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Home My WebLink About FULL PACKET_2011-03-07MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, CALIFORNIA FEBRUARY 22, 2011 CLOSED SESSION MEETING CALLED TO ORDER POLICE CHIEF'S CONFERENCE ROOM 60 CIVIC CENTER PLAZA, 4TH FLOOR SANTA ANA, CA 5:23 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA ALVAREZ, Mayor Pro Tern (5:32 P.M.) P. DAVID BENAVIDES (5:25 p.m.) CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO (5:25 p.m.) COUNCILMEMBERS Absent: None STAFF Present: DAVID N. REAM, City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council PUBLIC COMMENTS • Chris Prevatt commented on the accessibility and transparency of Closed Session Meetings. CLOSED SESSION ITEMS 1A CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION pursuant to Government Code Section 54956.9(a) Bruce Guy vs. City of Santa Ana WCAB Case Number(s) AHM0140685, et al. Debra Cook v. City of Santa Ana Orange County Superior Court Case No. 30-2010 00364325 CITY COUNCIL MINUTES 1 OA1 1 FEBRUARY 22, 2011 Yasmin Escobar v. City of Santa Ana United States District Court Case No.CV10-6519 State Farm Fire and Casualty v. City of Santa Ana Orange County Superior Court Case No. 30-2009-00124791 1 B CONFERENCE WITH LEGAL COUNSEL--ANTICIPATED LITIGATION pursuant to Government Code Section 54956.9(c) - 1 matter 1C CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6 Agency Negotiators: Personnel Services Executive Director, Kathie Gonzalez Employee Organizations: Santa Ana Police Officer's Association Santa Ana Service Employees International Union (SEIU) Part-time Civil Service 1 D PUBLIC EMPLOYEE EMPLOYMENT AND APPOINTMENT pursuant to Government Code Section 54957(b)(1) Title: City Attorney 1 E PUBLIC EMPLOYEE PERFORMANCE EVALUATION pursuant to Government Code Section 54957 Title: City Manager CLOSED SESSION REPORT The City Attorney will report on any action(s) to be taken at the Regular Meeting which will begin immediately following the Closed Session Meeting. ADJOURNED THE CLOSED SESSION MEETING AT 6:31 P.M. AND CONVENED TO THE REGULAR OPEN MEETING CITY COUNCIL MINUTES 2 FEBRUARY 22, 2011 1 0A-2 REGULAR OPEN SESSION CALLED TO ORDER POLICE COMMUNITY ROOM 60 CIVIC CENTER PLAZA SANTA ANA, CA 6:37 P.M. ATTENDANCE COUNCILMEMBERS Present: MIGUEL PULIDO, Mayor CLAUDIA ALVAREZ, Mayor Pro Tern P. DAVID BENAVIDES CARLOS BUSTAMANTE MICHELE MARTINEZ VINCENT F. SARMIENTO SAL TINAJERO COUNCILMEMBERS Absent: None PLEDGE OF ALLEGIANCE CLOSED SESSION REPORT PUBLIC COMMENTS STAFF Present: DAVID N. REAM, City Manager JOSEPH STRAKA, Interim City Attorney MARIA D. HUIZAR, Clerk of the Council MAYOR PULIDO See item 19A for Report. Brad Torgan, representing Silverstein Law Firm, stated he was available to answer questions on item 55A. ITEM TAKEN OUT OF ORDER 55A. RESOLUTION CERTIFYING ENVIRONMENTAL IMPACT REPORT FOR SAN LORENZO SEWER LIFT STATION AND APPROVAL OF PROJECT - Public Works Agency Continued from the February 7, 2011 City Council meeting by a vote of 7-0. MOTION: Continue consideration of matter for 45 days (date specific - April 4, 2011 City Council meeting) as requested by staff. CITY COUNCIL MINUTES 3 FEBRUARY 22, 2011 1 0A-3 MOTION: Sarmiento SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) PUBLIC COMMENTS - (Continued) • Bob Stewart, President of Downtown Inc., spoke on behalf of PBID tax supporters, reiterated previous City Council comments regarding Downtown Inc.; expressed Downtown Inc.'s continued support of the enhancement of the Downtown District; • Herb Rose stated that a petition had been filed to disestablish PBID tax and referenced number of signatures, tax amounts, names and percentage relative the petition; urged City Council to make a decision on matter • Ralph Allen commented on an increase on his last tax bill; not supportive of the PBID tax; suggested that City consult with the Appeals Court regarding matter; • Fina Chaves remarked on City ordinance NS-2771, State law authority relative to PBID, and recent PBID correspondence submitted to Council; • Vicky Baxter, Downtown Inc. Manager, reported on the usage, route and schedule of the Downtown Trolley bus; provided a Downtown Trolley bus brochure • Jorge Doffo, President of South Main Merchant's Association, acknowledged funding, and Mr. & Mrs. Peebler's involvement with frontage improvement project in the South Main Corridor; expressed Association's continued interest in participating in future programs; • Nina Jun commented on the merchants, property owners, benefits, funds, and marketing issues relative to the PBID tax matter and urged City Council to disestablish the PBID tax • Connie Hamilton invited residents and Councilmembers to attend the Coml-ink meeting on March 3, 2011 at Southwest Senior Center, with Councilmember Benavides serving as a panel participant CONSENT CALENDAR MOTION: Approve Consent Calendar Items 10A through 25H with the following modifications: • Addition of Closed Session Report (Item 19A) • Councilmember Sarmiento requested a continuance of Item 11A. MOTION: Tinajero SECOND: Sarmiento VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, CITY COUNCIL MINUTES 4 FEBRUARY 22, 2011 1 0A-4 Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) Items removed for separate action or modified are highlighted. Separate actions show the actual vote. Items without votes are adopted as part of the consent motion. ADMINISTRATIVE MATTERS MINUTES 10A REGULAR MEETING MINUTES OF FEBRUARY 7, 2011 - 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 ;TO RUU,TAN AM ® X43 # i ? kTHE SANTA- AN A MUNICIPAL COQ ESTABILI ;W R PROCESS :1NHERE'BY {n Y^ PERSQNS{?tN a VEST [EVIATIONS 'FROM 4 } •w ro THE A 4 IN ; ORDER TO ENSU T ? ?QR UN.I TY;TO'-,USE-.AND. ENJOY f ICf?9"A9eClY Placed on first reading at the February 7, 2011 City Council meeting and approved by a vote of 7-0. Published in the Orange County Reporter on February 11, 2011. MOTION: Per City Council request, continue consideration of matter for 30 days. (March 21, 2011 City Council Meeting) MOTION: Sarmiento SECOND: Alvarez VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) CITY COUNCIL MINUTES 5 FEBRUARY 22, 2011 1 OA-5 NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) 11B ORDINANCE TEMPORARILY DEFERRING COLLECTION OF DEVELOPMENT IMPACT FEES - Planning and Building Agency Placed on first reading at the February 7, 2011 City Council meeting and approved by a vote of 7-0. Published in the Orange County Reporter on February 11, 2011. MOTION: Place ordinance on second reading and adopt. ORDINANCE NO. NS-2814 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA TO TEMPORARILY SUPERSEDE CERTAIN PROVISIONS OF THE SANTA ANA MUNICIPAL CODE AND TO PERMIT DEVELOPERS TO DEFER PAYMENT OF CERTAIN DEVELOPMENT IMPACT FEES BOARDS / COMMISSIONS / COMMITTEES 13A NOMINATED BY COUNCILMEMBER TINAJERO AS THE WARD 6 REPRESENTATIVE FOR A FULL TERM EXPIRING DECEMBER 9, 2014 - Clerk of the Council MOTION: Appoint. Residing Name Board/Commission Ward Maricela Vallejo Board of Recreation and Parks 6 *(Replaces Orea, D.) MISCELLANEOUS ADMINISTRATION 19A CLOSED SESSION REPORT - City Attorney's Office MOTION: Approve stipulation agreement, permanent disability in the amount of $24,300, in the matter of Bruce Guy vs. City of Santa Ana; WCAB Case Number(s) AHM0140685, et al. 19B EXCUSED ABSENCES - None CITY COUNCIL MINUTES 6 FEBRUARY 22, 2011 1 0A-6 19C REQUEST FOR PROPOSALS - PROVIDING PARK LANDSCAPE MAINTENANCE SERVICES - Parks, Recreation & Community Services Agency MOTION: Authorize the Parks, Recreation and Community Services Agency to issue a Request for Proposals (RFP) to qualified companies to provide landscape maintenance services at City parks, bike trails, and various City properties. 19D REQUEST FOR PROPOSALS - ENVIRONMENTAL SERVICES FOR PRIVATE RESIDENTIAL DEVELOPMENT AT 200 EAST FIRST AMERICAN WAY - Planning Building Agency MOTION: Authorize the Planning and Building Agency to send a Request for Proposals (RFP) to qualified consulting firms to provide environmental services for proposed private development at 200 East First American Way. BUDGETARY MATTERS APPROPRIATION ADJUSTMENTS 20A FEDERAL NEIGHBORHOOD STABILIZATION PROGRAM (NSP 3) - Community Development Agency Recommended action approved by the Community Redevelopment and Housing Commission on February 15, 2011, by a vote of 5-0 (Bist absent). MOTION: 1. Approve a substantial amendment to the 2010-2011 Annual Action Plan and authorize its submittal to the U. S. Department of Housing and Urban Development. 2. Authorize the City Manager or his designee, to execute a Neighborhood Stabilization Program 3 application for grant funds in the amount of $1,464,113, subsequent grant agreement and other necessary documents to the NSP 3 Strategy. 3. Approve an appropriation adjustment. (Requires five affirmative votes) CITY COUNCIL MINUTES 7 FEBRUARY 22, 2011 1 0A-7 APPROPRIATION ADJUSTMENT NO. 2011-148 - Approve an Appropriation Adjustment recognizing $1,464,113 in Neighborhood Stabilization Program 3 grant funds and appropriating the same. 4. Authorize the issuance of a Request for Proposals for program developers. SPECIFICATIONS - PURCHASE OF EQUIPMENT AND SERVICES MOTION: Award in accordance with Request for Council Action. (Items 22A through 22C) 22A SPEC. NO. 06-066 - UNLEADED FUEL AND OIL PRODUCTS - Renew the contract with G.P. Resources, Inc. for a one-year period in an annual amount not to exceed $990,000 - Finance & Management Services 22B SPEC. NO. 06-167 - LIBRARY CATALOGING AND PURCHASE OF BOOKS AND MATERIALS - Renew the contract with Brodart Company for a 17-month period in the amount not to exceed $422,000 (Parks, Recreation & Community Services) - Finance & Management Services 22C SPEC. NOS. 08-073, 09-057, 09-058, 09-059 - FIRE HYDRANTS AND ACCESSORIES, WATER WORKS FITTINGS AND SUPPLIES - Renew the contracts for a six-month period to end of 2010-11 fiscal year in an amount not to exceed an aggregate of $200,000 with various contractors (Public Works Agency) - Finance & Management Services Vendor: Location: Cambridge Brass, Inc. Ontario, Canada Ferguson Waterworks Santa Ana H.D. Supply Waterworks Santa Ana S & J Supply Company Santa Fe Springs Inland Water Works Supply San Bernardino Wells Supply Co. Santa Ana 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 25H) CITY COUNCIL MINUTES 8 FEBRUARY 22, 2011 1 0A-8 25A AGMT NO. 2011-034 - PURCHASE AND SALE AGREEMENT FOR BRISTOL STREET CORRIDOR (PROJECT NO. 116744) - With the Clover Family Trust, HSMM 2006 Family Trust, and Reza Fassihi for a portion of property located at 1240 West Seventeenth Street in the amount of $25,000 - Public Works Agency 25B AGMT NO. 2011-035 - RIGHT-OF-WAY PROJECT MANAGEMENT SERVICES FOR CIP PROJECTS - With California Property Specialists, Inc. for an amount not to exceed $250,000 - Public Works Agency 25C AGMT NO. 2011-036 - OFFICE SPACE AT THE SANTA ANA REGIONAL TRANSPORTATION CENTER (SARTC) - Execute an amendment with the County of Orange - Public Works Agency 25D AGMT NO. 2011-037 - COOPERATIVE AGREEMENT FOR COUNTY'S PROPOSITION 1 B ALLOCATION FOR CITY STREETS - With the County of Orange to receive a portion of the County's fourth allocation of Proposition 1 B funds for the rehabilitation of Hazard Avenue from Harbor Boulevard to Euclid Street - Public Works Agency 25E AGMT NO. 2011-038 - MEMORANDUM OF UNDERSTANDING (MOU) - With Police Management Association (PMA) resulting in a three-year contract extension to the FY 2004-10 MOU, covering July 1, 2010 through June 30, 2013 - Personnel Services Agency 25F AGMT NO. 2011-039 - MEMORANDUM OF UNDERSTANDING (MOU) - With Police Officers Association (POA) resulting in a three-year contract extension to the FY 2004-10 MOU, covering July 1, 2010 through June 30, 2013 - Personnel Services Agency 25G AGMT NO. 2011-040 - POLICE DEPARTMENT ADULT CROSSING GUARD PROGRAM - Execute an amendment with All City Management Services Inc. (ACMS) in an amount not to exceed $826,783 - Police Department 25H LANDSCAPE MAINTENANCE SERVICES AT CITY PARKS - Parks, Recreation & Community Services Agency AGMT NO. 2011-041 - Execute an amendment with DMS Facility Services, to provide landscape maintenance services at five park sites, CITY COUNCIL MINUTES 9 FEBRUARY 22, 2011 1 0A-9 extending the term for up to four months in an amount not to exceed $92,040. • AGMT NO. 2011-042 - Execute an amendment with Master Landscape, to provide landscape maintenance services at eight additional park sites, extending the term for up to four months for an additional $36,077 per month for a total agreement amount not to exceed $868,500. • AGMT NO. 2011-043 - Execute an amendment with Merchants Landscape, to provide landscape maintenance services at various parks and public facilities, extending the term for up to five months for an additional $18,762 per month for a total agreement amount not to exceed $913,194. **END OF CONSENT CALENDAR** BUSINESS CALENDAR RESOLUTIONS 55A ITEM TAKEN OUT OF ORDER 55B MEASURE M COMPREHENSIVE TRANSPORTATION FUNDING PROGRAM - SUBMISSION OF GRANT APPLICATIONS IN THE AMOUNT OF $20.73M - Public Works Agency MOTION: 1. Adopt a resolution. RESOLUTION NO. 2011-005 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE SUBMITTAL OF IMPROVEMENT PROJECTS TO THE ORANGE COUNTY TRANSPORTATION AUTHORITY FOR FUNDING UNDER THE COMPREHENSIVE TRANSPORTATION PROGRAM 2. Direct staff to amend the seven-year Capital Improvement Program to incorporate the Comprehensive Transportation Funding Program projects list. CITY COUNCIL MINUTES 10 FEBRUARY 22, 2011 1 0A-10 MOTION: Alvarez VOTE: AYES: SECOND: Bustamante Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) PUBLIC HEARINGS 75A PUBLIC HEARING - AMENDMENT APPLICATION NO. 2010-01 AND CONDITIONAL USE PERMIT NO. 2010-15 TO ALLOW A CARE HOME FOR THE ELDERLY - 1600 EAST FIRST STREET; FILED BY AZURE PLAZA PARTNERS, LLC - Planning and Building Agency Continued from the October 4, 2010 City Council meeting by a vote of 7-0; continued from the December 6, 2010 City Council meeting by a vote of 5-0 (Martinez and Pulido absent) and continued from the February 7, 2011 by a vote of 7-0. Recommended Action approved by the Planning Commission on September 13, 2010, by a 7-0 vote. Legal Notice published in the O.C. Reporter and notices mailed out on September 24, 2010 and November 19, 2010. The Mayor opened the Public Hearing at 7:03 p.m. There were no speakers on the matter and the hearing closed at 7:04 p.m. Councilmember Sarmiento thanked applicant for accepting proposed additional Conditions of Approval. MOTION: 1. Place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS-2815 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ZONING THE PROPERTY LOCATED AT 1600 EAST FIRST STREET FROM SINGLE FAMILY RESIDENCE (R1) AND MULTIPLE-FAMILY RESIDENCE (R3) TO GENERAL COMMERCIAL (C-2) (AA NO. 2010-01) CITY COUNCIL MINUTES 11 FEBRUARY 22, 2011 1 0A-11 2. Adopt a resolution as amended to include additional Conditions of Approval. (Amended resolution to be agendized and considered at the March 7, 2011 City Council Meeting); MOTION: Sarmiento SECOND: Bustamante VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) THE CITY COUNCIL RECESSED AT 7:05 P.M. TO THE COMMUNITY REDEVELOPMENT AGENCY MEETING, FOLLOWED BY THE HOUSING AUTHORITY MEETING, AND RECONVENED AT 7:07 P.M. WITH SAME MEMBERS PRESENT. WORK STUDY SESSION WSA SANTA ANA REGIONAL TRANSPORTATION CENTER PLAN (SARTC) - Public Works Agency Raul Godinez II, Executive Director of Public Works introduced project management staff and had David Chau present item. • Aerial photo of location Catalysts for Improvements at SARTC • Introduction of Streetcar, BRT and increased Metrolink Service (circa 2015) • Enhance pedestrian and bike linkages • Santa Ana Blvd grade separation • Transit Oriented Development (TOD) • Reviewed existing conditions • Future Streetcar service at SARTC • Multi-Modal Grade Separation on Santa Ana Blvd. • Existing Station as heart of future Station District • Master Plan Components • Proposed new Transit Station • Transit Oriented Mixed Use Station • Multi Modal Grade Separation o Pedestrian Plaza CITY COUNCIL MINUTES 12 FEBRUARY 22, 2011 1 0A-12 • New Intermodal Facility 90A 90B SARTC - Next Steps • Schedule meeting to present SARTC MasterPlan concept to community • Present SARTC Master Plan concept to County Board of Supervisors • Present SARTC Master Plan concept to OCTA Board • Develop media campaign to promote SARTC Master Plan COMMENTS CITY MANAGER'S COMMENTS - None CITY COLINCILMEMBER COMMENTS Councilmember Benavides: • Invited all to upcoming events: • ComLink meeting on Thursday, February 24, 2011 at 7:00 p.m. at the Police Community Room; • March 3rd ComLink meeting hosted at the Southwest Senior Center to meet with Ward 4 Neighborhood Association members; • February 23rd at 7:00 p.m., dedication of a sculpture at Santiago Park; • February 25th, dedication of mural at Memorial Park. Councilmember Bustamante: • Thanked "Mothers of Floral Park" for hosting event in Downtown Santa Ana; • Invited all to attend the monthly "Artist Village Art Walk" next Saturday, March 6th; • Chapter 1 restaurant on 3rd and Broadway to be opening soon; and; • Wished son, Max Bustamante, a "Happy 4th Birthday". Councilmember Martinez: • Commented on her recent visit to San Antonio, Texas; indicated that Santa Ana by comparison is well maintained relative to graffiti and shopping carts; thanked City staff for efforts. Councilmember Sarmiento: • Thanked staff for tonight's Work Study presentation; • Commented on movie being filmed at Old Orange County Courthouse; City has historical buildings that have been captured in many movies; CITY COUNCIL MINUTES 13 FEBRUARY 22, 2011 1 0A-13 • Remarked on recent graffiti issues targeting the Governor and U.S. President; media reports incidents in Santa Ana, while it is a County issue. Mayor Pro Tern Alvarez: • Commented on rapidity of graffiti abatement. ADJOURNED- 7:52 P.M. - The next meeting of the City Council is scheduled for Monday, March 7, 2011 at 5:00 p.m. for the Closed Session Meeting immediately followed by the Regular Open Business Meeting in the Council Chamber, 22 Civic Center Plaza, Santa Ana, California. Maria D. Huizar, Clerk of the Council CITY COUNCIL MINUTES 14 FEBRUARY 22, 2011 1 0A-14 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: AMENDMENT APPLICATION NO. 2010-01 AND CONDITIONAL USE PERMIT NO. 2010-15 TO ALLOW A CARE HOME FOR THE ELDERLY AT 1600 EAST FIRST STREET - AZURE PLAZA PARTNERS, LLC, APPLICANT CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Place ordinance for Amendment Application No. 2010-01 on second reading and adopt. 2. Adopt a resolution for Conditional Use Permit No. 2010-15 with additional conditions. CITY COUNCIL ACTION On February 22, 2011, the City Council adopted an ordinance approving Amendment Application No. 2010-01; and adopted a resolution approving Conditional Use Permit No. 2010-15 by a vote of 7:0 to allow a care home for the elderly and change the zoning for a portion of the lot from Single Family Residential (R1) and Multiple Family Residential (R3) to General Commercial (C2) zoning for property at 1600 East First Street. The City Council added 14 additional conditions of approval to ensure that the improvements to the buildings and site were comprehensive. Recommendation No. 2 memorializes the additional conditions. FISCAL IMPACT There is no fiscal impact associated with this action. JA KM. Trevino Executive Director Planning & Building Agency LL:rb LL\reports\pc&za\cup10-15aa10-01 Azure Plaza.cc-2n° reading 11 A-1 11 A-2 ORDINANCE NO. NS-XXXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ZONING THE PROPERTY LOCATED AT 1600 EAST FIRST STREET FROM SINGLE FAMILY RESIDENCE (R1) AND MULTIPLE-FAMILY RESIDENCE (R3) TO GENERAL COMMERCIAL (C-2) (AA NO. 2010-01) THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana does hereby find, determine and declare as follows: A. The Applicant is requesting adoption and approval of Amendment Application No. 2010-01 and Conditional Use Permit No. 2010-15 to allow a care home for the elderly at 1600 East First Street. B. On September 13, 2010, the Planning Commission held a duly noticed public hearing and voted to recommend that the City Council: 1. Adopt an ordinance approving Amendment Application No. 2010-01. 2. Adopt a resolution approving Conditional Use Permit No. 2010-15 as conditioned. C. Amendment Application No. 2010-01 came before the City Council of the City of Santa Ana for a duly noticed public hearing on October 4, 2010. At that time, the City Council continued the matter for another duly noticed public hearing on December 6, 2010. At that time, the City Council continued the matter for another duly noticed public hearing on February 7, 2011. At that time, the City Council continued the matter for another duly noticed public hearing on February 22, 2011, to consider all testimony, written and oral. D. Amendment Application No. 2010-01 has been filed with the City of Santa Ana to zone a portion of the property located at 1600 East First Street from Single Family Residence (R1) and Multiple-Family Residence (R3) to General Commercial (C-2). E. Amendment Application No. 2010-01 is consistent with the General Plan, including but not limited to its goals and policies: Promote a balance of land uses to address basic community needs. Land Use Element Goal No. 1.0. 11 A-3 2. Maintain and foster a variety of residential land uses in the City. Land Use Element Policy 1.5. 3. Promote rehabilitation of commercial properties, and encourage increased levels of capital investment. Land Use Element Policy No. 2.8. 4. Promote development which has a net community benefit, and enhances quality of life. Land Use Element Policy No. 5.1. 5. Self Enriched Housing. Support efforts to increase the availability of supportive services and service-enriched housing for persons with special needs, such as seniors, disabled people, homeless people, families, and persons with medical conditions. Housing Element Policy HE-4.4. F. The City Council has weighed and balanced the general plan's policies and has determined that based upon this balancing that the project at 1600 East First Street is consistent with the purpose of the general plan. G. The City Council also adopts as findings all facts presented in the Request for Council Action dated February 22, 2011 accompanying this matter. For these reasons, and each of them, Amendment Application No. 2010-01 is hereby found and determined to be consistent with the General Plan of the City of Santa Ana and otherwise justified by the public necessity, convenience, and general welfare. H. Conditional Use Permit No. 2010-15 as conditioned came before the City Council on October 4, 2010, December 6, 2010, February 7, 2011, and February 22, 2011. This ordinance incorporates by reference, as though fully set forth herein, the Conditional Use Permit in support of this ordinance and the findings made herein. Section 2. The real property located at 1600 East First Street is hereby zoned from Single Family Residence (R1) and Multiple-Family Residence (R3) to General Commercial (C-2). (AA No. 2010-01) Amended Sectional District Map number 17-5-9 showing the above described change in use district designation, is hereby approved and attached hereto as Exhibit "A" and incorporated by this reference as though fully set forth herein. This decision is based upon the evidence submitted at the above said hearing, which includes but is not limited to: the Request for Council Action dated February 22, 2011 and exhibits attached thereto and the public testimony written and oral, all of which are incorporated herein by this reference. Section 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, 11 A-4 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 )2011. APPROVED AS TO FORM: Joseph Straka City Attorney By: Ryan O. Hodge Assistant City Attorney AYES: NOES: Councilmembers Councilmembers Miguel A. Pulido Mayor ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 11 A-5 11 A-6 ROH - 03/07/11 RESOLUTION NO. 2010-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING CONDITIONAL USE PERMIT NO. 2010-15 AS CONDITIONED TO ALLOW A CARE HOME FOR THE ELDERLY AT 1600 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. Applicant is requesting approval of Conditional Use Permit No. 2010-15 to operate a care home for the elderly in the General Commercial (C2) zoning district for the property located at 1600 East First Street. B. Santa Ana Municipal Code Section 41-377.5 allows care homes for the elderly in the C2 zoning district subject to the issuance of a conditional use permit. C. Conditional Use Permit No. 2010-15 came before the City Council of the City of Santa Ana for a duly noticed public hearing on October 4, 2010. At that time, the City Council continued the matter for another duly noticed public hearing on December 6, 2010. At that time, the City Council continued the matter for another duly noticed public hearing on February 7, 2011. At that time, the City Council continued the matter for another duly noticed public hearing on February 22, 2011. D. The City Council 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. 2010-15 to allow a care home for the elderly: 1. The proposed use will provide a service or facility, which will contribute to the general well being of the neighborhood or the community. The proposed conversion of a 150-room hotel into a 128- room licensed Residential Care Facility for the Elderly (RCFE) will provide a facility that will contribute to the general well being of the community by providing living facilities to a segment of the population in need of supervision and care, but not medical care. While RCFEs are regulated by the California Department of Social Services, conditions have been placed on the operations that will mitigate any potential impacts created by the use 11 A-7 Resolution No. 2010-xx Page 1 of 4 and ensure that the use will not negatively affect the community and the surrounding neighborhoods. 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 conditions of approval will require the facility compliance with State licensing requirements and will ensure the facility maintains a safe environment. The conditions of approval are imposed to mitigate any potential unforeseen impact that could otherwise affect the health, safety, or general welfare of persons residing or working in the vicinity. 3. Will the proposed use adversely affect the present economic stability or future economic development of properties surrounding the area? The site as developed is suitable for the proposed use. The proposed use will not adversely affect the present economic stability or future economic development of the properties surrounding the area. Instead, the proposed use will create a positive economic impact by increasing the number of available jobs in the area and increasing the tax revenues which will protect property values within the community and will contribute to the economic stability of surrounding properties in the area. 4. Will the proposed use comply with the regulations and conditions specified in Chapter 41 for such use? With an approved conditional use permit for a care home in the General Commercial (C2) zone district, the proposed use will be in compliance with the applicable sections of Chapter 41 of the Santa Ana Municipal Code. Conditions of approval are imposed to ensure compliance with the State licensing requirement and to ensure that the proposed RCFE does not transition into an undesired or unintended use. 5. Will the proposed use adversely affect the General Plan or any specific plan of the City? The proposed facility is located in the General Commercial (GC) general plan designation land use designation. The proposed use as conditioned will not adversely affect the General Plan as it will further the goals and policies of the plan and not obstruct their attainment. Specifically, it will further Goals 1, and Policies 1.5, 2.8 and 5.1 of the land use element and Policy HE-4.4 of the Housing Element The project site is not located within any specific plans. 11 A-8 Resolution No. 2010-xx Page 2 of 4 E. In accordance with the California Environmental Quality Act, the recommended action is exempt from further review per Section 15332, class 32. This class 32 exemption allows infill development projects occurring on lots less than five acres, where the site has no value as a habitat for endangered species, is adequately served by all required utilities and public services, will not result in any significant effects relating to traffic, noise, air and water quality and is consistent with the applicable general plan, zoning and other policies. Categorical Exemption Environmental Review No. 2008-140 will be filed for this project. Section 3. The City Council of the City of Santa Ana hereby, approves Conditional Use Permit No. 2010-15 as conditioned in Exhibit "A" attached hereto and incorporated herein. ADOPTED this day of , 2011 by the following vote: AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTENTIONS: Commissioners: Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, City Attorney By: Ryan O. Hodge Assistant City Attorney 11 A-9 Resolution No. 2010-xx Page 3 of 4 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the City Council, do hereby attest to and certify the attached Resolution No. to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the City Council City of Santa Ana 11A-10 Resolution No. 2010-xx Page 4 of 4 Conditions for Approval for Conditional Use Permit No 2010-15 Conditional Use Permit No. 2010-15 is approved subject to compliance, to the reasonable satisfaction of the City Council, 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. A. Planning Division 1. All proposed site improvements must conform to the Site Plan Review DP No. 2008- 47, except that Exhibits 4 and 6 of Conditional Use Permit No. 2010-15 shall replace the site plan and elevations of the Site Plan submittal. 2. Any amendment to this conditional use permit must be submitted to the Planning Division and Police Department for review. At that time, staff will determine if administrative relief is available or the conditional use permit must be amended. 3. The facility shall obtain and maintain a license by the State for a Residential Care Facility for the Elderly (RCFE). 4. The number of residents shall be limited to 147. 5. The facility shall provide at a minimum the following amenities as shown on page 3 and 4 of Exhibit 5: a. A fully furnished meeting room with a minimum capacity of 30 occupants. b. A business office equipped with computers with internet access, public telephone, fax and copier machines, and other incidental equipment necessary to support an office environment. C. A library furnished with tables, chairs and at least one computer. d. A fully furnished theater with a minimum capacity of 15 occupants. e. A fully furnished card/game room with a minimum capacity of 30 occupants. Resolution No. 2010-xx Page 5 of 4 11A-11 September 13, 2010 PAGE 2OF5 A fully furnished and equipped arts and crafts room with a minimum capacity of 15 occupants. g. A fully furnished billiards/sports room with a minimum of two playing stations. h. A fully furnished dance studio with a minimum capacity of 15 occupants. A fully furnished worship area with a minimum capacity of 30 occupants. Private resident storage will be provided on the seventh and eighth floor. k. A common laundry facility with a minimum of eight washing machines and corresponding dryers and ironing/folding area. Vehicular transportation with a minimum capacity of 20 passengers to provide free shuttle to the residents to destinations within 15 miles of the location. M. A fully equipped exercise room. n. A Therapy pool. o. A swimming pool with seating and shade. 6. Each amenity or service, including the shuttle service shall be available to the residents daily for a period of not less than 12 hours. Programmed activities shall be available to the residents daily for a period of not less than four hours. 7. An amenity plan showing the interiors and high quality and durable finishes, furnishing and proposed equipment shall be submitted to the Planning Division for review and approval. 8. No kitchen facilities or appliances shall be allowed in the resident rooms, as these are rooms in a care home environment and not residential units. 9. Residential units shall not be allowed on the site. 11A-12 September 13, 2010 PAGE 3 OF 5 10. No banquet facilities as defined by SAMC Section 41-25, medical marijuana dispensary as defined by Section 41-121 or massage establishment as defined by Section 41.1751.2 shall be allowed on the site. 11. The entry plazas shall be designed with shade trees, outdoor seating, decorative paving, landscape planters and a water feature. A plan shall be submitted to the Planning Division for review and approval. 12. The outdoor seating area adjacent to the restaurant shall be designed with shade trees, decorative paving, landscape planters and trellises. The landscape planter between the restaurant building and the street shall be fully landscaped. A plan showing durable and high quality materials shall be submitted to the Planning Division for review and approval. 13. Prior to issuance of a building permit, the applicant shall submit a final landscape plan to the Planning Commission for review and approval (Recommended by the Planning Commission on September 13, 2010). 14. In order to develop the entry plaza as shown on pages 3 and 5 of Exhibit 6, the Fire Department connections, double check valves and any other appurtenances located within the entry plaza shall be relocated as needed. (Recommended by the City Council on February 22, 2011). 15. The parking lot shall be fully repaired, including but not limited to the repair of the asphalt base prior to re-striping. (Recommended by the City Council on February 22, 2011). 16. The wood fence located on the east property line and the chain link fence located on the south property line shall be replaced with wrought iron or decorative masonry. (Recommended by the City Council on February 22, 2011). 17. All wrought iron fencing on the site, including but not limited that around the pool area, shall be replaced with new wrought iron to match the new proposed fencing. (Recommended by the City Council on February 22, 2011). 18. Trash enclosure gates shall be replaced with new metal gates. (Recommended by the City Council on February 22, 2011). 11A-13 September 13, 2010 PAGE 4 OF 5 19. All existing signage on the site, including convenience and directional signs, shall be removed. New signage shall comply with SAMC. (Recommended by the City Council on February 22, 2011). 20. All guardrails on the tower building shall be replaced with new guardrails to complement the new storefront. (Recommended by the City Council on February 22, 2011). 21. All glazing, mullions and storefront on the restaurant shall be replaced with glazing, mullions and storefront to match the new storefront on the tower. (Recommended by the City Council on February 22, 2011). 22. The three restaurant entries shall be designed with arches clad in tile or durable weather resistant natural wood. (Recommended by the City Council on February 22, 2011). 23. All exterior doors located on the first floor, including but not limited to service doors for the tower and restaurant, shall be replaced with new metal doors. (Recommended by the City Council on February 22, 2011). 24. Exterior materials, colors and finishes shall be subject to approval by the Planning Division. (Recommended by the City Council on February 22, 2011). 25. All roof mounted mechanical equipment shall be screened by a solid screen designed to be compatible with the building architecture. All other mechanical equipment and other site appurtenances shall be screened with landscape. (Recommended by the City Council on February 22, 2011). 26. All exterior exposed conduits on the restaurant and tower building shall be removed and re-routed to the interior of the building. (Recommended by the City Council on February 22, 2011). 27. All exterior building lighting fixtures shall be replaced with fixtures of like design to the building architecture. (Recommended by the City Council on February 22, 2011). 28. The satellite dish, and all mechanical equipment and other site appurtenances not in use shall be removed. (Recommended by the City Council on February 22, 2011). 11A-14 September 13, 2010 PAGE 5OF5 B. Police Department The existing building and parking lot 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's lighting, door/window locking devices and addressing be upgraded to current code standards. Lighting standards cannot be located in required landscape planters. 2. Provide minimum 100 square inch windows in all doors leading into common areas such as laundry facilities, rec. rooms etc. 3. Provide minimum 12-inch shatterproof convex mirrors in all elevators. 4. State licensed uniformed security guards are required 24/7 at the staffing level of one guard in a fixed position on the first floor at a guard station. One guard is to conduct roving activities within the building. One guard is required to patrol the parking lot. 5. This conditional use permit shall be reviewed by the Police Department after six months and one year, and annually thereafter for modifications or violations of any of the conditions. 11A-15 PROOF OF SERVICE (C.C.P. SECTION 1013(a), 2015.5) STATE OF CALIFORNIA, COUNTY OF ORANGE am employed in the aforesaid county; I am over the age of eighteen and not a party to the within action; my business address is 20 Civic Center Plaza, Ross Annex 2nd Santa Ana, California 92702. I served the foregoing document described as: in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: [ ] I caused to be delivered by courier, such envelope by hand to the office of the addressee(s). [X] BY MAIL I am readily familiar with my employer's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ ] The document was transmitted by facsimile transmission and was reported as complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on [date] at Santa Ana, California. MARIA D. HUIZAR 11A-16 MEMORANDUM City Council Meeting Date: March 7.2011 David N. Ream To: City Manager Raul Godinez II, x cutive Director From: Public Works Agen y Date: February 24, 2011 Subject: Notification that City Engineer is Reviewing Final Tract Map No. 17071 for Approval Pursuant to Section 34-183 of the Santa Ana Municipal Code, this memo provides notice that the City Engineer has received Final Tract Map No. 17071 (City Tract Map No. 2007-04), for 3321 South Fairview Street (Exhibit 1), from the owner, William Lyon Homes, Inc., a California Corporation, and is in the process of reviewing the map for final approval. The lots of this map are zoned for residential use (Specific Development No. 81). The Tentative Tract Map No. 2007-04 was approved by the City Council on November 5, 2007. The City Engineer shall approve or disapprove this map within 10 days after the City Council meeting of March 7, 2011. cc: Mayor and City Council City Manager eputy City Manager for Development Services Clerk of the Council TADevelopment ServiceskSubdivision\Memos\FinalTractmapl7071 Review Notice_03_07_11 AC.doc 17A-1 ALTON AVENUE 21.26' 21.20' LOT 'A' 35.25' 110.29' 95.60' 75.00' 102.01' 91.43' 27.00' 27.07' is 27.10' 43.60' 64.45' 42.05' 21.20' 20.67' o v 42.05' C\j i c LOT 1 N Q N LOT 6 l'- U-1 W F- N 3 W a LL W m M M M N O • O ^ 135.45' 135.07' OT 'C' +F L315-60' LOT 5 0 in 0 °o LOT 2 0 M co Q to l0 N 137.07' 10.00' 130.26' 33.2o ?o ? LOT 4 °N LOT 3 tG N 122.247 8 07' 142.58' 184.87' 10.00' MACARTHUR BOULEVARD BOUNDARY DIMENSION EXCLUDE STREET EASEMENT EXHIBIT 1 SANTA ANA Title: City W A city Council TRACT MAP N 0. 17 0 71 Agenda Date: Haut rays wwcxcr March 7, 2011 3321 49JT- FAIRVIEW STREET F- W W F- N W J J Z W W Cr 0 N Z REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: DESTRUCTION OF OBSOLETE CITY RECORDS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1" Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Approve the requests for the destruction of obsolete records from various City departments in accordance with the retention schedule outlined in City Council Resolution 2006-045. DISCUSSION On July 3, 2006, the City Council approved a resolution outlining the records retention schedule for the agencies, departments, and offices of the City. City records are governed by the Public Records Act which provides the time in which records need to be kept. The Citywide Records Team compiled the Citywide Records Retention Schedule which sets forth the retention period for a particular record. The Municipal Code requires that the destruction of a City record be approved by the City Attorney. In accordance with Section 5B of the Citywide Records Retention Schedule Resolution, the City Attorney has approved the list of records proposed for destruction from the departments as outlined in the attached documents. FISCAL IMPACT There is no fiscal impact associated with this item. 19C-1 19C-2 MEMORANDUM To: Laura Sheedy, Assistant City Attorney City Attorney's Office From: Mark Lawrence, Executive Assistant to the City Manager Date: March 1, 2011 Re: REQUEST FOR DESTRUCTION OF RECORDS The City Manager's Office requests your consent to destroy city records on the attached listing, in accordance with the retention schedule outlined in City Council Resolution 2006-045. Thank you. 19C-3 CITY OF SANTA ANA OBSOLETE RECORDS DESTRUCTION SCHEDULE CITY MANAGER'S OFFICE 2011 RECORD RECORD RECORD EXPIRATION CATEGORY SERIES DESCRIPTION DATES Chronological Files Staff Memoranda and Correspondence Marchl, 2009 and prior Correspondence/ Marchl. 2009 Chronological Files Councilmember Self-explanatory and prior Council Requests Mayor Inquiries processed for Mayor Marchl 2009 and prior Wards 1 through 6 Inquiries processed for Councilmembers Marchl. 2009 and prior Correspondence General Correspondence Self-explanatory Marchl, 2009 and prior Staff Inquiries processed for Staff Marchl, 2009 and prior Monthly Status City Manager Self-explanatory March' 2009 Reports and prior Payroll Records Council/Staff Self-explanatory March l. 2009 and prior Marchl 2009 Travel Folders Council/Staff Self-explanatory and prior APPROVE: David N. Ream Date City Manager RECORDS DESTROYED: Volume in Cubic Feet Weight in Pounds CONSENT: Joseph Straka Date Interim City Atto ney AUDITED BY: Mark Lawrence Date Assistant to the City Manager 19C-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: QUARTERLY REPORT FOR HOUSING DIVISION PROJECTS AND ACTIVITIES CITY MANAGER RECOMMENDED ACTION Receive and file. CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s' Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its regular meeting on February 15, 2011, by a vote of 5:0 (Bist absent), the Community Redevelopment and Housing Commission approved the recommended action. DISCUSSION This status report for the quarter ending on December 31, 2010, provides statistics for the day-to- day affordable housing activities of the City and the Community Redevelopment Agency. The report is divided into three sections: Loan Activity, Loan Portfolio Management and Monitoring, and Development Projects. Loan Activity Applications The Housing Division offers several different programs. The loans offered include homebuyer down payment assistance and rehabilitation loans for historic single family, single family and mobile homes. Mobile home loans are offered as forgivable grants and are used to cover the cost of essential repairs. The Housing Division reviews applications to determine which program best fits the needs of the applicants. Applications are mailed out and received for these programs on a continuing basis. 19D-1 Quarterly Report for Housing Division Projects and Activities March 7, 2011 Page 2 Chart 1 shows the number of applications sent out by type during the second quarter of the fiscal year. Of these applications sent, one application was received this quarter but denied due to insufficient equity in the home to qualify under the program guidelines. Loan Underwriting and Approval Process Chart 1: Loan Applications Homebuyer Adk Assistance, 21 Single Family Rehab 34 Mobile Home, 4 In this process, staff reviews applicant eligibility, verifies income and assets, and oversees underwriting to determine eligibility per program guidelines. In addition, staff conducts an inspection of the unit, prepares a work write up to determine rehabilitation work to be performed, and develops a budget for the work. Due to the complex funding requirements, applicants may be in underwriting several months. The length of time in underwriting is largely Chart 2: Loans Approved determined by the applicant's timely submittal of the necessary paperwork. 10 Once approved, staff prepares all 8 necessary loan documents, makes 6 arrangements for execution, and reserves the required loan funds. The 4 following information is on the loans 2 made this quarter Chart 2 shows the . 0 number of loans approved during the second quarter of the fiscal year. Single Family Rehab Home buyer Assistance Address Loan Amount Loan Type 333 E Berkeley St $10,000 Homebu er Assistance 1020 N Flower St $10,000 Homebu er Assistance 1422 S Shelton St $18,000 Homebu er Assistance 1422 S Shelton St $17,000 Homebu er Assistance 1090 Cabrillo Park Dr $10,500 Homebu er Assistance 1090 Cabrillo Park Dr $15,900 Homebu er Assistance 1241 W Camden PI $10,000 Homebu er Assistance 2607 W Northwood Ave $12,300 Homebu er Assistance 601 E 20 St $75,000 Single Family Rehabilitation 601 E 20 St $60,000 Single Family Rehabilitation 1921 N Sher Ln #102 $25,900 Homebu er Assistance 19D-2 Quarterly Report for Housing Division Projects and Activities March 7, 2011 Page 3 Construction Process During this phase, homeowners are guided through an open selection of contractors to complete the work on their homes. Each homeowner is given a list of contractors that have been screened by staff for insurance and bonding requirements. However, homeowners are allowed to select any contractor that is licensed and meets insurance and bonding requirements. Staff assists the homeowners in selection of a contractor, monitors the construction work, approves payments to contractors, and tracks expenditures to ensure they do not exceed available funds. Multifamily projects may involve additional issues such as compliance with prevailing wage requirements and/or Davis-Bacon. As of December 31, 2010, there were 34 multifamily units and four single family units for a total of 38 units underway. Loan Portfolio Management and Monitoring The Housing Division is responsible for ensuring the integrity of the residential loan portfolio. As of the end of the second quarter, the principal balance was $74,730,818. This is comprised of 455 loans of which 395 are deferred or residual receipt payment loans. The loan portfolio generated $174,962.29 in payments of principal and interest during the first two quarters of the fiscal year. As part of the requirements for these funds, staff must monitor the owner-occupancy for single family homes that have received loans and the physical quality of units in the rental projects with long-term affordability covenants. During the first two quarters of the fiscal year, 110 letters were sent to homeowners to verify that they continue to occupy the home as their primary residence. Under the terms of the HOME program, units assisted with these funds must periodically be inspected for compliance with the City's building codes. During the first two quarters of the fiscal year, staff conducted the necessary inspections for four HOME-assisted projects containing a total of 140 units. Of the 140 units, only a sampling is required to be inspected. This quarter, 14 units were inspected and six units failed inspection. Project owners are required to make necessary repairs for all units found to be out of compliance. Development Projects 703 N. Lacy Street On January 5, 2009, the City Council and Agency approved loans to OHDC and C&C Development for acquisition and rehabilitation of a 27-unit building at 703 N. Lacy Street. Rents are restricted to extremely low- and very low-income households. Rehabilitation on this project is complete and 26 units have been leased to income qualified residents. The developer is working with its lender and tax credit equity investor to convert the construction loan to a permanent loan. The estimated conversion date is April 2011. 19D-3 Quarterly Report for Housing Division Projects and Activities March 7, 2011 Page 4 NSP 1 Program The federal Neighborhood Stabilization Program (NSP) is intended to target and stabilize communities hardest hit with foreclosures. To date, the City has received two NSP awards. The first award (NSP 1) came through a noncompetitive process in the amount of $5,795,155. Under its terms, all grant funds must be obligated by September 5, 2010, and expended by March 26, 2013. In addition, NSP grantees must expend at least 25% of the funds on households who are very low-income. However, the City has exceeded this requirement by obligating $2.45 million or 42% of its grant to very low-income households. Currently, the City has expended $2.1 million or 32% of its funds dedicated to projects to serve very low-income households. As of the end of the second quarter, the City had obligated all of its NSP 1 funds in August 2010 and had expended $6,054,509.22 or 104.5%, which includes program income generated by sales. NSP 1 includes the following four programs: Down Payment Assistance Program, Single-Family Acquisition-Rehabilitation Program, Historic/Condominium Acquisition-Rehabilitation Program and a Multifamily Acquisition-Rehabilitation Program. ANR Industries, the intermediary selected to implement homeownership programs including the Single-Family and Historic/Condominium, is responsible for the acquisition, rehabilitation, and resale of the foreclosed units. These homes are sold to families with incomes up to 120% of the area median (AMI). As of the end of the second quarter, ANR had used NSP 1 funds to acquire 33 single-family homes for rehabilitation and resale to qualifying families. ANR has spent more than $3.2 million in NSP 1 funds and has leveraged an additional $4.4 million in private funds to make these affordable units available. As of the end of the second quarter, the following activity had occurred: 30 Chart 3 shows the status of all 25 properties purchased with NSP 1 20 funds. 15 10 0 Chart 3: NSP 1- Status of All Single Family Properties Rehabilitation 19D-4 Acquisition Under Resale Sold Quarterly Report for Housing Division Projects and Activities March 7, 2011 Page 5 NSP 1- Properties Available for Sale Address Affordability Level 1001 W Stevens Ave #140 Moderate 1046 Cabrillo Park Dr #A Moderate 1345 Cabrillo Park Dr #F09 Moderate 1345 Cabrillo Park Dr #K05 Moderate 1345 Cabrillo Park Dr #R04 Moderate NSP 1 - Single Family Properties Sold During the Quarter Property Address Silent 2" Homebu er Income Level 1090 Cabrillo Park Dr #E $15,900 Low 1921 N Sher Ln #102 $25,900 Low 1422 S Shelton St $17,000 Moderate 1020 N Flower St $10,000 Moderate 333 E Berkeley St $10,000 Moderate The partnership of OHDC and C&C Development was selected to implement the Multifamily Acquisition/Rehabilitation Program. To date, the partnership has used $1.4 million in NSP 1 funds to acquire a 14-unit multi-family property at 1410 N. Durant Street. The rehabilitation is complete and the property is currently being leased and 13 units are occupied. The partnership also used $655,000 in NSP 1 funds to acquire two vacant parcels at 605-611 E. Washington Avenue on which they will construct approximately 38 affordable rental units. They have re-submitted plans for development review. Both projects will be targeted to households at or below 50% of AMI. NSP 2 Program The City's second award (NSP 2) for $10 million was received through a highly competitive process in which only 15 local government agencies were successful. Most awards were made to nonprofit consortiums. Under the terms of this award, there is no obligation deadline to meet; however, there is an expenditure deadline. Fifty percent of the funds must be expended by February 11, 2012, and the remainder by February 11, 2013. As of the end of the second quarter, the City had expended $2,391,584 or 23.9% of the funds. NSP 2 implements three programs: Down Payment Assistance Program, Single-Family Acquisition-Rehabilitation Program, and a Multifamily Acquisition-Rehabilitation Program. ANR has spent more than $2.2 million in NSP 2 funds and has leveraged an additional $2.4 million in private funds to make these affordable units available. As of the end of the second quarter, the following activity had occurred- 19D-5 Quarterly Report for Housing Division Projects and Activities March 7, 2011 Page 6 NSP 2 - Single Family Properties Purchased During the Quarter Address NSP Funds for Acquisition 503 S Garnse St $232,180.81 214 N Bush St $73,613.66 1520 W 6 St $112,267.81 2075 S Van Ness Ave $126,111.46 1104 S Raitt St $173,067.33 2142 S Park Dr $180,822.06 2201 S Parton St $163,830.77 1231 S Baker St $177,505.04 1510 W 12 St $162,682.74 Chart 4: NSP 2 - Status of All Single Family Properties 14 Chart 4 shows the status of all 12 properties purchased with NSP 2 10 8 funds. 6 4 0 Acquisition Under Resale Sold Rehabilitation NSP 2 - Sinqle Family Properties Sold Durinq the Quarter Prope!ty Address Silent 2" Income Level 1241 W. Camden PI ±:?: $10,000 Moderate As required by regulations, comprehensive detailed quarterly reports on the City's NSP Programs (NSP 1 and NSP 2) are posted on the City's website at http://www.santa-ana.org/cda/NSP.asp. Scattered Sites On October 9, 2009, the Agency released a Request for Qualifications for the selection of qualified developers for 13 Agency-owned parcels. On December 21, 2009, the Agency selected three developers for the project. Habitat for Humanity of Orange County was selected as developer for 19D-6 Quarterly Report for Housing Division Projects and Activities March 7, 2011 Page 7 single family housing at sites identified as 719 & 812 N. Concord Street; 1114, 1121, S. Cypress Avenue; 1314 Eastwood Avenue; 4809 W. Edinger Avenue; 4010 & 4018 W. McFadden Avenue; 4106 & 4110 W. McFadden Avenue; 717 E. Third; and 1029 McLean Drive for a total of 17 single family units. Staff is finalizing the Disposition and Development Agreement (DDA) with presentation to the Agency for approval in March 2011. Also approved was OHDC and C&C Development as the developer for multi-family housing at sites identified as 217, 219 & 435, 437 S. Birch Street; 2034 & 2038 N. Bush Street; and N. Spurgeon & E. 22nd Street. They have submitted plans for the Birch Street and Bush Street properties. Their DDA was approved on September 7, 2010 for all sites except North Spurgeon, which is still being negotiated. Finally, the Agency selected Hope Builders, a Division of Taller San Jose, as developer for two single family homes on a site identified as 542 E. Central Avenue. This site will afford Hope Builders further training in the construction of single family dwellings and assist in its mission of providing high quality construction jobs for local Santa Ana residents who are graduates of Taller San Jose. The Developer has submitted its plans into the City's site plan review process, while Agency staff continues working with them on its DDA. Station District On June 7, 2010, after an extensive public outreach process which garnered a great deal of input on community needs and issues, the City Council/Redevelopment Agency approved several monumental actions to facilitate the development of an affordable housing project, located in the 94-acre Station District, that will enhance the Lacy neighborhood and support the transit vision for the area. The project is situated along a corridor and is a key connection from the 1-5 freeway into the Downtown and will also serve as a major transportation link for the planned Go Local Fixed Guideway System. Related California/Griffin Realty Corporation, the master developer selected last year after a wide-reaching Request for Proposals process, helped spearhead the outreach efforts with support from the City. The project calls for the construction of approximately 112 rental units and 32 for sale units on a total of approximately six acres of land. The City is also looking to provide a community center and park/open space along with the developer project. Of the 112 rental units, all but two (manager units) will be available to persons at or below 50% of the adjusted median income (AM[); and of those, 20% of the units will be offered to residents at 30% AMI. This amount of affordability exceeds that required by State law, as well as the requirements imposed for state tax credit financing. The term of affordability will be for 55 years. Additionally, six of the for-sale units will be offered at 120% AMI. The estimated market price for a three bedroom home in the Lacy Neighborhood today is approximately $290,000. The 26 market rate homes will be sold between $250,000 and $300,000. The affordable homebuyers (120% AMI) will be provided a $30,000 silent second loan, thus reducing the sales price to the range of $220,000 and $270,000. 19D-7 Quarterly Report for Housing Division Projects and Activities March 7, 2011 Page 8 The first component of the developer project would be 74 podium apartment units to be rented to extremely-low and very-low income households. The 74 unit project was submitted for State tax credit financing in July 2010; however, the application had to be rescinded due to a lawsuit being filed on the EIR for the project and larger Transit Zoning Code area. It is hoped that the developer will be able to resubmit for tax credits in March 2011. If successful in securing the credits, construction will commence in October 2011 and take approximately 18 months to complete. The for-sale project is slated to commence construction in mid 2011 and be completed within 18 months. FISCAL IMPACT There is no fiscal impact associated with this action. Nancy T. E ards Interim Executive Director Community Development Agency NTE/SLB/MA/mlr 19D-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING FY 2010 HOMELAND SECURITY GRANT PROGRAM AND RELATED AGREEMENTS CITY MANAGER CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1St Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENDED ACTION 1. Authorize the City Manager and the Chief of Police to enter into the attached Sub-grantee agreement with the City of Anaheim for reimbursement of funds expended for the purchase of equipment, services, and training authorized under the FY 2010 Urban Areas Security Initiative in an amount not to exceed $3,421,844. 2. Approve an Appropriation Adjustment recognizing the FY 2010 Urban Areas Security Initiative in the amount of $3,421,844 in revenue account (no. 12514002-52001) and appropriate same in the FY 2010 Urban Areas Security Initiative Program Grant expenditure accounts (no. 12514491-various). DISCUSSION The United States Department of Homeland Security has developed the Urban Areas Security Initiative funding program (UASI). UASI provides funds to local emergency first responders to enhance security and overall preparedness to prevent, respond to, and recover from acts of terrorism. The grant specifically provides funding for anti-terrorism equipment, planning, training, exercises and technical assistance. In FY 2006 the United States Department of Homeland Security combined the Anaheim UASI and the Santa Ana UASI into a single Urban Area. The City of Santa Ana now shares grant administrative responsibilities with the City of Anaheim, annually alternating the function of lead administrative agency. The City of Anaheim is the lead agency for FY 2010 funding and is therefore the UASI Grantee, with the City of Santa Ana designated as a sub-grantee through Anaheim. The City of Santa Ana Police and Fire Departments have worked with the City of Anaheim, the County of Orange, and cities within the Anaheim/Santa Ana Urban Area to determine current capabilities and needs and have established goals and objectives for the Anaheim/Santa Ana Urban Area. The City of Santa Ana will work in collaboration with the City of Anaheim to implement complimentary strategies for responding to acts of terrorism. 20A-1 FY 2010 UASI Transfer Agreement March 7, 2010 Page 2 FISCAL IMPACT Approval of the Appropriation Adjustment will increase revenues in the FY2010 UASI Grant account (no. 12514002-52001) by $3,421,844 and appropriate same amount in the FY2010 UASI Grant expenditure accounts (no. 12514491-various). C?-c2JC/ c??rF r,?tcTE?S Paul M. Walters Chief of Police Police Department Exhibits: FY 2010 UASI Transfer Agreement APPROVED AS TO FUNDS AND ACCOUNTS: 7 Francisco Gutierrez Executive Director Finance & Management Services Agency 20A-2 AGREEMENT SUB-RECIPIENT: CITY OF SANTA ANA City Contract Number 1 20A-3 TABLE OF CONTENTS Section Description I INTRODUCTION §101. Parties to the Agreement §102. Representatives of the Parties and Service of Notices §103. Independent Party §104. Conditions Precedent to Execution of this Agreement 11 TERM AND SERVICES TO BE PROVIDED §201. Time of Performance §202. Use of Grant Funds §203. Condition of Eligibility III PAYMENT §301. Payment of Grant Funds and Method of Payment IV STANDARD PROVISIONS §401. Construction of Provisions and Titles Herein §402. Applicable Law, Interpretation and Enforcement §403. Integrated Agreement §404. Excusable Delays §405. Breach §406. Prohibition Against Assignment or Delegation §407. Permits §408. Non Discrimination and Affirmative Action §409. Bonds Paqe 3 3 4 4 5 5 7 8 9 9 9 9 10 10 10 10 11 20A-4 TABLE OF CONTENTS Section Description Page §410. Indemnification 11 §411. Conflict of Interest 11 §412. Restriction on Disclosures 13 §413. Statutes and Regulations Applicable to All Grant Contracts 13 §414. Federal, State, and Local Taxes 20 §415. Inventions, Patents and Copyrights 20 §416. MBEA BE 22 V DEFAULTS, SUSPENSION, TERMINATION, AND AMENDMENTS §501. Defaults 23 §502. Amendments 23 V ENTIRE AGREEMENT §601. Complete Agreement 24 §602. Number of Pages and Attachments 24 Execution (Signature) Page 25 EXHIBITS Exhibit A Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transactions Exhibit B Certification Regarding Lobbying Exhibit C Grant Assurances Exhibit D Reimbursement Request for Grant Expenditures H 20A-5 Agreement Number: AGREEMENT FOR TRANSFER OR PURCHASE OF EQUIPMENT/SERVICES OR FOR REIMBURSEMENT OF TRAINING COSTS FOR FY2010 URBAN AREAS SECURITY INITIATIVE (UASI) BETWEEN THE CITY OF ANAHEIM AND THE CITYOF BUENA PARK THIS AGREEMENT is made and entered into this 8 day of December, 2010, by and between the CITY OF ANAHEIM, a municipal corporation (the "CITY"), and the CITY OF SANTA ANA (the "SUB-RECIPIENT" or "Contractor"). WITNESSETH WHEREAS, CITY, acting through the Anaheim Police Department in its capacity as a Core City for the Anaheim/Santa Ana Urban Area under the FY10 Urban Areas Security Initiative, has applied for, received and accepted a grant entitled "FY 2010 Urban Areas Security Initiative" from the federal Department Of Homeland Security - Office of Grants and Training, through the State of California Emergency Management Agency, to enhance countywide emergency preparedness (the "grant"), as set forth in the grant guidelines and assurances that are incorporated to this Agreement by reference and located at: http://www.fema.y-ov/pdf/government/grant/2010/f?10 hsgp kit pdf http://www.calema.ca.mov/WebPage/oeswebsite nsf/ClientOESFileLibrary/Homela nd%20Security%20Files/$file/FYIOHSGPSupplementGuidance pdf Copies of the grant guidelines shall be retained in the Anaheim/Santa Ana Grant Office. WHEREAS, this financial assistance is administered by the CITY OF ANAHEIM ("CITY") and is overseen by the California Emergency Management Agency ("Cal- EMA"); and WHEREAS, this financial assistance is being provided to address the unique equipment, training, planning, and exercise needs of large urban areas, and to assist them in building an enhanced and sustainable capacity to prevent, respond to, and recover from threats or acts of terrorism; and WHEREAS, the Anaheim/Santa Ana Urban Area ("ASAUX) consists of 34 cities in Orange County, including the City of Anaheim and the City of Santa Ana, the County of Orange, including the unincorporated area of the County of Orange, Santa Ana School Police, California State University, Fullerton, University of California, Irvine, and the Orange County Fire Authority; and 1 20A-6 WHEREAS, the Office of Grants and Training ("G&T") awarded a FY10 UASI Grant of $10,218,440 ("Grant Funds") to the CITY OF ANAHEIM, as a Core City, for use in the ASAUA; and WHEREAS, the CITY has designated the Chief of Police and the Anaheim Police Department, Emergency Management Bureau ("UASI Grant Office") to provide for terrorism prevention and emergency preparedness; and WHEREAS, the UASI Grant Office now wishes to distribute FY10 UASI Grant Funds throughout the ASAUA, as further detailed in this Agreement ("Agreement") to the CITY OF SANTA ANA ("SUB-RECIPIENT") and others; WHEREAS, the CITY and SUB-RECIPIENT are desirous of executing this Agreement as authorized by the City Council and the City Manager which authorizes the CITY to prepare and execute the Agreement. NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: 2 20A-7 I INTRODUCTION §101. Parties to the Agreement The parties to this Agreement are: A. The CITY, a municipal corporation, having its principal office at 200 S Anaheim Blvd, Anaheim, CA 92805; and B. The CITY OF SANTA ANA, a municipal corporation, 20 Civic Center Plaza Santa Ana, CA 90701 §102. Representatives of the Parties and Service of Notices A. The representatives of the respective parties who are authorized to administer this Agreement and to whom formal notices, demands and communications shall be given are as follows: 1. The representative of the City of Anaheim shall be, unless otherwise stated in the Agreement: Ben Hittesdorf, Lieutenant Anaheim Police Department Emergency Management Bureau 425 S Harbor Blvd Anaheim, CA. 92805 Phone: (714) 245-8763 Fax: (714) 245-8098 bhiftesdorf@anaheim.net 2. The representative of the CITY OF SANTA ANA shall be: Ken Gominsky, Commander Santa Ana Police Department 60 Civic Center Plaza Santa Ana, CA 92702 Phone: 714-245-8040 kgominsky@santa-ana.org 3 20A-8 B. Formal notices, demands and communications to be given hereunder by either party shall be made in writing and may be effected by personal delivery or by registered or certified mail, postage prepaid, return receipt requested and shall be deemed communicated as of the date of mailing. C. If the name of the person designated to receive the notices, demands or communications or the address of such person is changed, written notice shall be given, in accord with this section, within five (5) business days of said change. §103. Independent Party SUB-RECIPIENT is acting hereunder as an independent party, and not as an agent or employee of the CITY OF ANAHEIM. No employee of SUB-RECIPIENT is, or shall be an employee of the CITY OF ANAHEIM by virtue of this Agreement, and SUB-RECIPIENT shall so inform each employee organization and each employee who is hired or retained under this Agreement. SUB-RECIPIENT shall not represent or otherwise hold out itself or any of its directors, officers, partners, employees, or agents to be an agent or employee of the CITY OF ANAHEIM. §104. Conditions Precedent to Execution of This Agreement SUB-RECIPIENT shall provide copies of the following documents to the CITY OF ANAHEIM, unless otherwise exempted. A. Grant Assurances in accordance with section 415C of this Agreement attached hereto as Exhibit C and made part hereof. B. Certifications Regarding Ineligibility, Suspension and Debarment as required by Executive Order 12549 in accordance with Section 415A12 of this Agreement and attached hereto as Exhibit A and made a part hereof. C. Certifications and Disclosures Regarding Lobbying in accordance with Section 415C of this Agreement and attached hereto as Exhibit B and made a part hereof. SUB-RECIPIENT shall also file a Disclosure Form at the end of each calendar quarter in which there occurs any event requiring disclosure or which materially affects the accuracy of the information contained in any Disclosure Form previously filed by SUB-RECIPIENT. 4 20A-9 II TERM AND SERVICES TO BE PROVIDED §201. Time of Performance The term of this Agreement shall commence on October 27, 2010 and end on April 30, 2013 or upon the final disbursement of all of the Grant Amount (as defined in Section 301) and any additional period of time as is required to complete any necessary close out activities. Said term is subject to the provisions herein. §202. Use of Grant Funds A. CITY may, a) transfer to SUB-RECIPIENT, equipment or services purchased with grant funds and in accordance with grant guidelines set forth above; or, b) reimburse SUB-RECIPIENT for purchase of authorized equipment, exercises, services or training upon receiving prior written approval from CITY or its designee and in accordance with grant guidelines and in full compliance with all of the SUB-RECIPIENT'S purchasing and bidding procedures. SUB-RECIPIENT shall specify the equipment, services, exercises and training to be purchased using the Application for Project Funding. A paper copy of this document will be provided to SUB- RECIPIENT by CITY. In addition, a compact disc with a copy of the document will be provided to SUB-RECIPIENT by CITY. Further, CITY will e-mail a copy of the document to SUB-RECIPIENT. If additional copies of the document are needed, SUB-RECIPIENT may contact the Anaheim Grant Coordinator and it will be provided. B. SUB-RECIPIENT shall provide any reports requested by the CITY regarding the performance of the Agreement. Reports shall be in the form requested by the CITY, and shall be provided in a timely manner. B. The Authorized Equipment List (AEL) is a list of the allowable equipment which may be purchased pursuant to this Agreement and is located at https://www.rkb.us, and incorporated to this Agreement by reference. A copy of the AEL shall be retained in the Anaheim/Santa Ana Grant Office. Unless otherwise stated in program guidance any equipment acquired pursuant to this Agreement shall meet all mandatory regulations and/or DHS-adopted standards to be eligible for purchase using grant funds. SUB- RECIPIENT shall provide the CITY a copy of its most current procurement guidelines and follow its own procurement requirements as long as they meet the minimum federal requirements. Federal procurement requirements for the FY 09 UASI Grant can be found at OMB Circular A-102, Title 44 C.F.R. Part 13.36, and the Office of G&T Financial Management Guide. Any equipment acquired or obtained with Grant Funds: 1. Shall be made available under the California Disaster and Civil 5 20A-10 Defense Master Mutual Aid Agreement in consultation with representatives of the various fire, emergency medical, hazardous materials response services, and law enforcement agencies within the jurisdiction of the applicant; 2. Shall be consistent with needs as identified in the State Homeland Security Strategy and deployed in conformance with that plan; 3. Shall be made available pursuant to applicable terms of the California Disaster and Civil Defense Master Mutual Aid Agreement and deployed with personnel trained in the use of such equipment in a manner consistent with the California Law Enforcement Mutual Aid Plan or the California Fire Services and Rescue Mutual Aid Plan; 4. Shall be subject to the requirements of Title 44, C.F.R. 13.32, 13.33 and Office of G&T Financial Management Guide. For the purposes of this subsection, "Equipment" is defined as nonexpendable property that is not consumed or does not lose its identity by being incorporated into another item of equipment, which costs $5,000 or more per unit, or is expected to have a useful life of one (1) year or more. Items costing less than $5,000, but falling into the following categories are also considered Equipment: (1)electronics communications equipment for stationary or vehicular use, including cellular telephones acquired by lease or purchase, and (2) electronic office equipment, including facsimile machines, copiers, electric typewriters, personal computers (monitors and CPU's), terminals and printers; 5. Shall be used by SUB-RECIPIENT in the program or project for which it was acquired as long as needed, whether or not the project or program continues to be supported by Federal funds. When no longer useful for the original program or project, the Equipment may be used in other activities currently or previously supported by a Federal agency. 6. Shall be made available for use on other projects or programs currently or previously supported by the Federal Government, providing such use will not interfere with the work on the projects or program for which it was originally acquired. First preference for other use shall be given to other programs or projects supported by the awarding agency. 7. Shall be recorded on a ledger. This record must be updated bi- annually and forwarded to the City. The record shall include: (a) description of the item of Equipment, (b) manufacturer's model and serial number, (c) Federal Stock number, national stock number, or other identification number; (d) the source of acquisition of the Equipment, including the award number, (e) date of acquisition; (f) the per unit acquisition cost of the Equipment, (g) records showing 6 20A-11 maintenance procedures to keep the Equipment in good running order, and (h) location and condition of Equipment. Records must be retained pursuant to 44 C.F.R. Part 13.42, and Office of G&T. 8. All equipment obtained under this Agreement shall have an ASAUA identification decal affixed to it, and, when practical, shall be affixed where it is readily visible. 9. A physical inventory of the Equipment shall be taken and the results reconciled with the Equipment records at least once every year. Inventory shall also be taken prior to any UASI, State or Federal monitor visits. 10. SUB-RECIPIENT shall exercise due care to preserve and safeguard equipment acquired with grant funds from damage or destruction and shall provide regular maintenance and such repairs for said equipment as necessary, in order to keep said equipment continually in good working order. Such maintenance and servicing shall be the sole responsibility of SUB-RECIPIENT, who shall assume full responsibility for maintenance and repair of the equipment throughout the life of said equipment. D. Any training paid pursuant to this Agreement shall conform to the guidelines as listed in FY 2010 Homeland Security Grant Program, as set forth above. All training expenses must be pre-authorized by Cal-EMA at http://www.firstrespondertraining.gov/admin. A catalogue of Grantor approved and sponsored training courses is available at http://www.firstrespondertraining.gov/odp_webforms. E. Any exercise paid pursuant to this Agreement shall conform to the guidelines as listed in FY 2010 Homeland Security Grant Program, as set forth above. Detailed Homeland Security Exercise and Evaluation Program Guidance is available at http://hseep.dhs.gov. F. Any planning paid pursuant to this Agreement shall conform to the guidelines as listed in FY 2010 Homeland Security Grant Program, as set forth above. G. Any organizational activities paid pursuant to this Agreement shall conform to the guidelines as listed in FY 2010 Homeland Security Grant Program, as set forth above. §203. Condition of Eligibility As a condition of eligibility to receive UASI funding, SUB-RECIPIENT shall participate annually in the Regional Risk and Capabilities Assessment Project. 7 20A-12 III PAYMENT §301. Payment of Grant Funds and Method of Payment A. CITY may, a) transfer to SUB-RECIPIENT, equipment or services purchased with grant funds; or, b) reimburse SUB-RECIPIENT for the purchase of authorized equipment, exercises, services or training upon receiving prior written approval from CITY or its designee and in accordance with grant guidelines and in full compliance with all of the SUB-RECIPIENT'S purchasing and bidding procedures. SUB-RECIPIENT shall specify the equipment, exercises, services or training to be purchased using the Application for Project Funding. A paper copy of this document will be provided to SUB-RECIPIENT by CITY. In addition, a compact disc with a copy of the document will be provided to SUB- RECIPIENT by CITY. Further, CITY will e-mail a copy of the document to SUB-RECIPIENT. If additional copies of the document are needed, SUB- RECIPIENT may contact the Anaheim Grant Coordinator and it will be provided. Funds may be used for planning, exercises, organizational and training activities, and the purchase of equipment as described in Section 202 above. B. SUB-RECIPIENT shall provide quarterly invoices to the CITY requesting payment and all supporting documentation. Each reimbursement request shall be accompanied by the Reimbursement Request for Grant Expenditures (attached hereto as Exhibit D) detailing the expenditures made by SUB- RECIPIENT as authorized by Section 202 above. For equipment for which SUB-RECIPIENT is requesting reimbursement, all appropriate back-up documentation must be attached to the reimbursement form, including invoices, proof of payment and packing slips. For training reimbursements, SUB-RECIPIENT must include a copy of any certificates issued or a copy of the class roster verifying training attendees, proof that an Cal-EMA tracking number has been assigned to the course, timesheets and payroll registers for all training attendees, and receipts for travel expenses related to the training. For regional project reimbursements, SUB-RECIPIENT must include approval from the lead agency for all submitted invoices. C. Payment of final invoice shall be withheld by the CITY until the SUB- RECIPIENT has turned in all supporting documentation and completed the requirements of this Agreement. D. It is understood that the CITY makes no commitment to fund this Agreement beyond the terms set forth herein. E. Funding for all periods of this Agreement is subject to the continuing availability to the CITY of federal funds for this program. The Agreement may be terminated immediately upon written notice to SUB-RECIPIENT of a loss or reduction of federal grant funds. 8 20A-13 IV STANDARD PROVISIONS §401. Construction of Provisions and Titles Herein All titles or subtitles appearing herein have been inserted for convenience and shall not be deemed to affect the meaning or construction of any of the terms or provisions hereof. The language of this Agreement shall be construed according to its fair meaning and not strictly for or against either party. The word "Sub-recipient" herein and in any amendments hereto includes the party or parties identified in this Agreement. The singular shall include the plural. If there is more than one Sub-recipient as identified herein, unless expressly stated otherwise, their obligations and liabilities hereunder shall be joint and several. Use of the feminine, masculine, or neuter genders shall be deemed to include the genders not used. §402. Applicable Law, Interpretation and Enforcement Each party's performance hereunder shall comply with all applicable laws of the United States of America, the State of California, and the CITY. This Agreement shall be enforced and interpreted under the laws of the State of California and the CITY. If any part, term or provision of this Agreement shall be held void, illegal, unenforceable, or in conflict with any law of a federal, state or local government having jurisdiction over this Agreement, the validity of the remaining portions of provisions shall not be affected thereby. §403. Integrated Agreement This Agreement sets forth all of the rights and duties of the parties with respect to the subject matter hereof, and replaces any and all previous agreements or understandings, whether written or oral, relating thereto. This Agreement may be amended only by a written instrument executed by both parties hereto. §404. Excusable Delays In the event that performance on the part of any party hereto shall be delayed or suspended as a result of circumstances beyond the reasonable control and without the fault and negligence of said party, none of the parties shall incur any liability to the other parties as a result of such delay or suspension. Circumstances deemed to be beyond the control of the parties hereunder shall include, but not be limited to, acts of God or of the public enemy; insurrection; acts of the Federal Government or any unit of State or Local Government in either sovereign or contractual capacity; fires; floods; epidemics; quarantine 9 20A-14 restrictions; strikes, freight embargoes or delays in transportation; to the extent that they are not caused by the party's willful or negligent acts or omissions and to the extent that they are beyond the party's reasonable control. §405. Breach Except for excusable delays, if any party fails to perform, in whole or in part, any promise, covenant, or agreement set forth herein, or should any representation made by it be untrue, any aggrieved party may avail itself of all rights and remedies, at law or equity, in the courts of law. Said rights and remedies are cumulative of those provided for herein except that in no event shall any party recover more than once, suffer a penalty or forfeiture, or be unjustly compensated. §406. Prohibition Against Assignment or Delegation SUB-RECIPIENT may not, unless it has first obtained the written permission of the CITY: A. Assign or otherwise alienate any of its rights hereunder, including the right to payment; or B. Delegate, subcontract, or otherwise transfer any of its duties hereunder. §407. Permits SUB-RECIPIENT and its officers, agents and employees shall obtain and maintain all permits and licenses necessary for SUB-RECIPIENT performance hereunder and shall pay any fees required therefore. SUB-RECIPIENT further certifies to immediately notify the CITY of any suspension, termination, lapses, non renewals or restrictions of licenses, certificates, or other documents. §408. Nondiscrimination and Affirmative Action SUB-RECIPIENT shall comply with the applicable nondiscrimination and affirmative action provisions of the laws of the United States of America, the State of California, and the CITY. In performing this Agreement, SUB- RECIPIENT shall not discriminate in its employment practices against any employee or applicant for employment because of such person's race, religion, national origin, ancestry, sex, sexual orientation, age, physical handicap, mental disability, marital status, domestic partner status or medical condition. SUB-RECIPIENT shall comply with Executive Order 11246, entitled "Equal Employment Opportunity," as amended by Executive Order 11375, and as supplemented in Department of Labor regulations (41 CRF Part 60). 10 20A-15 If required, SUB-RECIPIENT shall submit an Equal Employment Opportunity Plan ("EEOP") to the DOJ Office of Civil Rights ("OCR") in accordance with guidelines listed at http://www.ojp.usdoj.gov/ocr/eeop.htm, Any subcontract entered into by the SUB-RICIPIENT relating to this Agreement, to the extent allowed hereunder, shall be subject to the provisions of this § 408. §409. Bonds SUB-RECIPIENT must purchase a performance bond for any equipment item over $250,000 or any vehicle (including aircraft or watercraft) financed with homeland security funds. §410. Indemnification To the fullest extent of the law, SUB-RECIPIENT agrees to indemnify, defend, and hold harmless the City of Anaheim, its officers, agents, employees, representatives and designated volunteers from and against any and all claims, demands, defense costs, or liability of any kind or nature arising out of or resulting from, or in any way connected with SUB-RECIPIENT'S acts, errors or omissions in the performance of SUB-RECIPIENT'S services or use of grant funds under the terms of this agreement. §411. Conflict of Interest A. The SUB-RECIPIENT covenants that none of its directors, officers, employees, or agents shall participate in selecting, or administrating any subcontract supported (in whole or in part) by Federal funds where such person is a director, officer, employee or agent of the subcontractor; or where the selection of subcontractors is or has the appearance of being motivated by a desire for personal gain for themselves or others such as family business, etc.; or where such person knows or should have known that: 1. A member of such person's immediate family, or domestic partner or organization has a financial interest in the subcontract; 2. The subcontractor is someone with whom such person has or is negotiating any prospective employment; or 3. The participation of such person would be prohibited by the California Political Reform Act, California Government Code §87100 et seq. if such person were a public officer, because such person would have a "financial or other interest" in the subcontract. B. Definitions: 1. The term "immediate family" includes but is not limited to domestic partner and/or those persons related by blood or marriage, such as husband, wife, father, mother, brother, sister, son, daughter, father in law, mother in law, brother in law, sister in law, son in law, daughter in law. 11 20A-16 2. The term "financial or other interest" includes but is not limited to: a. Any direct or indirect financial interest in the specific contract, including a commission or fee, a share of the proceeds, prospect of a promotion or of future employment, a profit, or any other form of financial reward. b. Any of the following interests in the subcontractor ownership: partnership interest or other beneficial interest of five percent or more; ownership of five percent or more of the stock; employment in a managerial capacity; or membership on the board of directors or governing body. C. The SUB-RECIPIENT further covenants that no officer, director, employee, or agent shall solicit or accept gratuities, favors, anything of monetary value from any actual or potential subcontractor, supplier, a party to a sub agreement, (or persons who are otherwise in a position to benefit from the actions of any officer, employee, or agent). D. The SUB-RECIPIENT shall not subcontract with a former director, officer, or employee within a one year period following the termination of the relationship between said person and the Contractor. E. Prior to obtaining the CITY'S approval of any subcontract, the SUB- RECIPIENT shall disclose to the CITY any relationship, financial or otherwise, direct or indirect, of the SUB-RECIPIENT or any of its officers, directors or employees or their immediate family with the proposed subcontractor and its officers, directors or employees. F. For further clarification of the meaning of any of the terms used herein, the parties agree that references shall be made to the guidelines, rules, and laws of the SUB-RECIPIENT, State of California, and Federal regulations regarding conflict of interest. G. The SUB-RECIPIENT warrants that it has not paid or given and will not pay or give to any third person any money or other consideration for obtaining this Agreement. H. The SUB-RECIPIENT covenants that no member, officer or employee of SUB-RECIPIENT shall have interest, direct or indirect, in any contract or subcontract or the proceeds thereof for work to be performed in connection with this project during his/her tenure as such employee, member or officer or for one year thereafter. 1. The SUB-RECIPIENT shall incorporate the foregoing subsections of this Section into every agreement that it enters into in connection with this project and shall substitute the term "subcontractor" for the term "SUB-RECIPIENT" and "sub subcontractor" for "Subcontractor". 12 20A-17 §412. Restriction on Disclosures Any reports, analysis, studies, drawings, information, or data generated as a result of this Agreement are to be governed by the California Public Records Act (California Government Code Sec. 6250, et seq.). §413. Statutes and Regulations Applicable To All Grant Contracts A. SUB-RECIPIENT shall comply with all applicable requirements of state, federal, county and SUB-RECIPIENT laws, executive orders, regulations, program and administrative requirements, policies and any other requirements governing this Agreement. SUB-RECIPIENT shall comply with state and federal laws and regulations pertaining to labor, wages, hours, and other conditions of employment. SUB-RECIPIENT shall comply with new, amended, or revised laws, regulations, and/or procedures that apply to the performance of this Agreement. These requirements include, but are not limited to: Office of Management and Budget (OMB) Circulars SUB-RECIPIENT shall comply with OMB Circulars, as applicable: OMB Circular A-21 (Cost Principles for Educational Institutions); OMB Circular A-87 (Cost Principles for State, Local, and Indian Tribal Governments); OMB Circular A-102 (Grants and Cooperative Agreements with State and Local Governments); Common Rule, Subpart C for public agencies or OMB Circular A-110 (Uniform Administrative Requirements for Grants and Other Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations); OMB Circular A-122 (Cost Principles for Non-Profit Organizations); OMB Circular A-133 (Audits of States, Local Governments, and Non-Profit Organizations. 2. Single Audit Act If Federal funds are used in the performance of this Agreement, SUB-RECIPIENT shall adhere to the rules and regulations of the Single Audit Act, 31 USC Sec. 7501 et seq.; and any administrative regulation or field memos implementing the Act. 3. Americans with Disabilities Act SUB-RECIPIENT hereby certifies that it will comply with the Americans with Disabilities Act, 42 USC §§ 12101, et seq., and its implementing regulations. SUB-RECIPIENT will provide reasonable accommodations to allow qualified individuals with disabilities to have access to and to participate in its programs, services and activities in accordance with the provisions of the Americans with Disabilities Act. SUB-RECIPIENT will not discriminate against persons with disabilities or against persons due to their relationship to or association with a person with a disability. Any subcontract entered into by the SUB-RECIPIENT, relating to this Agreement, to 13 20A-18 the extent allowed hereunder, shall be subject to the provisions of this paragraph. 4. Political and Sectarian Activity Prohibited None of the funds, materials, property or services provided directly or indirectly under this Agreement shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office. Neither shall any funds provided under this Agreement be used for any purpose designed to support or defeat any pending legislation or administrative regulation. None of the funds provided pursuant to this Agreement shall be used for any sectarian purpose or to support or benefit any sectarian activity. If this Agreement provides for more than $100,000 in grant funds or more than $150,000 in loan funds, SUB-RECIPIENT shall submit to the CITY a Certification Regarding Lobbying and a Disclosure Form, if required, in accordance with 31 USC §1352. A copy of the Certificate is attached hereto as Exhibit B. No funds will be released to SUB-RECIPIENT until the Certification is filed. SUB-RECIPIENT shall file a Disclosure Form at the end of each calendar quarter in which there occurs any event requiring disclosure or which materially affects the accuracy of any of the information contained in any Disclosure Form previously filed by SUB- RECIPIENT. SUB-RECIPIENT shall require that the language of this Certification be included in the award documents for all sub-awards at all tiers and that all subcontractors shall certify and disclose accordingly. 5. Records Inspection At any time during normal business hours and as often as the CITY, the U.S. Comptroller General, and/or the Auditor General of the State of California may deem necessary, SUB-RECIPIENT shall make available for examination all of its records with respect to all matters covered by this Agreement. The CITY, the U.S. Comptroller General and/or the Auditor General of the State of California shall have the authority to audit, examine and make excerpts or transcripts from records, including SUB-RECIPIENT'S invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. SUB-RECIPIENT agrees to provide any reports requested by the CITY regarding performance of the Agreement. 6. Records Maintenance Records, in their original form, shall be maintained in accordance with requirements prescribed by the CITY with respect to all matters 14 20A-19 covered on file for all documents specified in this Agreement. Original forms are to be maintained on file for all documents specified in this Agreement. Such records shall be retained for a period of three (3) years after termination of this Agreement and after final disposition of all pending matters. "Pending matters" include, but are not limited to, an audit, litigation or other actions involving records. The CITY may, at its discretion, take possession of, retain and audit said records. Records, in their original form pertaining to matters covered by this Agreement, shall at all times be retained within the County of Orange unless authorization to remove them is granted in writing by the CITY. 7. Subcontracts and Procurement SUB-RECIPIENT shall comply with the federal and SUB- RECIPIENT standards in the award of any subcontracts. For purposes of this Agreement, subcontracts shall include but not be limited to purchase agreements, rental or lease agreements, third party agreements, consultant service contracts and construction subcontracts. SUB-RECIPIENT shall ensure that the terms of this Agreement with the CITY are incorporated into all Subcontractor Agreements. The SUB-RECIPIENT shall submit all Subcontractor Agreements to the CITY for review prior to the release of any funds to the subcontractor. The SUB-RECIPIENT shall withhold funds to any subcontractor agency that fails to comply with the terms and conditions of this Agreement and their respective Subcontractor Agreement. 8. Labor SUB-RECIPIENT shall comply with the Intergovernmental Personnel Act of 1970 (42 U.S.C. §§4728-4763) relating to prescribed requirements for merit systems for programs funded under one of the 19 statutes or regulations specified in Appendix A of OPM's Standards for a Merit System Personnel Administration (5 C.F.R. 900, Subpart F). SUB-RECIPIENT shall comply, as applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. §§276a to 276a-7), the Copeland Act (40 U.S.C. §276c and 18 U.S.C. §874), the Contract Work Hours and Safety Standards Act (40 U.S.C. §§327-333), regarding labor standards for federally-assisted construction subagreements, and the Hatch Act (5 USC §§1501-1508 and 7324-7328). SUB-RECIPIENT shall comply with the Federal Fair Labor Standards Act (29 USC §201) regarding wages and hours of employment. None of the funds shall be used to promote or deter Union/labor organizing activities. CA Gov't Code Sec. 16645, et seq. 15 20A-20 9. Civil Rights SUB-RECIPIENT shall comply with all Federal statutes relating to nondiscrimination. These include but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin; (b) Title IX of the Education Amendments of 1972, as amended (20 U.S.C. §§1681- 1683, and 1685-1686), which prohibits discrimination on the basis of sex; (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. §794), which prohibits discrimination on the basis of handicaps; (d) The Age Discrimination act of 1975, as amended (42 U.S.C. §§6101-6107), which prohibits discrimination on the basis of age; (e) the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; (f) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation act of 1970 (P.L. 91-616) as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (g) §§523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. §§290 dd-3 and 290 ee 3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§3601, et seq.), as amended, relating to non-discrimination in the sale, rental or financing of housing; (i) any other nondiscrimination provisions in the specific statute(s) under which application for Federal assistance is being made; 0) the requirements of any other nondiscrimination statute(s) which may apply to the application; and (k) P.L. 93-348 regarding the protection of human subjects involved in research, development, and related activities supported by this award of assistance. 10. Environmental SUB-RECIPIENT shall comply, or has already complied, with the requirements of Titles II and III of the Uniform relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646) which provide for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal or federally- assisted programs. These requirements apply to all interests in real property acquired for project purposes regardless of Federal participation in purchases. SUB-RECIPIENT shall comply with environmental standards which may be prescribed pursuant to the following: (a) institution of environmental quality control measures under the National Environmental Policy Act of 1969 (P.L. 91-190) and Executive Order (EO) 11514; (b) notification of violating facilities pursuant to EO 11738; (c) protection of wetlands pursuant to EO 11990; (d) evaluation of flood hazards in floodplains in accordance with EO 11988; (e) assurance of project consistency with the approved State management program developed under the Coastal Zone 16 20A-21 Management Act of 1972 (16 U.S.C. §§1451, et seq.); (f) conformity of Federal actions to State (Clean Air) Implementation Plans under Section 176(c) of the Clean Air Act of 1955, as amended (42 U.S.C. §§7401, et seq.); (g) protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended (P.L. 93-523); (h) protection of endangered species under the Endangered Species Act of 1973, as amended (P.L. 93205); and (i) Flood Disaster Protection Act of 1973 §102(a) (P.L. 93-234). SUB-RECIPIENT shall comply with the Wild and Scenic Rivers Act of 1968 (16 U.S.C. §§1271, et seq.) related to protecting components or potential components of the national wild and scenic rivers system. SUB-RECIPIENT shall comply with the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. §§4801, et seq.) which prohibits the use of lead- based paint in construction or rehabilitation of residence structures. SUB-RECIPIENT shall comply with the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.) which restores and maintains the chemical, physical and biological integrity of the Nation's waters. SUB-RECIPIENT shall ensure that the facilities under its ownership, lease or supervision which shall be utilized in the accomplishment of this project are not listed in the Environmental Protection Agency's (EPA) list of Violating Facilities and that it will notify the Federal Grantor agency of the receipt of any communication from the Director of the EPA Office of Federal Activities indicating that a facility to be used in the project is under consideration for listing by the EPA. By signing this Agreement, SUB-RECIPIENT ensures that it is in compliance with the California Environmental Quality Act (CEQA), Public Resources Code §21000, et seq. and is not impacting the environment negatively. SUB-RECIPIENT shall comply with the Energy Policy and Conservation Act (P.L. 94-163, 89 Stat. 871). SUB-RECIPIENT shall comply, if applicable, with the provision of the Coastal Barrier Resources Act (P.L. 97-348) dated October 19, 1982 (16 USC 3501, et. seq.), which prohibits the expenditure of most new Federal funds within the units of the Coastal Barrier Resources System. 11. Preservation SUB-RECIPIENT shall comply with Section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. §470), EO 11593 (identification and protection of historic properties), and the 17 20A-22 Archaeological and Historic Preservation Act of 1974 (16 U.S.C. §§469a-1, et seq.). 12. Suspension and Debarment SUB-RECIPIENT shall comply with Federal Register, Volume 68, Number 228, regarding Suspension and Debarment, and SUB- RECIPIENT shall submit a Certification Regarding Debarment required by Executive Order 12549 and any amendment thereto. Said Certification shall be submitted to the CITY concurrent with the execution of this Agreement and shall certify that neither SUB- RECIPIENT nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction by any federal department head or agency. SUB-RECIPIENT shall require that the language of this Certification be included in the award documents for all sub-award at all tiers and that all subcontractors shall certify accordingly. 13. Druq-Free Workplace SUB-RECIPIENT shall comply with the federal Drug-Free Workplace Act of 1988, 41 USC §701, 44 CFR Part 67; the California Drug-Free Workplace Act of 1990, CA Gov't Code §§ 8350-8357. 14. Miscellaneous SUB-RECIPIENT shall comply with the Laboratory Animal Welfare Act of 1966, as amended (P.L. 89-544, 7 USC §§2131, et seq.). B. Statutes and Regulations Applicable To This Particular Grant SUB-RECIPIENT shall comply with all applicable requirements of state and federal laws, executive orders, regulations, program and administrative requirements, policies and any other requirements governing this particular grant program. SUB-RECIPIENT shall comply with new, amended, or revised laws, regulations, and/or procedures that apply to the performance of this Agreement. These requirements include, but are not limited to: Title 44 Code of Federal Regulations (CFR) Part 13; EO 12372; Department of Justice (DOJ) Office of Judicial Programs (OJP) Office of the Comptroller, U.S. Department of Homeland Security, Preparedness Directorate Financial Management Guide; U.S. Department of Homeland Security, Office of Grants and Training, FY 2010 Homeland Security Grant Program - Program Guidance and Application Kit; ODP WMD Training Course Catalogue; and DOJ Office for Civil Rights. Standardized Emergency Management System (SEMS) requirements as stated in the California Emergency Services Act, Government Code Chapter 7 of Division 1 of Title 2, § 8607.1(e) and CCR Title 19, §§ 2445-2448. 18 20A-23 Provisions of 44 CFR applicable to grants and cooperative agreements, including Part 18, Administrative Review Procedures; Part 20, Criminal Justice Information Systems; Part 22, Confidentiality of Identifiable Research and Statistical Information; Part 23, Criminal Intelligence Systems Operating Policies; Part 30, Intergovernmental Review of Department of Justice Programs and Activities; Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services; Part 38, Equal Treatment of Faith-based Organizations; Part 42, Nondiscrimination/Equal employment Opportunities Policies and Procedures; Part 61, Procedures for Implementing the National Environmental Policy Act; Part 63, Floodplain Management and Wetland Protection Procedures; Part 64, Floodplain Management and Wetland Protection Procedures; Federal laws or regulations applicable to federal Assistance Programs; Part 69, New Restrictions on Lobbying; Part 70, Uniform Administrative Requirements for Grants and Cooperative Agreements (including sub-awards) with Institutions of Higher Learning, Hospitals and other Non-Profit Organizations; and Part 83, Government- Wide Requirements for a Drug Free Workplace (grants). Nondiscrimination requirements of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 USC 3789(d), or the Juvenile Justice and Delinquency Prevention Act, or the Victims of Crime Act, as appropriate; the provisions of the current edition of the Office of Justice Programs Financial and Administrative Guide for Grants, M7100.1, and all other applicable federal laws, orders, circulars, or regulations. 2. Travel Expenses SUB-RECIPIENT as provided herein may be compensated for SUB- RECIPIENT'S reasonable travel expenses incurred in the performance of this Agreement, to include travel and per diem, unless otherwise expressed. Travel including in-State and out-of- State travel shall not be reimbursed without prior written authorization from the UASI Grant Office. SUB-RECIPIENT'S travel and per diem reimbursement costs shall be reimbursed based on the SUB-RECIPIENT'S travel policies and procedures. If SUB-RECIPIENT does not have established travel policies and procedures, SUB-RECIPIENT'S reimbursement rates shall not exceed the amounts established by the State Department of Personnel Administration Rules and Regulations, PML 97-024, Section 599.619, dated July 1, 1997 and Section 599.631, and as amended from time to time. 19 20A-24 3. Noncompliance SUB-RECIPIENT understands that failure to comply with any of the above assurances may result in suspension, termination or reduction of grant funds, and repayment by SUB-RECIPIENT to CITY of any unlawful expenditures. C. Compliance With Grant Assurances To obtain the Grant Funds, the Grantor required an authorized representative of the CITY to sign certain promises regarding the way the Grant Funds would be spent ("Grant Assurances"), attached hereto as Exhibit C. By signing these Grant Assurances, the CITY became liable to the Grantor for any funds that are used in violation of the grant requirements. SUB-RECIPIENT shall be liable to the Grantor for any funds the Grantor determines SUB-RECIPIENT used in violation of these Grant Assurances. SUB-RECIPIENT shall indemnify and hold harmless the CITY for any sums the Grantor determines SUB- RECIPIENT used in violation of the Grant Assurances. §414. Federal, State and Local Taxes Federal, State and local taxes shall be the responsibility of SUB-RECIPIENT as an independent party and not as a CITY employee. §415. Inventions, Patents and Copyrights A. Reporting Procedure for Inventions If any project produces any invention or discovery (Invention) patentable or otherwise under title 35 of the U.S. Code, including, without limitation, processes and business methods made in the course of work under this Agreement, the SUB-RECIPIENT shall report the fact and disclose the Invention promptly and fully to the CITY. The CITY shall report the fact and disclose the Invention to the Grantor. Unless there is a prior agreement between the CITY and the Grantor, the Grantor shall determine whether to seek protection on the Invention. The Grantor shall determine how the rights in the Invention, including rights under any patent issued thereon, will be allocated and administered in order to protect the public interest consistent with the policy ("Policy") embodied in the Federal Acquisition Regulations System, which is based on Ch. 18 of title 35 U.S.C. Sections 200, et seq. (Pub. L. 95-517, Pub. L. 98-620, 37 CFR part 401); Presidential Memorandum on Government Patent Policy to the Heads of the Executive Departments and Agencies, dated 2/18/1983); and Executive Order 12591, 4/10/87, 52 FR 13414, 3 CFR, 1987 Comp., p. 220 (as amended by Executive Order 12618, 12/22/87, 52 FR 48661, 3 CFR, 1987 Comp., p. 262). SUB-RECIPIENT hereby agrees to be bound by the Policy, and will contractually require its personnel to be bound by the Policy. B. Rights to Use Inventions 20 20A-25 CITY shall have an unencumbered right, and a non-exclusive, irrevocable, royalty- free license, to use, manufacture, improve upon, and allow others to do so for all government purposes, any Invention developed under this Agreement. C. Copyright Policy Unless otherwise provided by the terms of the Grantor or of this Agreement, when copyrightable material ("Material") is developed under this Agreement, the author or the CITY, at the CITY'S discretion, may copyright the Material. If the CITY declines to copyright the Material, the CITY shall have an unencumbered right, and a non-exclusive, irrevocable, royalty- free license, to use, manufacture, improve upon, and allow others to do so for all government purposes, any Material developed under this Agreement. 2. The Grantor shall have an unencumbered right, and a non-exclusive, irrevocable, royalty-free license, to use, manufacture, improve upon, and allow others to do so for all government purposes, any Material developed under this Agreement or any Copyright purchased under this Agreement. 3. SUB-RECIPIENT shall comply with 24 CFR 85.34. D. Rights to Data The Grantor and the CITY shall have unlimited rights or copyright license to any data first produced or delivered under this Agreement. "Unlimited rights" means the right to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform and display publicly, or permit others to do so; as required by 48 CFR 27.401. Where the data are not first produced under this Agreement or are published copyrighted data with the notice of 17 U.S.C. Section 401 or 402, the Grantor acquires the data under a copyright license as set forth in 48 CFR 27.404(f)(2) instead of unlimited rights. (48 CFR 27.404(a)). E. Obligations Binding on Subcontractors SUB-RECIPIENT shall require all subcontractors to comply with the obligations of this section by incorporating the terms of this section into all subcontracts. 21 20A-26 §416. Minority, Women, And Other Business Enterprise Outreach Program It is the policy of the CITY to provide minority business enterprises (MBEs), women business enterprises (WBEs) and all other business enterprises an equal opportunity to participate in the performance of all SUB-RECIPIENT contracts, including procurement, construction and personal services. This policy applies to all Contractors and Sub-Contractors. 22 20A-27 V DEFAULTS SUSPENSION TERMINATION AND AMENDMENTS §501. Defaults Should SUB-RECIPIENT fail for any reason to comply with the contractual obligations of this Agreement within the time specified by this Agreement, the CITY reserves the right to terminate the Agreement, reserving all rights under state and federal law. §502. Amendments Any change in the terms of this Agreement, including changes in the services to be performed by SUB-RECIPIENT and any increase or decrease in the amount of compensation which are agreed to by the CITY and SUB-RECIPIENT shall be incorporated into this Agreement by a written amendment properly executed and signed by the person authorized to bind the parties thereto. SUB-RECIPIENT agrees to comply with all future CITY Directives, or any rules, amendments or requirements promulgated by the CITY affecting this Agreement. 23 20A-28 VI ENTIRE AGREEMENT §601. Complete Agreement This Agreement contains the full and complete Agreement between the two parties. Neither verbal agreement nor conversation with any officer or employee of either party shall affect or modify any of the terms and conditions of this Agreement. §602. Number of Pages and Attachments This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. This Agreement includes twenty-five (25) pages and five (4) Exhibits which constitute the entire understanding and agreement of the parties. 24 20A-29 IN WITNESS WHEREOF, the City and the CITY OF SANTA ANA have caused this Agreement to be executed by their duly authorized representatives on the date first set forth above. ATTEST: By: Linda N. Andal Clerk of the Council RECOMMENDED FOR APPROVAL: By: John Welter Chief of Police APPROVED AS TO FORM: By: Aaron Harp Sr. Assistant City Attorney CITY OF ANAHEIM, a municipal Corporation of the State of California By: Tom Wood City Manager SUB-RECIPIENT CITY OF SANTA ANA By: Printed Name Title APPROVED AS TO FORM By: Printed Name Title 25 20A-30 EXHIBIT A CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY MATTERS Applicants should refer to the regulations cited below to determine the certification to which they are required to attest. Applicants should also review the instructions for certification included in the regulations before completing this form. Signature of this form provides for compliance with certification requirements under the applicable CFR covering New Restrictions on Government-wide Debarment and Suspension (Nonprocurement). The certification shall be treated as a material representation of fact upon which reliance will be placed when the Agency determines to award the covered transaction or cooperative agreement. As required by Executive Order 12549, Debarment and Suspension, and implemented under the applicable CFR, for prospective participants in covered transactions, as defined in the applicable CFR A. The applicant certifies that it and its principals: (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of Federal benefits by a State or Federal court, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three-year period preceding this application been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal State or local) with commission of any of these offenses enumerated in paragraph (1) (b) of this certification; and (d) Have not within a three-year period preceding this application had one or more public transactions (Federal, State or local) terminated for cause or default; and B. Where the applicant is unable to certify to any of the statements in this certification, he or she shall attach an explanation to this application. Authorized Agent Signature Printed or Typed Name Title Address: 26 20A-31 INSTRUCTIONS FOR CERTIFICATION 1. By signing and submitting this document, the prospective recipient of Federal assistance funds is providing the certification as set out below. 2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective recipient of Federal assistance funds knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 3. The prospective recipient of Federal assistance funds shall provide immediate written notice to the person to whom this agreement is entered, if at any time the prospective recipient of Federal assistance funds learns that its certification was erroneous, when submitted or has become erroneous by reason of changed circumstances. 4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person," "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. 5. The prospective recipient of Federal assistance funds agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 6. The prospective recipient of Federal assistance funds further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transactions," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Procurement or Non Procurement Programs. 8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. 9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntary excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 27 20A-32 EXHIBIT B CERTIFICATION REGARDING LOBBYING Certification for Contracts. Grants. Loans and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that: No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an 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 any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form LLL "Disclosure Form to Report Lobbying" in accordance with its instructions. 3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 4. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352 Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less that $10,000 and not more than $100,000 for each such failure. AGREEMENT NUMBER CONTRACTOR/BORROWER/AGENCY NAME AND TITLE OF AUTHORIZED REPRESENTATIVE SIGNATURE DATE 28 20A-33 20A-34 EXHIBIT C Name of Applicant: Address: California Emergency Management Agency FY2010 Grant Assurances (All HSGP Applicants) City: Telephone Number: E-Mail Address: State: Fax Number: Zip Code: As the duly authorized representative of the applicant, I certify that the applicant named above: Will assure that grant funds will support efforts related to providing an integrated mechanism to enhance the coordination of national priority efforts to prevent, respond to, and recover from terrorist attacks, major disasters and other emergencies. 2. Has the legal authority to apply for Federal assistance and has the institutional, managerial and financial capability to ensure proper planning, management and completion of the grant provided by the U.S. Department of Homeland Security (DHS)/Federal Emergency Management Agency (FEMA) and sub-granted through the State of California, California Emergency Management Agency (Cal EMA). Will assure that grant funds are used for allowable, fair, and reasonable costs only and will not be transferred between grant programs (for example: State Homeland Security Program, Urban Area Security Initiative, Citizen Corps Program, and Metropolitan Medical Response System) or fiscal years. 4. Will comply with any cost sharing commitments included in the FY2010 Investment Justifications submitted to DHS/FEMA/Cal EMA, where applicable. Will give the Federal government, the General Accounting Office, the Comptroller General of the United States, the State of California, the Office of Inspector General, through any authorized representative, access to, and the right to examine, all paper or electronic records, books, or documents related to the award; and will establish a proper accounting system in accordance with generally accepted accounting standards and/or awarding agency directives. 6. Agrees that funds utilized to establish or enhance State and Local fusion centers must support the development of a statewide fusion process that corresponds with the Global Justice/Homeland Security Advisory Council (HSAC) Fusion Center Guidelines, follow the Federal and State approved privacy policies, and achieve (at a minimum) baseline level of capability as defined by the Fusion Capability Planning Tool. 7. Will provide progress reports, and other such information as may be required by the awarding agency, including the Initial Strategy Implementation Plan (ISIP) within 45 29 20A-35 (forty-five) days of the award, and update via the Grant Reporting Tool (GRT) twice each year. 8. Will initiate and complete the work within the applicable time frame after receipt of approval from Cal EMA. 9. Will maintain procedures to minimize the time elapsing between the award of funds and the disbursement of funds. 10. Will comply with all provisions of DHS/FEMA's codified regulation 44, Part 13, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, including the payment of interest earned on advances. 11. Will establish safeguards to prohibit employees from using their positions for a purpose that constitutes, or presents the appearance of, personal or organizational conflict of interest, or personal gain for themselves or others, particularly those with whom they have family, business, or other ties. 12. Understands and agrees that Federal funds will not be used, directly or indirectly, to support the enactment, repeal, modification or adoption of any law, regulation, or policy, at any level of government, without the express prior written approval from DHS/FEMA/Cal EMA. 13. Agrees that, to the extent contractors or subcontractors are utilized, will use small, minority-owned, women-owned, or disadvantaged business concerns and contractors or subcontractors to the extent practicable. 14. Will notify Cal EMA of any developments that have a significant impact on award- supported activities, including changes to key program staff. 15. Will comply, if applicable, with the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. §§ 4801 et seq.) which prohibits the use of lead based paint in construction or rehabilitation of structures. 16. Will comply with all Federal and State Statues relating to Civil Rights and Nondiscrimination. These include, but are not limited to: a. Title VI of the Civil Rights Act of 1964 (P.L. 88-352), as amended, which prohibits discrimination on the basis of race, color or national origin. b. Title IX of the Education Amendments of 1972, as amended (20 U.S.C. §§ 1681- 1683 and 1685-1686), which prohibits discrimination on the basis of gender. c. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of handicaps. d. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101-6107), which prohibits discrimination on the basis of age. 30 20A-36 e. The Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse. f. The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism. g. §§ 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. 290 dd-3 and 290 ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient records. h. Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing. i. Title 44 Code of Federal Regulations (CFR) Parts 7, 16, and 19 relating to nondiscrimination. j. The requirements on any other nondiscrimination provisions in the specific statute(s) under which the application for Federal assistance is being made. k. Will, in the event that a Federal or State court or Federal or State administrative agency makes a finding of discrimination after a due process hearing on the grounds or race, color, religion, national origin, gender, or disability against a recipient of funds, the recipient will forward a copy of the finding to the Office of Civil Rights, Office of Justice Programs. 1. Will provide an Equal Employment Opportunity Plan, if applicable, to the Department of Justice Office of Civil Rights within 60 days of grant award. m. Will comply, and assure the compliance of all its subgrantees and contractors, with the nondiscrimination requirements and all other provisions of the current edition of the Office of Justice Programs Financial and Administrative Guide for Grants, M7100.1. 17. Will comply with the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. § 4601 et seq. [P.L. 91-646]) which provides for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal or Federally assisted programs. These requirements apply to all interested in real property acquired for project purposes regardless of Federal participation in purchases. Will also comply with Title 44 CFR, Part 25, Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally-assisted programs. 18. Will comply, if applicable, with the flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93-234) which requires recipients in a special flood hazard area to participate in the program and to purchase flood insurance if the total cost of insurable construction and acquisition is ten thousand dollars ($10,000) or more. 19. Will comply with all applicable Federal, State, and Local environmental and historical preservation (EHP) requirements. Failure to meet Federal, State, and Local EHP requirements and obtain applicable permits may jeopardize Federal funding. Will comply with all conditions placed on any project as the result of the EHP review; any change to the scope of work of a project will require reevaluation of compliance with these EHP requirements. 31 20A-37 20. Agrees not to undertake any project having the potential to impact the EHP resources without the prior written approval of DHS/FEMA/Cal EMA, including, but not limited to, ground disturbance, construction, modification to any structure, physical security enhancements, communications towers, and purchase and/or use of any sonar equipment. The subgrantee must comply with all conditions placed on the project as a result of the EHP review. Any construction- related activities initiated without the necessary EHP review and approval will result in a noncompliance finding, and may not be eligible for reimbursement with DHS/FEMA/Cal EMA funding. Any change to the scope of work will require re-evaluation of compliance with the EHP. If ground-disturbing activities occur during the project implementation, the subgrantee must ensure monitoring of the disturbance. If any potential archeological resources are discovered, the subgrantee will immediately cease activity in that area and notify DHS/FEMA/Cal EMA and the appropriate State Historic Preservation Office. 21. Will ensure that the facilities under its ownership, lease or supervision, which shall be utilized in the accomplishment of this project, are not on the Environmental Protection Agency's (EPAs) List of Violating Facilities, and will notify Cal EMA and the Federal Grantor agency of the receipt of any communication from the Director of the EPA Office of Federal Activities indicating if a facility to be used in the project is under consideration for listing by the EPA. 22. Will provide any information requested by DHS/FEMA/Cal EMA to ensure compliance with applicable laws, including the following: a. Institution of environmental quality control measures under the National Environmental Policy Act, National Historical Preservation Act, Archaeological and Historic Preservation Act, Endangered Species Act, and Executive Orders on Floodplains (11988), Wetlands (11990) and Environmental Justice (EO12898) and Environmental Quality (EO11514). b. Notification of violating facilities pursuant to EO 11738. C. Assurance of project consistency with the approved state management program developed under the Coastal Zone Management Act of 1972 (16 U.S.C. §§ 1451 et seq.). d. Conformity of Federal actions to State (Clean Air) Implementation Plans under Section 176(c) of the Clean Air Act of 1955, as amended (42 U.S.C. § 7401 et seq.). e. Protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended, (P.L. 93-523). f. California Environmental Quality Act (CEQA). California Public Resources Code Sections 21080-21098. California Code of Regulations, Title 14, Chapter 3 Section 15000-15007. g. Wild and Scenic Rivers Act of 1968 (16 U.S.C. §§ 1271 et.seq.) related to protecting components or potential components of the national wild and scenic rivers system. h. Applicable provisions of the Coastal Barrier Resources Act (P.L. 97-348) dated October 19, 1982 (16 USC 3501 et seq.) which prohibits the expenditure of most new Federal funds within the units of the Coastal Barrier Resources System. 23. Will comply with Standardized Emergency Management System (SEMS) requirements as stated in the California Emergency Services Act, Government Code, Chapter 7 of 32 20A-38 Division 1 of Title 2, Section 8607.1(e) and CCR Title 19, Sections 2445, 2446, 2447, and 2448. 24. Agrees that all publications created or published with funding under this grant shall prominently contain the following statement: "This document was prepared under a grant from FEMA's Grant Programs Directorate, U.S. Department of Homeland Security. Points of view or opinions expressed in this document are those of the authors and do not necessarily represent the official position or policies of FEMA's Grant Programs Directorate or the U.S. Department of Homeland Security." The recipient also agrees that, when practicable, any equipment purchased with grant funding shall be prominently marked as follows: "Purchased with funds provided by the U.S. Department of Homeland Security." 25. Acknowledges that DHS/FEMA reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use, and authorize others to use, for Federal government purposes: a) the copyright in any work developed under an award or sub- award; and b) any rights of copyright to which a recipient or sub-recipient purchases ownership with Federal support. 26. The recipient agrees to consult with DHS/FEMA/Cal EMA regarding the allocation of any patent rights that arise from, or are purchased with, this funding. 27. Has requested through the State of California, Federal financial assistance to be used to perform eligible work approved in the submitted application for Federal assistance and after the receipt of Federal financial assistance, through the State of California, agrees to the following: a. Promptly return to the State of California all the funds received which exceed the approved, actual expenditures as accepted by the Federal or State government. b. In the event the approved amount of the grant is reduced, the reimbursement applicable to the amount of the reduction will be promptly refunded to the State of California. C. Separately account for interest earned on grant funds, and will return all interest earned, in excess of $100 per Federal Fiscal Year. 28. Will comply with the Intergovernmental Personnel Act of 1970 (42 U.S C. Sections 4728-4763) relating to prescribed standards for merit systems for programs funded under one of the nineteen statutes or regulations specified in Appendix A of OPM's Standards for a Merit System of Personnel Administration (5 C.F.R. 900, Subpart F). 29. Will comply with provisions of the Hatch Act (5 U.S.C. Sections 1501-1508 and 7324- 7328) which limit the political activities of employees whose principal employment activities are funded in whole or in part with Federal funds. 30. Will comply, if applicable, with P.L. 93-348 regarding the protection of human subjects involved in research, development, and related activities supported by this award of assistance. 33 20A-39 31. Will comply, if applicable, with the Laboratory Animal Welfare Act of 1966 (P. L. 89- 544, as amended, 7 U.S.C. 2131 et seq.) pertaining to the care, handling, and treatment of warm blooded animals held for research, teaching, or other activities supported by this award of assistance. 32. Will comply with the minimum wage and maximum hour provisions of the Federal Fair Labor Standards Act (29 U.S.C. 201), as they apply to employees of institutions of higher education, hospitals, and other non-profit organizations. 33. Will comply, as applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. Section 276a to 276a-7), the Copeland Act (40 U.S.C. Section 276c and 18 U.S.C. Sections 874), and the Contract Work Hours and Safety Standards Act (40 U.S.C. Sections 327-333), regarding labor standards for Federally-assisted construction sub- agreements. 34. Agrees that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, 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 making of any Federal grant, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal grant or cooperative agreement. b. If any other funds than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or an employee of Congress, or employee of a Member C. of Congress in connection with the Federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form LLL, "Disclosure of Lobbying Activities," in accordance with its instructions. d. The undersigned shall require that the language of this certification be included in the award documents for all sub awards at all tiers including subgrants, contracts under grants and cooperative agreements, and subcontract(s) and that all sub recipients shall certify and disclose accordingly. e. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 35. Agrees that equipment acquired or obtained with grant funds: a. Will be made available pursuant to applicable terms of the California Disaster and Civil Defense Master Mutual Aid Agreement in consultation with representatives of the various fire, emergency medical, hazardous materials response services, and law enforcement agencies within the jurisdiction of the applicant, and deployed with personnel trained in the use of such equipment in a 34 20A-40 manner consistent with the California Law Enforcement Mutual Aid Plan or the California Fire Services and Rescue Mutual Aid Plan. b. Is consistent with needs as identified in the State Homeland Security Strategy and will be deployed in conformance with that Strategy. 36. Agrees that funds awarded under this grant will be used to supplement existing funds for program activities, and will not supplant (replace) non-Federal funds. 37. Will comply with all applicable Federal statutes, regulations, policies, guidelines and requirements, including OMB Circulars A102 and A-133, E.O. 12372 and the current Administrative Requirements, Cost Principles, and Audit Requirements. 38. Will comply with all provisions of 2 CFR, including: Part 215 Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations (OMB Circular A-110); Part 225 Cost Principles for State, Local and Indian Tribal Governments (OMB Circular A-87); Part 220 Cost Principles for Educational Institutions (OMB Circular A-21); Part 230 Cost Principles for Non-Profit Organizations (OMB Circular A-122). 39. Will comply with Subtitle A, Title II of the Americans with Disabilities Act (ADA) 1990. 40. Agrees to cooperate with any assessments, national evaluation efforts, or information or data collection requests, including, but not limited to, the provision of any information required for the assessment or evaluation of any activities within this agreement. 41. Will comply with Federal Acquisition Regulations (FAR), part 31.2 Contract Cost Principles and Procedures, Contracts with Commercial Organizations. 42. Will comply with the financial and administrative requirements set forth in the current edition of the DHS Financial Management Guide. 43. Agrees that all allocations and use of funds under this grant will be in accordance with the FY 2010 Homeland Security Grant Program Guidance and Application Kit, and the California Supplement to the FY 2010 Homeland Security Grant Program Guidance and Application Kit. All allocations and use of funds under this grant will be in accordance with the Allocations, and use of grant funding must support the goals and objectives included in the State and/or Urban Area Homeland Security Strategies as well as the investments identified in the Investment Justifications which were submitted as part of the California FY2010 Homeland Security Grant Program application. Further, use of FYI 0 funds is limited to those investments included in the California FYI 0 Investment Justifications submitted to DHS/FEMA/Cal EMA and evaluated through the peer review process. 35 20A-41 44. Will not make any award or permit any award (subgrant or contract) to any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549 and 12689, "Debarment and Suspension". 45. As required by Executive Order 12549, Debarment and Suspension, and implemented at 44 CFR Part 17, for prospective participants in primary covered transactions, a. The applicant certifies that it and its principals: i. Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of Federal benefits by a State or Federal court, or voluntarily excluded from covered transactions by any Federal department or agency. ii. Have not within a three-year period preceding this application been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property. iii. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and have not within a three-year period preceding this application had one or more public transactions (Federal, State, or local) terminated for cause or default; and b. Where the applicant is unable to certify to any of the statements in this certification, he or she shall attach an explanation to this application. 46. Agrees to comply with the Drug-Free Workplace Act of 1988, and certifies that it will or will continue to provide a drug-free workplace by: a. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition. b. Establishing an on-going drug-free awareness program to inform employees about: i. The dangers of drug abuse in the workplace; ii. The grantee's policy of maintaining a drug-free workplace; iii. Any available drug counseling, rehabilitation, and employee assistance programs; and iv. The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace. C. Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a). d. Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will i. Abide by the terms of the statement; and ii. Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction. 36 20A-42 e. Notifying the agency, in writing, within 10 calendar days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to: Department of Justice, Office of Justice Programs ATTN: Control Desk 633 Indiana Avenue, N.W. Washington, D.C. 20531 Notice shall include the identification number(s) of each affected grant. f. Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted. i. Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or ii. Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency. g. Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e), and (f). 47. Will comply with all applicable requirements of all other Federal and State laws, executive orders, regulations, program and administrative requirements, policies and any other requirements governing this program. 48. Understands that failure to comply with any of the above assurances may result in suspension, termination, or reduction of grant funds. The undersigned represents that he/she is authorized by the above named applicant to enter into this agreement for and on behalf of the said applicant. Signature of Authorized Agent: Printed Name of Authorized Agent: Title: Date: 37 20A-43 20A-44 EXHIBIT D Anaheim and Santa Ana Urban Areas Security Initiative Reimbursement Request for Grant Expenditures Mail Reimbursement Request To: F-1 This is the final reimbursement request. -FY10 UASI Grah Progra FY11 UASI Grant Program Sgt. Darrin Lee, Grant Coordinator Sgt. Enrique Esparza, Grant Coordinator Anaheim Police Department Santa Ana Police Department Emergency Management Bureau Homeland Security Division 425 S. Harbor Blvd. 60 Civic Center Plaza-P.O. Box 1981 Anaheim, CA 92805 Santa Ana, CA 92702 Agency/ City Requesting Reimbursement Payroll Total (Salaries, Overtime, Backfill, etc) Travel Total (Tuition, Meals, Lodging, etc) Equipment & Supplies Total Total Amount Requested Under Penalty of perjury, I certify that: I am the duly authorized officer of the claimant herein. This claim is in all respects true, correct, and all expenditures were made in accordance with applicable laws, rules, regulations, and grant conditions and assurances. All attached documents for items and/or services have been received in full. + Authorized Agent; Printed Name Title Mailing Address City, State, Zip Code Signature (Please sign in blue ink) Phone Number E-Mail Address Fax Number Date For Anaheim/Santa Ana UASI Grant Coordinator- Use Only Approved for Processing Date Account and Activity Number Grant Year/Grant I Project and Solution Area 38 20A-45 20A-46 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: AGREEMENTS WITH FIESTA DE CARNIVAL AND "O" ENTERTAINMENT FOR PROVIDING CARNIVALS AT CITY- OWNED PARKS Z` CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1St Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Authorize the City Manager and Clerk of the Council to execute the attached agreement amendment with Fiesta de Carnival in the amount of $46,500 for a one-year term, subject to non-substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and Clerk of the Council to execute the attached agreement amendment with "O" Entertainment in the amount of $15,250 for a one-year term, subject to non-substantive changes approved by the City Manager and City Attorney. 3. Approve an appropriation adjustment recognizing projected carnival revenue in the amount of $61,750 in the Recreation Special Fees and Donations revenue account (no. 02213002 57010) and appropriate funds to the Recreation Special Fees and Donations expenditure account (no. 02213200 62300). DISCUSSION Each year the Parks, Recreation and Community Services Agency strives to provide ten safe, clean, and affordable carnival events for our community. Fiesta De Carnival and "O" Entertainment were selected through the City's Request for Proposals (RFP) process in 2009. The proposed agreements are for the third and final year covered by the 2009 RFP. Both promoters have worked in Santa Ana for many years and have performed well under the existing agreements. In 2011 calendar year, Fiesta De Carnival and "O" Entertainment will provide the carnivals listed in Exhibit 1. The total projected annual revenue for these agreements is $61,750 per year and will be used to fund deferred maintenance needs throughout the park system. 20B-1 Agreements and Appropriation Adjustment for Carnivals at City-Owned Parks March 7, 2011 Page 2 FISCAL IMPACT The appropriation adjustment will recognize projected carnival revenue in the amount of $61,750 in the Recreation Special Fees and Donations revenue account (no. 02213002 57010) and appropriate funds to the Recreation Special Fees and Donations expenditure account (no. 02213200 62300). APPROVED AS TO FUNDS AND ACCOUNT: ,I- I l Gerardo Mouet, Executive Director Parks, Recreation and Services Agency munity A ??W'vk i TI% 1% ?L?L - Francisco Gutierrez, Executive Director I Finance and Management Services Agency 20B-2 2011 Carnival Dates Park 2011 Date Promoter Revenue 1 Jerome March 11-13 "0" Entertainment 8,250 2 Cesar Chavez/Campesino April 8-10 Fiesta De Carnival 4,500 3 Madison May 27-30 Fiesta De Carnival 8,750 4 Rosita June 10-12 Fiesta De Carnival 4,500 5 Centennial July 1-4 Fiesta De Carnival 8,250 6 Jerome August 12-14 "0" Entertainment 7,000 7 El Salvador August 5-7 Fiesta De Carnival 4,500 8 Madison September 2-5 Fiesta De Carnival 7,000 9 Cesar Chavez/Campesino October 7-9 Fiesta De Carnival 4,500 10 Delhi October 21-23 Fiesta De Carnival 4,500 61,750 Exhibit 1 20B-3 20B-4 SECOND AMENDMENT TO AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS SECOND AMENDMENT TO AGREEMENT is entered into on March 7, 2011, by and between International Promotions, Inc., dba Fiesta de Carnival, a California corporation ("Operator") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS: A. The parties entered into that certain Agreement A-2009-016, dated February 2, 2009, (hereinafter "said Agreement") by which Operator has provided has conducted carnivals at City parks. B. By Amendment A-2009-016-001, dated March 1, 2010, the parties agreed to extend the term to provide certain carnival operations during the 2010 calendar year. C. In accordance with the terms and conditions of said Agreement, the parties wish to renew the Agreement for an additional one-year period, to allow Operator to conduct certain carnivals during the 2011 calendar year. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Second Amendment to Agreement, the parties agree as follows: 1. Section 3. FEES/DEPOSITS/PERMITS/LICENSES is amended to set forth the dates and fees for the 2011 carnivals as follows: Park Date Revenue 1 Cesar Chavez/Campesino Aril 8-10 $4,500 2 Madison May 27-30 $8,750 3 Rosita June 10-12 $4,500 4 Centennial Jul 1-4 $8,250 5 El Salvador August 5-7 $4,500 6 Madison September 2-5 $7,000 7 Cesar Chavez/Cam esino October 7-9 $4,500 8 Delhi October 21-23 $4,500 Total Ci Fees $46,500 In addition to the fees set forth herein, Operator shall pay all required City fees and deposits including the fees for police services and Park clean up, and obtain all required permits and licenses as detailed in the RFP, Exhibit B hereto. All fees and deposits shall be due and payable as set forth in the RFP. Additionally, failure to pay the cleanup/damage deposit and/ or any other outstanding balances and fees a minimum of ten (10) business days prior to the start of the event will result in a penalty of $500 per day. The vendor will not be allowed to start an event if there is an unpaid balance. Vendor is subject to other monetary penalties for failure to perform as set forth throughout the RFP. 2. Exhibit B, Item 35, shall be amended to read, in full, as follows: 1 20B-5 "COMMUNITY OUTREACH BOOTHS - Vendor agrees to provide the City with a booth for community marketing and outreach. This booth will be in addition to the 20 booths described in Section II of the RFP. This booth shall be in a prominent location and include one table, two chairs and one l Ox 10 canopy." 3. Section 5 TERM, shall be amended to extend the term an additional one-year, through December 31, 2011. 4. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager INTERNATIONAL PROMOTIONS, INC. dba FIESTA DE CARNIVAL TED HOLCOMB Owner 2 20B-6 SECOND AMENDMENT TO AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS SECOND AMENDMENT TO AGREEMENT is entered into on March 7, 2011, by and between "O" Entertainment, a California corporation ("Operator") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS: A. The parties entered into that certain Agreement A-2009-017, dated February 2, 2009, (hereinafter "said Agreement") by which Operator has conducted carnivals at City parks. B. By Amendment A-2009-017-001, dated March 1, 2010, the parties agreed to extend the term to provide certain carnival operations during the 2010 calendar year. C. In accordance with the terms and conditions of said Agreement, the parties wish to renew the Agreement for an additional one-year period, to allow Operator to conduct certain carnivals during the 2011 calendar year. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Second Amendment to Agreement, the parties agree as follows: 1. Section 3. FEES/DEPOSITS/PERMITS/LICENSES is amended to set forth the dates and fees for the 2011 carnivals as follows: Park/Carnival Date License Fee Maximum Size/Scale of Event Jerome Park March 11-13, 2011 $8,750 Up to 16 carnival rides, 12 game booths, 20 food or information booths*. No live entertainment. Jerome Park August 12-14, 2011 $7,000 Up to 16 carnival rides, 12 game booths, 20 food or information booths*. No live entertainment. $15,250 In addition to the fees set forth herein, Operator shall pay all required City fees and deposits including the fees for police services and Park clean up, and obtain all required permits and licenses as detailed in the RFP, Exhibit B hereto. All fees and deposits shall be due and payable as set forth in the RFP. Additionally, failure to pay the cleanup/damage deposit and/ or any other outstanding balances and fees a minimum of ten (10) business days prior to the start of the event will result in a penalty of $500 per day. The vendor will not be allowed to start an event if there is an unpaid balance. Vendor is subject to other monetary penalties for failure to perform as set forth throughout the RFP. 2. Exhibit B, Item 35, shall be amended to read, in full, as follows: "COMMUNITY OUTREACH BOOTHS - Vendor agrees to provide the City with a booth for community marketing and outreach. This booth will be in addition to the 20 booths described in 1 20B-7 Section II of the RFP. This booth shall be in a prominent location and include one table, two chairs and one 10x10 canopy." Section 5 TERM, shall be amended to extend the term an additional one-year, through December 31, 2011. 4. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager "O" ENTERTAINMENT TROY HASSET Vice President 2 20B-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: CONTRACT RENEWAL WITH WEST COAST EQUIPMENT FOR STREET SWEEPER BROOM REWRAP (SPEC. NO. 09-007) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s' Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Renew the contract with West Coast Equipment, Inc. for street sweeper rewrap service for a one- year period in the annual amount not to exceed $61,000. DISCUSSION The Fleet Maintenance Division of the Finance and Management Services Agency is responsible for the maintenance and repair of 11 street sweepers used by the Public Works Agency. The street sweepers clean over 60,000 miles of city streets annually. The brooms on the sweepers require periodic rewrapping to maintain effectiveness. On April 6, 2009, the City Council awarded a contract to West Coast Equipment, Inc. for a one- year period with provisions for two one-year renewals. The vendor has performed satisfactorily during the past contract period and has agreed to renew the contract without an increase in pricing. Staff recommends the final renewal of the contract. FISCAL IMPACT Funds are available in the Equipment Maintenance Garage Operation account (no. 07510100 63001). Francisco Gutierrez Executive Director Finance and Management Services Agency KM 22A-1 22A-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: CONTRACT AWARD TO MERIDIAN MEDICAL TECHNOLOGIES, INC. FOR DUODOTE AUTO-INJECTORS (SPEC. NO. 11-002) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Award a contract to Meridian Medical Technologies, Inc. for the purchase of DuoDote Auto- Injectors, chemical nerve agent antidote, in the amount not to exceed $44,000. DISCUSSION On June 18, 2009, the City Council accepted a $316,403 grant from the State of California Governor's Office of Homeland Security under the Metropolitan Medical Response System Program (MMRS). The program was created in 1996 to assist highly populated jurisdictions achieve enhanced capability to respond to an event caused by a terrorist act. The Federal government requires all Cities receiving Metropolitan Medical Response System funds to maintain a supply of antidotes sufficient to treat 1000 patients for use in the event of a chemical nerve agent attack. Chemical nerve agents are extremely deadly and antidotes are the only known treatment. Currently the City of Santa Ana Fire Department maintains a supply of chemical nerve agent antidotes purchased in 2006 with a shelf life of five years. As such, the purchase of new antidote will replace the Fire Department's existing inventory and help meet the MMRS requirements. Santa Ana Ordinance No. NS-2312 authorizes the City to purchase against contracts from any public agency utilizing a competitive bid process. On August 30, 2010, The City of San Jose awarded a contract to Meridian Medical Technologies, Inc. as a result of open, competitive bidding, and meets the City's requirements. Using their existing contract provides the City with the best competitively bid pricing for the equipment needed by the Fire Department. 22B-1 Contract Award for DuoDote Auto-Injectors March 7, 2011 Page 2 FISCAL IMPACT Funds are available in the Metropolitan Medical Response System 2009 Grant account (no. 14615364-63001.). APPROVED AS TO FUNDS AND ACCOUNTS: David Thomas Fire Chief Fire Department EG Francisco Gutierrez Executive Director Finance & Mgt. Services Agency 22B-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: CONTRACT AWARD TO JWC ENVIRONMENTAL FOR SANITARY SEWER TRASH GRINDER (SPEC. NO. 11-005) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s1 Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Award a contract to JWC Environmental for one sanitary sewer trash grinder in the amount not to exceed $58,000. DISCUSSION The Public Works Agency (PWA) Water Resources Division maintains the sanitary sewer system consisting of approximately 390 miles of pipelines and 8,500 manholes. Maintaining a constant flow is of the utmost importance as sewage travels through the City's sewer system. Large objects that enter the system slow down the sewage and eventually clog or damage the pumps at the sewer pump station. The PWA evaluated the use of a sewer trash grinder to be installed into a channel/manhole as a means by which to maintain the sewage flowing at an acceptable level and prevent the impairment of sewer pumps. Through the evaluation, it was determined that the Channel Monster Single Drum grinder met all of the Water Resources Division performance standards and specifications. The notice inviting bids was advertised on February 8, 2011, and bids were solicited. A summary of the bid invitations and bids received is as follows: 4 Invitations For Bid mailed 1 Bids received from Santa Ana vendor 22C-1 Contract Award for Sewer Grinder March 7, 2011 Page 2 Bids were received and opened on February 22, 2011. The bid received from JWC Environmental is responsive to the specification and meets the City's requirements. To allow for unanticipated charges, an additional five percent contingency has been included in the award amount. FISCAL IMPACT Funds are available in the Water Production & Supply account (no.06017640-66400). APPROVED AS TO FUNDS AND ACCOUNTS: Raul God' n ez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency KM 22C-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: CONTRACT RENEWAL WITH CHANDLER'S AIR CONDITIONING FOR HEATING, VENTILATION, AND AIR CONDITIONING MAINTENANCE AND REPAIRS. (SPEC. NO. 08-077) da CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on Vt Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Renew the contract with Adelphia, Inc. d/b/a Chandler's Air Conditioning and Refrigeration for heating, ventilation, and air conditioning maintenance and repairs for a one-year period in an annual amount not to exceed $60,000. DISCUSSION The City maintains in excess of 50 buildings, including City Hall, the Corporate Yard, the Police Administration and Holding Facility, fire stations, recreation and senior centers, libraries, and park facilities. Each agency throughout the City utilizes heating, ventilation, and air conditioning (HVAC) systems that require maintenance to ensure maximum efficiency and operational reliability. The contract provides service, maintenance, parts and unit replacement as required. On March 2, 2009, the City Council awarded a contract to Chandler's Air Conditioning and Refrigeration for a two-year period, with provisions for two one-year renewals. The vendor has performed satisfactorily during the past contract period and has agreed to renew the contract. However, the vendor now requests an increase of 15 percent. Staff has contacted vendors from the previous bid and determined Chandler's Air Conditioning to be below its competitor's price structure. Staff recommends the first renewal of the contract. FISCAL IMPACT Funds are to be charged back to various departmental Maintenance & Repairs of Buildings & Grounds accounts (62320). Francisco Gutierrez Executive Director Finance and Management Services Agency KM 22D-1 22D-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: APPROVED CLERK OF COUNCIL USE ONLY: CONTRACT AWARD FOR LACY ? As Recommended NEIGHBORHOOD SEWER AND WATER ? As Amended MAIN IMPROVEMENTS 171 Ordinance on Is'Reading El Ordinance on 2 n d Reading (PROJECT NO.117508) ? Implementing Resolution ? Set Public Hearing For CONTINUED TO CITY MANAGER FILE NUMBER RECOMMENDED ACTION 1. Award a contract to Nikola Corporation, the lowest responsible bidder, in accordance with unit bid prices in the estimated amount of $1,161,351 for construction of Lacy Neighborhood sewer and water main improvements. 2. Approve a Funding Analysis with a total estimated construction cost of $1,451,500. DISCUSSION This project provides for the replacement of deteriorated and undersized sewer and water pipes (Exhibit 1). The improvements include installation of new sewer and water mains, fire hydrants, main gate valves, and water laterals. Once completed, water main breaks and leaks associated with the older and deteriorated water mains will be eliminated, and meter service capacity and fire protection will be enhanced. In addition, sewer capacity will be increased. The Notice Inviting Bids was advertised on January 17 and 19, 2011, and bids were opened on February 10, 2011. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: 8 Contractors requesting bidding documents: 35 Bids received: 13 Bids received from Santa Ana Contractors: 1 23A-1 Contract Award For Lacy Neighborhood Sewer and Water Main Improvements March 7, 2011 Page 2 NAME OF RESPONSIVE BIDDER 1. Nikola Corporation 2. Garcia Juarez Construction, Inc. 3. Cedro Construction, Inc. 4. Paulus Engineering, Inc. 5. T.B.U., Inc. 6. Mike Prlich & Sons, Inc. 7. Sully-Miller Contracting Company 8. Dominguez General Engineering, Inc. 9. MNR Construction, Inc. 10. Mike Bubalo Construction Company, Inc. 11. SRD Engineering Inc. 12. Kana Pipeline, Inc. 13. Sandavol Pipeline Engineering 14. J. De Sigio Construction, Inc. 15. Kennedy Pipeline Company CITY BID AMOUNT Irvine $1,161,351.00 Baldwin Park $1,167,180.00 Santa Paula $1,267,313.00 Anaheim $1,269,661.00 Beaumont $1,271,550.00 Santa Ana $1,287,581.50 Brea $1,289,450.00 Rosemead $1,289,802.00 San Dimas $1,299,295.00 Baldwin Park $1,319,590.00 Anaheim $1,357,182.00 Placentia $1,479,970.00 Rancho Cucamonga $1,499,240.00 Baldwin Park $1,580,440.00 Aliso Viejo $2,462,723.86 A total of 15 bids were received and all were responsive. The lowest bid was submitted by Nikola Corporation for $1,161,351 which is below the Engineer's estimate of $1,510,330. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempt from further review. Categorical Exemption Environmental Review No. 2010-150 has been filed. In addition, a Certification of Categorical Exclusion and a Statutory Worksheet have been prepared in accordance to the National Environmental Policy Act. The City has received the authority to use grant funds in response to the request for release of funds submitted to the U.S. Dept. of HUD. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $1,451,500 for the project (Exhibit 2). Funds are available in the CDBG Public Facilities fund (accounting unit 13518783- 66220). 23A-2 Contract Award For Lacy Neighborhood Sewer and Water Main Improvements March 7, 2011 Page 3 v Ra'bt-Godinez II Executive Direct r Public Works Age cy Nancy E ards Interim E cutive Director Community Development Agency RG/ET Exhibit 1: Project Location Map 2: Funding Analysis APPROVED AS TO FUNDS AND ACCOUNTS: ?c ncR? it?r L ? _? Francisco Gutierrez Executive Director Finance & Management Services Agency 23A-3 23A-4 Exhibit 1 VICINITY MAP NOT TO SCALE .tlOfy City Council Title: LACY NEIGHBORHOOD ezG, l Agenda Date SEWER AND WATER MAIN IMPROVEMENTS I f MARCH 7, 2011 PROJECT NO. 11-7508 FUNDING ANALYSIS PROJECT NO. 11-7508 LACY NEIGHBORHOOD SEWER AND WATER MAIN IMPROVEMENTS Construction Contract Contract Administration Inspection and Testing Survey Staking Contingencies TOTAL ESTIMATED CONSTRUCTION COSTS Exhibit 2 $1,161,351 $58,034 $81,200 $34,800 $116,135 $1,451,500 23A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: CONTRACT AWARD WITH CALIFORNIA PROFESSIONAL ENGINEERING, INC. FOR TRAFFIC SIGNAL SYSTEM UPGRADES - PHASES 1, 2, 3, AND 4 (PROJECT NOS. 106708, 106709, 106710, AND 106711) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1st Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Award a contract to California Professional Engineering, Inc., the lowest responsible bidder, in accordance with unit bid prices for the base bid plus add-on alternates one, two, three, and four in the estimated amount of $226,965 for construction of Traffic Signal System Upgrades- Phases 1, 2, 3 and 4. 2. Approve a Funding Analysis with a total estimated construction cost of $306,400. DISCUSSION The current traffic signal system that controls most of the City's traffic signals is outdated and no longer supported by the manufacturer. Several years ago, the City implemented a new traffic signal management system and is in the process of transitioning into the new system by replacing the existing signal controllers with ones that are compatible with the new system. The City has replaced less than half of all signal controllers using Measure M funds. This construction contract will replace an additional 28 traffic signal controllers and cabinets. The Notice Inviting Bids was advertised on December 27 and 29, 2010, and bids were opened on January 18, 2011. A summary of the bid invitations mailed, the bids received, and the bid results follows. Santa Ana Contractors receiving notices: 23 Contractors requesting bidding documents: 9 Bids received: 7 Bids received from Santa Ana Contractors: 0 23B-1 Contract Award for Traffic Signal System Upgrades March 7, 2011 Page 2 NAME OF RESPONSIVE BIDDER 1. California Professional Engineering, Inc 2. Steiny & Company, Inc. 3. Pro Tech Engineering Corporation 4. Dynalectric 5. CT&F, Inc. 6. VT Electric, Inc. 7. PTM General Engineering Services BASE BID PLUS ALTERNATES ONE CITY BASE BID THROUGH FOUR La Puente $194,815 $226,965 Baldwin Park $199,723 $237,911 Corona Del Mar $248,150 $306,825 Los Alamitos $272,883 $314,496 Bell Gardens $281,584 $328,851 Upland $290,957 $322,807 Riverside $410,970 $476,076 Due to recent competitive nature of the bids, the City added additional work in the form of add-on alternates for each project in anticipation that the bids may be below the engineer's estimate. A total of seven bids were received and all were responsive. The lowest bid plus add-on alternates one, two, three, and four was submitted by California Professional Engineering, Inc. for $226,965, which is below the Engineer's estimate of $385,650. ENVIRONMENTAL IMPACT After completion of Environmental Reviews Nos. 2010-04, 2010-05, 2010-06 & 2010-07, Categorical Exemptions will be filed for these projects pursuant to the California Environmental Quality Act. FISCAL IMPACT The funding analysis shows a total estimated construction cost of $306,400 for the project (Exhibit 2). Funds are available in the Measure M Fund (accounting unit 03217660-66220). APPROVED AS TO FUNDS AND ACCOUNTS: z'/ ! , '-4r INCN mt -71 Raul God nez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG/ET Exhibit 1: Project Location Map 2: Funding Analysis 23B-2 SANTA ANA ?, City Council P¦ WA ¦ Agenda Date: VUBUC WORKS AGENCY February 22, 2011 EXHIBIT 1 CONTRACT AWARD Traffic Signal System Upgrade Phases 1, 2, 3 & 4 (Project Nos. 106708, 106709, 106710, 106711) 23B-3 IOIy?\ r 23B-4 FUNDING ANALYSIS PROJECT NOS. 106708, 106709, 106710, AND 106711 TRAFFIC SIGNAL SYSTEM UPGRADES PHASES 1, 2, 3, AND 4 Exhibit 2 23B-5 23B-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: SECOND AMENDMENT TO AGREEMENT WITH GTSI CORP. REGARDING FY2009 INTEROPERABLE EMERGENCY COMMUNICATIONS GRANT PROGRAM CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s` Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute a second amendment to agreement #A-2010-116 that was entered into on July 5, 2010 by and between GTSI Corp. and the City of Santa Ana, subject to non-substantive changes approved by the City Manager and City Attorney. Approval will allow for expenditure of remaining FY 2009 Interoperable Emergency Communications Grant Program (IECGP) funds. DISCUSSION The United States Department of Homeland Security has developed the Interoperable Emergency Communications Grant Program (IECGP). The IECGP provides funds to emergency first responders to improve interoperable emergency communications, including communications in collective response to natural disasters, acts of terrorism, and other man-made disasters. The grant specifically provides funding for the creation of plans, protocols and procedures and to conduct training and exercises. The SAPD Urban Area Security Initiative (UASI) grant office handles grant administrative responsibilities regarding the IECGP. The City of Santa Ana entered into Agreement #A-2010-116 with GTSI Corp. on July 5, 2010 at which time the agreed compensation amount was $2,134,762. A first amendment to agreement was entered into on December 6, 2010 that brought total compensation to this amount. An additional $48,051 remain from the total grant award of which the SAPD UASI requests be paid to GTSI Corp. for the creation of additional procedural manuals, specifically Interoperability Field Operations Guides. FISCAL IMPACT Grant funds are available in the FY 2009 IECGP expenditure account (no. 12514488-62300- 10428101182-3501). The SAPD UASI Grant Office will continue to seek draw down funds from the State prior to expenditure/disbursement. 25A-1 Amendment to Agreement With GTSI Corp. March 7, 2011 Page 2 -//?F tV^ti&k-'- Paul M. Walters Chief of Police Police Department Exhibits: Second Amendment to Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 25A-2 SECOND AMENDMENT TO AGREEMENT THIS SECOND AMENDMENT TO AGREEMENT, is entered into on March 7, 2011 by and between GTSI Corp., a Virginia 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 parties entered into Agreement No. A-2010-116, dated July 5, 2010, (hereinafter "said Agreement") by which Consultant has provided administrative planning support, professional staff planning support, and technical planning support. B. Said Agreement was subsequently amended by First Amendment to Agreement No. A-2010-116, dated December 6, 2010, to amend the Scope of Services to provide additional administrative planning support, professional staff planning support, and technical planning support. C. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Scope of Services to provide additional technical planning support services to be performed by Consultant, and to increase compensation to pay for such additional support services. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Second Amendment to Agreement, the parties agree as follows: 1. Section 1, SCOPE OF SERVICES, shall be amended to have Consultant provide additional technical planning support services, as set forth in Exhibit A-2, attached hereto and incorporated by this reference. 2. Section 3, COMPENSATION, shall be amended to increase compensation to an amount not to exceed $48,051.00 to pay for additional support services performed by Consultant, as set forth in Exhibit A-2, attached hereto and incorporated by reference. 25A-3 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA Maria D. Huizar DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY GTSI Corp. By: Teresa L. Judd Assistant City Attorney Beverly Lester Contract General Manager Tax ID# 25A-4 EXHIBIT A-2 25A-5 • 2553 Dulles View Dr, Suite 100 ^c V? Herndon, VA 20171 v GTSI Corp, c uttomero ders@gtsi.com Sales Quotation www.gtst.com To: TERRIOKAZAKI CA - CITY OF SANTA ANA PO BOX 1988 (92702) 20 CIVIC SANTA ANA CA 92701 USA Reference No: Proposal No: 11-13207 Govt. Contract # : R009-997736-42D Ship Via: GROUND CUSTOMER #: 20067802 Quotation #: QUT5093805 Date: 11-FEB-2011 Sales Rep.: ROWENA HELGESEN Phone: 703/502-2601 FAX: 703/463-5894 GTSI P/N LINE# CLIN Manufacturer Item Description Unit Price Quantity Extended Price Mfg P/N Contract Vehicle 001 699733 GTSI NETWORK SERVICES INTEROPERABILITY COMMUNICATIONS CONSULTING $48,051.00 1 $48,051.00 ....................................................................................................................................................................................................... .................................... 41030 RQ09-997736-42D SUBTOTALS : $48,051.00 TAX : $0.00 TOTAL : $48,051.00 -------------------------------------------------------------------------------------------------------------------------------------------------------- ****** ATTENTION CONTRACTING ****** Unless otherwise specified within this quote or agreed to by the Seller in writing, full payment for order is due within 30 days of receipt of equipment or services. -------------------------------------------------------------------------------------------------------------------------------------------------------- ' The prices in this quote are valid for 30 calendar days following the Quotation date. This quote is only valid in its entirety and POs placed for partial items in a quote may be rejected. * All orders are subject to availability. * Any quotes containing items with Part Numbers SKU TBD or 000-000 are considered budgetary quotes with estimated prices, which are not binding. Please contact your Sales Representative for an updated and final quote before placing an order. Unless otherwise stated, pricing shown for maintenance/support requires payment in full within 30 days of the invoice date. All orders are subject to Return Policy: http://www.gtsi.com/services/returnpolicy.aspx ' Electronic and information technology (EIT) listed on this quotation shall be capable, at the time of its delivery, when used in accordance with the contractor's associated documents, and other written information provided to the government, of providing comparable access to individuals with disabilities consistent with the terms and conditions applicable to this contract at the time of award, provided that any assistive technologies used with the listed EIT properly interoperates with it and other assistive technologies. ACH or Electronic Funds Transfer (EFT) Payment by Check For questions related to ACH enrollment or EFT, please NT ON YOUR PURCHASE ORDER: "PARTIAL SHIPMENT AND PAYMENT AUTHORIZED". THIS ALLOWS US TO DROP SHIP ITEMS DIRECTLY TO THE SHIP TO LOCATION, AS WELL AS DELIVER THE ITEMS WE HAVE IN STOCK, AS SOON AS POSSIBLE, Please reference the following on your purchase order: Quote # QUT5093805 Contract # RQ09-997736.42D Payment Terms : Due in 30 Days in confidence and contains trade secrets or confidential commercial and financial information exempt from disclosure by exemption 3 and 4 of the Freedom of Information Act (FOIA) and the Trade Secrets Act. 5 U.S.C.A. Section 552(b)(3) and (4). 18 U.S.C.A.Section 1905. Do not copy or distribute any portion of this quotation to others without notification to the Seller pursuant to executive order 12600. 25A-6 gtsi? One Mission. Yours. Prnnncprl Sarvicas Santa Ana Police Department Interoperability Communications Consulting, Phase 11 Change Order 2 GTSI-11-13207 0.0 Santa Ana PD Interoperability Project: Communications Consulting, Phase II Reference Quote: QUT5093805 Change Order 2 Date: February 11, 2011 Quote Total: $48,051.00 Customer POC: GTSI POC: Work Site: Sgt. Henry Esparza Roberta Kane Willdan offices or SPA member facilities (714) 245-8729 (703) 244-4894 eesparza santa-ana.or roberta.kane@gtsi.com Project Overview This change order is in reference to proposal GTSI-10-13046 Santa Ana PD Interoperability Communications Consulting and includes the update of Task #4 for Milestone #17. Task 4 An IFOG distribution medium will be determined by a "best method" process for each user section and distributed to each identified end user. Printed copies of the IFOG will be printed and delivered in accordance with the following schedule: • Large population counties (San Diego/ Imperial, Riverside, San Bernardino) will each receive 400 copies each. • Small population counties (Inyo, Mono, San Luis Obispo, Santa Barbara, Ventura) will each receive 100 copies each. • Orange County will receive 1,250 copies. • Los Angeles County will receive 1,000 copies Acceptance Criteria Acceptance will be governed by the terms in the original proposal, GTSI-10-12549, v1.0. Project Pricing The total rice of this change to Task #4 for Milestone #17 is offered at $48,051.00. Payment Services: upon completion of the tasks Project Deliverables Monthly Status Report Terms listed above (milestone #17) Estimated Period of Work will be completed by May Payments due Net 30 Performance 31, 2011 TechnlcaUPr cln4rA.ss 0tlohs, "1. , None at this time GeneraMss...._ ptionsc - 1. GTSI assumes that all information contained within this proposal to be true and correct to the best of th k l d f e now e ge o GTSI and our Partners. Based on that assumption, pricing is being provided as per the requirements. If during the performance of this contract any discrepancies are identified, GTSI may choose to accept the additional work or submit a change order proposal to the Santa Ana Police Department. If after contract award the project schedule is delayed at any point due to reason beyond GTSI's control, GTSI reserves right to submit a request for additional compensation for delay of performance. This may include additional travel dollars or professional services hours. 2. This proposal is valid for a period of 30 days from receipt of proposal and is limited to the scope of work as defined above. 3. Each deliverable shall be presumed accepted ten (10) days after receipt by the COR, unless the COR otherwise notifies GTSI of nonconformance. 4. GTSI's request for resources and/or meetings will be acknowledged by an authorized representative of Santa Ana Police Department to include an estimate of time required to make available the requested resources should resources be required. GTSI will be afforded access to appropriate resources within the Customer's facilities, including, but not limited to: related employees/vendors/ developers/consultants, appropriate work space, hardware, software, and network connections. 5. Any enhancements to, or modifications of, any software or hardware utilized in the support of the "Project" not covered in this proposal will be negotiated as a separate price. 6. In the event of termination of this proposal prior to completion of GTSI's services, for any reason whatsoever, and notwithstanding which Party terminates, Customer agrees to pay GTSI: (i) for all GTSI Services performed by GTSI or its subcontractors in accordance with the proposal invoiced and/or to be invoiced but to date unpaid (fees, expenses , milestone payments), up to the effective date of termination. Customer must provide a written Notice of Termination to GTSI. 7. Personnel Security Requirements: Upon award, if any necessary documentation is requested for security it should be forwarded to the GTSI Facility Security Office. All other clearance documentation or requests can also be forwarded to the Facility Security Office. Email:security.clearance.office@gtsi.com Address:2553 Dulles View Drive 25A-7 47) gtSL. Santa Ana Police Department f4o Interoperability Communications Consulting, Phase 11 Change Order 2 One Mission. Yours. GTSI-11-13207 0.0 Proposed Services Suite 100 Herndon, Virginia 20171-5219 Attn: Facility Security Office Telephone: 703-463-5136 8. Please be advised that only a GTSI Contract Manager has the authority to negotiate changes to price, performance, deliverables, schedules, specifications, or terms outlined in this proposal. Furthermore, the GTSI Contract Manager will finalize all proposals for signature by the Director of Contracts. 25A-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: AGREEMENT WITH AARDVARK TACTICAL FOUNDATION FOR TACTICAL SCIENCE COURSE CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1stReading ? Ordinance on 2ndReading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of Council to execute the attached agreement with Aardvark Tactical Foundation, to provide the Tactical Science Course to first responders in the Urban Area in an amount not to exceed $164,000, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The United States Department of Homeland Security developed the Urban Areas Security Initiative (UASI) funding program. UASI provides funds to local emergency first responders to enhance security and overall preparedness to prevent, respond to, and recover from acts of terrorism. The grant specifically provides funding for anti-terrorism equipment, planning, training, and exercises. The City of Santa Ana has fiscal responsibility for the FY09 UASI grant for the Anaheim/ Santa Ana Urban Area which encompasses the 34 jurisdictions in Orange County. The grant calls for training to allow first responders to more effectively respond during crises and critical incidents. The Tactical Science Course is the only course of its type that has received a Peace Officer Standards and Training (POST) course control number. FISCAL IMPACT Funds are available in the FY 2009 UASI Grant Program through Project H - Training fund account (no.12514407-62300-10425501187) as approved by the City Council with Resolution No. 2009-042. 25B-1 Agreement with Aardvark Tactical Foundation to conduct Tactical Science Course MARCH 7, 2011 Page 2 APPROVED AS TO FUNDS AND ACCOUNTS: caw ? .S Paul M. Walters Chief of Police Police Department Exhibit: 1. Agreement Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency 25B-2 THIS AGREEMENT, made and entered into this 7th day of March, 2011 by and between Aardvark Tactical Foundation 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. City, acting through the Santa Ana Police Department in its capacity as a Core City and lead agency for the Anaheim / Santa Ana Urban Area under the FY09 Urban Areas Security Initiative ("UASI"), has applied for, received and accepted a grant from the federal Department of Homeland Security and through the State of California, Emergency Management Agency, to enhance countywide emergency preparedness, hereinafter referred to as "the Grant." B. The City desires to conduct a Tactical Science Course Training Program, collectively "Tactical Science." C. Consultant represents that they have the necessary skills and experience to provide assistance in designing, planning and conducting the Training. D. Consultant has submitted a Proposal dated February 16, 2011 ("the Proposal"), which identifies the scope, tasks and general timelines for providing the services and the costs thereof. 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: 1. SCOPE OF SERVICES Consultant shall conduct two Tactical Science Courses for the Anaheim / Santa Ana Urban Area, in accordance with Consultant's Proposal, attached hereto as Exhibit A, and incorporated by reference. All services required hereunder shall conform in all respects to standards for such Training issued by the U.S. Department of Homeland Security. The parties anticipate that additional training may be planned and executed during the term of this Agreement. The City Manager and Chief of Police for the City of Santa Ana are hereby authorized to approve such additional training, in writing, as they determine will fulfill the objectives of the Grant. Pagel of 8 25B-3 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 A. The total sum to be expended under this Agreement shall not exceed $164,000 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing the completion of milestones as set forth in Exhibit A, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals that may reasonably be expected by City. 3. USE AND OWNERSHIP OF DOCUMENTS It is understood by and agreed to between the parties that all documents, outlines, materials distributed during classes, and any other written papers or materials prepared for the presentations hereunder, paid for with funds paid by Santa Ana and/or Grant funds, or composed utilizing information provided by Santa Ana, shall be the property of Santa Ana and shall be delivered to Santa Ana upon completion of the services hereunder. Santa Ana shall grant Consultant a license to utilize such property for its own business purposes so long as such use is not contrary to the interests of Santa Ana. 4. TERM This Agreement shall commence on the date first written above and terminate on satisfactory completion of all training and submission of required evaluation and After Action Reports to the City, which the parties agree should be substantially complete on or before March 30, 2012. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. 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, agents, volunteers, and employees as Page 2 of 8 25B-4 additional insured(s) and 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 covered act or occurrence arising out of Consultant's operations in the performance of this Agreement. 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. Consultant shall supply City with a fully executed additional insured endorsement to be approved in form by the City Attorney. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. 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. c. Professional Liability Insurance. If Consultant is or employs a licensed professional such as an architect or engineer, Consultant shall provide professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim and not less than $2,000,000 annual aggregate. d. 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 cancelled without thirty (30) days prior written notice to the City. Ten (10) days notice if cancellation is due to non-payment of premium. 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. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, and special counsel from liability for personal injury, or just compensation, arising out of claims for personal injury, including health, and claims for property damage, to the extent they arise from the negligent or willful misconduct in the performance of operations or errors or omissions 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. Page 3 of 8 25B-5 Inasmuch as measures to prevent or mitigate the effect of any act or terrorism are unique to the act, and the actions that may be taken in controlling, preventing or suppressing acts of terrorism are unique to the act, Consultant is not responsible to City for designing or advising on or otherwise taking measures to prevent or mitigate the effect of any act of terrorism or any action which may be taken in controlling, preventing, suppressing or in any way relating to an act of terrorism. 8. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: 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: Santa Ana Police Department UASI / Homeland Security Division Page 4 of 8 25B-6 60 Civic Center Plaza P.O. Box 1981 (M-97) Santa Ana, California 92702 Telefacsimile (714) 245-8745 Attn: Enrique Esparza 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: Tim Anderson Aardvark Tactical Foundation 1935 Puddingstone Drive La Verne, California 91750 Telefacsimile (909) 392-5771 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not 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. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without Page 5 of 8 25B-7 the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 14. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ma 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. Page 6 of 8 25B-8 17. CONSULTANT CERTIFICATIONS a. Audit Records - With respect to all matters covered by this agreement all records shall be made available for audit and inspection by the City, the grant agency and/or their duly authorized representatives for a period of three (3) years from the termination of this Agreement. For a period of three years after final delivery hereunder or until all claims related to this Agreement are finally settled, whichever is later, Consultant shall preserve and maintain all documents, papers and records relevant to the services provided in accordance with this Agreement, including the Attachments hereto. For the same time period, Consultant shall make said documents, papers and records available to City and the agency from which City received grant funds or their duly authorized representative(s), for examination, copying, or mechanical reproduction on or off the premises of Consultant, upon request during usual working hours. b. Consultant shall provide to City all records and information requested by City for inclusion in quarterly reports and such other reports or records as City may be required to provide to the agency from which City received grant funds or other persons or agencies. C. Section 504 of the Rehabilitation Act of 1973 (Handicapped) - All recipients of federal funds must comply with Section 504 of the Rehabilitation Act of 1973 (The Act). Therefore, the federal funds recipient pursuant to the requirements of The Act hereby gives assurance that no otherwise qualified handicapped person shall, solely by reason of handicap be excluded from the participation in, be denied the benefits of or be subject to discrimination, including discrimination in employment, in any program or activity that receives or benefits from federal financial assistance. The Consultant agrees it will ensure that requirements of The Act shall be included in the agreements with and be binding on all of its contractors, subcontractors, assignees or successors. d. Americans with Disabilities Act of 1990 - (ADA) Consultant must comply with all requirements of the Americans with Disabilities Act of 1990 (ADA), as applicable. e. Political Activity - None of the funds, materials, property, or services provided directly or indirectly under this agreement shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office, or otherwise in violation of the provisions of the "Hatch Act." f.. Civil Rights Compliance and Notification of Finding - Consultant will comply, and all its contractors (or subrecipients) will comply, with the nondiscrimination requirements of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 USC 3789 (d), or Victims of Crime Act (as appropriate); Title VI of the Civil Rights At of 1964, as amended; Section 504 of the Rehabilitation Act of 1964, as amended; Subtitle A, Title 11 of the Americans with Disabilities Act (ADA) (1990); Title IX of the Education Amendments of 1972; the Age Discrimination Act of 1975; Department of Justice Non-Discrimination Regulations, 28 CFR Part 42, Subparts C, D, E, and G; and Department of Justice regulations on disability discrimination, 28 CFR Part 35 and 39. In the event a Federal or State court, Federal or State administrative agency, or the Consultant makes a finding of discrimination after a due process hearing on the grounds of race, color, religion, national origin, sex, or disability against a Page 7 of 8 25B-9 recipient of funds, the Consultant will forward a copy of the findings to the City which will, in turn, submit the findings to the Office of Civil Rights, Office of Justice Programs, U.S. Department of Justice. 18. 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. CITY OF SANTA ANA, a municipal Corporation of the State of California ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: By: Teresa L. Judd Assistant City Attorney DAVID N. REAM City Manager AARDVARK TACTICAL FOUNDATION Tim Anderson Director of Operations Tax ID# Page 8 of 8 25B-10 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: AGREEMENT FOR ENVIRONMENTAL SERVICES WITH THE PLANNING CENTER i (?? rl tr--,.s CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15` Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute the attached agreement with The Planning Center for environmental services in an amount not to exceed $33,628 for Athletic Field Improvements at Willard Intermediate School, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION In November 2010, the City of Santa Ana was awarded a $4.4 million grant from the State of California to improve the athletic field at Willard Intermediate School for the purpose of providing a public park. The new park will be a joint-use recreational facility for Willard students during school hours and then open to the community for its use after school, on weekends, and during the summer, winter, and spring school breaks. The improvements include the installation of a synthetic turf sports field, tarton running track, sports lighting, a restroom building, tot lot (play equipment area), three basketball courts, and decorative fencing. After reviewing the proposal, it was determined that a Negative Declaration will be required to meet the requirements of the California Environmental Quality Act (CEQA). A Request for Proposal (RFP) for consultant services was authorized by the City Council on February 7, 2011. The RFP was prepared and sent to four different environmental firms. A proposal was received from one environmental firm. After reviewing the proposal, the firm was found to be qualified, and the Planning Center was selected based on the firm's experienced staff, knowledge of the study area, and ability to complete the work in a timely manner. Therefore, The Planning Center is recommended for the environmental consultant for the project. The consultant has identified a cost of $33,628 for the negative declaration and associated technical studies to be prepared (Exhibit 1). 25C-1 Agreement with The Planning Center March 7, 2011 Page 2 FISCAL IMPACT Funds are available in the Parks and Recreation grant account (no. 01113200-62300). The total contract amount will not exceed $34,000. APPROVED AS TO FUNDS AND ACCOUNTS: J y q. -Trevino Ex utive Director Planning and Building Agency Francisco Gutierrez Executive Director Finance & Management Services Agency L C Gerardo Mouet Executive Director Parks, Recreation & Community Services Agency HS:rb hs\WiIIiad_EIementary\RFP RFCAccContract Exhibit: 1. Agreement 25C-2 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into this day of , 2011 by and between THE PLANNING CENTER, a California corporation ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"), RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of professional environmental reports and services. B. Consultant represents that Consultant is able and willing to provide siich 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 professional environmental services, including the preparation of a mitigated negative declaration regarding the Willard Intermediate School Athletic Fields Improvement project. The scope of services (including estimated fees and costs) is attached hereto as Exhibit A and is incorporated by this reference to this Agreement. 2. DELIVERY OF WORK PRODUCT Consultant shall deliver to City all work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with the City's computer system, as agreed between the Project Manager and Consultant. In regard to all copyrightable material produced as a deliverable under this Agreement, including but not limited to books, reports, plans, photographs, drawings, films, recordings, videotapes, and computer programs, Consultant agrees, for itself and for its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty-free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 25C-3 3. COMPENSATION City agrees to pay, and Consultant agrees to accept as total payment for its services, the cumulative rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not'exceed $33,628.00 during the term of this Agreement. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on the date first written above and terminate upon the completion of the Scope of Services or depletion of the maximum contract amount as stated in Section 3 above, unless terminated earlier in accordance with provisions, below. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insureds) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed 2 25C-4 additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City, f If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect- Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise due to negligent acts, omissions or willful misconduct, from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any 25C-5 claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from, and to the extent of Consultant's, negligent acts, omissions or willful misconduct in the performance of this Agreement. 8. CONFIDENTIALITY If Consultant teceives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE - Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons; To City: City of Santa Ana C/o Clerk of the Council 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With copy to: Executive Director of PBA City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 4 25C-6 telefacsimile (714) 973-1461 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant:The Planning Center Dwayne Mears, AICP Principal, School Facilities Planning 1580 Metro Drive Costa Mesa, CA 92626 telephone (714) 966-9220 telefacsimile (714) 966-9221 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, betNveen 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 proposal or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without 25C-7 the City's prior written consent shall be considered mill and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any.of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services 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. 25C-8 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City 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 fiilly 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: CITY OF SANTA ANA MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA City Attorney By: Ryan 0. Hodge Assistant City Attorney DAVID N. REAM City Manager THE PLANNING CENTER DWAYNE MEARS T Principal, School Facilities Planning RECOMMENDED FOR APPROVAL: JAY TREVINO Executive Director - PBA WILLIAM HALLIGAN, Esq. Vice President 7 25C-9 25C-10 EHIBIT A SCOPE OF SERVICES (Attached) 25C-11 I SCOPE OF SERVICES The City of Santa Ana and Santa Ana Unified School District were awarded a $4.4 million Proposition 84 grant to improve the athletic field at Willard Intermediate School for the purpose of creating a public park. The improvements include installation of a synthetic turf sports field, all-weather running track, lighting for night- time use, restroom building, tot lot, three basketball courts, and fencing. The facilities will be joint use, with the school using the fields during school hours and the City and community using the facilities after school hours, on weekends, and during school-43reaks. While events such as a track meet or soccer match will likely occur at the facility, it is assumed that bleachers (and large spectator events) are not part of this project. Willard Intermediate School is located In a residential area with very limited access to parks. The proposed lighted track and field would be about 80 feet from the front of the residential structures on Parton Street. While the field Is already used by students during school hours, the project would introduce nighttime events with associated light and glare, noise and additional parking demand. Project Approach Based on our understanding of the project and our experience with similar projects, we believe that the project will not require a full E1R, but can be cleared through a (Mitigated) Negative Declaration. We will prepare the various studies in an objective manner and work with City (and District) staff and consultant team whenever project changes or mitigation measures are necessary to reduce impacts to a less than significant level. If any impacts remain significant despite best efforts at finding solutions, an EIR would be required, resulting in a change to this scope. We are not aware of any Federal funding or other involvement in this project, hence we do not believe the requirements of NEPA will be triggered. Initial Study/MND The Planning Center will prepare an Initial Study containing a description of the project and environmental setting, identification of responsible and trustee agencies, a checklist of impacts, a review of each topic, and appropriate mitigation measures. Mitigated Negative Declaration The Initial Study will be attached to the Mitigated Negative Declaration (MND). As required In CEQA Guidelines Section 15071, the MND will contain a brief description of the project, the applicant's name, the location of the project site, the proposed finding of no significant impacts, and a list of mitigation measures. Notice of Intent to Adopt. The Planning Center will prepare a Notice of Intent to Adopt the MND. Document Printing and Circulation. The firm will print copies and be responsible for distributing the MND. The creation of a mailing list of adjacent residents and property owners is not included in this scope, but can be added if requested. (Such a mailing is not required by CEQA.) Document Revisions. Following the close of the public review period, responses will be prepared and, if appropriate, the MND may be revised. For budgeting purposes, a maximum number of hours is assumed for preparation of responses to comments. Additional effort would require a modification of this scope and fee. Mitigation Monitoring Program. A Mitigation Monitoring Program will be prepared for the MND. THE PLANNING CENTER I ?RrJP 5 J:1_ J ?? ,'i^R'rdE^,l?c SC 170E ATH_ci lL 71F i6,-F.pd?t,5`cl;' 25C-12 TECHNICAL STUDIES Light and Glare The Planning Center will conduct a nighttime site reconnaissance to document the existing lighting conditions in the area. Because the proposed site and surrounding lands are flat, there are no topographical features that would obscure existing or future light. We will document the location of adjacent residences and existing ambient lighting conditions. The description will include information on the residential lines of sight to the existing site and proposed athletic facilities. Nighttime light levels (in foot-candles) will be measured to establish the baseline condition in the project vicinity. Existing sources of light and Illuminated areas will be"docuinented. Assess Proposed Project and Lighting Plan: We will review the lighting plans and specifications, and location and dimensions of the athletic field. Construction of the lighting model will require the following information from the district architect: + Number and location of poles + Number of lights on each pole + Wattage of each light + Type of lighting-element + Beam type + Anticipated aiming angles + Field coverage requirements/target field lighting Illumination level in foot-candles Construct LightingSlmulation Modeb Construct a lighting simulation model of the school athletic field based on the information provided by the district. We will use Autodesk° 3ds Max` 2010 software application to generate the point-by-point calculation for the proposed field lights. The calculated Illumination levels (foot- candies) on and adjacent to the athletic field will be overlaid on the proposed project site plan to create the report figure. The final figure will have foot-candle levels and lighting contours to show the illumination levels in concentric circles. This task does not include simulation of buildings, trees, fences, or other solid objects that would block light. Lighting contour will be constructed over all intervening objects. If a more precise simulation is required that includes buildings and trees and fences, additional budget will be requested. However, for CEQA analysis, unless there is an unusual circumstance, light trespass at property lines adjacent to the field is the depth of analysis required. Evaluate of Glare Potential.. Light-sensitive uses identified in the first task and drivers on surrounding streets that have a direct unobstructed view of the proposed lighting elements may be affected by glare. To assess this potential, we will identify the line of sight between each of the proposed lighting elements and adjacent light- sensitive uses. The line of sight will take into account the height of the pole, proposed aiming angle, beam type, light hoods or louvers, and distance to surrounding sensitive uses. Traffic and Parking (optional task) An analysis will be conducted to determine the impacts of the proposed athletic field/park project on traffic and parking conditions in the vicinity of the project site. The streets providing access to the site will be inventoried with regard to such physical characteristics as number of lanes, types of traffic control devices, sidewalk locations, and driveway locations. Traffic conditions will then be evaluated based on existing and projected future peak hour traffic volumes and Intersection levels of service. Traffic volume data will be collected from the City of Santa Ana, if available. Where needed, new traffic counts will be taken at the streets and intersections in the project vicinity to update and supplement. the available data. The traffic counts will be taken during the weekday and weekend afternoon peak periods. It Is anticipated that the analysis will include Ross Street, 15th Street, Parton Street, Washington Avenue, 17th Street, Flower Street, Broadway, and up to eight intersections in ?J+IINltJC IS'HIf?I,ITfL+.Iw SOMETii,!IG .5% -ti -„ tilt; go*tj 4=;'S"C2_A3?3FtT? 25C-13 I the project area, Staff at the City of Santa Ana will be consulted to identify the intersections that will be evaluated. The future baseline traffic volumes will be forecast by considering the effects of general area-wide growth and the cumulative volumes of traffic that would be generated by other proposed development projects in the area. The impacts of the proposed project will be determined by estimating the levels of traffic that the activities at the athletic fields and park would generate then conducting a before-and-after analysis of traffic conditions on the streets and intersections in the site vicinity (Le., traffic conditions with and without the proposed project). The volume of traffic that would be generated by the athletic fields and park will be based on the trip generation rates from the Institute of Transportation Engineers' Trip Generation manual. The traffic analysis will address the project's impacts during the afternoon peak period on a typical weekday and on a weekend day. The analysis will also address the anticipated parking impacts of the proposed project. Potential measures for mitigating the adverse traffic and parking impacts (if any) will be identified -in consultation with the City of Santa Ana. The analysis methodology, assumptions, and findings will be summarized In report sections suitable for Insertion Into the environmental document. Air Quality Potential air quality impacts associated with construction and operation of the project will be analyzed in the EIR. The analysis will be based on the South Coast Air Quality Management District's (SCAQMD) methodology for projects in the South Coast Air Basin (SOCAB). Air pollutant emissions will be quantified using the CALEEMOD computer model for both the construction and operational phases. Construction modeling will be based on construction phasing, the construction schedule, and anticipated equipment for each type of construction activity, Air pollutant emissions will be compared to SCAQMD's regional thresholds of significance to determine the significance of project-related construction emissions due to the expansion of the stadium and reconfiguration of the athletic field. Onsite localized project-related emissions associated with vehicle exhaust and dust generated during the construction phase will also be evaluated against SCAQMD's screening-level localized significance thresholds (LSTs) for projects under five acres to determine whether sensitive residential uses along local roadways would be exposed to air pollution that exceeds the ambient air quality standards (AAQS). Project-related emissions will also be evaluated relative to consistency with the air quality management plan. Greenhouse Gas Emissions The EIR will quantify greenhouse gas (GHG) emissions for area sources, energy (purchased energy, energy from water transport, use, and treatment), waste disposal, and transportation emissions sources generated by the project. The potential effects of GHG emissions, history of GHG emissions regulation In California, and project- related GHG emissions will be discussed. Project consistency with the CARB Scoping Plan's statewide GHG emissions reduction strategies will also be reviewed. Noise and Vibration The existing field is currently used for physical education and sporting events during daylight hours. With the addition of lights, the field and courts will be used during evening hours, which will increase noise levels until closing, which is likely to be 10:00 PM, For the purposes of this scope, we assume that no bleachers will be installed onsite and amplified sounds systems will not be allowed. The CEQA document will evaluate potential impacts resulting from the construction and operation of the project. The noise analyses will be consistent with the noise compatibility standards of the District and the City of Santa Ana. The short-term construction analyses will focus on potential noise and vibration impacts on sensitive land uses such as the onsite school classrooms and local residential uses. Based on the anticipated construction schedule and equipment list, construction-related noise and vibration levels will be calculated for THE PLANNING CENTER IPROPOSALWIL:A.R ii:TERMEDiATESCHWLAT"LEMRELDIN.PR7JEtJcT.:. 25C-14 the project using published data from the US Environmental Protection Agency and Federal Transit Administration. The noise analyses will evaluate the potential for project-related traffic and stationary sources to substantially elevate the ambient noise environment. Other Environmental Issues The remaining impact areas, including geology and soils, hydrology, land use, public services and utilities, etc., will be addressed in their respective sections in the Initial Study. Most issues will be addressed based on plans from the project architects and readily available information contained in the City of Santa Ana's General Plan and General Plan EIR and similar sources. PUBLIC DISTRIBUTION AND N01 FILING Our cost estimate assumes one iteration of revisions, no substantive changes to the project description, and no additional modeling/analysts required. Once the Initial Study is approved by the City for reproduction, a Notice of Intent (NOI) to adopt the MND will be prepared using the City's standard form, if available. After City approval of the Initial Study/MND and NOI, The Planning Center will copy and distribute the NOi for the required 30-day public review to the public, responsible agencies, and other special interest groups or individuals identified by the City.'The'Planning Center will also prepare a newspaper notice for the City to publish In a newspaper of genera! circulation in the area affected by the proposed project. FINAL MND/RESPONSES TO COMMENTS Although not required by CEQA, It is The Planning Center's standard practice and recommendation to respond to all environmental comments on the MND. Responses will focus on comments that address the adequacy of the MND. Comments that do not address MND adequacy will be noted as such and no further response will be provided, unless deemed necessary by the City. If an unexpectedly large volume of comments is received or if certain comments result in the need for substantial response or new research or analysis, the Initial budget may not be sufficient. MITIGATION AND MONITORING PROGRAM A Mitigation Monitoring Program (MMP) will be prepared (if necessary) pursuant to Section 21081.6 of the Public Resources Code. NOTICE OF DETERMINATION The NOD will be prepared by The Planning Center. It is assumed that the City will file the NOD with the County Clerk and State Clearinghouse. This proposal does not include the County of Orange filing fee or the Fish and Game fee. GENERAL TIME SCHEDULE AND FEES Figure 2 shows our proposed project schedule, which is followed by our fee proposal to prepare the Initial Study and Lighting Study for the project. PL4NNING IS'HINKING AN1 OWNG S0IA7-m PJG ABOUT Ti: .FU_TJRE NUS.'. 6`E. 25C-15 0 0 r U N N R 'O d N _C l0 w N 7 d U d N O CL. 0 n. d a rn 25C-16 C4 zc z? w w ?aU rz-,-,l Q i ? r I E ? C M ? 1 ? r 1 c i0 y, e v c d a 25C-17 ag S 5?Lyg tyy O Z F. X @ as 8 -? m w ?y 7qy W u LL°' :per ?F 25C-18 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with?regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to this endorsement form as a part of Tamed Insured Countersigned by Authorized Representative 9 25C-19 25C-20 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: PAYMENT AUTHORIZATION TO JSI TELECOM FOR MAINTENANCE OF COMMUNICATIONS INTERCEPT ROOM SERVERS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15t Reading ? Ordinance on 2"3 Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize payment to JSI Telecom for an annual maintenance plan for the Police Department's Communication Intercept Room in the amount not to exceed $16,605. DISCUSSION The Police Department's electronic communications intercept room (Wire Room) provides the capability to conduct approved telephone intercepts. The Wire Room is one of only a few in Orange County and is an integral part of the City's Gang Task Force efforts with the Federal Bureau of Investigation (FBI). As such, other municipal and federal agencies also rely on its intercept capabilities. In order for the Wire Room to remain operational, an annual maintenance plan is required to ensure effective on-going use and to maintain the necessary standards. FISCAL IMPACT Funds are available in the Police Criminal Activities Contract Service - Professional account (no.02614450-62300). APPROVED AS TO FUNDS AND ACCOUNTS: r°?=s Paul M. Walters Chief of Police Me?1i• .?_=o ?? P" I. Francisco Gutierrez Executive Director Finance & Management Services Agency knn 25D-1 25D-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: AGREEMENT AMENDMENT WITH NORTH AMERICAN SECURITY INC. FOR THE PROVISION OF SECURITY SERVICES AT THE SANTA ANA LIBRARY CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s' Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement amendment with North American Security Inc. for an additional $18,968 for a total agreement amount not to exceed $43,968, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION In an effort to provide a safe and pleasant place for the community to gather, read, study, and access technology, the City has engaged North American Security to provide security officers for the two library branches. The current agreement with North American Security commenced on December 1, 2010. This $25,000 agreement will provide funding through mid March 2011. This amendment will add an additional $18,968 to the existing agreement and allow the Library to continue with North American Security through the end of May 2011. This amendment includes funding for up to three months ($13,968) and a $5,000 contingency for unanticipated work. The new agreement not to exceed amount will be $43,968. As you know, the City issued Request for Proposals (RFP) for security services in January and is currently evaluating proposals. The recommended security companies will be submitted for City Council authorization after the review of proposals has been completed sometime this spring. North American Security has provided well trained officers for both branches, they have performed their responsibilities as required, and staff is satisfied with their services. 25E-1 North American Security Amendment March 7, 2011 Page 2 FISCAL IMPACT Funds for this agreement are available in the Library Adult Services Contract Services account (no. 01111150 62300). APPROVED AS TO FUNDS AND ACCOUNT: Gerardo Mouet, Executive Director Parks, Recreation and Community Francisco Gutierrez, Executive Director Executive Director C Finance and Management Services Agency Services Agency 25E-2 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on March 7, 2011, by and between North American Security, Inc., a California corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS: A. The parties entered into that certain Agreement N-2010-110, dated December 1, 2010, (hereinafter "said Agreement") by which Consultant has provided security services at the Santa Ana Library. B. In accordance with the terms and conditions of said Agreement, the parties wish to increase available compensation to provide continuing security while the City completes the bid process to obtain security services at various City facilities. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: 1. Section 2, COMPENSATION, shall be amended to increase compensation by $18,968.00, to pay for services through June 30, 2011. The total not to exceed amount of said Agreement shall be $43,968.00 during the term of said Agreement. 2. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. CITY OF SANTA ANA ATTEST: MARIA D. HUIZAR Clerk of the Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH STRAKA City Attorney NORTH AMERICAN SECURITY, INC. RECOMMENDED FOR APPROVAL: GERARDO MOUET Executive Director - PROS KEN HILLMAN Vice President 25E-3 25E-4 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: LOAN AGREEMENT - 605-611 EAST WASHINGTON STREET ?l CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15` Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager, or designee, and Clerk of the Council to execute the attached loan agreement with Santa Ana WBBB, LP in an amount not to exceed $2,500,000, subject to non- substantive changes approved by the City Manager and City Attorney. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its regular meeting on February 15, 2011, by a vote of 5:0 (Bist absent), the Community Redevelopment and Housing Commission approved the recommended action. DISCUSSION On March 1, 2010, Orange Housing Development Corporation (OHDC), a non-profit 501(c)(3), and C&C Development (C&C), a for-profit developer, were awarded the contract to implement the multi-family rental program funded by the Federal National Stabilization Program (NSP). They have formed a Limited Partnership named Santa Ana WBBB, LP (Developer) for financing purposes. In June 2010, the developer acquired foreclosed vacant lots at 605-611 East Washington (Exhibit 1) using NSP funds. The entitlement process is being completed and the project is proceeding with funding in order to commence construction. The developer proposes to construct 36 multi- family rental units of which 10% or 4 units will be rented to extremely low income families (at or below 30% of the Area Median Income (AMI)) and 31 units will be rented to very low income families (at or below 50% of AMI). The one remaining unit will be designated as a manager unit. The project will have 8 two-bedrooms, 27 three-bedrooms and 1 five-bedroom. The following table contains the breakdown of the units by bedroom size and affordability as well as maximum rents: 25F-1 Loan Agreement - 605-611 E. Washington Street March 7, 2011 Page 2 Gross Rents for Units for Affordable Units 30% AMI 50% AMI No. Of Bedrooms Gross Rent # of Units Max. Income Gross Rent # of Units Max. Income 2 n/a 0 n/a $981 8 $41,850 3 $724 4 $30,100 $1134 22 $50,200 5 n/a 0 n/a $1395 1 $61,350 The architecture and materials for this project are designed to promote sustainability. The developer will be seeking Leadership in Energy & Environmental Design (LEED) Gold Certification for this development. LEED is a third-party certification program and the nationally accepted benchmark for the design, construction and operation of high performance green buildings. There are four levels of LEED certification: Certified, Silver, Gold and Platinum. The total development cost is $14,832,587. The developer will be applying to the California Debt Limit Allocation Committee (CDLAC) for tax exempt financing and to the California Tax Credit Allocation Committee (TCAC) for low income housing tax credits; both sources will be used to help meet permanent and construction financing costs. There is a $6,389,497 gap and staff is recommending it be filled with $2.5 million from HOME and $3,888,497 from the Redevelopment Agency. The following table summarizes the sources and uses: Sources Tax Exempt Bonds/Permanent Lender $ 1,987,126 HOME (City) $ 2,500,000 Tax-Increment (Redevelopment Agency) $3,888,497 NSP Funds/Ac uisition 655,000 General Partner Equity $ 67 Deferred Developer Fee $1,027,183 Limited Partner Equity Tax Credits $ 4,774,714 Total $14,832,587 Uses Acquisition 671,250 Construction $ 9,694,087 Fees and Permits $1,014,085 Developer fee $1,764,193 Soft Costs $ 1,271,365 Costs Deferred Until Conversion $ 234,031 Financing Costs $ 183,577 Total $ 14,832,587 25F-2 Loan Agreement - 605-611 March 7, 2011 Page 3 E. Washington Street Construction of these units will assist the City and Agency in meeting the Regional Housing Needs Assessment (RHNA) goals identified in the Housing Element, Consolidated Plan and the Implementation Plan. In addition, the 5 bedroom unit will fulfill the only outstanding replacement housing obligation of the Agency. ENVIRONMENTAL COMPLIANCE In accordance with the National Environmental Policy Act, the proposed project has been cleared per Section 58.36, Part 58. Pursuant to Section 15238(b) of the California Environmental Quality Act, the construction of these housing units is ministerial, and is exempt from review. FISCAL IMPACT Funds are available in the HOME account (no. 13018780-69151). &Jau-cili Nancy T. ards Interim Ex tive Director Community Development Agency NTE/SLB/JP-H/mlr Exhibits: 1. Map 2. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director U Finance & Management Services Agency 25F-3 25F-4 as!s I srH ST fV78 j424 141.9 PROJECT SITE: ,.756 3as 1430 415 605-611 E. Washington 14t0 1348 p F4 ,4-v z 335 i7'4 :776 14TH ST 317 37S J37, 317 J00 A4x 300 .71 1 UNx 4. ^ \\ 5SWA$HINGTgNAY ??\ 1130 73S ? ? ? ? ? $ m r 7 4 ? ` 1174 2.29 171N 7I7 rI1N ? t IIS .1!4 Y t?s 605 - 611 East Washington Exhibit 1 25F-5 25F-6 LOAN AGREEMENT This LOAN AGREEMENT ("Agreement") is entered into on this 7th day of March, 2011 by and among the CITY OF SANTA ANA, a California municipal corporation and charter city duly organized and existing under the Constitution and Laws of the State of California ("City"), the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic ("Agency"), and SANTA ANA WBBB, LP., a California limited partnership (collectively, "Developer"). RECITALS The following recitals are a substantive part of this Agreement: A. In furtherance of the objectives of the California Community Redevelopment Law, Health and Safety Code Section 33000, et seq. ("Redevelopment Law"), the Agency desires to assist in the redevelopment of certain real property located at 605-611 East Washington (APN# 398-151-11 and 398-151-12), within the boundaries of the City, as more particularly described on Exhibit A and incorporated herein ("Property"). The Property consists of undeveloped vacant property. A map of the Property ("Site Map") is attached hereto and incorporated herein as Exhibit B. A Site Plan is attached hereto and incorporated herein as Exhibit C. B. The Property is currently owned by the Developer. The Developer acquired the Property using funds loaned to the Developer by the City ("NSP Loan") pursuant to that certain Neighborhood Stabilization Program Rental Housing Development Loan Agreement, dated as of June 1, 2010 ("NSP Loan Agreement"). The NSP Loan is evidenced by that certain City Promissory Note Secured by Subordinated Deed of Trust to the City of Santa Ana, California (605-611 E. Washington Street), dated as of June 1, 2010 ("NSP Promissory Note"), in the original principal amount of $655,000, and is secured by that certain City Deed of Trust and Assignment of Rents in favor of the City, recorded against the Property in the official records of Orange County, California, on June 2, 2010 ("NSP Deed of Trust"). Pursuant to the NSP Loan Agreement, Developer shall comply with those certain Affordability Covenants and Restrictions by and between Developer and City, recorded against the Property in the official records of Orange County, California on June 2, 2010 as Instrument No. 2010000258490 ("NSP Covenants"). The NSP Loan Agreement, NSP Promissory Note, NSP Deed of Trust, and NSP Covenants are referred to collectively herein as the "NSP Documents." C. In furtherance of the HOME Program, the Redevelopment Law, and the Agency's Redevelopment Plan, Developer has applied to City and Agency for Loans with which to: 1. construct the Improvements at the Property, 2. provide deeper levels of affordability for the Affordable Units at the Property, and thereafter to maintain, operate and professionally manage the Property as decent, safe, sanitary and affordable rental housing. D. The City, Agency and Developer desire by this Agreement for City and Agency to provide financial assistance to Developer in the form of loans and for the Developer to agree to y., construct and maintain affordable multi-family residential housing on the Property which shall remain affordable for a period of not fewer than 55 years. City shall provide a "City Loan" and the Agency shall provide an "Agency Loan" (together, the "Loans") to the Developer for development of the Property, all in accordance with the terms of this Agreement. E. Separate Promissory Notes shall be executed by Developer in the amount of the Loans to be made by City and Agency to Developer pursuant to this Agreement. The Agency Promissory Note will be in the original principal amount of $3,888,497 (see the Agency Promissory Note attached hereto and incorporated herein as Exhibit F) and the City Promissory Note will be in the original principal amount of $2,500,000 (see the City Promissory Note attached hereto and incorporated herein as Exhibit G). Separate Deeds of Trust will be executed for each promissory note and recorded against the Property in the Official Records (see the Agency Deed of Trust and City Deed of Trust attached hereto and incorporated herein as Exhibits H-1 and H-2, respectively). F. The City's and Agency's respective Loans to the Developer, and the Developer's construction of the Improvements on the Property pursuant to the terms of this Agreement, are in the vital and best interest of the City and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements under which the redevelopment of the Project has been undertaken. G. Prior to and as a Condition Precedent to disbursement of any portion of the Loans, Developer shall apply for an obtain (and submit evidence documenting the same to the Executive Director) (1) an allocation of tax exempt bond financing from the California Debt Limit Allocation Committee (CDLAC), (2) an allocation of federal 4% low income housing tax credits ("Tax Credits") from the California Tax Credit Allocation Committee (TCAC), and (3) a firm commitment for a Senior Loan from a Senior Lender, all as reasonably approved by the Executive Director pursuant to Section 311.1 below. H. It is agreed by and between the Parties that the foregoing Recitals are a substantive part of this Agreement and the following terms and conditions are approved and together with the Recitals and all exhibits and attachments hereto, all of which are incorporated herein by this reference, shall constitute the entire Agreement between the Agency and Developer. 1. If there is any discrepancy between federal and state guidelines with regard to any of the terms and conditions contained herein, the more stringent (most restrictive) requirements shall apply. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City, Agency and Developer agree as follows: 100. DEFINITIONS AND INTERPRETATION 101. 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 Section 101. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and the rents governed by California Health and Safety Code Section 50053. Zs9-s "Affordability Restrictions" means that certain Affordability Restrictions on Transfer of Property, which contains the covenants and restrictions pertaining to the operation, maintenance, and management of the Project as Affordable Housing for a term of not fewer than 55 years, which covenants and restrictions shall run with the land, to be executed by the Agency, the City, and the Developer and recorded against the Property in the Official Records. The Affordability Restrictions and the legally required notice thereof are attached hereto as Exhibit I and incorporated herein. "Affordable Rent" means the monthly rents which do not exceed the maximum amount applicable to Extremely Low Income and Very Low Income households, as applicable, as described in Article 700. "Agency" is defined in the preamble hereto. In the event the Agency is disestablished, dissolved, ceases to exist, or otherwise becomes unable to exercise its rights under this Agreement prior to the expiration of the Term, the City shall be entitled to exercise any and all rights granted to the Agency hereunder. "Agency/City" means the Agency and/or the City, as the context dictates. "Agency Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit H-1 to be executed by Developer in order to secure the Agency Promissory Note. "Agency Loan" means the loan to be made to Developer by the Agency solely from tax increment moneys. "Agency Promissory Note" means that certain promissory note in the original principal amount of $3,888,497, in the form attached hereto as Exhibit F, which shall be executed by Developer in favor of Agency to evidence the obligation of Developer to repay the Agency Loan through residual receipts as further described in the Agency Promissory Note. "Agreement" means this Loan Agreement by and among the City, Agency and Developer. "Area Median Income" or "AMI" shall mean the median income for the Orange County, California PMSA as determined by HUD from time to time. "Annual Budget" and "Operating Budget" shall mean the annual operating budget for the Project that sets forth the projected Operating Expenses (defined in the Promissory Notes) for the upcoming year that is subject to and shall be submitted for review and approval by Executive Director, in his/her reasonable discretion, each year during the Affordability Period. "Basic Concept and Schematic Drawings" are described in Section 302.3. "Building Permit" means the building and grading permit(s) to be issued by City and required for the construction of the Improvements. "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. 20-9 "City" is defined in the preamble hereto. "City Loan" means the loan to be made to Developer by City solely from HOME Program funds. "City Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit H-2, to be executed by Developer in order to secure the City Promissory Note. "City Promissory Note" means that certain promissory note in the original principal amount of $2,500,000, in the form attached hereto as Exhibit G, which shall 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. "Conditions Precedent" means the conditions precedent to the disbursement of any portion of the proceeds of the Loans, including the initial disbursement and the final disbursement of the Retainage, as set forth in Sections 601, 602 and 603. "Construction Contract" means each and every contract between Developer, the General Contractor, and/or any subcontractor for the construction of the Improvements, or any part thereof, including construction of any on-site or off-site improvements included in the Scope of Development, the land use entitlement approved by the City, and the approved Design Development Drawings. The Construction Contract between Developer and the General Contractor shall be for a fixed fee to complete all work to be performed or caused to be performed by the General Contractor under such Construction Contract. Each Construction Contract shall be reviewed and reasonably approved (or disapproved) by Executive Director, with each contract to include: (i) a full recitation of Section 3 and the Section 3 Clause with an express acknowledgement and agreement by the General Contractor and each subcontractor, as applicable, to fully comply with the Section 3 Clause, (ii) an express acknowledgement and agreement by the General Contractor and each subcontractor, as applicable, that as a Condition Precedent to the final payment under its contract, the General Contractor or subcontractor, as applicable, shall provide written evidence, in form reasonably satisfactory to the Executive Director and/or HUD, that it and all its subcontractor(s) have complied with the Section 3 Clause in completing the development of the Project, and (iii) reference to all other applicable federal regulations and laws based on the final federal funding sources, if any, to which such General Contractor or subcontractor, as applicable, must comply in undertaking the construction and development of the Project; provided it is understood by the parties that it is and shall remain primarily the Developer's obligation to obtain and submit all required Section 3 Clause documentation. "County" means the County of Orange, California. "Deeds of Trust" means, collectively, the Agency Deed of Trust and City Deed of Trust. "Design Development Drawings" means those plans and drawings to be submitted to the City and Agency for approval, pursuant to Section 302.1. "Developer" is defined in the preamble hereto. Developer is a California limited partnership currently comprised of Orange Housing Development Corporation, a California non-profit public benefit corporation and community housing development organization, and C&C Development Co., LLC, a California limited liability company. 