrillo Park Drive. 75A -261 1.4 Code Authorization. City is authorized pursuant to Government Code Sections 65864 through 65869.5 to enter into Development Agreements with persons having legal or equitable interests in real property for the purpose of establishing development certainty for both the City and Owner in the development process. City enters into this First Amended and Restated Development Agreement pursuant to the provisions of the Government Code and applicable City policies. The Parties acknowledge: (a) This First Amended and Restated Development Agreement is intended to assure adequate public facilities at the time of development. (b) This First Amended and Restated Development Agreement is intended to assure development in accordance with City's General Plan, applicable Specific Plans and the Metro East Mixed -Use Overlay Zone. (c) This First Amended and Restated Development Agreement will permit achievement of goals and objectives as reflected in the City's General Plan, all applicable Specific Plans and the Metro East Mixed -Use Overlay Zone. (d) Owner is required by existing City regulations to provide mitigation for certain identified impacts and pay certain regulatory fees as conditions of approvals through the regulatory process. (e) This First Amended and Restated Development Agreement will allow City to realize extraordinary and significant public infrastructure facilities and other supplemental benefits in addition to those available through the existing regulatory process. (f) Many of the extraordinary and significant benefits identified as consideration to City for entering into this First Amended and Restated Development Agreement are of regional significance, relate to existing deficiencies in public facilities, require Owner to contribute a greater percentage of benefits than would otherwise be required, and represent benefits which would not otherwise be required as part of the development process. 1.5 Owner. Owner represents and warrants that it has a legal or equitable interest in the Property. 067619A5448832v5 3 75A -262 1.6 Interest of Owner. Owner represents that it has approved this First Amended and Restated Development Agreement and is authorized to enter into this First Amended and Restated Development Agreement. 1.7 Public Hearings. The Original Agreement was the subject of a series of Planning Commission and City Council public hearings in 2007. In addition, this First Amended and Restated Development Agreement was the subject of the following public hearings: (a) Planning Commission. On , 2013, the Planning Commission, after giving notice pursuant to Government Code Sections 65090 and 65091, held a public hearing to consider the Owner's application for this First Amended and Restated Development Agreement and the environmental documentation evaluating the potential impacts of the First Amended and Restated Development Agreement. (b) City Council. On , 2013, the City Council, after providing notice as required by law, held a public hearing to consider Owner's application for this First Amended and Restated Development Agreement (c) Environmental Analysis. Before approving this First Amended and Restated Development Agreement, the Planning Commission and the City Council reviewed an Addendum to previously prepared Environmental Review No. 2006 -01 and the City Council approved the Addendum (the "Addendum "). 1.8 City Council Findings. The City Council finds that this First Amended and Restated Development Agreement is consistent with the General Plan, applicable specific plan(s), applicable zoning regulations, and all other applicable ordinances, plans, policies and regulations of the City. 1.9 City Ordinance. On , 2013, the City Council adopted Ordinance No. approving this First Amended and Restated Development Agreement. That ordinance becomes effective thirty (30) days after the date of adoption. 2. DEFINITIONS. In this First Amended and Restated Development Agreement, unless the context otherwise requires: 2.1 "Amendment Date' means , 2013, the date on which the Adopting Ordinance became effective. 067619 \5448832v5 4 75A -263 2.2 "Applicable Rules" means all rules, regulations, ordinances and official plans and policies of the City in force as of the Effective Date as included within the Santa Ana Municipal Code ( "SAMC "), the Metro East Mixed - Use Overlay Zone, this First Amended and Restated Development Agreement and the Entitlements, as defined below. 2.3 "Effective Date" means May 2, 2007, the date upon which the ordinance approving the Original Agreement became effective. 2.4 "Entitlements" means this First Amended and Restated Development Agreement modifying Development Agreement No. 2007 -01, Environmental Review No. 2006 -01, the Addendum, General Plan Amendment No. 2007 -01, Vesting Tentative Tract Map No. 2013 -4, Zoning Ordinance Amendment No. 2007 -01, the Metro East Overlay Zone Public Realm Improvement Plan, Site Plan Review Approval No. 2013 -3, and any changes to these to which Owner has consented in writing. 2.5 "in Lieu Park Development Fee' means the fee to be paid by Owner to fully satisfy all park - related obligations of the Project as provided in Section 5.10 below. 2.6 "Owner" means Lyon Housing (First Street) XLVIII, LLC, a Delaware limited liability company. 2.7 "Original Agreement' means the Development Agreement between the City and 1901 E. 1st Street Partners, LLC approved by the City Council on April 2, 2007, by Ordinance No. NS -2741. 2.8 "Original Hearing Date' means the date on which the City Council conducted the first reading of Ordinance No. NS -2741 approving the Original Agreement. 2.9 'Project' is the development on the Property of a 254 -unit multiple family residential development and approximately 2,424 square feet of retail space as generally set forth in the Entitlements. 2.10 "Property" means the real property described in Exhibit A and referred to in Exhibit B. 2.11 "Public Art' is defined in Section 5.1.7. 2.12 "Public Art Fee' is defined in Section 5.1.7 2.13 "Public Art Plan" is set forth in Exhibit C to this First Amended and Restated Development Agreement. 067619 \5448832,5 5 75A -264 2.14 "Reserved Powers" means the rights and authority excepted from this First Amended and Restated Development Agreement's restrictions on the City's police powers and which are instead reserved to the City. The Reserved Powers include the power to enact and implement rules, regulations, ordinances and policies after the Effective Date that are not in conflict with the Applicable Rules or that may be in conflict with the Applicable Rules, but: (a) prevent or remedy conditions which the City has found to be injurious or detrimental to the public health and /or safety; (b) are Uniform Codes; (c) are required to comply with mandates under state and federal laws, rules and regulations (whether enacted previous or subsequent to the Effective Date) or to comply with a court order or judgment of a state or federal court; or (d) relate to increases in development impact fees occurring after the Effective Date. 2.15 "Uniform Codes" means those building, electrical, mechanical, fire and other similar regulations which are based on recommendations of a multi- state professional organization and become applicable throughout the City, such as, but not limited to, the California Building Code, the California Electrical Code, the California Mechanical Code, or the California Fire Code (including those amendments to the promulgated Uniform Codes which reflect local modification to implement the published recommendations of the multi -state organization and which are applicable City -wide) 2.16 "Utility Release" means the formal approval of the City Building Department, following its inspection, that residential unit(s) may be released for initial connection to the electrical power system, water service system, gas service system, and sanitary sewer system. Utility Release(s) do not include temporary utility service provided to any structure during construction. 3. EXHIBITS. The following documents referred to in this First Amended and Restated Development Agreement are attached to this First Amended and Restated Development Agreement and are identified as follows: Exhibit Designation Description Referred to in Section A Property Legal Description 1.1, 2.10 B Property Graphical Description 1.1 C Public Art Plan 2.13, 5.1.7 067619 \5448832,5 6 75A -265 D Offsite Improvements 5.1.8 4. GENERAL PROVISIONS. 4.1 Term of First Amended and Restated Development Agreement (the "Term "). The ten -year term of the Original Agreement started on the Effective Date of May 2, 2007, and would have ended on May 2, 2017. This First Amended and Restated Development Agreement shall extend the end of the Term to ten years after the effective date of the ordinance approving this First Amended and Restated Development Agreement. 4.2 Assignment. Owner shall have the right to transfer or assign the Property, in whole or in part, to any person, entity (public or private), partnership, joint venture, firm or corporation at any time during the term of this First Amended and Restated Development Agreement; provided, however, the rights of Owner under this First Amended and Restated Development Agreement may not be transferred or assigned unless the written consent of the Council is first obtained and any transfer or assignment of the rights under this First Amended and Restated Development Agreement shall include in writing the assumption of the duties, obligations, and liabilities arising from this First Amended and Restated Development Agreement if the City grants written consent to transfer the rights. Nor shall the rights of the Owner hereunder be subject to assignment by attachment, execution, or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer of the rights under this First Amended and Restated Development Agreement shall be wholly void and of no force and effect unless such written consent thereto be obtained from the Council. A transfer or assignment of the rights under this First Amended and Restated Development Agreement without the consent of the City shall not relieve Owner of any accrued duty, obligation or liability to City. No consent shall be required for sale of units to condominium unit buyers. During the term of this First Amended and Restated Development Agreement, any approved assignee or transferee of the rights under this First Amended and Restated Development Agreement shall observe and perform all of the duties and obligations of Owner contained in this First Amended and Restated Development Agreement as such duties and obligations pertain to the portion of the Property transferred or assigned. Any and all approved successors and assignees of Owner shall have all of the same rights, benefits, duties, obligations, and liabilities of Owner under this First Amended and Restated Development Agreement. If the Property is subdivided, any subdivided parcel may be sold, 067619A5448832v5 7 75A -266 mortgaged, hypothecated, assigned, or transferred to persons for development by them in accordance with the provisions of this First Amended and Restated Development Agreement. Upon assignment or transfer of the rights of Owner under this First Amended and Restated Development Agreement, the obligations of Owner and the transferee or assignee shall be joint and several. Should the Project be developed as or later converted to condominiums, individual condominium unit buyers shall not have any liability or obligation pursuant to this First Amended and Restated Development Agreement. 4.3 Amendment or Cancellation of First Amended and Restated Development Agreement. This First Amended and Restated Development Agreement may be amended from time to time or cancelled by the mutual consent of the Parties, but only in the manner required by Government Code Section 65868. As used within this First Amended and Restated Development Agreement, the terms "Agreement" and "Original Agreement" shall include any amendment properly approved executed. 4.4 Enforcement. Notwithstanding Government Code Section 65865.4, this First Amended and Restated Development Agreement is enforceable by either Party in any manner provided by law. The remedies provided in Section 7.4 shall not include, and City shall not be liable for, any action in damages or any costs or attorney's fees resulting from any dispute, controversy, action or inaction, or any legal proceeding arising out of this First Amended and Restated Development Agreement. 4.5 Indemnification by Owner. Owner agrees to and shall indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from liability for damages, attorneys' fees, restitution, judicial or (to the extent legally possible) equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from construction activities with respect to the Project by the Owner or their contractors, subcontractors, agents, employees, or other persons acting on their behalf. Owner further agrees to indemnify, defend (through its own counsel) and hold City, its officers, agents, employees, consultants, and representatives harmless from any Litigation, as hereinafter defined. For purposes of this paragraph, "Litigation" shall mean any lawsuit, action or cross - action, challenging the validity of this transaction, the Project as defined in Section 2.9, or any portion thereof or the rights of either party hereunder and /or the rights of either party to engage in the acts and transactions contemplated by this First Amended and Restated Development Agreement. Notwithstanding any other provision of this First 067619A5448832v5 8 75A -267 Amended and Restated Development Agreement, this indemnity and duty to defend shall be limited as follows: (a) Owner shall have no responsibility to defend the City under this section for any aspect of Litigation challenging Amendment Application 2007 -01, General Plan Amendment No. 2007 -01, and /or Zoning Ordinance Amendment No. 2007 -01 (the "Overlay "). (b) In the event the Litigation results in a judgment and /or award of damages and /or attorneys' fees related to the Overlay but in no way related to the application of the Overlay to the Property, Owner shall have no responsibility to indemnify the City therefor. (c) In the event of any Litigation the parties agree to affirmatively cooperate in defending said action. (d) Owner shall have approval of any settlement if, (i) it will affect Owner's project, or (ii) Owner will be required to pay (or reimburse) any amounts (regardless of type) in connection with the settlement (including attorneys' fees and costs). (i) If City determines to settle over Owner's objections, then Owner may upon thirty (30) days written notice terminate defense of the action. (ii) If City rejects a settlement offer that Owner deems reasonable, then Owner may upon thirty (30) days written notice terminate defense of the action. (e) Owner shall be allowed to terminate its defense if it determines to abandon defense of its project application; provided, however, that in such circumstance Owner shall be solely liable for award, if any, of costs or attorneys' fees to plaintiff /petitioner incurred prior to the effective date of termination. 4.6 Binding Effect of First Amended and Restated Development Agreement. To the extent not otherwise provided in Section 4.2 of this First Amended and Restated Development Agreement, the burdens of this First Amended and Restated Development Agreement bind, and the benefits of the First Amended and Restated Development Agreement inure, to the parties successors in interest. 4.7 Relationship of the Parties. The contractual relationship between City and Owner arising out of this First Amended and Restated Development Agreement is one of independent contractor and not agency. This First 067619A5448832v5 9 75A -268 Amended and Restated Development Agreement does not create any third party beneficiary rights. 4.8 Notices. Any notice, tender, demand, delivery, or other communication pursuant to this First Amended and Restated Development Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: If to City, to: City Manager City of Santa Ana 20 Civic Center Plaza M -31 P.O. Box 1988 Santa Ana, California 92702 and City Attorney, City of Santa Ana 20 Civic Center Plaza M -29 P.O. Box 1988 Santa Ana, California 92702 If to Owner, to: Lyon Housing (First Street) XLVIII, LLC 4901 Birch Street Newport Beach, CA 92660 Attention: General Counsel and Tim Paone Cox Castle & Nicholson LLP 19800 MacArthur Boulevard Irvine, CA 92612 -2480 A Party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered 067619 \5448832x5 10 75A -269 or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty - four (24) hours after the time set forth on the transmission report issued by the transmitting telefacsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County, or city holidays shall be excluded. S. DEVELOPMENT OF THE PROPERTY. 5.1 City Obligations. In consideration for Owner entering into this First Amended and Restated Development Agreement and performing its obligations hereunder and in order to effectuate the purposes and intentions set forth in this First Amended and Restated Development Agreement and the Development Agreement Act, the City hereby agrees during the Term as follows: 5.1.1 Vested Right to Develop. Owner is hereby granted the vested right to develop the Project subject to the terms and conditions of the Applicable Rules and the Reserved Powers. 5.1.2 Non - Application of Changes in Applicable Rules. Any change in, or addition to, the Applicable Rules, including, without limitation, any change in the General Plan, zoning ordinance, subdivision ordinance, or building regulation adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of ordinance, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever, however denominated, and adopted by the City Council, Planning Commission or any City Agency, or by the electorate, as the case may be, which would, absent this First Amended and Restated Development Agreement, otherwise be applicable to the Project and which would conflict with the Applicable Rules, shall not be applied to the Project unless such changes represent an exercise of the City's Reserved Powers or are otherwise expressly allowed by this First Amended and Restated Development Agreement. In the event that state or federal laws or regulations enacted after this First Amended and Restated Development Agreement has been entered into, prevent or preclude compliance with one or more provisions of this First Amended and Restated Development Agreement, such provisions of this First Amended and Restated Development Agreement shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. 067619A5448832v5 I t 75A -270 067619 \5448832v5 5.1.3 Agreed Changes and Other Reserved Powers. This First Amended and Restated Development Agreement shall not preclude application to the Project of rules, regulations, ordinances and officially adopted plans and policies in conflict with the Applicable Rules where such additional rules, regulations, ordinances and officially adopted plans and policies (a) are mutually agreed to in writing by Owner and the City, or (b) result from the Reserved Powers. 5.1.4 Subsequent Development Approvals. The City shall require Owner to obtain only those Subsequent Development Approvals that are required by the Applicable Rules or the Reserved Powers. City agrees that it shall condition any Subsequent Development Approvals based only on the Applicable Rules and /or Reserved Powers. 5.1.5 Moratoria. In the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, or otherwise, which relates to the rate, amount, timing, sequencing, or phasing of the development or construction of the Project on all or any part of the Property, City agrees that, unless required by applicable state law, such ordinance, resolution or other measure shall not apply to the Project, Property or this First Amended and Restated Development Agreement, unless such changes are adopted pursuant to the City's exercise of its Reserved Powers or other applicable provision of this First Amended and Restated Development Agreement. 5.1.6 Timing of Development. The parties acknowledge that Owner cannot at this time predict when or if the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner such as market orientation and demand, interest rates, absorption, completion and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that except as provided in and subject to Section 5.11, Owner shall have the right to develop the Property at such rate and at such time as Owner deems appropriate within the exercise of its subjective business judgment. 12 75A -271 5.1.7 Development, Construction, and Completion of Public Art. Owner shall include within the Project single or grouped permanent work of public art consistent with the Public Art Plan (collectively, "Public Art") at a cost of not less than One Hundred Twenty Five Thousand Dollars ($125,000) (the "Public Art Fee "). 5.1.8 Additional Offsite Mitigation Measures. The offsite mitigation measures (i.e., which clarify mitigation measures set forth in the Project entitlements) which must be constructed by Owner are as set forth in Exhibit D to this First Amended and Restated Development Agreement. All funds or costs for offsite mitigation measures required pursuant to the approvals set forth in section 2.4 of this First Amended and Restated Development Agreement shall be paid or security provided therefor in conformance with the provisions of the Subdivision Map Act, no later than recordation of the final subdivision map for the Project, or issuance of the first building permit for the Project, whichever comes first. 5.1.9 Irrevocable Offer to Dedicate Easements or Land To Implement Public Realm Improvement Plan. On the face of the final map for the Project, or contemporaneous with offering the final map for filing with the County if it is not placed on the final map, Owner shall execute an irrevocable offer to dedicate to the City such property interest (easement for the breezeway /lane along the north side and fee title along the south side of the Project) as is necessary to effectuate the Metro East Public Realm Improvement Plan adopted contemporaneously with the Project. Owner shall not be required to dedicate additional land pursuant to any amendments to said Plan which may occur following its adoption. Owner shall be entitled to an offset against its obligations under Section 5.7 of this First Amended and Restated Development Agreement for such property. 5.2 Exclusion from Existing Rules, Regulations and Policies. (a) Pursuant to Government Code Section 65866 and Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, 208 Cal.Rptr. 228, 690 P.2d 701, City retains the right to enact police power regulations on matters not covered by Section 5.1 of this First Amended and Restated Development Agreement, including without limitation: (i) Municipal laws and regulations which do not interfere with Owner's vested rights to develop and use the Property in accordance with Section 5.1 of this First Amended and 067619A5448832v5 13 75A -272 Restated Development Agreement. Owner and its successors and assigns and all persons and entities in occupation of any portion of the Property shall comply with such non - conflicting laws and regulations as may from time to time be enacted or amended hereafter. Specifically, but without limitation on the foregoing, such non - conflicting laws and regulations include the following: • Taxes, assessments, fees and charges, except as otherwise specifically provided in this First Amended and Restated Development Agreement; • Building, electrical, mechanical, fire and similar codes based upon uniform codes incorporated by reference into the Santa Ana Municipal Code; • Laws, including zoning code provisions, which regulate the manner in which business activities may be conducted or which prohibit any particular type of business activity on a city -wide basis; and • Procedural rules of general City -wide application. 5.3 Construction Standards and Specifications. The construction standards (e.g., the Uniform Codes) and specifications for all Project construction shall be subject to applicable construction standards and guidelines in effect at the time that any development approval shall be sought for the Project or any unit or structure contained within the Project. 5.4 FAA Approval. Owner shall obtain and maintain, during the term of this First Amended and Restated Development Agreement, any and all necessary approvals from the FAA for the Project. Should such approvals lapse and not be reinstated or reapproved prior to the issuance of the first building permit, the City shall have the right to terminate this First Amended and Restated Development Agreement. 5.5 Processing Fees. All fees and charges intended to cover City costs associated with processing development of the Property, including but not limited to fees and charges for applications, processing, inspections, plan review, plan processing, and /or environmental review, which are existing or may be revised or adopted during the term of this First Amended and Restated Development Agreement, shall apply to the development of the Property. 067619 \5448832v5 14 75A -273 5.6 Amendments or Additions to Citywide Fee Programs. This First Amended and Restated Development Agreement shall not preclude the inclusion of and changes to fee programs, taxes whether special or general, or assessments (hereafter collectively referred to as "fees ") adopted by the City after the effective date of this First Amended and Restated Development Agreement, which shall be applicable to the Project or the Property provided that they (1) are standard fees applicable to all development in the City (although actual fee rates may vary within the City where bona fide Citywide fee zones have been established), (2) are not applicable primarily or only to this Project, or (3) are not imposed to either (a) mitigate, offset or compensate for Project impacts which were analyzed in the environmental impact report prepared for the Project, or (b) duplicate any project design features conditions of approval, agreements, or mitigation measures contained in this First Amended and Restated Development Agreement 5.7 Community Facilities District or Other Financing Tool. Owner agrees to petition for, and fully support (including voting to establish, if required), the establishment of or annexation into a Community Facilities District or similar financing mechanism covering the Property, in order to fund the proposed project's fair share of eligible items, e.g., the costs of implementing the Metro East Public Realm Improvement Plan; provided, however that the total effective tax rate (including but not limited to regular property or ad valorem taxes, special taxes, benefit assessment or other imposition) shall not exceed an annual levy of one and six- tenths percent (1.6 %) of the Property's valuation, as improved. Owner and City shall cooperate in good faith to designate those improvement and /or fees to be funded by the Community Facilities District or other mechanism. Owner shall have the right to review and approve any final list of said facilities and /or fees; provided, however that Owner's approval may not be unreasonably withheld. 5.8 Phasing of Project. The parties agree and acknowledge that the Project may be built in up to two (2) phases (with one tower in each phase), but that, except as otherwise expressly stated herein, all conditions and mitigation measures shall be implemented as part of the initial phase; provided, however that Owner may propose to delay to the second phase on -site conditions (e.g., sidewalks) that could be damaged by future construction. Prior to issuance of the first building permit for the Project, Owner shall submit a proposed Phasing Plan to the City, for review and approval by the City's Planning Commission. The proposed Phasing Plan shall contain those items Owner deems necessary, but shall include the timing for first and second phase construction and interim site improvements (i.e., landscaping, internal circulation) between the phases. 067619 \5448832v5 15 75A -274 The approved Phasing Plan must be implemented within six (6) months after completion of the first phase (i.e., issuance of first Utility Release). 5.9 Inclusionary Housing. Owner shall pay to the City the sum of Three Thousand Dollars ($3,000) for each Residential Unit contained in each phase ( "Inclusionary Housing Fee "). The Inclusionary Housing Fee shall be paid with respect to each phase at such time as 95% of the residential units within such phase have received Utility Releases. The Inclusionary Housing Fee shall be used by the City for planning (including, but not limited to, preparation of one or more elements of its general plan or for zoning amendments), conceptual design, final design, bid preparation, award of bid, property appraisal, property acquisition, relocation, lost goodwill, and /or construction of new or substantially rehabilitated existing affordable housing in the City. 5.10 In -Lieu Park Development Fee. The Owner shall pay an in -lieu park development fee in the amount of One Million Four Hundred Fifty Thousand Dollars ($1,450,000) with respect to the Project ( "In -Lieu Park Development Fee ") payable pro rata, which pro rata fraction shall be determined based on a fraction the numerator of which is the total number of residential units in a phase and the denominator of which is the total number of residential units in the Project. The pro rata In -Lieu Park Development Fee shall be paid prior to issuance of the building permit for each phase. The City shall use said fees for new parkland, capital improvements at existing parks, and deferred maintenance at existing parks (up to a maximum of fifty percent of amount of the fee). If not used or appropriated this fee shall be returned to Developer, consistent with the provisions of (and subject to the exceptions contained within) the California Mitigation Fee Act, Government Code § 66000 et seq. Owner may propose in future an alternative in -lieu of the provisions of this section which fully satisfies this requirement, and if such proposal is consistent with City's park plans and standards, the City shall consider such proposal in good faith; provided, however, that if approved such proposal shall be the subject of an amendment to this First Amended and Restated Development Agreement entered into pursuant to Government Code section 65868. 5.11 Covenants, Conditions, and Restrictions. Owner may, at its sole option, decide in the future to sell individual residential units as condominiums. Prior to the issuance of the first building permit for the Project, Owner shall provide to the City the proposed Covenants, Conditions, and Restrictions ( "CC &R's ") to be recorded against the Property for the condominiums. Those CC &R's must be approved by the Planning and Building Agency's Executive Director (or the person acting in 067619 \5448832,5 16 75A -275 the equivalent role if the title of the position is changed. The City's review and approval of the CC &R's shall be limited to determining inclusion of the following restrictions within the CC &R's: (a) No more than four residents shall be permitted for each unit, except that for three - bedroom units, there shall be no more than five residents per unit. (b) All initial sales of residential units by Owner shall include a covenant that the buyer may not re -sell the unit for a period on one (1) year. (c) No home occupation shall be permitted in a unit, except in accordance with Section 41 -192 et seq. of the Santa Ana Municipal Code. (d) Allocation of responsibility for repair of perimeter walls and common areas, including landscaping, will be specified in the CC &R's in the event of damage. (e) Notice of the urban character of the City and this area, including but not limited to (i) the permitted uses of the property and buildings in the immediate area of the development (e.g., Xerox Towers, State Compensation Insurance Fund, 1 -5 and SR -55 freeways). (f) The release of the City from all claims which may arise from or relate to the urban character of the City and this area. (g) A term of the CC &R's of an initial period of ninety- nine years, with automatic and repeating one - hundred (100) year extensions, unless terminated earlier by the joint consent of (i) the City and (ii) not less than seventy five percent of those condominium owners entitled to vote under the CC &R's. (h) The need for the approval of the City to any proposed modifications to the provisions of the CC &R's identified in this Section 5.11. (i) The imposition of a significant financial penalty by the Home Owner's Association upon any member who violates the provisions of the CC &R's identified in this Section 5.11. 5.12 Conditions of Discretionary Approvals. The requirements imposed as conditions of any discretionary approval received through the City's existing regulatory process shall be governed by the terms of those approvals, and in no event shall such conditions be affected by the 067619 \5448832v5 17 75A -276 termination, cancellation, rescission, revocation, or default or expiration of this First Amended and Restated Development Agreement (although such conditions must comply with the Applicable Rules). 5.13 Compliance with Governmental Requirements. Owner shall carry out the design, construction, and operation of the Project in substantial conformity with all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County of Orange, the City, or any other political subdivision in which the Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the City, Owner or the Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to the Property and the Project, and all other provisions of the City and its Municipal Code (as they apply to the Property and the Project), and all applicable disabled and handicapped access requirements, including, without limitation, the Americans With Disability Act, 42 U.S.C. § 12101 et seq., Government Code§ 4450 et seq., and the Unruh Civil Rights Act, Civil Code§ 51 et seq. (collectively, "Governmental Requirements "). 6. ANNUAL REVIEW. 6.1 City and Owner Responsibilities. City shall, at least every twelve (12) months during the term of this First Amended and Restated Development Agreement, review the extent of good faith substantial compliance by Owner with the terms of this First Amended and Restated Development Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to demonstrate by substantial evidence its good faith compliance with the terms of this First Amended and Restated Development Agreement at the periodic review. 6.2 Review Letter. If Owner is found to be in compliance with this First Amended and Restated Development Agreement after annual review, City shall, upon written request by Owner, issue a Review Letter to Owner (the "Letter ") stating that based upon information known or made known to the City Council, the City Planning Commission and /or the City Planning Director, this First Amended and Restated Development Agreement remains in effect and Owner is not in default. Owner may record the Letter in the Official Records of the County of Orange. 067619 \5448832v5 18 75A -277 6.3 Failure to Conduct Annual Review. City's failure to review at least annually Owner's compliance with the terms and conditions of this First Amended and Restated Development Agreement shall not constitute or be asserted by any Party as a breach of this First Amended and Restated Development Agreement by Owner or City. 7. DEFAULT. 7.1 Events of Default. Owner is in default under this First Amended and Restated Development Agreement upon the happening of one or more of the following events or conditions: (a) If a warranty, representation, or statement made or furnished by Owner to the City is false or proves to have been false in any material respect when it was made; (b) A finding and determination made by the City Council following a periodic review under the procedure provided for in Government Code Section 65865.1 that upon the basis of substantial evidence the Owner has not complied in good faith with one or more of the terms or conditions of this First Amended and Restated Development Agreement; (c) Failure to comply with Governmental Requirements; (d) Any other event, condition, act, or omission which materially interferes with the intent and objectives of this First Amended and Restated Development Agreement. 7.2 Procedure upon Default. The following principles and procedures shall be applied in the determination of any Default: (a) Upon the occurrence of default, City shall give Owner (the "defaulting party ") thirty (30) days written notice specifying the nature of the alleged default and, when appropriate, the manner in which said default may be satisfactorily cured. After proper notice and expiration of said thirty (30) day cure period without cure, City may terminate or amend this First Amended and Restated Development Agreement in accordance with the procedure adopted by the City as to all defaults that may be cured within said thirty (30) day cure period. For defaults that cannot be cured within said thirty (30) day cure period, City may terminate or amend this First Amended and Restated Development Agreement in accordance with the procedure adopted by the City should at any time Owner 067619A5448832v5 19 75A -278 fail to diligently proceed in curing the default. Failure or delay in giving notice of default shall not constitute a waiver of any default, nor shall it change the time of default. (b) City does not waive any claim of defect in performance by Owner, if on periodic review the City does not propose to modify or terminate this First Amended and Restated Development Agreement. (c) Non - performance shall not be excused because of failure of a third person. (d) An express repudiation, refusal, or renunciation of the contract, if the same is in writing and signed by the Owner, shall be sufficient to terminate this First Amended and Restated Development Agreement and a hearing on the matter shall not be required. (e) Adoption of a law or other governmental activity making performance by the Owner unprofitable or more difficult or more expensive does not excuse the performance of the obligation by the Owner. (f) All other remedies at law or in equity which are not inconsistent with the provisions of this First Amended and Restated Development Agreement are available to the parties to pursue in the event there is a breach. 7.3 Damages upon Termination. In no event shall Owner be entitled to any damages against City upon termination of this First Amended and Restated Development Agreement. 7.4 Institution of Legal Action. In addition to any other rights or remedies, either party may institute legal action to cure, correct, or remedy any default or breach, to specifically enforce any covenants or agreements set forth in this First Amended and Restated Development Agreement, or to enjoin any threatened or attempted violation of this First Amended and Restated Development Agreement; or to obtain any remedies consistent with the purpose of this First Amended and Restated Development Agreement. Legal actions shall be instituted in the Superior Court of the County of Orange, State of California, or in the Federal District Court in the Central District of California. Southern Division. 8. MORTGAGEE PROTECTIONS 8.1 Right to Owner /Notice /Multiple Mortgagees. Owner shall have the absolute right to encumber Owner's right, title and interest in, to and 067619 \5448832,5 20 75A -279 under this First Amended and Restated Development Agreement and the Property pursuant to one or more Mortgages. Because certain portions of the Project may be developed by one or more assignees, the Parties acknowledge and agree that different Mortgages may encumber the Property and that there may be a separate Mortgage in effect with respect to separate parcels within the Property. It is the intention of the Parties that the rights and protections granted in this Section 8 to each Mortgagee shall only apply to the parcels upon which such Mortgagee's Mortgage is a lien (each a "Mortgage Parcel "), and to the rights, privileges and obligations under this First Amended and Restated Development Agreement relating to such Mortgage Parcel. 8.2 Notice of Breach to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Owner as provided herein, whenever the City delivers any Notice or demand to Owner with respect to any Breach by Owner under this First Amended and Restated Development Agreement and if Owner fails to cure the Breach within the time set forth herein, the City shall deliver to each Mortgagee a copy of such notice or demand accompanied by a writing to the affect that Owner has failed to cure a Breach ( "Mortgagee Notice "); provided that Owner or Mortgagee has provided City with addresses for such purpose. Each such Mortgagee shall (insofar as the rights granted by the City are concerned) have the right, at its option, within thirty (30) days after the receipt of the Mortgagee Notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such Breach and to add the cost thereof to the mortgage debt and the lien of its mortgage; provided, however if the Mortgagee is legally prevented from curing such Breach because of a bankruptcy by the Owner then the thirty (30) day period shall be tolled until such bankruptcy is confirmed or rejected. Nothing contained in this First Amended and Restated Development Agreement shall be deemed to permit or authorize such Mortgagee to take advantage of Owner's rights hereunder, or any portion thereof, without first having expressly assumed Owner's obligations to the City by written agreement reasonably satisfactory to the City. It is understood that a Mortgagee shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy Owner default which requires title and /or possession of the Property (or portion thereof) if and to the extent any such Mortgagee has within such thirty (30) day period commenced proceedings to obtain title and /or possession and thereafter the Mortgagee diligently pursues such proceedings to completion and cures or remedies the Breach, provided that, in such event, all noncurable Defaults shall be waived. 067619 \5448832v5 21 75A -280 8.3 Mortgagee Not Obligated Under this First Amended and Restated Development Agreement. Unless a Mortgagee expressly assumes Owner's Obligations to the City in accordance with Section 8.2, no Mortgagee shall in any way be obligated by the provisions of this First Amended and Restated Development Agreement, nor shall any covenant or any other provision in this First Amended and Restated Development Agreement be construed to obligate such Mortgagee. Nothing in this First Amended and Restated Development Agreement shall be deemed to construe, permit or authorize any such Mortgagee to devote the Mortgage Parcel to any uses or to construct any improvements on the Mortgagee Parcel, other than those uses or improvements provided for or authorized by this First Amended and Restated Development Agreement. 8.4 No Liability. No Mortgagee shall have any liability beyond its interest in the Mortgage Parcel acquired through enforcement of its Mortgage for the performance or payment of any covenant, liability, warranty or obligation under this First Amended and Restated Development Agreement. City agrees that it shall look solely to the interests of such Mortgagee in such Mortgage Parcel for payment or discharge of any such covenant, liability, warranty or obligation. 8.5 No Amendment or Termination. This First Amended and Restated Development Agreement shall not, without the prior written consent of all Mortgagees holding Mortgages on any portion of the Property, be amended to (a) terminate this First Amended and Restated Development Agreement prior to the expiration of the Term (except as expressly provided above) or (b) change any provision of this First Amended and Restated Development Agreement which, by its terms, is specifically for the benefit of Mortgagees. No amendment to this First Amended and Restated Development Agreement affecting the Property or any part thereof, made without the consent of any Mortgagee holding a Mortgage on such Property, or any part thereof, shall be binding upon such Mortgagee or its successors in interest should it become a party hereto. 8.6 Condemnation or Insurance Proceeds. Nothing in this First Amended and Restated Development Agreement shall impair the rights of any Mortgagee, pursuant to its Mortgage, to receive insurance and /or condemnation proceeds which are otherwise payable to Owner granting such Mortgage. 8.7 Title by Foreclosure. Except as otherwise set forth herein, all of the provisions contained in this First Amended and Restated Development Agreement applicable to any of the Mortgage Parcel shall be binding on 067619 \5448832v5 22 75A -281 and for the benefit of any person who acquires title to the property, or any part thereof, by foreclosure under a Mortgage or transfer by deed in lieu. 8.8 Delegation to Mortgagee. Owner may delegate and /or assign irrevocably to any Mortgagee the non - exclusive authority to exercise any or all of Owner's obligations and /or rights hereunder with respect to the Mortgage Parcel, but no such delegation shall be binding upon the City unless and until either Owner or such Mortgagee shall give to the City a true and correct copy of a written instrument effecting such delegation. Such delegation of authority may be effected by the terms of the Mortgage itself, in which case service upon the other Party of an executed counterpart or conformed copy of said Mortgage, together with written notice specifying the provisions therein which delegates such authority to said Mortgagee, shall be sufficient to give such other Party notice of such delegation. No such delegation or assignment shall relieve the Owner of that Mortgage Parcel of any of its obligations hereunder with respect to such Mortgage Parcel. 8.9 No Obligation to Cure. Nothing herein contained shall require any Mortgagee to cure any default of Owner referred to above. 8.10 Separate Agreement. The City shall, upon request, execute, acknowledge and deliver to each Mortgagee requesting same, an agreement prepared at the sole cost and expense of Owner, in form satisfactory to such Mortgagee and the City, between the City and the Mortgagees, agreeing to all of the provisions hereof, provided Owner pays for all legal and other consulting costs incurred by City in reviewing same. 8.11 Estoppel Certificate. Within thirty (30) days after written request therefore, the City shall execute and deliver to any proposed Mortgagee in connection with its new Mortgage and to such Mortgagee thereafter from time to time an estoppel certificate in form and substance satisfactory to Owner and such Mortgagee ( "Estoppel Certificate "). The City hereby agrees to reasonably cooperate in including in any such Estoppel Certificate from time to time any provision which may reasonably be requested by any proposed Mortgagee for the purpose of implementing the Mortgagee protection provisions contained in this Section 8 and allowing such Mortgagee reasonable means to protect or preserve the lien and security interest of its Mortgage hereunder, clarifying the non - applicability of the provisions of this First Amended and Restated Development Agreement to such Mortgagee as it relates to parcels other than the Mortgage Parcel, and /or such other terms and provisions as are customarily required by Mortgagees (taking into account the customary requirements of their participants, syndication partners or ratings 067619A5448832v5 23 75A -282 agencies) in connection with any such financing; provided, however, that no such Estoppel Certificate shall in any way materially adversely affect any rights of the City or increase any obligations of City under this First Amended and Restated Development Agreement. 8.12 Conflicts. If there is any conflict between this Section 8 and any other provision contained in this First Amended and Restated Development Agreement, this Section 8 shall control. 9. MISCELLANEOUS PROVISIONS. 9.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall' is mandatory; "may" is permissive. If there is more than one signer of this First Amended and Restated Development Agreement, their obligations are joint and several. 9.2 Entire Agreement, Waivers and Amendments. This First Amended and Restated Development Agreement constitutes the entire understanding and agreement of the Parties with respect to the matters set forth in this First Amended and Restated Development Agreement. This First Amended and Restated Development Agreement supersedes all negotiation or previous agreements between the Parties respecting this First Amended and Restated Development Agreement. All waivers of any provision of this First Amended and Restated Development Agreement must be in writing and signed by the appropriate authorities of City or of Owner. All amendments to this First Amended and Restated Development Agreement must be in writing signed by the appropriate authorities of City and Owner, in a form suitable for recording in the Official Records of Orange County, California. Upon the completion of performance of this First Amended and Restated Development Agreement or its revocation or termination, an appropriate Certificate of Completion acknowledging such occurrence signed by the appropriate agents of Owner and City shall be recorded in the Official Records of Orange County, California. 9.3 Project as a Private Undertaking. It is specifically understood by the parties that: (a) the Project is a private development for purposes of Government Code Section 65864 et seq.; (b) City has no interest in or responsibilities for or duty to third parties concerning any improvements to the Property or in connection with the Project; and (c) Owner shall have the full power and exclusive control of the Property subject to the obligations of Owner set forth in this First Amended and Restated Development Agreement. 067619 \5448832v5 24 75A -283 9.4 Incorporation of Recitals. The Recitals set forth in Section 1 of this First Amended and Restated Development Agreement are part of this First Amended and Restated Development Agreement. 9.5 Captions. The captions of this First Amended and Restated Development Agreement are for convenience and reference only, and shall not define, explain, modify, construe, limit, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this First Amended and Restated Development Agreement. 9.6 Consent. Where the consent or approval of a Party is required by or necessary under this First Amended and Restated Development Agreement, the consent or approval shall not be unreasonably withheld. 9.7 Covenant of Cooperation. The Parties shall cooperate with and deal with each other in good faith. They will assist each other to the extent needed in the performance of the provisions of this First Amended and Restated Development Agreement. 9.8 Time of Essence. Time is of the essence for each provision of this First Amended and Restated Development Agreement of which time is an element. 9.9 Conflicts of Law. In the event that state or federal laws or regulations enacted after this First Amended and Restated Development Agreement has been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this First Amended and Restated Development Agreement or require changes in plans, maps, or permits approved by the City, the parties shall provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy, and a statement of conflict with the provisions of this First Amended and Restated Development Agreement. The Parties shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this First Amended and Restated Development Agreement to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state law or regulation upon this First Amended and Restated Development Agreement, the matter shall be scheduled for hearing before the Council. Public notice of such hearing shall be given pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation pursuant to Government Code Section 067619 \5448832v5 25 75A -284 65869.5. At the hearing Owner shall have the right to offer oral and written testimony. 9.10 Recording. The City Clerk shall cause a copy of this First Amended and Restated Development Agreement to be recorded with the Office of the County Recorder of Orange County, California, within ten (10) days following the effective date of this First Amended and Restated Development Agreement. IN WITNESS WHEREOF, this First Amended and Restated Development Agreement has been executed by the City of Santa Ana and by Owner. Dated this day of 2013. ATTEST: THE CITY OF SANTA ANA Clerk of the Council City Manager Approved as to Form: LYON HOUSING (FIRST STREET) XLVIIi, LLC a Delaware limited liability company By: Name: Title: Title: 067619 \5448832v5 26 75A -285 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On , 2013 before me, a Notary Public in for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On , 2013 before me, a Notary Public in for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and official seal. Signature of Notary Public 067619 \5448832v5 27 75A -286 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On , 2013 before me, a Notary Public in for said state, personally appeared , who proved to me on the basis of satisfactory evidence to be the City Manager of THE CITY OF SANTA ANA, the charter city that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the within instrument pursuant to its bylaws or a resolution of its City Council. WITNESS my hand and official seal. Signature of Notary Public 067619 \5448832v5 28 75A -287 Property Legal Description THAT PORTION OF LOT 15 OF THE MAYBURY TRACT, IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 36, PAGE 65 OF MISCELLANEOUS MAPS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL No. 1 AS SHOWN ON A MAP FILED IN BOOK 98, PAGE 30 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA, AS AMENDED BY A CERTIFICATE OF CORRECTION RECORDED OCTOBER 20, 1977 IN BOOK 12424, PAGE 543 OF OFFICIAL RECORDS. EXCEPTING THEREFROM THAT PORTION OF PARCEL 1 AS SHOWN ON A MAP FILED IN BOOK 98, PAGE 30 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA, SITUATED IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID PARCEL I; THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 1 NORTH 89 031'52" EAST 34.14 FEET; THENCE NORTH 45 °19'14" WEST 38.26 FEET TO A LINE PARALLEL WITH AND FEET EASTERLY FROM THE WESTERLY LINE OF SAID PARCEL 1; THENCE SOUTH 89 049'39" WEST 7.00 FEET TO SAID WESTERLY LINE; THENCE ALONG SAID WESTERLY LINE SOUTH 0 010'21" EAST 27.18 FEET TO THE POINT OF BEGINNING, AS GRANTED TO THE CITY OF SANTA ANA, IN DEED RECORDED SEPTEMBER 18, 1990 AS INSTRUMENT No. 90- 493896, OF OFFICIAL RECORDS. Orange County Assessor's Parcel Number 400 - 081 -08 067619\5448832v5 Exhibit A -I 75A -288 EXHIBIT B Property Site Plan 067619\5448832,5 Exhibit B -1 75A -289 EXHIBIT C Public Art Plan 1. The Public Art shall be designed, constructed, and installed by Owner. 2. A Final Design Plan for the Public Art shall be submitted to the City's Planning Commission within thirty (30) days prior to the issuance of a Final Certificate of Occupancy for the first unit of the Project. The Final Design Plan shall (i) identify one (1) or more specific items of Public Art for one (1) or more specific locations and /or application, and (ii) specify the timing of the installation of the Public Art. The installation shall occur no later than 180 days after the first utility release for the Project. Owner shall expend not less than One Hundred Twenty Five Thousand Dollars ($125,000) in total in connection with the Public Art. 3. The Public Art should invite participation and interaction, inspire, add local meaning, interpret the community by revealing its culture or history, and /or capture or reinforce the unique character of the new place. 4. The Public Art should be constructed using durable materials and finishes including but not limited to stone or metal. 5. The Public Art should be comprised of a single or grouped permanent work(s) at a prime location visible to the public and sited to complement features such as plaza or architectural components so that the Public Art is an integral part of the development site. 6. No Public Art shall include advertising of any type, including but not limited to products, service, or businesses. 7. All Public Art shall be properly maintained at all times, be free of any graffiti, and shall not incorporate any flashing or distracting form of illumination. 8. The Owner may assign ownership, maintenance and /or repair responsibilities of the Public Art to one or more Owners' Association(s). 9. All Public Art shall remain on the Property and may not be removed without the approval of the Planning Commission. 10. Expenses not included in the Public Art Fee. a. Expenses to locate the artist(s) (e.g., airfare for artist interviews, etc.) b. Architect and Landscape Architect fees incurred in connection with the Public Work(s) of Art. 067619\5448832v5 Exhibit C -1 75A -290 C. Landscaping around Public Work(s) of Art that is not included as part of the artist's sculpture furnishings, including, but not limited to, functional structures, prefabricated water or electrical features not created by the artist, and ornamental enhancements. d. Utility fees associated with activating electronic or water generated artwork. e. Lighting elements not integral to the illumination of the Public Art. f. Publicity, public relations, photographs, educational materials, business letterhead or logos bearing artwork image. g. Dedication ceremonies, including sculpture unveilings or grand openings. 0e7e19v5448832v5 Exhibit C -2 75A -291 EXHIBIT D Additional Offsite Mitigation Measures Improvement Location Pay fair share of all costs to acquire Fourth Street at Southbound SR -55 on- required right of way for and construct ramp (Tustin Avenue to SR -55) eastbound right turn lane In order to implement & satisfy mitigation measure MM 4.12 2, construct raised First Street and Cabrillo along the "pork- chop" island to Public Works project frontage Agency specifications Note: For offsite public improvements constructed by Owner (i.e., "pork -chop' island), it shall pay all workers employed in connection with the work not less than the prevailing rates of wages, as provided in the statutes applicable to public works contracts, including without limitation §§ 1770 -1780 of the California Labor Code. 067619\5448832v5 Exhibit D -1 75A -292 ROH — 08/26/13 RESOLUTION NO. 2013- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE ADDENDUM TO THE FINAL ENVIRONMENTAL IMPACT REPORT NO. 2006 -01 AND APPROVING THE MITIGATION MONITORING AND REPORTING PROGRAM; APPROVING VESTING TENTATIVE TRACT MAP NO. 2013 -04 AS CONDITIONED; AND, APPROVING SITE PLAN REVIEW NO. 2013 -03 AS CONDITIONED FOR THE PROPERTY LOCATED AT 1901 EAST FIRST STREET BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The Applicant is requesting approval of an addendum to a final environmental impact report, an amendment to a development agreement, a vesting tentative tract map, and a site plan review to allow the construction of a new multi- family residential development at 1901 East First Street. B. The Planning Commission has, following a duly noticed public hearing, on August 26, 2013, recommended the approval of the following items: 1. Adopt a resolution approving the Addendum to the Final Environmental Impact Report No. 2006 -01 and approve the Mitigation Monitoring and Reporting Program. 2. Adopt an ordinance approving the first amendment to Development Agreement No. 2007 -01. 3. Adopt a resolution approving Vesting Tentative Tract Map No. 2013 -04 as conditioned. 4. Adopt a resolution approving Site Plan Review No. 2013 -03 as conditioned. C. On September 16, 2013 the City Council of the City of Santa Ana held a duly noticed public hearing and at that time considered all testimony, written and oral. D. Vesting Tentative Tract Map No. 2013 -04 has been filed seeking approval of a vesting tentative tract map for condominium purposes. Resolution No. 2013 - 75A -293 Page 1 of 15 1. To adopt a Vesting Tentative Tract Map, California Government Code Section 66474 requires the following findings: i. The proposed project, as conditioned, and its design and improvements are consistent with the District Center designation on the General Plan and are otherwise consistent with all other elements of the General Plan. The proposed subdivision, Vesting Tentative Tract Map No. 2013 -04, will be consistent with the proposed District Center land use designation and density prescribed and all other elements of the General Plan. Policy No. 1.3 of the General Plan Land Use Element encourages high- density residential development within the City's District Centers. Further, Policy No. 1.4 promotes the maintenance and fostering of a variety of residential land uses in the City. ii. The proposed project, as conditioned, conforms to all applicable requirements of the zoning and subdivision codes as well as other applicable City ordinances. The proposed subdivision conforms to the minimum condominium requirements, as well as meets the letter and intent of the State of California Subdivision Map Act Provisions. Tentative Tract Map No. 2013 -04 is in keeping with the site plan review for the project as well as Chapters 34 and 41 of the Santa Ana Municipal Code. Covenants, Conditions and Restrictions (CC &Rs) are required for the project, which need to be approved by the City prior to the recordation of the final map. iii. The project site is physically suitable for the type and density of the proposed project. The proposed site consists of approximately five acres of land within the Metro East Mixed Use Overlay Zone, which is physically suitable for the residential development as proposed. Access to the site will occur on First Street and Cabrillo Park Drive. There are no physical constraints on the site to preclude development. Resolution No. 2013 - 75A -29 w Page 2 of 15 iv. The design and improvements of the proposed project will not cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat. An Environmental Impact Report (EIR), as well as an addendum to the certified EIR, was prepared pursuant to the California Environment Quality Act for the project. The project site is located in an urbanized area, and there are no known fish or wildlife populations existing on the project site. Therefore, the proposed subdivision will not cause any substantial environmental damage or substantially and avoidably injure fish and wildlife or their habitat. V. The design or improvements of the proposed project will not cause serious public health problems. The proposed subdivision will not effects upon the general public. long -term unavoidable adverse Environmental Impact Report have any detrimental The short-term and impacts identified in No. 2006 -01, and affirmed by the recently completed addendum to the EIR, as it pertains to air quality and traffic, were addressed by the adoption of a statement of Overriding Considerations by the City Council. Any other negative or adverse impacts will be mitigated through mitigation measures identified in Environmental Impact Report No. 2006 -01. vi. The design or improvements of the proposed project will not conflict with the easements acquired by the public at large for access through or use of property within the proposed project. There is no easement for public access currently existing on this property. Therefore, the proposed project will not conflict with easements necessary for public access through or use of the property. However, the applicant will be granting an easement for pedestrian purposes over the northern portion of the site, which will allow public access throughout the Metro East area. E. Applicant has requested approval of Site Plan Review No. 2011 -01 as conditioned. 75A -295 Resolution No. 2013 - Page 3 of 15 1. Section 41 -595.5 of the Santa Ana Municipal Code requires a review by the Planning Commission of all plans within a specific development plan area to ensure the project is in conformity with the Specific Plan. 2. Based on the following review, the project is in compliance with all applicable development standards outlined within the Metro East Mixed Use (MEMU) Overlay Zone: Is the proposed development plan consistent with and will further the objectives outlined in Section 1.2 for the MEMU Overlay Zone? The proposed mixed -use development project by Lyon Communities will be compatible with Section 1.2 (Objectives) of the Metro East Overlay zone as the project will be a mixed use project that will allow persons to live, work and shop in the immediate area. Further, the project will incorporate an active streetscape that will integrate the private development with the public realm and will assist in creating a distinct identity for the district. ii. Is the proposed development plan consistent with the development standards specified in Section 4 of the MEMU Overlay Zone? The proposed project is consistent with Section 4 (Development Standards) of the MEMU zone. The project is in compliance with the various development standards for the Active Urban District, including setbacks, parking, lot size and open space. iii. Is the proposed development plan designed to be compatible with adjacent development in terms of similarity of scale, height, and site configuration and otherwise achieves the objectives of the Design Principles specified in Section 5 of the MEMU Overlay Zone? The project site is compatible with adjacent development and achieves the design principles outlined in Section 5 (Design Principles) of the MEMU plan. The project is in close proximity to several mid - rise buildings in the area and has been designed to complement these developments. Further, the project incorporates a variety of architectural materials, Resolution No. 2013 - 75A -296 Page 4 of 15 massing and ground floor uses that are compatible with the MEMU plan. iv. Have the land use uses, site design, and operational considerations in the proposed development plan been planned in a manner that will result in a compatible and harmonious operation as specified in Section 7 of the MEMU Overlay Zone? The proposed project has been designed to be compatible and identified in Section 7 (Operational Standards) of the MEMU plan. The projects windows, lighting and operational hours will result in a project that will not impact the proposed residential uses or the adjacent commercial and office uses. Section 2. The City Council previously approved and adopted Final Environmental Impact Report No. 2006 -01. In accordance with the California Environmental Quality Act, an Addendum to the Final Environmental Impact Report No. 2006 -01 and the mitigation monitoring and reporting program was prepared for this project. Based upon the studies, the City Council determines that there are no new significant impacts or any increases in the severity of the impacts previously identified in the original Environmental Impact Report. The City Council hereby approves the Addendum to the Final Environmental Impact Report No. 2006 -01 and approves the mitigation monitoring and reporting program, attached hereto as Exhibit "C" and incorporated as though fully set forth herein. Section 3. The City Council of the City of Santa Ana after conducting the public hearing hereby approves: A. Vesting Tentative Tract Map No. 2013 -04 as conditioned in Exhibit "A" attached hereto and incorporated herein for the multi - family residential development located at 1901 East First Street. B. Site Plan Review No. 2013 -03 as conditioned in Exhibit "B" attached hereto and incorporated herein. These decisions are based upon the evidence submitted at the abovesaid hearing, which includes, but is not limited to: the Request for Council Action dated September 16, 2013, and exhibits attached thereto; the public testimony, written and oral; and, the Final Environmental Impact Report No. 2006 -01 and Mitigation Monitoring and Reporting Program that was previously approved and adopted by the City Council, all of which are incorporated herein by this reference. Resolution No. 2013 - 75A -297 Page 5 of 15 Section 4. This Resolution shall not be effective unless and until Ordinance No. NS- becomes effective. If said ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this resolution shall be null and void and have no further force and effect. Section 5. Applicant has requested the approval of the above entitlements which are incompatible with previously granted entitlements. As such, any and all previously approved inconsistent entitlements are hereby null and void and of no further force and effect. Section 6. This decision rendered by the City Council of the City of Santa Ana is final and is subject to judicial review pursuant to California Code of Civil Procedure section 1094.6. The Clerk of the Council shall give direct notice to the applicant of the Council's decision and these findings. ADOPTED this day of September, 2013. APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney LIM Ryan O. Hodge Assistant City Attorney Miguel A. Pulido Mayor Resolution No. 2013 - 75A -298 Page 6 of 15 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. 2013 -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. 2013 - 75A -299 Page 7 of 15 Conditions for Approval for Vesting Tentative Tract Map No. 2013 -04 Should the Planning Commission approve Vesting Tentative Tract Map No. 2012 -01, the approval is subject to compliance, to the reasonable satisfaction of the Planning Manager, with all applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code and all other applicable regulations. The applicant must comply in full with each and every condition listed below prior to exercising the rights conferred by this vesting tentative tract map. The applicant must remain in compliance with all conditions listed below throughout the life of the vesting tentative tract map. Failure to comply with each and every condition may result in the revocation of the vesting tentative tract map. A. Planning Division 1. Comply with all conditions and requirements from the Development Review Committee (DRC) for the development project (DP No. 2013 -17). 2. Covenants, Conditions and Restrictions (CC &Rs) for this project must be reviewed and approved prior to approval of the final tract map. At a minimum, the CC &Rs shall include provisions pertaining to owner occupancy, restrictions on home -based businesses, the prohibition of storage on balconies, and a restriction on truck delivery hours to non -peak periods. 3. All real estate signage must be removed from the site within one year from the date of installation. An extension of time may be granted as determined by the Planning Manager. 4. The final map must be approved and recorded prior to the sale of the first unit. 5. The final map and all improvements required to be made or installed by the subdivider must be in accordance with the design standards and specifications of the Santa Ana Municipal Code and the requirements of the State Subdivision Map Act. 6. Development within the area of the map is subject to development and permit fees in effect at the time of permit issuance. 7. Development within the area of the map is subject to design and development standards in effect at the time of permit issuance. EXHIBIT "A" Resolution No. 2013- 7C A _300 Page 8 of 15 AUGUST 26, 2013 PAGE 2OF3 8. Two copies of the recorded final map and CC &Rs shall be submitted each to the Planning Division, Fire Department, Building Division, and Public Works Agency within 10 days of recordation. 9. Pursuant to Section 66474.9(b) of the Subdivision Map Act, the applicant shall defend, indemnify, and hold harmless the City, and its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, any approval of the City concerning this subdivision application, which action is brought within the time period provided for in Section 66499.37. B. Police Department 1. A security plan must be submitted to the Police Department at the plan check stage for approval. The plan will be required to outline hours of operation for the parking structure (secured /open), a duress alarm system for the parking structure and an access control system for the perimeter of the building and parking structure. 2. Resident parking must be physically separated and secured from all guest parking. 3. Each door within the parking structure and buildings leading into a stairwell, lobby or storage area must be outfitted with a 100 square inch fire rated window. Convex mirrors a minimum of 12- inches in diameter must be installed at each stairwell landing and at each corner along a walkway. The last flight of stairs must be fully enclosed at its base. 4. Elevator lobbies must be glass encased (glass entry doors) to provide the user with maximum visibility. Elevators are to be equipped with minimum 12 inch shatterproof convex mirrors or are to have mirrored backings. 5. All parking structure vehicular entrances are to be secured with a rolling grille and outfitted with a Police Department sub mastered Knox box. 6. Parking structure first floor exits are to be designed to allow emergency egress only with no exterior hardware. /� Resolution No. 2013 - 75A -301 Page 9 of 15 AUGUST 26, 2013 PAGE 3 OF 3 7. Building and unit addressing must comply with the City's emergency service standards. 8. Lobby doors must be equipped with a Police Department approved access control system. 9. Provide a minimum 100 square inch window in the trash room doors. 10. Parking structure elevators must be equipped with an approved access control system. 11. Provide a photometric study showing compliance with the 1 footcandle requirement for all walkways and the parking structure. 12. The townhome parking garage space within the parking structure must be equipped with a grille or door. Resolution No. 2013 - 75A -302 Page 10 of 15 Conditions of Approval for Site Plan Review No. 2013 -03 Site Plan Review No. 2013 -03 is approved subject to compliance, to the reasonable satisfaction of the Planning Manager, with applicable sections of the Santa Ana Municipal Code, the California Administrative Code, the California Building Standards Code, and all other applicable regulations. In addition, it shall meet the following conditions of approval: The applicant must comply with each and every condition listed below rip or to exercising the rights conferred by this site plan review. The applicant must remain in compliance with all conditions listed below throughout the life of the development project. Failure to comply with each and every condition may result in the revocation of the site plan review. A. Planning Division 1. All proposed site improvements must conform with the Site Plan Review approval of DP No. 2013 -17. 2. Any amendment to this site plan review must be submitted to the Planning Division for review. At that time, staff will determine if administrative relief is available or if the site plan review must be amended. 3. Prior to submittal into building plan check, a project phasing plan shall be submitted to the Planning Division for review and approval. The phasing plan shall include a landscape plan identifying the treatment of the remainder building site. 4. The project shall incorporate on -site professional property management for the residential component. 5. Balconies for the project shall maintain a minimum dimension of not less than five feet in any direction. 6. Balconies for the project shall incorporate the use of stainless steel railings 7. Covenants, Conditions and Restrictions (CC &Rs) for this project must be reviewed and approved prior to approval of the final tract map. At a minimum, the CC &Rs shall include provisions pertaining to owner occupancy, restrictions on home -based businesses, the prohibition of storage on balconies, and a restriction on truck delivery hours to non -peak periods. EXHIBIT "B" Resolution No. 2013 - 75A -303 Page 11 of 15 AUGUST 26, 2013 PAGE 2OF5 8. All parking for the project shall be made available free of charge. Parking spaces for each unit shall be provided as a part of the deed for each dwelling unit. 9. After project occupancy, landscaping is to be maintained to include the minimum level of plant materials installed at the time of occupancy as required by the approved plans. 10. A detailed amenity deck plan must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the hardscape design, lighting concepts and outdoor furniture for the amenity deck as well as an installation plan. The exact specifications for these items are subject to the review and approval of the Planning Manager. The amenity deck shall be maintained in the same condition as installed at the time of occupancy. 11. A detailed water feature plan must be reviewed and approved prior to issuance of any building permits. The plan shall include a minimum of one water feature within the motor court, elevations, hardscape design, lighting concepts and an installation plan. The exact specifications for these items are subject to review and approval of the Planning Division. The water feature(s) shall be maintained in the same condition as installed at the time of occupancy. 12. At a minimum, the following items must be included as exterior amenities for the development: bike racks, enhanced paving on the walkways, an outdoor fireplace, barbeque and a pool on the amenity deck. The exact specifications for these items are subject to the review and approval of the Planning Division. 13. An interior building amenity plan of all common areas (recreation room, meeting rooms, fitness rooms and lobbies) must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the various finishes, furniture and equipment to be provided in these rooms. The exact specifications for these items are subject to the review and approval of the Planning Manager. Resolution No. 2013 - 75A -3U w Page 12 of 15 AUGUST 26, 2013 PAGE 3 OF 5 14. An interior amenity plan for the units must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the various finishes, furniture and equipment to be provided in these rooms. Examples of a level of quality required for the project include granite counter tops or equivalent, hardwood flooring or equivalent, General Electric Monogram appliances or equivalent, tiled bathroom and shower walls, stain grade hard wood cabinets and individual laundry hook -ups. The exact specifications for these items are subject to the review and approval of the Planning Manager. 15. An elevator lobby plan of each lobby must be reviewed and approved prior to issuance of any building permits. The plan shall include details on the finishes and flooring to be provided. The exact specifications for these items are subject to the review and approval of the Planning Manager. 16. Prior to submittal into building plan check, detailed elevations shall be submitted to include exterior finishes, materials, and colors subject to approval of the Planning Division. 17. A Public Art Plan which proposes a specific work(s) of art for a specific location(s) shall be submitted to the Planning Commission for review and approval. All public art approved by the Planning Commission shall be completely installed prior to the issuance of a certificate of occupancy for the project. 18. A detailed landscape plan must be reviewed and approved prior to issuance of any building permits. In addition to the landscaping palette, the plan shall include details on the hardscape design, lighting concepts and outdoor furniture. At a minimum, the project shall incorporate the amount and size of landscaping as shown on the preliminary landscape plan. The exact specifications for these items are subject to the review and approval of the Planning Division. 19. The following items must be included as interior amenities within the common areas: granite counter tops, hardwood flooring or equivalent, and gas fireplaces. The exact specifications for these items are subject to the review and approval of the Planning Division. /� Resolution No. 2013 - 75A -305 Page 13 of 15 AUGUST 26, 2013 PAGE 4 OF 5 20. Pedestrian walkways shall be provided through the project. The amenities to be provided along this pathway shall include decorative concrete and paving, accent lighting, and landscape planters. The materials and design of the walkway is subject to the review and approval of the Planning Division. 21. A Resident Storage Plan shall be provided for the project. Storage shall be available at no cost to the residents. 22. Cast iron drain pipes shall be provided for the project. 23. Smart wiring, including cable television and high -speed cable for computers, shall be provided for each unit and within the project's common areas. 24. Construction workers for the project shall be prohibited from parking in the adjacent neighborhoods. 25. Prior to occupancy of any units, a rental housing execution plan must be submitted to the Planning Division for review and approval. At a minimum, the plan shall identify the location of employee and visitor parking, the location of the rental office, hours of operation for the rental office, and signage affiliated with the Rental Housing Operational Plan. In addition, the rental plan must clearly note that the parking and project amenities must be provided free of charge to the residence. 26. Prior to submittal into building plan check, the design for the courtyard gates shall be submitted to the Planning Division for approval. The fences /gates shall be decorative and ornamental in nature as they are the entries to the interior courtyards. 27. The following best management practices (BMPs) need to be incorporated into the project construction and operation to minimize greenhouse gas impacts: a. Install energy efficient lighting, appliances, heating, and cooling systems. b. Install efficient lighting for street and other outdoor lighting. C. Reduce unnecessary outdoor lighting. d. Provide education on energy efficiency to residents and /or tenants. e. Install water - efficient irrigations systems and devices. Resolution No. 2013 - 75A -306 Page 14 of 15 AUGUST 26, 2013 PAGE 5 OF 5 f. Design buildings to be water - efficient. Install water - efficient fixtures and appliances. g. Provide education about water conservation. h. Provide easy and convenient recycling opportunities for residents and tenants. i. Provide education on recycling waste. Resolution No. 2013 - 75A -307 Page 15 of 15 75A -308 REQUEST FOR COUNCIL/ HOUSING AUTHORITY ACTION MEETING DATE: SEPTEMBER 16, 2013 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED ❑ As Recommended SUBSTANTIAL AMENDMENTS TO NEIGHBORHOOD ❑ As Amended STABILIZATION PROGRAMS 2 8r 3 AND LOAN ❑ Ordinance on 1st Reading AGREEMENT WITH 815 N HARBOR, LP ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER XECU IVE DI CTOR RECOMMENDED ACTION CITY COUNCIL ACTION 1. Approve a substantial amendment to the Neighborhood Stabilization Program 2 application to add redevelopment activity and allow incomes up to 60 percent Area Median Income, and authorize its submittal to the U.S. Department of Housing and Urban Development. 2. Approve a substantial amendment to the 2013 -14 Annual Action Plan revising the Neighborhood Stabilization Program 3 to add redevelopment activity, and authorize its submittal to the U.S. Department of Housing and Urban Development. 3. Authorize the Interim City Manager and the Clerk of the Council to execute a loan agreement with 815 N Harbor, LP in the amount of $2,000,000 subject to non - substantive changes approved by the Interim Executive Director of Community Development and City Attorney. HOUSING AUTHORITY ACTION Authorize the Executive Director of the Housing Authority or designee, contingent upon approval by the U.S. Department of Housing and Urban Development, to complete and execute the Project - Based Vouchers (PBV) Agreement to Enter into Housing Assistance Payments Contract and, after construction of the 815 N. Harbor project, to complete and execute the PBV Housing Assistance Payment Contract between the Housing Authority of the City of Santa Ana and 815 N Harbor, LP for up to eight PBV's, and other necessary documents, for the implementation of project -based vouchers of the 815 N. Harbor project. 80A -1 Substantial Amendments — NSP 2 & 3 and Loan Agreement with 815 N Harbor LP September 16, 2013 Page 2 FINANCE, ECONOMIC DEVELOPMENT AND TECHNOLOGY COMMITTEE REVIEW The Finance, Economic Development and Technology Committee reviewed this matter at its meeting on August 6, 2013. The Committee has reviewed the recommended actions and recommends that the City Council to adopt and authorize actions. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION RECOMMENDATION At its regular meeting on September 3, 2013, by a vote of 5:0 (Aguinaga, Verino absent) the Community Redevelopment and Housing Commission conducted a public hearing and approved the recommended actions stated above. DISCUSSION SUBSTANTIAL AMENDMENTS TO NEIGHBORHOOD STABILIZATION PROGRAMS 2 & 3 The City of Santa was awarded $10 million in the second round of Neighborhood Stabilization Program (NSP 2) and allocated $1,464,113 in the third round of Neighborhood Stabilization Program (NSP 3) which is to be used to purchase foreclosed or abandoned properties. The proposed substantial amendment for NSP 2 will amend the program activities to include and reallocate funds for the redevelopment activity. This activity will allow the development of rental housing for low- income households at or below 60 percent of area median income. The requirement of 25 percent of NSP 2 funds spent on activities benefiting very low- income households has already been achieved through past activities. The proposed substantial amendment for NSP 3 will add the redevelopment activity. The eligible household incomes will be at 50 percent and 60 percent of the area median income (AMI). The proposed changes for the NSP 2 and NSP 3 are identified as follows: NSP 2 Program Activities Current Proposed Allocation Allocation 1. Down payment Assistance (up to 120% AMI) $ 400,000 $ 400,000 2. Acquisition, Rehabilitation & Resale of Single Family Residences (up to 120% AMI) $ 6,100,000 $ 5,171,380 3. Acquisition & Rehab of Rental Housing (up to 5)% AMI) $ 2,500,000 $ 2,500,000 4. Redevelopment of Vacant Properties as Rental Housing for Low - Income Households (up to 50% AMI) $ 0 $ 742,896 5. Redevelopment of Vacant Properties as Rental Housing $ 0 $ 185,724 80A-2 Substantial Amendments — NSP 2 & 3 and Loan Agreement with 815 N Harbor LP September 16, 2013 Page 3 for Low - Income Households (up to 60% AMI) Current Budget Proposed 6. Administration $ 1,000,000 $ 1,000,000 TOTAL NSP 2 GRANT $ 10,000,000 $ 10,000,000 NSP 3 Program Activities Current Budget Proposed Budget 1. Acquisition, Rehabilitation & Resale of Single Family $ 366,029 $ 0 Residences up to 50% AM]) 2. Acquisition, Rehabilitation & Resale of Single Family $ 951,674 $ 246,323 Residences (up to 120% AMI 3. Redevelopment of Vacant Properties as Rental Housing $ 0 $ 857,104 for Low- Income Households up to 50% AMI 4. Redevelopment of Vacant Properties as Rental Housing $ 0 $ 214,276 for Low - Income Households up to 60% AMI 5. Administration $ 146,410 $ 146,410 TOTAL NSP 3 GRANT $ 1,464,113 $ 1,464,113 The addition of this activity will help the City to expend the NSP funds within the required expenditure deadlines. In addition, the City will be able to achieve the 100 unit goal requirement for NSP 2 funding. A public notice was published on August 19, 2013, in the Orange County Register, La Opinion and Nguoi Viet News indicating the draft Neighborhood Stabilization Program 2 & 3 substantial amendments was available for review for the required fifteen (15) days. In addition, it was posted on the City's website. LOAN AGREEMENT WITH 815 N HARBOR, LP Orange Housing Development Corporation and C &C Development have been previously approved and contracted to implement the NSP 1 & 2 rental activities. They are currently under contract for an NSP eligible property located at 815 N. Harbor Blvd (Exhibit 3). The proposed partnership is tentatively named 815 N Harbor, LP. The property is located within the proposed Corridor (CDR) Zoning District which is proposed to allow for moderate to high density residential projects. The proposed site is approximately 2.26 acres. Exhibit 4 is the proposed development timeline. 80A -3 Substantial Amendments — NSP 2 & 3 and Loan Agreement with 815 N Harbor LP September 16, 2013 Page 4 The proposed loan agreement between 815 N Harbor, LP and the City of Santa Ana is for $2 million. The funds will come from NSP 2 and NSP 3 allocations, and will be used for the acquisition of the property. When complete, the project will be comprised of 70 two- bedroom and three - bedroom rental units for extremely low -, very low- and low- income households and contain a 3,000 square foot community room. The proposed unit mix and levels of affordability are as follows: Bedroom Size 30% AMI 50% AMI 60% AMI Total Two - Bedroom 5 30 14 49 Three - Bedroom 2 12 6 20 Total 7 42 20 69 The remaining unit will be a three - bedroom unit reserved for the onsite manager. The total project development cost is estimated to be $26.3 million. The tables below show the anticipated funding sources and their uses: Funding Source Amount Conventional Permanent Loan $ 4,370,390 Section 8 Loan 8 Project Based Vouchers $ 719,050 City of Santa Ana NSP 2 Funds $ 928,620 City of Santa Ana NSP 3 Funds $ 1,071,380 Deferred Developer Fee $ 792,342 General Partner Equity $ 100 Limited Partner Equity Tax Credits) $ 18,405,476 TOTAL $26,287,358 Fundin Use Amount Acquisition /Demolition $ 4,086,366 Construction $ 15,336,750 Soft Costs $ 6,013,076 Costs Deferred Until Conversion $ 501,390 Financing Costs $ 349,776 TOTAL $ 26,287,358 Substantial Amendments — NSP 2 & 3 and Loan Agreement with 815 N Harbor LP September 16, 2013 Page 5 The loan will be a 55 -year affordability term with 0 percent interest rate and payable by residual receipts. The City will record trust deeds and covenants to insure affordability for that period of time. The budget proposal requests eight project based vouchers (PBVs). Unlike conventional housing choice vouchers, PBVs are attached to a specific residential facility. The rental assistance is tied to the unit. The U.S. Department of Housing and Urban Development (HUD) regulations require that the Housing Authority enter into a PBV Agreement to Enter Into Housing Assistance Payments Contract (Exhibit 6) prior to the start of construction, and a PBV Housing Assistance Payments Contact (Exhibit 7) after the completion of construction. Execution of these documents will be contingent upon completion of the National Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA) requirements, approval of the developer's application for a tax credit allocation, and completion of a subsidy layering analysis by the California Tax Credit Allocation Committee. FISCAL IMPACT Funds will be available in the NSP 2 Program account (Account #14218761 - 69152) and NSP 3 Program account (Account #14218762-69152). CA* )�6) Nancy Fong CP Interim Exec ive irector Community Development Agency NF /SLB /kg APPROVED AS TO FUNDS AND ACCOUNTS: Francisco G tier Executive Director Finance and Management Services Agency Exhibit: 1. NSP 2 Substantial Amendment 2. NSP 3 Substantial Amendment 3. 815 Harbor Site Map 4. Proposed Development Schedule 5. Loan Agreement 6. PBV Agreement 7. PBV Contract 80A -5 EXHIBIT 1 CITY OF SANTA ANA NSP 2 SUBSTANTIAL AMENDMENT SUBMISSION RATING FACTOR 1: NEED /EXTENT OF THE PROBLEM (a) Target Geography Substantial Amendment does not change the substance of the original application. (b) Market Conditions and Demand Factors Substantial Amendment does not change the substance of the original application. RATING FACTOR 2: DEMONSTRATED CAPACITY AND RELEVANT ORGANIZATIONAL STAFF (a) Past Experience of the Applicant Substantial Amendment does not change the substance of the original application. (b) Management Structure Substantial Amendment does not change the substance of the original application. RATING FACTOR 3: SOUNDNESS OF APPROACH (a) Proposed Activities (1) The City of Santa Ana is amending the proposed activities of NSP 2 funds to include the eligible activities under the eligible use E — Redevelop demolished or vacant properties as housing. With this substantial amendment, the City will re- allocate NSP 2 funds from Program 2 — Acquisition, Rehabilitation and Resale of Single Family Residences to a new Activity under Program 5 — Redevelop demolished or vacant properties as housing up to 50% AMI and Program 6 - Redevelop demolished or vacant properties as housing up to 60% AMI. The new proposed activity under programs 5 and 6, will allow the City to successfully implement and exceed its target goal of 100 units with NSP 2 funds. The new proposed activity will address the cost burden and overpayment on many renters in the city of Santa Ana, as discussed in the original application's Rating Factor 1 (Need /Extent of the Problem). Program Eligible Use CDBG Eligible Activity Proposed Anticipated Responsible Amount Units Entity 1. Financing Direct $400,000 10 City of Santa Downpayment Mechanism for homeownership Ana Housing Assistance Purchase, Assistance 24 CFR Division Redevelopment 570.201(n) of Foreclosed Properties 2. Acquisition, Financing Acquisition, $5,171,380 50 City of Santa Rehabilitation Mechanism for Rehabilitation, Ana Housing & Resale of Purchase, Disposition, Direct Division Single Family Redevelopment homeownership Residences of Foreclosed assistance for single Residential family homes [24 CFR Properties 570.201(a)(b)(i)(n)] 3. Acquisition Financing Acquisition, $2,500,000 30 City of Santa and Rehab of Mechanism for Rehabilitation, Ana Housing Rental Housing Purchase, Disposition, Direct Division Redevelopment homeownership of Foreclosed assistance for Residential residential rental Properties properties 24 CFR 570.201(a)(b)(i)(n) 4. Administration 24 CFR 570.205 and $1,000,000 N/A City of Santa Administration and Planning 206 Ana Housing Costs Division 5. Redevelop Acquisition, $741,896 49 City of Santa Redevelopment demolished or Disposition [24 CFR Ana Housing of Vacant vacant 770201 (a)] Division Properties as properties as and Eligible Rental Housing housing rehabilitation and for Low - Income preservation activities Households for demolished or (up to 50% vacant properties [24 AMI) CFR 570.202] 6. Redevelop Acquisition, $185,724 20 City of Santa Redevelopment demolished or Disposition [24 CFR Ana Housing of Vacant vacant 770201(a)] Division Properties as properties as and Eligible Rental Housing housing rehabilitation and for Low - Income preservation activities Households for demolished or (up to 60% vacant properties [24 AMI) CFR 570.202] 80A -7 (2) Use of Funds and Firm Commitments In additional to the program activities in the City's original application, the City is submitting this substantial amendment to include the addition of Program 5 and 6 to expedite the City's NSP 2 funds, which is described below: Program 5: Redevelopment of Vacant Properties as Rental Housing for Low - Income Households (up to 50% AMI) This program will be used to acquire vacant properties and redevelop as rental housing for low- income households at or below 50 percent of the area median income. After acquisition and redevelopment, such housing will be code compliant, energy - efficient and be restricted to low- income households with income at or below 50 percent of area median income. The City anticipates that through this activity, with leveraged NSP 3 funds, it will facilitate the acquisition of a vacant commercial property in tax default and redevelop the property into 49 rental units for low- income households. Program 6 Redevelopment of Vacant Properties as Rental Housing for Low - Income Households (up to 60% AMI) This program will be used to acquire vacant properties and redevelop as rental housing for low- income households at or below 60 percent of the area median income. After acquisition and redevelopment, such housing will be code compliant, energy- efficient and be restricted to low- income households with income at or below 60 percent of area median income. The City anticipates that through this activity, with leveraged NSP 3 funds, it will facilitate the acquisition of a vacant commercial property in tax default and redevelop the property into 20 rental units for low- income households. (b) Project Completion Schedule The City's substantial amendment submission will allow the City of Santa Ana to successfully reach and exceed the targeted goal of 100 units with NSP 2 funds within the program schedule. (c) Income Targeting The City has exceeded the 25 percent of its NSP 2 grant allocation on households earning less than 50 percent of the area median income. To expedite the City's NSP 2 funds, the City will target though a funding mechanism for the acquisition and redevelopment of rental properties that exclusively serve households at or below 60 percent of the area median income. By expanding our targeted income for rental properties to 60 percent, the City will be able reach additional low- income households in Santa Ana. (d) Continued Affordability Substantial Amendment does not change the substance of the original application. (e) Consultation, Outreach, Communications Substantial Amendment does not change the substance of the original application. (f) Performance and Monitoring Substantial Amendment does not change the substance of the original application. RATING FACTOR 4: LEVERAGING (a) Leveraged Funds Substantial Amendment does not change the substance of the original application. (b) Rubric Substantial Amendment does not change the substance of the original application. RATING FACTOR 5: ENERGY EFFICIENCY IMPROVEMENTS AND SUSTAINABLE DEVELOPMENT FACTORS (a) Transit accessibility Substantial Amendment does not change the substance of the original application. (b) Green building standards Because the proposed change will yield a project that will be new construction, there will be additional Green building standards and energy efficiency incorporated into the units. The project is anticipated to be LEED Gold. (c) Re -use of cleared sites Substantial Amendment does not change the substance of the original application. (d) Deconstruction Substantial Amendment does not change the substance of the original application. RATING FACTOR 6: NEIGHBORHOOD TRANSFORMATION AND ECONOMIC OPPORTUNITY Substantial Amendment does not change the substance of the original application. 