250-10 "Developer's Representative" shall mean the Chief Executive Officer or the Managing General Partner of Developer or his/her designee. "Environmental Laws" means any federal, state or local law, statute, ordinance or regulation pertaining to environmental regulation, contamination or cleanup of any Hazardous Materials including, but not limited to: (i) sections 25115, 25117, 25122.7,or 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter- Presley-Tanner Hazardous Substance Account Act), (iii) Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) Section 311 of the Clean Water Act (33 U.S.C. section 1317), (vi) Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. section 6901, et seq. (42 U.S.C. section 6903, (vii) Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9601 et seq., or (viii) any state or federal lien or "superlien" law, any environmental cleanup statute or regulation, or any permit, approval, authorization, license, variance or permission required by any governmental authority having jurisdiction. "Event of Default" and "Default" are defined in Section 2001. "Executive Director" means, collectively, the City Manager of the City and/or the Executive Director of the Agency, and/or the authorized designee(s) of either of them. "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, as adjusted for household size and periodically published by HUD, as such qualifying limit is amended from time to time. "General Contractor" means the general contractor to be hired by Developer to engage and supervise the subcontractors in the performance and completion of the construction of the Improvements and all other on-site and off-site improvements required to be constructed in connection with the Project, all in accordance with the Scope of Development, the land use entitlement to be approved by City, and the approved Design Development Drawings. The General Contractor shall be reasonably acceptable to and approved by the Executive Director, in his or her reasonable discretion. [The parties acknowledge that the General Contractor will not be performing actual construction work for any portion of the Project, but instead shall hire subcontractors, who shall be reasonably approved by the Executive Director.] [confirm] "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. "Governmental Requirements" means all applicable laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County, the City, or any other political subdivision with jurisdiction over property within the City, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the Agency, Developer or Property, including all applicable federal, state, and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing 250-11 wage requirements, the City zoning and development standards, City permits and approvals, building, plumbing, mechanical and electrical codes, as they apply to work undertaken pursuant to this Agreement, and all other provisions of the City and its Municipal Code (as they apply to work undertaken pursuant to this Agreement), and the Unruh Civil Rights Act, Civil Code § 51 et seq. "Hazardous Materials" means any substance, material, or waste which is or becomes, regulated by any local governmental authority, the State of California, or the United States government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste under Section 25115, 25117, or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance," or " hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated biphenyls, (viii) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section 1317), (ix) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.,(42 U.S.C. section 6903) or (x) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. section 9601 etseq. "HOME Program" shall mean the Title II of the Cranston-Gonzalez National Affordable Housing Act, as amended, specifically the HOME Investment Partnership Act, 42 U.S.C. § 12701, et seq. and the implementing HOME Regulations at 24 CFR §92.1, et seq., as such law now exists and as it may hereafter be amended, to the extent applicable to the Project. "HOME Regulations" shall mean the implementing regulations of the HOME Program set forth at 24 CFR §92.1, et seq. as such regulations now exist and as they may hereafter be amended, to the extent applicable to the Project. Developer covenants hereunder to comply with the Redevelopment Law and all applicable HOME Regulations in the performance of this Agreement and the other Project Documents, whichever are more restrictive. In implementation of these requirements, this Agreement, the Project, and all eligible contributions and expenditures hereunder shall conform to the following: a. The housing developed hereunder does and shall qualify as affordable housing under 24 CFR §92.252 because each Housing Unit shall be rented at an Affordable Rent; and b. This Agreement serves as the written agreement that imposes and enumerates (by meeting or exceeding) all of the affordability requirements from 24 CFR §92.252; the property standards requirements of 24 CFR §92.251; and income determinations made in accordance with 24 CFR §92.203. "HOME Units" shall mean eleven (11) of the Housing Units (specifically, ten (10) of the three-bedroom units and one (1) five-bedroom unit) which shall be designated as HOME Units and shall be subject to all applicable HOME Regulations. [All HOME Units shall be "Low HOME" units 250-12 pursuant to the HOME Regulations.] [confirm] The HOME Units shall be "fixed" HOME Units, such that the specific Housing Units designated as HOME Units shall not change. Developer shall designate eleven (11) of the Housing Units as HOME Units, subject to approval by the Executive Director and in accordance with this paragraph, the HOME Program, and the HOME Regulations. "Housing Unit" or "Housing Units" means the thirty-six (36) individual apartment units at the Property to be constructed, leased, managed, and operated by Developer as long term Affordable Housing and in implementation of the Project (inclusive of the Affordable Units and the HOME Units). "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures to be constructed by Developer at the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting), all as more specifically defined in Section 301 and in the Scope of Development attached hereto. "Indemnitees" means City and Agency, and their past and present elected officials, officers, employees, attorneys, contractors, elective and appointive boards and commissions, representatives, agents, and volunteers. "Legal Description" means the legal description of the Property attached hereto as Exhibit A and incorporated herein. "Loan Documents" means, collectively, this Agreement, the City Promissory Note, the City Deed of Trust, the Agency Promissory Note, the Agency Deed of Trust, the Affordability Restrictions, and any other agreement, document, or instrument that the City or Agency requires in connection with the Loans or from time to time to effectuate the purposes of this Agreement. "Loans" means the Agency Loan and the City Loan. "Notice" is defined in Section 2102. "NSP Loan" means the loan made to the Developer by the City pursuant to that certain Neighborhood Stabilization Program Rental Housing Development Loan Agreement, dated as of June 1, 2010. Developer used the proceeds of the NSP Loan to pay the cost of acquiring the Property. "NSP Covenants" means those certain Affordability Covenants and Restrictions by and between Developer and City, recorded against the Property in the official records of Orange County, California on June 2, 2010 as Instrument No. 2010000258490, which set forth certain affordability, use and maintenance restrictions applicable to the Property and the Project. "NSP Deed of Trust" means that certain City Deed of Trust and Assignment of Rents recorded against the Property in the Official Records on June 2, 2010 as Instrument No. 2010000258491, which secures repayment of the NSP Loan. "NSP Documents" is defined in Recital B. 250-13 "Official Records" means the official land records maintained by the Recorder of the County. "Partnership Agreement" means the Amended and Restated Limited Partnership Agreement of Santa Ana WBBB, LP, dated August 9, 2010, as it may be amended in accordance with the financing for the Project that is approved by the Executive Director pursuant to Section 31 L. "Project" means the construction of the Improvements upon the Property and the operation of the Project by Developer pursuant to this Agreement and the Project Documents. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Project Documents" means this Agreement and the other Loan Documents, the NSP Documents, the Affordability Restrictions, and all other documents, agreements and instruments to be executed by Developer in furtherance of the Project. "Promissory Notes" means the Agency Promissory Note and the City Promissory Note. "Property" means that certain parcel of real property that is located at 605-611 East Washington in the City of Santa Ana, and is. more fully described in the Legal Description of the Property attached hereto as Exhibit A, which is incorporated herein by reference. "Redevelopment Law" means the California Community Redevelopment Law, Health and Safety Code Section 33000, et seq., as it may be amended from time to time. "Release of Construction Covenants" has the meaning set forth in Section 310. "Retainage" is defined in Section 611. "Schedule of Performance" means the Schedule of Performance attached hereto as Exhibit J and incorporated herein, which sets forth the dates and/or time periods by which certain obligations set forth in this Agreement must be accomplished. The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Executive Director, and the Executive Director is authorized to make such revisions as he or she deems reasonably necessary. "Scope of Development' means the Scope of Development attached hereto as Exhibit K and incorporated herein, which describes the scope, amount and quality of development of the Improvements to be constructed by the Developer pursuant to the terms and conditions of this Agreement. "Senior Lender" means the state of federal financial institution that provides the Senior Loan, as approved by City pursuant to Section 311. "Senior Loan" shall mean the senior loan being made by the Senior Lender concurrent with the Agency Loan and the City Loan, for payment of a portion of the Project Costs, and shall include any subsequent loan that refinances the initial Senior Loan (as approved by the Executive Director). The Senior Loan shall consist of those related loan documents including, but not limited to the Senior Loan Agreement and the Senior Deed of Trust (collectively "Senior Loan Documents"). 250-14 "Senior Loan Deed of Trust" means the deed of trust securing the Senior Loan by encumbering the Property. "Senior Loan Documents" means, collectively, the Senior 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. "Site Map" means the map depicting the Site which is attached hereto as Exhibit B and incorporated herein. "Site Plan" means the Site Plan depicting the Improvements which is attached hereto as Exhibit C and incorporated herein. "Tax Credits" is defined in Recital G. "Term," "Term of Affordability" and "Affordability Period" shall mean the term of effectiveness of this Agreement and the Affordability Restrictions, which shall each remain in effect for not fewer than fifty-five (55) years from the issuance of the final Certificate of Occupancy for the Project. "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, as adjusted for household size, and periodically published by HUD, as such qualifying limit is amended from time to time. 102. Singular and Plural Terms. Any defined term used in the plural in this Agreement or any other Loan Document 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. 103. References and Other Terms. Any reference to this Agreement or any Loan Document shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles and Sections shall be construed as references to this Agreement unless a different document is named. References to Exhibits shall be construed as references to the exhibits attached 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." 104. Exhibits Incorporated. All attachments and exhibits attached to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. 200. PROJECT BUDGET A line-item budget for the Project, [including a summary statement of sources and uses of funds and a projected cash flow showing repayment of the Loans,] is included in Exhibit D ("Project Budget"). Developer shall submit a final, updated Project Budget to Agency/City for approval by the Executive Director as a Condition Precedent to the initial disbursement of any proceeds of the Loans. 250-15 Any material change to the approved Project Budget requested by Developer shall be subject to the prior written approval of the Executive Director. 300. DEVELOPMENT OF THE SITE 301. Scope of Development. Subject to all of the other terms and conditions set forth in this Agreement, Developer shall develop or cause the development of the Improvements on the Property in accordance with the Scope of Development, the City of Santa Ana's Municipal Code, and the Basic Concept and Schematic Drawings and Design Development Drawings submitted by Developer and reasonably approved by the City and Agency as set forth herein, at all times set forth in the Schedule of Performance. The Improvements shall generally consist of the construction of a thirty-six (36) unit multi-family residential Project on the Property (including eight (8) two-bedroom units, twenty-seven (27) three-bedroom units, and one (1) five-bedroom unit), along with associated landscaping and other required onsite and offsite improvements. The Improvements are generally depicted on the Site Plan and described in the Scope of Development. 302. Design Review. 302.1 Developer Submissions. Within the time set forth in the Schedule of Performance and as a Condition Precedent to disbursement of any portion of the Loans, the Developer shall submit to the Agency/City any and all plans and drawings which may be required by the City with respect to any permits and land use entitlements which are required to be obtained to develop the Improvements, and such plans for the Improvements as required by the City in order for the Developer to obtain Building Permits for the Improvements (collectively, the "Design Development Drawings"). Within thirty (30) days after the Agency/City's disapproval or conditional approval of such plans, the Developer shall revise the portions of such plans identified by the Agency/City as requiring revisions and resubmit the revised plans to the Agency/City. The Design Development Drawings shall be consistent with the Site Plan and the approved Basic Concept and Schematic Drawings. 302.1.1 Special Development Requirements. The Design Development Drawings shall, to the extent compatible with applicable design requirements of the City of Santa Ana and the Project Documents, 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 passive solar design, environmentally sensitive landscaping, installation of energy efficient furnaces and water heaters (Energy Star Appliances), and installation of high efficiency toilets. 302.2 City Review and Approval. The City and the Agency shall have all rights to review and approve or disapprove all Design Development Drawings and other required submittals in accordance with the Santa Ana Municipal Code and this Agreement, and nothing set forth in this Agreement shall be construed as the City/Agency's approval of any or all of the Design Development Drawings. 302.3 Basic Concept and Schematic Drawings. The Basic Concept and Schematic Drawings for the Project were submitted to the Agency and City prior to the execution of this Agreement by Developer. Agency and City shall review and approve, conditionally approve or disapprove the Basic Concept Drawings for the Project (and Developer shall make any required revisions) within the time set forth in the Schedule of Performance. The Basic Concept and 10 25F-16 Schematic Drawings generally depict all improvements and include the Site Plan, all exterior elevations, renderings showing the exterior design, architectural style, and appearance of the affordable housing development, landscaping concepts, and the interior floor plans for each unit to be developed on the Property. The objective of the Basic Concept and Schematic Drawings prepared and submitted by the Developer to the City was to provide reasonable opportunity to evaluate the aesthetic appearance, neighborhood compatibility, and general scope and quality of the Project on the Property. The Improvements shall be developed in accordance with the approved Basic Concept and Schematic Drawings and related documents, except for such changes which may be mutually agreed upon between the Developer and the Executive Director. Any such changes shall be within the limitations established in the approved Design Development Drawings. In the event of any inconsistency between the Design Development Drawings and the Basic Concept and Schematic Drawings, the approved Design Development Drawings shall govern. 302.4 Revisions. Any and all change orders or revisions required by the City and its inspectors which are required under the Municipal Code and all other applicable Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under other applicable laws and regulations shall be included by the Developer in its Design Development Drawings and other required submittals and shall be completed during the construction of the Improvements. 302.5 Defects in Plans. The Agency and the City shall not be responsible either to the Developer or to third parties in any way for any defects in the Design Development Drawings, nor for any structural or other defects in any work done according to the approved Design Development Drawings, nor for any delays reasonably caused by the review and approval processes established by this Section 302. 303. Land Use Approvals. Before commencement of construction of the Improvements or other works of improvement upon the Property, the Developer shall, at its own expense, secure or cause to be secured any and all land use and other entitlements, permits and approvals which may be required for the Improvements by the City or any other governmental agency affected by such construction or work. The Developer shall, without limitation, apply for and secure the following (as required), and pay all costs, charges and fees associated therewith: (a) Lot Line Adjustment/Merger; (b) Developer shall obtain all building and grading permits and pay all fees required by the City, Orange County and other governmental agencies with jurisdiction over the Improvements. Notwithstanding anything to the contrary set forth herein, the execution of this Agreement does not constitute the granting of or a commitment to obtain any required land use permits, entitlements or approvals required by the Agency or the City. Developer acknowledges and agrees that all plans prepared for the Project (including the Design Development Drawings) shall be subject to the City's normal planning review process and further that such plans may be subject to review by the City's Planning Commission. 304. Schedule of Performance. The Developer shall submit all Design Development Drawings, obtain all permits, commence and complete all construction of the Improvements, and satisfy all other obligations and conditions of this Agreement within the times established therefore in the Schedule of Performance attached hereto as Exhibit J and incorporated herein. The Agency 20-17 and City shall perform all of their obligations hereunder within the times established therefore in the Schedule of Performance. 305. Cost of Construction. Except to the extent otherwise expressly set forth in this Agreement, all of the cost of the planning, designing, developing and constructing all of the Improvements, including preparation of the Property and grading, shall be borne solely by the Developer. 306. Reserved. 307. Completion of Project. Developer shall commence and diligently proceed with development of the Project. In any event, Developer shall complete the Project not later than the date established therefor in the Schedule of Performance unless extended by agreement of Agency, City and Developer. 308. Rights of Access. For purposes of assuring compliance with this Agreement, representatives of the City and Agency shall have the right of access to the Property, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including but not limited to, the inspection of the work being performed in constructing the Improvements so long as such City and Agency representatives comply with all safety rules. The City and Agency (or their representatives) shall, except in emergency situations, notify the Developer prior to exercising their rights pursuant to this Section 308. 309. Compliance With Laws. The Developer shall carryout the design and construction of the Improvements in conformity with all applicable laws, including all applicable federal and state labor standards, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City of Santa Ana Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act. 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq, Government Code Section 11135, et seq., the Unruh Civil Rights Act, Civil Code Sections 51, et seq., and any other applicable Governmental Requirements. 309.1 Prevailing Wage Requirements. Developer shall carry out the construction through completion of the Improvements and the overall development of the Property in conformity with all applicable federal, state and local labor laws and regulations, including, without limitation, as applicable, the requirements to pay prevailing wages under federal law (the Davis-Bacon Act, 40 U.S.C. Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR Part 1 (collectively, "Davis-Bacon")) and California law (Labor Code Section 1720, et seq.). The applicability of federal, state and local prevailing wage laws will be determined based upon the final financing structure and sources of funding of the Project, as approved by Executive Director pursuant to Section 311, et seq. Developer shall be solely responsible, expressly or impliedly, for determining and effectuating compliance with all applicable federal, state and local public works requirements, prevailing wage laws, labor laws and standards, and neither Agency nor City makes any representation, either legally and/or financially, as to the applicability or non-applicability of any federal, state and local laws to the Project, either onsite or offsite. Developer expressly, knowingly and voluntarily acknowledges and agrees that neither Agency nor City has previously represented to Developer or to any representative, agent or affiliate of Developer, or its General Contractor or any 25?-18 subcontractor(s) for the construction or development of the Project, in writing or otherwise, in a call for bids or otherwise, that the work and construction undertaken pursuant to this Agreement is (or is not) a "public work," as defined in Section 1720 of the Labor Code or under Davis-Bacon. Developer knowingly and voluntarily agrees that Developer shall have the obligation to provide any and all disclosures or identifications with respect to the Project as required by Labor Code Section 1781 and/or by Davis-Bacon, as the same may be amended from time to time, or any other similar law or regulation. Developer shall indemnify, protect, pay for, defend (with legal counsel acceptable to Agency and City) and hold harmless the Indemnitees, from and against any and all loss, liability, damage, claim, cost, expense and/or "increased costs" (including reasonable attorneys fees, court and litigation costs, and fees of expert witnesses) which, in connection with the development, construction (as defined by applicable law) and/or operation of the Project, including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the following: (i) the noncompliance by Developer with any applicable local, state and/or federal law or regulation, including, without limitation, any applicable federal and/or state labor laws or regulations (including, without limitation, if applicable, the requirement to pay state and/or federal prevailing wages); (ii) the implementation of Section 1781 of the Labor Code and/or of Davis-Bacon, as the same may be amended from time to time, or any other similar law or regulation; and/or (iii) failure by Developer to provide any required disclosure or identification as required by Labor Code Section 1781 and/or by Davis-Bacon, as the same may be amended from time to time, or any other similar law or regulation. It is agreed by the parties that, in connection with the development and construction (as defined by applicable law or regulation) of the Project, including, without limitation, any and all public works (as defined by applicable law or regulation), Developer shall bear all risks of payment or non-payment of prevailing wages under applicable federal, state and local law or regulation and/or the implementation of Labor Code Section 1781 and/or by Davis-Bacon, as the same may be amended from time to time, and/or any other similar law or regulation. "Increased costs," as used in this Section 309.1, shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Project by Developer. 309.2 Section 3 Compliance. Developer agrees to comply with and to cause the General Contractor, each subcontractor, and any other contractors and/or subcontractors or agents of Developer to comply with the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. § 1701u, and the implementing regulations, in connection with the construction of the Project. Developer shall submit to Agency/City each Construction Contract with appropriate provisions providing for the construction of the Project in conformance with the terms of this Agreement, including the Section 3 Clause set forth below. The General Contractor, each subcontractor, and any other contractors or subcontractors or agents of Developer shall have provided to the Executive Director the certification in appendix B of 24 CFR Part 24 that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation from the Project, and Developer shall be responsible for determining whether each contractor has been debarred. Section 3 of the Housing and Urban Development act of 1968, 12 U.S.C., 1701u, as amended by Section 915 of the Housing and Community Development Act of 1992 requires that economic opportunities generated by HUD financial assistance for housing and community development programs be targeted toward low- and very low- income persons. Whenever HUD assistance generates opportunities for employment or contracting, state and local grantees, as well as 13 25F-19 other recipients of HUD housing assistance funds must, to the greatest extent feasible, provide these opportunities to low- and very low- income persons and to businesses owned by or employing low- and very low- income persons. Section 3 applies to projects for which HUD's share of project costs exceeds $200,000 and contracts and subcontracts awarded on projects for which HUD's share or project costs exceeds $200,000 and the contract or subcontract exceeds $100,000. For purposes of this Section 3 Clause and compliance thereto, whenever the word "contractor" is used it shall mean and include, as applicable, the Developer, and its contractor and subcontractor(s), if any. The particular text to be utilized in any and all contracts of any contractor doing work covered by Section 3 shall be in substantially the form of the following, as reasonably determined by the Agency, or as directed by HUD or its representative, and shall be executed by the applicable contractor under penalty of perjury: "The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 170lu ("Section 3"). 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 (inclusive of Extremely Low Income households and Very Low Income households served by the Project), particularly persons who are recipients of HUD assistance for housing. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. 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 notices 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, shall set forth minimum number of job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of person(s) taking applications for each of the position; and the anticipated date the work shall begin. 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 24 CFR part 135. The contractor will not subcontract with any 254 20 subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. The contractor will certify that any vacant employment positions, including training positions, that are filled (a) after the contractor is selected but before the contract is executed, and (b) 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. 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." After the foregoing Section 3 Clause, there shall be a signature block for the contractor, as applicable, the following text shall be included immediately above the signature block: "The contractor/provider by his/her signature affixed hereto declares under penalty of perjury that contractor has read the requirements of the Section 3 Clause and accepts all its requirements contained therein for all of his/her operations related to this contract." To the extent applicable, the Developer shall comply and/or cause compliance with Section 3 Clause requirements for the Project. For example, when and if Developer or its contractor(s)/subcontractor(s) hire(s) full time employees, rather than volunteer labor or materials, Section 3 is applicable and all disclosure and reporting requirements apply. 309.3 Liens and Stop Notices. The Developer shall not allow to be placed on the Property or any part thereof any lien or stop notice. If a claim of a lien or stop notice is given or recorded affecting the Improvements the Developer shall within thirty (30) days of such recording or service or within five (5) days of the Agency's demand whichever last occurs: (a) pay and discharge the same; or (b) affect the release thereof by recording and delivering to the Agency a surety bond in sufficient form and amount, or otherwise; or (c) provide the Agency with other assurance which the Agency deems, in its sole discretion, to be satisfactory for the payment of such lien or bonded stop notice and for the full and continuous protection of Agency from the effect of such lien or bonded stop notice. 310. Release of Construction Covenants. Promptly after completion of the Improvements or any portion thereof in conformity with this Agreement, the Agency shall furnish the Developer with a "Release of Construction Covenants," substantially in the form of Exhibit L hereto which is incorporated herein by reference. The Agency shall not unreasonably withhold such Release of Construction Covenants. The Release of Construction Covenants shall be a conclusive determination of satisfactory completion of the applicable portion of the Improvements and the Release of Construction Covenants shall so state. Any party then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Property shall not (because of such ownership, 15 25F-21 purchase, lease or acquisition) incur any obligation or liability under this Agreement except for those continuing covenants as set forth herein and in the Affordability Restrictions. If the Agency refuses or fails to furnish the Release of Construction Covenants, after written request from the Developer, the Agency shall, within thirty (30) days of written request therefore, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish the Release of Construction Covenants. The statement shall also contain the Agency's opinion of the actions the Developer must take to obtain the Release of Construction Covenants. The Release of Construction Covenants shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the Improvements, or any part thereof. The Release of Construction Covenants is not a notice of completion as referred to in Section 3093 of the California Civil Code. 311. Financing of the Improvements. 311.1 Approval of Financing. Within the time set forth in the Schedule of Performance and as a Condition Precedent to the commencement of construction or disbursement of any proceeds of the Loans, Developer shall submit to Agency and City evidence that Developer has obtained sufficient equity capital and/or has obtained firm and binding commitments for construction and permanent financing necessary to undertake the development of the Property and the construction of the Improvements in accordance with this Agreement. The parties anticipate that Developer shall apply for and use commercially reasonable efforts to obtain (1) an allocation of tax exempt bond financing from the California Debt Limit Allocation Committee (CDLAC), (2) an allocation of Tax Credits from the California Tax Credit Allocation Committee (TCAC), and (3) a firm commitment for a Senior Loan from a Senior Lender, all as reasonably approved by the Executive Director based on documentation submitted by Developer. Agency/City shall approve or disapprove such evidence of financing commitments within thirty (30) days of receipt of a complete submission. Approval shall not be unreasonably withheld or conditioned. If Agency/City shall disapprove any such evidence of financing, Agency/City shall do so by Notice to Developer stating the reasons for such disapproval and Developer shall promptly obtain and submit to Agency/City new evidence of financing (or terminate this Agreement as permitted by Section 2003). Agency/City shall approve or disapprove such new evidence of financing in the same manner and within the same times established in this Section 311.1 for the approval or disapproval of the evidence of financing as initially submitted to Agency/City. Developer shall close the approved financing prior to or concurrently with the first disbursement of the Loans. Such evidence of financing shall include the following: (a) a copy of a legally binding, firm and enforceable loan commitment(s) from an approved Senior Lender or Letter of Credit obtained by Developer for 100% of the estimated cost to construct the Improvements, from unrelated financial institutions for the Senior Loan for financing to fund the construction, operation and maintenance of the Improvements, subject to such lenders' reasonable, customary and normal conditions and terms, and/or (b) a certification from the chief financial officer of Developer that Developer has sufficient funds to complete the construction, operation, and maintenance of the Improvement and that such funds have been committed to such construction, and/or (c) documentation showing that Developer has obtained allocations of tax exempt bond financing from CDLAC and Tax Credits from TCAC, along with evidence that Developer has obtained a commitment from a tax credit investor to provide equity in exchange for a limited partnership interest in Developer pursuant to the Partnership Agreement, and/or (d) other documentation satisfactory to the Agency/City as evidence of other sources of capital sufficient to demonstrate that Developer has Zs?-ii adequate funds to cover the difference between the total cost of the construction and completion of the Improvements, less financing authorized by those loans set forth in subparagraph (a) above. 311.2 No Encumbrances Except Agency recorded documents (Deeds of Trust/Affordability Restrictions on Transfer of Property). The Developer shall not enter into any conveyance for financing prior to the Release of Construction Covenants without the prior written approval of the Agency, which approval Agency agrees to give if any such conveyance for financing is given to a responsible financial lending institution or person or entity ("Holder"). The Developer may enter into a conveyance for financing after the completion of the Improvements as evidenced by the recording of the Release of Construction Covenants without the approval of the Agency. 311.3 Holder Not Obligated to Construct Improvements. The Holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the Improvements or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement be construed so as to obligate such Holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such Holder to devote the Property to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 311.4 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever the Agency may deliver any notice or demand to Developer with respect to any Default by Developer in completion of construction of the Improvements, the Agency may at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such notice or demand. Each such Holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the 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 Default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Such Holder shall permitted to undertake or continue the construction or completion of the Improvements, or any portion thereof, if necessary to conserve or protect the Improvements or construction already completed without having first expressly assumed Developer's obligations to the Agency hereunder. Except as set forth in the immediately preceding sentence, such Holder may enforce the terms of this Agreement against the Agency only if it has first expressly assumed Developer's obligations to the Agency under this Agreement by written agreement reasonably satisfactory to the Agency. Agency shall fund its obligations under this Agreement to any Holder who undertakes to complete the Improvements. Any such Holder properly completing such improvement shall be entitled, upon compliance with the requirements of Section 310 of this Agreement, to a Release of Construction Covenants. It is understood that a Holder shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer Default which requires title and/or possession of the Property (or portion thereof) if and to the extent any such Holder has within such sixty (60) day period commenced proceedings to obtain title and/or possession and thereafter the Holder diligently pursues such proceedings to completion and cures or remedies the Default. 311.5 Right of the Agency to Cure Mortgage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by Developer prior to the completion of the construction of any of the Improvements or any part thereof, Developer shall immediately deliver to Agency a copy of any mortgage holder's notice of default. If the Holder of any mortgage or deed of 25r-23 trust has not exercised its option to construct, the Agency shall have the right but no obligation to cure the default. In such event, the Agency shall be entitled to reimbursement from Developer of all proper costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Property to the extent of such costs and disbursements. Any such lien shall be junior and subordinate to the mortgages or deeds of trust pursuant to this Section 311. 311.6 Changes Requested by Holder. In the event that a lender or Holder which has been approved pursuant to this Section 311, et seq., requires one or more amendments to this Agreement, or any of the attachments hereto, the Agency agrees to reasonably consider approving such proposed amendment, and if such proposed amendment(s) does not materially affect the Agency's interests hereunder, the Agency Executive Director or his or her designee is hereby authorized to make such amendment(s) without further authorization from the Agency. 311.7 Subordination of Affordability Restrictions. In the event the Executive Director finds that an economically feasible method of financing for the construction and operation of the Project without the subordination of the Affordability Restrictions is not reasonably available, Executive Director may agree to subordinate the covenants contained in the Regulatory Agreement and the lien of the Loans to the Senior Loan, the Bond Regulatory Agreement and/or the Tax Credit Regulatory Agreement, subject to the terms of this Section 311.7. Each and any subordination agreement evidencing or affirming Agency's and City's subordination of the Affordability Restrictions entered into by Agency and/or City shall contain written commitments which the Executive Director finds are reasonably designed to protect Agency's and City's investment in the Project in the event of default; any such subordination agreement(s) shall contain contractual obligation of such Senior Lender to include, without limitation, the following: (a) concurrent delivery to Agency and City of a true copy of each and any notice provided by the Senior Lender for the Project to Developer (as its borrower) during the term of the Senior Loan for the Project; (b) a reasonably extended cure period and right to Agency and City to cure and assume the Senior Loan, and/or other senior lien(s) for the Project upon the same terms applicable to the approved financing to Developer pursuant to the loan documents applicable thereto with such right, but with no obligation, to the Agency and City being available both from the date of issuance of any notice of default through and after the recordation of a formal Notice of Default by the Senior Lender for the Project pursuant to applicable California Code of Civil Procedure foreclosure requirements, and (c) a right of Agency and City to cure a default on each of the senior loan(s) for the Project prior to foreclosure and after recordation of a Notice of Default pursuant to applicable California Code of Civil Procedure requirements; and such cure rights may also include: (d) a right of Agency and City to negotiate with the Senior Lender(s) for the Project after notice of default from the Senior Lender(s) and prior to foreclosure, (e) an agreement that if prior to foreclosure of the Senior Loan for the Project, Agency or City takes title to the Property and cures the default on the senior loan(s) for the Project, the Senior Lender(s) will not exercise any right it may have to accelerate the Senior Loan by reason of the transfer of title to Agency or City, and (f) a right of Agency and City to acquire Developer's interest in the Property from Developer at any time after a material default on the Senior Loan for the Project. 18 25F-24 400. [RESERVED] 500. LOANS 501. Agency Loan. 501.1 Amount and Purpose. Subject to the terms and conditions of this Agreement, Agency agrees to make the Agency Loan to Developer from tax increment money in the principal amount of up to $3,888,497 for those purposes described in this Agreement. 501.2 Agency Promissory Note and Deed of Trust. The Agency Loan shall be evidenced by the Agency Promissory Note in the form attached hereto as Exhibit F. The Agency Loan shall be secured by the Agency Deed of Trust in the form attached hereto as Exhibit H-1. The Agency Deed of Trust shall be a deed of trust encumbering the Property in second position, subordinate only to the Senior Loan Deed of Trust. 501.3 Use of Agency Loan Proceeds. Proceeds of the Agency Loan shall be used only for costs incurred by Developer to construct the Improvements as set forth in the approved Project Budget. 501.4 Agency Loan Terms. The terms and conditions of the Agency Loan are as set forth in the Agency Promissory Note which is a residual receipts note. 502. City Loan. 502.1 Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make the City Loan from HOME Program funds to Developer in the principal amount of up to $2,500,000 for those purposes described in this Agreement. 502.2 City Promissory Note and Deed of Trust. The City Loan shall be evidenced by the City Promissory Note in the form attached hereto as Exhibit G. The City Loan shall be secured by the City Deed of Trust in the form attached hereto as Exhibit H-2. The City Deed of Trust shall be a deed of trust encumbering the Property in third position, subordinate only to the Senior Loan Deed of Trust, as approved by the Executive Director, and the Agency Deed of Trust. 502.3 Use of City Loan Proceeds. The proceeds of the City Loan shall be used only for costs incurred by Developer to construct the Improvements as set forth in the approved Project Budget. 502.4 City Loan Terms. The terms and conditions of the City Loan are as set forth in the City Promissory Note which is a residual receipts note. The HOME Program compliance period is fifteen (15) years, commencing on the date that all work is complete and the Property is fully occupied. 250'-25 503. Other Terms and Conditions of the Loans. (a) The Agency Promissory Note and City Promissory Note shall become immediately due and payable, in the event of any of the following: (i) failure to complete the Project within the time set forth in the Schedule of Performance; (ii) violation of any of the use covenants and restrictions contained in this Agreement or any other Project Document after the expiration of any applicable notice and cure periods; (iii) an Event of Default by Developer under this Agreement or any other Project Document which is not timely cured after expiration of any applicable notice and cure periods pursuant to the terms of this Agreement or the applicable Project Document. 600. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS 601. Conditions Precedent. In addition to the Conditions Precedent set forth in Sections 602 and 603 below, Agency/City's obligation to disburse the Loan Amounts is subject to the satisfaction, or waiver by the Executive Director, of the following Conditions Precedent: 601.1 Loan Documents. Developer shall have delivered to the Agency, signed by the authorized officer or officers of Developer, with such signature(s) acknowledged where necessary, each of the following documents: (a) this Agreement; (b) the City Promissory Note; (c) the City Deed of Trust; (d) the Agency Promissory Note; (e) the Agency Deed of Trust; and (f) the Affordability Restrictions. 601.2 Design Approvals. The Developer shall have obtained approval by the Agency of the Design Development Drawings as set forth in Section 302. 601.3 Land Use Approvals. The Developer shall have received all land use approvals and permits required pursuant to Section 303. 601.4 Construction Contract; General Contractor. Developer shall have provided to Agency and City (within a reasonable time for Executive Director to review, comment and approve or disapprove) a signed copy of the Construction Contracts between Developer and the General Contractor and between Developer's General Contractor and each subcontractor for the construction of the Improvements inclusive of all on-site and off-site improvements required to be constructed in connection therewith, if any, certified by the General Contractor to be a true and 250"-26 correct copy thereof, and Executive Director shall have reasonably approved such General Contractor) as having the experience and financial resources (based on audited or unaudited financial statements submitted to Executive Director) necessary to construct and complete the Project. Developer shall submit to Agency and City evidence regarding each entity serving as a subcontractor for the construction of each portion of the Improvements, along with satisfactory evidence of necessary license(s), certification(s), bonding (with respect to the General Contractor's license bond required by the State of California) and insurance, all as required by this Agreement and as reasonably requested by Executive Director. Each Construction Contract (and all subcontracts) shall include the Section 3 Clause set forth in Section 309.2 hereof. The Construction Contract with the General Contractor shall be for a fixed, all-inclusive fee to complete all work to be performed by the General Contractor to construct the Improvements, subject to approved change orders. 601.5 Construction Security. Developer shall have obtained and shall have delivered to Agency and City an unconditional and irrevocable standby letter of credit in an amount equal to fifteen percent (15%) of the total the construction costs for the Project, as set forth in the Project Budget which is approved by Agency and City for the Project (collectively, "Performance Letter of Credit"), along with reasonably satisfactory evidence demonstrating the General Contractor's financial strength (such as the two most recent audited or unaudited financial statements of General Contractor) and reputation for quality and timely work and performance necessary to complete the Project in accordance with this Agreement. The Performance Letter of Credit shall be deposited with the Executive Director and shall be in full force and effect with Agency and City's unconditional and irrevocable right to draw on such instrument until thirty-five (35) days after the date of recordation of the notice of completion in the event Developer (or its General Contractor) ceases construction in violation of this Agreement or fails to complete construction of the Project in violation of this Agreement. In such event, Agency and City shall have the right to draw on the Performance Letter of Credit in its sole discretion, and have the sole and absolute right to determine whether the proceeds of the Performance Letter of Credit shall be used to pay for the completion of the Project. Agency and City will provide Developer with a copy of Agency's and City's (as Beneficiaries) signed and dated statement provided to the Lender pursuant to the Performance Letter of Credit effecting Agency's and City's draw on the Performance Letter of Credit, which copy will be transmitted to Developer on the same date that the statement is transmitted to the Lender. In lieu of the Performance Letter of Credit, Developer may propose providing Agency and City other forms of other and/or additional security addressing the completion of construction (such as payment and performance bonds covering one hundred percent (100%) of the Project), other bonds and sureties, guarantees and/or combinations of any of those, collectively referred to herein as "Alternate Security"), which Agency and City will approve and accept if the Executive Director determines in her sole, reasonable discretion that such Alternate Security will provide Agency and City a level of security that is substantially similar and equivalent to the Performance Letter of Credit. 601.6 Financing. The Agency shall have approved Developer's evidence of financing of the Improvements on the Property as provided in Section 311.1 and such financing shall be available for development of the Improvements or, to the extent said financing consists of a third party loan or loans, said loan or loans shall have closed and funded or be ready to close and fund concurrently with the Loans. 601.7 Final Project Budget and Construction Schedule. Developer shall have submitted to Agency/City and Agency/City shall have approved the final/updated Project Budget and updated construction schedule for the construction of Improvements. 25'127 601.8 Corporate Resolution. Developer shall deliver to Agency a certified copy of a resolution of Developer's Board of Directors authorizing (or ratifying) the execution of this Agreement and establishing funding for fulfilling Developer's obligations under this Agreement. 601.9 Opinion. The Executive Director shall have received and approved a standard borrower's counsel's opinion from Developer's counsel which shall be a law firm licensed to practice within the State of California and having experience in transactions similar in size and nature to the transaction contemplated hereunder. 601.10 Management Plan. Developer shall have prepared and submitted to Agency, and Agency shall have approved, a Management Plan, as provided in Section 1205. 601.11 Agency Authority. No legal proceeding, legislation, regulation or other legal impediment shall have been enacted or shall have become legally effective to prevent Agency from making the Agency Loan to Developer. 601.12 Title Insurance. Agency and City shall have received a 2006 ALTA Lender's loan policy of title insurance ("Agency/City Title Policy"), or evidence of a commitment therefore satisfactory to City, issued by First American Title Insurance Company and in form and substance satisfactory to Agency/City, together with all endorsements and binders required, naming City and Agency as the insured, in a policy amount of not less than the City Loan Amount and the Agency Loan Amount, showing Developer as the fee owner of the Property and insuring the combined City Deed of Trust and the Agency Deed of Trust to be valid priority liens on the Property. The City Promissory Note and Deed of Trust and the Agency Promissory Note and Deed of Trust shall be subordinate only to the Senior Loan Note and Senior Loan Deed of Trust, as approved by the Executive Director. The order of priority of the various monetary encumbrances and regulatory agreements affecting the Property shall be as follows: 1. Affordability Restrictions Section 311.7) 2. Senior Loan Deed of Trust 3. Agency Deed of Trust 4. City Deed of Trust 5. This Agreement 6. NSP Covenants 7. NSP Deed of Trust (unless subordinated pursuant to 601.13 Affordability Restrictions. Developer shall have delivered to the Agency, in the form attached hereto as Exhibit I, the Affordability Restrictions pursuant to which, among other things, Developer agrees that the Property shall be used only for decent, safe, and sanitary rental Affordable Housing pursuant to the affordability requirements of Code of Federal Regulations ("CFR") Section 92.252 or 92.254 and California Health and Safety Code Sections 50053 and 33334.3, as applicable. Zs?=is 601.14 Documents Recorded. This Agreement, the Agency Deed of Trust, the City Deed of Trust and the Affordability Restrictions shall have been recorded in the Official Records of the County. 601.15 Request for Notice. Agency shall have recorded a request for notice of default under the Senior Loan ("Request for Notice of Default"). 601.16 Insurance. Agency/City shall have received evidence satisfactory to the Agency/City Attorney and the City's Risk Manager that all of the policies of insurance required by Article 1900 of this Agreement are in full force and effect. 601.17 No Litigation. No litigation or other proceeding shall be pending or threatened by any third parties which seeks to enjoin the transactions contemplated herein. 601.18 Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Project Documents shall be correct as of each disbursement of any proceeds of the Loans as though made on and as of that date, and if requested by the Executive Director, Agency/City shall have received a certificate to that effect signed by Developer's Representative. 601.19 No Default. No Event of Default by Developer under this Agreement or any other Project Document 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 or any other Project Document, and if requested by the Executive Director, Agency/City shall have received a certificate to that effect signed by Developer's Representative. 602. Additional Conditions Precedent to Any Disbursement. Agency/City's obligation to make any disbursement of the Loans (including the first and final disbursements) is subject to the satisfaction of the following Conditions Precedent: 602.1 Conditions Precedent. All Conditions Precedent set forth in Section 601 shall have been satisfied (and shall remain satisfied) by Developer (or shall have been waived by Executive Director). 602.2 Satisfactory Progress. The Executive Director shall be satisfied, based on his/her own inspections or other reliable information, that the construction is progressing satisfactorily in conformance with all applicable laws and other requirements (including HOME regulations). 602.3 Condition of Title. Either (i) the Executive Director reasonably believes that no event has occurred that would give rise to a colorable claim against the Property (e.g., a mechanic's lien) superior to the claim of Agency/City against the Property with respect to the subject disbursement, or if such claim is made, then Executive Director shall receive satisfactory evidence that such claim has been bonded over until its resolution; or (ii) Agency/City must have received, at Developer's expense but payable out of the Loan proceeds from the title insurer who issued the Agency/City Title Policy, all endorsements thereto then reasonably required by Agency/City (including, without limitation, CLTA Form 122 -- priority of advance endorsements). 20-29 602.4 Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Project Documents shall be correct as of the date of the disbursement as though made on and as of that date. 602.5 No Default. No Event of Default by Developer shall remain uncured (unless, to the extent permitted under this Agreement, Developer is diligently taking action to cure such default) 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. 603. Final Disbursement. Agency/City's obligation to disburse the Retainage pursuant to Section 611 is subject to the satisfaction of the following additional Conditions Precedent: 603.1 Construction Complete. The construction of the Improvements including all on-site and off-site improvements and all landscaping shall be complete, as reasonable determined by the Executive Director. 603.2 Certificate of Occupancy Issued. Any portion of the construction work requiring inspection or certification by any Governmental Authority shall have been inspected and certified as complete. Developer shall request that the City Building Department issue a Certificate of Occupancy, a copy of which shall be delivered to the Executive Director, in order for final disbursement to occur. 603.3 Lien Free. At least one of the following shall have occurred: (a) Thirty-five (35) days shall have passed since the recording of a valid notice of completion for the construction of the final Improvements to be constructed, and no mechanic's or material man's lien shall be outstanding; or (b) Ninety-five (95) days shall have passed since actual completion of the construction of all required Improvements, and no mechanic's or materialman's lien shall be outstanding; or (c) Developer shall have bonded over any mechanic's or materialmen's lien affecting the Property, to Agency/City's reasonable satisfaction. 604. Disbursement Procedures for Loan(s). The Loan proceeds shall be disbursed to finance the construction of the Project. Subject to Section 604. 1, the Loan proceeds shall not be used for any purpose other than for construction related costs, including Developer fee and soft costs related to development of the Project, all in accordance with the approved Project Budget, with such costs all subject to Agency/City's prior review. All disbursements shall be made as reimbursements to Developer for costs actually and reasonably incurred by Developer for the construction of the Improvements in accordance with the Project Budget, based on detailed invoices and/or bills received from the General Contractor, materials suppliers, consultants and subcontractors that have performed work on the Project. Developer and Agency/City shall agree on a draw request schedule to ensure that the Agency/City is provided with frequent updates regarding the status of the construction of the Improvements, the status of expenditures in accordance with the Project Budget, and the status of invoices submitted by and payments to the General Contractor, suppliers, consultants, and subcontractors performing work at the Project. 24 25F-30 605. 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 Executive Director within the times set forth in the Schedule of Performance, and (b) Agency/City is not in default under this Agreement, Agency/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. 606. Waiver of Conditions. The conditions set forth pertaining to Agency/City's obligation to make disbursements of the Agency Loan and City Loan proceeds are for Agency/City's benefit only and the Executive Director may waive all or any part of such rights by written notice to Developer. 606.1 Waiver of Disbursement Conditions. Unless Agency/City otherwise agrees in writing, the making by Agency/City of any disbursement with knowledge that any condition to such disbursement is not fulfilled shall constitute a waiver of such condition only with respect to the particular disbursement made, and such condition shall be condition to all further disbursements until fulfilled. 606.2 Modification of Disbursement Conditions and Procedures. The Executive Director shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the contract for construction. 607. Disbursement Requests. The Loan proceeds shall be disbursed on a line-item by line-item basis in accordance with the Project Budget.and subject to the Conditions Precedent in this Section. In no event shall Agency/City have any obligation to disburse any amount for any item in excess of the amount allocated to such item in the Project Budget. Disbursements shall be made only upon Developer's written request in the form of a Draw Request showing all costs which Developer intends to fund with such disbursement, itemized in such detail as Agency/City may reasonably require, accompanied in each case by (a) invoices and lien releases satisfactory to Agency/City, including in any event partial lien releases executed by each contractor and subcontractor who has received any payment for work performed, and (b) all other documents and information reasonably required by Agency/City. Disbursement Requests shall be submitted no less than ten (10) Business Days prior to the date of the requested disbursement, and shall not be submitted more often than monthly. Prior to each disbursement by Agency/City of proceeds of the Agency/City Loan, Developer shall deliver to Agency/City a draw request ("Draw Request"), and all required supporting information as set forth in the Loan Documents or as otherwise reasonably required by Agency/City in order to provide information for evaluating the requested disbursement pursuant to customary construction lending practices of institutional lenders in Southern California. Agency/City shall notify the Developer of approval or disapproval of each Draw Request within five (5) business days after receipt of the Draw Request, using the Agency's/City's "Disbursement/Change Order Approval Notice". Agency/City shall have the right, but not the obligation, to discontinue processing Draw Requests unless and until receipt of notification from the other of approval or disapproval of each outstanding Draw Request. 608. Manner of Disbursement. Agency/City may make any disbursement by check payable to Developer; or on a voucher basis; or by check payable jointly to Developer and any 25 25F-31 contractor, subcontractor or other claimant; or directly to any such claimant; or by any other means reasonably selected by Agency/City. 609. Cost Overruns. In the event that, at any time and for any reason, (a) the actual cost reasonably estimated by Agency/City or Developer to be required to complete all matters included in any line item in the Project Budget exceeds the amount allocated to that line item in the Project Budget, (b) Project Costs for any matters not covered by a specific line item have been or will be incurred, or (c) the undisbursed portion of the proceeds of the Loans is or may be insufficient to pay all Project Costs for construction of the Improvements that may be payable under the Agency/City Loan Documents or otherwise in connection with the construction, Developer shall, within ten (10) days after it receives written notice thereof from Agency/City of any of the foregoing matters, do one or more of the following: (a) provide satisfactory evidence to Agency/City that Developer has previously paid such excess Project Costs or otherwise provided for such insufficiency (collectively, the "Excess Cost") with funds from a source other than the Agency/City Loan; (b) reallocate sufficient funds to pay the Excess Cost from funds allocated to "Contingency" in the Project Budget; provided, however, that the Executive Director's consent to any such reallocation shall be required; or (c) deposit an amount equal to the Excess Cost in a non-interest bearing account ("Overrun Account") with Agency/City from which withdrawals may be made only with the consent of the Executive Director but which will be exhausted prior to any further disbursement for any line item, so that any resulting surplus in any line item of the Project Budget will then be reallocated to the line item(s) in which the Excess Costs are expected to be incurred. Agency/City shall have no obligation to make further disbursements under the Loans until Developer has paid or otherwise provided for all Excess Costs as required above. Amounts deposited by Developer in the Overrun Account for any Excess Costs shall be disbursed by Agency/City prior to the disbursement of any remaining Agency Loan or City Loan proceeds in the manner described in subdivision (c), above. 610. Cost Savings. Subject to Section 609, upon completion of and disbursement for all matters covered by any line items in the Project Budget, any remaining undisbursed amounts allocated to that line item shall be retained by the City, with a corresponding reduction in the principal amount of the Loans. 611. Retainage. Agency/City will withhold a "Retainage" of 10% from each Disbursement for each of the hard cost line items of the Project Cost breakdown (and other line items thereof designated for withholding of retainage) set forth in the Project Budget until all conditions to the final disbursement of proceeds of the Loans have been satisfied. In lieu of Agency/City's withholding the Retainage, Developer can by written notice to Agency/City elect not to draw any overhead or profit (in an amount not less than the full Retainage) as would otherwise be permitted under the Construction Contract until such time as Retainage would otherwise have been released. Agency/City shall not retain funds for building materials purchased by Developer or for soft costs of construction for which Developer supplies documentation to Agency/City that Developer has provided payment in full. 26 25F-32 612. Holdback. The Retainage otherwise available for disbursement shall be subject to a holdback of one hundred twenty-five percent (125%) of the estimated cost (as determined by the Executive Director) for "punch-list" items. Such holdback will be released when all punch-list items have been completed to the satisfaction of Agency/City. 700. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 701. 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 but one of the Housing Units on the Property available to Extremely Low Income and Very Low Income households at rents affordable to such households throughout the entire Term of this Agreement. The HOME Program requirements applicable to the HOME Units shall be enforced until the date that is fifteen (15) years after the date on which the City reports the Project as complete to HUD. Upon expiration of the 15 year HOME Program compliance period, the Agency/City shall require that all Affordable Units remain affordable, with rents calculated based on assumed household size at the same income levels, as required by the Redevelopment Law and adopted Agency guidelines. (b) The Project shall consist of thirty-six (36) Housing Units. Thirty-five (35) of the Housing Units shall be Affordable Units. 'Eleven (11) of the Affordable Units shall also be HOME Units. The HOME Units shall be fixed units and shall be distributed throughout the Project with comparable amenities to the other units, as approved by the Executive Director. 702. Affordable Rent. The Affordable Rent to be charged for the Affordable Units shall be calculated pursuant to this Section 702. No. Affordable No. HOME Income Rest. Bedrooms Gross Rent Units Units Max Income Very low-50% Two Bedroom $981 8 0 $41,850 Very low-50% Three Bedroom $1134 22 10 $50,200 Very low-50% Five Bedroom $1395 1 1 $60,350 Ext. low-30% Three Bedroom $724 4 0 $30,100 Total Affordable Units 35 11 (a) The Affordable Rents for Very Low Income households shall not exceed the lower and more restrictive of- 0) The very low income rents as calculated under the methodology presented in California Health and Safety Code Section 50053(b)(2); or (ii) The standards set forth by the California Tax Credit Allocation Committee (TCAC); or (iii) With respect to the HOME Units, the Low HOME rent amount set forth in the HOME Regulations. 27 25F-33 (b) The Affordable Rents for Extremely Low Income households shall not exceed the lower and more restrictive of- (i) The extremely low income rents as calculated under the methodology presented in California Health and Safety Code Section 50053(b)(1); or (ii) The standards set forth by the California Tax Credit Allocation Committee (TCAC). (c) Utility allowances shall be deducted from the maximum gross monthly rent charged to tenants of the Affordable Units. The Santa Ana Housing Authority publishes the utility allowance. 703. Rent Increases. On an annual basis, the Agency/City shall provide the Developer with the maximum allowable schedule of rents for the Property. In no event can Developer charge any tenant more than such amount. 800. AGENCY AND CITY REPRESENTATIONS AND WARRANTIES 801. Agency Representations and Warranties. Agency hereby represents and warrants to Developer, as of the date of this Agreement, as follows: 801.1 Authority. Agency is a public body, corporate and politic, existing pursuant to the California Community Redevelopment> Law (California Health and Safety Code Section 33000, et seq.), which has been authorized to transact business pursuant to action of the City. As of the date of this Agreement, Agency has full right, power and lawful authority to execute, perform, and deliver this Agreement, together with its exhibits, and has been fully authorized by all requisite actions on the part of Agency. 801.2 No Conflict. To the best of Agency's knowledge, Agency's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Agency is a party or by which it is bound. 802. City Representations and Warranties. City hereby represents and warrants to Developer, as of the date of this Agreement, as follows: 802.1 Authority. City is a California municipal corporation and charter City. As of the date of this Agreement, City has full right, power and lawful authority to execute, perform, and deliver this Agreement, together with its exhibits, and has been fully authorized by all requisite actions on the part of City. 802.2 No Conflict. To the best of City's knowledge, City's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which City is a party or by which it is bound. 900. DEVELOPER REPRESENTATIONS AND WARRANTIES 901. As a material inducement to Agency/City to enter into this Agreement, Developer represents and warrants as follows: 28 25F-34 901.1 Formation, Qualification and Compliance. Developer is a California limited partnership currently comprised of Orange Housing Development Corporation, a California nonprofit public benefit corporation, and C&C Development Co., LLC, a California limited liability company. Developer is a duly organized California limited partnership formed within and in good standing under the laws of the State of California. Developer has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of the Developer. 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, (c) has qualified and is in good standing as a Community Housing Development Organization, and (d) 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. 901.2 Execution and Performance of Loan Documents. (a) Developer has all requisite authority to execute and perform its obligations under the Loan Documents. (b) The execution and delivery by Developer of each Loan Document, and the performance of Developer's obligations thereunder, has been authorized by all necessary action and does not and will not: (i) require any consent or approval not heretofore obtained of any person having any interest in Developer; (ii) 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; (iii) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under the Agency/City Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (iv) to best of its knowledge, violate any provision of any law presently in effect; or (v) 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 Agency/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, 25P-35 lease or other agreement or document described in sub-paragraph (d) or (e) 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: (i) the execution of Developer of, and the performance by Developer of its obligations under, the Loan Documents; and (ii) the creation of the liens described in the Loan Documents. 901.3 Financial and Other Information. To the best of Developer's knowledge, all financial information furnished to Agency/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 Agency/City. To the best of Developer's knowledge, all other documents and information furnished to Agency/City with respect to Developer, in connection with the Loans, are correct and complete insofar as completeness is necessary to give the Agency/City accurate knowledge of the subject matter. To the best of Developer's knowledge Developer has no material liability or contingent liability not disclosed to Agency/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 Agency/City in writing. 901.4 Experience and Qualifications. Developer has the experience and qualifications necessary to perform as Developer pursuant to this Agreement and the other Project Documents. 901.5 No Material Adverse Change. 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 Agency/City. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to Agency/City in writing. 901.6 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 Agency/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 Agency/City. 901.7 Governmental Requirements. To best of its knowledge, Developer is in compliance with all Governmental Requirements relating to the Property and/or the Project 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 30 25F-36 preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 901.8 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. 901.9 Litigation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer, any of the members of the Developer non-profit corporation, or any property of Developer before any Governmental Authority, except as disclosed to Agency/City in writing prior to the execution of this Agreement. If at any time during the Term of this Agreement there arises any material legal proceeding, real or threatened, to which the Developer entity becomes, or may be made a party, or to which any of its property is or may become subject, or any other event occurs, which could materially or adversely affect the ability of the Developer to carry out its obligations hereunder, Developer shall promptly (and in any event within five (5) business days) notify the Agency in writing. 901.10 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. 901.11 Information Accurate. To the best of Developer's knowledge, all information, regardless of its form, conveyed by Developer to Agency/City, by whatever means, is accurate, correct and sufficiently complete to give Agency/City true and accurate knowledge of its subject matter, and does not contain any misrepresentation or omission. 901.12 Conflicts of Interest. No member, official or employee of the Agency/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. 901.13 Nonliability of Agency/City Officials and Employees. No member, official or employee of the City or Agency shall be personally liable to the Developer in the event of any default or breach by the City or Agency or for any amount which may become due to Developer or on any obligations under the terms of this Agreement. 901.14 No Assignment. Developer expressly acknowledges and agrees that the City and Agency have only agreed to assist the Developer as a means by which to induce, the construction/development of the Property. 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 Executive Director (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(s) of Trust. 31 25F-37 901.15 Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and state laws. 901.16 Third Parties. This Agreement is made for the sole benefit of Developer and the City and Agency 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 Agency/City hereunder or arising from any default by Developer, nor shall the Agency/City owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the construction of the Property. 901.17 Control of Property. The parties acknowledge that neither the Agency nor City has at any time participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. 902. Obligation to Notify re Changes. Until the final disbursement of the Loans, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Article 900 not to be true, immediately give written notice of such fact or condition to Agency. Such exception(s) to a representation shall not be deemed a breach by Developer hereunder, but shall constitute an exception which Agency and City shall have a right to approve or disapprove if such exception would have an effect on the value and/or operation of the Property. If Agency and City elect to make any disbursement of the Loans following disclosure of such information, Developer's representations and warranties contained herein shall be deemed to have been made as of such disbursement, subject to such exception(s). If, following the disclosure of such information, Agency and City elect not to make further disbursements of the Loans, then this Agreement shall automatically terminate, and neither party shall have any further rights, obligations or liabilities hereunder. The representations and warranties set forth in this Article 900 shall survive the final disbursement of the Loans and continue for the Term hereof. 1000. CONDITIONS FOR CONSTRUCTION 1001. 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. 1002. 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. 1003. Change Orders. The contract for construction shall not be modified except pursuant to change orders. All change orders: (a) shall be in writing, numbered in sequence, signed by Developer and submitted to City prior to the proposed effectiveness thereof and accompanied by any working drawings and a written narrative of the proposed change. (b) Shall be subject to the Executive Director's and Senior Lender's prior written approval of the Executive Director and Bank. 32 25F-38 1004. Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice, Agency/City and their 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. 1005. Construction Information. From time to time during the course of the construction, within ten (10) Business Days following Agency or 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. 1006. 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 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 Agency or the City by any person furnishing labor or materials to the Property, Developer shall immediately give written notice of the same to Agency/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 Agency/City a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as Agency/City may require to release Agency/City from any obligation or liability with respect to such stop notice or claim. 1100. FEDERAL (HOME PROGRAM) AND REDEVELOPMENT COVENANTS 1101. CHDO. Orange Housing Development Corporation, the sole member of the managing general partner of Developer, represents and warrants that it qualifies and is in good standing as a Community Housing Development Organization under the HOME Program. Developer hereby covenants and agrees to maintain such status throughout the term of this Agreement, and to provide the Agency and City with written documentation necessary to demonstrate maintenance of said status on an annual basis. In the event Orange Housing Development Corporation transfers its general partnership interest in Developer to another entity (with the consent of the Executive Director or as otherwise permitted by this Agreement), Developer hereby agrees that such successor entity shall qualify and be in good standing as a Community Housing Development Organization under the HOME Program and shall satisfy the requirements and meet the qualifications of Orange Housing Development Corporation, as described in Section 901.1. 1102. 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 and California Health and Safety Code Section 50053 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 33 25F-39 1103. Tenant and Participant Protection. Developer shall comply with the requirements of 24 CFR 92.253. 1104. Lease Requirements. The requirements set forth in Section 1207 hereof shall apply to all resident lease agreements for HOME Units at the Project. 1105. Handicapped Accessibility. Developer shall comply with (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C governing accessibility of projects assisted under the HOME Program; and (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36 in order to provide handicapped accessibility to the extent readily achievable. 1106. 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. 1107. Maintenance of Drug-Free Workplace. Developer shall certify that Developer will provide a drug-free workplace in accordance with 24 CFR 84.13. 1108. 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. 1109. Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property as required by 24 CFR 92.351. 1110. 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. Developer must also follow the requirements of Health and Safety Code Section 33435. 1111. 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 meet the current edition of the Model Energy Code published by the Council of American Building Officials. 1112. 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 Executive Director in connection therewith. All applicable state guidelines must also be followed. 1113. 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 254 40 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. 1.114. 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 construction of the Project). The amount of each request shall be limited to the amount needed. 1115. Eligible Costs. Developer shall use HOME Funds to pay costs defined as "eligible costs" pursuant to 24 CFR 92.206. 1116. Records and Reports. Developer shall maintain and from time to time submit to Agency/City such records, reports and information as the Executive Director 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. 1117. 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 CDBG 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"; Paragraph 2; (e) Attachment H, "Monitoring and Reporting Program Performance", (f) Attachment O, "Procurement Standards." 1118. 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. 1119. Monitoring. Developer shall cure any defects or deficiencies found by the Agency/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 Agency/City. 1120. Recertification of Tenant Income. (a) 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 35 25F-41 accordance with HOME regulations and guidelines. Every fifth (5th) year, Developer shall require new original income documents to be submitted by tenants. Tenants in HOME 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). (b) HOME 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 noncompliance is corrected. 1121. Other HOME Program Requirements. Developer shall comply with all other applicable requirements of the HOME Program. 1122. Controlling Covenants. If there is a discrepancy between State and Federal law with regard to any of the aforementioned covenants, the more stringent requirement shall apply. 1200. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 1201. Maintenance of the Property. Developer shall, at its sole cost and expense, maintain or cause to be maintained the interior and exterior of the Project and all Housing Units thereof and the Property in a decent, safe and sanitary manner, in accordance with the HUD Housing Quality Standards (HQS) and the maintenance standards required by Section 92.251 of the HOME Regulations, and in accordance with the standard of maintenance of first class apartments within Orange County, California. None of the Housing Units in the Project shall at any time be utilized on a transient basis, nor shall the Property or any portion thereof ever be used as a hotel, motel, dormitory, fraternity or sorority house, rooming house, hospital, nursing home, sanitarium or rest home, or be converted to condominium ownership. If at any time Developer fails to maintain the Project or the Property in accordance with this Agreement and such condition is not corrected within five (5) days after written notice from City with respect to graffiti, debris, and waste material, or thirty days after written notice from City with respect to general maintenance, landscaping and building improvements, then City, in addition to whatever remedy it may have at law or at equity, shall have the right to enter upon the applicable portion of the Project or the Property and perform all acts and work necessary to protect, maintain, and preserve the Project and the Property, and to attach a lien upon the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by City and/or costs of such cure, including a reasonable administrative charge, which amount shall be promptly paid by Developer to City upon demand. The liens created under this Section shall be subject and subordinate to the lien of the mortgage or deed of trust encumbering the Property (or any part of the Property) for the Primary Loan approved pursuant to the terms of this Agreement. 1201.1 Alterations and Repair. Developer shall not remove, demolish or materially alter any Improvement without Agency/City's prior consent, 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. 1202. Compliance with Laws. Developer shall comply with all Governmental Requirements (including, without limitation, all requirements relating to' the obtaining of 36 25F-42 Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's operation of the Project thereon. 1203. 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 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). 1203.1 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 Agency/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 City and Agency's interests under, the Loan Documents, and (c) Developer has furnished Agency/City with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 1203.2 Evidence of Payment. Upon demand by Agency/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 Agency/City. 1203.3 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 Agency/City, in accordance with 24 CFR 92.508. 1204. Payment of Fees. Developer shall pay annually to City/Agency on December 1 of each year, monitoring and administrative fees described in the Bond Regulatory Agreement between the Housing Authority of the City of Santa Ana and the Developer, executed upon issuance of bonds pertaining to this Project. 1205. Management Plan. As a Condition Precedent to the first disbursement of the Loans to the Developer, Developer shall submit to the Executive Director a Management Plan in a form that is acceptable to the Executive Director, including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the Executive Director prior to any disbursement of the Loans to the Developer. Developer shall manage the units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the Executive Director, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: 25? 43 1205.1 Management Agent. Developer shall submit the name and qualifications of the proposed Management Agent. The Executive Director shall approve or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. 1205.2 Management Agreement. Developer shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Developer and Management Agent. 1205.3 Annual Budget and Projected Cash Flows. Prior to the first disbursement of the Loans, and annually thereafter not later than one hundred fifty (150) days after the close of each calendar year thereafter, Developer shall submit a projected operating budget and cash flow to the Executive Director. The budget and cash flow shall be in a form that is acceptable to the Executive Director. 1205.4 Tenant Selection Policies. Developer shall adopt and include as part of its Management Plan written tenant selection policies and criteria for the Affordable Units that meet each of the following requirements: (a) Developer's tenant selection policies shall be consistent with the purpose of providing housing for Extremely Low Income and Very Low Income households; (b) Such policies shall be reasonably related to program eligibility and the applicants' ability to perform the obligations of the approved resident lease agreement; (c) Such policies shall give reasonable consideration to the housing needs of senior citizens that would have a federal preference under 42 U.S.C. § 12744 of the Cranston- Gonzalez National Affordable Housing Act of 1992; (d) Such policies shall provide for: (i) The selection of tenants from a written waiting list approved by the Agency and City, 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) Such policies shall provide first priority in the selection of qualified eligible tenants to households that are referred by the Agency or City; (f) Such policies shall carry out the adopted 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. Prior to the date of this Agreement, City has provided Developer with the City's affirmative marketing procedures; and (g) Developer and Agency shall cooperate to effectuate the tenant selection policies described in this Section prior to the initial renting, or upon occurrence of a vacancy, and the re-renting of any Affordable Unit. 38 25F-44 1205.5 Termination of Tenancy. Developer, its successors or assigns, must adhere to federal and state law requirements with regard to termination of any tenancy of each and every Affordable Unit. Developer may not terminate the tenancy or refuse to renew the lease of a tenant of an Affordable Unit within the Project except for failure to pay rent, serious or repeated violation of the terms and conditions of the lease; for violation of applicable federal, state, or local law; or for other good cause. Any termination or refusal to renew must be preceded by not less than 30 days by Developer's service upon the tenant of a written notice specifying the grounds for the action. 1205.6 Termination of Management Contract; Replacement of Management Agent. If at any time the Agency determines that the units are not being managed or maintained in accordance with the approved Management Plan, Developer shall change the management agent or the practices complained of, upon receipt of written notice from the Executive Director. The Executive Director may require Developer to change management practices or to terminate the management contract and designate and retain a different management agent. The management contract shall provide that it is subject to termination by Developer without penalty, upon thirty (30) days prior written notice, at the direction of the Executive Director. Within ten (10) days following a direction of the Executive Director to replace the management agent, the Developer shall select another management agent or make other arrangements satisfactory to the Executive Director or designee for continuing management of the Housing Units. 1206. Vouchers. Developer, 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 tenant-based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable tenant-based assistance document. Total rents charged to such tenants, including the tenant contribution and rental assistance, shall not exceed the Affordable Rent permitted to be charged pursuant to this Agreement, the Affordability Restrictions, and the NSP Documents. 1207. Lease Requirements. Developer shall execute or cause to be executed a written lease in a form approved in writing by Agency and City (other than immaterial modifications thereto) which complies with the applicable HOME Regulations, the Redevelopment Law, and all applicable federal, state and local laws and regulations, with each tenant household identifying by name all permitted occupants, both adults and minors, occupying each unit. The lease between tenants occupying the units and Developer must be for not less than one year, unless by mutual agreement between the tenant and Developer. The lease may not contain any of the following provisions (in which references to "owner" shall mean the Developer, 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; 39 25F-45 (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. 1208. Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project ("Project Operating Account") in accordance with the Operating Budget prepared by Developer and approved by the Executive Director each year. Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Operating Budget, as it may be revised from time to time with Agency/City approval. Developer may make withdrawals from this account solely for the payment of project expenses and project fees included in the approved Operating Budget. Withdrawals from this account for other purposes may be made only with the prior written approval of the Agency/City. 1209. Replacement Reserve Account. Developer must establish or cause to be established a segregated interest-bearing replacement reserve depository account ("Replacement Reserve Account") no later than sixty (60) days after the Notice of Completion is filed. Developer must make monthly deposits from project income into the Replacement Reserve Account in accordance with the approved Annual 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 Agency/City. 1210. Monitoring and Recordkeeping. Throughout the Term of this Agreement, Developer shall comply with all applicable recordkeeping and monitoring requirements set forth in the Redevelopment Law and the HOME Program, including Section 92.508 (or successor regulation) of the HOME Regulations and Section 33418 of the Redevelopment Law, and shall annually complete and submit to Agency/City a Certification of Continuing Program Compliance substantially in the form of Exhibit N hereto, or other form provided by the Executive Director. Representatives of the Agency and City shall be entitled to enter the Property, upon at least twenty-four (24) hours notice, to monitor compliance with this Agreement, to inspect the records of the Project, and to conduct an independent audit or inspection of such records. Developer agrees to cooperate with City in making the Property and all Housing Units thereon available for such inspection or audit. 40 25F-46 Developer agrees to maintain records in a businesslike manner, to make such records available to the Agency and City upon twenty-four (24) hours notice, and to maintain such records for the entire Term of this Agreement. Developer shall cure any defects or deficiencies found by the Agency/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 Agency/City. Without limiting the generality of the foregoing, Developer shall prepare, maintain and submit to the Agency, as appropriate, the following records and reports in compliance with Health and Safety Code Section 33418 and 24 CFR 92.504(c)(12): 1210.1 Annual Reports. Developer shall file with the Agency an Annual Report (herein referred to as the "Annual Report") within one hundred fifty (150) days following the end of each calendar year, commencing with the end of the calendar year (or portion thereof) in which the first disbursement of the Loans occurs. The Annual Report shall contain a certification by Developer as to such information as the Executive Director may then require, including, but not limited to, the following: (a) The fiscal condition of the Project, including the Annual Budget; an updated Project cash flow projection; a 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 contained in any fiscal reserves. Such Annual Budget and financial statement shall be prepared in accordance with generally accepted accounting practices, consistently applied. The Executive Director may require that the financial statement be audited at Developer's expense by an independent certified public accountant acceptable to the Executive Director. (b) 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 Developer 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 92.251. (c) A report regarding the occupancy of the Affordable 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 24 CFR 92.253 for tenant and participant protection under the HOME Program and the requirements of the Agreement and these Restrictions. (d) General management performance, including tenant relations and other relevant information. (e) Records that demonstrate that the Affordable Units meet the affordability requirements of 24 CFR 92.252 and Section 50053 of the California Health and Safety Code, for the required period of affordability according to Section 33334.3 of the California Health and Safety Code. (f) Evidence of a currently paid hazard insurance policy in accordance with the requirements of the Agency Deed of Trust and the City Deed of Trust, with a loss payable endorsement naming the Agency and City as a loss payees together with other approved lenders (as 250-47 their interests may appear), with a "Replacement Cost Endorsement" in amount sufficient to prevent Developer or Agency/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. (g) Evidence of a currently paid liability insurance policy, naming the Agency and City as additional insureds and in a form approved by legal counsel to the Agency and City, with coverage as described in the Agreement. (h) Termite reports pertaining to the Property shall be provided every fifth (5th) year. (i) Such other information as may be reasonably required by the Executive Director or his/her designee. 1210.2 Records and Audits. Developer shall maintain the following records, and make them available for inspection by the Agency, the City, the State or HUD: (a) records which demonstrate that the project meets the property standard specified in 24 CFR 92.251; (b) records, for each Affordable Unit, which demonstrates that the project meets the requirements of 24 CFR 92.252; (c) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (d) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (i) data on the extent to which each racial and ethnic group 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 HOME funds; (ii) 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); (iii) documentation and data on the steps taken to implement Developer's outreach programs to minority-owned and women-owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (e) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CFR 92.351, if applicable; (f) 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 upon Developer's acquisition (i.e., the date on which Developer obtained site control); 42 25F-48 92.355; (g) records concerning lead-based paint in accordance with 24 CFR (h) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (i) 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 0) any other reports issued by other agencies monitoring the Project. 1210.3 Retention of Records. All records pertaining to each calendar year of HOME Program 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). Developer shall cooperate with the Agency and City to retain all books and records relevant to the Agreement for a minimum of five years after the expiration of the 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 Agreement, whichever is later. The Agency, 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. 1210.4 Delivery of Records upon Termination of Agreement. If so directed by the Agency, the City, the State or HUD upon termination of the Agreement, Developer shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the Agency, the City, the State or HUD, as depository. 1210.5 Access to Records. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the Agency, the City, the State or HUD, on reasonable prior notice, for the purpose of examination or audit. 1210.6 Annual Audit. The Agency/City may perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Developer shall reasonably cooperate with Agency/City with respect to such audit. 1211. Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction. The Agency and City are deemed the beneficiaries of the terms and provisions of this Agreement, the other Project Documents, and all covenants running with the land, for and in their own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit this Agreement, the other Project Documents, and the covenants running with the land have been provided, without regard to whether the Agency or City have been, remain or are owners of any land or interest therein in the Property or in the Project. The Agency and City shall have the right, if the Agreement or 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 it or any other 43 25F-49 beneficiaries of this Agreement and covenants may be entitled. The covenants contained in this Agreement shall remain in effect as follows: (a) The covenants against discrimination, as set forth in Article 1300 and the environmental covenants set forth in Article 1400 shall remain in effect in perpetuity. (b) All other covenants set forth herein and in the other Project Documents, including the covenants pertaining to the operation, use, maintenance and management of the Property as Affordable Housing set forth in Article 700 and this Article 1200, shall remain in effect throughout the entire Term hereof. 1300. NONDISCRIMINATION COVENANTS 1301. 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, 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 in perpetuity. 1302. Nondiscrimination in Employment. Developer certifies and agrees that all persons employed or applying for employment by it, its affiliates, subsidiaries, or holding companies, and all subcontractors, bidders and vendors, are and will be treated equally by it without regard to, or because of race, color, religion, ancestry, national origin, sex, age, pregnancy, childbirth or related medical condition, medical condition or physical or mental disability, and in compliance with Title VII of the Civil Rights Act of 1964, 42 U S.C. Section 2000, et seq., the Federal Equal Pay Act of 1963,29 U.S.C. Section 206(d), the Age Discrimination in Employment Act of 1967, 29 U S.C. Section 621, et seq., the Immigration Reform and Control Act of 1986, 8 U.S.C. Section 1324b, et seq., 42 U.S.C. Section 1981, the California Fair Employment and Housing Act, Cal. Government Code Section 12900, et seq., the California Equal Pay Law, Cal. Labor Code Section 1197.5, Cal. Government Code Section 11135, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and all other applicable anti-discrimination laws and regulations of the United States and the State of California as they now exist or may hereafter be amended. 1303. Statutory Nondiscrimination Covenants. Except to the extent preferences are permitted or required by this Agreement, Developer covenants by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. 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 44 25F-50 with the equal opportunity and fair housing requirements set forth in Section 92.350 of the HOME Regulations. The foregoing covenants shall run with the land and remain in effect in perpetuity. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In Deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." (b) In Leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein' leased nor shall the lessee himself or herself, or any person claiming under or through him or her, 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, sublessees, subtenants, or vendees in the premises herein leased." (c) In Contracts: "There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises which are the subject of this Agreement, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." 1303.2 In Affordable Housing Restrictions. The foregoing covenants shall (a) be included in the Affordability Restrictions, (b) run with the land, and (c) remain effective for the entire Term of Affordability (for not fewer than 55 years). 1304. Covenants Remain in Perpetuity. The covenants established in this Article 1300 shall, without regard to technical classification and designation, run with the land and be binding on Developer and any successor in interest to the Property, in favor of Agency and City and their successors and assigns, and shall remain in effect in perpetuity. 45 25F-51 1400. ENVIRONMENTAL MATTERS 1401. Representation and Warranty. Except as Developer has expressly disclosed to Agency and City in writing, 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, and (d) Developer has not received any notice or other communication from any Governmental Authority having jurisdiction over the Property notifying Developer of the presence of Hazardous Materials in, on, or under the Property, or any portion thereof. 1402. Compliance with Environmental Laws. Developer shall take all necessary precautions to prevent the release into the environment of any Hazardous Materials which are located in, on or under the Property. Such precautions shall include compliance with all Governmental Requirements with respect to Hazardous Materials. In addition, the Developer shall install and utilize such equipment and implement and adhere to such procedures as are consistent with commercially reasonable standards as respects the disclosure, storage, use, removal and disposal of Hazardous Materials. In addition, Developer shall (a) comply with all Environmental Laws and environmental permits applicable to the construction and operation 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. 1403. 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. 1404. Notice of Environmental Matters. Developer shall notify the Agency/City, and provide to the Agency/City a copy or copies, of all environmental permits, disclosures, applications, entitlements or inquiries relating to the Property which have been conveyed to Developer, including notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist order, reports filed pursuant to self-reporting requirements and reports filed or applications made pursuant to any Governmental Requirement relating to Hazardous Materials and underground tanks. The Developer shall report to the Agency, as soon as possible after each incident, any unusual or potentially important incidents with respects to the environmental condition of the Property. In the event of a release of any Hazardous Materials into the environment, Developer shall, as soon as possible after the release, furnish to Agency/City a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release. Upon request, Developer shall furnish to Agency/City a copy or copies of any and all other environmental entitlements or inquiries relating to or affecting the Property including, but not limited to, all permit applications, permits and reports including, without limitation, those reports and other matters which may be characterized as confidential. Developer shall immediately advise Agency/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 46 25F-52 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. 1405. Developer Environmental Indemnity. Developer acknowledges that Developer located the Property and performed due diligence regarding the condition of the Property prior to acquiring the Property, to Developer's satisfaction and without assistance from the City or Agency. Developer hereby agrees that at Developer's expense, defend (using counsel satisfactory to Agency and City), indemnify, assume all responsibility for, and save and hold the Indemnitees harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorney's fees), resulting from, arising out of, or based upon (i) the release, use, generation, discharge, storage or disposal of any Hazardous Materials in violation of Environmental Laws during the period of the Developer's ownership of the Property, on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Property by Developer or any of Developer Parties during the period of the Developer's ownership of the applicable Property, or (ii) the violation, or alleged violation of any Environmental Laws relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about, to or from, the Property during the period of the Developer's ownership of the Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, cost or expense arising from or out of any claim, action, suit, or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment. 1500. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the Promissory Notes or Deeds of Trust remain outstanding, the following provisions shall apply, except to the extent that Executive Director otherwise consents in writing: 1501. Existence. The sole member of Developer's managing general partner Orange Housing Development Corporation 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 Agency/City. 1502. Protection of Lien. Developer shall maintain the lien of the Agency/City Deed(s) of Trust as a valid second and third priority deed of trust on the Property and take all actions, and execute and deliver to Agency/City all documents, reasonably required by Agency/City from time to time in connection therewith. 1503. Notice of Certain Matters. Developer shall give notice to Agency/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; 47 25F-53 (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) 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. 1504. Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to Agency/City all documents, and take all actions, reasonably required by Agency/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 Agency/City Deeds of Trust; to subject to the Deed(s) of Trust any property intended by the terms of any Loan Documents to be covered by the Agency/City Deeds of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. 1505. Annual Financial Statements. Developer shall deliver to Agency/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 Agency/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 Agency/City with any other annual audit reports issued by other monitoring agencies. Developer shall include in said reports a residual receipts report. In addition to the foregoing, Developer shall comply with the requirements set forth in Section 1210. 1506. Audits and Access to Records. Developer agrees that Agency/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 48 25F-54 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 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. In addition to the foregoing, Developer shall comply with the requirements set forth in Section 1210. 1507. Termite Inspection Report. Developer shall deliver a termite report pertaining to the Property to the Agency/City every fifth (5th) year beginning January 2016. 1600. OTHER NEGATIVE COVENANTS While any obligation of Developer under the Promissory Notes or Deeds of Trust remain outstanding, the following provisions shall apply, except to the extent that Executive Director otherwise consents in writing: 1601. 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. 1602. Transfers of Interest in Property or Agreement. 1602.1 Prohibition. The qualifications and identity of the Developer are of particular concern to the Agency and City. It is because of those qualifications and identity that Agency and City have entered into this Agreement and the other Project Documents with the Developer. For the period commencing upon the date of this Agreement and until the expiration of the Term hereof, no voluntary or involuntary successor in interest of the Developer shall acquire any rights or power under this Agreement, nor shall the Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Property or the Improvements thereon without prior written approval of the Agency/City, except as expressly set forth herein. Any proposed total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Property or the Improvements will constitute a Default pursuant to Article 2000 hereof. 1602.2 Permitted Transfers. Notwithstanding any other provision of this Agreement to the contrary, Agency approval of an assignment of this Agreement or conveyance of the Property or Improvements, or any part thereof, shall not be required in connection with any of the following: (a) Any transfers to an entity or entities in which the Developer, or either of its general partners, retains ownership or beneficial interest and retains management and control of the transferee entity or entities. (b) The conveyance or dedication of any portion of the Property to the City or other appropriate governmental agency, or the granting of easements or permits to facilitate construction of the Improvements (as defined herein). (c) Any requested assignment for financing purposes (subject to such financing being considered and approved by the Agency pursuant to Section 311), including the grant 49 25F-55 of a deed of trust to secure the funds necessary for construction and permanent financing of the Improvements. (d) Removal of the investor limited partner of Developer upon the expiration of the fifteen (15) year tax credit compliance period applicable to the Project. In the event of an assignment by Developer under subparagraphs (a) or (c) above not requiring the Agency's prior approval, Developer nevertheless agrees that at least thirty (30) days prior to such assignment it shall give written notice to Agency/City of such assignment and satisfactory evidence that the assignee has assumed jointly with Developer the obligations of this Agreement. 1602.3 Agency/City Consideration of Requested Transfer. Agency and City agree that they will not unreasonably withhold approval of a request made pursuant to this Section 1602, provided the Developer delivers written notice to the Agency/City requesting such approval. Such notice shall be accompanied by sufficient evidence regarding the proposed assignee's or purchaser's development and/or operational qualifications and experience, and its financial commitments and resources, in sufficient detail to enable the Agency to evaluate the proposed assignee or purchaser pursuant to the criteria set forth in this Section 1602 and as reasonably determined by the Agency/City. The Agency/City shall evaluate each proposed transferee or assignee on the basis of its development and/or qualifications and experience in the construction of facilities similar to the Improvements, and its financial commitments and resources, and may reasonably disapprove any proposed transferee or assignee, during the period for which this Section 1602 applies, which the Agency/City determines does not possess equal or better qualifications that the transferring Developer. An assignment and assumption agreement in a form satisfactory to the Agency/City's legal counsel shall also be required for all proposed assignments. Within thirty (30) days after the receipt of the Developer's written notice requesting Agency approval of an assignment or transfer pursuant to this Section 1602, the Agency/City shall either approve or disapprove such proposed assignment or shall respond in writing by stating what further information, if any, the Agency/City reasonably requires in order to determine the request complete and determine whether or not to grant the requested approval. Upon receipt of such a response, the Developer shall promptly furnish to the Agency/City such further information as may be reasonably requested. 1602.4 Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon the Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 1602.5 Assignment by City or Agency. City and Agency may assign or transfer any of their rights or obligations under this Agreement without the approval of the Developer. 1700. ENFORCED DELAY; EXTENSION OF TIMES OF PERFORMANCE In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults are due to causes beyond the control or without the fault of the party claiming an extension of time to perform, which may include: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; acts of 50 25F-56 terrorism; 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, subcontractor or supplier; acts or omissions of the other party; acts or failures to act of the City, Agency, or any other public or governmental agency or entity (other than the acts or failures to act of the Agency or City which shall not excuse performance by the Agency or City). Notwithstanding anything to the contrary in this Agreement, 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 of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency/City (through the Executive Director) and Developer. Notwithstanding any provision of this Agreement to the contrary, the lack of funding to complete the Improvements shall not constitute grounds of enforced delay pursuant to this Article 1700. 1800. INDEMNIFICATION 1801. Nonliability of Agency and City. Developer acknowledges and agrees that: (a) The relationship between Developer and Agency/City is and shall remain solely that of borrower and lender, Agency/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 Agency/City and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the Agency and City are not a partner, joint venture, alter-ego, manager, controlling person or other business associate or participant of any kind of Developer and Agency/City does not intend to ever assume any such status; (ii) Agency/City's activities in connection with the Loan(s) 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 Agency/City does not intend to ever assume any responsibility to any person for the quality or safety of the Property or the Project; and (iii) Agency/City shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) Agency/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 Agency/City under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, Agency/City shall not be deemed to have warranted or represented the 51 25F-57 sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by Agency/City to anyone. 