80A -10 ATTACHMENT 1 NOTICE OF PROPOSED ACTION TO BE TAKEN BY THE CITY COUNCIL OF THE CITY OF SANTA ANA RESPECTING A PROPOSED SUBSTANIAL AMENDMENTTO THE CITY OF SANTA ANA 2013 -14 CONSOLIDATED PLAN ANNUAL UPDATE AND A PROPOSED SUBSTANTIAL AMENDMENTTO THE CITY OF SANTA'S NEIGHBORHOOD STABILIZATION PROGRAM 2 APPLICATION NOTICE IS HEREBY GIVEN that the Community Redevelopment and Housing Commission of the City of Santa Ana will conduct a public hearing on September 3, 2013 at 6:00 p.m. at the 2nd Floor Conference Room, 22 Civic Center Plaza, Santa Ana, CA 92701 on a proposed action approving a substantial amendment to the City's 2013 -14 Consolidated Plan Update and a substantial amendment to the City's Neighborhood Stabilization Program 2 (NSP 2) Application. On September 16, 2013 on or about 6:00 p.m. at the City Council Chambers, the City Council will take action on a request to authorize submittal of the substantial amendments to the U.S. Department of Housing and Urban Development (HUD). The proposed amendments will: • Allow incomes up to 60% AMI, and • Add Redevelopment Activity to both NSP 2 and 3. The draft substantial amendments will be available for public review from August 19, 2013 to September 3, 2013 at the following locations Monday through Friday during normal business hours: Housing Department, 20 Civic Center Plaza, 3rd Floor; Community Development Agency, 20 Civic Center Plaza, 6`h Floor; Office of the Clerk of the Council, 20 Civic Center Plaza, Room 809; and the Main Public Library, 26 Civic Center Plaza, Santa Ana, California. Written comments on the proposed amendments must be submitted to the Housing Division on or before September 3, 2013 at 9 a.m. 80A -11 4:4:11: -1k-&a NSP 3 Substantial Amendment Checklist Jurisdiction: City of Santa Ana Lead Agency: City of Santa Ana Jurisdiction Web Address: www.santa - ana.org /cda /nsp.asp NSP Contact Person: Shelly Landry-Bayle Address: 20 Civic Center Plaza, M -37, Santa Ana, CA 92702 Telephone: (714) 667-2287 Fax: (714) 667-2225 Email: slandry- bayle @santa - ana.org The required elements in the substantial amendment /abbreviated action;plan are: A. Areas of Greatest Need Does the submission identify a neighborhood or neighborhoods as being areas of greatest need with an individual or average combined index score for the grantee's identified target geography that is not less than the lesser of 17 Qr'ihe 20" percentile most needy score in an individual state? See http: / /www.hud.00v /nso for minlinum thresholds Yes ® No ❑ Verification -found on page: 1 mended by City Council Action September 4, 2012 to change the Target Geography Area. See Attachment 1 for Ta get Area Map and iPlanning Data 3; B. Distribution afi4t1se of Rinds Does he submission contain a narrative describing how the distribution and uses of the grantee's NSP3 funds will meet the requirements dBection 2301(c)(2) of HERA, as amended by the Recovery Act and the Dodd -Frank Act, that funds be distributed to the areas of greatest need, including those with the greatest percentage of home foreclosures, with the highest percentage of homes financed by a subprime mortgage related loan, and identified by the grantee as likely to face a significant rise in the rate of home for' orecl "osures? Yes ® No ❑ Verification found on page: 1 Note: The grantee's narrative must address the three stipulated need categories in the NSP statute, but the grantee may also consider other need categories. C. Definitions and Descriptions For the purposes of the NSP3, do the narratives include: NSP3 Substantial Amendment City of Santa Ana a definition of "blighted structure" in the context of state or local law Yes ® No ❑ Verification found on page: 2 a definition of "affordable rents" Yes ® No ❑ Verification found on page: 2 • a description of how the grantee will ensure continued affordability for NSP3 assisted housing Yes ® No ❑ Verification found on page: 2 a description of housing rehabilitation standards that provide for improvements to increase energy efficiency or conservation of such homes and properties or to provide for a renewable energy source or sources on homes or properties that will apply to NSP3- assisted activities (including applicable Energy Star requirements) Yes ® No ❑ Verification found on page: Attachment 2 a description of how the grantee will complywith rental housing preference Yes ® No ❑ Verification found on page: 1 a description of how the grantee will meet the vicinity hiring requirement Yes ® No ❑ Verification found on page: 5, 6, 7 1. V lLLlllGll W See Program Activities 1, 2 & 3 Narratives' D. Housing Market Conditions Does the action plan narrative should specifically address how the grantee's program design will address the local housing market Botlditi6hO Verification found on page: 4, 5, 6, 7 Comme{ ts: See Progrefm Activities 1, 2 & 3 Narratives E. Information By,AActivity ` Does the submissioncontain;information by activity describing how the grantee will use the funds, identifying: eligible use of funds under NSP3? Yes ® No ❑ Verification found on page: 4, 6, 7, 8 correlated eligible activity under CDBG? Yes ® No ❑ Verification found on page: 4, 6, 7, 8 • the areas of greatest need addressed by the activity or activities? Yes ® No ❑ Verification found on page: 5, 6, expected benefit to income - qualified persons or households or areas? NSP3 Substantial Amendment City of Santa Ana Yes ® No ❑ Verification found on page: 5, 6, 7, 8 appropriate performance measures for the activity? Yes ® No ❑ Verification found on page: 5, 6, 7, 8 amount of funds budgeted for the activity? Yes ® No ❑ Verification found on page: 5, 6, 7, 8 the name, location and contact information for the entity that will carry out the activity Yes ® No ❑ Verification found on page: 5, 6, 7, 8 • expected start and end dates of the activity? Yes ® No ❑ Verification found on page: 5, 6, 7, 8 • how the grantee shall, to the maximum extent feasible, provide for the hiring of employees who reside in the vicinity of NSP3 projects or contract with small businesses that are owned and operated by persons residing in the vicinity of such project, including information on existing local ordinances that address these requirements? Yes ® No ❑ Verification found on page: 5, 6, 7 the procedures used to create preferences for the development of affordable rental housing developed with NSP3 funds? Yes ® No ❑ Verification found on page: 1 City has no applicable ordinance. F. Specific Activity Re4't6emepts Does each a ttv ty narrative. scfibe 1 incho(Oing: If the activity provides financing the range of interest rates (if any) Yes ®; :No ❑ If the activity provides housing, • duration or term of assistance? Yes ® No ❑ general terms under which assistance will be provided, Verification found on page: 6, 7 Verification found on page: 2 tenure of beneficiaries (e.g., rental or homeownership)? Yes ® No ❑ Verification found on page: 4, 5, 6, 7 does it ensure continued affordability? Yes ® No ❑ Verification found on page: 2 does the applicant indicate which activities will count toward the statutory requirement that at least 25% of funds must be used for housing individuals and families whose incomes do not exceed 50% of area median income? NSP3 Substantial Amendment City of Santa Ana OUM— 114 Yes ® No ❑ Verification found on page: 6 G. Low - Income Targeting Has the grantee described how it will meet the statutory requirement that at least 25% of funds must be used for housing individuals and families whose incomes do not exceed 50% of area median income? Yes ® No ❑ Verification found on page: 3, 6 Has the grantee identified how the estimated amount of funds appropriated or otherwise made available will be used for housing individuals or families whose incomes do not exceed 50% of area median income? Yes ® No ❑ Verification, found on page: 2 -3, 6 Amount budgeted: $857,104,00 Amended by City Council Action September 16, 2013 to include new program activity and to increase tl mated amount of funds appropriated for housing individuals or families whose income do not exceed 50 -ent of Area Median Income. City Council Action amended program activities to include the acquisition redevelopment of vacant properties as aental housing for low- income households at or below 50 percent he Area Median Income as established by IILJ;b H. Demolition or Conversion of Low- And Moderate- Income Units Does grantee plan to demolish or convert any law- and moderate - income dwelling units? Yes ❑ Non Verification found on page: 3 Does the substantial amendment include: • The'number of low- and mode rateAncome dwelling units —i.e., 5 80% of area median income — reasonably expected to 46clemol'ished or converted as a direct result of NSP- assisted activities? Yes ❑ No ❑ Verification found on page: N/A • The number of NSP3 affordable housing units made available to low -, moderate -, and middle - income households —i.e., < 120% of area median income — reasonably expected to be produced by activity and income level as provided for in DRGR, by each NSP3 activity providing such housing (including a proposed time schedule for commencement and completion)? Yes ❑ No ❑ Verification found on page: N/A The number of dwelling units reasonably expected to be made available for households whose income does not exceed 50 percent of area median income? Yes ❑ No ❑ Verification found on page: N/A NSP3 Substantial Amendment City of Santa Ana OVA— 10 0 1. Public Comment Period Was the proposed action plan amendment published via the grantee jurisdiction's usual methods and on the Internet for no less than 15 calendar days of public comment? Yes ® No ❑ Verification found on page: Attachment 4 Is there a summary of citizen comments included in the final amendment? Yes ® No ❑ Verification found on page: Attachment 5 J. Website Publication The following documents are available on the grantee's website: • Proposed NSP3 Substantial Amendment Yes ® No ❑ • Final NSP3 Substantial Amendment Yes ® No ❑ • Subsequent NSP3 Amendments Yes ® No ❑ Website URL: www.santa- ana.org /cda /nsp,.asp K. SF424 Does the application contain the SF424 form? Yes® No❑ L. Certifications (Note: Make sure grantee signs the correct certifications; non - entitlement local governments have to sign a different set of certifications) Certifications for Erttltleme0tsCommunities and5tates: ' The following certifications are complete and accurate: (1) Affirmatively Furthering Fair Housing Yes® No❑ (2) Anti-Displacement and Relocation Plan Yes® No❑ (3) Anti- Lobbying Yes® No❑ (4)`AuthorityofJurisdiction Yes® No❑ (5) Consistency with Plan Yes® No❑ (6) Acquisition and Relocation Yes® No❑ (7) Section 3' Yes® No❑ (8) Citizen Participation Yes® No❑ (9) Following a Plan Yes® No❑ (10) Use of Funds Yes® No❑ (11) a. Use NSP Funds 5220 of AMI Yes® No❑ b. No Recovery of Capital Costs through Special Assessments Yes® No❑ (12) Excessive Force Yes® No❑ (13) Compliance with Anti- Discrimination Laws Yes® No❑ (14) Compliance with Lead -Based Paint Procedures Yes® No❑ (15) Compliance with Laws Yes® No❑ NSP3 Substantial Amendment City of Santa Ana OUIA— ID Substantially Complete Is the amendment substantially incomplete? Yes❑ No❑ If the amendment is substantially incomplete, set for the basis of that determination by using the following as a guide: • The amendment was developed without the requires citizen participation. • The amendment fails to satisfy all of the required elements in the Notice. Comments: Recommended for approval ❑ Recommended for disapproval ❑ Date amendment disapproved (in part or in its entirety): Click here to enter a date. Note: Written notification of disapproval must be communicated to the applicant in accordance with 24 CFR 91.500(c). If disapproved, provide documentation, including dates and times on incompleteness determination and discussions with grantee and headquarters. Reviewed by: Click here to enter text. Date: Click here to enter a date. Program Manager: Click.here to errtdr,text. Date: Click here to enter a date. CPD Director: Click here to enter text. Date: Click here to enter a date. zj NSP3 Substantial Amendment City of Santa Ana NSP3 Grantee Information NSP3 Program Administrator Contact Information Name (Last, First) Landry- Bayle, Shelly Email Address slandry -bayle @santa - ana.org Phone Number (714)667 -2250 Mailing Address 20 Civic Center Plaza, M -37 Santa Ana, CA 92702 Areas of Greatest Need Map Submission The map generated at the HUD NSP3 Mapping Tool for Preparing Action Plan website is included as Attachment 1. Data Sources Used to Determine Areas of Greatest Need Describe the data sources used to determine the areas of greatest need. Response: Foreclosure and Notice of Default data obtained from First American CoreLogic, Inc., a subsidiary of First American Company that specialize in real estate data collection and analysis. Additionally, the City has also analyzed data of all properties offered by National Community Stabilization Trust (NCST). This data enabled the City to identify those areas with the highest percentage of home foreclosures, the highest percentage of hones financedby subprime mortgage related loans, and most likely to face a significant rise in the rate ©f home foreclosures. The City used this data in conjunction with HUD's NSP3 Mapping Tool website to determine its area of greatest need. Determinb ion of Areas of Greatest bleed and Applicable Tiers Describe how the areas of greatest need were established and whether a tiered approach is being utilized to determine the distribution of funding. Response: The areas of greatest need were established by means of a careful evaluation of local housing conditions as shown by the data sources identified above, and an analysis of the relative needs scores of neighborhoods known by staff to be experiencing significant numbers of foreclosures. These needs scores were found on HUD's NSP3 Mapping Tool website. Additionally, staff gave careful consideration to its ability to significantly impact the foreclosure problem in different neighborhoods with the limited funding the City will receive through this third round of NSP funding. Staff prioritized rental housing by first seeking to identify foreclosure impacted rental communities that had appropriate needs scores, as well as acgisition opportunites that could be accessed using the limited NSP3 funds the City anticipates receiving. The City has been unable to identify such neighborhoods, and consequently will be focusing its efforts on owner occupied single family homes. In accordance with recent communications from HUD, the City is not using a tiered approach. It has established a single Area of Greatest Need. NSP3 Substantial Amendment Page 1 City of Santa Ana Definitions and Descriptions Definitions Term Definition Blighted Structure In accordance with Section 33031 of the California Redevelopment Law, the City of Santa Ana will define blighted structures in the following way: "Buildings in which it is unsafe or unhealthy for persons to live or work. These conditions may be caused by serious building code violations, serious dilapidation and deterioration caused by long -term neglect, construction that is vulnerable to serious damage from seismic or geologic hazards, and faulty or inadequate water or sewer utilities." Affordable Rents The City of Santa Ana will define affordable rents in a manner consistent with the requirements of the federal HOME Program for very low income Housing Rehabilitation rents: Standards "A rent that does not exceed 30 percent of the adjusted monthly income of a family whose annual income equals 50 percent of the median income for the area as determined by the U.S. Department of Housing and Urban Development, with adjustments for household size and numbers of bedrooms in the unit." Descriptions Term Definition Long -Term Affordability In order to ensure continued affordability to the maximu7affordability 'practicable and fort fie longest fesible term for for -sa propertiesit assists with NSP3 monies, the City will recor,covenantsthat will run fbr -a period of45'years fo r ownerproperties and 55 years for rental properties. In additionin promissory notes and record trust deeds to secure the NSP3 funds it invests in these for sale properties. These documents will have a 45 year term, and will require, payment in full if the owner fails to comply with the terms of the covenants. Housing Rehabilitation Standards The City of Santa Ana has modified its existing NSP rehabilitation standards so as to meet the new requirements established for NSP3. These newly revised standards are attached to this Substantial Amendment as Attachment 2. Low - Income Targeting Low - Income Set -Aside Amount Identify the estimated amount of funds appropriated or otherwise made available under the NSP3 to be used to provide housing for individuals or families whose incomes do not exceed 50 percent of area median income. Response: Total low- income set -aside percentage (must be no less than 25 percent): 58.54% NSP3 Substantial Amendment Page 2 City of Santa Ana Total funds set aside for low- income individuals = $857,104.00 Meeting Low - Income Target Provide a summary that describes the manner in which the low- income targeting goals will be met. Response: Participation in the City's programs will be restricted to households who meet NSP income requirements. At least 25 percent of the City's allocation will be used to purchase, rehab and sell homes to households with incomes at or below 50 percent of the area median. The City will carefully examine the incomes of all households selected to participate in it NSP3 activities, including those selected to meet the 50 percent requirement. All households, including those at 50 percent of area median, will be required to enter into 45 year covenants. In addition, the City utilize a funding mechanism for the acquisiton and rehabilitation of rental properties that will sreve households at or below 50 percent of the area median income. The City will adopt an duse HOME Program regulations as they relate to income certification and rent determination. Acquisition and Relocation Demolition or Conversion of LMI Units I Does the grantee intend to demolish or convert any low .and moderate - income dwelling units (i.e., < 80% pf'area'niedian incomej7 I No If yes, fill in the table below: Question Number of Units The number` of tow -and moderate- income dwelling units -i.e., < 80% of area median income— reasonably expected to be demolished or converted as a direct result of NSP assisted activities._ J N/A The number of NSP affordable housing units made available to low -, moderate -, and middle - income households t,e., < 120 %of area median income — reasonably expected to be produced by activity and income level as provided for in DRGR, by each NSP activity providing such housing (including a proposed time schedule for commencement and completion). N/A The number of dwelling units reasonably expected to be made available for households whose income does not exceed 50 percent of area median income. N/A Public Comment Citizen Participation Plan Briefly describe how the grantee followed its citizen participation plan regarding this proposed substantial amendment or abbreviated plan. NSP3 Substantial Amendment Page 3 City of Santa Ana Response: As provided for in HUD's abbreviated citizen participation requirements for NSP3 funding, the C1copy Substantial Amendment was made available for public review during a fifteen day public review Availability of the document was made known by means of notification published on the City's as well as notices published in a newspaper of general circulation and two newspapers serving S and Vietnamese speaking populations. The document itself was made available on the City's w August 19, 2013, and at the other locations provided for in the City's Citizen Participation Plan. of the public notice as published in the general circulation newspaper is attached as Attachment 3. It was also published in a newspaper serving the Spanish speaking community, and in one serving the Vietnamese community. Notices in all languages were published on August 19,2013. Following a public hearing conducted by the City's Redevelopment and Housing Commission on September 3, 2013 and completion of the public review period, the amendment was approved by City Council on September 16, 2013 for submission to HUD. As approved by City Council and submitted to HUD, the Amendment is available for viewing by the public and other interested parties on the City's website at http: / /www.santa - ana.org /cda /nsp.asp. Summary of Public Comments Received. The summary of public comments received is included as Attachment 4. NSP Information; by, 'OA icy Activity Number 1 Activity Name Acquisition /Rehabilitation /Resale of Foreclosed Single Family Homes for Low- , Moderate -, and Middle- Income Households .Select all that apply: Eligible:USe A: Financing Mechanisms Uses EligiblttUSe B: Acquisition and Rehabilitation 'Eligible Us QC: Land Banking ❑ Eligible Use Di Demolition ❑ Eligible Use E: Redevelopment CDBG Activity or Activities Acquisition, Rehabilitation, and Disposition of Homes, and Direct Home Ownership Assistance National Objective LoW Moderate Middle Income Housing (LMMH) Activity Description This activity will be used to acquire and rehabilitate foreclosed single family housing. After acquisition and rehabilitation, these housing units will be code compliant and contain energy efficiency components. Sale and occupancy will be restricted to households whose annual income does not exceed 120 percent of the area median income as determined by HUD. The City will carry out this activity through an intermediary who will be required to leverage the NSP3 funds with other public and /or private funds so as to maximize the number of units produced. This will address local market NSP3 Substantial Amendment City of Santa Ana Page 4 NSP3 Substantial Amendment Page 5 City of Santa Ana tions by making affordable financing available to low, moderate and e income households. termediary will also be required to market any employment or cting opportunities to priority area residents and firms, and to select to the maximum extent feasible. [To essary to facilitate the ultimate sale of these units to income qualified holds, the City may enter into lease- purchase agreements with the ed households. These agreements will be structured so as to enable to save the funds required to qualify for first mortgage loans. The City this only when a sale has not been finalized within six months of the date. As necessary to facilitate the ultimate sale of these units to income qualified households, the City may :enter into lease- purchase agreements with the selected households. Those agreements will be structured so as to enable them to save the funds required to qualify for first mortgage loans. The City will do this only when a sale`has not been finalized within six months of the listing date. Location Description Area identified in the attached Exhibit 1 Source of funding Dollar Amount Budget NSP3 $246,323.00 $ =`(OfherfndingsourcQj; $. Total Budget for Activity $246,323.00 Acquisition, rehabilitation and resale of one (1) housing units to households Performance Measures whose annual incomes do not exceed 120 percent of the area median income as established byHUD. Projected Start Date 7/1/2011; Projected End Date 7/1/14 Name City Of Santa Ana Location Santa Ana, CA Administrator Contact Info Shelly Landry-Bayle Responsible 20 Civic Center Plaza, M -37 Organization Santa Ana, CA 92702 Ph. (714) 667 -2287 SLandryBayle @Santa- Ana.Org NSP3 Substantial Amendment Page 5 City of Santa Ana Activity Number 2 Activity Name ° Redevelopment of Vacant Properties as Rental Housing for Low - Income Households Select all that apply: Eligible Use A: Financing Mechanisms Use ❑ Eligible Use B: Acquisition and Rehabilitation Eligible Use C: Land Banking ❑ Eligible Use D: Demolition ® Eligible Use E: Redevelopment CDBG Activity or Activities Acquisition, Disposition [24 CFR 770201 (a)], and Eligible rehabilitation and preservation activities for demolished or vacant properties [24 CFR 570.2021 National Objective Low - Income Housing to Meet 25% Set-Aside (LH25) This activity will be used to acquire and redevelop vacant properites as rental housing for low- income households at or below 50 percent of the area median income as established by HUD. The City has budgeted at least 58 percent of the anticipated NSP 3 grant for this activity and will use it to meet its very-low requirement. The term of the loan will be 55 years, and the City will record trust deeds and covenants to insure affordability for that period of time. The interest rate will be 0 percent. The City anticipates that through this Activity Description activity it will facilitate the acqusition, and redeveloment of rental units. The City will carryout this activity through an intermediary who will be requi €ed to leverage the NSP3 fUnds,with other public and /or private funds so as fo'maximize the number of units produced. This will address local market conditions by making affordable rental units available to low- income households. The intermediary will also be required to market any employment or contracting opportunities to priority area residents and firms, and to select themtothe maximum extent feasible. Location Description Area identified in attached;Exhibit 1 Source of Funding Dollar Amount Budget NSP3 _ $857,104.00 (Other funding source) $ (Other funding source) $ Total Budget for Activity $857,104.00 easures Acqusition; Redevelopment and Construction of rental property with units for low,income households whose annual income will not exceed 50 percent of the area median income as established by HUD. t Date 9/1/2013 Date 4/1/2017 tEnd Name City Of Santa Ana Location Santa Ana, CA Administrator Contact Info Shelly Landry-Bayle 20 Civic Center Plaza, M -37 Santa Ana, CA 92702 (714) 667 -2250 SLa ndrvRAvle @Santa- Ana,Org NSP3 Substantial Amendment Page 6 City of Santa Ana Activity Number 3 Activity Name Redevelopment of Vacant Properties as Rental Housing for Low - Income Households Select all that apply: Use ❑ ❑ Eligible Use A: Financing Mechanisms Eligible Use B: Acquisition and Rehabilitation Eligible Use C: Land Banking Eligible Use D: Demolition ® Eligible Use E: Redevelopment CDBG Activity or Activities Acquisition, Disposition [24 CFR 770201 (a)] and Eligible rehabilitation and preservation activities for demolished or vacant properties [24 CFR 570.202] National Objective Low Moderate Middle Income Housing (LMMH) This activity will be used to acquire and redevelop vacant properites as rental housing for low- income households at or below 60 percent of the area median income as established by HUD. The term of the loan will be 55 years, and the City will record (rust deeds and covenants to insure affordability for that period of time. The interest rate will be 0 percent. The City anticipates that through this activity it will facilitate the acqusition and redeveloment of rental units. Activity Description The City will carryout this activity through an intermediary who will be required to leverage the NSP3 funds with other public and /or private funds so as to maximize the number of units produced. This will address local market conditions by making affordable rental units available to low- income households. The intermediary will also be required to market any employment or contracting opportunities to priority area residents and firms, and',to selectthem to the maxi mum extent feasible. Location Description Area identified in attached Exhibit 1 Source of Funding Dollar Amount Budget NSP3 $214,276.00 (Other funding source) $ (Other funding source) $ Total Budget for Activity $214,276.00 Performance Measures Acqusition Redevelopment and Construction of rental property with units for fow- income households whose annual income will not exceed 60 percent of the area median income as established by HUD. Projected Start Date 9/1/2013 Projected End Date 4/1/2017 Name City Of Santa Ana Location Santa Ana, CA Responsible Administrator Contact Info Shelly Landry-Bayle Organization 20 Civic Center Plaza, M -37 Santa Ana, CA 92702 (714) 667 -2250 Stand ryBayle @Santa- Ana.Org NSP3 Substantial Amendment Page 7 City of Santa Ana NSP3 Substantial Amendment City of Santa Ana 80A -25 Page 8 Activity Number 4 Activity Name Administration and Planning Costs Use Select all that apply: ❑ Eligible Use A: Financing Mechanisms ❑ Eligible Use B: Acquisition and Rehabilitation ❑ Eligible Use C: Land Banking ❑ Eligible Use D: Demolition Eligible Use E: Redevelopment CDBG Activity or Activities Administration and Planning Costs 24 CFR 570.205 and 206 National Objective (Select One) Activity Description This activity will provide funding needed by the City to operate its NSP3 program. It will be carried.out =by the City of Santa Ana. Location Description N/A Budget Source of Funding Dollar Amount NSP3 $146,410.00 (Other funding source) $, (Other funding source) $ Total Budget for Activity $146,410.00 Performance Measures N/A Projected Start Date 7/1/2011 Projected End Date 7/1/2014 Responsible Organization Name City Of Santa Ana Location Santa Ana, CA Administrator Contact Info Shelly Landry-Bayle 20 Civic Center Plaza, M -37 Santa Ana, CA 92702 (714) 667 -2250 SLa ndryBayle @Santa- Ana.Org NSP3 Substantial Amendment City of Santa Ana 80A -25 Page 8 NSP3 Substantial Amendment Page 9 City of Santa Ana List of Attachments Attachment 1: NSP 3 Target Geography Report and Map Attachment 2: NSP Rehabilitation Standards Attachment 3: Copy of Public Notice Attachment 4: Website Attachment 5: Summary of Public Comments Attachment 6: SF 424 Attachment 7: Certifications f: 3 NSP3 Substantial Amendment Page 9 City of Santa Ana 80A -21 Attachment P� 1 as of 9/4/2012 =P6< Lsyseroa a S \ O N L � UOMWa Ol1MFl A � ' 1$]OOINWN] qy LO "L 1E oa4 U $ 3 T ^ Atl ONW9 IS II)59v1p hV IXJYtl9 AY NIOOWI k n arwrvvls M1�o- �h g } � 1 5�� 3v � •Ma aQ 1S NIbnL � � � � 'IY � _� 1 L3MOlJ .4u 1+K •yrsC'« # m � . '.. { a y �~ �. '�`Q a 1S 1U151rtl to CL 3 Vn a w,o ro�arYry ft\ Ls aaow. BN R L m m M N � M O 06 N N N a m a z Z N o= N N O Z � O O O 80A -21 Attachment 1 as of 9/4/2012 "NSP Planning Data" are: 1) the NSP 2 boundaries, including census tract 748.06 (which is not part of the project, and 2) the planning data of census tract 748.06. Therefore, the impact score is the first document's impact score (234) minus the second document's impact score (7) for a project area impact score of 227. Neighborhood ID: 1104095 NSP3 Planning Data Grantee ID: 0633420E Grantee State: CA Grantee Name: SANTA ANA Grantee Address: 20 Civic Center Plaza, M -37 Santa Ana CA 92702 Grantee Email: SKutner @santa - ana.org Neighborhood Name: NSP2 and 3 w/o hole Date:2012.09.06 00:00:00 NSP3 Score The neighborhoods identified by the NSP3 grantee as being the areas of greatest need must have an individual or average combined index score for the grantee's identified target geography that is not less than the lesser of 17 or the twentieth percentile most needy score in an individual state. For example, if a state's twentieth percentile most needy census tract is 18, the requirement will be a minimum need of 17. If, however, a state's twentieth percentile most needy census tract is 15, the requirement will be a minimum need of 15. If more than one neighborhood is identified in the Action Plan, HUD will average the Neighborhood Scores, weighting the scores by the estimated number of housing units in each identified neighborhood. Neighborhood NSP3 Score: 18.7 State Minimum Threshold NSP3 Score: 17 Total Housing Units in Neighborhood: 27480 Area Benefit Eligibility Percent Persons Less than 120% AMI: 91.62 Percent Persons Less than 80% AMI: 76.38 Neighborhood Attributes (Estimates) Vacancy Estimate USPS data on addresses not receiving mail in the last 90 days or "NoStat" can be a useful measure of whether or not a target area has a serious vacancy problem. For urban neighborhoods. HUD has found that neighborhoods with a very high number vacant addresses relative to the total addresses in an area to be a very good indicator of a current for potentially serious blight problem. The USPS "NoStat" indicator can mean different things. In rural areas, it is an indicator of vacancy. However, it can also be an address that has been issued but not ever used, it can indicate units under development, and it can be a very distressed property (most of the still flood damaged properties in New Orleans are NoStat). When using this variable, users need to understand the target area identified. In addition, the housing unit counts HUD gets from the US Census indicated above are usually close to the residential address counts from the USPS below. However, if the Census and USPS counts are substantially different for your identified target area, users are advised to use the information below with caution. For example if there are many NoStats in an area for units never built, the USPS residential address count may be larger than the Census number; if the area is a rural area largely served by PO boxes it may have fewer addresses than housing units. USPS Residential Addresses in Neighborhood: 27821 Residential Addresses Vacant 9D or more days (LISPS, March 2010): 391 Residential Addresses NoStat (USPS, March 2010): 364 117 80A -29 Foreclosure Estimates HUD has developed a model for predicting where foreclosures are likely. That model estimates serious delinquency rates using data on the leading causes of foreclosures - subprime loans (HMDA Census Tract data on high cost and highly leveraged loans), increasing unemployment (BLS data on unemployment rate change), and fall in home values (FHFA data on house price change). The predicted serious delinquency rate is then used to apportion the state total counts of foreclosure starts (from the Mortgage Bankers Association) and REOs (from RealtyTrac) to individual block groups. Total Housing Units to receive a mortgage between 2004 and 2007: 13512 Percent of Housing Units with a high cost mortgage between 2004 and 2007: 32.5 Percent of Housing Units 90 or more days delinquent or in foreclosure: 18.23 Number of Foreclosure Starts in past year. 1159 Number of Housing Units Real Estate Owned July 2009 to June 2010: 653 HUD is encouraging grantees to have small enough target areas for NSP 3 such that their dollars will have a visible impact on the neighborhood. Nationwide there have been over 1.9 million foreclosure completions in the past two years. NSP 1, 2, and 3 combined are estimated to only be able to address 100,000 to 120,000 foreclosures. To stabilize a neighborhood requires focused investment. Estimated number of properties needed to make an impact in identified target area (20% of REO in past year): 234 Supporting Data Metropolitan Area (or non - metropolitan area balance) percent fall in home value since peak value (Federal Housing Finance Agency Home Price Index through June 2010):-29.3 Place (if place over 20,000) or county unemployment rate June 2005': 5.7 Place (if place over 20,000) or county unemployment rate June 2010': 14.4 'Bureau of Labor Statistics Local Area Unemployment Statistics Market Analysis HUD is providing the data above as a tool for both neighborhood targeting and to help inform the strategy development. Some things to consider: 1. Persistent Unemployment. Is this an area with persistently high unemployment? Serious consideration should be given to a rental strategy rather than a homeownership strategy. 2. Home Value Change and Vacancy. Is this an area where foreclosures are largely due to a combination of falling home values, a recent spike in unemployment, and a relatively low vacancy rate? A down payment assistance program may be an effective strategy. 3. Persistently High Vacancy. Are there a high number of substandard vacant addresses in the target area of a community with persistently high unemployment? A demolition /land bank strategy with selected acquisition rehab for rental or lease- purchase might be considered. 4. Historically low vacancy that is now rising. A targeted strategy of acquisition for homeownership and rental to retain or regain neighborhood stability might be considered. 5. Historically high cost rental market. Does this market historically have very high rents with low vacancies? A strategy of acquiring properties and developing them as long -term affordable rental might be considered. Latitude and Longitude of corner points 217 80A -30 - 117.863903 33.716630 - 117.863731 33.727052 - 117.864246 33.733477 - 117.859783 33.734048 - 117.859612 33.743897 - 117.858410 33.744040 - 117.858238 33.745610 - 117.859268 33.746039 - 117.859097 33.749036 - 117.864418 33.749464 - 117.864246 33.753746- 117.86785133.753603 - 117.867851 33.762880 - 117.869911 33.762880 - 117.869911 33.762024 - 117.880383 33.762166 - 117.880211 33.763594 - 117.882786 33.764164 - 117.882614 33.761596 - 117.885189 33.761738 - 117.885189 33.760454 - 117.897034 31760026 - 117.896690 33.753889 - 117.893772 33.753603 - 117.893944 33.749179 - 117.908707 33.749464 - 117.907505 33.752747 - 117.912998 33.756315 - 117.920380 33.756172 - 117.920380 33.745468 - 117.911625 33.745325 - 117.915230 33.727623 - 117.894630 33.727623 - 117.896519 33.716772 Blocks Comprising Target Neighborhood 80A -31 060590741021000, 060590741021005 ,060590741021004, 060590741021001 ,060590741021003, 060590741021002, 060590741022000, 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060590751004006, 060590751004008 ,060590751004007, 060590751004005 ,060590751004003, 060590751004001, 060590751004002 ,060590752012004, 060590752021000, 060590752021014 ,060590752021013, 060590752021012 ,060590752021011, w 80A -34 060590752021010, 060590752021009, 060590752021008, 060590752021003 ,060590752021004, 060590752021005 ,060590752021007, 060590752021006, 060590752021002 ,060590752021001, 060590752022000, 060590752022008, 060590752022014, 060590752022013 ,060590752022012, 060590752022011, 060590752022010, 060590752022009, 060590752022007 ,060590752022002, 060590752022004, 060590752022005 ,060590752022006, 060590752022003 ,060590752022001, 060590891041003 ,060590891051000, 060590891051004, 060590891051006 ,060590891051999, 060590891051007 ,060590891051005, 060590891051003, 060590891051001 ,060590891051002, 060590891052000, 060590891052005, 060590891052007, 060590891052006 ,060590891052004, 060590891052001 ,060590691052003, 060590891052002, 060590891053000 ,060590891053999, 060590891053004, 060590891053001, 060590891053003, 060590891053002, Oil 80A -35 Neighborhood ID: 2968475 NSP3 Planning Data Grantee ID: 0633420E Grantee State: CA Grantee Name: SANTA ANA Grantee Address: 20 Civic Center Plaza, M -37 Santa Ana CA 92702 Grantee Email: SKutner @santa- ana.org Neighborhood Name: NSP 2 and 3 donut hole Date:2012 -09 -06 00:00:00 NSP3 Score The neighborhoods identified by the NSP3 grantee as being the areas of greatest need must have an individual or average combined index score for the grantee's identified target geography that is not less than the lesser of 17 or the twentieth percentile most needy score in an individual state. For example, if a state's twentieth percentile most needy census tract is 18, the requirement will be a minimum need of 17. If, however, a state's twentieth percentile most needy census tract is 15, the requirement will be a minimum need of 15. If more than one neighborhood is identified in the Action Plan, HUD will average the Neighborhood Scores, weighting the scores by the estimated number of housing units In each identified neighborhood. Neighborhood NSP3 Score: 18 State Minimum Threshold NSP3 Score: 17 Total Housing Units in Neighborhood: 916 Area Benefit Eligibility Percent Persons Less than 120 %AMI: 96.19 Percent Persons Less than 80% AMI: 82.92 Neighborhood Attributes (Estimates) Vacancy Estimate USPS data on addresses not receiving mail in the last 90 days or "NoStat" can be a useful measure of whether or not a target area has a serious vacancy problem. For urban neighborhoods, HUD has found that neighborhoods with a very high number vacant addresses relative to the total addresses in an area to be a very good indicator of a current for potentially serious blight problem. The USPS "NoStat" indicator can mean different things. In rural areas, it is an indicator of vacancy. However, it can also be an address that has been issued but not ever used, it can indicate units under development, and it can be a very distressed property (most of the still flood damaged properties in New Orleans are NoStat). When using this variable, users need to understand the target area identified. In addition, the housing unit counts HUD gets from the US Census indicated above are usually close to the residential address counts from the USPS below. However, if the Census and USPS counts are substantially different for your identified target area, users are advised to use the information below with caution. For example if there are many NoStats in an area for units never built, the USPS residential address count may be larger than the Census number; if the area is a rural area largely served by PO boxes it may have fewer addresses than housing units. USPS Residential Addresses in Neighborhood: 884 Residential Addresses Vacant 90 or more days (USPS, March 2010): 9 Residential Addresses NoStat (USPS, March 2010): 14 1/3 80A -36 Foreclosure Estimates HUD has developed a model for predicting where foreclosures are likely. That model estimates serious delinquency rates using data on the leading causes of foreclosures - subprime loans (HMDA Census Tract data on high cost and highly leveraged loans), increasing unemployment (BLS data on unemployment rate change), and fall in home values (FHFA data on house price change). The predicted serious delinquency rate is then used to apportion the state total counts of foreclosure starts (from the Mortgage Bankers Association) and REOs (from RealtyTrac) to individual block groups. Total Housing Units to receive a mortgage between 2004 and 2007: 400 Percent of Housing Units with a high cost mortgage between 2004 and 2007: 30.3 Percent of Housing Units 90 or more days delinquent or in foreclosure: 16.9 Number of Foreclosure Starts in past year: 33 Number of Housing Units Real Estate Owned July 2009 to June 2010: 18 HUD is encouraging grantees to have small enough target areas for NSP 3 such that their dollars will have a visible impact on the neighborhood. Nationwide there have been over 1.9 million foreclosure completions in the past two years. NSP 1, 2, and 3 combined are estimated to only be able to address 100,000 to 120,000 foreclosures. To stabilize a neighborhood requires focused investment. Estimated number of properties needed to make an impact in identified target area (20% of RED in past year): 7 Su000rting Data Metropolitan Area (or non - metropolitan area balance) percent fall in home value since peak value (Federal Housing Finance Agency Home Price Index through June 2010): -29.3 Place (if place over 20,000) or county unemployment rate June 2005': 5.7 Place (if place over 20,000) or county unemployment rate June 2010': 14.4 'Bureau of Labor Statistics Local Area Unemployment Statistics Market Analysis: HUD is providing the data above as a tool for both neighborhood targeting and to help inform the strategy development. Some things to consider: . 1. Persistent Unemployment. Is this an area with persistently high unemployment? Serious consideration should be given to a rental strategy rather than a homeownership strategy. 2. Home Value Change and Vacancy. Is this an area where foreclosures are largely due to a combination of falling home values, a recent spike in unemployment, and a relatively low vacancy rate? A down payment assistance program may be an effective strategy. 3. Persistently High Vacancy. Are there a high number of substandard vacant addresses in the target area of a community with persistently high unemployment? A demolition /land bank strategy with selected acquisition rehab for rental or lease- purchase might be considered. 4. Historically low vacancy that is now rising. A targeted strategy of acquisition for homeownership and rental to retain or regain neighborhood stability might be considered. 5. Historically high cost rental market. Does this market historically have very high rents with low vacancies? A strategy of acquiring properties and developing them as long -term affordable rental might be considered. Latitude and Longitude of corner points - 117.899952 33.739901 - 117.900124 33.738759 - 117.899094 33.738759 - 117.898579 33.734904 - 117.885189 33.734762 - 117.885704 33.738759 - 117.893944 33.738045 - 117.894287 33.739901 2/3 80A -37 Blocks Comprising Target Neighborhood 060590748061000, 060590748061003, 060590748061005,060590748061006 ,060590748061004, 060590748061001, 060590748061002 ,060590748062000, 060590748062003 ,060590748062004, 060590748062006, 060590748062008, 060590748062010,060590748062012 ,060590748062011, 060590748062009, 060590748062007 ,060590748062005, 060590748062001 ,060590748062002, 313 ATTACHMENT 2 NSP REHABILITATION STANDARDS PREFACE The primary purpose of these standards is to address the quality of workmanship and materials expected, and to achieve consistency throughout the NSP3 program activities administered by the City of Santa Ana. These standards are not intended to reduce or exclude the requirements of any federal, state or local codes, standards, ordinances and regulations that apply to residential rehabilitation. WORKMANSHIP • All work shall be performed in a professional and workmanlike manner. • The quality and durability of the work shall meet or exceed the standards established by the construction industry and various trades. MATERIALS & EQUIPMENT • All materials and equipment shall comply with and be installed in accordance with the manufacturer's requirements and all applicable codes, standards, ordinances and regulations. If a discrepancy occurs between the requirements, the more stringent shall prevail. • Unless otherwise specified, all materials and equipment shall be medium grade. • Economy grade materials and equipment are unacceptable. • All materials and equipment shall be new, in excellent condition, and delivered to the job in the manufacturer's original packaging. • The description of materials and equipment found in this document establish a minimum standard. ENERGY EFFICIENCY, WATER CONSERVATION & RECYCLED MATERIALS To the extent possible and practical, standard measures related to energy conservation, energy efficiency, water conservation and the use of recycled materials have been incorporated herein. Gut rehabilitation or new construction of residential buildings up to three stories will be designed to meet the standard for Energy Star Qualified New Homes. Gut rehabilitation or new construction of mid or high rise multi - family housing must be designed to meet the American Society of heating, Refrigerating and Air - Conditioning Engineers (ASHRAE) Standard 901-2004, Appendix G plus 20 percent. LEAD -BASED PAINT All housing built before 1978 must comply with 24 CFR Part 35 Subpart 1 and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -based paint hazards. HUD's guidelines are available at httr)://www.hud.ciovZoffices/lead/"lbp/hudguidelines /index.cfm. BUILDING STANDARDS Minimum Standard • The site shall be hazard -free and sanitary. • The site and all paving shall drain away from the dwelling and accessory buildings. • Paving and walkways shall be hazard -free and intact. • Landscaping and irrigation systems shall be hazard -free and in relatively good condition. All dead vegetation shall be removed. • Fencing walls and gates hazard free and intact. All gates shall be in NSP3 Substantial Amendment City of Santa Ana 80A -39 ATTACHMENT 2 good working order. • The site shall be free from trash, debris and hazardous materials. • Accessory buildings shall be safe and sound. Paving . All new paving and walkways shall be constructed with concrete (2,000 PSI @ 28 days). . Driveways shall be reinforced with wire mesh. Sawn expansion - contraction joints shall be placed every 8 feet in both directions. • All paving and walkways shall be finished with a light broom texture. • All walkways shall be at least 3 feet wide. Sawn expansion - contraction 'oints shall be laced eve 4 feet. Landscaping & Irrigation To the extent possible and practical all new landscaping shall be drought resistant. • When a lawn is being replaced, the new lawn area shall be reduced to aid in the reduction of water consumption. • New irrigation controllers shall be weather or sensor based and EPA Water -Sense qualified. • All new irri ation systems shall be designed to conserve water. Fences, Walls & Gates . All new wood fences shall be made from good quality materials. They shall be properly supported with 4X4 pressure treated posts (8 feet O.C.) and 2X4 rails (top and bottom). The posts shall be embedded in a concrete footing at least 18" deep. • All new block walls shall be constructed with 6X8X16 concrete block. They shall be properly supported by a continuous footing and reinforced with steel bar. PORCHES, STEPS, BALCONIES & RAILING Minimum Standard Safe and structurally sound. Rehabilitation Porches, steps, balconies and railing that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Concrete 2,000 PSI (minimum). Finishes • Zero or low VOC primers, paint and coatinOS ___ Minimum Standard . Safe and structurally sound _ Rehabilitation Foundations that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • If the project involves a gut rehab, raised foundations shall be Concrete 2,000 PSI (minimum). EXTERIOR WALLS Minimum Standard Safe, structurally sound and weather-tight. _ Rehabilitation Exterior walls that do not meet the minimum standard shall be e laced. Practical, cost effective repairs are acceptable as long as NSP3 Substantial Amendment City of Santa Ana ATTACHMENT 2 compliance with the minimum standard will be achieved. • Seal alljoints. • If the project involves a gut rehab, all exterior walls shall be insulated. EXTERIOR DOORS Minimum Standard • Safe, sound, weather -tight and in good working order. • Five or more years of practical utility. Rehabilitation • Exterior doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. New Doors EPA Energy Star qualified zero or low VOC finish New Hardware Reputable manufacturer, lifetime finish. Minimum Standard • Safe, sound and in good working order. • Five or more years of practical utility. Rehabilitation • Garage doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Minimum Standard Safe, sound, weather -tight and in good working order. • Five or more years of practical utility. Rehabilitation Windows that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. New Windows • Reputable manufacturer. • EPA Energy Star qualified. Minimum Standard • Homes built before 1978 must comply with 24 CFR Part 35 Subpart 1 and HUD's Lead Safe Housing Rule regarding the evaluation and control ''. of lead -based paint hazards. All exterior paint shall be intact and corrosion free. • Five or more years of practical utility _ _ Rehabilitation • All surfaces to be painted shall be prepared properly. All loose material and peeling paint shall be removed. • All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All stucco surfaces to be painted shall receive a complete and even coverage of stucco paint. All wood surfaces to be painted shall receive a complete and even coverage of flat exterior paint. • Poor workmanship will not be tolerated New Paint Reputable manufacturer. • Highest quality available. NSP3 Substantial Amendment City of Santa Ana 80A -41 ATTACHMENT • Zero or low VOC paint, caulking and fillers. Minimum Standard . Safe and structurally sound. . All plaster, drywall and paneling shall be safe and intact. Rehabilitation Walls, floors and ceilings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. . If the project involves a gut rehab, the attic, walls and floor on raised foundations shall be insulated. Minimum Standard • Safe, sound and sanitary. • Five or more years oftractical utility. Rehabilitation _ . Floor coverings that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Floor . Carpet & Pad (Reputable manufacturer, recycled materials). Coverings Resilient Flooring (Reputable manufacturer, 10 year wear warranty). . Ceramic Tile (Reputable manufacturer) Minimum Standard . Safe, sound and in good working order. • Five or more years of practical utilit . Rehabilitation . Interior doors that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Doors & • Doors (Reputable manufacturer, masonite, raised panel). Hardware . Hardware (Reputable manufacturer, lifetime finish). Minimum Standard Homes built before 1978 must comply with 24 CFR Part 35 Subpart J and HUD's Lead Safe Housing Rule regarding the evaluation and control of lead -hased paint hazards. . All interior paint shall be intact, corrosion -free and sanitary. . Five or more years of practical utility. Rehabilitation . All surfaces to be painted shall be prepared properly. All loose material and peeling paint shall be removed. • All holes and cracks shall be filled and finished so that they blend into the surrounding area. • All surfaces to be painted shall receive a complete and even coverage of flat paint (semi -gloss in kitchens, bathrooms and laundry rooms). . Poor workmanship will not be tolerated New Paint Reputable manufacturer. • Highest quality available. • Zero or low VOC paint, caulking and fillers. NSP3 Substantial Amendment City of Santa Ana 80A -42 ATTACHMENT 2 KITCHEN CABINETS & COUNTERTOPS I M, IM Minimum Standard -1 . Safe, sound, sanitary and in good working order. Minimum Standard • Cabinets shall be safe, sound, sanitary and in good working order. • Countertops shall be safe, sound, sanitary and watertight. Rehabilitation • Five or more years of practical utility. Rehabilitation Cabinets and countertops that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as com fiance with the minimum standard will be achieved. Replacement Cabinets Reputable manufacturer. • Solid hardwood face - frames, door - frames and drawer fronts. Replacement Faucets • Metal and nylon drawer guides. • Low or zero VOC adhesives and finishes. Replacement Reputable manufacturer. Countertops 4" ceramic tile, 6" backsplash, bull -nose 111111.10001�i I M, IM Minimum Standard -1 . Safe, sound, sanitary and in good working order. • Faucets shall (at a minimum) be equipped with a low -flow aerator. Five or more years of practical utility, Rehabilitation • Kitchen fixtures, equipment and appliances that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement Sinks . Reputable manufacturer. • 18- ua a (minimum) stainless steel. Replacement Faucets • EPA Water -Sense qualified. • Reputable manufacturer. • Brass construction, metal housing. Replacement Disposals Reputable manufacturer. • 1/2 HP motor (minimum). • Stainless steel swivel lugs. Replacement _ EPA Energy Star qualified. Dishwashers Re utable manufacturer. Replacement Range EPA Energy Star qualified. Hoods • Reputable manufacturer. Replacement Ranges . Reputable manufacturer. • Pilot -free ignition. • Four sealed burners. • Self- cleaning oven with timer. Replacement Cook Tops _ Reputable manufacturer. • Pilot -free ignition. • Four sealed burners, Wall Ovens • Reputable manufacturer. • Pilot -free ignition. • Self-cleaning oven with timer. BATHROOM NSP3 Substantial Amendment City of Santa Ana 80A -43 ATTACHMENT 2 Minimum Standard Safe, sound, sanitary and in good working order. • Faucets shall (at a minimum) be equipped with a low -flow aerator. • Showerheads shall (at a minimum) be equipped with low -flow aerator. • Porcelain sinks shall be free from any cracks or chips. • Steel sinks shall be free from any rust or corrosion. • Five or more years of practical utility. Rehabilitation Bathroom fixtures and equipment that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. . Toilets that require more than 1.6 GPF shall be replaced regardless of their condition. Replacement Sinks • Reputable manufacturer. • Cast iron, white enamel finish. Replacement Faucets EPA Water -Sense qualified. . Reputable manufacturer. • Brass construction, metal housing. Replacement Toilets J Reputable manufacturer. . EPA Water -Sense qualified (1.28 GPF) Replacement Tubs _ Reputable manufacturer. . Cast iron body, white enamel finish, slip resistant bottom. . EPA Water -Sense qualified plumbing fixtures. Replacement Reputable manufacturer. Combination Cast iron body, white enamel finish, slip resistant bottom. Tub - Showers . 4" ceramic tile surround. . Anodized aluminum doors with tempered glass. . EPA Water -Sense qualified 2lumbing fixtures. Replacement Showers Reputable manufacturer. • 4" ceramic tile. . Anodized aluminum door with tempered glass. • EPA Water -Sense jualified plumbing fixtures. Replacement Reputable manufacturer. Medicine Cabinets . Steel body, beveled mirror door. Towel Bars &Toilet • Reputable manufacturer. Paper Holders Metal construction, polished chrome finish. WATER SUPPLY, WASTE Minimum Standard VENT PIPING • Safe, sound and leak -free. Rehabilitation Piping (supply, waste and vent) that does not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement _ Copper, type "L ". Water Supply Piping Replacement _ _ Schedule 40 ABS.�� Waste &Vent Pipin NSP3 Substantial Amendment City of Santa Ana ATTACHMENT 2 ELECTRICAL SERVICE AND WIRING & LIGHTING FIXTURES Minimum Standard WATER HEATERS Minimum Standard • Safe, sound and in good working order. • Five or more years of practical utilit . Rehabilitation Rehabilitation Water heaters that do not meet the minimum standard shall b-e replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. Replacement • Reputable manufacturer. Water Heaters (Tank) • EPA Energy Star qualified. • Reputable manufacturer. • 40-gallon insulated tank. Replacement . Reputable manufacturer. Water Heater Switches & Outlets EPA Energy Star qualified. (Tank -Less) Reputable manufacturer. Lighting Fixtures ELECTRICAL SERVICE AND WIRING & LIGHTING FIXTURES Minimum Standard . Safe, sound and in good working order. Minimum Standard • Safe, sound and in good working order. . 100 -am ere minimum service. Rehabilitation Electrical service panels, breakers and wiring that do not meet the Rehabilitation minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • Knob and tube wiring shall be replaced regardless of its condition. • Overhead wiring from a dwelling to a detached garage or accessory building shall be installed underground regardless of its condition. Replacement • Reputable manufacturer. Service • 100-ampere (minimum). Replacement Romex (NM cable). Wiring . U.L. approved. ELECTRICAL SWITCHES, OUTLETS & LIGHTING FIXTURES Minimum Standard . Safe, sound and in good working order. • Light fixtures shall (at a minimum) be equipped with CFL bulbs. • Exterior lighting fixtures used for security shall be equipped with a motion sensor. Rehabilitation • Electrical switches, outlets and lighting fixtures that do not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. • All new light fixtures shall be. U.L. approved and Energy Star qualified. • Outlets located within 6 feet of a source of water shall be ground fault protected. • Exterior switches and outlets shall be weatherproof. Replacement . U.L. approved. Switches & Outlets Replacement Reputable manufacturer. Lighting Fixtures U.L. approved and EPA Energy Star qualified. NSP3 Substantial Amendment City of Santa Ana 80A -45 ATTACHMENT HVAC Minimum Standard . _ Safe, sound and in good working order. . Eight or more years of practical utility. Rehabilitation HVAC that does not meet the minimum standard shall be replaced. Practical, cost effective repairs are acceptable as long as compliance with the minimum standard will be achieved. . Tune -up all HVAC equipment (as a minimum). . Seal all ducts (as a minimum). . All new HVAC equipment shall be sized pro erl . Furnaces Reputable manufacturer. . EPA Energy Star qualified. Central Air Conditioners . Reputable manufacturer. . EPA Energy Star qualified. Thermostats . Reputable manufacturer. . EPA Energy Star qualified. . Programmable. Minimum Standard . Additions and alterations that were constructed without a building permit and are clearly substandard shall be removed. . Additions and alterations that were constructed without a building permit, but appear to be compliant, shall be inspected by the City's Building Official to determine if a building permit can be issued and they can be saved. NSP3 Substantial Amendment City of Santa Ana NSP - NEW CONSTRUCTION STANDARDS A. Local Codes and zoning Any housing constructed with NSP funds must meet all applicable local codes, rehabilitation standards, and zoning ordinances at the time of project completion. Applicable Building Standards Adopted By the City of Santa Ana: 2010 California Building Code (CBC) 2010 California Electrical Code (CEC) 2010 California Mechanical Code (CMC) Santa Ana Municipal Code (SAMC) 2010 California Fire Code (CFC) NFPA - Referenced National Fire Codes 2008 California Energy Code (Title 24, Part 6) B. Green Building The state - developed residential energy code known as Title 24, Part 6, exceeds the 2009 IECC, and is mandatory statewide. Buildings must also meet requirements set by CALGreen, the statewide green building code. All new construction of residential buildings shall, at a minimum, comply with the codes referenced above and meet the Energy Star standard. Sub - recipients are strongly encouraged to exceed Title 24 and achieve a LEED certification. C. Section 504 Section 504 of the Rehabilitation Act of 1973 prohibits discrimination in federally- assisted activities and programs on the basis of handicap, and imposes requirements to ensure that qualified individuals with handicaps have access to these programs and activities. For new construction of multi - family projects (five or more units), a minimum of 5% of the units in the project (but not less than one unit) must be accessible to individuals with mobility impairments, and at a minimum, an additional 2% of the units (but not less than one unit) must be accessible to individuals with sensory impairments. The total number of units in a NSP- assisted project, regardless of whether they are all NSP assisted, is used as the basis for determining the minimum number of accessible units 80A -47 ATTACHMENT 3 NOTICE OF PROPOSED ACTION TO BE TAKEN BY THE CITY COUNCIL OF THE CITY OF SANTA ANA RESPECTING A PROPOSED SUBSTANIAL AMENDMENT TO THE CITY OF SANTA ANA 2013 -14 CONSOLIDATED PLAN ANNUAL UPDATE AND A PROPOSED SUBSTANTIAL AMENDMENT TO THE CITY OF SANTA'S NEIGHBORHOOD STABILIZATION PROGRAM 2 APPLICATION NOTICE IS HEREBY GIVEN that the Community Redevelopment and Housing Commission of the City of Santa Ana will conduct a public hearing on September 3, 2013 at 6:00 p.m. at the 2n' Floor Conference Room, 22 Civic Center Plaza, Santa Ana, CA 92701 on a proposed action approving a substantial amendment to the City's 2013 -14 Consolidated Plan Update and a substantial amendment to the City's Neighborhood Stabilization Program 2 (NSP 2) Application. On September 16, 2013 on or about 6:00 p.m. at the City Council Chambers, the City Council will take action on a request to authorize submittal of the substantial amendments to the U.S. Department of Housing and Urban Development (HUD). The proposed amendments will: • Allow incomes up to 60%AMI, and • Add Redevelopment Activity to both NSP 2 and 3. The draft substantial amendments will be available for public review from August 19, 2013 to September 3, 2013 at the following locations Monday through Friday during normal business hours: Housing Department, 20 Civic Center Plaza, 3`d Floor; Community Development Agency, 20 Civic Center Plaza, 6`" Floor; Office of the Clerk of the Council, 20 Civic Center Plaza, Room 809; and the Main Public Library, 26 Civic Center Plaza, Santa Ana, California. Written comments on the proposed amendments must be submitted to the Housing Division on or before September 3, 2013 at 9 a.m. ATTACHMENT 4 Elliot C .•: p {o- c% tb_ :L cc s : ; P x^i_ Neighborhood Stabilization Programs Communities across the eountry have been severely impacted by mortgage foreclosures and declining propern values. In response Congress passed the Housing and Economic Recovery Act of 2008 which funded the Neighborhood Stabilization Program (-NSP) to help revitalize and stabilize impacted communities The propose of &SP is to provide targeted assistance to 5t ate and local go• ernments to acquire and redevelop foreclosed homes and residential properties that might othensise become sources of blight nithm their communities. Through the NSP. HUD has allocated Sg.92 billion to communities nanain,ide ofidtich S,5,-4j.1$1 ryas allot, tort to the City of Santa All. The City submitted their Substantial V11e. dment to U.S Department of Housing and Urban Development (HUD), o -hich explains the programs to be implemented. .As a part of the Cit 's NSP, the City trill be, implementing five programs'. Dmw npay-ment is,ntant; ,ltgna'ition Rehabilitation of Single Family Homes; Acquisition Ez Rehabilitation of Condominiums and Historic Homes; Acquisition'Re halOhtation of Rental Housing; and Redevelopment. For more information on the C n s homeot,nte1hig nr ranv5 Neighborhood Stabilization Program 2 (NSP 2) The American Recovery and Reinvestment Act of 2oog (ARRA) provided additional fimdin; for NSP activities to states local governments, non profits, and a consortium of nonprofit entities on a competihs e basis. An ap ibcation eras submitted bs (: it, 'staff on in!,. 16, :7000 to the US Department of Housing and Urban Development (HUD) tar these additional NSP funds_ The Ct} , as atrarded Sio million to undertake the same activities /programs as NSP 1. The programs are: • Downpayment Assistance • Acquisition and Rehabilitation of Single Famil'v Homes • Acquisition and Rehabilitation of Rental Housing • Administration Public comment document f' Zorn NSP oSubstantial A end t Neighborhood Stabilization Program 3 (NSP 3) The U.S. Department of Housitlg and Urban Development (HUD) has allocated the amount of 91,464.111 in NSP g funds to the City of Santa Ana through the Frank -Dodd Act. To receive these funds the Cite adopted a substantl_1,pmendrient n-hich was submitted to HUD on February 28, 2011. The City till be implementing the following programs: Acquisition %Rehab:- Resole- ,5o Percent of Area Median Acquisition, Rehab; Resale -120 Percent of Area 1leman Administration Public tom moot d [ fn zot^ NSP z Substantal 4 ne die . Reporting Recipients of NSP funds are required to report specified information to the Department of Housing and Urban Development (HUD) 30 days after the end of each calendar quarter through the Disaster Recn or Grant R_Oei t ng S%- tem ( DRGR) 7 1c includes, but is not Hinhed to a detailed Fist of all projects and acm in,, for which funds mere ob t„ ated or es nded. an f-. air eon Of th^ O,ninleti,n st dui of the prract or actn itv, and an estimate of the number of Will ci laced or retained 'Phe tollo a i are the t 1 of is tint i1a I a n sub mitten: Qlf art €rJ]..Pro?esoj cPart._..3amu try 'L S,Zl nrlrr]t_ 1 s Rtynrf- ..,Jrn iS? d• thglpgli March 31 :: +o13 throlzh ylerrla„ai,,•(l}g Qp3r[rh Pruarr*b K,go.t t,tobere Stu,,hilt f, Os, R•p.i ,J�k)h i, t19;As D•u- mbSLry FOR. tbl,,ji De(,,n I BOA-49 Qnaterl} ProZie'ss Report irnu rU j,yhrough ll n hal 20t. t u v, K.11"e1 ,) 1,[), ! i tn„ ev_h il, lobar 31•'1).1 Qu]rh]ly Ptn .ty., Rti"' t, J, lh i lhl%W,l riva]terli Fri�ie -RlP )Mr Jul; 1 Hn45i{',]I Q]ta]erSh�S�re�3Fr7i st J.M1FIlt Srp Gym ner!19. `G.il Sugirm b:pr,,,,,o .•01a tivnly+h 5elReldFhSr�a 201;> i QStatterl3' ProEre�. 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Quarterh Proere_+ Report- October t th�gll Dece nbec -1 r0�i Quarterly pros � Report - J I v 1 through Sep'eruber 30 2011 uerterly Pttlare5s Report- A21JI 2011 throp�h June ;_o. ^_oii Quarterly Program sR pott- January 1 through Starch 11 2011 Quarterh Emm—l< Report - d t ob x through December ii, 2010 Quirtrrh P o re sRepgrt Almll Nt�,k,h Iµpr Z9, 2012 Q uarterh'ptaes1 {eport Jdnl1tk IIlwough Siarrlix1_. -; ( 1 ter[erb' Pt r Refit October 1 t1u01,L7 December i nii QVarterl}'_Pi ogress. Report .lu v yrjir9uh heptenlbe -w 2cii )uarterlc Pro re s Report apl'll t th�ut June 1001 :or] Qumteily Pro res Repoq January 1 ttrqu&h March j 2oAx Quarterh- Prouess Report -Ju,.1 though September 30 2010 Quarterly Progress Revort April 1 - _ -.._. _._. _..... through June lo. 2010 Quarterly Progr ac Report - January t through March 31 010 oaCmcf nt a., r: cee -tr ?a.;, gang. Cd_g,. �: .q64 -._a ^^ 80A -50 ATTACHMENT 5 SUMMARY OF PUBLIC COMMENTS Public Comments period will end on September 3, 2013 at 9 a.m. NSP3 Substantial Amendment City of Santa Ana APPLICATION FOR OMa Approved No. 3076 -0006 Version 7109 FEDERAL ASSISTANCE 2. DATE SUBMITTED - Applicanlldentifer - March 1, 2011 1. TYPE OF SUBMISSION: 3. DATE RECEIVED BY STATE Slate AppUcalinn Identifier Appllcagon PWappllcation Q Construction [] Construction 4. DATE RECEIVED BY FEDERAL AGENCY Federal Identifier -C truetlon ns r 6. APPLICANT INFORMATION Legal Name: Organizational Unit: City of Santa Ana Communilyt Development Agency Organizational DUNS: Division: 083153247 Housing Division Name and telephone number of person to be contacted on matters anter Plaza, M -37 Involving this (give area code Prefix: First Name: Shefl rCivic _ _ _ - W Middle Name ((..Landry-Bayla Zip Code -- `._.�- __--__- 92702 Sufx: of no, United States slandry- baylog5 santa- ana org 6. EMPLOYER IDENTIFICATION NUMBER (EIN) : Phone Number (give area caeo) Fox Number (9ivo oroa code) nn —�n 0- ._ L'JI4.1L_J 714 -867 -2284 714 -667 -2225 8. TYPE OF APPLICATION: T. TYPE OF APPLICANT: (See back of form for Application Types) A/ New IF1 Continuation r Revision Il Revision, enter appropriate letter($) In box(es) C. Municipal See back of form for description of letters,) I_1 Other (specify) O Ll Other (specify) 9. NAME OF FEDERAL AGENCY: U.S. Department of Housing and Urban Development 10. CATALOG OF FEDERAL DOMESTIC ASSISTANCB NUMBER: 11, DESCRIPTIVE TITLE OF APPLICANT'S PROJECT: MZ_g1M� Neighborhood Slatelllzallon Program 3 will be used to create new TITLE (Name of Pro rem): LJ homeownership opportunities for Low., Moderate -, and Middle- Income Neighborhood 8tabi9zedon Program Formula Grants (Round 3) households via the acquisition, rehabilitation, and /or resale of foreclosed and/or abandoned residantlal properties. 12. AREAS AFFECTED BV PROJECT (C/f/es, Counties, States, etcj., Santa Ana, CA 13. PROPOSED PROJECT 14, CONGRESSIONAL DISTRICTS OF: Slan Dale: Ending Date: a. Applicant b. ProJeci 71112011 7/1/2014 4G & 47 7 16. ESTIMATED FUNDING: 16, IS APPLICATION SUBJECT TO REVIEW BY STATE EXECUTIVE a. Federal 1,484,113 0 12372 CE THIS PREAPPUCATIONAPPLICATION WAS MADE a. Yes. �Q AVAILABLE TO THE STATE EXECUTIVE ORDER 12372 PROCESS FOR REVIEW ON OA "I E: b. No. PROGRAM I$ NOT COVERED BY E. 0.12372 OR PROGRAM HAS NOT BEEN SELECTED BY STATE b. Applicant c. State - -- -- tl. Local e. Other 1. Program Income POR REVIEW 17. IS THE APPLICANT DELINQUENT ON ANY FEDERAL DEBT? g. TOTAL 1,484,113' dyes If'Yes' attach an explanation. VJ No 18. TO THE BEST OF MY KNOWLEDGE AND BELIEF, ALL DATA IN THIS APPLICATION )PREAPPLICATION ARE TRUE AND CORRECT. THE OCUMENTHAS BEEN DULY AUTHORIZED BY THE GOVERNING BODY OF THE APPLICANT AND THE APPLICANT WILL COMPLY WITH THE TTACHED ASSURANCES IF THE ASSISTANCE IS AWARDED. 'z I 10 fix: Firs �Name _ Davd Iddle Name N Lest Name Ream uffx Tile City Manager Telephone Number ) Pn 19Na area code . Signature of Au odze Representative 714 -647 -6713 Date Siggned pravinaa Ediuno llcoer> Pabrua 23, 2011 Authorized for Local Reoroduction 80A -52 Grandam i °orm 424 (Rev.9.2003) Prescribed by OMB Circular A -102 ATTACHMENT 7 Certifications Certifications for State and Entitlement Communities (1) Affirmatively furthering fair housing. The jurisdiction certifies that it will affirmatively further fair housing, which means that it will conduct an analysis to identify impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions in this regard. (2) Anti- displacement and relocation plan. The applicant certifies that it has in effect and is following a residential anti - displacement and relocation assistance plan. (3) Anti- lobbying. The jurisdiction must submit a certification with regard to compliance with restrictions on lobbying required by 24 CFR part 87, together with disclosure forms, if required by that part. (4) Authority of jurisdiction. The jurisdiction certifies that the consolidated plan or abbreviated plan, as applicable, is authorized under state and local law (as applicable) and that the jurisdiction possesses the legal authority to carry out the programs for which It Is seeking funding, in accordance with applicable HUD regulations and other program requirements. (5) Consistency with plan. The jurisdiction certifies that the housing activities to be undertaken with NSP funds are consistent with Its consolidated plan or abbreviated plan, as applicable. (6) Acquisition and relocation. The jurisdiction certifies that it will comply with the acquisition and relocation requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. 4601), and implementing regulations at 49 CFR part 24, except as those provisions are modified by the notice for the NSP program published by HUD. (7) Section 3. The jurisdiction certifies that It will comply with section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u), and implementing regulations at 24 CFR part 135. (8) Citizen participation. The jurisdiction certifies that it is in full compliance and following a detailed citizen participation plan that satisfies the requirements of Sections 24 CFR 91.105 or 91.115, as modified by NSP requirements. (9) Following a plan. The jurisdiction certifies it is following a current consolidated plan (or Comprehensive Housing Affordability Strategy) that has been approved by HUD. (Only States and entitlement jurisdictions use this certification.] (10) Use of funds. The jurisdiction certifies that it will comply with the Dodd -Frank Wall Street Reform and Consumer Protection Act and Title XII of Division A of the American Recovery and Reinvestment Act of 2009 by spending 50 percent of its grant funds within 2 years, and spending 100 percent within 3 years, of receipt of the grant. (11) The jurisdiction certifies; a. that all of the NSP funds made available to it will be used with respect to individuals and families whose incomes do not exceed 120 percent of area median Income; and NSP3 Substantial Amendment City of Santa Ana 80A -53 ATTACHMENT 7 b. The jurisdiction will not attempt to recover any capital costs of public improvements assisted with CDBG funds, including Section 108 loan guaranteed funds, by assessing any amount against properties owned and occupied by persons of low- and moderate - income, including any fee charged or assessment made as a condition of obtaining access to such public improvements. However, if NSP funds are used to pay the proportion of a fee or assessment attributable to the capital costs of public improvements (assisted in part with NSP funds) financed from other revenue sources, an assessment or charge may be made against the property with respect to the public improvements financed by a source other than CDBG funds. In addition, with respect to properties owned and occupied by moderate - Income (but not low- income) families, an assessment or charge may be made against the property with respect to the public Improvements financed by a source other than NSP funds if the jurisdiction certifies that it lacks NSP or CDBG funds to cover the assessment. (12) Excessive force. The jurisdiction certifies that it has adopted and is enforcing: a. A policy prohibiting the use of excessive force bylaw enforcement agencies within its jurisdiction against any individuals engaged in nonviolent civil rights demonstrations; and b. A policy of enforcing applicable state and local laws against physically barring entrance to, or exit from, a facility or location that is the subject of such nonviolent civil rights demonstrations within its jurisdiction. (13) Compliance with anti- discrimination laws. The jurisdiction certifies that the NSP grant will be conducted and administered in conformity with Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), the Fair Housing Act (42 U.S.C. 3601- 3619), and Implementing regulations. (14) Compliance with lead -based paint procedures. The jurisdiction certifies that its activities concerning lead -based paint will comply with the requirements of part 35, subparts A, B, J, K, and R of this title. (15) Compliance with laws. The jurisdiction certifies that it will comply with applicable laws. (16) Vicinity hiring. The jurisdiction certifies that it will, to the maximum extent feasible, provide for hiring of employees that reside in the vicinity of NSP3 funded projects or contract with small businesses that are owned and operated by persons residing in the vicinity of NSP3 projects. (17) Development of affordable rental housing, The jurisdiction certifies that it will be abide by the procedures described in its NSP3 Abbreviated Plan to create preferences for the development of affordable rental housing for properties assisted with NSP3 funds. a��, uc' Z14XIJI Signature /Authorized Official Date Title —L)— NSP3 Substantial Amendment City of Santa Ana 80A -54 PROPOSED PROJECT LOCATION 803 -815 NORTH HARBOR BOULEVARD 0 F w w J w O ~ m HAZARD AVENUE w w H N } w J w w Q m m cc Q LL VY EXHIBIT 3 80A -55 d' m 2 X W o N gz a E b0 k" W N F O 80A -56 r T N W � !�Q O G %1+ g€ N p u p d 5 h W C n U � L a a+e 2 E E O N U N z ? :0 O i L U A Q F Q e e o " H A R E N V] b e d N .y O N Q u «v, Q ei a a ri d o o E cN x o U N 0 N L ti 9 O u u a w � N FO N A U U W= o N gz a E b0 k" W N F O 80A -56 r T N W � !�Q O G %1+ g€ N p u p d 5 h W C n U � L a a+e 2 E E O N U N z ? :0 O i L U A Q F Q e e o " H A R E N V] b e d N .y O N Q u «v, Q ei a a ri d o o E cN x o U N u O w � W= z F � C y O O O O N CL O d 2 A+ W = F a Z � P N 8 M CO O N � N z w C^ ii O �U L M a b N U N a U m o N gz a E b0 k" W N F O 80A -56 r T N W � !�Q O G %1+ g€ N p u p d 5 h W C n U � L a a+e 2 E E O N U N z ? :0 O i L U A Q F Q e e o " H A R E N V] b e d N .y O N Q u «v, Q ei a a ri d o o E cN x o U FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Community Development Agency 20 Civic Center Plaza (M -37) P.O. Box 1988 Santa Ana, California 92702 Attention: Housing Manager LOAN AGREEMENT by and between the CITY OF SANTA ANA, and 815 N HARBOR, L.P. EXHIBIT 5 SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 61031 (815 N Harbor Boulevard, Santa Ana, California) Dated: September 2013 80A -57 LOAN AGREEMENT NEIGHBORHOOD STABILIZATION PROGRAM FUNDS THIS LOAN AGREEMENT (the "Agreement ") dated, for identification purposes only, as of September , 2013, is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation ( "City ") and 815 N Harbor, L.P. ( "Developer ") with reference to the following: RECITALS A. Developer has entered into an agreement (the "Purchase Agreement ") to purchase property, located at 815 N. Harbor Boulevard, Santa Ana, California, as more particularly described in the legal description, Exhibit A attached hereto and incorporated herein (the "Property "). Pursuant to the Purchase Agreement, the price to be paid for the Property, is $3,856,366 (the "Purchase Price "). B. This Agreement is made pursuant to the authority of Title XII of Division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111 -5 {February 17, 2009)) (Recovery Act) and sections 2301 -2304 of the Housing and Economic Recovery Act of 2008 (Public Law 110 -289 {July 30, 2008}) (HERA). Section 2301 -2304 of HERA is known as the "Neighborhood Stabilization Program" or "NSP" with money funded through the Program as "NSP Funds ". The term "NSP2" refers to the second appropriation of NSP Funds provided under the Recovery Act, and the term "NSP3" refers to the third appropriation of NSP Funds provided under the Recovery Act. C. The City was notified that its application under the NSP for NSP2 Funds was approved by the U.S. Department of Housing and Urban Development ( "HUD ") with funding allocated for acquisition and construction of the multi - family rental component of the NSP. The parties hereto have executed the "Neighborhood Stabilization Program (Program 2) Rental Housing Development Agreement" dated March 1, 2010 in the amount not to exceed $6,500,000 but no less than $2,500,000 plus program income. Developer must comply with all of the NSP Program requirements as set forth in the Agreement. Pursuant to this Agreement, NSP2 and NSP3 Funds will be used for the acquisition of the Property. This agreement amends the agreement dated March 1, 2010 to include redevelopment activities as authorized by the substantial amendment. D. On March 4, 2011, the City was notified that its application under the NSP for NSP 3 Funds was approved by HUD. Funding for the Developer is allocated for acquisition and construction of the multi - family rental components of the NSP 3 program in an amount not to exceed $1,500,000. E. A Request for Proposals was issued by the City to competitively choose a Developer for the NSP Funds. Developer was awarded an agreement for the NSP1 Funds for the Rental Program, further funding for NSP2 and now this Agreement, due to its successful implementation of said agreements to use such Funds. F. The City agrees to loan to Developer and Developer agrees to borrow from the City, money towards acquisition of the Property, for a total of $2,000,000.00 (the "City Loan ") pursuant to the Program, subject to the terms and conditions set forth herein. The City Loan shall be secured by a Deed of Trust in the principal amount of Two Million Dollars ($2,000,000.00). G. Developer is entering into this agreement to acquire and, subject to entitlement approvals, develop a mixed use project consisting of approximately seventy (70) unit multi- family residential housing development with a community room (the 'Project ") located at 815 N. Harbor Street, within the City of Santa Ana, California, and legally described in Exhibit A attached hereto (the 'Property"). NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City and Developer agree as follows: DEFINITIONS AND INTERPRETATION 1.1 Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Project Documents, unless otherwise expressly defined, are defined where first used in this Agreement and/or as set forth in this Article 1. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and 24 CFR 570. "Affordability Period" also referred to as "Term of Affordability ", shall be fifty - five (55) years from date of issuance of Certificate of Completion. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the U.S. Department of Housing and Urban Development (HUD). "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the City, attached hereto as Exhibit B. "Agreement" means this Neighborhood Stabilization Program Agreement between the City and the Developer, and any attachments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the NSP 2 and NSP 3 Funds. 'Building Permit' means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. 80A -59 "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit C, to be executed by Developer pursuant to Section 5.13.2 in order to secure the Loan Note. "City Loan" means the loan to be made by the City to Developer in the principal amount of Two Million Dollars ($2,000,000.00) in accordance with this Agreement. "City Project Manager" shall mean the City Manager and /or his/her designee. "City Promissory Note" means that certain promissory note in the original principal amount of $2,000,000 in the form attached hereto as Exhibit D, and to be executed by Developer in favor of City to evidence the obligation of Developer to repay the City Loan through residual receipts as further described in the City Promissory Note. "Close of Escrow" shall mean the date upon which the Loan Agreement and City Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Developer" means 815 N Harbor, LP, a California limited partnership comprised of OHDC 815 N Harbor, LLC, California limited liability company as managing general partner and C &C 815 N Harbor, LLC, a California limited liability company, as developer general partner. "Developer's Representative" shall mean the Chief Executive Officer of the Managing General Partner of Developer or his /her designee. "Escrow" means Escrow No. 588306 -A. "Escrow Holder" means First American Title Company, 5 First American Way, Santa Ana, California 92707. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 0 "Event of Default" has the meaning set forth in Section 8.1. "Foreclosed" As defined by HUD for the purposes of NSP means "A home or residential property has been foreclosed upon if any of the following conditions apply" (a) The property's current delinquency status is at least 60 days delinquent under the Mortgage Bankers of America delinquency calculation and the owner has been notified; (b) the property owner is 90 days or more delinquent on tax payments; (c) under state, local, or tribal law, foreclosure proceedings have been initiated or completed; or (d) foreclosure proceedings have been completed and title has been transferred to an intermediary aggregator or servicer that is not an NSP grantee, contractor, subrecipient, developer, or end user. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "HOME" means the HOME Investment Partnership Program (the "HOME Program ") (42 U.S.C. §12701, et seq.,) to be used in accordance with applicable statutory requirements and regulations (the "HOME Regulations ") (24 CFR Part 92). "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting). "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non - recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 18.2. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. 80A -61 "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Documents" means, collectively, this Agreement, the City Promissory Note, the City Deed of Trust, and the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMI ". "Neighborhood Stabilization Program" (NSP) has the meaning set forth in the Recitals above. "Neighborhood Stabilization Program (NSP) Regulations" has the meaning set forth in the Recitals above. "NSP Assisted Units" shall mean those residential units constructed which are subject to the term of affordability. "NSP Funds" shall mean the money provided under the NSP 2 and NSP 3 Program for the development of affordable rental units. "Partnership Agreement" means the Amended and Restated Limited Partnership Agreement of 815 N Harbor L.P., dated as of August 30, 2013. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Project" means the construction of the Improvements upon the Property by Developer pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached hereto as Exhibit E, as modified from time to time in accordance with this Agreement. l3 80A -62 "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 815 N. Harbor Boulevard in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Scope of Work" means the detailed statement of the work to be performed by Developer on and to the Property pursuant to this Agreement, which is attached hereto as Exhibit F. "Schedule of Performance" means the detailed schedule setting forth timeframes for certain tasks, which document is attached hereto as Exhibit G. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender, which is any of an acquisition loan in the approximate amount of $2,000,000 from Grandpoint Bank, a construction loan in the approximate principal amount of $17,607,180 with a term of approximately two (2) years or permanent loan(s) in the approximate principal amount of $5,089,440.00 with a term of approximately 18 years and an amortization period of 30 years. "Senior Loan Deed of Trust" means the first deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Target Area" shall mean the map attached hereto and incorporated herein as Exhibit H. "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty -five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Vicinity" shall mean the Target Area as identified by the City for the NSP funds and approved by HUD. 80A -63 1.2 Singular and Plural Terms. Any defined term used in the plural in this Agreement shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3 References and Other Terms. Any reference to this Agreement shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 1.4 Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 2. SCOPE OF WORKIPROJECT BUDGET A "Scope of Work" (Exhibit F) and "Schedule of Performance" (Exhibit G) for the Property is attached hereto. Any material change to the Scope of Work and/or Schedule of Performance requested by the Developer shall be subject to the prior written approval of the City Project Manager. The Scope of Work and /or Schedule sets forth the construction work that shall be performed on the Property and timeframes for approvals and such work. A line -item budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit E (the "Project Budget "). Any material change to the Project Budget requested by Developer shall be subject to the prior written approval of the City Project Manager. 3. CITY LOAN: The City Loan shall be evidenced by the City Promissory Note in the form attached hereto as Exhibit D. The City Loan shall be secured by the City Deed of Trust in the form attached hereto as Exhibit C. The terms and conditions of the City Loan are as set forth in the City Promissory Note which is a residual receipts note. The NSP terms of affordable compliance period is fifty -five (55) years or repayment, commencing on the date that all work is complete and the Property is fully occupied, however the term of affordability for the Project is fifty -five years or repayment of the City Loan, whichever is longer. 3.1 City Loan. The City agrees to lend to Developer, and Developer agrees to borrow from the City, the City Promissory Note Amount, with interest as provided in Section 4(a) of this Agreement, subject to the conditions and restrictions set forth in this Agreement, in the City Promissory Note, the Affordability Restrictions on Transfer of Property, and in the City Deed of Trust. When all conditions to the close of escrow other than payment of the Purchase Price have been satisfied, the City shall deposit the City Loan Amount into escrow. The City shall direct the Escrow Agent to apply the proceeds of the City Loan on behalf of Developer to F3 the Purchase Price of the Property and related soft costs. Developer shall execute and deliver to the Escrow Agent the Promissory City, the City Deed of Trust and the Affordability Restrictions on Transfer of Property. 3.2 Authorized Use of City Loan. The City Loan proceeds may be used for the acquisition of the foreclosed Property, as well as pre- approved reasonable soft costs related to such purchase. 3.3 Loan Repayment. Developer shall make payments to the City as provided in Sections 3.4 (Residual Receipts), 3.5 (Refinancing Proceeds), 3.6 (Sale Proceeds) and 3.7 (Accelerated Loan Repayment). 3.4 Annual Loan Repayment/ Residual Receipts. a. The Developer shall make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under the City Promissory Note or the City's percentage of the residual receipts, as provided in this Section 3.4. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150`s day of each Calendar Year thereafter, the Developer shall submit to the City an audited financial statement of gross revenues and operating expenses attributable to the Property for the applicable Calendar Year, along with a computation of the residual receipts due to the City for the Calendar Year. c. Except as otherwise provided, the Developer shall pay to the City fifty percent (50 %) of the Residual Receipts. Fifty percent (50 %) of the Residual Receipts shall remain with the Developer. d. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the principal balance of the loan. 3.5 Loan Repayment from Refinancing Proceeds. The Developer shall make a loan payment to the City from every refinancing that occurs during the term of this Agreement not to exceed the outstanding balance of principal on this City Promissory Note, to the extent of the City's percentage, which is fifty percent (50 %), of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay closing costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Developer shall pay to the City the City's percentage of the remaining Refinancing Proceeds to the extent of the outstanding balance on this City Promissory Note. At least fifty percent (50 %) of the Refinancing proceeds shall remain with Developer, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the City Promissory Note has been fully paid.. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the principal balance of the City Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the City Loan in full. E 80A -65 3.6 Loan Repayment from Sale Proceeds. The Developer shall make a loan payment, not to exceed the outstanding balance of principal on the City Promissory Note to the City from any Sale that occurs during the term of the City Loan, to the extent of the City's percentage of the Sale proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full, and next, the Developer shall pay to the City the City's percentage of the remaining sale proceeds, not to exceed the outstanding amount of principal due on this City Promissory Note. At least fifty percent (50 %) of the Sale proceeds shall remain with Developer, with all remaining Sale proceeds remaining with the Developer to the extent the outstanding balance of the City Promissory Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the principal balance of the City Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale proceeds are insufficient to repay the City Loan in full. 3.7 Accelerated Loan Payment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided herein; unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City Loan, the City approves such sale and the purchaser assumes the balance of the City Loan in accordance with the terms of the City Promissory Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the City Loan, the City approves such Refinancing and the Developer remains obligated pursuant to the terms of this City Promissory Note; or b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the City Loan Documents or the Senior Loan Documents; or C. Any default (subject to any applicable notice and cure provisions by Developer as to any other loan or loans by City to Developer with respect to the Property; or d. The date that is fifty -five (55) years after the date of the Certificate of Completion, is issued by the City of Santa Ana. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Developer to modify the terms or extend the Term of the City Promissory Note. 3.8 Prepayment Developer may prepay the outstanding principal balance under the City Promissory Note, in whole or in part, at any time without penalty, however the Affordability Restrictions on Transfer of Property still remain for the entire Affordability Period of fifty -five (55) years. 3.9 Acceleration by Reason of Transfer or Financing. a. In order to induce City to make the loan evidenced hereby, Developer agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, 10 by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Developer from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Developer complies with the provisions of the Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Developer is a general partner, or to a corporation or limited liability company that is wholly owned by the Developer or its affiliates and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Developer. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan shall be repaid to the City at the time of each Refinancing or partial Refinancing. c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (and it shall not be deemed a sale) (i) a transfer of a general partner's interest in Developer when made in connection with the exercise by the Developer's limited partner (the "Limited Partner ") of its rights upon a default by a general partner under the Developer's partnership agreement (the "Partnership Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Developer pursuant to the right of first refusal or to the general partners of Developer pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Developer. 4. [RESERVED] 5. [RESERVED] 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 11 80A-67 6.1 Conditions Precedent. City's obligation to disburse the loan is subject to the satisfaction, or waiver by the City Project Manager, of the following conditions precedent: a. Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signature(s) acknowledged where necessary, each of the following documents: (i) this Loan Agreement; (ii) the City Promissory Note; (iii) the City Deed of Trust; and (iv) the Affordability Restrictions on Transfer of Property. b. Title Insurance. City shall have received an LP -10 ALTA Lender loan policy of title insurance (1970 edition), or evidence of a commitment therefore satisfactory to City, issued by First American Title Insurance Company and in form and substance satisfactory to City, together with all endorsements and binders required, naming City as the insured, in a policy amount of not less than the total City Loan Amount, showing Developer as the fee owner of the Property and insuring the City Deed of Trust to be a valid priority lien on the Property. The City Promissory Note and Deed of Trust shall be subordinate to the Senior Loan Note and Senior Loan Deed of Trust. C. Affordability Restrictions on Transfer of Propert y. Developer shall have delivered to the Escrow Holder, in the form attached hereto as Exhibit B, the Affordability Restrictions on Transfer of Property pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, sanitary and affordable rental housing pursuant to the affordability requirements of Code of Federal Regulations ( "CFR ") section 92.252 or 92.254. The City's Affordability Restrictions on Transfer of Property shall remain in first position on title and shall not be subordinated. d. Documents Recorded. This Loan Agreement, the City Deed of Trust and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. e. Request for Notice. For the benefit of City, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default "). f Insurance. City shall have received evidence satisfactory to the City Attorney that all of the policies of insurance required by Section 19 of this Agreement are in full force and effect. g. Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct as of the Close of Escrow as though made on and as of that date, and if requested by the City Project 12 80A-68 Manager, City shall have received a certificate to that effect signed by Developer's Representative. f. No Default. No Event of Default by Developer shall have occurred, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the City Project Manager, City shall have received a certificate to that effect signed by Developer's Representative. 6.2 Disbursement Procedures for Loan(s). The City Loan proceeds shall be disbursed through Escrow to finance the acquisition and soft costs of the Project Budget (as evidenced in Exhibit E). The City Loan proceeds shall not be used for any purpose other than for acquisition and soft costs related to the development of the Project (costs all subject to City's prior review). 6.3 Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied (subject to applicable notice and cure rights) or waived by the City Project Manager, and (b) City is not in default under this Agreement, City may terminate this Agreement without any further liability on its part by giving written notice of termination to Developer. Upon the giving of such notice, all principal, interest and other amounts owing under the specified due date. 6.4 Other Terms and Conditions of City Loan. a. The City Promissory Note shall become immediately due and payable, in the event of any of the following: (1) failure to complete the Project within four (4) years of the recording date unless such time is extended by written consent of the City Project Manager which shall not be unreasonable withheld; (2) Developer fails to show diligence in obtaining financing for construction which shall not be unreasonable withheld if unsuccessful in obtaining tax credits; (3) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure periods; (4) an Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement. 6.5 Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 13 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROJECT 7.1 Use Covenants and Restrictions. a. Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assign and every successor in interest to the Property that Developer will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty- five (55) years from the effective date of the issuance of the Certificate of Completion. b. The Project shall consist of approximately seventy (70) units of which there will be forty -nine (49) two- bedroom units and twenty -one (2 1) three - bedroom units. There will be seven (7) units with incomes at or below 30% AMI, forty -two (42) units for households with incomes at or below 50% AMI; twenty (20) units for households with incomes at or below 60% AMI; and the remaining unit will be reserved for the on -site manager. If entitlement changes the number of units, the City Project Manager must approve affordability mix. C. Affordable rents shall be governed as provided in the NSP Regulations. Rental increases shall be in conformance with federal and state law. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 7.2 Affordability Levels /Unit Mix: The proposed unit mix and levels of affordability are as follows: Bedroom Size 30% AMI 50% AMI 60% AMI Total 2 Bedroom 5 30 14 49 3 Bedroom 2 12 6 20 Totals 7 42 20 69 The remaining unit will be a 3- bedroom unit reserved for the onsite manager. The affordable rents charged at the Project must comply with the lowest of the following standards: 1. The standards set forth by California Tax Credit Allocation Committee (TCAC), or 2. During the 55 -year affordability period for the sixty -nine (69) NSP assisted units, the rent schedule periodically published by HUD. * Utility allowances must be deducted from the Maximum Gross Monthly Rent. The Housing Authority of the City of Santa Ana publishes the utility allowance. 14 80A -70 7.3 Rent Increases: On an annual basis, the City shall provide the Developer with the maximum allowable schedule of rents for the Property. hi no event can Developer charge any tenant more than such amount. 7.4 Maintenance of the Property. Solely at Developer's expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the City, unless such condition cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the City may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The City shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Section 17 of this Agreement. 7.5 Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, disability, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 8. DEFAULTS AND REMEDIES 8.1 Event of Default. Failure or delay by either party to perform any term of provision of this Agreement within the time periods provided herein for such performance constitutes a default under the Agreement. If any party defaults in performance of its obligations, covenants or agreements hereunder, the defaulting party shall be entitled to cure the default in accordance with this section. The injured parry shall give written notice of default to the party in default, specifying the default complained of by the injure party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The defaulting party must, within thirty (30) days following service of said written notice, commence to cure, correct or remedy such failure or delay and shall complete such cure, correction, or remedy with reasonable diligence. Upon a default by Developer which is not cured within thirty (30) days following service of said notice, unless such default cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure but no more than ninety (90) days, the City shall have the right to terminate this Agreement by delivery of written notice of termination to Developer. 8.2 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. 15 80A -71 8.3 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the right and remedies of the parties are cumulative and the exercise by either parry of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.4 Damages. In the event that the City is liable for damages to Developer, such liability shall not exceed costs incurred by the Developer in the performance of this Agreement and shall not extend to compensation for loss of future income, profits or assets; provided, however, Developer's only remedy for any breach of this Agreement by the City shall be an action for specific performance of such party's obligations. 8.5 Nonrecourse Liabilitv. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, or the attached City Promissory Note and Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the loan evidenced by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 9. GENERAL PROVISIONS AND WARRANTIES As a material inducement to City to enter into this Agreement, Developer represents and warrants as follows: 9.1 Formation, Qualification and Compliance. 815 N Harbor, LP, is a California limited partnership comprised of OHDC 815 N Harbor, LLC, a California limited liability company with Orange Housing Development Corporation as its sole member, and C &C 815 N Harbor, LLC, a California limited liability company„ as the general partners. Orange Housing Development Corporation is (a) a non - profit public- benefit corporation, validly existing and in good standing under the laws of the State of California, (b) has all requisite authority to conduct its business and own and lease its properties, and (c) is qualified and in good standing in every jurisdiction in which the nature of its business makes qualification necessary or where failure to qualify could have a material adverse effect on its financial condition or the performance of its obligations under the Loan Documents. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 9.2 Senior Lender. Developer shall provide City with a minimum of three (3) lending institutions to insure the most competitive interest rate, fees and services for construction and permanent financing loans. If lender not the lowest, Developer must provide documentation supporting their decision. 9.3 Execution and Performance of Loan Documents. a. Developer has all requisite authority to execute and perform its obligations under the Loan Documents. 16 80A-72 b. The execution and delivery of Developer of, and the performance by Developer of its obligations under, each Loan Document has been authorized by all necessary action and does not and will not: (1) require any consent or approval not heretofore obtained of any person having any interest in Developer; (2) violate any provision of, or require any consent or approval not heretofore obtained under, any articles of incorporation, by -laws or other governing document applicable to Developer; (3) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the City Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (4) to best of its knowledge, violate any provision of any law presently in effect; or (5) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Developer is a party or by which Developer or any of its property is bound. C. Developer is not in default, in any respect that is materially adverse to the interests of City under the Loan Documents or that would have any material adverse effect on the financial condition of Developer or the conduct of its business, under any law, contract, lease or other agreement or document described in sub - paragraph (4) or (5) of the previous subsection. d. No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Authority is required which has not been previously obtained in connection with: (1) the execution of Developer of, and the performance by Developer of its obligations under, the Loan Documents except for necessary City permits necessary for the demolition and construction work on the Property as called for in the Loan Documents; and (2) the creation of the liens described in the Loan Documents. 9.4 Financial and Other Information. To the best of Developer's knowledge, all financial information furnished to City with respect to Developer in connection with the Loans (a) is complete and correct in all material respects as of the date of preparation thereof, (b) accurately presents the financial condition of Developer, and (c) has been prepared in accordance with generally accepted accounting principles consistently applied or in accordance with such other principles or methods as are reasonably acceptable to City. To the best of Developer's knowledge, all other documents and information furnished to City with respect to Developer, in 17 80A -73 connection with the Loans, are correct and complete insofar as completeness is necessary to give the City accurate knowledge of the subject matter. As of the date of this Agreement, to the best of Developer's knowledge Developer has no material liability or contingent liability not disclosed to City in writing and there is no material lien, claim, charge or other right of others of any kinds (including liens or retained security titles of conditional vendors) on any property of Developer not disclosed in such financial statements or otherwise disclosed to City in writing. " 9.5 No Material Adverse Chance. There has been no material adverse change in the condition, financial or otherwise, of Developer since the dates of the latest financial statements furnished to City. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to City in writing. 9.6 Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to City in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to City. 9.7 Governmental Requirements. To best of its knowledge, Developer is in compliance with all laws relating to the Property and all Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 9.8 Rights of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.9 Litigation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer or any property of Developer before any Governmental Authority, except as disclosed to City in writing prior to the execution of this Agreement. 9.10 Bankruptcy. To the best of Developer's knowledge, no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Developer, nor are any of such proceedings contemplated by Developer. 9.11 Information Accurate. To the best of Developer's knowledge, all information, regardless of its form, conveyed by Developer to City, by whatever means, is accurate, correct and sufficiently complete to give City true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. M. 80A -74 9.12 Conflicts of Interest. No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he /she has a direct or indirect financial interest. The Developer warrants that it neither has paid nor given, nor will pay or give, any third party any money or other consideration for obtaining this Agreement. 9.13 Nonliability of City Officials and Employees. No member, official or employee of the City shall be personally liable to the Developer in the event of any default or breach by the City or for any amount which may become due to Developer or on any obligations under the terms of this Agreement. 9.14 No Assignment. Developer expressly acknowledges and agrees that the City has only agreed to assist the Developer as a means by which to induce the construction/development of the Project. Accordingly, Developer further expressly acknowledges and agrees that this Agreement is a personal right of Developer that is neither negotiable, transferable, nor assignable except as set forth herein. Developer may assign some or all of its rights under the Agreement only with the prior written consent of the City Project Manager (such consent not to be unreasonably withheld), except that no prior consent is necessary for an assignment by a limited partner of Developer to an affiliate, or as otherwise provided in the Deed of Trust. 9.15 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and California state law with venue in Orange County California. 9.16 Third Parties. This Agreement is made for the sole benefit of Developer and the City and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the City hereunder or arising from any default by Developer, nor shall the City owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the construction of the Property. 9.17 Control of Property. The parties acknowledge that the City has not at any time participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 10. CONDITIONS FOR CONSTRUCTION 10.1 Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of Governmental Agencies required in connection with the construction and conversion of the Property. a. General Contractor. If the City Project Manager has not yet approved the General Contractor, the City Project Manager shall have approved the identity and qualifications of the General Contractor. b. Contract for Construction. The City Project Manager must have reviewed and approved the contract for construction. 19 80A -75 10.2 Commencement and Completion of Construction. The construction of the Project shall be considered complete for purposes of this Agreement only when (a) all work described has been completed and fully paid for, and (b) all work requiring inspection or certification by Governmental Authority has been completed and all requisite certificates, approvals and other necessary authorizations (including required final certificates of occupancy) have been obtained. 10.3 [Intentionally Omitted] 10.4 Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice, City and its agents shall have (a) the right of free access to the Property and all sites away from the Property where materials for the construction are stored, (b) the right to inspect all labor performed and materials furnished for the construction, and (c) the right to inspect and copy all documents pertaining to the construction. 