1802. Developer Indemnity. Without limiting Developer's obligations to indemnify the Indemnitees set forth in Section 1405, Developer shall, at Developer's expense, defend (using counsel satisfactory to Agency and City), indemnify, assume all responsibility for, and save and hold the Indemnities harmless from any and all losses, damages, liabilities, claims, causes of action, judgments, settlements, court costs, demands, defense costs, reasonable attorneys' fees, expert witness fees, and other legal expenses, costs of evidence of title, costs of evidence of value, and other expenses which they may suffer or incur and any liability of any kind or nature arising from or relating to the subject matter of this Agreement and/or any other Project Document or the validity, applicability, interpretation or implementation hereof or thereon and for any damages to property or injuries to persons directly or indirectly related to or in connection with the construction of the Improvements, operation, management, or ownership of the Property, including accidental death (including reasonable attorneys fees and costs), whether such damage shall accrue or be discovered before or after termination of this Agreement. Developer shall not be obligated to indemnify the Indemnitees for property damage or bodily injury to the extent occasioned by the negligence or willful misconduct of any of the Indemnitees. Developer shall have the obligation to defend any such action; provided, however, that this obligation to defend shall not be effective if and to the extent that Developer determines in its reasonable discretion that such action is meritorious or that the interests of the parties justify a compromise or a settlement of such action, in which case Developer shall compromise or settle such action in a way that fully protects the Indemnitees from any liability or obligation. In this regard, Developer's obligation and right to defend shall include the right to hire (subject to reasonable written approval by City and Agency) attorneys and experts necessary to defend, the right to process and settle reasonable claims, the right to enter into reasonable settlement agreements and pay amounts as required by the terms of such settlement, and the right to pay any judgments assessed against Developer or any other Indemnitees. If Developer defends any such action, as set forth above, (i) to the extent of Developer's indemnification obligations as set forth herein, Developer shall indemnify and hold harmless Indemnitees from and against any claims, losses, liabilities, or damages assessed or awarded against either of them by way of judgment, settlement, or stipulation and (ii) City and Agency shall be entitled to settle any such claim only with the written consent of Developer and any settlement without Developer's consent shall release Developer's obligations under this Section 1802 with respect to such settled claim. The foregoing agreements by Developer shall remain in effect for the entire Term of this Agreement. At the request of Developer, City and Agency shall cooperate with and assist Developer in its defense of any such claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense; provided that City and Agency shall not be obligated to incur any expense in connection with such cooperation or assistance. Notwithstanding the foregoing, Developer shall not be required to indemnify the Agency with respect to actions arising from the proposal made by the Governor of California to eliminate redevelopment agencies. 1803. Reimbursement of Agency/City. Developer shall reimburse Agency/City immediately upon written demand for all costs reasonably incurred by Agency/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 Agency/City is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty (20) days after Agency/City gives written demand to Developer and shall be secured by the Agency/City 52 25F-58 Deed(s) of Trust. Such reimbursement obligations shall survive the cancellation of the Agency Promissory Note and/or the City Promissory Note, release and reconveyance of the Agency/City Deed(s) of Trust, issuance of a Release of Construction Covenants, and termination of this Agreement. 1900. INSURANCE, CASUALTY AND CONDEMNATION 1901. Policies Required. While any obligation of Developer under the Project Documents remains outstanding, Developer shall maintain at Developer's sole expense, with insurers either (i) admitted in California or (ii) which are not admitted to California but have an A.M. Best Rating of "A" or above and reasonably approved by the Agency/City, the following policies of insurance in form and substance reasonably satisfactory to the City Attorney: [subject to Approval by City Risk Manager] (a) worker's compensation insurance 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 Agency/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 Agency/City from time to time, and in no event less than $1,000,000; and (f) any other insurance reasonably required by Agency/City. All such insurance shall provide that it may not be canceled or materially modified without thirty (30) days prior written notice to Agency/City. The policies required under subparagraphs (b) and (c) shall include a "lender's loss payable endorsement" (Form 438BFU) in form and substance satisfactory to Agency/City, showing the Agency and the City as encumbrance, The Agency and the City shall be named as an additional insured(s) in the policies required under subparagraphs (d) and (e). Certificates of insurance for the above policies (and/or original policies, if required by Agency/City) shall be 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 shall deliver to Agency/City evidence of renewal or replacement of such policy reasonably satisfactory to City Attorney. 53 25F-59 1902. Agency/City Attorney May Modify. The Agency/City Attorney may modify the type and amounts of insurance (including reasonable increases in policy limits) required pursuant to this Section. 1903. Claims and Proceedings. Developer shall give Agency/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 Agency/City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by Agency/City in connection therewith to protect the interests of Developer and/or City, and Agency/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. 1904. Delivery of Proceeds to Agency/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 Agency and City immediately upon receipt. 1905. Application of Casualty Insurance Proceeds. Any proceeds collected ("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 ("Restoration Conditions") within ninety (90) days (unless extended by mutual agreement of Developer and Agency/City) following, the occurrence of the damage for which the Proceeds are collected: (a) Developer shall demonstrate to Agency/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 Agency/City, to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to Agency/City of (i) plans and specifications reasonably satisfactory to Agency/City, and (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to Agency/City. (b) To the extent that the Proceeds are insufficient to accomplish the restoration required above, Developer shall deliver to Agency/City funds ("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 manlier 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. 1906. Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by Agency/ City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining 54 25F-60 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 either be paid to Developer or applied by Agency/City against any obligations to Agency/City that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 1907. Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within ninety (90) days (unless extended pursuant to Section 1905) following the date on which the damage occurs, the Proceeds shall be applied by Agency/City against any obligations to Agency/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 Agency/City in their sole and absolute discretion. 1908. Restoration. Nothing in this Article 1900 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. 1909. Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the Agency and City, as security for all obligations to Agency or 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 Agency/City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of Agency/City, such taking renders or is likely to render the Property not economically viable or if, in Agency/City's reasonable judgment Developer's security is otherwise impaired, Agency/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 Agency/City may determine, and without any adjustment in the amount or due dates of payments due under the Note. If so applied, any award in excess of the unpaid balance of the Note and other sums due to Agency/City shall be paid to Developer or Developer's assignee. Agency/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 Agency/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. 1910. Waiver of Subrogation. Developer hereby waives all rights to recover against the Agency or the City (or any officer, employee, agent or representative of Agency or 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. 55 25F-61 2000. DEFAULTS AND REMEDIES 2001. Events of Default. Subject to the extensions of time set forth in Article 1700, failure by either party to perform any action or covenant required by this Agreement or any other Project Document within the time periods provided herein (or therein) following notice and failure to cure as described hereafter, constitutes a "Default" or "Event of Default" under this Agreement. A party claiming a Default shall give written notice of Default to the other party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such party within thirty (30) days from receipt of such notice immediately, with due diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy with diligence. Without limiting the generality of the foregoing, the occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer under this Agreement: (a) Developer fails to make any payment of principal or interest under the Promissory Notes 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 ninety (90) days (unless extended pursuant to Section 1905) 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 Agency/City's reasonable judgment, threaten to delay the completion of the construction beyond the required completion date set forth in the Schedule of Performance; (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; 56 25F-62 (h) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the Executive Director'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 ninety (90) 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) clays after its issue or levy; or 0) (i) any of the Senior Loan documents is revoked or terminated, in whole or in part and for any reason (except due to repayment in full of the Senior Loan), without the Executive Director'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 amended, supplemented or otherwise modified without Agency/City's prior written consent, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, Agency/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. 2002. Remedies Upon Default. Upon the occurrence of any Event of Default, Agency/City may, at its option and in its absolute discretion, do any or all of the following: (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; (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; (d) Suspend or terminate the award of HOME funds if Developer fails to comply with any term of that award; and 57 25F-63 (e) Suspend or terminate the award of the tax increment funds if Developer fails to comply with any term of that award. 2003. Termination by the Developer. In the event that the Developer is not in default under this Agreement or any other Project Document and the Agency and City do not provide the Loans pursuant to this Agreement; or in the event of any default of the Agency or City prior to the first disbursement of the Loans, which is not cured within the time set forth in Section 2001 hereof, and any such failure is not cured within the applicable time period after written demand by the Developer, then this Agreement may, at the option of the Developer, be terminated by written notice thereof to the Agency/City. From the date of the written notice of termination of this Agreement by the Developer to the Agency/City and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties arising from this Agreement, except that the parties may pursue any other remedies they may have hereunder. 2004. Termination by the Agency or City. In the event that neither Agency nor City is in Default under this Agreement, and (i) the Developer (or any successor in interest) assigns or attempts to assign or transfer this Agreement or any Project Document or any rights therein or in the Property in violation of Section 1602 of this Agreement; or (ii) one or more of the Conditions Precedent to the Loans set forth in Sections 601, 602, and 603 hereof is not fulfilled on or before the time set forth in this Agreement and/or the Schedule of Performance and such failure is not caused by the Agency or City; or (iii) the Developer fails to commence construction of the Improvements within the time set forth in the Schedule of Performance or fails to proceed with or suspends construction of the Improvements for at least a ninety (90) day period and such default or failure shall not be cured within thirty (30) days after the date of written demand therefor by the Agency; or (iv) the Developer does not submit evidence of financing, certificates of insurance, construction plans, drawings and related documents as required by this Agreement and within the time set forth in the Schedule of Performance, in the manner and by the dates respectively provided in this Agreement and such default or failure shall not be cured within thirty (30) days after the date of written demand therefor by the Agency; or (v) the Developer is otherwise in Default of this Agreement and fails to cure such default within the time set forth in Section 2001 hereof; then this Agreement and any right of the Developer or any assignee or transferee with respect to or arising out of the Agreement or the Property, shall, at the option of the Agency/City, be terminated by the Agency/City by notice to the Developer and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties, except that the parties may pursue any other remedies they may have hereunder. 2005. Institution of Legal Actions. In addition to any other rights or remedies and subject to the restriction otherwise set forth in this Agreement, either party may institute and action at law or equity to seek specific performance of the terms of this Agreement, or 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 actions must be instituted in the Superior Court in the County of Orange, State of California, or in the District for the Central District of California. 2006. Acceptance of Service of Process. In the event that any legal action is commenced by the Developer against the City or Agency, service of process on the City or Agency shall be made by personal service upon the Executive Director of the City or Agency or in such other manner as may be provided by law. In the event that any legal action is commenced by the City or Agency against the Developer, service of process on the Developer shall be made by personal service upon 58 25F-64 the Chief Executive Officer of the Managing General Partner of the Developer or in such other manner as may be provided by law. 2007. Damages. In the event that the Agency/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 Agency/City shall be an action for specific performance of such party's obligations or exercise of Developer's right to terminate this Agreement pursuant to Section 2002(f). 2008. Nonrecourse Liability. Neither Developer, nor any partner of Developer, shall have any personal liability under this Agreement, the Agency Promissory Note, the City Promissory Note, and Deeds 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. 2009. Cumulative Remedies; No Waiver. Agency/City's rights and remedies under the Project Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by Agency/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 Agency or City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by Agency/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 Project Document shall be construed as a waiver of any subsequent breach of the same provision. Agency/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 Agency/City's consent to or approval of any subsequent act. The Agency or the City's acceptance of the late performance of any obligation shall not constitute a waiver by Agency/City of the right to require prompt performance of all further obligations; Agency/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 Agency/City's acceptance of any partial performance shall not constitute a waiver by Agency/City of any rights. 2100. MISCELLANEOUS 2101. Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of Agency/City to Developer, or any other claim by developer against Agency/City, in connection with the 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. 2102. Notices. All notices, demands, approvals and other communications provided for in the Loan Documents (each, a "Notice") shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: 59 25F-65 If to Developer: Santa Ana WBBB, LP c/o Orange Housing Development Corporation 414 E. Chapman Avenue Orange, California 92866 Attention: Chief Executive Officer With a copy to: C&C Development Co., LLC 14211 Yorba Street, Suite 200 Tustin, California 92780 If to Agency/City: City of Santa Ana Executive Director (CDA/RDA) 20 Civic Center Plaza (M-37) P.O. Box 1988 Santa Ana, California 92702 [What is correct address?] With a copy to: City/Agency Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 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. 2103. 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 Agency/City notwithstanding any investigation made by either party. 2104. No Third Parties Benefited. This Agreement is made for the purpose of setting forth rights and obligations of Developer and the Agency and City, and no other person shall have any rights hereunder or by reason hereof. 2105. Binding Effect; Assignment of Obligations. This Agreement shall bind, and shall inure to the benefit of, Developer and Agency/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 Agency/City, which consent may be withheld in Agency/City's sole and absolute discretion. Any such assignment without such consent shall, at Agency or City's option, be void. 2106. Prior Agreements; Amendments; Consents. This Agreement (together with the other Project Documents and all exhibits and attachments hereto and thereto) contains the entire agreement between the Agency, City and Developer with respect to the Loan(s) and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Project Documents. Except for the other Project Documents all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based 60 25F-66 solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. No modification of any Project 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. 2107. 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 Agency/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. 2108. 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. 2109. 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. 2110. 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. 2111. Conflict of Interest. No member, official or employee of the Agency or 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 the Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she is directly or indirectly interested. 2112. Warranty Against Payment 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. 2113. Nonliability of Agency/City Officials and Employees. No member, official or employee of Agency/City shall be personally liable to Developer, or any successor in interest, in the event of any default or breach by Agency/City or for any amount which may become, due to Developer or successor, or on any obligation under the terms of this Agreement. 2114. Relationship Among Agency, City and Developer. It is hereby acknowledged that the relationship among the Agency, City and the Developer is not that of a partnership or joint venture and that the Agency, City and Developer shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the Attachments 61 25F-67 hereto, the Agency and City shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Improvements. 2115. Plans and Data. Where Developer does not proceed with the work and construction of the Property, and when this Agreement is terminated with respect thereto for any reason, Developer shall deliver to Agency/City any and all plans and data concerning the Property, and Agency/City or any person or entity designated by Agency/City shall have the right to use such plans and data without compensation to Developer. Such right of Agency/City shall be subject to any right of the preparer of the plans to their use. 2116. 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 Agency and City fully, including reasonable costs and attorney's fees, for any injuries or damages to Agency/City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 2117. Agency and City Approvals and Actions. The Agency and City shall maintain authority of this Agreement and the authority to implement this Agreement through the Executive Director (or his duly authorized representative). The Executive Director shall have the authority to make approvals, issue interpretations, waive provisions, and/or enter into amendments of this Agreement on behalf of the Agency so long as such actions do not materially or substantially change the uses or development permitted on the Property, or materially or substantially add to the costs incurred or to be incurred by the Agency as specified herein, and such approvals, interpretation, waivers and/or amendments may include extensions of time to perform as specified in the Schedule of Performance. All other material and/or substantial interpretations, waivers, or amendments shall require the consideration, action and written consent of the Agency Board and City Council. The Executive Director may transfer and assign the authority to this Agreement to the City Manager of the City at any time, upon giving notice to Developer but without Developer's approval. 2118. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement and shall be deemed to be an original. 2119. Real Estate Brokerage Commission. The Agency, the City and the Developer each represent and warrant to the other that no broker or finder is entitled to any commission or finder's fee in connection with the Loans. The parties each agree to defend and hold harmless the other parties from any claim to any such commission or fee from any broker, agent or finder with respect to this Agreement which is payable by such party. 2120. Attorney's Fees. In any action between the parties to interpret, enforce, reform, modify, rescind, or otherwise in connection with any of the terms or provisions of this Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs and reasonable attorneys' fees. 2121. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." This Agreement shall be interpreted as though prepared jointly by both parties. 62 25F-68 2122. No Waiver. A waiver by any party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by another party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement. 2123. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day, and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time. 2124. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 2125. Time of Essence. Time is expressly made of the essence with respect to the performance by the Agency, the City, and the Developer of each and every obligation and condition of this Agreement. - 2126. Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. 2127. 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 either the City or the Agency (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. 2128. 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 either the City or Agency and shall not shall not constitute a default or an Event of Default under this Agreement or the Loan Documents or accelerate the maturity of the City Loan or the Agency Loan. If the Developer's limited partner exercises its right to remove a General Partner, City and Agency will not unreasonably withhold their consent to the substitute general partner; provided however, the consent of either the City or Agency 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 obliterations of the removed general partner hereunder. {Signatures on following page) 63 25F-69 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date set forth at the beginning of this Agreement. AGENCY: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body, corporate and politic By: ATTEST: Maria D. Huizar, Secretary APPROVED AS TO FORM By: Lisa E. Storck Assistant Counsel CITY: Executive Director CITY OF SANTA ANA, a municipal corporation By: ATTEST: Maria D. Huizar, Cleric of the Council APPROVED AS TO FORM By: Lisa E. Storck Assistant City Attorney City Manager 64 25F-70 DEVELOPER: SANTA ANA WBBB LP, a California Limited Partnership By: ORANGE HOUSING DEVELOPMENT CORPORATION, a California nonprofit corporation, its managing general partner By: Eunice Bobert Chief Executive Officer By: C&C Development, LLC, a California limited liability company, its developer general partner By: Todd R. Cottle, its member By: The Cottle Family Trust Dated 3/8/1987, its member By. Barry A. Cottle, Trustee 65 25F-71 25F-72 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: AMENDMENT TO AGREEMENT WITH MIDORI GARDENS INC. CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15t Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached amendment to the agreement with Midori Gardens Inc. extending the current agreement for two years through Fiscal Year 2012/2013, for a total contract amount not to exceed $850,000 annually for the term of the agreement, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION The City's median maintenance contractor, Midori Gardens Inc., has been providing landscaping services for the City's medians, neighborhood entryways, and water reservoir sites in addition to cleaning arterial sidewalks and tree wells for over 15 years. The current agreement was competitively bid in 2006. It is a three-year agreement with the option of two one-year extensions. The final one-year extension was utilized for Fiscal Year 2010/2011. Midori Gardens Inc. has proposed an extension to the current agreement for two years that will maintain the current level of service with a 15 percent reduction in the current monthly maintenance contract price. This reduction would save the City $115,000 annually on the current contracted prices. Additionally the contractor has proposed a 23 percent reduction in the contract pricing for all future landscaped areas, and minor modifications to the agreement that will allow the City flexibility in adapting to new landscaping methods. Staff recommends approving the proposed extension. Midori Gardens Inc. has established an excellent working relationship with the City and has performed well. This proposal benefits the City as a whole; in addition to the monetary savings Midori Gardens Inc. is a Santa Ana business and 80 percent of its employees are Santa Ana residents. 25G-1 Amendment to Agreement with Midori Gardens Inc. March 7, 2011 Page 2 ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds will be included in the proposed Fiscal Year 2011-2012 budget in the Public Works Median Landscaping program (accounting unit 02917635-62320), the Water Production and Supply program (accounting unit 06017640-62320) and the Environmental Sanitation program (accounting unit 06817640-62300). APPROVED AS TO FUNDS AND ACCOUNTS: Rau odinez II Francisco Gutierrez Executive Direct Executive Director Public Works A cy Finance & Management Services Agency RG:KW Exhibit 1: Amendment to Agreement 25G-2 FIFTH AMENDMENT TO LANDSCAPE MAINTENANCE AGREEMENT THIS FIFTH AMENDMENT TO AGREEMENT is entered into on March 7, 2011, by and between Midori Gardens ("Contractor") and the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"). RECITALS: A. The parties entered into Agreement #A-2006-195, dated August 7, 2006, (hereinafter "said Agreement") by which Contractor has provided landscape maintenance in street medians and City owned property. B. By amendments dated October 10, 2008, November 6, 2008, July 20, 2009 and June 21, 2010, the parties agreed to adjust rates to compensate for increases in labor and material costs, provide for services on additional City properties, extend the term of said Agreement and add compensation to pay for services during the extended term. C. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Scope of Services to provide landscape services for additional properties within the City, extend the term and add compensation to pay for services during the additional two-year term. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this Fifth Amendment to Agreement, the parties agree as follows: 1. Section 1, SCOPE OF SERVICES, shall be amended to include additional sites agreed between Contractor and City since the commencement of said Agreement. Additional maintenance sites may be included in the monthly maintenance schedules as agreed by the Executive Director of Public Works, or his designee, and Contractor. 2. Section 2.a., COMPENSATION, shall be deleted in its entirety and replaced with the following: "a. City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in Exhibit D-l, attached hereto and incorporated by reference. The total sum to be expended under this Agreement shall not exceed $850,000, annually, for the term from July 1, 2011 through June 30, 2013." Section 3, TERM, shall be deleted in its entirety and replaced with the following: "This Agreement shall commence on August 1, 2006 and continue through June 30, 2013, unless terminated earlier in accordance with Section 12, of said Agreement. However, if City Council fails to appropriate funds for the landscape services during the 2012/2013 fiscal year, said Agreement shall automatically terminate effective June 30, 2012." 25G-3 4. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment to Agreement on the date and year first written above. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA InterimCity Attorney By: Laura Sheedy Assistant City Attorney DAVID N. REAM City Manager MIDORI GARDENS NAGA HAMAMOTO President RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director - Public Works 25G-4 EXHIBIT D-1 CONTRACT PRICING (Effective 7/1/11) Contractor will provide all labor, equipment and materials necessary for city- wide landscaping maintenance service of street medians and various public facilities in accordance with the specifications and special provisions herein. L ROUTINE MAINTENANCE Cost/Month Cost/Year A. Medians & Service Road Dividers $ 44,261.34 /mo. $531, 136.09/yr. B. Other Areas $ 3,844.83 /mo. $ 46,137.96/ r. C. Parking Lots $ 478.13 /mo. $ 5,737.56/yr. D. Neighborhood Monument/Entry Areas$ 5,233.33 /mo. $ 62,799.96/yr. E. Water Reservoir Facilities $ 4,055.94/mo. $ 48,671.28/yr. F. Arterial Sidewalks Maintenance $ 1,475.17/mo. $ 17,702.04/yr. G. Annual Color $ 571.03/mo. $ 6,852.36/yr. IL NEW MAINTENANCE A. Turf Area B. Shrub/Ground Cover Area C. Hardscape Area D. Arterial Sidewalk E. Artificial Turf F. Drought Tolerant Areas Cost/Square Foot/Month $ .05 $ .04 $ .03 $ .02 $ .03 $ .02 25G-5 III. EXTRAORDINARY MAINTENANCE A. Materials - Contractor's cost from supplier plus 15% B. Labor - Contractor's rates (including all fringe benefits, markup, overhead, etc.) for the following job classifications: Overtime 1. Landscape Maintenance Laborer 2. Irrigation Technician 3. Supervisor IV EXTRAORDINARY PLANTING 1. 36" box tree; standard trunk 2. 36" box tree; multitrunk 3. 24" box Tree; standard trunk 4. 24" box tree; multitrunk 5. 15 gal plant 6. 5 gal plant 7. 1 gal plant 8. 4" flat of annual color 9. Flat of ground cover $ 20.90 $ 27.50 $ 38.50 Straight Time $ 31.35 $ 41.25 $ 57.75 $ 605.00 $ 660.00 $ 275.00 $ 330.00 $ 71.50 $ 17.60 $ 6.60 $ 24.20 $ 17.60 25G-6 ARTIFICIAL TURF CARE 1) Cleaning a. All artificial turf shall be cleaned weekly. All trash, debris, leaves, etc shall be removed by mechanical blower and/or by hand. Care shall be exercised as to not displace infill sand. Infill sand displaced due to contractor negligence shall be replaced at Contractor's expense. b. All pet waste shall be removed weekly. Areas receiving high pet traffic shall be sterilized using approved products. C. Graffiti shall be removed using manufacturer approved methods within 24 hours of notification. Graffiti removal will be considered extraordinary maintenance. All metallic objects shall be removed monthly through use of magnetic device designed to remove metal debris. 2) Maintenance a. All artificial turf areas flattened due to heavy foot traffic shall be realigned by use of a power broom on a biweekly basis. b. All artificial turf areas shall be maintained though the use of a power broom annually to realign turf blades. All infill sand quantities shall be checked annually and refilled as needed. Annual power brooming and infill sand maintenance shall be considered extraordinary maintenance. C. All artificial turf areas shall be inspected for weeds weekly. All weeds shall be treated with an approved herbicide. d. All artificial turf areas shall be regularly inspected for raised or loosened seams and edges. Repair of seams and holes shall be reported to Director immediately. DROUGHT TOLERANT SHRUB CARE 1) Pruning All shrubs growing in the work areas shall be pruned minimally. Removal of dead or damaged limbs or branches shall be made cleanly with sharp pruning tools so that no projections or stubs remain. Pruning shall be done in a manner to permit plants to grow naturally in accordance with their normal growth characteristics. Shear hedging or severe pruning of plants shall not be permitted. Should the Contractor shear hedge or severely prune plants and disfigure or damage the plants, the contractor shall be responsible to replace those plants with like kind and size as determined by the Director: 25G-7 2) Renovation Shrubs shall be thinned and pruned, separated and/or relocated for the health of the planting and the appearance of the site, and at such other times when directed by the City. Bare shrub areas shall be replanted in the months of October through March with plant material of the same species one time per year at no additional cost to the City. 3) Watering All drought tolerant planting shall be properly irrigated to maintain a healthy condition. Amount of water, and application, must be properly controlled. b. Drought tolerant plantings need proper deep watering practices to encourage deep root system development. This involves irrigating for longer periods of time, on an infrequent basis. Plants with a shallow root system resulting from frequent light watering will not be drought tolerant. During the initial installation period, which is approximately 3 months following actual planting, more water will be required. Plant material shall be watered weekly, for optimal growth. If material is planted or replaced during the warmer weather months, that period may be longer, and watering should be increased to every third day. d. After the installation period, and during warmer summer months, shrub areas shall be provided with infrequent, monthly, deep watering for optimum growth e. Following one full seasonal cycle, minimum 12 months, plant is usually established and only supplemental water will be required during periods of extreme conditions. Contractor should monitor material for stress and adjust watering accordingly. f Wherever or at any time that an irrigation system is damaged, fails or does not adequately water the shrub area in which it is installed, the Contractor shall manually water. g. Contractor shall respond immediately to signs of plant stress. Plant material lost due to stress shall be deemed contractor negligence, as determined by the Director, and replaced at contractor expense. 4) Replanting The Contractor shall be responsible for the complete removal and replacement of shrubs lost due to normal attrition or due to Contractor's faulty maintenance or negligence, as determined by the Director, at no additional cost to the City. 25G-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: SETTLEMENT AGREEMENTS FOR BRISTOL STREET CORRIDOR (PROJECT NO. 081700) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1St Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreements, subject to nonsubstantive changes approved by the City Manager and City Attorney: • Alianza Legal Hispana for acquisition settlement for the business located at 828 N. Bristol Street, Suite 105 in the amount of $26,390. • JLT Enterprises for acquisition settlement for the business located at 828 N. Bristol Street Suite 100 in the amount of $21,995. DISCUSSION On March 6, 2006, the City Council approved the cooperative agreement between the City and the Orange County Transportation Authority to fund Bristol Street improvements from Warner Avenue to Seventeenth Street. The first phase of the project, between Pine Street and McFadden Avenue, is under construction and is expected to be completed by April 2011. Public Works is acquiring property for the second phase of the project, between Third Street and Civic Center Drive, as well as the intersection of Bristol Street and Warner Avenue. To accommodate the widening for the second phase, the entire property located at 828 N. Bristol was acquired in November 2010 (Exhibit 1). This acquisition also necessitates the relocation of all tenants in the building. Alianza Legal Haspana and JLT Enterprises are two of the tenants that have agreed to the settlement agreements for their relocation benefits. The compensation amounts are the appraised values prepared by an appraiser licensed by the State of California. 25H-1 Settlement Agreements For Bristol Street Corridor March 7, 2011 Page 2 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project has been determined to be adequately evaluated in the previously prepared Environmental Impact Report/Environmental Impact Assessment No. 89-01 approved by City Council in 1990. FISCAL IMPACT Funds are appropriated in the Select Street Construction Fund (accounting unit 05917661- 66100). APPROVED AS TO FUNDS AND ACCOUNTS: n Raul Go Inez II- Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG/SA Exhibit 1: Location map Exhibit 2: Agreements 25H-2 LEGEND SUBJECT PROPERTY MATCHLINE SEE BOTTOM RIGHT CIVIC CENTER DR -r --T i I 7TH ST L -L - - - L- I I I I I I I I 6TH ST I I I i I LA--L I I ,I - f-J I ? 5TH ST i i i i SANTA ANA BLVD - i i I I I I I I i i 3RD ST WASHINGTON ST ?--?? I-r-? T ------------ -- 12TH ST KTB I I I I I I I I I I 11TH ST - cf. - 1 1 1 1 1L 1 _ I a ----- m 10TH ST LT- ----- 9TH ST - - r_?_-- I I I i ?---- I I I I I I I CIVIC CENTER DR MATCHLINE SEE TOP LEFT EXHIBIT 1 SANTA ANA CITY COUNCIL TITLE: ACQUISITION SETTLEMENT r I,I ¦ AGENDA DATE AGREEMENTS FOR BRISTOL V STREET CORRIDOR lWL11CRIII?Bll MARCH 7, 2011 l (PROJECT 08-1700-C) -J--T--t--1 I I I I I ?I. 25H-4 ALL INCLUSIVE SETTLEMENT AGREEMENT This Agreement ("Agreement") is made 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 Alejandro B. Rojas dba Alianza Legal Hispana ("Tenant"). The City and Tenant are hereinafter sometimes referred collectively as the "Parties." The Effective Date of this Agreement shall be , 201J, the date on which the Agreement has been fully executed by the City and Tenant. RECITALS A. Tenant operates a business, commonly known as Alianza Legal Hispana, located at 828 N. Bristol Street, Suite 105, Santa Ana, CA 92703 (the "Property"). B. The City has purchased the Property for the Bristol Street Widening Project. As a result of the City's acquisition, the Tenant will be displaced from the Property. C. The Parties desire to resolve all issues relating to the City's acquisition of the Property in accordance with the terms and conditions set forth below. D. The Parties acknowledge that the payment as set forth in paragraph 1(a) and other consideration given in connection with this Agreement are the result of a compromise and settlement of disputed claims, and shall never, at any time or for any purpose, be considered an admission of liability or responsibility on the part of any of the parties herein released. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants hereinafter set forth, it is hereby agreed by and among the Parties that: 1. Consideration (a) The City shall pay to Tenant the sum of $26,390.00 (Twenty Thousand Dollars) (Tenant Settlement Payment) as total compensation for relocation assistance and any and all related expenses and claims as more fully described in paragraph 1(b) below. Upon full execution of this Agreement, the City will begin processing an initial payment, payable to Tenant, in the amount of $13,000.00. The City will make the final payment to Tenant in the amount of $13,390.00 after Tenant vacates the Property, signs a Certificate of Abandonment, provides all keys to the Property to the City or to the City's relocation consultant, and provides written verification that all hazardous materials have been legally and properly moved. (b) Tenant agrees, that the consideration received pursuant to paragraph 1(a) above constitutes full satisfaction of any and all obligations of the City to Tenant, including, without limitation, any obligations for relocation assistance, relocation benefits, moving expenses, interest of any kind in the real estate and leasehold, loss of business goodwill, compensation for personal property (loss of inventory), furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or damages of any nature. (c) Tenant agrees to vacate the Property on or before June 30, 2011 ("Vacate Date" 1 of 7 25H-5 (d) Tenant hereby agrees that City may remove and dispose of any personal property or trash that has not been moved upon the Vacate Date, as it elects and desires, without any notice to Tenant. (e) Payment will be made for Relocation Expenses in the amount of $20,000. (f) Payment will be made for leasehold, loss of business goodwill and immovable furniture, fixtures and equipment in the amount of $6,390. 2. Release (a) Nothing contained herein shall constitute a release or discharge by either party for any of the undertakings of the other party to this Settlement Agreement. This Agreement shall serve as a full release and discharge by the Parties, on behalf of themselves, their agents, representatives, assigns, trustees, administrators, attorneys, heirs, relatives, spouses, ex-spouses, beneficiaries, and successors in interest, in consideration of the mutual covenants and promises contained herein, of the Tenant, the City of Santa Ana, the City of Santa Ana Public Works Agency, and those parties' accountants, other professionals, agents, representatives, assigns, employees, administrators, trustees, insurers, attorneys, heirs, beneficiaries, and successors in interest (collectively the "Released Parties"), from all rights, claims or cross-claims, demands, actions, or causes of action, including those for damages, compensation, relocation assistance, relocation benefits, loss of goodwill, property interest, compensation for personal property (loss of inventory), furniture, fixtures and equipment, punitive damages, interest, costs, attorney's and appraisal fees, injunctive or declaratory relief, or for relief by way of writ of mandate, or for demands, damages, refunds, debts, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes, and causes of action of whatever kind, at law or in equity, that the Parties have now or may have against any of the Released Parties arising from the facts and_ circumstances described in this Agreement including but not limited to (1) the acquisition of the Property by the City, (2) Tenant's leasehold interest, if any, in the Property (or any portion thereof) or (3) any other right or interest Tenant may have, assert, or claim by reason of City's actions or failure to act, including, but not limited to, any claim to relocation assistance, relocation benefits or compensation for property or loss of goodwill from the City. (b) In making this release, the Parties intend to and do release, acquit and discharge the Released Parties, and each of them, from any liability of any nature whatsoever for any claim, injury, damages, or equitable or declaratory relief of any kind, whether the claim, or any facts on which such claim might be based, is known or unknown to the party possessing the claim. Each party expressly acknowledges and waives any and all rights under Section 1542 of the California Civil Code, which the Parties understand provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his/her favor at the time of executing the release, which if known by him/her must have materially affected his/her settlement with the debtor. 2 of 7 25H-6 4. Attorney's Fees In the event of litigation relating to or arising out of this Agreement, the prevailing party shall be entitled to be reimbursed by the non-prevailing party for all reasonable costs and expenses incurred thereby, including, but not limited to reasonable attorney's fees and costs for services rendered to such prevailing party. 5. Indemnity Each party shall indemnify, defend and hold the other party and the Released Parties harmless from and against any claims, damages, demands, liabilities, losses, judgments, expenses and attorney's fees and/or costs resulting from the breach by such indemnifying party of any provision of this Agreement, the falsity of any representation or warranty made by the indemnifying party contained in this Agreement. 6. Entire Agreement This Agreement together contains the entire Agreement of the Parties, and supersedes any prior written or oral agreements between them, concerning the subject matter of this Agreement. 7. Partial Invalidity In the event that any term, covenant, condition or provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. 8. Waiver and/or Modification The provisions of this Agreement may not be waived, altered, amended or repealed, in whole or in part, except upon a written agreement signed by each of the Parties. The waiver by one party of the performance of any provisions of this Agreement shall not invalidate this Agreement, nor shall it be deemed a waiver of any other provision hereof. 8. Headings The headings, subheadings and numbering of the different paragraphs of this Agreement are inserted for convenience and for reference only and shall not be considered for any purpose in construing this Agreement. 9. Governing Law The rights and obligations of the Parties under this Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 10. Successors In Interest Subject to any restrictions against assignment contained herein, this Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, 4 of 7 25H-8 Each party acknowledges the foregoing waiver of the provisions of California Civil Code Section 1542 was separately bargained for and expressly consents that this Agreement shall be given full force and effect in accordance with each and all of its express terms and provisions, including those terms and provisions relating to unknown or unsuspected claims, demands and causes of action, if any, to the same effect as those terms and provisions relating to any other claims, demands and causes of action herein above specified. (c) Each party acknowledges that it may hereafter discover facts or law different from or in addition to those which it now believes to be true with respect to the release of claims. Each party agrees that the foregoing release shall be and remain effective in all respects notwithstanding such different or additional facts or law or any party's discovery thereof. The Parties shall not be entitled to any relief in connection therewith, including, but not limited to, any damages or any right or claim to set aside or rescind this Agreement. (d) None of the Parties or their respective agents nor any related entities have made any statement or presentation to the other regarding any fact relied upon in entering into this Agreement and the Parties, and each of them, expressly do not rely upon any statement, representation or promise of any other party or any party's agent or related entities in executing this Agreement, except as is expressly set forth herein. Each of the Parties has made such investigation of the facts and law pertaining to the subject matter of this Agreement as it deems necessary, and has consulted with legal counsel of its own choosing concerning these matters. (e) Tenant hereby represents and warrants as of the Effective Date of this Agreement that (1) to its actual knowledge, no other entity or person has any right, title, or interest whatsoever in the released claims, and (2) that there has been no assignment, transfer, conveyance or other disposition by Tenant of any of the released claims, and that Tenant will not make any such assignment,_ transfer, conveyance or other disposition subsequent to the Effective Date of this Agreement. Tenant acknowledges that the Authority has relied and is relying upon such representations and warranties in entering into this Agreement. (f) Tenant will Hold Harmless and defend City, its employees, agents, contractors or representatives from any claims that may arise from Tenant's nondisclosure of any other interests in the Property or personal property referenced by this agreement. (g) This Agreement represents a settlement of doubtful and disputed claims between the Parties and does not constitute any admission of liability by either party to the other party to this Agreement. City has delivered to Owner an offer to purchase the Property under threat of eminent domain pursuant to Government Code Section 7267.2. Tenant and City now wish to enter into this Agreement in lieu of eminent domain proceedings. 3. Third Party Beneficiaries Except as explicitly set forth herein, nothing in this Agreement is intended to create any third party beneficiaries under this Agreement, and no person or entity other than Authority and Tenant shall be authorized to enforce the provisions of this Agreement. 3of7 25H-7 personal representatives, executors, estates, heirs, legatees, agents and related entities of each of the Parties. 11. Necessary Acts Each of the Parties agrees to perform such further acts, and execute and deliver such further documents, as may be reasonably necessary to carry out the provisions of this Agreement. 12. Advise of Counsel The Parties, and each of the, acknowledge that in connection with the negotiations and execution of this Agreement, they have each been represented by independent counsel of their own choosing and the Parties executed the Agreement after review by such independent counsel; or, if they were not so represented, said non-representation is and was the voluntary, intelligent and informed decision and election of the party not so represented; and, prior to executing the Agreement, each party has had an adequate opportunity to conduct an independent investigation of all the facts and circumstances with respect to the matters which are the subject of this Agreement including but not limited to the advisability of entering into this Agreement and the meaning of California Civil Code Section 1542. 13. Authority to Execute This Agreement Each person executing this Agreement on behalf of an entity represents that he or she is authorized to execute this Agreement on behalf of that entity and to bind that entity to the terms of this Agreement. 14. Construction Each party has cooperated in the drafting and preparation of this Agreement. In any construction to be made of this Agreement, or of any of its terms and provisions, the same shall not be construed against any party. 15. Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. 16. Voluntary Agreement The Parties, and each of them, further represent and declare that they have carefully read this Agreement and know the contents thereof, and that they sign the same freely and voluntarily. 17. Notices All notices, requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and shall either be delivered personally or be sent by telegram or by regular or certified first class mail, postage prepaid, deposited in the United States mail, and properly addressed to the party at its address set forth 5 of 7 25H-9 below, or at any other address that such party may designate by written notice to the other party: To City: Souri Amirani Deputy City Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, California 92701 To Tenant: Alianza Legal Hispana Attn: Mr. Alejandro Rojas 828 N. Bristol Street, #105 Santa Ana, CA 92703 18. Jurisdiction and Venue Any action or proceeding concerning this Agreement shall be filed and prosecuted in the appropriate California court in the County of Orange, Califomia. Each party hereto irrevocably consents to the personal jurisdiction of the court. The Parties each hereby expressly waive the benefit of any provision of law providing for a change of venue to any other court, including, without limitation, federal court, due to any diversity of citizenship between the Parties or due to the fact that either the Authority is a party to such action or proceeding. Without limiting the generality of the foregoing, the Parties specifically waive any rights provided to it pursuant to Califomia Code of Civil Procedure Section 394 or other state or federal statutes or judicial decisions of similar effect. 6of7 25H-10 IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. TENANT: BY: Dated CITY OF SANTA ANA BY: Dated David N. Ream City Manager ATTEST: Dated Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Dated Jose Sandoval Managing Senior Assistant City Attorney 7 of 7 25H-11 ALL INCLUSIVE SETTLEMENT AGREEMENT This Agreement ("Agreement") is made 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 JLT Enterprises ("Tenant"). The City and Tenant are hereinafter sometimes referred collectively as the "Parties." The Effective Date of this Agreement shall be , 2010, the date on which the Agreement has been fully executed by the City and Tenant. RECITALS A. Tenant operates a business, commonly known as JLT Enterprises, located at 828 N. Bristol Street, Suite 100, Santa Ana, CA 92703 (the "Property"). B. The City has purchased the Property for the Bristol Street Widening Project. As a result of the City's acquisition, the Tenant will be displaced from the Property. C. The Parties desire to resolve all issues relating to the City's acquisition of the Property in accordance with the terms and conditions set forth below. D. The Parties acknowledge that the payment as set forth in paragraph 1(a) and other consideration given in connection with this Agreement are the result of a compromise and settlement of disputed claims, and shall never, at any time or for any purpose, be considered an admission of liability or responsibility on the part of any of the parties herein released. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and covenants hereinafter set forth, it is hereby agreed by and among the Parties that: 1. Consideration (a) The City shall pay to Tenant the sum of $21,995.00 (Twenty-One Thousand Nine Hundred Ninety-Five Dollars) (Tenant Settlement Payment) as total compensation for relocation assistance and any and all related expenses and claims as more fully described in paragraph 1(b) below. Upon full execution of this Agreement, the City will begin processing an initial payment, payable to Tenant, in the amount of $11,995.00. The City will make the final payment to Tenant in the amount of $10,000.00 after Tenant vacates the Property, signs a Certificate of Abandonment, provides all keys to the Property to the City or to the City's relocation consultant, and provides written verification that all hazardous materials have been legally and properly moved. (b) Tenant agrees, that the consideration received pursuant to paragraph 1(a) above constitutes full satisfaction of any and all obligations of the City to Tenant, including, without limitation, any obligations for relocation assistance, relocation benefits, moving expenses, interest of any kind in the real estate and leasehold, loss of business goodwill, compensation for personal property (loss of inventory), furniture, fixtures and equipment, interest, attorney's fees, appraisal fees, or damages of any nature. (c) Tenant agrees to vacate the Property on or before May 1, 2011 ("Vacate Date"). 1 of 7 25H-12 (d) Tenant hereby agrees that City may remove and dispose of any personal property or trash that has not been moved upon the Vacate Date, as it elects and desires, without any notice to Tenant. (e) Payment will be made for Relocation Expenses in the amount of $20,000. (f) Payment will be made for leasehold, loss of business goodwill and immovable furniture, fixtures and equipment in the amount of $1,995. 2. Release (a) Nothing contained herein shall constitute a release or discharge by either party for any of the undertakings of the other party to this Settlement Agreement. This Agreement shall serve as a full release and discharge by the Parties, on behalf of themselves, their agents, representatives, assigns, trustees, administrators, attorneys, heirs, relatives, spouses, ex-spouses, beneficiaries, and successors in interest, in consideration of the mutual covenants and promises contained herein, of the Tenant, the City of Santa Ana, the City of Santa Ana Public Works Agency, and those parties' accountants, other professionals, agents, representatives, assigns, employees, administrators, trustees, insurers, attorneys, heirs, beneficiaries, and successors in interest (collectively the "Released Parties"), from all rights, claims or cross-claims, demands, actions, or causes of action, including those for damages, compensation, relocation assistance, relocation benefits, loss of goodwill, property interest, compensation for personal property (loss of inventory), furniture, fixtures and equipment, punitive damages, interest, costs, attorney's and appraisal fees, injunctive or declaratory relief, or for relief by way of writ of mandate, or for demands, damages, refunds, debts, liabilities, reckonings, accounts, obligations, costs, expenses, liens, actions, causes, and causes of action of whatever kind, at law or in equity, that the Parties have now or may have against any of the Released Parties arising from the facts and circumstances described in this Agreement including but not limited to (1) the acquisition of the Property by the City, (2) Tenant's leasehold interest, if any, in the Property (or any portion thereof) or (3) any other right or interest Tenant may have, assert, or claim by reason of City's actions or failure to act, including, but not limited to, any claim to relocation assistance, relocation benefits or compensation for property or loss of goodwill from the City. (b) In making this release, the Parties intend to and do release, acquit and discharge the Released Parties, and each of them, from any liability of any nature whatsoever for any claim, injury, damages, or equitable or declaratory relief of any kind, whether the claim, or any facts on which such claim might be based, is known or unknown to the party possessing the claim. Each party expressly acknowledges and waives any and all rights under Section 1542 of the California Civil Code, which the Parties understand provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his/her favor at the time of executing the release, which if known by him/her must have materially affected his/her settlement with the debtor. Each party acknowledges the foregoing waiver of the provisions of California Civil Code Section 1542 was separately bargained for and expressly consents 2 of 7 25H-13 that this Agreement shall be given full force and effect in accordance with each and all of its express terms and provisions, including those terms and provisions relating to unknown or unsuspected claims, demands and causes of action, if any, to the same effect as those terms and provisions relating to any other claims, demands and causes of action herein above specified. (c) Each party acknowledges that it may hereafter discover facts or law different from or in addition to those which it now believes to be true with respect to the release of claims. Each party agrees that the foregoing release shall be and remain effective in all respects notwithstanding such different or additional facts or law or any party's discovery thereof. The Parties shall not be entitled to any relief in connection therewith, including, but not limited to, any damages or any right or claim to set aside or rescind this Agreement. (d) None of the Parties or their respective agents nor any related entities have made any statement or presentation to the other regarding any fact relied upon in entering into this Agreement and the Parties, and each of them, expressly do not rely upon any statement, representation or promise of any other party or any party's agent or related entities in executing this Agreement, except as is expressly set forth herein. Each of the Parties has made such investigation of the facts and law pertaining to the subject matter of this Agreement as it deems necessary, and has consulted with legal counsel of its own choosing concerning these matters. (e) Tenant hereby represents and warrants as of the Effective Date of this Agreement that (1) to its actual knowledge, no other entity or person has any right, title, or interest whatsoever in the released claims, and (2) that there has been no assignment, transfer, conveyance or other disposition by Tenant of any of the released claims, and that Tenant will not make any such assignment, transfer, conveyance or other disposition subsequent to the Effective Date of this Agreement. Tenant acknowledges that the Authority has relied and is relying upon such representations and warranties in entering into this Agreement. (f) Tenant will Hold Harmless and defend City, its employees, agents, contractors or representatives from any claims that may arise from Tenant's nondisclosure of any other interests in the Property or personal property referenced by this agreement. (g) This Agreement represents a settlement of doubtful and disputed claims between the Parties and does not constitute any admission of liability by either party to the other party to this Agreement. City has delivered to Owner an offer to purchase the Property under threat of eminent domain pursuant to Government Code Section 7267.2. Tenant and City now wish to enter into this Agreement in lieu of eminent domain proceedings. 3. Third Party Beneficiaries Except as explicitly set forth herein, nothing in this Agreement is intended to create any third party beneficiaries under this Agreement, and no person or entity other than Authority and Tenant shall be authorized to enforce the provisions of this Agreement. 3 of 7 25H-14 4. Attorney's Fees In the event of litigation relating to or arising out of this Agreement, the prevailing party shall be entitled to be reimbursed by the non-prevailing party for all reasonable costs and expenses incurred thereby, including, but not limited to reasonable attorney's fees and costs for services rendered to such prevailing party. 5. Indemnity Each party shall indemnify, defend and hold the other party and the Released Parties harmless from and against any claims, damages, demands, liabilities, losses, judgments, expenses and attorney's fees and/or costs resulting from the breach by such indemnifying party of any provision of this Agreement, the falsity of any representation or warranty made by the indemnifying party contained in this Agreement. 6. Entire Agreement This Agreement together contains the entire Agreement of the Parties, and supersedes any prior written or oral agreements between them, concerning the subject matter of this Agreement. 7. Partial Invalift In the event that any term, covenant, condition or provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or against public policy, the remaining provisions shall continue in full force and effect. 8. Waiver and/or Modification The provisions of this Agreement may not be waived, altered, amended or repealed, in whole or in part, except upon a written agreement signed by each of the Parties. The waiver by one party of the performance of any provisions of this Agreement shall not invalidate this Agreement, nor shall it be deemed a waiver of any other provision hereof. 8. Headings The headings, subheadings and numbering of the different paragraphs of this Agreement are inserted for convenience and for reference only and shall not be considered for any purpose in construing this Agreement. 9. Governing Law The rights and obligations of the Parties under this Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. 10. Successors In Interest Subject to any restrictions against assignment contained herein, this Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representatives, executors, estates, heirs, legatees, agents and related entities of each of the Parties. 4of7 25H-15 11. Necessary Acts Each of the Parties agrees to perform such further acts, and execute and deliver such further documents, as may be reasonably necessary to carry out the provisions of this Agreement. 12. Advise of Counsel The Parties, and each of the, acknowledge that in connection with the negotiations and execution of this Agreement, they have each been represented by independent counsel of their own choosing and the Parties executed the Agreement after review by such independent counsel; or, if they were not so represented, said non-representation is and was the voluntary, intelligent and informed decision and election of the party not so represented; and, prior to executing the Agreement, each party has had an adequate opportunity to conduct an independent investigation of all the facts and circumstances with respect to the matters which are the subject of this Agreement including but not limited to the advisability of entering into this Agreement and the meaning of California Civil Code Section 1542. 13. Authority to Execute This Agreement Each person executing this Agreement on behalf of an entity represents that he or she is authorized to execute this Agreement on behalf of that entity and to bind that entity to the terms of this Agreement. 14. Construction Each party has cooperated in the drafting and preparation of this Agreement. In any construction to be made of this Agreement, or of any of its terms and provisions, the same shall not be construed against any party. 15. Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original and, when taken together with other signed counterparts, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. 16. Voluntary Agreement The Parties, and each of them, further represent and declare that they have carefully read this Agreement and know the contents thereof, and that they sign the same freely and voluntarily. 17. Notices All notices, requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and shall either be delivered personally or be sent by telegram or by regular or certified first class mail, postage prepaid, deposited in the United States mail, and properly addressed to the party at its address set forth below, or at any other address that such party may designate by written notice to the other party: 5 of 7 25H-16 To City: Souri Amirani Deputy City Engineer City of Santa Ana Public Works Agency 20 Civic Center Plaza, M-36 Santa Ana, California 92701 To Tenant: JILT Enterprises Attn: Jose Terrones 828 N. Bristol #100 Santa Ana, CA 92703 18. Jurisdiction and Venue Any action or proceeding concerning this Agreement shall be filed and prosecuted in the appropriate California court in the County of Orange, California. Each party hereto irrevocably consents to the personal jurisdiction of the court. The Parties each hereby expressly waive the benefit of any provision of law providing for a change of venue to any other court, including, without limitation, federal court, due to any diversity of citizenship between the Parties or due to the fact that either the Authority is a party to such action or proceeding. Without limiting the generality of the foregoing, the Parties specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394 or other state or federal statutes or judicial decisions of similar effect. 6of7 25H-17 IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first written above. TENANT: BY: BY: Dated Dated CITY OF SANTA ANA BY: David N. Ream City Manager ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Jose Sandoval Managing Senior Assistant City Attorney Dated Dated Dated 7 of 7 25H-18 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: AGREEMENT WITH OVERLAND PACIFIC CUTLER AND PARAGON PARTNERS FOR RIGHT-OF-WAY ACQUISITION, RELOCATION AND PROPERTY MANAGEMENT SERVICES 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 Clerk of the Council to execute the attached agreements for acquisition, relocation and property management right-of-way services subject to nonsubstantive changes approved by the City Manager and City Attorney with Overland Pacific Cutler and Paragon Partners for Acquisition, Relocation, & Property Management for an aggregate amount not to exceed $500,000 DISCUSSION On October 18, 2010, the City Council authorized the Public Works Agency to release a Request for Proposals (RFP) to qualified consulting firms to provide right-of-way related services for Capital Improvement Projects (CIP). These services will be utilized for the current CIP, including Phases II & III of the Bristol Street Widening and the Grand Avenue Widening Projects. In addition, these firms will augment City staff in the day-to-day oversight of right-of-way tasks such as City owned properties, disposal of surplus properties, deed research, and cost estimates for all Public Works projects. The RFP for the acquisition, relocation and property management services was sent to ten firms who specialized in this field. A special effort was made to reach out to Santa Ana firms. Six proposals were received including one from a Santa Ana firm. Proposals were evaluated by personnel from the Public Works Agency, Community Development Agency and the City Attorney's Office. Each firm was rated according to its qualifications, experience, and capacity to perform the required work. Special consideration was made for the local firms, especially in Santa Ana. Following is the list of the firms and their respective scores: 251-1 Agreement for Right-of-Way For Acquisition, Relocation and Property Management Services March 7, 2011 Page 2 Overland Pacific Cutler 91 Paragon Partners 90 California Property Specialists Inc. 88 HDR 83 Epic Land Solutions 82 Security Land & Right 74 Based on the ratings and their past experience with the City, staff recommends that the firms of Overland Pacific Cutler and Paragon Partners be retained for acquisition, relocation and property management right-of-way services. Both Paragon Partners and Overland Pacific Cutler have been assisting the City with right-of-way acquisition of CIP projects in the past and they have good track records. The agreement with the firms will be for a period of one fiscal year or until the funds are exhausted, whichever comes first. The City has an option to renew the agreements for an additional year if the firm is responsive to the City's needs. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT These services are on-call and will be used when funds are available in the various CIP projects. APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RG/SA Exhibit: 1. Agreements 251-2 PROPERTY ACQUISITION, RELOCATION & MANAGEMENT SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 7`h day of March, 2011, by and between OVERLAND, PACIFIC & CUTLER, INC., 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 property acquisition, relocation and management services. B. Consultant represents that it is able and willing to provide such services for Santa Ana. 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 services, as set forth in City's Request for Proposals-Right of Way Consulting and Related Services, dated November 15, 2010, attached hereto as Exhibit A, and as more specifically described in Consultant's Proposal, attached hereto as Exhibit A-1, and both exhibits incorporated by reference. 2. DELIVERY OF WORK PRODUCT - OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this Agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant shall deliver to City any work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with City's information systems, as agreed between the City's Project Manager and Consultant. In regard to all material produced as a deliverable under this Agreement, including but not limited to records, papers, drawings, specifications, programs, systems and other materials prepared by Consultant, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material shall be the property of the City, and may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty-free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 251-3 3. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Consultant's Fee Schedule, attached hereto as Exhibit B. The total sum to be expended on all consultants providing property management services shall not exceed an aggregate of $500,000, during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. The invoice shall include a detailed breakdown of the services provided, the project title, the tasks, the hours, and hourly rates. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on March 1, 2011 and terminate on the later of February 28, 2012, or the expenditure of allocated funds, unless terminated earlier in accordance with Section 13, below. The City shall have the option to extend the term for an additional one-year period. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. 251-4 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 combined single limit. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, and $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including 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 251-5 Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 8. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 facsimile (714) 647-6956 With courtesy copies to: and Public Works - Design Engineering City of Santa Ana 20 Civic Center Plaza (M-36) P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-5635 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) 251-6 P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-6515 To Consultant: Overland, Pacific & Cutler 20 Fairbanks, Suite 17B Irvine, California 92618 facsimile (949) 951-6651 Attn: Michele Folk 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. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not 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. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof 251-7 for such purposes as the City deems appropriate. However, any use of unfinished work product shall be at City's sole risk. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services 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. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. c. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 251-8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney DAVID N. REAM City Manager OVERLAND, PACIFIC & CUTLER, INC. By: LauraSheedy Assistant City Attorney MICHELE FOLK Vice President/ Principal Tax ID# RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director - PWA 251-9 251-10 EXHIBIT SCOPE OF WORK GENERAL REQUIREMENTS - RIGHT OF WAY SERVICES Consultants under contract with the City of Santa Ana will provide support to City of Santa Ana staff or their designee. The Consultants shall be thoroughly familiar with the Statement of Work prior to submitting a response to this Request for Qualifications (RFQ). • The Consultant shall perform work to produce a high quality, professional and complete work product. • Consultant must have experience with State and Federally funded projects. All work shall be performed in conformance with all applicable regulations, policies, procedures and standards. • Real estate appraisers provided by the Consultant must be certified and a Member of the Appraisal Institute. • All acquisition agents and property managers, performing work for the City, must hold a valid California Real Estate License. Salespersons must be registered with California Department of Real Estate (DRE), as working solely under the Consultant's supervising broker of record. • Work may include, but not be limited to, the following: onsite review of the project area; review of existing records; conducting research and performing analysis; information gathering; negotiations; development of strategies. • The Consultant shall carry out the instructions received from the City and shall cooperate with the City and other agencies. • The Consultant has total responsibility for the accuracy and completeness of the work produced. The work will be reviewed by the City for conformity with the requirements of the Agreement. Reviews by the City may NOT include a detailed review for the accuracy of items submitted. The responsibility for accuracy and completeness of such items remains solely that of Consultant. • The Consultant shall be responsible for coordination and supervision of all work performed by its sub-consultants. The Consultant shall review all work performed by its sub-consultants and the responsibility for accuracy and completeness of work performed remains solely that of Consultant. • The Consultant shall have a Quality Control Plan in effect during the entire time work is being performed under the Agreement. The Quality Control Plan shall establish a process whereby work products are independently checked, corrected and back checked. All projects related correspondences and documents should be maintained and bound in appropriate project files. 251-11 • The Consultant shall diligently work on each assignment and complete each task in accordance with the schedule and accommodate the City's needs. • The Consultant's work will be subject to inspections by City, County, State and Federal representatives. • Project files including copies of all correspondences, reports, documents, and electronic files shall be submitted to the City when requested. • All work, including reports, analysis, data, and intellectual properties developed during the life of the Agreement shall become the properties of the City. • The Consultant will receive written notification of the award of the contract. Upon on such notification, the Consultant will proceed with the services required by the Agreement. • The Consultant shall complete work under the direction of City staff. The Consultant will be expected to provide experienced and knowledgeable professional staff which will be responsive and maintain excellent working relationships with property owners, tenants, and City staff. The Consultant shall be committed to provide adequate staffing levels at all times in order to adhere to established schedules. The Consultant shall be knowledgeable and very familiar with federal, state and local regulations, policies and procedures as pertain to the right of way services provided. Specific Scope of Work for Acquisition Relocation and Property Management Services include: ACQUISITION SERVICES: Assist City staff with the coordination of all the various aspects of the real property acquisition process, ensuring all work will be performed in accordance with the public agency's policies and procedures and federal, state and local regulations. Acquisition tasks may include: • Meet with City staff to discuss assignments and procedures. • Perform the services required by the City with qualified personnel, equipment, materials, supplies, and management and administration services. • All personnel and subcontractors, referred to as "Approved Personnel", shall be approved by Agency, prior to providing services. There shall be no changes in the Approved Personnel without written concurrence of the City. • Prepare a schedule of major activities and milestones and provide an estimate of the cost to conduct proposed assignments including assignments to subcontractors. Upon City's written approval of the estimated cost, initiate the assignment in a timely manner. • Be responsible for the accuracy of work and promptly make all necessary revisions or corrections resulting from errors and omissions by Approved 251-12 Personnel. • As deemed necessary by the City, meet with the City and other staff as requested. • Monitor and maintain all files to ensure overall project integrity. • Prepare and assemble the "Offer Package" using the format approved by the City. • Prepare and maintain a file for those properties assigned for acquisition by the City. • Present written purchase offers to property owners as directed by staff. • Meet on an ongoing basis with property owners or business tenants (or their appointed representatives) to coordinate and negotiate the purchase and sale transaction. • Supplement negotiations by obtaining and reviewing counter offers or demands from property owners, recommendations for settlements, coordinating with the agency to review and discuss all possible solutions and problems, including condemnation. • Prepare all acquisition agreements, deeds and other documents necessary to complete the acquisition. • In the course of acquisition process, provide all the necessary information and work with the relocation consultant in addition to the City staff member in order to expeditiously and professionally complete the project. • Obtain reconveyance and subordination agreements as necessary. • Maintain an accurate and current record of all-pertinent information and contacts concerning the property owners and tenants. • Assist City in condemnation support activities. RELOCATION SERVICES Provide a complete relocation assistance program to comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Uniform Act) or Title 25, California Code of Regulations, its amendments, and other pertinent laws and regulations. Prepare Relocation Plans, Relocation Guidelines, relocation cost estimates, project area surveys and other specialized reports. Consultant's relocation services include, but are not limited to the following: Relocation Plan Consultant will prepare a Relocation Plan, in accordance with all requirements of State Law, State HCD Guidelines, the Relocation Assistance and Real Property Acquisition Rules and Regulations of the Agency. The purpose of this Relocation Plan is to provide the City with summary and statistical information regarding the impact of a project to potential displacees. Specifically, this report should concern the identification of potential impacts that may occur as a result of the demolition of existing structures, proposed displacement of occupants, and a plan to mitigate respective impacts. 251-13 The Relocation Plan shall include: • Description of the proposed project and project location; • Assessment of needs; • Replacement housing resources; • Residential and commercial displacements; • Temporary housing (if applicable); • Program assurances and standards; • Relocation assistance program; • Citizen participation and plan review period; • Description of relocation benefits; • Eviction policies and procedures; • Appeals and grievance procedures; • Displacement schedule; • Estimated relocation costs. Residential Relocation Services shall include: • Prepare "Relocation Package" in accordance with City approved format. • Provide advisory services • Interview displaced persons • Distribute Relocation Packages in accordance with City staff directives. • Inform displaced persons of available relocation assistance, the relocation process and benefits. • Search for relocation sites and provide referrals of sites to displacees. • Prepare and distribute informational brochures and other required notices and documents. • Provide referrals and advice • Determine relocation eligibility and amount for relocation benefits. • Review entitlement packages in accordance with applicable rules and regulations. • Review requested moving entitlements. • Inspect replacement dwellings. • Thoroughly document all contacts with the displacee. • Prepare and transmit to the City all applicable invoices and relocation claim forms. • Prepare and deliver residential entitlement letters and other required documents. • Provide status reports to City staff. • Advise and update City staff on various aspects of state and federal relocation law. Business Relocation Services shall include: Consultant shall meet with owners of businesses within a reasonable time after the offer to purchase has been made and interview them to complete the Displacees Needs Questionnaire. Collect data regarding the type of business, work schedule, number of employees and the owner's proposed plans. Provide advisory assistance. 251-14 • Determine potential eligibility for moving payments by reviewing eligibility criteria and case data. • Personally contact the displacees and present required forms and explain in detail the options for payment of reasonable moving expenses. • Extract from appraisal report information regarding improvements that have been acquired so as to eliminate them from consideration in determining moving expenses. • Review and approve the compilation of a certified personal property inventory. • Interview the displacee again to identify in detail displacee's needs, desires, and issues. • Summarize all interviews, contacts and contact attempts in diary for official record. • Provide assistance in locating a suitable replacement site. • Monitor the move as much as feasible to determine that all items are moved that should be moved and that no items are moved that were purchased during the acquisition of the property. • Collect supporting documents and submit payment of moving expenses. • Determine what expenses are necessary and eligible as reestablishment expenses. • Inspect the replacement property, obtain cost estimates, discuss the issues with the displacee, verify expenses and income and project next two years to assess whether increased operating costs will exist. • Determine eligibility for actual reasonable search expenses. • Determine eligibility for In-Lieu business payment, utilizing IRS tax returns and/or certified financial statements. • If Business Good-Will becomes an issue, an appraisal, or letter of exposure, may be required. • Arrange for a final walk-through inspection of the property. • Collect final supporting documentation, prepare final claim, prepare certification and close file. Construction and moving bid services shall include: Movers: • Conduct on site inventory and photos • Complete certified inventory and mover instruction form • Schedule and coordinate bids • Attend site inspection, if necessary • Review and compare bids Contractors: • Verify licensing • Prepare mover instruction form • Schedule and coordinate bids • Attend site inspection, if necessary • Review and compare bids • Evaluate for eligibility 251-15 PROPERTY MANAGEMENT SERVICES Consultant will coordinate all of the property management tasks with City staff and the demolition contractor as deemed necessary. Consultant shall provide interim property management during the transition from occupancy to demolition. This includes the coordination of utility connections and disconnections, preparing and facilitating short- term rental agreements, rent collections, providing eviction services, property maintenance and security, preparing and issuing notices to vacate in accordance with state law, coordination of final asbestos and lead surveys, and monitoring the demolition of structures and removal of underground storage tanks or other environmental concerns. Property Management duties shall include: • Property Management Coordination • Acting as Property Management Liaison • Utility Coordination • Invoice Services • Security Services • Lawn Care • Facilitate Maintenance Services • Month-to-Month Occupancy Agreements • Collect Rent • Prepare Rental Agreements • Complete Vacancy of Unit Tasks • Disconnect Utilities • Coordinate Fencing Services • Secure Property • Eviction Coordination • Demolition Coordination 251-16 EXHIBIT A-1 CONSULTANT'S PROPOSAL 251-17 251-18 Request for Proposals for Right of Way Consulting'and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services Proposed Staffing and Project Organization The OPC Project Team An essential element to any work plan is the formation of a team of professionals who have'the experience, technical knowledge and political awareness to meet all the goals and objectives of the project. The Project Manager for the City's projects will be Michele Folk, SR(WA, RIW-RAC, The balance of the OPC Team includes full-time employee staff members including: Ray Armstrong, SRIWA* Diana Staudinger* Daniela Borbe* Laura Kane, SRM/A, RM-RAC* Brenda Loera* Susan Hebert Maddy Rivera Ramle Dawitt Alfredo Jacquez Danny Mendoza* Tony Kurney Natasa Lenic* * Represents Key Team Member Together, these in-house professionals cover the areas of acquisition, relocation and property management, The balance of this section demonstrates the education, experience, commitment, and credentials of the OPC team. Resumes Resumes for the project manager and the key members of the project team begin on the next page, followed by a team avallabliity matrix and organizational chart which delineates commttnicationlreporting relationships among the project team. Page 43 251-19 251-20 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services Project Team Matrix - Key Personnel Michele Folk, SRIWA, RIW-RAC Grove Park Apartments - Jamboree 2% Prindpai Consultant (Relocation) Tustin/Chapman Widening - Orange 1% Irvine, CA Brookhurst Widening Project - Anaheim 10% 11/11 Placentia Avenue Grad Sep - OCTA 2% 0 ° Tunnel Projact-So. Coast Water District 20% Bristol St. Widening - Santa Ana 15% Ray Armstrong, SR/WA OCTA - 4051221605 WCC 10% Principal Consultant (Acquisition) OCTA Grade Separations 10% Irvine, CA South Coast Water District 100 60% 23118 PIC Various Projects 10% Diana Staudinger Mission Viejo -1-5 at Oso 10% Project Manager (Acquisition) La Habra Harbor@ Lambert 110% Irvine, CA Laguna Niguel-1-5 at Crown Valley 10% 60% 12/2 West Covina-Azusa Avenue 10% Danieta Borbe Placentia Ave. Grade Separation 10% Sr. Consultant (Acqulskion) Azusa Ave. @ Amar Rd. 10% Irvine, CA Grade Crossing Safety Project 5% 7R Jamboree Bridge Widening 10% 0 45% Lakeview Ave. Widening 109'0 Crown Valley Pkwy @ 1-5 10% Laura Kane, R1W-RAC Jamboree Housing - Emerald Cove 5% Sr. Consultant (Acquisition and Relocation) City of Santa Ana - Bristol Street widening 16% Irvine, CA OCTA Grade Crossing 10% 10/10 City of Laguna Niguel - Crown Valley 10% 45% VA Consulting Jamboree Road 10% Garden Grove - Travel Country RIV Park 5% Brenda Loora Jamboree Housing - Grove Park 10% Consultant (Acquisition and Relocation) City of Santa Ana - Bristol St. Widening 30% Irvine, CA City of Anaheim - Brookhurst Widening 15% 450/0 7/2 Denny Mendoza Property Management assignments Varies daily Field Maintenance Supervisor (Property revolve daily Management) 100% Long Beach, CA 5/5 Natasa Lenic City of Azusa - 2 RHP 20% Analyst (Property Management) City of Burbank- RHP & Relo Plan 20% Long Beach, CA City of Long Beach Reporting 10% 50% 14/14 Page 29 251-21 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services Organizational-Chart Michele Folk, SR/WA, Ray A rmstrong, SR/WA Michele Folk, SR/WA, Ray Armstrong, .? dn' Diana Staudinger Laura Kane, SR/WA, Danny Mendoza Danlela Sorbe Ramie Dawit Danlela Borbe Laura Kane, SR/WA, "Alfredo Jacquez Natasa Lenic Maddy Rivera e . Brenda Loera Anthony Kurney ru& "Brenda Loera Additions! Consultants Property Maintenance Additional Consultants Susan Hebert Susan Hebert OPC maintains a relatively constant flow of public acquisition and relocation workload and monitors its projects and staff utilization consistently to ensure that adequate staff are, and will be, available to meet the scheduling demands of our clients. The key personnel proposed for this team will be available for the duration of the project. OPC acknowledges that no person designated as 'key" to the project shall be removed or replaced without the prior written concurrence of the client. As the project is on-call, please note that additional resources are always available from any of our seven California offices. - Page 30 251-22 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services Work Plan Early Project Planning and Management Our work on the early phase of this project. The first, and probably the most important element of our Project Management Approach, will?e to meet with City staff early to determine the project requirements and objectives and establish lipes of egmmunication and reporting requirements. With each project CTO, OPC will create a comprehensive- Right of Way Plan (in compliance with the City of Santa Ana's adopted Right of Way Policies and Procedures Manual), a schedule for completing the work, and a fixed cost amount In compliance with the City's CTO requirements described in the RFP. OPC's Right of Way Plan and schedule will list each task and identify the activities that must be completed Immediately prior to the start of the next task. OPC's Right of Way Plan will encompass all phases as well as other disciplines (including the City's other on-call consultants) to ensure the City's entire right of way program is orchestrated effectively and efficiently, without delay to the construction schedule. The key tracking devices In OPC's Right of Way Plan Oil be our right of way acquisition and relocation databases and the project schedule. The databases will hold all the information about each parcel/Interest and will be utilized to generate status reports, offers, deeds, documents, and any requested project certification. The right of way schedule will be utilized to monitor the completion of project milestones and the progress of individual cases. OPC's designated Project Manager, Ms. Michele Folk, will participate in coordination meetings and prepare updates to the status reports and schedule on a predetermined timeframe. in addition to the day-to-day coordination with City staff and the project team, we will interface with federal and slate oversight agencies such as Caltrans, Department of Housing and Urban Development, FTA and FHWA, and other oversight entities. Quality Assurance / Quality Control. OPC has an Internal quality assurance/quality control procedure that will be used on the City's projects. Our policy states that each work product is an independent step in the process and shall be conducted in a manner which provides for a complete check before the work product is distributed. Compliance with the City's right of way policies and procedures and all applicable regulations of federal, state and local agencies will be adhered to at all times. Management of project and financial records is an essential part of an auditable right of way program. At the core of such a system is accuracy and consistency. The QA/QC program begins with the preparation of a detailed plan, communicating OPC's approach and project objectives to the City. The approved plan is Page 3! 251-23 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services thoroughly communicated to all of the project staff to be implemented into every action, calculatiori, payment, approval and record. The plan is used throughout the project to ensure program compliance. Any exceptions are promptly corrected as events occur. To maintain accuracy, all records will undergo periodic quality/accuracy checks by management. All computations of entitlements and distributions of financial assistance are clearly documented for compliance with federal, state and local regulations and statutes, along with policies of the City of. Santa Ana. Actions which require innovative solutions will be thoroughly documented and referenced to applicable regulations for compliance support. Our project files are spot-checked by the Project Manager to ensure records are being accurately maintained. Upon completion of each file, the entire file undergoes a final analysis to ensure that all information is contained in the file, all claims are properly documented and all records of payments have been made. Since these files belong to the City, they are available for inspection at any time. Sequential Work-Tasks (overview). The identified work tasks needed for any particular CTO will depend on the nature of the CTO. For a traditional RMf acquisition task (where the objective Is to secure a particular parcel of real estate), OPC would generally proceed through the following steps: First, we would secure preliminary title information consisting of the 'Wee" line lists available from our subscription services, followed up with purchased preliminary title reports. We would prepare files and present the property owner with preliminary information contained within a Notice of Decision to Appraise, including the City's acquisition policies and procedures. We would then coordinate with the real estate appraiser to determine whether they needed the property Interest staked, or whether they needed any site remediation cost estimates from environmental firms to complete their work (and coordinate that work as necessary). We would receive and review the completed appraisal, have it reviewed (as necessary) based on project funding and. secure authorization from the City to present an offer of just compensation. We would prepare all offers and agreement formats and have them signed by the Real Estate Manager prior to delivery. We will personally deliver all offers and negotiate in good faith the acquisition of the interest while keeping the City informed of the status of the negotiation along the way. Once accepted, we will negotiate the execution of a purchase and sale agreement and work with the City to have it approved by City Council, as necessary. We will then open escrow and coordinate the clearance of title consistent with the agreement, and coordinate all lien payoffs and clearances as appropriate. Executed deeds will be accepted and recorded and tax cancellation letters will be sent. Page 32 251-24 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services The preceding example is a routine case and typically takes 9-12 months of duration from start to-finish. Specific schedules can be determined depending on project constraints, and particular scopes can be accommodated depending on project funding requirements, Acquisitlon and Negotiation Mr. Ray Armstrong, SRNVA, will serve as the Principal-in-Charge of Acquisition and will assume responsibility for the acquisition team's activities, Pre-Acquisition Activities: During the early phase of a project, OPC will.perform pre-acquisition activities consisting of a comprehensive review of all title reports and underlying record documents, issuance of statutory appraisal letters, review of engineering plans, legal descriptions, right of way maps and other information relevant to the project. OPC's Project Manager will coordinate with the City's on-call real estate appraiser(s) on title issues, property inspections and clarification of engineering design elements. Upon completion of the appraisal reports, OPC will conduct an independent review for adequacy and compliance with USPAP and applicable regulations. if necessary, OPC will participate in city council meetings and assist the City in preparing exhibits and/or reports necessary to establish the amount of just compensation. This initial stage will also include preparation of written offers of just compensation, documents,-deeds and right of way agreements in accordance with applicable requirements, to submit to the City for approval. Property Ne otiations: Following City Council approval of just compensation, OPC will present the City's written purchase offer to the owner and/or owner's representative. Negotiations will involve an Interactive, face- to-face discussion with the property owner about his/her property; explanation of the project and its impacts to the property; explanation the appraisal process and how the value was concluded, as well as answers to any questions or concerns the owners may have. All of our agents are licensed with the DRE and trained to utilize a non-coercive, integrative negotiation style to overcome all hurdles In reaching a settlement in the most efficient manner possible. Our agents will negotiate in good faith with an open mind for creative solutions that would be mutually beneficial to all parties involved. In the event a counter proposal is made, OPC will evaluate its merits and make recommendations If it is believed that an administrative adjustment or settlement is warranted, based on the facts. Supplemental negotiations may also include addressing any objection or question concerning the project the owner has by conferring with the City's Project Manager. Once an agreement is reached, OPC will submit the appropriate executed documents to the City for approval (including letters of recommendation with supporting documentation, if an administrative settlement is being recommended). Page 33 251-25 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services Post Negotiations; Upon the City's approval of the appropriate documents, escrow will be opened by submitting an instruction letter providing the purchase contract,. title insurance coverage and notarized Deed to escrow agent. OPC will assist with any due diligence requirements, will resolve adverse title conditions preceding the close of escrow and will coordinate payment of just compensation. The City of Santa Ana will be furnished with copies of the recorded Deeds and title insurance polices following the close of escrow. In the event the property cannot be acquired by good-faith negotiations, OPC will assist the City with condemnation support by ordering an updated litigation guarantee, coordinating with the attorney and assisting with any other tasks necessary to take possession. During the course of the acquisition process, OPC will maintain a complete acquisition file of all correspondence, offers, and contacts with each property owner and the City. We will also provide the City with written status reports at the prescribed interval and confer with the City's Project Manager, as needed. OPC will maintain a current Acquisition Checklist showing each successfully negotiated parcel and outline any special terms agreed to with a recommendation for the City of Santa Ana's action. Relocation Assistance Planning: The first task in the Planning phase Is the initial meeting with the Project occupants to provide them with an overview of the relocation process and to explain what they can expect from the relocation program as it relates to the benefits they are eligible to receive, the advisory assistance that will be provided and other specifics related to the initial planning identified above. Information about the project site occupants and their potential relocation needs Is obtained at this time. Based on the occupants replacement housing or business sites needs, OPC will then conduct a market survey to search for available replacement housing and commercial sites. The last major task in the Planning stage is the preparation of the Relocation Plan. The Relocation Plan will determine the level of service needed for later relocation assistance activities based on the personal interviews that will be conducted with all affected occupants. The Plan will describe the affected project occupants, identify the procedures and the program the City will follow, identify the availability of comparable replacement housing and/or business replacement sites, as well as provide a relocation budget estimate. Data Collection and Information Delivery,, Before a final eligibility determination can be made, OPC must gather more than just anecdotal information obtained in the initial interview for the Relocation Plan. Documentation to support verification of current rental/mortgage payments, household size and verification of tenancy, household income and special needs must all be secured and verified. Page 34 251-26 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services At the same time, this will be the occasion to deliver specific information regarding the relocation program and the beginning of the "personal presence" discussed above. OPC staff will take the time to go through the information being delivered, and in essence, "teach" the relocation program. We have found that while the relocation program and its goals are not complex, understanding the specifics of the process and payments may lake a number of explanations before the displacees have a good understanding of what is required of them, as well as what is avallable to them and how to take advantage of the relocation benefits to which they are entitled. Follow up meetings, letters and phone calls are made to continue to gather necessary documentation as well as provide additional "teaching" of the relocation program and process. OPC considers extensive advisory assistance paramount to a successful relocation. Eligibility Determinations & Advises Service: During this time, all necessary documentation is being requested and received from the project occupants, and a search for available, comparable, replacement housing or replacement business sites is being conducted. The combination of personal data collected and available replacement housing is used in the determination of the occupant's specific financial entitlements in the case of residential relocations. OPC staff will select a comparable replacement dwelling out of at least three that best fit the elements of comparability to the subject, or via a rent schedule, if project circumstances allow. In the case of a business relocation, OPC staff will help secure moving and/or contractor bids to establish costs for the business to relocate their equipment and personal property. The Project Manager will make the final relocation entitlement determination and submit it to the City for approval. Once the eligibility amount is approved, OPC staff will make another personal visit to the displaces to deliver'-the Notice of Eligibility and explain the benefits to which they are entitled. The displacees are also counseled as to what they must do to claim said benefits. . When residential occupants have located replacement housing, inspection of the units will occur to make sure they meet decent, safe and sanitary standards. Additional assistance, as needed, will be provided to assist with such things as working with landlords, property managers,. real estate agents, escrow and loan officers to secure replacement housing. OPC will also assist with the preparation and processing of relocation claims for . the eligible occupants. When a displaced business has identified a suitable replacement site, OPC will help the business owner determine the disposition of any Furniture, Fixtures & Equipment - whether it Is to be moved under the Relocation Program or sold to the City as an acquisition cost. With OPC, while 'tenant acquisition" is generally considered to be an acquisition-related activity, the disposition of FF&E and bulk sale escrows typically will be handled by the relocation agent assigned to the case for continuity and efficiency as well as to avoid the duplication of payments. Page 35 251-27 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services Replacement Housing Referrals: One of the tenets of the residential relocation program is that comparable replacement housing must be available before you can cause displacement. Therefore, OPC will search for, verify the availability of, and provide referrals to comparable replacement housing. The displacees will receive referrals on a regular basis until they secure replacement housing. (While not required, referrals to available replacement business sites will be offered to displaced businesses in order to assist them with successfully relocating their businesses as well as mitigating foss of business goodwill claims.) One critical assumption of finding available housing is the actual securing of the available unit. Many times, especially in the competitive housing market we are experiencing in the Orange County market, it is those who have the money that will secure the unit. Many times, occupants being displaced for a publicly funded project are in the lower income category and do not have the funds necessary for first months rent and security deposit. Without the ability to secure advance claims in a timely basis, many replacement housing opportunities are lost and the credibility of our consultants and the City is lost. Therefore, it Is critical that checks are processed as quickly as possible for the claimants. As we have done with many other clients, OPC proposes to set up a Trust Account with monies funded by the City to allow OPC to process the payments as they are approved by the City, relieving the City of the need to prepare additional paperwork and expediting payment to the displacees. Claims are still sent to the City for review and approval, but once approved; a check can be cut Immediately by OPC staff from the Trust Account. Appropriate controls and reports are submitted to the City documenting the funds deposited and monies that that have been paid. Vacation and File Close Out: The last segment is critical, because without vacation of the units, the City cannot proceed with the proposed road work or other project construction. OPC's Project Manager will work closely with the City to make sure its schedule is met. Therefore, OPC's goal will be to provide all appropriate services, referrals and assistance to relocate the tenants while adhering to the City's timeline. If tenants have not found replacement housing 90 days before the City needs the property vacant (or other date determined by the City) and appropriate comparable replacement housing has been provided, OPC will deliver 90-Day Notices to Vacate. Lastly, the task of closing a file, while not critical to vacating the tenant, will be of importance long after the units are vacated. The files must be able to tell a story of who, what, why and how much, so that any auditor will understand the process and sign off on the reimbursement of the funds, if applicable. OPC will provide written and verbal multi-lingual services, either with our current bilingual staff or outside services, in the event the need arises. Page 36 251-28 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services Property Management Services Property Management at OPC is a centralized function within our Corporate Services group that serves all of our Southern and Northern California offices. There are three functional units under the. 'Property Management" group umbrella: 1) rent collections and accounting; 2) tenant liaison; and 3) property services. Currently leading the Property Management group (interim) is Mr. Ray Armstrong, SRIWA, Vice President of Operations. 