10.5 Economic Opportunities for Low Income People. (24 CFR 570.487, Section 3 of the Housing and Urban Development Act of 1968, 12 USC 170 In, as amended by Section 915 of the Housing and Community Development Act of 1992). Developer certifies that it implements a policy in accordance with Section 3 of the Housing and Urban Development Act of 1968 that requires employment and other economic opportunities arising in connection with housing rehabilitation, housing construction and other public construction projects shall, to the extent feasible and consistent with existing federal, state and local laws and regulations, be given to low and very low - income persons. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. To the extent applicable, the Developer shall comply and/or cause compliance with Section 3 Clause requirements for the NSP. For example, when and if Developer or its contractor(s) /subcontractor(s) hire(s) full time employees, Section 3 is applicable and all disclosure and reporting requirements apply. To the maximum extent feasible, the Developer shall provide for the hiring of employees who reside in the vicinity of the Target Area or contract with small businesses that are owned and/or operated by persons residing in the vicinity of the Target Area. The Developer shall report to the City information regarding efforts taken to comply with this section through the Vicinity Hiring Report (Exhibit I) 15 days after the end of each calendar quarter. 10.6 Construction Information. From time to time during the course of the construction, within ten (10) Business Days following City's written demand therefore, Developer shall furnish requested reports of project costs, progress schedules and contractors' costs breakdowns for the construction, itemized as to trade description and item, showing the name of the contractor(s) and/or subcontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7 Protection Against Liens: Developer shall diligently file a valid Notice of Completion upon completion of the construction, diligently file a notice of cessation in the event of a cessation of labor on the construction for a period of thirty (30) days or more, and take all 20 80A -76 actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the City by any person furnishing labor or materials to the Property, Developer shall immediately give written notice of the same to City and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the same, (b) effect the release thereof by delivering to City a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as City may require to release City from any obligation or liability with respect to such stop notice or claim. 11. GOVERNMENT REQUIREMENTS 11.1 Qualification as Affordable Housing. As more particularly provided in the Affordability Restrictions on Transfer of Property, Developer shall use, manage and operate the Property in accordance with the requirements of 24 CFR 92.252, 24 CFR 570 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.2 Tenant and Participant Protection. Developer shall comply with the requirements of 24 CFR 92.253. 11.3 [Intentionally Omitted] 11.4 Handicapped Accessibilitv. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35 -36 in order to make the Project readily accessible to and usable by individuals with disabilities. 11.6 Use of Debarred, Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 11.7 Maintenance of Drug -Free Workplace. Developer shall certify that Developer will provide a drug -free workplace in accordance with 24 CFR 84.13. 11.8 Lead -Based Paint. Developer shall comply with the requirements, as applicable of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821 -4846) and implementing regulations at 24 CFR 35. 11.9 Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by 24 CFR 92.351 and the City of Santa Ana's adopted affirmative marketing procedures and minority outreach program. 11.10 Property Standards. Developer shall cause the Property to meet the housing quality standards set forth in 24 CFR 882.109, as well as all applicable local, state and federal codes and ordinances, including zoning ordinances. Developer shall also cause the Property to 21 80A-77 meet the current edition of the Model Energy Code published by the Council of American Building Officials. 11.11 Displacement and Relocation. Developer acknowledges and agrees that, pursuant to 24 CFR 92.253 and consistent with the other goals and objectives of this part, City must ensure that it has taken all reasonable steps to minimize the displacement of persons as a result of the construction. Furthermore, to the extent feasible, residential tenants must be provided a reasonable opportunity to lease and occupy a suitable, decent, safe, sanitary and affordable dwelling unit on the Property upon completion of the construction. Developer agrees to cooperate fully and completely with City in meeting the requirements of 24 CFR 92.253 and shall take all actions and measures reasonably required by the City Project Manager in connection therewith. All applicable state guidelines must also be followed. 11.12 Other Program Requirements. Developer shall carry out each activity in compliance with all federal laws and regulations described in subpart H of 24 CFR 92, except that Developer does not assume City's responsibilities for environmental review in 24 CFR 92.352 or the intergovernmental review process in 24 CFR 92.359. 11.13 Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the acquisition and soft costs of the Project). The amount of each request shall be limited to the amount needed. 11.14 Eligible Costs. Developer shall use NSP Funds to pay costs defined as "eligible costs" pursuant to 24 CFR 92.206. 11.15 Records and Reports. Developer shall maintain and from time to time submit to City such records, reports and information as the City Project Manager may reasonably require in order to permit City to meet the record keeping and reporting requirements required of it pursuant to 24 CFR 92.508. 11.16 Use of Debarred. Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 11.17 Maintenance of Drug -Free Workplace. Developer shall certify that Developer will provide a drug -free workplace in accordance with 24 CFR 84.13. 11.18 Books and Records. Developer shall maintain complete books of account and other records, reports and information, as the Executive Director may reasonably require, reflecting its operations (in connection with any other businesses as well as with respect to the NSP Assisted Units), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, to meet the record keeping and reporting requirements required of it in accordance with 24 CFR 92.508. 22 11.19 Equal Opportunity and Fair Housing. Developer shall carry out the construction and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing described in 24 CFR 92.350. 11.20 Conflict of interest. Developer shall comply with and be bound by the conflict of interest provisions set forth at 24 CFR 570.611, as well as state regulations pertaining to conflict of interest. I. 11.21 Uniform Administrative Requirements. Developer shall comply with the requirements and standards of OMB Circular No. A -122, "Cost Principles for Non -Profit Organizations," and with the following Attachments to OMB Circular No. A -110: a. Attachment A, "Cash Depositories ", except for paragraph 4 concerning deposit insurance; b. Attachment B, 'Bonding and Insurance"; C. Attachment C, 'Retention and Custodial Requirements for Records ", except that in lieu of the provisions in paragraph 4, the retention period for records pertaining to individual NSP activities starts from the date of submission of the annual performance and evaluation report, as prescribed in 24 CFR 570.507, in which the specific activity is reported on for the final time; d. Attachment F, "Standards for Financial Management Systems'; e. Attachment H, "Monitoring and Reporting Program Performance ", Paragraph 2; f Attachment O, "Procurement Standards." 11.22 Monitoring. Developer shall allow the City to conduct periodic inspections of each of the assisted units on the Property as required by the Program after the date of construction completion, with reasonable notice. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the sole discretion of the City. 11.23 Recertification of Tenant Income. a. The HOME program guidelines and regulations will be used for the recertification of Tenant Income for the Project. b. Developer shall take all necessary steps to review the income of all tenants prior to renting to them, as well as reviewing current tenants on an annual basis, in accordance with HOME regulations and guidelines. Every fifth (5th) year, Developer shall require new original income documents to be submitted by tenants. Tenants in NSP assisted units whose incomes no longer comply with federal income guidelines shall have their rents adjusted in accordance with federal HOME guidelines (24 CFR 92.252- 92.253). 23 80A -79 C. Developer shall allow the City to conduct periodic reviews of tenant files and files relating to affirmative marketing and outreach to insure the Project's compliance with applicable regulations and guidelines. d. NSP assisted units continue to qualify as affordable housing despite a temporary non - compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section until the non - compliance is corrected. 11.24 Controlling Covenants. If there is a discrepancy between State and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1 Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a businesslike manner; shall prudently preserve and protect its own as well as the City's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected; and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of City's interests under the Loan Documents. Without limiting the generality of the foregoing, and except as otherwise agreed by City in writing from time to time, Developer shall promptly and faithfully perform and observe each of the following provisions: a. Alterations and Repair. Developer shall not remove, demolish or materially alter any Improvement without City's prior consent, other than demolition of existing improvements and except to make non - structural repairs which preserve or increase the Property's value, and shall promptly restore, in a good and professional manner, any Improvement (or other aspect or portion of the Property) that is damaged or destroyed from any cause. 12.2 Compliance. Developer shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the obtaining of Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's business thereon. 12.3 Taxes and Impositions. Developer shall pay, prior to delinquency, all of the following (collectively, the "Impositions "): (a) all general and special real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non - governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on City (other than City's income or franchise taxes) which are 24 measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). a. Right to Contest. Developer shall not be required to pay any Imposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair the City's interests under the Loan Documents, and (c) Developer has furnished City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). b. Evidence of Payment. Upon demand by City from time to time, Developer shall deliver to City, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. C. Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, in accordance with 24 CFR 92.508. 12.4 Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ( "Project Operating Account "). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Budget, as it may be revised from time to time with prior City approval. Developer may make withdrawals from this account solely for the payment of Project expenses and Project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the City which must be consistent with other lender and investor approvals. 12.5 Replacement Reserve Account. Developer must establish or cause to be established a segregated interest - bearing replacement reserve depository account ( "Replacement Reserve Account ") concurrently with conversion from the construction loan to the conventional permanent loan. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer's Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, furniture, fixtures or equipment of the Project that are reasonably required to preserve the Project. Developer may not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the City which must be consistent with other lender and investor approvals. 13. NONDISCRIMINATION COVENANTS that: 13.1 Obligation to Refrain from Discrimination. Developer covenants and agrees 25 i 1 mi a. In Use of Property. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, disability, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. b. In Affordable Housing Restrictions. The foregoing covenant shall (a) be included in the Affordability Restrictions on Transfer of Property, (b) run with the land, and (c) remain effective for the term of the contract (for 55 years). C. In Employment. In construction on the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, disability, creed, religion, sex, marital status, disability, national origin, or ancestry. d. In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor for the benefit of City, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. 14. ENVIRONMENTAL MATTERS 14.1 Representation and Warranty. Except as disclosed in writing to the City, Developer has no knowledge (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials, or of the transportation to or from the Property of any Hazardous Materials, (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property, or (c) that there are any underground storage tanks located in, on or under the Property. 14.2 Compliance with Environmental Laws. Developer shall (a) comply with all environmental laws and environmental permits applicable to the construction of the Property, (b) immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, (c) keep the Property free and clear of any environmental claims or liens imposed pursuant to any environmental law, and (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3 Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance with all applicable environmental laws and required in connection with the routine operation and maintenance of the Property or except use of commercially available household products by tenants. W 14.4 Notice of Environmental Matters. Developer shall immediately advise City in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property, (b) any condition or occurrence that (i) results in noncompliance with any applicable environmental law, (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental Law, or (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 14.5 Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and its respective officers, directors, employees and agents (collectively the "lndemnitees ") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including consultants, and attorneys' fees) of whatever kind or nature whatsoever that may at any time be incurred by, imposed on, or asserted against the lndemnitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property. 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the City Promissory Note or Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 15.1 Existence. The sole member of Developer's managing general partner (OHDC) shall maintain its existence in good standing under the laws of the State of California, and its status as a CHDO under federal law and Developer shall provide documentation of such status annually to the City. 15.2 Protection of Lien. Developer shall maintain the lien of the City Deed of Trust as a valid second priority deed of trust on the Property and take all actions, and execute and deliver to City all documents, reasonably required by City from time to time in connection therewith. 15.3 Notice of Certain Matters. Developer shall give notice to City, within ten (10) days of Developer's learning thereof, of each of the following: a. any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $5,000; and any litigation or claim that might subject Developer or any general partner to liability in excess of $5,000, whether covered by insurance or not; b. any dispute between Developer and a Governmental Authority relating to the Property, the adverse determination of which might materially affect the Property; C. any change in Developer's principal place of business; 27 d. any aspect of the Improvements that is not in substantial conformity with the plans or code; C. any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; f. any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; g. the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and /or h. any material adverse change in the financial condition of Developer. 15.4 Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to City all documents, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents; to protect and further the validity, priority and enforceability of the City Deed of Trust; to subject to the Deed of Trust any property intended by the terms of any Loan Document(s) to be covered by the City Deed of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. 15.5 Annual Financial Statements. Developer shall deliver to City, within one hundred fifty (150) days after the end of each Calendar Year, (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together with all supporting schedules, (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements, and (c) a certificate of Developer's chief financial officer that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City, (ii) fairly present Developer's financial condition, (iii) show all material liabilities, direct and contingent, and (iv) fairly present the results of Developer's operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies. 15.6 Audits and Access to Records. Developer agrees that City, the U.S. Department of Housing and Urban Development, the Comptroller General of the United States or any of their authorized representatives shall have the right of access, upon reasonable notice, to any books, documents, papers, or other records of Developer which are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of W affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the affordability or recapture period ends. 15.7 Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the City every fifth (5') year beginning January 2021. 16. OTHER COVENANTS While any obligation of Developer under the City Promissory Note or City Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that City Project Manager otherwise consents in writing: 16.1 Default on Senior Loan. Developer shall not default on any of the Senior Loan documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2 Sale or Lease of Property. Unless and until Developer has received a Certificate of Completion for the construction from City, Developer shall not sell, lease, sublease or otherwise transfer all or any part of the Property or any interest therein, other than leases of the existing improvements prior to their demolition and commencement of construction of the Project if allowable under NSP regulations, without the prior written consent of the City Project Manager, which consent may be withheld in the City Project Manager's reasonable discretion. In connection with the foregoing consent requirements, Developer acknowledges that City relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the construction. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (i) a transfer of a General Partner's interest in Developer when made in connection with the exercise by the Developer's limited partner (the "Limited Partner ") of its rights upon a default by a General Partner under the Developer's Partnership Agreement (the "Partnership Agreement ") or upon a General Partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the General Partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the Managing General Partner pursuant to the right of first refusal or to the General Partners pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Developer. 16.3 Nondiscrimination a. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, disability, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall Developer or any person claiming under or through 29 Developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect in perpetuity. b. Developer shall refrain from restricting the rental, sale or lease of the Property or any portion thereof on the basis of any of the characteristics listed above. Developer shall also comply with the equal opportunity and fair housing requirements set forth in applicable NSP Regulations. The foregoing covenants shall run with the land and remain in effect in perpetuity. 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction and upon the request of Developer, or at its own election, the City of Santa Ana shall issue a Certificate of Completion. Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction. If City declines to furnish a Certificate of Completion after written request from Developer, the City Project Manager shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefore. The statement shall contain a description of the action Developer must take to obtain a Certificate of Completion. If the reason therefore is that the Developer has not completed a minor portion of the construction, City may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with City of a bond or other form of security acceptable to the City Project Manager in the amount of the fair value of the uncompleted work. A Certificate of Completion is not evidence of compliance with or satisfaction of the Loan Documents or any obligation of Developer to any other party whatsoever, including any holder of a mortgage or deed of trust. A Certificate of Completion is not "notice of completion" referred to in Section 3093 of the California Civil Code. 18. INDEMNIFICATION t8.1 Nonliability of City. Developer acknowledges and agrees that: a. The relationship between Developer and the City is and shall remain solely that of Developer and lender, City neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the construction, including matters relating to: (i) the performance of the construction work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress of the construction; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by City in connection with such matters is solely for the protection of City and that neither Developer nor any third party is entitled to rely on it; 30 b. Notwithstanding any other provision of any Loan Document: (i) the City is not a partner, joint venture, alter -ego, manager, controlling person or other business associate or participant of any kind of Developer and City does not intend to ever assume any such status; (ii) City's activities in connection with the Loan shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and City does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and (iii) City shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; C. City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Property or any fire or other casualty or hazard thereon; and d. By accepting or approving anything required to be performed or given to City under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 18.2 Indemnity. Developer shall defend (by counsel satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) arising from or relating to (i) this Agreement; (ii) the making of the Loan(s); (iii) a claim, demand or cause of action that any person has or asserts against Developer; (iv) any act or omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property; or (vi) the ownership, occupancy or use of the Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify City with respect to the consequences of any act of gross negligence or willful misconduct of City. Developer's obligations under this Section shall survive the cancellation of the City Promissory Note, release and reconveyance of the City Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. a. Notwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result as the repayment of principal and/or interest under the Loan. 18.3 Reimbursement of City. Developer shall reimburse City immediately upon written demand for all costs reasonably incurred by City (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of City) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty (20) days after City gives written demand to Developer and shall be secured by the City Deed of 31 Trust. Such reimbursement obligations shall survive the cancellation of the Loan Note, release and reconveyance of the City Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1 Policies Required. While any obligation of Developer under the Loan Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: a. worker's compensation insurance to extent Developer has employees and any other insurance required by law in connection with the construction; b. prior to commencement and following completion of the construction, fire and hazard "all risk" insurance covering 100% of the replacement cost of the Improvements in the event of fire, lightning, windstorm, vandalism, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); C. upon commencement of the construction and at all times prior to completion of the construction, builder's risk -all risk insurance covering 100% of the replacement cost of all Improvements (including offsite materials) during the course of construction in the event of fire, lightning, windstorm, vandalism, earthquake, malicious mischief and all other risks normally covered by "all risk" coverage policies in the area where the Property is located (including loss by flood if the Property is in an area designated as subject to the danger of flood); d. public liability insurance in amounts reasonably required by City from time to time, and in no event less than $1,000,000 for "single occurrence;" e. property damage insurance in amounts reasonably required by the City from time to time, and in no event less than $1,000,000; and f. any other insurance reasonably required by City. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to City. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" in form and substance satisfactory to City, showing the City as encumbrance. The City shall be named as an additional insured in the policies required under subparagraphs (d) and (e). Certificates of insurance for the above policies (and/or original policies, if required by City) shall be primary and delivered within ten (10) days after demand therefore, and prior to start of any construction work. All policies insuring against damage to the Improvements shall contain an agreed value clause sufficient to eliminate any risk of co- insurance. No less than thirty (30) days prior to the expiration of each policy, Developer 32 shall deliver to City evidence of renewal or replacement of such policy reasonably satisfactory to the City Attorney. The copy of the certificate of insurance and loss payee endorsement shall be delivered to the City as follows: City of Santa Ana, Community Development Agency 20 Civic Center Plaza, M -37 P.O. Box 1988 Santa Ana, CA 92702 Attention: Housing Manager Any certificate of insurance required by this section must be in a form, content and with an insurance company that is acceptable to the City in its sole discretion. 19.2 City Attorney May Modify. The City Attorney may modify the type and amounts of insurance required pursuant to this Section. 19.3 Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi - public use of any portion of the Property (collectively, "Condemnation "), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and /or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 19.4 Delivery of Proceeds to City. In the event that, notwithstanding the "lender's loss payable endorsement" requirement set forth above, the proceeds of any casualty insurance policy described herein are paid to Developer, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 19.5 Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds ") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions ") within ninety (90) days after the applicable insurance company has processed any claim (unless extended by mutual agreement of Developer and City) following the occurrence of the damage for which the Proceeds are collected: a. Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b)) will be adequate to repair the Improvements and to restore the fair market value of the Property, within a time period reasonably determined by City, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of (i) plans and 33 specifications reasonably satisfactory to City, and (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to City. b. To the extent that the Proceeds are insufficient to accomplish the restoration required above, Developer shall deliver to City funds (the "Shortfall Funds ") in the amount of such shortfall, which funds shall be assigned to City as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. C. Developer shall execute such documents as City requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. d. No Event of Default shall remain uncured. 19.6 Method of Disbursement and Undisbursed Funds. Subject to the rights of Senior Lender, any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall, subject to the rights of Senior Lender either be paid to Developer or applied by City against any obligations to City that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 19.7 Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within one hundred twenty (120) days (unless extended pursuant to Section 19.5) following the date on which the applicable insurance company has processed any claim, the Proceeds shall be applied by City against any obligations to City that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in its sole and absolute discretion. 19.8 Restoration. Nothing in this Section 19 shall be construed to excuse Developer from repairing and restoring all damage to the Property in accordance with other Loan Document provisions, regardless of whether insurance proceeds are available or sufficient. 19.9 Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation "). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the City Promissory Note. If so applied, any award in excess of the unpaid balance of the City Promissory Note and other sums due to City shall be paid to Developer or 34 1 � 1 Developer's assignee. City shall have no obligation to take any action in connection with any actual or threatened condemnation or other proceeding. a. Notwithstanding the foregoing, as long as the value of City's liens are not impaired, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. b. Nothwithstanding the foregoing, during the tax credit compliance period for the Project, as determined under Section 42 of the Internal Revenue Code, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 19.10 Waiver of Subro¢ation. Developer hereby waives all rights to recover against the City (or any officer, employee, agent or representative of City) for any loss incurred by Developer from any cause insured against or required by any Loan Document, to be insured against; provided, however, that this waiver of subrogation shall not be effective with respect to any insurance policy if the coverage thereunder would be materially reduced or impaired as a result. Developer shall use its best efforts to obtain only policies which permit the foregoing waiver of subrogation. 20. DEFAULTS AND REMEDIES 20.1 Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: a. Developer fails to make any payment of principal or interest under the City Promissory Note when due, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; b. Developer fails to perform any other obligation for the payment of money under any Loan Document, and such failure is not cured within fifteen (15) Business Days after Developer's receipt of written notice that such obligation was not performed when due; C. Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30) -day period, such failure shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter diligently (in any event within ninety (90) days after receipt of such notice) prosecutes such cure to completion; d. Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; e. The Property is materially damaged or destroyed by fire or other casualty unless Developer fulfills the Restoration Conditions set forth in the insurance provisions of this Agreement within one hundred twenty (120) days after the applicable insurance company has 35 80A -91 processed any claim (unless extended pursuant to Section 19.5) and thereafter diligently restores the Property in accordance with this Agreement; f. Work on the construction ceases for thirty (30) consecutive days for any reason (other than governmental orders, decrees or regulations, acts of God or any other deity, strikes or other causes beyond Developer's reasonable control), provided that the same do not, in the aggregate and in the City's reasonable judgment, threaten to delay the completion of the construction beyond the required completion date set forth in this Agreement; g. Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues unstayed for sixty (60) days or more for any reason; It. Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the City Project Manager's prior written consent; i. Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, construction or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for one hundred twenty (120) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; or j. (i) any of the Senior Loan documents is revoked or terminated, in whole or in part for any reason if Developer cannot replace with another loan within sixty (60) days of such revocation or termination (except due to repayment of such loans), without the City Project Manager's prior written consent, or (ii) Developer defaults or otherwise fails to perform any of its duties or obligations under or in connection with any of the Senior Loan documents, subject to all applicable notice and cure periods, or (iii) any of the Senior Loan documents is materially amended, supplemented or otherwise modified without City's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary contained herein, City hereby agrees that any cure of any default made or tendered by Developer's Limited Partner shall be deemed to be a cure by Developer and shall be accepted or rejected on the same basis as if made or tendered by Developer. 20.2 Remedies Upon Default. Upon the occurrence of any Event of Default, City may, at its option and in its absolute discretion, do any or all of the following: 36 80A -92 a. By written notice to Developer, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 (e) shall automatically, without notice or other action on City's part, cause all such amounts to be immediately due and payable; b. In its own right or by a court- appointed receiver, take possession of the Property, enter into contracts for and otherwise proceed with the completion of the construction by expenditure of its own funds; C. Exercise any of its rights under the Loan Documents and any rights provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as City elects in its sole and absolute discretion; and, d. Suspend or terminate the award of NSP funds if Developer fails to comply with any term of such award. 20.3 Cumulative Remedies: No Waiver. City's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. The City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations; City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights. 20.4 Force Maieure. Performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the 37 80A -93 time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the City and the Developer. 21. MISCELLANEOUS 21.1 ObliLations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Developer, or any other claim by developer against City, in connection with the City Loan or otherwise, Developer hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Developer's obligations under the Loan Documents, or (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Developer of any of its obligations under the Loan Documents. 21.2 Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: If to Developer: 815 N Harbor, LP c/o Orange Housing Development Corporation 414 E. Chapman Avenue Orange, CA 92866 Attention: Chief Executive Officer With a copy to: C &C Development Co., LLC 14211 Yorba Street, Suite 200 Tustin, CA 92781 With a copy to: Goldfarb & Lipman LLP 1300 Clay Street, 11'h Floor Oakland, CA 94612 Attention: Lynn Hutchins If to City: City of Santa Ana City Project Manager (CDA) 20 Civic Center Plaza (M -25) P.O. Box 1988 Santa Ana, California 92702 With a copy to: Office of the City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M -29) Santa Ana, California 92702 im Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non - receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3 Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the Loan(s) described herein and have been or will be relied on by City notwithstanding any investigation made by either party. 21.4 No Third Parties Benefited. This Agreement is made for the purpose of setting forth rights and obligations of Developer and the City, and no other person shall have any rights hereunder or by reason hereof. 21.5 Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and City and their respective successors and assigns. Other than as expressly provided to the contrary in this Agreement, Developer shall not assign any of its rights or obligations under any Loan Document without the prior written consent of City, which consent may be withheld in City's sole and absolute discretion. Any such assignment without such consent shall, at City's option, be void. 21.6 Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the City and Developer with respect to the City Loan and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. 21.7 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 21.8 Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9 Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents. 39 80A -95 21.10 Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, this Agreement, unless otherwise expressly provided, shall prevail; provided however that, with respect to any matter addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed. 21.11 Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 21.12 Conflict of Interest. No member, official or employee of the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 21.13 Warranty Against Pavment of Consideration. Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 21.14 Nonliabilitv of Citv Officials and Emplovees. No member, official or employee of City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Developer or successor, or on any obligation under the terms of this Agreement. 21.15 Plans and Data. Where Developer does not proceed with the work and construction of the Project, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to City any and all plans and data concerning the Property, and City or any person or entity designated by City shall have the right to use such plans and data without compensation to Developer. Such right of City shall be subject to any right of the preparer of the plans to their use. 21.16 Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the 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. 21.17 Transfer of Developer Limited Partner's Interest. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, no consent shall be required of the City (and it shall not be deemed a default or an Event of Default under any of the Loan Documents), in connection with the transfer and /or the assignment by the Developer's limited partner of its interest in the Developer to an entity controlled or managed by an entity which is related to or under common control with the Developer's limited partner. 21.18 Removal of Developer's General Partner. Notwithstanding anything to the contrary in this Agreement or the Loan Documents, the removal and/or replacement of a General Partner for cause in accordance with the Partnership Agreement shall not require the consent of the City and shall not shall not constitute a default or an Event of Default under this Agreement 40 or the Loan Documents or accelerate the maturity of the City Loan. If the Developer's limited partner exercises its right to remove a General Partner, City will not unreasonably withhold its consent to the substitute general partner; provided however, the consent of either the City shall not be required if the substitute general partner is an affiliate of the Developer's limited partner. The substitute general partner shall assume all of the rights and obligations of the removed general partner hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be executed on the date set forth at the beginning of this Agreement. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM Sonia R. Carvalho City Attorney By: Lisa E. Storck Assistant City Attorney (Signatures continue on following page) CITY OF SANTA ANA Kevin O'Rourke Interim City Manager 41 80A -97 DEVELOPER: 815 N Harbor, LP, a California limited partnership By: OHDC 815 N Harbor, LLC, a California limited liability company, its managing general partner By: Orange Housing Development Corporation, a California nonprofit corporation, its sole member 0 Eunice Bobert, Chief Executive Officer By: C &C 815 N Harbor, LLC, a California limited liability company, its developer general partner Todd R. Cottle, its member By: The Cottle Family Trust Dated 3/8/1987, its member Barry A. Cottle, Trustee 42 LIST OF EXHIBITS Exhibit A - Legal Description Exhibit B - Affordability Restrictions Exhibit C - City Deed of Trust Exhibit D - City Promissory Note Exhibit E - Project Budget Exhibit F - Scope of Work Exhibit G - Schedule of Performance Exhibit H - Target Area Map Exhibit I - Vicinity Hiring Report 43 Exhibit "A" Legal Description Real property in the City of Santa Ana, County of Orange, State of California, described as follows: LOTS 1 TO 6 INCLUSIVE, AND 11 TO 16 INCLUSIVE, ALL IN BLOCK C OF TRACT NO. 490, AS SHOWN ON A MAP RECORDED IN BOOK 17, PAGE 22 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING FROM SAID LOTS 13 AND 14, THE LAND DESCRIBED IN A DEED TO THE CITY OF SANTA ANA RECORDED NOVEMBER 19, 1971 IN BOOK 9894, PAGE 267 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY. ALSO EXCEPTING FROM SAID LOTS 14 AND 15, THE LAND DESCRIBED IN A DEED TO THE CITY OF SANTA ANA RECORDED OCTOBER 02, 1978 IN BOOK 12865, PAGE 1879 OF SAID OFFICIAL RECORDS. APN: 198- 162 -44 and 198 - 162 -44 and 198 - 162 -44 and 198 - 162 -44 and 198 -162 -44 and 198- 162-44 and 198 - 162 -46 and 198- 162 -46 and 198- 162 -46 and 198 - 162 -02 and 198 - 162 -02 and 198 - 162 -02 and 198- 162 -03 and 198 - 162 -03 and 198- 162 -03 and 198 - 162 -03 and 198 - 162 -03 and 198- 162 -03 and 198 - 162 -45 and 198 - 162 -45 and 198 - 162 -45 and 198 - 162 -42 and 198 -162- 42 and 198- 162 -42 and 198 - 162 -43 and 198 - 162 -43 and 198 - 162 -43 and 198 - 162 -43 ml 80A -100 Exhibit "B" AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY {Address: 815 N. Harbor Boulevard, Santa Ana, CA) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions ") are entered into by and between 815 N Harbor, LP, a California limited partnership ( "Owner ") comprised of OHDC 815 N Harbor, LLC, ( "OHDC"), a California limited liability company, and C &C 815 N Harbor, LLC, a California limited liability company and the City of Santa Ana, a charter city and municipal corporation (the "City "). RECITALS: A. Owner is purchasing that certain real property located at 815 N. Harbor Boulevard (the "Property ") located in the City of Santa Ana more particularly described in Exhibit "A" which is attached hereto and incorporated herein by this reference. B. This Agreement is made pursuant to the authority of Title XII of Division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111 -5 {February 17, 2009 }) (Recovery Act) and sections 2301 -2304 of the Housing and Economic Recovery Act of 2008 (Public Law 110 -289 {July 30, 2008 }) (HERA). Section 2301 -2304 of HERA is known as the "Neighborhood Stabilization Program" or "NSP" with money funded through the Program as "NSP Funds ". The term "NSP2" refers to the second appropriation of NSP Funds provided under the Recovery Act, and the term "NSP3" refers to the third appropriation of NSP Funds provided under the Recovery Act. C. The City was notified that its application under the NSP for NSP2 Funds was approved by the U.S. Department of Housing and Urban Development ( "HUD ") with funding allocated for acquisition and construction of the multi - family rental component of the NSP. The parties hereto have executed the "Neighborhood Stabilization Program (Program 2) Rental Housing Development' dated March 1, 2010 in the amount not to exceed $6,500,000 but no less than $2,500,000 plus program income. The parties hereto have executed the "Neighborhood Stabilization Program Loan Agreement. Owner must comply with all of the NSP Program requirements as set forth in the Agreement. Pursuant to this Agreement, NSP2 and NSP3 Funds will be used for the acquisition of the Property. This Loan agreement amends the agreement dated March 1, 2010 to include redevelopment activities as authorized by the substantial amendment. D. On March 4, 2011, the City was notified that its application under the NSP for NSP 3 Funds was approved by HUD. Funding for the Owner is allocated for acquisition and construction of the multi - family rental components of the NSP 3 program in an amount not to exceed $1,500,000. 45 80A -101 E. A Request for Proposals was issued by the City to competitively choose a developer for the NSP Funds. Owner was awarded an agreement for the NSP1 Funds for the Rental Program, further funding for NSP2 and now this Agreement, due to its successful implementation of said agreements to use such Funds. F. Owner and the City are concurrently entering into that certain Loan Agreement. The Loan Agreement, Deed of Trust and Promissory Note, dated concurrently herewith (collectively the "Loan Agreements ") are entered into for the purpose of providing for affordable very low income residential rental units in the City of Santa Ana pursuant to the NSP2 and NSP3 regulations and guidance. NOW, THEREFORE, CITY AND OWNER COVENANT AND AGREE AS FOLLOWS: 1. Definitions "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and 24 CFR 570. "Affordability Period" also referred to as "Term of Affordability ", shall be fifty - five (55) years from date of issuance of Certificate of Completion. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low, Very Low and Low Income households, as promulgated by the U.S. Department of Housing and Urban Development (HUD). "Agreement" means this Affordability Restrictions on Transfer of Property between the City and the Owner affecting real property. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the NSP 2 and NSP 3 Funds. "Building Permit" means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public for the conduct of City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. "City" means the City of Santa Ana, California, a charter city and municipal corporation. ,2 80A -102 "City Deed of Trust" means the deed of trust encumbering the Property, in the form attached as Exhibit C to the Loan Agreement, to be executed by Owner pursuant to Section 5.B.2 in order to secure the Loan Note. "City Loan" means the loan to be made by the City to Owner in the principal amount of Two Million Dollars ($2,000,000.00) in accordance with this Agreement. "City Project Manager" shall mean the City Manager and/or his/her designee. "City Promissory Note" means that certain promissory note in the original principal amount of $2,000,000 in the form attached as Exhibit D to the Loan Agreement, and to be executed by Owner in favor of City to evidence the obligation of Owner to repay the City Loan through residual receipts as further described in the Promissory Note. "Close of Escrow" shall mean the date upon which the Loan Agreement and City Deed of Trust recorded in the Official Records of the County. "Closing Statement" means the final statement of Owner's Escrow account for the purchase of the Property pursuant to the purchase contract. "County" means the County of Orange, California. "Owner" means 815 N Harbor, LP, a California limited partnership comprised of OHDC 815 N Harbor, LLC, California limited liability company as managing general partner and C &C 815 N Harbor, LLC, a California limited liability company, as developer general partner. "Owner's Representative" shall mean the Chief Executive Officer of the Managing General Partner of Owner or his /her designee. "Escrow" means Escrow No. 588306 -A. "Escrow Holder" means First American Title Company, 5 First American Way, Santa Ana, and California 92707. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Event of Default" has the meaning set forth in Section 20.1. "Foreclosed" As defined by HUD for the purposes of NSP means "A home or residential property has been foreclosed upon if any of the following conditions apply" (a) The property's current delinquency status is at least 60 days delinquent under the Mortgage Bankers of America delinquency calculation and the owner has 47 80A -103 been notified; (b) the property owner is 90 days or more delinquent on tax payments; (c) under state, local, or tribal law, foreclosure proceedings have been initiated or completed; or (d) foreclosure proceedings have been completed and title has been transferred to an intermediary aggregator or servicer that is not an NSP grantee, contractor, subrecipient, developer, or end user. "Governmental Authority" means any governmental or quasi governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec, and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended. "HOME" means the HOME Investment Partnership Program (the "HOME Program ") (42 U.S.C. §12701, et seq.,) to be used in accordance with applicable statutory requirements and regulations (the "HOME Regulations ") (24 CFR Part 92). "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting). "Indebtedness" of a person means (a) all indebtedness for borrowed money, (b) notes payable and drafts accepted representing extensions of credit, whether or not representing obligations for borrowed money, (c) any obligation for the purchase of property or services in excess of $10,000 in the aggregate that is (i) deferred for more than six (6) months, or (ii) evidenced by a note or similar instrument, and (d) all recourse and all non - recourse indebtedness secured by any Lien on any property or asset of such person (whether or not assumed by such person). "Indemnitees" has the meaning set forth in Section 18.2. . "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention M 80A -104 agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Loan Agreement" means the Loan Agreement regarding the loan of Neighborhood Stabilization Program funds between the City and the Owner, and any attachments thereto. "Loan Documents" means, collectively, the Loan Agreement, the City Promissory Note, the City Deed of Trust, and this Agreement, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. "Low Income" means an adjusted income which does not exceed eighty percent (80 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMP. "Neighborhood Stabilization Program" (NSP) has the meaning set forth in the Recitals above. "Neighborhood Stabilization Program (NSP) Regulations" has the meaning set forth in the Recitals above. "NSP Assisted Units" shall mean those residential units constructed which are subject to the term of affordability. "NSP Funds" shall mean the money provided under the NSP 2 and NSP 3 Program for the development of affordable rental units. "Partnership Agreement" means the Amended and Restated Limited Partnership Agreement of 815 N Harbor, L.P., dated as of August 30, 2013. "Permitted Encumbrances for the Affordable Housing Restrictions" means collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. "Permitted Encumbrances for the City Deed of Trust" means the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the City Project Manager in writing. 49 80A -105 "Project" means the construction of the Improvements upon the Property by Owner pursuant to this Agreement. "Project Budget" means the line -item budget for the Project attached as Exhibit E to the Loan Agreement, as modified from time to time in accordance with the Loan Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the property that is located at 815 N. Harbor Boulevard in the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. "Scope of Work" means the detailed statement of the work to be performed by Owner on and to the Property pursuant to this Agreement, which is attached as Exhibit F to the Loan Agreement. "Schedule of Performance" means the detailed schedule setting forth timeframes for certain tasks, which document is attached as Exhibit G to the Loan Agreement. "Senior Lender" means a commercial financial institution providing the Senior Loan or any other holder of the Senior Loan Note. "Senior Loan" means a loan from the Senior Lender, which is any of an acquisition loan in the approximate amount of $2,000,000 from Grandpoint Bank, a construction loan in the approximate principal amount of $17,607,180.00 with a term of approximately two (2) years or a permanent loan(s) in the approximate principal amount of $5,089,440.00 with a term of approximately 18 years and an amortization period of 30 years. "Senior Loan Deed of Trust" means the first deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan. "Senior Loan Note" means the promissory note evidencing the Senior Loan from the Senior Lender. "Target Area" shall mean the map attached as Exhibit H to the Loan Agreement. 50 80A -106 "Term of Affordability" the terms and conditions contained herein shall remain in effect for fifty -five (55) years from the date of issuance of the Certificate of Completion. "Very Low Income" means an adjusted income which does not exceed fifty percent (50 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Vicinity" shall mean the Target Area as identified by the City for the NSP funds and approved by HUD. 2. Use of the Property. Owner covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property of any part thereof) that Owner, such successors, and assigns shall use the Property to provide affordable rental housing, for Very Low Income households, as provided in the Loan Agreement and these Restrictions, provided however that the Owner may lease out the existing improvements for other uses on a short-term basis prior to the commencement of construction of the Project. 3. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 3.1 Use Covenants and Restrictions a. Owner agrees and covenants, which covenants shall run with the land and bind Owner, its successors, its assign and every successor in interest to the Property that Owner will make all rental units on the Property available to extremely -low, very low and low income households at rents affordable to such households for fifty - five (55) years from the effective date of the issuance of the Certificate of Completion. b. The Project shall consist of approximately seventy (70) units of which there will be forty -nine (49) two- bedroom units and twenty -one (2 1) three - bedroom units. There will be seven (7) units with incomes at or below 30% AMI, forty - two (42) units for households with incomes at or below 50% AMI; twenty (20) units for households with incomes at or below 60% AMI; and the remaining unit will be reserved for the on -site manager. If entitlement changes the number of units, the City Project Manager must approve affordability mix. C. Affordable rents shall be governed as provided in the NSP Regulations. Rental increases shall be in conformance with federal and state law. d. Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 3.2 Rent Increases: 51 80A -107 A. On an annual basis, the City shall provide the Owner with the maximum allowable schedule of incomes and rents (less utility allowance appropriate for the NSP Assisted Unit for the Property. B. Owner, its successors and assigns shall not charge rents for the NSP Assisted Units in excess of the amounts set forth in the tables as adjusted from time -to -time by HUD. The City Manager shall notify Owner in writing of the adjusted allowable maximum incomes and rents. 4. Miscellaneous Provisions: A. Owner shall adopt and include as part of its Management Plan (described in subsection G below), written tenant selection policies and criteria for the Units, that meet the following requirements: (a) Are consistent with the purpose of providing housing for Very Low Income households; (b) Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; (c) Give reasonable consideration to the housing needs of households that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); (d) Provide for: (i) The selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable; and (ii) The prompt written notification to any rejected applicant of the grounds for any rejection; (e) Provide first priority in the selection of qualified eligible tenants to households that are referred by the City; and (f) Carry out the Affirmative Marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Owner, the City shall cooperate to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re- renting of any NSP Assisted Units (24 CFR 92.351). B. Owner, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of 52 80A -108 family participation, rental voucher, or comparable HOME tenant -based assistance document. Total rents charged to such tenants, including the tenant contribution and rental assistance, shall not exceed the allowable rents as described above. C. Any lease of any of the Units must be for not less than one year, unless by mutual agreement between the tenant and the Owner. Should the tenant and Owner agree to a term of less than one year, said agreement shall be expressed in some type of written form, signed by the tenant, and maintained in the tenant's rental file held by the Owner. The lease may not contain any of the following provisions (in which references to "Owner" shall mean the Owner, its successors or assigns): (a) Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; (b) Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; (c) Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; (d) Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; (e) Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; (f) Agreement by the tenant to waive any right to a trial by jury; (g) Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and (h) Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. D. Owner, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. E. Owner shall maintain the improvements on the Property in compliance with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local code requirements and shall keep the Property free from any unreasonable accumulation of 53 80A -109 debris or waste materials. Owner shall also maintain in a healthy condition any landscaping planted on the Property. F. Owner covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, disability, sex, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601 -20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. G. Not later than the closing for the construction loan for the Project, Owner shall submit to the City Project Manager a Management Plan in a form that is acceptable including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the City Project Manager not later than the time for the issuance of a certificate of occupancy for the Project. Owner shall manage the NSP Assisted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the City Project Manager, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: (a) Management Agent. Owner shall submit the name and qualifications of the proposed Management Agent. The City Project Manager shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. The City hereby approves Advanced Property Services as the proposed Management Agent for the Project. (b) Management Agreement. Owner shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Owner and Management Agent. (c) Annual Budget and Protected Cash Flows. Prior to the issuance of a certificate of occupancy for the Project, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Owner shall submit a projected operating budget and cash flow to the City Project Manager. The budget and cash flow shall be in a form that is acceptable to the City Project Manager. (d) Tenant Selection Policies. Owner shall include in the Management Plan the tenant selection policies in accordance with Section 4, above. H. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, Owner shall change the management agent or the practices complained of, upon receipt of written notice from the City 54 80A -110 Manager. The City Manager may require Owner to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Owner without penalty, upon thirty (30) days prior written notice, at the direction of the City Manager. Within ten (10) days following a direction of the City Manager to replace the management agent, the Owner shall select another management agent or make other arrangements satisfactory to the City Manager or designee for continuing management of the units. I. The covenants established in these Restrictions and any amendments hereto approved by the City, and Owner shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. These Restrictions shall remain in effect for fifty -five (55) years. In its discretion, the City may defer repayment of the Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the NSP Assisted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. J. Owner shall not request disbursement of NSP funds until the funds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreements and these Restrictions [24 CFR 92.504 (c)(10)]. K. Owner shall prepare, maintain and submit to the City, as appropriate, the following records and reports in compliance with 24 CFR 92.504 (c) (12): a. Annual Reports. Owner shall file with the City an Annual Report (herein referred to as the "Annual Report") within one hundred fifty (150) days following the end of each calendar year, commencing the Calendar Year following the issuance of the Certificate of Completion. The Annual Report shall contain a certification by Owner as to such information as the City Project Manager may then require, including, but not limited to, the following: (1) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 4.G. (c) of the this Agreement which shall include an audited financial statement for the previous calendar year that includes a balance sheet and a profit and loss statement indicating any surplus or deficit in operating accounts; a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual Budget and audited financial statement shall be prepared in accordance with generally accepted accounting practices. (2) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Owner has taken in order to maintain the Project in a safe and sanitary condition in accordance with applicable housing and building codes and the property standards set forth in 24 CFR 55 80A -111 92.251. (3) The occupancy of the units indicating the income of each current resident and the current rents charged each resident and whether those rents include utilities, including records that demonstrate that the Project meets the requirements of the NSP Program. (4) General management performance, including tenant relations and other relevant information. (5) Records that demonstrate that the units meet the affordability requirements of 24 CFR 92.252, for the required period of affordability. (6) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 6 of the City Deed of Trust, with a loss payable endorsement naming the City as a loss payee together with other approved lenders (as their interests may appear), with a 'Replacement Cost Endorsement' in amount sufficient to prevent Owner or City from becoming a co- insurer under the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. (7) Evidence of a currently paid liability insurance policy, naming the City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreements. (8) Termite reports pertaining to the Property every fifth (5h) year. (9) Such other information as may be reasonably required by the City Manager or his /her designee. b. Records and Audits. Owner shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (1) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; (2) records, for each NSP Assisted Unit, which demonstrates that the project meets the requirements of 24 CFR 92.252. (3) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (4) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (A) data on the extent to which each racial and ethnic group 56 80A -112 and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with NSP funds; (B) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (C) documentation and data on the steps taken to implement Owner's outreach programs to minority -owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (5) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CFR 92.351, if applicable; (6) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the date on which Owner obtained ownership of the Property; (7) records concerning lead -based paint in accordance with 24 CFR 92.355; (8) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (9) records of certifications of contractor qualifications as they relate to the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (10) any other reports issued by other monitoring agencies. C. All records pertaining to each calendar year of NSP funds must be retained for the most recent five year period, except that for rental housing projects, records may be retained for five years after the project completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). Owner shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, the Office of the Auditor General of HUD, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. 57 80A -113 d. If so directed by the City or HUD upon termination of the Loan Agreement, Owner shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City or HUD, as depository. e. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, or HUD, on reasonable prior notice, for the purpose of examination or audit. f Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Owner shall reasonably cooperate with City in performing such audit. g. Owner shall permit the City to perform an Annual Physical Inspection of the Property with at least seven (7) days notice. Owner shall cooperate with this Inspection and shall take all steps necessary to quickly correct any code deficiencies identified during the Inspection. L. The City is the beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. The City shall have the right if the covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. M. The covenants and agreements contained herein shall run with the land and not be personal obligations of Owner. Upon the sale, conveyance or other transfer of the Property (a "Transfer ") and the assumption of the obligations hereunder by a transferee, Owner's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. N. The Loan Agreement and all of its attachments shall be enforceable by the City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City Note and the City Deed of Trust provide a means of enforcement by the City if Owner is in breach of its obligations hereunder and thereunder, including liens on the Property, deed restrictions and covenants running with the land [24 CFR 92.504 (c) (13)]. W 80A -114 IN WITNESS WHEREOF, the parties hereto have executed these Affordability Restrictions on Transfer of Property as of the date and year first stated above. CITY OF SANTA ANA Kevin O'Rourke Interim City Manager APPROVED AS TO FORM: Sonia R. Carvalho City Attorney By: Lisa Storck Assistant City Attorney OWNER: 815 Harbor, LP, a California limited partnership MANAGING GENERAL PARTNER OHDC 815 N Harbor, LLC a California limited liability company ORANGE HOUSING DEVELOPMENT CORPORATION a California nonprofit corporation, its sole member 0 Eunice Bobert, Chief Executive Officer DEVELOPER GENERAL PARTNER C &C 815 N Harbor, LLC a California limited liability company M Todd R. Cottle, its member By: Cottle Family Trust Dated 3/8/87, M Barry A. Cottle, its Trustee 59 80A -115 Exhibit "C" CITY DEED OF TRUST AND ASSIGNMENT OF RENTS THIS CITY DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of Trust ") made this day of September, 2013, by between 815 N Harbor, LP , a California limited partnership comprised of OHDC 815 N Harbor, LLC, ( "OHDC "), a California Limited Liability Company, and C &C 815 N Harbor, LLC, a California Limited Liability Company (together the "Trustor "), AmeriNational Community Services, a California corporation (the "Trustee "), and the City of Santa Ana, a charter city and municipal corporation (the 'Beneficiary"). Trustor, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the property located in the City of Santa Ana, County of Orange, State of California, described in the attached Exhibit A and more commonly known as 815 N. Harbor Boulevard, Santa Ana, California (the "Property "); TOGETHER with all the improvements now or hereafter erected on the Property, and all easements, rights, appurtenances and all fixtures now or hereafter attached to the Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the Property covered by this City Deed of Trust; provided that so long as Truster is not in default hereunder, it shall be permitted to control the Property in accordance with the requirements of that certain Neighborhood Stabilization Program Loan Agreement entered into between the Trustor and the Beneficiary, dated concurrently herewith, which Agreements are both on file with the Beneficiary as a public record; TOGETHER with the right, power and authority during the continuance of these Trusts, to collect the rents, issues, and profits of the Property, reserving unto the Trustor the right, prior to any default by Trustor in payment of the indebtedness secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues and profits as they become due and payable; and, TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected, or hereafter to be erected, on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to said building or .1 80A -116 buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the "Security"; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Beneficiary (a) the repayment of the sums evidenced by a Promissory Note to the Beneficiary executed by Trustor of even date herewith in the principal amount of Two Million Dollars ($2,000,000.00) (the "City Promissory Note "); (b) the performance of the covenants and agreements of Borrower contained in a certain Agreement as hereinafter defined; and (c) the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Trust; and the performance of the covenants and agreements of Trustor contained herein. TRUSTOR AND THE BENEFICIARY COVENANT AND AGREE AS FOLLOWS: 1. The Agreement. This Deed of Trust is executed and delivered, along with the City Note and the Loan Agreement, to benefit the Property. A copy of said Loan Agreement is on file as a public record with the Beneficiary and is incorporated herein by reference (the "Agreement "). Trustor acknowledges that but for the execution of this Deed of Trust, the Beneficiary would not enter into the Agreement or City Note secured by this Deed of Trust. 2. Trustor's Estate. Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security; that other than this Deed of Trust, the Security is not encumbered except for obligations secured by deeds of trust, or any other security agreement, to secure financing or refinancing for the purchase and rehabilitation of the Property. 3. Repayment of the Loan. Trustor will promptly repay, when due, the principal loan amount, as required by the City Promissory Note secured by this Deed of Trust. 4. Subordination. This obligation secured by this Deed of Trust shall be subordinated to the Senior Loan, but the City's Affordability Restrictions on Transfer of Property shall remain in first place except that the City's Affordability Restrictions on Transfer of Property shall be subordinated to Trustor's Senior Loan for acquisition. 5. Prior Mortgages and Deeds of Trust; Charges; Liens. Trustor shall perform all of Trustor's obligations under any mortgage, deed of trust or other security agreement with a lien which has priority over this Instrument, including Trustor's covenants to make payments when due (subject to an applicable notice and cure provisions). Trustor will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by Trustor making any payment, when due, directly to the payee thereof. Trustor will promptly furnish to the Beneficiary all notices of amounts due under this paragraph, and in the event Trustor makes payment directly, Trustor will promptly discharge any lien which has priority over this Deed of Trust; 61 80A -117 provided that Trustor will not be required to discharge the lien of the Deed of Trust securing any senior lender or any other lien described in this paragraph so long as Trustor will agree in writing to the payment of the obligation secured by such lien in a manner acceptable to the Beneficiary, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard Insurance. Trustor will keep the Security insured by such insurance policies in such amounts and for such periods as called for in the Agreement. All insurance policies and renewals thereof will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of any senior lender and the Beneficiary as their interests may appear and in a form acceptable to the Beneficiary. The Beneficiary shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish to the Beneficiary, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums subject to the rights of any senior lender. In the event of loss, Trustor will give prompt notice to the insurance carver and the Beneficiary or its designated agent. The Beneficiary, or its designated agent, may make proof of loss if not made promptly by Trustor. The Beneficiary shall receive 30 days advance notice of cancellation of any insurance policies required under this Section. Unless the Beneficiary and Trustor otherwise agree in writing, insurance proceeds, subject to the rights of any senior lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, again, subject to the rights of any senior lender, the insurance proceeds will be used to repay the loan secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent within 30 days from the date notice is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for insurance benefits, the Beneficiary, or its designated agent, is authorized to collect and apply the insurance proceeds at the Beneficiary's option either to restoration or repair of the Security or to repay the loan. If the Security is acquired by the Beneficiary, all right, title and interest of Trustor in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the Beneficiary to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of any senior lender. 7. Preservation and Maintenance of Security. Trustor will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Protection of the Beneficiary's Security. If Trustor fails to perform the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which materially affects the Beneficiary's interest in the Security, including, but not limited to, default under the Deed of Trust securing any senior lender, eminent domain, 62 80A -118 insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the Beneficiary, at the Beneficiary's option, upon notice to Trustor, may make such appearances, disburse such sums and take such action as it determines necessary to protect the Beneficiary's interest, including, but not limited to, disbursement of reasonable attorneys' fees and entry upon the Security to make repairs. Any amounts disbursed by the Beneficiary pursuant to this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this Deed of Trust. Unless Trustor and the Beneficiary agree to other terms of payment, such amount will be payable upon notice from the Beneficiary to Trustor requesting payment thereof, and will bear interest from the date of disbursement at the rate payable from time to time on outstanding principal under the City Note unless payment of interest at such rate would be contrary to applicable law, in which event such amounts will bear interest at the highest rate permissible under applicable law. Nothing contained in this paragraph will require the Beneficiary to insure any expense or take any action hereunder. 9. Inspection. The Beneficiary may make, or cause to be made, reasonable entries upon and inspections of the Security during normal business hours; provided that the Beneficiary will give Trustor reasonable notice of inspection. 10. Forbearance by the Beneficiary Not a Waiver. Any forbearance by the Beneficiary in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by the Beneficiary will not be a waiver of the Beneficiary's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 11. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Beneficiary and Trustor subject to the provisions of this Deed of Trust. 13. Joint and Several Liability. All covenants and agreements of Trustor shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Trustor provided for in this City Deed of Trust will be given by certified mail, return receipt requested, addressed to Trustor at 414 East Chapman Avenue, Orange, California, 92866, with copies to C &C 815 N Harbor, LLC at 14211 Yorba St., Suite 200, Tustin, California 92870 (b) any notice to the Beneficiary will be given by certified mail, return receipt requested, to the Beneficiary at 20 Civic Center Plaza, P.O. Box 1988, Santa Ana, California 92702, Attention: Housing Manager, or at such other address as the Beneficiary may designate by notice to Trustor as provided above, and (c) to 63 80A -119 Trustee at 8121 E. Florence Avenue, Downey, California 90240. Notice shall be effective as of the date received as shown on the return receipt. 15. Governing Law. This Deed of Trust shall be governed by the laws of the State of California with venue in Orange County. 16. Severability. In the event that any provision or clause of this Deed of Trust or the City Loan Note conflicts with applicable law, such conflict will not affect other provisions of this Deed of Trust or the City Note which can be given effect without the conflicting provision, and to this end the provisions of the Deed of Trust and the City Loan Note are declared to be severable. 17. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 18. Default in Foreclosure; Remedies. Upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust or the City Note secured by this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustor notice thereof specifying: (1) The breach; (2) the action required to cure such breach; (3) a date not less than 30 days from the date the notice is received by Trustor as shown on the return receipt, by which such breach is to be cured provided, however, that if such default is not reasonable susceptible to being cured within 30 days, Trustor shall have a reasonable period to cure the defect so long as Trustor is diligently prosecuting the cure to completion; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's right to reinstate after acceleration and the right to bring a court action to assert the non - existence of default or any other defense of Trustor to acceleration and sale. Notwithstanding anything to the contrary contained herein, a "default" shall not include (i) a transfer of a general partner's interest in Trustor when made in connection with the exercise by the Trustor's limited partner (the "Limited Partner ") of its rights upon a default by a general partner under the Trusters Amended and Restated Limited Partnership Agreement (the "Partnership Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Trustor pursuant to the right of first refusal or to the general partners of Trustor pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of a limited partner interest or an interest in a limited partner of the Trustor, provided that after any such sale, transfer or other disposition an affiliate 64 80A -120 of the Trustor's limited partner is the managing member or general partner of such transferee limited partner. If the breach is not cured on or before the date specified in the notice or such longer period as provided above or in the City Note or the Agreement, the Beneficiary, at the Beneficiary's option, may: (a) declare all of the sums secured by this City Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Notwithstanding anything to the contrary herein, Beneficiary hereby agrees that any cure of any default made or tendered by Trustor's limited partner shall be deemed to be a cure by Trustor and shall be accepted or rejected on the same basis as if made or tendered by Trustor. The Beneficiary shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attomeys' fees. 19. Trustees Rieht to Reinstate. Notwithstanding the Beneficiary's acceleration of the sums secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by the Beneficiary to enforce this Deed of Trust discontinued at any time prior to 5 days before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at anytime prior to entry of a judgment enforcing this Deed of Trust if (a) Trustor pays the Beneficiary all sums which would be then due under this Deed of Trust and no acceleration under the City Note has occurred; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by the Beneficiary and the Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust and in enforcing the Beneficiary's and the Trustee's remedies, including, but not limited to, reasonable attorneys' fees; and (d) 65 80A -121 Trustor takes such action as the Beneficiary may reasonably require to assure that the lien of this Deed of Trust, the Beneficiary's interest in the Security and Truster's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 20. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party to this Deed of Trust of pending sale under any other deed of trust or any action or proceeding in which Trustor, Beneficiary, or Trustee shall be a parry unless brought by Trustee. 21. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the Beneficiary will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the City Note to the Trustee. The Trustee will reconvey the Security without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 22. Substitute Trustee. The Beneficiary, at the Beneficiary's option, may from time to time remove the Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 23. Request for Notice. Trustor requests that copies of the notice of default and notice of sale be sent to Trustee at the address set forth in Section 14 above. 24. Nonrecourse Liability. Neither Trustor nor any partner of Trustor shall have any personal liability under the Agreement, City Note, and this Deed of Trust and any judgment, decree or order for payment of money obtained in any action to enforce the obligation of Trustor to repay the loan evidenced by such documents shall be enforceable against Trustor only to the extent of Trustor's interest in the Property. (Signatures on Following Page) .. 80A -122 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above. 815 N HARBOR, LP a California limited partnership MANAGING GENERAL PARTNER OHDC 815 N Harbor, LLC a California limited liability company ORANGE HOUSING DEVELOPMENT CORPORATION a California nonprofit corporation, its sole member Eunice Bobert, Chief Executive Officer DEVELOPER GENERAL PARTNER C &C 815 N Harbor, LLC a California limited liability company M Todd R. Cottle, its member By: Cottle Family Trust Dated 3/8/87, 0 Barry A. Cottle, its Trustee 67 80A -123 Exhibit "D" CITY PROMISSORY NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (815 N. Harbor Boulevard) $2,000.000.00 1. Principal Amount of Loan September , 2013 Santa Ana, California FOR VALUE RECEIVED, 815 N Harbor, LP, a limited partnership comprised of OHDC 815 N Harbor, LLC, ( "OHDC" ), a California Limited Liability Company, and C &C 815 N Harbor, LLC, a California Limited Liability Company ( "Borrower "), hereby promises to pay to the CITY OF SANTA ANA, a charter city and municipal corporation ( "City "), or order, a principal amount not to exceed TWO MILLION DOLLARS ($2,000,000.00) or so much thereof as may be advanced by the City to the Borrower, due and payable with 0% interest by residual receipts over the fifty -five (55) year term, pursuant to the Neighborhood Stabilization Program Loan Agreement (said "Agreement") between Borrower and the City dated concurrently herewith, which are both incorporated herein by this reference. This loan is made pursuant to the "Neighborhood Stabilization Program" or "NSP" with money funded through the Program as "NSP Funds ". The term "NSP2" refers to the second appropriation of NSP Funds provided under the Recovery Act the Housing and Economic Recovery Act of 2008 (Section 2301 -2304 of HERA), and the term "NSP3" refers to the third appropriation of NSP Funds provided under the Recovery Act. Any capitalized term not otherwise defined in this Note shall have the meaning ascribed to such term in the Agreement. The obligation of Borrower to City hereunder is subject to the terms of said Agreement, the Affordability Restrictions on Transfer of Property, Deed of Trust and this Note. Said documents are public records on file in the offices of the City, and the provisions of said documents are incorporated herein by this reference. This Note, said Agreement, the Affordability Restrictions on Transfer of Property, and the Deed of Trust are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities inure to the benefit of the City of Santa Ana. Any capitalized term which is not otherwise defined herein shall have the meaning ascribed to such term in the Agreement. Definitions. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: M 80A -124 "Acquisition Costs" shall mean the costs and expenses of Borrower to acquire the Property and related soft costs, as set forth in the Project Budget attached to the Loan Agreement. "Agreement" means the Loan Agreement between the City and the Developer, and any attachments or amendments thereto. "Applicable Law" shall mean those federal, state and local laws, ordinances, regulations, policies and procedures applicable to the NSP, and the NSP Funds. "Area Median Income" means the median income figures for Orange County as published by the U.S. Department of Housing and Urban Development (HUD). Also may be referred to as "AMI" herein. "Borrower" means 815 N Harbor, LP, a California limited partnership comprised of OHDC 815 N Harbor, LLC, a California limited liability company as managing general partner and C &C 815 N Harbor, LLC, a California limited liability company as developer general partner. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 30. "City Loan" shall mean the loan evidenced by this Note repayable to the City in accordance with the terms of this Note and secured by the Deed of Trust. "City's Percentage" with reference to the Residual Receipts, shall mean fifty percent (50 %) of the total Residual Receipts from the Property as further described in Section 5 hereof. "Closing Costs" shall mean: (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate market place, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consumating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees and attorneys' fees. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental from leased and /or subleased spaces and parking fees and charges (but not including security deposits and M 80A -125 other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues also includes any casualty insurance proceeds in excess of those used to restore the Property and any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts ") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts. "Operating Expenses" shall mean the sum of the following: (i) payments of principal and interest and all other charges relating to the Senior Loan(s); (ii) a property management fee equal to 8% of gross rents; (iii) Owner Administration Fee of 5% of gross rents; (iv) deposits into required reserves; (v) any deferred developer fee; (vi) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (a) Depreciation and amortization expenses shall not be considered Operating Expenses, except as otherwise provided herein. (b) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms- length transactions for similar services in the Santa Ana, California area. (vii) Any other expenses necessary to meet senior lender requirements and requirements of Borrower's limited partner, or its assignee, as set forth in Borrower's Agreement of Limited Partnership (the "Partnership Agreement "). 70 80A -126 "Deed of Trust" shall mean the Deed of Trust in favor of the City, securing the City Loan, substantially in the form attached to the Agreement as Exhibit B, which is incorporated herein by this reference. "Extremely Low Income" means an adjusted income which does not exceed thirty percent (30 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Low Income" means an adjusted income which does not exceed eighty percent (80 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Neighborhood Stabilization Program" (NSP) has the meaning set forth in the Recitals above. "NSP Assisted Units" shall mean those rental units purchased and rehabilitated on Eligible Properties which are subject to the term of affordability. "NSP2 Funds" shall mean the money provided under the NSP2 Program for the acquisition of the rental units hereunder. "NSP3 Funds: shall mean the money provided under the NSP3 Program for the acquisition of the rental units hereunder. "Propert y' shall mean that property located at 815 N. Harbor Boulevard, Santa Ana, California. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying the interest rate and/or the term of the existing Senior Loan, increasing or reducing the amount of the existing Senior Loan, paying off the existing Senior Loan and obtaining new Senior Loan, except for the payoff of the conventional lender's acquisition loan for the Property.. "Refinancing Proceeds" shall be disbursed as set forth in Section 6 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property for each year, less deductions for Operating Expenses from the same building, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, or conveyance or lease of the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a general or limited partner in the Borrower, or any interest by any individual or entity which holds an interest in any such general or limited partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales during the term of this Note to more than thirty -five percent (35 %) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct 71 80A -127 or indirect partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development. Notwithstanding anything to the contrary contained herein, a "Sale' shall not include any transaction not considered a "transfer' under Section 13. ( "Senior Loan" shall mean any senior loan made to Borrower, for payment of Acquisition and/or Rehabilitation Costs, and shall include any subsequent loan that refinances said Senior Loan. "Term" the term for repayment of this Note shall mean fifty -five (55) years from the date of recording of the Deed of Trust securing the Note. "Term of Affordability" the term of affordability shall be fifty -five (55) years. "Very Low Income" means an adjusted income which does not exceed fifty percent (50 %) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. 3. This Note evidences the obligation of Borrower to the City for the repayment of the City Loan of NSP2 and NSP3 Funds attributable to the acquisition of the Property, and related soft costs. 4. This Note is payable at the principal office of City of Santa Ana — Community Development Agency, 20 Civic Center Drive, Santa Ana, California 92702, Art: Housing Division, or at such other place as the holder hereof may inform Borrower in writing, in lawful money of the United States. 3. Loan Repayment. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 6 (Refinancing Proceeds), 7 (Sale Proceeds) and 9 (Accelerated Loan Repayment) of the Agreement. 4. Operating Capital Improvement Loan. If the replacement reserve account ( "reserves ") is depleted due to unforeseen repairs and the General Partner makes a loan to the Partnership, the reserves must be fully funded prior to payment of said loan. The outstanding loan balance will be reflected in the annual report. 5. Annual Loan Repavment/ Residual Receipts. a. Commencing on the date one hundred fifty (150) days after the close of the initial Calendar Year following the issuance of the Certificate of Completion and on or before the 150`h day of each Calendar Year thereafter the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding 72 80A -128 balance due under this Note or the City's Percentage of the Residual Receipts, as provided in this Section 5. b. Within one hundred fifty (150) days after the close of the initial Calendar Year following the Issuance of the Certificate of Completion and on or before the 150th day of each Calendar Year thereafter, the Borrower shall submit to the City an audited financial statement of Gross Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due. c. Except as otherwise provided, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of principal. At least fifty percent (50 %) of the Residual Receipts shall remain with the Borrower, with all Residual Receipts remaining with Borrower to the extent the City Loan has been fully repaid. d. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to any late fees, then to reduce the principal balance of the loan. 6. Loan Repayment from Refinancing Proceeds. The Borrower shall make a loan payment to the City from every Refinancing that occurs during the term of this Note (other than refinancing of the conventional lender acquisition loan) not to exceed the outstanding balance of principal on this Note, to the extent of the City's Percentage of the Refinancing Proceeds (if any), as follows: the cash proceeds from such Refinancing shall be applied first to pay Closing Costs; next, the amount necessary to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the Refinancing Proceeds to the extent of the outstanding balance on this Note. At least fifty percent (50 %) of the Refinancing proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Refinancing, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Refinancing Proceeds are insufficient to repay the Loan in full. 7. Loan Repayment from Sale Proceeds. The Borrower shall make a loan payment, not to exceed the outstanding balance of principal on this Note subject to Section 14 herein, to the City from any Sale that occurs during the term of the City Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full the balance remaining on the Senior Loan; next, the amount necessary to pay any deferred developer fee in full; and next, the Borrower shall pay to the City the City's Percentage of the total Sale Proceeds, not to exceed the outstanding amount of principal due on this Note. At least fifty percent (50 %) of the Sale Proceeds shall remain with Borrower, with all remaining Refinancing proceeds remaining with the Developer to the 73 80A -129 extent the outstanding balance of the Note has been fully paid. Such payment shall be due on the date of such Sale, and shall be applied to reduce the principal balance of the Loan. The City shall not be required to reconvey the lien of the Deed of Trust if Sale Proceeds are insufficient to repay the Loan in full. 8. Accelerated Loan Payment. The full principal amount outstanding shall be due and payable on the earlier to occur of the following: a. Sale or Refinancing of the Property as provided further in Section 13 hereof, unless: (i) in the case of a Sale in which the Sale Proceeds are insufficient to repay in full the City Loan, the City approves such sale and the purchaser assumes the balance of the City Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the Refinancing Proceeds are insufficient to repay in full the City Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note. b. In event of default (subject to any applicable notice and cure provisions) pursuant to any of the Loan Documents or the Senior Loan Documents. C. Any default (subject to any applicable notice and cure provisions by Borrower as to any other loan or loans by City to Borrower with respect to the Property; or d. The date that is fifty five (55) years after the date of execution of this Note. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Borrower to modify the terms or extend the Term of this City Note. 9. Prepayment Borrower may prepay the outstanding principal balance under this Note, in whole or in part, at any time without penalty, however the Affordability Covenants and Restrictions still remain for the entire Affordability Period of fifty -five (55) years. 10. Lawful Money. Principal is payable in lawful money of the United States of America. 11. Application of Payments; Late Charges. a. Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal, due the City pursuant to this Note, and the balance, if any, to the payment of principal. 74 80A -130 b. If any payment is not received by the City within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents, (i) a late charge of four percent (4 %) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at the highest annual rate which may lawfully be charged and collected under applicable law on the obligation evidenced by this Note, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as immediately corrected by Borrower notice to City. 12. Security This Note is secured by the recorded Deed of Trust. 13. Acceleration by Reason of Transfer or Financine. a. In order to induce City to make the loan evidenced hereby, Borrower agrees that in the event of any transfer of the Property without the prior written consent of City (other than a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, without prior demand or notice, to declare all sums secured hereby immediately due and payable. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 13, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall not, however, release Borrower from any liability thereunder without the prior written consent of City. b. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the 75 80A -131 Loan Agreement and the Affordability Covenants and Restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which Borrower is a general partner, or to a corporation or limited liability company that is wholly owned by the Borrower or its affiliates and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount in excess of the balance of the Senior Loan, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan shall be repaid to the City at the time of each Refinancing or partial Refinancing. c. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include (and it shall not be deemed a Sale) (i) a transfer of a general partner's interest in Borrower when made in connection with the exercise by the Borrower's limited partner (the "Limited Partner ") of its rights upon a default by a general partner under the Borrower's partnership agreement (the "Partnership Agreement ") or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Borrower pursuant to the right of first refusal or to the general partners of Borrower pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in connection with a default by the Limited Partner under and in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a limited partner of the Borrower. 14. Event of Default. Subject to the provisions of Sections 23 hereof, the occurrence of any of the following shall be deemed to be an event of default ( "Event of Default ") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within fifteen (15) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) failure by Borrower to perform any covenant or agreement in the Deed of Trust, the Agreement, or the Affordability Covenants and Restrictions within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion); or (c) a default under the Senior Loan Deed of Trust that remains uncured after any applicable notice has been provided and the expiration of any applicable cure period therefore„ if any, provided therein. 15. Remedies. Upon the occurrence of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all 76 80A -132 sums evidenced hereby immediately due and payable by delivery to the Trustee named in the Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the Deed of Trust. City shall also deposit with Trustee the Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. Upon the occurrence of an Event of Default (and so long as such Event of Default shall continue), the entire balance of principal shall bear interest at the Bank of America reference rate on the due date of the delinquent payment plus four percent (4 %). No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 16. Attorney Fees. If this City Promissory Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 17. Severabilitv. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 18. Number and Gender. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 19. Non - recourse. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower, nor its partners nor any other party shall have any personal liability for repayment of the City Loan or for any other amounts under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of City under this Note and the Deed of Trust for repayment of the City Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 20. Subordination. It is hereby expressly agreed and acknowledged by Borrower and City that the Deed of Trust is a subordinate deed of trust, and that this Note is subject and subordinate to any Senior Deed of Trust. 77 80A -133 21. Notice of Default. a. Subject to the applicable cure periods set forth in Section 14 and subject to the further provisions of this Section 21, failure or delay by the Borrower to perform any term or provision of this Note constitutes a default under this Note. The Borrower must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence. b. The City shall give written notice of default to the Borrower specifying the default complained of by the City. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Except in the case of a monetary event of default, the Borrower shall not be in default so long as it endeavors to complete such cure, correction or remedy with reasonable diligence, provided such cure, correction or remedy is completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the City to be reasonably necessary to correct the default). d. Any failures or delays by the City in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the City in asserting any of its rights and remedies shall not deprive the City of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. e. If a monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder City shall give Borrower written notice of such default. Borrower shall have a period of fifteen (15 Business Days after such notice is received within which to cure the default prior to exercise of remedies by City under this Note and the Deed of Trust. f. If a non - monetary event of default occurs under the terms of this Note or the Deed of Trust, prior to exercising any remedies thereunder, City shall give Borrower notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Borrower shall have such period to effect a cure prior to exercise of remedies by the City under this Note and the Deed of Trust. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Borrower (i) initiates corrective action within said period, and (ii) diligently, continually, and in good faith works to effect a cure as soon as possible, then borrower shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. In no event shall City be precluded from exercising remedies if its security becomes or is about to become materially jeopardized by any failure to cure a default or the default is not cured within one hundred eighty (180) days after the first notice of default is given. 22. Insurance and Condemnation. In the event of any fire or other casualty to the Property or eminent domain proceedings resulting in condemnation of the Property or any part thereof, Borrower shall W. 80A -134 have the right to rebuild the Property, and to use all available insurance or condemnation proceeds therefor, provided that (a) such proceeds are sufficient to keep the City Loan in balance and rebuild the Property in a manner that provides adequate security to City for repayment of the City Loan or if such proceeds are insufficient then Borrower shall have funded any deficiency, (b) City shall have the right to approve plans and specifications for any major rebuilding and the right to approve disbursements of insurance or condemnation proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists under this Note or the Deed of Trust. If the casualty or condemnation affects only part of the Property and total rebuilding is infeasible, then proceeds may be used for partial rebuilding and partial repayment of the City Loan in a manner that provides adequate security for repayment of the remaining balance of the City Loan. 23. Force Maieure. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 24. Assignments. The City, and the assignee of the City, shall have the right to assign this Note and the Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. 