'T'here is a current vacancy of our Property Management Supervisor which is expected to be filled in December 2010. The Property Management Supervisor will oversee all three functional units. Our Project Managers typically manage the property management contract with financial and property services support provided by corporate headquarters. As we set up a property for management -- whether Interim prior to demolition, or longer term arrangements, we establish project rules for the collection of rents, payment of bills, and establishment of trust accounts. On the financial side, one of our financial analysts sets up. property accounts specific to the project and collects monthly rents as directed by the project plan. From collected rents, we receive and pay all monthly utility bills and conduct routine inspections to insure compliance with lease terms. Accounts are reconciled monthly with a complete case reconciliation presented along with the former months' bank reconciliation. Proceeds of the collected rents are turned over to the client or retained In the trust account depending on our Instruction. On the propel services side of our Property Management department, we have noted several efficiencies in delivering maintenance and inspection services and have an in-house field team responsible for those services. Danny Mendoza supervises two full-time moblie crews. Each van is equipped with supplies for landscape maintenance, weed and trash removal, board-ups, graffiti removal, general plumbing and required safety installations (smoke detectors, water heater straps, etc.) One of; OPC's employees is a general contractor, who can conduct more difficult services such as electrical, plumbing, and construction. On the leasing side, our corporate broker, Ray Armstrong, Is skilled in creating leases from on-line CAR (California Association of Realtor) forms (residential leases) and AIR (American Institute of Real Estate) forms (commercialrndustrial leases). We also have a variety of sample formals that we put to use for the management of leases, licenses, and other temporary agreements. Eminent Domain Coordination OPC's staff will coordinate with the City's general counsel to help analyze the risks associated with a particular case and may aid In the settlement, as necessary. Another noteworthy item in the category of "Eminent Domain Coordination' is OPC's unique skill set in the area of move-planning services. In California, businesses often claim loss of business goodwill. At OPC, we offer an enhanced/expanded version of our professional relocation assistance services (typically performed Page 37 251-29 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services under the direction of the general counsel) designed to mitigate the loss of business goodwill. We have a tiger team consisting of our CEO, Barry McDaniel, and a series of subject matter experts who will go into a business, take stock of the critical components of the business, and facilitate a plan for the successful relocation of the business beyond the traditional scope of work contained in this, and most other public agency RFP's. OPC has proven the success of this group time and again by saving clients such as Los Angeles Unified School District, and Caltrans, millions of dollars of goodwill claims. Other Right of Way Support Translations. OPC generally handles any needed translation services in-house as our staff covers dozens of languages and dialects. In the event that counsel wants a court certified translator, we can accommodate that as well. Property Services. While OPC provides basic property services such as landscape maintenance, board-ups, debris removal, fence repairs, and clean-outs in-house, we can provide additional subconsuitants (if required) to conduct larger scale operations requiring bulldozers, chippers, and other heavy equipment operations. Identification of Project Challenges / Innovative Solutions This proposal is being submitted for on-call services rather than based on a specific project. Therefore, -it is impossible to identify any specific project-related special issues or challenges at this time. However, based on decades of experience providing right of way services to public agencies, OPC understands the likelihood of, and is prepared to handle, project challenges as they arise. Ownership interests on many properties can be convoluted and unclear and/or difficult to access. When acquiring interests from a railroad or from the state, for example, having contacts within those organizations and experience in negotiating with entities such as these is crucial to timely completed transactions. OPC has years of experience with governmental agencies and quasi-governmental agencies and Is well versed in their unique processes. Probate and other title issues need to be identified as early as possible, and the initiation of the eminent domain process may be suggested simply to clear title even while good faith negotiations continue with the property owner. Page 38 251-30 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services OPC has seen lender restrictions on loans for partial acquisitions occurring more and more on projects recently. Getting permission from the property owner to work directly with the lender's reviewer to help them understand the process and documents necessary for a public project is a key step in expediting this process. Language issues in agreements or deeds can be resolved before documents are out for signature. Obtaining partial reconveyances for partial acquisitions in today's market when it Isn't a priority to the lenders can be a challenge. Again, OPC has expedited this process by getting permission from the property owner to work with the lender directly to explain the type of project and requirements to clear title. If the displacing agency approves using a possession clause in their agreement, then any delay in the close of escrow will not hold up construction. Complex business relocations can have a significant impact on project site clearance and construction schedules, if not handled with expertise early on. OPC will work with the City to develop a team of subject matter experts to identify relocation challenges early in the process and to propose mitigation measures that will be cost effective for the City, as well as real solutions for the business in its effort to relocate. Large loss of goodwill claims can be avoided, and a displaced business (who may be providing significant tax revenues to the City) will receive the assistance necessary to successfully reestablish their business in a new location, The current real estate market has left Orange County with many homeowners in a negative equity situation. OPC has gained experience negotiating with lenders, applying the federal programmatic waiver related to Purchase Price Differential payments and using creative solutions to clear the mortgage debt for those homeowners in a negative equity situation. Relocating these homeowners can be a real challenge due to lack of funds at the close of escrow to put down on a replacement home, and OPC has worked with other agencies in developing a Last Resort Housing program to address this issue. Exceptions/Deviations Technical Deviations OPC has reviewed the scope of work thoroughly and finds it to be well-representative of the tasks that must be accomplished to complete the job. Contractual Deviations OPC takes no exception to the sample agreement included In the RFP. Page 39 251-31 251-32 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services Exhibit A Part I -List of Key Personnel Names Functions Michele Folk, SR/WA, R/W-RAC Principal-in Chara Relocation Ray Armstrong, SRNVA Principal-in-Charge A uisition/Interim PM Mgr. Diana Staudin er Project Manager Daniela Borbe Sr. Consultant Laura Kane SR/WA RNV-RAC Sr. Consultmit Brenda Loera Consultant Dann Mendoza PM Field Supervisor Natasa Lenic Anal st Part II - List of Subconsultant/Subcontractors Subcontractor Names/Address Function N/A - Page 40 251-33 251-34 Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation, and Property Management Services Exhibit B Schedule I -Hourly Rates Furnish any narrative required to explain the price quote. Name Job Title/ Classification Job Function Fully Burdened Hourl Rate" KEY STAFF Michele Folk, SR/WA Principal Consultant Principal- n-Chara/Relocation $185.00 Ray Armstrong, SRNVA Principal Consultant Princi al-in-Char a/Ac uisition $185.00 Diana Staudin er Project Manager Ac uisition $130.00 Daniela Borbe Sr. Consultant Acquisition Agent $115.00 Laura Kane Sr. Consultant Ac uisition/Relocation Agent $115.00 Brenda Loera Consultant Relocation Agent $105.00 Dann Mendoza Field Maintenance Supervisor Pro ert Management $105.00 Natasa Lenic Analyst Pro ert Mana ement $105.00 ADDITIONAL STAFF Staff Principal Consultant Manage ent, Prop. M mt. $185.00 Staff Sr. Proiect Mana er Management $140.00 Staff Property Management Supervisor Property Management $140 00 Staff Project Manager Management . $130 00 Staff Sr. Consultant Acquisition/Relocation . $115 00 Staff Property Manager Pro pert Management . $115.00 Staff Consultant Ac uisition/Relocation $105.00 Staff Project Su ort Ac uisition/Relocation $73 00 Staff Administrative Administrative support . $45 00 Staff Field Maintenance Supervisor Property Services . $105.00 Staff Inspector Pro a Services $105.00 Staff Prevailing Wage, Specialized Labor GC/Plumber/Electrician Property Services $145.20 Staff Prevailing Wage General Construction Labor Pro ert Services $81.65 Staff Prevailing Wage Landscape Laborer Pro ert Services $40.50 Dumping fees, Board-up ODC's materials, Paint + supplies, Other maintenance supplies, E ui ment Rental Property Services At cost "Fully Burdened" rates include all overhead, general costs, administration costs and profit. Rates quoted will apply for calendar year 2010 and 2011. OPC reserves the right to adjust our stahdard hourly rates annually by approximately 3%: Prevailing Wages are tied to direct labor rates as stipulated by Department of Industrial Relations and adjusted to changes in OPC's Audited Overhead Rate. Page 41 ?l 251-35 251-36 November 11, 2010 Ms. Souri Amirani, Deputy City Engineer City of Santa Ana Public Works Department 20 Civic Center Plaza M=36 Santa Ana, CA 82701 Re: Request for Proposals for Right of Way Consulting and Related Services Specialty Area (A5) Acquisition, Relocation and Property Management Services Dear Ms. Amirani: Overland, Pacific & Cutler, Inc. (OPC) understands the City of Santa Ana is seeking professional consulting firms to provide right of way and related services on an as-needed basis. We are pleased to submit this proposal for specialty area (A5) Acquisition, Relocation and Property Management Services. OPC is a California Corporation that has specialized in providing real estate services to government agencies since 1980. Local, regional, state and federal agencies calf upon OPC to provide on-call and project based real estate services for their most challenging assignments. OPC's in-house services include Right of Way Acquisition, Relocation Assistance, Program Management, Appraisal, Appraisal Review, Utility Coordination and Property Management. This full spectrum of real estate services allows us to understand the integrated details of your project. OPC is prepared to provide the City of Santa Ana with a qualified team that will successfully execute your projects. We know the importance of the timely delivery of right of way to meet project schedules. Our success is based upon professionalism, our innovative approach to solutions and our responsiveness to clients. OPC's Irvine office will oversee the City's projects. OPC has worked with the City of Santa Ana for more than ten years providing acquisition, relocation and other related services. We are excited about the opportunity to work with the City again, 251-37 20 Fairbanks, Suite i78 Irvine. CA 92618 949.951.5263 ph 949.951,6654 -tax M1Ni.0PCserv1ces.C0M EXHIBIT B FEE SCHEDULE 251-38 Request for Proposals for Right of Way Consulting and Related Services fy Area (A5) Acquisition, Relocation, and Property Management Services Exhibit B Schedule I --Hourly Rates Furnish any narrative required to explain the price quote. Name Job Title/ Classification Job Function Fully Burdened Hovrl Rate* KEY STAFF Michele Folk SR/WA Princi aI Consultant Princi al-in-Char a/Relocation $185.00 Ray Armstrong, SIR Princi al Consultant p Principal-in-Charge/Acquisition $185.00 Diana Staudin er Project Mana er Acquisition $130.00 Daniela Borbe Sr. Consultant Acquisition Agent $115.00 Laura Kane Sr. Consultant Acquisition/Relocation A ent $115.00 Brenda Loera Consultant Relocation Agent $105.00 Dann Mendoza Field Maintenance Supervisor Property Management $105.00 Natasa Lenlc Analyst Property Management $105.00 ADDITIONAL STAFF Staff Principal Consultant Management, Prop, M mt. $185.00 Staff Sr. Pro ect Manager Management $140.00 Staff Property Management Supervisor Property Management $140.00 Staff PMect Manager Management $130.00 Staff Sr. Consuitant Ac uisition/Relocation $115.00 Staff Property Manager Properl Management _ $115.00 Staff Consultant Acquisition/Relocation $105.00 Staff Project Support Ac uisition/Relocation _ $73.00 Staff Administrative Administrative support $45.00 Staff Field Maintenance Supervisor Property Services $105.00 Staff Inspector Property Services $105.00 Staff Prevailing Wage, Specialized Labor GC/Plumber/Electrician Property Services $145.20 Staff Prevailing Wage General Construction Labor Pro ert Services $81.65 Staff Prevailing Wage Landscape Laborer Property Services $40.50 ODC's Dumping fees, Board-up materials, Paint + supplies, Other maintenance supplies, E ui ment Rental roperty Services t cost "Fully Burdened" rates include all overhead, general costs, administration costs and profit. Rates quoted will apply for calendar year 2010 and 2011. OPC reserves the right to adjust our standard hourly rates annually by approximately 3%: Prevailing Wages are tied to direct labor rates as stipulated by Department of Industrial Relations and adjusted to changes in OPC's Audited Overhead Rate. Page 41 251-39 251-40 PROPERTY ACQUISITION. RELOCATION & MANAGEMENT SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 7`h day of March, 2011, by and between PARAGON PARTNERS, LTD, 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 property acquisition, relocation and management services. B. Consultant represents that it is able and willing to provide such services for Santa Ana. 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 services, as set forth in City's Request for Proposals-Right of Way Consulting and Related Services, dated November 15, 2010, attached hereto as Exhibit A, and as more specifically described in Consultant's Proposal, attached hereto as Exhibit A-1, and both exhibits incorporated by reference. DELIVERY OF WORK PRODUCT - OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this Agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant shall deliver to City any work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with City's information systems, as agreed between the City's Project Manager and Consultant. In regard to all material produced as a deliverable under this Agreement, including but not limited to records, papers, drawings, specifications, programs, systems and other materials prepared by Consultant, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material shall be the property of the City, and may not be copyrighted without prior review from the City, and (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty-free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 251-41 3. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Consultant's Fee Schedule, attached hereto as Exhibit B. The total sum to be expended on all consultants providing property management services shall not exceed an aggregate of $500,000, during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. The invoice shall include a detailed breakdown of the services provided, the project title, the tasks, the hours, and hourly rates. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on March 1, 2011 and terminate on the later of February 28, 2012, or the expenditure of allocated funds, unless terminated earlier in accordance with Section 13, below. The City shall have the option to extend the term for an additional one-year period. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. 251-42 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 combined single limit. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, and $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including 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 251-43 Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 8. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 facsimile (714) 647-6956 With courtesy copies to: and Public Works - Design Engineering City of Santa Ana 20 Civic Center Plaza (M-36) P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-5635 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) 251-44 P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-6515 To Consultant: Paragon Partners 5762 Bolsa Avenue, Suite 201 Huntington Beach, California 92649 facsimile (714) 373-1234 Attn: Neilia LaValle 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. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not 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. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof 251-45 for such purposes as the City deems appropriate. However, any use of unfinished work product shall be at City's sole risk. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services 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. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. c. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 251-46 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR Clerk of the Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney PARAGON PARTNERS By: LauraSheedy Assistant City Attorney NEILIA LAVALLE President/ CEO Tax ID# RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director - PWA 251-47 251-48 EXHIBIT SCOPE OF WORK GENERAL REQUIREMENTS - RIGHT OF WAY SERVICES Consultants under contract with the City of Santa Ana will provide support to City of Santa Ana staff or their designee. The Consultants shall be thoroughly familiar with the Statement of Work prior to submitting a response to this Request for Qualifications (RFQ). • The Consultant shall perform work to produce a high quality, professional and complete work product. • Consultant must have experience with State and Federally funded projects. All work shall be performed in conformance with all applicable regulations, policies, procedures and standards. • Real estate appraisers provided by the Consultant must be certified and a Member of the Appraisal Institute. • All acquisition agents and property managers, performing work for the City, must hold a valid California Real Estate License. Salespersons must be registered with California Department of Real Estate (DRE), as working solely under the Consultant's supervising broker of record. • Work may include, but not be limited to, the following: onsite review of the project area; review of existing records; conducting research and performing analysis; information gathering; negotiations; development of strategies. • The Consultant shall carry out the instructions received from the City and shall cooperate with the City and other agencies. • The Consultant has total responsibility for the accuracy and completeness of the work produced. The work will be reviewed by the City for conformity with the requirements of the Agreement. Reviews by the City may NOT include a detailed review for the accuracy of items submitted. The responsibility for accuracy and completeness of such items remains solely that of Consultant. • The Consultant shall be responsible for coordination and supervision of all work performed by its sub-consultants. The Consultant shall review all work performed by its sub-consultants and the responsibility for accuracy and completeness of work performed remains solely that of Consultant. • The Consultant shall have a Quality Control Plan in effect during the entire time work is being performed under the Agreement. The Quality Control Plan shall establish a process whereby work products are independently checked, corrected and back checked. All projects related correspondences and documents should be maintained and bound in appropriate project files. 251-49 • The Consultant shall diligently work on each assignment and complete each task in accordance with the schedule and accommodate the City's needs. • The Consultant's work will be subject to inspections by City, County, State and Federal representatives. • Project files including copies of all correspondences, reports, documents, and electronic files shall be submitted to the City when requested. • All work, including reports, analysis, data, and intellectual properties developed during the life of the Agreement shall become the properties of the City. • The Consultant will receive written notification of the award of the contract. Upon on such notification, the Consultant will proceed with the services required by the Agreement. • The Consultant shall complete work under the direction of City staff. The Consultant will be expected to provide experienced and knowledgeable professional staff which will be responsive and maintain excellent working relationships with property owners, tenants, and City staff. The Consultant shall be committed to provide adequate staffing levels at all times in order to adhere to established schedules. The Consultant shall be knowledgeable and very familiar with federal, state and local regulations, policies and procedures as pertain to the right of way services provided. Specific Scope of Work for Acquisition Relocation and Property Management Services include: ACQUISITION SERVICES: Assist City staff with the coordination of all the various aspects of the real property acquisition process, ensuring all work will be performed in accordance with the public agency's policies and procedures and federal, state and local regulations. Acquisition tasks may include: • Meet with City staff to discuss assignments and procedures. • Perform the services required by the City with qualified personnel, equipment, materials, supplies, and management and administration services. • All personnel and subcontractors, referred to as "Approved Personnel", shall be approved by Agency, prior to providing services. There shall be no changes in the Approved Personnel without written concurrence of the City. • Prepare a schedule of major activities and milestones and provide an estimate of the cost to conduct proposed assignments including assignments to subcontractors. Upon City's written approval of the estimated cost, initiate the assignment in a timely manner. • Be responsible for the accuracy of work and promptly make all necessary revisions or corrections resulting from errors and omissions by Approved 251-50 Personnel. • As deemed necessary by the City, meet with the City and other staff as requested. • Monitor and maintain all files to ensure overall project integrity. • Prepare and assemble the "Offer Package" using the format approved by the City. • Prepare and maintain a file for those properties assigned for acquisition by the City. • Present written purchase offers to property owners as directed by staff. • Meet on an ongoing basis with property owners or business tenants (or their appointed representatives) to coordinate and negotiate the purchase and sale transaction. • Supplement negotiations by obtaining and reviewing counter offers or demands from property owners, recommendations for settlements, coordinating with the agency to review and discuss all possible solutions and problems, including condemnation. • Prepare all acquisition agreements, deeds and other documents necessary to complete the acquisition. • In the course of acquisition process, provide all the necessary information and work with the relocation consultant in addition to the City staff member in order to expeditiously and professionally complete the project. • Obtain reconveyance and subordination agreements as necessary. • Maintain an accurate and current record of all-pertinent information and contacts concerning the property owners and tenants. • Assist City in condemnation support activities. RELOCATION SERVICES Provide a complete relocation assistance program to comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Uniform Act) or Title 25, California Code of Regulations, its amendments, and other pertinent laws and regulations. Prepare Relocation Plans, Relocation Guidelines, relocation cost estimates, project area surveys and other specialized reports. Consultant's relocation services include, but are not limited to the following: Relocation Plan Consultant will prepare a Relocation Plan, in accordance with all requirements of State Law, State HCD Guidelines, the Relocation Assistance and Real Property Acquisition Rules and Regulations of the Agency. The purpose of this Relocation Plan is to provide the City with summary and statistical information regarding the impact of a project to potential displacees. Specifically, this report should concern the identification of potential impacts that may occur as a result of the demolition of existing structures, proposed displacement of occupants, and a plan to mitigate respective impacts. 251-51 The Relocation Plan shall include: • Description of the proposed project and project location; • Assessment of needs; • Replacement housing resources; • Residential and commercial displacements; • Temporary housing (if applicable); • Program assurances and standards; • Relocation assistance program; • Citizen participation and plan review period; • Description of relocation benefits; • Eviction policies and procedures; • Appeals and grievance procedures; • Displacement schedule; • Estimated relocation costs. Residential Relocation Services shall include: • Prepare "Relocation Package" in accordance with City approved format. • Provide advisory services • Interview displaced persons • Distribute Relocation Packages in accordance with City staff directives. • Inform displaced persons of available relocation assistance, the relocation process and benefits. • Search for relocation sites and provide referrals of sites to displacees. • Prepare and distribute informational brochures and other required notices and documents. • Provide referrals and advice • Determine relocation eligibility and amount for relocation benefits. • Review entitlement packages in accordance with applicable rules and regulations. • Review requested moving entitlements. • Inspect replacement dwellings. • Thoroughly document all contacts with the displacee. • Prepare and transmit to the City all applicable invoices and relocation claim forms. • Prepare and deliver residential entitlement letters and other required documents. • Provide status reports to City staff. • Advise and update City staff on various aspects of state and federal relocation law. Business Relocation Services shall include: Consultant shall meet with owners of businesses within a reasonable time after the offer to purchase has been made and interview them to complete the Displacees Needs Questionnaire. Collect data regarding the type of business, work schedule, number of employees and the owner's proposed plans. Provide advisory assistance. 251-52 • Determine potential eligibility for moving payments by reviewing eligibility criteria and case data. • Personally contact the displacees and present required forms and explain in detail the options for payment of reasonable moving expenses. • Extract from appraisal report information regarding improvements that have been acquired so as to eliminate them from consideration in determining moving expenses. • Review and approve the compilation of a certified personal property inventory. • Interview the displacee again to identify in detail displacee's needs, desires, and issues. • Summarize all interviews, contacts and contact attempts in diary for official record. • Provide assistance in locating a suitable replacement site. • Monitor the move as much as feasible to determine that all items are moved that should be moved and that no items are moved that were purchased during the acquisition of the property. • Collect supporting documents and submit payment of moving expenses. • Determine what expenses are necessary and eligible as reestablishment expenses. • Inspect the replacement property, obtain cost estimates, discuss the issues with the displacee, verify expenses and income and project next two years to assess whether increased operating costs will exist. • Determine eligibility for actual reasonable search expenses. • Determine eligibility for In-Lieu business payment, utilizing IRS tax returns and/or certified financial statements. • If Business Good-Will becomes an issue, an appraisal, or letter of exposure, may be required. • Arrange for a final walk-through inspection of the property. • Collect final supporting documentation, prepare final claim, prepare certification and close file. Construction and moving bid services shall include: Movers: • Conduct on site inventory and photos • Complete certified inventory and mover instruction form • Schedule and coordinate bids • Attend site inspection, if necessary • Review and compare bids Contractors: • Verify licensing • Prepare mover instruction form • Schedule and coordinate bids • Attend site inspection, if necessary • Review and compare bids • Evaluate for eligibility 251-53 PROPERTY MANAGEMENT SERVICES Consultant will coordinate all of the property management tasks with City staff and the demolition contractor as deemed necessary. Consultant shall provide interim property management during the transition from occupancy to demolition. This includes the coordination of utility connections and disconnections, preparing and facilitating short- term rental agreements, rent collections, providing eviction services, property maintenance and security, preparing and issuing notices to vacate in accordance with state law, coordination of final asbestos and lead surveys, and monitoring the demolition of structures and removal of underground storage tanks or other environmental concerns. Property Management duties shall include: • Property Management Coordination • Acting as Property Management Liaison • Utility Coordination • Invoice Services • Security Services • Lawn Care • Facilitate Maintenance Services • Month-to-Month Occupancy Agreements • Collect Rent • Prepare Rental Agreements • Complete Vacancy of Unit Tasks • Disconnect Utilities • Coordinate Fencing Services • Secure Property • Eviction Coordination • Demolition Coordination 251-54 EXHIBIT A-1 CONSULTANT'S PROPOSAL 251-55 1'-?ogon T"urlrr?era .?-'tsi. November 15, 2010 Letter of Transmittal City of Santa Ana Public Works Department, Third Floor Attn: Sour! Amirani, Deputy City Engineer 20 Civic Center Plaza, M-36, Santa Ana, CA 92701 Subject: RFP for Right of Way Consulting and Related Services - (A5) Acquisition, Relocation and Property Management Services Dear Ms. Amirani: Paragon Partners Ltd. (Paragon) appreciates the opportunity to submit its proposal in response to the above referenced RFP. Paragon stands ready to provide high quality professional right of way consulting and related services on an as-needed basis for any and all projects contemplated by the City of Santa Ana (City) under this RFP. Paragon is headquartered in Orange County and most of our employees and their families live and work here. We are excited and eager to be a part of the City's planned improvements. In July, Paragon celebrated its 17th anniversary as a woman-owned, Orange County-based land rights consulting services firm. We have one hundred twenty-five (125) right of way and real estate professionals and support staff. Over 75% of Paragon's project work is from repeat clients or referrals from existing clients. This has enabled Paragon to grow to be not only one of the largest right of way consulting firms in the western United States, but also one of the most respected. The enclosed documentation demonstrates Paragon's unique, distinctive competence and capability to implement, execute and deliver successful lands rights consulting services to the City. Paragon has assembled a team to address all. aspects of the City's Request for Proposal. Paragon proposes Richard Adler as the Project Manager to lead our team for the duration of the Contract. Mr. Adler was employed by City of Santa Ana RFP for Right of Way Consuning and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 1 251-56 1`?w?ax?ilw?rs JtA. the City for fifteen years in the real estate department and later worked with Paragon on numerous City projects. All services for this contract will be provided by Paragon's Huntington Beach corporate office located at 5762 Bolsa Avenue, Huntington Beach California, a very short drive from Santa Ana. Paragon Partners is a California Corporation. Neilia LaValle is the firm's contact person with the City during the proposal evaluation period. She may be contacted in our Huntington Beach office by: Telephone (714) 379-3376, Facsimile (714) 373-1234, US Mail at 5762 Bolsa Avenue, Huntington Beach, California, 92649 or via E-Mail neiliaflarparagon- partners.com. Paragon acknowledges receipt of two Addenda to the RFP, dated October 22, 2010 and October 25, 2010, respectively. This proposal is valid for 120 days from its submittal date. 'this proposal is made without collusion with any other person, persons, company or parties submitting a proposal; it is in all respects fair and in good faith without collusion or fraud. My signature below attests that the information contained in this Proposal is truthful and accurate at the time of its submittal and that I have full authority to bind our company. Paragon is very enthusiastic about an opportunity to work with the City of Santa Ana. We look forward to the next step in the selection process. Thank you for your time and consideration. Sincerely, ?gj? Neilia A. LaValle President, CEO and Principal-In-Charge Paragon Partners Ltd. City of Santa Ana RFP for Right or Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Seriices Page 2 251-57 . 1% jsw 1'?rthwra J-WL B. Proposed Staffing and Prolecl'Oreanization This section establishes the staffing, key personnel, and organizational approach Paragon will use to manage and staff City projects. B 1. Proposed Staff and Credentials Table B-1 highlights the education, experience, and applicable professional credentials of our proposed personnel. Paragon Management and Project Staff have extensive knowledge and experience in the provision and direction of a full range of real estate consulting services. Paragon personnel combine their significant work experience and educational backgrounds with active participation in professional organizations and in training seminars to keep abreast of current laws and trends. Table B-1 also identifies key personnel and the proposed positions for all staff members for this project. 1,11y or Hama Ana KH' for Hight of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 10 251-58 0 E Y ?* . J9 .SY C y`( .1 S.V J .G I[ ' 4 El ? p SC ? w OC .IQ Z` .--• @ J a { F . j! Co . (?' M 10 2 i b ?i O J 40 y ? BH ?'8 P6 L a ' '? ? O? C E .". .1 S ?j?CJ r tt ilk & •?.'? G E ?yO fQ'S?. w Y[ ?@.y $$ O yy?? E y ? ? o 'S $?(CC3. end i N? V ?G{ OpC ?$.Y?'. }ra C f0? J. ? ? 4 ffi •x Y? LQ 4.,' F 5 .01 j !'', ag ? 'R E EQ PI q{L` GC j??} }{?} QN•1???5_m " ?C O??~,•?- ? LL6771 ?rr?? .. ' Y' ?~'-` ?.tr SSO ?1 .? o .?g •? ?L gy?yUy O •l? ? V ??? ? ? g' _? 5 . ? ? O C 5S r.6? a33" @ _ o Mtn ?? ¢¢¢¢???? ¢ Z .? • ' {m E }-t •G Yl SI'Q ?f C E K E?? FULY ll ?' m i ,S ST .$QQ.a ?i? q ? k 4 8 ? FQ y ,y. ¢g Q o k ?!: oo p N ? EE f' ? 8 •_j•?? N y pq?? .¢ y N UO Yt?? C C? ??2'.-sCX, G i0 V "'S a/ l ? ? ? O # LL ?p ? ,?{ C ? 1] ? ? ? ? f3%. ug` {{ }}JJ 3 OU OOa ? j dd 1 Qil pp t pp JB ?O? (4UU ? & }SO V! [ll? y N y N p O i O id & a? s a dd a? g a ?. t oA?' Y B 251-59 0 1 Er b 41 of ZEN g, = c -K y E a c a° t3 P'L 75, .?}gg}p??j}(tj? .si > 8 p- t 5 a L ?i y4 $• C a ' O yd 3j }? c ? • ?• E 97 $ ? 2G g' ? tS .S r` Q? 3 ? v? ti g?C L? Y ? SO ?o ?V ° pp S r= ? CAS o o Z N W ?• ah ? z z m LLI ss 104 $ m 3 39 •? ? w m ie? uj (0 n Y M N m m •t t° t o ? K } L ? ? ?? ?aq c $ yc?, ? ? h ?. of a 4 H1 Hill I? 9 ggg a 251-60 b? I 'o a p? E d E E I. Egg .d pN O/ s •m ? a o Y W ?q L ti M Y t a i E II 1 ? CL A? W 2 I N Y 10 V i f c? i c=gg y-- V CL O I a C O V G .0 ,y cr U.. LA 4 Q C m r' a d m` 9? -9 Y a c A c 7 ?. d $QQQ?? S H° Q cc a c =a E tS Y6 D'C . N d O y r?i L C ?L C = t L® Q C }m &?M¢° SR ? •? ; X (%6 1 Q L r Tyy I ? 310 F I •C v .,1'j Y 00 o P Q ¢o a I 8 251-61 0 O u1 a Q m Yn b N. I c w p Q N fV Ie t` 0 N 3°` of SC AS C E C a° £ b 8° y^Y m YO o r N ppp?p b°?3e o N u 1 e u4 O O t0 ?E p?o4 p?o4 d? O O O g 1177 y$ de 3E N s W W U (L y g c ?r C ? Op V p p? pO v C ¢/ C? C W CQCQ nY ° 4 p l LL .7 d m U (L Z Q d n EE Es + '61 o 0 C, O -6 C t? CE) i &'C43 y 0 it $ p e? fn CJ Q a (? i Q x U a o ? CL p a cZ5 a ^^ O N LL M tb N N c aa U U ¢ U U U m r t o?'i v 2 m € g 9 0 ? _ A C d L ? z r a a c C L 251-62 R? g J__- LA. C. Work Plan Paragon understands that the City is seeking assistance for the provision of real estate services on an as needed basis to include acquisition and negotiation, relocation assistance and property management for a three-year period, plus two one-year options. Our Work Plan to accomplish the City's Scope of Work are discussed in this section. C I. Approach to Completing Specified Tasks Paragon's approach to completing the tasks described in the Scope of Work, the sequential activities to be undertaken in completing the tasks and the personnel who will perform the tasks are presented in this section. We will perform acquisition, relocation and property management services in accordance with all applicable City, State and Federal regulations. C 2. Sequential Outline of Contract Task Order Activities A step-by-step discussion concerning each of the elements in the Scope of Work (SOW) is presented below. The persons performing the activities are identified in Table B.1. Acqulsition and Ne otiation The 800roach to the acquisition work is predicated on the assumption that the following activities will be completed prior to initiating property acquisition: • Appraisals prepared by a Licensed Certified General Appraiser Title Reports or Litigation Guarantees to determine the legally vested owner(s) and to assess the liens and encumbrances against the property • Environmental Phase I and/or 11 Reports (if required) Required services will be provided by Principal or Senior Acquisition Agents, with oversight and direction from Richard Adler, the Project Manager, who will handle complex negotiations as the need arises. n 1. Our Project Manager will meet with the City and review title reports, appraisal reports, and construction plans in sufficient detail to prepare for negotiations with property owners. City of Santa Ana RFP for Right of Way Consulting and Related Services -- November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 16 251-63 2. V4 ' `tom .t.,U_ The Project Manager will then prepare a Right of Way Acquisition Plan. This plan will contain project milestones and estimated costs to achieve them. 3. The acquisition agent(s) will prepare the "Offer Package" for each property to be acquired. Documents that will be included are: Offer Letter, Appraisal Summary Statement (Pursuant to Assembly Bill 237), Purchase and Sale Agreement and Escrow Instructions, Conveying Instrument (Grant Deed, Permanent and/or Temporary Construction Easement Deed, and so on), Certificate of Acceptance, plat maps and legal descriptions, and Title Vt Information. When it is appropriate or desirable, a Permit to Enter, Right of Entry, and/or Consent to Easement will also be prepared. 4. Paragon will follow the City's policy on reimbursement for property owner appraisals up to $5,000 when the threat of eminent domain is used. Paragon will also follow the City's policy on implementation of AB1322. 5. A complete and separate file for each parcel will be prepared and maintained by the acquisition agent(s). The file will include a Parcel Diary of all pertinent_informatlon and contacts made relative to the acquisition negotiations. The Parcel Diary will be updated documenting every contact with each property owner and will include a summary of the status of negotiations indicating the attitude of the owner, any problem areas, and all of the relevant information about the status of negotiations. 6. Documents required for the acquisition of real estate and fixtures and equipment will be prepared as necessary. 7. Paragon's acquisition agent(s) will set appointment(s) with the appropriate parties for presentation of the formal written offers. Paragon will make recommendations on all counter offers. 8. The acquisition agent(s) will meet and negotiate personally in good faith with each properly owner, his/her agent or representative, commercial tenants, or lessees at appointed times convenient for them to present offers, explain the acquisition process, and gather information in order to obtain the required executed documents. City of Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 17 251-64 114awAro LW. 9. Paragon's Project Manager, Richard Adler, will coordinate and manage the acquisition process with the City, legal counsel, property owners, and tenants along with the title company, engineers, relocation agents and appraisers as necessary to insure effective cross-discipline communications, 10, Paragon's Project Manager will promptly transmit all executed documents (acquisition agreements, executed deeds, rental statements, statements of information, and the like) to the City for acceptance and processing. Paragon will obtain reconveyance and subordination agreements as necessary. 11. The acquisition agent will coordinate opening of all escrows with direction from the Project Manager, monitor same, assist the escrow company in obtaining additional documentation as necessary to provide clear title to the City, supervise and review the closing of all escrows, and review all closing statements for completeness and accuracy. 12. The Project Manager will prepare and deliver a written monthly progress report of the status of the acquisitions. Paragon will be responsible for the accuracy of our work and promptly make any needed revisions. 13. If absolutely necessary, the Project Manager will recommend condemnation action when negotiations have reached an impasse. The required justification will be submitted in writing to the City. 14. Paragon will coordinate with the City's legal counsel, as required, to support the condemnation activities until the Resolution of Necessity is adopted. Litigation support after the hearing for the Resolution of Necessity is generally provided on a time and materials basis on call. 15. Paragon will obtain subordination agreements, and any other title clearance documents necessary. Upon close of escrow, the original acquisition for file will be returned to the City. 16. Paragon will be available to assist the City with any file audits and return original files to the City. 17. Bilingual (Spanish) acquisition/relocation assistance services will be provided as needed. 18. Tax cancellation letters will be prepared for City signature, as necessary for fee Interest acquisition, as the recorded Grant Deeds are returned from Recorder's office. A City of Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 18 251-65 UAL W_kX Paragon's relocation procedures, discussed below, assure that property is acquired and displacees are relocated in accordance with the f=ederal Uniform Act and applicable State and/or Federal guidelines and City policies. Arturo Perez or Richard Stewart, Principal Relocation Agents will meet with the City staff to understand the scope of the relocation assistance required for every Contract Task Order (CTO). Relocation Impact Report. A Relocation Impact Report may be required for the City's assigned project. The Report will identify possible replacement resources and help to determine probable costs related to relocating persons, or businesses displaced by the City's project. The purpose of the Report Is to facilitate the orderly relocation of anyone displaced by the project and to give advanced warning of special problems that may necessitate more lead-time than normal. In order to achieve its goal, the Report will explore and document the needs of the households and businesses and provide the basis and background for analyzing the orderly, timely, and efficient relocation of persons and businesses affected by each assigned project. As part of Report preparation, the displacees will be interviewed to determine their needs. The Report will then be prepared along with any housing valuation studies that may be necessary, and it will include the following information: 1. A list of the households to be displaced. including information such as owner/tenant status, rental rates paid, family characteristics and special consideration of the impacts on minorities, the elderly, large families, and the handicapped when applicable. The need for temporary relocations will be examined. 2. Estimates of (a) the number of comparable replacement dwellings and business sites in the area (including price ranges and rental rates) that are expected to be available to fulfill the needs of those households and businesses displaced, (b) relocation costs and schedules, 3. It it is determined that an adequate supply of comparable housing is not expected to be available, the plan will include a recommendation and program of Last Resort Housing. City of Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Properly Management Services Page 19 251-66 The Relocation Plan will also include: • A diagrammatic sketch of the project area • A written analysis of the aggregate relocation needs of all persons and businesses to be displaced and a detailed explanation as to how these needs can be met. • A written analysis of relocation -housing resources including number of housing units needed vs. number available, comparison by price range, number of bedrooms, and occupancy status. • Program assurances and standards • Eviction and Appeals procedures • A plan for citizen participation • Analysis of availability of replacement business sites. • Discussion on the complexity and length of moving process in developing lead time estimate. • Discussion of displacement impact on small financially constrained businesses. • Identification of any special circumstances.or problems such as mobile home relocations. The services to relocate residential and business displacees.are presented below. These services will be performed by a Relocation Agent with the Project Manager's oversight. The Project Manager and Principal Relocation Agents would handle complex relocations on a case-by-case basis. Residential Relocation Assistance Procedures 1. Establish and maintain an accurate and complete working file for each displaced family or person. 2. Conduct personal, on site interviews of prospective displacees to ascertain relocation housing needs and special requirements and determine eligibility. 3. Inform displaced persons of available relocation assistance and explain relocation process. 4. Prepare a Summary of Relocation Assessments and submit to the City for review and acceptance. City of Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisitia?, Relocation and Property Management Services Page 20 251-67 1% `7tK/ri J'tA. 5. Determine eligibility for and proposed amount of relocation benefits, including moving payments, rental/down payment assistance and replacement housing payments, and calculate all relocation payments and costs. Present relocation assistance offers. 6. Prepare replacement housing/down payment assistance entitlement reports for displaced households. 7. Present relocation assistance offers. 8. Provide advisory assistance to displacees, including but not limited to, assisting in locating a new dwelling, assisting in obtaining moving services, and assisting in transferring property tax base, it applicable to replacement housing. 9. Physically assist displacees in locating replacement housing. including transporting individuals to view replacement sites, if necessary. 10. Refer displacees to social services, public housing and other public services as necessary, including, but not limited to, Section 8 housing. 11. Prepare and distribute informational Brochures, Notices of Displacement, 90 Day Notices to Vacate and other notices, as may be required. 12. Prepare all applicable benefit claim forms, secure claimant's signatures on claim forms, and submit claim forms to the City for processing and payment, and coordinate timely payment of claims. 13. Inspect replacement dwellings to determine if they meet "decent, safe, and sanitary` requirements. 14. Monitor the move to, replacement site, as necessary. 15. Coordinate with the City to deliver benefit checks and other appropriate payments to claimants. 16. Issue and deliver notices to vacate property and notify the City of the need for eviction notices. 17. Provide displacees with ongoing advisory services to minimize tenant hardship. 18. Develop and maintain an informational per case tracking system and monthly status reports on the disposition of relocation activities. 19: Review relocation appeals and prepare for review by the City. City of Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 21 251-68 1:ZYtww 1-.atd. 1. Prepare relocation assistance related claims, forms, and notices. Thoroughly interview displacee, 2. Establish and maintain an accurate and complete working file for each displaced business. 3. Inform displaced persons of available relocation assistance and explain relocation process. 4. Determine eligibility and present relocation assistance offers. 5. Provide advisory assistance to displacees, including lists of qualified movers. 6. Assist displacees in locating replacement business sites. Review any increased operating expenses. 7. Provide a minimum of one written referral to an available business site, 8. Prepare mover instructions for the move and inventory of personal property. Conduct on-site inventory with photos; schedule and review bids; verify licensing of movers and contractors. 9. Prepare all applicable benefit claim forms after reviewing for eligibility, secure claimant's signatures on claim forms, submit claim forms to the City for processing and payment and coordinate timely payment of claims. 10. Ensure thorough coordination with Authority staff, Acquisition Agent, and/or legal counsel, so that no real property is included on the personal property inventory list. 11. Coordinate the walk through for bids and move estimates with movers and the displaced business. 12. Secure a minimum of two moving bids or estimates and review them for reasonableness. 13. Advise business on benefits available, including, but not limited to, actual and reasonable moving payments, re-establishment payments, search expenses and fixed payments, and recommend the best alternative. 14. Review fixed payment (payment in lieu) criteria with business. Discuss and goodwill issues. 15. The Relocation Specialist will monitor the actual move to replacement site, as necessary. City of Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 22 251-69 `{ Z rge,.` Zk..... 1. td. Property Management Services Paragon understands the importance of property management and is prepared to manage all acquired properties in accordance with applicable policies and regulations until the properties are cleared and released for construction, In addition, and in conjunction with relocation assistance personnel, Paragon's property managers will coordinate with those dispiacees still in occupancy when title transfers, as well as any tenants the City permits to occupy properties. Under the direction and upon approval of the City, services pertaining to property management, include but are not limited to, the following: 1. Coordination of all property management tasks with City staff. 2. Functioning as property management liaison between the City and property tenants, 3. Preparation of rental agreements and month-to-month occupancy agreements. 4. Provision of invoicing services and eviction coordination. 5. Collection of monthly rents. 6. Utility and meter disconnections or transfer of utility to City name, including trash service, 7. Provision of routine site inspections. Site security, including perimeter fencing and board-ups. 8. Facilitation and oversight of property maintenance services, such as for lawn care, graffiti removal, and routine maintenance. Handling site emergencies and investigation of claims for damages or destruction of property. 9. Complete vacancy of unit/property tasks. Provide demolition coordination. C 3, Typical Schedule The following page contains a typical acquisition, relocation and property management project schedule. City of Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 23 251-70 x i3 l+l y ?a W Y? o 0 T Yf? 6 W Q V O V 4. R Y. z j 10. i I . C?l ij I s? ?!'- I - P h ,v_,_ a a rr W A?.? :, ftRRR ?? ?a as $ 251-71 C to Providing Quality, Budget and Schedule Control Paragon will prepare a monthly status report in a form acceptable to the City. The report will be submitted to the City's Project Manager with a copy to be included with the monthly billing. . Pro(ect Tracking and Status Reporting Paragon proposes to use its Right Of Way (ROW) Management software, PDQ, to r??...? manage dll of fhe data for the Projects, to track progress and to produce reports. PDQ is a procedural innovation designed specifically for real estate/ROW data management. It has the capability to integrate images, databases, GIS, word ?? processing files, spreadsheet files, maps, audio, and video. It provides project personnel with an easy-to use, efficient tool to input, manage, and access project data. PDQ allows for the integration of scanned documents and provides the capability to view 185 different file formats (including AutoCad/MicroStation). It allows for full text retrieval and has a financial tracking component and a custom report generator that will be used to generate Status Reports for the Project. The report will include the status of progress on each 41 assigned project through the end of the preceding month. The report will include the following information along with any other information requested by the City: Summary of work completed for the month and status of the project Critical issues, problems requiring resolution, and recommendations for resolving the issue . Identification of progress for each assigned task against the project schedule, and estimated completion date for each task based on current progress Paragon's Project Manager will be familiar with the current status of the project at all times and will be available to the City for conference and communication at all times. The following section presents Paragon's Quality Assurance/Quality Control Program, and Budget and Schedule Control, Peter Carpenter will oversee Paragon's quality control process. Uity of Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 25 251-72 1% . F?"rtN•r• J-?tol. - The Paragon Quality System is designed to achieve continuous improvement and Quality Goals on each of the firm's projects. Implementation of the Quality System will control project costs by minimizing re-work and omissions. The elements of the system are detailed in the Paragon Quality Manual and meet: • Applicable laws, guidelines, and licensing requirements • Prevailing industry standards • Contract requirements • Client quality expectations The Paragon Quality System is composed of the Quality Assurance Program (OAP), Quality Control Program (QCP), and Quality Improvement Program (QIP), A project specific Quality Control Plan is prepared for each project. The Quality Control Plan will include sample forms and checklists to be used by the project team throughout progress of the work. As an integral part of the Paragon Corporate Quality Assurance/Quality Control Program and to assure uniformity in training, knowledge, and job skills of all Paragon employees involved in providing acquisition and relocation assistance to public sector clients, Paragon initiated an in-house education and training program. The 40-hour course, developed and conducted by William Von Klug, SR/WA, RIW-RAC, a certified Instructor for the International Right of Way Association, Is mandatory for all employees working on public projects. The course includes a detailed analysis and comparison of Federal and California appraisal, acquisition, and relocation requirements. Paragon also offers employees assistance with ongoing Project Management, IRWA and other industry courses. Cost Control Paragon will maintain cost-tracking reports that identify budgeted or estimated costs versus actual costs expended in order to monitor the project budget. The cost-tracking report will identify each item (i.e. parcel estimated cost of acquisition versus parcel actual cost of acquisition or relocation assistance estimated City of Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 26 251-73 1% price differential versus actual price differential). Our ability to track these costs will keep the City regularly informed of the overall project costs. Paragon, as Real Estate Program Manager for the Alameda Corridor East Construction Authority, has maintained detailed cost reports in Primavera for the past 10 years. These reports track costs and the Task Parcel level for each Grade Separation Project including tracking costs for over 30 subconsultants. Scheduling As applicable to the project assignment, Paragon Will develop a task driven acquisition schedule in Microsoft Project indicating critical milestones for the assigned project. The detailed schedule will be presented to the City as a draft at the project kick-off meeting and will be finalized after obtaining input from the City. The schedule will be updated monthly to track planned versus actual as to deliverables and progress. The Project Manager will closely monitor the right of way schedule and progress to determine slippage of any tasks or deliverables and how any issues can be mitigated to prevent further delays or an impact to the final due date and overall project schedule. Milestones and tasks required to meet critical deadlines will be monitored regularly. C 5. Potential Special Issues Paragon understands that the City is planning several projects. These projects include the Bristol Street Widening Project (Phases i - IV), Grand Avenue Widening (First Street to Fourth Street); 17th and Bristol Street Intersection Widening and the Bristol Street and Warner Avenue Intersection Widening. Below are photos illustrating a sample of the project areas and discussion of potential right of way issues. Uny or Santa Ana RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 27 251-74 C 6. Procedural and Technical Innovations Paragon personnel have helped implement a variety of innovative practices in all areas of the current Scope of Work, including acquisition and relocation services. Innovative Acquisition and Relocation Procedures - On April 1, 2009, FHWA issued a 'Temporary Programmatic Waiver" of its acquisition and relocation regulations. Since FHWA is the lead federal agency for the promulgation of acquisition and relocation regulations, this waiver is critical for all federally funded projects. In addition, this waiver can be used to justify amending acquisition and relocation procedures in non-federally funded projects. According to the FHWA, the waiver was created because of the "current and historically unique negative equity housing situation". This waiver affects both acquisition and relocation procedures. it is primarily a two step process. Step one: the FHWA will allow state DOTS to make administrative settlements to resolve acquisition problems when property that is being acquired is valued less than the principal owed on the mortgage. The FHWA gave this example: a property's just compensation offer is $150,000 and the owner has a bona fide mortgage balance of $200,000. The FHWA will consider allowing the state DOT to make an administrative settlement for the amount owed on the mortgage. Step two is the biggest departure from the regulations. Normally under the Uniform Relocation and Real Property Acquisition Policy Act (URA) regulations if there is an increase in an offer to acquire property from a residential owner-occupant then that owner-occupant's Purchase Price Differential (PPD) will decrease the exact amount of the acquisition increase. With this temporary waiver the FHWA will entertain payment of a.PPD as if there were no increase in the acquisition offer. It is critical that agencies understand: 1) that the waiver is purely voluntary on the part of the local agency and 2) that in an FHWA-funded project the waiver is subject to prior approval by the FHWA. In projects without any federal funds state rules apply. It is- generally accepted that the state rules were intended to mirror the federal rules and that the state are minimum standards for City of Santa Ana RFP for Right Of Way Consulting and Related Services Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services agencies. With this in mind there should be November 15, 2010 Page 29 251-75 1% }?IrVCN?Y? J LA. little r a atspiacing agency, wdh no federal funds in their project, to adopt a similar policy as outlined in the FHWA Temporary Programmatic Waiver. Therefore, the City could use this programmatic waiver to better serve residential displacees whether there was federal funding or not. While the waiver is set to expire on January 1, 2011, it may be extended due to the current economic climate. Possession and Use Agreements Similarly, Paragon will evaluate the usefulness of gaining possession of parcels through Possession and Use agreements. Possession and Use agreements are employed when a settlement has not been reached with the owner and condemnation does not appear to be the appropriate course of action. In these cases, the owner will be given the option of receiving compensation based on the City's estimate of just compensation or payment of interest on the settlement amount. In exchange, the City will have the legal right to possess and use the owner's property prior to execution of a Right of Way Contract. The judicious use of Possession and Use agreements will allow the City to gain control of key parcels without going through lengthy settlement negotiations and/or condemnation before the right of possession is gained, 0. Exceptions/Deviations Paragon takes no exceptions to the requirements of the Request for Proposals or to the terms of the Proposed Agreement. City of Santa Ana RFP for Right of Way consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 30 251-76 FYlrovjot???t»?r? ?..?Eat. E. Cost and Price Proposal -?-^ Exhibit A - Part I List of Key Personnel and Part ll List of Subconsultants Exhibit A Right of Way Consulting and Related Services Page 1 ofi PART I - LIST OF KEY PERSONNEL Names Functions Neilia LaValle Princi al-in-Char e Mark Mendoza, J.D., MRED Corporate Broker Richard Adler Project Manag er Peter Carpenter, J,D. QA/QC Manager James Lemont Principal Acquisition A enUPrinci al Property Manager Richard Stewart Principal Acquisition Agent/Principal Relocation Agent Arturo Perez Principal Relocation Agent PART II -- LIST OF SUBCONSULTANTS/SUBCONTRACTORS Subcontractor Name/Address Function None wry 01 aanra Ana nrr ror rognt of way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 31 251-77 251-78 EXHIBIT B FEE SCHEDULE 251-79 251-80 1% .17?At ...1,td. Exhibit B - Price Summary Sheet Exhibit B Page t-of'l Right of Way Consulting and Related Services PRICE SUMMARY SHEET SCHEDULE I - HOURLY RATES M? Name . Job Title/ . Classification Job Function Fully Burdened Hour1 ?ate* Neilia LaValle Principal-in-Charge Project Oversight $165 Mark Mendoza Corporate Broker Project Oversight $165 Richard Adler Project Manager Project Management $135 Peter Carpenter, J.D. Senior QA/QC Manager Quality Control $150 James Lemont Principal Acquisition Agent / Property Mana er Acquisition /Property Mana ement Services $110 Richard Stewart Principal Relocation Agent Relocation Services $110 Arturo Perez Principal Relocation Agent Relocation Services $110 Konstantin Akhrem Principal Relocation Agent Relocation Services $110 John Hemer Principal Relocation Agent Relocation Services $110 David Hudson Principal Relocation Agent Relocation Services $110 Hernando Avilez Senior Relocation Agent Relocation Services $95 Craig Chong Senior Acquisition Agent Senior Relocation Agent Acquisition / Relocation Services $95 John Delavf ne, J.D. Senior Acquisition Agent Acquisition Services $95 April Harvey Senior Acquisition Agent Acquisition Services $95 Deborah Martinez Senior Acquisition Agent Senior Relocation Agent Acquisition/ Relocation Services $95 Jeremy Miller Senior Acquisition Agent Senior Property Manager Acquisition /Properly Management Services $95 Robyn Quinlan Senior Acquisition Agent Acquisition Services $95 Yolanda Flores Relocation Agent Relocation Services $85 Maria Simon Acquisition Agent Property Mana er Acquisition /Property Management Services $85 Mina Villalobos Acquisition Agent Relocation Agent Acquisition / Relocation Services $85 Kris Williamson Acquisition Agent Pro ert Mana er Acquisition /Property Mana emeni Services $85 'Fully BurdeneT rates include all overhead, general costs, administration costs and profit. City of Santa Arta RFP for Right of Way Consulting and Related Services November 15, 2010 Paragon Partners Ltd. Proposal to Provide (A5) Acquisition, Relocation and Property Management Services Page 32 251-81 251-82 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: AGREEMENT WITH AESCO, INC. FOR TESTING AND INSPECTION SERVICES OF VARIOUS CAPITAL IMPROVEMENT PROJECTS -l Aiv CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2°d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with AESCO, Inc. in an amount not to exceed $478,000, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION Under the current Capital Improvement Program, the City will construct major projects, including the remaining phases of the Residential Street Repair, Raitt Street Rehabilitation, West Pump Station Upgrade, and First Street Bridge widening over the Santa Ana River. These projects involve construction of reinforced concrete, reinforced masonry, structural steel, earth work, and asphalt pavement. To ensure quality, a variety of tests and inspections must be performed on the workmanship and construction materials used on the job. The California Building Code requires that inspection of reinforced concrete, reinforced masonry, and structural steel be performed by certified inspectors. Since none of the City's construction inspectors has the required certificates and the City doesn't have the testing equipment, it is recommended that quality assurance services be provided by a qualified professional testing and inspection firm. In December 2010, the City Council approved the release of a Request for Proposals (RFP) to qualified consulting firms. Subsequently, RFPs were sent to nine testing and inspection firms, including one located in Santa Ana. Five firms submitted proposals, but the Santa Ana firm was not among them. An evaluation committee rated the proposals. Each firm was rated according to 25J-1 Agreement for Testing and Inspection Services of Various Capital Improvement Projects March 7, 2011 Page 2 its qualifications, experience, and capacity to perform the required work. Since the score of the five firms was close, all fee proposals were opened. Based on the proposals submitted, the scores and proposed fees for the firms are as follows: Firm Ranking Score Fee 1. AESCO, Inc. 1 90.9 $478,000 2. Converse Consultants 2 88.3 $518,150 3. United Inspection & Testing, Inc. 3 87.2 $479,300 4. Leighton Consulting 4 86.4 $650,400 5. Koury Engineering & Testing, Inc. 5 85.6 $525,000 Staff recommends awarding the agreement to AESCO, Inc., the firm with the highest score and the lowest fee. AESCO has extensive experience with testing and inspection of various types of construction. Services will be acquired on an as-needed basis until the contract amount is exhausted. FISCAL IMPACT The total obligation of this agreement shall not exceed $478,000. Costs shall be charged to the projects requiring services. APPROVED AS TO FUNDS AND ACCOUNTS: r 7 Raul Godinez II Francisco Gutierrez Executive Direct Executive Director Public Works Agency Finance & Management Services Agency RG/MG Exhibit 1: Agreement 25J-2 CONSTRUCTION INSPECTION SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 7 h day of March, 2011 by and between AESCO, Inc. 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 material testing and construction inspection services to assist in the construction of City's capital improvement projects. B. The City prepared and distributed a Request for Proposals (RFP) to solicit proposals from qualified consulting firms for the required professional services. C. In response to the RFP, Consultant submitted its proposal, dated January 4, 2011, to provide said services. D. Consultant represents that Consultant is able and willing to provide the required material testing and construction inspection services to the City. E. 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 material testing and construction inspection services on an as needed basis on the request of the City, as set forth in Exhibits A, attached hereto, and as more particularly described in Consultant's Proposal, attached hereto as Exhibit B. All exhibits attached to this Agreement are incorporated by reference. 2. REPRESENTATIVES For purposes of implementing this Agreement, the representative of the City shall be the Executive Director of the Public Works Agency or his designated representative (the "Director") and the representative of the Consultant shall be Adam Chamaa. Except as may be otherwise stated herein, the representatives shall have the authority to act on behalf of their respective parties in carrying out the terms of this Agreement. 3. DELIVERY OF WORK PRODUCT Consultant shall deliver to City all work product which results from the services provided, including all records, papers, drawings, specifications, programs, systems and other materials prepared by Consultant. Said work product shall be submitted in a hard copy and produced in a form compatible with City's computer system, as agreed between the Project Manager and Consultant. 25J-3 4. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its Services, the charges identified in Exhibit C. The total sum to be expended under this Agreement shall not exceed Four Hundred Seventy-Eight Thousand Dollars ($478,000.00) during the term of this Agreement. b. Payment by City shall be made within thirty (30) days, subject to City accounting procedures, following receipt of proper invoice evidencing work performed, with copies of field tickets signed by the City's representative attached. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 5. TERM This Agreement shall commence on the date first written above and terminate upon expenditure of all allocated funds, unless terminated sooner pursuant to Section 14, below. 6. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 7. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees 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. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. -2- 25J-4 d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above, in full force and effect for the entire term of this Agreement. (ii) Certificates of insurance shall be provided to the City upon execution of this Agreement and shall be approved as to form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the CITY for any work performed prior to approval of insurance by the City. 8. INDEMNIFICATION Consultant agrees to and shall indemnify 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 pursuant to this Agreement. Consultant agrees to indemnify, hold harmless and pay all costs for the defense of the City and its officers, agents, employees, Consultants, special counsel, and representatives regarding any action for damages, just compensation, restitution, judicial or equitable relief caused or alleged to have been caused by reason of Consultant's actions in connection with this Agreement, any claims arising out of this Agreement, or any approval or certification by the City relating to the services provided pursuant to 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. City may make all reasonable decisions with respect to its representation in any legal proceeding. 9. CONFIDENTIALITY If either party receives from the other party information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, the receiving party 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, without limitation, financial, marketing, research and development, organizational, technical, merger or acquisition, and other information related to the other party, information related to released or unreleased software or hardware products, the marketing or promotion of either party's product, a party's business policies or practices, and information received from third parties that a party is obligated to treat as confidential. 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 -3- 25J-5 any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the party receiving the information hereafter disclosed in a publicly available source; (c) is in rightful possession of the party receiving the information without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the receiving party without reference'to information disclosed by the other party hereunder. 10. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 11. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Copies to: Executive Director of Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) Santa Ana, California 92702 telefacsimile (714) 647-5069 To Consultant: AESCO 17782 Georgetown Lane Huntington Beach, California 92647 Attn: Adam Chamaa A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 12. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other Agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement -4- 25J-6 acknowledges that no representations, inducements, promises or Agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 13. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Consultants retained by City. 14. TERMINATION This Agreement may be terminated by the City upon thirty (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. 15. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 16. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 17. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. -5- 25J-7 18. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D, HUIZAR Clerk of the Council CITY OF SANTA ANA DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: AESCO, INC. RAUL GODINEZ, II Executive Director of the Public Works Agency ADAM CHAMAA Engineering Manager DEBRA PEREZ Project Manager Tax ID # -6- 25J-8 EXHIBIT A REQUEST FOR PROPOSAL TESTING AND INSPECTION SERVICES FOR CITY OF SANTA ANA CAPITAL IMPROVEMENT PROJECTS CITY OF SANTA ANA PUBLIC WORKS AGENCY 20 CIVIC CENTER PLAZA, M-22 ROSS ANNEX SANTA ANA, CALIFORNIA 92702 DAVID Y. C. IP PRINCIPAL CIVIL ENGINEER DECEMBER 2010 -7- 25J-9 TABLE OF CONTENTS DESCRIPTION PAGE I. General Project Description 3 II. Proposed Scope of Services 3 III. Special Requirement 4 Certificate of Personnel 4 Acceptance Testing and Sampling 5 Reporting Test Results 5 Independent Assurance Sampling and Testing 5 IV. City's Responsibilities 5 V. Issuing Office 6 VI. Schedule 6 VII. Proposal Rejection 6 VIII. Addenda 6 IX. Proposal Content and Signature 6 X. Acceptance of Content 6 XI. Disclosure 7 XII. Rules for Proposal 7 XIII. Selection Procedure 8 XIV. Method of Payment 8 XV. Regulations 8 XVI. City's Affirmative Action Program 8 XVII. Certification of Non-Discrimination by Consultant 8 APPENDIX A - Certification of Non-Discrimination 10 APPENDIX B - City's Standard Consulting Agreement 11 APPENDIX C - Fee Schedule 20 -8- 25J-10 I. GENERAL PROJECT DESCRIPTION Under the City of Santa's Capital Improvement Program, a number of construction projects will take place in the next few years. These projects include street pavement, traffic signals, underground utilities, building, bridge and park facility improvements. The total value of construction is estimated to exceed $100 million. In order to maintain high quality of construction, the City intends to retain a testing and inspection firm to provide quality assurance services for those projects. The selected firm is expected to provide testings and inspections for construction involving grading, soils, base material, reinforced concrete and masonry, asphalt concrete, structural steel, painting and to provide other quality assurance services when required. A list of some of the contemplated services is included as Appendix C in this Request for Proposal (RFP). The quantities listed in this fee schedule are for the purpose of cost comparison only. The City reserves the right to request the selected testing firm to perform part, all, or none of the listed work. The selected firm shall be paid only for the work requested by the City. The purpose of this RFP is to solicit proposals from quality control consulting firms for the required services. The selected consultant is expected to enter into an agreement with the City to provide services on an as-needed basis. The proposal shall be limited to 15 pages, excluding materials in the appendices. The proposing firm shall submit a cover letter to guarantee that key personnel will be committed to the project as represented in the proposal. II. PROPOSED SCOPE OF SERVICES The required services shall include, but not be limited to, the following: Provide field inspections and compaction tests for grading, trench backfill and asphalt concrete pavement construction according to the project special provisions, the Standard Specifications for Public Works Construction ("Green Book") and Caltrans Standard Specifications. Submit daily field reports to the City and a final report after work is completed. 2. Provide inspections for installation of precast and cast in-place concrete, welding, high strength bolts, structural steel, masonry, painting and other types of work in accordance with the California Building Code (CBC) and the contract documents. Submit field reports to the City immediately after inspections are completed. All deputy inspectors shall register with the City's Planning and Building Agency prior to start inspection. 3. Perform tests on various construction materials as required by the City. 4. Inspectors who perform work in confined areas or at elevated levels shall be certified or trained for confined space and fall protection. 5. Recommend testing method on defective work and advise the City of acceptance standards. 9 25J-11 6. Provide source inspection for concrete and asphalt concrete at mixing plants, and inspection for other materials at their source as required by the project specifications. 7. Provide other quality control services as requested by the City. 8. Field reports shall be submitted daily to the City. Submit and distribute typed inspection and testing reports to the City's Public Works Agency and the Planning and Building Agency in accordance with "Green Book" and "CBC" requirements and to other concerned parties within a week after the work is performed. 9. Submit a final report to the City within five working days upon completion of each project. Ill. SPECIAL REQUIREMENTS Since some of the city projects will be funded by Federal or State grants, the selected consulting firm must comply with requirements of Caltrans' construction manual and the following: Certificate of Personnel ? The personnel who will conduct the sampling and testing must be certified. They can be certified by Caltrans' District Materials Engineer, by the National Institute Certification of Engineering Technologies, or by other authority acceptable by the Construction Engineer of the City to be proficient in accepting sampling and testing. A copy of each person's certificate must be on file in the office of the Construction Engineer. The certificate shall list the type of work which the individual is authorized to perform. The testing laboratory must be under the supervision of a registered engineer with experience in inspection and testing of construction materials. This engineer shall certify the results of all tests performed by the lab personnel under his/her supervision. ? The selected firm must maintain the laboratory testing equipment in accordance with recognized national standards. ? The selected firm must have an independent assurance testing and sampling program. This program can be performed either by their own personnel not involved in the acceptance testing and sampling, or by another quality assurance organization. ? Correlation Testing Program: The Materials Laboratory shall be a participant in one or more of the following testing programs: a. AASHTO Materials Reference Laboratory (ARML) b. Cement and Concrete Reference Laboratory (CCRL) 10 25J-12 c. Caltrans' Reference Samples Program (RSP) Acceptance Testing and Sampling ? The selected testing laboratory shall conduct acceptance testing of materials on the first day when work is performed, and continues daily until the work is completed. Reporting Test Results ? When aggregate sample is taken in the material source, the testing firm shall submit to the Resident Engineer results of sand equivalent, cleanness value and sieve analysis within 24 hours. When soils and aggregate samples are taken at the job site, results of these tests should be submitted within 72 hours. ? Results of compaction and density tests taken at the job site should be submitted within 24 hours. ? When samples of soils and asphalt concrete are taken at the job site, R-value and result of asphalt extraction test should be submitted within 96 hours. Independent Assurance Sampling and Testing The selected firm shall establish and maintain an Independent Sampling and Testing (ISAT) program: ? To verify that the project's sampling and testing is performed correctly by the testers and samplers. ? To ensure the equipment is properly calibrated. ? To provide the City with a copy of the program to ensure that the program is carried out. ? To provide the Resident Engineer with a report indicating actions to be taken by the selected testing firm when discrepancies are found between ISAT and acceptance tests (AT). IV. CITY'S RESPONSIBILITIES 1. Furnish construction plans and specifications to the consultant. 2. Coordinate with the contractor regarding work schedule and notify the consultant 24 hours in advance for the required inspections and tests. 2eJ-13 25J-14 EXHIBIT B CONSULTANT'S PROPOSAL 12 25J-15 AESCO, 17782 Georgetown Lane Huntington Beach, California 92647 EXHIBIT "B" Tele: (714) 375-3830 Fax: (714) 375-3831 Request for Proposal Testing and Inspection Services For the City of Santa Ana Capital Improvement Projects AESCO Proposal No. P2732 City of Santa Ana Public Works Agency 20 civic Center Plaza Ross Street Annex, 4fh Floor Santa Ana, CA 92702 Attention: Mr. Raul Godinez II, Executive Director AESCO 17782 Georgetown Lane Huntington Beach, California 92647 Tele: (714) 375-3830 Fax: (714) 375-3831 January.4, 2011 Construction Material Testing/Inspection ? Environmental ? Geotechnical Engineering Services 25J-16 AESCO January 4, 2011 City of Santa Ana Public Works Agency 20 Civic Center Plaza Ross Street Annex, 4'h Floor Santa Ana, CA 92702 Attention: Mi. Raul Godinez II, Executive Director Subject: Request for Proposal Testing and Inspection Services For the City of Santa Ana Capital Improvement Projects AESCO Proposal No. P2732 Dear Mr. Godinez II: 17782 Georgetown Lane Huntington Beach, California 92647 Tele: (714) 375-3830 Fax: (714) 375-3831 AESCO is pleased to submit this proposal to perform as-needed geotechnical professional and technical services for the above-referenced project. AESCO is a woman-owned corporation (incorporated in California) and has been in operation since 1993. The person who will be authorized to represent AESCO is Mr. Adam Chamaa, at 17782 Georgetown Lane, Huntington Beach, CA 92647; his telephone number is 714-375-3830. AESCO CORPORATION PROFILE • AESCO is a woman-owned corporation (incorporated in California) and has been in operation since 1993. • AESCO is SBE, DBE/UDBE, WBE, and CBE certified. • DSA, Caltrans and City of Los Angeles certified. • Materials testing and inspection services including asphalt. • Clients include OCTA, Caltrans, MTA, the City of Los Angeles Department of Water and Power, the Cities of Riverside, Huntington Beach, Lynwood, Lakewood, and Buena Park; the Long Beach Community College District, the Covina School District, and the Alhambra School District, PROJECT DESCRIPTION A number of Capital Improvement Projects will be implemented by the City of Santa Ana in the next few years with a total construction value to exceed $100 million. Construction Material Testinglinspection • Environmental ? Geotechnical Engineering Services 25J-17 AESCO Proposal No. 2732 SCOPE OF WORK The scope of work shall include, but not be limited to, the following: provide field inspections and compaction tests for grading, trench backfill and asphalt concrete pavement in accordance with the Standard Specifications for Public Works Construction and Caltrans Standard Specifications, perform inspections for installation of precast and cast in-place concrete, welding, high strength bolts, structural steel masonry, painting and other materials in accordance with the CBC and contract documents, perform tests on various materials as required, recommend testing on deficiencies and advise the City of acceptance standards, provide other quality control services as requested, provide source inspection for concrete and asphalt concrete at mixing plans and inspection for other source materials as required by project specifications. All deputy inspectors performing work in confined spaces or elevated levels shall be trained for confined space and fall protection. Submit daily field reports to the City. Submit reports to the City's Public Works Agency, the Planning and Building Agency or others, in accordance with "Green Book" and CBC requirements within a week after performing work. Submit a final report within five working days upon completion of project. QUALIFICATIONS A brief summary of the background and qualifications of AESCO are presented in Section 1. AESCO has extensive experience in performing construction materials testing and inspection on an on-call basis for various cities and municipalities and we currently hold the on-call contract for this same type of work for the Orange County Transportation Authority (OCTA). RELATED PROJECTS A listing of related project experience is included in Section 2. PROPOSED STAFF We have attached a summary of key staff members proposed for this project as well as a project organization chart here as Section 3, to provide you with an overview of their professional credentials and experience. Resumes are provided in Appendix A. AESCO's geotechnical personnel will be working under Mr. Adam Chamaa, P.E., G.E., the responsible person in charge. All laboratory and field test results and reports will be certified by Mr. Chamaa. WORK PLAN A work plan for construction testing and inspection services is included in Section 4. STANDARD SERVICES A description of our Quality Control Program is included in Section 5. REFERENCES References are provided in Appendix B. CERTIFICATION OF NON-DISCRIMINATION Appendix A, Certification of Non-Discrimination is included in Appendix C. Construction Material Testing/Inspection + Environmental ? Geotechnical Engineering Services 25J-18 AESCO Proposal No. 2732 ADDITIONS OR EXCEPTIONS TO THE CITY'S REQUEST FOR PROPOSAL AESCO has no exceptions to the provisions and conditions of the Sample Consulting Agreement included within the RFP. CERTIFICATES OF PERSONNEL Inspectors and laboratory certificates by Caltrans and/or other authorities will be provided to the office of the Construction Engineer upon award of the project. Our laboratory equipment is calibrated yearly by a certified calibration firm in accordance with recognized national standards. INDEPENDENT ASSURANCE AESCO is a current member of the Independent Assurance Program with Caltrans, CCRL, and AMRL. HOURLY RATE SCHEDULE Appendix C, Fee Schedule, is included in a separate envelope. If you need further assistance regarding this matter, please give feel free to call either myself or Ms. Debra Perez. We look forward to hearing from you. Very truly yours, AESCO ?)-ttklo' Debra Perez ( J Project Manager Lf Chamaa, M.S.C G.E. Engineering Manager Construction Material Testing/Inspection ? Environmental ? Geotechnical Engineering Services 25J-19 AESCO, Inc. P2732 Statement of Qualifications Statement of Qualifications Table of Contents Section 1 Credentials and Qualifications ...................................................1 Section 2 Related Projects ....................................................................6 Section 3 Staffing and Key Personnel ...................................................13 Personnel Summary ............................................................16 Organization Chart ..............................................................19 Section 4 Work Plan for Testing and Inspection ........................................20 Section 5 Standard Services ....................................................................................21 Appendices Appendix A Resumes .........................................................................22 Appendix B Client References ............................................................... 40 Appendix C Certification of Non-Disclosure ............................................................42 Civil Engineering/ Inspection ? Geotechnical Engineering Services www.AescoTechnotogies.com 25J-20 AESCO, Inc. P2732 Statement of Qualifications Section 1 Credentials and Qualifications It is anticipated that the following services and tests may include, but not be limited the following: • soil inspection • concrete inspection • masonry inspection • reinforcing steel inspection • asphalt concrete inspection • 6" concrete cylinder • 2x4 mortar sample • 3x3x6 grout sample • masonry prisms • ultrasonic testing of steel connectors • post tension reinforcing inspection • post tension concrete inspection • structural steel inspection • connection bolt torque testing • precast concrete • deputy inspection • mechanical inspection • plumbing inspection • electrical inspection AESCO has been retained as the civil, testing/inspection and geotechnical engineering firm for local governmental and municipal agencies, school districts, commercial developers, and private homeowners. Clients have included the City of Los Angeles Department of Water and Power, the City of Costa Mesa, the City of Inglewood, the City of Long Beach Water Department, the City of Diamond Bar, the City of Lakewood, the City of Huntington Beach, the City of Lynwood, the City of Riverside, the City of Buena Park, Metropolitan Transit Authority (MTA), Orange County Transportation Authority, New Century BMW dealership, Gold's Gym, Cingular Wireless, Sprint PCS, T-Mobile, Nextel, AT&T and Verizon Wireless, Honda/Acura dealership, Alhambra School District, Long Beach Community College District, Mountain View School District, and Covina Unified School District. Detailed descriptions of some of these projects are included in Section 2. AESCO has a strong financial base, and has never experienced any bankruptcy, pending litigation, office closure, nor has any impending merger in the near future. AESCO is able to complete projects within the established schedule, and does not add on additional work without prior authorization. Budget/Schedule Performance AESCO has been successful in consistently completing its projects within the assigned budget and schedule. We thoroughly evaluate our task and scope of work, and build an efficient budget Civil Engineering/ Inspection # Geotechnical Engineering Services www.AescoTechnologies.com 25J-21 AESCO, Inc. P2732 Statement of Qualifications for our work. Therefore, we seldom exceed the budget or schedule. AESCO has a practice of obtaining advance approval from clients prior to initiating any work which will add costs to the originally approved budget. Construction Materials Testing and Inspection Services AESCO operates a construction materials engineering (CME) laboratory in Huntington Beach, California, and is capable of performing in-house or on-site testing and inspection services. Our laboratory produces thousands of reports annually involving concrete, aggregates, soils in-place, and bituminous materials. AESCO also regularly tests and inspects brick, granite, stone masonry, mortar, reinforcing steel, and manufactured elements such as pre-stressed beams and pre-cast panels. Engineering consultation and inspection services are available for each phase of construction including: • Aggregate Evaluation • Concrete Mixtures-Design, Inspection, and Testing • Bituminous Materials Testing • Refractory Testing • Roof Inspection and Testing • Soils Compaction and Stabilization Tests and Inspection • Structural Steel Fabrication and Erection Inspection • Qualification of Welders and Procedures • Welding Inspection • Rebar Inspection Geotechnical Engineering Capabilities Information from geotechnical investigations are used to develop preliminary evaluations. Our experienced field engineers and drillers assess the subsurface conditions as they are encountered to achieve an accurate representation of the soil and bedrock materials beneath a site. AESCO can deliver geotechnical services, from routine classifications, to triaxial shear and consolidation tests. Our laboratory testing services include testing of soils, concrete, masonry, fireproofing, asphalt, roofing, and aggregates. Laboratory testing is performed using ASTM, AASHTO, and other applicable specifications and guidelines. Special testing services and field laboratories can be provided, as necessary. In addition to comprehensive soil testing, we are equipped to perform a variety of rock mechanics test procedures, in accordance with standard methods specified by ASTM, ISRM, and CANMET. AESCO's geotechnical investigations have included: • Foundation and pavement design • Special site investigations for vibration monitoring • Field permeability tests Civil Engineering/ Inspection ? Geotechnical Engineering Services 1"mAescoTeclmologies.com 25J-22 AESCO, Inc. P2732 Statement of Qualifications • Settlement problems • Compaction monitoring and testing • Slope stability problems such as earthen dam failures • Shallow foundations and rigid mats • Deep foundations and pressure injected footings • Earth retaining structures and reinforced earth • Geological reinforced fill • Deep, dynamic ground improvement, surcharge and grouting • Highways, airports, railroads and pavements • Slope design, soil and rock stability • Landslide analysis and control • Expansive/collapsing soils • Geologic and seismic hazard per Title 24 • Settlement and subsidence analysis • Underpinning and special foundations • Dams, reservoirs and dam studies • Liners • Hydroelectric facilities • Dynamically loaded foundations • Soil and rock instrumentation and blast monitoring • Construction dewatering and drainage • Tunnels, pipelines and utilities • Forensics • Creek, river and waterfront protection • Liquefaction analyses • Fault evaluation AESCO provides full grading inspection services during construction. Our inspectors are capable of performing field inspection and testing of fill materials, excavations, foundations, and shoring. Our inspectors are trained to perform compaction testing with the sand cone or nuclear density gauge test method and are licensed to operate nuclear density gauges. To expedite site grading, AESCO can set up a portable laboratory on site, capable of performing most of the essential tests that may be required by the district. Environmental Engineering In many instances, especially with projects involving sediment sampling activities, geotechnical activities can overlap with environmental aspects. AESCO's combined expertise in environmental, geotechnical and material testing services has made AESCO a leader in providing a package of comprehensive services. To ensure that drilling operations are performed under the highest quality standards, either a registered professional engineer or a geotechnical engineer always supervises the drilling operation, AESCO provides monitoring well installation services and groundwater analyses. For environmental drilling operations, AESCO units frequently utilize hollow stem augers. This Civil Engineering/ Inspection ? Geotechnical Engineering Services ww %v.AescoTechnologies,com 25J-23 AESCO, Inc. P2732 Statement of Qualifications drilling technique provides a continuous casing as the boring advances, minimizing cross contamination or mixing of upper zones of soil and groundwater with lower zones. Environmental Site Assessments The potential liabilities associated with the presence of hazardous substances on a property can be substantially greater than the value of the property itself. Environmental laws and court decisions have increased the risk of liability for lenders as well as for buyers, sellers and operators of property. AESCO assists clients in making critical, timely and economically sound decisions on property management and ownership transfers. Our Environmental Site Assessment (ESA) services are offered in phases to provide maximum benefits in the most cost effective manner. Phase I The purpose of the Phase I ESA is to identify any obvious concerns for potential environmental impairment. The scope of work consists of the following activities: • Determine the existing site conditions: complete a comprehensive visual walk- through examination of the site. • Review the site history: collect historic maps, photographs and directories; examine aerial photographs and title abstracts, and interview persons familiar with the site (e.g., former owners, occupants, workers, neighbors). + Evaluate physical setting information: topography, soil conditions, site geology, regional ground water conditions, and floodplain and zoning information. • Visually examine surrounding land use: research surrounding properties for present and past activities that may affect environmental suitability. • Regulatory review: inquire of appropriate local, state, and federal agencies to identify environmental concerns. • Prepare Phase I report: evaluate all data and prepare an opinion and/or conclusions stating that either the site has minimum probability for environmental concern, or that the assessment has led to questions regarding environmental suitability. If potential environmental liabilities are identified, recommendations are made for additional activities, including possible Phase II investigation. Phase II Environmental Analysis The Phase II environmental analysis commonly consists of subsurface exploration to obtain samples and analysis of soil and/or groundwater samples for the presence of hazardous substances or petroleum products. AESCO's typical approach to a Phase 11 ESA includes: Preparation of a site-specific sampling and analysis plan to confirm the extent and concentrations of contamination in accordance with the EPA standards and local, State, and federal guidelines. • Preparation of a site-specific health and safety plan. • Sample collection of waste, waste streams, hazardous materials, surface water, groundwater, soils, asbestos, or other material samples, and the testing of underground storage tanks for content and structural integrity. • Comprehensive review of the regional and local geology and hydrogeology to determine Civil Engineering/ Inspection ? Geotechnical Engineering Services 4 www.AescoTechnotogies.com 25J-24 AESCO, Inc. P2732 Statement of Qualifications the migration pathways of surface and subsurface contamination; and the installation, as required, of groundwater monitor wells to determine site hydrogeology and extent of contamination. • Approval of design plans. • Preparation of Chain of Custody documentation for samples collected and processed. • Laboratory analyses of environmental samples; chemical analyses vary from site to site and typically include parameters such as petroleum hydrocarbons, volatile organic compounds, inorganic contaminants, and asbestos. • Preparation of a summary report. • Aerially Deposited Lead (ADL). AESCO is specialized in ADL surveying studies. AESCO performed ADL studies for numerous freeways in Los Angeles, and Orange Counties. This study involves soil sampling, testing, and statistical analyses of the lead deposit. AESCO follows the acceptable most recent format and variance of Caltrans. Civil Engineering/ Inspection ? Geotechnical Engineering Services wNvw. AescoTechnologies. com 25J-25 AESCO, Inc. P2732 Statement of Qualifications Request for Proposal Testing and Inspection Services For the City of Santa Ana Capital Improvement Projects AESCO Proposal No. P2732 Engineering Manager Adam Chamaa, P.E., G.E. Project Manager Materials Testing and Debra Perez Inspection Project Engineer Ivlikhael Mikhael Abdallah Salama, M.S.C.E. Jess Lim Hamid Nourian Soil and Laboratory Testing Rockland Dale Jess Lim Salim Alakhras Hamid Nourian John Gomez Thomas Green Bill Fransen John Kclenc Omar Chamna Civil Engineering/ Inspection ? Geotechnical Engineering Services 19 www.AescoTechnologies.com 25J-26 AESCO, Inc. P2732 Statement of Qualifications Section 4 Work Plan for Testing and Inspection AESCO's commitment to quality assurance extends to field and laboratory staff that is certified in various technical disciplines by multiple agencies such as Caltrans, ACI, NICET, and ICC. Field technicians and inspectors provide detailed documentation of construction operations and specification compliance. AESCO's accredited materials testing laboratory and collection of resourceful field equipment enable our professionals to efficiently determine precise methods for qualifying construction materials. AESCO's method of operation is the following: • Prior to the start of any project AESCO will meet with the CLIENT to review staffing and project needs. • Prior to the performance of an inspection or test, AESCO's dispatcher creates a task number and then dispatches the appropriate inspector. AESCO utilizes unique task numbers for each inspection and test service provided. AESCO digitally controls all assigned tasks to our inspectors and each unit of service is closely watched by our project manager. AESCO does not exceed the assigned budget for its services prior to authorization by the CLIENT. • The inspector (or inspectors) then arrives at the site to perform the required testing and inspection. • All breaks and laboratory testing is scheduled through our electronic dispatch system where notification is atomically issued to the laboratory manager to perform specific tests, such as; breaks of concrete cylinders at a schedule of 7-day, 14-day and 28-day breaks; beam breaks; masonry block breaks; prism breaks; etc. • Daily field reports are created digitally and emailed within 24 hours of completion of the test or inspection to the CLIENT. • Any test or inspection deficiencies, such as; failing compaction, concrete not reaching the required strength, concrete with high slump, cleanness of rebar, cleanness of footings, etc., will be discussed immediately with the CLIENT and recommendations/mitigation will be presented for correction. Our professionals will provide practical solutions to critical issues encountered in the field, considering both cost and technical implications. • AESCO provides a 24-hour live answering service and one of our Project Engineers is always available to answer any technical or scheduling issues. • A final certification report of all inspection services performed for specific projects will be completed within one week following completion of construction. • All laboratory reports and inspection reports are supervised, reviewed and signed by a California Licensed Professional Engineer. Civil Engineering/ Inspection # Geoteclmical Engineering Services 20 www.AescoTechnologies.com 25J-27 AESCO, Inc. Statement of Qualifications X732 Section 5 Standard Services AESCO maintains a strict Quality Control Program (QAP) AESCO is a member of, and certified by several independent certification agencies, uch AMRL, CCRL, Caltrans, the City of Los Angeles, and the City of San Diego. AESCO is also part of the yearly reference sampling program for theses agencies. These involvements ensure a rigorous training of AESCO's technicians and test method verifications. AESCO maintains current test manuals and standards. All laboratory testing and field investigations are supervised by AESCO's registered geotechnical engineer. The test results are reviewed by AESCO's project manager and principal geotechnical engineer, each of whom has 30 years of experience. Civil Engineering/ Inspection ? Geotechnical Engineering Services 21 www.AescoTechnologies.com 25J-28 EXHIBIT "c" APPENDIX C Page 1 of 2 FEE SCHEDULE Testing and Inspection Services for the City of Santa Ana Capital Improvement Projects ITV4 ESTIMATED QUANTITY UNIT HOURLY RATH/ UNIT COST* ESTIMATED COST Soil Inspection 1,000 Hours 72 72000 Concrete Inspection 1,800 Hours 72 108000 Masonry Inspection 800 Hours 72 57600 Reinforcing Steel Inspection 1,200 Hours 72 86400 Asphalt Concrete Inspection 500 Hours 72 36000 6" Concrete Cylinder 400 Units 20 8000 2x4 Mortar Sample 200 Units 20 4000 3x3x6 Grout sample 200 unite 20 4000 Masonry Prisms 150 Units 50 7500 Ultrasonic Testing of Steel Connectors 50 Each 40 2000 Post Tension Reinforcing Inspection 200 Hours 72 14400 Post Tension Concrete Inspection 200 Hours 72 14400 Structural Steel Inspection 100 Hours 72 7200 Connection Bolt Torque Testing 100 Each 25 2500 Precast Concrete 350 Hours 72 25200 Deputy Inspection 100 Hours 72 7200 Mechanical Inspection 100 Hours 72 7200 Plumbing inspection 100 Hours 72 7200 Electrical Inspection 100 Hours 72 7200 478,000 TOTAL ESTIMATED COST $ - 20 - 25J-29 S .. Firm: AESCO, Inc FEE SCHEDULE (CONTINUED) Page 2 of 2 PROPOSED NOT-TO-EXCEED COST; 474,000 Address: 17782 Georgetown Lane Huntington Beach, Ca 92647 Name Adam Chamaa PE GE Title VP (Print) APPENDIX C SignatureA J- Date 2-2-2011 *All hourly rates and unit costa uhall include markups and the cost of traveling, vehicle, equipment, clerical service and typed reports, - 21 - 25J-30 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE COOPERATIVE AGREEMENT WITH OCTA FOR PRELIMINARY ENGINEERING FOR THE SANTA ANA-GARDEN GROVE FIXED GUIDEWAY (PROJECT 092505) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15f Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached cooperative agreement with the Orange County Transportation Authority (OCTA), in an amount not to exceed $5,541,700 for project development and preliminary engineering activities for the Santa Ana-Garden Grove Fixed Guideway Project, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION On May 12, 2008, the OCTA Board allocated $5.9 million in Go Local Step Two funding to Santa Ana for planning and development of a fixed guideway system. On August 3, 2009, the City Council authorized staff to execute an agreement with the Cordoba Corporation and its team of consultants to conduct the Go Local Program Step Two technical analysis. The Step Two phase of the project, which includes conceptual engineering and environmental analysis, is on schedule to be completed in December 2011. On September 13, 2010, the OCTA Board approved funding guidelines for Measure M2's Project S and authorized OCTA staff to issue a call for projects for preliminary engineering (PE) for eligible fixed guideway projects. This call for PE initiated Step Three of Go Local process for the Santa Ana-Garden Grove and Anaheim fixed guideway projects. On November 22, 2011, the OCTA Board approved the allocation of $4,987,530 for PE to the City of Santa Ana with a required 10% local match of $554,170. This will bring the total full funding for the project including project development activities and PE to be $5,541,700 in fiscal year 2011-12. Prior to entry into the PE phase, there are certain project development activities that need to be completed to satisfy Federal Transit Administration (FTA) requirements. Such activities include items such as project and fleet management plans and a detailed FTA ridership analysis for the purpose of ridership modeling. Such tasks were not included as part of the Go Local Step Two 25K-1 Cooperative Agreement With OCTA March 7, 2011 Page 2 grant awards and scope of work. Therefore, in addition to Santa Ana's request for PE activities, the City also requested additional funds to complete these necessary tasks. This funding is included in the $5,541,700 allocation. This cooperative agreement with OCTA defines the roles and responsibilities related to funding and project delivery between OCTA and Santa Ana for pre-PE and PE activities consistent with Measure M2 as well as federal guidelines and requirements. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT Funds for the local match of 10 percent for increments of $277,085 in FY 11/12 and I Construction (accounting unit 03217660-66220, PE in the amount of $554,170 to be paid in Y 12/13 are available in Measure M Street project 092505). APPROVED AS TO FUNDS AND ACCOUNTS: r-- Raul Godinez II Francisco Gutierrez Executive Directo Executive Director Public Works Agency Finance & Management Services Agency RG/DB Exhibit 1: Cooperative Agreement 25K-2 ATTACHMENT C i COOPERATIVE AGREEMENT NO. C-1-2447 2 BETWEEN 3 ORANGE COUNTY TRANSPORTATION AUTHORITY 4 AND 5 CITY OF SANTA ANA 6 FOR 7 PRELIMINARY ENGINEERING OF THE SANTA ANA AND GARDEN GROVE FIXED GUIDEWAY s PROJECT 9 THIS AGREEMENT is effective this day of 2011, by and 10 between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184, It Orange, California 92863-1584, a public corporation of the State of California (hereinafter referred to 12 as "AUTHORITY"), and the City of Santa Ana, P.O. Box 1988. Santa Ana, California 92702, a 13 municipal corporation (hereinafter referred to as "CITY"). 14 RECITALS: 15 WHEREAS, AUTHORITY and the CITY entered into Cooperative Agreement C-8-1157 on 16 September 9, 2008, to define the specific terms and conditions, and roles and responsibilities for 17 completion of the Alternatives Analysis, conceptual engineering, detailed planning, project is management and state/federal environmental clearance for the Santa Ana/Garden Grove Fixed- 19 Guideway; and 20 WHEREAS, AUTHORITY and the CITY desire to enter into a Cooperative Agreement to 21 define the roles and responsibilities related to funding between the AUTHORITY and CITY for 22 project development activities and the Preliminary Engineering Phase (as defined in Project "S" 23 application, received by the AUTHORITY dated October 8, 2010) for the Santa Ana and Garden 24 Grove Fixed Guideway Corridor; (hereinafter referred to as "PROJECT"); and 25 / 26 Page 1 of 13 25K-3 COOPERATIVE AGREEMENT NO. C-1-2447 1 WHEREAS, the AUTHORITY's Board of Directors on November 22, 2010, approved Project 2 S funding application and funding plan providing $4,433,360 of Section 5307 transit funds (80%) and 3 $554,170 (10%) of Renewed Measure M Project S funds for the PROJECT; and 4 WHEREAS, the CITY has agreed to provide non federal funding in the amount of $554,170 5 (10%) as the required local match for the PROJECT; and 6 WHEREAS, the AUTHORITY is the designated grant recipient for Federal Transit 7 Administration (FTA) Section 5307 funds and will reimburse CITY for eligible expenditures, 8 contingent upon funds being approved by FTA: and 9 WHEREAS, AUTHORITY and CITY agree CITY must fulfill M2 eligibility requirements prior 10 to release of M2 funds; and 11 WHEREAS, CITY and AUTHORITY agree that the total full funding for the PROJECT 12 including project development activities and preliminary engineering shall be Five Million, Five 13 Hundred Forty One thousand and Seven Hundred Dollars ($5,541,700) in accordance with EXHIBIT 14 A "FUNDING PLAN", attached hereto and incorporated by reference; and 15 WHEREAS, CITY agrees to act as lead agency for said PROJECT; and 16 WHEREAS, CITY and AUTHORITY are mutually desirous of advancing PROJECT and will 17 work cooperatively to identify potential funding sources to continue that effort; and 18 WHEREAS, CITY agrees to fulfill M2 Comprehensive Transportation Funding Program 19 Guidelines and FTA funding compliance and reporting requirements; and 20 WHEREAS, CITY and AUTHORITY agree if reimbursement procedures differ between M2 21 Comprehensive Transportation Funding Program and FTA, FTA reimbursement procedures shall 22 take precedence; and 23 WHEREAS, this Cooperative Agreement defines the specific terms, conditions, and funding 24 responsibilities between AUTHORITY and CITY for completion of the PROJECT; and 25 26 Page 2 of 13 25K-4 COOPERATIVE AGREEMENT NO. C-1-2447 1 2 3 4 follows: 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WHEREAS, AUTHORITY Board of Directors approved this Cooperative Agreement on NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as ARTICLE 1. COMPLETE AGREEMENT A. This Agreement, including any exhibits and documents incorporated herein and made applicable by reference, constitute the complete and exclusive statement of the terms and conditions of this Agreement between AUTHORITY and CITY concerning funding of PROJECT. B. The above-referenced Recitals are true and correct and are incorporated by reference herein. C. AUTHORITY'S failure to insist on any instance(s) of CITY's performance of any term(s) or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY's right to such performance or to future performance of such term(s) or condition(s), and CITY's obligation in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not be binding upon AUTHORITY except when specifically confirmed in writing by an authorized representative of AUTHORITY by way of a written amendment to this Agreement and issued in accordance with the provisions of this Agreement. ARTICLE 2. RESPONSIBILITIES OF AUTHORITY AUTHORITY agrees to the following responsibilities for PROJECT: A. AUTHORITY shall formally request on behalf of the CITY that the Southern California Association of Governments (SCAG) amend the Federal Transportation Improvement Program (FTIP) to provide FTA funding to the project, whereby AUTHORITY's performance under this Agreement is contingent upon SCAG and FTA approval. B. AUTHORITY will perform oversight of the M2 and federal funds in compliance with M2 eligibility guidelines, Comprehensive Transportation Funding Program Guidelines and Federal Transit Administration (FTA) funding requirements. Page 3 of 13 25K-5 COOPERATIVE AGREEMENT NO. C-1-2447 I C. AUTHORITY shall remit to CITY within 30 days of receipt of an acceptable invoice, in 2 accordance with ARTICLE 5 REQUEST FOR REIMBURSEMENT and EXHIBIT A "FUNDING 3 PLAN", reimbursement for development activities and preliminary engineering up to ninety (90%) 4 percent of eligible M2 and Section 5307 PROJECT costs. Such PROJECT costs shall not exceed the s sum of Four Million, Nine Hundred Eighty Seven Thousand and Five Hundred Thirty Dollars 6 ($4,987,530) and are subject to authorization through the AUTHORITY's annual budget process. 7 AUTHORITY will not be obligated to pay for any amount beyond what has been identified in this Article. s D. AUTHORITY shall process any required Federal Transportation Improvement Program 9 amendments and FTA grant agreements. 10 E. AUTHORITY shall review final drafts of, and provide input to, PROJECT documents that 11 CITY prepares, or causes to be prepared, to complete PROJECT and shall provide comments within 10 12 working days of receipt of such documents. 13 F. To indemnify, defend and hold harmless CITY, its officers, directors, employees and 14 agents from and against any and all claims (including attorney's fees and reasonable expenses for is litigation or settlement) for any loss or damages, bodily injuries, including death, worker's compensation 16 subrogation claims, damage to or loss of use of property caused by the negligent acts, omissions or 17 willful misconduct by AUTHORITY, its officers, directors, employees or agents in connection with or is arising out of the performance of this Agreement. 19 ARTICLE 3. RESPONSIBILITIES OF CITY 20 CITY agrees to the following responsibilities for PROJECT: 21 A. To act as the lead agency for development activities and Preliminary Engineering (PE) 22 for the PROJECT. 23 B. To be responsible for completing all PROJECT development activities as defined by 24 FTA in EXHIBIT F "NEW STARTS PROJECT PLANNING AND DEVELOPMENT CHECKLIST OF 25 PROJECT SPONSOR SUBMITTALS TO FTA TO ENTER PRELIMINARY ENGINEERING (PE)" or 26 EXHIBIT G "SMALL STARTS/VERY SMALL STARTS REPORTING CHECKLIST", attached hereto Page 4 of 13 25K-6 COOPERATIVE AGREEMENT NO. C-1-2447 i and incorporated by reference. Preliminary Engineering/Project Development checklist requirements 2 vary depending upon if the project is eligible for New or Small Starts. CITY is responsible for meeting 3 the appropriate requirements once the appropriate federal funding program is identified pending 4 confirmation of project's capital cost. 5 C. To be responsible for completing the aforementioned development activities prior to 6 requesting entry into Preliminary Engineering from FTA. In the event FTA does not approve entry into 7 PE, AUTHORITY is not obligated to reimburse CITY for any additional PROJECT costs. s D. Upon FTA approval to enter into PE, CITY shall be responsible for completing 9 activities defined by FTA in EXHIBIT I "NEW STARTS PROJECT PLANNING AND 10 DEVELOPMENT CHECKLIST OF PROJECT SPONSOR SUBMITTALS TO FTA TO ENTER it FINAL DESIGN (FD)", attached hereto and incorporated by reference, before requesting entry into 12 Final Design (FD). 13 E. Preliminary Engineering is defined as completion of 30-50% of the design drawings 14 and specifications. At the conclusion of PE, the CITY shall complete documentation that defines the 15 required right-of-way acquisition, utility relocation, third party agreements and the preparation of final 16 construction plans (including construction management plans), detailed specifications, construction cost 17 estimates, and bid documents. The CITY shall prepare the project's final financial plan. The CITY shall is collect and analyze data needed to prepare the Before and After Study. Specifically, the PE package 19 shall include, but is not limited to: 20 1. Final Environmental Documentation 21 2. Vehicle fleet procurement strategy 22 3. 30% design completion including: 23 a. Complete alignment drawings 24 b. Complete station location drawings 25 c. 30% systems drawings including location of traction power substations 26 d. Major utility relocation mitigation plan Page 5 of 13 25K-7 COOPERATIVE AGREEMENT NO. C-1-2447 1 e. Real Estate parcel definition, Operations and Maintenance Facility 2 F. To conduct all procurement related activities for the PROJECT pursuant to CITY's 3 procurement policies and procedures and FTA requirements. 