79 80A -135 This City Promissory Note is hereby agreed to and executed on the date first set forth above. "BORROWER" 815 N HARBOR, LP, a California limited partnership MANAGING GENERAL PARTNER OHDC 815 N Harbor, LLC a California limited liability company ORANGE HOUSING DEVELOPMENT CORPORATION a California nonprofit corporation, its sole member 10 Eunice Bobert, Chief Executive Officer DEVELOPER GENERAL PARTNER C &C 815 N Harbor, LLC a California limited liability company LZ Todd R. Cottle, its member By: Cottle Family Trust Dated 3/8/87, M Barry A. Cottle, its Trustee :f 80A -136 Exhibit "E" Project Budget 80A -137 815 N Harbor Version: Preliminary Feasibility (9 %) SOURCES OF FUNDS PERMANENT SOURCES Term Interest Amount Conventional Perm Loan $4,370,390 Conventional Section 8 Loan $719,050 City of Santa Ana - NSP $2,000,000 Deferred Developer Fee $792,342 General Partner Equity $100 Limited Partner Equity $18,405,476 TOTAL $26,287,358 vs. TDC $26,287,358 Financing Surplus /(Gap) $0 CONSTRUCTION SOURCES Term Interest Amount Conventional Construction Loan $17,607,180 City of Santa Ana - NSP $2,000,000 Deferred Developer Fee $792,342 General Partner Equity $100 Limited Partner Equity $4,601,369 Dev. Fee Deferred Until Completion $784,977 Other Costs Deferred Until Completion $501,390 TOTAL $26,287,358 vs. TDC $26,287,358 Financing Surplus /(Gap) $0 File: 130726_N Harbor prf Page 1 of 8 Revised: 712612013 Total Term Interest (Yrs) Comments 6.50% 30 6.50% 20 Based on 8 project based Section 8 vouchers Federal Tax Credit Pricing: $0.99 Total Term Interest (Mnts) Comments 3.00% 24 80A -138 25% of Total Equity. Refer to Development Budget for Details. 815 N Harbor Page 2 of Revised: 712612013 Version: Preliminary Feasibility (9 %) DEVELOPMENT BUDGET Tax Credit Elialble Costs do not assume payment of Davis Bacon wages. File: 130726_N Harbor_prf 80A -139 Total Total Project Residential Depreciable Non - Acq. Construction Item Costs Costs (100 %) Residential Depreciable Amortize Expense Basis /Rehab Basis ACOUISITTON Lesser of Land Cost or Value $3,856,365 $3,856,366 $0 $3,856,366 Demolition $200,000 $200,000 $0 $200,000 $0 Legal: Acquisition $30,000 $30,000 $0 $30,000 $0 $0 $4,086,366 $0 $0 $0 $0 Subtotal Acquisition $4,086,366 $4,086,366 CONSTRUCTION Residential Structures (Inc. Site Work)* $12,550,000 $12,550,000 $12,550,000 $12,550,000 GC Gen. Requtrement $191,250 $191,250 $191,250 $191,250 GC Overhead $573,750 $573,750 $573,750 $573,750 Contractor Profit $1,020,000 $1,020,000 $1,020,000 $1,020,000 Construction Bonds $275,000 $275,000 $275,000 $275,000 Construction Contingency (5 %) $726,750 $726,750 $726,75D $726,750 $15,336,750 $0 $0 $0 $0 $15,336,750 Subtotal Construction $15,336,750 $15,336,750 SOFT C05T5 Local Development Impact Fees $1,250,000 $1,250,000 $1,250,000 $1,250,000 Local Permit Processing Fees $215,000 $215,000 $215,000 $215,000 Environmental Studies - CEQA $40,000 $40,000 $40,000 $40,000 Appraisal $15,000 $15,000 $15,000 $15,000 Architectural Design & Supervision $718,504 $718,504 $718,504 $718,504 Market Study $15,000 $15,000 $0 $15,000 $0 Survey & Engineering $300,000 $300,000 $300,000 $300,000 Syndication Consultant $65,000 $65,000 $0 $65,000 $0 Legal: Construction $20,000 $20,000 $20,000 $20,000 Legal: Permanent $20,000 $20,000 $0 $20,000 $0 Legal: Organization of Partnership $20,000 $20,000 $0 $20,000 $0 Legal: Syndication $40,000 $40,000 $0 $40,000 s0 Title /Retarding /Escrow - Acquisition $20,000 $20,000 $0 $20,000 $0 Title /Recording /Escrow - Construction $20,000 $20,000 $20,000 $20,000 Cunst. Loan Interest (60% ADS) $633,859 $633,859 $475,394 $158,465 $475,394 Marketing (lease -up, Advertisement, Setup) $40,000 $40,000 $0 $40,000 $0 Lender Construction Inspection $15,000 $15,000 $15,000 ;15,00 Furnishing Excluded from Contract $50,000 $50,000 $0 $50,000 $0 $ Insurance $120,000 $120,000 $90,000 $30,000 $90,000 Real Estate Taxes $84,840 $84,840 $63,630 $21,210 $63,630 TCAC App /Allocation - (Monitoring Fee Below) $76,373 ;76,373 $0 $76,373 $0 Soft Cost Contingency $150,000 $150,000 $150,000 ;150,000 Investor Due Diligence $54,500 $54,500 $0 $54,500 $0 Audit /Cost Certification $30,000 $30,000 $30,000 $30,000 Developer Fee (Over)ead) $500,000 $500,000 $500,000 $0 $500,000 Developer Fee(Prorit) $1,500000 $1,500,000 $900,000 $600,000 $0 $900,000 $4,802,528 $829,500 $131,373 $249,675 $0 $4,802,528 Subtotal Solt Costs $6,013,076 $6,013,076 COSTS DEFERRED UNTIL CONVERSION Title /Recording /Escrow - Permanent $10,000 $10,000 $0 $10,000 $0 Operating Reserve $396,600 $396,600 $0 $396,600 $0 Replacement Reserve $66,500 $66,500 $0 $66,500 $0 TCAC Monitoring Fee $28,290 $28,290 $0 $28,290 $0 $0 $463,100 $38,290 $0 $0 $0 Subtotal Deferred Costs $501,390 $501,390 FINANCING COSTS Constr. Lender Ong. Fees $176,072 $176,072 $176,072 $176,072 Constr. Lender Expense $60,000 $60,000 ;60,000 $60,000 Constr. Lender Legal $45,000 ;45,000 $45,000 $45,00 Perm Lender Orig. Fees $43,704 $93,704 $0 $43,704 $0 Perm Lender Legal s25,000 $25,000 $0 $25,000 $0 $281,072 $0 $58,704 $0 $0 $281,072 Subtotal Financing Costs $349,776 $349,776 TOTAL DEVELOPMENT COST $26,287,358 $26,2HJ,358 $20,420,350 $5,378,966 $238,367 ;249,675 $0 $20,420,350 Costs do not assume payment of Davis Bacon wages. File: 130726_N Harbor_prf 80A -139 Exhibit "F" Scope of Work SCOPE OF DEVELOPMENT The proposed project will consists of the construction of an affordable, multifamily rental project comprised of 70 units, 3,000 sf community room. The site is located at 803 -815 N. Harbor Boulevard. The development will be constructed on approximately 2.26 acres (131,916 s.f) and will have 49 two - bedroom units and 21 three bedroom units. Ten percent of the units (or 7 units) will be rented to, extremely low income families with household incomes at or below 30% of the A 41 (Area Median Income), 42 units will be rented to very low income families with household incomes at or below 50% of AMI, and 20 units will be rented to families with household incomes at or below 60 %. The one remaining unit will be designated as a manager's unit. The building will be a podium design with contemporary architecture. The property will feature gated pedestrian and auto access, tot lot, onsite laundry facilities, community room, leasing office, shaded courtyards, and raised planters. The units shall incorporate design elements and building, practices that will reduce the maintenance and utility costs and also reduce the adverse environmental impacts otherwise associated with residential construction. Such design elements and practices may include, but are not limited to environmentally sensitive landscaping, installation of energy efficient furnaces and water heaters (Energy Star Appliances), and installation of high efficiency toilets. The Project will be fully landscaped including irrigation. Landscape materials 'will be low maintenance and drought resistant. Landscaping All areas of the Site that are not occupied by buildings, driveways, walkways, and parking shall be landscaped and maintained. Landscaping may consist of grass lawns, groundcovers, shrubs, trees, decorative block walls, screenings, and terraces' as reasonably approved by the Planning Department. A permanent water sprinkler system shall be provided in all landscaped areas to insure proper maintenance. Refuse An enclosed refuse area or areas shall be provided at locations in accordance with the requirements of the City of Santa Ana. Refuse areas shall be designed with building materials compatible with those used for the other structures on the site. Utilities Developer shall be responsible for all utility relocation or installations on the premises; and hookups to sewers, drains, water and gas distribution lines, electric, telephone, and telegraph lines; and for hookup to all other public utility lines. All utility services on -side shall be installed M 80A -140 underground or concealed within buildings and no mechanical equipment or meters shall be exposed at ground level as required by the Santa Ana Municipal Code. Public Improvements Developer, at its sole cost and expense, including costs of design plans and specifications, shall construct all on -and off -site improvements required for the premises all in accordance with technical specifications, standards and practices of the City of Santa Ana. X 80A -141 Exhibit "G" Schedule of Performance Proposed Development Schedule Event Start Date Finance, Economic Development and Technology 8/8/13 Committee Housing Commission 9/3/13 City Council 9/16/13 Site Acquired 10/22/13 Begin Entitlements 11/2013 City Staff Approval of Entitlements 6/2014 9% Tax Credit Application 7/2014 9% Tax Credit Award 10/2014 Begin Construction Documents 10/2014 Construction Financing Secured 11/2014 Tax Credit Investor Secured 11/2014 Begin Construction /Building Permit Issued 3/2015 Construction Completed 12/2016 Project Fully Leased 3/2017 ru 80A -142 Exhibit "H" Target Area Map t 80A -143 a 13 tl3aOA N t P a0 Natld 011la ^ I d 0 pop LO w1 p U is 3ooiaewvo o ay i ^ tl N 2P is n3ssvlo nv anvae .� �o AV NIOJNII J ?0 ^ n aatlobbis <'t' S ^ 8 AtlhWVObO k 1 a3M0 lf 13 3 l! 13 b3M° E ^ ^ O 1 is is lolsiae " is lols'ee ^ _ ab 131LIYb p ^ p 15 M3lnaltlj ��P e s 3 F O �^^ inairrd CL� � o e � m m m p ebba�aes w w m W � ame aoebv ame aoeaNa '^ L � n @ 153dOHM3N � K rn M ° M o 0 c N N N a d a CO a Z �? z � o 0 0 Exhibit "I" Vicinity Hiring Report VICINITY HIRING REPORT Job/Position Dates Advertising Location Available /Posted Medium S. 80A -145 EXHIBIT 6 OMB Approval No. 2577 -0169 (exp. 04130/2014) This agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless that collection displays a valid OMB control number. Assurances of confidentiality are not provided under this collection. 1.1 Parties This Agreement to Enter into Housing Assistance Payments Contract ( "Agreement ") is entered into between: Housing Authority of the City of Santa Ana ( "PHA ") and 815 N Harbor, LP 1.2 Purpose The owner agrees to develop the Housing Assistance Payments Contract ( "HAP contract ") units to in accordance with Exhibit B to comply with Housing Quality Standards ( "HQS "), and the PHA agrees that, upon timely completion of such development in accordance with the terms of the Agreement, the PHA will enter into a HAP contract with the owner of the contract units. 1.3 Contents of Agreement This Agreement consists of Part I, Part II and the following Exhibits: EXHIBIT A: The approved owner's PBV proposal. (Selection of proposals must be in accordance with 24 CFR 983.5 1.) Previous Editions are obsolete Page 1 of 17 HUD 52531A Agreement, Part I of 2 80A -146 Project -based Voucher Program ( "owner "). EXHIBIT B: Description of work to be performed under this Agreement, including: • if the Agreement is for rehabilitation of units, this exhibit must include the rehabilitation work write -up and, where the PHA has determined necessary, specifications and plans. • if the Agreement is for new construction of units, the work description must include the working drawings and specifications. • any additional requirements beyond HQS relating to quality, design and architecture that the PHA requires. • work items resulting from compliance with the design and construction requirements of the Fair Housing Act and implementing regulations at 24 CFR 100.205 and the accessibility requirements under section 504 of the Rehabilitation Act of 1973 and implementing regulations at 24 CFR 8.22 and 8.23. EXHIBIT C: Description of housing, including: • project site. • total number of units in project covered by this Agreement. • location of contract units on site. • number of contract units by area (size) and number of bedrooms and bathrooms. • services, maintenance, or equipment to be supplied by the owner without charges in addition to the rent to owner. • utilities available to the contract units, including a specification of utility services to be paid by owner (without charges in addition to rent) and utility services to be paid by the tenant. • estimated initial rent to owner for the contract units. EXHIBIT D: The HAP contract. 1.4 Significant Dates A. Effective Date of the Agreement: The Agreement must be executed promptly after PHA notice of proposal selection to the owner has been given. The PHA may not enter this Agreement with the owner until any required subsidy layering review has been performed and an environmental review has been satisfactorily completed in accordance with HUD requirements. B. A project may either be a single -stage or multi -stage project. A single - stage project will have the same Agreement effective date for all contract units. A multi -stage project will have separate effective dates for each stage. Previous Editions are obsolete Page 2 of 17 HUD 52531 A Agreement, Part 1 of 2 80A -147 Project -based Voucher Program 7 Single -stage project i. Effective Date for all contract units: ii. Date of Commencement of the Work: The date for commencement of work is not later than calendar days after the effective date of this Agreement. iii. Time for Completion of Work: The date for completion of the work is not later than calendar days after the effective date of this Agreement. L-1 Multi -Stage Project Enter the information for each stage upon execution of the Agreement for the corresponding stage. STAGE NUMBER OF UNITS EFFECTIVE DATE DATE OF COMMENCEMENT OF WORK TIME FOR COMPLETION OF WORK 1.5 Nature of the Work This Agreement is for New Construction of units to be assisted by the project -based voucher program. aThis Agreement is for Rehabilitation of units to be assisted by the project -based voucher program. Previous Editions are obsolete Page 3 of 17 HUD 52531A Agreement, Part 1 of 2 80A -148 Project -based Voucher Program 1.6 Schedule of Completion A. Timely Performance of Work: The owner agrees to begin work no later than the date for commencement of work as stated in section 1.4. In the event the work is not commenced, diligently continued and completed as required under this Agreement, the PHA may terminate this Agreement or take other appropriate action. The owner agrees to report promptly to the PHA the date work is commenced and furnish the PHA with progress reports as required by the PHA. B. Time for Completion: All work must be completed no later than the end of the period stated in section 1.4. Where completion in stages is provided for, work related to units included in each stage shall be completed by the stage completion date and all work on all stages must be completed no later than the end of the period stated in section 1.4. C. Delays: If there is a delay in the completion due to unforeseen factors beyond the owner's control as determined by the PHA, the PHA agrees to extend the time for completion for an appropriate period as determined by the PHA in accordance with HUD requirements. 1.7 Changes in Work A. The owner must obtain prior PHA approval for any change from the work specified in Exhibit B which would alter the design or quality of the rehabilitation or construction. The PHA is not required to approve any changes requested by the owner. PHA approval of any change may be conditioned on establishment of a lower initial rent to owner as determined by PHA in accordance with HUD requirements. B. If the owner makes any changes in the work without prior PHA approval, the PHA may establish lower initial rents to owner as determined by the PHA in accordance with HUD requirements. C. The PHA may inspect the work during rehabilitation or construction to ensure that work is proceeding on schedule, is being accomplished in accordance with the terms of the Agreement, meets the level of material described in Exhibit B and meets typical levels of workmanship for the area. Previous Editions are obsolete Page 4 of 17 HUD 52531A Agreement, Part I of 2 80A -149 Project -based Voucher Program 1.8 Work Completion A. Conformance with Exhibit B: The work must be completed in accordance with Exhibit B. The owner is solely responsible for completion of the work. B. Evidence of Completion: When the work in completed, the owner must provide the PHA with the following: 1. A certification by the owner that the work has been completed in accordance with the HQS and all requirements of this Agreement. 2. A certification by the owner that the owner has complied with labor standards and equal opportunity requirements in the development of the housing. (See 24 CFR 983.155 (b)(1)(ii).) Additional Evidence of Completion: At the discretion of the PHA, or as required by HUD, the owner may be required to submit additional documentation as evidence of completion of the housing. Check the following that apply: QA certificate of occupancy or other evidence that the contract units comply with local requirements. FAn architect or developer's certification that the housing complies with: Previous Editions are obsolete the HQS; State, local or other building codes; Zoning; The rehabilitation work write -up for rehabilitated housing; The work description for newly constructed housing; or Any additional design or quality requirements pursuant to this Agreement. Page 5 of 17 HUD 52531A Agreement, Part 1 of 2 80A -150 Project -based Voucher Program 1.9 Inspection and Acceptance by the PHA of Completed Contract Units A. Completion of Contract Units: Upon receipt of owner notice of completion of contract units, the PHA shall take the following steps: 1. Review all evidence of completion submitted by owner. 2. Inspect the units to determine if the housing has been completed in accordance with this Agreement, including compliance with the HQS and any additional requirements imposed by the PHA under this Agreement. B. Non- Acceptance: If the PHA determines the work has not been completed in accordance with this Agreement, including non - compliance with the HQS, the PHA shall promptly notify the owner of this decision and the reasons for the non- acceptance. The parties must not enter into the HAP contract at this point. However, work deficiencies may be corrected in accordance with Section 1.10 of this Agreement. C. Acceptance: If the PHA determines that the work has been completed in accordance with this Agreement, and that the owner has submitted all required evidence of completion, the PHA must submit the HAP contract for execution by the owner and must then execute the HAP contract. 1.10 Acceptance Where Work Deficiencies Exist A. If the PHA determines that work deficiencies exist, the PHA shall determine whether and to what extent the deficiencies are correctable, whether the units will be accepted after correction of the deficiencies, and the requirements and procedures (consistent with HUD requirements) for such correction and acceptance of contract units. The PHA shall notify the owner of the PHA's decision. B. Completion in Stages: When the units will be completed in stages, the procedures of this section shall apply to each stage. 1.11 Execution of HAP Contract A. Time and Execution: Upon acceptance of the units by the PHA, the owner and the PHA execute the HAP contract. Previous Editions are obsolete Page 6 of 17 HUD 52531A Agreement, Part 1 of 2 80A -151 Project -based Voucher Program B. Completion in Stages: When the units will be completed in stages, the number and types of units in each stage, and the initial rents to owner for such units, shall be separately shown in the HAP contract for each stage. Upon acceptance of the first stage, the owner shall execute the HAP contract and the signature block provided in the HAP contract for that stage. Upon acceptance of each subsequent stage, the owner shall execute the signature block provided in the HAP contract for such stage. C. Form of HAP contract: The terms of the HAP contract shall be provided in Exhibit D of this Agreement. There shall be no change in the terms of the HAP contract unless such change is approved by HUD headquarters. Prior to execution by the owner, all blank spaces in the HAP contract shall be completed by the PHA. D. Survival of Owner Obligations: Even after execution of the HAP contract, the owner shall continue to be bound by all owner obligations under the Agreement. 1.12 Initial Determination of Rents A. The estimated initial rent to owner shall be established in Exhibit C of this Agreement. B. The initial rent to owner is established at the beginning of the HAP contract term. C. The estimated and initial contract rents for each unit may in no event exceed the amount authorized in accordance with HUD requirements. Where the estimated or the initial rent to owner exceeds the amount authorized under HUD requirements, the PHA shall establish a lower estimated or initial rent to owner (as applicable), in accordance with HUD requirements. 1.13 Uniform Relocation Act A. A displaced person must be provided relocation assistance at the levels described in and in accordance with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 4201- 4655) and implementing regulations at 49 CFR part 24. B. The cost of required relocation assistance may be paid with funds provided by the owner, or with local public funds, or with funds available from other sources. Payment of relocation assistance must be in accordance with HUD requirements. Previous Editions are obsolete Page 7 of 17 HUD 52531A Agreement, Part 1 of 2 80A -152 Project -based Voucher Program C The acquisition of real property for a project to be assisted under the project - based voucher program is subject to the URA and 49 CFR part 24, subpart B. D. The PHA must require the owner to comply with the URA and 49 CFR part 24. E. In computing a replacement housing payment to a residential tenant displaced as a direct result of privately undertaken rehabilitation or demolition of the real property, the term "initiation of negotiations" means the execution of the Agreement between the owner and the PHA. 1.14 Protection of In -Place Families A. In order to minimize displacement of in -place families, if a unit to be placed under HAP contract is occupied by an eligible family on the proposal selection date, the in -place family must be placed on the PHA's waiting list (if it is not already on the list) and, once its continued eligibility is determined, given an absolute selection preference and referred to the project owner for an appropriately sized unit in the project. B. This protection does not apply to families that are not eligible to participate in the program on the proposal selection date. C. The term "in -place family" means an eligible family residing in a proposed contract unit on the proposal selection date. D. Assistance to in -place families may only be provided in accordance with HUD requirements. 1.15 Termination of Agreement and HAP Contract The Agreement or HAP contract may be terminated upon at least 30 days notice to the owner by the PHA or HUD if the PHA or HUD determines that the contract units were not eligible for selection in conformity with HUD requirements. 1.16 Rights of HUD if PHA Defaults Under Agreement If HUD determines that the PHA has failed to comply with this Agreement, or has failed to take appropriate action, to HUD's satisfaction or as directed by HUD, for enforcement of the PHA's rights under this Agreement, HUD may assume the PHA's rights and obligations under the Agreement, and may perform the obligations and enforce the rights of the PHA under the Agreement. HUD will, if it determines that the owner is not in Previous Editions are obsolete Page 8 of 17 HUD 52531A Agreement, Part 1 of 2 80A -153 Project -based Voucher Program default, pay annual contributions for the purpose of providing housing assistance payments with respect to the dwelling unit(s) under this Agreement for the duration of the HAP contract. 1.17 Owner Default and PHA Remedies A. Owner Default Any of the following is a default by the owner under the Agreement: I. The owner has failed to comply with any obligation under the Agreement. 2. The owner has violated any obligation under any other housing assistance payments contract under Section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f). 3. The owner has committed any fraud or made any false statement to the PHA or HUD in connection with the Agreement. 4. The owner has committed fraud, bribery or any other corrupt or criminal act in connection with any Federal housing assistance program. 5. If the property where the contract units are located is subject to a lien or security interest securing a HUD loan or a mortgage insured by HUD and: A. The owner has failed to comply with the regulations for the applicable mortgage insurance or loan program, with the mortgage or mortgage note, or with the regulatory agreement; or B. The owner has committed fraud, bribery or any other corrupt or criminal act in connection with the HUD loan or HUD - insured mortgage. 6. The owner has engaged in any drug - related criminal activity or any violent criminal activity. B. PHA Remedies If the PHA determines that a breach has occurred, the PHA may exercise any of its rights or remedies under the Agreement. Previous Editions are obsolete Page 9 of 17 HUD 52531 A Agreement, Part 1 of 2 80A-1 54 Project -based Voucher Program 2. The PHA must notify the owner in writing of such determination. The notice by the PHA to the owner may require the owner to take corrective action (as verified by the PHA) by a time prescribed in the notice. 3. The PHA's rights and remedies under the Agreement include, but are not limited to: (i) terminating the Agreement; and (ii) declining to execute the HAP contract for some or all of the units. C. PHA Remedy is not Waived The PHA's exercise or non - exercise of any remedy for owner breach of the Agreement is not a waiver of the right to exercise that remedy or any other right or remedy at any time. 1.18 PHA and Owner Relation to Third Parties A. Selection and Performance of Contractor 1. The PHA has not assumed any responsibility or liability to the owner, or any other party for performance of any contractor, subcontractor or supplier, whether or not listed by the PHA as a qualified contractor or supplier under the program. The selection of a contractor, subcontractor or supplier is the sole responsibility of the owner and the PHA is not involved in any relationship between the owner and any contractor, subcontractor or supplier. 2. The owner must select a competent contractor to undertake rehabilitation or construction. The owner agrees to require from each prospective contractor a certification that neither the contractor nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or otherwise excluded from participation in contracts by any Federal department or agency or the Comptroller General. The owner agrees not to award contracts to, otherwise engage in the service of, or fund any contractor that does not provide this certification. B. Injury Resulting from Work under the Agreement: The PHA has not assumed any responsibility for or liability to any person, including a worker or a resident of the unit undergoing work pursuant to this Agreement, injured as a result of the work or as a result of any other action or failure to act by the owner, or any contractor, subcontractor or supplier. Previous Editions are obsolete Page 10 of 17 HUD 52531A Agreement, Part 1 of 2 80A -155 Project -based Voucher Program C. Legal Relationship: The owner is not the agent of the PHA and this Agreement does not create or affect any relationship between the PHA and any lender to the owner or any suppliers, employees, contractor or subcontractors used by the owner in the implementation of the Agreement. D. Exclusion of Third Party Claims: Nothing in this Agreement shall be construed as creating any right of any third party (other than HUD) to enforce any provision of this Agreement or the HAP contract, or to assert any claim against HUD, the PHA or the owner under the Agreement or the HAP contract. E. Exclusion of Owner Claims against HUD: Nothing in this Agreement shall be construed as creating any right of the owner to assert any claim against HUD. 1.19 PHA -Owned Units Notwithstanding Section 1.18 of this Agreement, a PHA may own units assisted under the project -based voucher program, subject to the special requirements in 24 CFR 983.59 regarding PHA -owned units. 1.20 Conflict of Interest A. Interest of Members, Officers, or Employees of PHA, Members of Local Governing Body, or Other Public Officials No present or former member or officer of the PHA (except tenant - commissioners), no employee of the PHA who formulates policy or influences decisions with respect to the housing choice voucher program or project -based voucher program, and no public official or member of a governing body or State or local legislator who exercises functions or responsibilities with respect to these programs, shall have any direct or indirect interest, during his or her tenure or for one year thereafter, in the Agreement or HAP contract. 2. HUD may waive this provision for good cause. B. Disclosure The owner has disclosed to the PHA any interest that would be a violation of the Agreement or HAP contract. The owner must fully and promptly update such disclosures. Previous Editions are obsolete Page 1 I of 17 HUD 52531A Agreement, Part I of 2 80A-1 56 Project -based Voucher Program 1.21 Interest of Member or Delegate to Congress No member of or delegate to the Congress of the United States of America or resident - commissioner shall be admitted to any share or part of the Agreement or HAP contract or to any benefits arising from the Agreement or HAP contract. 1.22 Transfer of the Agreement, HAP Contract or Property A. PHA Consent to Transfer The owner agrees that the owner has not made and will not make any transfer in any form, including any sale or assignment, of the Agreement, HAP contract or the property without the prior written consent of the PHA. A change in ownership in the owner, such as a stock transfer or transfer of the interest of a limited partner, is not subject to the provisions of this section. Transfer of the interest of a general partner is subject to the provisions of this section. B. Procedure for PHA Acceptance of Transferee Where the owner requests the consent of the PHA for a transfer in any form, including any sale or assignment, of the Agreement, the HAP contract or the property, the PHA must consent to a transfer of the Agreement or HAP contract if the transferee agrees in writing (in a form acceptable to the PHA) to comply with all the terms of the Agreement and HAP contract, and if the transferee is acceptable to the PHA. The PHA's criteria for acceptance of the transferee must be in accordance with HUD requirements. C. When Transfer is Prohibited The PHA will not consent to the transfer if any transferee, or any principal or interested party is debarred, suspended subject to a limited denial of participation, or otherwise excluded under 2 CFR part 2424, or is listed on the U.S. General Services Administration list of parties excluded from Federal procurement or nonprocurement programs. 1.23 Exclusion from Federal Programs A. Federal Requirements The owner must comply with and is subject to requirements of 2 CFR part 2424. Previous Editions are obsolete Page 12 of 17 HUD 52531A Agreement, Part 1 of 2 80A -157 Project -based Voucher Program B. Disclosure The owner certifies that: The owner has disclosed to the PHA the identity of the owner and any principal or interested party. 2. Neither the owner nor any principal or interested party is listed on the U.S. General Services Administration list of parties excluded from Federal procurement and nonprocurement programs; and none of such parties are debarred, suspended, subject to a limited denial of participation or otherwise excluded under 2 CFR part 2424. 1.24 Lobbying Certifications A. The owner certifies, to the best of owner's knowledge and belief, that: No Federally appropriated funds have been paid or will be paid, by or on behalf of the owner, 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 the awarding of the Agreement or HAP contract, or the extension, continuation, renewal, amendment, or modification of the HAP contract. 2. If any funds other than Federally 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 the Agreement or HAP contract, the owner must complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. B. This certification by the owner is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Previous Editions are obsolete Page 13 of 17 HUD 52531A Agreement, Part 1 of 2 80A -158 Project -based Voucher Program 1.25 Subsidy Layering A. Owner Disclosure The owner must disclose to the PHA, in accordance with HUD requirements, information regarding any related assistance from the Federal Government, a State, or a unit of general local government, or any agency or instrumentality thereof, that is made available or is expected to be made available with respect to the contract units. Such related assistance includes, but is not limited to, any loan, grant, guarantee, insurance, payment, rebate, subsidy, credit, tax benefit, or any other form of direct or indirect assistance. B. Limit of Payments Housing assistance payments under the HAP contract must not be more than is necessary, as determined in accordance with HUD requirements, to provide affordable housing after taking account of such related assistance. The PHA will adjust in accordance with HUD requirements the amount of the housing assistance payments to the owner to compensate in whole or in part for such related assistance. 1.26 Prohibition of Discrimination A. The owner may not refuse to lease contract units to, or otherwise discriminate against, any person or family in leasing of a contract unit, because of race, color, religion, sex, national origin, disability, age or familial status. B. The owner must comply with the following requirements: The Fair Housing Act (42 U.S.C. 3601 -19) and implementing regulations at 24 CFR part 100 et seq. ; Executive Order 11063, as amended by Executive Order 12259 (3 CFR, 1959- 1963 Comp., p. 652 and 3 CFR, 1980 Comp., p. 307) (Equal Opportunity in Housing Programs) and implementing regulations at 24 CFR part 107; title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d- 2000d -4) (Nondiscrimination in Federally Assisted Programs) and implementing regulations at 24 CFR part 1; the Age Discrimination Act of 1975 (42 U.S.C. 6101 -6107) and implementing regulations at 24 CPR part 146; section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at part 8 of this title; title 11 of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. ; 24 CFR part 8; section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) and implementing regulations at 24 CFR part 135; Executive Order 11246, as amended by Executive Orders 11375, 11478, 12086, and 12107 (3 CFR, 1964— Previous Editions are obsolete Page 14 of 17 HUD 52531 A Agreement, Part 1 of 2 80A -159 Project -based Voucher Program 1965 Comp., p. 339; 3 CFR, 1966 -1970 Comp., p. 684; 3 CFR, 1966 -1970 Comp., p. 803; 3 CFR, 1978 Comp., p. 230; and 3 CFR, 1978 Comp., p. 264, respectively) (Equal Employment Opportunity Programs) and implementing regulations at 41 CFR chapter 60; Executive Order 11625, as amended by Executive Order 12007 (3 CFR, 1971 -1975 Comp., p. 616 and 3 CFR, 1977 Comp., p. 139) (Minority Business Enterprises); Executive Order 12432 (3 CFR, 1983 Comp., p. 198) (Minority Business Enterprise Development); and Executive Order 12138, as amended by Executive Order 12608 (3 CFR, 1977 Comp., p. 393 and 3 CFR, 1987 Comp., p. 245) (Women's Business Enterprise). C. The PHA and the owner must cooperate with HUD in the conducting of compliance reviews and complaint investigations pursuant to all applicable civil rights statutes, Executive Orders, and all related rules and regulations. 1.27 PHA and HUD Access to Premises and Owner Records A. The owner must furnish any information pertinent to this Agreement as may be reasonably required from time to time by the PHA or HUD. The owner shall furnish such information in the form and manner required by the PHA or HUD. B. The owner must permit the PHA or HUD or any of their authorized representatives to have access to the premises during normal business hours and, for the purpose of audit and examination, to have access to any books, documents, papers and records of the owner to the extent necessary to determine compliance with the Agreement. 1.28 Notices and Owner Certifications A. Where the owner is required to give any notice to the PHA pursuant to this Agreement, such notice shall be in writing and shall be given in the manner designated by the PHA. B. Any certification or warranty by the owner pursuant to the Agreement shall be deemed a material representation of fact upon which reliance was placed when this transaction was entered into. Page 15 of 17 HUD 52531A Agreement, Part 1 of 2 Previous Editions are obsolete Project -based Voucher Program 80A -160 1.29 HUD Requirements A. The Agreement and the HAP contract shall be interpreted and implemented in accordance with all statutory requirements, and with all HUD requirements, including amendments or changes in HUD requirements. The owner agrees to comply with all such laws and HUD requirements B. HUD requirements are requirements that apply to the project -based voucher program. HUD requirements are issued by HUD Headquarters as regulations, Federal Register notices or other binding program directives. 1.30 Applicability of Part II provisions — Check all that apply Training, Employment and Contracting Opportunities Section 2.1 applies if the total of the contract rents for all units under the proposed HAP contract, over the maximum term of the contract, is more than $200,000. D Equal Employment Opportunity Section 2.2 only applies to construction contracts of more than $10,000. ❑x Labor Standards Requirements Sections 2.4, 2.8 and 2.10 apply when this Agreement covers nine or more units. ❑ Flood Insurance Section 2.11 applies if units are located in areas having special flood hazards and in which flood insurance is available under the National Flood Insurance Program. Previous Editions are obsolete Page 16 of 17 HUD 52531A Agreement, Part I of 2 80A -161 Project -based Voucher Program EXECUTION OF THE AGREEMENT PUBLIC HOUSING AGENCY Name (Print) Housing Authority of the City of Santa Ana Bv: Signature of Authorized Representative Official title (Print): OWNER Name (Print) 815 N Harbor, LP By: Signature of Authorized Representative Official Title (Print): Date: Previous Editions are obsolete Page 17 of 17 HUD 52531A Agreement, Part 1 oft 80A -162 Project -based Voucher Program OMB Approval No. 2577 -0169 (exp. 04/30/2014) This agency may not conduct or sponsor, and a person is not required to respond toga collection of information unless that collection displays a valid OMB control number. Assurances of confidentiality are not provided under this collection. 2.1 Training, Employment and ContractingO ortunities (a) The project assisted under this Agreement is subject to the requirements of section 3 of the Housing Urban Development Act of 1968, as amended, 12 U.S.C. 1701u. The owner shall carry out the provisions of section 3 and the regulations issued by HUD as set forth in 24 CFR part 135 and all applicable rules and orders of HUD issued thereunder prior to the execution of this Agreement. This shall be a condition of the Federal financial assistance provided to the project, binding upon the owner, the owner's contractors and subcontractors, successors and assigns. Failure to fulfill these requirements shall subject the owner, the owner's contractors and subcontractors, successors and assigns to the sanctions specified by this Agreement, and to such sanctions as are specified by 24 CFR part 135. (b) The owner shall incorporate or cause to be incorporated into any contract or subcontract for work pursuant to this Agreement in excess of $100,000 the following clause: (1) The work to be performed under this contract is subject to the requirements of section 3 of the Housing Urban Development Act of 1968, as amended, 12 U.S.C. 1701u. The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD - assisted projects covered by section 3 shall, to the greatest extent feasible, be directed to low- and very low- income persons, particularly persons who are recipients of HUD assistance for housing. Previous Editions are obsolete Page 1 of 15 HUD 52531 B Agreement, Part 2 of 2 80A -163 Project -based Voucher Program (2) The parties to this Agreement agree to comply with HUD's regulations in 24 CFR part 135, which implement section 3. As evidenced by their execution of this Agreement, the parties to this Agreement certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. (3) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, and shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (4) The contractor agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. (5) The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. (6) Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this Agreement for default, and debarment or suspension from future HUD assisted contracts. (7) With respect to work performed in connection with section 3 covered Indian housing assistance, section 7(b) of the Indian Self- Determination and Education Assistance Act (25 U.S.C. 405e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible: (i) preference and opportunities for training and employment shall be given to Previous Editions are obsolete Page 2 of 15 HUD 52531B Agreement, Part 2 of 2 80A -164 Project -based Voucher Program Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian -owned Economic Enterprise. Parties to this contract that are subject to the provisions of section 3 and section 7(b) agree to comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b). 2 EQUAL EMPLOYMENT OPPORTUNIT (a) The owner shall incorporate or cause to be incorporated into any contract in excess of $10,000 for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 CFR chapter 60, which is to be performed pursuant to this Agreement, the following nondiscrimination clause: During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, creed, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoffs or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, creed, sex, or national origin. (3) The contractor will send to each labor union or representative of workers with which the contractor has a collective bargaining agreement or other contract or understanding, a notice to be provided by or at the direction of the Government advising the labor union or workers representative of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. Previous Editions are obsolete Page 3 of 15 HUD 52531B Agreement, Part 2 of 2 80A -165 Project -based Voucher Program (4) The contractor of will comply with all provisions of Executive Order No. 11246 of September 24, 1965, and with the rules, regulations, and relevant orders of the Secretary of Labor. (5) The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by HUD and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders. (6) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions as may be imported and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor or as otherwise provided by law. (7) The contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by the rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor wilt take such action with respect to any subcontract or purchase order as the Government may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the Government, the contractor may request the United States to enter into such litigation to protect the interest of the United States. (b) The owner agrees to be bound by the above nondiscrimination clause with respect to his or her own employment practices when participating in federally assisted construction work. (c) The owner agrees to assist and cooperate actively with HUD and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the nondiscrimination clause and the rules, regulations, and relevant orders of the Secretary of Labor, to furnish HUD and the Secretary of Labor such information Previous Editions are obsolete Page 4 of 15 HUD 52531B Agreement, Part 2 of 2 80A -166 Project -based Voucher Program as they may require for the supervision of such compliance, and to otherwise assist HUD in the discharge of HUD's primary responsibility for securing compliance. (d) The owner further agrees to refrain from entering into any contract or contract modification subject to Executive Order No. 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the nondiscrimination clause as may be imposed upon contractors and subcontractors by HUD or the Secretary of Labor pursuant to the Executive Order. In addition, if the owner fails or refuses to comply with these undertakings, HUD may take any or all of the following actions; cancel, terminate, or suspend in whole or in part this Agreement; refrain from extending any further assistance to the owner under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received from the owner, and refer the case to the Department of Justice for appropriate legal proceedings. 3 RESERVED 4 HUD- FEDERAL LABOR STANDARDS PROVISIONS The owner is responsible for inserting the entire text of section 2.4 of this Agreement in all construction contracts and, if the owner performs any rehabilitation work on the project, the owner must comply with all provisions of section 2.4. (Note: Sections 2.4(b) and (c) apply only when the amount of the prime contract exceeds $100,000.) (a)(1)(i) Minimum Wages. All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project) will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made part hereof regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or Previous Editions are obsolete Page 5 of 15 HUD 52531B Agreement, Part 2 of 2 80A -167 Project -based Voucher Program mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under 29 CFR 5.5(a)(1)(ii) and the Davis -Bacon poster (WH- 1321)) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (ii)(A) Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. HUD shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and HUD or its designee agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by HUD or its designee to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, D. C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within the 30 -day period that additional time is necessary. Previous Editions are obsolete Page 6 of 15 HUD 52531 B Agreement, Part 2 of 2 80A -168 Project -based Voucher Program (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and HUD or its designee do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), HUD or its designee shall refer the questions, including the views of all interested parties and the recommendation of HUD or its designee, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within the 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within 30 -day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determinations or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program: Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (2) Withholding. HUD or its designee shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractors under this contract or any other Federal contract with the same prime contractor, or any other Federally- assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the contract, HUD or its designee may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such Previous Editions are obsolete Page 7 of 15 HUD 52531B Agreement, Part 2 of 2 80A -169 Project -based Voucher Program violations have ceased. HUD or its designee may, after written notice to the contractor, disburse such amounts withheld for and on account of the contractor or subcontractor to the respective employees to whom they are due. (3)(i) Payrolls and Basic Records. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section l(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5 (a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant, sponsor, or owner, as the case may be, for transmission to HUD or its designee. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i). This information may be submitted in any form desired. Optional Form WH -347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029 - 005- 00014 -1), U.S. Government Printing Office, Washington, DC 20402. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: Previous Editions are obsolete Page 8 of 15 HUD 52531B Agreement, Part 2 of 2 80A -170 Project -based Voucher Program (1) That the payroll for the payroll period contains the information required to be maintained under 29 CFR 5.5 (a)(3)(i) and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of Title 18 and section 231 of Title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of HUD or its designee or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, HUD or its designee may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. (4)(i) Apprentices and Trainees. Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary Previous Editions are obsolete Page 9 of 15 HUD 52531B Agreement, Part 2 of 2 80A -171 Project -based Voucher Program employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeymen's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee Previous Editions are obsolete 10 of 15 HUD 52531B Agreement, Part 2 of 2 80A -172 Project -based Voucher Program rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal Employment Opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. (5) Compliance with Copeland Act Requirements. The contractor shall comply with the requirements of 29 CFR part 3 which are incorporated by reference in this Agreement. (6) Subcontracts. The contractor or subcontractor will insert in any subcontracts the clauses contained in section 2.4(a)(1) through (11) and such other clauses as HUD or its designee may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in this section 2.4(a). (7) Contract Terminations; Debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. (8) Compliance with Davis -Bacon and Related Act Requirements. All rulings and interpretations of the Davis -Bacon and related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes Concerning Labor Standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and HUD or its designee, the U. S. Department of Labor, or the employees or their representatives. Previous Editions are obsolete Page 11 of 15 HUD 52531B Agreement, Part 2 of 2 80A -173 Project -based Voucher Program (10)(i) Certification of Eligibility. By entering into this Agreement, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR part 24. (ii) No part of this Agreement shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or participate in HUD programs pursuant to 24 CFR part 24. (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Additionally, U.S. Criminal Code, section 1010, Title 18, U.S.C., "Federal Housing Administration transactions, provides in part: "Whoever, for the purpose of ...influencing in any way the action of such Administration ... makes, utters or publishes any statement, knowing the same to be false... shall be fined not more than $5,000 or imprisoned not more than two years, or both." 11. Complaints. Proceedings, or Testimony by Employees. No laborer or mechanic to whom the wage, salary, or other labor standards provisions of this Agreement are applicable shall be discharged or in any other manner discriminated against by the Contractor or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Agreement to his employer. (b) Contract Work Hours and Safety Standards Act. The provisions of this paragraph (b) are applicable only where the amount of the prime contract exceeds $100,000. As used in this paragraph, the terms "laborers" and "mechanics" include watchmen and guards. (1) Overtime Requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation: Liability for Unpaid Wages; Liquidated Damages. In the event of any violation of the clause set forth in subparagraph (1) of this paragraph, the contractor and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work Previous Editions are obsolete Page 12 of 15 HUD 52531B Agreement, Part 2 of 2 80A -174 Project -based Voucher Program done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph (1) of this paragraph, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in subparagraph (1) of this paragraph. (3) Withholding for Unnaid Wages and Liquidated Damages. HUD or its designee shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any monies payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other Federally- assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (2) of this paragraph. (4) Subcontractors. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in subparagraph (1) through (4) of this paragraph and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in subparagraphs (1) through (4) of this paragraph. (c) Health and Safety. The provisions of this paragraph (c) are applicable only where the amount of the prime contract exceeds $100,000. (1) No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous to his health and safety as determined under construction safety and health standards promulgated by the Secretary of Labor by regulation. (2) The contractor shall comply with all regulations issue by the Secretary of Labor pursuant to Title 29 part 1926 and failure to comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act, 40 USC 3701 et seq. (3) The contractor shall include the provisions of this paragraph in every subcontract so that such provisions will be binding on each subcontractor. The contractor shall take such action with respect to any subcontract as the Secretary of Housing and Previous Editions are obsolete Page 13 of 15 HUD 52531B Agreement, Part 2 of 2 80A -175 Project -based Voucher Program Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions. 2.5 -2.7 RESERVED 2.8 WAGE AND CLAIMS ADJUSTMENT The owner shall be responsible for the correction of all violations under section 2.4, including violations committed by other contractors. In cases where there is evidence of underpayment of salaries or wages to any laborers or mechanics (including apprentices and trainees) by the owner or other contractor or a failure by the owner or other contractor to submit payrolls and related reports, the owner shall be required to place an amount in escrow, as determined by HUD sufficient to pay persons employed on the work covered by the Agreement the difference between the salaries or wages actually paid such employees for the total number of hours worked and the full amount of wages required under this Agreement, as well as an amount determined by HUD to be sufficient to satisfy any liability of the owner or other contractor for liquidated damages pursuant to section 2.4. The amounts withheld may be disbursed by HUD for and on account of the owner or other contractor to the respective employees to whom they are due, and to the Federal Government in satisfaction of liquidated damages under section 2.4. 2.9 RESERVE 2.10 EVIDENCE OF UNITS COMPLETION; ESCRO (a) The owner shall evidence the completion of the unit(s) by furnishing the PHA, in addition to the requirements listed in Part I of this Agreement, a certification of compliance with the provisions of sections 2.4 and 2.8 of this Agreement, and that to the best of the owner's knowledge and belief there are no claims of underpayment to laborers or mechanics in alleged violation of these provisions of the Agreement. In the event there are any such pending claims to the knowledge of the owner, the PHA, or HUD, the owner will place a sufficient amount in escrow, as directed by the PHA or HUD, to assure such payments. (b) The escrows required under this section and section 2.8 of shall be paid to HUD, as escrowee, or to an escrowee designated by HUD, and the conditions and manner of releasing such escrows shall be designated and approved by HUD. Previous Editions are obsolete Page 14 of 15 HUD 52531B Agreement, Part 2 of 2 80A -176 Project -based Voucher Program 11 FLOOD INSURANCE If the project is located in an area that has been identified by the Federal Emergency Management Agency as an area having special flood hazards and if the sale of flood insurance has been made available under the National Flood Insurance Program, the owner agrees that: (1) the project will be covered, during the life of the property, by flood insurance in an amount at least equal to its development or project cost (less estimated land cost) or to the limit of coverage made available with respect to the particular type of property under the National Flood Insurance Act of 1968, whichever is less; and (2) that it will advise any prospective purchaser or transferee of the property in writing of the continuing statutory requirement to maintain such flood insurance during the life of the property. Previous Editions are obsolete Page 15 of 15 HUD 52531B Agreement, Part 2 of 2 80A -177 Project -based Voucher Program EXHIBIT 7 OMB Approval No 2577 -0169 (exp. 04/30/2014 U.S. Department Of Housing and Urban Development Office of Public and Indian Housing SECTION 8 PROJECT -BASED VOUCHER PROGRAM PBV HOUSING ASSISTANCE PAYMENTS CONTRACT NEW CONSTRUCTION OR REHABILITATION PART I OF HAP CONTRACT This agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless that collection displays a valid OMB control number. Assurances of confidentiality are not provided under this collection. L CONTRACT INFORMATION a. Parties This housing assistance payments (HAP) contract is entered into between: Housing Authority of the City of Santa Ana ( PHA) and 815 N Harbor, LP b. Contents of contract (owner). The HAP contract consists of Part 1, Part 2 and the contract exhibits listed in paragraph c. c. Contract exhibits The HAP contract includes the following exhibits: EXHIBIT A: TOTAL NUMBER OF UNITS IN PROJECT COVERED BY THIS HAP CONTRACT; INITIAL RENT TO OWNER; AND THE NUMBER AND DESCRIPTION OF THE CONTRACT UNITS. (See 24 CFR 983.203 for required items.) If this is a multi -stage project, this exhibit must include a description of the units in each completed phase. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -178 HUD 52530A Page - 1 - of Part t EXHIBIT B: SERVICES, MAINTENANCE AND EQUIPMENT TO BE PROVIDED BY THE OWNER WITHOUT CHARGES IN ADDITION TO RENT TO OWNER EXHIBIT C: UTILITIES AVAILABLE IN THE CONTRACT UNITS, INCLUDING A LISTING OF UTILITIY SERVICES TO BE PAID BY THE OWNER (WITHOUT CHARGES IN ADDITION TO RENT TO OWNER) AND UTILITIES TO BE PAID BY THE TENANTS EXHIBIT D: FEATURES PROVIDED TO COMPLY WITH PROGRAM ACCESSIBILITY FEATURES OF SECTION 504 OF THE REHABILITATION ACT OF 1973 ADDITIONAL EXHIBITS d. Single -Stage and Multi -Stage Contracts (Check the applicable box.) ❑x Single -Stage Project This is a single -stage project. For all contract units, the effective date of the HAP contract is: The PHA enters the effective date, and executes the HAP contract, after completion and PHA acceptance of all units in the single stage project. 2. ❑ Multi -Stage Project This is a multi -stage project. The units in each completed stage are designated in Exhibit A The PHA enters the effective date for each stage after completion and PHA acceptance of all units in that stage. The PHA enters the effective date for each stage in the "Execution of HAP contract for contract units completed in stages" (starting on page 8). The annual anniversary date of the HAP contract for all contract units in this multi -stage project is the anniversary of the effective date of the HAP contract for the contract units included in the first stage. The expiration date of the HAP contract for all of the contract units completed in stages must be concurrent with the end of the HAP contract term for the units included in the first stage. (See 24 CFR 983.206(c).) Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -179 HUD 52530A Page - 2 - of Part I C. Term of the HAP contract 1. Beginning of Term The PHA may not enter into a HAP contract for any contract unit until the PHA has determined that the unit complies with the housing quality standards. The term of the HAP contract for any unit begins on the effective date of the HAP contract. 2. Length of initial term a. Subject to paragraph 2.b, the initial term of the HAP contract for any contract units is: b. The initial term of the HAP contract for any unit may not be less than one year, nor more than fifteen years. 3. Extension of term The PHA and owner may agree to enter into an extension of the HAP contract at the time of initial HAP contract execution or any time prior to expiration of the contract. Any extension, including the term of such extension, must be in accordance with HUD requirements. A PHA must determine that any extension is appropriate to achieve long -term affordability of the housing or expand housing opportunities. 4. Requirement for sufficient appropriated funding a. The length of the initial term and any extension term shall be subject to availability, as determined by HUD, or by the PHA in accordance with HUD requirements, of sufficient appropriated funding (budget authority), as provided in appropriations acts and in the PHA's annual contributions contract (ACC) with HUD, to make full payment of housing assistance payments due to the owner for any contract year in accordance with the HAP contract. b. The availability of sufficient funding must be determined by HUD or by the PHA in accordance with HUD requirements. If it is determined that there may not be sufficient funding to continue housing assistance payments for all contract units and for the full term of the HAP contract, the PHA has the right to terminate the HAP contract by notice to the owner for all or any of the contract units. Such action by the PHA shall be implemented in accordance with HUD requirements. Project -based Voucher Program HAP Contract for New Construction or Rehabilitation Previous editions are obsolete HUD 52530A Page - 3 - of Part I 80A -180 Occupancy and payment 1. Payment for occupied unit During the term of the HAP contract, the PHA shall make housing assistance payments to the owner for the months during which a contract unit is leased to and occupied by an eligible family. If an assisted family moves out of a contract unit, the owner may keep the housing assistance payment for the calendar month when the family moves out ( "move -out month "). However, the owner may not keep the payment if the PHA determines that the vacancy is the owner's fault. 2. Vacancy payment THE PHA HAS DISCRETION WHETHER TO INCLUDE THE VACANCY PAYMENT PROVISION (PARAGRAPH f.2), OR TO STRIKE THIS PROVISION FROM THE HAP CONTRACT FORM. a. If an assisted family moves out of a contract unit, the YHA may provide vacancy payments to the owner for a PHA - determined vacancy period extending from the beginning of the first calendar month after the move -out month for a period not exceeding two full months following the move -out month. b. The vacancy payment to the owner for each month of the maximum two -month period will be determined by the PHA, and cannot exceed the monthly rent to owner under the assisted lease, minus any portion of the rental payment received by the owner (including amounts available from the tenant's security deposit). Any vacancy payment may only cover the period the unit remains vacant. C. The PHA may only make vacancy payments to the owner if. The owner gives the PHA prompt, written notice certifying that the family has vacated the unit and the date when the family moved out (to the best of the owner's knowledge and belief); 2. The owner certifies that the vacancy is not the fault of the owner and that the unit was vacant during the period for which payment is claimed; The owner certifies that it has taken every reasonable action to minimize the likelihood and length of vacancy; and Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -181 HUD 52530A Page - 4 - of Part 1 4. The owner provides any additional information required and requested by the PHA to verify that the owner is entitled to the vacancy payment. d. The PHA must take every reasonable action to minimize the likelihood and length of vacancy. e. The owner may refer families to the PHA, and recommend selection of such families from the PHA waiting list for occupancy of vacant units. The owner must submit a request for vacancy payments in the form and manner required by the PHA and must provide any information or substantiation required by the PHA to determine the amount of any vacancy payments. 3. PHA is not responsible for family damage or debt to owner Except as provided in this paragraph f (Occupancy and Payment), the PHA will not make any other payment to the owner under the HAP contract. The PHA will not make any payment to owner for any damages to the unit, or for any other amounts owed by a family under the family's lease. g. Income - mixing requirement 1. Except as provided in paragraphs g.2 and 3, the PHA will not make housing assistance payments under the HAP contract for more than 25 percent of the total number of dwelling units (assisted or unassisted) in any project. The term "project" means a single building, multiple contiguous buildings, or multiple buildings on contiguous parcels of land assisted under this HAP contract. 2. The limitation in paragraph g.I does not apply to single- family buildings. 3. In referring eligible families to the owner for admission to the number of contract units in any project exceeding the 25 percent limitation under paragraph g.1, the PHA shall give preference to elderly or disabled families, or to families receiving supportive services, for the number of contract units designated for occupancy by such families. The owner shall rent the designated number of contract units to such families referred by the PHA from the PHA waiting list. 4. The PHA and owner must comply with all HUD requirements regarding income mixing. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -182 HUD 52530A Page - 5 - of Part 1 5. The following specifies the number of contract units (if any): a. Designated for occupancy by disabled families; b Designated for occupancy by elderly families; C. Designated for occupancy by elderly or disabled families; or d. Designated for occupancy by families receiving supportive services. ❑ Check this box if any contract units are designated for disabled families. The following number of contract units shall be rented to disabled families: ❑ Check this box if any contract units are designated for elderly families. The following number of contract units shall be rented to elderly families: ❑ Check this box if any contract units are designated for elderly or disabled families. The following number of contract units shall be rented to elderly or disabled families: ® Check this box if any contract units are designated for families receiving supportive services. The following number of contract units shall be rented to families receiving supportive services: 8 contract units Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -183 HUD 52530A Page - 6 - of Part I EXECUTION OF HAP CONTRACT FOR SINGLE -STAGE PROJECT UBLIC HOUSING AGENCY (PHA) Name of PHA (Print) Housing Authority of the City of Santa Ana Signature of authorized representative Name and official title (Print) Date OWNER Name of Owner (Print) 815 N Harbor, LP Signature of authorized representative Name and title (Print) Pate Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -184 HUD 52530A Page - 7 - of Part 1 EXECUTION OF HAP CONTRACT FOR CONTRACT UNITS COMPLETED AND ACCEPTED IN STAGES (For multi -stage projects, at acceptance of each stage, the PHA and the owner sign the HAP contract execution for the completed stage.) STAGE NO. 1. The Contract is hereby executed for the contract units in this stage. STAGE EFFECTIVE DATE. The effective date of the Contract for this stage is: PUBLIC HOUSING AGENCY (PHA) Name of PHA (Print) Signature of authorized representative Name and official title (Print) Date • WNER Name of Owner (Print) Signature of authorized representative Name and title (Print) Date Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -185 HUD 52530A Page - 8 - of Part I STAGE NO. 2. The Contract is hereby executed for the contract units in this stage. STAGE EFFECTIVE DATE. The effective date of the Contract for this stage is: PUBLIC HOUSING AGENCY (PHA) Name of PHA (Print) Signature of authorized representative Name and official title (Print) Date OWNER Name of Owner (Print) Signature of authorized representative Name and title (Print) Date Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -186 HUD 52530A Page - 9 - of Part 1 STAGE NO. 3. The Contract is hereby executed for the contract units in this stage. STAGE EFFECTIVE DATE. The effective date of the Contract for this stage is: PUBLIC HOUSING AGENCY (PHA) Name of PHA (Print) Signature of authorized representative Name and official title (Print) Date OWNER Name of Owner (Print) Signature of authorized representative Name and title (Print) Date Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -187 HUD 52530A Page - 10 - of Part 1 STAGE NO. The Contract is hereby executed for the contract units in this stage. STAGE EFFECTIVE DATE. The effective date of the Contract for this stage is: PUBLIC HOUSING AGENCY (PHA) Name of PHA (Print) B: Signature of authorized representative Name and official title (Print) Date OWNER Name of Owner (Print) Signature of authorized representative Name and title (Print) Pate Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation i 1 Mi i HUD 52530A Page - 11 - of Part 1 OMB Approval No. 2577 -0169 (exp. 4/3012014) U.S. Department Of Housing and Urban Development Office of Public and Indian Housing SECTION 8 PROJECT -BASED VOUCHER PROGRAM PBV HOUSING ASSISTANCE PAYMENTS CONTRACT NEW CONSTRUCTION OR REHABILITATION PART 2 OF HAP CONTRACT This agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless that collection displays a valid OMB control number. Assurances of confidentiality are not provided under this collection. 2. DEFINITIONS Agreement. Agreement to enter into HAP Contract between the owner and the PHA. The HAP contract was entered into following new construction or rehabilitation of the contract units by the owner pursuant to an Agreement. Contract units. The housing units covered by this HAP contract. The contract units are described in Exhibit A. Family. The persons approved by the PHA to reside in a contract unit with assistance under the program. HAP contract. This housing assistance payments contract between the PHA and the owner. The contract consists of Part 1, Part 2, and the contract exhibits (listed in section Lc of the HAP contract). Housing assistance payment. The monthly assistance payment by the PHA for a contract unit, which includes: (1) a payment to the owner for rent to the owner under the family's lease minus the tenant rent; and (2) an additional payment to or on behalf of the family if the utility allowance exceeds total tenant payment. Household. The family and any PHA - approved live -in aide. Housing quality standards (HQS). The HUD minimum quality standards for dwelling units occupied by families receiving project -based voucher program assistance. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -189 HUD 52530A Page - 1 - of Part 2 HUD. U.S. Department of Housing and Urban Development HUD requirements. HUD requirements which apply to the project -based voucher program. HUD requirements are issued by HUD headquarters, as regulations, Federal Register notices or other binding program directives. Newly constructed housing. Housing units that do not exist on the proposal selection date and are developed after the date of selection pursuant to an Agreement between the PHA and owner for use under the project -based voucher program. Owner. Any person or entity who has the legal right to lease or sublease a unit to a participant. Premises. The building or complex in which a contract unit is located, including common areas or grounds. Principal or interested party. This term includes a management agent and other persons or entities participating in project management, and the officers and principal members, shareholders, investors, and other parties having a substantial interest in the HAP contract, or in any proceeds or benefits arising from the HAP contract. Program. The project -based voucher program (see authorization for project -based assistance at 42 U.S.C. 1437f(o)(13)). PHA. Public Housing Agency. The agency that has entered into the HAP contract with the owner. The agency is a public housing agency as defined in the United States Housing Act of 1937 (42 U.S.C. 1437a(b)(6)). Proposal selection date. The date the PHA gives written notice of proposal selection to the owner whose proposal is selected in accordance with the criteria established in the PHA's administrative plan. Rehabilitated housing. Housing units that exist on the proposal selection date, but do not substantially comply with the HQS at that date, and are developed, pursuant to an Agreement between the PHA and owner, for use under the project -based voucher program. Rent to owner. The total monthly rent payable to the owner under the lease for a contract unit. Rent to owner includes payment for any housing services, maintenance and utilities to be provided by the owner in accordance with the lease. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -190 HUD 52530A Page - 2 - of Part 2 Tenant. The person or persons (other than a live -in aide) who executes the lease as a lessee of the dwelling unit. Tenant rent. The portion of the rent to owner payable by the family, as determined by the PHA in accordance with HUD requirements. The PHA is not responsible for paying any part of the tenant rent. 3. PURPOSE a. This is a HAP contract between the PHA and the owner. b. The purpose of the HAP contract is to provide housing assistance payments for eligible families who lease contract units that comply with the HUD HQS from the owner. C. The PHA must make housing assistance payments to the owner in accordance with the HAP contract for contract units leased and occupied by eligible families during the HAP contract term. HUD provides funds to the PHA to make housing assistance payments to owners for eligible families. 4. RENT TO OWNER: HOUSING ASSISTANCE PAYMENTS a. Amount of initial rent to owner The initial rent to owner for each contract unit is stated in Exhibit A, which is attached to and made a part of the HAP contract. At the beginning of the HAP contract term, and until rent to owner is adjusted in accordance with section 5 of the HAP contract, the rent to owner for each bedroom size (number of bedrooms) shall be the initial rent to owner amount listed in Exhibit A. b. HUD rent requirements Notwithstanding any other provision of the HAP contract, the rent to owner may in no event exceed the amount authorized in accordance with HUD requirements. The PHA has the right to reduce the rent to owner, at any time, to correct any errors in establishing or adjusting the rent to owner in accordance with HUD requirements. The PHA may recover any overpayment from the owner. C. PHA payment to owner Each month the PHA must make a housing assistance payment to the owner for a unit under lease to and occupied by an eligible family in Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -191 HUD 52530A Page - 3 - of Part 2 accordance with the HAP contract. 2. The monthly housing assistance payment to the owner for a contract unit is equal to the amount by which the rent to owner exceeds the tenant rent. 3. Payment of the tenant rent is the responsibility of the family. The PHA is not responsible for paying any part of the tenant rent, or for paying any other claim by the owner against a family. The PHA is only responsible for making housing assistance payments to the owner on behalf of a family in accordance with the HAP contract. 4. The owner will be paid the housing assistance payment under the HAP contract on or about the first day of the month for which payment is due, unless the owner and the PHA agree on a later date. 5. To receive housing assistance payments in accordance with the HAP contract, the owner must comply with all the provisions of the HAP contract. Unless the owner complies with all the provisions of the HAP contract, the owner does not have a right to receive housing assistance payments. 6. If the PHA determines that the owner is not entitled to the payment or any part of it, the PHA, in addition to other remedies, may deduct the amount of the overpayment from any amounts due the owner, including amounts due under any other housing assistance payments contract. 7. The owner will notify the PHA promptly of any change of circumstances that would affect the amount of the monthly housing assistance payment, and will return any payment that does not conform to the changed circumstances. d. Termination of assistance for family The PHA may terminate housing assistance for a family under the HAP contract in accordance with HUD requirements. The PHA must notify the owner in writing of its decision to terminate housing assistance for the family in such case. 5. ADJUSTMENT OF RENT TO OWNER a. PHA determination of adjusted rent At each annual anniversary during the term of the HAP contract, the PHA Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -192 HUD 52530A Page - 4 - of Part 2 shall adjust the amount of rent to owner, upon request to the PHA by the owner, in accordance with law and HUD requirements. In addition, the PHA shall adjust the rent to owner when there is a five percent or greater decrease in the published, applicable Fair Market Rent in accordance with 24 CFR 983.302. 2. The adjustment of rent to owner shall always be determined in accordance with all HUD requirements. The amount of the rent to owner may be adjusted up or down, in the amount defined by the PHA in accordance with HUD requirements. b. Reasonable rent The rent to owner for each contract unit, as adjusted by the PHA in accordance with 24 CFR 983.303, may at no time exceed the reasonable rent charged for comparable units in the private unassisted market. The reasonable rent shall be determined by the PHA in accordance with HUD requirements. C. No special adjustments The PHA will not make any special adjustments of the rent to owner. d. Owner compliance with HAP contract The PHA shall not approve, and the owner shall not receive, any increase of rent to owner unless all contract units are in accordance with the HQS, and the owner has complied with the terms of the assisted leases and the HAP contract. e. Notice of rent adjustment Rent to owner shall be adjusted by written notice by the PHA to the owner in accordance with this section. Such notice constitutes an amendment of the rents specified in Exhibit A. 6. OWNER RESPONSIBILITY The owner is responsible for: a. Performing all management and rental functions for the contract units. b. Maintaining the units in accordance with HQS. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -193 HUD 52530A Page - 5. of Part 2 C. Complying with equal opportunity requirements. d. Enforcing tenant obligations under the lease. e. Paying for utilities and housing services (unless paid by the family under the lease). f Collecting from the tenant: 1. Any security deposit; 2. The tenant rent; and 3. Any charge for unit damage by the family. 7. OWNER CERTIFICATION The owner certifies that at all times during the term of the HAP contract: a. All contract units are in good and tenantable condition. The owner is maintaining the premises and all contract units in accordance with the HQS. b. The owner is providing all the services, maintenance and utilities as agreed to under the HAP contract and the leases with assisted families. C. Each contract unit for which the owner is receiving housing assistance payments is leased to an eligible family referred by the PHA, and the lease is in accordance with the HAP contract and HUD requirements. d. To the best of the owner's knowledge, the members of the family reside in each contract unit for which the owner is receiving housing assistance payments, and the unit is the family's only residence. e. The owner (including a principal or other interested party) is not the parent, child, grandparent, grandchild, sister, or brother of any member of a family residing in a contract unit. f The amount of the housing assistance payment is the correct amount due under the HAP contract. g. The rent to owner for each contract unit does not exceed rents charged by the owner for other comparable unassisted units. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -194 HUD 52530A Page - 6 - of Part 2 h. Except for the housing assistance payment and the tenant rent as provided under the HAP contract, the owner has not received and will not receive any payments or other consideration (from the family, the PHA, HUD, or any other public or private source) for rental of the contract unit. The family does not own, or have any interest in the contract unit. If the owner is a cooperative, the family may be a member of the cooperative. S. CONDITION OF UNITS a. Owner maintenance and operation The owner must maintain and operate the contract units and premises to provide decent, safe and sanitary housing in accordance with the HQS, including performance of ordinary and extraordinary maintenance. The owner must provide all the services, maintenance and utilities set forth in Exhibits B and C, and in the lease with each assisted family. b. PHA inspections 1. The PHA must inspect each contract unit before execution of the HAP contract. The PHA may not enter into a HAP contract covering a unit until the unit fully complies with the HQS. 2. Before providing assistance to a new family in a contract unit, the PHA must inspect the unit. The PHA may not provide assistance on behalf of the family until the unit fully complies with the HQS. 3. At least annually during the term of the HAP contract, the PHA must inspect a random sample, consisting of at least 20 percent of the contract units in each building, to determine if the contract units and the premises are maintained in accordance with the HQS. Turnover inspections pursuant to paragraph 2 of this section are not counted towards meeting this annual inspection requirement. 4. If more than 20 percent of the annual sample of inspected contract units in a building fail the initial inspection, the PHA must reinspect 100 percent of the contract units in the building. 5. The PHA must inspect contract units whenever needed to determine that the contract units comply with the HQS and that the owner is providing Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -195 HUD 52530A Page - 7 - of Part 2 maintenance, utilities, and other services in accordance with the HAP contract. The PHA must take into account complaints and any other information that comes to its attention in scheduling inspections. C. Violation of the housing quality standards If the PHA determines a contract unit is not in accordance with the HQS, the PHA may exercise any of its remedies under the HAP contract for all or any contract units. Such remedies include termination, suspension or reduction of housing assistance payments, and termination of the HAP contract. 2. The PHA may exercise any such contractual remedy respecting a contract unit even if the family continues to occupy the unit. 3. The PHA shall not make any housing assistance for a dwelling unit that fails to meet the HQS, unless the owner corrects the defect within the period specified by the PHA and the PHA verifies the correction. If a defect is life threatening, the owner must correct the defect within no more than 24 hours. For other defects, the owner must correct the defect within no more than 30 calendar days (or any PHA - approved extension). d. Maintenance and replacement —owner's standard practice Maintenance and replacement (including redecoration) must be in accordance with the standard practice for the building concerned as established by the owner. 9. LEASING CONTRACT UNITS a. Selection of tenants During the term of the HAP contract, the owner must lease all contract units to eligible families selected and referred by the PHA from the PHA waiting list. (See 24 CFR 983.251.) 2. The owner is responsible for adopting written tenant selection procedures that are consistent with the purpose of improving housing opportunities for very low- income families and reasonably related to program eligibility and an applicant's ability to perform the lease obligations. Consistent with HUD requirements, the owner may apply its own admission procedures in determining whether to admit a family referred Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -196 HUD 52530A Page - 8 - of Part 2 by the PHA for occupancy of a contract unit. The owner may refer families to the PHA, and recommend selection of such families from the PHA waiting list for occupancy of vacant units. 4. The owner must promptly notify in writing any rejected applicant of the grounds for rejection. 5. The PHA must determine family eligibility in accordance with HUD requirements. 6. The contract unit leased to each family must be appropriate for the size of the family under the PHA's subsidy standards. 7. If a contract unit was occupied by an eligible family at the time the unit was selected by the PHA, or is so occupied on the effective date of the HAP contract, the owner must offer the family the opportunity to lease the same or another appropriately -sized contract unit with assistance under the HAP contract. 8. The owner is responsible for screening and selecting tenants from the families referred by the PHA from its waiting list. b. Vacancies 1. The owner must promptly notify the PHA of any vacancy in a contract unit. After receiving the owner notice, the PHA shall make every reasonable effort to refer a sufficient number of families for owner to fill the vacancy. 2. The owner must rent vacant contract units to eligible families on the PHA waiting list referred by the PHA. 3. The PHA and the owner must make reasonable good faith efforts to minimize the likelihood and length of any vacancy. 4. If any contract units have been vacant for a period of 120 or more days since owner notice of vacancy (and notwithstanding the reasonable good faith efforts of the PHA to fill such vacancies), the PHA may give notice to the owner amending the HAP contract to reduce the number of contract units by subtracting the number of contract units (by number of bedrooms) that have been vacant for such period. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -197 HUD 52530A Page - 9 - of Part 2 10. TENANCY a. Lease The lease between the owner and each assisted family must be in accordance with HUD requirements. In all cases, the lease must include the HUD - required tenancy addendum. The tenancy addendum must include, word- for -word, all provisions required by HUD. b. Termination of tenancy The owner may only terminate a tenancy in accordance with the lease and HUD requirements. 2. The owner must give the PHA a copy of any owner eviction notice to the tenant at the same time that the owner gives notice to the tenant. Owner eviction notice means a notice to vacate, or a complaint or other initial pleading used to commence an eviction action under State or local law. C. Family payment 1. The portion of the monthly rent to owner payable by the family ( "tenant rent ") will be determined by the PHA in accordance with HUD requirements. The amount of the tenant rent is subject to change during the term of the HAP contract. Any changes in the amount of the tenant rent will be effective on the date stated in a notice by the PHA to the family and the owner. 2. The amount of the tenant rent as determined by the PHA is the maximum amount the owner may charge the family for rent of a contract unit, including all housing services, maintenance and utilities to be provided by the owner in accordance with the HAP contract and the lease. 3. The owner may not demand or accept any rent payment from the tenant in excess of the tenant rent as determined by the PHA. The owner must immediately return any excess rent payment to the tenant. 4. The family is not responsible for payment of the portion of the contract rent covered by the housing assistance payment under the HAP contract. The owner may not terminate the tenancy of an assisted family for nonpayment of the PHA housing assistance payment. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -198 HUD 52530A Page - 10 - of Part 2 The PHA is only responsible for making the housing assistance payments to the owner on behalf of the family in accordance with the HAP contract. The PHA is not responsible for paying the tenant rent, or any other claim by the owner. d. Other owner charges 1. Except as provided in paragraph 2, the owner may not require the tenant or family members to pay charges for meals or supportive services. Nonpayment of such charges is not grounds for termination of tenancy. 2. In assisted living developments receiving project -based voucher assistance, owners may charge tenants, family members, or both for meals or supportive services. These charges may not be included in the rent to owner, nor may the value of meals and supportive services be included in the calculation of reasonable rent. Non - payment of such charges is grounds for termination of the lease by the owner in an assisted living development. 3. The owner may not charge the tenant or family members extra amounts for items customarily included in rent in the locality or provided at no additional cost to the unsubsidized tenant in the premises. C. Security deposit 1. The owner may collect a security deposit from the family. 2. The owner must comply with HUD and PHA requirements, which may change from time to time, regarding security deposits from a tenant. 3. The PHA may prohibit security deposits in excess of private market practice, or in excess of amounts charged by the owner to unassisted families. 4. When the family moves out of the contract unit, the owner, subject to State and local law, may use the security deposit, including any interest on the deposit, in accordance with the lease, as reimbursement for any unpaid tenant rent, damages to the unit or other amounts which the family owes under the lease. The owner must give the family a written list of all items charged against the security deposit and the amount of each item. After deducting the amount used as reimbursement to the owner, the owner must Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -199 HUD 52530A Page - 11 - of Part 2 promptly refund the full amount of the balance to the family. If the security deposit is not sufficient to cover amounts the family owes under the lease, the owner may seek to collect the balance from the family. However, the PHA has no liability or responsibility for payment of any amount owed by the family to the owner. 11. FAMILY RIGHT TO MOVE a. The family may terminate its lease at any time after the first year of occupancy. The family must give the owner advance written notice of intent to vacate (with a copy to the PHA) in accordance with the lease. If the family has elected to terminate the lease in this manner, the PHA must offer the family the opportunity for tenant -based rental assistance in accordance with HUD requirements. b. Before providing notice to terminate the lease under paragraph a, the family must first contact the PHA to request tenant -based rental assistance if the family wishes to move with continued assistance. If tenant -based rental assistance is not immediately available upon lease termination, the PHA shall give the family priority to receive the next available opportunity for tenant -based rental assistance. 12. OVERCROWDED, UNDER- OCCUPIED, AND ACCESSIBLE UNITS The PHA subsidy standards determine the appropriate unit size for the family size and composition. The PHA and owner must comply with the requirements in 24 CFR 983.259. 13. PROHIBITION OF DISCRIMINATION a. The owner may not refuse to lease contract units to, or otherwise discriminate against any person or family in leasing of a contract unit, because of race, color, religion, sex, national origin, disability, age or familial status. b. The owner must comply with the following requirements: The Fair Housing Act (42 U.S.C. 3601 -19) and implementing regulations at 24 CFR part 100 et seq. ; Executive Order 11063, as amended by Executive Order 12259 (3 CFR, 1959- 1963 Comp., p. 652 and 3 CFR, 1980 Comp., p. 307) (Equal Opportunity in Housing Programs) and implementing regulations at 24 CFR part 107; title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d- 2000d -4) (Nondiscrimination in Federally Assisted Programs) and implementing regulations at 24 CFR part 1; the Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -200 HUD 52530A Page - 12 - of Part 2 Age Discrimination Act of 1975 (42 U.S.C. 6101 -6107) and implementing regulations at 24 CFR part 146; section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations at part 8 of this title; title II of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. ; 24 CFR part 8; section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) and implementing regulations at 24 CFR part 135; Executive Order 11246, as amended by Executive Orders 11375, 11478, 12086, and 12107 (3 CFR, 1964- 1965 Comp., p. 339; 3 CFR, 1966 -1970 Comp., p. 684; 3 CFR, 1966 -1970 Camp., p. 803; 3 CFR, 1978 Comp., p. 230; and 3 CFR, 1978 Comp., p. 264, respectively) (Equal Employment Opportunity Programs) and implementing regulations at 41 CFR chapter 60; Executive Order 11625, as amended by Executive Order 12007 (3 CFR, 1971 -1975 Comp., p. 616 and 3 CFR, 1977 Comp., p. 139) (Minority Business Enterprises); Executive Order 12432 (3 CFR, 1983 Comp., p. 198) (Minority Business Enterprise Development); and Executive Order 12138, as amended by Executive Order 12608 (3 CFR, 1977 Comp., p. 393 and 3 CFR, 1987 Comp., p. 245) (Women's Business Enterprise). C. The PHA and the owner must cooperate with HUD in the conducting of compliance reviews and complaint investigations pursuant to all applicable civil rights statutes, Executive Orders, and all related rules and regulations. 14. PHA DEFAULT AND HUD REMEDIES If HUD determines that the PHA has failed to comply with the HAP contract, or has failed to take appropriate action to HUD's satisfaction or as directed by HUD, for enforcement of the PHA's rights under the HAP contract, HUD may assume the PHA's rights and obligations under the HAP contract, and may perform the obligations and enforce the rights of the PHA under the HAP contract. 15. OWNER DEFAULT AND PHA REMEDIES a. Owner default Any of the following is a default by the owner under the HAP contract: The owner has failed to comply with any obligation under the HAP contract, including the owner's obligations to maintain all contract units in accordance with the housing quality standards. 2. The owner has violated any obligation under any other housing assistance payments contract under Section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f). Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -201 HUD 52530A Page - 13 - of Part 2 3. The owner has committed any fraud or made any false statement to the PHA or HUD in connection with the HAP contract. 4. The owner has committed fraud, bribery or any other corrupt or criminal act in connection with any Federal housing assistance program. 5. If the property where the contract units are located is subject to a lien or security interest securing a HUD loan or a mortgage insured by HUD and: A. The owner has failed to comply with the regulations for the applicable mortgage insurance or loan program, with the mortgage or mortgage note, or with the regulatory agreement; or B. The owner has committed fraud, bribery or any other corrupt or criminal act in connection with the HUD loan or HUD- insured mortgage. 6. The owner has engaged in any drug- related criminal activity or any violent criminal activity. b. PHA remedies If the PHA determines that a breach has occurred, the PHA may exercise any of its rights or remedies under the HAP contract. 2. The PHA must notify the owner in writing of such determination. The notice by the PHA to the owner may require the owner to take corrective action (as verified by the PHA) by a time prescribed in the notice. 3. The PHA's rights and remedies under the HAP contract include recovery of overpayments, termination or reduction of housing assistance payments, and termination of the HAP contract. C. PHA remedy is not waived The PHA's exercise or non - exercise of any remedy for owner breach of the HAP contract is not a waiver of the right to exercise that remedy or any other right or remedy at any time. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -202 HUD 52530A Page - 14 - of Part 2 16. OWNER DUTY TO PROVIDE INFORMATION AND ACCESS REQUIRED BY HUD OR PHA a. Required information The owner must prepare and furnish any information pertinent to the HAP contract as may reasonably be required from time to time by the PHA or HUD. The owner shall furnish such information in the form and manner required by the PHA or HUD. b. PHA and HUD access to premises The owner must permit the PHA or HUD or any of their authorized representatives to have access to the premises during normal business hours and, for the purpose of audit and examination, to have access to any books, documents, papers and records of the owner to the extent necessary to determine compliance with the HAP contract, including the verification of information pertinent to the housing assistance payments or the HAP contract. 17. PHA AND OWNER RELATION TO THIRD PARTIES a. Injury because of owner action or failure to act The PHA has no responsibility for or liability to any person injured as a result of the owner's action or failure to act in connection with the implementation of the HAP contract, or as a result of any other action or failure to act by the owner. b. Legal relationship The owner is not the agent of the PHA. The HAP contract does not create of affect any relationship between the PHA and any lender to the owner or any suppliers, employees, contractors or subcontractors used by the owner in connection with the implementation of the HAP contract. C. Exclusion of third party claims Nothing in the HAP contract shall be construed as creating any right of a family or other third party (other than HUD) to enforce any provision of the HAP contract, or to assert any claim against HUD, the PHA or the owner under the HAP contract. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -203 HUD 52530A Page - 15 - of Part 2 d. Exclusion of owner claims against HUD Nothing in the HAP contract shall be construed as creating any right of the owner to assert any claim against HUD. 18. PHA -OWNED UNITS Notwithstanding Section 17 of this HAP contract, a PHA may own units assisted under the project -based voucher program, subject to the special requirements in 24 CFR 983.59 regarding PHA -owned units. 19. CONFLICT OF INTEREST a. Interest of members, officers, or employees of PHA, members of local governing body, or other public officials 1. No present or former member or officer of the PHA (except tenant - commissioners), no employee of the PHA who formulates policy or influences decisions with respect to the housing choice voucher program or project -based voucher program, and no public official or member of a governing body or State or local legislator who exercises functions or responsibilities with respect to these programs, shall have any direct or indirect interest, during his or her tenure or for one year thereafter, or in the HAP contract. 2. HUD may waive this provision for good cause. b. Disclosure The owner has disclosed to the PHA any interest that would be a violation of the HAP contract. The owner must fully and promptly update such disclosures. C. Interest of member of or delegate to Congress No member of or delegate to the Congress of the United States of America or resident - commissioner shall be admitted to any share or part of this HAP contract or to any benefits arising from the contract. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -204 HUD 52530A Page - 16 - of Part 2 20. EXCLUSION FROM FEDERAL PROGRAMS a. Federal requirements The owner must comply with and is subject to requirements of 2 CFR part 2424. b. Disclosure The owner certifies that: The owner has disclosed to the PHA the identity of the owner and any principal or interested party. 2. Neither the owner nor any principal or interested party is listed on the U.S. General Services Administration list of parties excluded from Federal procurement and nonprocurement programs; and none of such parties are debarred, suspended, subject to a limited denial of participation or otherwise excluded under 2 CFR part 2424. 21. TRANSFER OF THE CONTRACTOR PROPERTY a. When consent is required The owner agrees that neither the HAP contract nor the property may be transferred without the advance written consent of the PHA in accordance with HUD requirements. 2. "Transfer" includes: A. Any sale or assignment or other transfer of ownership, in any form, of the HAP contract or the property; B. The transfer of any right to receive housing assistance payments that may be payable pursuant to the HAP contract; C. The creation of a security interest in the HAP contract or the property: D. Foreclosure or other execution on a security interest; or E. A creditor's lien, or transfer in bankruptcy. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A -205 HUD 52530A Page - 17 - of Part 2 3. If the owner is a corporation, partnership, trust or joint venture, the owner is not required to obtain advance consent of the PHA pursuant to paragraph a for transfer of a passive and non - controlling interest in the ownership entity (such as a stock transfer or transfer of the interest of a limited partner), if any interests so transferred cumulatively represent less than half the beneficial interest in the HAP contract or the property. The owner must obtain advance consent pursuant to paragraph a for transfer of any interest of a general partner. b Transferee assumption of HAP contract No transferee (including the holder of a security interest, the security holder's transferee or successor in interest, or the transferee upon exercise of a security interest) shall have any right to receive any payment of housing assistance payments pursuant to the HAP contract, or to exercise any rights or remedies under the HAP contract, unless the PHA has consented in advance, in writing to such transfer, and the transferee has agreed in writing, in a form acceptable to the PHA in accordance with HUD requirements, to assume the obligations of the owner under the HAP contract, and to comply with all the terms of the HAP contract. C. Effect of consent to transfer The creation or transfer of any security interest in the HAP contract is limited to amounts payable under the HAP contract in accordance with the terms of the HAP contract. 2. The PHA's consent to transfer of the HAP contract or the property does not to change the terms of the HAP contract in any way, and does not change the rights or obligations of the PHA or the owner under the HAP contract. The PHA's consent to transfer of the HAP contract or the property to any transferee does not constitute consent to any further transfers of the HAP contract or the property, including further transfers to any successors or assigns of an approved transferee. d. When transfer is prohibited The PHA will not consent to the transfer if any transferee, or any principal or interested party is debarred, suspended subject to a limited denial of participation, or otherwise excluded under 2 CFR part 2424, or is listed on the Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A-206 HUD 52530A Page - 18 - of Part 2 U.S. General Services Administration list of parties excluded from Federal procurement or nonprocurement programs. 22. SUBSIDY LAYERING a. Ow ner disclosure The owner must disclose to the PHA, in accordance with HUD requirements, information regarding any related assistance from the Federal Government, a State, or a unit of general local government, or any agency or instrumentality thereof, that is made available or is expected to be made available with respect to the contract units. Such related assistance includes, but is not limited to, any loan, grant, guarantee, insurance, payment, rebate, subsidy, credit, tax benefit, or any other form of direct or indirect assistance. b. Limit of payments Housing assistance payments under the HAP contract must not be more than is necessary, as determined in accordance with HUD requirements, to provide affordable housing after taking account of such related assistance. The PHA will adjust in accordance with HUD requirements the amount of the housing assistance payments to the owner to compensate in whole or in part for such related assistance. 23. OWNER LOBBYING CERTIFICATIONS a. The owner certifies, to the best of owner's knowledge and belief, that: 1. No Federally appropriated funds have been paid or will be paid, by or on behalf of the owner, 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 the awarding of the HAP contract, or the extension, continuation, renewal, amendment, or modification of the HAP contract. 2. If any funds other than Federally 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 the HAP contract, the owner must complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in Project -based Voucher Program HAP Contract for New Construction or Rehabilitation Previous editions are obsolete HUD 52530A Page - 19 - of Part 2 80A -207 accordance with its instructions. b. This certification by the owner is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. 24. COMPLETION AND ACCEPTANCE OF CONTRACT UNITS The owner certifies that the contract units have been completed in accordance with the Agreement. Completion and acceptance of the units is subject to the provisions of the Agreement. 25. TERMINATION OF HAP CONTRACT FOR WRONGFUL SELECTION OF CONTRACT UNITS The HAP contract may be terminated upon at least 30 days notice to the owner by the PHA or HUD if the PHA or HUD determines that the contract units were not eligible for selection in conformity with HUD requirements. 26. NOTICES AND OWNER CERTIFICATIONS a. Where the owner is required to give any notice to the PHA pursuant to the HAP contract or any other provision of law, such notice must be in writing and must be given in the form and manner required by the PHA. b. Any certification or warranty by the owner pursuant to the HAP contract shall be deemed a material representation of fact upon which reliance was placed when this transaction was made or entered into. 27. ENTIRE AGREEMENT, INTERPRETATION a. The Agreement and the HAP contract, including the exhibits, is the entire agreement between the PHA and the owner. b. The Agreement and the HAP contract must be interpreted and implemented in accordance with all statutory requirements, and with all HUD requirements, including amendments or changes in HUD requirements during the term of the HAP contract. The owner agrees to comply with all such laws and HUD requirements. Previous editions are obsolete Project -based Voucher Program HAP Contract for New Construction or Rehabilitation 80A-208 HUD 52530A Page - 20 - of Part 2