4 G. To submit to AUTHORITY for review and comment all final documents relative to the 5 procurement process including, but not limited to, the Request For Proposals (RFP) and resulting 6 agreement between the CITY and the selected entity, or entities, that shall pertain to the PROJECT. 7 CITY shall allow AUTHORITY representation on procurement selection panels. s H. To meet with AUTHORITY on a regular basis, not less than once a month, to review 9 PROJECT status and discuss any PROJECT issues. 10 I. In preparation for the required FTA Risk Assessment, the CITY shall actively participate » in a one-day workshop with the AUTHORITY to conduct a Preliminary Project Risk Assessment. 12 J. To be responsible for submitting quarterly reports as specified in EXHIBIT E "FTA 5307 13 QUARTERLY REPORT FORM", attached hereto and incorporated by reference, for the PROJECT 14 due on April 15, August 15, October 15 and January 15 of each year. 15 K. To be responsible for abiding by all FTA 5307 Section guidelines, and any and all other 16 applicable federal, state, or local requirements or laws. The CITY shall comply with the sub-recipient 17 monitoring process (Exhibit J) performed by the AUTHORITY and/or the AUTHORITY's designee. is L. To maintain and provide to the AUTHORITY upon request: 19 a. Signature to the annual FTA certifications and assurances. 20 b. An annual FTA Compliance Self-Certification; 21 b. Notification to beneficiaries of protection under Title VI; 22 c. Title VI complaint procedure; 23 d. Meaningful access to limited-English persons (LEP), low-income and minority 24 persons. 25 M. To comply with all FTA third party procurement and contracting laws and regulations 26 and include EXHIBIT B "REQUIRED FEDERAL CLAUSES", attached hereto and incorporated by Page 6 of 13 25K-8 COOPERATIVE AGREEMENT NO. C-1-2447 I reference, in all third party contracts. 2 N. To agree that M2 funding is subject to CITY meeting M2 eligibility requirements. 3 O. To be responsible for completing the PROJECT in accordance with EXHIBIT A 4 "FUNDING PLAN", timely use of funds requirements, FTA guidelines, and any and all other 5 requirements of the federal, state, or local agency requirements for FTA Section 5307 Funding and M2 6 Funding programs. 7 P. To be responsible for immediately notifying the AUTHORITY in writing of any changes to s the PROJECT schedule that would jeopardize funding of the PROJECT. 9 Q. To agree that the overall budget for this PROJECT is a not-to-exceed amount of Five 10 Million Five Hundred Forty One thousand and Seven Hundred Dollars ($5,541,700) and CITY shall be 11 the responsible for any cost overruns. 12 R. To contribute at least 10% of PROJECT costs as the required local contribution of 13 matching funds (other than Federal Funds), as specified in EXHIBIT A "FUNDING PLAN", toward 14 the actual costs of PROJECT. 15 S. To indemnify, defend and hold harmless AUTHORITY, its officers, directors, 16 employees and agents from and against any and all claims (including attorney's fees and reasonable 17 expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, is worker's compensation subrogation claims, damage to or loss of use of property caused by the 19 negligent acts, omissions or willful misconduct by CITY, its officers, directors, employees or agents 20 in connection with or arising out of the performance of this Agreement. 21 ARTICLE 4. IT IS MUTUALLY UNDERSTOOD AND AGREED 22 All parties agree to the following mutual responsibilities regarding PROJECT: 23 A. Given the importance of ensuring PROJECT maintains eligibility for current and future 24 federal funding, AUTHORITY shall retain the right to be involved in the review of, provide input to, 25 and have final approval of all PROJECT documents that are submitted to FTA. 26 B. AUTHORITY shall retain the right to have their representatives be an integral and on- Page 7 of 13 25K-9 COOPERATIVE AGREEMENT NO. C-1-2447 1 going part of PROJECT reviews, and these representatives shall have the right to provide comment. 2 If comments are not accepted by CITY, AUTHORITY and CITY shall convene a meeting as soon as 3 possible to resolve any issues so as to not delay the further development of the PROJECT. Both 4 parties have the right to include any members of their consultant teams as appropriate to resolve the s particular PROJECT issue. 6 C. The above on-going responsibilities entitle AUTHORITY, and any of their designated 7 consultants, the opportunity to: attend monthly coordination meetings, have final draft Project s materials sent to them in a timely manner so as to be able to provide meaningful input, and have 9 iterative review and comment opportunity as warranted by the process. 10 D. AUTHORITY shall not be obligated to reimburse CITY for Preliminary Engineering tl costs if FTA does not approve PROJECT's entry into Preliminary Engineering. 12 ARTICLE 5. REQUEST FOR REIMBURSEMENT 13 A. CITY shall prepare and submit to AUTHORITY an invoice every 30 days as specified 14 in EXHIBIT C, "INVOICE TEMPLATE" and supporting documentation as specified in EXHIBIT D, 15 "FTA FUNDING REIMBURSEMENT - REQUIRED SUPPORTING DOCUMENTS" of this 16 Agreement, both of which are attached hereto and incorporated by reference. CITY's invoice shall 17 include allowable PROJECT costs incurred and paid for by CITY. The invoice submitted by CITY is shall be signed by an authorized agent who can duly certify the accuracy of the included information. 19 Advance payments by AUTHORITY are not allowed. 20 B. The invoice shall be submitted on CITY's letterhead. 21 C. The invoice shall be submitted by CITY and in duplicate to AUTHORITY's Accounts 22 Payable Office. Each invoice shall include the following information: 23 1. Agreement Number C-1-2447; 24 2. Support documentation for all expenses invoiced. 25 3. Adequate detail describing all work completed by phase as identified in 26 EXHIBIT A, "FUNDING PLAN." Page 8 of 13 25K-10 COOPERATIVE AGREEMENT NO. C-1-2447 1 4. Such other information as requested by AUTHORITY. 2 D. Eligible Project costs are described in the Federal Grant and in the FTA guidelines. 3 E. CITY shall consult with AUTHORITY's Project Manager for questions regarding non- 4 reimbursable expenses. 5 F. Total payments shall not exceed the Funding Amount specified in ARTICLE 2 6 RESPONSIBILITIES OF AUTHORITY, Paragraph C, above. No invoice shall be processed by 7 AUTHORITY after the Federal Grant termination date. s G. If any FTA Section 5307 funded amounts paid to CITY are disallowed or not 9 reimbursed by the FTA for any City violation of said FTA Section 5307, CITY shall remit to 10 AUTHORITY the disallowed or non-reimbursed amount(s) within 30 days from receipt of ti AUTHORITY's notice. All payments made by AUTHORITY hereunder are subject to the audit 12 provisions contained herein and within the Federal Grant. 13 ARTICLE 6. AVAILABILITY OF FUNDS 14 This Agreement will allow AUTHORITY to reimburse the CITY with Federal Funds from the 15 Federal Grant to CITY. The Federal Funds are subject to the terms and conditions of this 16 Agreement, the Federal Grant, and the applicable requirements of AUTHORITY and the FTA. This 17 Agreement neither implies nor obligates any funding commitment by AUTHORITY as specified in is EXHIBIT A, "FUNDING PLAN". All funds are contingent upon federal appropriation, the FTA's 19 approval of a grant application, and FTA's approval for the PROJECT to enter into Preliminary 20 Engineering. If a Letter of No Prejudice is issued by the FTA, CITY shall assume all the risk of 21 spending the Local Match early on in the Project. 22 ARTICLE 7. DELEGATED AUTHORITY 23 The actions required to be taken by CITY in the implementation of this Agreement are 24 delegated to its or his designee and the actions required to be taken by 25 AUTHORITY in the implementation of this Agreement are delegated to its Chief Executive Officer. 26 ARTICLE 8. AUDIT AND INSPECTION Page 9 of 13 25K-11 COOPERATIVE AGREEMENT NO. C-1-2447 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CITY shall maintain a complete set of records in accordance with generally accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized representatives of AUTHORITY to inspect and audit all work, materials, payroll, books, accounts and other data and records of CITY for a period of four (4) years after final payment, or until any on-going audit is completed. AUTHORITY shall also have the right to reproduce any such books, records and accounts. Contracts with CITY's contractors shall include the above provision with respect to audits. ARTICLE 9. ADDITIONAL PROVISIONS All parties agree to the following mutual responsibilities regarding PROJECT: A. Term of Agreement: This Agreement shall continue in full force and effect through October 31, 2014. This Agreement may only be extended upon mutual agreement by both parties. B. Termination: Either party may initiate proceedings to terminate this Agreement by giving thirty (30) days written notice; however, this Agreement shall not be terminated without mutual agreement of both parties. C. Compliance: AUTHORITY and CITY shall comply with all applicable federal, state, and local laws, statutes, ordinances, and regulations of any governmental authority having jurisdiction over the PROJECT. D. Legal Authority: AUTHORITY and CITY hereto consent that they are authorized to execute this Agreement on behalf of said parties and that, by so executing this Agreement, the parties hereto are formally bound to the provisions of this Agreement. E. Amendments: This Agreement may be amended in writing at any time by the mutual consent of both parties. No amendment shall have any force or effect unless executed in writing by both parties. F. Notices: All notices hereunder and communications regarding the interpretation of the terms of this Agreement, or changes thereto, shall be effected by delivery of said notices in person or by depositing said notices in the U.S. mail, registered, or certified mail and addressed as follows: To CITY: To AUTHORITY: Page 10 of 13 25K-12 COOPERATIVE AGREEMENT NO. C-1-2447 1 2 3 4 _5 6 7 a 9 10 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 26 City of Santa Ana Orange County Transportation Authority P.O. Box 1988 550 South Main Street Santa Ana, CA 92702 P. O. Box 14184 Orange, CA 92863-1584 Attention: Raul Godinez Attention: Grant Gager Executive Director, Public Works Contract Administrator cc: Kelly Hart, Project Manager Tel: (714) Tel: (714) 560-5743; Fax: (714) 560-5792 Email: Email: ggager@octa.net G. Headings: The headings of all sections of this Agreement are inserted solely for the convenience of reference and are not part of and not intended to govern, limit or aid in the construction or interpretation of any terms or provision thereof. H. Successors and Assigns: The provisions of this Agreement shall bind and inure to the benefit of each of the parties hereto and all successors or assigns of the parties hereto. 1. Severability: If any term, provision, covenant or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder to this Agreement shall not be affected thereby, and each term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. J. Counterparts of Agreement: This Agreement may be executed and delivered in any number of counterparts, each of which, when executed and delivered shall be deemed an original and all of which together shall constitute the same agreement. Facsimile signatures will be permitted. K. Force Maieure: Either party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by an unforeseeable cause beyond its control, including but not limited to: any incidence of fire, flood; acts of God; Page 11 of 13 25K-13 COOPERATIVE AGREEMENT NO. C-1-2447 1 commandeering of material, products, plants or facilities by the federal, state or local government; 2 national fuel shortage; or a material act or omission by the other party; when satisfactory evidence of 3 such cause is presented to the other party, and provided further that such nonperformance is 4 unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing. 5 L. Assignment: Neither this Agreement, nor any of the Parties rights, obligations, duties, or 6 authority hereunder may be assigned in whole or in part by either Party without the prior written consent 7 of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be deemed s void and of no force and effect. Consent to one assignment shall not be deemed consent to any 9 subsequent assignment, nor the waiver of any right to consent to such subsequent assignment. 10 M. Obligations to Comply with Law: Nothing herein shall be deemed nor construed to 11 authorize or require any Party to issue bonds, notes, or other evidences of indebtedness under the 12 terms, in amounts, or for purposes other than as authorized by local, state, or federal law. 13 N. Governing Law: The laws of the State of California and applicable local and federal 14 laws, regulations, and guidelines shall govern this Agreement. 15 O. Litigation Fees: Should litigation arise out of this Agreement for the performance thereof, 16 each party shall be responsible for its own costs and expenses, including attorney's fees. 17 This Agreement shall be effective upon execution by both parties. 1s 19 20 21 22 23 24 25 26 Page 12 of 13 25K-14 COOPERATIVE AGREEMENT NO. C-1-2447 IN WITNESS WHEREOF, the parties hereto have caused this Cooperative Agreement No. C-1-2447 to be executed on the date first above written. CITY OF SANTA ANA Bv: David Ream City Manager ATTEST: Bv: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: BY: Joe Straka Interim City Attorney Dated: ORANGE COUNTY TRANSPORTATION AUTHORITY Bv: Will Kempton Chief Executive Officer APPROVED AS TO FORM: By: Kennard R. Smart, Jr. General Counsel APPROVAL RECOMMENDED: BY: Kia Mortazavi Executive Director, Planning Dated: Page 13 of 13 25K-15 25K-16 ti F- N m UX Ow z F- Z w 2 w w w c!) w H w a O U Z J a ' V _Z 0 Z M U. d •? U ? U ? ? LL d C C C N Ri -p 'C U O N 'C U O 0 i ? t Q Q N c c c Q E CD O a) (U L co N ca L O Q. N cu C m a) C Q) a) C C 0 . ? ? o Q a) C ) ; a ' Cl) Q aw Q aw Q aw U LL O c O M O ? O n E (6 (0 C6 00 d O i co co 00 Q 69} V- L 69 rn IT W) M 6F} EA C C LL C C ? LL ,a N N N N N N L ? r r r r r r ? r r r r r r }? r' r r r r r Q V N LL d L 0 ai a) C) LO C) LO 'O -p F_ = OL LO C C c J a_ d- O O LL LL LL N N N +?. (n Cl) U U () O C O O LL N c a) E E O U a) I 0 m N 25K-17 25K-18 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B REQUIRED FEDERAL CLAUSES DEFINITIONS The Orange County Transportation Authority, (hereinafter referred to as "AUTHORITY") ., (hereinafter referred to as "CITY"). The following provisions apply to all purchases regardless of its value: ARTICLE 1. FEDERAL CHANGES CITY shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the agreement between the AUTHORITY and FTA, as they may be amended or promulgated from time to time during this Agreement. CITY's failure to comply shall constitute a material breach of contract. ARTICLE 2. NO FEDERAL GOVERNMENT OBLIGATION TO THIRD PARTIES AUTHORITY and CITY acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Agreement, absent the express written consent by the Federal Government, the Federal Government is not a party to this Agreement and shall not be subject to any obligations or liabilities to the AUTHORITY, CITY, or any other party (whether or not a party to this Agreement) pertaining to any matter resulting from the underlying Agreement. CITY agrees to include these requirements in all of its subcontracts. ARTICLE 3. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS A. CITY acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §§3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this project. Accordingly, by signing this Agreement, CITY certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying Agreement of the FTA assisted project for which this Agreement's work is being performed. CITY also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose penalties of the Program Fraud Civil Remedies Act of 1986 on the CITY to the extent the Federal Government deems appropriate. B. CITY also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under an Orange County Transportation Authority 1 Revised: 05/10/2010 25K-1 9 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B agreement connected with a project that is financed in whole or part with Federal assistance awarded by FTA under the authority of 49 U.S.C. §5307 et seq., the Government reserves the right to impose the penalties of 18 U.S.C. §1001 and 49 U.S.C. §5307(n) (1) et seq. on the CITY, to the extent the Federal Government deems appropriate. CITY agrees to include this requirement in all of its subcontracts. ARTICLE 4. CIVIL RIGHTS ASSURANCE During the performance of this Agreement, CITY, for itself, its assignees and successors in interest agree as follows: A. Compliance with Regulations: CITY shall comply with the Regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Agreement. B. Nondiscrimination: CITY, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The CITY shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers a program set forth in Appendix B of the Regulations. C. Solicitations for Subcontracts, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the CITY for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the CITY of the CITY's obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. D. Information and Reports: CITY shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the AUTHORITY to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a CITY is in the exclusive possession of another who fails or refuses to furnish this information the CITY shall so certify to the AUTHORITY as appropriate, and shall set forth what efforts it has made to obtain the information. E. Sanctions for Noncompliance: In the event of the CITY's noncompliance with nondiscrimination provisions of this Agreement, the AUTHORITY shall impose Agreement sanctions as it may determine to be appropriate, including, but not limited to: 1. Withholding of payments to the CITY under the Agreement until the CITY complies; and/or 2. Cancellation, termination, or suspension of the Agreement, in whole or in part. F. Title VI of the Civil Rights Act. In determining the types of property or services to acquire, no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity receiving Federal financial assistance in violation of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sections 2000d et seq. and DOT regulations, "Nondiscrimination in Federally Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964," 49 CFR Part 21. In addition, FTA Circular 4702.1, "Title VI and Title VI-Dependent Guidelines for FTA Recipients," 05-13-07, provides FTA guidance and instructions for implementing DOT's Title VI regulations. Orange County Transportation Authority 2 Revised: 05/10/2010 25K-20 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B G. The Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. Sections 12101 et seq., prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities, as well as imposes specific requirements on public and private providers of transportation. H. Incorporation of Provisions: CITY shall include the provisions of paragraphs (A) through (H) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The CITY shall take such action with respect to any subcontract or procurement as the AUTHORITY may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event a CITY becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the CITY may request the AUTHORITY to enter into such litigation to protect the interests of the AUTHORITY, and, in addition, the CITY may request the United States to enter into such litigation to protect the interests of the United States. ARTICLE 5. DISADVANTAGED BUSINESS ENTERPRISES A. In accordance with federal financial assistance agreements with the U.S. Department of Transportation (U.S. DOT), the Orange County Transportation Authority (AUTHORITY) has adopted a Disadvantaged Business Enterprise (DBE) Policy and Program, in conformance with Title 49 CFR Part 26, "Participation by Disadvantaged Business Enterprises in Department of Transportation Programs". The project is subject to these stipulated regulations. In order to ensure that the Authority achieves its overall DBE Program goals and objectives, the Authority encourages the participation of DBEs as defined in 49 CFR 26 in the performance of contracts financed in whole or in part with U.S. DOT funds. Pursuant to the intent of these Regulations, it is also the policy of the Authority to: 1. Fulfill the spirit and intent of the Federal DBE Program regulations published under U.S. DOT Title 49 CFR, Part 26, by ensuring that DBEs have equitable access to participate in all of Authority's DOT-assisted contracting opportunities. 2. Ensure that DBEs can fairly compete for and perform on all DOT-assisted contracts and subcontracts. 3. Ensure non-discrimination in the award and administration of AUTHORITY's DOT-assisted contracts. 4. Create a level playing field on which DBEs can compete fairly for DOT-assisted contracts. 5. Ensure that only firms that fully meet 49 CFR, Part 26 eligibility standards are permitted to participate as DBEs. 6. Help remove barriers to the participation of DBEs in DOT-assisted contracts. 7. Assist in the development of firms that can compete successfully in the marketplace outside the DBE Program. B. CITY shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of subcontracts. Any terms used in this section that are defined in 49 CFR Part 26, or elsewhere in the Regulations, shall have the meaning set forth in the Regulations. In the event of any conflicts or inconsistencies between the Regulations and the Authority's DBE Program with respect to DOT-assisted contracts, the Regulations shall prevail. C. AUTHORITY's New Race-Neutral DBE Policy Implementation Directives: Pursuant to recently released Race-Neutral DBE policy directives issued by the U.S. DOT in response to the Ninth Circuit U.S. Court of Appeals decision in Western States Paving Co. v. Washington State Department of Transportation, the Authority has implemented a wholly Race-Neutral DBE Program. Orange County Transportation Authority 3 Revised: 05/10/2010 25K-21 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B A Race-Neutral DBE Program is one that, while benefiting DBEs, is not solely focused on DBE firms. Therefore, under a Race-Neutral DBE Program, AUTHORITY does not establish numeric race-conscious DBE participation goals on its DOT-assisted contracts. CITY shall not be required to achieve a specific level of DBE participation as a condition of contract compliance in the performance of this DOT-assisted contract. However, CITY shall adhere to race-neutral DBE participation commitment(s) made at the time of contract award. D. Definitions: The following definitions apply to the terms as used in these provisions: 1. "Disadvantaged Business Enterprise (DBE)" means a small business concern: (a) which is at least 51 percent owned by one or more socially and economically disadvantaged individuals or, in the case of any publicly-owned business, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and (b) whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. 2. "Small Business Concern" means a small business as defined pursuant to Section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto, except that a small business concern shall not include any concern or group of concerns controlled by the same socially and economically disadvantaged individual or individuals which has annual average gross receipts in excess of $19.57 million over the previous three fiscal years. 3. "Socially and Economically Disadvantaged Individuals" means those individuals who are citizens of the United States (or lawfully admitted permanent residents) and who are Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, or Asian- Indian Americans, women and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to Section 8(a) of the Small Business Act, or by the Authority pursuant to 49 CFR part 26.65. Members of the following groups are presumed to be socially and economically disadvantaged: a. "Black Americans," which includes persons having origins in any of the Black racial groups of Africa; b. "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; c. "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; d. "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific, and the Northern Marianas; e. "Asian-Indian Americans," which includes persons whose origins are from India, Pakistan, and Bangladesh; and f. Women, regardless of ethnicity or race. 4. "Owned and Controlled" means a business: (a) which is at least 51 percent owned by one or more "Socially and Economically Disadvantaged Individuals" or, in the case of a publicly-owned business, at least 51 percent of the stock of which is owned by one or more "Socially and Economically Disadvantaged Individuals"; and (b) whose management and daily business operations are controlled by one or more such individuals. 5. "Manufacturer" means a firm that operates or maintains a factory or establishment that produces on the premises the materials or supplies obtained by the CITY. 6. "Regular Dealer" means a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials or supplies required for the performance of the contract are bought, kept in stock, and regularly sold to the public in the usual Orange County Transportation Authority 4 Revised. 0511012010 25K-22 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B course of business. The firm must engage in, as its principal business, and in its own name, the purchase and sale of the product in question. A regular dealer in such bulk items as steel, cement, gravel, stone and petroleum products need not keep such products in stock if it owns or operates distribution equipment. 7. "Other Socially and Economically Disadvantaged Individuals" means those individuals who are citizens of the United States (or lawfully admitted permanent residents) and who, on a case-by-case basis, are determined by Small Business Administration or AUTHORITY to meet the social and economic disadvantage criteria described below. a. Social Disadvantage: The individual's social disadvantage must stem from his/her color, national origin, gender, physical handicap, long-term residence in an environment isolated from the mainstream of American society, or other similar cause beyond the individual's control. i. The individual must demonstrate that he/she has personally suffered social disadvantage. ii. The individual's social disadvantage must be rooted in treatment, which he/she has experienced in American society, not in other countries. iii The individual's social disadvantage must be chronic, longstanding and substantial, not fleeting or insignificant. iv. The individual's social disadvantage must have negatively affected his/her entry into and/or advancement in the business world. v. A determination of social disadvantage must be made before proceeding to make a determination of economic disadvantage. b. Economic Disadvantage i. The individual's ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities, as compared to others in the same line of business and competitive market area that are not socially disadvantaged. ii. The following criteria will be considered when determining the degree of diminished credit and capital opportunities of a person claiming social and economic disadvantage: With respect to the individual: • availability of financing • bonding capability • availability of outside equity capital • available markets With respect to the individual and the business concern: • personal and business assets • personal and business net worth • personal and business income and profits E. Race-Neutral DBE Submission and Ongoing Reporting Requirements (Post- Award). CITY shall complete and submit the following DBE exhibits (forms) at the times specified: "Monthly Race-Neutral DBE Subcontractors Paid Report Summary and Payment Verification" (Form 103). If CITY is a DBE firm and/or has proposed to utilize DBE firms, CITY will be required to complete and submit a Form 103 to AUTHORITY by the 10th of each month until completion of the contract to facilitate reporting of race-neutral DBE participation, following the first month of contract activity. CITY shall report the total dollar value paid to DBEs for the applicable reporting period. CITY shall also report the DBE's scope of work and the total subcontract value of commitment for each DBE reported. CITY is advised not to report the participation of DBEs toward CITY's race-neutral DBE attainment until the amount Orange County Transportation Authority 5 Revised: 05/10/2010 25K-23 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B being counted has been paid to the DBE. Upon completion of the contract, CITY will be required to prepare and submit to the Authority a "Race-Neutral DBE Subcontractors Paid Report Summary and Payment Verification" (Form 103) clearly marked "Final" to facilitate reporting and capturing actual DBE race-neutral attainments. CITY shall complete and submit a Final Form 103 whether or not DBEs were utilized in the performance of the contract. F. DBE Eligibility and Commercially Useful Function Standards: A DBE must be a small business concern as defined pursuant to Section 3 of the U.S. Small Business Act and relevant regulations promulgated pursuant thereto. A DBE may participate as a prime contractor, subcontractor, joint venture partner with a prime or subcontractor, vendor of material or supplies, or as a trucking company. A DBE joint venture partner must be responsible for specific contract items of work, or clearly defined portions thereof. Responsibility means actually performing, managing and supervising the work with its own forces. The DBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint venture commensurate with its ownership interest. A DBE must perform a commercially useful function in accordance with 49 CFR 26.55 (i.e., must be responsible for the execution of a distinct element of the work and must cant' out its responsibility by actually performing, managing and supervising the work). A DBE should perform at least thirty percent (30%) of the total cost of its contract with its own workforce to presume it is performing a commercially useful function. DBEs must be certified by the California Unified Certification Program (CUCP). Listings of DBEs certified by the CUCP are available from the following sources: The CUCP web site, which can be accessed at http://www.californiaucp.com; or the Caltrans "Civil Rights" web site at http://www.dot.ca.gov/hq/bep. The CUCP DBE Directory, which may be obtained from the Department of Transportation, Material Operations Branch, Publication Distribution Unit, 1900 Royal Oaks Drive, Sacramento, California 95815; Telephone: (916) 445-3520. G. DBE Crediting Provisions: When a DBE is proposed to participate in the contract, either as a prime CITY or Subcontractor, only the value of the work proposed to be performed by the DBE with its own forces may be counted towards race-neutral DBE participation. If CITY is a DBE joint venture participant, only the DBE proportionate interest in the joint venture shall be counted. If a DBE intends to subcontract part of the work of its subcontract to a lower tier Subcontractor, the value of the subcontracted work may be counted toward race-neutral DBE participation only if the DBE Subcontractor is a certified DBE and actually performs the work with their own forces. Services subcontracted to a non-DBE firm may not be credited toward the prime Contractor's race-neutral DBE attainment. CITY is to calculate and credit participation by eligible DBE vendors of equipment, materials, and suppliers toward race-neutral DBE attainment, as follows: Sixty percent (60%) of expenditure(s) for equipment, materials and supplies required under the Contract, obtained from a regular dealer; or One hundred percent (100%) of expenditure(s) for equipment, materials and supplies required under the Contract, obtained from a DBE manufacturer. The following types of fees or commissions paid to DBE Subcontractors, Brokers, and Packagers may be credited toward the prime CITY's race-neutral DBE attainment, provided that the fee or commission is reasonable, and not excessive, as compared with fees or commissions customarily allowed for similar work, including: Fees and commissions charged for providing bona fide professional or technical services, or procurement of essential personnel, facilities, equipment, materials, or supplies required in the performance of the Contract; Fees charged for delivery of material and supplies (excluding the cost of materials or supplies themselves) when the licensed hauler, trucker, or delivery service is not also the manufacturer of, or a regular dealer in, the material and supplies; Fees and commissions charged for providing any insurance specifically required in the performance of the Contract. CITY may count the participation of DBE trucking companies toward race-neutral DBE attainment, as follows: The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract. The DBE must itself own and operate at least Orange County Transportation Authority 6 Revised: 05/10/2010 25K-24 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B one fully licensed, insured, and operational truck used on the Contract. The DBE receives credit for the total value of the transportation services it provides on the contract using trucks it owns, insures, and operates using drivers it employs. The DBE may lease trucks from another DBE firm, including an owner-operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the contract. The DBE may also lease trucks from a non-DBE firm, including an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit only for the fee or commission it receives as a result of the lease arrangement. The DBE does not receive credit for the total value of the transportation services provided by the lessee, since these services are not provided by a DBE. For purposes of this paragraph, a lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE. If CITY listed a non-certified DBE 1St tier subcontractor to perform work on this contract, and the non-certified DBE subcontractor subcontracts a part of its work or purchases materials and/or supplies from a lower tier DBE certified Subcontractor or Vendor, the value of work performed by the lower tier DBE firm's own forces can be counted toward race-neutral DBE participation on the contract. H. Performance of DBE Subcontractors: DBE subcontractors listed by CITY in its "DBE Race-Neutral Participation Listing" (Exhibit D-2) submitted at the time of proposal submittal shall perform the work and supply the materials for which they are listed, unless the CITY has received prior written authorization from the Authority to perform the work with other forces or to obtain the materials from other sources. CITY shall provide written notification to the AUTHORITY in a timely manner of any changes to its anticipated DBE participation. This notice should be provided prior to the commencement of that portion of the work. I. Additional DBE Subcontractors: In the event CITY identifies additional DBE subcontractors or suppliers not previously identified by CITY for race-neutral DBE participation under the contract, CITY shall notify the Authority by submitting "Request for Additional DBE Firm" to enable CITY to capture all race-neutral DBE participation. CITY shall also submit, for each DBE identified after contract execution, a written confirmation from the DBE acknowledging that it is participating in the contract for a specified value, including the corresponding scope of work (a subcontract agreement can serve in lieu of the written confirmation). J. DBE Certification Status: If a listed DBE subcontractor is decertified during the life of the project, the decertified subcontractor shall notify CITY in writing with the date of decertification. If a non-DBE subcontractor becomes a certified DBE during the life of the project, the DBE subcontractor shall notify CITY in writing with the date of certification. CITY shall furnish the written documentation to AUTHORITY in a timely manner. K. CITY's Assurance Clause Regarding Non-Discrimination: In compliance with State and Federal anti-discrimination laws, CITY shall affirm that they will not exclude or discriminate on the basis of race, color, national origin, or sex in consideration of contract award opportunities. Further, CITY shall affirm that they will consider, and utilize subcontractors and vendors, in a manner consistent with non-discrimination objectives. ARTICLE 6. ACCESS TO RECORDS AND REPORTS CITY shall provide AUTHORITY, the U.S. Department of Transportation (DOT), the Comptroller General of the United States, or other agents of AUTHORITY, such access to CITY's accounting books, records, payroll documents and facilities of the CITY which are directly Orange County Transportation Authority 7 Revised: 0511012010 25K-25 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B pertinent to this Agreement for the purposes of examining, auditing and inspecting all accounting books, records, work data, documents and activities related hereto. CITY shall maintain such books, records; data and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during CITY's performance hereunder and for a period of four (4) years from the date of final payment by AUTHORITY. AUTHORITY's right to audit books and records directly related to this Agreement shall also extend to all first-tier subcontractors identified in this Agreement. CITY shall permit any of the foregoing parties to reproduce documents by any means whatsoever or to copy excerpts and transcriptions as reasonably necessary. ARTICLE 7. INCORPORATION OF FTA TERMS All contractual provisions required by Department of Transportation (DOT), whether or not expressly set forth in this document, as set forth in Federal Transit Administration (FTA) Circular 4220.1 F, as amended, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. CITY shall not perform any act, fail to perform any act, or refuse to comply with any requests, which would cause AUTHORITY to be in violation of the FTA terms and conditions. ARTICLE 8. ENERGY CONSERVATION REQUIREMENTS CITY shall comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy Conservation Act. ARTICLE 9. FLY AMERICA REQUIREMENTS CITY agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that recipients and sub-recipient of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. CITY shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. CITY agrees to include the requirements of this section in all subcontracts that may involve international air transportation. ARTICLE 10. TRANSPORTATION OF EQUIPMENT. MATERIALS OR COMMODITIES BY OCEAN VESSEL A. CITY shall utilize privately owned United States-flag commercial vessels to ship at least 50% of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners and Orange County Transportation Authority 8 Revised: 05/10/2010 25K-26 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B tankers) involved, whenever shipping any equipment, materials or commodities pursuant to this section, to the extent such vessels are available at fair and reasonable rates for United States- flag commercial vessels. B. CITY shall furnish within twenty (20) working days following the date of loading for shipments originating within the United States, or within thirty (30) working days following the date of loading for shipping originating outside the United States, a legible copy of a rated, "on- board" commercial ocean bill-of lading in English for each shipment of cargo described in paragraph A of this Article to AUTHORITY (through the prime CITY in the case of subcontractor bills-of-lading) and to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590, marked with appropriate identification of the project. ARTICLE 11. PROHIBITED INTERESTS A. CITY covenants that, for the term of this Agreement, no director, member, officer or employee of AUTHORITY during his/her tenure in office or for one (1) year thereafter, shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. B. No member of or delegate to, the Congress of the United States shall have any interest, direct or indirect, in this Agreement or to the benefits thereof. ARTICLE 12. NOT USED THIS AGREEMENT ARTICLE 13. PRIVACY ACT CITY shall comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. §552a. Among other things, CITY agrees to obtain the express consent of the Federal Government before the CITY or its employees operate a system of records on behalf of the Federal Government. CITY understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying Agreement. ARTICLE 14. CONFLICT OF INTEREST CITY agrees to avoid organizational conflicts of interest. An organizational conflict of interest means that due to other activities, relationships or contracts, the CITY is unable, or potentially unable to render impartial assistance or advice to the Authority; CITY's objectivity in performing the work identified in the Scope of Work is or might be otherwise impaired; or the CITY has an unfair competitive advantage. CITY is obligated to fully disclose to the AUTHORITY in writing Conflict of Interest issues as soon as they are known to the CITY. CITY is obligated to fully disclose to the AUTHORITY in writing Conflict of Interest issues as soon as they are known to the CITY. All disclosures must be submitted in writing to AUTHORITY pursuant to the Notice provision herein. This disclosure requirement is for the entire term of this Agreement. ARTICLE 15. CODE OF CONDUCT Orange County Transportation Authority 9 Revised: 05/10/2010 25K-27 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B CITY agrees to comply with the AUTHORITY's Code of Conduct as it relates to Third Party contracts which is hereby referenced and by this reference is incorporated herein. CITY agrees to include these requirements in all of its subcontracts. ARTICLE 16. PROTEST PROCEDURES The Authority has on file a set of written protest procedures applicable to this solicitation that may be obtained by contacting the Contract Administrator/Buyer responsible for this procurement. Any protest filed by the vendor in connection with this solicitation must be submitted in accordance with the Authority's written procedures. The following additional provisions apply to all purchases over $10,000 ARTICLE 17. TERMINATION A. AUTHORITY may terminate this Agreement for its convenience at any time, in whole or part, by giving CITY written notice thereof. Upon termination, AUTHORITY shall pay CITY its allowable costs incurred to date of that portion terminated. Said termination shall be construed in accordance with the provisions of CFR Title 48, Chapter 1, Part 49, of the Federal Acquisition Regulation (FAR) and specific subparts and other provisions thereof applicable to termination for convenience. If AUTHORITY sees fit to terminate this Agreement for convenience, said notice shall be given to CITY in accordance with the provisions of the FAR referenced above. Upon receipt of said notification, CITY agrees to comply with all applicable provisions of the FAR pertaining to termination for convenience. B. AUTHORITY may terminate this Agreement for CITY's default if a federal or state proceeding for the relief of debtors is undertaken by or against CITY, or if CITY makes an assignment for the benefit of creditors, or for cause if CITY fails to perform in accordance with the scope of work or breaches any term(s) or violates any provision(s) of this Agreement and does not cure such breach or violation within ten (10) calendar days after written notice thereof by AUTHORITY. CITY shall be liable for any and all reasonable costs incurred by AUTHORITY as a result of such default or breach including, but not limited to, reprocurement costs of the same or similar services defaulted by CITY under this Agreement. Such termination shall comply with CFR Title 48, Chapter 1, Part 49, of the FAR. ARTICLE 18. RECYCLED PRODUCTS CITY shall comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in subpart B of 40 CFR Part 247. CITY agrees to include this requirement in all of its subcontracts. The following additional provisions apply to all purchases over $25,000 ARTICLE 19. DEBARMENT & SUSPENSION: CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY MATTERS - PRIMARY PARTICIPANT AND LOWER-TIER PARTICIPANTS Orange County Transportation Authority 10 Revised: 0511012010 25K-28 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B Unless otherwise permitted by law, any person or firm that is debarred, suspended, or voluntarily excluded, as defined in the Federal Transit Administration (FTA) Circular 2015.1, dated April 28, 1989, may not take part in any federally funded transaction, either as a participant or a principal, during the period of debarment, suspension, or voluntary exclusion. Accordingly, the Authority, acting on behalf of the District, may not enter into any transaction with such debarred, suspended, or voluntarily excluded persons or firms during such period. A certification process has been established by 49 CFR Part 29, as a means to ensure that debarred suspended or voluntarily excluded persons or firms do not participate in Federally assisted projects. The inability to provide the required certification will not necessarily result in denial of participation in a covered transaction. A person or firm that is unable to provide a positive certification as required by this solicitation must submit a complete explanation attached to the certification. FTA will consider the certification and any accompanying explanation in determining whether or not to provide assistance for the project. Failure to furnish a certification or an explanation may disqualify that person or firm from participating in the project. The following additional provisions apply to all purchases over $100,000: ARTICLE 20. DISPUTES A. Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which is not disposed of by supplemental agreement shall be decided by AUTHORITY's Director, Contracts Administration and Materials Management (CAMM), who shall reduce the decision to writing and mail or otherwise furnish a copy thereof to CITY. The decision of the Director, CAMM, shall be final and conclusive. B. The provisions of this Article shall not be pleaded in any suit involving a question of fact arising under this Agreement as limiting judicial review of any such decision to cases where fraud by such official or his representative or board is alleged, provided, however, that any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith or is not supported by substantial evidence. In connection with any appeal proceeding under this Article, CITY shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. C. Pending final decision of a dispute hereunder, CITY shall proceed diligently with the performance of this Agreement and in accordance with the decision of AUTHORITY's Director, CAMM. This "Disputes" clause does not preclude consideration of questions of law in connection with decisions provided for above. Nothing in this Agreement, however, shall be construed as making final the decision of any AUTHORITY official or representative on a question of law, which questions shall be settled in accordance with the laws of the state of California. ARTICLE 21. CLEAN WATER REQUIREMENTS CITY shall comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. CITY shall report each violation to AUTHORITY and understands and agrees that the AUTHORITY who will in turn, report each violation as required to assure notification to FTA and appropriate EPA Regional Office. CITY agrees to include this requirement in all of its subcontracts. Orange County Transportation Authority 11 Revised: 05/10/2010 25K-29 COOPERTIVE AGREEMENT NO. 1-2447 EXHIBIT B ARTICLE 22. CLEAN AIR CITY shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. CITY shall report each violation to AUTHORITY, who will in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. CITY agrees to include this requirement in all of its subcontracts. ARTCLE 23. LOBBYING Vendors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying". Each tier certifies to the above that it will not or has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. ARTICLE 24. BUY AMERICA A. Vendor is directed to the "Buy America" requirements of the Surface Transportation Assistance Act of 1982 (Section 165) and the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) Sections 1041(a) and 1048(a) and the regulations adopted pursuant thereto. In conformance with the law and regulations, all manufacturing processes for steel and iron materials furnished for incorporation into the work on this Project shall occur in the United States; with the exception that pig iron and processed, pellitized and reduced iron ore manufactured outside of the United States may be used in domestic manufacturing process for such steel and iron materials. The application of coatings, such as epoxy coating, galvanizing, painting, and other coating that protects or enhances the value of steel or iron materials shall be considered a manufacturing process subject to the "Buy America" requirements. B. A Certificate of Compliance, conforming to the provisions of this Article shall be furnished for steel and iron materials. The certificates, in addition to certifying that the materials comply with the specifications, shall specifically certify that all manufacturing processes for the materials occurred in the United States, except for the exceptions listed herein. C. The requirements imposed by law and regulations do not prevent a minimal use of foreign steel and iron materials of the total combined cost of the materials used does not exceed one-tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater. CITY shall furnish the AUTHORITY acceptable documentation of the quantity and value of the foreign steel and iron prior to incorporating the materials in the work. Orange County Transportation Authority 12 Revised: 05/10/2010 25K-30 r r OCTA Project Title: Agency: COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT C INVOICE TEMPLATE To: Orange County Transportation Authority 550 S Main Street P,O, Box 14184 Orange, CA 92863-1584 Attn: Adriann Cardoso Date: Invoice Number Invoice Date Approved FTA 5307 Actual Local Match 0% Tota i QualititylDate Description Unit Price FTA 5307 Funds Expended Cumulative Invoice Number 'Date IFTA 5307 FTA 5307 $ 500.000 1 $ - $ 500,000 2 $ - $ 500,000 3 $ - $ 500,000 1 hereby certify that the statements provided here are true and correct regarding the Project. The invoice is a true, complete and correct statement of work performed, reimbursable costs and progress; The backup information included with the invoice is true, complete and correct in all material respects. Signed Date " This is a template. City/County can develope their own from as long as all the relavent infromation is present 25K-31 25K-32 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT D EXHIBIT D: FTA FUNDIN(_i REIMBURSEMENT - REQUIRED SUPPORTING DOCUMENTS OCTA Project Title: Agency: Date: Required Attachments: R Detailed Project Description Invoice Supporting Documentation: Vendor/Contract Invoices Cancelled Checks or Proof of Payment with Payment Date Council Action aproving Contract (First Invoice Only) Cost Estimate Update (First Invoice Only) 25K-33 25K-34 AGREEMENT NO. 1-2447 EXHIBIT E M PROJECT S QUARTERLY REPORT FORM OCTA Project Title: Agency: Date: SUMMARY OF MAJOR PROJECT MILESTONES Schedule Original Current Completion Completion Date Date Pre-Preliminary Engineering Alternatives Analysis Definition Report, Draft Environmental Statement New Starts NS Templates and Certifications Project Cost Estimate Project Scope Definition Report Financial Plan Project Management Plan and Associated Sub- plans Contract Packages Plan Preliminary Engineering Final NEPA Documentation Travel Forecast Update Before and After Stud Update: Project Cost Update Project Scope Update Project Financial Plan Project Management Plan and Sub-Plans Update Grantee Letter of Request for FD Initiation Submit Request for Authorization for Const (E- 76 A detailed itemized list of required submittals is attached in the appendix of this report. 25K-35 AGREEMENT NO. 1-2447 EXHIBIT E Funding Table: Development Activities (Pre-PE) Fund Source Fiscal Year Original Planned Allocation Current Estimates Actual Expended Remaining Allocation Preliminary Enineeriniz ($000's) Fund Source Fiscal Year Original Planned Allocation Current Estimates Actual Expended Remaining Allocation Major Activities: Status: Issues: Name/Title: Signature: Phone: Email: 25K-36 AGREEMENT NO. 1-2447 EXHIBIT E F0 Appendix - Complete List of Project Deliverables OCTA Original Current Completion Completion Schedule Date Date Pre-Preliminary Engineering Study Initiation including: Purpose and Need Statement Alternatives Analysis including: Conceptual Alternatives, Detailed Alternatives and Operating Plans, Final Alternatives and Operating Plans, Baseline Alternative Completion of AA including: Alternatives Analysis Final Report, LPA Selection by Grantee Board, LPA Adoption by MPO NEPA Sco in Report Ridership Modeling including: Travel Forecast Document, Documentation of Methodologies and Assumptions, Summit Reports and Maps, Travel Forecasts Template, Annualization Factor Justification, User Benefit QC Worksheet Before and After Study: Before and After Study Plan, Documentation of Methods, "Predicted" Results, Identification of Responsible Contractors Draft EIS / EA Documents including: Public Hearing and Comment, Draft EIS / EA report, ADA Compliance New Starts (NS) Templates and Certifications including: Project Description Worksheet (Temp 1), Project Maps (Vicinity and State), Self-Cert of Tech Methods, PL Assumptions, Project Development Procedures (Temp 2), Project Justification (Temp 3-7, 9-12), Baseline Approval, SCC Annualized Cost Worksheets, Land Use Supporting Information, Making the Case Document Project Cost - Summary of O&M Cost Assumptions/ Productivities including: Capital Cost in SCC Format, Capital Cost in Original Format, Scope - Project Plans and Drawings, Design Criteria, Concept Design Drawings and Specifications, Documentation of passenger level boarding concept 25K-37 AGREEMENT NO. 1-2447 EXHIBIT E Project Schedule Financial Plan and Supporting Information/ Documentation including: Local Commitment Worksheet (Temp 13), Project Management Plan including: Project Sponsor Staff Organization, Document Control Procedures, Change Order Procedures, Material Testing Procedures, Internal Reporting Procedures Operational Testing Procedures, Management Information System, Configuration Mgmt Plan, Design Criteria for LPA, Draft Specs: key features/facilities, Certification Checklist, Resp. Matrix. Quality Management Plan Real Estate Acquisition Management Plan (RAMP) Rail Fleet Management Plan (RFMP) Safety & Security Management Plan (SSMP) Contingency Management Plan Third-Party Agreements and Permits including: Master Agreement, Interagency Agreement, Utility Agreements, Public/Private, Joint Development, Inter-Jurisdictional Agreements, Railroad Agreement, Real Estate Agreement Internal Risk Assessment (OCTA Led) Contract Packages Plan for Entry to PE including: Contracting Plan for PE Phase, Draft Contracting Plan for FD/Const, Claims Avoidance Plan for PE Phase Value Engineering Analysis Report Constructability Analysis Report Preliminary Engineering Readiness Report Project Development Agreement Administrative Requirements including: Legal Capacity (Authority to undertake implementation of proposed transit mode Letter to Request Entry into PE Preliminary Engineering NEPA Documentation including: Final NEPA Documentation, CE, FONSI or ROD, Environmental Permits Defined. Travel Forecast Update including: Travel Forecasts Document, Documentation of Methodologies and Assumptions, Summit Reports and Maps, Travel Forecasts Template, Annualization Factor Justification 25K-38 AGREEMENT NO. 1-2447 EXHIBIT E Before and After Study Update: Before and After Study Plan, Documentation of Methods, "Predicted" Results, Identification of Responsible Contractors Project Cost Update including: Summary of O&M Cost Assumptions/Productivities Project Cost Validation, Capital Cost in SCC Format, Capital Cost in Original Format Project Scope Update including: Project Plans and Drawings, Design Criteria, Standards and Specifications, Master Permitting Plan and Schedule, Geotechnical Baseline Report, Documentation of passenger level boarding concept, PE Design Analysis Report, Mass Balance Diagrams, Facilities Plans and Elevations Project Schedule Update Project Financial Plan Update including: Project Financial Plan, Supporting Information/ Documentation, Local Financial Commitment, Local Commitment Worksheet (Temp 13), Check for Financial Submittals Project Management Plan Update including: Project Sponsor Staff Organization, Document Control Procedures, Change Order Procedures, Material Testing Procedures, Internal Reporting Procedures, Operational Testing Procedures, Mgmt Information System, Configuration Mgmt Plan Quality Management Plan Update Real Estate Acquisition Management Plan (RAMP) Update Rail Fleet Management Plan (RFMP) Update Safety & Security Management Plan (SSMP) Update Contingency Management Plan Update Risk Management Plan - Risk Management Plan, Project Info for Risk Assessment, Policies/Procedures for Managing Risk in FD, Risk Assessment Spot Report (FTA provided) Third-Party Agreements and Permits Updates including: Master Agreement, Interagency Agreement, Utility Agreements, Public/Private, Joint Development, Inter-Jurisdictional Agreements, Railroad Agreement, Real Estate Agreement Contract Packages Update includin : Contract 25K-39 AGREEMENT NO. 1-2447 EXHIBIT E Packages Defined, Contracting Plan for Final Design Phase, Contracting Plan for Construction/Procurement, Claims Avoidance Plan for Final Design, Claims Avoidance Plan for Construction/Procurement Phase, General Conditions Value Engineering Analysis Report Constructability Analysis Report Operating Plan FRA/FTA Joint Use Policy Compliance / FRA Waiver PMO Final Design Readiness Spot Report Project Development Agreement Administrative Requirements including: Legal Capacity (Authority to undertake implementation of proposed transit mode), Authority to pursue and contract with project delivery method proposed (if not DBB) Grantee Letter of Request for FD Initiation Submit Request for Authorization for Const (E-76) 25K-40 r- LL F_ N m 7 7 0x Ow z I -- z W W WV w H w a O U W a z W W a W a Wa W a ?w wF az zw ?o ?F zw a? a? a U H H a p ?a O ?z W ? zH U O a w rO V/ IN W U ¢ U ¢ ca Oa > ?`?„ V ? fi U U - • cz N v'? '? M y y C ca r ? ? c a ¢ z a c a J° U ^ cz O .. ^ D V _ O w al O G O ca cC cC O d. ca `• ¢ ci v CG M W ^' c7 c? ?7 C7 i 3 W R$ U ¢ cz U ?j U U o W F- > > V) CC L • C: ti _ c U J U U z U U U ? 00 M u 72 O f ? '? ' r a 3 U ? , Y o ? o p U C7 ° U v U c o cc G C, = Ol Ul i s.. N (? U CCf - O aU+ Li. ¢ ¢¢ a¢ ? 3¢ ? ¢ ca . .. .. . . . . ... ... . . w 0 U ? b RS to ° 3 F ?N w O fl % . v 0 140 r O > o y U caw i ) ?80 E ? . o a ?- ti ? o ? o a? a aq: w .. °? > a a a i Q. 03 o v? . o rr yr ? • • • ° ?' ? i-. ° U rn ° U ?^ U V1 r. • z i.y L ° y o a ¢ X 2 3 U c ? O 0 0 b L Q E ti Q 'D 0 O O -p O > T V1 Y L>' ,?' O d O T3 O D U O Q„'O cj y o Q M = - Z E o a 420 o a 3 u ? y O °' o c? :. i? a i y u o 5 O ca w O v QD N .2 A W L b ."2 Q .? ; ? •? ? cC ? ? CC ? ' .? ZE E ' c ? L Q E O LS C. G O 4 'T 4 Ua A w m ??(( E? Q rte. F- C ¢ O ta a?+ ¢, `n O v, v) U(In rn ? A 25K-41 0 U C O .a c 0 z M I,. LL :3 ?- N m T7 = V X O w z z w W w w H W IL O U 0 O 0 O nl i ?p .O r, v G U y N c3 cC ••a .C U v ? O l C.1 CC ',? G ? (CS U fl ? I ? ? Q LL. Or N 4'i ? ? -p •a ? v ? ? U t Or U U U -a O U O • - U Li] v's as U ?` U U 'Ct O > II U "2 U cV U Q ct _U ?,? - O N N CC L CZ GL, ? ?? b M t s.. U U a.. U LL. 5 ca 2 `` U C LL- c cu Q 3 U ° 3 ° o? ° a kf) v E ? ° 2 U L o Z Lc4 C7 B o U U a ?, c 04 y ' _ a•' O O i o O - M? ? ca O S ... ? U U as 'a ? C U p , U U C C 'O C7 U N ccz ccz 0. v, N m a3 v) «S Lt i.z.,' Lt 0. w O 17 ?`. M E-' Q Q u U E-+ C7 U N -tli w `7 (x ca w • • • • • • • • • • • • • • • • • • • • • • V W W WUA V a? bA cC 'C3 ? U ? U 'b y., O O ct bA ? cd cn O U U i-. o a ? ? d ? v? d _ ' ? p '? Rte., °>,° ti a?i a?i ° ? " ? v ? a a ti W • o a a? a a i E° o a c E p'' v] c p ¢ ? o ... Q ?? a o C pn o U ? O ? O ar = c 16. r- Q Q N Q U U CL to •? c? • O as c• cd t: ? W U g U ¢ ?o. corx F- `z 4 W a a a` D U Ei 0 0 Ci+ u u 25K-42 0. 'O F" RS 0. a. w m a x 40. C ° H N O U b u a Q U w ¢ M U M rx 3 U ? rn ° N U t3. O ? b ? U U ? O U Cd ?• b O O a¢ ? w O ? .a -0 rfl ° U C,3 ° ro U y O U 'O a ? to N Q 0 a n LL N m i r _ UX O W Z F Z w 2 w W Q W H OaC W CL O U c i d Y O ? ix. ?r I O O G o U s. ti 6v ? LO G ? 00 C r O r ca O C s f 4 O ? .? U yr v U Q cz d O 0 rl 75 00 ?U b 7; ? c? '•'U Z! ? L ? yV ? U V ti cs J C? L Y . a V L ? F- a i . C :t N '?I U U U •> "0 7 0 J ? a • D C C • C t U C • C U • .. a¢n .. ?C7U¢ . ¢ o D c o G ??, ca U vi o ?a va L " ? ?v , ? & w 7 4QJ ? s v .. n t ? C u .? v • • • • • • • • • • • • • • • • • • U W 0 w ?, o 0 e? Q c ^ G ,? Q cc 7a a?i U w w a _ o a c •? b W ? cC N ?-- `? pp U a .? CS' ° co U A ? ``'O ? ¢ ? S UE b ? ? y 25K-43 0 U a? aq c b .o a' O z M W O M U bq 0. 25K-44 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT G Small StartsNery Small Starts Reporting Checklist The following checklist is provided to aid project sponsors in preparing applications to enter into project development for Small Starts and Very Small Starts. Specific information and instructions regarding reporting Templates, Standardized Cost Categories, Summit reports, financial plans, etc., are provided in much greater detail in the FTA guidance at its website for Nei- Starts Proiect Planning and Development. Reporting Item Required Information Small Starts Very Small Starts Evidence of Basic Project Readiness Alternatives Analysis Report Final Report Selection of the Locally Preferred Alternative and Adoption into Constrained Lon Range Plan Proof of local action Agreement on Baseline Alternative FTA concurrence Initial Information for Before and After Study Ridership and cost inputs and estimates NEPA Scoping (as appropriate to the NEPA Class of Action) Scoping report or memorandum evincing completion Evidence of Sponsor Technical Capacity Preliminary Project Management Plan, and/or other materials Project Background Project Description Project Description Template Make the Case Document Narrative, Data, Maps, Graphics Certification of Technical Methods and Planning Assumptions Signed Certification Project Maps Project Site Map Map Vicinity Map Map Capital Costs Standard Cost Categories, including schedule, inflation, and funding SCC Worksheets Annualized Cost Worksheets for Build and Baseline SCC Worksheets Travel Forecasts* User Benefits Forecasts Summit Reports Thematic Maps and Legend Summit Output Summary of Travel Forecasts Travel Forecast Template, Narrative, Data as necessary) O/M Costs Summary of O&M Cost Productivities Narrative, Data * Simplified travel forecasting procedures and results may be acceptable. Sponsors should discuss such procedures with FTA. Page 1 of 2 25K-45 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT G Reporting Item Required Information Small Starts Very Small Starts Project Justification Cost Effectiveness (Opening Year) Cost Effectiveness for Small Starts Template Annualization Factor Justification Narrative, Data Transit Supportive Existing Land Use and Future Patterns Quantitative Land Use Information for Small Starts Quantitative Land Use Information for Small Starts Template Qualitative Land Use Information for Small Starts Qualitative Land Use Information for Small Starts Template, Narrative, Data, Maps Other Factors (Optional) Evidence of Economic Development, Congestion Pricing, and other project benefits Narrative, Data, Maps Local Financial Commitment" Financial Plan Summary Finance Template Evidence of Agency Financial Condition Audited Financial Statements Evidence that Project O/M Costs are Within 5% of Systemwide O/M Costs O/M Cost Analysis Supporting Financial Documentation Narrative, Plans, Data, etc "Assumes Small Starts/Very Small Starts qualify for streamlined financial evaluation. If not, New Starts financial reporting requirements must be met. Page 2 of 2 25K-46 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT H Side-by-Side of Required Information for New Starts/Small Starts Evaluation and Rating Reporting Item Required New Starts Small Starts Very Small Exempt Information Starts Project Background Project Project Description Description Template Make the Case Document* Narrative, Data, Maps, Graphics Certification of Technical Methods and Signed Planning Assumptions Certification Data, methodology, Documentation of existing, benefiting maps of affected transit riders in corridor routes, evidence of benefit for affected riders Project Maps Project Site Map Map Vicinity Map Map Capital Costs Standard Cost Categories, including SCC Worksheets schedule, inflation, and funding Annualized Cost Worksheets for Build SCC Worksheets and Baseline Travel Forecasts** User Benefits Forecasts Summit Reports Thematic Maps and Legend Summit Output Travel Forecast Summary of Travel Forecasts Template, Narrative, Data (as necessary) O&M Costs Summary of O&M Cost Productivities Narrative, Data * Evaluated as an "Other Factor." Submission of any other "Other Factor" is optional. ** Simplified travel forecasting procedures and results may be acceptable for Small Starts projects. Sponsors should discuss such procedures with FTA. Page 1 of 2 25K-47 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT H Reporting Item Required New Small Very Small Exempt Information Starts Starts Starts Project Justification Mobility Improvements Mobility Improvements and Cost Cost Effectiveness (2030) Effectiveness Template Cost Cost Effectiveness (Opening Year) Effectiveness for Small Starts Template Annualization Factor Justification Narrative, Data Transit Supportive Existing Land Use and Future Patterns Quantitative Land Use Information for Quantitative Land New Starts Use Information Template Qualitative Land Qualitative Land Use Information for Use Information New Starts Template, Narrative, Data, Maps Quantitative Land Quantitative Land Use Information for Use Information Small Starts for Small Starts Template Qualitative Land Use Information Qualitative Land Use Information for for Small Starts Small Starts Template, Narrative, Data, Maps Other Factors (Optional) Evidence of Economic Development, Congestion Pricing, and other project Narrative, Data, benefits Maps Local Financial Commitment*** Financial Plan Summary Finance Template Checklist for Financial Submittals Checklist Financial Plan, 20-year Capital Operating Plan 20-Year Cash Flow Financial Plan, 20-year Operating Financial Plan 20-Year Cash Flow Evidence of Agency Financial Audited Financial Condition Statements Evidence that Project O/M Costs are O/M Cost Within 516 of Systemwide O/M Costs Analysis Supporting Financial Documentation Narrative, Plans, Data, etc *** Assumes Small Starts/Very Small Starts qualify for streamlined financial evaluation. If not, New Starts financial reporting requirements must be met, but only covering the period up to and including the opening year. Page 2 of 2 25K-48 N _m V W Lz r z w w NW Lf. Q W H W IL O U z W A Q z? W ?I ?a aW az WW o W F'' AQ A F" zw do ?F ze z E* a? H? U ?a 00 az F U w°a za G4 O a U U 0 N O Q v "' O d :. N U V U ? ? v y U n U ? a?i U ? [_. O ce U c L1, .. o O R u o O. 0 ¢ nJ 3 w S L \J V CS •• C C W s s o c c U O Z U U C cn `? L M ? COC L ? ? N U U ? ? O te 3 n v O a' N O C Z CG r ' C u - c? a? _ o 0`3 UC-., > ID ; > . "0 0?.. LL w V: a? Z ?.. C ;7 c CG • u E a? un . u O Li. E-• [z [ ?p b rr r?C C N ¢ _ O ?dC ?' cYC Y a nQ .. ¢cG C\ =? vc: C7? 7 O U v O, O NVN O N CG . . . . . . . . . . . . . . . . . . . . w w ? V A v y a o ? p 0 Q O U '.? a a C v O O IM U ? ~ ? a ? V) ? Cam.' a. i. w o E O. on o d on cz ?' •? i.. r- N U U? v] U of N 4; b G . . ^' O W ?• 672 a o? a ° E 03u 0 o Z pG U ° v u C v ?' p ° °? w¢ ... u U o a O a ono c o - , •°? °U c c'? '? "b ?- 0a a o. 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O O ? T ? a o ? b n ? U on U on a) i 'A O C ? 72 r o u' ? o o x m E a -2 co m to CL 5 p -0 4 E °° '? ?' V n u a ? V o 0 M" O ai .? a?i y o?A - c . O N o gy . s i a L G. d bA U m C ? L o p L w, .. o cd `" w 'Z G G L °d ca o p 0. tc .s C '? a) c c°c r '= on N to + + i, j c "r= f= 0 ? ° N V a, a) . ?+ a i L W oC un . ° •?s o ? ? C ° -2 p o- > G a? a? o c a? L - ° w t'' w 0. m E- O' F Ca v? E- Q0. cQ a CL 0.06 ? X 0 0 a S C V O U . U. o ri m ] L7rx-7v m 4. O N O bq a U U D Li. c •z o ° U ? Q U I ° c? U ?? ° Y •?, U C °' - I - M ° U W ? CI .S. S L ? Sr 3.. ? U ? L L O CG V ?; a n rn ^ L 13 CA l 't2, ? nf C. U G. _ G ^O = O C (C C O J = JJ •'G ?/ li ?a ? ? ,C _U ? ?.• . ? .r + `? U :1.. LL `•r- `Lr s.. M F" GL a. ?--' Lt y CC t/1 y '? CC ?i 6J CG L' 1 73 U C.?.. • • • • • • • • • • • • • • • • • • • V W W V b C N O (n '?' o° ? h O a s. t_Z. v o CL ^- 0 O O ° C4 w ? Q CL O X C 'O C N t;oi E U Y. r N ? •B U y" N Q U ? t -, U L o G a i" U O b °.3 c > W U o _ a.. ? N y 3 a + O + u O 7„ O L73 U ` „ S z A G O a Q y .? E! Q ? w U a ? ° ? Y ti o Y O o ?.+ v cC w p vi U °a 0 ?-. c.-. M c w p c a E ° 3 40 N aT+ o U ° a a ct N a i !# bIJ O 40y 40y O• V cC = ? ?. cn w CC 2 a ? ?" /?G ?. V cd cC as U ?' U C ca '' C Lr Q C N O N Q h . N b $.. O ° ?V h Q 7 In 7 4-. O t/1 h cV? 4? O p 0. GL O 1 ~ a b b cc 12 s, N 0. ? cd v Q -O V G nn 0 6 on .c on y b > Q > Q ° N U L °Q Q `C [?r F ca C a? ?' h ° aj CL o.n ? ? a o r ¢ U . p 0 4W E E at a? O o r - o Y 4 > 4 U U c c U U (D C7 a E? ? o ?oC Z v? a E -1 Q ° P c C7 L7rx-7 I M 4•- O M by C? Q. x U U D w 25K-52 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT J OCTA PASS-THROUGH GRANTEE ANNUAL FTA COMPLIANCE SELF-CERTIFICATION FY 2010-2011 Subgrantee: Grant No.(s): Project Description: The following declarations and information are hereby provided related to the above- referenced FTA-funded project during the past fiscal year: 1. GENERAL CERTIFICATIONS (to be completed by all sub-grantees) A. Financial Do you have the financial capacity to match FTA grant funds/FTA funded grant projects? Yes No 2. Are your invoices being properly recorded and sent to OCTA by a supervising project manager with knowledge of FTA Compliance? Yes No 3. Are indirect costs being charged to grants? Yes No If yes, do you have a cost allocation plan to support indirect administrative costs related to a grant program? Yes No 4. Have annual single audits been conducted? Yes No If Yes, please supply a copy to OCTA. 5. Are there any unresolved compliance issues in the single audits conducted in the past three (3) years? Yes No 6. Have any internal, state, or local government audit reports had findings relating to FTA program requirements? Yes No If Yes, please supply a copy to OCTA B. Satisfactory Continuine Control Did you make incidental use of any FTA-funded property? Yes_ No_ a. If yes, was FTA approval obtained? Yes No 2. Do you maintain continuing control over the property? Yes No 3. Is revenue generated used for transit purposes? Yes No Page 1 of 8 25K-53 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT J OCTA PASS-THROUGH GRANTEE ANNUAL FTA COMPLIANCE SELF-CERTIFICATION FY 2010-2011 C. Procurement Do you have procurement policies and procedures that conform to applicable federal laws? Yes No 2. Do any potential conflicts of interest exist between policy board member/employees and consultants/vendors/suppliers or between a management contractor and consultants/vendors/suppliers? Yes_ No Do you allow for full and open competition for all transaction under the following methods of procurement? a. Micro-Purchases ($2,500 or less) Yes No b. Small Purchases (More than $2,500, but not more than $100,000) Yes No c. Sealed Bids/Invitation for Bid (IFB) Yes No d. Competitive Proposals/Request for Proposals (RFP) Yes No e. Architectural and Engineering Services (A&E) Yes No f. Revenue Contracts Yes No D. Disadvantaged Business Enterprise (DBE) Did you receive any complaints alleging that you did not comply with the DBE regulations in the past three (3) years? Yes No Did you award a contract to a firm that did not meet specific DBE contract goals? Yes No If Yes, how was it determined if "good faith efforts" by the firm were sufficient? E. Lobbying Has your agency included the lobbying clause in all agreements and procurement solicitations exceeding $100,000? Yes No Has the grantee used non-federal funds for lobbying activities? Yes No If yes, have the proper disclosures been made and filed with FTA on standard form LLL? Yes No Have all disclosures been updated quarterly if needed and so reported? Yes No F. Title VI - Civil Rights Compliance Who at your agency is responsible for ensuring Title VI compliance? Name: Do you have a Title VI complaint process? Yes No Page 2 of 8 25K-54 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT J OCTA PASS-THROUGH GRANTEE ANNUAL FTA COMPLIANCE SELF-CERTIFICATION FY 2010-2011 3. Have you received any Title VI complaints during the past year? Yes No a. If yes, please explain: G. Public Comment Process for Fare and Service Chances 1. Do you have a locally developed process for soliciting and considering public comments prior to a fare increase or major service reduction? Yes No 2. Have you raised a fare or carried out a major reduction in service in the past three (3) years? Yes No a. If yes, please explain: H. Americans with Disabilities Act (ADA) 1. Have you received any ADA-related complaints during the past year? Yes No a. If yes, please explain: 1. Safety and Security l . Do you have a written policy on safety signed by the General Manager or the Board of Directors Chairperson? Yes No 2. Do you have a written system safety program plan (SSPP) for its transit services? Yes No J. Druc-Free Workplace ] . Have you established a drug-free workplace according to state and federal requirements? Yes No 2. Has any employee reported to you a criminal conviction for a drug statute violation that occurred in the workplace? Yes No a. If yes, was the FTA notified? Yes No K. Druc and Alcohol Procram 1. Do you and/or your contractors and subcontractors have a drug and alcohol testing program for safety sensitive employees as defined by FTA? Yes No Page 3 of 8 25K-55 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT J OCTA PASS-THROUGH GRANTEE ANNUAL FTA COMPLIANCE SELF-CERTIFICATION FY 2010-2011 2. Do you and/or your contractors and subcontractors conduct the following drug and alcohol tests: i. Pre-Employment (drugs only)? Yes No ii. Random? Yes No iii. Post-Accident? Yes No iv. Reasonable suspicion? Yes No V. Return to duty? Yes No vi. Follow-up? Yes No 3. Do you and/or your contractors and subcontractors use drug testing laboratories certified by the U.S. Department of Health and Human Services (DHHS)? Yes No L. Equal Employment Opportunity (EEO) (applicable for 50 or more employees) 1. Who at your agency is responsible for ensuring that EEO obligations are fulfilled? 2. Have you received any EEO complaints during the past three (3) years? Yes No a. If yes, please explain: M. Technical 1. How do you monitor contractors/lessees to ensure compliance with FTA requirements? II. FACILITY CERTIFICATIONS (to be completed only for facility projects i.e. transit centers, bus shelters, etc.) A. Satisfactory Continuing Control 1. Did you dispose of any FTA-funded real property or equipment? Yes No If yes, please attach a list of the property/equipment disposed of to this form. Page 4 of 8 25K-56 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT J OCTA PASS-THROUGH GRANTEE ANNUAL FTA COMPLIANCE SELF-CERTIFICATION FY 2010-2011 Was any real property or equipment removed from public transit service before the end of its service life? Yes No If yes, was FTA notified? Yes No B. Maintenance Do you have a current written maintenance plan for your federally funded facilities and equipment? Yes No 2. Does the plan include a program of inspections and preventative maintenance activities to ensure that assets are protected from deterioration and reach their maximum useful life? Yes No Does the maintenance plan prescribe a record keeping system for permanently recording the maintenance history of the equipment/facility? Yes No Are your federally funded facilities/equipment being maintained on time and in accordance with your maintenance plan? Yes No C. Procurement Have all construction contracts greater than $2,000, incorporated the Davis-Bacon Act Requirements? Yes No 2. Have you included a Buy America provision for all procurement of steel, iron and manufactured products, except products with a waiver or small purchases of $100,000 or less? Yes No Have you obtained and retained Buy America certifications from successful vendors for purchases of more than $100,000? Yes No III. VEHICLE CERTIFICATIONS (to be completed only for rolline stock procurements i.e. paratransit vehicles, buses, support vehicles, etc.) A. Satisfactory Continuine Control Do you have equipment records that provide the following information: Description? Yes No I.D. Number? Yes No Page 5 of 8 25K-57 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT J OCTA PASS-THROUGH GRANTEE ANNUAL FTA COMPLIANCE SELF-CERTIFICATION FY 2010-2011 iii. Acquisition date? Yes No iv. Cost? Yes No V. Federal percentage? Yes No vi. Grant Number? Yes No vii. Location? Yes No viii. Use and condition? Yes No ix. Disposition action? Yes No X. Vested title? Yes No 2. Did you dispose of any FTA-funded equipment? Yes No If yes, please attach a list of the equipment disposed of to this form. 3. Was any equipment removed from public transit service before the end of its service life? Yes No a. If yes, was FTA notified? Yes No 4. Do you have any federally funded equipment that is operated by contractors? Yes No a. If yes, do you maintain control of the equipment? Yes No 5. Please attach a list of all FTA-funded equipment with the current odometer reading for each of your vehicles. B. Maintenance I . Do you or your contractor have a current written vehicle maintenance plan for your federally funded rolling stock? Yes No 2. Is the written maintenance plan you use consistent with the manufacturer's minimum maintenance requirements for vehicles under warranty? Yes No Page 6 of 8 25K-58 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT J OCTA PASS-THROUGH GRANTEE ANNUAL FTA COMPLIANCE SELF-CERTIFICATION FY 2010-2011 3. Are your vehicle preventative maintenance inspections completed on time and consistent with your established maintenance plan? Yes No 4. Are maintenance procedures for wheelchair lifts and other accessibility equipment included in your maintenance plan and preventative maintenance inspections? Yes No 5. Are lifts and accessibility features repaired promptly as required by the DOT ADA regulations? Yes No C. Procurement Have you included a Buy America provision for all procurement of steel, iron and manufactured products, except products with a waiver or small purchases of $100,000 or less? Yes No 2. Have you obtained and retained Buy America certifications from successful vendors for purchases of more than $100,000? Yes No D. Charter Service Have you used any federally funded rolling stock for charter service? Yes No If yes, was all charter service incidental service? Yes No If yes, were records kept to fully recover the life of the property (i.e. were charter use days/miles subtracted from vehicles total service days/miles)? Yes No 2. Have any complaints been filed alleging that you have conducted charter service in violation of FTA regulations? Yes No E. School Bus Have you operated exclusive school bus service?Yes No 2. Have you provided school "tripper service?" Yes No Page 7 of 8 25K-59 COOPERATIVE AGREEMENT NO. C-1-2447 EXHIBIT J OCTA PASS-THROUGH GRANTEE ANNUAL FTA COMPLIANCE SELF-CERTIFICATION FY 2010-2011 By signing below, I, on behalf of the aforementioned subgrantee, declare that the information provided within this certification is true and correct to the best of my knowledge and that I am authorized to make this declaration on behalf of my agency. Signature Date Print Name Title By signing below, I, as the aforementioned subgrantee's contractor, declare that the information provided as it pertains to my operations for said subgrantee is true and correct to the best of my knowledge and that I am authorized to make this declaration on behalf of my firm. Signature Date Agency/Company Name Page 8 of 8 25K-60 CLERK OF COUNCIL USE ONLY: MARCH 7, 2011 TITLE: AGREEMENT WITH MANAGEMENT PARTNERS, INCORPORATED FOR CITYWIDE FINANCIAL AND OPERATIONAL REVIEW ??? CITY MANAGER APPROVED ? As Recommended ? As Amended ? Ordinance on 'I s` Reading ? Ordinance on 2n° Reading Q Implementing Resolution 0 Set Public Hearing For CONTINUED TO FILE NUMBER RECOMMENDED ACTION Direct the City Attorney to prepare and authorize the City Manager and Clerk of the Council to execute an agreement with Management Partners, Incorporated to conduct a citywide financial and operational review in an amount not to exceed $98,900, subject to nonsubstantive changes approved by the City Manager and City Attorney. DISCUSSION Over the past few years, the City of Santa Ana has been addressing the various budget impacts resulting from the recent economic crisis. This has been done primarily through various budget reduction measures such as workforce reductions, contracting services, program eliminations, and bargaining group concessions. However, the City is looking for efficiencies as well as the development of a longer term solution for maintaining financial stability. Management Partners, Inc, founded in 1994, was developed with a specific mission to assist local governments in identifying areas of opportunity to reduce costs and provide quality services to the community. Their services include financial planning, strategic planning, organizational analysis, process improvement, organizational development, service reorganization, and recruitment- As such the City recommends engaging Management Partners, Inc. to further enhance its efforts in developing sound organizational changes and long term financial and budget solutions. Management Partners, Inc. is staffed with 40 professionals who are all trained public service managers with extensive experience in the public sector. Management Partners, Inc. is committed in providing selected staffing to assist the City of Santa Ana with the development of a comprehensive report that outlines budget solutions and organizational opportunities. Management Partners proposes a two pronged approach by providing Temporary Analytical and Management Assistance and development of a Budget Stabilization Plan. The proposal is attached as Exhibit 1 . 25L-1 Agreement with Management Partners Inc For Citywide Financial and Operational Review March 7, 2011 Page 2 FISCAL IMPACT Funds for the project are available in Non-departmental account for contract services (No. 01 1 0501 5- 62300), David .Ream City Manager APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services FG/tmr Cxhibit 1 on file. 25L-2 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: EXTENSION OF CONDITIONAL USE PERMIT NO. 2008-37 TO ALLOW THE EXPANSION OF THE ALLIANCE CHURCH OF ORANGE AT 2130 NORTH GRAND AVENUE C TY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 151 Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Adopt a resolution approving the extension of Conditional Use Permit No. 2008-37. DISCUSSION In March 2008, the City Council approved Conditional Use Permit No. 2008-37 to allow an expansion to the Alliance Church of Orange at 2130 North Grand Avenue. The conditional use permit allowed the construction of a 14,500 square foot gymnasium building as well as approximately 6,100 square feet of new classroom space. Due to a significant shift in the overall economy over the past few years, the Alliance Church had been unable to secure the funds necessary to begin the project. As a result, the entitlements for the site are ready to expire. Pursuant to Section 41-647 of the Santa Ana Municipal Code (SAMC), conditional use permits (CUP) automatically become void should the property owner fail to institute an action to comply with the provisions of the CUP within two years of its approval. This section of the code also allows the property owner to request an extension of the entitlement up to a period of three years from the date of expiration. Since construction has yet to begin, the applicant would like to maintain the entitlements for the conditional use permit and is requesting a one year extension of the entitlements. The applicant has secured a new architect for the project and is in the process of preparing structural plans for submittal into Building plan check. Since the project will be moving forward within the next few months, the Planning Division recommends that the entitlements for the church expansion project be extended by a period of one year from the date of approval to March 2, 2012. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, this project is exempt from CEQA per Section 15061 (b)(3). This determination has been made as it has been determined that the proposed action will not cause a significant effect on the environment. 55A-1 Extension of CUP No. 2008-37 March 7, 2011 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. 4ay . Trevino xecutive Director Planning and Building Agency VF:rb Areports\CUP08-37 extension.cc 55A-2 ROH - 03/07/11 RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA FOR THE EXTENSION OF CONDITIONAL USE PERMIT NO. 2008-37 FOR ONE YEAR FOR THE PROPERTY LOCATED AT 2130 NORTH GRAND AVENUE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. In March of 2008, the City Council approved Conditional Use Permit No. 2008-37 to allow an expansion to the Alliance Church of Orange at 2130 North Grand Avenue. B. The applicant has requested a one year extension for Conditional Use Permit No. 2008-37. It is the Planning Division's policy to recommend no more than one year extensions, mainly in an effort to encourage the construction of previously approved projects. C. The extension request came before the City Council on March 7, 2011. D. Due to the significant shift in the overall economy over the past few years, the Alliance Church had been unable to secure the funds necessary to begin the project. However, the applicant has secured a new architect for the project, is in the process of preparing structural plans for submittal into Building plan check, and the project will be moving forward within the next few months. E. Pursuant to City of Santa Ana Municipal Code section 41-647, where construction does not commence, these types of entitlements expire after two years unless the applicant applies for, and the City Council approves, an extension. F. In accordance with the California Environmental Quality Act, this project is exempt from CEQA per Section 15061(b)(3). This determination has been made as it has been determined that the proposed action will not cause a significant effect on the environment. Section 2. Conditional Use Permit No. 2008-37 is hereby extended for a period of one (1) year from the date of approval. This decision is based upon the evidence submitted, which includes, but is not limited to, the Request for Council Action 55A-3 Resolution No. 2011-XXX Page 1 of 3 dated March 7, 2011, and exhibits attached thereto, and any public testimony, all of which are incorporated herein by this reference. Section 3. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of March, 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka City Attorney By: Ryan O. Hodge Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT: Councilmembers Councilmembers Councilmembers Councilmembers Resolution No. 2011-XXX Page 2 of 3 55A-4 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2011- 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. 2011-XXX 55A-5 Page 3 of 3 55A-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: March 7, 2011 TITLE: APPROPRIATION ADJUSTMENT ACCEPTING OFFICE OF EMERGENCY SERVICES PROGRAM GRANT AWARD FUNDS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1st Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Adopt a Resolution authorizing the City Manager and the Chief of Police to execute a sub- grant award agreement with the State of California, Office of Emergency Services 2007 Anti-Gang Initiative Program funding in the amount of $24,000. 2. Approve an Appropriation Adjustment recognizing State of California Office of Emergency Services 2007 Anti-Gang Initiative Supplemental Grant funds of $24,000 revenue account (account no. 15514002-52001) and appropriate the same to expenditure account (account no. 15514413-61040-10480501059). DISCUSSION On February 5, 2007, Council accepted the State of California, Office of Emergency Services, Anti-Gang Initiative Grant funds in the amount $50,000. Additional funding has been made available to the Santa Ana Police Department in the amount of $24,000. The Grant funding will support the activities of the Santa Anita Gang Junction efforts. As a participating member of this grant program, the Santa Ana Police Department will receive the additional grant funds for overtime related to the gang enforcement activities. Staff recommends approval of the recommended actions as the grant program positively impacts the community by directly aiding in the efforts to reduce gang activities. 55B-1 Appropriation Adjustment Office of Emergency Services Grant March 7, 2011 Page 2 FISCAL IMPACT The appropriation adjustment will enhance the Police Department's Office of Emergency Services 2007 Anti-Gang Initiative Grant Revenue Account (account no. 15514002-52001) by an amount of $25,000 and the expenditure appropriation for Police Department's OES 2007 Expenditure Account (account no. 15514413-61040) by the same. APPROVED AS TO FUNDS AND ACCOUNTS: Paul M. Walters Chief of Police Police Department Francisco Gutierrez Executive Director Finance & Mgmt. Services Agency 55B-2 JERRY BROWN GOVERNOR January 18, 2011 David Jones, Commander Santa Ana, City of 20 Civic Center Plaza, M-17 Santa Ana. CA 92701 Dear Cmdr. Jones: * - Cal E-M-A CA'?eTC°4!tA =_I?fRGENCY MANAGEMENT AGENCY Subject: NOTIFICATION OF APPLICATION APPROVAL Project Safe Neighborhoods Award #: US 10 05 7948, Cal EMA ID: 059-69000 MIKE DAYTON AC 17NG SECRETARY Congratulations? The California Emergency Management Agency (Cal EMA;, has approved your application in the amount of $24,000, subject to Budget approval. A copy of your approved subgrant is enclosed for your records. Cal EMA will make every effort to process payment requests within 60 days of receipt. This subgrant is subject to the Cal EMA Recipient Handbook. You are encouraged to read and familiarize yourself with the Cal F MA Recipient Ilandbook, which can be viewed on Ca] EMA's website at www•.calema.ca.gov. Any funds received in excess of current needs, approved amounts, or those fot nd owed as a result of a close-out or audit, must be refunded to the State within 30 days upon receipt of an invoice from Cat EMA. Should you have questions on your subgrant, please contact your Program Spe2ialist. PSVS Grant Processing Enclosure c: Recipient's file 3650 SCHRIEVER AVENUE . VIATIIER, CALIFORNIA 95655 PIJ13LIC SAFETY AND VICTIM SERVICE'S PROGRAMS DIVISION mi.EPHONE: (916)3_24-9200 . FAX: (9J6)324-9179 55B-3 r_ Cal EMA 05q- 6110,90 Award # U5loo 5-7,74% 060 CALIFORNIA EMERGENCY MANAGEMENT AGENCY GRANT AWARD FACE SHEET (Cal EMA 2-101;, The California Emergency Management Agency, hereafter designated Cal EMA, hereby makes a grant award of funds to the following: 1. Grant Reciplent: City of Santa Ana V hereafter designated Recipient, in the amount and for the purpose and duration set forth in th:s grant award 2. Implementing Agency: Syp4a.Aw Police Department 3. Project Title: F'1?PC T lip 0J rvl S Arl?y N I?s Iii ?O rant Period: 1 : to )01!'0 _ 09/30/ 'Select the Grant year and fund source(s) from the lists below or type the appropriate acronym in box 9. Enter the amount(s) from each source.' Please do not enter both State and Federal fund sources on the same line. Add any cash match(s). Block 10G is the Grant Award total amount. Grant Fund Source A. State B. Federal C. Total -Cash-7- E. In-Kind F. Tots! G. Total Year l _ 7atchmatch Match Project Cost ! 10IV 5. PSNC _ $24,000 $0 -- Select 6. Select Select 7 Select t$0 I1, S 0 Select 9 - $0 to. TOTALS ; 1to. omaron,?; - F- -- I $Oy $24,000 $24,000 SO $0 $O $24,000 11. This grant award consists of this title page, the application for the grant, which is attached and made a part hereof, and the Assurance of Compiiance forms which are being submitted. 1 hereby certify I am vested with the authority, and have It ie approval of the City/County Financial Officer, City Manager, County Administrator, or Governing Board Chair, to enter Into this grant award agreement; and all funds received pursuant to this agreement will be spent exclusively on the purposes specified. The grant recipient signifies acceptance of this grant award and agrees to administer the grant project in accordance with the statute(s), the Cal EMA Progr:.m Guidelines, the Ca/ EMA Recipient Handbook, the Federal OJP Financial Guide and Program Guidelines (if applicable), and the Cal EMA audit requirements. as stated in the applicable RFP or RFA. The grant recipient further agrees to all legal conditions and terms incorport.ted by reference in the applicable RFP or RFA, and agrees that the allocation of funds is contingent on the enactment of the State Budget. 12. Official Authorized to Sign for Applicant/Grant Recipient: Federal Employer ID Number: 95-6000y785 Name: Paul M. Walters J Title. Chief of Police J Select 8 Select _) 4 _ so Payment Mailing Address: 20 Civic Center Plaza. M-17 Telephone: (714 245-8001 FAX: (714) 245-8007 - 'a cod f '-T 1 (area code) Signature City: Santa Ana _ Zip: 92702 Email: f alters sanI a-agA Org_/ ._. _ f. , ? Date: 1 ?_I _? - I hereby certify upo own personal knowledge that budgeted funds are available for the the pe a rposes of thrposes o` th s expenditure st led above. Cal EMA Fiscal Officer , _ _._... Date Cal EMA Director (or designee) Date YT / Chapter 2010-11 /712 PCA No: 18350 ltem: 0640-102-08% Fed Cal. it 16.609 Component: 40.30.504 Proerarrr: Prya•! Safe Net=ieerhae" Catnd Fund: Fcdcral 'f nisi Match Peq.: Nonc t?( l'roiact No-: I OPSNC Amount: S z+ 1 ?? O Grant Award Face Sheet - Cal EMA 2-101 (formerly AOES 301) - (Revised 2/112009) 0 E C 0 2 2010 55B-4 TLJ 2/24/11 RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING EXECUTION OF A SUB- GRANT AWARD AGREEMENT AND ACCEPTING ADDITIONAL GRANT AWARD FUNDS AND AUTHORIZING THE CITY MANAGER OR THE CHIEF OF POLICE TO APPROVE AN APPROPRIATION ADJUSTMENT FOR THE ANTI-GANG INITIATIVE GRANT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby, finds, determines and declares as follows: A. The California Office of Emergency Services (OES) established an Anti- Gang Initiative Grant (Grant) and is responsible for implementing the same. B. The Grant provides funds to local police departments for overtime related expenses related to enforcement of the Santa Nita Gang Injunction, which will serve to positively impact the community by directly aiding in the efforts to reduce gang activity. C. The City of Santa Ana Police Department was selected to receive a 2006 Anti-Gang Initiative Grant from OES in the amount of $52,430.00, which was authorized by the City Council of the City of Santa Ana in Resolution Number 2007-011. D. The State of California Emergency Management Agency (EMA) has now awarded additional funding in the amount of $24,000.00 for the Grant to the City of Santa Ana Police Department under sub-grant award # US 10 057948. Section 2. The City Council of the City of Santa Ana does hereby authorize the City Manager and the Chief of Police, or their designee(s), to execute and submit any necessary documents, including but not limited to a sub-grant award agreement, which may be necessary for the completion of the sub-grant with the State of California Emergency Management Agency in the amount of $24,000.00. 55B-5 Section 3. The City Council of the City of Santa Ana hereby accepts and authorizes and directs the City Manager and the Chief of Police, or their designees, to accept and authorize the additional sub-grant award from the State of California Emergency Management Agency in the amount of $24,000.00. Section 4. The City Council of the City of Santa Ana hereby authorizes and directs the City Manager and/or the Chief of Police to execute and submit all documents and take any necessary action, for and on behalf of the City of Santa Ana, a public entity established under the laws of the State of California, for the purpose of obtaining state financial assistance provided by the California Emergency Management Agency. 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 , 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: Teresa L. Judd Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers 55B-6 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2011-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana 55B-7 55B-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: MEASURE M COMPREHENSIVE TRANSPORTATION FUNDING PROGRAM - GRANT APPLICATIONS fCITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1? Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution authorizing the Executive Director of the Public Works Agency to submit grant applications for project funding consideration under the Measure M Comprehensive Transportation Funding Program. DISCUSSION The Orange County Transportation Authority (OCTA) has issued a call for projects under the Measure M Comprehensive Transportation Funding Program for FY 11/12 through FY 13/14. Funding in the amount of $10 million is available countywide in the Regional Traffic Synchronization Program (RTSP). The RTSP provides funding for projects that develop and maintain multi- jurisdictional traffic signal synchronization on major arterials throughout Orange County. The City of Santa Ana is cooperating with adjacent agencies to submit five applications totaling $1,240,000 million in grant fund requests. The City will utilize existing and future local funds to provide the required 20% matching funds for the subject requested projects. Staff is requesting authorization for the following projects: ---- RECOMMENDED PROJECTS ----------------------- LOCAL MATCH ----------- -------- -_----------- GRANT AMOUNT _ Within Santa Ana) ----- ----------- ------ ---- FY Warner Ave from Pacific Coast Hwy to Red $72 000 $360 000 11/12 Hill Ave , , ------------- ------------------------------------------------------ Tustin Ave from 1St St to Imperial-Hwv ----- ----------------- __$32,000 ------------------- $160,000 ------------------- 11/12 Euclid Ave from 405 Fwy to Imperial Hwy __ $20,000 $100,000 11/12 Fairview from SR 55 to SR 22 $64,000 $320,000 11/12 MacArthur Blvd from Beach Blvd to SR 55 $60,000 $3 00,000 11/12 TOTAL -$248,000 ---- ---------------------------- ------------ $1,240,000 ------------------------ 55C-1 Measure M Comprehensive Transportation Funding Program - Grant Applications March 7, 2011 Page 2 of 2 Staff recommends that the City Council adopt the resolution authorizing submittal of these project applications for funding consideration. Staff anticipates a response to the grant funding request and OCTA Board action on the call for projects in late 2011. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The required matching funds on these projects will be budgeted in the FY 2011-12 Capital Improvement Program. APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godez II Francisco Gutierrez Executive Director Executive Director Public Works Agency Finance & Management Services Agency RGNN Exhibit: Resolution 55C-2 RESOLUTION NO.2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE SUBMITTAL OF IMPROVEMENT PROJECTS TO THE ORANGE COUNTY TRANSPORTATION AUTHORITY FOR FUNDING UNDER THE COMPREHENSIVE TRANSPORTATION PROGRAM BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1: The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The City of Santa Ana desires to implement the transportation improvements listed below. B. The City of Santa Ana has been declared by the Orange County Transportation Authority to meet the eligibility requirements to receive Measure M "turnback" funds. C. The City's Circulation Element is consistent with the County of Orange Master Plan of Arterial Highways. D. The City of Santa Ana will provide matching funds for each project as required by the Orange County Comprehensive Transportation Program Procedures Manual. E. The Orange County Transportation Authority intends to allocate funds for transportation improvement projects within the incorporated cities and the County. F. The City of Santa Ana will not use Measure M funds to supplant Developer Fees or other commitments. G. The City of Santa Ana will use Arterial Highway Rehabilitation Funding as a supplement to the existing pavement management program. Section 2: The City Council authorizes the Executive Director of the Public Works Agency to submit projects for funding consideration under the Combined Transportation Funding Programs. Page 1 of 3 55C-3 Section 3: The City Council of the City of Santa Ana hereby requests the Orange County Transportation Authority allocate funds in the amounts specified in the City's application to said City from the Comprehensive Transportation Programs. Said funds shall be matched by funds from said City as required and shall be used as supplemental funding to aid the City in the improvement of the following street(s): PROJECT PROGRAM FY Bristol Street Widening: 3rd to Civic Center ACE 11/12 Bristol Street Widening: Civic Center to 17th ACE 11/12, 12/13, 13/14 Grand Avenue Widening: 1St to 4th ACE 12/13 Grand / Edinger Intersection Widening ICE 13/14 Section 4: This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Laura Sheedy Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT Councilmembers Councilmembers Councilmembers Councilmembers Page 2 of 3 55C-4 CERTIFICATE OF ORIGINALITY I, Maria D. Huizar, Clerk of the Council, do hereby certify the attached Resolution No. to be the original resolution adopted by the City Council of the City of Santa Ana on 2011. Date: Clerk of the Council City of Santa Ana Page 3 of 3 55C-5 55C-6 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: RESOLUTION AUTHORIZING BICYCLE TRANSPORTATION ACCOUNT PROJECT APPLICATIONS 1 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 15` Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution supporting state funding for three projects in the City and authorizing the City to submit the Bristol Street, First Street, and Memory Lane/Flower Street bike lane projects for funding consideration under the Bicycle Transportation Account. DISCUSSION The State of California Department Transportation issued a call for Bicycle Transportation Accounts (BTA) applications for Fiscal Year 2011-2012. BTA is a state funded program which provides construction funds for projects that improve safety and convenience for bicycle commuters. In response to this call the City is requesting authorization to submit grant applications for three projects: Bristol Street bike lane extension from McFadden Avenue to Edinger Avenue, First Street bike lane from Harbor Boulevard to Newhope Avenue, and Memory Lane/Flower Street from Bristol Street to Fisher Park. These projects involve new class II (on-street) bike lane installations (Exhibit 2). The application deadline is March 18, 2011. To be eligible for BTA grant funding the projects need to be listed in the City's Bikeway Master Plan and approved by Orange County Transportation Authority (OCTA). The Memory Lane/Flower Street bike lane is currently not on the City's Bikeway Master Plan or approved by OCTA. However, the update of the Santa Ana Bikeway Master Plan to include Memory Lane/Flower Street bike lane is scheduled for adoption by City Council on March 21, 2011 following the environmental review process. City staff is coordinating with OCTA staff to pursue OCTA approval for the Bicycle Transportation Plan that includes the Memory Lane/Flower Street bike lane so that it will be eligible for BTA funding. The adoption by City Council of the Bikeway Master Plan and approval by OCTA of the Bicycle Transportation Plan may follow the funding application deadline according to the program guidelines. 55D-1 Authorization to Submit BTA Project Applications March 7, 2011 Page 2 of 2 ENVIRONMENTAL IMPACT Per Section 15061(b)(3) of the Environmental Quality Act, this action is exempt from further review as there is no potential for any environmental impact. FISCAL IMPACT For the Bristol Street and First Street bike lane projects the City will need to provide 10 percent matching funds and the Bicycle Transportation Account will provide 90 percent of the funding for any project that is approved for funding. The City's 10% match for those projects receiving BTA grant funds will be budgeted in a future Capital Improvement Program. APPROVED AS TO FUNDS AND ACCOUNTS: Raul Go ez II Francisco Gutierrez Executive Director Executive Director 0 Public Works Agency Finance & Management Services Agency RG/ZK Exhibit 1: Resolution Exhibit 2: Location Map Exhibit 3: Project Cost 55D-2 Iss2/19/11 RESOLUTION NO. 2011-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE SUBMISSION OF PROJECTS FOR FUNDING UNDER THE BICYCLE TRANSPORTATION ACCOUNT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. The California Department of Transportation is responsible for administering the Bicycle Transportation Account (BTA) which provides state funds for city and county projects to improve safety and convenience for bicycle commuters. B. To be eligible for BTA funding, the City of Santa Ana is required to adopt a bicycle transportation plan that meets the requirements of the California Transportation Act (California Streets and Highways Code Section 891.2) and is approved by the regional transportation authority. C. On May 22, 2009, the Orange County Transportation Authority (OCTA) adopted its OCTA Commuter Bikeways Strategic Plan (CBSP) which is consistent with the Santa Ana bicycle transportation plan. D. Projects funded through the Bicycle Transportation Account, require that the applicant furnish funding for ten percent (10%) of the total cost of constructing the proposed bikeways and related facilities. Section 2. The City Council of the City of Santa Ana authorizes the Executive Director of the Public Works Agency to submit an application for Bicycle Transportation Account funding for three Class II bike lane projects including: • Bristol Street bike lane extension from McFadden Avenue to Edinger Avenue • First Street bike lane from Harbor Boulevard to Newhope Avenue • Memory Lane/Flower Street from Bristol Street to Fisher Park Section 3. The City Council of the City of Santa Ana certifies that, if selected, the City will provide the required ten percent matching funds, and will have sufficient funds to operate and maintain the project(s). Resolution 2011-xxx Page 1 of 2 55D-3 Section 4. The City Council of the City of Santa Ana authorizes the City Manager and/or the Executive Director of the Public Works Agency to execute and submit all documents and take any actions necessary, for and on behalf of the City of Santa Ana, for the purpose of obtaining financial assistance from the State of California, Department of Transportation, under the Bicycle Transportation Account. Section 5. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of Councilmembers Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Laura S. Sheedy Assistant City Attorney AYES: NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers 2011. CERTIFICATE OF PUBLICATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2011-XXX to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution No. 2011-xxx Page 2 of 2 55D-4 Bristol Street McFadden Avenue to Edinger Avenue SANTA ANA ity Council RESOLUTION AND AUTHORIZATION FOR BTA Pi WA Agenda Date APPLICATIONS FOR BRISTOL STREET, FIRST % STREET, AND MEMORY LANE/FLOWER STREET PUBLIC WORKS AGENCY March 7, 2011 BIT 2 55D-6 Bicycle Transportation Account On-Street Bike Lane Projects Recommended for Grant Application FY 2011-2012 Location Project Cost Bristol Street From McFadden Avenue to Edinger Avenue $72,000 First Street from Newhope Avenue to Harbor Boulevard $143,000 Memory Lane/Flower Street from Bristol Street to Fisher Park $236,000 Total $451,000 Exhibit 3 55D-7 55D-8 REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 7, 2011 TITLE: PUBLIC HEARING - ISSUANCE OF TAX- EXEMPT BONDS FOR MULTI-FAMILY HOUSING PROJECTS 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 Hold a public hearing regarding the issuance of tax-exempt multi-family housing revenue bonds by the Housing Authority of the City of Santa Ana for the purpose of financing the construction of 51 rental housing units on properties located at 217-219 South Birch, 435- 437 South Birch, 2034-2038 North Bush, and 605-611 East Washington. 2. Adopt a resolution approving the issuance of the bonds by the Housing Authority. COMMUNITY REDEVELOPMENT AND HOUSING COMMISSION ACTION At its regular meeting on February 15, 2011, by a vote of 5:0 (Bist absent), the Community Redevelopment and Housing Commission approved the recommended actions. DISCUSSION The Internal Revenue Code requires that, before tax-exempt bonds can be issued to finance a multi-family housing facility, the legislative body for the public agency in whose jurisdiction the project is located must hold a public hearing at which time the public may discuss the project and the issuance of the bonds. This bond issuance by the Housing Authority will not be a general obligation of the Housing Authority or the City; however, it will be a limited obligation of the Housing Authority payable from revenues derived from the rental facilities to be financed. Santa Ana WBBB, LP, a partnership between Orange Housing Development Corporation (OHDC) and C & C Development, and a Limited Tax Equity Partner, is requesting that the City Council hold a public hearing to consider the issuance of tax-exempt multi-family housing revenue bonds by the Housing Authority of the City of Santa Ana; and that subsequent to the public hearing, the City Council adopt a resolution approving the issuance of the bonds by the Housing Authority. If approved, the bond proceeds will provide for the construction of a total of 51 new multi-family rental units on properties located at 217-219 South Birch, 435-437 South Birch, 2034-2038 North Bush, and 605-611 East Washington. The attached map identifies the location of the sites (Exhibit 1). 75A-1 Public Hearing - Issuance of Tax-Exempt Bonds for Multi-Family Housing Projects March 7, 2011 Page 2 605-611 EAST WASHINGTON On March 1, 2010, OHDC, a non-profit 501(c)(3) corporation, and C&C Development, a for-profit developer, were awarded the contract to implement the multi-family rental program funded by the Federal National Stabilization Program (NSP). They have formed a Limited Partnership named Santa Ana WBBB, LP (Developer) for financing purposes. In June 2010, the Developer acquired foreclosed vacant lots at 605-611 East Washington using NSP funds. The entitlement process is being completed and the project is proceeding with funding in order to commence construction. The Developer proposes to construct 36 multi-family rental units of which 10% or 4 units will be rented to extremely low income families (at or below 30% of the Area Median Income (AMI)) and 31 units will be rented to very low income families (at or below 50% of AMI). The one remaining unit will be designated as a manager unit. The project will have 8 two-bedrooms, 27 three-bedrooms and 1 five-bedroom. BIRCH, BIRCH AND BUSH SITES On September 7, 2010, a Disposition and Development Agreement (DDA) was approved with the Developer, for the development of three Agency-owned infill sites at 217-219 South Birch, 435- 437 South Birch and 2034-2038 North Bush. Under the proposed DDA, the Agency will convey three sites and the Developer will construct the units on the sites. The units will all be affordable to very low-income households (50% Area Median Income). The beginning rents will be $989 for two-bedrooms and $1,125 for three bedrooms. Each site will be improved with 5 units. They will each have two 2-bedroom units and three 3-bedroom units. Construction of these units will assist the City and Agency in meeting the Regional Housing Needs Assessment (RHNA) goals identified in the Housing Element, Consolidated Plan and the Implementation Plan. FISCAL IMPACT There are no fiscal or economic liabilities or obligations assumed or imposed upon the City of Santa Ana as a result of the public hearing or the adoption of the resolution. 6un e-14 Nancy T. E ards Interim Executive Director Community Development Agency NTE/SLB/JP-H/mlr Exhibits: 1. Map 2. Resolution 75A-2 LA VETA AV. GARDEN GROVE BL. o AV. FAfRHAVEN • ?2 V TRASK AV. m SANTACLARA AV. r 17TH ST. WASHINGTON AV 4 IVIC CE TER DR. 5TH ST . 5T T H S . SANT A ANA BL. 4TH ST 1ST ST. . MCFAD DEN AV MCFADDEN AV. 7 4 EDINGER AV. o _ ? a o v a t- ?' z w ST. ANDRE W PL w w z > a (W ARNER AV. pa" 55 SEGERSTROM ' DYER RD ALTON AV N ALTON AV g ¦ . ¦ MACARTHUR BL. SUNFLOWER AV. r r? 4 405 ?1 Q y 1? Address Address 1 217 S. Birch Street 3 2034 N. Bush Street 219 S. Birch Street 2038 N. Bush Street 2 435 S. Birch Street 437 S. Birch Street 4 605 - 611 E. Washington Exhibit 1 75A-3 75A-4 RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA APPROVING THE ISSUANCE OF BONDS BY THE HOUSING AUTHORITY OF THE CITY OF SANTA ANA TO FINANCE MULTIFAMILY RESIDENTIAL RENTAL FACILITIES FOR SANTA ANA WBBB, LP 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. Santa Ana WBBB, LP (the "Borrower"), a California limited partnership formed by the Orange Housing Development Corporation and C&C Development, has requested that the Housing Authority of the City of Santa Ana (the "Authority") issue one or more series of revenue bonds in an aggregate principal amount not to exceed $12,500,000 (the "Bonds"), and lend the proceeds of the Bonds to the Borrower for the purpose of financing the costs of the construction by the Borrower of 51 units of multifamily residential rental housing at the following locations in the City of Santa Ana (the "City"): 217-219 South Birch (5 units), 435-437 South Birch (5 units), 2034-2038 North Bush (5 units), and 605-611 East Washington (36 units) (collectively, the "Project"). B. Section 147(f) of the Internal Revenue Code of 1986 (the "Code") requires that an "applicable elected representative" with respect to the Project approve the issuance of the Bonds by the Authority after a public hearing has been held concerning the issuance of the Bonds and the financing of the Project. C. The City Council of the City of Santa Ana (the "City Council") is the elected legislative body of the City and is an applicable elected representative with respect to the Project under section 147(f) of the Code, because the Project is located in the City. D. The Authority has requested that the City Council approve the issuance of the Bonds by the Authority in order to satisfy the public approval requirement of section 147(f) of the Code; and Resolution No. 2011- Page 1 of 3 75A-5 E. Pursuant to section 147(f) of the Code, the City Council has, following notice duly given, held a public hearing regarding the issuance of the Bonds at which all those interested in speaking with respect to the issuance of the Bonds and the financing of the Project were heard, and now desires to approve the issuance of the Bonds by the Authority. Section 2. The City Council hereby approves the issuance of the Bonds by the Authority. It is the purpose and intent of the City Council that this Resolution constitute approval of the issuance of the Bonds by the Authority for the purposes of section 147(f) of the Code, by the applicable elected representative of the governmental unit having jurisdiction over the area in which the Project will be located. Section 3. The issuance of the Bonds shall be subject to approval of the Authority of all financing documents relating thereto to which the Authority is a party. The City shall have no responsibility or liability whatsoever with respect to repayment or administration of the Bonds. Section 4. The adoption of this Resolution shall not obligate the City or any department thereof to (a) provide any financing to construct the Project; or (b) approve any application or request for or take any other action in connection with any planning approval, permit or other action necessary for the construction or operation of the Project. Section 5. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they deem necessary or advisable in order to carry out, give effect to and comply with the terms and intent of this Resolution and the financing transaction approved hereby. Section 6. This Resolution shall take effect from and after the date of its passage and adoption. Resolution No. 2011- Page 2 of 3 75A-6 ADOPTED this 7th day of March, 2011. APPROVED AS TO FORM: Joseph Straka Interim City Attorney Miguel Pulido Mayor Lisa E. Storck Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2011- to be the original resolution adopted by the City Council of the City of Santa Ana on March 7, 2011. Date: Clerk of the Council City of Santa Ana Resolution No. 2011- Page 3 of 3 75A-7 75A-8 REQUEST FOR COUNCIL/ AGENCY ACTION MEETING DATE: MARCH 7, 2011 TITLE: APPROPRIATION ADJUSTMENT, RESOLUTION, AMENDMENT TO AGREEMENT WITH AECOM, AND COOPERATIVE AGREEMENT FOR THE DOWNTOWN PARKING GARAGES AND WAYFINDING SIGNAGE PROGRAM l CITY M NAGER E) RECOMMENDED ACTION CITY COUNCIL CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1 st Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Adopt a resolution of the City Council making certain findings for the Community Redevelopment Agency to assist with the funding of the improvements to the Downtown parking garages and the Third/Bush surface parking lot, and the Downtown Wayfinding Signage Program. 2. Authorize the City Manager and Clerk of the Council to execute the attached Cooperative Agreement with the Community Redevelopment Agency of the City of Santa Ana (Agency) in the amount of $9,455,000, subject to non-substantive changes approved by the City Manager and City Attorney. 3. Authorize the City Manager and Clerk of the Council to execute the attached first amendment to the agreement with AECOM, subject to non-substantive changes approved by the City Manager and City Attorney, to provide on-call engineering, architectural and landscaping services in the amount not to exceed $275,000 for a total contract amount of $475,000. 4. Approve an appropriation adjustment recognizing the 2011 Series A Tax Allocation Bond proceeds in the amount of $6,100,000 into the revenue (account no. 55418002-59300) and appropriating the same into the 2011 Series A Capital Project expenditure (account no. 55418830-66200). 8OA-1 Downtown Parking Garages and Wayfinding Program March 7, 2011 Page 2 COMMUNITY REDEVELOPMENT AGENCY 1. Adopt a resolution of the Community Redevelopment Agency making certain findings for the Agency to assist with the funding of the improvements to the Downtown parking garages and Third/Bush surface parking lot, and the Downtown Wayfinding Signage Program. 2. Authorize the Executive Director and the Agency Secretary to execute the attached Cooperative Agreement with the City of Santa Ana (City) in the amount of $9,455,000 subject to non-substantive changes approved by the Executive Director and Agency General Counsel. DISCUSSION In the late 1980s, the City/Agency constructed a number of parking structures to meet the growing demand for parking in the Downtown. The structures are in need of capital improvements, architectural upgrades for structural efficiency, ADA compliance, and addition of new security systems and installation of operational equipment. In 2006, the City Council awarded a contract to AECOM to perform engineering, architectural and landscaping services on an "as needed" basis. In late 2009, staff authorized AECOM to start the review and assessment of one of the Downtown garages. Based on the expanding scope of work and the need to provide improvements to all of the Downtown garages and surface lots, staff recommends that the existing contract be increased by $275,000 for a total amount not to exceed $475,000. This will provide the funding necessary to complete the design efforts for all four of the Downtown garages. Following completion of design and engineering work, contracts will be awarded for the actual construction and equipment installation. Also, in late 2009, the Agency authorized an agreement with RTKL Associates to develop a vehicular and pedestrian Wayfinding Signage program for the Downtown. This program includes the design of a signage program for the Downtown parking structures and public surface lots. Upon completion of an approved design, the City/Agency will award a contract for the manufacturing and implementation of the signage program. California State law permits Redevelopment Agencies to use tax increment revenue to pay the cost of public improvements and infrastructure constructed by other entities pursuant to certain findings made by the City Council. From time to time, the City and Agency have entered into Cooperative Agreements for the mutual benefit of the two parties and the public. By entering into the Cooperative Agreement, the Agency will pledge the proceeds from the 2011 Series A Tax Allocation Bond ($6.1 million), the remaining 2003 South Main Bond proceeds (approximately $2.45 million), and the Merged Project Area capital improvement project funds designated for the Wayfinding Signage program (approximately $600,000) and Third/Bush surface lot (approximately $300,000). The actions recommended provide an opportunity to affirm the use of bond proceeds pursuant to the official statement and budgeted capital project funds for the improvements to the Downtown garages and Third/Bush surface parking lot, and the Wayfinding Signage program. 8OA-2 Downtown Parking Garages and Wayfinding Program March 7, 2011 Page 3 FISCAL IMPACT Upon approval of the appropriation adjustment, funds for the Downtown parking garage improvement will be available in the 2011 Series A Capital Project expenditure (account no. 55418830-66200). Additional funding for the parking garage improvements are available in the 2003 South Main Capital Project (account no. 55218830-various). Funds for the Third/Bush surface lot improvements and the Downtown Wayfinding Signage program are available in the Merged Project Area Capital Improvements project fund (account no. 57018830-various). APPROVED AS TO FUNDS AND ACCOUNTS: r Raul Go-dinez II Executive Director Public Works Agency Francisco Gutierrez Executive Director Finance & Management Services Agency 1104, C `I &'.(a-C4?L Nancy T. E ards Interim Exe tive Director Community Development Agency NTE/mlr Exhibits: 1. Amended Agreement with AECOM 2. Council Resolution 3. CRA Resolution 4, Cooperative Agreement 8OA-3 8OA-4 FIRST AMENDMENT TO AGREEMENT THIS FIRST AMENDMENT TO AGREEMENT is entered into on March 7, 2011, by and between AECOM/DMJM Harris, a California corporation ("Consultant") and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS: A. The City and DMJM Harris entered into that certain Agreement A-2008-216, dated August 18, 2008, (hereinafter "said Agreement") by which Consultant has provided engineering and landscape architecture services on an on-call basis. B. In late 2009, staff authorized Consultant to begin the review and assessment of one of the Downtown garages. C. In accordance with the terms and conditions of said Agreement, the parties wish to amend the Scope of Services to include additional assessments and services pertaining to all of the Downtown garages/lots, and to increase the amount of compensation to pay for the additional tasks and services. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, except those amended in this First Amendment to Agreement, the parties agree as follows: 1. Section 1, SCOPE OF SERVICES, shall be amended to include the services set forth in the Consultant's Proposal dated February 10, 2011, attached hereto as Exhibit A and incorporated herein by this reference. 2. Section 3, COMPENSATION, shall be amended to increase compensation by $275,000, to pay for the additional services, at the rates and charges set forth in Exhibit A. The total not to exceed contract amount shall be $475,000.00. 3. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. /// EXHIBIT 1 8OA-5 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Agreement on the date and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: Raul Godinez, Executive Director Public Works Agency CONSULTANT: AECOM/DMJM Harris, a California corporation By: _ Name: Title: 80A-6 EXHIBIT A ADDITIONAL SERVICES 80A-7 AECOM AECOM 999'N. Town & Country Road, Orange. CA 92868 T 714.567.2501 F 714.567.2441 mmaecom.com February 10, 2011 Mr. Jason Gabriel City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92702 Dear Jason, Subject: Fiesta Marketplace Parking Stkt'ucture Final Design This letter is AECOM's proposal for services associated with security upgrades at three City of Santa Ana parking structures and architectural, structural, and security upgrades at the Fiesta Marketplace parking structure. The basis of our scope of work is the assessment matrix prepared by the City and a field walk on February 3, 2011. The field walk included with City staff, AECOM staff, and a PCI manager. For services related to the Fiesta Marketplace, AECOM prepared a proposal in June, 2010 which Included engineering and architectural services needed to prepare contract documents and construction support for the improvements fisted in an assessment report dated May 21, 2010. It is my understanding that those Improvements will be incorporated into this project and this proposal therefore Includes the effort previously described plus some additional security enhancements. Four parking structures are contained in this proposal and scope of work. They include: 3rd and Birch; 5'h and Main; 5 and Sturgeon (Fiesta Marketplace garage); and, 3`4 and Broadway. We have two subconsuftants on our team: Nestor+Gaffney and the Structural Group. Structural Group will provide inspection and repair of the post-tensioning tendons in the Fiesta Marketplace parking structure and Nestor+Gaffney will provide architectural services for the same garage. General Scope of Work Items The scope of work for this proposal Is to prepare contract documents for the improvements described below. The proposal does not Include seismic analysis or retrofit of any structures, fire sprinklers, parking lot ingress/egress controls, or modifications to the sidewalks or public streets around the parking structures. In addition, video surveillance camera systems are not Included In this proposal since the final decision of whether to include them has not yet been made. The contract documents will be to City of Santa Ana standards and will include plans, specifications, and contract provisions. It Is assumed that the City's standard boilerplate contract document will be used as a basis and updated with the project's information to form the final contract documents. This will be performed by AECOM as part of this proposal. The scope of work also Includes construction administration (CA). For this scope of work, CA is defined as support to the City during the bid phase which includes answering bid questions. CA also includes periodic field visits during construction (four visits), answering of requests for information (RFIs), and. reviewing shop drawings as called for in the technical specifications. The City will advertise, collect bids, analyze bids, and award construction contract; this work in not included with this proposal. This proposal does not include administration of the construction contractor's contract, daily or frequent inspections, tracking of changes during construction, or oversight of the contractor's work. 8OA-8 AECOM will prepare a cost estimate for the improvements, and provide management and coordination during the design. Other assumptions include: Submittal of the drawings will be made for the 50% milestone; 100% draft package; and final construction documents. Drawings will be in Autocad. No geotechnical services are included The hourly rates for 2011 are as listed In AECOM's On-Call contract (City contract number A-2008-216). That rate sheet is attached for reference. The detailed proposals from Nestor+Gaffney and Structural Group are attached which further specify the scope of work and fee for each of their tasks. Prolect Specifics - 5th and Sauraeon (Fiesta Marketplace) Services will include those described in the Fiesta Marketplace Assessment Report dated May 21, 2010. In general these items Include preparation of final construction documents which will include architectural upgrades, structural repairs, lighting upgrades, ADA compliance, and post-tensioning tendon inspection and repair within the parking structure. In addition to Assessment Report, the scope of work includes: Security fence around the perimeter of level 2 of the structure. Panic hardware on all exterior doors, and screening around those doors to enhance security. Design solutions for two overhead roll-up security doors at each vehicle entrance. The scope of work for this parking structure includes the following: Architectural Services As listed in the proposal from Nestor+Gaffney which Is Included as Attachment B In this proposal. Security fence around the perimeter of level 2 of the structure. Panic hardware on all exterior doors, and screening around those doors to enhance security. Design solutions for two overhead roll-up security doors at each vehicle entrance. Structural Enaineerlna Identify damaged and spalled concrete. Identify location of exposed post-tensioned strands on floor plans. Review and coordinate repair works for strands with subcontractor. Provide design and detail as needed to attach new sign to the structure at north entrance. Slgnage will be designed by the sign vendor (by others) who will supply the reaction loads at anchor points. Provide design and detail of supports as needed for roll-up doors. Provide detail to eliminate ponding at one column location on ground floor. Coordinate with other consultants and governing agencies as required. Respond to plan check comments. Prepare calculations, drawings, and book specification for all recommended works. Provide CA during construction. Electrical Encrineerina Verify as-built drawings. Power plans to Include the upgrade of gate controls and the installation of electrically operated overhead roll-up doors. Prepare electrical drawings and book specifications for electrical upgrade works. Coordinate with other consultants and governing agencies as required. Respond to plan review. Review contractor submittals. Note: It is our understanding that the lighting improvements within this structure will be undertaken by PCI and we have therefore not Included any hours for that task or item. ilon I A[COM 8OA-9 Mechanical Enoineenno Prepare drawings for existing drainage system upgrades Equipment schedule for a new pump Review contractor submittals WQMP/NPDES The project will be classified as a non-priority project (less than 5,000 SF disturbed area). Design of site or treatment control BMPs will not be required. One site visit. The WQMP will be structured as shown in the template included on the Orange County Public Works website. The total cost of the service is $156,480. This cost is based on the following breakdown: Engineering/Mgmt $ 17,200 Engineering/Mgmt $ 4,000 Architectural Engr $ 20,500 Electrical Engr $ 6,700 Structural Engr $ 42,800 Mechanical Engr $ 5,400 Nestor+Gaffney $ 25,000 Structural Group (Insp & prtct) $ 18,800 Structural Group (tendon repair) $ 7,200 Cost Estimate $ 3,500 (Design Phase - coord, mgmt, bid document, WQMP) (Construction Administration) (Design and Construction Administration) (Design and Construction Administration) (Design and Construction Administration) (Design and Construction Administration) (Design and Construction Administration) (Inspection and protect w/ concrete cover over tendons) (if needed - assumes 4 tendons will require repair) Subconsultant mark-up (10%) $ 4,380 (10% of Gaffney plus Structural Group insp /protect) AECOM Trans ODC $ 1.000 Total Cost (this location): $156,480 AECOM Engineering/Mgmt cost for the design phase is based upon: 32 hours of coordination 40 hours of WQMP/NPDES 32 hours to prepare bid documents (technical specs are contained In each consultant's proposal). 24 hours - Construction Administration (this is in addition to CA listed for AECOM Architectural and Nestor+Gaffney) ODCs assumed to be $1,000. The scope of work and bid proposal for AECOM Architectural is contained In Attachment A, for Nestor+Gaffney in Attachment B, and for Structural Group in Attachment C. This proposal assumes that the Structural Group will repair four tendons which Is essentially a contingency sum since it is not possible to determine whether the tendons will require repair until the investigation has been conducted. 3'd and Birch Parklna Structure The work at this location includes replacement of steel mesh around exterior doors; new egress doors equipped with panic hardware; two roll-up grilles across entrance; security bars/grilles to enclose exterior stairways (this combines having to replace hand railings and adding bars); reverse swing of exterior door; reconfiguration of handicap parking stall and handicap egress near southwest corner of structure. For architectural services detailed scope of work see Attachment A. Note: ADA access will not be checked for the entire garage. Instead, only those areas affected by the work will be checked and reconfigured as necessary (see Attachment A). AECOM 80A-10 Electrical Engineering Note: it is our understanding that the lighting improvements within this structure will be undertaken by PCI and we have therefore not included any hours for that task or item, AECOM will: Verify as-built drawings. Power plans to include the upgrade of gate arm controls and the installation of electrically operated overhead roll-up doors. Prepare electrical drawings and book specifications for electrical upgrade works. Coordinate with other consultants and governing agencies as required. Respond to plan review. Review contractor submittals. Structural Engineering Support of architectural security enhancements. The total cost of the service is $57,950. This cost is based on the following breakdown: Engineering/Mgmt $ 7,300 Engineering/Mgmt $ 2,400 Architectural Engr $ 32,350 Electrical Engr $ 6,700 Structural Engr $ 7,700 Cost Estimate $ 1,500 Total Cost (this location): $ 57,950 (Design Phase - coord, mgmt, bid document) (CA) (Design and CA) (parking controls electrical) (Design and CA) AECOM Engineering/Mgmt cost for the design phase is based upon: 20 hours of coordination 16 hours to prepare bid documents (will be reduced if Fiesta is Included since hrs overlap effort) 12 hours CA _ 5"' and Main Street Parking Structure AECOM's scope of work generally includes: Incorporation of security bars/grilles to second story of parking structure; replacement of concrete panel on second story along Main Street side of structure; Incorporation of electrical equipment as needed to accommodate management booth. For architectural services detailed scope of work see Attachment A. Electrical Engineering Verify as-built drawings. Power plans to include the upgrade of gate arm controls, booths, and installation of electrically operated roll-up gates. Prepare electrical drawings and book specifications for electrical upgrade works. Coordinate with other consultants and governing agencies as required. Respond to plan review. Review contractor submittals. Structural Engineering Support of architectural security measures. The total cost of the service is $43,475. This cost is based on the following breakdown: EngineeringiMgmt $ 3,250 (Design Phase - coord, mgmt, bid document) Engineering/Mgmt $ 1,625 (CA) Architectural Engr $ 20,500 (Design and CA) \ia'C;i':,I ?fylliiLl('Qt ti!( li i AECOM 8OA-11 Electrical Engr $ 9,600 Structural Engr $ 7,000 Cost Estimate $ 1.500 Total Cost (this location): $ 43,475 (maintenance hub and typical work) (Design and CA) AECOM Engineering/Mgmt cost for the design phase is based upon: 16 hours of coordination 16 hours to prepare bid documents (will be reduced if Fiesta is included since hrs overlap effort) 8 hours CA 3rd and Broadway Parking Structure AECOM's scope of work generally includes: Incorporation of security bars for first and second stories of structure; equip exterior doors with egress only hardware and panic hardware; roll-up grilles at three locations within structure; install gates on two locations to limit access across pedestrian bridges; upgrade all lighting within structure; add lighting to exterior alcove on southeast portion of structure; and update electrical drawings by other for incorporation into package. Resolution of low point on top story which results in ponding on top floor, and installation of a new booth and electric gates within the garage will be by others. That work is not included in this scope or work. For architectural services detailed scope of work see Attachment A. Electrical Enaineerina Verify as-built drawings. Upgrade existing lighting; where new fixtures are required, exposed conduit will be specified. Power plans to include upgrade of gate controls, booths, and overhead roll-up gates. Prepare electrical drawings and book specifications for electrical upgrade works. Coordinate with other consultants and governing agencies as required. Respond to plan review. Review contractor submittals Structural Enalneerina The total cost of the service is $63,775. This cost Is based on the following breakdown: Engineering/Mgmt $ 8,100 Engineering/Mgmt $ 2,760 Architectural Engr $ 31,215 Electrical Engr $ 12,500 Structural Engr $ 7,700 Cost Estimate $ 1.500 Total Cost (this location): $ 63,775 (Design Phase - coord, mgmt, bid document) (CA) (Design and CA) (new lighting plus typical) (Design and CA) AECOM Engineering/Mgmt cost for the design phase is based upon: 20 hours of coordination 20 hours to prepare bid documents (will be reduced if Fiesta is Included since hrs overlap effort) 12 hours CA AECOM 8OA-12 Summary of Costs: 5d' & Spurgeon (Fiesta Marketplace): $ 156,480 3rd & Birch Structure: $ 57,950 5t' & Main Street Structure: $ 43,475 Td & Broadway Street Structure: $ 63,775 Architectural Enor - Specifications $ 9,245 Total Costs $ 330,925 Schedule Below is the duration anticipated to prepare the complete construction documents for the four sites. Research and Inspection 2 weeks Design Development (50% plans) 6 weeks City review (as requested) 3 weeks Draft Construction Documents 8 weeks City review 4 weeks Final Construction Documents 3 weeks Total 26 weeks Please review the proposal and let me If you would like to discuss the contract and total costs. Also, would like to thank you for the opportunity to provide this proposal and to assist the City. Our team Is looking forward to the work. Sincerely, An lk?' Gregory W. Hefter Project Manger I AECOM i 8OA-13 Attachment A AECOM Architectural Services Scope and Fee Estimate %?•._.(;OI`.?? lirut:::nrn i,littnl i 'AECOM 8OA-14 AECOM AECOM 999 W. Town & Country Road, Orange, CA 92868 T 714.567.2501 F 714.567.2441 wymaecom.com The cost of the architectural service is based on each parking structure and its scope of work. 3rd Street and Birch Parking Structure: Architectural scope of work: AECOM will perform a one day Field Investigation to review the accuracy of the architectural as-built documentation for the areas of improvement described below. AECOM will prepare a design solution and construction documents for the addition of two (2) new overhead roll-up doors at the existing East vehicle entrance. AECOM will prepare a design solution and construction documents for the addition of a new security fence at the perimeter of Level 2. AECOM will review the existing conditions, propose design solutions and prepare construction documents for access compliance improvements for the following limited areas as directed by the Owner: Path of travel at Southwest of parking structure to Include relocation of handicap parking stall, reconfiguration of egress gate and landings, and path of travel from egress door to the adjacent sidewalk. Fall protection at both stair towers in the Northeast and Southwest Our review of the existing conditions includes only those items listed and is not a complete analysis of the accessibility compliance of the parking structure. Other known deficiencies will not be addressed per Owner direction. AECOM will prepare a design solution and construction documents for the demolition and replacement of existing security screens (including metal plate blocking at existing panic hardware) at all pedestrian egress gates and stairs on Level 1. AECOM will review shop drawings, and prepare RFI responses for the scope described above during the construction phase. We will complete three (3) one day site visits for construction observation during the construction phase. The proposed stipulated sum for the scope described is $32,350 Field Investigation $1,015 Design and Construction Documentation $25,755 Construction Phase Services $5,580 3rd Street and Broadway Parking Structure Architectural scope of work: AECOM will perform a one day Field investigation to review the accuracy of the architectural as-built documentation for the areas of improvement described below. AECOM will prepare a design solution and construction documents for the addition of three (3) new overhead roll-up doors at the existing North, South and East vehicle entrances, and each has an adjacent fencing extension includes a pedestrian gate. AECOM will prepare a design solution and construction documents for the addition of a new security fence at the perimeter of both Level 1 and Level 2. AECOM will prepare a design solution and construction documents for the addition of two (2) pedestrian gates and adjacent 5-foot fencing extension both sides to secure entry from pedestrian bridges at the North and East perimeters. Review or improve the accessibility compliance of the parking structure is not in the scope of work per Owner directive. AECOM will review shop drawings, and prepare RFI responses for the scope described above during the construction phase. We will complete three (3) one day site visits for construction observation during the construction phase. The proposed stipulated sum for the scope described is $31,215 Field Investigation $1,015 Design and Construction Documentation $23,850 Construction Phase Services $6,350 8OA-15 5`h and Main Parking Structure Architectural scope of work: AECOM will perform a 3-hour Field investigation to review the accuracy of the architectural as-built documentation for the areas of improvement described below. AECOM will prepare a design solution and construction documents for the addition of a new security fence at the perimeter of Level 2. Review or improve the accessibility compliance of the parking structure is not in the scope of work per Owner directive. AECOM will review shop drawings, and prepare RFI responses for the scope described above during the construction phase. We will complete two (2) one day site visits for construction observation during the construction phase. The proposed stipulated sum for the scope described is $20,500 Field Investigation $380 Design and Construction Documentation $16,055 Construction Phase Services $4,065 5"' and Spurgeon Parking Structure Architectural scope of work: AECOM will perform a 3-hour Field Investigation to review the accuracy of the architectural as-built documentation for the areas of improvement described below. AECOM will prepare a design solution and construction documents for the addition of a new overhead roll-up door at each existing vehicle entrance - a total of two (2) overhead roll-up doors Review or improve the accessibility compliance of the parking structure is not in the scope of work per Owner directive. AECOM will review shop drawings, and prepare RFI responses for the scope described above during the construction phase. We will complete two (2) 3-hour site visits for construction observation during the construction phase. The proposed stipulated sum for the scope described Is $9,450 Field Investigation $380 Design and Construction Documentation $7,165 Construction Phase Services $1,905 The total proposed stipulated sum for the scope of work at all four (4)parking structures is $102 760 based on the following breakdown: , P Street and Birch Parking Structure 3`d St t d B $32,350 ree an roadway Parking Structure "' $31,215 5 and Main Parking Structure 5"' d $20,500 an Spurgeon Parking Structure $9,450 Project Specification Manual $9,245 Should the Owner request AECOM's participation at any construction meetings, we would be happy to provide this service on a time and materials basis at an hourly rate of $125/hr. '. AECOIvi 8OA-16 Attachment B Nestor+Gaffney Scope and Fee Estimate AECOM lraii poilalion AECOM 80A-17 STEVEN GAFFNEY ARCHITECTURE INC 305 W. FOURTH ST. SANTA ANA. CA 92701 wwwsgoffneyorch.com TEL: 714 571 0500 FAX:714 571 0600 February 7, 2011 Mr. Gregory Hefter AECOM 20 Empire Drive Lake Forest, California 92630 BE: Proposal for Architectural Services City of Santa Ana, Fiesta Marketplace Parking Structures Greg, I am pleased to submit this proposal for architectural services for the above referenced project. PROJECT DESCRIPTION The Project is located on two parcels of City owned land fronting East Fifth Street and extending to the alley between Fifth and Fourth Streets. The Western parcel is located between Birch Street and Spurgeon Street white the eastern parcel Is located between Spurgeon Street and French Street. The main access to both parcels is from Spurgeon Street. The Project consists of two public multistory open parking structures with vehicular and pedestrian circulation. The Project includes general fagade remodel / renovation / modernization, miscellaneous code required upgrades including disabled access compliance for stairs & railings, path of travel, upgrade of at least a single unisex restroom for parking attendant, lighting upgrades / replacement, graphic & signage upgrades / replacement and miscellaneous site Improvements. Conceptual design documents have been prepared under a previous Agreement and will form the basis of the intended scope of improvements. Steven Gaffney Architecture, Inc. (SGA) understanding is that the City desires to renovate and modernize the existing structures by creating a new architectural vision for the overall downtown development within the "Fiesta Marketplace" area. To accomplish this SGA proposes the following Scope of Services. SCOPE OF WORK: SGA Basic Services: It Is our understanding that the City of Santa Ana has entered into an Agreement with AECOM to provide certain services related to the above referenced Project. AECOM desires to enter into an Agreement with Steven Gaffney Architecture, Inc. (SGA) to provide certain services to assist AECOM in the preparation of the scope items indicated below. SGA services will include the following: SGA will prepare overall site design improvements based on the previously studied conceptual design and provide coordination with The City of Santa Ana, AECOM and other selected consultants for streetscape improvements Including both hardscape and landscape enhancements, vehicular parking circulation / controls, street furniture, graphics and signage. The new Improvements will be coordinated with and complement the relationships to the adjacent retail and business developments. 8OA-18 Mr. Gregory Hefter February 7, 2011- Page 2 • SGA will prepare designs and documents for Fagade remodel / renovation / modernization improvements that may 'include, but are not limited to, removal of and replacement of existing graphics, removal and replacement of existing guardrail planters and supports; new applied architectural detailing with new and complementing designs, materials and colors. • SGA will analyze and prepare designs and documents to address code required improvements including, but not limited to, disabled access compliance for stairs & railings, path of travel access & egress, upgrade of at least of the existing public restrooms to a single uni-sex restroom for parking attendant and elevator access verification. • SGA will provide assistance and coordination to AECOM, The Oily and other consultants for miscellaneous improvements that may include, but are not limited to, new signage and graphics prepared by other, new parking control system prepared by others, new interior lighting prepared by AECOM with fixtures as coordinated with SGA, new Interior paint finishes including graffiti prevention and structural improvements as may be required by AECOM. SGA Basic Services will include Architectural Services Only. SGA's Basic Services will include the preparation of architectural documents and coordination with AECOM and other design professionals to competitively bid and build the desired improvements as indicated above. SGA Basic Services do not include the following consultants, engineers or services; geotechnical engineering, civil engineering, structural engineering modifications to existing structure, mechanical engineering, electrical engineering, fire sprinkler/ life safety, landscape design services, graphlc/signage design and vehicular access and pedestrian security design services. SGA Basic Services will include coordination with AECOM and other additional consultants the City may select, including, but not limited to, Signage & Graphics and Parking Controls. Basic services do not Include utility relocation or temporary facilities which may or may not be required. Basic Services and Responsibilities: Programming / Master Planning: Provided under separate Agreement with the City of Santa Ana. SGA Design Development Services: Design Development Documents Prepare a package of drawings and other documents refining and explaining the proposed program improvements. This package includes general site plan, floor plans, elevations, sections and details as may be required. Coordinate with AECOM for structural, mechanical and electrical improvements. r Coordinate any required street improvements directly adjacent to the Project with the appropriate City Department or consultant. Coordinate any signage and graphic designs with the appropriate City Department or consultant. 8OA-19 Mr. Gregory Hefter February 7, 2011- Page 3 Coordinate any parking control designs with the appropriate City Department or consultant. Attend meetings with AECOM and the City as may be required and make presentations as requested or required. SGA Construction Document Services: SGA Architectural Construction Documents: Prepare construction documents consisting of drawings and specifications setting forth the requirements for project construction, The final construction documents will be of sufficient detail to reasonably bid and build the project by a competent general contractor familiar with this type of work. The architectural construction documents are prepared from the approved Design Development drawings with two-dimensional graphic representations, such as plans, elevations, sections, and details indicating the design, location, size, and dimensions of the project and of the parts thereof. (dotes on the drawings and specifications support and explain the graphic representations. Coordinate with AECOM for structural, mechanical and electrical improvements. Coordinate any required street Improvements directly adjacent to the Project with the appropriate City Department or consultant. Coordinate any signage and graphic designs with the appropriate City Department or consultant. Coordinate any parking control designs with the appropriate City Department or consultant. Attend meetings with AECOM and the City as may be required and make presentations as requested or required. Plan Check: Submit the appropriate documents to the various govemmental departments for the purpose of checking plans prior to Issuing building permits. Coordinate with the various governmental agencies and make adjustments necessary to the architectural construction documents and coordinate any requirements with AECOM and other City consultants so that they will satisfy the requirements for Issuance of a building permit. SGA Construction Administration Services: General SGA will provide services during the course of construction on an as needed basis to assist AECOM and the City in the bidding and selection of an overall Project Construction Manager andlor General Contractor and will be available to provide the s; services indicated below within the ailotted amount Indicated In the Compensation section below. 8OA-20 Mr. Gregory Hefter February 7, 2011- Page 4 Construction Observation: Make visits to the site during the construction of the project, review the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the contract documents and the general conditions of the contract. Provide assistance to the contractor and subcontractors as is reasonably required to explain or interpret the drawings. Shop Drawings and Submittal Review: Review and take appropriate action on shop drawings, product data, samples, and other submittals required by the construction documents. Addendums, Bulletins and Change Orders: Prepare Addendums prior to the construction contract award and Bulletins after the construction contract is awarded or construction has commenced. Addendums and Bulletins will provide the contractor with information relating to clarification, documentation of field changes, detail changes and Client changes. The Architect shall review and respond to Change Orders submitted by the general contractor. Request for Information (RFI's): Review and respond to requests for information or clarification submitted by the general contractor. RFI's resulting in a change to the contractor's contract shall be issued as an Addendum or a Bulletin. COMPENSATION: Professional Fees: SGA shall be compensated for the Design Development and Construction Document Phase hourly with a not to exceed amount of Twenty Two Thousand Five Hundred Dollars ($22,500). For the Construction Administration Phase SGA shall be compensated hourly with a not to exceed amount of Two Thousand Five Hundred Dollars ($2,500) on an as needed basis. Hourly Rates: Principals $210 per hour Sr. Associates $170 per hour Associates $130 per hour Project Architect $120 per hour Designer $100 per hour Clerical $ 60 per hour REIMBURSABLE EXPENSES: Reimbursable expenses are In addition to compensation noted above and include expenses i made by SGA. These expenses shall include computer plots, blueprinting and reproduction, photo work, overnight delivery and messenger delivery services, renderings and models. Reimbursable expenses will be billed at 1.15 x actual cost. Plotting by SGA will be billed at $1.50 / sf. 8OA-21 Mr. Gregory Hefter February 7, 2011- Page 5 PAYMENT: Invoices shall be billed monthly showing time expended for each monthly cycle. Payment of invoices is required within 30 days of date of invoice. SUMMARY: We are pleased to submit this proposal for architectural services. If you have any questions or require addition clarification, please call. If this proposal meets with your approval, we can prepare the appropriate Agreements for these services or review an Agreement prepared by AECOM. Sincerely, STEVEN GAFF,NWAACHITECTURE, INC. Steven Gaffney, A1A, LEED AP Principal 8OA-22 Attachment C Structural Group Scope and Fee Estimate '??:.i.;C.)\,1 -,'•?i?il',i3(ai IF't;+e;rl AECOM 8OA-23 STRUCTURAL02h, /GROUP Proposal No. 109646 March 25, 2010 AECOM Transportation Mr. Gregory W. Heftner, PE 999 W. Town & Country Road Orange, CA 92868 Los Angeles Division 15552 Commerce Lane Huntington Beach, CA 92649 Phone 714.891-9080 Fax 714-897.0163 www.structural.net Structural Group, Inc. CA License #:776932 Re: Fiesta Marketplace Parking Structure- Post Tension Inspection and Repair Dear Mr. Heftner: Thank you for giving Structural Group, Inc. (SG) the opportunity to prepare a repair proposal for the post tension cables at the Fiesta Marketplace Parking structure. The post tension appears to be in good condition with the exception of several exposed tendons in each garage. In order to prepare for larger repair project we propose a plan to investigate the condition of the exposed cable while at the same time providing a solution to the concerns about water penetration and future damage to the cables, In accordance with this we propose to f imish all necessary labor, material, equipment and supervision except as noted below to perform the following items of work: 1. Mobilize to job site 2. Layout repair areas 1-5 (as shown in attached photos 1-5). 3. Saw-cut approx %Z inch deep around patches. 4. Chip-out repair area to expose cables and provide keyway. 5. Inspect exposed cables for condition and tension. 6. Provide stamped engineers report on cable condition. 7. Re-seal damaged tendon sheathing per PTT specification (see image 6). 8. Prep concrete surface for topping. 9. Install high strength concrete repair material to provide min 1 inch cover for cables. If deemed necessary from inspection of the cables and engineering analysis of the existing capacity of the structure we also propose to re-tension existing broken cables as follows: I. Locate quarter point of cable profile. 2. Expose cable at this point. 3. Install cable coupler per PTI specifications with splice of new cable length. 4. Using "Z" anchor, re-tension cable to required pressure within open slab location. 5. Using high strength concrete repair mortar pour back open patch. ATLANTA. BALTIMORE • BATON ROUGE. BIRMINGHAM. CHICAGO -CINCINNATI. DALLAS -DENVER. DETROIT. FT LAUDERDALE . GREEN BAY. HARTFORD -HOUSTON KANSAS CITY. LAKE CHARLES, LA. LOS ANGELES - NEW YORK. PHILADELPHIA. PHOENIX . PITTSBURGH - SALT LAKE CRY -WASHINGTON, OC. WEST FLORIDA A Structural Group Company 8OA-24 Fiesta Marketplace Parking Stricture March 25, 2010 Page 2 WORKING CONDITIONS: 1. Daytime work hours (7:00a.m. -- 3:30p.m.). 2. Around the clock if needed. 3. Five (5) day week MTWThF. 4. Traffic control 5. Phased construction. 6. Enclosed work area. 7. Daily debris removal. 8. Open shop. Union Project Labor Agreements are not included. 9. Non-Prevailing wage rates 10. Debris removed from site. SUPPORT BY OTHERS (at no cost to SG) SHALL INCLUDE THE FOLLOWING: 1. 110V electric available at existing outlets. 2. The use of onsite toilet facilities. 3. Access to potable water. 4. Parking for service vehicles. 5. Construction permits if required. 6. Security guards. 7. Unobstructed access to work area. 8. Storage area. 9. Not responsible for damage to embedded utilities. SCHEDULE: To be arranged. PRICE: All work shall be paid for in accordance with the following schedule of values: • The price to perform the investigative/repair work as outlined above is $18,800.00 • The price to perform the PT repair work is $1,800.00 per location PAYMENT TERMS: 1. 20% down payment upon acceptance. 2. Future invoices shall be submitted monthly and/or at the completion of work and are payable within thirty (30) days from date of invoice. One and one-half (1.5%) interest due on unpaid balance after thirty (30) days. 8OA-25 Fiesta Marketplace Parking Stricture March 25, 2010 Page 3 GENERAL CONDITIONS: See Attachment "A" EXPIRATION: This proposal may be withdrawn if not accepted within thirty (30) days. Very truly yours, Structural Group, Inc. Benjamin Ball Nils Fox Project Estimator Business Development ACCEPTANCE Or PROPOSAL: The above Conditions, Specifications, Prices and General Conditions are hereby accepted. This proposal, once signed, acts as the only agreement between the parties. You are authorized to proceed to do this work and payment will be as stated above. ACCEPTED BY: Authorized Signature Title Date 8OA-26 Fiesta Marketplace Parking Structure March 25, 2010 Page 4 8OA-27 Fiesta Marketplace Parking Structure March 25, 2010 Page 5 8OA-28 FIGURE Ji M tl x Y ft area on h floor UI East garage Fiesta Marketplace Parking Structure March 25, 2010 Page 6 8OA-29 15.6 Repair of Damaged Sheathing The following is a recommended guideline for determining when damaged sheathing is to be repaired, and what methods and materials are to be used in the repair process. The purpose of the sheathing material is two-fold. First, it prevents the concretafrom bonding to the prestressing steel so that it can be tensioned after concrete placement. Second, it contains the P-T coating and serves as a barrier against corrosion. In an aggressive environment, where the designer has specified an encapsulated system, the requirements call for the tendon to be completely watertight from end anchor to end anchor. This is strictly interpreted that nQ prestressing steel is to be exposed and that Ail rips, tears, or gaps in the tendon sheathing are to be repaired using one of the methods described below. In a non-aggressive environment, where the designer has specified the use of a standard system, the requirements are typically not as stringent as those referenced above for aggressive environments. Typically, for standard system applications, a maximum of 1 inch of exposed prestressing steel is allowed behind the stressing-end anchors and a maximum of 12 inches is allowed at the fixed-end anchors. In addition, rips and tears 1 inch or less in length may be left un-repaired; however, all gaps (total discontinuities) in the sheathing should be repaired as described below. In some non-aggressive environment applications, the engineer may specify more stringent requirements than those noted above. Rips and tears in the sheathing greater than 1 inch in length should be repaired according to method #1 or 42 (described below) in order to protect the strand and prevent excess friction during stressing. All gaps (total discontinuities) in the sheathing should be repaired using only method #1 described below. Repair Method #1: 1. Restore tendon P-T coating In damaged area If needed. ' 2. Place a section of split tubing over the damaged area (tendon sheathing can be used if two pieces are overlapped). It should overlap at least 3 inches (75 mm) past each end of the original tendon's sheathing. 3. Spirally wrap the entire length of the repair area with tape, overlap 501/6, and extend the tape past the end of the repair section by 3 inches (75 mm) in both directions. I I DAMAGED 3 1END0lI (T6mm) AREA (18mm) ® TUB91C I _ y' I SPIRAL VRWKD TAPE 89 8OA-30 :IE Repair Method #2 Taping can be used in place of method #1 to repair small rips and tears in the sheathing where no significant portion of the original sheathing is missing. Spirally wrap a minimum of two layers of repair tape, overlapping by 50% and extending a minimum of 3 Inches (75 mm) past the damaged area in both directions. C Acceptable Material PTI's Specification for Unbonded Single Strand Tendons states that the tape used Q should: • be self-adhesive and moisture proof • be non-reactive with sheathing, P-T coating, and prestressing steel • have elastic properties • have a minimum width of 2 inches • have a contrasting color to the tendon sheathing Tests run by PTI have shown that various materials, Including PVC pipe wrap tape, waterproof duct tape, and other PVC and polyethylene tapes, meet these requirements and F perform as required.The testing revealed that the most important tactor in the performance F of any tape repair is that the application of the tape is smooth and that seams, joints, and tape wrinkles are kept to a minumum. Testing showed that tapes wider than 3 inches were very difficult to properly apply without wrinkles and still maintain the watertight seal that is I 9o p 8OA-31 Hourly Rates For On-Call Contract A-2008-216 AECONI 8OA-32 AECOM Hourly Rate Schedule - Santa Ana On-Call Contract Note: 2019 rates reflect 2% Increase from 2010 Classification 2010 Billing Rates 2011 Billing Rates Project Director $218.48 $222.85 Protect Manager $199.20 $203.18 Technical Specialist $183.14 $186.80 Principal Engineer $164.93 $168.23 Project Controls Manag er $146.73 $149.66 Senior Engineer $142.44 $145.29 Engineer $124.24 $126.72 Senior CAD Designer $124.24 $126.72 Associate Engineer Project Controls Specialist $103.89 $105.97 Assistant Engineer $97.46 $99.41 $94.25 $96.14 CAD Drafter $83.54 $85.21 Administrative Assistant $70.69 $72.10 ` AECOM 8OA-33 8OA-34 3-3-11 LES RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF SANTA ANA APPROVING A COOPERATIVE AGREEMENT REGARDING CONSTRUCTION IMPROVEMENTS TO THE DOWNTOWN PARKING GARAGES/LOTS WITH THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA AND MAKING CERTAIN FINDINGS PURSUANT TO SECTION 33445 OF THE HEALTH & SAFETY CODE 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 Community Redevelopment Agency of the City of Santa Ana (hereinafter referred to as the "Agency") is engaged in activities necessary to execute and implement the Redevelopment Plan for the Merged Project Area (the 'Redevelopment Plan"), in the area known as the Central City Project Area. B. The Agency and City of Santa Ana (the "City") wish to cooperate with one another to bring about the redevelopment of the Project Area and accomplish various tasks set forth in the Redevelopment Plan and the Implementation Plan. C. Pursuant to Section 33220 of the Community Redevelopment Law (Health and Safety Code section 33000, et seq.) (the "CRL") certain public bodies, including the City may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects. D. The Agency and City have prepared a Cooperative Agreement (the "Agreement") to provide for the implementation of certain projects pertaining to the parking garages/lots within the Central City Project Area. (the "Projects"), and to make payments by the Agency to the City to reimburse the City for the cost to the City for performing its obligations thereunder. E. Section 33445 of the Health & Safety Code, part of the California Redevelopment Law, provides that the Agency may pay for all or part of the cost of installation and construction of any building, facility, structure or EXHIBIT 2 8OA-35 other improvement which is publicly owned either within or without the project area, upon the consent of the City Council of the City of Santa Ana ("City"), if the following findings can be made: 1. That the public improvement is of benefit to the project area or the immediate neighborhood in which the project is located; 2. That no other reasonable means of financing the public improvement is available to the community; and 3. That the payment of funds for the cost of the public improvement will assist in the elimination of one or more blighting conditions inside the project area. F. The City is the owner of numerous parking structures in the City's Downtown. These parking structures are located within the Central City Project Area. The structures are in need of capital improvements, architectural upgrades for structural efficiency, ADA compliance, and addition of new security systems and installation of operational equipment. G. The City further desires to add to the design efforts for the four structures with the implementation of the way-finding sign program for the Downtown including construction of signage for the parking structures and public surface parking lots. H. The publicly owned improvements to be made to the parking structures will be of benefit to the merged Project Area (and the Central City Project Area) as well as benefit the immediate neighborhood and all patrons of the Downtown. This finding is supported by the fact that public improvements in general facilitate the removal of blight and help create a safe, more cohesive and economically dynamic community. Public safety improvements eliminate blight, improve traffic flow, increase the safety of residents, create and promote business attraction and retention in the Downtown. The City, public and business community will significantly benefit from the proposed Projects. These public improvements will beautify public streets, promote business, and improve public infrastructure necessary to spur economic revitalization in the Project Area. 1. The City determines that it lacks funds to pay for the Project at this time, and there are no other reasonable means of financing said improvements. It has been difficult for the City, by itself, to provide sufficient funds to support the construction of major public improvements. The limited resources of the City's General Fund are committed to 2 8OA-36 previously incurred obligations and planned projects. J. The Agency approved the sale and issuance of tax allocation bonds which included approximately Six Million One Hundred Thousand ($6,100,000) dollars in new debt to finance the proposed Projects. Further, there are 2003 bond proceeds from the South Main Project Area (approximately $2,500,000) which can be used for this capital improvement/construction project, as well as $900,000 from the merged project capital fund which can be of benefit to the Merged Project Area. The actions recommended provide an opportunity to affirm the use of bond proceeds pursuant to the Official Statement and budgeted capital project funds for the improvements mentioned herein. K. The City further finds and determines that the payment of funds for the construction of the publicly owned improvements is consistent with the Implementation Plan adopted pursuant to Health and Safety Code Section 33490. L. The City finds that it is in the best interests of the City and the common benefit of residents, employees, business tenants and property owners within the Project Area and the City as a whole for the Projects to be developed and constructed. M. The City Council has received and heard all oral and written objections to the proposed payments by the Agency to the City for the Projects as described in the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. N. The City Council hereby finds and determines that the foregoing findings are true and correct. Section 2. The City Council hereby consents to the payment by the Agency of up to $9,445,000.00 in Agency funds from the Merged Project Area as well as bond funds for these publicly owned improvements, in accordance with that certain Cooperative Agreement to be executed between the Agency and the City. Section 3. The City Manager is hereby authorized to take all steps, and to sign all documents and instruments necessary to implement and cant' out the Resolution and Cooperative Agreement on behalf of the City. Section 4. The Clerk of the Council shall attest to and certify the vote adopting this Resolution. 3 8OA-37 ADOPTED this day of , 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, City Attorney By: Lisa E. Storck Assistant City Attorney AYES: NOES: ABSTAIN: NOT PRESENT Councilmembers: Councilmembers: Councilmembers: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of Council, do hereby attest to and certify the attached Resolution No. 2011- to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of Council City of Santa Ana 4 8OA-38 3-2-11 LES RESOLUTION NO.2011- A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA APPROVING A COOPERATIVE AGREEMENT REGARDING CONSTRUCTION IMPROVEMENTS TO THE DOWNTOWN PARKING GARAGES/LOTS WITH THE CITY OF SANTA ANA AND MAKING CERTAIN FINDINGS PURSUANT TO SECTION 33445 OF THE HEALTH & SAFETY CODE BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, AS FOLLOWS: Section 1: The Community Redevelopment Agency Board hereby finds, determines and declares as follows: A. The Community Redevelopment Agency of the City of Santa Ana (hereinafter referred to as the "Agency") is engaged in activities necessary to execute and implement the Redevelopment Plan for the Merged Project Area (the "Redevelopment Plan"), in the area known as the Central City Project Area. B. The Agency and the City of Santa Ana (the "City") wish to cooperate with one another to bring about the redevelopment of the Project Area and accomplish various tasks set forth in the Redevelopment Plan and the Implementation Plan. C. Pursuant to Section 33220 of the Community Redevelopment Law (Health and Safety Code section 33000, et seq.) (the "CRL") certain public bodies, including the City may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects. D. The Agency and City have prepared a Cooperative Agreement (the "Agreement") to provide for the implementation of certain projects pertaining to the parking garages/lots within the Central City Project Area. (the "Projects"), and to make payments by the Agency to the City to reimburse the City for the cost to the City for performing its obligations thereunder. E. Section 33445 of the Health & Safety Code, part of the California Redevelopment Law, provides that the Agency may pay for all or part of the cost of installation and construction of any building, facility, structure or EXHI?IT 3 8OA-39 other improvement which is publicly owned either within or without the project area, upon the consent of the City Council of the City of Santa Ana ("City"), if the following findings can be made: 1. That the public improvement is of benefit to the project area or the immediate neighborhood in which the project is located; 2. That no other reasonable means of financing the public improvement is available to the community; and 3. That the payment of funds for the cost of the public improvement will assist in the elimination of one or more blighting conditions inside the project area. F. The City is the owner of numerous parking structures in the City's Downtown. These parking structures are located within the Central City Project Area. The structures are in need of capital improvements, architectural upgrades for structural efficiency, ADA compliance, and addition of new security systems and installation of operational equipment. G. The City further desires to add to the design efforts for the four structures with the implementation of the way-finding sign program for the Downtown including construction of signage for the parking structures and public surface parking lots. H. The publicly owned improvements to be made to the parking structures will be of benefit to the merged Project Area (and the Central City Project Area) as well as benefit the immediate neighborhood and all patrons of the Downtown. This finding is supported by the fact that public improvements in general facilitate the removal of blight and help create a safe, more cohesive and economically dynamic community. Public safety improvements eliminate. blight, improve traffic flow, increase the safety of residents, create and promote business attraction and retention in the Downtown. The City, public and business community will significantly benefit from the proposed Projects. These public improvements will beautify public streets, promote business, and improve public infrastructure necessary to spur economic revitalization in the Project Area. 1. The City has determined that it lacks funds to pay for the Project at this time, and there are no other reasonable means of financing said improvements. It has been difficult for the City, by itself, to provide sufficient funds to support the construction of major public improvements. The limited resources of the City's General Fund are committed to 2 8OA-40 previously incurred obligations and planned projects. J. The Agency approved the sale and issuance of tax allocation bonds which included approximately Six Million One Hundred Thousand ($6,100,000) dollars in new debt to finance the proposed Projects. Further, there are 2003 bond proceeds from the South Main Project Area (approximately $2,500,000) which can be used for this capital improvement/construction project, as well as $900,000 from the merged project capital fund which can be of benefit to the Merged Project Area. The actions recommended provide an opportunity to affirm the use of bond proceeds pursuant to the Official Statement and budgeted capital project funds for the improvements mentioned herein. K. The City further finds and determines that the payment of funds for the construction of the publicly owned improvements is consistent with the Implementation Plan adopted pursuant to Health and Safety Code Section 33490. L. It is in the best interest of the City and the common benefit of residents, employees, business tenants and property owners within the Project Area and the City as a whole for the Projects to be developed and constructed. M. The City Council and Agency have received and heard all oral and written objections to the proposed payments by the Agency to the City for the Projects as described in the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. N. The Agency Board hereby finds and determines that the foregoing findings are true and correct. Section 2. The Agency hereby consents to the payment by the Agency of up to $9,455,000.00 in Agency bond and capital funds from the Merged Project Area for these publicly owned improvements, in accordance with that certain Cooperative Agreement to be executed between the Agency and the City. Section 3. The Executive Director of the Agency, or her/his designee, is hereby authorized to execute the Cooperative Agreement on behalf of the Agency, together with such non-substantive changes as may be approved by the Agency Executive Director and the Agency General Counsel. Section 4. The Executive Director of the Agency, or her/his designee, is hereby 8OA-41 authorized to take all steps, and to sign all documents and instruments necessary to implement and carry out and implement the Resolution and Cooperative Agreement, and to administer the Agency's obligations, responsibilities and duties to be performed under the Agreement. Section 5. The Recording Secretary for the Agency shall attest to and certify the vote adopting this Resolution. 8OA-42 ADOPTED this day of 2011. Miguel A. Pulido Chair APPROVED AS TO FORM: Joseph Straka, Interim General Counsel By: Lisa E. Storck Assistant Counsel AYES: NOES: ABSTAIN: NOT PRESENT: Boardmembers: Boardmembers: Boardmembers: Boardmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Secretary of the Agency, do hereby attest to and certify the attached Resolution No. 2011- to be the original resolution adopted by the Community Redevelopment Agency of the City of Santa Ana on , 2011. Date: Secretary, Community Redevelopment Agency 5 8OA-43 8OA-44 COOPERATIVE AGREEMENT BETWEEN THE COMMUNITY REDEVELOPMENT AGENCY AND THE CITY OF SANTA ANA FOR THE DOWNTOWN PARKING GARAGES/LOTS AND THE WAYFINDING SIGNAGE PROGRAM THIS COOPERATIVE AGREEMENT is entered into this 7 h day of March, 2011, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate and politic (the "Agency"), and the CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City"). WITNESSETH A. The Agency is undertaking certain activities necessary for the execution of the City of Santa Ana redevelopment projects (the "Projects") under the provisions of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) and pursuant to the redevelopment plans for the Projects. B. The Agency desires to contract with the City for the City to provide for the construction and installation of public improvements projects which, in this case, will consist of the capital improvements to the parking structures/lots, architectural upgrades for structural efficiency, ADA compliance, addition of new security systems and installation of operational equipment and construction of new signage at the parking structures/lots within the Merged Project Area. Such work will be referred to hereinafter as "Publicly Owned Improvements" in connection with the Agency's redevelopment activities within the Merged Project Area C. The Agency is willing in connection with the provision of such Publicly Owned Improvements by the City, to pay for a portion of the total construction costs of such Publicly Owned Improvements. D. The City has initially paid or will initially pay for said Publicly Owned Improvements on the condition that the Agency contribute to the costs of such construction work on the Publicly Owned Improvements. E. The City and Agency by resolution have each found that the use of Agency redevelopment funding for the Publicly Owned Improvements included herein is in accordance with Section 33445 and 33445.1 of the Community Redevelopment Law ("CRL") and other applicable law. Such Council and Agency resolutions are each based on the authority, with the consent of the Council, to pay all or part of the cost of the installation and construction of any building, facility, structure, or other improvement which is publicly owned, either within or outside a Project Area, if the City Council makes certain determinations. EX431T 4 8OA-45 F. The recommended actions provide an opportunity to affirm the use of bond proceeds pursuant to the Official Statement and budgeted capital project funds for the Publicly Owned Improvements. NOW, THEREFORE, the parties hereto do mutually agree as follows: SCOPE OF WORK A. The City will be contracting with the lowest and best bidder to perform the Parking Structure/Lot construction improvements pursuant to plans and specifications to be prepared by the City. The work consists of capital improvements to the parking structures/lots, architectural upgrades for structural efficiency, ADA compliance, addition of new security systems and installation of operational equipment within the Merged Project Area. B. The City will be contracting for the implementation of the way-finding signage program for the Downtown including, but not limited to, construction of signage for the parking structures and public surface parking lots. C. It is the responsibility of the City to pay all development and construction costs in connection with these Publicly Owned Improvements from funds paid to the City by the Agency under this Agreement. D. The City shall perform its obligations hereunder in accordance with all applicable provisions of federal, state and local laws, including its obligation to comply with environmental laws such as CEQA, and shall timely complete the work required for the Publicly Owned Improvements referenced herein. 2. COMPENSATION AND METHOD OF PAYMENT The Agency shall contribute to the construction of the Publicly Owned Improvements in an amount not to exceed Nine Million Four Hundred Fifty Five Thousand Dollars ($9,455,000.00), with the breakdown of project costs as shown in Exhibit A attached hereto and incorporated herein. The Agency shall pay the City the actual cost incurred by the City for the Publicly Owned Improvement construction work set forth in Section 1. The amount to be paid by the Agency hereunder shall be paid in the same fiscal year as the year in which the debts are incurred by the city. LIABILITY AND INDEMNIFICATION In contemplation of the provisions of Section 895.2 of the Government Code of the State of California imposing certain tort liability jointly upon public entities solely by reason of such entities being parties to an agreement as defined by Section 895 of said Code, the parties hereto, as between themselves, pursuant to the authorization contained in Section 895.4 and 895.6 of said Code, will 2 8OA-46 each assume the full liability imposed upon it, or any of its officers, agents or employees by law for injury caused by negligent or wrongful act or omission occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Section 895.2 of said Code. To achieve the above-stated purpose each party indemnifies and holds harmless the other party for any loss, costs or expense that may be imposed upon such other party solely by virtue of said Section 895.2. The provisions of Section 2778 of the California Civil Code are made a part hereof as if fully set forth herein. 4. SEVERABILITY If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. EFFECTIVE DATE OF AGREEMENT This Agreement shall take effect from and after the date of adoption and approval by the City and the Agency pursuant to official action of the governing bodies thereof and shall be effective for a duration not to exceed the time necessary for the City to complete the work and for the Agency to pay the City in full. This Agreement shall apply to all activities carried out by the City as set forth in Section 1 hereto. 6. BINDING ON SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. (Signatures on following page) 3 80A-47 IN WITNESS WHEREOF, the parties hereto have executed this Cooperative Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council CITY OF SANTA ANA By David N. Ream City Manager ATTEST: Maria D. Huizar Secretary APPROVED AS TO FORM: Joseph Straka Interim City Attorney/Agency General Counsel By: Lisa E. Storck Assistant City Attorney/Assistant Counsel COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA By: Nancy T. Edwards Interim Executive Director 80A-48 REQUEST FOR COUNCIL/ AGENCY ACTION MEETING DATE: MARCH 7, 2011 TITLE: RESOLUTION AND COOPERATIVE AGREEMENT FOR THE IMPLEMENTATION OF PROGRAMS AND PROJECTS ESTABLISHED IN THE 2010/11 - 2014/15 FIVE-YEAR IMPLEMENTATION PLAN t ' CITY MANAGER EXECUTIVE (RECTOR RECOMMENDED ACTION CITY COUNCIL CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1st Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER 1. Adopt a resolution of the City Council making certain findings for the Community Redevelopment Agency to fund and implement programs and projects established in the 2010/11 - 2014/15 Five-Year Implementation Plan. 2. Authorize the City Manager and Clerk of the Council to execute the attached Cooperative Agreement with the Community Redevelopment Agency (Agency) in the amount not-to- exceed $210 million for the implementation of programs and projects established in the 2010/11 - 2014/15 Five-Year Implementation Plan, subject to non-substantive changes approved by the City Manager and City Attorney. COMMUNITY REDEVELOPMENT AGENCY 1. Adopt a resolution of the Community Redevelopment Agency making certain findings for the Agency to fund and implement programs and projects established in the 2010/11 - 2014/15 Five-Year Implementation Plan. 2. Authorize the Executive Director and the Agency Secretary to execute the attached Cooperative Agreement with the City of Santa Ana (City) in the amount not-to-exceed $210 million for the implementation of programs and projects established in the 2010/11 - 2014/15 Five-Year Implementation Plan, subject to non-substantive changes approved by the Executive Director and Agency General Counsel. 8OB-1 Implementation of Programs and Projects March 7, 2011 Page 2 DISCUSSION In June of 2010, the Agency adopted a Five-Year Plan, which establishes goals to support economic development, commercial, industrial and community revitalization and to provide and preserve affordable housing. To implement the programs, activities and projects associated with each goal, the Agency has made redevelopment fund commitments based on estimated available tax increment revenue and debt financing structures. (Exhibit 1) Currently, the Agency is actively involved in the development of various projects that have been identified in the Five-Year Implementation Plan covering the Agency's merged project area. Many of the identified projects are anticipated to assist the economic recovery of the City, as well as ensure the creation of locally-based, quality jobs. In response to the Governor's proposed State budget package and proposals for FY 2011-12, which include recommending the elimination of redevelopment agencies "to realign the delivery of state services to counties and local governments" and eliminate a projected State deficit of $25.4 billion, it is recommended to reaffirm the Agency's obligations, programs and projects identified under the Five-Year Implementation Plan for 2010/11 - 2014/15. In the current budget environment, the Agency's ability to carry out the Five-Year Implementation Plan objectives may be limited. Historically, the Agency has successfully partnered with the City to effectuate a number of capital projects and programs. Pursuant to the California Redevelopment Law, Health & Safety Code Section 33220, certain public bodies, including the City, may aid and cooperate with the City in the planning, undertaking, construction and operation of redevelopment projects. Building on this success, the Agency desires assistance and cooperation in the implementation and completion of these activites. By entering into the Cooperative Agreement, the Agency will pledge the unencumbered assets and resources in the current FY 2010-11 Budget and the Net Tax Increment (defined as gross tax increment less County administrative fees, statutory pass-throughs, and Housing Set-Aside) from FY 2011-12 through FY 2014-15 to protect and secure existing obligations and to acquire, construct, develop and implement projects specified in the approved budgets and spending plan. The purpose of this Cooperative Agreement is to facilitate the implementation of those activites pursuant to the terms and conditions outlined in the Cooperative Agreement. 8OB-2 Implementation of Programs and Projects March 7, 2011 Page 3 FISCAL IMPACT Funds are available in the Merged Project Area Capital Improvements Project fund (account no. 57018830-various), South Main Commercial Corridor Capital Project fund (account no. 55318830- various), Low and Moderate Housing Capital Project fund (account no. 50718830-various), and administration funds (account no. 50718810-various, 50718820-various, 57018841-various, 57018842-various, 57018843-various). Tax increment revenue receipts for FY 2011-12 through FY 2014-15 will be allocated in each respective fund. APPROVED AS TO FUNDS AND ACCOUNTS: W"N &U)AZk Nancy T. wards Interim E utive Director Community Development Agency Francisco Gutierrez Executive Director Olt Finance & Management Services Agency NTE/mlr Exhibits: 1. Five-Year Implementation Plan 2. Council Resolution 3. CRA Resolution 4. Cooperative Agreement 8OB-3 8OB-4 COMMUNITY RED[VELOPMENT AGENCY OF THE CITY OF SANTA ANA lvtwmo °1'EAR HMIPLLMEN TIATi?ON July 1,2010-June 30,2015 EXHIBIT 1 8OB-5 COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA FIVE-YEAR IMPLEMENTATION PLAN July 1, 2010 - June 30, 2015 Miguel A. Pulido : CHAIRPERSON Claudia Alvarez VICE CHAIRPERSON ' David Benavides AGENCY BOARDMEMBER Carlos Bustamante AGENCY BOARDMEMBER Michele Martinez AGENCY BOARDMEMBER Vincent Sarmiento AGENCY BOARDMEMBER Sal Tinajero AGENCY BOARDMEMBER David N. Ream CITY MANAGER Cynthia J. Nelson EXECUTIVE DIRECTOR Joseph W. Fletcher GENERAL COUNSEL Maria D. Huizar RECORDING SECRETARY ?961117-Me, TABLE OF CONTENTS PAGE 1. INTRODUCTION ..................................................................................................... 5 A. BACKGROUND ............................................................................................5 B. IMPLEMENTATION PLAN ..........................................................................7 II. REDEVELOPMENT COMPONENT ....................................................................... 9 A. BACKGROUND ...........................................................................................11 B. SANTA ANA PROJECT AREAS ...................................................................12 C. GOALS AND OBJECTIVES ..........................................................................18 D. AGENCY ACCOMPLISHMENTS .................................................................19 E. PROPOSED PROJECTS AND PROGRAMS ................................................ 23 F. REDEVELOPMENT EXPENDITURES ......................................................... 31 Background ...................................................................................31 Revenues .......................................................................................32 Existing Obligations ......................................................................34 G. RELATIONSHIP BETWEEN GOALS AND OBJECTIVES, PROGRAMS, PROJECTS AND EXPENDITURES ........................................36 III. AFFORDABLE HOUSING COMPONENT ...............................................................40 A. APPLICABLE AFFORDABLE HOUSING REQUIREMENTS ....................... 40 B. AFFORDABLE HOUSING FUND STATUS ................................................. .42 Affordable Housing Fund Deposits ........................................... 43 Use of Affordable Housing Fund Deposits ............................... 43 Affordable Housing Fund Cash Flow Analysis ..........................44 Proportional Expenditures of Affordable Housing Fund........ 45 Excess Surplus Calculation ............................................................. 49 C. INCLUSIONARY HOUSING PRODUCTION STATUS .................................49 Legal Requirements .................................................................... 49 Applicability of Inclusionary Housing Production Requirements ............................................................................... 50 Method of Calculation of Inclusionary Housing Production Requirements .......................................................... .50 Inclusionary Housing Production Requirements ..................... .50 Inclusionary Housing Production Fulfillment ........................... .52 Inclusionary Housing Production Obligation Surplus/(Deficit) Calculation ....................................................... 53 D. REPLACEMENT HOUSING STATUS .......................................................... 54 Legal Requirements ....................................................................... 54 Past Removal of Low and Moderate Income Units ............... 54 Future Removal of Low and Moderate Income Units........... 55 E. ABILITY TO COMPLY WITH OBLIGATIONS PRIOR TO TIME LIMIT OF EFFECTIVENESS OF REDEVELOPMENT PLAN ........................ 55 8OB-7 APPENDIX A- SUMMARY OF SUPPLEMENTAL JUDGMENTS APPENDIX B - GLOSSARY OF TERMS APPENDIX C-TIME AND FINANCIAL LIMITS (AS OF JUNE 2010) Santa Ana Communi?y 11, ?-velopment Agency Imp1nw=t=Plan July 1, 2010 to June 30, 20' 'r For the Merged Santa • redevelopment Project P& 1. INTRODUCTION The following document is the five-year Implementation Plan for the Community Redevelopment Agency of the City of Santa Ana's Merged Project Area. It covers the fiscal year period beginning on July 1, 2010 and ending on June 30, 2015. It is designed and intended to meet all requirements as established by Assembly Bill 1290, and to provide city residents and other stakeholders with critical information regarding the Agency's future plans. This Implementation Plan is a policy statement rather than an unalterable course of action. It has been prepared to set priorities for redevelopment activities within the Merged Project Area for the five-year period covered by the Implementation Plan and incorporates currently known financial constraints of the Agency in developing a program of activities to accomplish revitalization efforts for the Merged Project Area. New issues and opportunities may be encountered during the course of administering redevelopment within the Merged Project Area during the five-year period. Therefore, this Implementation Plan may be amended, if necessary, to effectuate its purposes. BACKGROUND Redevelopment is a tool created by state law to assist local governments in the long-term planning and improvement of areas where the private sector acting alone or with government action other than redevelopment has been unable to correct the deterioration and underutilization of an area. The physical and economic conditions that result in the deterioration and underutilization that qualify an area for inclusion in a redevelopment project area are defined as blighting conditions (see Appendix B for glossary terms). Through redevelopment, local governments can improve areas and eliminate blight by assisting the private sector in the development and reconstruction of residential, commercial and industrial uses, and providing needed infrastructure and community facility improvements. Through these efforts, redevelopment can assist in creating jobs and improving property values. In order for redevelopment agencies to act, a jurisdiction must first adopt a redevelopment plan. A redevelopment plan is a legal document that describes the Agency's authorities and responsibilities. The redevelopment plan establishes financing methods to implement programs and projects to revitalize areas including the authority to collect tax increment. The 10 7 Santa Ana Community Redevelopment Agency lrnp i ri._T '' ?Ian July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project?rkF ?11 9 Page 5 redevelopment plan also indentities the land uses and development standards to be implemented in the project area, which must be consistent with the General Plan. A required element of the redevelopment plan is a mandate to conserve, improve, and develop affordable housing. The following is a list of some of the tools available to Redevelopment Agencies for revitalizing and redeveloping project areas: • Buy land. (Sections 33391 & 33430). • Buy improvements. For example, buy and demolish the building and let the owner rebuild on the land. Agency absorbs the value of the building and cost of demolition (Sections 33391 & 33430). • Relocate a tenant including buying out a lease, if the space is to be substantially rehabilitated. The Agency cannot relocate a tenant for the purpose of moving a more desirable tenant into the same space if it is unchanged (Section 33394). • Pay for curbs, sidewalks and street improvements (Section 33445). • Make rehabilitation loans to either owners or tenants for commercial buildings or structures (Section 33444.5). • Assist with the financing of facilities or capital equipment for the development or rehabilitation of property that will be used for industrial or manufacturing purposes (Section 33444.6). • Pay for a publicly-owned parking structure (Section 33445). • Lease land for public use such as a parking lot (Section 33430). • Remedy hazardous substances (Section 33459.1). • Pay for on-going services to attract businesses to an area such as marketing (Section 33678). However, agencies cannot pay for ongoing governmental services such as police services. To the extent the following activities result in the provision or preservation of low and moderate income housing units, Section 33334.2(e) authorizes the Agency to exercise any of its powers: • Acquire real property or building sites; • Improve real property or building sites; • Donate real property to private or public persons or entities; • Acquire, construct and or rehabilitate buildings or structures; • Provide subsidies to or for the benefit of very-low, low or moderate income households (Section 33334.15); • Develop plans, pay principal and interest on bonds, loans, advances or other indebtedness, or pay financing or carrying charges; • Maintain the community's supply of mobile homes; • Preserve the availability of lower income units in housing developments which are assisted or subsidized by public entities and which are threatened with imminent conversion to market rates; and • Satisfy replacement housing requirements (Section 33334.2(f)). Santa A, mmunity Redevelopment Agency Imp tior P n July 1, 203 ', June 30, 2015 For the ,d Santa Ana Redevelopment Projelffl§-l U Page 6 IMPLEMENTATION PLAN In 1993, the California State Legislature passed Assembly Bill 1290 (Stats. 1993, ch. 942), which amended the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq., "CRL") to among other things increase the accountability of redevelopment agencies. One of the changes was the addition of Article 16.5 "Adoption of Implementation Plans" which requires that on or before December 31, 1993, and each five years thereafter, a redevelopment agency that has adopted a redevelopment plan prior to December 31, 1993, shall adopt a implementation plan that contains the specific goals and objectives of the agency for the project area, the specific programs, including potential projects, and estimated expenditures proposed to be made during the five year period. The Implementation Plan also includes an explanation on how the goals and objectives, programs and expenditures will eliminate blight within the project area and fulfill the agency's affordable housing requirements. This Implementation Plan is composed of two separate components, a redevelopment component and an affordable housing compliance component. The redevelopment component describes the Agency's short-term goals and objectives for blight elimination and the programs and proposed projects to reach that goal. The Implementation Plan also identifies the anticipated expenditures for the programs which incorporate the specific projects. Finally, the redevelopment component of the Implementation Plan describes the relationship between the goals and objectives, programs, projects and blight elimination. The redevelopment component describes the Agency's activities planned for the five year period including affordable housing projects. Article 16.5 of the CRL also requires that an Implementation Plan explain how the components of the Implementation Plan will implement various CRL requirements regarding low and moderate income housing. The affordable housing compliance component specifically demonstrates how the Agency will meet the statutory requirements for depositing the required 20% of gross tax increment revenues (Set-Aside) into the affordable housing fund (Affordable Housing Fund) and the expenditure for housing purposes. Santa Ana Community Redevelopment Ag =-s it ?tio? P n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment t 40 page 7 This page left intentionally blank Santa Ana Community Redevelopment Agency Imp r do P n r i July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project?? Page 8 II. REDEVELOPMENT COMPONENT The Community Redevelopment Agency of the City of Santa Ana (the "Agency") adopted six redevelopment project areas between 1973 and 1989, including the Central City Redevelopment Project Area, Inter-City Commuter Station Redevelopment Project Area, North Harbor Redevelopment Project Area, South Harbor Redevelopment Project Area, South Main Redevelopment Project Area, and the Bristol Corridor Redevelopment Project Area (the "constituent Project Areas" or "Project Areas"). To allow tax increment revenues to be shared between project areas and thereby facilitate redevelopment of the Project Areas, the Project Areas were merged in 2004. The Project Areas continue to retain their respective boundaries, time, and financial limits. The following map shows the boundaries of the Santa Ana Merged Project Area ("the Merged Project Area"). Santa Ana Community Redevr :Ent Agency Irn14 0 ?tioLktn July 1, 2010 to June 30, 2015 For the Merged Santa Ana R ,pnient Project Page 9 i _ z2 WE'1V NSTFR AVF 1? t 1 1 I I .. ?. HAZARD AVE s4' 4I ?1+ +. CHIC [ENTER DR 5111 ST 5TII ST. drir _ ? s.Y y 11f f' 1 M(: FADCEN AVE EDINGER AVE. _e L' f 5 v 4 SEGERSTROM AVE MEMORY LN EAIRHAVEN AVE SANTACIARA AVE e SANTACLARA AVE O r 5 5 ¢zQ . ?l S T. f 1 1 T " 1 ? 1 I Y LL 1-. \ / WASH IN.,11 { AVE E 1 V, j I I E 4 1 ? l 55 F t_t v 1 p9s j P ' v4,t tT T 1 _.. SAN IAANAF , T 5?Si ' ;e j, iTll _ Si } ?! * p f15i ST . CHESiTri1T AVE `. wall s Sr . BISTIopST. 0 0 I O ¢ ! EDINGER AYE. m 1 T W h < D Wr? _ _ ST. GERTRUDE FL > U N _?I l WARNER AVE LL f 1 I g_ / ?? 55 ?q4?E { ? OA ? _ sir a MACARIHUR ELVD SUNFLOWER AVE Merged Redevelopment Project Areas CENTRAL CITY NORTH HARBOR INTERCITY 0 SOUTH MAIN SOUTH HARBOR BRISTOL Santa Ana Community Redevelopment Agency Im to '.l "r , July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Projeckt Page 10 A. BACKGROUND State law establishes time limits for the exercise of basic redevelopment activities. In accordance with CRL Section 33333.6 or redevelopment plans adopted on or before December 31, 1993, the following limits shall apply: The time limit to establish loans, advances, and indebtedness to be paid with the revenue from property taxes may not exceed 20 years from the adoption date of the redevelopment plan or January 1, 2004, whichever is later. The effectiveness of a redevelopment plan may not exceed 40 years from the adoption date or January 1, 2009, whichever is later. After the effectiveness of a redevelopment plan has expired, an agency has no authority to act pursuant to the redevelopment plan except to pay previously incurred indebtedness and to enforce existing covenants and contracts. A redevelopment agency may receive property tax increment up to ten years from the termination of the redevelopment project area plan. If provided by the redevelopment plans, an agency may commence eminent domain proceedings to acquire property within the Project Area for a period not to exceed 12 years from the adoption date. If a redevelopment plan adopted prior to October 1, 1976 authorizes the issuance of bonds, the redevelopment plan should include a limit on the amount of bonded indebtedness that can be outstanding at one time. These times and financial limitations may be extended or increased only through an amendment to the redevelopment plan. The following are the time limits incorporated within the redevelopment plans for the Project Areas. Table 1: Merged Project Area Time Limits M Central City Expired 7/2/16 7/2/26 Expired (Adopted 7/2/73) 1/1/04 6/5/2008 Inter-City Expired 7/6/25 7/6/35 Expired (Adopted 7/6/82) 1/1/04 6/5/2008 North Harbor 7/6/22 7/6/25 7/6/35 Expired (Adopted 7/6/82) 6/5/2008 South Harbor 7/6/22 7/6/25 7/6/35 Expired (Adopted 7/6/82) 9/2/04 South Main 7/6/22 7/6/25 7/6/35 Expired (Adopted 7/6/82) 8/16/07 Bristol Corridor Expired 12/4/30 12/4/40 Expired (Adopted 12/4/89) 12/4/09 12/4/01 Santa Ana C ? aity Redevelopment Agency ImpJ y? iol P? July 1, 2010 to' ; 30, 2015 For the Merl : +la Ana Redevelopment Project Page 11 B. SANTA ANA PROJECT AREAS The following is a history of redevelopment and project areas summary of the blighting condition within the Merged Project Area, presented by constituent Project Area. Central City Redevelopment Project Area The Central City Redevelopment Project Area was adopted on July 2, 1973, by Ordinance No. NS-1173. Central City Redevelopment Project Area consists of 694 acres which encompasses the historic downtown area including retail, office and government uses. The project was adopted in response to deteriorating conditions in the downtown. The downtown began to decline in the 1960s when growth in the Orange County suburbs resulted in Santa Ana's displacement as the central marketplace for Orange County. At the time of project adoption, the downtown had a substantial number of deteriorated and obsolete buildings. Many of the retailers had left the downtown for more desirable locations, which in turn affected the vacancy rate, lease rates and variety of merchandise available to residents. The goal of the redevelopment plan was to reverse the decline of the downtown and re-establish the downtown as a vibrant area. Although the Agency has contributed significantly towards the improvement of the downtown, the Agency would like to continue to address revitalization needs through the assistance of the private sector by way of rehabilitation loans and marketing the downtown as a retail destination. Santa Ana Community Redevelopment Agency ImrR i do P n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Projecc"0? I ? Page 12 Inter-City Commuter Station Redevelopment Proiect Area The Inter-City Commuter Station Redevelopment Project Area was adopted by the City Council on July 6, 1982, by Ordinance No. NS-1636, and contains 536 acres of land. Major roadways traversing this Project Area include the Interstate 5 Freeway, Grand Avenue, 1st Street and 4th Street. The focal point of the Inter-City Commuter Station Redevelopment Project Area is the Santa Ana Regional Transportation Center (SARTC), which the Agency participated in constructing and developing. This project area includes older industrial uses that originally developed in the area to take advantage of the rail access. However, residential uses are scattered throughout the area, and there is a node of commercial uses located at the intersection of 17th Street and Grand Avenue. Although the initial SARTC improvements have been completed, the surrounding area continues to have a mix of incompatible and deteriorated residential and industrial uses and infrastructure deficiencies. The Agency plans to assist in projects, such as mixed use that will capitalize on the availability of public transportation, thereby providing additional housing opportunities and compatible industrial uses while eliminating deterioration and incompatible uses. 1_ I I I1 I 17TH ST. " .L- I I1?t1 e ID ~ JF6L ? goo a? ?? - 4 ,o Q o o d SP P f z m f -1 ? 4TH ST ? i M ED l 1ST ST. F-7 OOOO I ?• QOOO_0_O_ . l ?OOO?OO CHESTNUT.AV. LL I-10 ° F-1 I?5 .w,.., INTERCITY ^ ^ REDEVELOPMENT PROJECT AREA . Community Redevelopment Agency City of Santa Ana, California Ana Community Redevelopment Agency Impl&nig ioyPJ.y1 ; 2010 to June 30, 2015 e Merged Santa Ana Redevelopment Project ??1IKK11 ?'? rr i Page 13 North Harbor Redevelopment Project Area The North Harbor Redevelopment Project Area was adopted by the City Council on July 6, 1982, by Ordinance No. NS-1637, and contains approximately 428 acres of land. The North Harbor Redevelopment Project Area is generally located along Harbor Boulevard from Westminster Avenue to Kent Avenue and along 5th Street, 1st Street and McFadden Avenue from Harbor Boulevard to the Santa Ana River. This Project Area includes a mix of older residential and strip HAZAR commercial uses fronting along Harbor Boulevard with newer commercial uses developed near 1st and 5th Streets. The Agency's plans for revitalization of Harbor Boulevard include modernizing or replacing obsolete commercial structures and deteriorated residential uses with commercial and mixed use projects that are compatible with a commercial corridor. The Agency's activities may range from site acquisition to provide parcels large enough for contemporary use to small business loans to enhance business activity thereby reducing vacancies and increasing property values. Santa Ana Community Redevelopn ency Imp io P6i For the Merged Santa Ana Redevelo , Project July 1, 2010 to June 30, 2015 Page 14 F- South Harbor Redevelopment Project Area The South Harbor Redevelopment Plan was adopted by the City Council on July 6, 1982, by Ordinance No. NS-1638. The South Harbor Redevelopment Project Area encompasses approximately 1,050 acres primarily along Harbor Boulevard from Warner Avenue to MacArthur Boulevard and along the west side of Fairview Street from Edinger Avenue to Sunflower Avenue. The South Harbor Project Area is primarily developed with light industrial uses. The goal for the South Harbor area is to create a vibrant contemporary business park, thereby eliminating obsolete industrial uses and improving the underutilized character of the project area. Agency activities may include site acquisition and infrastructure improvements to attract new development and marketing industrial uses in the project area. SOUTH HARBOR` REDEVELOPMENT PROJECT AREA Community Redevelopment Agency City of Santa Ana, California r OWER AV. _ r_- ?? 1 Santa Ana Commun.itY Redevelop b ment AgencY Im _ tior P n July 1, 2010 to June 30, 2015 tto For the Merged Santa Ana Redevelopment Projec b Page 15 South Main Redevelopment Project Area The South Main Redevelopment Project Area was adopted by the City Council on July 6, 1982, by Ordinance No. NS-1639. The South Main Redevelopment Project Area encompasses approximately 1,500 acres and is located along Main Street from 1st 46 3E?? 4 If Street to Sunflower Avenue and the area west of the 55 Freeway along McFadden Avenue, Edinger Avenue, Warner Avenue, Dyer Road and MacArthur Boulevard. The Project Area includes older strip commercial uses interspersed with residential units radiating out from the downtown along Main Street and newer manufacturing and light industrial uses along the southeastern boundary of the City. Redevelopment has been most notable in the industrial and commercial areas along the southeastern boundary of the City. The Agency's primary focus is on the needed revitalization of the commercial corridors through street improvements, rehabilitation programs and assisting in private development that will eliminate obsolete and incompatible uses. Santa Ana Communil ,; `velopment Agency Imp tio-Pla July 1, 2010 to June 30, For the Merged Santz edevelopment Project c LVV p Bristol Corridor Redevelopment Project Area The Bristol Corridor Redevelopment Project Area was adopted by the City Council on December 4, 1989, by Ordinance No. NS-2039. The Bristol Corridor Redevelopment Project Area consists of approximately 781 acres and is primarily located along Bristol Street from 17th Street to Central flu Avenue and the area east of Fairview Street along 17th and 1st Streets. Like many other north/south corridors in the City, the Bristol Corridor is developed primarily with older strip LOW commercial uses. Bristol Corridor was the most recently adopted of the Agency's redevelopment projects and is still impacted by many of the blighting conditions identified at T=FAII project adoption including i E30 deterioration, substandard 0, A 9I.T0 E' Tru design (obsolescence), and 0017-- EID I MI impaired investments (low A1110 F11 II retail sales and underutilized 19--===?)000 E land). The Agency's program of activities includes infill construction I HE F901 and rehabilitation to eliminate deterioration, Liu obsolescence and improving M-Inun the economic viability of the K n U P, 10 ILI 0 corridor. C Via PI Santa Ana Community Redevelopment Agency Irnpl- r'40 , i n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project'?'< ?.'? Page 17 GOALS AND OBJECTIVES The goals and objectives have been identified on the basis of the financial resources that are available, the priorities for addressing conditions in the Merged Project Area, and the limit of the five-year period to be covered by the Implementation Plan. The achievement of the Implementation Plan goals and objectives will result in the elimination of blighting conditions in the Merged Project Area and further the attainment of the redevelopment goals and objectives. The means for achieving the goals and objectives of the Implementation Plan are the programs, the specific projects implemented by the programs and expenditures to be undertaken by the Agency over the five-year term. In general, the goals and objectives for the Merged Project Area include, but are not limited to: • Eliminate physical blight. • Create new employment opportunities. • Encourage uniform and consistent land use patterns. • Encourage private commercial/industrial rehabilitation, development, and capital investment. • Implement the City's General Plan. • Encourage highest and best use of available land consistent with the General Plan. • Provide or replace public streets, alleys, parks, sidewalks, sewers, storm drains, traffic signals, lighting systems, and other public facilities and improvements as necessary. • Develop vacant or underutilized industrial land. • Provide for increased sales, business license, and other fees, taxes, and revenues to the City of Santa Ana. • Expand the community's supply of housing, including opportunities for low and moderate income housing. • Comply with the affordable housing requirements imposed by the CRL. Santa 4 rnmunity Redevelopment Agency Inipl rrye i p.Plan July 1, 2C + June 30, 2015 For the ,J Santa Ana Redevelopment Project 91Y8 - 11 Page 18 AGENCY ACCOMPLISHMENTS As noted, the Agency has been in operation since 1973. During the 37 years that have followed, it has carried out numerous projects and programs that, both individually and collectively, have contributed substantially to the elimination of blight as well as the improvement of social, cultural and economic conditions in Santa Ana. The following is a list of its more significant activities in each project area. Central City Redevelopment Project Area ¦ Constructed Artist Village Second Street Promenade improvements including tree lighting, benches, trash cans and bollards ¦ Facilitated the development of the Olson Live-Work lofts (86 total for-sale units of which six are affordable) ¦ Renovated Festival Hall ¦ Implemented Facade Rebate Program ¦ Assisted in the relocation and expansion for the Discovery Science Center ¦ Facilitated historic renovation of Parker Garage as new home for Orange County Center of Contemporary Art (OCCCA) ¦ Completed the California State University, Fullerton Grand Central Art Center ¦ Assisted in the Town Square Condominium Housing Project ¦ Completed Fourth Street Streetscape Improvements ¦ Assisted in the development of Rosswood Villas (senior housing) ¦ Assisted in the development of Main Place Mall ¦ Assisted in the development of Santa Ana Towers (senior housing) ¦ Developed and implemented a Streetscape and parking plan for the Main Street Corridor ¦ Facilitated the construction of Memphis Restaurant in Artist Village ¦ Facilitated Bowers expansion including the Bowers Kidseum ¦ Facilitated the development of the St. Joseph Ballet Project and relocated to the Museum District ¦ Coordinated construction of the Sycamore Parking Structure ¦ Completed pedestrian signage for the Artist Village ¦ Assisted with the renovation of the historic Phillip Hutton Building Bowers Museum ¦ Assisted with the renovation and reuse of the Fiesta Market Place ¦ Coordinated development of the Artist Village North Harbor Redevelopment Project Area ¦ Assisted with public infrastructure improvements ¦ Facilitated the development of the Harbor Square commercial center ¦ Facilitated the development of Riverview West Shopping Center (including Wal-Mart) ¦ Assisted with the development of Riverview Apartments and single-family homes ¦ Assisted with the development of the La Bonita condominium project Santa Ana Community Redevelopment Age 7 rn,9iopthr July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopmena . hA1 L Page 19 ¦ Assisted with the development of the California Colony homes ¦ Funded the Commercial/Industrial Rebate Program South Harbor Redevelopment Proiect Area ¦ Facilitated the development of Waxie Janitorial Supplies Company ¦ Provided a catalyst for street improvements and underground utilities ¦ Assisted with the relocation of Laguna Cookie Co. ¦ Assisted in the relocation of The Art Institute of California - Los Angeles (Orange County campus) ¦ Funded the Commercial/Industrial Rebate Program South Main Redevelopment Proiect Area ¦ Assisted with the development of Hutton Centre/Griffin Tower ¦ Facilitated the construction and expansion of new dealerships at the Auto Mall ¦ Assisted in the development of the Doubletree Hotel ¦ Implemented Commercial/Industrial Rebate Program ¦ Provided a catalyst for street improvements, including McFadden realignment ¦ Facilitated Ingram Micro's expansion plans for PacifiCenter and coordinated efforts between Ingram, McDonnell Douglas and Catellus to extend their development rights ¦ Facilitated the relocation of First American Title Company to MacArthur Place ¦ Facilitated the development of the Nexus project at Hutton Center ¦ Provided assistance to ITT Cannon ¦ Funded construction of the archway sign on South Main ¦ Developed and implemented a storefront fagade improvement program Inter-City Redevelopment Proiect Area ¦ Assisted with the development of the Business Enterprise Center ¦ Assisted in the development of the Santa Ana Regional Transportation Center (SARTC) ¦ Funded the Commercial and Industrial Rebate Program ¦ Partnered with developer on the construction of the 108 live/work Santiago Street loft project ¦ Provided a catalyst for street improvements ¦ Assisted Burke Industrial Development ¦ Provided Station District property acquisition and master developer selection Bristol Redevelopment Proiect Area ¦ Assisted with development of Bristol Marketplace Santa Ana Community Redevelopment Agency IInp =p?1>n !uly 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project LL? Page 20 Historic South Main Business District Archway ¦ Facilitated the construction of the Digital Media Center ¦ Provided a catalyst for street improvements Citywide Affordable Housing Proiects 'lf? ?? ?l l1l?i ¦ Mercy House - The Agency and City assisted in the rehabilitation of transitional housing units for homeless persons and persons with HIV/AIDS. Santa Ana College- Digital Media Center The projects provide housing for seven families and 20 individuals. ¦ Wilshire-Minnie - The Agency and the City assisted a limited partnership comprised of a non-profit and a for-profit entity to purchase and rehabilitate seventeen apartment buildings containing 164 one-bedroom units. As reconfigured, the project contains 143 affordable units and a manager's unit. The units are a mix of one, two, three and four bedrooms and are affordable to very-low and low income households. ¦ City Gardens - the Agency and the City assisted a non-profit owner to obtain critical bond financing for the purpose of refinancing and rehabilitating a 274-unit apartment complex. Twenty percent of the units are restricted to occupancy by very-low income households for a period of 55 years. ¦ Logan Neighborhood New Construction - The Agency assisted a non-profit corporation to construct three single-family homes on Agency-owned lots located in the historic Logan neighborhood. The non-profit developer contracted with the construction arm of another non-profit to carry out the construction. As a consequence of this partnership, construction-related training was made available to low-income City residents. The homes are restricted to occupancy by low income households for a period of 45 years. ¦ Ross & Durant - The Agency and the City assisted a limited partnership comprised of a non- profit and a for-profit entity to purchase and rehabilitate two apartment buildings, each containing 24 units. Of the 48 total units, 21 units are restricted to occupancy by very-low income households and the remaining 27 units are restricted to low income households. The length of the restrictions is perpetuity. Ross Street Apartments ¦ Townsend & Raitt - The Agency and City assisted a limited partnership comprised of a nonprofit and a for-profit entity to purchase and rehabilitate five apartment buildings and developed a new community center in the troubled Townsend and Raitt area of Santa Ana. Santa Ana Community Rede, ent Agency Irn14 fstio^P6n July 1, 2010 to June 30, 2.015 For the Merged Santa Ana R, . pment Project Page 21 Of the 51 total units in the five buildings, 50 are restricted to be occupied by very-low income households, with the remaining unit restricted to occupancy by moderate income households. The length of the restrictions is 55 years. Townsend and Raitt Apartments and new community center ¦ Lacy & Raitt - the Agency and City assisted a limited partnership to purchase and rehabilitate two apartment buildings with a total of 34 units. All of the units are restricted to occupancy by very-low income households, and the length of the restrictions is 45 years. One of the two buildings is located in the Townsend and Raitt area and the Agency's assistance represents a continuation of its commitment to assist the low income people residing in the area. The Lacy building is located in the Station District. ¦ Santa Ana Boulevard -The Agency has acquired properties in the City's Station District. The City has selected a master developer for the area, and the Agency will work with the developer to insure that its properties are developed in a manner that is consistent with other development in the area, and in a manner that services the diverse housing needs of Santa Ana's residents. ¦ Infill Development - The Agency has acquired properties throughout the City for residential development. The Agency utilized a Request for Proposals process to select qualified developers interested in working with the Agency on these properties. All will be developed for residential use, and will offer a mix of bedroom sizes and prices suitable to the diverse needs of Santa Ana residents. While the majority will be developed for owner occupancy, four properties will be developed as affordable rental properties that also offer a mix of bedroom sizes and rents suitable to the diverse needs of Santa Ana residents. ¦ Neighborhood Stabilization - The City has been awarded $15.8 million in federal Neighborhood Stabilization Program grant funds for the purpose of facilitating the acquisition, rehabilitation and resale of abandoned and foreclosed homes and apartments. The City estimates it will be able to produce approximately 194 affordable units with these funds. Of these, approximately 54 units will be rental units carrying 55-year very-low income affordability covenants. ¦ Rehabilitation Loan Programs - The Agency and the City offer a variety of loans to income eligible owners of both conventional and mobile homes to make necessary repairs. Mobile home funds are offered as forgivable loans with no interest rate, while single-family loans are offered at below market interest rates. For owners of historic homes, the interest rate Santa Ana Community Redevelopment Agency IrTiA o t 0 July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Projec1 Page 22 is 1%. Single-family homeowners are also eligible to receive grants for all but $2,500 of the funds necessary to eliminate hazardous materials such as lead-based paint and asbestos. During the 2005-09 planning period, more than 80 single-family and mobile homes were rehabilitated. ¦ Mobile Home Replacement Program - Seven mobile homes were replaced after staff determined they were not suitable for rehabilitation. ¦ Cornerstone Village - The Cornerstone Village Improvement Program was a partnership effort between area residents, property owners, the City of Santa Ana and the Santa Ana Redevelopment Agency. In addition to being visually and physically blighted, Cornerstone Village suffered from high rates of crime and poverty. A combination of CDBG, HOME and Tax Increment resources were utilized to reconstruct public infrastructure and to assist with the rehabilitation of 46 apartment buildings. Property owners formed an association that remains responsible for the maintenance of common areas while residents formed an association designed to educate and support area households. ¦ Townsquare - The Townsquare Program involved the utilization of City and Redevelopment Agency resources to assist a nonprofit corporation to purchase and rehabilitate 70 condominium units in the Townsquare Condominium Project. The Program assisted in the elimination of blight by reducing the number of abandoned, foreclosed and substandard units in the area. ¦ RSI New Construction - The Agency assisted a for-profit enterprise to construct two single- family homes on Agency-owned lots. The project gave the developer an opportunity to demonstrate how new approaches to home construction can substantially decrease the time and costs associated with such activities, and to make home ownership more affordable to low and moderate income households. The homes are restricted to occupancy by low income households for a period of 45 years. PROPOSED PROJECTS AND PROGRAMS To gain public input for the implementation plan, a comprehensive survey* of the City's needs was distributed in three languages to more than 9,000 stakeholders comprised of residents, July 1, 2010 to ?, 2015 Santa Ana Coin: - v Redevelopment Agency ImU9_1021n For the Merge Ana Redevelopment Proj3ge 23 Two new homes constructed by R51 McFadden, LLC social service providers, and businesses. The survey was also made available on the City's website and was advertised through public notices in three different languages. From October 15, 2009 to January 15, 2010, the surveys were presented at numerous neighborhood association meetings and laptops were available to enable residents to enter their survey responses online. More than 1,500 responses were received. *This survey was also used for the City's Consolidated Plan, a Federal-mandated plan that describes needs, resources, priorities and proposed activities to be undertaken with respect to federal programs. The survey had seven categories: 1) Business and Jobs; 2) Community Facilities; 3) Community Services; 4) Housing; 5) Neighborhood Infrastructure; 6) Special Needs Housing; and 7) Special Needs Services; for the participants to rank in importance from lowest to highest. The results from the survey concluded that the number one priority of the community is job creation followed by affordable housing. The following summarizes the community priorities by category: ¦ Business and Jobs - Employment opportunities for unemployed or underemployed persons; ¦ Housing -Affordable rental housing for large households; ¦ Special Needs Housing - Housing for seniors; ¦ Community Facilities -Accessibility improvements for the disabled; ¦ Community Services - Anti-crime programs; and ¦ Neighborhood Infrastructure - Intersection and pedestrian safety. The following is a list of desired City improvements identified during the community information outreach process (in no particular order) and the Agency program that can assist in addressing the community's needs. Table 2: Summary of Community Priorities Affordable Housing and Special Needs Housing Affordable Housing Program Business and Jobs Economic and Community Development Program Community Facilities and Neighborhood Infrastructure Improvements Program Infrastructure Community Services and Special Needs Services Public Facility Development Program As discussed in more detail later in the Implementation Plan under the heading of "Expenditures", most of the Agency's tax increment, other than Set-Aside deposits, is Santa Ana Community Redevelopment Agency Im Ttio July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project60 B-2ts Page 24 committed to paying obligations ant, existing bond debt, the proceeds of which have been expended on projects that have been completed or are committed to projects previously approved by the Agency or City Council. The Agency will be focusing most of its efforts in the next five years on meeting its affordable housing obligations. However, some discretionary revenue is projected to be available or if projected tax increment is greater than anticipated. Therefore, the Agency has identified four programs which the Agency hopes to implement, possibly in conjunction with other City programs and funds. The programs are as follows: ¦ Economic/Community Development Program ¦ Public Facility Development Program ¦ Infrastructure Improvement Program ¦ Affordable Housing Program These programs can address the community's priorities for the betterment of Santa Ana and address blighting conditions within the Merged Project Area. However, it must be stressed that given the limited redevelopment revenues and existing obligations, many of the community's priorities may not be addressed during the next five-year period and those projects and programs that are implemented may be funded with revenues other than redevelopment tax increment. The programs and projects that follow are designed to address the most significant blighting conditions in the Merged Project Area, and provide additional housing opportunities. Typically, when the most significant blighting conditions are reduced, private sector investment will occur leading to additional removal of blight. The Agency's redevelopment programs will therefore serve as a catalyst to remove blighting conditions and spur private investment and the preservation, improvement, creation and maintenance of affordable housing. Projects and programs are often initiated in response to stakeholders, including developer and owner requests. The Agency also proactively plans for blight elimination, which may involve soliciting proposals for specific development sites. When the Agency participates in a project, the Agency and developer/owner enter into either a Disposition and Development Agreement or Owner Participation Agreement to assure that the project is implemented in accordance with the agreed upon plan, and that the Agency's goals and objectives for blight elimination are attained. In some instances, such as affordable housing, the agreements specify the affordability restrictions to be placed on the affordable units. The following describes the projects currently associated with each of these four programs that are anticipated to be carried out during this Implementation Plan period. Economic/Community Development Program The Economic/Community Development program will consist of the Agency enhancing the Merged Project Area by assisting in the commercial and industrial rehabilitation/development through business retention/attraction, rehabilitation loans, tax allocation bond financing and site assemblage. The Agency's efforts in this program will provide new and expanded .na Community Redevelopment Agency Imq?ry,? tir?P6n J.. 010 to June 30, 2015 Merged Santa Ana Redevelopment Project - page 25 opportunities to existing businesses as well as encourage the revitalization o9 the proposed Merged Project Area through new commercial and industrial development/rehabilitation. Rehabilitation loans provided by the Agency could also assist in the preservation of historic structures through rehabilitation, relocation and reuse. The Agency will primarily assist private developers in the development/redevelopment of vacant, underutilized and blighted properties. Grand Central Building' The Grand Central Building is a historic building that has been readapted as a live/work place for students attending California State University, Fullerton. The Agency will continue to contribute toward the renovation of the building including replacing the HVAC. State Enterprise Zone The Agency administers a State Enterprise Zone program (boundaries significantly overlap Merged Project Area) that assists businesses in securing sales, use and hiring tax credits for employing disadvantaged individuals, as well as other tax advantages. Through the Enterprise Zone, approximately 20,000 jobs have been "vouchered" for Santa Ana businesses. Other incentives included tax-exempt bond financing. Station District Development' The District incorporates a 94-acre area that will link neighborhoods and businesses with public transit along Santa Ana Boulevard from the 1-5 freeway into the Downtown area. Related California/Griffin Realty were selected as master developer in 2009. Extensive community meetings, site and market analysis have resulted in a concept plan for the 6.8-acre first phase, which is going through the entitlement process. This project will replace deteriorated buildings, incompatible uses and underutilized sites with new residential units and potentially, a school and park. Expansion and Improvement at the Westfield MainPlace Shopping Center Regional malls such as MainPlace are always looking at innovative new ways of doing business in order to thrive in a highly competitive marketplace. Therefore, MainPlace continues to look at possible expansion and remodeling plans to the mall. Santa Ana Auto Mall Expansion This is a business expansion and retention effort. There are currently eight new car dealerships in the mall. The Agency is assisting the expansion of the BMW showroom and service area. Honda's expansion is in the planning phase. A renovation to the mall's interior including new signage and landscaping is complete. 1 Included in the "Capital Projects" and as identified as an existing obligation and shown in Table 5 "Anticipated Expenditures (FY 2010/11-FY 2014/15)". These are projects for which funding was previously allocated in the Agency's FY 2010-11 budget. Santa Ana Community Redevelopme •,Cy Im P ,6L do P n July 1,2010 to June 30, 2015' For the Merged Santa Ana Redeveiol rojectD1§_?U Page 26 South Main FaVade Improvement Program This program is available to property owners and tenants interested in rehabilitating commercial and retail properties located within the South Main Business District, which runs from First Street to Warner. The program was created to fund exterior fagade and other on-site property improvements to improve the appearance of the buildings and properties. The program comes in the form of a cash rebate. Downtown Storefront FaVade Improvement Program Similar to the South Main Facade Improvement Program the Downtown Fagade Improvement Program provides a cash rebate for tenants and property owners who wish to improve the appearance of their properties through fagade treatments and other property improvements. Public Facility Development Program Public facility-based projects focus on the need for new or improved public facilities such as recreation uses, community centers, cultural centers and facilities that may include police substations. This program will enhance the Merged Project Area as a place to conduct business and live. The construction of certain recreation facilities and police substations will also have the benefit of reducing crime and increasing public safety. Expansion of the Discovery Science Center (Museum District-,) The Agency entered into an agreement with the Discovery Science Center for the expansion of their facility. Current efforts are focusing on helping DSC obtain financing for the next state of this multi-phase expansion. The Discovery Science Center is Orange County's largest non-profit education resource dedicated to educating young minds in the appreciation of science, math and technology through interactive exhibits and programs. Regional Transportation Building" The Santa Ana Regional Transportation Building (train depot) is proposed for renovation and expansion. The expanded facility with be the home for the "60 Local" which will be light rail that will service the City of Santa Ana. YMCA Building-, The YMCA Building is a National Register historic building. The building is currently vacant and in a state of disrepair. The Agency proposes to fund the rehabilitation of the structure for reuse. A possible tenant is the Orange County High School for the Arts. OCTA Building-, The Orange County Transportation Authority (OCTA) building is a former bus terminal. The Agency, in partnership with OCTA, will be soliciting proposals for a food/retail court on the property to serve visitors and employees of the Downtown and surrounding area. Santa Ana Community Redevelopment Agency Imp r i do P ?n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Projecdy ? r Page 27 Bowers Museum of Cultural Arts The Agency has worked with the Bowers Museum over the past years in providing rehabilitation of existing and expansion of facilities to allow for cultural growth in the community. The Agency continues to partner with Bowers to achieve these endeavors. Improvements of Public Parking Garages During the next five years, the Agency will assist with enhancing our public parking garages consisting of five in the downtown area and one adjacent to the Santa Ana Regional Transportation Center. These garages provide much needed support to the continued success of the Downtown and the SARTC. Infrastructure Improvements Program Infrastructure improvements include projects that will assist with the future development of the Merged Project Area. By facilitating new development the Agency will eliminate deterioration and obsolescence. Traffic improvements and street lighting will also enhance public safety and reduce crime. Infrastructure improvements may include, but are not limited to, the following: • Transportation and circulation improvements which may entail street widening, construction of street medians, land configuration, street maintenance, improved traffic signalization and signage; • Sewer improvements to alleviate infrastructure inadequacies, meet flow requirements and ensure public safety; • Storm drain improvements including capacity for existing and new development to ensure proper drainage and on-going street improvements of Merged Project Area streets; and • Public infrastructure improvements including sidewalks, curbs and gutters, streetscape/landscape improvements, public transit improvements, public parking structures, creating pedestrian links and developing enhanced parkways and sidewalks, and providing access to the disabled. Downtown Wayfinding Signage Program' This program funds the development of signs to direct cars and pedestrians to shopping, cultural and service destinations within the Merged Project Area. This program will evaluate existing vehicular and pedestrian way finding signs in downtown Santa Ana and provide input for a potential redesign and enhancement of current way finding sign program. Parking Lot Improvements' The Agency plans on making major upgrades to the City-owned parking lots including repaving, adding energy efficient lighting, replacing landscaping, repainting, and upgraded security measures. Santa Ana Community :?'opment Agency irnpl&nig ioO an July 1, 2010 to June 30, " For the Merged Santa . c.tevelopment Proj Ur tect1 pa - Affordable Housing Program The Agency's Affordable Housing Program includes the following components: Multi family Acquisition Rehabilitation In partnership with various non-profit and for-profit developers, the Agency anticipates continuing an acquisition and rehabilitation program for multi-family properties. The selected developers will be responsible for the rehabilitation and ongoing management of these projects, and the projects will be subject to income and affordability covenants that will remain in place for a minimum of 55 years. The Agency will provide assistance to the projects to fill the gap created by the covenants. Neighborhood Stabilization Program (NSP 1 & 2) This program stabilizes transitional neighborhoods through the improvement of existing residential structures and preservation of existing stock. The Program provides assistance to low and moderate income households throughout Santa Ana and also eliminates blighting conditions in targeted neighborhoods by increasing on-site management, reducing overcrowding and rehabilitating rental housing units. The following map reflects both NSP 1 and NSP 2 geographical target areas. This program will utilize Federal funds to acquire and redevelop foreclosed residential properties that might otherwise become sources of blight within their communities. The single- Santa Ana Community Redevelopment Agency Imp i July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project b'84? page 29 family homes are sold to households that are 120% of the area median income (AMI) or less. The City is using 25% of the grant as required to create affordable rental units for families at 50% of the AMI or below. Single-family Residential Rehabilitation The City's Community Development Agency administers rehabilitation programs funded with HOME and CDBG funds provided by the United States Department of Housing and Urban Development (HUD), CalHOME Program funds provided by the California Department of Housing and Community Development, and Set-Aside funds. The Program is available citywide to very-low, low and moderate income households. The majority of the assistance is provided to households in the very-low and low income range. These loans are typically in the amount of $20,000 to $30,000. New Residential Construction The Agency plans to undertake a large scale specific plan development in the Station District area. It is currently anticipated that this area will be developed with a mix of for-sale and rental projects that will serve very-low, low and moderate income households. It is also anticipated that this project will be implemented in multiple phases over the Implementation Plan period. A developer has been selected, and they are currently working with the community to identify the most appropriate developments for each available site. The Agency has entered into partnerships with several developers to develop 12 vacant parcels located throughout Santa Ana that are currently owned by the City or Agency. It is anticipated that these projects will be a mix of single-family homes and rental units affordable to low and moderate income households. Eight sites will accommodate the development of approximately 20 single-family homes. The remaining four sites will accommodate the development of up to 20 rental units. Mobile Home Rehabilitation The 29 mobile home parks in Santa Ana serve a substantial number of very-low income seniors. To meet their needs, the Agency plans to continue offering its Mobile Home Hardship Loan Program that offers seniors and disabled households forgivable loans of up to $5,000 to pay for essential repairs. Santa , For the .iiunity Redevelopment Agency ImpUlgio I?? July 1, ,`t J_me 30, 2015 1 Santa Ana Redevelopment Project 74XIc+1 34 Page 30 Rendering of Birch Street Project Proposal Preservation of Affordable Units There are several affordable housing complexes with expiring affordable housing covenants in Santa Ana that the Agency will consider assisting in order to preserve affordable housing. The following summarizes the total affordable housing development projected by the Agency for the period between FY 2011 and FY 2015. Table 3: Projected Affordable Housing Development (FY 2010/11- FY 2014/15) Station District 75 2011 1410 Durant 14 2010 Vista Del Rio 41 2011 Infill Development -Rental 20 2011 Infill Development Site - For-Sale 20 2011 Other Rental Projects 60 2013 Total Affordable Units 230 REDEVELOPMENT EXPENDITURES BACKGROUND The Agency has the legal authority and flexibility to implement the revitalization of the Merged Project Area utilizing any or all of the following revenue sources: (1) city; (2) state; (3) federal government; (4) tax increment funds in accordance with provisions of the existing CRL; (5) new tax allocation bonds; (6) interest income; (7) loans from private financial institutions; (8) lease or sale of Agency-owned property; (9) donations; (10) developer payments, and (11) any other legally available public or private sources. Current provisions of the CRL provide authority to the Agency to create indebtedness, issue bonds, borrow funds or obtain advances in implementing and carrying out the specific intents of a redevelopment plan. The Agency is authorized to fund the principal and interest on the indebtedness, bond issues, borrowed funds or advances from tax increment revenue and any other funds available to the Agency. To the extent that it is able to do so, the City may also supply additional assistance through City loans or grants for various public facilities or other project costs. The redevelopment programs described previously in this section outline a set of activities to be implemented by the Agency for the purpose of facilitating private reinvestment in the Merged Project Area, eliminating physical and economic blighting influences. For purposes of this analysis, Affordable Housing Fund revenues and their related expenditures are presented in the Housing Component section. Santa Ana Community Redevelopment Age 009-'c3t n Forthe Merged Santa Ana Redevelopment July 1, 2010 to June 30, 2015 Page 31 The Goals and Objectives and Projeccs, Programs and Expenditures included in this Implementation Plan reflect the financial constraints of the Agency to implementing the Redevelopment Plan over the five-year term of the Implementation Plan. As mentioned earlier and shown below, over the next five-year period the Agency's revenues have been committed to paying existing debt. As a result, the Agency has very little latitude with the discretionary actions that it may undertake. Agency discretionary actions will be primarily limited to assisting developers or owners that can front the costs for development on projects that are not financially feasible with the agreement that the developer will be repaid from tax increment generated from the proposed development. Should substantial new development occur or property sales that exceed current trends, there may be additional discretionary revenues available to fund projects. REVENUES At the time a Redevelopment Plan is adopted for a project area, the taxes generated from taxable value of property in the area (often referred to as the base year value) continue to be distributed to each of the taxing entities, which levy a property tax in the Merged Project Area. The property taxes that occur due to growth in taxable value above the base year value are allocated to the redevelopment agency. This amount is commonly referred to as tax increment revenues. Over the five-year period from FY 2010-11 to FY 2014-15, the Gross Tax Increment Revenue is projected to total $268.4 million. From this amount, the Agency is required under Redevelopment Law to set aside 20 percent of the Gross Tax Increment Revenue to be spent on affordable housing. The Agency sets asides more than the required 20 percent and the projected deposit to the Housing Fund amounts to $69.7 million for the period. Additional contractual and statutorily mandated pass through allocations to various affected taxing agencies are also made and are projected to amount to $56.9 million for the period. The County is projected to collect an additional $1.5 million for County administrative overhead expenses allowed under SB 2557 for the period. The resulting Net Tax Increment Revenue remaining for Agency debt payments, administration and capital improvement expenditures is projected to total $140.3 million. Santa / Sri nunit Redevelopment A enc Im i do P Jul 1, 2, ?" 't, vJune 30, 2015 For tnea Santa Ana Redelopmennt Project rg- dn y ,c Page 32 60 000 5-Year Implementation Plan - Tax Increment - A!lOS?tion , 50,000 z ; a . -.... _ L . O 40 000 ? ` , - - .? -- 0 0 30,000 - - E c F 20,000 - 10,000 - -- 0 ------ ... ...... - 2010-11 2011-12 2012-13 2013-14 2014-15 Fiscal Year i Housing Set Aside ¦ Paid to Taxing Entities Redevelopment law requires 20 percent of the gross tax increment, which is referred to as Set- Aside, to be spent on affordable housing. However, as a result of a settlement agreement in the South Main Project Area (Peebler settlement), the Agency sets aside a larger percentage of the gross tax increment; this amounts to $69.7 million set aside for low and moderate income housing, plus $12.1 million from the Peebler settlement, out of the $268.4 million gross tax increment projected over the next five years. Under the terms of a 1982 settlement resulting from litigation entitled Gerald Peebler, et.al. vs. City of Santa Ana, OCSC No. 38-58-59, the Agency agreed to annually set aside 20% of non- housing tax increments generated by the South Main Project Area, to be dedicated to the improvement and support of the commercial areas within the corridor along Main Street between First and Warner and the south side of First Street between Parton and Standard. Such improvements may include various public improvements, public parking funding and other commercial financial incentives. The annual set aside is deposited into what is referred to as the South Main 20% Commercial Corridor Fund. Santa Ana Community Redevelopment Agei is do P n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Fr?? Paga 33 The Merged Project Area's net tax increment revenues are estimated at $30.1 million for FY 2009-10 (net of County administrative fees, Set-Aside, and contractual and statutory pass through obligations). Over the five-year period, the Agency is projected to receive approximately $140.3 million in net tax increment revenues, the majority of which is obligated to repay debt. The revenues anticipated to be generated in the Merged Project Area over the next five years are identified in Table 4. Table 4: Anticipated Revenues (FY 2011- FY 2015) NOW, Net Tax Increment $140,276,000 Interest Earnings 1,881,000 Carry-Over Funds for SERAF z 3,680,000 Total Revenues $145,837,000 EXISTING OBLIGATIONS Agency Bond Debt Service The Agency will continue to make principal and interest payments on the 1989 Tax Allocation Refunding Bonds (Central City, Inter-City and South Harbor Project Areas) and the 2003 Tax Allocation Bonds (South Main Project Area). Over the next five years the amount of 1989 bond debt service will total approximately $47.7 million and the amount of 2003 bond debt service will total approximately $21.1 million. Transfers In (Credit) The Santa Ana Financing Authority issued 1998 Refunding Revenue Bonds, Series A, B, C and D for the purpose of using the net proceeds to purchase the Agency's 1989 Tax Allocation Refunding Bonds, Series A, B, C and E referenced above. This enabled the Agency to realize a savings of $1.2 million in annual debt service payments by utilizing the leverage of pooling funds permitted by Mello Roos bonds. Over the next five years, the Financing Authority bond debt service will total approximately $41.5 million, providing the Agency with a cumulative savings of approximately $6.2 million over the same period. Supplemental Educational Revenue Augmentation Fund (SERAF) The California State Legislature adopted Assembly Bill 26-4x to take $1.7 billion from local redevelopment funds in FY 2009-10 and an additional $350 million in FY 2010-11, and shift the tax increment funds to the SERAF to offset State deficits to K-12 schools. On May 10, 2010, the Agency paid the state $17,889,256. For FY 2010-11, the Agency's exposure is estimated to be $3,680,000. A lawsuit filed with the Sacramento Superior Court by the. California Redevelopment Association challenging the constitutionality of AB 26-4x was denied by the court. The FY 2009- 10 SERAF payment was funded from a $3,680,000 borrowing of the FY 2009-10 Housing Set- 2 To make the required SERAF payment to the State of California in FY 2010-11, the Agency intends to fund the demand from anticipated carry-over funds available to the Merged Project Area. Santa Ana Community Redevelopment Agency Imp do July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project ot- Page 34 Aside and the balance of $14,209,000 funded from other Agency resources, including the South Main 20% Commercial Corridor Fund. The amount borrowed from the FY 2009-10 Housing Set- Aside Fund and prior year Affordable Housing Fund borrowings for previous ERAF obligations is anticipated to be repaid on a basis subordinate to Agency debt obligations by FY 2015-16. The repayment to the Housing Fund over the next five years is projected to total $8,036,000. Future year demands from the State are not assumed in the projection. In order to fund the FY 2009-10 SERAF demand from the State, it was necessary for the Agency to borrow $6,302,827 from the South Main 20% Commercial Corridor Fund. The Agency intends to repay the amount borrowed commencing in FY 2011-12 through FY 2016-17. Based upon this plan, the Fund is scheduled to receive $3.3 million over the next five years. Administration The projected cost to administer the redevelopment program for the Merged Project Area over the next five years is based on the Agency's budget of $4,932,000 for FY 2010-11 (based on Agency administrative costs that are funded solely from tax increment revenue). Subsequent year administrative costs are projected to increase by an assumed three percent cost of living factor over the term of the projection. The tax increment funded administrative costs over the next five years are anticipated to total approximately $26.2 million. Contractual Obligations and Subsidies The Agency annually budgets for various existing contractual obligations unique to specific Project Areas as well as those of the Agency as a whole. These annual obligations include trustee fees, economic development obligations, debt service on Certificates of Participation, and debt repayments related to site-specific projects. In all, the Agency's contractual obligations amount to approximately $21.8 million over the next five years. Capital Projects Existing budgeted capital improvement projects identified in the Agency's FY 2010-11 budget reflects various anticipated capital improvements of the Agency, including budgeted costs associated with capital funding of the Grand Central Building, Regional Transportation building, Downtown, Museum District, Downtown Wayfinding Signage program, OCTA building, Station District, YMCA building and various parking lot improvements. An additional $750,000 is budgeted in FY 2010-11 for commercial fagade rehabilitation rebates in the Downtown area. The total cost for these FY 2010-11 budgeted capital improvements is approximately $2.4 million. Specific costs for other subsequent projects have not been identified other than what have been reflected in the FY 2010-11 budget. To the extent annual resources, in excess of the noted expenditures, become available to the Merged Project Area, such discretionary resources may be used to fund other capital improvement opportunities that may arise in subsequent fiscal years or may be used for ongoing commercial fagade improvement assistance Downtown. Based upon the forecast and inclusive of the $2.4 million already budgeted for specific capital improvements in FY 2010-11, over the next five years up to $8 million may be available for capital project improvements in the Merged Project Area. Santa Ana Community Redeve 1- it Agency Imp6y,e, tio?bn July 1, 2010 to June 30,201-5---' For the Merged Santa Ana RE , pment Project y Page 35 Future Loan Repayments Although not projected during the five-year Implementation Plan period, there is the potential for cash deficits, requiring short-term loans. However, to the extent unforeseen declines in tax increment revenue occur, future deficits may be funded from other Agency financing sources as necessary, with such loans advanced to the Agency to meet any future cash deficits, and repaid on a pay-as-you-go basis in subsequent fiscal years. The anticipated projects, programs or activities that the Agency may undertake as future resources, were presented above. Table 5: Anticipated Expenditures (FY 2010/11- FY 2014/15) Bond Debt Service $68,889,000 Transfers In (1998 vs. 19889 DS Credit) (6,203,000) SERAF 2010-11 Payment 3,680,000 ERAF & SERAF Housing Fund Repayment 8,036,000 ERAF & SERAF So. Main Comml Corridor Fund 3,303,000 Repayment Administration 26,186,000 Contractual Obligations 21,803,000 Capital Projects 8,030,000 So. Main 20% Commercial Corridor Fund 12,113,000 Total Expenditures 145,837,000 A summary of the cash flow of the Agency over the term of this Implementation Plan is shown in Table 6. Table 6: Projected Agency Cash Flow (FY 2010/11- FY 2014/15) Tax Increment & Interest Earnings $142,157,000 Carry-Over Funds for SERAF 2010-11 Payment 3,680,000 Total Revenues 145,837,000 (Less) Total Expenditures (145,837,000) Revenues Available for Discretionary Projects $0 RELATIONSHIP BETWEEN GOALS AND OBJECTIVES, PROGRAMS, PROJECTS AND EXPENDITURES The achievement of the Implementation Plan Goals and Objectives (through the specific projects, programs and expenditures) will partially eliminate blighting conditions within the Merged Project Area. This Implementation Plan does not attempt to outline a plan to eliminate Santa Ana Community Redevelopment Agency Imp July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project ?T0C 30 Page all blight in the Merged Project Area, but rather addresses how the Agency intends to contribute to the elimination of blight within the Merged Project Area. In summary, the Agency proposes to focus its activities on eliminating physical and economic blight conditions through the construction of public improvements and assisting the private sector in developing vacant and/or underutilized properties. It is the Agency's hope and intent that the Redevelopment Implementation Plan as proposed, if fully implemented, will encourage further private sector investment in commercial designated areas. Table 7 shows the relationship between the Agency's goals and objectives, and projects and programs for the elimination of Blight. 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N H V ? f0 L al Q C o m ai c `^ o io Q1 C C aJ J T ? 'O E m E v v 'a - U CL 0 J E ^ O 9 N v a? a N --E a? `° O CL -.Y > J O Q u ar - C W? p N f! O v 3 C E E O m aJ C Q .+ E C U a) C > O V O ai C C 6 o ar i O A aj m 0 m v J t: C u W °u L > E- 2 0 > > y o x f 6 a Q c w 3 a n ° Gi a° Q w o L?'1 Gl o m c a c? r{ U N -i r Qi E. C) f L V QI >^ O a K r_o c e; s > CJ C? G ? (r r m E E U U < r fv -? O v, 4t Ill. AFFORDABLE HOUSING COMPONENT The Agency's primary goal is to comply with the affordable housing requirements imposed by the CRL in a responsible manner. The affordable housing activities identified in the Implementation Plan will be undertaken over the duration of the Redevelopment Plan for the Merged Project Areas, and will ensure that the Agency is in compliance with the CRL. The CRL requires that certain housing requirements be fulfilled during five- and 10-year increments; and over the remaining Merged Project Area life. Specifically, the inclusionary housing production requirement must be met every 10 years, and over the life of the Merged Project Area. Comparatively, the proportionality tests must be achieved between January 1, 2002 and December 31, 2014, and then again in 10-year increments throughout the Merged Project Area life. A. APPLICABLE AFFORDABLE HOUSING REQUIREMENTS CALIFORNIA REDEVELOPMENT LAw REQUIREMENTS A California redevelopment agency has three primary responsibilities relative to affordable housing: ¦ To deposit and expend a percentage of tax increment revenue for the provision of affordable housing (Housing Set-Aside Requirement) into a separate fund (Affordable Housing Fund). ¦ To cause specified percentages of new or rehabilitated housing units in a Merged Project Area to be available at affordable housing cost (Inclusionary Housing Production Requirement). ¦ To replace affordable housing units removed from the housing stock as a result of redevelopment activities (Replacement Housing Requirement). Santa Ana Community Redevelopm For the Merged Santa Aria Redevelc 'i,cy ImpJ?ny?i6o Plan Project ?Af.11 4/ July 1, 2010 to June 30, 2015 Page 40 1 B. AFFORDABLE HOUSING FUND STATUS A five-year implementation plan must address the redevelopment agency's performance relative to each of these responsibilities in enough detail to evaluate the Agency's performance for each of the five years. This includes the following: ¦ Plans for using annual deposits into the Housing Set-Aside Fund. - Affordable Housing Funds must be spent on very-low, low and moderate income housing projects in proportion to the unmet need for housing as defined in Government Code Section 65584 (Income Targeting Requirement) - A cap is applied to the amount of Affordable Housing Funds that can be spent on housing that is subject to age restrictions (Age Restriction Requirement) ¦ Identification of planned projects that will result in the destruction of existing affordable housing and identification of proposed locations for housing to replace units removed for project activities (Replacement Housing Requirement). ¦ Estimates of new housing units to be constructed within the Merged Project Area if adopted after 1975 and both a five-year and a 10-year plan to produce affordable housing in response to new housing production (Inclusionary Housing Production Requirement). ¦ Many affordable housing practitioners in California have concluded that redevelopment agencies can use one unit to fulfill both the replacement housing and the inclusionary housing production requirements imposed by Section 33413. However, in the interest of a conservative approach, the Agency has made the policy decision not to double count units toward the defined replacement housing and inclusionary housing production requirements. ¦ An explanation of how the goals, objectives, projects and expenditures will implement the low and moderate income affordable housing fund and housing production requirements. ¦ A new requirement of the law, Section 33490(a)(2)(C)(iv) of the CRL is to identify the amount of Affordable Housing Funds used to assist extremely-low, very-low, and low income units during the previous implementation plan period: Extremely Low Income Units $93,241 Very-Low Income Units 14,254,304 Low Income Units 8,467,420 Total Assistance 522.814.965 Santa Ana Community Redevelopment Agency Impjrzr tioryP n n July 1, 2010 to June 30, 2015 For, the Merged Santa Ana Redevelopment ProjectlX?F1?d1 -44 Page 41 The law also requires agencies to identify the amount of Affordable Housing Funds used to: • Assist units available to families with children: $24,299,855 • Identify the family units assisted (location, number of units, affordability level and assistance amount): 1205 E. Wilshire Blvd 0 58 85 143 $8,100,000 1411 N. Durant St 0 11 13 24 2,043,924 1501 N. Ross St 0 18 6 24 3,006,890 1505 N. Bush St 0 0 3 3 31,361 701 S. Townsend St 0 10 0 10 1,200,326 702 S. Raitt St 1 7 0 8 806,265 703 N. Lacy St 1 25 0 26 1,556,217 709 S. Townsend St 0 10 0 10 1,063,898 817 S. Townsend St 0 10 0 10 1,333,201 821 S. Townsend St 0 10 0 10 1,436,203 834 S. Raitt St 0 9 0 9 1,365,662 1006 N. Logan 0 0 1 1 616,954 1012 N. Logan 0 0 1 1 772,223 1015 N. Logan 0 0 1 1 744,223 1112 S. Orange 0 0 1 1 111,239 118 S. Orange 0 0 1 1 111,239 Totals 2 168 112 282 $24,299,855 • Identify the extremely-low, very-low and low income units, restricted with 55-year (rental) or 45-year (ownership) affordability restrictions, produced with local subsidy other than Affordable Housing Funds: AFFORDABLE HOUSING FUND DEPOSITS The Affordable Housing Fund revenues shown in Table 7 include the following: ¦ The estimated gross property tax increment generated within the Merged Project Area allocated to the Affordable Housing Fund. ¦ Interest income from balances in the Affordable Housing Fund. Santa Ana Commun ? ;velo ment Agency Im I m n tion/?I n July 1, 2010 to June For the Merged Sant ?development Project IUJJ ¦ Rental income and lease income. ¦ Repayments on existing residual receipts and individual loans. ¦ Repayments of previous SERAF Payments from the Affordable Housing Fund. The projected revenue streams for the Affordable Housing Fund can be summarized as follows: Table 8: Projected Affordable Housing Fund Revenues (FY 2010/11- FY 2014/15) Set-Aside Deposits $13,573,000 $13,691,000 $13,835,000 $14,120,000 $14,411,000 $69,630,000 Interest Income 500,000 500,000 500,000 500,000 500,000 2,500,000 Rental/Lease Income 85,000 85,000 85,000 85,000 85,000 425,000 Loan Repayments 633,000 633,000 633,000 633,000 633,000 3,165,000 SERAF/ERF 1,500,000 1,634,000 1,634,000 1,634,000 1,634,000 8,036,000 Repayments Total Revenues $16,291,000 $16,543,000 $16,687,000 $16,972,000 $17,263,000 $83,756,000 USE OF AFFORDABLE HOUSING FUND DEPOSITS The Agency is projected to incur the following costs during the Implementation Plan period: Housing Rehabilitation The Agency anticipates expending $4.8 million on the Housing Rehabilitation Program during the Implementation Plan period. Land Purchase / Other / Relocation Costs The Agency has budgeted $6.5 million for land acquisition costs during the five-year period. Projects & Programs A total of $54.0 million is budgeted during the Implementation Plan period for various projects and programs. Administrative Expenses Costs such as salaries; overhead; consultant and legal fees; and supplies will be incurred to implement the Affordable Housing Program. The cash flow projection includes annual estimates through Fiscal Year 2014/15 which total to $14.7 million during the Implementation Plan period. The actual expenditures must be determined each year and may differ from this plan's projections. Debt Service The Agency obtained a HELP Loan from the California Housing Finance Agency. The remaining balance on this loan is $403,000 and the Agency expects to repay it in FY 2010-11. The Agency will continue to evaluate funding mechanisms, which may include issuing housing bonds. Santa Ana Community Redevelopment Agency Im i ? n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project 68-4 Page 43 The projected Affordable Housing Fund expenditures during the Implementation Plan period can be summarized as follows: Table 9: Projected Affordable Housing Fund Expenditures (FY 2011- FY 2015) Housing Rehabilitation $300,000 $500,000 $1,000,000 $1,500,000 $1,500,000 $4,800,000 Land Purchase 2,500,000 1,000,000 1,000,000 1,000,000 1,000,000 6,500,000 Projects & Programs 12,000,000 12,000,000 10,000,000 10,000,000 10,000,000 54,000,000 Planning & Administration 2,763,000 2,846,000 2,931,000 3,019,000 3,110,000 14,669,000 Debt Service 403,000 0 0 0 0 403,000 Total Expenditures $17,966,000 $16,749,000 $14,931,000 $15,519,000 $15,610,000 $80,372,000 The Affordable Housing Fund expenditures are projected to total $80.4 million for the five-year period and are summarized in Figure 1: Projected Affordable Housing Fund Expenditures FY 2010/11- FY 2014/15 Housing Rnhnhilitnti- Land Purcl Other, Relocation 6,500,000 Debt Service 403,000 1% AFFORDABLE HOUSING FUND CASH FLOW ANALYSIS This Implementation Plan provides an illustrative example of how the Affordable Housing Program could be financed on an annual basis over the remaining term of the Merged Project Area. However, the timing and specific amounts of both revenues and expenditures may be adjusted over time. Specific decisions on each of these items will be made as part of the Agency's annual budget process. Santa ?iii-nunity Redevelopment Agency Imp n e gionA?P n July 1, - Tune 30, 2.015 For th d Santa Aria Redevelopment Project -48 Page 44 The cash flow projected to be generated by the Affordable Housing Fund is summarized below: Table 10: Projected Affordable Housing Fund Cash Flow (FY 2010/11- FY 2014/15) -..-... ?' ?, ? T ?! T ? 7 ?•? 74.# ? ?T? ?? S: ?T? Ivy Beginning Balance $50,301,000 $48,626,000 $48,823,000 $50,579,000 $52,032,000 Total Revenues 16,291,000 16,543,000 16,687,000 16,972,000 17,263,000 (Less) Expenditures (17,966,000) (16,346,000) (14,931,000) (15,519,000) (15,610,000) Ending Balance $48,626,000 $48,823,000 $50,579,000 $52,032,000 $53,685,000 PROPORTIONAL EXPENDITURES OF AFFORDABLE HOUSING FUND The Merged Project Area is subject to the Section 33334.4 requirement that a redevelopment agency expend Affordable Housing Funds in accordance with an income proportionality test and an age restriction proportionality test. These proportionality tests must be met between January 1, 2002 and December 31, 2014, and then again through the termination of the Merged Project Area. The results of the proportionality test are described in the following sections. Income Targeting Proportionality Test The income targeting proportionality test requires a redevelopment agency to expend Affordable Housing Funds in proportion to the unmet housing needs that have been identified for the community pursuant to Government Code Section 65584. The proportionality test used in this report is based on the 2006 - 2014 Regional Housing Needs Assessment (RHNA) figure prepared by the Southern California Association of Governments (SCAG), which covers the time period of this Implementation Plan. The RHNA established the following unmet need for affordable housing in the City of Santa Ana. Table 11: Income Targeting Requirements Very-Low Income 2,710 39% At Least 39% Low Income 1,639 23% At Least 23% Moderate Income 2,625 38% At Most 38% Totals 6,974 100% To comply with the Section 33334.4 requirements, the Agency must spend at least 39% of the Affordable Housing Funds on projects and programs dedicated to very-low income households, and no more than 38% of the Housing Funds on projects and programs dedicated to moderate income households. Section 33334.4 provides the Agency with the flexibility to allocate Affordable Housing Funds in any way that complies with the defined minimum for very-low income expenditures and the defined cap for moderate income expenditures. Santa Ana Community Redevelopment Age :t,. n do P n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment. W b-49 Page 45 Section 33334.4 allows the Agency to expend a disproportionate amount of the Housing Funds for very-low income households, and to subtract a commensurate amount from the low and/or moderate income thresholds. Similarly, the Agency can provide a disproportionate amount of funding for low income housing by reducing the amount of funds allocated to moderate income households. In no case can the expenditures for moderate income households exceed the established threshold. The following summarizes the actual expenditures incurred by the Agency between January 1, 2002 and June 30, 2010: Table 12: Actual Expenditures (1/1/2002 - 6/30/2010) Very-Low Income $32,057,000 47% Low Income 16,031,000 26% Moderate Income 8,126,000 27% Totals $56,214,000 100% The following summarizes the income category allocations of the proposed expenditures for July 1, 2011 through December 31, 2014: Table 13: Proposed Expenditures (7/1/2010 -12/31/2014) FY 2011 $5,805,000 $3,485,000 $5,510,000 $14,800,000 FY 2012 5,265,000 3,105,000 5,130,000 13,500,000 FY 2013 4,680,000 2,760,000 4,560,000 12,000,000 FY 2014 4,875,000 2,875,000 4,750,000 12,500,000 July 1- Dec. 1, 2014 4,875,000 2,875,000 4,750,000 12,500,000 Total Expenditures $25,500,000 $15,100,000 $24,700,000 $65,300,000 % of Total Expenditures 39% 23% 38% 100% Santa Ana Community Redevelopment Agency Imp do n IJ.rly 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project9rot-OU -'L Page 46 By the end of the obligation period, it is anticipated that the Agency expenditures, totaling $121.5 million, will have allocated 47% of the Affordable Housing Fund's project and program expenditures to very-low income households, 26% of the funds to low income households and 27% of the funds to moderate income households, summarized below: Figure 2: Income Targeting Proportionality Test (1/1/2002 -12/31/2014) These expenditures match the current proportionality requirements, and thus, the Agency is anticipated to meet the income targeting standards imposed by Section 33334.4. Santa Ana Community Rede\! ^ of Agency Imp i _ I n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Re ,ment Project Page 47 . Age Restricted Proportionality Test Section 33334.4 also requires redevelopment agencies to cap assistance for age-restricted housing based on the percentage of very-low and low income senior citizens within the very- low and low income households in the community. In the City of Santa Ana, very-low and low income senior citizens account for 12% of the City's total very-low and low income population. Therefore, the following summarizes the maximum amount of Affordable Housing Fund expenditures that can be spent on age restricted projects. Table 14: Age Restriction Requirements The following summarizes the actual expenditures incurred by the Agency between January 1, 2002 and FY 2010: Table 15: Actual Expenditures (1/1/2002 - 6/30/2010) Age Restricted $919,000 2% Non-Age Restricted 55,295,000 98% Totals $56,214,000 100% The following summarizes the income category allocations of the proposed expenditures for July 1, 2010 through December 31, 2014: Table 16: Projected Expenditures (7/1/2010 -12/31/2014) FY 2011 $1,740,000 $13,060,000 $14,800,000 FY 2012 1,620,000 11,880,000 13,500,000 FY 2013 1,440,000 10,560,000 12,000,000 FY 2014 1,500,000 11,000,000 12,500,000 July 1- December 31, 2014 1,500,000 11,000,000 12,500,000 Total Expenditures $7,800,000 $57,500,000 $65,300,000 % of Total Expenditures 12% 88% 100% By the end of the obligation period, it is anticipated that the Agency expenditures will have allocated 7% of the Affordable Housing Fund's project and program expenditures to age restrict projects and 93% of the funds to non-age restricted projects, summarized below: Santa Ana Cominrrnity Redevelopment Agency Implementation F` For the Merged Santa Ana Redevelopment Project 'o"B-52 July 1, 2010 to June 30, 2015 Page 49 Table 17: Age Restriction Proportionality Test (1/112002 -12/31/2014) Age Restricted $8,719,000 7% Non-Age Restricted 112,795,000 93% Totals $121,514,000 100% These expenditures match the current proportionality requirements, and thus, the Agency is anticipated to meet the age restricted targeting standards imposed by Section 33334.4. EXCESS SURPLUS CALCULATION The Affordable Housing Fund is also subject to the "excess surplus" requirements imposed by Section 33334.12. Excess surplus is defined as any unexpended and unencumbered funds in the Affordable Housing Fund that exceeds the greater of $1 million or the aggregate amount deposited into the Affordable Housing Fund during the Merged Project Area's preceding four fiscal years. Based on the Section 33334.12 requirements, the Agency has three years to encumber any excess surplus funds. The Agency does not currently have an excess surplus balance, and as is illustrated below, Agency does not expect to have an excess surplus through FY 2015: C. INCLUSIONARY HOUSING PRODUCTION STATUS LEGAL REQUIREMENTS For the purposes of this implementation Plan, inclusionary housing production refers to a redevelopment agency's obligation to cause a specified percentage of new or rehabilitated housing produced in a Merged Project Area to be available at affordable housing cost. It does not matter whether the housing is market rate or cost restricted, nor does it matter if the housing is privately or publicly produced. Santa Ana Core For the Merge Redeveloprrrent Agency Imgjgry? tio?Pjn Ana Redevelopment ProjectXF1?A1 July 1, 2010 to.', 2015 ge 49 Table 18: Excess Surplus Calculation (FY 2011112 - FY 2014/15) APPLICABILITY OF INCLUSIONARY HOUSING PRODUCTION REQUIREMENTS Redevelopment project areas adopted prior to January 1, 1976, are not subject to this legal requirement. All of the subareas in the Merged Project Area were adopted after December 31, 1975, with the exception of the Central Project Area. Thus, all of the Merged Project Area, excluding the Central Project Area, has inclusionary housing obligations. METHOD OF CALCULATION OF INCLUSIONARY HOUSING PRODUCTION REQUIREMENTS The percentage of housing units that must be available at an affordable housing cost varies by whether the housing constructed or rehabilitated was developed by a redevelopment agency or by another party. The Agency has not produced housing per the definition contained in Section D above. A written agreement with the Agency requiring affordable housing covenants does not meet the definition of agency-produced housing. The definition of substantial rehabilitation changed as of January 1, 2002. Prior to that time, any substantially rehabilitated units counted if they were in complexes of three or more units (triplexes or larger). For housing constructed or substantially rehabilitated by persons or entities other than a redevelopment agency, at least 15% of the units developed within the Merged Project Area must be available to households of low or moderate income. Of this number, not less than 40% must be available to very-low income households. For example, for every 100 units produced, 15 must be affordable. Of these 15 units, at least six units must be available to households with very-low income and the remaining nine units can be available to households of low or moderate income. Any fraction is rounded up, so for 101 units produced, 16 must be affordable and of that total, seven must be available to very-low income households. INCLUSIONARY HOUSING PRODUCTION REQUIREMENTS The following summarizes the new construction and substantial rehabilitation units created in the Merged Project Areas since adoption: Table 19: Residential Units Created (Project Area Adoption - FY 2010) Plan Adoption - FY 1999 881 FY 2000 - FY 2004 4 260 FY 2005 - FY 2010 Third Street 1 Skyline (Hutton Center) 349 Total Units Developed in Merged Project Areas 1,491 3 This assumption is based on previous Implementation Plan. 4 This assumption is based on previous Implementation Plan. Santa Ana Community Redevelopment Agency Im do P%%p?n For the Merged Santa Ana Redevelopment ProjeciQQ v08-54 July 1, 2010 to June 30, 2015 Page 50 A total of 745 new residential units are expected to be developed in the Merged Project Area during the next five years. The projects that are in planning are summarized as follows: Table 20: Projected Residential Unit Development (FY 2010/11- FY 2014/15) Vista del Rio 41 2011 Geneva Commons/Promenade Point 278 2015 Montage @ MacArthur 279 2015 Skyline Phase II 150 2015 Total Units to be Developed in Merged Proiect Areas 745 An additional 25 units are anticipated to be developed within the Merged Project Area between FY 2016 and FY 2020 and 100 units between FY 2021 and the termination of the Project Areas. The following summarizes the current and potential inclusionary housing obligation for the Agency: Table 21: Inclusionary Housing Production Requirements Through FY 2010 1,491 90 134 224 FY 2011- FY 2020 770 47 69 116 FY 2021-Termination 100 6 9 15 Total Units 2,361 143 212 355 lna Community Redevelopment Agency Imp do P n Merged Santa Ana Redevelopment Projectgbb-50 1 "1010 to June 30, 2015 /4 Page 51 INCLUSIONARY HOUSING PRODUCTION FULFILLMENT The following inclusionary housing units have been produced: Table 22: Inclusionary Housing Production Fulfillment (1983 - 2008) Various Projects 1983 -2005 Various 1 358 1 161.5 38.5 200.0 Outside Mereed Proiect Areas 5 Wilshire - Minnie / 1205 E. Wilshire 2007 55 Years 143 29.0 42.5 71.5 City Gardens / 2901 Bristol Street 2006 55 Years 59 29.5 0.0 29.5 Ross / 1501 N. Ross Street 2006 55 Years 24 5.5 6.5 12.0 Durant / 1411 N. Durant Street 2006 55 Years 24 5.0 7.0 12.0 Lacy & Raitt / 702 S. Raitt Street 2009 55 Years 8 4.0 0.0 4.0 Lacy & Raitt / 703 N. Lacy Street 2009 55 Years 26 13.0 0.0 13.0 Logan / 1006 N. Logan 2008 45 Years 1 0.0 0.5 0.5 Logan / 1012 N. Logan 2008 45 Years 1 0.0 0.5 0.5 Logan / 1015 N. Logan 2008 45 Years 1 0.0 0.5 0.5 RSI / Orange & McFadden 2009 45 Years 1 0.0 0.5 0.5 RSI / Orange & McFadden 2009 45 Years 1 0.0 0.5 0.5 Regina House / 1505 N. Bush 2006 45 Years 3 0.0 1.5 1.5 Joseph House / 210 E. 16th Street 2006 45 Years 4 0.0 2.0 2.0 Townsend & Raitt / 701 S. Townsend 2008 45 Years 10 5.0 0.0 5.0 Townsend & Raitt / 709 S. Townsend 2008 45 Years 10 5.0 0.0 5.0 Townsend & Raitt / 817 S. Townsend 2008 45 Years 10 5.0 0.0 5.0 Townsend & Raitt / 821 S. Townsend 2008 45 Years 10 4.5 0.5 5.0 Townsend & Raitt / 834 S. Townsend 2008 45 Years 11 5.5 0.0 5.5 Total Units 705 273.0 101.0 373.5 5 Units developed outside of the Project Areas are counted on a one for two basis. Santa Ana Community Redevelopm .cy Irnp?i?t,Ztiiow p"p For the Merged Santa Ana Redevelo 'roject bb July 1, 2010 to June 30, 2015 Page 52 While the Agency plans to produce affordable housir g units during the Plan period, the affordability mixes have not yet been determined. As is illustrated in the next section, the previously developed affordable units enable the Agency to be in compliance through the termination of the Project Areas would be in compliance with the Inclusionary Housing obligations if the Agency anticipates that the following inclusionary housing production units will be completed between July 1, 2010 and June 30, 2015: Table 23: Projected Inclusionary Housing Production (FY 2010/11- FY 2014/15) INCLUSIONARY HOUSING PRODUCTION OBLIGATION SURPLUS / (DEFICIT) CALCULATION The Agency is required to measure inclusionary housing production as of June 30, 2010, June 30, 2020 and at the end of the Merged Project Area's life. The following table illustrates the production obligations and fulfillment anticipated to be generated at each point in time: Table 24: Inclusionary Housing Production Obligation Surplus / (Deficit) Total Inclusionary Housing Fulfillment 272.5 101.0 373.5 Adjustment (33.0) 33.0 0.0 (Less) Inclusionary Housing Obligation (90.0) (134.0) (224.0) Inclusionary Housing Surplus / (Deficit) 149.5 0.0 149.5 Santa Ana Community Redevelopment Agency Imp n c do July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project - -57' ? . Page 53 *Units produced outside the Merged Project Area will be counted on a two-for-one basis, in accordance with the CRL. Inclusionary Housing Surplus / (Deficit) 149.5 0.0 149.5 Total Inclusionary Housing Fulfillment 102.0 12.5 114.5 Adjustment (56.6) 56.6 0.0 (Less) Inclusionary Housing Obligation (47.0) (69.0) (116.0) Inclusionary Housing Surplus / (Deficit) 148.0 0.0 148.0 Inclusionary Housing Surplus / (Deficit) 148.0 0.0 148.0 Total Inclusionary Housing Fulfillment 0.0 0.0 0.0 Adjustment (9.0) 9.0 0.0 (Less) Inclusionary Housing Obligation (6.0) (9.0) (15.0) Inclusionary Housing Surplus / (Deficit) 133.0 0.0 133.0 Thus, the Agency is expected to surpass the CRL inclusionary housing obligations. D. REPLACEMENT HOUSING STATUS LEGAL REQUIREMENTS The Agency is required to meet replacement housing obligations pursuant to Section 33413(a). This Section requires the Agency to replace, on a one-for-one basis, all units removed from the inventory as a result of Agency actions that are occupied by low and moderate income households. In addition to matching the income levels of the removed units, the Agency must also replace an equal or greater number of bedrooms. Article 16.5 requires that if an implementation plan contains projects that could result in the removal of low and moderate income housing units, the plan must identify locations suitable for the replacement of such housing. The homes that are removed from the inventory may be replaced with fewer units as long as an equal or greater number of bedrooms are provided in the replacement units. Replacement housing units do not have to match tenure (i.e., rental vs. ownership, family vs. senior housing) as the units removed from inventory. Also, replacement units can be developed anywhere within the City limits. PAST REMOVAL OF LOW AND MODERATE INCOME UNITS With the exception of one very-low income five-bedroom unit that was removed in 2005, the Agency has fulfilled all the replacement housing obligations for units that were removed during the previous Implementation Plan periods. To fulfill this outstanding requirement, the Agency Santa Ana Comnum _ elo ment Agency Im I n i ior n Jul 1, 2010 to June " For the Merged Sant 2deelopmennt Project8106-b? Y has identified a site that will be developed by a non-profit corporation that will accommodate a five-bedroom unit. The project is currently in its preliminary stages. FUTURE REMOVAL OF LOW AND MODERATE INCOME UNITS The Agency anticipates that 20 very-low income units will be removed from the low and moderate income housing stock in 2010. The location and Agency estimates of the number of bedrooms and income levels of the existing households are identified in Table 25. As shown in Table 25, the Agency will replace these units with units developed through a mix of already completed projects and projects to be completed in the next several years. Table 25: Replacement Housing Analysis 1 • I •' 1 1 . 812 E. Santa Ana Blvd 2 0 0 2 1410 N. Durant 2 0 0 2 812 E. Santa Ana Blvd 0 2 0 2 703 N. Lacy 0 2 0 2 611 N. Garfield 4 0 0 4 817, 821 S. Townsend 4 0 0 4 611 N. Garfield 0 3 0 3 821 S. Townsend / 703 N. Lacy 0 3 0 3 911 Brown Street 0 1 0 1 703 N. Lacy 0 1 0 1 617 E. Sixth Street 0 01 0 1 703 N. Lacy 0 01 0 1 613 E. Sixth Street 0 2 0 2 703 N. Lacy 0 2 0 2 609 E. Sixth Street 0 1 0 1 817 S. Townsend 0 1 0 1 607 E. Sixth Street 0 0 1 1 1410 N. Durant 0 0 1 1 515 E. Fifth Street 0 1 0 1 702 S. Raitt 0 1 0 1 519 E. Fifth Street 0 0 3 3 817 S. Townsend 0 0 3 3 609 E. Fifth Street 1 0 0 1 1439 S. Minnie 1 0 0 1 706 E. Sixth Street 1 0 0 1 817 S. Townsend 1 0 0 1 701 E. Sixth Street 26 0 0 26 821 S. Townsend / 901 E. Sixth / 1410 26 0 0 26 N. Durant 713 E. Fifth Street 8 0 0 8 821 S. Townsend / 1410 N. Durant 8 0 0 8 602 E. Fifth / 409 Minter 1 0 0 1 817 S. Townsend 1 0 0 1 602 E. Fifth / 409 Minter 0 1 0 1 703 N. Lacy 0 1 0 1 708 E. Fifth Street 0 1 0 1 1410 Durant 0 1 0 1 716 E. Fifth Street 1 0 0 1 1410 Durant 1 0 0 1 720 E. Fifth Street 8 0 0 8 817 S. Townsend 8 0 0 8 (aka 416 N. Lacy) 610 E. Sixth Street 2 2 0 4 821 S. Townsend 2 2 0 4 Totals 54 15 4 73 Totals 54 15 4 73 E. ABILITY TO COMPLY WITH OBLIGATIONS PRIOR TO TIME LIMIT OF EFFECTIVENESS OF REDEVELOPMENT PLAN Section 33490(a)(4) of the CRL requires a Merged Project Area that is within six years of the time limit of effectiveness of the Redevelopment Plan to explain how the Agency will meet the housing obligations. The Central City subarea will reach the end of the Plan effectiveness on July 2, 2017. As previously discussed, the Agency will be in compliance with all of the affordable housing obligations. Santa Ana Community Redevelopment Agency Im r ^? n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project B 59 Page 55 This page left intentionally blank Santa imunity Redevelopment Agency Imgjgry ?tio?PAn July 1, June 30, 2015 For th d Santa Ana Redevelopment Project V Page 56 Appendix A Summary of Supplemental Judgments Santa Ana Community Redevelopment Ag.: i i do PI n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment ?? Appendix A - 1 Inter City Commuter Station Redevelopment Project Area (1984) 6 Thirty percent (30%) of the tax increment generated or related revenue or moneys repayable from property tax increment from the project area are to be set aside for low and moderate income housing. North Harbor Boulevard Redevelopment Project Area (1984) Thirty percent (30%) of the property tax increment generated or related revenue or moneys repayable from property tax increment from the project area are to be set aside for low and moderate income housing. South Main Street Redevelopment Project Area (1984) 8 Twenty percent (20%) of the property tax increment generated or related revenue or moneys repayable from property tax increment from the project area are to be set aside for low and moderate income housing. South Harbor Boulevard Fairview Street Redevelopment Project Area (1984) 9 Sixty percent (60%) of the property tax increment generated or related revenue or moneys repayable from property tax increment from the project area must be set aside for low and moderate income housing. Bristol Corridor Redevelopment Project Area (1994) 1o Thirty (30) percent of the property tax increment generated by the Bristol Corridor Project Area must be allocated to the Affordable Housing Fund. These funds must be separately accounted for in the Agency's Annual Report. The following summarizes the Affordable Housing Fund use requirements: ¦ Off-site improvements must be directly related to a specific housing development; ¦ Affordable Housing Funds cannot be used for relocation benefits; ¦ No more than 15% of the Affordable Housing Funds can be used to provide rent subsidies for low and very-low income households; ¦ Existing affordable units can be acquired as long as the covenants are extended by at least 15 years for rental units and 10 years for for-sale units. ¦ Units developed with the Bristol Corridor Project Area Affordable Housing Funds must be restricted in accordance with the RHNA proportionalities. 6 Edwards, et al. v. City of Santa Ana, etc., et al Rodrigues, et al. v. City of Santa Ana, etc., et al 8 Peebler, et al. v. City of Santa Ana, etc., et al 9 Gibson v. City of Santa Ana, etc. et al io Robert P. Gonzales and Evangelina Avalos vs. City of Santa Ana, etc. et al Santa Ana Community Redevelopment Agency Im doP n July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project i -ti Appendix A- 2 Appendix B Glossary of Terms Santa Ana Community Red ,,3nt Agency Implementation Plan For the Merged Santa Ana Apment Project §bB-63 July 1, 2010 to June 30, 2013) Appendix B GLOSSARY OF TERMS The following glossary (or definition of terms) is provided to assist the public to better understand and evaluate the implementation Plan. Terms are applicable to redevelopment activities and to community development in general. Absentee Owner - Property owner who owns property at one location but lives or operates a business at another location. ADA -The Americans with Disabilities Act of 1990. Adaptive Reuse - The rehabilitation of older properties for a new purpose. Affordability Gap -The extent to which gross housing costs, including utility costs, exceed 30% of gross household income. Affordable Housing-As defined in California law, housing that is affordable to households earning at or below 120 percent of area median income. Affordable Housing Cost - As described in Section 50052.5 of the California Health and Safety Code (which see for more detail), the term applies to owner-occupied housing. For very low-income families it means a cost that does not exceed 30 percent of the monthly income of a very low-income household of appropriate size for the unit. For low-income families it means a cost that does not exceed 30 percent of the monthly income of an appropriately sized household at 70 percent of monthly income. For moderate-income households it means a cost that is not less than 28 percent or more than 35 percent of the monthly income of an appropriately sized household at 110 percent of monthly income. Affordable Rent - As described in Section 50053 of the California Health and Safety Code (which see for more detail), the term applies to rental housing. For very low-income families it means a cost that does not exceed 30 percent of the monthly income of a very low-income household of appropriate size for the unit. For low-income families it means a rent that does not exceed 30 percent of the monthly income of an appropriately sized household at 60 percent of monthly income. For moderate-income households it means a rent that does not exceed 30 percent of the monthly income of an appropriately sized household at 110 percent of monthly income. Affordable Owner-Occupied Housing- Housing units meant for sale and occupancy by owners, and carrying affordability covenants that conform to Section 50052.5 of the California Health and Safety Code (which see for more detail). Affordable Renter-Occupied Housing- Housing units meant for long-term occupancy by tenant households, Affordability Restrictions - The requirements imposed by a redevelopment agency or other public agency that housing units remain affordable to low- and moderate-income households for a specified number of years. Santa Ana Community Redevelopment Agency Implementatior. ? Pi. July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project O B-64, " Appendix B - 2 Amenity - An aspect of a property that enhances its value. Examples, off-street reserved parking within a condominium community, the nearness of good public transportation, tennis courts or a swimming pool. Area Median Income (AMI)-The median income for a geographic area such as a county that may be established by the U.S. Department of Housing and Urban Development (HUD) or the State of California. AMI tables commonly provide income numbers for households from one to eight persons. Assessed Value - The amount used by the county tax assessor to value real property for tax purposes. Assessed value multiplied by the tax rate determines property tax. At-Risk Units - In general, any affordable unit that may convert to market rate because the affordability restrictions are about to expire, the owner can opt-out of the Section 8 program, or the owner can prepay a federal mortgage. Base Year - The year in which the redevelopment plan is adopted. Base Year Assessed Value, Base Value or Frozen Base -The total assessed value of property within a project area in the year in which the redevelopment plan is adopted. Blight - Current definitions of blight identify both physical and economic blighting conditions. Physical Buildings that are unsafe or unhealthy for persons to live or work in Conditions such as substandard design or construction that hinder the utility of buildings Adjacent or nearby incompatible uses that prevent development Subdivided lots of irregular shapes or inadequate size and in multiple ownership Economic Depreciated or stagnant property values, or property values impaired by the presence of hazardous waste High business vacancy or abandonment rates, abnormally low lease rates Absence of necessary, neighborhood oriented commercial facilities such as grocery stores and banks Serious residential overcrowding An excess of bars, liquor stores or adult-oriented businesses Bond - An interest bearing promise (bond) to pay a specified sum of money, the principal amount due on a specific date. Funds raised through the sale of bonds can be used for various public purposes, such as housing. California Community Redevelopment Law - Redevelopment law contained in California Health and Safety Code, Division 24, Part 1(Section 33000 et seq.). CEQA - California Environmental Quality Act. Requires the assessment of projects for environmental impacts and establishes procedures for preparing and processing environmental documents. Condominium - A form of ownership of real property in which the purchaser receives title to a particular unit and a proportionate interest in certain common areas. Each unit is a separately owned space to the interior surfaces of the perimeter walls, floors and ceilings. Title to the common areas is in terms of percentages and refers to the entire project less the separately owned units. Santa Ana C sty. Redevelopment Agency Implementation Plan July 1, 2010 to, 71i, 2015 For the Mer, :a Ana Redevelopment ProjectMB_65 x B--3 Construction Costs - Broadly, all costs incurred in bringing a building to completion, not including land acquisition, financing or sales costs. Construction Loan - A short-term interim loan for financing the cost of construction. The lender makes payments to the builder at periodic intervals as the work progresses. Cost Burden - The extent to which housing costs, including utilities, exceed 30% of gross income, based on data published by the U.S. Census Bureau. Deed Restriction - A limitation placed in a deed limiting or restricting the use of the real property. Deferred Loan - A loan whereby payment of part or all of the loan is deferred until a later time as specified in the loan. Density Bonus - A provision to permit a residential developer to construct more dwellings on a site than would normally be allowed, provided the developer includes certain amenities or public benefits. Disabled Household - Households in which at least one of the residents is an adult with a disability. A person is considered to have a disability if s/he has a physical, mental, or emotional impairment that (1) is expected to be of indefinite duration, (2) substantially impedes his or her ability to live independently, and (3) is of such nature that the ability could be improved by more suitable housing conditions (federal definition). Economic Development -A general term indicating projects to stabilize and enhance an area's economy and to create or maintain jobs. Elderly Person - There is no universally accepted definition, but an individual must be at least 62 years of age to qualify as elderly. Emergency Shelter - A building in which emergency temporary lodging is provided, with or without meals, to families and individuals who are homeless, where on-site supervision is generally provided whenever such shelter is occupied. Eminent Domain -Authority of a government agency to acquire property for public purposes, with payment of just compensation. In the case of redevelopment agencies, public purposes include the elimination of blight. Often referred to as condemnation. Equity - The interest or value which an owner has in real estate over and above the current indebtedness; sometimes referred to as the owner's interest. Equity Sharing - The generic term for various forms of home financing in which a homeowner shares his property appreciation with another party. Public agencies offering first time homebuyer programs often require that they receive an equity share from homebuyers who sell their homes before the required period of affordability has ended. Extremely Low-Income Household - A household earning between 0% and 30% of the area median income. Santa Ana Community Redevelopment Agency Irr ?ntation Plan July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Proji Appendix B - 4 8OB-66 Fair Housing Act - Title VI II of the Civil Rights Act of 968, as amended by the Fair Housing Amendments Act of 1988. Fair Market Rents (FMR) - Estimates of the rent plus utilities that would be required to rent privately owned, decent, safe, and sanitary rental housing of a modest nature with suitable amenities. Fair Market Value - The price that would be paid for property offered on the open market for a reasonable period of time with both buyer and seller knowing all the uses to which the property could be put, and with neither party under pressure to buy or sell. Family- All persons living in the same household who are related by birth, marriage, or adoption. FAR (Floor Area Ratio) - The ratio of square feet of floor space to the square feet of the site on which a building is located. FHA - Federal Housing Administration. A division of the U.S. Department of Housing and Urban Development; main activity is insuring residential mortgage loans made by approved lenders to qualified borrowers in accordance with its regulations. First-Time Homebuyer- Under federal law, an individual or family who has not owned a home during the three- year period preceding the publicly assisted purchase of a home. FNMA - Federal National Mortgage Association, popularly known as "Fannie Mae"; a federally chartered corporation whose primary function is to buy and sell FHA and VA mortgages in the secondary market. Foreclosure - An authorized procedure taken by a mortgagee or lender, under the terms of a mortgage or deed of trust for the purpose of applying the property toward the payment of a defaulted debt. Gap Financing-As used in the Consolidated Plan, gap financing represents the amount of public subsidy required to make a project financially feasible. General Plan - An adopted statement of policy for the physical development of a community, required by State law. GNMA - Government National Mortgage Association (Ginnie Mae); created in 1968 to take over special assistance and liquidation functions of FNMA. Participates in the secondary market through its mortgage-backed securities pools. Grantee - Person or legal entity to which a grant is awarded and that is accountable for the use of the funds available. Group Quarters - A facility housing groups of persons not living in households (U.S. Census definition). Examples of group quarters include prisons, dormitories, shelters, and military quarters. HCD - California Department Housing and Community Development. Provides housing and planning information and guidance, State bond funds, low-interest loans and grants for housing development and rehabilitation. Oversees the Housing Element review process to ensure that Housing Elements are in compliance with State law. "a Ana Community Redevelopment Agency Implementation Plan 2010 to June 30, 2015 ire Merged Santa Ana Redevelopment Project Area .r. Appendix B -- 5 80B-67 HOME - The HOME Investment Partnerships Act, which is Title II of the National Affordable Housing Act. Homeless Family with Children -A family composed of the following types of homeless persons: at least one parent or guardian and one child under the age of 18; a pregnant woman; or a person in the process of securing legal custody of a person under the age of 18. Homeless Person -A youth (17 years or younger) not accompanied by an adult (18 years or older) or an adult without children, who is homeless (not imprisoned or otherwise detained pursuant to an Act of Congress or a State law), including the following: (1) An individual who lacks a fixed, regular, and adequate nighttime residence; and (2) An individual who has a primary nighttime residence that is: (i) A supervised publicly or privately operated shelter designed to provide temporary living accommodations (including welfare hotels, congregate shelters, and transitional housing for the mentally ill); (ii) An institution that provides a temporary residence for individuals intended to be institutionalized; or (iii) A public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings. Homeless Subpopulations - Include but are not limited to the following categories of homeless persons: severely mentally ill, alcohol/drug addicted, severely mentally ill and alcohol/drug addicted, fleeing domestic violence, youth, and persons with HIV/AIDS. Household -- All persons, whether related or unrelated, living in a housing unit. Householder - Includes, in most cases, the person or one of the persons in whose name the home is owned or rented. If there is no such person in the household, any household member 15 years old and over could be designated as the householder. Housing Code - Local standards that ensure that maintenance and improvements of housing meets accepted standards and is adequate for occupancy. Housing Element - Mandatory component of local General Plans required by the State. The Element contains information on housing, population, household characteristics, assessment of current and projected housing need, government and non-government constraints, energy conservation, publicly held lands, and planning housing supply. Housing Problems - A non-duplicative estimate of the number of units that have physical defects, are overcrowded, or whose occupants pay greater than 30% of household income for rent (U.S. Census definition). Housing Production/Inclusionary Housing- Within a redevelopment project, a specified percentage of housing units built or substantially rehabilitated, and required by law to be available at an affordable housing cost to very low-, low- and moderate-income persons. Within cities or counties, a specified percentage of new housing that is required to be affordable pursuant to ordinance or policy. Santa Ana Community Redevelop! g ?ncy Implementation Plan For the Merged Santa Ana Redev.,' !t Project gbB-68 July 1, 2010 to June 30, 2015 Appendix B -- 6 HUD -The U.S. Department of Housing and Urban Development. E ltablished by the Housing and Urban Development Act of 1965 to supersede the Housing and Home Finance Agency. Responsible for the implementation and administration of government housing and urban development programs includes community planning and development, housing production and mortgage credit (FHA), equal opportunity in housing, research, and technology. Inclusionary Zoning - In general, a local ordinance requiring that a developer of new housing produce a specified number of affordable dwelling units as a condition of the right to develop. Infrastructure - Public improvements which support development, including street improvements, lighting, sewers, flood control facilities, water lines, and gas lines. Jurisdiction -A State or unit of general local government. Large Household - A household with five or more members. Lead-based Paint Hazards - A lead-based paint hazards as defined in part 35, subpart B of Title X. Leverage - Funds from non-public sources that are contributed to a project. For example, Redevelopment Agency funds invested in a project would be said to be leveraged by private donations or conventional loans contributed to that same project. LIHTC - Low Income Housing Tax Credit. Loan Guarantee - A commitment to a lender that the guaranteed portion of a loan will be repaid if the borrower defaults. VA loans are guaranteed loans. Low-Income Household - Defined as a household earning between 51% and 80% of the area median (as adjusted for household size by HUD). Low Income Housing Tax Credits - Program established by the Federal and California State governments that provides income tax reduction for investors in the low-income housing. Low- and Moderate-Income Households - Households whose incomes are between 0% and 120% of the median income for the area, or as adjusted by HUD. The income range varies by program. Market Value - What a willing seller could reasonably expect to receive if he/she were to sell his/her property on the open market to a willing buyer. MCC - Mortgage Credit Certificate Program, a federal program to assist first time homebuyers. Median Income - The level above which 50% of the households have a higher income and 50% of the households have a lower income. Mixed-Use Project - Developments that combine uses, such as retail on the ground floor and residential above. Santa Ana Community Redevelopment Agency Implementation Plan July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment Project MB-69 Appendix B - 7 Moderate-Income Household - Defined as a household earning between 81% and 120% of the area median income, or as adjusted by HUD. Neighborhood Revitalization Strategy - A multi-departmental effort to focus on a variety of neighborhood needs by combining "crackdown" strategies (to address the social problems of drugs, crime, and gangs) with blight improvement efforts. An important component includes increasing efforts to organize communities and build public awareness and responsibility for solving the problems that exist. Negotiated Sale - When the price to be paid for land and improvements is mutually agreed upon b the buyer and seller. NIMBY - "Not in My Backyard." An expression used to refer to individual and community-wide fears about affordable housing and other locally unwanted land uses, such as fears that such development will lower property values and increase crime. Notice of Funding Availability (NOFA) - A notice to inform potential project sponsors of the availability of funding. Offsite Improvements - Improvements outside the boundaries of a property that enhance its value. Onsite Improvements - Any construction of buildings or other improvements within the boundaries of a property which increases its value. Overcrowded - A housing unit containing more people than is permitted by various laws. HUD defines an overcrowded household as one in which there is more than one person per room. State law allows for much higher occupancy before overcrowding is said to exist. Poverty Level Family- Family with an income below the poverty line, as defined by the Office of Management and Budget and revised annually. Private Sector - Non-government, private, for-profit businesses and nonprofit organizations. Project Area -The area that is designated in the redevelopment plan for redevelopment and revitalization. Project Area Committee (PAC) - Elected committee composed of project area residents, businesses and representatives of other organizations who consult with and advise the redevelopment agency. Project-Based Rental Assistance - Rental assistance provided for a project, not for a specific tenant. Tenants receiving project-based rental assistance give up the right to that assistance upon moving from the project. Public Housing - Housing for lower-income households that is owned and managed on a long-term basis by a public agency, normally a local housing authority. Property Tax - The amount of tax which a property owner pays on the assessed value of his/her property. The tax is calculated by multiplying the assessed value of the property by the tax rate, which is one percent plus any voter- approved rate. Santa Ana Commune" evelopment Agency Implementation Plan July 1, 2010 to June For the Merged Sar <,edevelopment ProjectMB_70 Apper Redevelopment - Planning, development, redesign, site preparation and improvement, reconstruction and/or rehabilitation of all or part of a project area. Redevelopment Agency Board -The governing body created to designate redevelopment project areas, supervise and coordinate planning for a project area and implement the revitalization program. Redevelopment Plan - Plan for revitalization and redevelopment of land within the project area in order to eliminate blight and remedy the conditions that caused it. Regional Housing Needs Assessment (RHNA) - In California, a periodic assessment of regional housing needs conducted by regional councils of government. These assessments include an identification of each local jurisdiction's share of the regional housing need. Rehabilitation - To improve, alter, modernize and/or modify an existing structure to make it safer and healthier, bring it up to building code standards and create more usable space. Relocation - The provision of new housing and/or business locations for residents, businesses or organizations that must move as a result of redevelopment or other governmental activities. Relocation Assistance -Aid for those who relocate, including assistance in finding and paying for a new location, payments to cover moving costs, and additional payments for certain other costs. Replacement Housing - Housing that a public agency must cause to be produced to replace housing destroyed by public action. Section 8 Rent Voucher (a.k.a. Housing Choice Voucher) - Vouchers subsidize the rent based on the difference between 30% of the tenant's income and a Rent Payment Standard. Senior Household - One- or two-person households containing a person at least 62 years of age. Service Needs - The particular services identified for special needs populations, which typically may include transportation, personal care, housekeeping, counseling, meals, case management, personal emergency response, and other services to prevent premature institutionalization and assist individuals to continue living independently. Severely Cost Burden - The extent to which housing costs, including utilities, exceed 50% of gross income, based on data published by the U.S. Census Bureau. Sheltered - Families and persons whose primary nighttime residence is a publicly supervised or privately operated shelter (e.g., emergency and transitional shelters or commercial hotels/motels used to house the homeless). "Sheltered homeless" does not include any individual imprisoned or otherwise detained pursuant to an Act of Congress or State Law. Small Household - A household having fewer than 3 members. Single Room Occupancy Housing (SRO) - Generally, one-room housing units such as boarding houses, rooming houses and motels and hotels. SROs are often situated in older downtown buildings, typically rented on a short- or long-term basis by lower income working and retired individuals, and mentally and physically disabled people. Santa Ana Community Redevelopment Agency ImplemE Man July 1, 2010 to June 30, 2015 For the Merged Santa Ana Redevelopment ProjeckMB41 Appendix B -9 Sub recipient -A public agency or nonprofit organization selected by the participating jurisdiction toad minister all or a portion of the participating jurisdiction's HOME program Substandard Unit - In general, any unit that suffers from some type of physical defect, such as electrical wiring that is not up to Code or lack of plumbing. There is no common definition of "substandard" housing among the federal, State, or local levels. Supportive Housing - Housing with a supporting environment, such as group homes or Single Room Occupancy (SRO) housing and other housing that includes a planned service component. Supportive Services - Services provided to residents of supportive housing for the purpose of facilitating the independence of residents. Some examples are case management, medical or psychological counseling and supervision, childcare, transportation, and job training. Tax Allocation Bond - A bond or financial obligation issued by a redevelopment agency in order to generate funds to implement the redevelopment plan. The bond is repaid with tax increment revenues flowing to the agency. Tax Exempt Bond - A bond on which interest payments made to the bondholder are not subject to federal taxation. Tax Increment Funds - Additional tax funds that result from increases in property values occurring within a specified Redevelopment Area. State law permits these funds to be earmarked for redevelopment purposes and requires that at least 20% be used to increase and improve the community's affordable housing supply. Tenant-Based Rental Assistance - A form of rental assistance in which the assisted tenant may move from a dwelling unit with a right to continued assistance. The assistance is provided for the tenant, not for the project. Transitional Housing -A project that is designed to provide housing and appropriate supportive services to homeless persons to facilitate movement to independent living within 24 months, or a longer period approved by HUD. Unsheltered - Families and individuals whose primary night-time residence is a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings (e.g., the street, sidewalks, cars, vacant and abandoned buildings). Very Low-Income - Defined by HUD as a household earning between 31% and 50% of the median area income. Year-Round Housing - All occupied units and vacant units available for/or intended for year-round use. Zoning - The act of city authorities specifying the type of use to which property may be put in specific areas. Zoning Ordinance - The regulations of a municipality for controlling the character and use of property. Sant. 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Un CD rn O O c-f r.? v Qi L1 CL Community Redevelopment Agency 20 Civic Center Plaza, M-25 Santa Ana, CA 92701 8OB-82 - - 3-1-11 LES RESOLUTION NO.2011- A RESOLUTION OF THE CITY COUNCIL OF SANTA ANA APPROVING A COOPERATIVE AGREEMENT REGARDING THE IMPLEMENTATION OF PROGRAMS AND PROJECTS ESTABLISHED IN THE 2010/11-2014/15 FIVE-YEAR IMPLEMENTATION PLAN WITH THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA AND MAKING CERTAIN FINDINGS RELATED THERETO PURSUANT TO SECTION 33445 OF THE HEALTH & SAFETY CODE 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 Community Redevelopment Agency of the City of Santa Ana (hereinafter referred to as the "Agency") is engaged in activities necessary to execute and implement the Redevelopment Plan for the Merged Project Area (the "Redevelopment Plan"). B. The intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities, and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area, and to expend tax increment to accomplish the goals and objectives of the respective redevelopment projects. C. The Agency has adopted its Five-Year Implementation Plan (2010/11-2014/15) for the Project Area, as amended from time to time (the "Implementation Plan"), with established goals to support affordable housing, economic development, community revitalization, and institutional revitalization. To implement the projects, programs and activities associated with each goal, the Agency has made redevelopment fund commitments based on estimated available tax increment revenue and debt financing structures. D. The Agency and City of Santa Ana (the "City") wish to cooperate with one another to bring about the redevelopment of the Merged Project EXHIBIT 2 8OB-83 Area and accomplish various projects and programs set forth in the Redevelopment Plan and the Implementation Plan. E. Pursuant to Section 33220 of the Community Redevelopment Law (Health and Safety Code section 33000, et seq.) (the "CRU) certain public bodies, including the City may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects. F. The Agency and City have prepared a Cooperative Agreement (the "Agreement") to provide for the implementation of certain projects set forth in the Implementation Plan attached hereto as Exhibit 1 (the "Projects"), and to make payments by the Agency to the City to reimburse the City for the cost to the City for performing its obligations thereunder. The programs and activities associated with the Projects include, but are not limited to, acquisition and disposition of property, design, planning, preparation of construction bid documents, financial analysis, financing and new construction or rehabilitation. To carry out the Projects in accordance with the objectives and purposes of the Redevelopment Plan for the Project Area and the Implementation Plan, the Agency desires assistance and cooperation in the implementation and completion of the Projects. The City wishes to enter into the Agreement with the Agency to aid the Agency and cooperate with the Agency to expeditiously implement the Projects in accordance with the Redevelopment Plan for the Project Area and the Implementation Plan and undertake and complete all actions necessary or appropriate to ensure that the objectives of the Redevelopment Plan for the Project Area and the Implementation Plan is fulfilled within the time effectiveness of the Project Area. G. The Agency wishes to enter the Agreement with the City for the pledge of net available tax increment to finance the Projects. The purpose of the agreement is to facilitate the implementation of the Projects and to provide funding necessary to effectuate the completion of the Projects with net available tax increment in this current fiscal year and forthcoming fiscal years. "Net tax increment" is defined as gross tax increment, less County Administrative Fees, statutory pass-throughs and debt service. By approving and entering into the Agreement, the Agency will approve the pledge of net available increment from the Project Area to pay for the Projects. G. Section 33445 of the Health & Safety Code, part of the California Redevelopment Law, provides that the Agency may pay for all or part of the 2 8OB-84 cost of installation and construction of any building, facility, structure or other improvement which is publicly owned either within or without the project area, upon the consent of the City, if the following findings can be made: 1. That the public improvement is of benefit to the project area or the immediate neighborhood in which the project is located and helps to eliminate blight; 2. That no other reasonable means of financing the publicly owned improvement is available to the community; and 3. That the payment of funds for the cost of the publicly owned improvement is consistent with the Implementation Plan. H. The City finds that the Projects will be of benefit to the merged Project Area as well as benefit the immediate neighborhood and all residents and visitors to the City. This finding is supported by the fact that public improvements in general facilitate the removal of blight and help create a safe, more cohesive and economically dynamic community. Development of library, park and recreational facilities, as well as public parking and open space improvements assist in removal of blight within densely populated neighborhoods currently underserved with these types of amenities. Public safety and street improvements eliminate blight, improve traffic flow, increase the safety of residents, promote job create and promote business attraction and retention. The City, public and business community will significantly benefit from the proposed public facilities on the Schedule of Projects. These public improvements will beautify public streets, promote business, and improve public infrastructure necessary to spur economic revitalization in the Project Area. 1. The City determines that it lacks funds to pay for the Projects at this time, and there are no other reasonable means of financing said improvements. It has been difficult for the City, by itself, to provide sufficient funds to support the implementation of major public projects, programs, and activities. The limited resources of the City's General Fund are committed to previously incurred obligations and planned projects. J. The City further finds and determines that the payment of funds for the implementation of the public projects, programs and activities is consistent with the Implementation Plan adopted pursuant to Health and Safety Code Section 33490. 3 8OB-85 K. The City finds that it is in the best interests of the City and the common benefit of residents, employees, business tenants and property owners within the Project Area and the City as a whole for the Projects to be developed and constructed. L. The use of funds in the Agency's low and moderate income housing fund for the Projects located outside of the Project Area can be used in accordance with Section 33334.2 of the CRL because the use of such funds will be of benefit to the Project Area. M. The City Council has received and heard all oral and written objections to the proposed payments by the Agency to the City for the Projects as described in the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. N. The City Council hereby finds and determines that the foregoing findings are true and correct. Section 2. The City Council hereby consents to the payment by the Agency of up to $210,000,000.00 in Agency funds from the Merged Project Area for these public projects, programs and activities, in accordance with that certain Cooperative Agreement to be executed between the Agency and the City. Section 3. The City Manager or his designess is hereby authorized to take all steps, and to sign all documents and instruments necessary to implement and carry out and implement the Agreement, and to administer the City's obligations, responsibilities and duties to be performed under the Cooperative Agreement on behalf of the City. Section 4. The Clerk of the Council shall attest to and certify the vote adopting this Resolution. ?:1i : :II: ADOPTED this day of , 2011. Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Lisa E. Storck Assistant City Attorney AYES: Councilmembers: NOES: Councilmembers: ABSTAIN: Councilmembers: NOT PRESENT: Councilmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Clerk of Council, do hereby attest to and certify the attached Resolution No. 2011- to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of Council City of Santa Ana 5 8OB-87 ?e ,?3117-Soefoe?] 3-3-11 LES RESOLUTION NO.2011- A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY OF SANTA ANA APPROVING A COOPERATIVE AGREEMENT REGARDING THE IMPLEMENTATION OF PROGRAMS AND PROJECTS ESTABLISHED IN THE 2010/11- 2014/15 FIVE-YEAR IMPLEMENTATION PLAN WITH THE CITY OF SANTA ANA AND MAKING CERTAIN FINDINGS RELATED THERETO PURSUANT TO SECTION 33445 OF THE HEALTH & SAFETY CODE BE IT RESOLVED BY THE OF THE COMMUNITY REDEVELOPMENT AGENCY CITY OF SANTA ANA, AS FOLLOWS: Section 1: The Community Redevelopment Agency Board hereby finds, determines and declares as follows: A. The Community Redevelopment Agency of the City of Santa Ana (hereinafter referred to as the "Agency") is engaged in activities necessary to execute and implement the Redevelopment Plan for the Merged Project Area (the "Redevelopment Plan"). B. The intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities, and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Area, and to expend tax increment to accomplish the goals and objectives of the respective redevelopment projects. C. The Agency has adopted its Five-Year Implementation Plan (2010/11-2014/15) for the Project Area, as amended from time to time (the "Implementation Plan"), with established goals to support affordable housing, economic development, community revitalization, and institutional revitalization. To implement the projects, programs and activities associated with each goal, the Agency has made redevelopment fund commitments based on estimated available tax increment revenue and debt financing structures. D. The Agency and City of Santa Ana (the "City") wish to cooperate with one another to bring about the redevelopment of the Project Area and accomplish various projects and programs set forth in the EX4BIT 3 Redevelopment Plan and the Implementation Plan. E. Pursuant to Section 33220 of the Community Redevelopment Law (Health and Safety Code section 33000, et seq.) (the "CRL") certain public bodies, including the City may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects. F. The Agency and City have prepared a Cooperative Agreement (the "Agreement") to provide for the implementation of certain projects set forth in the Implementation Plan attached hereto as Exhibit 1 (the "Projects"), and to make payments by the Agency to the City to reimburse the City for the cost to the City for performing its obligations thereunder. The programs and activities associated with the Projects include, but are not limited to, acquisition and disposition of property, design, planning, preparation of construction bid documents, financial analysis, financing and new construction or rehabilitation. To carry out the Projects in accordance with the objectives and purposes of the Redevelopment Plan for the Project Area and the Implementation Plan, the Agency desires assistance and cooperation in the implementation and completion of the Projects. The City wishes to enter into the Agreement with the Agency to aid the Agency and cooperate with the Agency to expeditiously implement the Projects in accordance with the Redevelopment Plan for the Project Area and the Implementation Plan and undertake and complete all actions necessary or appropriate to ensure that the objectives of the Redevelopment Plan for the Project Area and the Implementation Plan is fulfilled within the time effectiveness of the Project Area. G. The Agency wishes to enter the Agreement with the City for the pledge of net available tax increment to finance the Projects. The purpose of the agreement is to facilitate the implementation of the Projects and to provide funding necessary to effectuate the completion of the Projects with net available tax increment in this current fiscal year and forthcoming fiscal years. "Net tax increment" is defined as gross tax increment, less County Administrative Fees, statutory pass-throughs and debt service. By approving and entering into the Agreement, the Agency will approve the pledge of net available increment from the Project Area to pay for the Projects. G. Section 33445 of the Health & Safety Code, part of the California Redevelopment Law, provides that the Agency may pay for all or part of the cost of installation and construction of any building, facility, structure or x:11 = •Ifj other improvement which is publicly owned either within or without the project area, upon the consent of the City, if the following findings can be made: 1. That the public improvement is of benefit to the project area or the immediate neighborhood in which the project is located and helps to eliminate blight; 2. That no other reasonable means of financing the publicly owned improvement is available to the community; and 3. That the payment of funds for the cost of the publicly owned improvement is consistent with the Implementation Plan. H. The Agency and City find that the Projects will be of benefit to the merged Project Area as well as benefit the immediate neighborhood and all residents and visitors to the City. This finding is supported by the fact that public improvements in general facilitate the removal of blight and help create a safe, more cohesive and economically dynamic community. Development of library, park and recreational facilities, as well as public parking and open space improvements assist in removal of blight within densely populated neighborhoods currently underserved with these types of amenities. Public safety and street improvements eliminate blight, improve traffic flow, increase the safety of residents, promote job create and promote business attraction and retention. The City, public and business community will significantly benefit from the proposed public facilities on the Schedule of Projects. These public improvements will beautify public streets, promote business, and improve public infrastructure necessary to spur economic revitalization in the Project Area. 1. The City has determined that it lacks funds to pay for the Projects at this time, and there are no other reasonable means of financing said improvements. It has been difficult for the City, by itself, to provide sufficient funds to support the implementation of major public projects, programs and activities. The limited resources of the City's General Fund are committed to previously incurred obligations and planned projects. J. The Agency and the City further find and determine that the payment of funds for the implementation of the public projects, programs and activities is consistent with the Implementation Plan adopted pursuant to Health and Safety Code Section 33490. K. The Agency and City find that it is in the best interests of the City and 8OB-91 the common benefit of residents, employees, business tenants and property owners within the Project Area and the City as a whole for the Projects to be implemented and developed. L. The use of funds in the Agency's low and moderate income housing fund for the Projects located outside of the Project Area can be used in accordance with Section 33334.2 of the CRL because the use of such funds will be of benefit to the Project Area. M. The Agency Board and City Council have received and heard all oral and written objections to the proposed payments by the Agency to the City for the Projects as described in the Agreement, and to other matters pertaining to this transaction, and all such oral and written objections are hereby overruled. N. The Agency Board hereby finds and determines that the foregoing findings are true and correct. Section 2. The Agency hereby consents to the payment by the Agency to the City of up to $210,000,000.00 in Agency funds from the Merged Project Area for these public projects, programs and activities, in accordance with that certain Cooperative Agreement to be executed between the Agency and the City. Section 3. The Executive Director of the Agency, or his/her designee, is hereby authorized to take all steps, and to sign all documents and instruments necessary to implement and carry out and implement the Cooperative Agreement, and to administer the Agency's obligations, responsibilities and duties to be performed under the Cooperative Agreement on behalf of the Agency. Section 4. The Executive Director of the Agency, or her/his designee, is hereby authorized to execute the Cooperative Agreement on behalf of the Agency, together with such non-substantive changes as may be approved by the Agency Executive Director and the Agency General Counsel. Section 5. The Recording Secretary for the Agency shall attest to and certify the vote adopting this Resolution. 4 8OB-92 ADOPTED this day of , 2011. Miguel A. Pulido Chair APPROVED AS TO FORM: Joseph Straka, Interim General Counsel By: Lisa E. Storck Assistant Counsel AYES: Boardmembers: NOES: Boardmembers: ABSTAIN: Boardmembers: NOT PRESENT: Boardmembers: CERTIFICATION OF ATTESTATION AND ORIGINALITY I, Maria D. Huizar, Secretary of the Agency, do hereby attest to and certify the attached Resolution No. 2011- to be the original resolution adopted by the Community Redevelopment Agency of the City of Santa Ana on , 2011. Date: Secretary, Community Redevelopment Agency 5 8OB-93 8OB-94 COOPERATIVE AGREEMENT BETWEEN THE COMMUNITY REDEVELOPMENT AGENCY AND THE CITY OF SANTA ANA FOR THE PAYMENT OF COSTS ASSOCIATED WITH CERTAIN REDEVELOPMENT AGENCY FUNDED PROJECTS/PROGRAMS THIS COOPERATIVE AGREEMENT is entered into this 7s' day of March, 2011, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate and politic (the "Agency"), and the CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City"). WITNESSETH A. The Agency is undertaking certain activities necessary for the execution of the City of Santa Ana redevelopment projects (the "Projects") under the provisions of the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) ("CRL") and pursuant to the Redevelopment Plan for the Projects. B. The intent of the Redevelopment Plan is, in part, to provide for the construction and installation of necessary public infrastructure and facilities and to facilitate the repair, restoration and/or replacement of existing public facilities and to perform specific actions necessary to promote the redevelopment and the economic revitalization of the Project Areas; to increase, improve and preserve the community's supply of low and moderate income housing, some of which may be located or implemented outside the Project Areas; and to take all other necessary actions to implement the redevelopment plans for the respective Project Areas and to expend tax increment to accomplish the goals and objectives of the respective redevelopment projects. C. The Agency has adopted its Five-Year Implementation Plan (2010/11-2014/15) for the Merged Project Area, as amended from time to time (the "Implementation Plan"), with established goals to support affordable housing, economic development, community revitalization, and institutional revitalization. To implement the projects, programs and activities associated with each goal ("Projects"), the Agency has made redevelopment fund commitments based on estimated available tax increment revenue and debt financing structures. D. The Agency and City of Santa Ana (the "City") wish to cooperate with one another to bring about the redevelopment of the Project Area and accomplish various projects and programs set forth in the Redevelopment Plan and the Implementation Plan. Pursuant to Section 33220 of the Community Redevelopment Law (Health and Safety Code section 33000, et seq.) (the "CRL") certain public bodies, including the City may aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects. E. In considering the Agency's desire to ensure timely implementation and EXHI?IT 4 8OB-95 completion of the Projects, the Agency wishes to enter this Agreement with the City for the pledge of net available tax increment to finance the Projects. The purpose of this Agreement is to facilitate the implementation of the Projects and to provide funding necessary to effectuate the completion of the Projects with net available tax increment in this current fiscal year and forthcoming fiscal years. "Net tax increment" is defined as gross tax increment, less County Administrative Fees, statutory pass-throughs and debt service. By approving and entering into the Agreement, the Agency will approve the pledge of net available increment from the Project Area to pay for the Projects. F. The City and Agency by resolution have each found that the use of Agency redevelopment funding for the Publicly Owned Improvements included herein is in accordance with Section 33445 and 33445.1 of the CRL and other applicable law. Such Council and Agency resolutions are each based on the authority, with the consent of the Council, to pay all or part of the cost of the installation and construction of any building, facility, structure, or other improvement which is publicly owned, either within or outside a Project Area, if the City Council makes certain determinations. G. By approving and entering into this Agreement, the Agency has approved the pledge of net available tax increment from the Project Areas to pay for the Projects and Programs. H. The obligations of the Agency under this Agreement shall constitute an indebtedness of the Agency for the purpose of carrying out the Redevelopment Plan for the Merged Project Area. 1. The Recitals are an integral part of this Agreement and set forth the intentions of the parties and the conditions on which the parties have decided to enter into this Agreement. NOW, THEREFORE, the parties hereto do mutually agree as follows: AGENCY OBLIGATIONS A. The Projects are those projects, programs and activities which are listed in the attached Implementation Plan. The Agency wishes to pay to the City an amount equal to the cost to the City to carry out the Projects. The Agency's obligations under this agreement, including without limitation the Agency's obligation to make the payments to the City required by this Agreement, shall constitute an indebtedness of the Agency for the purpose of carrying out the redevelopment of the Merged Project Area and are obligations to make payments authorized and incurred pursuant to redevelopment law. The obligations of the Agency set forth in this Agreement are contractual obligations that, if breached, could subject the Agency to damages and other liabilities or remedies. B. The obligations of Agency under this Agreement shall be payable out of net available tax increment, as defined in above Recitals and/or as defined or provided for in any applicable constitutional provision, statute or other provision of law now existing or adopted in the future, levied by or for the benefit of taxing agencies in the Merged Project Area, and allocated to the Agency and/or any lawful successor entity of the Agency and/or any entity established by law to 2 x96111:1&011161, carry out any of the redevelopment plans for the Merged Project Area and/or expend tax increment or pay indebtedness of the Agency to be repaid with tax increment, pursuant to Section 33670 of the CRL or any applicable constitutional provision, statute or other provision of law now existing or adopted in the future. In the event that additional funds are required in order to make the Agency payments to the City required by this Agreement, the Agency shall make such other payments from income received by the Agency from its projects and programs or any other additional funds available to it. C. The indebtedness of Agency under this Agreement shall be subordinate to the rights of the holder(s) of any existing bonds, notes or other instruments of indebtedness (all referred to herein as "indebtedness") of the Agency incurred or issued to finance the Merged Project Area, including without limitation any pledge of tax increment revenues from the Merged Project Area to pay any portion of the principal (and otherwise comply with the obligations and covenants) of any bond(s) issued or sold with respect to the Merged Project Area. 2. CITY OBLIGATIONS A. The City shall accept any funds offered by the Agency pursuant to this Agreement and shall devote those funds to completion of the projects, programs and activities by (i) reimbursing the City of using such funds to make City expenditures to perform the work required to carry out and complete the Projects; (ii) utilizing such funds to pay debt service on bonds or other indebtedness or obligations that the City has or will incur for such purposes; and/or paying such funds into a special fund of the City to be held and expended only for the purpose of satisfying the obligations of the City hereunder. B. It is the responsibility of the City to pay all development and construction costs in connection with the Projects from funds paid to the City by the Agency under this Agreement. C. The City shall perform its obligations hereunder in accordance with all applicable provisions of federal, state and local laws, including its obligation to comply with environmental laws such as CEQA, and shall timely complete the work required for each of the Projects set forth in the Plan. COMPENSATION AND METHOD OF PAYMENT The Agency shall contribute to the projects, programs and activities set forth in the Implementation Plan in an amount not to exceed Two Hundred Ten Million Dollars ($210,000,000.00), with the breakdown of Project costs as shown in Exhibit A attached hereto and incorporated herein. The Agency shall reimburse the City for the cost to the City of performing its obligations hereunder. The amount to be paid by the Agency hereunder shall be paid in the same fiscal year as the year in which the debts are incurred by the City. 4. LIABILITY AND INDEMNIFICATION 3 8OB-97 In contemplation of the provisions of Section 895.2 of the Government Code of the State of California imposing certain tort liabilityjointly upon public entities solely by reason of such entities being parties to an agreement as defined by Section 895 of said Code, the parries hereto, as between themselves, pursuant to the authorization contained in Section 895.4 and 895.6 of said Code, will each assume the full liability imposed upon it, or any of its officers, agents or employees by law for injury caused by negligent or wrongful act or omission occurring in the performance of this Agreement to the same extent that such liability would be imposed in the absence of Section 895.2 of said Code. To achieve the above-stated purpose each party indemnifies and holds harmless the other party for any loss, costs or expense that may be imposed upon such other party solely by virtue of said Section 895.2. The provisions of Section 2778 of the California Civil Code are made a part hereof as if fully set forth herein. 5. SEVERABILITY If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. 6. EFFECTIVE DATE OF AGREEMENT This Agreement shall take effect from and after the date of adoption and approval by the City and the Agency pursuant to official action of the governing bodies thereof and shall be effective for a duration not to exceed the time necessary for the City to complete the work and for the Agency to pay the City in full. This Agreement shall apply to all activities carried out by the City as set forth in Section 1 hereto. 7. BINDING ON SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of all successors and assigns of the parties, whether by agreement or operation of law. IN WITNESS WHEREOF, the parties hereto have executed this Cooperative Agreement the date and year first above written. ATTEST; CITY OF SANTA ANA ?9611 : •11967 Maria D. Huizar Clerk of the Council ATTEST: Maria D. Huizar Secretary APPROVED AS TO FORM: Joseph Straka Interim City Attorney/Agency General Counsel By: Lisa E. Storck Assistant City Attorney/Assistant Counsel By David N. Ream City Manager COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA By: Nancy T. Edwards Interim Executive Director 5 8OB-100